Tribunal Criminal Tribunal for the Former Yugoslavia

Page 25431

 1                          Monday, 10 December 2007

 2                          [Open session]

 3                          [The accused entered court]

 4                          [The accused Pusic not present]

 5                          --- Upon commencing at 2.14 p.m.

 6            JUDGE ANTONETTI: [Interpretation] Mr. Registrar, please call the

 7    case.

 8            THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon

 9    everyone in and around the courtroom.  This is case number IT-04-74-T, the

10    Prosecutor versus Prlic et al.  Thank you, Your Honours.

11            JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar.  Today

12    is Monday, the 10th of December 2007.  My greetings to the OTP

13    representatives, to the Defence counsel and to the accused.  We are going

14    to have a witness who is going to testify over two days.  I remind you

15    that the witness is called further to the 92 ter proceedings so you will

16    have three hours for your direct examination, based on a report already

17    drafted by the witness and based on his testimony in the Kordic case.  I

18    believe there are some 50 documents to be submitted to him.  Most of them

19    have already been admitted through other witnesses.

20            After this, the Defence will have three hours and a half,

21    empirically the Trial Chamber thought that Mr. Prlic could have one hour

22    and the other Defence teams would each have 30 minutes, provided of

23    course -- or unless you want to cede some of your time to other teams.  So

24    this being said, we should have another witness on Wednesday.  But none

25    for Thursday; is that right, Mr. Scott?

Page 25432

 1            MR. SCOTT:  Good afternoon, Mr. President, Your Honour,

 2    Judge Trechsel, all those in the court and those helping us.  Your Honour,

 3    yes, I believe that's the case.  Given what I know of the schedule now and

 4    of the two witnesses this week, I would expect that we would -- could

 5    finish on Wednesday.  The Court will allow me, I hope, I can't guarantee

 6    that.  Sometimes we get bogged down in various respects in the courtroom

 7    and it might take us longer, but my current expectation is that we will

 8    finish the witnesses on Wednesday.

 9            JUDGE ANTONETTI: [Interpretation] So are we going to finish on

10    Wednesday or Thursday?

11            MR. SCOTT:  My apology.  Perhaps I misspoke.  I hope that we will

12    finish on Wednesday.  I expect to finish this witness, today's witness

13    tomorrow, I believe the second witness, we should finish the witness on

14    Wednesday.

15            MR. KARNAVAS:  If I may be briefly heard, Mr. President.  Good

16    afternoon, Mr. President, good afternoon, Judge Trechsel, I must convey my

17    disappointment in the Trial Chamber's decision to just give us 30 extra

18    minutes in light of we are dealing with an expert and in light of the fact

19    that his prior testimony is coming in plus new documents plus, plus, plus.

20    I do think that given the nature of the testimony, more time is needed.

21    Now, if Thursday is going to be available, I don't see why, if it becomes

22    necessary, for the next witness to remain a little bit over on Wednesday,

23    why we couldn't handle him.  I am just -- I'm not being --

24            JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, the witness, who

25    is to testify to legal issues, constitutional issues and others is of

Page 25433

 1    course a witness that will take some time for direct and

 2    cross-examination, but given the nature of his testimony, when I said that

 3    each Defence team would have 30 minutes, as a rule, in such a situation,

 4    like, say, the Defence collectively will appoint one lawyer who may put

 5    the questions to the witness collectively and there would be questions of

 6    general nature.  There is no opposition among the teams as to the merits

 7    of this testimony.  There shouldn't be any conflict among the Defence

 8    teams, so I think it would have been more clever for you to appoint the

 9    one lawyer who is going to lead the cross-examination inasmuch as the OTP

10    will have three hours and you will have three and a half hours, amply

11    enough to look into all the problems because 90 per cent of these problems

12    have already been examined through other witnesses.

13            MR. KARNAVAS:  Your Honour, well, thank you for that suggestion

14    and we have taken that suggestion to heart already.  My mere observation

15    is as follows:  The nature of the testimony is such, and the documents are

16    such, that I don't believe even under the best of circumstances, three and

17    a half hours is sufficient.  And I just wish to remind the Trial Chamber

18    that initially the prosecutor indicated that they would merely bring the

19    gentleman over and the report would be admitted and then we would have all

20    the time, two days, for cross-examination.  I'm merely suggesting that it

21    may not be enough, even under the most optimal of circumstances but, you

22    know, you've made the decision.  I understand it but I simply do not see

23    why we need to cave in to certain witness's whims and fancies, when we do

24    have that extra day.

25            JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, nobody is caving

Page 25434

 1    into anybody's whims.  I don't think I'm mistaken.  I think that initially

 2    the Prosecutor had applied for admission under 92 bis of the expert's,

 3    quote unquote, statement and of his testimony in the Kordic case, and the

 4    Trial Chamber did not want to harm your rights as a Defence.  That's why

 5    they called this witness.  So stop complaining.

 6            MR. KARNAVAS:  Your Honour, you're giving them everything they

 7    asked, plus three hours.  That's what I'm trying to convey.  That's what

 8    I'm trying to convey.  They initially said, we want this to come in and

 9    the Defence could have cross-examination.  You not only say -- and then

10    once you said yes, then they said, well, we want additional documents to

11    come in, plus three hours.  That's my complaint.  My complain is we went

12    from, more or less, having six hours to now having 3 and a half hours.

13    That's the situation.  And I'm not complaining; I'm merely making this

14    observation and I don't think that it is fair.  Now I will try my best to

15    do what I can.

16            JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, as to the

17    additional documents, I believe there are five, four of which have already

18    been admitted.  I believe there are five documents, four of which have

19    already been admitted.

20            MR. KARNAVAS:  Very well.  His entire testimony is coming in,

21    Mr. President, but I don't wish to argue and waste time but I just wanted

22    to make my observation.  I don't think it is fair to the Defence and the

23    Trial Chamber is not doing the Defence any favours by saying the

24    Prosecution can have everything and then limit the rights of the accused.

25    That's what I'm saying.  You have given them his prior testimony, you've

Page 25435

 1    given them his entire report, you have given them additional documents and

 2    you have given them three hours and all you've given us is an additional

 3    30 minutes.  To me, it doesn't convey a sense of fairness but perhaps in

 4    the end we will be able to manage but I'm merely making that observation

 5    and I hope in the future that you will take into consideration our

 6    concerns.  And this is a major concern.  Maybe I'm up to the task.  Maybe

 7    not.  But three and a half hours is certainly a limited amount of time

 8    given the breadth and scope of this gentleman's testimony.  Thank you.

 9            JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Karnavas.  Yes,

10    Mr. Scott, do you want to add anything?

11            MR. SCOTT:  Yes, Your Honour, please.  If it may assist and maybe

12    it will and maybe it won't, I think the Chamber knows by now and I think

13    the Prosecution has been consistent on this, that when a witness who is

14    previously been proposed as a 92 bis witness is -- does come to give viva

15    voce testimony and is essentially then converted into a 92 ter witness,

16    the Prosecution's view in those circumstances is that a limited amount of

17    additional direct examination to highlight some issues is appropriate and

18    I think that's what we've done with a number of these witnesses.  As the

19    President rightly points out, most of the exhibits have been used before

20    and we don't anticipate using anything like 50 exhibits with this witness.

21    They were all included because, again, better to have them all than to not

22    have the right ones at the right time, so that there was no confusion and

23    no misunderstanding, all the previous documents related to the witness's

24    evidence were included.  But I think at the end of the day the number of

25    documents we will use will be much, much smaller than those on the list

Page 25436

 1    and I'm hopeful that we can do it, the Prosecution, I'm hopeful, we will

 2    do it in less than the three hours.  So of course whatever time we can

 3    save that will give the Defence some additional time.

 4            Beyond those comments, Your Honour, if the Chamber would allow me

 5    there are a couple of other housekeeping matters that I would like to

 6    address before the witness comes in, if we could go into private session

 7    just for a few moments.

 8            JUDGE ANTONETTI: [Interpretation] Private session, please.

 9                          [Private session]

10  (redacted)

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Page 25437











11    Pages 25437-25440 redacted. Private session















Page 25441

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 7                          [Open session]

 8            THE REGISTRAR:  Your Honours, we are back in open session.

 9            JUDGE ANTONETTI: [Interpretation] Very well.  Mr. Registrar, you

10    are going to have the floor.  I believe you have to give us six IC

11    numbers.

12            THE REGISTRAR:  Yes, Your Honour, the OTP has submitted its

13    response to exhibits tendered by 2D, 3D and 6D for witness Amor Masovic.

14    This list shall be given Exhibit numbers IC 736, 737, and 738

15    respectively.  6D has submitted its response to OTP response to its

16    exhibits tendered through witness Amor Masovic.  This list shall be given

17    Exhibit number IC 739.

18            Several parties have submitted lists of documents to be tendered

19    through Witness BB.  The list submitted by 1D shall be given Exhibit

20    number IC 740; the list submitted by 2D shall be given Exhibit number IC

21    741; the list submitted by 3D shall be given Exhibit number IC 742; and

22    the list submitted by 6D shall be given Exhibit number IC 743.

23            Thank you, Your Honours.

24            JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar.

25    Before the witness comes in I'd like to turn to Mr. Ibrisimovic.

Page 25442

 1    Mr. Pusic is not here, as I see.  I suppose he's not well.  Is that so?

 2            MR. IBRISIMOVIC: [Interpretation] Could we please move into

 3    private session for a moment?

 4            JUDGE ANTONETTI: [Interpretation] Yes.

 5                          [Private session]

 6  (redacted)

 7  (redacted)

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 9  (redacted)

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20  (redacted)

21                          [Open session]

22            THE REGISTRAR:  Your Honours, we are back in open session.

23                          [The witness entered court]

24            JUDGE ANTONETTI: [Interpretation] Good afternoon, sir.  Let me

25    first check that you can hear me as I'm being translated into your own

Page 25443

 1    language.  Can you understand me?

 2            THE WITNESS: [Interpretation] Yes.  I can hear the Croatian

 3    interpretation.

 4            JUDGE ANTONETTI: [Interpretation] Please stand up, because you are

 5    to read out the solemn declaration but before you do so, could you for the

 6    record state your first name, name of -- second name --

 7            THE WITNESS: [Interpretation] My name is Ciril Ribicic.  I was

 8    born on the 30th of June, 1947.

 9            JUDGE ANTONETTI: [Interpretation] What is your current occupation,

10    sir?

11            THE WITNESS: [Interpretation] I have a degree in law.  I am a

12    judge of the Constitutional Court of the Republic of Slovenia and

13    professor of constitutional law at the School of Law in Ljubljana.

14            JUDGE ANTONETTI: [Interpretation] Very well.  This is going to be

15    my last question.  Have you had an opportunity to testify before this

16    Tribunal and if so, in which case?

17            THE WITNESS: [Interpretation] Yes.  That was seven years ago, I

18    testified in the Kordic case, Dario Kordic case.

19            JUDGE ANTONETTI: [Interpretation] Thank you.  Please read out the

20    solemn declaration.

21            THE WITNESS: [Interpretation] I solemnly declare that I will speak

22    the truth, the whole truth and nothing but the truth.

23                          WITNESS:  CIRIL RIBICIC

24                          [Witness answered through interpreter]

25            JUDGE ANTONETTI: [Interpretation] Thank you very much, sir.

Page 25444

 1    Please be seated.

 2            THE WITNESS: [Interpretation] Thank you.

 3            JUDGE ANTONETTI: [Interpretation] Very well.  Since you are a

 4    judge, I don't need to give you much explanation.  As you know, we are in

 5    an adversarial type of proceeding so you're going to be put questions by

 6    the OTP representative, by Mr. Scott, today.  I'm sure you've met him

 7    already.  You met him during the weekend or this morning and following

 8    this initial stage, which should take some time, the rest of the day

 9    probably, you're going to be cross-examined by the Defence teams.  The

10    Judges who are in front of you, there is only two now but usually the

11    Bench is made up of four judges, one of our colleagues has had a sudden

12    death in his family and the other judge is involved in drafting a

13    judgement to be issued on the 12th of December.  This is the reason why

14    you have only two judges in front of you but they are going to put

15    questions to you.  As a rule, we prefer to put our questions after the

16    parties have asked theirs but sometimes, when you're faced with a

17    document, we like to put questions at that time rather than call up the

18    document later on.  So this is, very briefly, what we are going to do.  We

19    break every hour and a half.  If at any time you do not feel well, you

20    want to have a break, do not hesitate to say so.  And if you have a

21    question for the Trial Chamber, equally do not hesitate if you deem it

22    necessary.

23            I'm now giving the floor to Mr. Scott.

24            MR. SCOTT:  Thank you, Mr. President.

25                          Examination by Mr. Scott:

Page 25445

 1       Q.   Good afternoon, sir.

 2       A.   Good afternoon.

 3            MR. SCOTT:  Let me indicate to the Chamber as well, as we begin,

 4    that as I indicated actually a few moments ago, all the Prosecution

 5    exhibits that were used with Mr. Ribicic -- or Dr. Ribicic in his Kordic

 6    testimony were included among our exhibits should so the record could be

 7    complete.  We don't expect to use them all.

 8            Secondly, in some instances, the same or essentially identical

 9    document had already been given a P number in this case.  It may have had

10    a different ERN number because as the Chamber probably knows right now for

11    better or worse, there are sometimes more than one copy of the same

12    document.  Therefore, in some instances we've used the P number exhibit in

13    this case in lieu of the number in the previous case, the document in the

14    previous case, even though the documents we submit are the same.  I

15    thought it was best if we just clarify that at the beginning.

16            Doctor, what is your nationality, please?

17       A.   I have Slovenian nationality.

18       Q.   And I just in that last moment or two referred to you as "Doctor"

19    and we discussed this yesterday but I would like to ask you again:  You

20    are a constitutional judge, you are a doctor, you are a professor of

21    constitutional law.  Is there any particular way that you would prefer

22    that I address you?

23       A.   Professor will do.

24       Q.   Thank you, sir.  Now, I should indicate to you, Professor, that

25    the Judges and counsel in the case have been provided with a copy of your

Page 25446

 1    curriculum vitae, and while it is certainly quite -- in my submission,

 2    quite an impressive curriculum vitae, we will not go through it for

 3    purposes of court and the time that we have available to us today, I would

 4    like to touch on a few aspects of your background and experience, please.

 5    Could you just briefly tell the -- describe to the Judges your formal

 6    education?

 7       A.   Yes, I graduated from the school of law in Ljubljana.  That's

 8    where I obtained my Ph.D.  On several occasions, I was appointed a

 9    professor of constitutional law there.  Recently I've been teaching two

10    courses.  One at the undergraduate studies and the other at post-graduate

11    studies.  Both have to do with the law of the Council of Europe and the

12    European law on human rights and freedoms.  I have also been active in

13    politics for quite a long time.  At that time, I still had my commitments

14    with the school of law.  I was the president of the political party called

15    the League of Communists of Slovenia.  During my tour of duty which lasted

16    for three years, that party changed its platform and its name.  It left

17    Belgrade and then it appeared at multi-party elections in Slovenia and

18    became a member of the socialist union of modern European socialist

19    parties.  Later on for ten years I was a member of the Slovenian

20    parliament and seven years ago, I was appointed a judge of the

21    constitutional court.  A few weeks ago I was also appointed vice-president

22    of that court.  I have two more years of my -- in my office, and then I

23    will go back to the school of law, and of course I am looking to be

24    retired soon.

25       Q.   Thank you, Professor.  So just in terms of your judicial position,

Page 25447

 1    just to confirm, you have been then a member, a judge of the

 2    Constitutional Court of Slovenia since 2000 and the vice-president of that

 3    court as of a few weeks ago; is that correct?

 4       A.   Correct.

 5       Q.   You mentioned a moment ago some of your political, past political

 6    involvements.  To what political party did you belong in 1990?

 7       A.   In 1990, I was a member of the League of Communists of Slovenia,

 8    and formerly of Yugoslavia.  And I also became the president of that party

 9    pursuant to the programme that was drafted by a working group under my

10    leadership and that programme was known under the name Europe Now.  We

11    presented that programme at the 14th congress of the Communist Party in

12    Belgrade.  Our idea may have been naive at that time.  I know that we bore

13    badges with the inscriptions, with Yugoslavia into Europe.  However, at

14    that congress, we were outvoted on all important issues so it soon became

15    very clear that with the League of Communists, where Milosevic had main

16    say, together with his group, there was no way that Yugoslavia would go in

17    that direction, so we were all clear when we returned from Belgrade that

18    we, if we wanted to opt for that, we had to try and do it on our own, if

19    we wanted to join European integrations.

20       Q.   Can you tell us, Professor, was it at that time in connection with

21    that congress or at some related time that, in fact, the Slovene

22    delegation left the party congress, if you, I guess, one might say walked

23    out from the party congress?

24            MR. KARNAVAS:  Your Honour, I object to that this is not relevant

25    material.  What Slovenia did or did not do is not relevant.  If we are

Page 25448

 1    going to go into that I would need additional time because I believe this

 2    gentleman was involved in drafting the Slovenian constitution which made

 3    Slovenian's constitution above the constitution of Yugoslavia, in other

 4    words, the federal constitution was subordinated to the Slovenian

 5    constitution.  And so if we're going to get into that then I'm going to

 6    need to go into this gentleman's background because one of Slovenia's

 7    activities during that period was also undermining the federal

 8    constitution which this gentleman was responsible for, which led to the

 9    break-up of Yugoslavia.  Frankly, I don't think it's relevant to what is

10    at issue here today.  He is here as a constitutional expert to talk about

11    his findings based on his research, not on Slovenia's efforts to break

12    away from Yugoslavia.

13            JUDGE ANTONETTI: [Interpretation] Mr. Scott, the question you put

14    and which has been objected aimed at knowing in which context Slovenia

15    became independent.  Was it?  Or was it just by way of an anecdote?

16            MR. SCOTT:  No, Your Honour.  I believe, in response to counsel's

17    comments, it is relevant for the Chamber to hear that Dr. Ribicic was

18    involved, became very closely involved in the formation of the Slovenian

19    constitutional legal system as a result of the developments in the former

20    Yugoslavia which among other things in addition to his formal educational

21    experience gives him particular - in the Prosecution's submission -

22    expertise on the issues of constitutions that were being formed and

23    established in connection with the dissolution of the former Yugoslavia,

24    and in that respect, there is no one more qualified, perhaps, to address

25    those issues than Dr. Ribicic.

Page 25449

 1            MR. KARNAVAS:  Just to briefly respond, again, Mr. President, if

 2    we go back to 1989, Slovenia drafted a constitution which this gentleman

 3    was responsible for when they were trying to break away, where it made the

 4    federal constitution of Yugoslavia subordinate to one of its republics,

 5    Slovenia.  And therefore, that is a whole issue.  Now, nobody is

 6    questioning the gentleman's qualifications.  He's a professor, he's a

 7    politician, by and large, his father was a member, an established member

 8    of the Communist Party going back to Tito, with sort of a colourful past.

 9    So clearly we are not going into those issues.  Nobody is challenging --

10    the gentleman teaches constitutional law.  The issue here is his findings

11    with respect to his analysis on documents concerning Herceg-Bosna, not

12    what Slovenia did or what he did.  Otherwise, do I want to go into what --

13    how he drafted the Slovenian constitution subordinating the federal

14    constitution to a republican constitution, because that's unconstitutional

15    and it calls into question the gentleman's integrity.  But we are not

16    going into that.  We are not talking about the break-up of Yugoslavia.  We

17    are talking about Herceg-Bosna.

18            JUDGE ANTONETTI: [Interpretation] Mr. Scott, the Trial Chamber is

19    interested in Herceg-Bosna.  Whether Slovenia became independent or not

20    that's a known fact to all.  We are interested in Herceg-Bosna.  Please

21    direct your question on that.  Only I just have one question for the

22    witness.  You told us that you were a leading member of the League of

23    Communists in Slovenia.  I did not quite understand the League of

24    Communists in Slovenia, was it an autonomous organisation, independent

25    from the Yugoslav one or was it part and parcel of the League of

Page 25450

 1    Communists of Yugoslavia, where there was Slobodan Milosevic?

 2            THE WITNESS: [Interpretation] The League of Communists of Slovenia

 3    was an integral part of the League of Communists of Yugoslavia up to the

 4    moment when we left the 14th Congress of the League of Communists of

 5    Yugoslavia, when we walked out of that congress, actually.  From that

 6    moment on, there was a break-up in the League of Communists of Yugoslavia.

 7            JUDGE ANTONETTI: [Interpretation] Very well.  Please proceed,

 8    Mr. Scott.

 9            MR. SCOTT:  Thank you, Mr. President.

10       Q.   It certainly was not my intention to spend a great deal of time on

11    those questions but was, the Prosecution thought, relevant background to

12    this witness's testimony.  If I can just ask you this final question, sir,

13    did you in fact participate in the creation of Slovenia's constitutional

14    and legal system in connection with the dissolution of the former

15    Yugoslavia?  That's simply one question.

16       A.   I participated in the procedure, in the analysis that I prepared

17    for the Prosecutor's Office, of this Tribunal, at several places I compare

18    the situation involving Slovenia and the situations that involved Bosnia

19    and Herzegovina and particularly Herceg-Bosna.

20       Q.   Thank you for that, sir, and that is indeed why we believe that

21    that information is relevant for the Chamber to have but that wasn't

22    exactly my question; my question was narrower than that.  Simply, did you

23    in fact participate in connection with the dissolution of the former

24    Yugoslavia in the creation of the constitutional and legal system of

25    Slovenia?

Page 25451

 1       A.   Yes, I participated in that and I believe that the most

 2    significant document that preceded the drafting of the constitution was an

 3    agreement of all the political parties and groups of deputies in the

 4    Slovenian parliament on the plebiscite on the independence of Slovenia.

 5    This agreement, I signed myself on behalf of my party.  Later on, we

 6    embarked on drafting the constitution and I cooperated in its drafting as

 7    a member of the parliament of the Republic of Slovenia.  This was already

 8    at the time following the plebiscite, the constitution was adopted, only

 9    half a year after Slovenia declared its independence.

10       Q.   Thank you for that, sir.  Let us move forward in connection with

11    the report that you had prepared in connection with the Kordic case, which

12    the President of this Tribunal, of this Chamber, has asked you about

13    already, and if you have -- you have a set of binders that have been

14    placed next to you there, to your right.  And if I could ask you to just

15    look at Exhibit P 08973 or what you'll probably see on the tab is simply

16    8973.  Yes, that's it, but it's upside down.  Can you just simply look at

17    that, sir, long enough to -- can you confirm to the Chamber that that in

18    fact is your report that was prepared in connection with your testimony in

19    the Kordic case?

20       A.   Yes.  That is the analysis that I actually prepared seven years

21    ago.

22       Q.   And the subjects of that report, as indicated in the first page or

23    two of your report, did those include, for example, whether Herceg-Bosna

24    satisfied the character or had the characteristics of statehood, what the

25    objectives were in the establishment of the Croatian Community of

Page 25452

 1    Herceg-Bosna or whether the Croatian community and later the Republic of

 2    Herceg-Bosna, whether that entity or those structures were democratic or

 3    mono-national and the significance of the republic and any significant

 4    differences, if any, between the community and the republic?  Are those

 5    some of the topics that you addressed in your report?

 6       A.   Yes.  I analysed the constitutional issues relative to the

 7    establishment of the Croatian Community of Herceg-Bosna, its organisation

 8    and its operations, and I tried to organise some six or seven questions

 9    that were given to me before I embarked on my analysis.

10       Q.   And since I think it's clear that this report was now written

11    sometime ago, have you had a chance in recent days to review that report

12    from beginning to end?

13            MR. KARNAVAS:  Mr. President, I note that the gentleman has notes

14    with him.  I would like to know what are those notes and I would like to

15    have a copy of them if he's going to be referring to the notes.  He's got

16    handwritten notes with him.  If he needs them to refresh his memory then

17    obviously he needs to ask permission from the Trial Chamber.  Otherwise --

18            JUDGE ANTONETTI: [Interpretation] Witness, what kind of notes do

19    you have?

20            THE WITNESS: [Interpretation] Yes.  These are notes, handwritten

21    notes.  I wrote them last night after my meeting with the representatives

22    of the Office of the Prosecutor, and I continued to write them until this

23    very morning in my hotel, Hotel Europa.

24            JUDGE ANTONETTI: [Interpretation] Do they deal with -- do they

25    refer to the points in the Kordic report or are these personal thoughts of

Page 25453

 1    yours?

 2            THE WITNESS: [Interpretation] Well, yes.  This relates to the

 3    questions that may be asked today with regard to my analysis or report,

 4    and I have nothing against anyone having a look at those notes, to

 5    ascertain the contents, so I actually tried to anticipate some of the

 6    topics that might be discussed and I thought that it might be a good idea

 7    to write that down, that that would make me feel more secure as I answer

 8    my question -- the questions today.

 9            MR. KARNAVAS:  Mr. President, I would on firsthand suggest that no

10    notes be used, that he use his memory.  If he needs any prompting he can

11    look at his report.  The report is in already so that's evidence in a

12    sense, so he can look at his report but we would want him to use his

13    independent memory.  Secondly, I would like to have those notes but I

14    suspect they are probably in Slovenian and Slovenian is different from

15    Croatian so we are going to be at a disadvantage, we won't be able to read

16    them so that poses a problem but --

17            JUDGE ANTONETTI: [Interpretation] With regard to the language, can

18    your notes be understood by somebody who speaks B/C/S?

19            THE WITNESS: [Interpretation] They are actually written in

20    Croatian.

21            MR. KARNAVAS:  Oh.

22            JUDGE ANTONETTI: [Interpretation] Very well.  You told us you had

23    nothing against giving the notes to the parties; is that right?

24            THE WITNESS: [Interpretation] If this is your decision, I will not

25    be using them, but the reason why I glanced at them was because I wanted

Page 25454

 1    to say what are those things and the way in which I view my analysis seven

 2    years later.  Of course, this is not something that is contained in the

 3    report itself.

 4            JUDGE ANTONETTI: [Interpretation] Witness, one question raised by

 5    my colleague.  When you speak to us in your language, what do you speak?

 6    Do you speak Slovenian or B/C/S or is it the same?

 7            THE WITNESS: [Interpretation] Well, my native language is

 8    Slovenian but I do understand Croatian, Bosnian, Serbian.  I also

 9    understand English.  But it is easier for me to express myself in Croatian

10    than it would be in English because I'm more familiar with the

11    terminology.

12            JUDGE ANTONETTI: [Interpretation] If I understand properly now

13    currently you are speaking Croatian not Slovenian; is that so?

14            THE WITNESS: [Interpretation] Slovenian is quite different and you

15    don't have the interpreters who work with Slovenian here.

16            JUDGE ANTONETTI: [Interpretation] Very well.  Although our

17    interpreters are very good at anything.

18            THE INTERPRETER:  Thank you.

19            JUDGE ANTONETTI: [Interpretation] But leave your notes aside, put

20    them aside, and do use your memory in order to avoid any problem.  So the

21    document is put aside.  Please proceed, Mr. Scott.

22            MR. SCOTT:  Thank you, Mr. President.

23       Q.   The question that I had put to you a few moments ago, Professor,

24    was whether you've had a chance to review your report again in recent

25    days, have you?

Page 25455

 1       A.   Yes, yes.

 2       Q.   And can you confirm to the Chamber whether that report continues

 3    to be your opinion today?  That is, is there any statements or opinions in

 4    that report that you would wish to change if you were writing that report

 5    today or do you continue to stand by that report?

 6       A.   Let me put it this way:  I for the most part stand by that report.

 7    As regards my main views, I would present the same views as I did seven

 8    years ago, but I would like to make some minor alterations, three of them.

 9    I hope that I will be able to remember all three that I wrote down on that

10    little piece of paper.  First of all, in my report, I say that for Croats

11    and Croatia, it would have been easier if they had -- if Milosevic,

12    Karadzic and Mladic were to be indicted before this Tribunal.  It was

13    written at the time when Milosevic was not yet before this Tribunal.  As

14    we all know, things did change in this regard later on.  This is one of

15    the things that I wanted to mention.

16            The second concerns the very conclusion of my report, where I say

17    that in the war in Bosnia-Herzegovina, about 200.000 people were killed,

18    and I saw some very serious analyses at a later date.  I attended a

19    seminar on Bosnia and Herzegovina's joining the European Union, it was

20    organised and held in Michigan and I saw some very serious analysis

21    presented there indicating that the number of casualties was in fact

22    significantly lower, somewhere around 100.000.

23            And thirdly, in my report, I mention, as a positive example,

24    regarding the treatment of ethnic minorities and the non-Slovenians in

25    Slovenia, so I used Slovenia as a positive example and now I should be

Page 25456

 1    more critical of Slovenia because after I already completed my report, the

 2    constitutional court ruled on the issue of the so-called deleted people,

 3    people who had failed to ask for and get Slovenian citizenship and they

 4    were consequently deleted from all the population lists, lists of people

 5    with permanent residence in Slovenia and this decision of the

 6    constitutional court has not yet been implemented.  It will affect 18.000

 7    people but at any rate if I were to write my report today I would be

 8    definitely changing that statement that I made in my report.  I take this

 9    opportunity to do so now then.

10       Q.   And can we take it, then, that with those additions or

11    explanations that otherwise the report which is marked as, in this case,

12    as P 08973, would continue to be the same report that you would prepare

13    today?

14       A.   That's correct.

15       Q.   Now, Professor, the Chamber as you already know by now of course,

16    the Chamber and the Defence have your report as well as your prior

17    testimony, and of course we will not go through every word of your report

18    in court.  I will ask you some questions about certain parts of the report

19    and of course the Defence may have questions and likewise the Judges may

20    have questions about things in your report that they would like to ask you

21    about.  So that's the basic way we will proceed.

22            Before I do ask you a few questions about your report, let me also

23    ask you about your Kordic testimony and if you look in the binders, I

24    believe if you look at what will be marked as Exhibit P 10355 [sic], and

25    again you're likely to find the tab that is 1355.  I see you have it there

Page 25457

 1    and I think I can represent to you that that is a transcript of your

 2    Kordic testimony, both the direct examination and the cross-examination.

 3    Have you had a chance to review your testimony prior to coming to court

 4    today?

 5       A.   Yes.  I've read this over the last couple of days.

 6       Q.   And to the best of your memory and ability, can you say that that

 7    again that transcript is an accurate reflection of the testimony you gave

 8    in the Kordic case, to the best of your knowledge and memory?

 9       A.   Yes.  I think it was a very good translation of what I actually

10    said.

11            JUDGE ANTONETTI: [Interpretation] Witness, just a very brief

12    question.  In your testimony in the Kordic case, we have the transcript

13    here and we've known it for a long time because the documents were part of

14    the 65 ter list, page 14305, no need for you to look at it, at a given

15    point in time you were asked a question regard -- about Mr. Prlic.  Judge

16    May told you this:  He asked you whether you had an opportunity to speak

17    to Mr. Prlic, and you then answered that you were willing to answer only

18    in private session.  Judge May then said, [In English] There is no need.

19    [Interpretation] In other words, he did not grant you that request.  Why

20    did you mention this?  Did you know Mr. Prlic or not?

21            THE WITNESS: [Interpretation] As I was preparing this report, I

22    talked with several people who I thought were in a position to give me

23    some information, and to share their views with me on this issue.  I

24    mentioned that in my report, and this was discussed before the Tribunal.

25    And I promised them that I would not be using what they had told me in

Page 25458

 1    court but that I would only use it as their personal assistance for my

 2    preparations.  I sent them some questions in writing, and then we had a

 3    discussion based on those questions.  I asked for this issue to be

 4    discussed in closed session so that I could honour the promise that I had

 5    given to these people.  And I have to say that as I sit here, I no longer

 6    have the notes that I had taken during those interviews because I had

 7    moved house in the meantime, and I simply don't have this written material

 8    and I cannot refer to it.  The only thing at issue at that time was

 9    whether Dr. Prlic was one of the people who had assisted me in this manner

10    in preparing this analysis or report.

11            JUDGE ANTONETTI: [Interpretation] And did he help you?

12            THE WITNESS: [Interpretation] I have to say, to be quite honest,

13    that I don't know after seven years whether he did or not but I do believe

14    that I had a brief meeting with Mr. Prlic and that he helped me -- that

15    Professor Zdravko Tomac helped me organise that meeting.

16            JUDGE ANTONETTI: [Interpretation] Very well.  Thank you.

17    Mr. Scott.

18            MR. SCOTT:

19       Q.   Before I -- just to touch again on some of the background matters

20    of your report and given the language issue, before I ask you some

21    questions about your report, sir, consistent with what we have been

22    talking about so far this afternoon in reference to language, did you

23    prepare your report originally in the Croatian -- using the Croatian

24    language?

25       A.   Yes.  I wrote the report in Croatian.  Of course, it was then

Page 25459

 1    translated by the translation -- translators at this Court and I agree

 2    with what you've just said, that they are very good translators.

 3       Q.   Thank you very much.  On their behalf thank you as well.

 4            Let me then ask you to go to page 6 of your report.  When I'm

 5    referring to your report, I may not say it on every occasion but it is

 6    Exhibit P 08973.  And in the Croatian version, I believe you'll find it at

 7    page 5.  I've tried as much as I can, I hope, to find the page references

 8    for both the English and the Croatian.  And in page 6 of the English

 9    version and I believe page 5 of the Croatian report, you make this

10    statement, you say:  "For an analysis of the emergence of new states in

11    general and of the character of the HZ HB, the most important attributes

12    of statehood are territory, population (sovereign and effective)

13    governance and direct subordination to international law (as a measure of

14    independence), that is being an international -- sorry, my mistake.  Let

15    me look because I made a note.  I apologise.  My note has found its way

16    into -- make sure that I -- yes, "sovereign and effective government," my

17    apology, "and direct subordination to international law."

18            Can you explain further or comment further to the Judges on that

19    statement and the roles that those three considerations in particular play

20    in your analysis?

21       A.   I made this part of my report or analysis in the following way.  I

22    looked at the textbooks on the theory of state that were used by the law

23    schools, in some law schools, particularly in Zagreb, Sarajevo, Ljubljana,

24    all those textbooks are quoted, and I have to say that the professors who

25    teach theory of the law of state, statehood, are in agreement as to the

Page 25460

 1    minimal elements that have to be in place for a new state to come into

 2    being.  So this might be quite interesting.  The only interesting point is

 3    the fourth element, so territory, population, and effective government are

 4    used by practically all the theorists but the fourth element was taken

 5    from a book entitled, "The State."  It was published in 1927 in Ljubljana.

 6    The author is Professor Leonid Pitamic and as early as at that time, so

 7    it's really quite early, he noticed that states are increasingly dependent

 8    on international law and that their independence and sovereignty has

 9    indeed become relative, and it is his position that this does not pose a

10    threat to the sovereignty and independence of the states if, under the

11    international law, they are subjected directly -- if they are subjected to

12    the international law directly and not through some other state.  So I

13    think that this is an element that is quite interesting in light of the

14    analysis that I made concerning Herceg-Bosna.

15       Q.   All right.

16            JUDGE ANTONETTI: [Interpretation] Professor, in the analysis that

17    you prepared, I seem to find something missing when you're talking about

18    attributes of a state, the recognizance by other states.  Why did you not

19    mention that?

20            THE WITNESS: [Interpretation] I mention this in other places.  It

21    is quite well known that there are states in existence, states that exist

22    for quite some time before they achieve international recognition and

23    before they join international organisations.  In other words, before they

24    are recognised by other states and international organisations.  This is

25    why I considered that this element, although it is indeed significant, is

Page 25461

 1    not at the same level of significance as the minimal elements that have to

 2    be there if we are to talk about the creation of a new state.

 3            JUDGE ANTONETTI: [Interpretation] Yes.  I understand.  But in the

 4    current world, a state that is comprised of a population, that population

 5    has a certain culture, if that state is not recognised by other states,

 6    should we not think that there is a problem there?

 7            THE WITNESS: [Interpretation] Yes, absolutely.  There is a

 8    problem.  So you're absolutely right that if we look at things in long

 9    term -- on a long-term basis, it is hard to imagine that there could be a

10    state in existence for a long time without being recognised

11    internationally, but if we look at the situation in which new states are

12    emerging, especially if you have an imminent threat of war, a military

13    threat, then, in many cases, the analysis shows that the state came into

14    being long before it was actually internationally recognised.  And if we

15    were to look at the emergence of the new states in the territory of the

16    former Yugoslavia, we can see that from the time when these minimum

17    elements were in place, and to the time when they were recognised by other

18    states and international organisations, it took some time.  So quite

19    sometime elapsed between the two points.  In some cases longer, in some

20    cases shorter.

21            JUDGE ANTONETTI: [Interpretation] Please go ahead.

22            JUDGE TRECHSEL:  I would like to add a question:  Professor, it

23    would seem to me that being directly a subject of international law,

24    because that is your fourth point, I think, being immediately bound by

25    international law, is that not rather a consequence of the prerequisites

Page 25462

 1    for statehood being given than a condition, in the sense that first you

 2    have to find out if an entity can qualify as a state?  If it can qualify

 3    as a state, then, as a consequence, it is submitted to international law

 4    directly rather than vice versa.

 5            THE WITNESS: [Interpretation] When new states emerge, they would

 6    have to be subject to international law as soon as they start to emerge.

 7    In the process of their emergence, they, the new states, should comply

 8    with the basic principles of basic tenets of international law.  So from

 9    that point of view, I could hardly agree with the argument that the direct

10    subjection to international law is something that follows, that comes

11    later.  So in the very process of the emergence of a new state, the new

12    state has to take into account certain rules, tenets and legal instruments

13    that it has to comply with, it has to apply in its territory to its

14    population, and the government has to take that into account and has to

15    subject itself to international law in the very process of its creation.

16            JUDGE ANTONETTI: [Interpretation] One last question, because of

17    course the subject is very broad and we could spend hours on it.  When the

18    Republic of Herceg-Bosna declared its independence and when it was not

19    recognised as an independent state, since you are an expert in

20    constitutional matters, can we make a parallel here with Taiwan, for

21    instance?

22            THE WITNESS: [Interpretation] As regards Herceg-Bosna, once it

23    became a republic of Herceg-Bosna, it defined itself as a state community,

24    not a state.  It was done at the time when it seemed realistically to

25    expect that it would be a member state or constituent state of some kind

Page 25463

 1    of federal or confederal Bosnia-Herzegovina.  As regards Taiwan, I am not

 2    all that familiar with its position but I think that there we are dealing

 3    with the situation where a state community meets the requirements for a

 4    state but there are certain restrictions there that there are some time

 5    limitations for that -- that will affect the actual status of that state.

 6            JUDGE ANTONETTI: [Interpretation] Thank you.  Mr. Scott, please

 7    continue.  I'm terribly sorry for interrupting with these questions.

 8            MR. SCOTT:  Thank you, Your Honour.  No problem, of course.

 9       Q.   If I could just ask you then to move on to page 7 in the English

10    part of your report, at page 6 in the Croatian version, to the topic of

11    territory and population, and if we look on that, the first paragraph

12    under the heading 2.2, "Territory and Population of the HZ HB," you make

13    reference to the decision on establishing the HZ HB adopted on 18 November

14    1991.  Can you explain the significance of that document with respect to

15    your consideration of the territorial claims, if you will, of the Croatian

16    Community of Herceg-Bosna?

17       A.   Yes.  When Herceg-Bosna was established, in this decision, it

18    defined its territory.  It listed the 30 municipalities and the

19    representatives from those municipalities, representatives who had been

20    elected on the HDZ platform and in some cases there were also

21    representatives of this party.  They all got together, and they

22    established the Croatian Community of Herceg-Bosna.  So we are talking

23    about the 30 municipalities that make part of the Croatian Community of

24    Herceg-Bosna.

25       Q.   In the immediately following that paragraph -- the next paragraph,

Page 25464

 1    excuse me, and I don't know if it changes the page in the Croatian version

 2    or not but it's the immediately following paragraph, still on page 7 of

 3    the English version, you state in your report:

 4            "The text of the decision does not explicitly indicate the

 5    criteria for determining the HZ HB territory."

 6            And then you go on from there.  Can you comment further to the

 7    Chamber about what you found then in the course of preparing your report

 8    about what appeared to you to be the various considerations at work in the

 9    selection of those particular municipalities?

10       A.   Yes.  I immediately asked myself that question:  Why the 30

11    municipalities?  If the criteria were the Croatian majority in those

12    municipalities, in other words, that Croats were in the majority in the

13    population in those 30 municipalities then there would be no further

14    questions but it is quite clear if we look at the data that are at our

15    disposal that in some of those municipalities, quite a few of them, Croats

16    were in the majority but there were also municipalities in which Croats

17    were in the relative majority but they also included municipalities where

18    ethnic Croats were in the minority.  Other sources, particularly the

19    transcripts of the meetings of the Herceg-Bosna leaders, the meeting that

20    was held in Zagreb on the 27th of December 1991, indicate that when

21    Herceg-Bosna was established, a major role was -- a major factor was

22    the -- whether territory was part of the Banovina territory in 1939;

23    Banovina was a creation that was established two years before the Second

24    World War.  Banovina Hvratska as it was styled, covered the very same

25    territory of the 30 municipalities that were included in Croatian

Page 25465

 1    Community of Herceg-Bosna.

 2       Q.   In that respect, if then we could go on to the immediately next

 3    paragraph of your report, we are now on page 8, the paragraph beginning on

 4    page 8 of the English report, again on -- in this instance I'm not sure

 5    about the Croatian page but it's the following paragraph, you make this

 6    statement:  "The selection of these 30 municipalities was obviously

 7    governed by certain historical and programmatic considerations."

 8            Could you comment to the Chamber or explain to the Chamber please

 9    what you mean by when you use the terminology "programmatic

10    considerations"?

11       A.   Well, what was obviously at play here was that the founders of

12    Herceg-Bosna considered this to be the territory that belonged to the

13    Croatian people historically speaking, and that for this reason, those

14    parts of the territory should become part of the Croatian Community of

15    Herceg-Bosna.  I explain here in some footnotes that this was the

16    territory that was part of Banovina Hvratska and I quote the view or the

17    belief that this was territory that was lost in an unjust development

18    after the Second World War.  This is quite important, I posit, because we

19    can see that Banovina Hvratska is mentioned in the preamble to the

20    constitution of the Republic of Croatia.

21       Q.   And in particular, looking at page 8 in the English version we can

22    see that at footnote 25; is that correct?

23       A.   And 26.

24       Q.   All right.  Could I then next ask you to look at, in your binders,

25    what will be in your tab as 109?

Page 25466

 1            JUDGE ANTONETTI: [Interpretation] Just a moment, please.

 2    Professor, I just noticed something, something that was already heard by

 3    other witnesses.  You said in the preamble to the constitution of the

 4    Republic of Croatia there is a mention, and they refer to the Banovina

 5    Hvratska.  On page 22 of line 35, this is what you say.  So if I

 6    understand correctly, the constitution of the Republic of Croatia mentions

 7    this in its preamble and they refer very clearly to the Banovina Hvratska;

 8    is that correct?

 9            THE WITNESS: [No interpretation]

10            JUDGE ANTONETTI: [Interpretation] Now when Croatia became a

11    recognised state, recognised by the international community, the

12    international community knew very well the constitution of Croatia, did it

13    not?

14            THE WITNESS: [Interpretation] The Banovina of Croatia was

15    established in 1939.  The reason was the attempt to prevent anything that

16    might have led to conflicts among the nations as a result of the justified

17    dissatisfaction of the Croats with their position in the Kingdom of

18    Yugoslavia.  In 1939, Banovina of Croatia was established and obviously

19    this included the present state of Croatia as well as the territory that

20    would subsequently become the Croatian Community of Herceg-Bosna.  The

21    preamble of the constitution mentions Banovina of Croatia in the place

22    where the constitution speaks about its historical development, which is

23    not unusual.  I believe that the reference to the Independent State of

24    Croatia, the so-called NDH, might be more in dispute than the reference

25    being made to Banovina Croatia which is a fact, even from the legal and

Page 25467

 1    constitutional aspects, so the reference to the Banovina is nothing in

 2    dispute when it comes to the constitution of the Republic of Croatia.  It

 3    shouldn't be challenged from any aspect.

 4            JUDGE ANTONETTI: [Interpretation] When we talk of the

 5    constitution, a preamble has the same value as the article of the

 6    constitution or not?

 7            THE WITNESS: [Interpretation] I happened to write an article about

 8    the function of a preamble which was published not only in Slovenia but

 9    also in Sarajevo, in Bosniak language, and there I have analysed the

10    different practices in the world with regard to the function of a

11    preamble.  By and large, it is believed that a preamble may be used as the

12    foundation for the interpretation of the contents of constitutional

13    provisions but there are also theoreticians who believe that a preamble

14    may also have a binding effect.  From that point of view, I would like to

15    refer you to a constitution -- a decision of the constitutional court of

16    Bosnia-Herzegovina which, pursuant to the preamble of the constitution of

17    Bosnia and Herzegovina made null and void some provisions of the

18    constitution of Republika Srpska, which referred to the position of the

19    constituent peoples in Bosnia-Herzegovina.  But we also have other

20    examples in the world.  The decisions of the highest judicial bodies which

21    evoked the constitutional preambles, especially in the cases when the

22    preamble contained something that is very important for a state, which is

23    not mentioned in any of the provisions of the constitution.  This was, for

24    example, the case in the constitution of Bosnia-Herzegovina.  A similar

25    thing happened in France because the constitution there failed to mention

Page 25468

 1    the rights and freedoms, whereas the preamble referred to the declaration

 2    of human rights, and so on and so forth.

 3            In other words, the significance of a preamble may be great.  In

 4    this particular case, in the case of -- in the case of Croatia, the

 5    preamble was similar to what Macedonia had at the time.  Bosnia does not

 6    have such provisions and I'm talking about the provisions which speak

 7    about the historical development of significance for the particular state.

 8            In other words, the meaning of what is written cannot be used as

 9    the grounds for some territorial pretensions of one state towards another.

10    That is my opinion.

11            JUDGE ANTONETTI: [Interpretation] Very well.  Thank you very much.

12            Mr. Scott?

13            MR. SCOTT:  Hopefully we can maybe finish on one or two questions

14    further on this particular topic before the break.

15       Q.   With the background in mind of what you've told us, Professor, in

16    the last few minutes, can I ask you, please, to look at 109 in your

17    binder?  For the record, Exhibit P 00109.  And while you're doing that,

18    finding that, I'll just simply state for the record this is Opinion number

19    3 of the Arbitration Commission of the Peace Conference on Yugoslavia,

20    more commonly known perhaps as the Badinter Commission.  An opinion that

21    was issued on the 1st of November 1992.  If you have that, sir, can I ask

22    to you look to -- on the second page I'll refer again to the English

23    document, on the second page, there are a number of numbered paragraphs,

24    paragraph first, paragraph second, paragraph third.  If I can ask to you

25    look at paragraph second, it says:

Page 25469

 1            "The boundaries between Croatia and Serbia, between Bosnia and

 2    Herzegovina and Serbia and possibly between other adjacent independent

 3    states may not be altered except by agreement freely arrived at."

 4            Can you comment on that opinion and that language in relation to

 5    your consideration of Herceg-Bosna's territorial claims?

 6       A.   This position of the international community, namely that

 7    boundaries may be changed only pursuant to agreements freely arrived at

 8    and not in any other way, against the will of a party, is very

 9    significant, a very significant opinion, which has a bearing on the

10    different situations that took place and that are still taking place when

11    new states are being established.  The arbitrary -- arbitration commission

12    made a big difference between the declaration of independence on the part

13    of certain republics and the right of the peoples to self-decision to

14    secession, and a different opinion when it came to the constituent peoples

15    of Bosnia-Herzegovina as the peoples that existed within one of the

16    republics of the former Yugoslavia.  Their right to self-determination was

17    considered differently.

18            JUDGE ANTONETTI: [Interpretation] Witness, if I understand

19    correctly, Mr. Badinter that everybody knows, who presented this opinion,

20    said the following:  Is it to understand that when two states are in

21    agreement, they can change boundaries?  Is that what he wanted to say?

22            THE WITNESS: [Interpretation] What was said was clearly said by

23    the Badinter Commission, i.e., the commission headed by Badinter, and not

24    only of his personal opinion.  And I believe that it would be fair to

25    conclude that boundaries could not be changed in any other way but by

Page 25470

 1    agreements reached through negotiations.  There is no precise reference as

 2    to who the parties to the agreement are.

 3            JUDGE ANTONETTI: [Interpretation] Yes.  But let's imagine, for a

 4    few seconds, that the Republic of Croatia and that the Republic of

 5    Bosnia-Herzegovina agreed on certain changes between Tudjman and

 6    Izetbegovic to change the border or the boundaries of Bosnia-Herzegovina

 7    by removing Herzegovina and by moving it on to the territory of the

 8    Republic of Croatia.  According to the public international law should we

 9    think that this would be a possibility?

10            THE WITNESS: [Interpretation] The Badinter Commission, I agree

11    with you, discussed only the issue that I'm not an expert in, i.e., the

12    issue of boundaries and the issue of international law that involve

13    states.  If an agreement were to be reached, obviously some internal

14    issues are being raised such as the issue of constitution.  According to

15    the constitutional order of Bosnia-Herzegovina that was in effect at the

16    time, it was stipulated that the boundaries could only be changed only if

17    that was so decided by the parliament pursuant to a referendum during

18    which two-thirds of all the electorate body would be in changing the

19    boundaries.  I am not sure what was the constitutional order of Croatia at

20    the time but I'm sure that Croatia made it sure that there were guarantees

21    that its boundaries could not be changed so easily.  For example, this

22    could not have been done only by the presidents of the republics alone.

23            JUDGE ANTONETTI: [Interpretation] However, as far as you know,

24    since you are the specialist here, since the Yalta agreements, do you know

25    whether some states have agreed to change their boundaries?

Page 25471

 1            THE WITNESS: [Interpretation] I believe that we are talking at

 2    cross-purposes.  I have just said that I'm not an expert in international

 3    law; I am an expert only in constitutional law.  When it comes to

 4    negotiations and agreements during the Second World War, it would be very

 5    hard for me to talk about the way boundaries were changed at the time.

 6    I'm familiar with the case that came to the European Court of Human

 7    Rights, when the boundary was changed between the Soviet Union and Poland,

 8    and at the same time, Poland received part of the German territory.  How

 9    this was done during the Second World War, and after, that is not

10    something that I would gladly talk about, but I believe that when it comes

11    to the dealing with the problems in the territory of the former

12    Yugoslavia, it is of some significance that this arbitration commission,

13    as an independent body, composed of the best experts who also held the

14    highest judicial positions within their respective states, determined

15    certain principles that arise from international laws and lay down some

16    principles as regards to boundaries that all those involved in dealing

17    with the boundary issues had to comply with.

18            JUDGE ANTONETTI: [Interpretation] The time has come for a break.

19    You know they stop selling coffee at 4.00.  So we are going to have a

20    20-minute break.

21                           --- Recess taken at 3.52 p.m.

22                           --- On resuming at 4.14 p.m.

23            JUDGE ANTONETTI: [Interpretation] Very well, Mr. Scott.

24            Before you proceed, the court deputy has to give us an IC number

25    belatedly.  Mr. Registrar.

Page 25472

 1            THE REGISTRAR:  Thank you very much, Your Honour.  One of the

 2    parties have submitted lists of documents to be tendered through Witness

 3    BB:  The list submitted by OTP shall be given Exhibit number IC 744.

 4            Thank you, Your Honour.

 5            JUDGE ANTONETTI: [Interpretation] Thank you.

 6            MR. SCOTT:  Thank you, Mr. President.  If I could just correct

 7    before we move off Exhibit P 00109, just so the record is clear, I think

 8    I -- before the break I reverted to the American conventions for dates,

 9    and I misstated the date.  The date of the document although it says so

10    right under the title was not November 1st, 1992, but the 11th of January

11    1992.  Just so the record is clear.

12       Q.   Professor, if I can next direct your attention, please, to page 13

13    of your report, and I believe it's on page 11 of the Croatian version, and

14    in this respect, we are assisted because in your report you've actually

15    underlined the particular language.  It says, "The HZ HB proceeds from the

16    premise of a mono-national Croatian state which does not guarantee

17    non-Croats any special individual or collective minority rights."

18            And I also would ask to you look at page 18 of your report, page

19    14 of the Croatian version.  And on that page, you also state that

20    non-Croats were treated as or viewed as second-class citizens under the HZ

21    HB.  You say it was because the HZ HB was not their state.

22            Can you comment further on the basis for making those statements

23    in your report?

24       A.   Yes.  I believe that this is connected with the question that we

25    already discussed, i.e., the question of the territory of the Croatian

Page 25473

 1    Community of Herceg-Bosna, and the reference made to the historical

 2    Croatian territories that we have already discussed when the Banovina of

 3    Croatia was mentioned.  In other words, the Croatian Community of

 4    Herceg-Bosna was established as a community that should have protected the

 5    rights of the Croatian people within Bosnia and Herzegovina.  In some

 6    documents, it is stated that it would also protect the rights of those

 7    Croats who did not have residence in the territory of Herceg-Bosna.  The

 8    way it was established was that at the meeting at which this community was

 9    established, representatives were present who had been elected from the

10    list of the Croatian Democratic Union which means that the Croatian

11    Community of Herceg-Bosna was established as a mono-national community and

12    that its bodies were also the same.  Some even say that this was a

13    mono-party formation given the role of the Croatian Democratic Union

14    during its establishment.

15            Based on the elements of the establishment of Herceg-Bosna, I am

16    very critical to this state because such a community, which puts the

17    interests of one people in the foreground, according to some democratic

18    standards which prevail in the modern world, should give a special place

19    to the protection of the rights of those people and groups of people who

20    are not of Croatian ethnic origin.  I must admit that when I was reading

21    the documents issued by the Croatian Community and the Croatian Republic

22    of Herceg-Bosna I did not find any provisions that would be directly

23    discriminating against those who were not of Croatian origin, but very

24    late and very few and far between were those provisions that positively

25    spoke about the obligation of that community to protect the rights of

Page 25474

 1    those people who did not belong to the body of the Croatian people in that

 2    community.

 3            JUDGE ANTONETTI: [Interpretation] What you say is important.

 4    However, it raises a legal issue.  Normally speaking, a constitution has

 5    effects on all the citizens of a given country, each and every citizen

 6    being equal to their fellow citizens, they must enjoy in the same way as

 7    other citizens what is agreed in the constitution.  I'm not aware of your

 8    country's constitution but I suppose that you too have minority groups.

 9    I'm not at all aware of your constitution.  Normally, though, in a

10    constitution that does not mention any minorities explicitly, in law, the

11    inhabitant, the resident, who is a citizen, a national, of that country,

12    does he not have the same rights no matter what his ethnicity is?

13            THE WITNESS: [Interpretation] Here we are talking about a

14    community for which it may be said that to a certain extent it might have

15    been an attempt to create a new state or a state community.  However, its

16    development did not go that far so as to formalise the issue of the

17    statehood of those who lived in Herceg-Bosna.  However, it was believed

18    that all the inhabitants of that area of Herceg-Bosna had and enjoyed the

19    same position and rights.  What I'm talking about is the fact that when

20    Herceg-Bosna was being established, and when its bodies were being

21    established, the protection of the historical rights of the Croatian

22    people came into the foreground as a priority and that's why the bodies of

23    that community were mono-national in their composition.  In other words,

24    the foundations were democratic elections.  However, when it came to the

25    establishing the Presidency of the Croatian Community of Herceg-Bosna,

Page 25475

 1    only those representatives that were elected from the list of the Croatian

 2    Democratic Union made it to the Presidency, which means that the basis for

 3    the establishment of that supreme organ in that community was

 4    mono-national.

 5            This gives a more acute perspective to the issue of equality of

 6    other inhabitants of that community.  In order for them not to feel as

 7    citizens of the second rank in that community, they should have given --

 8    been given even more rights.  In Slovenia, members of national minorities,

 9    particularly the Italian and Hungarian minorities as well as the Roma

10    population, enjoyed -- enjoy special rights which means that citizens that

11    belong to those minorities enjoy the rights that are enjoyed by other

12    citizens but they also have additional, individual and collective rights,

13    which amongst other things implies that the representatives of Italian and

14    Hungarian communities are represented by the state parliament.  What I'm

15    saying is that under such conditions, a state in the making, which is

16    trying to become an independent state, such a state should provide in its

17    most important documents provisions on the special rights and position of

18    members of other peoples and national minorities.

19            The then-prevailing constitution of the Socialist Republic of

20    Bosnia-Herzegovina had a broad range of provisions that provided for the

21    rights of the three constituent peoples and members of other peoples and

22    national minorities that resided in Bosnia-Herzegovina at the time.  So

23    this should not have been a novelty or a particular exception to the rule

24    that prevailed at the time.

25            JUDGE ANTONETTI: [Interpretation] [Previous translation

Page 25476

 1    continues] ... discover that there are ethnic minorities in your country,

 2    for instance, Italians and Hungarians who enjoy specific or special

 3    rights, but did you not tend to apply the Slovenian mode of operation to

 4    the analysis you made of Herceg-Bosna?

 5            THE WITNESS: [Interpretation] Yes, I did draw a comparison, and in

 6    my analysis I pointed to the differences.  One of the major differences,

 7    very important ones, is relative to this particular issue.  When the

 8    Republic of Slovenia became independent, all the inhabitants of Slovenia,

 9    i.e., all those who had permanent residence in Slovenia at the moment,

10    even if they originated from other republics and they were not Slovenians

11    by origin had the right to vote in the plebiscite for the independence of

12    Slovenia.  In addition to that, Slovenia guaranteed to them that they

13    would be entitled to Slovenian citizenship without any other basis for

14    that but the basis that they had permanent residence in Slovenia at the

15    time.

16            The results of the plebiscite showed that many of them voted in

17    favour of the independence of Slovenia although they were not nationals of

18    Slovenia at the time.

19            JUDGE ANTONETTI: [Interpretation] Very well.  We understood

20    perfectly.  Please proceed, Mr. Scott.

21            MR. SCOTT:  Thank you, Your Honour.

22       Q.   Sir, you actually addressed a number of other questions that I

23    would put to you.  You mentioned for example the role of the HDZ political

24    party.  So I'll move on from that.  But let me go to page 16 of your

25    report, page 13 in the Croatian version.  On the bottom of page 16 of the

Page 25477

 1    English version, you make reference to something called "SAO-isation".

 2    Can you explain to the Judges what you mean and perhaps put that further

 3    in context and what you meant by reference to "SAO-isation"?

 4       A.   Yes.  This term, "SAO-isation" referred to the establishment of

 5    Serb autonomous regions.  This is something that happened both in the

 6    Republic of Croatia and the Republic of Bosnia-Herzegovina.  This was a

 7    process whereby the Serb people organised themselves in special

 8    territorial units.  Croatia, unlike Slovenia, for instance, had a

 9    substantial part of territory that was inhabited by ethnic Serbs, and

10    Croatia deemed that the establishment of Serb autonomous regions in its

11    territory is, in fact, a basis for the secession of these parts of its

12    territory from Croatia and their annexation to Serbia or rather that this

13    was a basis for the establishment of the so-called Greater Serbia.  I

14    would like to stress here something that I've put in my report, too, and

15    that is that the constitutional court of the Republic of Croatia, in 1990,

16    annulled the decision on the establishment of such communities, the

17    community of municipalities of Northern Dalmacija and Lika, ruling that

18    the decisions to establish those communities were unconstitutional and

19    illegal or rather that they were not based on the constitution and the

20    law, and furthermore, they were not published, and that was also one of

21    the prerequisites for a legal decision to be valid.

22            As regards the organisation of those territorial units on the part

23    of Serbs, Croatia saw that as an attempt to have those territories secede

24    from the Republic of Croatia.  The representatives of Croats and Bosniaks

25    held the same view regarding the establishment of the Serb autonomous

Page 25478

 1    regions in Bosnia-Herzegovina, and the establishment of the Croatian

 2    Community of Herceg-Bosna is something that is surprising in this light,

 3    because something that is branded as unacceptable on the one hand is being

 4    pursued and the same methods are being used to ensure special status for a

 5    certain part of the territory.  And that is why I think that we can say

 6    that the establishment of the Croatian Community of Herceg-Bosna is

 7    something that came about as a consequence of the SAO-isation, something

 8    that followed on it, and something that can have the same negative

 9    consequences as the establishment of the Serb autonomous regions.

10       Q.   If we can now move on to another one of the principal factors that

11    you listed in your report and that we briefly discussed at the beginning

12    of your testimony, and that is government, on page 18 of your report, in

13    the English version, and on page 15 of the Croatian report, in the first

14    paragraph under 2.3, you talk about there being two phases in reference to

15    the bodies of the HZ HB and you say:

16            "The first phase began with the establishment of the HZ HB (18th

17    November 1991) and lasted until the establishment on 8 April 1992 of the

18    Croatian Defence Council and its constitution at the municipal and HZ HB

19    levels.  The second phase lasted until the establishment of the Croatian

20    Republic of Herceg-Bosna (28 August 1993)."

21            Now in talking about the structures of the government in that

22    context and focusing for a moment on what you've called the first phase,

23    can you tell the Judges what was the principal governmental body in

24    reference to the entity Herceg-Bosna in the first phase, as you've

25    described it?

Page 25479

 1       A.   Yes.  In the first phase, Herceg-Bosna had a rather simple

 2    organisation.  There was the concentration of power in the hands of a

 3    single body, and its officials.  The body was called the Presidency of the

 4    Croatian Community of Herceg-Bosna, and the Presidency, and in particular

 5    four of its officials, held in their hands all the power in the Croatian

 6    Community of Herceg-Bosna.  So no other bodies of executive and

 7    administrative government were established, because all those elements

 8    that would be in the hands of the parliament, the government, the head of

 9    state in a normal state, that was all concentrated in the hands of the

10    Presidency, the president, the two vice-presidents and the secretary of

11    the Presidency of the Croatian Community of Herceg-Bosna so that was what

12    the situation was like until the HVO was established.

13       Q.   Could I ask you to be very, very clear in telling us or describing

14    which Presidency you're talking about?  Because the Judges in this case,

15    in fact all of us, have heard the term Presidency used in a number of

16    different contexts.  You just identified four positions, the president,

17    two vice-presidents and secretary of the Presidency.  If I can put names

18    to those and then can you confirm to me is that the Presidency you're

19    talking about?  Mr. Boban being the president, Bozo Rajic being one of the

20    vice-presidents at that time, Dario Kordic being another vice-president at

21    that time, and Ignac Kostroman being the secretary of the Presidency; are

22    those the four individuals you have in mind?

23       A.   Yes.  These are the top officials in the Presidency of the

24    Croatian Community of Herceg-Bosna.  These are the people that are

25    referred to when you talk about the leadership of the Croatian Community

Page 25480

 1    of Herceg-Bosna.  So these are the leaders.  And the members are

 2    representatives of the 30 municipalities that comprised the Croatian

 3    Community of Herceg-Bosna.  But one has to add that very early on, the

 4    function of the president of the Croatian Community of Herceg-Bosna became

 5    independent from the Presidency.  So Mr. Boban was not only the president

 6    of the Presidency but very early on in this first stage he became the

 7    president of the Croatian Community of Herceg-Bosna, but in this first

 8    phase those functions were not clearly delineated yet.

 9       Q.   All right.  But, again, just to be very clear, when you talk about

10    this first phase, and that is for approximately November 1991 until April

11    1992, when you refer in your report to the Presidency being the dominant

12    governmental body, you're talking about this Presidency made up of Boban,

13    Rajic, Kordic and Kostroman?

14       A.   That's correct.

15       Q.   Now, let me move forward then to what you described as the second

16    phase, from the creation of the HVO on or about the 8th of April 1992 to

17    the establishment of the republic at the end of August 1993.  Can you tell

18    the Judges how the governing structures of Herceg-Bosna changed, if they

19    did, during the second phase and how that evolution took place?

20       A.   Well, we could say that once the HVO was established, the

21    executive and administrative functions became separate from the functions

22    of the Presidency.  The HVO was set up as some kind of a government, an

23    emerging government, and we could say that this is a natural second phase.

24    So operational responsibilities for the implementation of the decisions

25    was now in the hands of the HVO, which was organised in the following

Page 25481

 1    manner.  Or it was organised in such a manner that we can really say that

 2    it resembled a normal government.  It had bodies, departments, some

 3    members are responsible for certain areas, which are parallel to ministers

 4    in normal governments, but we have to say here that the HVO remained

 5    subordinate to the Presidency of the Croatian Community of Herceg-Bosna,

 6    and that the Presidency had substantial powers over the HVO, both in terms

 7    of issuing guidelines for its work and also in terms of the power of veto

 8    over any decisions reached by the HVO.

 9            So I think that there was a shift in the relationship there, and

10    that the position of the Presidency of the Croatian Community of

11    Herceg-Bosna and its presidents -- president, actually weakened but it has

12    to be stressed at the same time that the Presidency retained quite a lot

13    of its original powers, and the Presidency also retained the control over

14    the operation of the HVO.  At a later stage, the HVO, in addition to what

15    is considered normal for an executive body to do, on some occasions took

16    decisions that are normally taken by a House of Representatives, a

17    parliament in a normal state but I don't think that it is such an oddity

18    in fact because these were exceptional circumstances, after all.  We are

19    talking about a war or threat of war.  And even in established democracies

20    some powers are conferred on the executive in such circumstances too.

21       Q.   All right.  Let me come back to a couple of things you've just

22    said in a few moments but before we move forward in time, because we were

23    talking about the second phase beginning in approximately April of 1992,

24    can I ask you, please, to turn to what you will find at tab 297, which is

25    Exhibit P 00297.  You have that, sir.  Can I ask to you look at that and

Page 25482

 1    this appears to be the appointment of Bruno Stojic as head of the Defence

 2    Department of the Croatian Defence Council of the Croatian Community of

 3    Herceg-Bosna dated the 3rd of July 1992 over the name of Mate Boban.  And

 4    I note in this particular decision Mr. Boban apparently is described as

 5    the president at this time of the HVO and the HZ HB.  Can you comment on

 6    that and how long that continued to be the case?

 7       A.   Yes.  In the first phase, the president of the Croatian Community

 8    of Herceg-Bosna was at the same time the president of the HVO.  This

 9    situation lasted a couple of months, until August, in fact, which was when

10    another man was appointed the president of the HVO so it was no longer the

11    president of the Croatian Community of Herceg-Bosna by virtue of his

12    office.  As regards this decision, it may serve to illustrate what I was

13    talking about that the HVO was organised along the same lines as a normal

14    government because in this decision, a person is appointed the head of a

15    department and it would be quite natural to expect that the president of

16    the HVO would propose to the Presidency the person to be appointed to such

17    a post but in this case we are talking about the very same person, who

18    held both functions.  So from that point of view, this is quite odd.

19       Q.   If I can just before we move too much further ahead, you may have

20    misspoke, sir, and I just want to give you the opportunity to correct it.

21    You said in the first phase, the president of the Croatian Community of

22    Herceg-Bosna was at the same time the president of the HVO.  But as you've

23    described the first phase, the HVO didn't exist yet.  Did you mean to say

24    in the early part of the second phase?

25       A.   Yes, yes.  That's what I meant, the first few months of the second

Page 25483

 1    phase, after the HVO was established but before the HVO got its president.

 2       Q.   And you also said a few moments ago that it was sometime in August

 3    1992 that another man became the president of the HVO.  Do you know who

 4    that was?

 5       A.   Yes, I do know.

 6       Q.   And who was that?

 7       A.   That was Jadranko Prlic.

 8       Q.   You -- if I can direct your attention to page 32 and 33 of your

 9    report, page 25 in the Croatian version, at the bottom of page 32 of the

10    English version, continuing on over to the top of page 33, I believe it's

11    fair to say that you summarise some of the things that you've said in the

12    last few minutes.  And I'll just start with the sentence that says,

13    "Within the framework" at the bottom again of page 32.

14            "Within the framework of these regulations, the HZ HB Presidency,

15    as the 'supreme' leadership of the HZ HB originally held exclusive

16    sovereign power while later on the 'supreme' power was exercised by both

17    the HZ HB Presidency and the President of the HZ HB, either directly or

18    through the HZ HB-HVO and other executive and administrative bodies at the

19    HZ HB-HVO level and at the level of the municipal HVOs.  Later on, the HZ

20    HB-HVO gradually took over all executive and administrative functions, and

21    to a certain extent also -- also the legislative function."

22            And I believe you were saying a few moments ago in fact that you

23    found that the HVO over time did take on not only executive power but also

24    the legislative power of Herceg-Bosna; is that correct?

25       A.   As regards the last part, some decisions taken by the HVO are such

Page 25484

 1    that in a normal division of government, they would be in the purview of

 2    the parliament, but I've already stressed that in other modern democratic

 3    states, in a state of war or imminent threat of war, the executive power

 4    is given certain tasks, it is either the president of the state or the

 5    prime minister or both, they are given certain additional responsibilities

 6    or additional powers.  This is obviously what happened in the second stage

 7    of the development of the Croatian Community of Herceg-Bosna, and this is

 8    why the Presidency of the Croatian Community of Herceg-Bosna did not meet

 9    regularly.  It actually met very seldom.  So to sum up, I would say that

10    in the second phase, the HVO had a very strong position.  It had

11    substantial executive and administrative powers and it even had some

12    legislative powers.  But at the same time, the Presidency, and in

13    particular the president of the Croatian Community of Herceg-Bosna,

14    retained a lot of influence and a very strong position.

15       Q.   In terms of the structure of the HVO government itself, if I could

16    ask you, please, to turn to tab 440, which is Exhibit P 00440, and if you

17    have that, you can confirm, sir, that this is the decree on the

18    organisation, responsibilities of the departments and commissions of the

19    Croatian Defence Council and the Croatian Community of Herceg-Bosna as

20    adopted on the 15th of May 1992?

21       A.   Yes.

22       Q.   And if I can ask you to look at Article 8 for an example, can you

23    confirm that when the HVO government was structured in this way, pursuant

24    to this decree, that one of the -- well, in Article 8 we have all the

25    departments at that Time listed including the Department of Defence.  Do

Page 25485

 1    you see that?

 2       A.   Yes.

 3       Q.   Could I ask you next, please, to go to P -- in your tab, in your

 4    binders, it will be 128 but it is Exhibit P 00128.

 5       A.   Yes.  I found it.

 6       Q.   And if I can just direct your attention to page 1 and 2 of the

 7    English version, I assume for these purposes, since it's the beginning of

 8    the document it's roughly the same in the Croatian version, perhaps all on

 9    page 1 but if not, perhaps page 1 and 2 but at the bottom of page 1 of the

10    English version you'll find this paragraph starting with, "The HVO-HZ HB

11    was founded in May 1992."

12            And I'm not going to take everyone's time to read that entire

13    paragraph but if we skip to the end of that page, it says:

14            "However, in time, the above rights and obligations were expanded

15    to a full legislative function because by a change of the statutory

16    decision, earlier right to pass regulation within its own sphere was

17    expanded."

18            And then it goes on to say in the last sentence of that

19    paragraph:

20            "Since for the passing of the regulations it is necessary to

21    define one's political orientation and views, responsibility for

22    determining policy in all spheres was in effect transferred to a certain

23    extent to the HVO-HZ HB."

24            Can you tell us please how that statement and this is a reports of

25    the HVO government for the time period from its creation, in April 1992,

Page 25486

 1    to 31 December 1992, it tells us at the top of the first page, how does

 2    that enter into your analysis and what you told us in the last few

 3    minutes?

 4       A.   Yes.  What is written here in this HVO report on its work in 1992

 5    formed the basis for the part of my report where I say that to a certain

 6    extent, it had a legislative function too.  It would be very difficult for

 7    me to accept that the legislative function as a whole was now in the hands

 8    of the HVO.  I have to say now that there was a debate on this issue, when

 9    I gave evidence here for the first time seven years ago, and I insisted at

10    that time, as I do now, that both the Presidency and the President of the

11    Croatian Community of Herceg-Bosna retained in the second phase very

12    strong powers.  So we cannot overlook what the HVO said here, describing

13    its own legislative function, and its own strong position, but on the

14    other hand, we have to take into account the fact that the Presidency

15    continued to be superior to the HVO and the President of the Croatian

16    Community of Herceg-Bosna played a major role in personnel decisions and

17    the operation of the HVO.

18       Q.   All right.  And again we will come back to some of those items in

19    a few moments, I hope, but before we do that can I ask you next to go to

20    tab 684 or Exhibit P 00684, on the question as you've described it in the

21    last few minutes of the expansion of the HVO's legislative powers.  684.

22    This makes reference to a decision taken on the 17th of October 1992 and

23    can you look at it, please, and can you confirm to the Judges that when

24    you talk about -- I referred you a moment ago to language in Exhibit

25    P 00128, the report on the work of the HVO, where it talked about -- I'll

Page 25487

 1    just quickly quote the language again -- you don't have to turn to it, but

 2    it talks about:  "Because by a change of the statutory decision, the

 3    earlier right to pass regulations within its own sphere was expanded."

 4            And if you look at Exhibit P 00684, can you tell the Judges

 5    whether it was in part as a result of this decision that the legislative

 6    powers of the HVO were expanded?

 7            JUDGE ANTONETTI: [Interpretation] Witness, we are now dealing with

 8    a very important subject because we are talking about responsibilities of

 9    parties and as a judge I am not allowed to make any mistakes in this

10    matter.  If I understand you correctly, and I will try to summarise, you

11    will tell me if what I'm summarising is adequate:  To begin with, we have

12    the Croatian council with a Presidency, we have a vice-president and the

13    general secretary, the president of the Presidency is Mr. Mate Boban.

14    That's what's at the onset.  Then we have the creation of the HVO, and at

15    that time, we are going to see on the 8th of April 1992, this is what you

16    stated, we will see the creation of a certain form of government of the

17    HVO, and we saw documents to that effect.  We noticed, therefore, that

18    Mate Boban, who at the time was wearing two hats, the hat of the president

19    of the HVO as well as the hat of the president of the Presidency of the

20    HZ HB, whose functions in the HVO were replaced by Mr. Prlic who then

21    becomes the president of the HVO, but Mate Boban remains the President of

22    the HZ HB, and just a few moments ago, you told us that he kept very

23    important powers.

24            So at a certain point in time, to qualify the HZ HB, you stated

25    that he had the ability to give directives and he also had a veto, the

Page 25488

 1    power of a veto, so in constitutional terms and when we talk about the way

 2    a government functions, is it right to say that the reality of the power

 3    was exercised by Mate Boban who was also the head of the army and that

 4    Mr. Prlic, who was the President of the HVO and then had various

 5    ministers, depended on Mate Boban, even as we see it in the last document

 6    that we looked at, they had within the HVO the possibility to take law

 7    texts, decrees and, et cetera, but as the last text that we saw tells us

 8    within its attribution or his attribution, rather, within his powers, it's

 9    on Article 1 of the decision of the 3rd of November 1992.  So in a certain

10    way, can we not say that we had a sort of a pyramid with the Presidency of

11    the HZ HB on the top, at the head of which was Mate Boban, and underneath

12    we have the HVO, whose president was Mr. Prlic?  Was that the functioning

13    structure of Herceg-Bosna?

14            THE WITNESS: [Interpretation] I must say that I largely agree with

15    that approach.  When it comes to the relationship between the parliament

16    and the head of state on the one side and the government on the other

17    side, in the modern democratic states, this is not a classical

18    subordination and subordination relationship in which -- but that the

19    government has a high degree of its only responsibility and independence.

20    To what extent this applied to the HVO or maybe it didn't apply to them in

21    practice, it's very hard to say.  I must agree with Mr. Scott.  He drew

22    our attention to some elements based on which one may conclude that the

23    HVO also had something that is not usual and customary that goes beyond

24    what the government normally has, and that is that it could issue

25    decisions in order to regulate some general issues.  The orders to that

Page 25489

 1    effect were issued that would normally be issued by the legislative body

 2    rather than the government.  With that caveat, I have to agree with what

 3    you have offered as a summary of my presentation.

 4            JUDGE ANTONETTI: [Interpretation] Very well.  Thank you.

 5            Mr. Scott?

 6            MR. SCOTT:

 7       Q.   Professor, I'm going to have to go back now some minutes to the

 8    question that I put to you but you have not yet answered, and that was

 9    simply that -- try to remember it as close as I can without going back and

10    reading the transcript -- I directed your attention to Exhibit 684 and

11    asked you, in looking at that exhibit, would that illustrate to you or was

12    that one of the bases on which you -- that supports the conclusion that

13    the legislative powers, for example, that you just mentioned of the HVO

14    were expanded in the fall of 1992?

15            MR. KARNAVAS:  Your Honour, before the gentleman answers the

16    question I would ask the gentleman to look at the entire Article 1,

17    especially the last two paragraphs, because I think we need to have the

18    answer in context, so if he could look at the last paragraph, the last two

19    paragraphs, because there is a caveat there which would explain why

20    certain powers, as it be, were delegated under the extraordinary

21    circumstances of the time.  Keeping in mind of course that the gentleman

22    did indicate that the Presidency was unable to meet on a regular basis due

23    to the conditions on the ground.  So I think we have to look at it in

24    context and I think that's -- so I think the gentleman wishes to be fair.

25    I'm giving him an opportunity to do so.

Page 25490

 1            MR. SCOTT:  Well, Your Honour, I put -- first put this question

 2    about 15 minutes ago, and with all due respect to the Chamber, if I could

 3    put and follow my questions and get answers to my questions, and also

 4    before the interventions with all respect of the Chamber and of

 5    Mr. Karnavas and others it would be helpful.  No one is trying to deceive

 6    anyone here.  The whole document is in the record.  Everyone know what is

 7    it says.  So I still repeat for the third time, for the third time, sir,

 8    my question to you.

 9       Q.   If you look at Exhibit P 00684, can you confirm to us that it was

10    in part at least based on this decision in October -- the 17th of October

11    1992, by which the legislative powers of the HVO were expanded?

12       A.   Yes.  My answer would be yes to that.  This decision is about four

13    types of documents that were issued by the HVO.  I believe that document

14    2, 3 and 4 are not in dispute because they were typical of the executive

15    power.  Only the first document, the decree, is in dispute.  From that

16    point of view it is interesting because it allowed the HVO to issue

17    decision of general interest, i.e., decisions that would have normally

18    been passed in any modern state by the parliament, i.e., the

19    representative body, in the case of Herceg-Bosna, it would have been the

20    Presidency of the Croatian Community of Herceg-Bosna.  The fact is that

21    this decision created the norm for such enlargement of the functions of

22    which I have already said that it can be encountered in the constitutional

23    orders of modern democratic states which envisage that under special

24    conditions or under the threat of war, such solutions that would provide

25    the efficient functioning of the state under conditions when the

Page 25491

 1    parliament is unable to convene or it cannot be convened on a regular

 2    basis.  From that point of view --

 3            JUDGE ANTONETTI: [Interpretation] I'm terribly sorry for

 4    interrupting you but the intervention by Mr. Karnavas which could have

 5    been made during the cross-examination was nevertheless important.  When

 6    you talked about democratic states, you talk about parliaments and so on

 7    and so forth, you know that at the time there was a war, and if I compare

 8    it to Bosnia and Herzegovina, the President Izetbegovic had also

 9    proclaimed a state of war.  So there was a special state, something was

10    going on, there was a state of war and in a state of war it is right to

11    say that the parliament cannot convene and somebody has to take decisions.

12    Now, the text that everybody has on the screen shows us that the ones that

13    can take a decision is the HVO.  But if we read the last two paragraphs of

14    the Articles, is the following, and I can of course refer to the way some

15    people were nominated.

16            Now, please tell me, and please correct me if I'm mistaken can we

17    not finally say that the HVO within its functioning could not have decided

18    of everything without having a certain form of control of the HZ HB who,

19    as a last resort, had the responsibility and that at any time Mate Boban

20    was able to intervene, since on the one hand there was a state of war and,

21    on the other hand, the HVO, such as it was created, did not transfer, as I

22    think, I may be mistaken, the powers of Mate Boban and the Presidency of

23    the HZ HB completely on the HVO?  What do you think of this?

24            THE WITNESS: [Interpretation] I share your opinion.  I believe

25    that this decision allowed the HVO to apply this decree; and in the cases

Page 25492

 1    when the Presidency was unable to meet, and there was a lot of such cases,

 2    the Presidency did not meet very often during that period of time, so it

 3    could also pass decisions on such matters that would have otherwise been

 4    in -- within the purview of the Presidency.  In other words, this was an

 5    additional possibility, or maybe an exception, but this does not mean that

 6    the presidents could not have decided on the same issue.

 7            As for the particular question about the penultimate paragraph,

 8    which refers to the subsequent consent of the Presidency of the Croatian

 9    Community of Herceg-Bosna, this is also another standard or something that

10    is common in normal constitutional orders, which means that a body issues

11    a decision during the state of war, this decision has to be approved by

12    the body that would normally have been in charge of passing such

13    decision.  And what it says at the end, that if there is no such consent

14    then the application of such a decision is discontinued, which is only

15    logical in this case.

16            JUDGE ANTONETTI: [Interpretation] So let me ask you the most

17    important question, the paramount question.  We sometimes spend lots of

18    hours to summarise something but let me ask you this question:  What was,

19    according to you, the leeway of Mr. Prlic with respect to Mr. --

20            THE INTERPRETER:  The interpreter did not hear who else --

21            THE WITNESS: [Interpretation] In order to be able to answer this

22    question, it is not enough to be familiar with the constitution and legal

23    aspects but you have to be aware of the facts.  As far as I'm concerned,

24    the president of the HVO had relative independence in his doings but he

25    was subordinated to the president of the HVO [as interpreted].

Page 25493

 1            JUDGE ANTONETTI: [Interpretation] There must have been a mistake

 2    with relation to the president of the HZ HB; is that right?  Line 4, page

 3    63.  Mr. Scott seems to agree with me.

 4            So, Witness, what is it?  You read English.

 5            THE WITNESS: [Interpretation] Yes.

 6            [In English] Yes, it's okay.

 7            JUDGE ANTONETTI: [Interpretation] It's okay?

 8            MS. NOZICA: [Interpretation] Your Honours, I apologise.  Could you

 9    please look at line 24 on page 62.  I believe this is very significant.

10    The interpreters did not hear the second name that you mentioned and I

11    believe that it should be entered in the transcript, the second name.

12            JUDGE ANTONETTI: [Interpretation] Indeed, I was asking about

13    Mr. Prlic's leeway with relation to Mr. Mate Boban.  So the missing name

14    was Mate Boban's.  Very well.  Now things have been clear, I hope.

15            Please proceed, Mr. Scott.

16            MR. SCOTT:  Thank you, Mr. President.

17            Before we move forward, I think the answer that the Professor gave

18    in response to the point raised by counsel is not really clear -- or right

19    before that.  The issue was raised whether -- excuse me -- I just want to

20    make sure -- the issue was raised whether the second reference in line --

21    page 63, line 4 should be subordinated to the president of the HVO.

22            Mr. President, you suggested that properly should be the president

23    of the HZ HB; and in -- the witness simply responded:  "Yes, it's okay."

24    We don't know what:  "Yes, it's okay" means.

25       Q.   Professor, so is it correct to say that what you should have said

Page 25494

 1    at the -- on page 4 -- line 4 of line [sic] 63 was:  "... was subordinated

 2    to the president of the HZ HB"?

 3       A.   Yes, and I apologies.  What you are now saying, Mr. Scott, is

 4    correct.  I said that he had relative independence but that he was also in

 5    the position of subordination, and I meant the president of the Croatian

 6    Community of Herceg-Bosna when I said that.  And I thank you for

 7    correcting me.

 8       Q.   If we can try to move forward and then I'll come back to -- again

 9    hopefully come back to a couple of questions that are laying in all this,

10    but if we can proceed in steps.  On -- in your report, sir, at page 31 of

11    the English version - and I'm afraid in this instance I may not be able to

12    help with you the Croatian citation, but if you can find at -- it's on

13    page 31 of the English version - you make the statement -- if it helps you

14    it's above -- let me find the footnote reference for you.  It's right

15    around footnote 107.  If you find footnote 107 in the Croatian version

16    you'll be pretty close to the English reference.  Let me know when you

17    have that, please.

18       A.   Yes.

19       Q.   In that paragraph, there is this statement, if you can help me,

20    please.  It says:

21            "The HZ H Presidency might order the HZ HB-HVO to bring its

22    enactments into conformity with enactments adopted by the HDZ

23    Presidency."

24            Now, hold that thought, please, and if we could then turn to page

25    47 of the English version and page in this instance I can tell you it's

Page 25495

 1    page 37 of the Croatian version -- let me find my own reference.

 2            MR. SCOTT:  Excuse me, Your Honour, I need some help myself at the

 3    moment.

 4            MS. NOZICA: [Interpretation] I apologise, Mr. Scott.  If you're

 5    mentioning footnote 107, then in Croatian it is page 24.

 6            MR. SCOTT:  I meant the -- if the Chamber will just give me a

 7    moment to just sort this out.  I'm sorry, Your Honour, can I have another

 8    moment?  I have it.

 9            JUDGE ANTONETTI: [Interpretation] Mr. Scott, I thought you meant

10    the last paragraph of page 47 in the English version, which is an

11    interesting passage.

12            MR. SCOTT:  You're absolutely right, Your Honour.  I just -- thank

13    you for that, and I just found that just as you were saying the same

14    thing.

15       Q.   On the bottom of page 47 of the English version, and I think when

16    I got lost is when I was trying to help find the Croatian version, I think

17    it's on page 37 of the Croatian version.  But you say there that:

18    "Control" -- in that paragraph it says:

19            "Meanwhile, control over the entire territory was in the hands of

20    the HVO and indirectly the HZ HB Presidency as its superior organ."

21            And By the way, there is no dispute about that.  But let me ask

22    this question to you, following up on this language and in the questions

23    that have been put to you by the President.  Can you identify for the

24    Judges any instance, any instance, in which the HZ HB Presidency

25    invalidated, vetoed, or annulled any action taken by the HVO?

Page 25496

 1            MR. KARNAVAS:  Lack of foundation, Your Honour.  First, the

 2    gentleman must be asked whether he looked at all of the legislation, all

 3    of the Official Gazettes; and if so, then I believe that he can pose that

 4    question.  We don't know exactly what he looked at, and so I think it

 5    would be unfair.  Whether he -- whether it was shown to him or not, I

 6    don't know, but I think that's a foundational question that must be

 7    answered first.

 8            MR. SCOTT:  Your Honour, I just --

 9            JUDGE ANTONETTI: [Interpretation] Well, with this foundation

10    question seems to be the conclusion drawn by the witness after all the

11    preceding paragraphs, a kind of conclusion.

12            Witness, is this last paragraph, in fact, a conclusion you draw?

13            THE WITNESS: [Interpretation] Yes.  This is a conclusion that I

14    arrived at, and I just supplemented it with the sentence in which I made a

15    mistake, the previous sentence.  As far as Mr. Scott's question is

16    concerned, I must say that I have reviewed all the documents that were

17    adopted by the bodies of Herceg-Bosna and that were published in the

18    Official Gazette.  I had a copy of each edition in my hands at least once,

19    and I must say that I have not come across a single case in which there

20    would be either a situation or a written material or a preamble to a

21    document that it was passed based on the guide-lines of the Presidency or

22    that there was a subsequent veto.  However, this does not have to mean

23    that the officials in question were not in constant contacts.  So based on

24    what I know and based on what I could read and study, I believe that it

25    would be fair to say that this was the case of relative independence of

Page 25497

 1    the presidents of the HVO and the HVO as a whole and that both were

 2    subordinated to the presidents -- president of the H -- Croatian Community

 3    of Herceg-Bosna.  What was the factual situation like?  It is very hard

 4    for me to tell based on the written materials.

 5            MR. SCOTT:

 6       Q.   I'm going to come back because you give long answers, and I wanted

 7    to ask you this very specifically.  First we are talking about the de jure

 8    situation, and I think you've made it clear this afternoon -- and in fact

 9    again let me just make it clear to the courtroom, there is no dispute

10    about that.  De jure, the president -- the HZ HB Presidency could

11    invalidate or direct the actions of the HVO government; that's de jure.

12            Now, again, answer this specific question, this specific question

13    only, please.  In your research, did you come across any instance in which

14    the HZ HB Presidency invalidated, vetoed, or annulled an action by the HVO

15    government?

16       A.   The answer to your first question is yes, de jure; and de facto, I

17    don't know of any such decision.

18       Q.   Before we move on, then, in terms of some of the aspects of

19    governmental power in your report, could I ask you to look at tab 306,

20    which is P 00306?

21       A.   I've found it.

22       Q.   Thank you.  If you can look at that for a moment, and this just

23    falls under the -- kind of gotten away from this a bit, but we were

24    talking about the features of statehood and the powers of the government.

25    And do you see, for example, in Exhibit P 00306 that there was a decree on

Page 25498

 1    public enterprises in the Croatian Community of Herceg-Bosna which could

 2    set up a number of administrative bodies, for example, production,

 3    transmission, supply of electricity, water management, the telephone

 4    service, et cetera?  Do you see that?

 5       A.   Yes.

 6       Q.   And there is a reference in Article 1, item H, to the Official

 7    Gazette of the HZ HB.  Was that Official Gazette known as the Narodni

 8    List?

 9       A.   Yes.

10       Q.   And what role did the Narodni List play in the governmental

11    structure or legal structure of Herceg-Bosna?

12       A.   The Narodni List published all decisions passed by the bodies of

13    the Croatian Community of Herceg-Bosna.  That was the Official Gazette,

14    such as the states have in order to publish their laws and other

15    regulations.  One should also mention that in the former state, within the

16    republics of the former Yugoslavia, even the municipalities published

17    their own regulations in the Official Gazettes, but not a gazette that was

18    their own but, rather, in the Official Gazette of the republic that they

19    belonged to.

20       Q.   All right.  Can I then move on to -- if you can turn to page 24 of

21    your report in the English version or page -- excuse me, Croatian page 9,

22    doesn't seem to be right to me.

23            MR. SCOTT:  Again, please, if the courtroom will just give me a

24    moment, it's in reference to paragraph -- footnote 76.

25       Q.   If you can find in the Croatian version, Professor, your footnote

Page 25499

 1    76.  I'm sure it's my mistake for having written down the wrong page or

 2    something.

 3            JUDGE TRECHSEL:  It's 19.

 4            MR. SCOTT:  Thank you, Your Honour.  I dropped the one, obviously,

 5    it said nine instead of 19.  Thank you, Judge Trechsel.

 6       Q.   If you can look at page 19 of the Croatian version, sir, and in

 7    reference to footnote 76, if -- that will make the citation very specific

 8    you make this statement:

 9            "The HVO exercises centralised control over the work of municipal

10    HVOs and has the power to annul and abolish their enactments and dissolve

11    municipal HVOs."

12            Can you comment further on that and indicate how that fits into

13    your assessment of the governmental powers of the HVO?

14       A.   Yes.  I think this is an important power that the HVO has, and as

15    I say in this part of my analysis, this establishes an effective state

16    government or governance in the entire territory of the Croatian Community

17    of Herceg-Bosna.  Regardless of the number of instances in which this kind

18    of control is exerted by the HVO over the municipalities, it is certain

19    that this kind of power is quite important, and the other party is in a

20    subordinate position to an organ that may exercise this kind of power and

21    right.

22            JUDGE ANTONETTI: [Interpretation] Witness, following directly from

23    what was said, and more specifically from this passage on this decree

24    published in the Narodni List, you studied all the texts, and as you know,

25    there is a decision establishing the Croatian Council of Herceg-Bosna of

Page 25500

 1    the 18th of November, 1991, which we find in Exhibit 78.  Article 7, this

 2    is the one that keeps being referred to in all the HVO decrees.  If you

 3    read Article 7, you see that the legislative organ of the HZ HB is the

 4    Presidency; in theory, it is the Presidency.  When the HVO is created,

 5    according to you - because you are the constitutional expert - is there no

 6    delegation of the legislative powers to the HVO presided over by Mr. Prlic

 7    whilst remaining under the control of the Presidency, under the control of

 8    the HZ HB?

 9            THE WITNESS: [Interpretation] It is my conviction that what

10    happened is that the -- all the powers pertaining to the executive and

11    administrative power were delegated to the HVO and in exceptional

12    circumstances the HVO could take decisions that were within the purview of

13    the legislative power which was not delegated in its totality from the

14    Presidency to the HVO.

15            JUDGE ANTONETTI: [Interpretation] However, such transfer or

16    devolution as you qualified it, constitutionally speaking, as it were,

17    should it not have been sort of endorsed by all the 30 municipalities that

18    were part of the Croatian council?

19            THE WITNESS: [Interpretation] Well, from the standpoint

20    constitutional law the Presidency was the body that represented the

21    municipalities.  This was how things were set up, and in this manner, the

22    municipalities were represented through its representatives, through their

23    representatives in the Presidency, when any decisions regarding the HVO

24    were taken.

25            JUDGE ANTONETTI: [Interpretation] Well, you're not really

Page 25501

 1    answering my question.  You say that in your view, there was a transfer of

 2    power from the Presidency to the HVO level.  And my question, my technical

 3    question, is this:  Such transfer, should it not have been approved of,

 4    endorsed, by all of the municipalities?

 5            THE WITNESS: [Interpretation] Well, as far as I'm concerned, the

 6    controversial thing when the Presidency was set up was the fact that it

 7    was set up on a single-party and single-ethnicity basis but what is not

 8    controversial --

 9            JUDGE ANTONETTI: [Interpretation] Sorry, I'm not speaking about

10    the ethnic level.  I'm speaking about a purely legal level.  Legally

11    speaking, there are municipalities that create the Croatian council of

12    Herceg-Bosna with a Presidency.  Then, Mr. Mate Boban was the President of

13    the Presidency.  And the constitutional text, Article 7, states that the

14    legislative power rests with the Presidency.  When the HVO was created,

15    with various ministries or departments and Mr. Prlic became the president

16    of the HVO, if there was indeed the transfer that you mentioned, did this

17    de jure transfer have to be approved or not by the municipalities?  But if

18    there was no such transfer, does that not mean that the legislative power

19    is deferred but it is done whilst being controlled by the HZ HB, and that

20    therefore, there is no need to have the approval of it by all of the

21    municipalities?

22            THE WITNESS: [Interpretation] Well, one could take a very strict

23    view that I actually mention in my analysis, and that is that some of the

24    decisions are of a constitutional-legal nature.  In other words, that if

25    we have a meeting where the Croatian Community of Herceg-Bosna was

Page 25502

 1    established, this is not something that should be changed by the

 2    Presidency but a similar meeting involving the representatives of all the

 3    municipalities that comprise the Croatian Community of Herceg-Bosna should

 4    be organised.  I personally take the view that this transfer of some

 5    elements of the legislative powers in the conditions of war is not

 6    something that is as significant as the establishment of the President, of

 7    the function of the President of the Croatian Community of Herceg-Bosna

 8    which was also not done in accordance with the procedure whereby all the

 9    municipalities could give their approval.  So there were decisions that

10    were even more momentous that were taken by the Presidency as some kind of

11    a regular legislative body.

12            JUDGE ANTONETTI: [Interpretation] Well, Mr. Scott?  I know my

13    questions are lengthy but they are relevant ones, aren't they?

14            MR. SCOTT:  Of course they are, Your Honour.

15       Q.   If I could just follow up, sir, in reference to the President's

16    questions, in fact, to Exhibit -- if we can go back I'm afraid to

17    Exhibit P 00684, in terms of the delegation of legislative power to the

18    HVO.  Do you still have 684, there, sir?

19       A.   [In English] Yes.

20       Q.   If you look at the opening language of that document, does it say,

21    "Pursuant to the decision of the establishment of the Croat Community of

22    Herceg-Bosna, Article 7" - as the President just referred to - "the

23    Presidency of the Croatian Community of Herceg-Bosna at its session of 17

24    October 1992, adopted the decision."

25            So did not the Presidency of the HZ HB, by its decision made in

Page 25503

 1    its session on the 17th of October 1992, delegate these legislative powers

 2    to the HVO?

 3       A.   I'm afraid that I didn't really understand your question.  I do

 4    apologise.

 5       Q.   All right.  Let's try again.  If you look at the top of Exhibit

 6    684, which says:

 7            "Pursuant to the decision on the establishment of the Croat

 8    Community of Herceg-Bosna, Article 7, the Presidency of the Croatian

 9    Community of Herceg-Bosna" - and look at this language, please - "at its

10    session of 17 October 1992 adopted the decision."

11            So, sir, cannot the Judges understand that this indeed is the

12    decision by which the legislative -- by which the Presidency of

13    Herceg-Bosna delegated the legislative power to the HVO?

14       A.   Yes.  I agree that this decision, inasmuch as it pertains to the

15    regulations about the organisation and some issues of general interest,

16    and the situations that have to be dealt with on an emergency basis, mean

17    that the powers of the HVO have been extended, the HVO is given a legal

18    foundation to take certain decisions that would be in the purview of the

19    Presidency.

20       Q.   If I can just perhaps close this part of the questions by

21    reference back to something we looked at much earlier this afternoon now,

22    if I can direct you, sir, back to paragraph -- excuse me, page 32 of your

23    report, and if you want to find it, it follows footnote 108 in the

24    Croatian version.  It's on page 25 in the Croatian version.

25       A.   Yes.

Page 25504

 1       Q.   Sir, let's go back to where we started at least in part some -- an

 2    hour or so ago, perhaps two hours ago now, and I just direct you back to

 3    your own words on the bottom of page 32 in the English version, where you

 4    say:

 5            "Later on, the HZ HB-HVO gradually took over all executive,

 6    administrative functions and to a certain extent also the legislative

 7    function."

 8            Isn't that in fact borne out by everything we looked at and

 9    discussed in the last few hours?

10       A.   Yes.

11            MR. SCOTT:  Mr. President, I suggest that might be a good time for

12    the recess.

13            JUDGE ANTONETTI: [Interpretation] Let's look at the time you've

14    used so far and we shall resume around 6.00.  You'll then have an hour

15    left.  And you would then by the end of the day have used the three hours.

16    It would be nice if you could finish by 7.00.  Let's have a break.  We

17    shall resume around 6.00.

18                           --- Recess taken at 5.44 p.m.

19                           --- On resuming at 6.04 p.m.

20            JUDGE ANTONETTI: [Interpretation] Mr. Scott, we have some

21    difficulties connected with the court reporter.  He can't work later than

22    7.10 so you have to stop at ten to 7.00.  Everybody will leave the

23    courtroom, but for Mr. Ibrisimovic and his co-counsel, and we shall

24    continue until 10 past 7.00.

25            MR. SCOTT:  Thank you, Mr. President.  Especially under those

Page 25505

 1    circumstances I'm not sure I can finish tonight but I'll certainly move as

 2    quickly as I reasonably can.  I believe the time record indicates that so

 3    far I've used one hour and 23 minutes, or in other words less than half of

 4    my allocated time, but having said that I'm still going to move as quickly

 5    as I can.

 6       Q.   Sir, if we can just -- I'd like to just direct your attention to

 7    various documents and you may be jumping from document to document a bit

 8    but as you just heard me say I would like to try to move us along as

 9    quickly as reasonably possible.

10            When you were considering the next topic, you talk about the

11    direct subordination of Herceg-Bosna to international law which again you

12    touched on much earlier this afternoon.  And you discuss at some length at

13    pages 48 and 49 of your report some of the reasons for the creation of the

14    HZ HB.  I'll have to leave that part of your report to speak for itself.

15    Let me ask you please to turn to Exhibit P 00424 which you will find in

16    your binders at tab 424, please.

17       A.   Yes.

18       Q.   This is the decree on transferring the resources of the JNA and

19    something called the SSNO to the Croatian Community of Herceg-Bosna, to

20    the ownership of the Croatian Community of Herceg-Bosna.  Can you just

21    briefly describe to the Judges how this -- how the citation to this

22    document refer -- links to your conclusions about the Herceg-Bosna or the

23    HVO government in fact having the characteristics of government or a

24    state?

25       A.   I mentioned this decree in my analysis because it shows that the

Page 25506

 1    Croatian Community of Herceg-Bosna made sovereign and independent

 2    decisions regarding the powers that it had and regardless of the powers

 3    that the Republic of Bosnia-Herzegovina had.  It can be seen when the

 4    assets of the JNA are transferred and no mention is made to any transfer

 5    of such assets to any bodies of the Republic of Bosnia-Herzegovina but

 6    only to the organs of the Croatian Community of Herceg-Bosna.

 7       Q.   All right, sir, I would like to next direct your attention to the

 8    establishment of the military prosecutor's offices and if I can ask you

 9    please to go to Exhibit P 00590 or tab 590 in your binder, please.

10       A.   Yes, I've found it.

11       Q.   And again, let me just ask you can you comment on the relevance of

12    this document, that is on the establishment the district military

13    prosecutor's offices in reference to, again, the characteristics of

14    statehood of the Croatian Community of Herceg-Bosna?

15       A.   In the sphere of the legislative power, there was a difference in

16    the Croatian Community of Herceg-Bosna.  By that I mean to say that it did

17    not set up its own Supreme Court but it set up a department of the Supreme

18    Court of Bosnia-Herzegovina, but regardless of all that, the documents

19    produced by the Croatian Community of Herceg-Bosna clearly show that full

20    legislative power was assumed by this community.  This can be seen from

21    the fact that it is establishing new organs, new bodies, such as the

22    district military prosecutor's offices, as seen here, it can be seen in

23    the sphere of human resources or personnel because the organs of the

24    Croatian Community of Herceg-Bosna decide who will be appointed to various

25    offices in the judiciary, in the courts and in the prosecutor's offices.

Page 25507

 1    It showed that the Croatian Community of Herceg-Bosna and its organs

 2    carried out legislative functions and this includes the HVO.  They were

 3    independent bodies and independent government independent from

 4    Bosnia-Herzegovina.

 5       Q.   We've talked mostly today about what we might call the executive

 6    and legislative powers but would you agree, sir, that another badge, if

 7    you will, of statehood is the establishment of a judicial branch, with

 8    prosecutors, judges, courts, et cetera?

 9       A.   That's correct.  Any effective state government has to have all

10    those functions and all those bodies, executive, legislative and

11    judiciary.

12       Q.   I would like to now turn to the topic, please, of the reaction of

13    the government of Bosnia-Herzegovina and to the constitutional court of

14    Bosnia-Herzegovina to the establishment of the Croatian Community of

15    Herceg-Bosna and if I can direct your attention, please, to page 10 of the

16    report, English page 10, or Croatian page 8.

17       A.   Yes.

18       Q.   In that -- on that page, you make reference to the fact that an

19    opinion of the Ministry of Justice and Administration of

20    Bosnia-Herzegovina issued an opinion on the 20th of November 1991.  Do you

21    see that?

22       A.   Yes.

23       Q.   Can you just quickly summarise for us the opinion expressed by the

24    Ministry of Justice and Administration on the 20th of November 1991?

25       A.   Yes.

Page 25508

 1            MS. NOZICA: [Interpretation] Your Honours, I apologise but if the

 2    Prosecutor refers to page 8 in the B/C/S and page 10 in the English

 3    version, then there is no reference in this text to the decision of the--

 4    opinion of the ministry but it says here that the government of

 5    Bosnia-Herzegovina, pursuant to an opinion of the ministry, it was

 6    actually an opinion that was made by the government on the basis of the

 7    opinion of the ministry.  I am sure that Professor Ribicic will agree with

 8    me that this is how he actually phrased it.

 9            MR. SCOTT:  I'm not sure of the nature of the objection or

10    clarification but we are indeed talking about the same thing.

11       Q.   Can you tell us about the opinion -- the -- what you address on

12    the middle of page 10 of the English version of your report and page 8 of

13    the Croatian version, the paragraph that begins with the words, "Much

14    earlier"?

15       A.   Yes.  The source that I quote here, this was published in

16    Oslobodjenje daily paper, it is quite clear that the Ministry of Justice

17    and Administration issued an opinion and then the government on the basis

18    of that opinion concluded, reached the conclusion, that the decisions of

19    the Croatian Community of Herceg-Bosna are illegal and illegitimate and

20    contrary to the constitution.  So what it says here, that this is contrary

21    to the interests of the state of BH and all its citizens and nations, this

22    is the conclusion of the government that is based on the opinion of the

23    ministry.

24       Q.   Can we just confirm for the record, sir, that if this opinion was

25    issued on the 20th of November 1991, that was just two days after

Page 25509

 1    Herceg-Bosna declared its existence on the 18th of November 1991, so that

 2    the reaction of the government of Bosnia-Herzegovina was basically

 3    immediate; is that correct?

 4       A.   Yes.

 5       Q.   In that opinion, it refers to, at least as summarised here, and in

 6    fact it's in footnote 30 of your report, that the suggestion was that

 7    proceedings be initiated before the Constitutional Court.  Do you see that

 8    in footnote 30?

 9       A.   Yes.

10       Q.   And are you aware, sir, that in fact, proceedings were initiated

11    before the Constitutional Court of Bosnia-Herzegovina on this question?

12    Sir, my question --

13       A.   Just a moment.  Yes.  The statement of reasons appended to the

14    decision of the constitutional court, it is clear that the government had

15    filed this request before the constitutional court.

16       Q.   Can I ask you, please, to turn to tab 346 which should be

17    Exhibit P 00346?

18       A.   Yes, I've found it.

19       Q.   Can you just tell us what that is, please?

20       A.   This is a letter in response to the request.  It is a letter

21    written by the Secretary-General of the Croatian Democratic Union of

22    Bosnia-Herzegovina, in response to a previous memo from the constitutional

23    court, providing an explanation that the Croatian Democratic Union has

24    done everything to create a new state --

25       Q.   Can you just assist the Judges, please, the letter from

Page 25510

 1    Mr. Markesic is addressed to someone named Mr. Dautbasic.  Can you tell

 2    the Judges please who Mr. Dautbasic was as of July 1992?

 3       A.   Dautbasic was the president of the constitutional court of the

 4    Republic of Bosnia-Herzegovina so this was a letter from the

 5    secretary-general of the Croatian Democratic Union of Bosnia and

 6    Herzegovina to the president of the constitutional court.

 7       Q.   Can I ask to you turn next, please, in your binder, to 421?  Which

 8    is Exhibit P 00421.

 9       A.   Yes.

10       Q.   Once again, can you tell the Judges, just briefly tell the Judges

11    what this document is and how it fits into the constitutional court

12    litigation?

13       A.   This is a letter or a memo from the president of the

14    constitutional court to the Croatian Democratic Union, regarding the

15    proceedings to evaluate the constitutionality and legality of the decision

16    on the establishment and some other decisions of the Croatian Community of

17    Herceg-Bosna.  In this letter, a request is made for those documents that

18    are the subject of the request of the government of the Republic of

19    Bosnia-Herzegovina regarding the evaluation of the constitutionality and

20    legality to be submitted to the Court.  In this letter the president of

21    the constitutional court complains that they are asking for those

22    documents for the second time now, yet they have not received any yet.

23       Q.   Then could I next ask to you go to in your divider, tab 476, which

24    is Exhibit P 00476?  And can you tell the Judges, I believe the Judges may

25    have seen this document before, but can you tell the Judges what that

Page 25511

 1    document is, then?

 2       A.   This is the decision of the constitutional court of the Republic

 3    of Bosnia-Herzegovina, annulling the decision on the establishment of the

 4    Croatian Community of Herceg-Bosna, and eight other decisions and decrees

 5    taken by the Presidency of the Croatian Community of Herceg-Bosna.  This

 6    decision annuls, on the basis of their unconstitutionality, some other

 7    acts of the Croatian Community of Herceg-Bosna.

 8       Q.   All right.  Can you assist us, Professor, if you look at the top

 9    of that document, it makes reference to the Official Gazette of the

10    Republic of Bosnia-Herzegovina.  Now, we've talked earlier today about the

11    Official Gazette of Herceg-Bosna being the Narodni List.  Do you know what

12    the Official Gazette of the Republic of Bosnia-Herzegovina, how that was

13    referred to or described during this time?  That is if one were to say

14    Narodni List for Herceg-Bosna how would you describe the Official Gazette

15    for Bosnia-Herzegovina?

16       A.   Sluzbeni List is the Official Gazette of the Republic of

17    Bosnia-Herzegovina.  This is where the organs of the Republic of

18    Bosnia-Herzegovina must publish all their decisions and those decisions

19    cannot enter into force before they are published there.

20            The Narodni List played a similar role in the Croatian Community

21    of Herceg-Bosna.

22       Q.   And with reference to the Official Gazette of Bosnia-Herzegovina,

23    can we see on the top of this document that this is a reference that it

24    was published in volume number 16 at page 450 on the 18th of September

25    1992?  That is that the decision of the constitutional court was published

Page 25512

 1    in the Official Gazette?

 2       A.   Yes.  That is correct.

 3       Q.   And, sir, I'm not going to take the time to show it to you because

 4    I believe it's already been admitted into evidence but -- as

 5    Exhibit P 08060, issued on the 20th of January 1994, but did you ever

 6    become aware that the same constitutional court also declared the Croatian

 7    republic, not the community, but the Croatian Republic of Herceg-Bosna

 8    unconstitutional or illegal?

 9       A.   [In English] Just a moment, please. [Interpretation] Yes.  At a

10    later stage, the constitutional court issued a decision annulling the

11    proclamation of the Croatian Republic of Herceg-Bosna.  In this decision,

12    the constitutional court of Bosnia-Herzegovina invokes this decision,

13    annulling the decision on the establishment of the Croatian Community of

14    Herceg-Bosna and the constitutional court also stresses that an

15    unconstitutional entity such as the Croatian Community of Herceg-Bosna is

16    now being replaced or being transformed into another entity which is even

17    more unconstitutional because it assumes even greater powers wresting them

18    away from the hands of the Republic of Bosnia and Herzegovina.

19       Q.   Thank you for that.  If we can move on to another part of the

20    report which deals with the relationship between the Croatian Community of

21    Herceg-Bosna and the Republic of Croatia, and again we have to understand

22    that the Judges have both your report and your testimony in the Kordic

23    case, so let me just ask you about a couple of specific exhibits.  Can I

24    ask you, please, to turn to number 735 in your binder which is

25    Exhibit P 00735?  Let me know when you have that, please.

Page 25513

 1       A.   Yes, I found it.

 2       Q.   Can you just tell us what that is and again relate it to the

 3    observations made in your report?

 4       A.   This is a decision to import goods from the Republic of Croatia.

 5    There is a special regulation about the status of the goods that arrived

 6    in Herceg-Bosna from the Republic of Croatia.  What is interesting here is

 7    the fact that this issue had been discussed at a meeting of the

 8    leaderships of the HDZ's of Croatia and Herceg-Bosna on the 27th of

 9    December 1991.  In addition to this issue, several others were mentioned.

10    For example, the customs, the transit of goods crossing the border, the

11    issue of Croatian money and so on.  I first analysed what I found in the

12    Official Gazette and only later did I find out about the meeting that I've

13    just mentioned.  As I was reading this, and some other decision, it seemed

14    to me that this was an attempt to come up with an integral decision for

15    all the issues that were still pending within the Croatian Community of

16    Herceg-Bosna, and then from the transcript of the meeting, I realised that

17    this was the same -- these were the same issues that were raised by

18    President late Franjo Tudjman during this meeting that I have mentioned.

19            This means that I could arrive at the conclusion that some of the

20    documents that were passed by the bodies of the Croatian Community of

21    Herceg-Bosna had been previously agreed at the political level within the

22    Croatian Democratic Union and not only in Bosnia and Herzegovina but also

23    with the officials of that same party in Croatia.  Based on that, I

24    concluded that some of the decisions were passed by the bodies of the

25    Croatian Community of Herceg-Bosna were of such a nature that either

Page 25514

 1    their -- they were the result of the agreements reached outside that

 2    entity or served to cover the true nature of the relationship between the

 3    Croatian Community of Herceg-Bosna and the Republic of Croatia.

 4       Q.   If I can just direct your attention very quickly to the end of

 5    Article 2, is it correct that the effect of this decision, among other

 6    things, was to exempt goods imported from Croatia from any sort of customs

 7    duty or tax that would otherwise apply to imported goods?

 8       A.   That's correct.  Those goods enjoyed privileged status in

 9    comparison with some other goods that arrived from other states.

10       Q.   And if we can go then to Article 5 and can you just tell us please

11    because you mention this in this a number of places in your report, the

12    role played, what you found in your research about the use of the Croatian

13    dinar as the currency in Herceg-Bosna?

14            MR. KARNAVAS:  Excuse me for this minor intervention, my colleague

15    informs me that in the previous answer, the gentleman said "borders" and

16    not "states."  "Arriving from other borders."  Here it states in English,

17    it's line 23, comparison with other page, page 83, "comparison with some

18    other goods that arrived from other states."  Perhaps he could -- is this

19    a mistake, borders?  This is how it was in Croatian, I don't know how it

20    was translated but this is what I was told.  I apologise for the

21    intervention.

22            MR. SCOTT:

23       Q.   Professor, if you've heard counsel's comments if you could clarify

24    that further?

25       A.   Yes.  Yes.  I can agree with this clarification.  Here we are

Page 25515

 1    talking about the same border but the goods were different, and the goods

 2    arriving from Croatia were in -- enjoyed privileged status with regard to

 3    other.

 4       Q.   All right.  If we could go, please, because our time is short, to

 5    the use of the Croatian dinar, can you tell the Judges what you found in

 6    that respect and one particular example is in Article 5 of this same

 7    document.

 8       A.   Yes.  In the documents issued by the Croatian Community of

 9    Herceg-Bosna, it was insisted on the use of Croatian dinars, so some of

10    the documents were changed only to incorporate that.  The Croatian dinar

11    as the legal tender.  That was the only reason to change some documents.

12    They were redrafted because Croatian dinars had to be incorporated in

13    them.  At the aforementioned meeting of the HDZ leadership on the 27th

14    December 1991, there was a debate about the population of

15    Bosnia-Herzegovina, and the Croatian Community of Herceg-Bosna were in a

16    bad or negative economic position because of the unauthorised printing of

17    the Yugoslav dinar in Belgrade.  So there was a discussion to the effect

18    whether this should be solved by establishing a special tender of the

19    Republic of Bosnia-Herzegovina or perhaps this should be resolved in a

20    different way, and this different way can be seen in this decision, i.e.,

21    the Croatian dinar was adopted as the legal tender and that's why the

22    regulations of the Croatian Community of Herceg-Bosna had to be redrafted.

23       Q.   And can I please just as one more example on this point ask you to

24    look at Exhibit P 00447, at tab 447 of your binder, please?

25       A.   Yes.

Page 25516

 1       Q.   And can you just confirm to us, sir, that again this is just a

 2    decree issued around the 22nd of September 1992 actually by the HVO which

 3    we have been talking about today, this is not issued by the Presidency,

 4    this is issued by the HVO over the name of Jadranko Prlic on the

 5    regulation of payment transactions and the use of Croatian dinars; is that

 6    correct?

 7       A.   Yes.  That's correct.  Pursuant to this provision, the payment

 8    transactions in Herceg-Bosna were in Croatian dinars, and there are some

 9    other provisions which guarantee the implementation, i.e., envisage

10    consequences for the lack or the failure to implement this decision.

11       Q.   And sir I think one final document, if I can ask you to go to

12    7825?  Exhibit P 07825?  Do you have it?

13       A.   [In English] No, I could not find it.

14       Q.   Maybe it's -- 7825?  No?

15       A.   78 -- now I have it.

16       Q.   Thank you.  This is a declaration issued by the -- apparently

17    issued by the Chamber of Deputies, that's the way it's described in the

18    English translation as the Chamber of Deputies of the Croatian Republic of

19    Herceg-Bosna dated the 8th of February 1994.  Can you just briefly

20    describe to the Judges any role that this document played in your

21    analysis, and if I could ask you in particular to direct your attention to

22    Roman numeral II at paragraph number 2?

23       A.   This is a declaration which was primarily intended for the purpose

24    of creating as good as possible conditions for the Croatian Republic of

25    Herceg-Bosna to be able to become a republic in the future federation of

Page 25517

 1    Bosnia and Herzegovina.  As a result of that, there were major changes,

 2    i.e., transformation of the Croatian Community of Herceg-Bosna into the

 3    Croatian Republic of Bosnia and Herzegovina, and this declaration and

 4    particularly -- puts a particular emphasis on what the Croatian Republic

 5    of Herceg-Bosna advocated in a situation when it became clear that the

 6    hostilities and the war would stop and that a new state organisation would

 7    be put in place.

 8       Q.   Professor, I can't -- I can't resist directing your attention to

 9    Roman numeral VII on page 4 of the English version, but in any event Roman

10    numeral VII, you see where the House of Deputies says, "We salute the

11    founding and the work of the tribunal for war crimes in the former

12    Yugoslavia.  We have no doubts as to its impartiality and we hope it will

13    be prepared to condemn all crimes and do so efficaciously."

14            Do you see that?

15       A.   Yes.

16       Q.   In conclusion, Professor, of the direct examination, you published

17    essentially this expert report in a book that is titled, "Genesis of a

18    delusion."  And I just wonder if you could tell us the reason and the

19    thinking behind that title of the book?  Why did you call -- when you took

20    this report and essentially published, why did you give it the title,

21    "Genesis of a delusion?"?

22       A.   The title was suggested to me by the publisher.  The title page is

23    also their creation.  I'm talking about three publishers actually, one

24    from Sarajevo, one from Zagreb and one from Idrija in Slovenia.  What I

25    wanted to say by this book has been said in the preface to the book

Page 25518

 1    entitled, "So that it may not repeat in the future."  So the main motive

 2    of my book was to draw attention to the mistakes that --

 3       Q.   I apologise for interrupting you.  Our time is short and I'm doing

 4    everything I can to accommodate everyone, including the Chamber, the court

 5    reporter, the Defence, so we can finish today and they can have as much

 6    time tomorrow as possible.  First, let me stay on my existing question.

 7    You've said that the name was suggested to you, the name "Genesis of a

 8    Delusion," but I assume that it wasn't -- that name wasn't imposed on you

 9    and you agreed to that title and my question to you, sir, is what is the

10    meaning of "Genesis of a Delusion"?   What delusion, delusion by who, who

11    was deluded?  Tell us what you meant by that.

12       A.   Yes.  I obviously agreed to the title.  But there is an attempt

13    for this title to be somewhat striking, in order to encourage sales.  But

14    I agreed to the title.

15       Q.   That's what publishers do.  We understand that.  But, sir, again,

16    what delusion, please?

17       A.   This is what I explained seven years ago, what I've tried to

18    explain today when I told you two stories about Herceg-Bosna.  One story

19    is from the Official Gazette and the other story is what we can find in

20    the testimonies of the actors or records of the meetings that was

21    published at the end of the book, which shows what the real relationship

22    was between the Republic of Croatia and the Croatian Community of

23    Herceg-Bosna.  This particularly refers, at least in my view, to the part

24    at the meeting which speaks about the representatives of the Croatian HDZ

25    saying one thing and doing another thing.  They said that they were in

Page 25519

 1    favour of the independent Bosnia-Herzegovina and what they did, they were

 2    working towards merging the Croatian Community of Herceg-Bosna to the

 3    Republic of Croatia.

 4       Q.   Now, having clarified that, I want to come back and give the

 5    opportunity to answer the question you started to answer, and that is, I

 6    believe you said something along the lines of can you tell the Judges in

 7    closing, perhaps this is the last question, what made you decide to

 8    publish this book?  What was your motivation in doing that?

 9       A.   My motivation, as I've already said it, and as the title of the

10    preface says, is -- was to draw attention to the mistakes and shortcomings

11    that accompanied the establishment of the Croatian Community of

12    Herceg-Bosna and the Croatian Republic of Herceg-Bosna, that shouldn't be

13    repeated by those who may find themselves in the similar situation in the

14    future, when they try to establish a new state or quasi-state community.

15       Q.   Professor Ribicic, first of all I want to apologise if I've

16    hurried you and been -- rushed you a bit.  I apologise for that, no

17    offence was intended but we are trying to accommodate everyone as much as

18    possible.  I want to thank you for coming to The Hague again, some seven

19    years later than the first time or so and giving your testimony.  Thank

20    you very much.

21            MR. SCOTT:  That concludes direct examination, Your Honour, I hope

22    the Chamber will appreciate the fact that I did everything possible to do

23    so.

24            JUDGE ANTONETTI: [Interpretation] Thank you very much, Mr. Scott.

25    And I would like to congratulate you for really doing your best to shorten

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 1    the examination-in-chief because you put the most appropriate question to

 2    this witness.  Thank you for that.

 3            Witness, you will now leave this courtroom in a couple of seconds.

 4    You will no longer meet the Prosecutor in the meantime.  You will come

 5    back tomorrow.  You are now a court witness and as you know, we will

 6    reconvene tomorrow at 2.15 p.m..  You will therefore come back.  I will

 7    now retire with my colleague.  I will also like everybody to leave the

 8    courtroom briefly.  I would like to ask Mr. Ibrisimovic and his team to

 9    stay because at 1900 hours, 7.00 p.m., so I would like to invite everybody

10    to come back tomorrow at 2.15 p.m., thank you.

11                          --- Whereupon the hearing adjourned at 6.49 p.m.,

12                          to be reconvened on Tuesday, the 11th day of

13                          December, 2007, at 2.15 p.m.