Tribunal Criminal Tribunal for the Former Yugoslavia

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4 IN THE TRIAL CHAMBER Case No. IT-95-18-R61

5 Case No. IT-95-5-R61



8 Thursday, 27th June 1996


10 Before:



13 (The Presiding Judge)







20 -v-






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1 behalf of the Prosecution


3 (Open Session)




7 (10.00 a.m.)

8 THE PRESIDING JUDGE [In translation]: First, I would like to be sure that

9 the interpretation booths are working properly, and that everybody

10 hears when I speak. Turning first to my colleagues, the Judges, do

11 you hear properly? Then the Registrar? Office of the Prosecutor?

12 All right. The hearing has been opened. Turning to the Registrar,

13 would you please call the cases before us today?

14 THE REGISTRAR [In translation]: This is IT-95-5-R61, the Prosecutor of

15 this Tribunal against Radovan Karadzic and Ratko Mladic, and case

16 IT-95-18-R61, the Prosecutor of this Tribunal against Radovan Karadzic

17 and Ratko Mladic.

18 THE PRESIDING JUDGE: First, I would like to know who is representing the

19 Prosecution.

20 MR. OSTBERG: Thank you, your Honour. I am Eric Ostberg, one of the

21 senior trial attorneys of this Tribunal; I appear at this hearing with

22 my learned friends, Mr. Mark Harmon and Mr. Terree Bowers. We are

23 assisted as legal advisers by Payam Akhavan and to operate the

24 technical equipment we bring the researcher, Todd Cleaver. Thank you.

25 THE PRESIDING JUDGE: Thank you, Mr. Ostberg. We are now meeting as part

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1 of Rule 61 of the Rules of Procedure and Evidence. The Rule provides

2 for a proceedings in case there is a failure to execute a warrant of

3 arrest. Therefore, this is an ex parte proceeding and I want to say

4 outside of the presence of the parties since the parties were served

5 with the indictment and the warrants of arrest which were relative to

6 the case.

7 This hearing today deals were two indictments; an indictment

8 dealing with the general policy carried out in Bosnia and Herzegovina

9 by the accused Mr. Radovan Karadzic and Ratko Mladic. The first

10 indictment was confirmed by Judge Jorda in July 1995. The second

11 indictment, which is the subject of this hearing, that is, the failure

12 to execute a warrant of arrest, deals with the events which took place

13 in Srebrenica in July 1995. The second indictment was confirmed along

14 with the subsequent warrants of arrest in November 1995.

15 In addition, the Registrar of the Tribunal was seized

16 yesterday afternoon by an act from Mr. Radovan Karadzic asking that

17 Igor Pantelic represent the defendant. Could you tell what the Trial

18 Chamber's decision about this request was? Turning to the Registrar,

19 I give you the floor.

20 THE REGISTRAR: Thank you, your Honour. The Registrar of the Tribunal

21 hereby confirms that yesterday afternoon Mr. Pantelic from the

22 Belgrade Bar filed with us an act which I will read asking for Power

23 of Attorney. "I authorise Igor Pantelic, an attorney from Belgrade,

24 residing at 20 Vojvode Dobrnjast Street to represent me before the

25 International Tribunal in The Hague, and to take any legal measures

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1 that would be in my interest. The above mentioned person", that is Mr.

2 Pantelic, "may later on establish a team of lawyers who will work in

3 my interest and with my prior consent". Signed Dr. Radovan Karadzic,

4 Pale, 25 June 1996.

5 Following the filing of this act, we immediately contacted the

6 Trial Chamber which took a decision yesterday evening which I will

7 report on now. The Trial Chamber I composed of Mr. Claude Jorda

8 presiding, Mrs. Elizabeth Odio Benito, Mr. Fouad Riad, assisted by Mr.

9 Dominique Marro, Deputy Registrar, decision of 26th June 1996, the

10 Prosecutor against Radovan Karadzic, requests additional information.

11 The Trial Chamber, given Articles 21 of the Statute and 61 of the

12 Rules of Procedure and Evidence, seized by the Prosecutor for the

13 purposes of a new review of the indictments against Radovan Karadzic

14 and Ratko Mladic in case IT-95-5-R61, IT-95-18-R61, about which a

15 public hearing shall be held on 26th June 1996 at the seat of the

16 Tribunal in accordance with Rule 61 of the Rules, seized by the

17 Registrar of a request from Radovan Karadzic which was given to his

18 attorney, Mr. Pantelic from Belgrade, is a request for an intervention

19 by this attorney during the hearings for a further review of the

20 indictments.

21 Considering that this act which was submitted to the Trial

22 Chamber as well as the requests in it were formulated in imprecise

23 terms, and for that reason Mr. Pantelic should be asked to clarify in

24 writing the purpose and legal basis for his request seeking an

25 intervention before the Trial Chamber, and states that this written

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1 application must be filed with the Registrar on 27th June 1996.

2 Signed Claude Jorda, Presiding Judge of the Trial Chamber I.

3 In accordance with the instructions from the Trial Chamber, I

4 have informed by telephone, that is late in the evening, Mr. Pantelic

5 that he would have to make a request giving more details about his

6 request. I can now inform both the Trial Chamber and the Office of

7 the Prosecutor that we have received several months before this

8 hearing begun the text of that new request.

9 THE PRESIDING JUDGE: Thank you, Mr. Marro. As I have just said, the

10 proceedings under Rule 61 permit proceedings which exclude any agent

11 or proxies, because this is intended for the presentation by the

12 Prosecution of all of the charges against an accused person who, in

13 addition, was informed of the indictments and the warrants of arrest

14 against him.

15 I would like to remind you, so that things be very clear, that

16 these proceedings under Rule 61 are organised when there has been

17 failure to execute the warrant of arrest under reasonable delay and

18 reasonable time periods, that the confirming Judge informs the

19 Prosecutor that he must explain all measures that were taken in order

20 to be sure that the indictments were, in fact, served on the accused

21 and that the arrest warrants were brought to his knowledge.

22 This is an obligatory formality. These were, in fact, carried

23 out by the two confirming Judges, that is, Judge Fouad Riad and Judge

24 Claude Jorda, on 18th June last. The proceedings, therefore, does not

25 allow for the presence of a proxy. Nonetheless, the presence made at

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1 the request which has not been very much clarified from Mr. Pantelic

2 makes it necessary for the Tribunal to deliberate immediately in order

3 to come to a decision for the time being and only at this point of the

4 proceedings whether Mr. Pantelic may be admitted into the courtroom.

5 It will now immediately at the Bench deliberate on the question.

6 (The learned Judges conferred)

7 THE PRESIDING JUDGE: The Tribunal has decided that it will allow Mr.

8 Pantelic into the courtroom at this stage of the Tribunal, and he will

9 be here during the reading of his explanatory motion which the

10 Tribunal up to this point has still not been informed of because it

11 was filed barely an hour ago with the Registrar. Turning to the

12 Registrar, I will ask you now to usher Mr. Pantelic into the

13 courtroom.

14 THE PRESIDING JUDGE: Thank you, Mr. Marro. Mr. Pantelic, would you

15 please put your head set on? Could the usher help him to put the head

16 set on the right channel? Mr. Pantelic, do you understand when I

17 speak to you or would you prefer to put on the head set? All right.

18 Turning to you, could you first rise and introduce yourself?

19 MR. PANTELIC: Your Honour of the Trial Chamber, honourable Justice

20 Ostberg, I am Igor Pantelic, attorney at law from Belgrade. I am

21 acting as Defence counsel of Dr. Radovan Karadzic, on behalf of Dr.

22 Radovan Karadzic, according to my Power of Attorney which I submitted

23 yesterday.

24 THE PRESIDING JUDGE: Thank you, Mr. Pantelic. You may be seated. The

25 Tribunal was seized yesterday by a request which was not precise, it

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1 was a rather general request, in the interests of your client, one of

2 the two accused, that is, Dr. Karadzic. The Tribunal, as it said

3 before the public, and for a long time now, has requested that

4 additional information be brought to your own application.

5 Mr. Pantelic, the Tribunal which has already seen you in the

6 confines of this institution knows that you understand the rules of

7 proceedings here, and that you are aware of how the International

8 Criminal Tribunal operates -- you and your client as well. The

9 Tribunal has decided that when an attorney comes to this international

10 body, whose rules must conform to the highest standards of

11 international law, both for the Prosecution and for the Defence with

12 the purpose of ensuring an impartial and equitable trial, it was,

13 therefore, proper to listen to what you had to say, first to read and

14 to hear your motion, and to ask you whether this motion really does

15 correspond to what you are thinking. We will have it read by the

16 Registrar. We do not hear it yet, and we will then ask you, Mr.

17 Pantelic, and I will ask you, to be very careful about what I am

18 asking you, to make some very concise explanations.

19 Mr. Marro, would you please read the additional motion which

20 was filed by Mr. Pantelic this morning at 9 o'clock addressed to the

21 Office of the Prosecutor and to the Tribunal?

22 THE REGISTRAR: "Motion of the Defence in the interests of Radovan

23 Karadzic. In accordance with Rule 54 of the Rules of Procedure and

24 Evidence, the counsel for the Defence is introducing this application

25 and is affirming the following:

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1 1. On 26th June 1995, the Defence has filed with the Registry

2 a copy of the Power of Attorney which was signed by Radovan Karadzic,

3 according to which he authorises Igor Pantelic to represent him as his

4 attorney before the International Criminal Tribunal.

5 2. In accordance with Rule 44 of the Rules of Procedure and

6 Evidence, the counsel for the Defence which has been chosen by the

7 accused must file his act with the Registrar as quickly as possible at

8 any stage of the proceedings.

9 3. Pursuant to Article 21 of the Statute of the Tribunal and

10 to the relevant Articles of the United Nation Covenants on Human

11 Rights and on the safeguard of human rights and fundamental freedoms,

12 any accused person enjoys the fundamental human right, that is, the

13 right to defend himself with an attorney which he himself has chosen

14 without any restriction being placed on this.

15 4. The presence of the attorney in the courtroom during the

16 presentation of the indictment by the Prosecutor is not counted to the

17 spirit of Rule 61 of the Rules of Procedure and Evidence and, in

18 addition, the presence demonstrates in significant efforts that have

19 been made in order to guarantee one of the principal rights, human

20 rights of the accused.

21 The Defence, therefore, asks for the possibility of being

22 present in the courtroom throughout the public hearing which was

23 established in this case, as well as free access to any document and

24 relevant case files which the Prosecutor will submit at this stage of

25 proceedings". Signed Igor Pantelic, The Hague, 27th June 1996.

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1 This is a motion which we received around 9.30 this morning.

2 THE PRESIDING JUDGE: Thank you, Mr. Marro. The Tribunal considers that

3 the 61 proceedings have not yet begun, but does want to hear the very

4 rapid explanations of Mr. Pantelic. As I repeat very briefly and then

5 I say that after these explanations, we will ask for brief

6 explanations from the Office of the Prosecutor. I give you the floor,

7 Mr. Pantelic.

8 MR. PANTELIC: Your Honour, in addition to my motion from this morning

9 submitted to the Registry, I would stress that it is not contrary to

10 the Rule 61 procedure before the Tribunal that the presence of Defence

11 counsel during the review of indictment is not allowed.

12 I want to say that the position of the Defence counsel at this

13 stage of the procedure is completely in accordance with the basic

14 human rights of an accused or a suspect. The Tribunal has very, as I

15 can say, general and large approach to the Rules, and I think that

16 there is a manoeuvring area to allow Defence counsel to follow this

17 procedure review of the indictment in accordance with the position of

18 the Prosecutor and without any particular interfering in that

19 procedure which Defence fully respect. That is all. Thank you.

20 THE PRESIDING JUDGE: Thank you, Mr. Pantelic. I now turn to the Office

21 of the Prosecutor: Have you any comments that you would like to make,

22 brief ones, please, both about the written motion as given to the

23 Registrar and then to the several of the additional explanations that

24 Mr. Pantelic gave? I give the floor to you, Mr. Ostberg.

25 MR. OSTBERG: Thank you, your Honour. This comes as a bit of a surprise.

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1 I have not seen this written motion until more than two or three

2 minutes ago. Nevertheless, I have some comments. The Prosecution

3 welcomes, of course, the fact that Radovan Karadzic seems to have

4 recognised this Tribunal and filed a Power of Attorney for a Defence

5 lawyer with the Registrar.

6 However, today's hearing is an ex parte hearing, as your

7 Honour has already pointed out, under Rule 61, due to the fact that it

8 has not been possible to execute a warrant of arrest. This is not a

9 trial in absentia. I think, your Honour, that the presence of counsel

10 for the Defence without the accused would transform these proceedings

11 with arguments from the Defence lawyer, etc., into some kind of a

12 trial of absentia which is not permitted under our Statute.

13 Indeed, I think this would prejudice the right of the accused

14 to be tried in his presence under International Human Rights law. I

15 also think what Mr. Pantelic says under paragraph (3) in his written

16 motion about the United Nations Covenant on Civil and Political Rights

17 and European Convention of Human Rights has a basic bearing on a trial

18 and not at such a hearing we are having here today.

19 With his comments, your Honour, I just want to stress that I

20 can see no way of the appearance of Mr. Pantelic unless he brings his

21 client. He is perfectly welcome to follow all our proceedings from

22 the gallery. Thank you, your Honours.

23 THE PRESIDING JUDGE: Thank you, Mr. Ostberg. We will suspend the hearing

24 so that we may deliberate on the motion which was presented by Mr.

25 Pantelic.

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1 (10.30 a.m.)

2 (Adjourned for a short time)

3 (1.08 p.m.)

4 THE PRESIDING JUDGE: I am going to read out the decision taken by the

5 Chamber and I will try to read it out slowly to make it possible for

6 interpreters to follow me under the best possible conditions so as

7 both parties and the public can understand.

8 The Trial Chamber, pursuant to Articles 21 of the Statute and

9 61 of the Rules of Procedures and Evidence, pursuant to the decision

10 of the Chamber for an application dealing with additional information

11 dated 26th June 1996, having heard the Registrar reading out the

12 application lodged by Mr. Pantelic and the additional explanation

13 provided by the letter, having heard the Prosecutor in the course of

14 the hearing:

15 Considering that the procedure in case of failure to execute

16 an arrest warrant provided for in Article 61 of the Rules makes it

17 possible to have a new review in the course of a public hearing and by

18 the full Bench of an indictment.

19 Considering that Mr. Pantelic asked to have access to

20 documents and case files that the Prosecutor will tender in the course

21 of the Rule 61 proceedings, cannot be admitted if not within a trial,

22 and after initial appearance of the accused physically present,

23 pursuant to Article 66 of the Rules, that the accused will also enjoy

24 at that particular moment all the other rights which are guaranteed to

25 him by the provisions of Article 21 of the Statute.

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1 Considering that Rule 61 proceeding cannot be interpreted as a

2 trial.

3 Considering that these proceedings totally guarantee the

4 rights of the accused and that the letter has been notified, the

5 indictments before this proceedings, on the one hand, and that he also

6 enjoys the right to be present accompanied by his counsel before the

7 Tribunal, on the other hand, and that in this case the proceedings

8 would change its nature and becomes an adversarial trial with all the

9 inherent guarantees to an equitable trial.

10 Considering, however, that the presence of Mr. Pantelic and

11 his application to attend the proceedings pursuant to Article 61 in

12 the physical absence of the accused can, therefore, be interpreted in

13 the present case as being based on one of the general principles of

14 the rights of the Defence, interpreted here as being a right for the

15 best possible information of his client as provided for by Article 21,

16 para 4(a) of the Statute of the Tribunal.

17 Considering that the confirming Judges have deemed in their

18 orders dated 18th June 1996 that the conditions relative to the

19 information provided to the accused Radovan Karadzic have been fully

20 met as demonstrated by the Prosecutor.

21 Considering, however, that the Chamber rules that unless

22 counsel otherwise decides this information could usefully be

23 supplemented today by reading out the indictments in the presence of

24 the counsel selected by the accused.

25 Considering, furthermore, that this Chamber with a view to

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1 make it possible for the assigned counsel to inform his client of the

2 charges thinks that a status of observer should be granted to him.

3 For the forgoing reasons, the Chamber takes note of the acts

4 lodged by Mr. Pantelic on behalf of Radovan Karadzic, invites the

5 Registrar to read out the two indictments in the presence of Mr.

6 Pantelic in the courtroom against Radovan Karadzic, unless Mr.

7 Pantelic expressively waives this right; rejects the request by Mr.

8 Pantelic when he wants to remain present in the courtroom throughout

9 the Rule 61 proceedings and have free access to documents and case

10 files that the Prosecutor will tender. We state that Mr. Pantelic

11 will be taken to the public gallery of the courtroom where a seat will

12 be reserved to him throughout the hearing as an observer.

13 Having taken this decision, I am now turning to Mr. Pantelic.

14 I hope that this slow reading of the decision was understood by him.

15 So, this Chamber, unless you otherwise decide, suggests that you

16 remain present in the courtroom only during this particular part of

17 the courtroom when the Registrar will read out in full the two

18 indictments concerning your client.

19 Can you agree with that, Mr. Pantelic?


21 THE PRESIDING JUDGE: OK. So after this we will take a break and we will

22 resume proceedings later on. We will ask for a seat to be especially

23 reserved to Mr. Pantelic during the other days of this hearing as an

24 observer.

25 So, Registrar, please, are you in a position to read out the

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1 two indictments in full issued by the Prosecutor and confirmed

2 respectively in July '95 by Judge Jorda and in November of the same

3 year by Judge Riad? Registrar, you have the floor.

4 THE REGISTRAR: Prosecutor of the Tribunal against Radovan Karadzic and

5 Ratko Mladic.

6 (The indictment 25th July 1995 was read)

7 We now turn to the second part of this indictment; shall I

8 continue?

9 THE PRESIDING JUDGE: Would you like to take a sip of water or be

10 replaced? Please continue.


12 (Part II of the indictment was read)

13 THE PRESIDING JUDGE: Mr. Marro, you have just read the first indictment.

14 The Tribunal, once you have had a drink of water, wants you to now

15 read the second indictment which is a part of this 61 hearing. Would

16 you like to rest for a few moments? All right. You can now begin

17 reading the second indictment.

18 THE REGISTRAR: Prosecutor of the Tribunal against Radovan Karadzic and

19 Ratko Mladic.

20 (The second indictment 16th November 1995 was read)

21 THE PRESIDING JUDGE: Registrar, the Tribunal would like to thank you in

22 line with the decision that we took that we would have the two

23 indictments read out in full in the presence of Mr. Pantelic in the

24 courtroom. At the present, we are adjourning and we shall resume at

25 4.00 p.m.

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1 (2.45 p.m.)

2 (Adjourned for a short time)

3 (4.00 p.m.)

4 THE PRESIDING JUDGE: Before giving the floor to the Prosecution to open

5 this hearing which is taking place in connection with Rule 61, the

6 Chamber would like to make known a decision bearing on inviting amicus

7 curiae during the proceedings. I would now like to read this decision

8 to you.

9 The Trial Chamber I of the International Criminal Tribunal for

10 the former Yugoslavia, considering that pursuant to Rule 74 of the

11 Rules of Procedure and Evidence, a Trial Chamber may, if it considers

12 it desirable in the interests of the proper administration of

13 justice, invite or grant leave to any State, organisation or

14 individual to make a presentation on any issue it deems relevant; that

15 this rule appears in Chapter 6 on Proceedings before Trial Chambers.

16 Considering, however, that the requirement of the proper

17 administration of justice is a principle which must prevail during all

18 phases of the legal proceedings before an international criminal

19 tribunal and not only during the trial itself.

20 Considering that, in addition, to must be mentioned that,

21 pursuant to the provisions of Rule 89(A), the Rules of evidence are

22 applicable to all proceedings before the Trial Chambers, including the

23 proceedings conducted in accordance with Rule 61.

24 Considering, furthermore, that recourse to the amicus curiae,

25 an impartial personality, only for the purposes of making a statement

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1 on an issue which the Trial Chamber considers relevant and dealing

2 with the presentation of information and not evidence, appears fully

3 legitimate and entirely consistent with the proper administration of

4 justice.

5 Considering in this case, that during the hearings in respect

6 of the Prosecution against Radovan Karadzic and Ratko Mladic pursuant

7 to the provisions of Rule 61, the Trial Chamber considers it desirable

8 to hear the explanations and information of two amicus curiaes

9 concerning the status of human rights and the campaign of ethnic

10 cleansing in Bosnia and Herzegovina since 1992 and the disappearances

11 following the events at Srebrenica on the one hand, and, on the other,

12 the practice of rape and sexual assault as part of the ethnic

13 cleansing in Bosnia and Herzegovina since 1992.

14 Considering that each of the amicus curiae, if he considers it

15 relevant to support his presentation, may submit any documents,

16 reports or partial reports.

17 Considering, therefore that, for these purposes, the Trial

18 Chamber is inviting two personalities it deems competent. For the

19 forgoing reasons, pursuant to Rule 74 of the Rules of Procedure and

20 Evidence, invites Mrs. Elizabeth Rehn, Special Rapporteur of the

21 United Nations Commission on Human Rights to appear on 5th July 1996

22 as an amicus curiae as part of the hearings on proceedings initiated

23 against Radovan Karadzic and Ratko Mladic, pursuant to the provisions

24 of Rule 61, so that she may make a presentation on the status of human

25 rights and the campaign of ethnic cleansing of Bosnia and Herzegovina

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1 since 1992 as well as on the disappearances following the events at

2 Srebrenica.

3 Invites Mrs. Christine Cleiren, a member of the Commission of

4 Experts established pursuant to Security Council resolution 780 (1992)

5 to appear on 1 July 1996 as an amicus curiae as part of the hearings

6 on proceedings initiated against Radovan Karadzic and Ratko Mladic,

7 pursuant to the provisions of Rule 61, so that she may make a

8 presentation on the practice of rape and sexual assault as part of

9 ethnic cleansing in Bosnia and Herzegovina since 1992 and on the

10 conclusions of that Commission on those issues.

11 States that the amicus curiae may submit to the Trial Chamber

12 any documents, reports, or partial reports that they deem relevant.

13 Dated this 26th day of June 1996, International Criminal Tribunal at

14 the Hague, the Netherlands.

15 I would now like to ask the prosecuting counsel to take the

16 floor to open our Rule 61 hearing concerning the two accused, Radovan

17 Karadzic and Ratko Mladic. You have the floor, sir.

18 MR. OSTBERG: Thank you, your Honour. Now, at last, we submit to you for

19 your determination under Rule 61 of our Rules of Procedure and

20 Evidence the two indictments in respect of the two Bosnian-Serb

21 leaders, Radovan Karadzic and Ratko Mladic, that have just been read

22 out in open court.

23 Due to the reading by the Registrar in toto of the indictments

24 through which the accused have been thoroughly introduced and all the

25 charges against them brought forward in public, I can drastically

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1 shorten my opening statement and then do it more or less

2 extemporarily.

3 As appears from the crimes charged in the two indictments

4 against the accused, Karadzic and Mladic, they encompass the

5 commission of the whole range of serious violation of humanitarian law

6 in the material competence of this Tribunal, committed under a

7 protracted time on a huge scale in a widespread and systematic way

8 leading to the loss of thousands and again thousands of civilian

9 lives.

10 A detailed account of the magnitude and the horrors of the

11 crimes has through the reading of the indictments already been brought

12 to your Honour and to the public. What, however, we will hear today

13 and during the following six days, will not cover all of the evidence

14 we have available for trial because a 61 hearing in itself is limited

15 in scope. In setting the scene for the evidence we are going to bring

16 before the Trial Chamber, I will now restrict myself to a few

17 important facts, give examples, summarise what we are going to bring

18 before you and address some legal issues.

19 First, as to our evidence that we will start to bring today,

20 I will give you a short overview so you know what we are going to put

21 forward. After my opening statement, we will call Professor Paul

22 Garde to give a general historical overview of the involvements of the

23 events in Bosnia and the rest of the former Yugoslavia, to put the

24 picture, the context, in which we put all our evidence.

25 Then we will ask one of our investigators, Mr. John Ralston,

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1 to give a brief summary of the evidence collected to show what

2 happened as a background to the first of the two indictments. To that

3 indictment, as far as it concerns the shelling of Sarajevo, we will

4 bring one or another of one of our investigators, Mr. Jan Van Hecke,

5 who will tell us about the siege and sniping of the city of Sarajevo.

6 To that effect, we will also bring the Mayor of Sarajevo who, we

7 suggest, will paint a picture from the inside of the besieged city

8 during this long time that that city was besieged.

9 We have then a portion with relation to rapes and sexual

10 assaults where one of our investigators will bring a brief relation of

11 what this investigation has brought to light.

12 A person by the name of Colin Kaizer is a specialist of sacred

13 and historical monuments and the destruction which took place in

14 Bosnia against places of historic and religious importance.

15 A Canadian soldier taken hostage will tell about his

16 experience being treated like that in his service as a UN soldier.

17 Our investigator, Jean Rene Ruiz, will tell us about what happened as

18 an overview of what happened in connection with the fall of the safe

19 area of Srebrenica. I will come back to what we will do with people

20 from the Dutch battalion. A victim, who I do not want to name now,

21 from the events in Srebrenica after the fall of the city will also

22 tell his own experiences. We will bring multiple witnesses covering

23 the events in Srebrenica as a whole.

24 I will now just point to some of these things we have already

25 heard and to stress some facts. As you heard, the detainees were

Page 20

1 repeatedly subjected to inhumane acts, including murder, rape, sexual

2 assault, torture, beatings, robbery as well as other forms of mental

3 and physical abuse. In many instances, you will remember on the

4 reading of the indictments, women and girls who were detained were

5 raped in the camps where they were kept and also taken out of these

6 camps and brought to other places or localities and being there also

7 raped or otherwise sexually abused.

8 Another way of destroying the ethnicity of the Muslim and

9 Croatian populations was the targeting of political leaders. As you

10 heard, intellectuals, professional men and women were arrested,

11 physically abused and many times murdered in towns and villages which

12 happened in Prijedor, Vlasenica and Bosanski Samac.

13 A third way of committing crimes against humanity was

14 deportation. Thousands of Bosnian Muslims and Bosnian Croats from the

15 areas of Prijedor, Vlasenica, Bosanski Samac, Brcko and Foca, among

16 others, were systematically arrested and interned in detention

17 facilities established all around Bosnia under the supervision of the

18 Serb military under the ultimate command of the two indictees.

19 Yet another criminal method used to inflict conditions of life

20 calculated to bring about a destruction of those groups were the

21 shelling of civilian gatherings and their appropriation, plunder and

22 extensive destruction as set out in the indictment which has been

23 read out to you.

24 I will also point out and remind you concerning the sniping

25 and shelling of Sarajevo and the indictment, therefore, lists of

Page 21

1 children, civilians, women and men killed or wounded in this sniping

2 campaign brought about by the accused Karadzic and Mladic and charged

3 as the crime against humanity, as you heard incorporated in our

4 indictment.

5 The first indictment deals finally with the taking of hostages

6 of United Nations peace-keepers. I would like to stress that some of

7 these hostage taken people, including Canadian, Czech, Russian,

8 Nigerian, Pakistani and Swedish officers, were immediately selected

9 for use as human shields to prevent air strikes by NATO at ammunition

10 bunkers and communication centres. These acts are, as you heard,

11 charged as grave breaches and violations of customs of war.

12 As to what happened after the fall of Srebrenica, your

13 Honours, you will be told how the column in the woods was ambushed and

14 attacked with artillery shells, anti-aircraft guns, automatic weapons

15 and the like. You will hear estimations of how many of the thousands

16 fleeing people lost their lives in an attempt to reach safety, being

17 fired at, executed or committing suicide under the tremendous

18 pressure.

19 Thousands, as you heard, of these Muslims in the column,

20 however, surrendered to the Bosnian military having been assured that

21 they would not be harmed. Some of the soldiers giving such assurances

22 were, as you heard, wearing UN uniforms and blue helmets. The captive

23 men were taken to large assembly points near Karkaj, where the accused

24 Mladic was present.

25 You will hear summaries of witnesses' statements stating that

Page 22

1 thousands of men who had surrendered were summarily executed at

2 Karkaj and other places by the forces under the command of Ratko

3 Mladic.

4 As mentioned, a Dutch battalion was stationed in a compound in

5 Potocari to which thousands of refugees went for shelter. You will

6 hear Colonel Karremans, Chief of the Dutch Battalion, and two other

7 Dutch military men, all of them present and on duty in Potocari these

8 days in July 1995, telling you about their efforts to shelter the

9 refugees, and what happened to these refugees and of their meetings

10 with Ratko Mladic and of the statements and actions of Ratko Mladic.

11 These witnesses and others will tell you about summary

12 executions around the compound in Potocari, and of men transported to

13 Karkaj and then massacred by Bosnian Serb military personnel.

14 In summary, your Honours, the attack on the United Nations

15 safe area of Srebrenica and the actions by Bosnian Serb forces that

16 followed under the command of Ratko Mladic, and with the consent from

17 the Supreme Commander, Radovan Karadzic, resulted in the virtual

18 destruction of the Muslim population -- 60,000 people -- of that area.

19 I do not hesitate to add Srebrenica to the list of names such

20 as Katyn, Lidice, Oradour and Kragujevac and to pronounce it the most

21 horrendous, unimaginable war crime committed in Europe since the end

22 of World War II. It was a crime committed and directed at an area

23 under peaceful United Nations protection in obvious and complete

24 contempt and defiance of the international community, the Security

25 Council and humanitarian law -- and of this Tribunal.

Page 23

1 One of the principal objectives of our Tribunal is to act as a

2 powerful deterrent to all parties against continued participation in

3 inhumane acts. It is discouraging and frustrating to note that in

4 this case the existence of the Tribunal, apparently, did not have any

5 impact. It is even more frustrating to note that the States and other

6 actors on the international scene, on whose co-operation we depend and

7 who have the power and the tools to act, have not executed the

8 warrants of this Tribunal.

9 Let it be known that what the Prosecution really wants to do

10 is to try the accuseds for the crimes alleged against them here, in

11 this courtroom, in The Hague, not just having this 61 rule hearing.

12 However, in the course of satisfying the Trial Chamber that

13 there are reasonable grounds for believing that the accused committed

14 the crimes charged in the indictments, I will now turn to some legal

15 issues.

16 It is the submission of the Prosecution that at all times

17 relevant to this indictment an international armed conflict existed

18 between the Republic of Bosnia-Herzegovina, on the one hand, and the

19 Federal Republic of Yugoslavia, on the other hand, and that the Serb

20 administration in Pale is in this context to be considered an agent of

21 the Federal Republic of Yugoslavia.

22 To substantiate that, we have submitted to the Trial Chamber a

23 brief on the application of Article 2 of the Statute and the existence

24 of an international armed conflict for this hearing. The key argument

25 in this brief is that this conflict can be classified as international

Page 24

1 on the basis of the direct military involvement of the Socialist

2 Federal Republic of Yugoslavia and its successor, the Federal Republic

3 in Bosnia and Herzegovina, and on the existence of hostilities and the

4 partial occupation of Bosnia and Herzegovina that was the result.

5 The brief is supported by material which demonstrates that reasonable

6 grounds exist for believing that the parties were directly involved in

7 an armed conflict and that Bosnia and Herzegovina was partly occupied.

8 I will finally touch on two other legal issues pertaining to

9 the indictments, namely, the crime of genocide and the doctrine of

10 superior authority.

11 Genocide is the ultimate crime. It is characterised by the

12 particular intent, or dolus specialis, to destroy a group "as such".

13 It is this fundamental element which distinguishes genocide from the

14 ordinary crime of murder. In the words of the Israeli District Court

15 in the Eichmann case, I quote, "the special character" of genocide is

16 the "general and total" intent to physically exterminate members of a

17 group "as such". The term "in whole or in part" in article 4 of our

18 Statute clearly indicates that the intent to destroy does not have to

19 be directed against the entire group. The term "in part" is ambiguous

20 and lends itself to differing interpretations.

21 However, it is the submission of the Prosecution that it

22 implies, to quote the official report of a UN expert on genocide, "a

23 reasonably significant number, relative to the total of the group as a

24 whole, or else a significance section of a group such as its

25 leadership". This is taken from the Whitaker report at page 16,

Page 25

1 paragraph 29.

2 In view of the particular intent requirement, which is the

3 essence of the crime of genocide, the relative proportionate scale of

4 the actual or attempted physical destruction of a group, or a

5 significant section thereof, should be considered in relation to the

6 factual opportunity of the accused to destroy a group in a specific

7 geographical area within the sphere of his control, and not in

8 relation to the entire population of the group in a wider geographical

9 sense.

10 In all cases, it is the submission of the Prosecution that in

11 the interests of international justice, genocide should not be diluted

12 or belittled by too broad an interpretation. Indeed, it should be

13 reserved only for acts of exceptional gravity and magnitude which

14 shock the conscience of humankind and which, therefore, justify the

15 appellation of genocide as the "ultimate crime".

16 The accused Karadzic and Mladic are charged, inter alia, with

17 participation in crimes against humanity and

18 genocide; crimes which are inherently massive and systematic and which,

19 therefore, almost without exception, require a common plan or design

20 formulated and organised at the highest level of authority. Indeed,

21 it is the Prosecutor's case that without their instigation and plans

22 for the creation of "ethnically pure" regions, or at least without

23 their acquiescence, ordinary Yugoslav citizens would not have had the

24 means or the resources to commit atrocities on such a vast scale.

25 Therefore, it would be justified to say that the higher up the

Page 26

1 chain of command that we go, the higher the degree of responsibility

2 for the atrocities which were ultimately executed by the common

3 soldier on the ground.

4 The doctrine of superior responsibility applies to any person

5 in a line of command who has a personal responsibility with regard to

6 the perpetrator of the acts concerned because the latter, being his

7 subordinate, is under his control; in the present case, it is alleged

8 that this would clearly apply to the accused Karadzic and Mladic with

9 respect to all members of the Bosnian-Serb Army as well as other

10 armed groups and units including the Police Force.

11 The Prosecution wishes to point out that in the case of the

12 commanders with executive authority over a territory which is occupied

13 or otherwise under their de facto control, meaning in this case the

14 Pale administration or the so-called "Republika Srpska" during the

15 period covered by the indictment, responsibility extends to

16 "maintaining peace and order, punishing crime and protecting lives and

17 property". To quote the decision of the US Military Tribunal in the

18 Hostages Trial of 1947, the responsibility of such a commander "is

19 general and not limited to a control of units directly under his

20 command". I have taken this out of the law reports of the trial of war

21 criminals, volume 8, page 71.

22 It is the submission of the Prosecution that the widespread

23 and systematic nature of "ethnic cleansing" and other massive

24 atrocities against the non-Serb civilian population in

25 Bosnia-Herzegovina, allegedly committed by the direct subordinates of

Page 27

1 the accused as well as other persons under their control, can lead to

2 no other conclusion than the allegation that the accused ordered their

3 commission, or at least, acquiesced in their commission through

4 failing to prevent or punish such criminal acts.

5 The Prosecution submits that it would be inconceivable to

6 suggest that the accused Karadzic and Mladic had not given their

7 approval to the massive criminal policy of "ethnic cleansing", often

8 genocidal in character, which was committed by their subordinates, and

9 which lasted for some three and a half years.

10 Accordingly, under Article 7, paragraph 3, of the Statute,

11 they have been charged with individual criminal responsibility for the

12 actions of their subordinates, amounting to war crimes, crimes against

13 humanity and genocide.

14 To finish, your Honours, the scope of a Rule 61 hearing is not

15 only for the Prosecutor to satisfy the Trial Chamber that there are

16 reasonable grounds for believing that the accused have committed the

17 crimes charged in the indictments, and for the Chamber, if satisfied,

18 to so determine and to issue arrest warrants to be transmitted to all

19 States. It is also (and most importantly so) to assess the question

20 whether the Prosecutor has satisfied the Trial Chamber that the

21 failure to effect personal service was due in whole or in part to a

22 failure or refusal of a State to co-operate with the Tribunal in

23 accordance with Article 29 of our Statute.

24 In the case of the accused Karadzic and Mladic, it is the

25 submission of the Prosecution that the failure to arrest them and

Page 28

1 surrender them to the Tribunal is blatant refusal by the State of the

2 Federal Republic of Yugoslavia to co-operate with this Tribunal.

3 During the course of this hearing, I will tender evidence

4 showing that that State has had multiple opportunities to arrest the

5 accused but, contrary to its obligation, has not done so.

6 The Bosnian Serb administration in Pale, or Republika Srpska,

7 if you like, a self-proclaimed entity de facto exercising governmental

8 functions and thus, by the definitions of our Rules, a State, has also

9 refused to co-operate with the Tribunal in accordance with the Statute

10 by ignoring its warrants.

11 It is, therefore, the request of the Prosecution that, in

12 addition to the issuance of international arrest warrants, this

13 Chamber should also certify to the President of the Tribunal that the

14 Federal Republic of Yugoslavia and the Bosnian Serb administration in

15 Pale have failed to comply with their obligations under Article 29 of

16 the Statute, and further recommend to the President that he notify the

17 Security Council of this refusal.

18 Thank you, your Honour.

19 THE PRESIDING JUDGE: Prosecutor, thank you. I would like to put to you a

20 question. Yes, I have a question for you. Thank you, Prosecutor. My

21 first question put by the Tribunal is a matter of organisation. Do

22 you intend to submit a document concerning the schedule of testimonies

23 to the members of this court, a schedule or a timetable such as you

24 read out at the beginning of your statement?

25 MR. OSTBERG: Our answer, your Honour, is no. We are not absolutely

Page 29

1 certain when, how many and who will come. So, we have this outline

2 schedule, I think, already in your possession.


4 MR. OSTBERG: We cannot present something precisely.

5 THE PRESIDING JUDGE: Right, thank you, Prosecutor. I have a second

6 question. I thought I understood that you would ask for protective

7 measures for some of the witnesses.

8 MR. OSTBERG: Some of them have not definitely taken any standpoint to the

9 question of the need of protection. Until we know for certain, we

10 will not alert the protection unit, but we will have them informed

11 exactly what is happening.

12 THE PRESIDING JUDGE: Thank you. All right. Thank you, Prosecutor. So

13 without further delay could we possibly usher in the first witness,

14 Mr. Mark Harmon or ---

15 MR. OSTBERG: Mr. Bowers.

16 THE PRESIDING JUDGE: -- Mr. Bowers. Can you hear me?

17 MR. BOWERS: Yes, your Honour.

18 THE PRESIDING JUDGE: All right, I am looking at the clock. I suppose

19 that, yes, we resumed at 4 o'clock, I guess. Just to give you some

20 idea as to the duration of your examination, I suggest that we take a

21 short break at around half past 5. Then we will resume today at around

22 quarter to 6 until 7 o'clock today -- just for you to get organised on

23 the basis of this timetable which is rather exceptional and will apply

24 for today only. Prosecutor, you have the floor.

25 MR. BOWERS: That sounds fine, your Honour. The Prosecutor, your Honours,

Page 30

1 would call Professor Paul Garde to the stand, please.


3 MR. BOWERS: Your Honours, perhaps while we are waiting we have three

4 binders with exhibits that we can present to the court.

5 THE PRESIDING JUDGE: Professor, please be seated. You are going to be

6 given your headphones. Would you please rise and take your oath.

7 Usher, would you please hand out the declaration?

8 THE WITNESS [In translation]: I solemnly declare that I will tell the

9 truth, all the truth and nothing but the truth.

10 (The witness was sworn)

11 THE PRESIDING JUDGE: Thank you very much. Please be seated, Professor.

12 First, can you tell me if you can hear me? Can you hear the

13 Prosecutor? Can you hear the interpreter? Please let us know anyway.

14 Professor, you appear here as a witness called by the Prosecution and

15 you appear before the International Criminal Tribunal for the former

16 Yugoslavia. Prosecutor, you now have the floor.

17 MR. BOWERS: Thank you, your Honour.

18 Initially, we have separate binders for the court and we would

19 like to present those to the usher for presentation to the Judges.

20 These will contain all the exhibits that Professor Garde will refer to

21 during his testimony. For the sake of efficiency, we will not be

22 tendering any of these exhibits until the end of his testimony.

23 Examined by MR. BOWERS

24 Q. Professor Garde, would you please begin by stating your full name and

25 spelling it for the record?

Page 31

1 A. My name is Paul Garde, Paul, P-A-U-L, Garde, G-A-R-D-E.

2 Q. Professor, would you please tell the court briefly about academic

3 background?

4 A. Yes, I am a specialist in Slav linguistics. I am a Professor in

5 grammar in Russian I taught. I was a Professor of Slav literature and

6 languages at the University in Aix-en-Provence since 64 until 89 when

7 I retired. I also taught as a guest teacher in the States, at the

8 Yale -- at Columbia University and in Switzerland at the University of

9 Geneva.

10 I have published about 10 books concerning Slav linguistics

11 and, more recently, on issues concerning the former Yugoslavia and I

12 have also published about 150 articles on the same subject.

13 Q. Your Honours, Exhibit 1 that we have provided the court contains a

14 listing of the Professor's various writings for reference. Professor

15 Garde, would you tell the court when and how you first developed an

16 academic interest in the region of the former Yugoslavia, please?

17 A. Yes, it is difficult to differentiate the academic interest from my

18 own interest. I started visiting Yugoslavia back in 51 as a

19 specialist in Slav languages. Yugoslavia at the time was the only

20 Slav country that I could easily have access to. This is why from

21 that early date I kept returning to that country. Might I add that I

22 visited all the Yugoslav republics practically every single year for

23 the past 40 years. Of course, I took a special interest in Yugoslavia

24 from an academic point of view. As a specialist in Slav languages, I

25 of course dealt with, compared Slav languages and 1,000 Slav

Page 32

1 languages, and I wrote a certain number of articles concerning those

2 languages.

3 I have also participated in numerous conferences, seminars,

4 and at different republics of the former Yugoslavia. I was in contact

5 with the linguists from these republics. I also attended debates on

6 languages that took place at the time. More specifically, since '91,

7 since the outbreak of the war, so far my interest had focused

8 exclusively or essentially on linguistic problems, but since the war

9 started, since I wanted to look at the historical and political

10 problems of that country, I turned more to that sort of issues in the

11 past five years.

12 Q. Professor Garde, what are the languages spoken in the area of the

13 former Yugoslavia?

14 A. In the former Yugoslavia different languages are spoken. First, the

15 language that was called for a long time Serbo-Croat, now we call it,

16 or we distinguish between Serb, Croat and Bosnian; then you have

17 Slovene, Macedonian, which are also Slav languages and, of course,

18 many other languages are spoken, more specifically, Albanian,

19 Hungarian, which are not Slav languages and which are spoken by

20 different minorities.

21 Q. Professor, are you fluent in any of these languages?

22 A. Yes, I fluently speak and write Serbo-Croat in its different forms

23 and I read and I understand without any difficulty Macedonian, and I

24 have a bit more difficulty understanding Slovene.

25 Q. I assume you also have a working knowledge of the two alphabets used

Page 33

1 in the area?

2 A. Yes, yes, of course. Yes, of course -- no problems with the

3 alphabets.

4 Q. Would you just briefly describe for the court the two alphabets and

5 the regions in which they are used, please?

6 A. Well, the Cyrillic alphabet is used in Serbia and Macedonia; the

7 Latin alphabet is used in Slovenia -- sorry, in Serbia, Slovenia and

8 Montenegro, and the Latin alphabet is used in Croatia, in Slovenia and

9 in Bosnia-Herzegovina both alphabets are used with the predominance of

10 the Latin alphabet today.

11 Q. Thank you, Professor. Did you write a fairly major book concerning

12 the breakup and dissolution of Yugoslavia?

13 A. Yes, I wrote a book titled "Life and Death of Yugoslavia". This was

14 published in Paris, Fayard publishing house in '92, in which I briefly

15 presented a summary of the different countries that made up the former

16 Yugoslavia. Then I described these different countries and, finally,

17 I analysed the crisis which was the source of the outbreak of

18 Yugoslavia starting in '86 until

19 the date of the end of my book which was '92.

20 Q. Was there something that caused you to write this book or prompted

21 you to begin this task?

22 A. Yes, absolutely. I started writing this book in July '91 and I

23 finished it in March '92. So what prompted me to write this book is

24 more specifically at the time when the war started, it started from a

25 military point of view in June '91. Well, right afterwards I realised

Page 34

1 to what extent in France, at least, the public opinion, the media, and

2 even all leaders were totally ignorant of what was taking place in

3 this country. I was appalled to hear what was being said, what was

4 being written, at the time.

5 So, all of a sudden I realised that the experience of that

6 country that I had grown familiar with in the past 40 years, and I

7 naively thought that everybody shared the same experience, so I

8 realised all of a sudden that my experience could probably benefit

9 something to the public, that I could probably correct some mistakes

10 of judgments, some misunderstandings, by putting forth all the

11 different facts. I thought it was, sort of, like a duty on my part to

12 inform the public, and this is why I started writing this book which I

13 completed in a couple of months or in a few months.

14 Q. Professor Garde, what type of research did you do in connection with

15 writing this book?

16 A. In order to write this book, on the one hand, I collected material, I

17 read everything I could possibly find on the history of that country

18 and, furthermore, also carried out some interviews with people from

19 the former Republics of Yugoslavia that lived in France. I also

20 reviewed all the press. I read a great number of magazines, of

21 papers, coming from the different Yugoslav republics from the year

22 1991/92, and that review of the press coming from the various

23 republics of Yugoslavia contributed a lot of material which made it

24 possible to write this book.

25 Q. Is it fair to say that for the past five years, at least, you have

Page 35

1 been devoting most of your efforts to studying, writing and lecturing

2 on the changing situations in the former Yugoslavia?

3 A. Yes, yes, that is absolutely right. For the past five years I have

4 practically done nothing else but to try to collect material on this

5 issue, of course, while I was writing the book, but also in the

6 following years I have continued collecting material, I have continued

7 reading, reviewing the press, talking with people, travelling over

8 there and I have tried to convey my findings to the public through

9 writing articles, lecturing and so on and so forth.

10 Q. Have you had an occasion to advise the French government?

11 A. Yes, that happened to me but only on an occasional basis. I was asked

12 twice to produce reports for CAP, which is the centre of forecast and

13 analysis of the French Foreign Ministry. I submitted my report in

14 January '93 on Serb nationalism. In September of the same year, I

15 produced a same report on the Croat nationalism. Then I was also

16 invited for consultation by various Ministers, once in December '92 by

17 George Kiejman who at the time was Deputy Minister for Foreign Affairs

18 in the Beregovoy government, and later on in the spring of '95 I was

19 invited by Francois Leotard, then Defence Minister in the Balladur

20 government. I also was invited by President Chirac but in the company

21 of 10 other people.

22 Q. Professor Garde, what did you do in preparation for your testimony

23 today?

24 A. To prepare my testimony of today, I came twice to The Hague. I had

25 interviews with the representative of the Prosecution, and I looked at

Page 36

1 the various materials that were handed out to me by them.

2 Q. At this point, for the court's benefit and our benefit, would you

3 begin your substantive testimony with just a brief historical review

4 of some of the key events in the geographical region that is known as

5 the former Yugoslavia?

6 A. Well, in the former Yugoslavia, in the western part of the Balkans,

7 you have different peoples living there that speak the same language

8 or similar languages, the southern Slavic languages, and you have

9 peoples who for a long time have belonged to different cultural areas.

10 You have the Serbs and Macedonians that belonged to western

11 Christianity or orthodoxy, then you have the Croats that belong to

12 western Christianity, to Catholicism. So, basically, you have

13 different cultural backgrounds and you have sociological different

14 habits, as it were.

15 Back in the Middle Ages at different times you had Serb

16 states, you had Croat states, you had Bosnian states, at different

17 times, and on different areas, covering different areas, and in modern

18 times, as applied to the rest of the Balkans, you had the Ottoman

19 Empire and the regions in the north west were excluded from the

20 Ottoman Empire and belonged to the Habsburg Empire. The Ottoman

21 Empire and the Turk conquest meant that you had a third religion that

22 came into play and a third type of sociological background, which is

23 Islam and which a large portion of the inhabitants of Bosnia converted

24 to Islam. The ancestors of the present Muslims and the people from the

25 Albania converted to Islam, so that is a third religion.

Page 37

1 This meant that there were major migrations, moves of

2 populations, which explained the mix up of populations today. All

3 these different peoples back in the 19th century have realised that

4 they belonged to a nation. This is the time of nationalism, of this

5 nation awareness, of what is called national "renaissance". These

6 peoples tried to get their independence and those that were under the

7 Ottoman Empire wanted to become independent through armed actions,

8 rights.

9 This was the case of Serbia which was the first to organise a

10 sort of uprising. The State got organised at the beginning of the

11 19th century in the former Austrian part. On the contrary, this

12 national awakening was more based on cultural and political, because

13 they had a political struggle within the Habsburg Empire, and at the

14 time you had the different ways of thinking in terms of the future of

15 these countries.

16 You had also had national movements, and the first one was the

17 Serb national movement. In the constitution of Greater Serbia, that

18 was a State that would gather all Serbs. You also had a Croat

19 national tendency in other regions as well. At the same time you had

20 another trend that surfaced amongst the southern Serbs that were under

21 Austrian authority which is called the Yugoslav Movement.

22 The Yugoslav Movement meant the idea that since all these

23 peoples are neighbours and speak about the same language, the southern

24 Slavic languages, why could they not in one way or another get

25 together? One of the main samples or spokesmen of this idea was a

Page 38

1 Bishop Josip Strossmayer.

2 All these movements grew or developed in parallel in the

3 course of the 19th century. In 1918, at the end of the First World

4 War, a State was created, a common State, which later was called

5 Yugoslavia. But that State was founded on a misunderstanding right

6 from the start, because in the eyes of the Serbs, who were the

7 founding fathers of that State, the Serbs who had won the First World

8 War along with the allies, but at the cost of enormous sacrifices, so

9 for them the State was sort of the crowning of their victory, but for

10 them that State was the realisation of their product of a Greater

11 Serbia. The main advantage is that all Serbs would belong to one

12 single State.

13 For the other peoples, on the contrary, the main advantage of

14 that State was understood as reuniting together on an equal footing

15 several different peoples. That misunderstanding or this different

16 interpretation has never stopped influencing the development of events

17 and, undoubtedly, it still plays a role to explain the present events.

18 These two interpretations, the first one being that the state

19 of Yugoslavia as being understood as the realisation of the Greater

20 Serbia project is the interpretation of the Yugoslav monarchy between

21 1918 and 1941. That monarchy, the king was Serb, the political

22 leaders were Serb and the Serbs considered it as a continuation of

23 their State, and the other peoples considered it as an oppressive

24 force.

25 Now, the second interpretation, i.e. Yugoslavia as reuniting

Page 39

1 several peoples on equal footings, was essentially the interpretation

2 of the second Yugoslavia, that of Tito, between '49 and '91. In

3 between, between the two, you had of course the Second World Ward.

4 The Second World War which is, of course, a very dark period, a time

5 of horror where we saw the immediate defeat and the breaking up of

6 Yugoslavia with collaborating fascist State established on the

7 territory of Croatia; a time when we saw a collaborating government in

8 the territory of Serbia with terrible massacres and genocide of Serbs

9 in Croatia and Bosnia by the fascist Ustasha state in Croatia; but at

10 the same time we had Muslim massacres and Croat massacres by Serb

11 Chetniks. We also saw another resistance movement outside the Chetnik

12 set of the partisans, the communist partisans, under the leadership of

13 Tito who officially was a pluri-ethnic, was supposed to gather all the

14 peoples, and this is possibly the main reason for his victory.

15 So, but, of course, naturally, this time of horrors has left

16 an impact in the later period, and so it is remembering, the fact that

17 they remember these terrible massacres, these reciprocal massacres,

18 and this still has an influence today.

19 The Tito regime was first founded in principle on a refusal or

20 a rejection of what had been the principal state of the preceding

21 monarchy, that is, a rejection of the domination by one people over

22 the others. As a result, the Yugoslavia under Tito was officially

23 created as a federation, a federation of several republics which were

24 autonomous, each one representing and corresponding more or less

25 perfectly, but in fact imperfectly, to the different peoples

Page 40

1 constituting them; and that Tito Yugoslavia was founded on the federal

2 principle, therefore, on decentralisation with the autonomy of the

3 various provinces and republics, and the autonomy became increasingly

4 real as the regime became entrenched.

5 For example, the constitution of 1974 granted much more

6 extensive jurisdiction and competence of regions of each of the

7 provinces and republics, so that one was moving in that constitution

8 of 1974, moving toward an almost confederate system, but at the same

9 time it was not a truly autonomy of the various peoples because the

10 regime was after all a communist one, a dictatorial regime, even

11 though it was much less stringent than that of the other communist

12 countries all around it.

13 Therefore, despite everything, the regime controlled the

14 power, and the autonomy that was given to the various provinces and to

15 the republics was really, in fact, the autonomy of the leaders in each

16 of those republics rather than the peoples, although democracy, of

17 course, did play a certain role in the events which were to follow.

18 Whatever the case, this movement toward a greater degree of

19 decentralisation to greater autonomy among the provinces and the

20 republics was, of course, interpreted differently by the different

21 peoples; because each new step taken towards decentralization was

22 welcomed by the different peoples, except the Serbs who wished a

23 greater centralised position and were not particularly pleased with

24 the increasing decentralisation because the Serbs found themselves

25 distributed among several of the provinces of the republics, that is

Page 41

1 all except one, and wanted there to be greater connections between

2 these different provinces. They wanted a centralised state and that

3 the other people, on the other hand, wanted a very stronger

4 decentralised state.

5 All of these conflicting elements burst out later on during

6 the 1980s once Tito had died.

7 Q. Thank you, Professor Garde. Your Honours, given the limited time and

8 scope of this particular hearing, we have obviously presented a very

9 condensed view of the initial historical background of this particular

10 conflict, but we would pause at this point; if there are any specific

11 questions that the court would like to ask Professor Garde with regard

12 to the general historical back drop that he has just presented to the

13 court.

14 THE PRESIDING JUDGE: I will consult with my colleagues, Mr. Bowers.

15 We did not have to speak very long, but we just wonder whether

16 it might be better to ask questions at the very end of Professor

17 Garde's presentation or whether there might be another way of

18 organising the testimony to ask questions. I think that, in fact, we

19 will ask a few questions. I think Judge Riad has a few questions he

20 wants to ask. Would you like to ask your question now, Judge Riad?

21 JUDGE RIAD [In translation]: Professor Garde, my question may anticipate

22 a bit what you are going to say later on, but since you have already

23 spoken about the idea of Greater Serbia, I would be very interested in

24 knowing how this idea developed through the current conflict and who

25 were those who were the champions of that idea and what was the origin

Page 42












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13 English transcripts. Pages 42 to 72.













Page 73

1 of it, because apparently during Tito's days the idea had disappeared

2 during that second phase, which you said was rather one of coexistence

3 among the various communities. So, how was this idea able to come

4 about again and to whom do we owe, or to what do we owe, this

5 renaissance? Who were those who encouraged it and who carried it out?

6 A. One cannot say that this is an idea that disappeared. This is an

7 idea which had been very powerful during the 19th century and during

8 the first half of the 20th century. The idea was under Tito's

9 authority something which was not allowed, one was not to express it,

10 but it expressed itself, nonetheless, in the Serbian press outside the

11 country. For example, in the United States or in Australia and other

12 countries as well, where there were Serbian newspapers which expressed

13 very openly that idea.

14 The Serbs, in fact, were not the only ones; there were also

15 an overseas Croatian press which expressed nationalistic thoughts as

16 well. So the idea was partially kept by those who were no longer

17 living in the country and also present all the time in Serbia itself,

18 even though it was not expressed, at least in the beginning, and in

19 any case, under the Tito regime, since it was understood that the

20 nationalist tendencies in the various republics continued to exist,

21 the government in principle condemned them, officially condemned them,

22 in the name of a doctrine known as unity and fraternity. But,

23 simultaneously, they had a role to play and used them because the

24 regime played with the different nationalist aspirations, pitting one

25 against the other. It would in certain regions favour one people at

Page 74

1 the expense of another.

2 Direct expression of these aspirations under the most brutal

3 forms was smothered, but the indirect expression of those ideas

4 through literature or through various concrete demands sometimes could

5 appear. During the first half of the government's existence, the

6 Ministry of the Interior was the person who was the most powerful in

7 the police was himself a Serb -- this was the period when the regime

8 was extremely centralised -- and this is the person who became

9 actually the person who was involved, who repressed the Albanians and

10 advocated that repression.

11 We can, therefore, see that these nationalistic tendencies

12 always existed, and that at one point they were expressed more openly.

13 For example, at the end of the 1970s with Dobrica Cosic who later on

14 in 1992 was the President of the new Yugoslavia who had, in fact,

15 expressed various theses which earned him being removed from power or

16 being removed from the good graces of the government.

17 But, in principle, at that point it was not -- so long as the

18 Yugoslav Federation was still in existence, it was not a question of

19 demands for modifying or changing the borders of Yugoslavia, because

20 they were borders which were satisfactory to the Serbs, but had to do,

21 rather, with demands for this or that point, having to do with

22 relations among the different nations within each of the republics.

23 These trends became more clear once Tito had died, that is,

24 during the 1980s which is when they began to be manifest; for example,

25 having to do with the events of Kosovo where there was a conflict

Page 75

1 between the Serbs and the Albanians when even the official press

2 condemned the position of the Albanians and took the position which

3 was very much in favour of the Serbs.

4 The same thing held in literature at that time when we see

5 appearing or, at least, begin seeing again people who are presenting

6 things from the point of view of Serbian nationalism, for example,

7 with the novel which was written by Vuk Draskovic called "The Knife",

8 which appeared in 1982 and I remember that very well.

9 So the nationalist Serbian tendencies became more and more

10 strong during that time, but so long as the Federal State existed, the

11 problem did not really arise as having to do with the creation of

12 Serbia because the Federal State, so long as its practices and

13 constitution was directed in a certain sense, the government could, in

14 fact, become the realisation itself of Greater Serbia. Therefore, the

15 very term "Greater Serbia" really is not correctly used for that

16 period, and the concept of the Greater Serbia did not have to be used

17 and should not be used.

18 But these nationalist Serbian tendencies became more and more

19 clear throughout the 1980s and become particularly distinct in the

20 memorandum of the Academy of Sciences which was drafted at the end of

21 1986.

22 Q. When we talk about politics and the leadership, can this concept be

23 attributed to a certain faction or to specific individuals?

24 A. We can attribute it to a whole range of people. It was a project

25 which was floating in the air at the time all through the 1980s, that

Page 76

1 this idea of reforming Yugoslavia in order to turn it into something,

2 to be more of a centralised state, the idea which we find in this

3 memorandum of the Academy of Sciences which I have just mentioned is

4 the following:

5 This attempt at decentralisation first led to economic

6 disaster and then meant that the Serbs were divided among various more

7 ever increasing autonomous entities, and that they felt that they had

8 been oppressed and that they had to arise by creating a centralised

9 state. So the idea was already floating in the air.

10 It was promoted by various politicians, by people working in

11 universities, those who wanted to become the leaders of the political

12 parties later on, that is, people like Draskovic, who later on would

13 found the Serbian Renewal Movement, or Seselj, who later would set up

14 the Radical Party, those who would later on set up the Democratic

15 Party; that is, it was also propagated more insidiously by the

16 official press.

17 The great event, the great change, takes place in 1986/86 when

18 all of a sudden these ideas, which to this point had more or less been

19 fought by the regime who considered them as really being dangerous,

20 suddenly there was a communist leader in Serbia, a new leader, who

21 adopted them. This was Milan Milosevic who came to power in 1986 and

22 affirmed his power once again in '87.

23 From that point on, these ideas, which up to that point had

24 been propagated more or less by various people, suddenly were taken up

25 again by the power, the power of Serbia. They were no longer

Page 77

1 considered, whereas up to this point they had been fought against, but

2 from this point on, on the contrary, they were encouraged at the

3 highest places. This is how things happened more or less. I am not

4 sure that I have answered your question.

5 Q. Yes. You answered them very, very well. But did these ideas

6 correspond to any kind of a concrete reality on the ground having to

7 do with the way the communities were distributed, but was this kind of

8 instead an expansionist idea?

9 A. So long as Yugoslavia existed as a Federal State, the purpose of the

10 Serbian nationalists was merely to strengthen the State, to reinforce

11 the centralisation within that State, to reinforce the federal power

12 against the various entities, because the federal power conceived in

13 that way could become the instrument of Serb domination on the rest.

14 At that point, there were no territorial demands. There was no

15 reason to have any because it would have been sufficient for the power

16 at the federal level to become once again stronger and more

17 centralising for the objectives of the Serb nationalists to be

18 achieved. It was only gradually, in fact, that this ideal moved away

19 and that, on the other hand, the central power became less central and

20 that the provinces acquired more autonomy.

21 At that point, the idea begins to be born, that perhaps it

22 would be better to come to an accommodation with the fact that there

23 are borders between the republics and, therefore, attempt to shift the

24 borders, at which point the idea begins to come about that a

25 redistribution of the territory would become necessary.

Page 78

1 JUDGE RIAD: Thank you, sir.

2 THE PRESIDING JUDGE: Perhaps there are some other questions, Mr. Bowers,

3 but, of course, since we do not know all the things that you are going

4 to say or the structure of what you have prepared or what Mr. Garde

5 has prepared, myself along with my colleagues would prefer that you

6 continue as you are going and, if necessary, we might go back to ask

7 some questions, but for the time being we think it might be best for

8 you continue. I give the floor back to you.

9 MR. BOWERS: I want to give the court some opportunity, if there were some

10 pressing questions that were generated from the initial overview.

11 Professor Garde, after World War II, the country became the Socialist

12 Federative Republic of Yugoslavia, correct?

13 A. Yes.

14 MR. BOWERS: Your Honours, at this time we would like to have Exhibit 2

15 displayed -- it is R1-5 -- and is a map of the Federative Yugoslavia.

16 This would be Exhibit 2 in your binders. We have it on the computer

17 screen now.

18 Professor Garde, would you just use the map and describe the

19 basic political structure of the Federative Republic between the end

20 of World War II and the death of Tito, pointing out the different

21 political components that are shown on the map, please?

22 A. This Federal Socialist Republic of Yugoslavia was composed of six

23 republics, that is, in the north west there was Slovenia, then

24 Croatia, Bosnia and Herzegovina, Montenegro, Macedonia and Serbia.

25 The Republic of Serbia, which is the largest with the largest

Page 79

1 population, within it had two autonomous provinces, that is, in the

2 north it was Vojvodina and in the south was Kosovo.

3 The raison d'etre for this division along borders, which in

4 most cases represented the historic borders and where there was a

5 presence of various types of people, of which the constitution

6 officially recognised since the beginning that there were five people

7 of the southern Slavs, and then later on after '68 there was a sixth

8 which was the Bosnian, the Muslim Bosnians and, therefore, there were

9 six peoples for which six republics corresponded. There were the

10 Croats, the Slovenes, the Muslim Bosnians, the Montenegrins, the

11 Macedonians and the Serbs.

12 However, since we are talking about historic borders which did

13 not correspond to the ethnic borders -- in fact, there really were no

14 ethnic borders because it was impossible to draw the lines according

15 to ethnic lines; they were such a mixture of peoples -- in some of the

16 republics one noted that there was a presence not of one but several

17 people making it up. Therefore, in Macedonian, Serbia was supposed to

18 have only one nation making it up, one people making it up, Croatia

19 had two, that is, the Croats and the Serbs, since there were 12 per

20 cent Serb population, according to the 1991 population of

21 Bosnia-Herzegovina, where there were three peoples, that is, the

22 Muslim Bosnians, the Serbs and the Croats who in 1991 were 44 per

23 cent, 31 per cent and 18 per cent.

24 In addition, outside those people who made up the southern

25 Slavs, there were other populations as well that were called either

Page 80

1 the minorities or nationalities. In any case, these were peoples who

2 lived in the territory of Yugoslavia but who were not part of the

3 southern Slavs and most of whom corresponded to a state which existed

4 out of Yugoslavia.

5 The two major minorities were the Albanians, represented by 2

6 million and the Hungarians either 300,000 or 400,000. This is why, as

7 far as Serbia was concerned, there were two autonomous provinces

8 created; in the southern part, Kosovo, because the population there

9 was a majority Albanian, and then in Vojvodina because next to the

10 Serbian population, which in 1991 represented 54 per cent, I believe,

11 there were several other, a large number of minorities, in fact,

12 mostly Hungarians who were the largest, but there were Rumanians,

13 there were Slovaks. That is two regions where minorities that were

14 very significant existed.

15 One of the peculiarities of the constitution under Tito of the

16 various constitutions which followed one after the another during the

17 regime was the fact that while they proclaimed that there was equality

18 among the various nationalities, it maintained the distinction between

19 the peoples, on the one hand, and the nationalities and minorities on

20 the other. There was a kind of hierarchy and at the same time this

21 hierarchy between the republics which corresponded to the peoples and

22 the autonomous provinces which corresponded to the minorities.

23 The status of the autonomous provinces, well, I believe that

24 this hierarchy was maintained despite the theoretical principle of

25 equality. This was one of the difficulties of the regime and which

Page 81

1 was reflected also in the existence of a disparity between the idea of

2 autonomous provinces and republics. There was a constitutional

3 contradiction in the 1974 constitution. At the same time it was

4 stated that Kosovo and Vojvodina were part of the Republic of Serbia,

5 but simultaneously it is said, well, one reads, that Kosovo and

6 Vojvodina had the same, just as the other ones are parts of the

7 Republic.

8 So this puts everything together and separates everything

9 which corresponds to the difficulty and to the conflict which existed

10 between the Serbs, on the one hand, and the minorities who were living

11 in Serbian territory on the other and then between the Serbs and the

12 Albanians.

13 So this is what the structure was and within the structure, as

14 the regime evolved, the republics became more and more autonomous, but

15 the autonomous provinces also became increasingly autonomous. From

16 '74, they were on the same footing as the republics, which was a

17 source of a great deal of dissatisfaction among the Serbs.

18 I would like to add as well that when I said that the

19 republics corresponded to this or that, people, does that mean that

20 any of these republics were really homogeneous, because all of the

21 provinces, all of the republics, had a mixed population of different

22 proportions. I will not give you the details here, but the ethnic

23 composition of each of the regions was extremely complex.

24 THE PRESIDING JUDGE: Fine. Thank you. Before you arrived, we had

25 provided for a recess so that you could catch your breathe. Now would

Page 82

1 be an appropriate time, it is 5.30, and we shall resume in 15 minutes

2 at quarter to six.

3 (5.30 p.m.)

4 (Adjourned for a short time)

5 THE PRESIDING JUDGE: Prosecuting counsel, we have given a bad example

6 here. We have taken a little longer, we, Judges, but we will try to

7 catch up on that in our further discussions, so you have the floor.

8 We are looking forward to hearing more from Professor Garde.

9 MR. BOWERS: Thank you, your Honours. Professor Garde, when we just

10 before the break you had mentioned ----

11 THE PRESIDING JUDGE: The microphone, please, sir.

12 MR. BOWERS: Professor Garde, before the break you had been discussing the

13 concept of peoples as a nation under the Yugoslav concept. I think it

14 would be helpful if you could just describe for the court the

15 significance of this nation status as a people for the citizens of

16 Yugoslavia and how they viewed it?

17 A. Yes, in that part of Europe the state emerged after the nation in

18 western Europe, the modern state is of an old phenomenon, as it were,

19 and the nation emerged subsequently. For example, come the 18th

20 century with the French Revolution, people belonging to a same state

21 realised that they were part of a community which is the nation. So,

22 belonging to a nation, for example, be it French or British, is the

23 same thing as belonging to the state. So it is one and the same

24 thing, belonging to the state or belonging to the nation. But in

25 central and eastern Europe, on the other hand, the nation, the concept

Page 83

1 of nation, appeared also after the French Revolution in the 18th

2 century and these nations did not have a state.

3 "Nation" is considered to be a group of people sharing a

4 common culture, a number of cultural characteristics, and these

5 cultural characteristics are something that remain with them

6 regardless of the state they belong to. This is why in this part of

7 Europe it is impossible really for the limits or borders between

8 states to coincide with the limits or borders between nations; whereas

9 in western Europe they are one and the same thing, as it were.

10 So in the eastern parts of Europe belonging to a nation, to

11 one nation or another, is something which an individual feels as being

12 something that belongs to him, just as does the language he speaks or

13 the religion he belongs to, and that is something that is over and

14 beyond politics.

15 So Yugoslavia from the outset was a multinational state, that

16 is, the state in which there were several nations, in which people

17 considered themselves to be, for instance, Serbian or Croatian or

18 Slovenian, or Muslim Bosnians or Albanian, irrespective of the fact

19 that they belonged to Yugoslavia. Legally even, the nationality and

20 the citizenship were distinct concepts under Yugoslav law, and they

21 were distinct concept under Soviet law. They have remained distinct

22 concepts in the legislation of the republics that now make up the

23 former Yugoslavia. For example, a citizen of Croatia still today can

24 have Croat citizenship and at the same time have Serbian or Italian or

25 Hungarian nationality, and the same goes for Serbia.

Page 84

1 "Citizenship" means belonging to the state but "nationality"

2 is a characteristic, it is an intrinsic part of the individual, and

3 the citizens of the former Yugoslavia (and this still holds true today

4 for the republics) had (and still have) this particular awareness that

5 they regard themselves as belonging to such and such a nation.

6 Now, this feeling may be or not be significant in their

7 hearts, but it is something that does exist. By the same token, it is

8 the people around them who regard them as belonging to such and such

9 a nation as well. When you are talking about multi-ethnic areas where

10 you have different nationalities living together, for example, in

11 Bosnia-Herzegovina, the people themselves were aware of being this and

12 that and that their neighbours were this or that, which for quite

13 sometime, so long as the political senses were favourable, did not in

14 any way hinder them from getting along fine and living side by side,

15 marrying one another, et cetera, but the awareness of belonging to one

16 group or another was something that was there. Once the political

17 circumstances changed and they became unfavourable, once these

18 differences were consciously exploited to give rise to conflict, well,

19 that conflict was one that could be easily stirred.

20 I do not know if I have answered your answer?

21 Q. Yes, Professor Garde, thank you. You also explained to the court

22 that it would be almost impossible to have corresponding political

23 borders to the concept of the nation as a people. But, in fact, in the

24 Yugoslavia as it developed after World War II there were at least five

25 nations where there was somewhat of a correspondence between the

Page 85

1 concept of nation as a people and the republic as it was drawn

2 politically. Could you just review that again, briefly?

3 A. Yes. There was an overall correspondence, that is, there were as

4 many nations as republics, and once the Muslim Bosnians were

5 recognised as a nation, there were as many nations as republics -- six

6 republics, six nations -- but that is not to say that all the

7 inhabitants of the Republic belonged to the nation in question.

8 As I already said earlier, in all of the Republics, with the

9 exception perhaps of Slovenia, the population was very mixed indeed.

10 With the exception of Slovenia, there was no Republic in which the

11 dominating nation accounted for more than, let me see, six, 72 per

12 cent of the population, I think -- figures along those lines. So in

13 no case did the dominating population account for three-quarters of

14 the population in Bosnia. It amounted solely to two-fifths, that is

15 say, the Muslims accounted for only two-fifths of the population

16 there.

17 So there was no case where there was a full correspondence

18 between the nation and the Republic, just as in the Balkans as a whole

19 there is not any place where there is a full coincidence between

20 states and nationalities. There are minorities everywhere. What does

21 that mean? A minority is a group of people in respect of which

22 citizenship and nationality are two different things. So when you

23 have Greeks from Albania, Turks from Bulgaria, Hungarians from

24 Rumania, etc., you are talking about minorities; that is to say, that

25 people, their definition of themselves as a nation is different from

Page 86

1 what they regarded as the state they belonged to.

2 So, in short, this coincidence, as I said, in western Europe

3 is one that goes without saying for historical reasons. In the Balkans

4 and Eastern Europe in general, it is one that you simply cannot bring

5 about except via violence. Now, that violence can be deportation, it

6 can be massacres, it can be ethnic cleansing. If one wants, well, the

7 Utopia whereby there would be coincidence between borders, the borders

8 of the state, and the borders, the ethnic borders, that was the Utopia

9 of the Treaty of Versailles, that was the very principal behind it in

10 1918. That treaty, of course, was one that could not be implemented.

11 So there were minorities everywhere subsequently, and that was also

12 what underlay Hitler's position of Europe in 1941. It was the same

13 idea of carving up along ethnic lines, and it was done under Hitler in

14 the southern Balkans, but there again at the price of massacres.

15 That is also the Utopia that is taking place before us, that

16 is to say, to want the political, i.e. state borders to coincide with

17 the ethnic borders, that is to say, the borders of the nationalities,

18 that, and to want to not be any minorities, for all of the people of a

19 given nation to be in the same state and that there be no minorities,

20 that is an Utopia and the only way you can work towards that is with

21 violence, with dreadful violence.

22 Q. Professor Garde, were there some nations, peoples, that viewed a

23 particular republic as their primary political entity, for example,

24 the Slovenes in Slovenia, Macedonia, that sort of situation?

25 A. Yes, that was the case everywhere, because there were as many

Page 87

1 republics as there were nations. So, in each of the republics there

2 was a main people which considered themselves to be at home, that it

3 was their Republic. But, as I said, in Croatia officially there were

4 two constituent nations, in Bosnia there were officials three peoples

5 making up the state.

6 Q. Regarding the Republic of Bosnia and Herzegovina, in particular,

7 could you again just tell the court what its approximate ethnic

8 composition was after World War II?

9 A. I do not recall offhand the figures of the first census of 1948 just

10 after the Second World War, but with regard to the last census, that

11 is, the one of 1991, the Muslim Bosnians -- I do refer to them in

12 French as "Muslim Bosnians" so that things are perfectly clear because

13 officially under the Tito regime they were called "Muslims". Today in

14 Bosnia and Herzegovina they are referred to as "Bosnians",

15 "Bosnjaci". So that things are perfectly clear I use these two things

16 side by side, so we are talking about Muslim Bosnians, so that makes

17 it perfectly clear. I am sorry for that aside, as it were.

18 But the Muslim Bosnia's accounted for 44 per cent, the Serbs

19 were 31 per cent and the Croats were, I think, it is 17 or 18 per

20 cent. It is also worth mentioning that the distribution was highly

21 complicated, and one of the particularities was that the Serbs were in

22 the north, north west, that is, far from Serbia, and the Muslim

23 Bosnians were particularly numerous in the east, that is to say, right

24 next to Serbia there.

25 Q. Professor Garde, would it be fair to say that the Republic of Bosnia

Page 88

1 and Herzegovina was the most ethnically diverse of the republics in

2 the former Yugoslavia?

3 A. Yes, certainly, because that was the only one in which no nation had

4 the absolute majority, that is to say, 44 per cent was the top figure.

5 At the same time, it was the most uniform one in language terms

6 because all these people speak the same language.

7 Q. Based on your studies, why would you say that Bosnia and Herzegovina

8 ended up being the most ethnically diverse Republic in the former

9 Yugoslavia?

10 A. Well, because precisely in the course of history on the Balkans in

11 the 18th and 19th centuries, there had only been phenomena of ethnic

12 cleansing which at the outset, religion based, I would say. In the

13 18th century, a large part of present day Croatia was under Ottoman

14 rule and was retaken by the Austrians. In the course of that

15 reconquest, the Austrians drove out all the Muslims. So that in

16 Croatia there are no Muslims. There are traces of a mosque in some

17 places, however.

18 By the same token, in 1971, Serbia and Montenegro, just as

19 Greece did, won their independence well at each stage of their

20 reconquest. They drove out the Muslims. So there were no Muslims

21 left in the regions which in Serbia or Montenegro or Greece were parts

22 of those countries just before the time of World War I.

23 Now, the regions in question were rather homogeneous in ethnic

24 terms. Bosnia was not subject to any of these phenomena because it

25 remained under Ottoman rule until 1878. The Ottoman Empire was

Page 89

1 repressive but tolerant at the same time, so all religions could be

2 exercised and all groups would tolerate it.

3 Subsequently, between 1878 and 1918, Bosnia and Herzegovina

4 was a part of the Austro-Hungarian Empire, but at that time that

5 Empire no longer carried out ethnic cleansing. So the diversity

6 remained intact. It was even protected to a certain extent by the

7 Austro-Hungarian Empire that made the most of the diversity of the

8 populations.

9 After that, Bosnia was part of Yugoslavia and Yugoslavia also

10 respected this ethnic diversity, but there again, as under the

11 Austrians, there were Muslims who left for Turkey, but there was still

12 a large number of them who remained.

13 So Bosnia, just like Macedonia or a number of other regions,

14 was a country that was fortunate in that it was not subject to the

15 ethnic cleansing or the religious persecution against Muslims which

16 took place in the 18th and 19th centuries. This is why up to 1992 it

17 still had its ethnic diversity and religious diversity intact.

18 Unfortunately, we know what happened.

19 Q. Professor Garde, do you have some knowledge as to how the different

20 ethnic groups in Bosnia and Herzegovina interacted before the outbreak

21 of this conflict?

22 A. Well, before the conflict broke out the various ethnic groups lived

23 together. Of course, in history there have been moments of antagonism

24 and struggle and particularly during the Second World War, but during

25 the 45 years that the Tito regime lasted the various groups lived

Page 90

1 together. They lived together particularly in the cities because,

2 generally speaking, each village was homogenous. Each hamlet, each

3 small village, was homogenous and was usually inhabited by people of

4 one and the same group. But cities, even smaller cities, were mixed

5 and people would encounter one another there and people would develop

6 good relations. The older generation, having good relations did not

7 mean that people forgot which community their neighbours belonged to,

8 but these communities got along fine. They helped one another out, and

9 they would go to the events scheduled by or hosted by one side or the

10 other. There were a lot of mixed marriages, for instance. There are

11 not any statistics as to the percentage nowadays of Bosnian stemming

12 from mixed marriages, but I can assure you that the figure is quite

13 high indeed.

14 So, there was this living together. People were used to it.

15 Social events would be attended in the cities by all the various

16 groups and people got along fine. That is not to say that people were

17 not aware that they belonged to such and such a group.

18 Q. Thank you. Professor Garde, you mention the difference between

19 homogenous hamlets in the rural areas and then the urban mixing. In

20 that regard, we would like to have Exhibit 3 shown at this time,

21 please? If we could have the overhead projector turned on, please?

22 Thank you. Professor Garde, would you describe how you

23 prepared this chart and describe its significance to the court,

24 please?

25 A. Yes, I prepared this on the basis of the 1991 census. It has to do

Page 91

1 with the opstinas. It would be "commune" or "municipality" would be

2 the literal translation. It is about 500 square kilometres, so it is

3 a rather sizeable chunk of land you are talking about. Now, each of

4 these opstina in Bosnia and Herzegovina, I think there are 101

5 opstina, municipalities, so this table shows only 19 of them. These

6 are those where the majority of the territory of the opstina is not

7 the same as the majority of the largest town in the opstina.

8 So in the left-hand -- in the middle column you have the

9 majority of the opstina, on the right the majority of the main town.

10 With regard to these 19 opstina where there is a difference between

11 the opstina and the main town, you can see that in most instances, in

12 14 of them, 14 out of 19 of them, the main town has a Muslim majority;

13 whereas the territory, as a whole, has either a Serbian majority, just

14 true in eight cases or Croatian which holds for six cases. That is

15 not always the case. There are three cases in which the town is Serb,

16 has a Serb majority; whereas the opstina, i.e. the surrounding

17 territory, has a Muslim majority. But that those cases are the

18 exceptions. Usually, it is the main town that has a Muslim majority;

19 whereas the surrounding countryside of the territory as a whole has

20 either a Serb or a Croat majority. So just to say that, roughly

21 speaking, there was a higher concentration of Muslims in the cities

22 than in the countryside. Of course, there are exceptions. It is not

23 a hard and fast rule. This table does not show the other 80 odd

24 municipalities where the majorities are the same, both for the

25 countryside and the main town. One could go into this in more detail,

Page 92

1 but just to say that the Muslims tended to aggregate in the cities;

2 whereas the Croats and the Serbs tended to be more numerous outside

3 the cities. There are historical grounds for this because during the

4 four centuries of Ottoman rule the Muslims were the ruling class, and

5 so there were more of them in the cities; whereas the Serbs and the

6 Croats were peasants and lived in the countryside.

7 Q. Are you aware of the accused Radovan Karadzic making any statement

8 with regard to this tension between the urban and the rural?

9 A. Yes, I read an interview given by Radovan Karadzic to the Serbian

10 Weekly on 11th December 1992 in which he says roughly the following:

11 "So far, the Turks used to be in the cities and we were in the woods,

12 and now it is the other way around; we are in the cities and it is the

13 Turks who are in the woods, in the forests, and thanks to that,

14 general h'iver -- general winter is going to be the enemy of our

15 enemy". As I said, that was said in December 1992 just at the time

16 when the first winter of the war was starting.

17 Q. At this point we would like to change our direction a little and

18 trace some of the events that led up to the actual dissolution of

19 Yugoslavia. So, Professor Garde, if you could please begin by talking

20 a little bit about how Tito handled the different ethnic groups and

21 the occasional outburst of nationalism under his regime?

22 A. Well, Tito, the partisan General during the war, during the

23 resistance, based itself on all of the nationalities, that is to say,

24 for example, the Chetniks were strictly Serbian and treated the other

25 nationalities as enemies. The partisans, for their part, welcomed

Page 93

1 everyone, all the nationalities, and that is why the Serbs who escaped

2 from the Ustasha massacres could join in, and also those fleeing the

3 massacres on the Chetnik side could join in, and Croats who were

4 unhappy with the Ustasha regime could join the partisans as well. So

5 everyone was welcome. That was the underlying idea which was in line

6 with communist internationalism, that is, that there was a brotherhood

7 and unity, that is to say, all peoples have equal rights and all

8 peoples have the same place within the Federation.

9 So the various nationalities, nationalisms were condemned, but

10 at the same time the regime did exploit nationalism. For instance,

11 one of the main dangers Tito saw was that there would be Serb

12 predomination, as had been the case under the monarchy, because the

13 Serbs were the most numerous. They accounted for 36 per cent of the

14 population. So Tito at first encouraged the consciousness of the

15 smaller countries, Macedonia, others, where it previously had been

16 regarded as Serbs or Croats in some cases, so he wanted to increase

17 the number of partners.

18 After that, he was careful to see to it that the role played

19 by Serbia in the Federation was not too major, but at the same time he

20 used the Serbs in other instances or in other areas, for example, in

21 Croatia where the Serbs accounted only for 12 per cent of the

22 population, but they played an important role in the partisan area,

23 and the various regimes had succeeded one another, Ottoman etc..

24 Under the Tito, the Serbs of Croatia within the Croatian

25 administration had the most important positions in the administration

Page 94

1 in the Party, in the police. So, in Croatia the regime at certain

2 times played off the Serbian minority against the Croatian majority.

3 In Kosovo, the regime favoured the autonomy of the Albanians which

4 upset the Serbs, but at the same time they did not give the Albanians

5 what they were demanding, that is to say, to achieve Republic status

6 for Kosovo, so the Albanians were unhappy.

7 In other areas, it was the same thing, for example, Bosnia.

8 Sometimes the Bosnians were favoured, sometimes the Serbians were

9 given a leg up. It is all very complicated. We could go into the

10 details in each of the republics. The basic rule of the game is that

11 the regime was very careful to come up with a very subtle blend in

12 what it did for each of the nationalities and would tend to play them

13 off one against the other, and these national antagonisms that, in

14 theory, it said had to be done away with, in some instances in certain

15 places on certain occasions it exploited them.

16 But at the same time when there were threats to its authority,

17 it would take repressive measures, for example, demonstrations towards

18 the Croat spring time, for instance. In 1971, there was a movement in

19 Croatia that got off the ground. It was basically unanimous. It was

20 supported and it was mainly student demonstrations that expressed it.

21 This is three years after 1968. Then also the local Parties gave

22 their endorsement to it. There was this unanimity in Croatia to ask

23 for more autonomy, more respect for Croatian particularities. This

24 movement after a certain time was, of course, cracked down on and the

25 leaders of that movement, its leaders, some of whom were leaders in

Page 95

1 the communist party in Croatia at the time, were dismissed from their

2 office -- in 1991, some of them would turn up again as leaders in

3 Croatian parties -- but other exponents of this movement were jailed.

4 The army took action and there were 100, not to say thousands, of

5 arrests. This was in 1971.

6 This is one of the main cases where there was a crackdown on a

7 nationalist movement by the regime. It is also worth mentioning the

8 Albanian movement that took place in 1968 in Kosovo. There again

9 there was repression. So, in short, Tito would allow certain

10 expressions of nationalism but within narrow limits and once he

11 thought that his authority was at stake, he did not hesitate.

12 Q. You have touched on it briefly, but could you review for the court

13 the importance of the 1974 constitution in Yugoslavia?

14 A. OK. The constitution of '74 was basically based on self-rule, in

15 other words, it granted a lot of power and authority, initiative, to

16 the production units, to the economic units, as well as to the

17 communes.

18 So, in short, this constitution was very decentralising, but

19 at the same time it was decentralising at the level of the republics.

20 It gave a lot of authority to the republics. It also granted a lot

21 of authority to the two autonomous provinces, Kosovo and Vojvodina.

22 In other words, in actual fact, the constitution gave Yugoslavia an

23 almost confederal regime in which most of the decisions were made, not

24 only at the federal level, but also at the level of each single

25 Republic and each of the autonomous provinces, so at the level of the

Page 96

1 eight different entities that made up the federation at the time.

2 The autonomous provinces had a status that was almost the same

3 as that of the republics; the only two differences were that they had

4 a lesser number of representatives in the federal institutions and,

5 essentially, these two provinces did not have the right of secession.

6 Then later on after Tito's death, or even when he was still

7 alive, there was a collective presidency in which you had one

8 representative from each of the eight members of the federation, so

9 each of the six republics and each of the two autonomous provinces.

10 When Tito was alive, Tito was President for life, but of course after

11 his death, the presidency operated without such a President, but with

12 a sort of turning presidency. Every single year you would have one of

13 the eight members of the Presidency, one of the eight representatives

14 of the eight federal entities, who would then take up the Federal

15 Presidency.

16 Q. When did Tito die?

17 A. In '80.

18 Q. Would you trace for the court some of the developments after his

19 death that led to the rise of nationalism and the eventual dissolution

20 of Yugoslavia?

21 A. Yes, all right. So after Tito's death, as I indicated earlier on, we

22 had the sort of turning presidency. So, in other words, you did not

23 have one single person who would impersonate the state, it would

24 rotate every single year. So, of course, his authority was more

25 limited and his authority was actually very limited.

Page 97

1 But from that moment on some nationalistic trends could be

2 voiced and started to emerge less timidly than before in the different

3 republics and, more specifically, in Serbia. In Serbia, even the

4 press, even the press, came up with Serb nationalist opinions. As of

5 '89, so that is a year after Tito's death, some troubles arised in

6 Kosovo. Kosovo, might I remind you, is an autonomous province whose

7 population is -- Albanian represented about 80 to 90 per cent, but

8 Kosovo did not have the status of a Republic, and so the Albanians

9 from Kosovo, who claimed the status of Republic for their province and

10 some were even more radical and they wanted to be reunited with

11 Albania, so there were major troubles, riots, that started at the

12 University of Kosovo and then spread out to the whole country and that

13 were military oppressed in '81. There were many casualties.

14 So, from that moment on, nationalism intensified both from the

15 Albanians from Kosovo but also from the Serbs. Even in Serbia we saw

16 in the official press a whole campaign directed against the Albanians

17 from Kosovo. So, gradually, the Serb nationalistic thesis were voiced

18 up to the moment when nationalism came to power in Serbia with the

19 accession to power of Milosevic.

20 But at the same time we see that the 80s, after Tito's death,

21 there is another phenomenon that took place -- that has nothing to do

22 with Tito's death, it just happened to happen at the same time --

23 there was an economic decline. Yugoslavia had been prosperous as long

24 as the world economy was fairing well. That was until '74. Now, after

25 the oil crisis of '74, Yugoslavia underwent some economic problems but

Page 98

1 still lived above its means. But in '80 or, rather, in '79 there was

2 a turning point. There were major economic problems, and we see this

3 on economic graphs. There was a downward trend as of 1980, poverty

4 and so and so forth. Basically, all these phenomena coincided in

5 time, impoverishment, in the rise of nationalism and, more

6 specifically, the Serb nationalism.

7 So, finally, the more open expression of such nationalistic

8 themes in Serbia more particularly, and we also see the accession to

9 power of Milosevic. So nationalism is no longer oppressed in Serbia.

10 It is even encouraged. It has become encouraged and promoted.

11 Q. Was there a memorandum prepared by the Serbian Academy of Arts and

12 Sciences on an informal basis that was also circulated in the 1980s?

13 A. That particular text dates to December 1986. It has not been

14 published. First it was circulated covertly. It was only published

15 later on in Croatia. So this text was drafted officially by the

16 Academy of Sciences and Arts of Serbia by a group of academicians

17 inspired by the writer Stasusic(?)

18 So this particular text analyses the situation in Yugoslavia.

19 The first part deals with the economy and it indicates that

20 decentralisation of the decision-making process, the excessive power

21 given to the different entities, is a cause for the economic decline

22 in this country. Now to keep this intact we would need to

23 re-establish a centralised authority in the federation.

24 Now in the second part of this document they address the more

25 cultural and political issues. It states and it asserts that Serbs do

Page 99

1 not have the place that they deserve in the federation, and that their

2 country, i.e. Serbia, is unduly divided into three, since we have

3 these two autonomous provinces, Vojvodina and Kosovo, which have just

4 about the same authority, the same power, as if they were republics.

5 Then furthermore they claim the authority of Serbia be re-established

6 over these autonomous provinces. They also complain about the fact

7 that the Serbs are oppressed in Kosovo, threatened in Kosovo as they

8 stated, by the Albanian minority and even that the Serbs are

9 threatened in Croatia by the Croat majority. So, in short, they

10 denounce this threat that they feel under everywhere whether or not

11 directly connected to the Republic of Serbia.

12 So this was a sort of first step, the first time that they

13 expressed their nationalistic demands, and they look at different

14 aspects of the problems from a political, legal, linguistic point of

15 view, cultural point of view. So the remedy is to be found, according

16 to the authors, in recentralising, if you like, recentralising Serbia.

17 Serbia would then take power over these autonomous provinces, and to

18 re-centralise Yugoslavia, in other words, to turn it into a stronger

19 state. One could say, although it is not part of the text, that the

20 Serbs would then have full control over the whole federation.

21 Q. Perhaps you could expand on that a little, Professor Garde, how this

22 attack on what was perceived as unnecessary bureaucracy, the demand

23 for the recentralisation, worked with the increasing nationalism; how

24 it could be combined in order to reduce the power and authority of the

25 other nations and other nationalities?

Page 100

1 A. Right. The memorandum was informal text, it was sort of clandestine

2 text, but the following year Milosevic when he came to power would

3 then sort of adopt the objectives of that memorandum. So when

4 Milosevic comes to power -- until the end of the 1980s there had been

5 a very significant development in Serbia under the initiative and even

6 encouraged, promoted by the authority, so the communist authority had

7 oppressed nationalism -- now when Milosevic came to power it was

8 encouraged, it was promoted and he wanted to use this as a tool. Of

9 course when Milosevic came to power in Serbia this happened at the

10 same time as Gorbachev took power in Russia in the USSR. Milosevic

11 understood that communism did not have any future, so he had to find

12 something else to keep his power and his authority.

13 So what he initiated in 1987 was what was called the

14 anti-bureaucratic revolution. What does that mean? In all communist

15 regimes you had oppression of course. The communist regimes, whenever

16 they were faced with people being upset, they always said it was not

17 the regime's fault; it was the fault of the bureaucracy and the

18 bureaucracy had to be fought against. So, basically, we hear the same

19 slogan from Milosevic in 1987. He wanted to fight bureaucracy, this

20 anti-bureaucracy revolution as he called it. At the same time in

21 Tito's regime, in that of the communist Yugoslavia, you did not have

22 one single bureaucracy, you had several you had bureaucracies. You

23 had the bureaucracy of each Republic and each autonomous province. So

24 the whole idea of a revolution against bureaucracy has to be connected

25 with the idea of fighting against decentralisation.

Page 101

1 If you wanted to do away with bureaucracy that means you also

2 want to do away with the different bureaucracies that ruled over each

3 Republic and autonomous provinces. That means you need to reinforce a

4 central authority. Now this whole idea is based on a concept that the

5 French are quite familiar with and which is the idea that democracy

6 implies centralisation, and any local authority is a source of

7 privileges and inequalities, whilst, on the contrary, in other

8 traditions like in the Anglo-Saxon tradition, one would think that, on

9 the contrary, the more decentralised the more you have local freedom

10 and the more democracy you have.

11 So I think that Milosevic thought that we did not need to

12 fight against bureaucracy as a whole, but you had to fight against

13 bureaucracies and the powers of the different Republics in order to

14 come back to more centralisation, of course at the level of Serbia,

15 and, if at all possible, at the level of Yugoslavia.

16 So, more specifically, all the different forces that were

17 against Serb nationalism were assimilated to bureaucracy. For

18 instance, one of the slogans that was heard at that time was that we

19 should eliminate powers that represent bureaucratic nationalists. So

20 in Kosovo that meant you had to do away with the Albanian leadership

21 in Kosovo. That means that you have to do away with a certain type of

22 bureaucracy, but at the same time that meant that they wanted to

23 re-establish the authority of the Serbs over the Albanians.

24 Similarly, if we could in Croatia and Slovenia or elsewhere, if we

25 could weaken local bureaucracy, we would then re-establish the central

Page 102

1 authority which is that of Serbia.

2 So under cover of anti-bureaucracy revolution you see hidden

3 this trend of taking control on the part of the Serbs over the whole

4 federation. Of course, that appears as a threat for all the other

5 peoples who suffered from bureaucracy and still they were quite happy

6 to have their autonomy.

7 Yes, I would like to add that, naturally, this sort of

8 combination between fighting bureaucracy on the one hand and fighting

9 for nationalistic objectives has been extremely efficient and even

10 explosive, since in Serbia people were oppressed by bureaucracy as a

11 matter of fact, but at the same time these national trends are always

12 latent. So when you manage to combine both you get something that is

13 extremely popular.

14 So Milosevic exploited this phenomenon, capitalised on this

15 phenomenon, and organised different meetings and rallies. In the years

16 1988 through 1990 in Serbia and in all other regions where you had a

17 Serbian population you had major rallies, popular rallies of about

18 200,000 demonstrators in one city. One million people rallied in

19 Belgrade several times, but these people got together under those

20 slogans aiming at fighting bureaucracy, but also defending the Serb

21 nation and this was used by Milosevic to do away with his political

22 adversaries, those that were faithful to Tito and even those who

23 refused this rise of nationalism.

24 He is capitalising on this to eliminate his adversaries in

25 Serbia of course, but also in the two autonomous provinces. So he has

Page 103

1 managed, thanks to these mass demonstrations, to eliminate his

2 adversaries who were in power in Vojvodina in Kosovo, and he managed

3 to have them replaced by people that belonged to his side.

4 The same happened in Montenegro. So he managed to gain

5 control over four out of the eight entities, over four of the seats at

6 the Federal Presidency. So, consequently, he is breaking the sort of

7 balance that emerged under Tito, since you no longer have eight equal

8 entities, but you have one block that dominates practically over half

9 of the federation and half of the seats in the Federal Presidency and

10 that also claims power in other republics, in Bosnia and Herzegovina

11 where Serbs live. So it is felt as a threat by the Albanians of course

12 that were deprived of their autonomy and that are military oppressed,

13 but also by Croats or Bosnians, since in Croatian and in Bosnia we

14 also see such Serb rallies being organised that are felt as a threat.

15 There is even an attempt to organise such a rally in Slovenia in

16 Ljubljana, but it did not succeed because in that country you have no

17 Serbs at all. So the Slovene government simply prohibited this rally

18 and managed to prevent it. Otherwise in just a matter of a few years

19 by using such popular rallies and by using such popular demonstrations

20 against people in power, against all the different authorities with

21 his authority as an exception, Milosevic managed to break this balance

22 in the federation. So consequently it impossible for the federation

23 to survive.

24 Q. Professor Garde, in addition to these mass meetings, these popular

25 rallies you have spoken of, there were actually some special events

Page 104

1 that the Serb nationalists staged. Could you review some of those and

2 describe their impact upon the people?

3 A. Yes, there were the constitutional changes which meant that the

4 autonomy of the two provinces of Vojvodina and Kosovo were done away

5 with. Toward the end of the 1990s there were all kinds of mass

6 demonstrations, particularly at the occasion of the 600th anniversary

7 of the battle of Kosovo which took place in 1389, the Serbs were

8 defeated by the Turks. This event is celebrated by tradition and by

9 the Serbian ethics and in popular folk songs. Sometimes people speak

10 about the myth of Kosovo which had an enormous importance in the eyes

11 of the Serbs. In 1989 for the 600th anniversary of the battle of

12 Kosovo there was an enormous rally with more than a million people, a

13 million Serbian demonstrators in a primarily Albanian region.

14 There were also demonstrations which were intended to recall

15 the massacres during the Second World War in which so many Serbs were

16 killed, massacres that had been carried out by the Ustasha government

17 which had been set up in Croatia, and demonstrations which were

18 demonstrated to remove the remains of those victims who had been

19 buried from the mass graves where they were lying. That is what

20 happened at that time. It was a way of bringing the memories of this

21 massacre back to life, and at the same time to encourage, perhaps not

22 exactly instil hatred against the other people considered as the

23 reasons for that massacre, but there were other things that happened.

24 There were processions. There were remains of one of the Princes who

25 had been killed during that battle. There was a solemn procession in

Page 105

1 which the remains of that Prince were removed and taken to various

2 locations. Manifestations of tremendous nationalism. There were

3 demonstrations as well in the regions of Bosnia and Croatia where

4 there were Serbs living, that is all kinds of demonstrations whose

5 purpose was to rekindle this Serbian nationalism.

6 Q. You have touched on it briefly, but could you go into a little more

7 detail on how the media started to join in with this rise of

8 nationalism, and some of the particular aspects as evidenced in the

9 media at the time?

10 A. From the articles and magazines that I looked at, mostly from 1990

11 on, the Serbian press of that time is filled with nationalist kind of

12 statements, the reminder of the events that took place during the

13 Second World War when there was so many massacres. This is a

14 constantly recurring theme. There is not a single addition of a

15 magazine at that time in which one does not find at least one or two

16 articles on the subject.

17 One of the ideas which was an attempt to rekindle memory, one

18 of the ideas which was propagated at that time, propagated by the

19 Serbian press and, generally speaking, in Serbian propaganda, messages

20 that under the Tito regime people did not speak about those massacres,

21 which was not true because these massacres were always spoken about,

22 but at that time it was not an obsession as it became starting at the

23 end of 1980s. Then in addition to that, there was not so much emphasis

24 placed on the ethnic nature of the massacres. In other words, under

25 Tito one spoke of the victims of fascism and one attempted not to

Page 106

1 place so much emphasis on the fact that there were Serbian victims or

2 Croatian victims, but rather there were versions which really brought

3 out the political rather than the ethnic aspect. But the massacres

4 themselves were recalled. Therefore, it is not true to say that no

5 one spoke about them any more. Naturally, however, at the end of 1980s

6 this appeal become somewhat obsessional in a way which it was not

7 before that.

8 There is also a propaganda which was unleashed against the

9 memory of Tito and his regime. He was accused of all kinds of evils.

10 That Serbian propaganda considered him as the man who did everything

11 that he could in order to suppress the Serbs, to oppress the Serbs,

12 who divided the Serbs into several states, with the result that these

13 states became more and more autonomous. In short, they went into all

14 kinds of details and all kinds of historical reminders. They tried to

15 show the fact that from top to bottom Tito's policy was directed

16 against the Serbs and for that reason that the Serbs were oppressed.

17 I have read hundreds of pages on that subject in the

18 publication. One can imagine the degree of violence in the

19 denunciation of Tito's memory. In that press as well is the

20 denunciation of an international plot against the Serbs. The idea was

21 that Serbia and the Serbian people, orthodox people, the Serbian

22 people had their own religion, a national religion, and they were

23 always the object of international plots and other religions, that is

24 Islam and Catholicism, in fact were not national religions but

25 international ones. Therefore, if the history was analysed as one of

Page 107

1 the empires which had dominated the region, there was the Muslim

2 empire, there was the Ottoman empire, there was the catholic one which

3 was the Habsburg one. Therefore, the Serbs were always subjects of

4 multinational empires dominated by the other international religions;

5 always the object of attacks by the Vatican Empire, by Islam. People

6 speak about plots against Serbia, but there was yet a third

7 international movement which played its role against the Serbs, that

8 is Comecon, the communists. The historical analysis tried to show how

9 the Comecon at that time, that is the time of the monarchy Yugoslavia

10 denounced it as being a prison for the people and it asked for a

11 revolt against what the communist had called the Serbian bourgeoise.

12 Therefore, that Comecon was alleged to have been continued by Tito who

13 also played his role against the Serbs in the name of that Comecon

14 international.

15 So they would speak about the Vatican Comecon Islamic plot.

16 There was another neighbouring force which also played again the Serbs

17 which was Germany, Germany against whom they were at war during the

18 First and Second World Wars, Germany which at that time is accused of

19 supporting the other Republics, specifically Croatia and Slovenia.

20 Therefore, one speaks about a Vatican German Islamic Comecon plot, but

21 this is not something which finds one time; you find that on every

22 page in that press. The accusations against the other peoples,

23 against, well, the demands according to which the Macedonians are not

24 really Macedonians but only southern Serbs or the Muslim Bosnians are

25 really only Islamized Serbs, that some of the Croats in fact are

Page 108

1 really only Catholicized Serbs. There were all kinds of articles

2 trying to popularize these ideas from a point of view of history,

3 language, politics, culture, religion, all tended to demonstrate that

4 the Serbs were always oppressed and that in fact they are much more

5 numerous than people would like to say and that, therefore, it would

6 be justified for them to have a greater state than the one they have.

7 I am only giving you few of the themes. When one reads a

8 great amount of this material as I did, one is struck by the

9 obsessional nature of all the themes and some others as well.

10 Q. Perhaps as one last question, because I think we will move to another

11 topic after this, during this time when all these themes are running

12 through the media who was influencing and controlling the media?

13 A. When we talk about the media a distinction has to be made. First

14 there is television which was completely controlled by the communist

15 power and then by Milosevic. Personally, I did not have much occasion

16 to look at that television. Most of my information comes from the

17 written press, but I know that this was the same thing on television,

18 even worse. Many important books were written on that subject. There

19 is the book by Martinson "Forging War" which explains well how

20 television operated, that is Serbian television at that time.

21 Television was completely under the control of the power. As far as

22 the written press goes, one could not say that power controlled it

23 completely because at that same time there was a certain kind of

24 opening up of the press. As regards those subjects I have just

25 mentioned there were two types of press, that is, the government press

Page 109

1 which was communist, at least government, the Politika group. There

2 was a magazine called Dugar. Then we also see the nationalist press

3 of the opposition parties in the magazine Pogledi that I spoke a

4 little while before which is more or less the organ of the radical

5 Seselj party and many others as well. The emphasis of the opposition

6 press and the government press, that is the press with the largest

7 amount of those in opposition and the government press, come together

8 when it comes to those themes, one more critical of Tito, but

9 generally speaking the propaganda is basically the same, which does

10 not mean that there was not also at that same time a real opposition

11 press which resisted that nationalistic current. The two most

12 important names we can cite there was the Vreme weekly magazine and

13 the Daily Borba, both of which remained outside that stream and did a

14 good job in informing their readers. There was, nonetheless, a

15 certain kind of opening out of the press. There was no total control

16 by the power over the written press. However, it was complete control

17 over the television media.

18 THE PRESIDING JUDGE: Mr. Bowers, we will first try to see where we are.

19 For the reasons that everybody is aware of, we are running a bit late.

20 Perhaps delay is not really the word to use. We had to settle some

21 problems which arose in a rather unexpected manner. There are several

22 factors. First of all, we have some questions about the federal

23 institutions, at least I have one or two questions I would like to

24 ask, but the first question I would like to ask of you, Mr. Bowers,

25 how long do you expect Professor Garde to be speaking?

Page 110

1 MR. BOWERS: Your Honour, we have just a very short section leading up to

2 the actual dissolution of Yugoslavia, and then we have a series of

3 exhibits, approximately 23 exhibits, which the Court has been

4 presented. These are various documents, most of them are from an

5 official gazette, and show the evolution of Karadzic's power and the

6 evolution of the SDS and eventually into the entity known as the

7 Republika Srpska. I think we can probably get through those documents

8 within an hour. They are self-explanatory. We will only seek to

9 place them in context and we should be able to move through them

10 fairly quickly.

11 THE PRESIDING JUDGE: In other words, the entire testimony would last for

12 another hour, hour and a half, is that what you are saying?

13 MR. BOWERS: Yes, your Honour.

14 THE PRESIDING JUDGE: Aside from any questions that the Tribunal might

15 have to ask. I would like now to turn to the interpreters' booth

16 which must be exhausted, but which also had some bit of a break this

17 morning. The interpreters are working very hard. I would like to

18 first thank them for not only what they are doing today but for what

19 they are going to be doing in the next few days. I would like to know

20 whether we could not save some time. Would it be possible to continue

21 until a quarter to eight?

22 MR. BOWERS: Perhaps we could enquire.

23 THE PRESIDING JUDGE: I would also like to turn to the witness. He must

24 also be exhausted. Would he be able to go on? Your face does seem a

25 bit weary.

Page 111

1 THE WITNESS: No, I do not care.

2 THE PRESIDING JUDGE: The interpreters must say what they say. The Chief

3 Interpreter has to give a decision. We will look to find the proper

4 decision for the Tribunal. The decision by the Tribunal is to resume

5 tomorrow at 9.30, but we are going to have Judge Riad put one question

6 on what we have just heard. So, I would ask the witness to be as

7 concise as possible in his reply because the interpreters have had a

8 rough day. So one last question from Judge Riad about what we have

9 just heard and immediately thereafter we shall adjourn once we hear

10 your reply. Then, as I said, tomorrow morning we shall begin the

11 proceedings at 9.30. Go right ahead Judge Riad.

12 JUDGE RIAD: Professor, what you said about the rekindling of the memory,

13 I had the feeling at the outset when you spoke that it was something

14 that was almost automatic, that these communities were living together

15 under the Tito regime, and once that regime fell apart the differences

16 somehow came to the surface, but after Tito there were some six or

17 seven years during which there was not really no conflict, and then

18 suddenly it took off again. So, this rekindling of memories was

19 something artificial perhaps, it was something that was provoked. I

20 just would like you to clear that up for me?

21 A. Well, the rekindling of memories would have taken place in any event,

22 because the people not just in Serbia, not only in Yugoslavia but

23 throughout Eastern Europe, had had the impression that the communist

24 regime was lying to them and that was not wholly unwarranted. So,

25 whatever was not part of that communist doctrine was welcome.

Page 112

1 Whenever anybody said something that was the contrary of what the

2 communists said, it was assumed that that person was speaking the

3 truth. So there would have been some rekindling of memories at all

4 events. But something else that is true is that the possibility of

5 rekindling memories was voluntarily and systematically exploited by

6 the people in power and guided in the direction that suited it.

7 Q. This rekindling of memories was in fact a two-step process up to

8 1987/88, and then that was like a threshold. Before that it was

9 psychological and after that there was the violence, that aspect. Was

10 there some form of influence that turned this into something lethal in

11 the second stage?

12 A. Well, yes, at all events the fact that this was so widespread, this

13 rekindling of memories, and that it was directly directed against the

14 other people, that was due to the manipulation on the part of the

15 people in power.

16 Q. So it was something that was remotely controlled amongst them; not

17 something that was wholly natural?

18 A. Well, it is the political exploitation of a phenomenon that did have

19 something natural to it.

20 JUDGE RIAD: Thank you.

21 THE PRESIDING JUDGE: In accordance with what we have just said, we will

22 adjourn our session and resume tomorrow at 9.30. I would now like to

23 thank once again the interpretation booths. I am appreciative all the

24 work they have done and will do in the coming days. We will all try

25 to respect our schedule. Today was a bit of an exceptional day.

Page 113

1 Thank you, Professor. The hearing is adjourned and we will resume

2 tomorrow at 9.30.

3 (The court adjourned until the following day).