1 Friday, August 10 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.00 a.m.

5 JUDGE BONOMY: Mr. Hannis, while the witness is being brought in,

6 I noted -- note that yesterday a motion was received to amend the Rule 65

7 ter submission of the second accused. You may not have had a chance to

8 look at it yet, but it is a matter we could, I think, deal with orally

9 without any great formality once you've had a chance to do that. So if

10 you would perhaps let us know when you're in a position to clarify your

11 own reaction, we would be able to deal with it.

12 MR. HANNIS: I will, Your Honour, I was aware we had it; we just

13 haven't had a chance to look at it yet.

14 [The witness entered court]

15 JUDGE BONOMY: Good morning, Professor.

16 THE WITNESS: Good morning.

17 JUDGE BONOMY: Cross-examination by Mr. Hannis will now continue.

18 Mr. Hannis.

19 MR. HANNIS: Thank you, Your Honour.

20 WITNESS: RATKO MARKOVIC [Resumed]

21 [Witness answered through interpreter]

22 Cross-examination by Mr. Hannis: [Continued]

23 Q. Good morning, Professor. I think when we left off yesterday I

24 asked you whether the autonomous province were federal units and you

25 explained to me that they were not, but I had a question for you. In

1 Yugoslavia in 1989 and 1990, the autonomous provinces did have

2 representatives who were members of the collective Presidency, correct?

3 A. Correct, one each, the same as all the other republics that were

4 federal units.

5 Q. Okay. Now, I want to ask you about an exhibit that Mr. Zecevic

6 showed you yesterday it was -- or I guess it was on Monday. It was

7 Exhibit 1D370, and I'm sorry I don't recall what the tab number is. It's

8 in the grey binder, I think it's in the grey binder, volume 1. I see it

9 appears to be tab 8.

10 MR. ZECEVIC: It is tab 8, you're right.

11 MR. HANNIS:

12 Q. And it is the Law on Amendments of Certain Laws And Regulations

13 dated the 8th of March, 1993. And as I understand your testimony,

14 Professor, this was an example of some 25 laws that were being changed to

15 harmonize the laws with the changes brought about as a result of the new

16 Constitution in the Republic of Serbia. Is that correct?

17 A. Yes.

18 Q. Could you look at article number 2 to that law. I think Article 2

19 deals with the law regarding the -- I don't have the term of art in front

20 of me, but it was --

21 MR. HANNIS: Yes, if we can go to Article 2 in e-court, I think

22 it's the next page of this document. I see Article 2 in the Serbian

23 version, but the English I think we have to go back one page. I'm sorry.

24 Q. Yes, Article 2 is the Law on Termination of the Activity of the

25 Assembly of the autonomous -- or the socialist autonomous province of

1 Kosovo. And that law was going to cease to be valid once an Assembly was

2 constituted. Professor, was a -- was an Assembly in Kosovo ever

3 reconstituted after 1989?

4 A. There was an Assembly in 1989; it ceased to operate in 1990,

5 following the unilateral enactments by the Albanians who were in the

6 Assembly. I'm talking about enactment on putting Kosovo and Metohija on

7 an equal footing with all the other federal units, whereby they wished to

8 become a federal unit themselves. The Constitutional Court declared this

9 to be unconstitutional, and that's why it lost all validity. And that is

10 why the Assembly of the Republic of Serbia adopted this Law on the

11 Termination of the Activity of the Assembly of the SAP of Kosovo and the

12 Executive Committee of the SAP of Kosovo.

13 From that moment on, the Kosovo and Metohija Assembly was not

14 reconstituted for the simple reason that the Albanians boycotted the

15 elections. They refused to take part in the elections to the Assembly.

16 Q. Which elections were those? Were there some elections actually

17 scheduled to reconstitute an Assembly in Kosovo?

18 A. This was regulated in the constitutional law on the implementation

19 of the constitution dated 1990. I mean, how autonomy was to be

20 transformed to a 1990 constitution regime. There was to be a statutory

21 ruling, I think this is paragraph 13 of the Law on Implementation of the

22 1990 constitution, or rather, the constitutional law on the implementation

23 of the 1990 constitution, my apologies. However, this decision was never

24 adopted. And that is why no elections were ever held again in Kosovo and

25 Metohija. The Albanians boycotted the elections, and they were after all

1 the majority population.

2 Q. And after 1990 with the change in the constitution, Kosovo no

3 longer had a constitution of its own, nor a Constitutional Court, correct?

4 A. That's right. Under the 1990 constitution, Vojvodina and Kosovo

5 and Metohija, neither of these autonomous provinces had any executive

6 anymore, and by that very fact, this means they had no Constitutional

7 Court.

8 JUDGE BONOMY: I'm unclear about your last answer, Professor. You

9 said that --

10 THE WITNESS: [Interpretation] I said that under the 1990

11 constitution the autonomous provinces -- rather, neither of the autonomous

12 provinces, Vojvodina nor Kosovo and Metohija no longer had any

13 constitutional powers, no powers to adopt their own constitutions. They

14 still had the power to adopt a statute as the supreme legal act. By this

15 very fact, the need ceased for the Constitutional Court to exist because

16 the Constitutional Court defended the laws and regulations of the

17 autonomous provinces. But since the autonomous provinces had no executive

18 or legislative power anymore, there was no need for either of them to

19 actually have a Constitutional Court.

20 JUDGE BONOMY: It wasn't on that matter, it was on the matter of

21 the elections. You said there was to be a statutory ruling, and you

22 thought it was paragraph 13 of the Law on Implementation of the 1990

23 constitution, but this was never adopted.

24 Now, that would have been the responsibility of the Serb Assembly,

25 would it?

1 THE WITNESS: [Interpretation] You see, if you look at Article 2,

2 which is the one that we have before us, the Law on Termination, certain

3 laws, Article 2, paragraph 2, reads: "The Assembly of the autonomous

4 province of Kosovo and Metohija shall be constituted after the conduct of

5 a direct and secret ballot in accordance with the provisions of the

6 constitution and a provisional statutory decision issued by the National

7 Assembly."

8 JUDGE BONOMY: So do I take it from that that the National

9 Assembly failed to ever issue a provisional statutory decision?

10 THE WITNESS: [Interpretation] The National Assembly never adopted

11 that provisional statutory decision for the simple reason that parallel

12 authorities, parallel bodies of government, parallel institutions

13 generally speaking were soon created in Kosovo and Metohija since the

14 Albanians now refused to recognise the Serbian state.

15 JUDGE BONOMY: Mr. Hannis.

16 MR. HANNIS: Thank you, Your Honour.

17 Q. Professor, were you ever asked by anyone to prepare a draft

18 statute for Kosovo and Metohija?

19 A. Yes, a draft statute was prepared. If you remember the delegation

20 of the Republic of Serbia that we spoke about yesterday, starting on the

21 12th of March, 1998, the delegation travelled to Pristina with this draft

22 and with a draft law on local self-government. However - and we did say a

23 thing or two about that yesterday - the representatives of the majority

24 Albanian parties failed to show up; they never responded to those

25 invitations.

1 Q. And that draft then was first prepared in 1998?

2 A. No. Draft was first prepared as early as 1990 and 1991. However,

3 it was never used for the reasons that I have been enumerating. The

4 Kosovar Albanians boycotted the work of the state institutions and they

5 publicly stated that they did not recognise the institutions of the

6 Serbian state as their own.

7 Q. Okay. I guess I'm not clear on that, though. As I read Article 2

8 here, a provisional statutory decision was to be issued by the National

9 Assembly. Couldn't the National Assembly have done that without any

10 participation by the Kosovo Albanians?

11 A. Of course, in theory the National Assembly could have done that,

12 but this would be no more than dead letters on a page. The National

13 Assembly never did this in agreement with the Kosovar Albanians. However,

14 they boycotted the entire effort, saying that they were not interested in

15 this sort of autonomy, which in their eyes was less than a proper

16 autonomy.

17 Q. It was certainly less than what they had prior to 1990, wasn't it?

18 A. Of course it was less, although in comparative terms, if you look

19 at Europe, this is actually far more. There is no autonomy in the world

20 that enjoys executive powers, that enjoys its own legislation or

21 independent judiciary. There is no autonomous province in the world

22 without the consent of which you can change the constitution of a country,

23 of a state. There is no such autonomy in the world. I don't think there

24 will ever be. This was a form of constitutional excess in a manner of

25 speaking that such autonomy was, in fact, founded in the 1974

1 constitution.

2 MR. ZECEVIC: I'm sorry, Your Honours. There's a transcript --

3 JUDGE BONOMY: [Microphone not activated]

4 Sorry, I didn't hear you because the interpreter was still speaking.

5 MR. ZECEVIC: Okay, I understand, Your Honours. There is a

6 problem in 6, 23, without the consent of which you cannot change the

7 constitution -- maybe I'm getting wrong now. There is no autonomous --

8 JUDGE BONOMY: No, I think it's --

9 MR. ZECEVIC: I'm sorry. I'm really sorry, Your Honours.

10 JUDGE BONOMY: Thank you.

11 Mr. Hannis.

12 MR. HANNIS:

13 Q. Well, let me follow-up on that then to be sure I understand.

14 Prior to 1990 was the consent of the autonomous provinces required in

15 order to change the Constitution of Serbia?

16 A. Yes, under the 1974 constitution. The consent was, in fact,

17 granted to have amendments to the law by constitutional amendments,

18 amendments to the 1989 Constitution of the Republic of Serbia. Both of

19 the autonomous provinces, Vojvodina and Kosmet, gave their consent for

20 these amendments to be made, the amendments having previously been adopted

21 by a prescribed majority in the Assembly of the Republic of Serbia.

22 Q. And so I understand correctly then, prior to the new constitution

23 in 1990, the autonomous provinces, Kosovo and Metohija and Vojvodina, in

24 effect had a veto regarding changes in the constitution. Is that right?

25 A. Yes, that's right.

1 Q. And under the new constitution, after 1990 Kosovo and Vojvodina

2 only had the opportunity to express an opinion or complain about a change,

3 but they could not exercise a veto over proposed changes to the

4 Constitution of Serbia?

5 A. That's right.

6 Q. Thank you, Professor. I think that's all the questions I had on

7 that exhibit at this time.

8 I want to move on to -- I think it was at page 1289 -- 12889 from

9 Monday, and you were talking about Article 9, paragraph 2 of the

10 Constitution of the Republic of Serbia, where you indicated that the

11 president didn't have executive power, that he did not have or does not

12 have operational powers of the executive power. Those powers are with the

13 government. But what about during a declared irregular state, such as a

14 state of war, doesn't the president have some operational executive powers

15 then?

16 A. During a state of war or an imminent threat of war, as we have

17 seen, the president receives a proposal from the government, that is if

18 the People's Assembly is unable to meet. He then adopts decrees, the sort

19 that are normally adopted by the People's Assembly. It is his

20 responsibility once the state of war is declared over to adopt these -- to

21 submit these decrees to the People's Assembly for ratification. This is

22 envisaged in Article 83, item 7.

23 Q. During the state of war, he actually is acting in the place of the

24 National Assembly in issuing decrees, passing laws, in effect, no?

25 A. Yes, together with the cabinet, and the cabinet consolidates the

1 actual documents, he is the provisional legislator for as long as hardship

2 continues to prevail in the country. But neither he nor the government

3 can actually decide on any of the issues normally pertinent to the

4 People's Assembly. Once the situation in the country is normalised, back

5 to normal, the People's Assembly must ratify all of their proposals and

6 decisions.

7 Q. I have a couple of questions about that. You explained to us

8 yesterday how the government would -- would draft the proposed decrees and

9 give them to the president. Could he decide that he did not want to sign

10 off on one of those proposed decrees; and if so, was there any remedy for

11 the government who had proposed it or is the president in that situation

12 the final arbiter about whether a decree will be issued or not?

13 A. As we can all see, if we look at the text, the constitution

14 provided for no situation like that. It does not provide for the

15 eventuality of the president failing to actually sign a draft decree

16 submitted by the cabinet. No eventuality is envisaged should the

17 president fail to sign a draft decree submitted by the National Assembly,

18 proposed by the National Assembly. The president is expected to do both,

19 though, both to adopt a decree agreed by the cabinet and also to

20 promulgate a law previously adopted by the People's Assembly.

21 Q. I understand in the context of normal situation during peacetime,

22 and as I read the constitution that if the National Assembly passes a law

23 and presents it to the president, he really doesn't have any option other

24 than to exercise his suspensive veto or else promulgate the law, correct?

25 A. That's right.

1 Q. And if he failed to do either one of those two things, wouldn't he

2 be acting in violation of the constitution?

3 A. Precisely.

4 Q. But during a state of war when he, in effect, is replacing the

5 National Assembly, and it seems to me -- it does not seem to me, I guess,

6 as clear that he does not have the option to refuse to issue a decree

7 proposed by the government. Because in effect isn't he the one-man

8 legislature?

9 A. I am afraid I can't agree. It is government that in actual fact

10 takes over the competences of the People's Assembly. It is the government

11 that formulates the norms, whereas the president of the republic in actual

12 fact merely gives his consent by signing off certain documents and he

13 declares drafts by the government to be decrees or defines them as

14 decrees. In creative terms, it is the government that assumes the powers

15 of the People's Assembly. It is not the president who formulates the

16 norms. It is the government that does this.

17 Q. What I gathered from what you had said yesterday, the government

18 proposed these regulations to the president, and I guess for me in English

19 using that word "propose" is something in the nature of a suggestion to,

20 in general, someone with higher authority or a different authority. And

21 they have the discretion to accept my proposal or reject it. Isn't that

22 the relation between the government and the president during a state of

23 war?

24 A. Again, the constitution provided for no such situation explicitly.

25 Given the absence of such a decree, we can only speculate as to what the

1 president might or might not have done. There is no such norm provided by

2 the constitution.

3 JUDGE BONOMY: Mr. Hannis, the provision we're looking at I think

4 is Article 83, 7, and the wording is clear: "At his own initiative or at

5 the proposal of the government during a state of war or an imminent threat

6 of war, he can adopt instruments relating to matters falling within the

7 competence of the National Assembly."

8 MR. HANNIS: I agree, Your Honour, and I read that to say that he

9 can adopt. So he may have a proposal from the government which he chooses

10 not to adopt. It does not say he shall adopt at the proposal of the

11 government.

12 Q. Is that a correct reading, Professor?

13 JUDGE BONOMY: Mr. Zecevic, do you have an objection?

14 MR. ZECEVIC: No, Your Honour, just a clarification. The wording

15 of the Article 83, 7, says "donosi" [Interpretation] Adopts enactments,

16 [In English] Takes, adopts decisions, adopts acts, not "can" or "shall."

17 Maybe the translators can explain this. The wording says, if it can be

18 translated, please: [Interpretation] "During a state of war or an

19 imminent threat of war, shall adopt enactments in relation to matters

20 pertinent to the People's Assembly."

21 JUDGE BONOMY: My concern, Mr. Hannis, was not so much with that,

22 and if I've introduced the word "can," then I apologise for that. But my

23 concern was with the initial words of subparagraph 7: "At his own

24 initiative ..." Which would suggest that he could act without the

25 authority of the government.

1 Is that an accurate interpretation in your opinion, Professor?

2 THE WITNESS: [Interpretation] Yes, that's right. But Mr. Hannis

3 asked me about the provisions contained in the binder. All these

4 provisions were adopted at the proposal of the government. Not a single

5 one was adopted at the initiative of the president. As far as the wording

6 of the constitution is concerned, you are entirely right. He can move of

7 his own accord or following a proposal by the government. However, all of

8 the 16 provisions that we are debating here, now that is something that I

9 believe Mr. Hannis was asking me about and all of these were adopted at

10 the proposal of the government.

11 MR. HANNIS:

12 Q. Thank you, Professor. And as far as you know, were there any

13 proposed decrees presented to Mr. Milutinovic that he did not issue during

14 a state of war?

15 A. No. Such proposed decrees did not exist, there were no such

16 proposed decrees. Whatever decrees the government presented were

17 confirmed by Mr. Milutinovic with his signature.

18 Q. Thank you.

19 MR. HANNIS: Could we look at Exhibit P1862, and that is tab

20 number 14 in the grey binder. This is the Law on the Government of the

21 Republic of Serbia, dated 21 January 1991. And in particular I want to

22 look at Article 18.

23 A. Excuse me, what tab?

24 Q. Tab 14, I believe, of the grey binder.

25 A. [In English] Thank you.

1 Q. And Article 18 of that law, Professor.

2 A. [Interpretation] Yes, I have found it.

3 Q. The English translation I have reads that: "During a state of war

4 or imminent threat of war, the government shall propose to the president

5 of the republic that he adopt documents on issues falling under the

6 jurisdiction of the National Assembly."

7 Again, for me in English, "propose" has a connotation of

8 "suggest." Is that correct?

9 A. Well, "propose" means not "suggest" in the sense that they only

10 give him an impetus and he will then draft the text; it's rather the

11 government that draws up the text and proposes to him that he adopt the

12 text drafted by the government as the final document. So it's not the

13 government that moves the president to draft documents or enactments.

14 It's rather the government that establishes the content of that proposal.

15 So when the government establishes a proposal, he is not free to make

16 changes in it.

17 Q. I understand that, but I read nothing in that article nor in the

18 constitution that would prohibit the president from declining to accept

19 the proposal. There's no specific prohibition against him refusing it, is

20 there?

21 A. No, there isn't, just as there isn't in relation to promulgating

22 laws. It is expected that the president will adhere to the letter of the

23 constitution.

24 Q. But what we have in this situation is an absence of letters in the

25 constitution on this issue, correct?

1 A. That's correct, yes. This matter is not regulated in the

2 constitution, and precisely because it is not, I believe that the

3 president of the republic when the government makes a proposal is

4 duty-bound to promulgate it.

5 Q. What do you base that belief on? Where do you find that? Is that

6 just your personal opinion?

7 A. It follows from the interpretation of the constitution. It says

8 here: "Shall enact" not "may enact," so it's imperative, "shall enact."

9 And secondly, the situation you are mentioning is not envisaged in the

10 constitution at all. Had the constitution wanted the kind of situation

11 you describe, it would have been stated in the constitution that the

12 president of the republic may refuse to adopt a decree proposed by the

13 government.

14 Q. Well, it says "shall enact" and it shall enact those on his own

15 initiative and those proposed by the government. What if something

16 proposed by the government is 180 degrees opposite of a decree that the

17 president wants to issue on his own initiative, then in the end isn't he

18 the one who's the final arbiter?

19 A. The president, as we said, according to the conception of the

20 constitution, does not have executive power. According to Article 9,

21 paragraph 3 of the constitution, it's the government that has executive

22 powers. The president of the republic is not hierarchically superior to

23 the government. The government issues decrees. Decrees are acts of the

24 government. They fall within the competence of the government, and just

25 as laws are promulgated by the president of the republic, so decrees which

1 are, in fact, laws because they fall within the competence of the National

2 Assembly, are adopted by the president of the republic. In the case of

3 laws, he only promulgates, but because of the wartime conditions when it

4 comes to decrees he adopts. Otherwise, if it -- if things were different,

5 we would have a violation of the principle of division of power, which is

6 explicitly stated in the constitution, the principle of the division of

7 power -- excuse me. Sorry. Let me find it.

8 It is expressly formulated in Article 9, which says that

9 constitutional and legislative power belongs to the National Assembly,

10 executive power belongs to the government, judiciary power belongs to the

11 courts, protection of constitutionality and legality in compliance with

12 the constitution belongs to the Constitutional Court, whereas the Republic

13 of Serbia is represented and its unity expressed by the president of the

14 republic. In my view, refusal to adopt a decree proposed to him by the

15 government would constitute a violation of the principle of the division

16 of power. It's quite another matter when he on his own initiative as

17 expressly authorised by the constitution in Article 83, paragraph 7.

18 Q. Well, as a practical matter, Professor, how do you envision that

19 would work then if the president took the view that you have stated, that

20 if it's proposed by the government he really has to follow through on it

21 and issue that proposed decree during a state of war, but he doesn't like

22 it. So on Tuesday he issues the government decree, but on Wednesday he

23 issues one directly contrary to it on his own initiative. What happens

24 then? Because he wouldn't be acting in violation of the constitution. He

25 issued the government decree that had been proposed to him, and under the

1 constitution he is authorised to issue decrees on his own initiative which

2 he does on Wednesday, which in essence nullifies the previous decree

3 proposed by the government on Tuesday.

4 A. This is all possible in theory. That's just theoretical. Life is

5 something else. A state of war or a state of an imminent threat of war is

6 an exceptional situation in the life of any state, and under such

7 conditions all the state organs aim -- aspire to the same goal. They are

8 not mutually antagonistic. They are all coordinated. It's hard to

9 imagine in a state of war for the government to go one way and the

10 president another. There is a state of general mobilisation. All the

11 forces, all the resources within the country aspire to the same goal, the

12 goal of defending the country. So that, yes, in theory what you say is

13 possible, but that's just theoretical. It's impossible to imagine such a

14 situation in real life.

15 Q. I agree with you, Professor. Sometimes real life is different

16 than what is possible when just looking at the paper.

17 I want to ask you about Article 83, number 2 of the president's

18 powers under the Constitution of Serbia, and this has to do, I believe,

19 with his powers to appoint members to the Constitutional Court; is that

20 correct?

21 A. Yes, correct.

22 Q. Did I understand your testimony correctly on Monday when you said

23 in carrying out those duties or powers, the president has to reach an

24 accord with the cabinet basically ahead of time on who those candidates

25 are that he will then propose to the Assembly. Is that right?

1 A. Excuse me, I'm not sure whether you asked me whether he can

2 appoint or nominate, propose, in other words, judges of the Constitutional

3 Court. I don't see the transcript very well. If you ask me whether he

4 can propose, you are right, yes; if you ask me whether he can appoint, the

5 answer is no, he cannot appoint.

6 Q. He can only propose, correct?

7 A. Yes, he can only propose candidates for the presiding judge and

8 the judges of the Constitutional Court. But he can nominate only, or

9 rather --

10 THE INTERPRETER: Interpreter's correction.

11 THE WITNESS: [Interpretation] He cannot nominate just those judges

12 he likes, he feels would be good judges of the Constitutional Court, but

13 those who get a majority in the Assembly. And in order to make sure of

14 that, he has to consult at least the prime minister because it's the

15 cabinet that controls the parliamentary majority. So he has to find out

16 whether the persons he has in mind can gain the support of the majority in

17 the National Assembly. Otherwise, he's being reckless if he doesn't ask

18 the prime minister about that, he risks compromising both himself and the

19 candidate he is nominating to the National Assembly. His proposal will

20 not be passed. As I said, such a situation did occur when under this

21 constitution President Boris Tadic made a proposal to the National

22 Assembly, and one of the candidates he nominated was not passed by the

23 Assembly and did not get the required majority to become a judge of the

24 Constitutional Court.

25 MR. HANNIS:

1 Q. But if I understand correctly, that's a matter of practicality.

2 Is the president required to only propose those that he knows in advance

3 will be approved by a majority? He could nominate others, correct?

4 A. That's correct, yes. He can nominate whoever he likes, those he

5 feels deserve to be nominated. But I told you what risk he would be

6 taking. Theoretically, yes, he has absolute freedom to nominate whoever

7 he likes.

8 Q. But it's not much of a power, is it?

9 A. Well, that's what I have been trying to say. It's not much of a

10 power available to the president of the republic, and even that he cannot

11 do on his own, independently. It's only in theory that he's free to

12 nominate whoever he likes. In practical terms, he's bound by the position

13 of the majority in the National Assembly.

14 JUDGE CHOWHAN: I'm sorry to interrupt here, please forgive me.

15 MR. HANNIS: No problem.

16 JUDGE CHOWHAN: Learned Professor, I just wanted to ask a question

17 for finding a fact. Now, besides the constitution in many countries,

18 there are instruments like the rules of business with which the

19 relationship between the various organs are regulated. And actually these

20 rules of business derive their power from the constitution itself because

21 they are enacted under the constitution. Because -- did you have any such

22 rules of business, because then that would clarify the position what the

23 president could do and what he could not do. Would you be kind enough in

24 informing us about it. I'm grateful for this.

25 THE WITNESS: [Interpretation] Yes, I understand your question.

1 While this constitution was in force, we had the Law on the Election of

2 the President of the Republic. We had a Law on the Constitutional Court,

3 a Law on Proceedings before the Constitutional Court and the legal force

4 of its decisions. We had a Law on the Government, a Law on the State

5 Administration, a Law on Courts. So all these institutions established by

6 the constitution were regulated by laws. There was constitutional

7 legislation to implement the constitution.

8 JUDGE CHOWHAN: And because of these laws, obviously there was no

9 room left for any confusion like a clash of two decrees about which our

10 learned friend from the Prosecution spoke of. Because I think such laws

11 or any rule of business would determine what the president would do and

12 what he would not do in exercise of his powers; and once that is

13 prescribed, there cannot be a clash.

14 THE WITNESS: [Interpretation] The law only regulated the issue of

15 the election of the president of the republic, because in the constitution

16 that is not provided for in every detail. The constitution of 1990 says

17 in Article 87, paragraph 7, that's the last paragraph, that the manner of

18 election and revocation of the president of the republic shall be provided

19 for by law. And as we saw yesterday, and Mr. Hannis also asked me about

20 that, the powers of the president of the republic cannot be provided for

21 by a law. They are only provided for by the constitution. So only what

22 the constitution says can be regulated by legislation, can actually be

23 regulated by legislation. So the powers of the president, the Assembly,

24 the government, and the Constitutional Court cannot be regulated by laws.

25 And there are articles to support everything I've just said now.

1 JUDGE CHOWHAN: Thank you.

2 MR. HANNIS:

3 Q. Thank you, Professor. With regard to the specific hypothetical

4 situation I had asked you about during wartime and a disagreement between

5 the government and the president about what law they wanted to have

6 issued, were there any specific provisions -- you've already said in the

7 constitution there wasn't anything to address that possibility. Were

8 there any specific rules of procedure or laws that dealt with that kind of

9 possibility?

10 A. No, no, there weren't.

11 Q. Thank you. I want to ask you about the state of war. I think you

12 told us previously how that can come about and who can declare a state of

13 war. Who decides when a state of war is ended?

14 A. It is the Federal Assembly that decides when a state of war has

15 ended, according to the constitution then in force. That's the

16 constitution of 1992. Of course, if the National Assembly cannot be

17 convened, it's the federal government.

18 Q. The cabinet?

19 A. Yes, you see that in Article 78, the constitution of 1992,

20 paragraph 3.

21 "The Assembly shall decide on war and peace, declare a state of

22 war, an imminent threat of war, and an state of emergency."

23 And Article 99, paragraph 10, says: "When the Federal Assembly is

24 unable to convene, after hearing the opinion of the president of the

25 republic and the president of the council of the Federal Assembly, the

1 state of war or imminent threat of war" and so on, this is done by the

2 federal cabinet. So once again, it's always the Assembly, and if the

3 Federal Assembly is unable to meet, then it's the federal cabinet.

4 Q. What's the role of the president of the republic in connection

5 with ending a state of war, is he only to consult or advise the cabinet?

6 A. Are you referring to the president of the Federal Republic of

7 Yugoslavia or the president of the Republic of Serbia, the president of

8 the FRY.

9 Q. Of the Federal Republic.

10 A. Yes. The constitution does not give him any powers here except

11 that he is consulted. In Article 96, which lists the powers of the

12 president of the republic, he is not given any such power.

13 Q. Is there any provision in the law for what happens if during a

14 state of war the cabinet is not able to meet, the government's not able to

15 meet, because I think you told us that was a body for some -- for example,

16 in Serbia that was a body of some 30 people. How big a body was the

17 cabinet of the Federal Republic of Yugoslavia?

18 A. In the Federal Republic of Yugoslavia, the cabinet numbered fewer

19 people by far. I think it was smaller by half or more than half. There

20 were about ten ministers, presidents and deputy presidents. So the

21 cabinet of the Federation was much smaller in numbers of members than the

22 cabinet of the Republic of Serbia.

23 Q. And there was no provision in the law that you're aware of to deal

24 with the situation where the federal cabinet might not be able to convene

25 because of the state of war?

1 A. No. It would have had to be mentioned in the constitution,

2 because this is a constitutional issue that cannot be regulated by a law,

3 and as we see there is no such provision in the constitution.

4 Q. Thank you, Professor. We were talking about the situation -- on

5 Monday you were talking about the situation when once the National

6 Assembly was able to meet again during a state of war or after the state

7 of war ended, that the president was duty-bound to present to them those

8 enactments that he had issued during the state of war for them to confirm,

9 correct?

10 A. That's correct, yes.

11 Q. Does the National Assembly have the discretion to decline, to

12 confirm all or some of those decrees, if they disagreed with any of them

13 for some reason?

14 A. Yes, it did have this discretion because this matter falls within

15 its competence. All these decrees were enacted in so-called legislative

16 matters, matters falling within the competence of the National Assembly.

17 And the act of the National Assembly we had before us here in this file

18 shows what the fate was of all the 16 decrees adopted by the president and

19 what the National Assembly decided in relation to each of them.

20 Q. If, hypothetically speaking, the National Assembly decided not to

21 confirm one or more of the decrees that had been issued during the state

22 of war, what would be the consequences of that? First of all, any

23 consequences to the president as a result of the Assembly declining to

24 confirm the decrees he issued?

25 A. I think the first question would be the responsibility of the

1 cabinet. The cabinet had consolidated all of those proposals, the

2 responsibility of the cabinet before the Assembly. I think the delegates

3 could then move to have a vote of confidence for the government. But if

4 they believe the president to have violated the constitution by adopting a

5 decree like that, a one-third minority of the delegates had the right to

6 start an investigation in the Assembly to look into this matter, whether,

7 in fact, the president had violated the constitution or not.

8 This is a political issue. This is not a legal matter. This is

9 something for the delegates to decide. It is for them to judge whether

10 the government made a political mistake or perhaps the president of the

11 republic. And then in the case of the government or the cabinet, they can

12 have a vote of confidence or no confidence if it was the president who was

13 found to be in the violation of the constitution, it's up to the Assembly

14 to judge the matter. Should the Assembly find that the president violated

15 the constitution, then there is a referendum and the people of Serbia, the

16 voters, can have a vote in order to recall the president of the republic.

17 Q. Thank you. And what would be the fact regarding any decrees that

18 had been issued by the president during the state of war, which the

19 National Assembly later declined to confirm, what would be the practical

20 fact of what had been done in connection with those decisions? I take you

21 back to our discussion about General Lukic's promotion and the subsequent

22 finding by the Constitutional Court that that law under which the

23 promotion was given was an unconstitutional extension of the president's

24 powers.

25 A. I'm under the impression that I explained the decision of the

1 Constitutional Court. This is only for future use from the moment the

2 decision is published, from that moment on. That's how it works. As for

3 the National Assembly, the National Assembly can, for example, conclude

4 that a decree adopted during the state of war is no longer in force once

5 the state of war is declared over. If they believe the decree to have

6 been unconstitutional or illegal, they can move the Constitutional Court

7 to establish the legality or constitutionality of such a decree.

8 Q. Thank you, Professor. Now I want to move back to the constitution

9 once more and Article 135. We've talked about the provisions that were in

10 the constitution regarding armed forces of Serbia and matters relating to

11 dealing with foreign affairs and what you've termed, I think, reserve

12 competences that were put in in anticipation of a possible constitutional

13 vacuum occurring in light of the -- what seemed to be possible secession

14 of some of the republics from the Federal Republic of Yugoslavia at the

15 time. And you've agreed with us that that was an unusual provision for a

16 constitution. And at the time the commission wrote that constitution and

17 put in that provision, you - and I mean you all in the commission - you

18 knew that was in violation of the federal constitution and you say so in

19 the article, correct?

20 A. Yes.

21 Q. So you certainly intended for that to be the case. Wasn't that

22 rather unconstitutional of you, Professor?

23 A. It is unconstitutional from the point of view of the federal

24 constitution. But if you go back to Roman law it says, "divisa inter arma

25 silent leges" [sic]. As a time of danger of war, the laws are silent.

1 That's what it means. This was a factual political situation, and what

2 Serbia was supposed to do was to prepare itself in terms of norms, the

3 constitution, and laws for a situation where Yugoslavia as a federation

4 was simply no longer around.

5 In 1990, September in 1990, Serbia adopted its constitution. In

6 1989, Slovenia adopted amendments to its own laws to amend federal laws

7 and the federal constitution. The situation became highly irregular.

8 There was a lot of disruption. The hierarchy, the implicit hierarchy

9 between the various laws was no longer complied with. Croatia started the

10 same process by adopting its own constitution the same year as Serbia.

11 You are entirely right, I must say. That is what the situation is in the

12 eyes of a lawyer, but the facts of life dictated a different course at the

13 time, I'm afraid.

14 Q. I understand. But if Yugoslavia actually did dissolve and Serbia

15 became independent, at that time it would and could have all these powers,

16 all these reserve competencies, and more if it wanted, couldn't it?

17 A. Yes, it could in terms of its laws, in terms of its constitution.

18 Serbia would be prepared to meet the situation head on. That was one of

19 the reasons the constitution was adopted. That was one of the reasons the

20 provisions were phrased the way they were, especially Article 135.

21 Q. Okay. So I guess my question is: If Serbia would be able to, in

22 the event of the actual dissolution of the republic, Serbia would be able

23 to have its own constitution with all these competencies, why was it

24 necessary to put it in the constitution in 1990? Because it was clearly

25 unconstitutional in the sense that it was contrary to the federal

1 constitution. Why was it decided to do it that way?

2 A. Well, the reasons are the same as before. I believe I've

3 explained the reasons already. The reason is to defend Serbia from a

4 possible secession and the future events bore this out. There were

5 republics that wanted to break away from the Yugoslav Federation. In this

6 case, Serbia would have been left without a constitution regulating some

7 vital issues. Who is in charge of the country's defence? Who is in

8 charge of the country's foreign affairs? There would have been a whole

9 number of different areas not regulated by the constitution. This was all

10 a job for the Federation or had been up to that point.

11 And now Serbia had this new constitution regulating these issues

12 for the eventuality that the Federation should one day cease to exist.

13 And indeed in 1992, four of the six original federal units left the

14 Federation and became independent states. The remaining two re-organised

15 themselves as a dual Federation, a two-member Federation. And the rest

16 was what Article 135 said it should be. It was to be expected that Serbia

17 would then bring its constitution in harmony with the 1992 constitution of

18 the Federation. However, Article 135 dictated that the shelf-life in a

19 manner of speaking of the 1990 constitution be extended. It was still in

20 force in 2003 when the constitutional charter was adopted and continued to

21 apply until as late as 2006.

22 Q. How -- how do you think the authorities in Serbia would have

23 reacted if in 1989, Kosovo or Vojvodina had changed their constitutions to

24 have a provision analogous to this?

25 A. Neither were subjects of the Federation. Article 2 of the 1974

1 constitution lists six federal units, not including Kosovo or Vojvodina.

2 Kosovo and Vojvodina were parts of the Republic of Serbia; therefore, they

3 could not secede from the Federation. They could only have tried to

4 secede from the Republic of Serbia.

5 Q. Okay. And you have to be patient with me, Professor, because I'm

6 an outsider and a layman about much of this --

7 JUDGE BONOMY: Are you pursuing this? Because that didn't answer

8 the question you put.

9 MR. HANNIS: I'm not, Your Honour. If you have a question you

10 want to --

11 JUDGE BONOMY: The question, Professor, wasn't about the

12 relationship between Kosovo or Vojvodina and the Federation; it was about

13 the relationship between Kosovo and Vojvodina with Serbia. So if a

14 similar provision relating to the powers of a republic rather than a

15 federation had been included in the Constitution of Kosovo, if they

16 decided to amend their constitution, how would the Republic of Serbia have

17 reacted was the question. Can you address that?

18 THE WITNESS: [Interpretation] Yes, the Constitutional Court of

19 Serbia would have ruled this to be unconstitutional, since it would not

20 have been consistent with the Constitution of the Republic of Serbia,

21 under which the Republic of Serbia should have within its composition two

22 autonomous provinces. The Federation never ruled the Constitution of the

23 Republic of Serbia to be unconstitutional.

24 JUDGE BONOMY: During the period from 1989 until 1999, was there a

25 Constitutional Court in Serbia?

1 THE WITNESS: [Interpretation] Yes, there was one in 1989. It was

2 organised in compliance with the 1974 constitution. As of 1990, it was

3 organised along the lines of the 1990 constitution.

4 JUDGE BONOMY: And it was properly constituted and in working

5 order between 1990 and 1999?

6 THE WITNESS: [Interpretation] Yes, it was. It was throughout,

7 with the exception of the year of 2000. No new members were appointed to

8 the Constitutional Court, and for a brief period, just over a year, the

9 previous judges had retired so the Constitutional Court did not have a

10 sufficient number of members to proceed with its normal activities and

11 that was in 2000. The situation went on for about one year and four or

12 five months; I'm not entirely certain about the exact duration. For

13 example, as we speak, the Constitutional Court --

14 JUDGE BONOMY: That answers the question. Thank you.

15 Mr. Hannis.

16 MR. HANNIS: Thank you, Your Honour.

17 Q. So Article 135 in the insertion of these reserve competences, to

18 me as an outsider it seems that given the circumstances at the time, in

19 some ways this provision could be seen by the Federal Republic or some of

20 the other member republics as, in some way, a threat on the part of

21 Serbia. In essence they're saying, Look, we can have our own army and

22 we're ready to go if this Federation isn't going to hold together. Do you

23 agree with that?

24 A. Serbia did not have an army; there was only a JNA. The JNA was

25 the Army of the Federation, it was in the federal constitution. This was

1 something provided for by the federal constitution, the 1974 constitution.

2 Q. I understand that. Professor, are you aware in 1989 and 1990,

3 what was the ethnic make-up of the JNA? What percentage of the

4 professional members of the JNA were Serbs?

5 A. Regrettably, I'm unable to answer that question. I'm no expert in

6 military matters; I've never claimed to be one. I've never studied these

7 matters. I simply don't know. I think you should look elsewhere to find

8 someone who might be well-placed to answer these questions. I can only

9 speculate, but that is meaningless to the work of this court.

10 Q. I won't ask you to speculate. We will have other witnesses who

11 can probably better answer that. Would you agree that it was a majority,

12 that Serbs constituted a majority of the professional officers?

13 MR. ZECEVIC: Your Honours, we would have to object at this time.

14 This -- I don't see how it is relevant and how this come out of the direct

15 examination of the Professor.

16 JUDGE BONOMY: Well, it doesn't need to come out of the direct

17 examination. It's plainly relevant to the question of how prepared Serbia

18 might have been to trigger these unconstitutional provisions in view of

19 the dissolution of the Federation. And whether more than 50 per cent of

20 the army were Serbs might have been a matter of common knowledge, it's a

21 movement away from the original question. And if the witness feels that

22 he cannot answer because it's not a matter of common knowledge, then he'll

23 tell us.

24 Please deal with the question, Professor.

25 THE WITNESS: [Interpretation] I'm afraid that I'm unable to answer

1 the question. I'm a scientist, a scholar. I base my views on facts, on

2 specific information. I'm simply unable to answer this question. I never

3 dealt in any military matters.

4 JUDGE BONOMY: Thank you.

5 Mr. Hannis.

6 MR. HANNIS:

7 Q. Thank you, Professor. Who was the president of the Republic of

8 Serbia in 1990 when the constitution was being amended?

9 A. The Republic of Serbia had no president in 1990; it had a

10 Presidency. This was a collective body.

11 Q. And was there a president of the Presidency?

12 A. That was Mr. Slobodan Milosevic at the time.

13 Q. Do you recall when you testified in this case -- or in the trial

14 of Slobodan Milosevic about some of these matters?

15 A. I do.

16 Q. And that -- I'm going to take you, Professor, specifically to the

17 20th of January, 2005, you were being asked some questions about [sic]

18 Mr. Nice concerning Article 135 of the constitution, and particularly

19 those reserve competencies including foreign relations and the president

20 commanding the armed forces of Serbia. And Mr. Nice at page 35476 asked

21 you this, and I quote:

22 "You've told us on more than one occasion that you were merely a

23 technician doing your drafting. So will you tell us, please, who

24 instructed you to make provision for Serbia to have under the command of

25 the president armed forces? Who instructed you to make that extraordinary

1 provision?"

2 That's at lines 6 through 10. There was some discussion, there

3 was an intervention by Mr. Milosevic, and eventually, Mr. Nice asked again

4 if he could have an answer. Judge Robinson then at page 35477 said to

5 you, Professor: "Who gave you your drafting instructions, that's the

6 question?"

7 And, sir, your answer was: "I've understood it and the answer is

8 just one word: Nobody."

9 Do you recall being asked that question and giving that answer?

10 A. Yes, I do. I explained yesterday how the constitutional committee

11 worked as a collective body, not just me as the person who drafted the

12 constitution.

13 Q. Yes, and I understand that. But I think we agree that this

14 Article 135 is new and unusual, something that it seems would have stood

15 out in your mind at the time. Do you recall now who first proposed

16 including those provisions and what turned out to be Article 135?

17 A. As far as I can remember - and this was, after all, 17 years

18 ago - this proposal for perfectly understandable reasons, facts of life,

19 economic matters, was put forward by the then-president of the federal

20 Executive Council, Mr. Stanko Radmilovic, but that's based on my

21 recollection. I must underline that. He provided a very compelling

22 explanation. You see, paragraph 2 talks about compensation. This was,

23 above all, motivated by economic factors, economic development. You see

24 what it says:

25 "Should the equal rights enjoyed by the Republic of Serbia be

1 jeopardized in any way or its interests and if no compensation is offered

2 in return and this compensation is a category from the federal

3 constitution, the republican bodies adopt certain enactments in order to

4 protect their own republics."

5 This is a defensive measure, you might say, this provision.

6 Should there be any discrimination, should there be any sort of

7 disintegration within the Federation itself, then these provisions adopted

8 by the Republic of Serbia would take effect, but not before such time.

9 The Republic of Serbia is entitled to adopt enactments in order to protect

10 its interests should this mechanism of solidarity cease to function in

11 terms of compensation. I believe I quoted the article from the 1974

12 constitution which defined the institute of compensation.

13 Q. Okay. Let me ask you a couple questions following on that answer.

14 Tell us, Mr. Stanko Radmilovic, you say he was the then-president of the

15 Federal Executive Council, is that for the Federal Republic --

16 A. No, the republican Executive Council. Did I say "federal"?

17 Q. It came out in the transcript that way. So the Republic of

18 Serbia --

19 A. The republican Executive Council, the Republic of Serbia. My

20 apologies.

21 Q. And with regard to the provision about compensation, I can

22 understand how he might have been one to bring that up, but are you saying

23 he's the one who suggested including the provision about the president and

24 commanding the armed forces of Serbia or having a provision for dealing

25 with foreign affairs?

1 A. No, no, not at all. That wasn't the sort of situation that he

2 bore in mind. All he was talking about was the economy, and then when the

3 committee met, it became clear how this situation was to be regulated in a

4 complex way. Mr. Radmilovic talked about the economy, nothing else.

5 Q. So you say when the committee came together, it became clear, are

6 you talking about the coordinating committee, the smaller body?

7 A. For the most part, it was the coordinating committee that worded

8 most of the provisions. At the plenary of the constitutional committee,

9 amendments were made to the provisions by the verification committee.

10 Q. And in that smaller committee, how did it become clear that you

11 should have this unconstitutional article and include reserve competencies

12 for having armed force and body to deal with foreign affairs? How did

13 that become clear, who raised it?

14 A. Well, it was clear at the time that not only Serbia's economy

15 would be affected, but its defence as well and its foreign affairs. All

16 these were matters not regulated by the then-constitution of Serbia.

17 These were all federal matters. The position taken was that these matters

18 should be resolved as well. For example, the Assembly decides on war and

19 peace. This is not just about the president. This is also about the

20 Assembly, it's about the cabinet.

21 If you remember, a while ago we read out the article saying that

22 the National Assembly shall decide on war and peace. How can the National

23 Assembly decide on war and peace when the federal constitution says

24 explicitly that these are matters for the Federal Assembly, the federal

25 parliament, not the National Assembly. Therefore, this is not just about

1 the institution of the president of the republic. This is about all of

2 the state organs. These reserve competencies attached to each and every

3 one of those, but it was in the interest of the Republic of Serbia, should

4 there be cases of discrimination against it within the Federation or

5 should the Federation start to fall apart or cease to exist altogether.

6 The same conclusion would have been reached by any constitutional

7 committee facing a country in that sort of plight, which was the plight of

8 the Socialist Federal Republic of Yugoslavia at the time.

9 Moves had been made for a secession by the other republics in

10 adopting their new constitutions, and this was much before Serbia started

11 doing anything about it, before the Constitution of the Republic of Serbia

12 was ever adopted. It was not a secessionist constitution, quite the

13 contrary in fact. It declares loyalty to the Federation and it talks

14 about matters that are for the federal constitution to regulate. Should

15 the interests of Serbia be jeopardized with no compensation offered in

16 return, then republican organs would adopt enactments in order to protect

17 the Republic of Serbia, any enactments that might prove necessary.

18 Q. Professor, in that long answer I'm still not clear about if you

19 can help us about who raised the issue of including a president having

20 armed forces of Serbia to command in that new constitution?

21 MR. IVETIC: Your Honour, I think it's been asked and answered.

22 He stated the general's name for who proposed the amendments. I don't

23 know why we're spending so much time going through this.

24 JUDGE BONOMY: Who was that, Mr. Ivetic?

25 MR. IVETIC: The republican secretariat for constitutional issues,

1 Mr. -- I think it was Radinovic.

2 JUDGE BONOMY: Radmilovic, I think, and he was said to be

3 concerned only about the economy. So the question is perfectly legitimate

4 and I repel that objection.

5 Please continue, Mr. Hannis.

6 MR. HANNIS:

7 Q. Yes, Professor, do you recall who raised that issue?

8 A. In connection with the powers of the state organs, not just the

9 president of the Republic, let me repeat, because he is not the only one

10 with such powers, it is also the National Assembly and the cabinet who had

11 such powers. There was no author here. If you mean that this was

12 Slobodan Milosevic, no, he did not interfere in the work of the

13 constitutional commission. The constitutional commission had experts for

14 constitutional matters, and every expert on constitutional matters would

15 have ordered things in this way had his country been in the same situation

16 as the Republic of Serbia was at the time. If he had any professional

17 conscience and any degree of patriotism.

18 JUDGE BONOMY: That still doesn't answer the question. Are you

19 not willing to answer it?

20 THE WITNESS: [Interpretation] I do, I certainly am willing to

21 answer it. But it was not an individual, sir, it was a group, a

22 collective. All of us dealing in these matters made this decision. The

23 verification commission and the constitutional commission had more than

24 ten members, so this was not done by an individual. There were several of

25 us who drafted, formulated, reviewed, went to the commission, the members

1 of the constitutional commission made their own proposals. I cannot

2 answer if I'm expected to say this was done by an individual and his name

3 is so-and-so because that was not the situation, there was no such

4 individual in existence. There were several of us. I partly participated

5 in formulating this, but there was more than one person doing it.

6 JUDGE BONOMY: Can you give us an example of another similar

7 constitution where this sort of defensive measure, as you call it, has

8 been introduced?

9 THE WITNESS: [Interpretation] Well, with reference to the

10 constitutions of the Federation, the federal states, I do not know any

11 federal constitution with such provisions. And as I said, this provision

12 is highly unusual for the constitution of a federal unit, but it expresses

13 an irregular situation.

14 JUDGE BONOMY: Mr. Hannis.

15 MR. HANNIS:

16 Q. Well, Professor, I guess that's why I'm persisting in this area.

17 You indicate this was highly unusual for a constitution and it was an

18 unusual situation and circumstance that you found yourself in at the time.

19 But that's why it seems to me that this would be something more clear in

20 your memory about how this developed because, sir, you were a professor of

21 constitutional law and have been for many years. And it seems to me that

22 in that field, this must have been some of the most exciting work and one

23 of the most exciting times in your career, no, to actually be writing the

24 new constitution and putting in a unique provision like this that was

25 clearly unconstitutional but was created to try and deal with the

1 peculiarities of the time and the circumstance. Professionally, that must

2 have been extremely exciting for you, correct?

3 A. Professionally, yes, it was an exciting time, as you say. But in

4 human terms it was quite understandable, or rather, it's quite

5 understandable that the country should be defended, including being

6 defended by constitutional means. In your country from 1861 to 1865,

7 there was a civil war against secessionists. Here, instead of a civil war

8 with weapons, we were waging war with constitutions, and I think we shed

9 less blood than was shed between 1861 and 1865 in the USA. The situation

10 was the same. You had a war between secessionists and those loyal to the

11 federation, but the war was being waged by constitutional means, not by

12 weapons.

13 Q. Don't misunderstand me, Professor, I mean no disrespect here. I

14 think this was a very creative piece of drafting that you put in this

15 constitution to deal with -- to try to deal with this situation, but it's

16 for that very reason that I find it difficult to accept your answer that

17 you really don't know who raised this up and this happened as a group.

18 This is something that seems to me would have been very memorable for you.

19 And in connection with that, I find it interesting that in your

20 answer a little bit ago that you raised the issue about Mr. Milosevic and

21 he didn't have anything to do with this. I had not asked you a question

22 about that. I had not mentioned him, other than asking who was president

23 of the Presidency at the time. It seems to me that that was a little bit

24 of anticipatory defence on your behalf similar to the anticipatory defence

25 of Article 135. Can you tell me now if you recall who raised the issue of

1 including a provision about armed forces of Serbia?

2 JUDGE BONOMY: Mr. Zecevic.

3 MR. ZECEVIC: I believe, Your Honours, this has been answered like

4 third time now.

5 JUDGE BONOMY: I thought you were more concerned about the

6 argumentative nature of the question.

7 MR. ZECEVIC: Well, that also, Your Honour, but I'm paying

8 attention to the fact that this would be really unacceptable at least for

9 the third time. Your Honour has posed the question, Professor answered;

10 now the question is posed once again. This is at least the third time.

11 JUDGE BONOMY: I hear what you say, Mr. Zecevic, but it does seem

12 an important question. Somebody must have said, Hey, we better deal with

13 the army and position of the -- our foreign affairs. And all Mr. Hannis

14 is trying to find out is who it was that initiated that discussion.

15 Well, let's hear if there's any further recollection on the part

16 of the Professor.

17 Can you assist any further on this matter, Professor?

18 THE WITNESS: [Interpretation] Thank you. I owe you an

19 explanation. I mentioned President Milosevic because you mentioned

20 Mr. Nice. Mr. Nice wanted me to say that it was President Milosevic who

21 issued the orders, and when you mentioned Mr. Nice that was why I

22 mentioned President Milosevic. However, I assert with full responsibility

23 that this was not done by an individual. It was the common opinion of all

24 the experts working in the coordinating body.

25 It's very hard for me to say with reference to any provision here

1 the author of this provision is so-and-so. This is a collective piece of

2 work. It was adopted by the National Assembly. Every deputy in the

3 National Assembly was able to propose an amendment, a modification of

4 this. Constitutions are drawn-up collectively. How do we know in your

5 constitution who wrote each one of those seven articles, it was the

6 participants of the Philadelphia Convention all those who were there, it

7 was not any individual. Now you want me to tell you who the author is,

8 well, the author is the collective.

9 JUDGE CHOWHAN: My learned Professor, when you referred to the

10 American constitution, we have the Federalist Papers which do indicate who

11 wrote what because everybody's been scribbling and writing, and what were

12 the objections made and who opposed and all that, and the difference

13 between the Founding Fathers. Did you have such a notebook?

14 THE WITNESS: [Interpretation] No, we did not have such a document

15 because we didn't have Hamilton, Madison and Jay. Had we had them, we

16 would have written such a document.

17 JUDGE CHOWHAN: Did you write about those who differed like

18 Hamilton, the dissenting notes, or was no record kept of such an important

19 document?

20 THE WITNESS: [Interpretation] Well, probably, yes, probably the

21 stenographic record would contain those. There is a stenographic record.

22 As far as I can recall, it was kept in the case of the constitutional

23 commission. I'm not sure whether in the case of the coordinating

24 commission there were just notes taken or whether there were stenographic

25 notes or records, but there are records I'm sure.

1 JUDGE CHOWHAN: But that record will be the trail to find out who

2 said what and who proposed, and I think that is precisely what is being

3 requested of your good self today. Can you recall of that? That's, I

4 think, the point if there is a record, there's a trail. I'm grateful,

5 learned Professor.

6 JUDGE BONOMY: Time for a break I think, Mr. Hannis.

7 Professor we must, as usual, break at this time. Please go with

8 the usher, and we'll see you again at 11.15.

9 [The witness stands down]

10 --- Recess taken at 10.47 a.m.

11 --- On resuming at 11.16 a.m.

12 JUDGE BONOMY: Mr. Zecevic, can you remind me where we find the

13 list of members of the commission to amend -- to draft the constitution?

14 Is there a document that sets out the list of members?

15 MR. ZECEVIC: No, Your Honours, I don't believe we have presented

16 it. But if Your Honours would want us, I can try to --

17 JUDGE BONOMY: No, no, I just wanted to know the position. Thank

18 you.

19 [The witness takes the stand]

20 JUDGE BONOMY: Professor, I have a couple of questions before we

21 resume the cross-examination. I think you gave us the membership of the

22 commission dealing with the amendment -- dealing with the drafting of the

23 constitution. Now, that was headed, was it, by the president of the

24 Assembly?

25 THE WITNESS: [Interpretation] That's right, that's right. As for

1 the composition of the entire commission, it was published in this same

2 Official Gazette, the Official Gazette of the Republic of Serbia, that is.

3 So the list of the members of the constitutional commission was published;

4 it was no secret.

5 JUDGE BONOMY: Now, we didn't see that document in the course of

6 your evidence, I think. That's -- I just want to be clear about that. We

7 haven't seen the document here, and that may or may not matter. How many

8 other members of the commission were politicians?

9 THE WITNESS: [Interpretation] Well, politicians, I think it was

10 predominantly politicians. At the time when I became a member of the

11 commission, I was engaged as a person who was from the profession. I was

12 not in politics at all at that time.

13 JUDGE BONOMY: There was a smaller group, remind me of the name of

14 that group.

15 THE WITNESS: [Interpretation] That group was called the

16 coordinating commission of the constitutional commission. The

17 coordinating commission.

18 JUDGE BONOMY: Now, how many of the coordinating commission were

19 politicians?

20 THE WITNESS: [Interpretation] On the coordinating commission,

21 except for the late Zoran Sokolovic and Slobodan Vucetic, I think there

22 were no other politicians, actually. All the rest were professionals,

23 people from the profession.

24 JUDGE BONOMY: Remind us of their positions, Sokolovic and

25 Vucetic, what positions did they hold then?

1 THE WITNESS: [Interpretation] Mr. Sokolovic was at that time the

2 president of the Assembly, and Mr. Vucetic was a member of the Presidency

3 of the Republic -- yes, the Republic of Serbia or the Socialist Republic

4 of Serbia -- the Socialist Republic of Serbia, yes.

5 JUDGE BONOMY: I'm asking these questions because to some it might

6 seem that the decision to include these exceptional provisions in the

7 constitution would have to be a political rather than a legal decision.

8 Now, was it not a political decision?

9 THE WITNESS: [Interpretation] Well, you see, I think that the

10 entire constitution by its content is a political decision. First,

11 certain political decisions are crystallised and then lawyers formulate

12 them normatively.

13 JUDGE BONOMY: Let me put the question more specifically. Some

14 might think that the idea of introducing these exceptional provisions if

15 we confine our attention to them into the constitution, would have to be a

16 political decision made in advance of the drafting rather than a

17 spontaneous legal idea that might emerge in the course of the drafting.

18 THE WITNESS: [Interpretation] This decision, I'm quite sure of

19 that, was not made side-stepping the constitutional commission and the

20 coordinating commission of the constitutional commission. It was made

21 there. Now, how was it made? During the course of working on the

22 constitution, it became obvious that in real life such a situation may

23 crop up, and now what would the response in the constitution be for that

24 kind of a situation once it crops up? That is something that was seen

25 spontaneously. It did not come from the outside, like the entire

1 constitution. I told you. I just worked out the systematics of the

2 constitution. I'm trying to say that I made the skeleton as to what the

3 constitution is supposed to look like and what subjects it should include.

4 As for the normative decisions, we all wrote them together.

5 JUDGE BONOMY: Mr. Hannis.

6 MR. HANNIS: Thank you, Your Honour.

7 Q. Professor, let me follow-up on the questions from Judge Bonomy

8 just for a moment. The coordinating commission, which was the smaller

9 body, were all the members of the coordinating commission also named in

10 the Official Gazette that named the entire constitutional commission?

11 A. The entire composition of the constitutional commission was

12 certainly referred to in the Official Gazette. I'm sure of that. I saw

13 that with my very own eyes, because as a member, of course, I got an

14 excerpt from the Official Gazette. As for the coordinating commission,

15 I'm not sure, but I am sure that in the stenographic notes from the

16 sessions of the constitutional commission, I am sure that the coordinating

17 commission's composition is written down there. Maybe it was also made

18 public in the Official Gazette. I cannot claim the latter for sure, but

19 the first, yes, because I saw it with my very own eyes.

20 Q. And do you know where the stenographic notes of the constitutional

21 commission would be today, in terms of being stored in an archive

22 somewhere?

23 A. They are certainly in the Assembly archives. That was not

24 destroyed; that exists. As far as I know when on one occasion an excerpt

25 from stenographic notes was requested, they were in some archives in

1 Zeleznik, that is a neighbourhood on the periphery of Belgrade.

2 Q. Thank you, Professor. And the coordinating committee, I don't

3 recall if you answered this already, who decided the membership of that

4 and made the appointment?

5 A. The decisions were made by the constitutional commission, that is

6 to say from its own ranks it created a very narrow team that would work on

7 the constitution because the constitutional commission had tens of

8 members, and it is difficult to expect a big team to work efficiently.

9 Then it chose members of the verification commission -- I beg your pardon,

10 the coordinating commission. And I repeat, it consisted of people who

11 were professionally trained for that kind of work.

12 Q. Including a couple of politicians?

13 A. Including, yes, a couple of them. But Slobodan Vucetic is a

14 politician but is still professionally versed in these matters, very

15 well-versed. Mr. Sokolovic did not have professional legal training, but

16 he took -- he could take part in proposing solutions. He could not set

17 the style because the man was not a lawyer, but even as far as politicians

18 are concerned, they were not illiterate in such matters they were versed

19 in these matters.

20 Q. Thank you. And in connection with, I think, your last answer to

21 Judge Bonomy's questions at the beginning of this session about whether

22 this might have been a political decision made in advance regarding the

23 insertion of these unusual provisions, Professor, you can't exclude the

24 possibility that, although you claim this came up spontaneously in the

25 coordinating commission, isn't it possible that one of the members of the

1 coordinating commission may have introduced this in the discussions after

2 having been asked to do so by someone outside the coordinating committee?

3 You can't rule that out, can you?

4 A. Believe me, at the time when this provision was being formulated,

5 nobody attached this kind of importance to it. This provision became the

6 centre of attention thanks to this court, to The Hague Tribunal. So the

7 spotlights were cast by the Hague Tribunal on this particular provision.

8 We had no idea that this provision had that kind of value, that it was one

9 of capital importance in the constitution. We had focused on completely

10 different issues, and that is how we spent most of our energy.

11 Such importance is being attached to it here, but we who took part

12 in writing the constitution simply did not attach this kind of importance

13 to that provision. It was simply a response to a situation that existed

14 in real life, not right from the point of view of norm, not right from the

15 point of view of the nature of the Federation, but it was indispensable,

16 it was inevitable. It was done by the other socialist republics, too, not

17 all in all fairness but it started with the Republic of Slovenia. And

18 quite simply, why would Serbia die in the beauty of the law or should the

19 world go down the drain so that justice would prevail? Advantage was

20 given to other values.

21 Q. If we were able to get the gazette list of the members of the

22 entire constitutional commission, would you be able to identify from that

23 list which of those members of the overall commission were also members of

24 the coordinating commission?

25 A. I think so. I don't think I could get it quite right, but with

1 the assistance of Mr. Slobodan Vucetic, I would certainly be able to

2 establish who the members of the coordinating commission were.

3 Q. Thank you.

4 A. I beg your pardon. Actually, I remember some of the names, but

5 I'm not sure that I will give you most of the names.

6 Q. Can you give me the ones that you remember now for sure?

7 A. I'm sure that I remember that the secretary for legislation was

8 there, Mr. Negovan Kljajic; then the -- I think he was then deputy

9 secretary of the Assembly, Mr. Perisa Jovanovic; Mr. Vladan Kutlesic; and

10 the three I mentioned, Mr. Zoran Sokolovic; Slobodan Vucetic; and I.

11 There were certainly others, too, but I know the faces but I can't

12 remember the names.

13 Q. I'm familiar with that experience, Professor. The names you just

14 gave us, Mr. Kljajic, Mr. Jovanovic, Mr. Kutlesic, by your description of

15 a couple of them, it seems that they were politicians as well. I thought

16 I understood from your earlier answer that there were only two politicians

17 on the coordinating committee.

18 A. No, they were not politicians. Negovan Kljajic was a professional

19 for legislation. He was in the republic secretariat for legislation. He

20 was a civil servant, not a politician. Perisa Jovanovic, too, he also

21 came from the Assembly administration. Also Mr. Kutlesic, he was in the

22 secretariat for legislation, the federal secretariat, but they were civil

23 servants, high-ranking civil servants, not politicians.

24 Q. Thank you for explaining that to me. Let me move on now to

25 another topic. You mentioned on Monday at page 12938 that: "As a rule,

1 the federal constitution takes precedence over the republican

2 constitution." And I understand that as a general principle, but does

3 that appear anywhere in the constitution or the laws of Yugoslavia or is

4 that just a general legal principle?

5 A. It is written down in the constitution of the Federal Republic of

6 Yugoslavia, in Article 115 in three paragraphs.

7 Q. Okay. Thank you. Regarding Article 85 of the Constitution of the

8 Republic of Serbia from 1990, I think that's the provision that deals with

9 the power of the president to request the government to state its position

10 regarding certain issues within its own jurisdiction. Can you tell us how

11 that works. Does the president have to make some sort of formal written

12 request? Is that something he can just do orally? And tell us first how

13 that works.

14 A. It doesn't really have to do with the constitution position. I

15 don't know what word you used in English and I don't know what came

16 through in the interpretation, but it really has to do with one's

17 standpoint, one's position from that point of view, from his own field of

18 work, from his own jurisdiction. The president of the republic asks the

19 government to take views on matters from the purview of their own work,

20 and they do that. Then this request is made in written form and a

21 response is sent in writing as well. In the Law on the Government it is

22 regulated in terms of time. A minimum deadline is given of 48 hours to

23 the government for it to prepare that particular position. This position

24 is prepared by the ministry concerned depending on the actual field of

25 work from which the president requested the view of the government.

1 This institute was used most often in the period of so-called

2 cohabitation when the government majority came from one political party or

3 one group of political parties and the president of the republic from a

4 different political party, which was not within the parliamentary

5 majority. This institute was used most of all by the current president,

6 Mr. Boris Tadic. He most often asked the government to take views, to

7 take a position, and in this way, he was trying to expedite government

8 decisions. It was done -- I'm sorry, I misspoke. In this way, the public

9 was informed that the president asked the government to take positions on

10 currently topical issues from everyday life, say infectious diseases,

11 droughts and so on and so forth. What does the government intend to do,

12 what is the position of the government concerning such and such a matter.

13 I don't remember that this article at the time when the president

14 of the republic was from the same party and when this party has

15 parliamentary majority as well, I don't remember whether this was used at

16 that time, I don't know. But it seems to me that even if it was used, it

17 must have been very seldom.

18 Q. In your testimony at page 12957, I understood you to say that this

19 was something quite important for the president's work. Can you explain

20 why you take that view, that this power was important?

21 A. It was important for the president who has such limited powers

22 according to Article 83 of the constitution that he is nevertheless in a

23 position to communicate with the public. That when you look at the needs

24 of the day, what the public is interested in, in this way he spurs the

25 government to act. He is not only seeking information, mere information,

1 although the whole thing is manifested as information. In this way,

2 before the public he is bringing pressure to bear on the government, not

3 sanctioned pressure, but anyway he is trying to get the government to act

4 on burning issues.

5 I cannot remember now exactly the issues that President Tadic

6 asked the government to take a position on so that the government could

7 defend themselves from such requests. This was more -- this was regulated

8 in more detail in the new Law on the Government, which was adopted in

9 2005. However, since that's not the issue here, I really did not prepare

10 for that. I did not bring that law along.

11 Q. It seems to me in the context of the powers that the president is

12 given under the constitution that this really is one of his best tools,

13 isn't it?

14 A. Well, I could not agree with you and I'll tell you why. If he is

15 not satisfied with the position taken by the government, the president of

16 the republic, except for his personal dissatisfaction, does not have

17 anything else at his disposal. He cannot ask the Assembly to recall the

18 said minister or the prime minister. Quite simply, as I said, he can be

19 dissatisfied with that. But he does not have any constitutional

20 instruments available.

21 He cannot censure the government or the minister concerned because

22 of their positions. They have the freedom to take any position and the

23 president of the republic can only get upset, nothing else. He doesn't

24 have anything else in his hands.

25 Q. I understand that. He cannot formally censure the government or

1 demand that a minister be removed from his position, I understand

2 constitutionally, he can't do that formally. He's a popularly elected

3 president chosen by the people, correct?

4 A. Correct, correct. Well, the main value of that institution is

5 precisely this high democratic legitimacy; that is to say, this symbolic

6 meaning that is incorporated in this institution, not the strength of the

7 powers that he has. The president of the republic is an authority by

8 virtue of the fact that he has such great democratic legitimacy. He was

9 elected by all the citizens. However, according to the constitution he is

10 not a big power holder.

11 Q. But in real life would you agree with me that a popular president

12 mobilising the media and relying on his popularity that helped put him in

13 office, on certain issues may be able to effectively bring out some

14 changes in government policy simply by creating a fuss, asking the

15 ministry to state their positions on certain difficult controversial

16 matters, he may be able to actually effect some changes even though he

17 doesn't have constitutional authority.

18 A. That's right, you're quite right, but what is the underlying

19 assumption? The underlying assumption is that he is the leader of a major

20 political party. It is only a president who is the leader of a major

21 political party, and if that party has a parliamentary majority at that or

22 is the main factor in the governing coalition in the parliamentary

23 majority, that is, and if the president in addition to that as a person

24 has great charisma, well then that is possible. It is only then that it

25 is possible. Otherwise, a president who is not the leader of a political

1 party is handicapped. He doesn't have the same kind of political power

2 that is extra-constitutional power at that. He doesn't have the same kind

3 of power that the -- that a president who is the leader of a political

4 party has.

5 JUDGE BONOMY: I take it in Serbia is there can be circumstances

6 where in the course of its period in power a government becomes unpopular?

7 THE WITNESS: [Interpretation] That's correct, yes, of course.

8 JUDGE BONOMY: Are your answers not based on the assumption that

9 the government is always popular?

10 THE WITNESS: [Interpretation] No. A government can be highly

11 unpopular, but it is certain of its existence for as long as it has a

12 stable parliamentary majority. So it's a moral issue. A government, as

13 long as it has a majority in the parliament, is in power. It will have to

14 give an account of itself at the next elections and it can be sanctioned

15 at the next elections when the opposition will win and take over. But it

16 can operate even if it's highly unpopular, especially in our part of the

17 world where people always criticise the government and think the

18 government is always to blame for all misfortunes.

19 MR. HANNIS:

20 Q. Thank you. All right, Professor, let me move on to Tuesday of

21 this week, and early Tuesday we were talking about the oath that the

22 president takes under the constitution. And I think you described it as a

23 constitutional mechanism to implement the responsibility of the president

24 to the citizens, is that correct, or were you referring to something else

25 other than the oath?

1 A. Well, my main point, my fundamental thesis which I've always held

2 is that an oath is not a constitutional norm. This is also evident from

3 the fact that it is placed in quotation marks. So this is a text that

4 somebody else pronounces, not the constitution itself, that's one point.

5 Another point is that an oath has a moral value. It has to do with

6 credibility. Will the president of the republic be credible or not.

7 The oath contains some values which are essential for any state,

8 such as territorial integrity, sovereignty, of the state; protection of

9 human and civil rights; defence of the constitution; maintaining peace,

10 the welfare of citizens. But it's not the president of the republic who

11 can in reality defend the sovereignty and territorial integrity of a

12 country; this will be done by the armed forces. He is not the one who can

13 protect human and civil rights. That's for the courts and the

14 Constitutional Court to do. Also, the law will be defended by the courts

15 and by the Constitutional Court. Welfare and prosperity will depend on

16 the economy, also extra-economic activities.

17 So if one looks at all the things that the president of the

18 republic is taking an oath to protect, we can see that these are values in

19 any state. But he cannot be held responsible for failure to achieve these

20 values because he is not the one who can bring them about. He is only

21 expressing his loyalty to those values, stating that he shares those

22 values with most citizens. That was why I felt that the legal

23 responsibility of the president of the republic cannot be based on failure

24 to respect the oath. He can only have a moral and political

25 responsibility based on failure to respect the oath. That's my position.

1 I hope I've been successful in clarifying it.

2 Q. Well, let me see. For example, what we were talking about

3 earlier, the president's right to request the government to state its

4 positions. In a situation where the popularly elected president is at

5 odds with the government and perhaps an unpopular government over some

6 particular issue, could the president sort of invoke his oath when making

7 inquiries from the government and to the public say that, I am trying to

8 uphold my constitutional oath to devote every effort to preserving the

9 peace and the welfare of all citizens by asking the government to set

10 forth its positions on, for example, the allegations of the international

11 community about the VJ and the MUP using indiscriminate force in Kosovo?

12 A. I don't know how he can ask for that position from the government

13 when command of the armed forces is not within the competence of the

14 government. You see, he can ask for the position of the government only

15 on those issues which fall within the competence of the government, as

16 listed in Article 99. It is only --

17 Q. I take your point, Professor. What about --

18 A. Sorry, Article 90, I mistook the article. Article 90, that's

19 where the competencies of the government are enumerated.

20 Q. I take your point. If I were to modify my question and omit the

21 VJ and only talk the Ministry of the Interior of Serbia, what would your

22 answer be?

23 A. The president can ask the government to set out its standpoints,

24 but let me repeat, he has no instruments at his disposal to make the

25 government change its standpoints. All he can do, if it would affect

1 public opinion, is to resign. That's all he can do.

2 Q. How often can he request the government to state its positions? I

3 mean, for example, the hypothetical I gave you, could he renew his request

4 for the government's position on allegations about indiscriminate use of

5 force or disproportionate use of force by the Ministry of Interior of

6 Serbia against Kosovo Albanian civilians every time that there was a new

7 report of such things from an international organisation or some such

8 source? Could he renew the request once a day? Once a week?

9 A. There's practically no limit. He can make that request of the

10 government whenever he wants to, whenever he thinks it's useful

11 politically.

12 Q. Thank you, Professor. Let's talk for a minute about the

13 relationship between the president and the National Assembly. I think you

14 spoke about Article 89 which, if I'm correct, deals with the president's

15 power to decide that the National Assembly be dissolved at the proposal of

16 the government or the cabinet. And as I understand it, the proposal has

17 to come first from the government before the president can take any such

18 action, correct?

19 A. That's correct, yes. You understood this correctly.

20 Q. And the government proposal you said has to be reasoned. They

21 can't just merely request it because they don't like the National

22 Assembly?

23 A. Yes. The proposal has to be reasoned, and the reasons have to be

24 very convincing because all this is available to the public.

25 Q. And you did mention that, that the reasons had to be convincing.

1 My question is: Convincing to whom? Convincing to the president?

2 Convincing to the public? Both?

3 A. The reasons had to be convincing both to the president and to the

4 public, because this is a very strong political move for the National

5 Assembly, which is the parliament, the expression of the national will, to

6 be dissolved. And the citizens have to be convinced that the reasons why

7 the president of the republic has done this at the proposal of the

8 government are truly justified. Because it was their will that the

9 Assembly should be of such and such a composition, that the political

10 forces should be distributed in such and such a manner. If somebody

11 disbands the Assembly, then the reasons have to be very strong. And so

12 far in situations where the Assembly has been disbanded, the reasons

13 provided were very thorough. We mentioned an instance of that sort

14 yesterday.

15 Q. And when you say the reasons for doing it have to be strong or

16 truly justified, do you mean that as a practical matter because of the

17 consequences that would flow if it were perceived that the disbanding was

18 not justified?

19 A. The government decides to take such a step and to dissolve the

20 Assembly. As a rule, the public is convinced because, of course, the term

21 of office of the government also ceases when the Assembly is disbanded.

22 So the public is convinced that both the government and the Assembly have

23 lost their legitimacy, and these moves were approved by public opinion.

24 Q. If the government decides to make a proposal to the president that

25 the Assembly be dissolved, does the president have any discretion or must

1 he pronounce the Assembly dissolved?

2 A. He does have a discretionary right. He decides whether or not to

3 dissolve the Assembly upon a reasoned proposal of the government. If he

4 had to do it, then he would not be needed. The Assembly would be

5 disbanded by the very fact that the government wished it to be disbanded.

6 And in many systems, and also the system in the Federation in 1992, it was

7 the government and not the president who dissolved the Assembly.

8 Q. And what would happen in the situation if the president decided he

9 wasn't satisfied with the reasons or for no reason at all he did not want

10 to disband the Assembly. The Assembly continues and the government loses

11 face, what happens?

12 A. The Assembly continues, that much is clear, it is not disbanded.

13 And the government, as you put it, loses face because its public image is

14 now sullied because the president of the republic has failed to accept its

15 proposal.

16 Q. Thank you. Let me turn to the constitutional provision that

17 allows for the president to -- I think this is Article 132, the president

18 can propose the constitution be amended. And as I understand it, he can

19 do that on his own initiative, correct?

20 A. Yes, your understanding is correct, on his own initiative.

21 Q. And the other ways of having a proposal to amend the constitution

22 are the cabinet can do it, correct, and in your case that was a group of

23 maybe 30 people?

24 A. Yes, the cabinet can do it, too.

25 Q. Or at least 50 deputies from the National Assembly?

1 A. That's right, or at least 100.000 voters.

2 Q. So in that relative scheme of things, the president is pretty

3 important, because he's only one person and he can do the same thing that

4 it takes 100.000 voters to do or 50 deputies or the entire cabinet?

5 A. That's right. As I said, the same type of solution is found in

6 France's 1958 constitution.

7 Q. Connecting this ability with his ability to request the government

8 to state its positions on issues, those two things give him some

9 opportunity to stir-up public opinion and perhaps bring about changes that

10 otherwise he doesn't have the constitutional direct power to do, correct?

11 A. I'm not sure I understand fully what changes you are talking

12 about. Amendments to the constitution, is that what you have in mind?

13 Q. Well, I guess I mean if the president has a position about some

14 policy of the government cabinet or some laws issued by the National

15 Assembly that he's not pleased with, he doesn't have any constitutional

16 power to veto the law or remove the cabinet minister. But by mobilising

17 popular opinion because he is the popularly elected president, by

18 generating a lot of public debate through his ability to ask the

19 government to state its positions and through his ability to even suggest

20 an amendment to the constitution, that may bring pressures to bear on the

21 cabinet and/or the National Assembly that could lead them to make certain

22 concessions or acquiesce to a known position of the president just in

23 order to reduce that popular outcry. Could you agree?

24 A. Well, this is outside the constitution. This is external to the

25 constitution. Can he mobilise the public opinion in favour of his

1 opinion, would this public opinion be strong enough to influence the

2 cabinet and the Assembly? All these are factual questions. There is

3 nothing that law has to say about this. This all depends on one's

4 personal charisma, personal magnetism, if you like. This depends on the

5 president as a person. Is he capable of turning the public opinion around

6 and getting it to oppose the National Assembly and the government? That

7 is the question that we are facing here.

8 I continue to believe that any president who is also the leader of

9 a political party faces much better odds in communicating with the public

10 rather than a president who does not happen to be also a party leader.

11 Q. Okay. Thank you. President -- Professor, I think there was one

12 typographical error in the transcript on Tuesday. At page 12977, line 14,

13 I don't remember what the subject was but you were talking about the

14 Federal Assembly was entrusted with electing the federal republic, and I

15 think in that context it was the Federal Assembly was entrusted with

16 electing the federal president. Is that correct? This would regard the

17 1992 Constitution for the Federal Republic of Yugoslavia.

18 A. Yes, you're right. In the Federation, it is the Federal Assembly

19 that elects the president of the Federal Republic of Yugoslavia, not the

20 citizens directly and I explained why that was the case. There is a huge

21 disproportion between the number of voters in Serbia and the number of

22 voters in Montenegro. In the Federal Assembly, the so-called upper

23 chamber, the federal chamber, because we are talking about the republic

24 that is bigger than the other one, and this is used to establish an equal

25 footing for everyone. Both members are represented by the same number of

1 delegates, 20 each. It is impossible for a president of the republic to

2 be elected without both republics being in agreement on the appointment.

3 Q. Thank you, that clears up a question I had. One of the other

4 rights that the president had under the constitution was the right of

5 suspension veto. And as I understand, if the National Assembly passes a

6 law, the president can suspend it -- he can suspend it for seven days, is

7 that correct? Does he have seven days after it's announced in which to

8 say he does not want to issue it? How does that time-limit work?

9 A. Firstly, no law can be announced without the president of the

10 republic having previously pronounced it. It is the president that

11 promulgates a law. The seven-day deadline is taken to begin on the day a

12 law is adopted by the National Assembly. That is when the deadline begins

13 to run. It is within this period that the president of the republic can

14 send the law back to the National Assembly to have another vote. This is

15 also the mildest form of suspensive veto in comparative constitutional

16 law. A government's legislative policy is not hereby blocked since it's

17 the government that makes proposals for laws, on laws to the National

18 Assembly, this simply suspends the legislative procedure for a short time.

19 Q. What vote does the National Assembly have to repass the law by, is

20 it the same majority as normal or is there an extra requirement if the

21 president has sent the law back?

22 A. It is necessary to have the same majority, the same majority that

23 is normally used in terms of decision-making in the Assembly. This is not

24 a question of qualified majority. Article 80 reads: "The National

25 Assembly decides by a majority of votes at a meeting attended by the

1 majority of the national delegates unless the constitution stipulates a

2 special majority to be used."

3 Given the article that you mentioned, and I believe that was

4 Article 84, there is no talk of a special majority there which means the

5 normal majority is what it takes at a meeting attended by the majority of

6 the total number of national delegates. Therefore, the same sort of

7 majority that previously adopted the now-vetoed law in the National

8 Assembly.

9 Q. Would you agree with me, Professor, that in real life the

10 suspension of a law taking effect for seven days could under certain

11 circumstances have a significant effect or impact. For example, if, going

12 back historically, on March the 20th, 1999, the National Assembly had

13 passed a particular law and President Milutinovic had exercised his power

14 here to send it back, by the 23rd of March, before seven days are up, the

15 state of war has been declared then the National Assembly is not meeting.

16 What happens to that law then, it's not a law because it was passed but it

17 was then sent back by the president and the National Assembly didn't have

18 a chance to vote on it afterwards?

19 JUDGE BONOMY: Mr. Zecevic.

20 MR. ZECEVIC: We were really patient, but this is calling for

21 speculation, Your Honour. This is the third or fourth question along

22 these lines. What would have happened if this has happened.

23 JUDGE BONOMY: Well, theories are always important when one is

24 dealing with expert evidence, and this seems to me to be a different

25 question from any that have been asked so far.

1 [Trial Chamber confers]

2 JUDGE BONOMY: So we're all agreed that the question is

3 permissible and we shall repel the objection.

4 MR. HANNIS:

5 Q. Professor --

6 JUDGE BONOMY: Please answer the question now, Professor, and tell

7 us what would have happened to a law sent back on the 20th of March once

8 the National Assembly was unable to meet.

9 A. First of all, as far as I know, President Milutinovic - and I'm

10 quite certain - never used suspensive veto throughout his time in office

11 he never once used this power under Article 84. Hypothetically speaking

12 what would have happened, well you know that in the system of your own

13 country there is such a thing as a pocket veto, a special institute. The

14 president of the republic puts the law in his own pocket to all practical

15 intents and then what one has to do is wait for the next session of the

16 parliament.

17 JUDGE BONOMY: I think you used the expression "pocket veto" there

18 and it's been omitted from the transcript. Please continue. Is there

19 anything else you want to say on that?

20 THE WITNESS: [Interpretation] No, if that happens there is no

21 Assembly. One waits for the Assembly to convene, and the same type of

22 situation is found in the law of his country where the president puts the

23 law into his own pocket.

24 JUDGE BONOMY: Mr. Hannis.

25 MR. HANNIS:

1 Q. Thank you, Professor. One other presidential power that I -- I

2 was still a bit confused about was the power to confer decorations and

3 awards under Article 83, I think that's item number 10 in the list of 12.

4 And we had the discussion about the Law on Ranks, I guess, and General

5 Lukic's promotion. Under that constitution and after that constitutional

6 decision that -- the Constitutional Court's decision, did the president of

7 Serbia still have any power to confer decorations and awards?

8 A. First of all, a correction. A rank is no decoration. A rank is

9 no award. Decoration is something different altogether. For the

10 president to be able to exercise this particular power, it is necessary

11 for a law to provide for the types of decorations and awards that exist in

12 the Republic of Serbia. Since this law was never passed, all that was

13 left was the normative possibility which never materialised. Even the

14 now-President of the republic Boris Tadic is still unable to award

15 decorations and grant awards because this law has not been passed yet.

16 There is the law in the Federation which was later taken over by

17 the state union of Serbia and Montenegro, based on which the

18 then-president and then the future president of the state union between

19 Serbia and Crna Gora; for example, Mr. Svetozar Marovic awarded

20 decorations but Mr. Tadic stated explicitly that he did not wish to award

21 any medals or decorations based on a law that had been adopted for the

22 Federation. He said he wouldn't do this before a law was passed by the

23 Republic of Serbia to cover this matter.

24 Likewise, Mr. Milutinovic could not have awarded any decorations

25 or awards; only the federal president could have done something like that.

1 For example, President Milosevic during his term in office did, indeed,

2 award decorations and awards, but he did that in his capacity as the

3 president of the Federal Republic of Yugoslavia. In his capacity as the

4 president of the Republic of Serbia, he never awarded a single decoration

5 or medal simply because there was no foundation for anything like that in

6 the law as it was.

7 Q. Okay. So in Serbia between 1992 and 2000, even though there was

8 this constitutional provision as a practical matter, there wasn't any law

9 to implement it; so President Milutinovic, for example, couldn't decorate

10 or issue awards to anybody, even though he had the power but there wasn't

11 any implementing law in place. Is that a fair statement?

12 A. That's right. You are quite right.

13 Q. But for purposes of trying to assess, analyse, the constitution

14 and decide whether or not it provides for a strong president or a weak

15 president or something in between, let me ask you this hypothetical

16 because I think on page 12990 you were talking about the president not

17 having any special powers over state administration. If there had been a

18 law in place under which President Milutinovic could issue decorations and

19 awards, isn't that something that a president could use that could have an

20 impact on how things were done in the country. If, for example, he

21 showered awards and decorations on a particular ministry or a particular

22 state institution, that could engender some rivalry within those agencies

23 in the state. Couldn't that have a real-life effect?

24 JUDGE BONOMY: Mr. Zecevic.

25 MR. ZECEVIC: I don't know, Your Honours, the objection is the

1 same. If a law had been in place, would have this happen or that happen,

2 it clearly calls for speculation.

3 JUDGE BONOMY: I understand the reason why you object here, but

4 bear in mind the beginning of this question which is to put it in the

5 context of analysing the overall effect of these provisions in relation to

6 the status and power of the president. So taking account of that, we'll

7 allow the question. We're perfectly capable of deciding in due course

8 whether the answer is of value or of no value.

9 MR. ZECEVIC: I understand, Your Honours.

10 JUDGE BONOMY: Thank you.

11 Mr. Hannis.

12 MR. HANNIS:

13 Q. Thank you --

14 JUDGE BONOMY: Rather, Professor, can you deal with that question?

15 THE WITNESS: [Interpretation] Based on what I know about the law

16 on decorations and awards, a proposal must always come from an authorised

17 proposer, so to speak, the Serbian Academy of Sciences, one of the

18 universities, institutions of that sort of stature. It is not for the

19 president of his own accord to award certain decorations. There is a

20 procedure in place and the same applies to pardons. There is a specific

21 procedure in place for both.

22 You talk about showering someone with decorations. In that case,

23 the president would compromise his own reputation as well as the very

24 institute of awarding decorations and medals, it would constitute a clear

25 misuse. There has to be an opinion that prevails in terms of the person

1 in question being someone generally believed to merit decoration. For

2 example, President Svetozar Marovic decorated the patriarch of the Serbian

3 Orthodox church, Pavle, the patriarch Pavle. These are public figures who

4 certainly merit some form of recognition. It isn't as if the president

5 were in a position to shower with favours or decorations people that he

6 simply likes. Maybe that would constitute a violation of the constitution

7 because the very spirit of the constitution would, in this case, be

8 betrayed or violated.

9 MR. HANNIS:

10 Q. Thank you, Professor. I understand the sense of the notion that

11 there should be some -- some protocol and some standards with regard to

12 issuing awards or decorations, but at the time there wasn't any

13 implementing law, correct? So I'm not sure what you talk about in your

14 answer --

15 A. That's right.

16 Q. Okay. Well, let's move on to the power of the National Assembly

17 and the president to ask for reports from the Ministry of Interior. Do

18 you recall that discussion on Tuesday, I think that was at transcript page

19 12991? Do you recall that article I think? I don't have the tab cite for

20 it, but I think it relates to the Law on the Interior or the Ministry of

21 the Interior?

22 A. That's right. As far as I remember, because by now the tape

23 prevails, I think this is Article 9 on the Law on the Ministry of Internal

24 Affairs.

25 MR. ZECEVIC: It's tab 46.

1 JUDGE BONOMY: Thank you, Mr. Zecevic.

2 MR. IVETIC: Can I please have the exhibit number again, we do not

3 have tabs so the tab numbers do us no good.

4 MR. ZECEVIC: P1737.

5 MR. HANNIS: Thank you, Mr. Zecevic.

6 Q. Thank you, Professor. Did -- do you read that to mean that both

7 the president and the National Assembly have to request the report? It

8 has to be a joint request. I think that was what you testified to. Is

9 that correct?

10 A. This would be the conclusion suggested by a linguistic

11 interpretation. Otherwise, it would have been an alternative to the

12 request made by the National Assembly or the president of the republic,

13 and then it is the minister's responsibility and so on and so forth. But

14 here it says: "At the request of the National Assembly and the president

15 of the republic," so this is cumulative, it's a joint request by both the

16 National Assembly and the president of the republic. The particle "and"

17 suggests that there have to be requests by both parties. Were it just one

18 of the parties making the request, it would be worded in the following

19 way: "The National Assembly or the president of the republic."

20 Q. So the Ministry of Interior under that reading would be justified

21 in refusing a request from just the president alone, correct?

22 A. If you want my personal view, I think this article is

23 unconstitutional, but this wasn't confirmed by the Constitutional Court.

24 I don't think it should be part of this law. However, it found its way

25 into the law and no one ever brought up the issue of its

1 constitutionality. Excuse me, I am getting increasingly tired, so I

2 forget what exactly your question was about.

3 Q. Okay. My question was: Could the ministry refuse to provide a

4 report if it was only the president asking for it and the National

5 Assembly didn't join in the request?

6 A. Well, there is no request then, is there? At least that's what

7 the particular wording seems to suggest. A request can only come about if

8 made by both of these players: The National Assembly and the president of

9 the republic, jointly.

10 Q. And in your earlier answer you said that in your personal view you

11 think this law is unconstitutional. What about it do you find to be

12 unconstitutional?

13 A. I didn't mean the law in its entirety. I meant this article. The

14 unconstitutional element is precisely what we addressed when you asked me

15 at the very outset about the nature of the powers of the president of the

16 republic, the powers of the president of the republic are a constitutional

17 category. It is not possible to amplify these by law. What we see here

18 is that the president of the republic is granted by law a power not

19 granted to him by the constitution. More importantly, the National

20 Assembly is granted a power not granted by the constitution. By this

21 token, the constitutional provision is violated which specifies that the

22 president covers other areas, too, but only those provided for in the

23 constitution and nothing beyond that.

24 You see, turning to the National Assembly, Article 73. Article

25 73, the last item, item 13, the same sort of wording as we find in the

1 portion related to the president of the republic carries out other tasks

2 in keeping with the constitution, which means that even the Assembly must

3 not be granted powers by law alone. This is a law granting a certain

4 power to the Assembly, but it is the Assembly that creates the law, that

5 produces the law, and that is the reason this law no longer applies. No

6 need to point that out, I suppose, but it's unconstitutional because it's

7 not in keeping with Article 73 or 83. It grants both the Assembly and the

8 president of the republic powers not granted them by the constitution.

9 The constitution is clear. Both the Assembly and the president of the

10 republic have only those powers granted them by the constitution. I'm not

11 sure if this article can actually be applied in practice.

12 JUDGE BONOMY: Yes, Mr. Zecevic.

13 MR. ZECEVIC: Just the transcript, Your Honour. Page 68, line 3

14 or 4, it says with Article 73 or 83. The Professor said 73, 13.

15 JUDGE BONOMY: 73, 13, thank you.

16 Professor, in relation to the second part of that answer that the

17 article would be unconstitutional in relation to giving power to the

18 National Assembly to seek a report from the minister, is it not their

19 right as the body responsible for the appointment of the minister in the

20 first place to call for reports? Is that not what parliamentary democracy

21 is all about? And I'm separating that from your point in relation to the

22 president.

23 THE WITNESS: [Interpretation] This is the very essence of

24 parliamentary democracy, and it also follows from the constitution.

25 However, any type of control power in relation to the ministries is

1 something that the cabinet enjoys. They can't request reports from the

2 ministries. They can validate or annul certain documents produced by the

3 ministries. The National Assembly can institute a vote of confidence on a

4 specific minister or the cabinet as a whole. The minister can be

5 recalled, or rather, the revocation of a certain minister can be proposed

6 to the Assembly by the cabinet itself.

7 JUDGE BONOMY: Let me stop you there. The Law on Internal Affairs

8 must have been proposed by the cabinet to the National Assembly?

9 THE WITNESS: [Interpretation] Yes.

10 JUDGE BONOMY: And surely, therefore, that is the cabinet ceding

11 to the National Assembly authority to go directly to that ministry? I

12 find it difficult to see what's unconstitutional about that.

13 THE WITNESS: [Interpretation] The unconstitutional thing is the

14 National Assembly as a constitutional category. No law should deal with

15 the National Assembly or grant it powers for that matter. This power of

16 the National Assembly is embodied in Article 73 of the constitution,

17 paragraph 11. It talks about the control that the Assembly exercises over

18 the work of the government and other officials responsible for their work

19 to the National Assembly in keeping with the law and the constitution. It

20 is not fair, if I may put it that way in purely legal terms for the law to

21 repeat something that is already stated in the constitution, because the

22 dignity of the norm itself is violated.

23 JUDGE BONOMY: But surely Article 73, 11 would give the National

24 Assembly power to seek a report from the government about the work of the

25 ministry?

1 THE WITNESS: [Interpretation] Absolutely, but this is not what it

2 says in terms of language --

3 JUDGE BONOMY: Just bear with me. If that's the case, if the

4 National Assembly are entitled to ask the government to report and all

5 these laws are made at the suggestion of the government, is it not

6 perfectly within their power to say, Well, when you do that in relation to

7 the Ministry of the Interior, you can do it directly? And if I could just

8 take it a little further, if that's right then to add the president to

9 that situation would be in a sense restricting the National Assembly's

10 freedom to seek such a report, and therefore might be seen as a way in

11 general of the government saying in relation to Ministry of Interior, this

12 is how you can go about it seeking information from us.

13 THE WITNESS: [Interpretation] I absolutely agree with you, but all

14 of that means that the constitution should be there. And it's not right

15 from a legal standpoint that what the constitution says is repeated in the

16 law, especially in such a modified manner. All of that is stated in the

17 constitution in Article 73, item 11, and now it was modified by the law

18 asking that there be a simultaneous request and a mutual request by the

19 National Assembly and the president of the republic. From that point of

20 view, the constitution was modified.

21 JUDGE BONOMY: Mr. Hannis.

22 MR. HANNIS: Thank you.

23 Q. Professor, I want to follow on the other side of that. Judge

24 Bonomy was asking you about the National Assembly's right to request that

25 information under that provision of the Law on the Interior. Professor,

1 if you as a constitutional lawyer and a good lawyer were trained to try to

2 argue both sides of a point, if you were representing

3 President Milutinovic, if you were representing President Milutinovic in a

4 situation like this where you were trying to argue that, yes, as president

5 I am entitled under the constitution to request these reports from the

6 Ministry of Interior, as set out in this provision of the law, and it's

7 not an unconstitutional extension of my powers, couldn't you argue:

8 Rather, it is part of my powers under the constitutional provision that

9 allow me to request the government to express its opinions and as part of

10 the catch-all provision under Article 83, 12, to conduct other affairs in

11 accordance with the constitution? Because if I can ask the entire

12 government for its position, then this is merely one ministry within the

13 government. Could you make that argument with a straight face, Professor?

14 A. Precisely that is the meaning of my point, that all of this is

15 embodied in the constitution in Article 85, when the government is

16 requested to take a position, the Ministry of Internal Affairs is under

17 the government; then -- well, the Ministry of the Interior is one of the

18 ministries in the government. And yet again, as I've already said, the

19 National Assembly has authority to exercise control over the work of the

20 entire government, therefore, one of its ministries as well. Singling out

21 only the Ministry of the Interior in this way and not any other ministry

22 is not right from the point of view of the constitution. That is my

23 point. Why say that when all of that is already incorporated in Article

24 85 and Article 73, respectively? And all of it is put in language that is

25 not identical to that put in the constitution; namely, in terms of the

1 president of the republic and the National Assembly.

2 Q. Thank you, Professor.

3 MR. HANNIS: Your Honour, I'm going to move on to the SDC and some

4 new topics and I think we went a couple minutes long this morning and the

5 Professor and I are growing increasingly tired, I wonder if we could take

6 a recess a couple minutes early.

7 JUDGE BONOMY: Very well, Mr. Hannis.

8 We will adjourn now, Professor, for lunch and see you again at

9 1.45.

10 [The witness stands down]

11 --- Luncheon recess taken at 12.43 p.m.

12 --- On resuming at 1.48 p.m.

13 [The witness takes the stand].

14 JUDGE BONOMY: Mr. Hannis.

15 MR. HANNIS: Thank you, Your Honour.

16 Q. Professor, I know it's been a long week and we're in the last

17 session for this week. If at any time you want to take a break, please

18 let us know.

19 I want to move now to the president of the republic's role in

20 connection with the supreme -- or with the Supreme Defence Council. You

21 mentioned in your testimony on Tuesday that that was a position he held ex

22 officio, Mr. Milutinovic, that is. Can you tell us regarding your

23 knowledge, who were the members of the Supreme Defence Council in 1998 and

24 1999 -- well, I guess I should say 1988 [sic] and 1999 up until the 23rd

25 of March, because I understand the rules of procedure were changed on the

1 23rd of March, 1999.

2 A. In 1998, the members of the Supreme Defence Council were the

3 following: The president of the Federal Republic, Slobodan Milosevic; the

4 president of the Republic of Serbia, Milan Milutinovic; and the president

5 of the Republic of Montenegro, I have forgotten his name, Mile Djukanovic,

6 yes. I didn't make that big a mistake, did I?

7 Q. And in 1999, March 23rd, when there were introduced a change to

8 the rules of procedure for the SDC, did that rule change or those rules

9 changes provide for additional persons to attend SDC meetings? Whether

10 they were members or not we'll talk about in a minute.

11 A. Yes. New persons were added precisely again ex officio. However,

12 their status was interesting. They could not have the status of a member.

13 Members of the Supreme Defence Council were spelled out in the

14 constitution. These people had to attend sessions ex officio. It was the

15 federal minister of defence, the Chief of General Staff, and if I'm not

16 mistaken, the federal prime minister, but I'm not sure. They had to

17 attend sessions according to the provisions of the rules of procedure from

18 the 23rd of March, 1999. This is an interesting provision. In a way it

19 corrects Article 135 of the constitution, because Article 135 of the

20 constitution says in paragraph 2 only on the members of the Supreme

21 Defence Council in this respect.

22 Q. And I guess considering the circumstances at the time, the 23rd of

23 March, on the eve of war, it might make sense to expand the attendees of

24 the Supreme Defence Council to include the minister of defence and the

25 head of the General Staff of the army, wouldn't you agree?

1 A. Yes, yes. It would have made sense, in view of the subject matter

2 that the Supreme Defence Council dealt with and in view of the fact that

3 members of the SDC were there ex officio. And as for the offices they

4 held, there were other criteria that prevailed, not military criteria.

5 However, these people who became members certainly could not take part in

6 decision-making because this would be in direct contravention of the

7 constitution.

8 Q. So if I understand correctly, then, Professor, after the 23rd of

9 March, even though now the minister of defence and the head of the General

10 Staff of the army or their representatives are required to attend

11 meetings, but in effect they're not really voting members of the SDC. Is

12 that fair?

13 A. That's the way it would have been to be. On the basis of the

14 constitution, they do not have the rights of members because the

15 constitution does not recognise them as members of the Supreme Defence

16 Council. They can only contribute to the quality of the discussion on

17 certain items that were on the agenda of the Supreme Defence Council.

18 Q. Okay. Now, of course, Professor, you, yourself, never personally

19 attended an SDC meeting, did you?

20 A. No, no, I didn't. No. I was not qualified in any way for that.

21 Q. And you never had a chance to see the full stenographic minutes

22 of -- or the stenographic notes of any of those meetings, have you?

23 A. Oh, I did have occasion to do that. As for all the stenographic

24 notes from sessions held in 1997 and 1998, and at one session in 1999, I

25 read them very carefully while preparing for this responsibility that I'm

1 discharging before you today.

2 Q. Let me be sure I understand. Did you see the verbatim

3 stenographic notes of the meetings or did you see the minutes?

4 A. I saw the stenographic notes, too, and the minutes. When there

5 were only minutes and no stenographic notes, then I saw only the minutes.

6 But when there were stenographic notes taken, too, then I saw both the

7 stenographic notes and the minutes. Everything I saw is contained in the

8 documentation, I think, related to my testimony.

9 Q. Do you recall for which of the meetings you actually had access to

10 verbatim accounts in the stenographic minute -- stenographic notes?

11 A. Well, I saw them for the session of the 28th of October, 1997,

12 then for all sessions during 1998 and the session held on the 23rd of

13 March, 1999.

14 MR. HANNIS: I see Mr. Zecevic on his feet, Your Honour.

15 JUDGE BONOMY: Mr. Zecevic.

16 MR. ZECEVIC: Just one minute. Your Honour, I believe there is

17 some confusion here. Maybe it would be easier if the documents to which

18 the Professor is referring are shown to him again.

19 JUDGE BONOMY: Mr. Hannis.

20 MR. ZECEVIC: I mean just for the purposes of clarity, because I'm

21 not sure that -- because Professor said that actually all the documents

22 that he has seen are within these binders that we have provided to the

23 parties. So therefore, I think just for the purposes of clarity it would

24 be easier if -- I can provide the numbers as well, if my learned friend

25 wants --

1 JUDGE BONOMY: Well, it's for Mr. Hannis to decide at this stage

2 how to conduct --

3 MR. ZECEVIC: I know.

4 JUDGE BONOMY: And obviously you can deal with it in whatever way

5 you wish in re-examination. But if he wishes to do so at the moment, no

6 doubt he'll be grateful for your assistance on references.

7 MR. ZECEVIC: Thank you very much.

8 JUDGE BONOMY: Mr. Hannis.

9 MR. HANNIS:

10 Q. Well, I think at the moment, Professor, I'm going to maybe come

11 back to that. But to your understanding, what you looked at is contained

12 in the binders and there's nothing you looked at concerning the SDC that's

13 not contained in the binders?

14 A. I think that it is contained in the binders, but even if it's not,

15 while preparing for this testimony I informed myself because I read all

16 the minutes, not only read them, I studied them, studiously, and I told

17 you where I started from. The first one I read is from the 28th of

18 October, 1997. I read all the minutes from the sessions held in 1998 and

19 stenographic notes as well, and this one record, the minutes from the

20 session held on the 23rd of March, 1999. I did not read the minutes up to

21 1997, Mr. Milosevic not being president of the Federal Republic of

22 Yugoslavia, and I did not read them for after 1999 because in the period

23 from 1999 up to October 2000, there were no sessions of the Supreme

24 Defence Council.

25 Q. Let me ask a question this way regarding, for example, the

1 documents you looked at concerning the meeting for the 23rd of March,

2 1999. Was -- did you just look at one document, whether it was the

3 minutes or the stenographic notes, or did you look at two separate

4 documents?

5 A. As for some sessions, there were two different documents, but as

6 far as I can remember for that session, the 23rd of March, 1999, there

7 weren't any stenographic notes, it was only minutes. That is my

8 recollection. After all, strain takes its toll, doesn't it, and I forget

9 some things.

10 Q. I understand that, Professor, believe me. Who showed you those

11 documents?

12 A. All these documents I received from the Defence in order to

13 prepare for my testimony.

14 Q. Do you still have the ones that were provided to you to review?

15 A. I returned that to the Defence because I looked through them.

16 Q. When did you return them?

17 A. Well, I returned them, I think, here, in The Hague --

18 Q. Just --

19 A. -- because it involves lots of luggage. I had a suitcase full of

20 documentation and I don't have the physical strength to return all of that

21 to Belgrade, so I returned it to the Defence.

22 Q. Here, shortly before you testified at the beginning of this week?

23 A. Not this week, upon my arrival in The Hague, and I arrived in The

24 Hague on the 20 -- no, sorry, 30 -- on the 30th of July this year.

25 Q. Thank you. Thank you, Professor.

1 I want to ask you a question about a comment you made on Tuesday

2 at page 13004 of the transcript. I think Mr. Zecevic was asking you about

3 the Article 133 of the federal constitution and the army's duty to defend

4 the constitutional order. And he gave you a hypothetical, and you agreed

5 that that would constitute an attack on the constitutional order. You

6 said: "Because everything that changes or wishes to change something by

7 extra-constitutional means, that is to say, apart from regular procedure,

8 that's an attack on the constitutional order."

9 Now, I want to ask you a question related to that definition and

10 that understanding. Professor, are you familiar -- or I will tell you

11 that there have been some evidence in this case, some allegations, that in

12 March 1989, when the issue of amending the constitution of Serbia was

13 being discussed by the Assembly in Kosovo, there is some evidence that

14 suggest that during that event there were tanks stationed around the

15 Assembly building, that inside the Assembly hall itself there were some

16 uniformed VJ members, there was some police, there were persons in

17 civilian clothes who were not members of the Assembly sitting in,

18 allegations that some of those nonmembers actually raised their hands when

19 the vote was taken, and that there was no count made on the record of the

20 votes. If, hypothetically speaking, that evidence were all true, would

21 you agree with me that that was an example of a change by

22 extra-constitutional means?

23 A. Well, I could agree with you, had I not watched on television in

24 Belgrade the testimony of Mr. Vukasin Jokanovic, who was president of the

25 Assembly of Kosovo and Metohija at that time, and who showed through a

1 film how the vote took place in the Assembly. And as a direct witness, as

2 the president of the Assembly, he testified that the constitutionally

3 prescribed majority was attained. I was not present at that Assembly, but

4 I fully believe that when the president of the Assembly shows this, who

5 not only saw this with his own eyes but chaired the meeting and ex

6 officio, as president of the Assembly, he was supposed to see whether

7 there was a quorum in the Assembly, whether there were enough MPs present

8 to vote and to see whether everything was carried out constitutioni artis,

9 in accordance with the constitution, as required by the constitution.

10 Now, if this assumption of yours is taken into account, then what

11 you say would have been the case, an extra-constitutional change of the

12 constitutional order. However, this time according to the statement of

13 Mr. Jokanovic and what he showed, the change was fully in keeping with the

14 constitution. After all, he testified under oath. He showed a film

15 showing all of this. We could all see this when he testified in the

16 proceedings against President Milosevic.

17 JUDGE CHOWHAN: One question, I'm sorry, to ask. Did he say

18 anything about the Assembly being encircled by tanks and troops? Did the

19 president of the Assembly say anything on that?

20 THE WITNESS: [Interpretation] Well, you know, I just watched the

21 TV broadcast. I could not say anything with any degree of certainty, but

22 I know that the federal Presidency at that time, the Presidency of the

23 SFRY, and we read the conclusions of the Assembly on this, due to the

24 special situation applied special measures. So it was a federal

25 authority, not an authority of the Republic of Serbia. I am not able to

1 testify about the facts here quite simply because I was not present there

2 at the time. All of this took place in Pristina.

3 JUDGE BONOMY: I was about --

4 THE WITNESS: [Interpretation] -- and I live in Belgrade.

5 JUDGE BONOMY: I was about to say that to you. Virtually all of

6 your answer has been about the facts. The question is a question related

7 to your expertise as a witness here and you answered that right at the

8 beginning. So let's try to concentrate on what the questions are actually

9 about.

10 Mr. Hannis.

11 MR. HANNIS: Thank you.

12 Q. Professor, Mr. Zecevic was asking you about the army's role and

13 what its job was to do under Article 133. You pointed out that the army

14 is always called upon to "defend the sovereignty, the territory, the

15 independence, and the constitutional order of the country."

16 And at page 13005 and 6, it appeared that you agreed with

17 Mr. Zecevic that, in your view, there wasn't any action required by some

18 other state organ for the army to be used in case one of those four

19 objects was threatened. Is that -- do I have that correctly? Is that

20 your view?

21 A. Yes -- well, it's not my view. It's the position in the

22 constitution which I have simply retold. But what you're referring to

23 happened in 1989, and we are referring to a provision from 1992. So there

24 is a time difference here.

25 Q. I'm sorry, Professor. I didn't mean to relate this most recent

1 question about the army to what I had asked you about events at the

2 Assembly in Kosovo in 1989. Just as a general proposition under 133, it is

3 your position that the army can be engaged without, for example, without

4 declaring a state of emergency or a state of imminent threat of war or a

5 state of war?

6 A. It follows from Article 133, paragraph 1 of the constitution. The

7 army is duty-bound to protect the sovereignty, the territory, and so on in

8 every situation, in any state, whether regular or irregular.

9 Q. But I see nothing in Article 133, and if it exists somewhere else

10 can you point me to it, that would indicate who was supposed to decide

11 whether that condition exist; that is, that there is a threat to the

12 sovereignty, territory, independence, or constitutional order that

13 requires the army to leap to its defence. Is that up to the Chief of the

14 General Staff, a commander in the field, a politician? Who decides?

15 A. This decision, as we saw when such states are declared, is made by

16 the National Assembly; and if it is unable to convene, then the federal

17 government or cabinet.

18 Q. Yes, I understand that they are the ones who decide if such a

19 state did exist, but I guess I was taking your prior answer to mean that:

20 No, the army could go out in the field and take actions even without the

21 declaration of one of those states if they thought -- I guess if the army

22 thought that there was a threat. Am I misunderstanding your prior

23 evidence?

24 A. No, no, you're not. That's still how I understand it. I'm simply

25 adhering to the constitution, but that's my understanding of Article 133,

1 paragraph 1 of the constitution. There are no limitations to that

2 paragraph. It simply says that in any situation the army shall defend the

3 sovereignty, territory, independence, and constitutional order of the

4 country without any limits to this.

5 Q. But how do we interpret that in light of the provisions that

6 indicate that the army during both peace and wartime is commanded by the

7 president of the republic in conjunction with or in accordance with

8 decisions of the Supreme Defence Council?

9 A. Well, the way it's written down here. The president of the

10 federal republic in accordance with the decisions of the Supreme Defence

11 Council. I don't see what the problem is.

12 Q. Well, I guess I understood your earlier answers to indicate that

13 the army could go out in the field to take action in defence of a

14 perceived threat, perceived by the army, without waiting for a word or a

15 decision from anyone else. Am I incorrect in that understanding of your

16 prior answers?

17 A. Well, the army has its chain of command, you can see in Article

18 135. And I cannot say more than that because I'm not familiar with the

19 chain of command in the army, I'm not a military expert. I'm just telling

20 you how it is based on the constitution, and this is how we lawyers read

21 this.

22 Q. Okay. Well, I asked these questions because I think Judge Bonomy

23 asked or made a comment yesterday that reflected my confusion at page

24 13007 he said: "My understanding at the moment is that without any other

25 organ being involved, the army can itself act to defend the constitutional

1 order on the basis that it thinks that there is some challenge being made

2 to it and I find that strange."

3 And so do I and that's what I need some clarification on.

4 A. The Assembly cannot command the army nor can the cabinet. Only

5 the organ commanding the army can decide that, and in Article 135 it says

6 who the supreme commander is. It's not the National Assembly or the

7 government, it's rather the president of the republic, in compliance with

8 decisions of the Supreme Defence Council and I don't see any problem here.

9 Q. Okay. Well, then now I take it then that you're saying that the

10 army couldn't just on its own go out, but it would take some direction

11 from the commanding authority, that is, the president of the republic,

12 acting in accordance with decisions of the Supreme Defence Council. So I

13 guess that would be the body or the people who would have to perceive that

14 there was a threat that required the army to defend under Article 133 of

15 the constitution, correct?

16 A. Yes, that's correct. That's what follows from the text of the

17 constitution. That's precisely what the constitution says.

18 Q. Okay. And in relation to that there's been --

19 JUDGE BONOMY: Just a moment, Mr. Hannis.

20 MR. HANNIS: Yes.

21 JUDGE BONOMY: Did we not have evidence from you, Professor, that

22 the right interpretation of that provision about in accordance with the

23 decisions of the Supreme Defence Council was that the president,

24 nevertheless, could act on what he thought appropriate?

25 THE WITNESS: [Interpretation] What I said was that from the

1 stenographic record one can see that the Supreme Council issued

2 conclusions. I never read any decision, nor did I ever see any decision

3 of the Supreme Defence Council in any official publication. But what the

4 precise chain of command was, I don't know. When, however, I looked at

5 the sessions of the Supreme Defence Council, nowhere did I find that the

6 Supreme Defence Council ever issued a decision or that such a decision was

7 ever published anywhere or that it had a name, a title, as the decisions

8 of the president of the federal republic and the Chief of the General

9 Staff did. We saw that there was a whole list of terms for these various

10 documents. Here we see just the common term, the general

11 term,"conclusion." It doesn't say what sort of decisions they could

12 make --

13 JUDGE BONOMY: So --

14 THE WITNESS: [Interpretation] -- and the Law on Defence doesn't

15 say that either.

16 JUDGE BONOMY: So at the end of the day the army went to war

17 without a decision of the Supreme Defence Council?

18 THE WITNESS: [Interpretation] Well, the conclusion reached at a

19 session of the Supreme Defence Council of the 4th of October, 1998, was

20 read out and it was certainly used as a basis for the army to go to war.

21 In those conclusions, it says that Yugoslavia is committed to peace and to

22 the peaceful resolution of all open issues. But if the country is

23 attacked, we shall defend ourselves using all means. I think that was the

24 conclusion issued at the session of the Supreme Defence Council of the 4th

25 of October, 1998. As a lawyer, I feel that this is not a way to express a

1 legal norm; it is simply a political standpoint. On the basis of this, a

2 decision would have to be issued couched in legal terms.

3 What does it mean to defend by all means? What means? If we are

4 attacked, what is implied by an attack? And then the commitment to peace,

5 those are the things political fora say, we are committed to peace and a

6 peaceful resolution of all open issues. That's not for the Supreme

7 Defence Council to say. The Supreme Defence Council deals with defence,

8 not with solving open issues by peaceful means. So these are my

9 observations that I had reading through the stenographic records and

10 minutes of the sessions of the Supreme Defence Council.

11 JUDGE BONOMY: I hope you don't mind me repeating the question,

12 which was: "So at the end of the day the army went to war without a

13 decision of the Supreme Defence Council?"

14 Can you answer that yes or no?

15 THE WITNESS: [Interpretation] No, because these conclusions were

16 used in lieu of a decision.

17 JUDGE BONOMY: Well, Professor, yesterday you were very keen to

18 distinguish the concept of "conclusion" from the concept of "decision."

19 It was a very important part of your -- not just yesterday, a very

20 important part of your evidence as I understood it. Do you want to modify

21 that?

22 THE WITNESS: [Interpretation] No, no. I'm not modifying my

23 evidence. These conclusions are evidently not a decision, but they

24 obviously served as a decision. As a lawyer, I feel that this is not a

25 decision, there is no decision in there, just a political attitude. But

1 obviously it was used -- it was relied upon as if it were a decision. I

2 still maintain what I said before and what you said now, in my view this

3 is not a decision. But, evidently, these conclusions were used as a

4 decision. This is just a political standpoint.

5 JUDGE BONOMY: Mr. Hannis.

6 MR. HANNIS: Thank you.

7 Q. Professor, I next want to show you a document that I don't think

8 you've seen before. It wasn't -- at least it wasn't on the list, and this

9 is Exhibit P717.

10 MR. HANNIS: I have a hard copy, if we could hand this to the

11 Professor.

12 Q. Professor Markovic, this is a document in evidence here. It's a

13 letter from General Perisic dated the 23rd of July, 1998, to

14 President Slobodan Milosevic. You're aware, are you not, that at that

15 time General Perisic was the Chief of the General Staff of the VJ?

16 A. Yes.

17 Q. And it's my understanding that at some point in time this became a

18 matter of some public discussion. Have you ever heard about this? This

19 is a disagreement or a complaint that General Perisic had about how the

20 army was being used and his view that it was necessary to proclaim one of

21 the extraordinary states if the army was going to be used in Kosovo

22 against the civilian population outside the border area or when not

23 protecting VJ facilities and personnel.

24 MR. HANNIS: I see Mr. Zecevic on his feet, Your Honour.

25 JUDGE BONOMY: Mr. Zecevic.

1 MR. ZECEVIC: It's just a technical issue. Can we have it on the

2 e-court, this particular -- no, we have the first page of the book.

3 MR. HANNIS: I think they need page 3 of the B/C/S.

4 JUDGE BONOMY: Very well.

5 MR. HANNIS: To start with. There we go.

6 Q. Now, Professor, I think I highlighted on your copy in pink the

7 portions I wanted to ask you about specifically, but --

8 JUDGE BONOMY: Mr. Visnjic.

9 MR. VISNJIC: [Interpretation] Your Honour, I am following to see

10 whether Mr. Hannis will put a precise question because it says here that

11 the army is being used against the civilian population, but I'm not sure

12 that that's what it says in the document. That's in the document

13 Mr. Hannis was about to show the witness. Nor that there was any public

14 debate as to whether the army was being used against the civilian

15 population.

16 JUDGE BONOMY: Mr. Hannis.

17 MR. HANNIS: Well, I had asked --

18 JUDGE BONOMY: Does your question require to be more specific?

19 MR. HANNIS: Well, Your Honour, my initial question was just,

20 first of all, had the witness heard about this letter from General Perisic

21 to Mr. Milosevic.

22 THE WITNESS: [Interpretation] No, no, I didn't hear about it. I

23 was not an addressee. The addressee is the president of the FRY,

24 Slobodan Milosevic.

25 MR. HANNIS:

1 Q. I understand that, Professor, but I had some reason to think that

2 this eventually came to be a matter of some public debate or discussion.

3 You're not aware of that?

4 A. No, no.

5 Q. Would you look first at item number 1 on the first page that I've

6 highlighted. It's -- in English it reads: "Constant tendency to use the

7 VJ outside the institutions of the system."

8 Is that an accurate reading of the sense of what you get from

9 reading the B/C/S?

10 A. Yes, yes, yes, that's what it says.

11 Q. And maybe it makes more sense if I can have you read down below

12 specific examples of the facts, if you could read then number 1 there,

13 then we'll hear the English translation.

14 A. Do you mean the text on page 161, which you underlined in red, in

15 a red felt-tip pen?

16 Q. Yes.

17 JUDGE BONOMY: Mr. Zecevic.

18 MR. ZECEVIC: Since it was highlighted, Your Honours, I think it

19 would be more appropriate if it's put on the ELMO so we can see what my

20 learned friend is referring to, because it is very hard for us to really

21 understand which parts of the document Mr. Hannis is referring to.

22 JUDGE BONOMY: Well, let's have it on the ELMO then.

23 MR. HANNIS:

24 Q. Yes, from the top of that page, Professor, could you read what's

25 been highlighted -- actually, could you read the entirety of the first two

1 paragraphs there.

2 A. I apologise, I'm very short-sighted and it's very hard for me to

3 see this, but I will do my very best.

4 "The tendency to use the army outside the institutions of the

5 system.

6 "(A) the situation in Kosovo and Metohija could have been avoided

7 by introducing a state of emergency promptly on the 20th of April, 1998,

8 when I submitted to you a written proposal (attachment number 1). Since

9 this was not accepted by you, the situation has escalated and so

10 representatives of the MUP and you too sought the use of the VJ, some

11 smaller units were used directly and indirectly, which is, from a legal

12 aspect, against the law, and the consequences for the state are known.

13 "(B) so that the relevant and professional conclusions of the

14 session of the VSO on the 9th of June, 1998, might be implemented, we

15 requested the FRY government to provide us with (by proclaiming one of the

16 states: Of emergency, immediate threat of war, or war) the legitimate

17 material and financial conditions (see attachment number 2). This has

18 not, to date, been done, which means that any engagement of the VJ in

19 combat operations outside the border zone and beyond is still illegal and

20 the possible consequences are unforeseeable."

21 Should I go on reading?

22 Q. Stop there, Professor.

23 MR. HANNIS: I do want to clear up one thing, Your Honours,

24 because I can't remember when we discussed this exhibit for the first time

25 in the Prosecution case, but you'll see in the English version item number

1 A the second line it says: "Introducing a state of," and there's nothing

2 else. The Professor read it and it was translated as: "State of

3 emergency." I see the capital letters in the B/C/S and I think it does

4 say "state of emergency," but perhaps we could clarify that either with my

5 learned friends or through the translator; and if so, I would like to make

6 that correction on the record regarding the English translation.

7 JUDGE BONOMY: Mr. Zecevic.

8 MR. ZECEVIC: We can certainly clarify that for our learned friend

9 but, Your Honours, we have an objection and I think maybe it would be

10 appropriate that we don't state it in front of the witness. I mean just

11 for the sake of --

12 JUDGE BONOMY: Well, it's difficult to see at the moment what your

13 objection might be because he hasn't been asked a question yet that --

14 MR. ZECEVIC: Well, in anticipation of the question, Your Honour,

15 because the witness says he never saw the document nor is he aware of its

16 existence --

17 JUDGE BONOMY: But he's an expert on this matter, Mr. Zecevic.

18 MR. ZECEVIC: I do agree. I do agree.

19 JUDGE BONOMY: He's not being asked about matters of fact at the

20 moment.

21 MR. ZECEVIC: No, I think that --

22 JUDGE BONOMY: Do you still think we should have a debate out

23 without his presence?

24 MR. ZECEVIC: No, I just wanted to state my objection along the

25 lines which I explained; that if he's to refer to the documents which he

1 hasn't seen, he didn't adopt it. That's the point.

2 JUDGE BONOMY: There's no reason why an expert should not be faced

3 with other material that he hasn't necessarily seen before. In fact, that

4 would point to a good cross-examination. I am a bit concerned that his

5 evidence -- this passage is being disrupted unnecessarily by

6 interventions.

7 MR. ZECEVIC: Sorry.

8 JUDGE BONOMY: It's difficult to follow when these occur, and it's

9 not clear at the moment that any has really assisted the situation

10 terribly much.

11 MR. ZECEVIC: Sorry, Your Honours.

12 JUDGE BONOMY: So back to you, Mr. Hannis.

13 MR. HANNIS: I don't know if Mr. Zecevic was going to agree with

14 me that the English should say "state of emergency."

15 JUDGE BONOMY: Well, I don't think it matters. That's how it's

16 been translated just now. If he wants to argue about it, he'll no doubt

17 raise it in re-examination. Let's just keep the evidence flowing, if we

18 can.

19 MR. HANNIS: Thank you.

20 Q. Professor, in item 1(A) you just read out, you see General Perisic

21 is expressing his concern that the way the army was being used in Kosovo

22 and Metohija was, as he said, "from a legal aspect against the law."

23 Now, you told us earlier today that you're not an expert on

24 matters of internal affairs or the army. General Perisic at the time was

25 the Chief of Staff of the VJ, that is by my understanding, the highest

1 uniform member of the army. Would you agree that he may well understand

2 the law vis-a-vis the army better than yourself?

3 JUDGE BONOMY: Just hold on.

4 Mr. Zecevic.

5 MR. ZECEVIC: If there is -- if this is a question for the expert

6 witness, then my objection would be misplaced, but I certainly do not

7 think that is along the lines which Your Honour just explained. That is

8 why I find my objection suitable in anticipation of this. Thank you.

9 JUDGE BONOMY: I think on this occasion Mr. Zecevic's objection is

10 well-stated, Mr. Hannis. The -- what you're seeking is perfectly

11 appropriate, but I don't think the way to put it is to ask for a view on

12 Perisic's understanding of the law.

13 MR. HANNIS: Your Honour, I take your point. I think it's one way

14 to approach it, and if you're of the view that that's not the appropriate

15 way, I will move on to something else.

16 JUDGE BONOMY: No, I think you should rephrase the question. The

17 real question here is: Has Perisic misunderstood the law? On the other

18 hand, if your point is ultimately going to be that you would expect

19 him -- a man in his position to have a good understanding of the law, then

20 that's argumentative and can be dealt with later.

21 MR. HANNIS: Yes, Your Honour, I will move on to something else at

22 the moment and I have something to come back to on this topic later.

23 Q. But I want to move now, Professor, to item (B) that you read out

24 for us before, and I'll tell you what it says in English and ask you if

25 this is correct. It says: "So that the relevant and professional

1 conclusions of the session and the VSO," or Supreme Defence Council, "on 9

2 June 1998 might be implemented ..." In the English, I note that the word

3 "conclusions" has a capital "C", which for me would suggest that

4 "conclusions" here is being used with some sort of specificity and not in

5 the generic sense of a conclusion and it relates specifically to 9 June

6 1998 meeting of the SDC.

7 Now, you read the minutes for the 9 June 1998 meeting of the SDC,

8 did you?

9 A. Yes, I've read it. There were three conclusions.

10 Q. Yes, and I think you testified that these weren't decisions and

11 these were only conclusions or statements of final positions, but here

12 General Perisic is talking about implementing conclusions. Do you have

13 any comment on that?

14 A. What do I think is the key word here is the verb. "We requested,"

15 it's in the past tense. One thing I can tell you is that the original

16 wording in Serbian is quite illiterate. It should read: "In order to be

17 able to carry out or put into practice the conclusions in a responsible

18 and professional manner from the session of the Supreme Defence Council on

19 the 9th of June, 1998, we requested ..." How did they make these requests?

20 It is necessary, after all, to take this conclusion and base some sort of

21 a decision on it. Who was it that required the Serbian government to

22 secure not legal but constitutional -- and this is the mistake. You can

23 tell that General Perisic is no lawyer, to secure a constitutional basis,

24 not a legal basis, to pronounce or declare special conditions as well as

25 create the material and constitutional conditions for it. So there had to

1 be some sort of a decision.

2 The conclusions in purely linguistic terms are so scarce, so

3 inadequately phrased that it was eventually necessary to operationalise

4 the whole thing by introducing some sort of decision, which is exactly

5 what follows from item (b). You can see that based on these conclusions

6 the government was required or requests were made to the government to

7 provide a legal and constitutional basis to declare one of the special

8 states, as well as to secure material and financial conditions. We don't

9 know what these conditions are or prerequisites because none of them are

10 explicitly stated and in the wording is it has so far failed to do this or

11 this has not to date been done, which means that any involvement of the

12 JNA in combat outside the borders continues to be illegal and the

13 consequences are unforeseeable.

14 These are comments that I in my professional capacity as a lawyer

15 might make facing a text like this.

16 Q. Let me ask you regarding the declaration of one of the

17 states -- one of the extraordinary states, such as state of emergency,

18 imminent threat of war, or state of war, I think we looked the other day

19 with Mr. Zecevic, you were looking at the Law on Defence. I believe

20 that's Exhibit P985, and looked at Article 4. I'm not sure what tab it

21 is, Professor. It's tab 62 of the grey binder. Okay. Do you have that

22 before you, sir?

23 A. Yes. Do you mean me?

24 Q. Yes --

25 A. I do.

1 Q. -- Professor, thank you.

2 A. All right. Well, 62 happens to be in the other binder.

3 MR. ZECEVIC: Could the usher please help Professor with the

4 binders, please.

5 THE WITNESS: [Interpretation] I found it. Please go ahead.

6 MR. HANNIS:

7 Q. With regard to Article 4, doesn't that call upon the -- doesn't

8 that indicate that the declaration of one of those states of emergency

9 shall be proclaimed. The Assembly is required to proclaim it if it

10 determines that the sovereignty, territory, independence, or constitution

11 are under threat. It's not a matter of discretion but it says: "The

12 Federal Assembly shall proclaim ..."

13 A. Yes, but an article in the constitution, and the constitution is

14 the supreme legal act, the article in the constitution does not say that

15 the Army of Yugoslavia shall protect the country's system in any regular

16 state, in a state of war, or during the an imminent threat of war, but

17 rather that the army should defend Yugoslavia regardless of the prevailing

18 conditions. Therefore, we cannot interpret Article 133 in that way

19 because that is not explicitly stated anywhere in the article.

20 The army as such as an institution is called upon to defend these

21 four values, regardless of the prevailing circumstances, regardless of

22 whether the circumstances are normal or irregular. That is what I'm

23 saying. And we can't imagine something as being in the constitution that

24 is not actually there, and this simply happens to be one of those things

25 that aren't there.

1 Q. Professor, I'm not sure I follow that reasoning. If -- what I

2 understood you to be saying about Article 133 was that if the army

3 determined that there was a threat to the constitutional order, then it

4 was required, constitutionally required, to defend the country and engage,

5 correct?

6 A. Absolutely. That is my position, and any lawyer would confirm

7 that for you having read Article 133 of the constitution. Even

8 General Perisic does not speak about any violations of the constitution.

9 He's using a lay term. He's here saying that the Yugoslav Army is acting

10 outside the institutions of the system, the institutions of the system,

11 what does that mean? What's that supposed to mean? I'm at a loss here.

12 He's not saying that they're acting against the constitution. You see,

13 item 1 says: "A tendency to use the army outside the institutions of the

14 system." This phrase "the institutions of the system," well, to a lawyer

15 that means nothing at all. What would be meaningful to a lawyer would be

16 such phrases as "outside the constitution" or "outside the law."

17 Q. Professor, would you agree with me that if, objectively speaking,

18 there was such a threat to the constitutional order of the country as to

19 require the army under the constitution to engage and defend, isn't that

20 the equivalent to what's under Article 4, that the constitution or the

21 security of the country are under threat? And if that's the case the

22 Federal Assembly shall proclaim one of those three extraordinary states?

23 A. Yes, but the impression that I'm getting is that you relate the

24 use of the army solely to one of these three degrees or possible irregular

25 circumstances. If that is what you are doing, I believe you are not

1 interpreting Article 133 of the constitution in a correct manner. My

2 position is this: The Army of Yugoslavia can be used to defend the four

3 objects, regardless of the fact whether the Assembly had actually

4 proclaimed an imminent threat of war, a state of war, or a state of

5 emergency.

6 Q. Well, I think my difficulty lies in my understanding of what the

7 nature of the disagreement or apparent disagreement between

8 General Perisic and Mr. Milosevic was. Based on what he says in his

9 letter in P717 and other evidence we've heard in this case, it appears

10 that General Perisic, and perhaps some other individuals, took the view

11 that absent one of those emergency states, one of those extraordinary

12 states, that the army was to be used in the border area, the army could

13 also be used to defend its own personnel and facilities.

14 But General Perisic's concern was that to engage the army in

15 combat operations against civilians and terrorists, the KLA, at least at

16 that point in time was being referred to as the "so-called KLA," not

17 recognised as an army but as insurgents or rebels or terrorists, General

18 Perisic's view was that was a job for the police. If it was being done

19 internally against the so-called KLA, it was a job for the police. And if

20 the army was to be engaged, it was his view that a state of emergency at a

21 minimum needed to be declared. On the other hand, it seems that Mr.

22 Milosevic didn't want to declare a state of emergency. And you're aware,

23 Professor, that in July of 1998, there had been some international

24 concerns about what was happening in Kosovo. You're aware of the Security

25 Council resolution that was passed in March.

1 So I suggest to you, sir, that part of the problem here was that

2 General Perisic thought that this was a political decision. He did not

3 want the army to be engaged in this activity without a declaration of one

4 of those states, because then he, the general, was going to be called to

5 task. Mr. Milosevic, I suggest to you, did not want to declare one of

6 those states because that would give the international community, perhaps,

7 a basis for arguing that we need to come in, we need to bring foreign

8 troops in, and help resolve this situation because Serbia can't do it on

9 its own. Would you disagree with that?

10 JUDGE BONOMY: Sorry, Mr. Fila.

11 MR. FILA: [Interpretation] I don't, as a rule, oppose questions as

12 long as this one, but where did my learned friend come across this, this

13 fact that Milosevic was declaring a state of emergency? Why is he asking

14 this question? I would be very happy if he could help me track down this

15 particular reference.

16 JUDGE BONOMY: Well, the question is very clear. It's based on

17 there being no declaration of a state of emergency, so your objection is

18 repelled.

19 Please proceed, Mr. Hannis.

20 MR. FILA: [Interpretation] Your Honour, the name is there

21 Slobodan Milosevic refused to declare a state of emergency. That is what

22 the whole story is about, but he cannot declare a state of emergency on

23 top of everything else -- or at least not based on the constitution.

24 JUDGE BONOMY: Well, the Professor's view so far is that the army

25 can act on its conclusion that there is a threat to the constitutional

1 order. The president was the commander of the army, and therefore --

2 MR. FILA: [Interpretation] That is true, but both under regular

3 and irregular circumstances. He's always the commander of the army, in

4 both sets of circumstances.

5 JUDGE BONOMY: But it is very difficult to take the line you're

6 taking when faced with an article in the Law on Defence, which seems to

7 provide how a state of emergency is to be declared and the view of the

8 Professor that the constitution in Article 133 somehow or other gives a

9 power to act as if there were a state of emergency, the equivalent of a

10 state of emergency, without that having been declared. So in that

11 situation, the fact that the question might not truly reflect what in the

12 end of the day will be your position does not make it inadmissible,

13 Mr. Fila. So this question may be answered.

14 Mr. Hannis, I think you may have to repeat part of it.

15 MR. HANNIS:

16 Q. Professor, do you need me to repeat my question or do you

17 understand the essence of what I was asking you?

18 A. Could I please ask you repeat the question. I think you're

19 overestimating me if you think I can possible memorise a question as long

20 as that.

21 Q. Okay, Professor, I know it was long-winded and let me try again.

22 It was my understanding from this document and other evidence in the case

23 that the dispute between -- or the disagreement between General Perisic

24 and Mr. Milosevic boiled down roughly to this: General Perisic's view was

25 that the army couldn't be used outside the border belt area or to defend

1 its own personnel and facilities, could not be used against civilians

2 within Serbia absent the declaration of a state of emergency or a state of

3 an imminent threat of war or a state of war. And he felt that if there

4 was a problem with the terrorists or the so-called KLA, that that was a

5 matter to be dealt with by the MUP, by the police, because it was a matter

6 of internal security, which was their job.

7 And I think it's fair to suggest that he did not want the army to

8 be doing what he saw as the police job, absent a declaration of one of

9 those states.

10 I suggest to you that there's evidence to support the theory that

11 Mr. Milosevic, on the other hand, was opposed to a state of emergency

12 being declared because Serbia was already under the watchful eyes of

13 international observers and had already been criticised because of the

14 perception that there was disproportionate and indiscriminate force being

15 used against civilians in Kosovo. You had the UN resolution in March of

16 1998, and so this is part of the genesis of this letter from

17 General Perisic. Would you agree with me that that's a reasonable

18 explanation for why there is this disagreement between the two of them?

19 A. First of all, I don't know about this disagreement. My

20 information is not first-hand, it's not even hearsay. I'm not close in

21 any way to military matters or the army itself. However, I would

22 understand General Perisic's position if only he could name the regulation

23 that he's invoking. He appears to have arrived at the conclusion that

24 this is in the very nature of things. He must invoke something specific.

25 I don't see a specific regulation being mentioned there or invoked by

1 General Perisic. The way I read this, this appears to be his

2 understanding of things, based on which he then goes on to make certain

3 proposals. Other than that, speaking of Article 4, I don't see any

4 mention being made there of the use of Yugoslavia's army, unlike Article

5 133, Article 4 of the Law on Defence.

6 Therefore, the disagreement did, in fact, exist if this was

7 General Perisic's understanding but I don't see him invoking any specific

8 regulations to support his theory. If President Milosevic believed what

9 you claim he believed, then these would be two contrasting viewpoints on

10 one and the same matter.

11 Q. I'm sorry, Professor, I need to catch up with you.

12 JUDGE BONOMY: Can you remind me, Professor, if in the FRY

13 constitution there is a provision about declaring a state of emergency?

14 THE WITNESS: [Interpretation] Of course there is, both in the

15 federal constitution, the Constitution of the Federal Republic of

16 Yugoslavia, the 1992 constitution, and in the Constitution of the Republic

17 of Serbia, the 1990 Constitution--

18 JUDGE BONOMY: No, it's the 1992 constitution I'm asking you

19 about.

20 THE WITNESS: [Interpretation] Yes, there is.

21 JUDGE BONOMY: Can you remind me of which article?

22 THE WITNESS: [Interpretation] I think it's Article 78. 78,

23 paragraph 3, and Article 99.

24 JUDGE BONOMY: Now, that's --

25 THE WITNESS: [Interpretation] Paragraph 10.

1 JUDGE BONOMY: That's -- Article 99, 10. Hold on until I have a

2 look at that. Yes. Now, that -- these two provisions are surely

3 consistent with Article 4 of the Law on Defence, which is the law as made

4 by the Assembly.

5 THE WITNESS: [Interpretation] Yes. The provision is consistent

6 with Article 78.

7 JUDGE BONOMY: And you say that in spite of all of that, that

8 Article 133 gives power to the president as the supreme commander to use

9 the army whichever way he wishes if he deems there to be some threat to

10 the constitutional order, even though the Federal Assembly has not

11 declared a state of emergency?

12 THE WITNESS: [Interpretation] Yes, that is what I'm saying. The

13 Army of Yugoslavia is there to defend the four values, including the

14 constitutional order, regardless of any decisions by the Assembly. At any

15 rate, there is no mention of any use being made of the Army of Yugoslavia

16 in these special states. In Article 4 of the Law on Defence, these are

17 just the criteria for the declaration of the three degrees or sets of

18 irregular circumstances.

19 JUDGE BONOMY: Does that suggest that ultimately Yugoslavia was a

20 military dictatorship?

21 THE WITNESS: [Interpretation] I wouldn't draw that conclusion

22 myself. I'm not sure what such a conclusion could possibly be based on.

23 There is not a single country in the world that does not defend its

24 constitutional order or any attempts at violent, at disruption against

25 this constitutional order. I would call such a country a country in

1 disarray, a country which would choose not to defend its constitutional

2 order. This would amount to anarchy. The constitution must be complied

3 with.

4 JUDGE BONOMY: Mr. Hannis.

5 MR. HANNIS: Thank you, Your Honour.

6 Q. Professor, if I understand correctly then, you seem to be saying

7 that the army, if it perceives that there is a threat to the

8 constitutional order, it can engage to defend, absent any declaration of

9 one of the three extraordinary states, correct?

10 A. Yes, that's right.

11 Q. Because the army is commanded by the president of the republic,

12 Mr. Milosevic, as -- and he commands in accordance with decisions of the

13 Supreme Defence Council, correct?

14 A. Yes, that's what Article 135 of the constitution says.

15 Q. So if you could go back to Exhibit 717 for a minute, that was the

16 one I had given you a hard copy and marked in pink. I don't know if you

17 still have it, Professor.

18 A. Yes, yes.

19 Q. And it was on the second page you had. And it was the last

20 portion in pink that you had not read yet, and I don't know if we need to

21 put that on the ELMO, but it's, in English: "Proposed resolution."

22 Could you read those two paragraphs for us.

23 A. Sure. Paragraph 1 says: "The Army of Yugoslavia shall be used in

24 a legal way to defend the border belt, military facilities, and units.

25 The army shall not be used for any other tasks or one of the states

1 envisaged by the constitution shall be declared and then the army shall be

2 used to its full capacity. We understand the position, but we must have a

3 legitimate political decision because if the Federal Assembly or the FRY

4 government will not or is not in a position to issue it, how will anyone

5 acquire the right to undertake this responsibility?"

6 Q. Professor, is it fair to say from reading that that

7 General Perisic seems to be taking the position that he's willing to use

8 the army in light of what may be a perceived threat against the

9 constitutional order, but his view is that's a political decision and it's

10 either going to come from the Federal Assembly by declaring one of the

11 extraordinary states or he needs it to come from the government?

12 A. I don't understand General Perisic. He sat on the Supreme Defence

13 Council. He is a homo-duplex. This session took place on the 9th of

14 June, 1998. He took a vote on two decisions - can we look at those

15 decisions, please - conclusions, and he voted on the conclusion that the

16 Army of Yugoslavia would react and intervene in an inadequate manner, as

17 it reads, should terrorist activities by the Albanian separatist movement

18 escalate. I am -- can only claim that this is a verbatim quote from the

19 session and he was there. The third conclusion. It also says: "The Army

20 of Yugoslavia shall be prepared in the case of an intervention by foreign

21 troops, regardless of the reasons for such intervention."

22 I would really like us to go through these conclusions, to read

23 them out, so that I don't have to tell you about them. At the meeting,

24 and that's what the minutes reflect, General Perisic was there. And in

25 this letter, he claims something completely different. He was one man at

1 the sessions of the Supreme Defence Council, and we see him wearing an

2 entirely different hat in his letter to the president. The least I can

3 say of him is that he is a dual personality or a homo-duplex.

4 If you have the conclusions handy, I think that would be very

5 helpful. He was there. Not only that, he opened the meeting, he

6 introduced the meeting. The first conclusion of the president of the

7 Supreme Defence Council, Mr. Milosevic, adopts the contribution of

8 General Perisic, Chief of the General Staff. That is the very first

9 conclusion, and this one is followed by the other two that I mentioned on

10 the use of the Army of Yugoslavia, as it reads: "Should the terrorist

11 activities by the Albanian separatist movement escalate," and then

12 secondly: "On the use of the Army of Yugoslavia in the eventuality of an

13 attack by foreign troops".

14 Q. Professor, I think that's tab 54..

15 JUDGE BONOMY: Well, the Tab 54 is the relevant document which

16 is --

17 MR. HANNIS: P1574?

18 JUDGE BONOMY: Yeah.

19 THE WITNESS: [Interpretation] There. I can read it for you. This

20 is the session held on the 9th of June, 1998.

21 Colonel-General Momcilo Perisic was there in his capacity as Chief of the

22 General Staff. He opened the meeting. He gave introduction. It was in

23 his presence and with his approval that the following was said: "In

24 relation to this item on the agenda, the president of the Federal Republic

25 of Yugoslavia, Slobodan Milosevic, proposed and the council unanimously

1 adopted," unanimously, which means there was no position by

2 General Perisic, "the following conclusions: First, we accept the

3 introduction made by the Chief of the General Staff, this same General

4 Perisic; secondly, should the terrorist activities by the Albanian

5 separatist movement escalate, the Army of Yugoslavia," you see, mind the

6 wording, "the Army of Yugoslavia will react in an adequate matter.

7 "Thirdly, the Army of Yugoslavia shall be prepared to counter any

8 form of foreign intervention, potentially jeopardising the sovereignty and

9 territorial integrity of the Federal Republic of Yugoslavia."

10 It is quite obvious that within a month's time General Perisic

11 seems to have entertained two entirely different position on one and the

12 same issue.

13 THE INTERPRETER: The interpreters would like to know that we did

14 not have the original text read out by the witness. Thank you.

15 JUDGE BONOMY: Can I in that regard ask you two things. I

16 understood that General Perisic would not have a vote on the Supreme

17 Defence Council. Am I wrong about that?

18 THE WITNESS: [Interpretation] You are not wrong. He could not

19 vote, but he did not state his opposition either. Look at his

20 introductory remarks, just look at them.

21 JUDGE BONOMY: Just hold on a second then. In the conclusion of

22 his interpretation, General Perisic underlined - and you'll see the very

23 end of that is: "In case of an external danger, we have to mobilise the

24 military forces," whereas the Supreme Council of Defence and other federal

25 organs have to bring that decision."

1 What do you think he meant by that?

2 THE WITNESS: [Interpretation] Well, what he meant was probably the

3 mechanism of decision-making, commanding the army, as established in

4 Article 135, where it says that the Army of Yugoslavia is commanded by the

5 president of the Supreme Defence Council, or rather, the president of the

6 Federal Republic of Yugoslavia, in accordance with decisions made by the

7 Supreme Defence Council. I think that is what he meant.

8 JUDGE BONOMY: And don't you read his letter in July as

9 complaining that no decisions have actually been made?

10 THE WITNESS: [Interpretation] His letter looks like a complaint to

11 me against the Federal Assembly and the federal government, especially the

12 federal government. Why it did not introduce one of those states of an

13 irregular situation and why it did not provide proper material and

14 financial conditions. So on this particular page that I'm looking at,

15 which is page number 2, he complains about the federal government. He

16 says here: "In order to carry out responsibly and professionally

17 conclusions from the Supreme Defence Council, we called upon the

18 government to ensure for us legal and material financial conditions."

19 Well, it's not really legal conditions, it's the constitution as I already

20 said, material and financial. Even until now, it has not done this which

21 means that any engagement of the Army of Yugoslavia in combat operations

22 outside the border belt is still illegal."

23 That is to say, that as for the legality of the engagement of the

24 Army of Yugoslavia he sees that in previous decisions of the federal

25 government.

1 JUDGE BONOMY: I don't understand what you've just said.

2 THE WITNESS: [Interpretation] What I'm trying to say is that the

3 main objection it seems, on the basis of this letter sent by

4 General Perisic, is that the federal government did not do two things.

5 Firstly, because --

6 JUDGE BONOMY: That I understand, but at the very end you've

7 said -- perhaps it's translation: "That is to say, that as for the

8 legality of the engagement of the Army of Yugoslavia, he sees that in

9 previous decisions of the federal government."

10 Is that an accurate translation of what you said?

11 THE WITNESS: [Interpretation] Yes. He has no objections as for

12 the Supreme Defence Council. That is what it seems like on the basis of

13 this. His objections are addressed to the federal government.

14 JUDGE BONOMY: Professor, you've already made the very clear point

15 that these three conclusions are too vague to amount to decisions. Now,

16 what's wrong in that context with General Perisic wanting decisions made?

17 THE WITNESS: [Interpretation] No, I just stated that in the

18 conclusions it was stated that irrespective of the situation, the Army of

19 Yugoslavia would intervene appropriately, as it says here, "in case

20 terrorist activities of the Albanian separatist movement escalate."

21 In this letter, General Perisic says that the Army of Yugoslavia

22 can be used legally only for "defending the border belt, military

23 facilities, and units." As for other tasks, that is to say interventions

24 against terrorist activities of the Albanian separatist movement, in his

25 opinion, the army cannot be used for that because before that one of the

1 three situations or states envisaged in the constitution has to be

2 declared.

3 JUDGE BONOMY: Now, whether he's right or wrong about that is not

4 the issue at the moment. The issue that you're highlighting -- well, your

5 opinion you're highlighting is that there's an inconsistency in his

6 position within a month. Now, is it not possible that he viewed the three

7 conclusions as statements of policy, for the implementation of which it

8 would be necessary to have executive decisions?

9 THE WITNESS: [Interpretation] That's not the way I understand

10 this. What I see here is that General Perisic within a month's time had

11 different views on the same subject.

12 JUDGE BONOMY: Thank you very much.

13 Mr. Hannis.

14 MR. HANNIS: Your Honour, I can start on this next document, which

15 relates to what we've just been talking about in 1574, but I don't know if

16 we'll get very far. Would you like me to proceed?

17 JUDGE BONOMY: Yes, please.

18 MR. HANNIS: Okay.

19 Can we bring up Exhibit P1000 --

20 JUDGE CHOWHAN: [Microphone not activated]

21 MR. HANNIS: Yes.

22 THE INTERPRETER: Microphone for Judge Chowhan, please.

23 JUDGE CHOWHAN: [Microphone not activated]

24 I apologize. I'm sorry. This is something which is in line with

25 what Judge Bonomy had said. May I request you -- I'm sorry, learned

1 Professor. May I request you to kindly advert to the minutes of the 6th

2 Session of the SDC of 4th October 1998. May I further request you to

3 kindly go to page 6, and the last paragraph. This is tab 55, please.

4 Yes, did you get it, please?

5 THE WITNESS: [Interpretation] Yes.

6 JUDGE CHOWHAN: The last paragraph. Just read this and could you

7 further enlighten us on the position.

8 THE WITNESS: [Interpretation] If page 6 in the English version and

9 page 6 in the Serbian version are the same, I'm going to read this out to

10 you, and you are going to tell me if I'm reading it out wrong.

11 THE INTERPRETER: Interpreter's note: We cannot find the

12 document, could it please be placed on e-court.

13 THE WITNESS: [Interpretation] "The president of the Federal

14 Republic of Yugoslavia" --

15 JUDGE BONOMY: Hold on, please, until we get it on e-court.

16 For the interpreters, apparently it's on e-court.

17 JUDGE CHOWHAN: "The Chief of General Staff by a" -- it begins

18 from here.

19 JUDGE BONOMY: Can you read that now, please, Professor?

20 THE WITNESS: [Interpretation] Yes, yes, yes, I can see that.

21 "Again the Chief of General Staff of the Army of Yugoslavia,

22 General Perisic, took the floor by saying that he accepts the opinion that

23 the resolution of the present situation has to be found in a political

24 approach lest there be air-strikes. But as a soldier who is responsible

25 according to the constitution and his own conviction to protect his

1 country, he suggests that the Federal Assembly bring a clear decision on

2 whether the country should enter war or not in case we are attacked."

3 JUDGE CHOWHAN: Thank you.

4 JUDGE BONOMY: Mr. Hannis.

5 THE WITNESS: [Interpretation] This is what he said on the 4th of

6 October. The 4th of October. That's when he said that, after the letter,

7 after the letter that he sent, that he sent on the 23rd of July, the same

8 year.

9 MR. HANNIS:

10 Q. Thank you. Professor, the minutes of the SDC for June the 9th

11 that you looked at, those were minutes, correct, those are not

12 stenographic verbatim transcripts of every word that was said by those

13 attending the meeting, correct?

14 A. I'd really have to have a look, I'm sorry.

15 Q. I think that's tab 54.

16 A. Yes, yes, correct, you're right. But it says at the end,

17 stenographic notes are an integral part of these minutes.

18 JUDGE BONOMY: So does it follow from that, Professor, that we

19 have here in tab 54 the whole of what you have read in relation to the

20 meeting of the 5th Session on the 9th of June, 1998?

21 THE WITNESS: [Interpretation] No, no, that's not what it means.

22 That means that we have minutes. The minutes are the essence of what was

23 going on and how this went on word for word, verbatim, that is in the

24 stenographic notes.

25 JUDGE BONOMY: These then are not before us, in that case. So

1 where are they?

2 THE WITNESS: [Interpretation] I really don't know that.

3 JUDGE BONOMY: Well, did -- were they among the documents you

4 returned to the Defence at the beginning of August?

5 THE WITNESS: [Interpretation] Well, I could not state that with

6 any degree of certainty because there were a lot of sessions involved. It

7 was an entire book, so to speak. Some, indeed, contained the stenographic

8 notes and conclusions and some had only the conclusions. I cannot say

9 just off the cuff what the situation was for this session.

10 JUDGE BONOMY: Mr. Zecevic.

11 MR. ZECEVIC: Your Honour, I can confirm that we don't have

12 anything else except what we have put in here, which are the minutes. I

13 don't -- I'm not sure to what Professor is referring to.

14 JUDGE BONOMY: Well, Professor, have you studied other material,

15 apart from what was given to you by Mr. Zecevic?

16 THE WITNESS: [Interpretation] No, no. I just looked at what Mr.

17 Zecevic had given me, but in this material there are stenographic notes,

18 too, not only conclusions.

19 JUDGE BONOMY: Thank --

20 THE WITNESS: [Interpretation] I mean not only minutes, or

21 rather -- well, yes, yes. I think that the session from the 28th of

22 September -- no, sorry, October, the session of the 28th of October, 1997,

23 was in the form -- I think I'm actually sure of this, in the form of

24 stenographic notes when elements of the military budget were referred to,

25 a very lengthy text otherwise.

1 MR. ZECEVIC: Your Honour, I have all the binders at my place,

2 so -- I mean if --

3 JUDGE BONOMY: Well, you were wondering what you would do at the

4 weekend, Mr. Zecevic, so now you know.

5 Well, we've reached the end of today's hearing.

6 You may have found it a long week, Professor, however you now have

7 a break until Monday, when we shall see you again to recommence at 9.00 on

8 Monday morning. Please bear in mind particularly at the weekend to avoid

9 discussing the evidence in this case with anyone. Enjoy it thinking of

10 other matters and come back refreshed on Monday, ready to start at 9.00.

11 Now you can please leave with the usher.

12 [The witness stands down]

13 JUDGE BONOMY: Mr. Hannis.

14 MR. HANNIS: Your Honour, you asked me about the Sainovic --

15 JUDGE BONOMY: Yes.

16 MR. HANNIS: -- motion seeking leave to amend Rule 65 ter

17 submission. We had filed an objection concerning the written statement of

18 Mr. -- General Vasiljevic yesterday, but otherwise we don't have any

19 objections to these proposed changes and terms of order of witnesses and

20 length of time, et cetera.

21 JUDGE BONOMY: Yes. I was aware of the position in relation to

22 Vasiljevic, which we will have to think about before dealing with it. But

23 I don't think the application by Mr. Fila requires much thought.

24 [Trial Chamber confers]

25 JUDGE BONOMY: Mr. Fila, we will allow you to amend the 65 ter

1 list, as requested.

2 We shall now adjourn until 9.00 on Monday.

3 --- Whereupon the hearing adjourned at 3.32 p.m.,

4 to be reconvened on Monday, the 13th day of

5 August, 2007, at 9.00 a.m.

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