1 Tuesday, 12 November 2002

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 9.31 a.m.

6 JUDGE MUMBA: Please call the case.

7 THE REGISTRAR: Good morning, Your Honours. Case number

8 IT-95-9-T, the Prosecutor versus Blagoje Simic, Miroslav Tadic, and Simo

9 Zaric.

10 JUDGE MUMBA: Good morning. We'll go ahead and hear the witness.

11 MR. DI FAZIO: If Your Honours please, might I raise just one very

12 small matter of evidence before the Defence start? It's a very minor

13 matter.

14 JUDGE MUMBA: Yes.

15 MR. DI FAZIO: It won't take a moment.

16 JUDGE MUMBA: Yes.

17 MR. DI FAZIO: If Your Honours please, interviews were conducted

18 with the defendants and they were tendered into evidence and they

19 constitute Exhibits P138 to P142. They are two interviews with Mr. Tadic

20 and three interviews with Mr. Zaric. The interviews as they currently

21 stand consist of a written English translation. The Prosecution has

22 prepared and will, not today but in the very near future, in the next few

23 days, I hope, be able to produce reformatted interviews which will contain

24 the English question, translated underneath into B/C/S, the B/C/S answer,

25 and then the English answer. So a B/C/S reader will be able to look at

1 the document and see the questions in B/C/S and the answers in B/C/S and

2 an English reader will be able to do the same. And if it ever comes to

3 asking the defendants about the content of those interviews, it will

4 simply mean that they will also be able to read it simultaneously. I hope

5 to have those documents ready within the next few days and to produce them

6 into evidence if I may and I would hope to substitute them for the

7 exhibits P138 to 142. So I raise that now and hope that the Defence would

8 be able to indicate an attitude to my application. I shouldn't think

9 there would be any objection, because it just helps everyone. It gives

10 them the B/C/S and the English on the same page and is essentially much

11 the same document as already exists.

12 JUDGE MUMBA: Yes. I would imagine that the Defence would first

13 like to see the documents and look at them and compare with the ones that

14 have already been accepted and see whether or not they are indeed the same

15 as you --

16 MR. DI FAZIO: Yes. I'll attend to all of those matters, make

17 sure that they have seen them and got them. As I said, my prediction is

18 there won't be any objection, but I just wanted to raise that matter and

19 let the Chamber know, given that it's Prosecution material and that I'll

20 be seeking to introduce it at this stage in the case. Thank you.

21 JUDGE MUMBA: Very well.

22 Yes, Mr. Pantelic.

23 MR. PANTELIC: Good morning, Your Honours. Just before we start,

24 I would like to bring to the attention of this Trial Chamber a few

25 matters. In fact, yesterday evening our second expert, Professor Nikolic,

1 fortunately came into The Hague after the great, I would say, and I wish

2 to thank them great efforts of the witness unit with regard to the

3 problems with visa due to the previous schedule, et cetera, et cetera.

4 Professor Nikolic, as I said, has very, very tough and very precise

5 commitments in next few days, so in fact he should be in Belgrade at

6 latest tomorrow, tomorrow morning. And I hope that we shall organise and

7 finish that.

8 Another matter: Since he came yesterday evening, after connecting

9 flights, which was only available at that time, he is a gentleman 74 years

10 old. He was quite exhausted. So I wasn't able yesterday to give him

11 certain instructions, preparations, simply to familiarise him with this

12 area here. So I would kindly suggest and kindly request this Trial

13 Chamber: After we finish Professor Kecmanovic during the morning, then we

14 shall have the break until the afternoon session in order to, you know,

15 speak with witness, prepare him, you know, with these topics, and then we

16 shall proceed as scheduled at 2.30 afternoon. And then we could have

17 enough time to finish all examination of Professor Nikolic today, and then

18 he could be able to leave tomorrow. So I would say two flights in 48

19 hours he can resolve it.

20 JUDGE MUMBA: Very well, Mr. Pantelic.

21 MR. PANTELIC: Another matter, Your Honour, if you allow me. It

22 is regarding Professor Kecmanovic. Recently it came to the attention of

23 the Defence that in one magazine or journal from Sarajevo, certain

24 portions of his expert opinion was published. Defence acted in accordance

25 with the standards of our code of conduct, professional code of conduct,

1 and we sent a fax to the Sarajevo journal, Sarajevo newspaper. In that

2 fax, we explicitly requested that the content of that fax and the

3 explanations with regard to this particular case should not be published

4 by any way until the final response and final result of all this inquiry.

5 In spite of that very clear request from the side of Defence, in the same

6 newspaper, our fax was published, in total. Since we are facing here with

7 to some extent quite significant and important issue, I kindly ask this

8 Trial Chamber to launch certain investigation with regard to the so-called

9 leaking of information from certain parts of this institution, whether

10 it's registry or - I don't know - the other parts. Anyhow, the Sarajevo

11 newspaper should give explanations how and when they came into the

12 possession of certain portions of Professor Kecmanovic's report. Not to

13 mention that the first article was published only a couple of days before

14 multiparty elections in Bosnia, where Professor Kecmanovic was one of the

15 candidates in Croatian Muslim Federation, Federation of B and H. But I

16 will leave it to the other party. It's not important for the moment.

17 I gave to Translation Unit one copy of this fax that we sent, and

18 just for the record, it's fairly short. I would like to read it out and

19 to inform Trial Chamber about the response of the newspaper and then

20 officially we shall start with the filing -- if Trial Chamber will

21 instruct us to make further steps.

22 JUDGE MUMBA: Very well, Mr. Pantelic.

23 MR. PANTELIC: May I proceed, Your Honour? So the article which

24 was published recently, it was on 25th of October this year, in Bosnian

25 magazine called Dani, "Days." Meaning in English "Days." On the page 16,

1 they -- maybe I can have the assistance of Ms. Usher, please. If you can

2 put on the ELMO -- although I will read. Thank you.

3 Well, the title of this article is "Sarajevo with love, second

4 part." I will read in Serbian language. This is the content of our

5 fax. [Interpretation] "We have recently learned that in your esteemed

6 newspaper, on the 3rd of October, 2002, on page 12, a story was published

7 under the headline 'Nenad Kecmanovic, to Sarajevo with love.' In the

8 mentioned text, the following circumstance is mentioned: That Professor

9 Kecmanovic, author of the report that is being used in case IT-95-9-T

10 before the Tribunal in The Hague. Bearing in mind that the Defence team

11 in the mentioned case will soon start presenting its evidence, including

12 the testimony of Professor Kecmanovic, we kindly request you to send us a

13 fax within eight days after they receive this fax, namely, the following

14 information: Number 1, who was the author of the text that was published

15 on 3rd of October, 2002 on page 12 of your newspaper? Number 2, who,

16 when, and in which way learned about the participation of Professor

17 Kecmanovic before the Tribunal in The Hague as a Defence expert in the

18 mentioned case? And number 3: In which way and from whom did your paper

19 come into the possession of the contents of the document that is authored

20 by Professor Kecmanovic?

21 "In this way, we inform you that the procedure before The Hague

22 Tribunal, in accordance with the rules of procedure that are enforced,

23 under certain conditions and in certain cases, including this one, is

24 close to the public and protected by the principle of confidentiality. In

25 view of this fact, there are indications that court procedure has been

1 jeopardised by your discovery of the above-mentioned information. This

2 circumstance is of essential importance for the further proceedings, so we

3 request you most kindly to give us your answer within the above-mentioned

4 deadline.

5 "Finally, we wish to inform you that this letter is confidential in

6 accordance with the standards of the Tribunal in The Hague and that it is

7 not allowed to transmit its contents to third persons who are not directly

8 involved in the events concerned, and also it is not allowed to publish it

9 in any form in the public media. Respectfully yours, on behalf of the

10 Defence team, Igor Pantelic."

11 "Dear Mr. Pantelic --" now, the answer is the following: "Dear

12 Mr. Pantelic, I wish to inform you that our magazine is not going to grant

13 your request. We are sincerely surprised by your request, in view of the

14 fact that we assume that you are familiar with the procedure of the

15 Tribunal. If you really believe that there are indications that by

16 publishing this text, in respect of which you are addressing us, we have

17 violated the procedure of the Tribunal, we would like to ask you to

18 address the organ of the Tribunal that is in charge of assessing, under

19 quotation marks, 'indications,' on violations of procedure. At the same

20 time, I wish to avail myself of this opportunity to inform you on this

21 occasion that without mediation of the competent organ of the Tribunal,

22 our magazine is not interested in cooperating with you. Respectfully

23 yours, Vildana Selimbegovic."

24 [In English] So Your Honour, in this particular case, we think

25 that somehow the portions of the witness expert report came to the

1 attention of the third side. We don't have any particular problem with

2 the particular testimony of this witness here today in the Tribunal. This

3 is a public hearing, of course. But we are very concerned about the

4 possibility that media might be in possession of certain documents or

5 portions of documents or - I don't know - evidences in this particular

6 case that we are dealing. So I kindly and respectfully ask this Trial

7 Chamber to instruct the relevant institutions or departments of this

8 Tribunal and to launch certain investigation with regard, and Defence will

9 be of assistance in any sense. Thank you for your attention, Your Honour.

10 JUDGE MUMBA: Very well, Mr. Pantelic. The Trial Chamber will

11 consider the matter and give instructions in due course.

12 THE INTERPRETER: Microphone, please.

13 JUDGE MUMBA: Can we proceed? Can the witness be -- take the

14 solemn declaration, please. Can he stand up?

15 WITNESS: NENAD KECMANOVIC

16 [Witness answered through interpreter]

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

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

19 JUDGE MUMBA: Thank you. Please be seated.

20 MR. PANTELIC: Thank you, Your Honour.

21 Examined by Mr. Pantelic:

22 Q. [Interpretation] Good morning, Professor Kecmanovic.

23 A. Good morning.

24 Q. Could you please come closer to the microphone so that the

25 interpreters could hear you. Thank you.

1 Professor, we have your curriculum vitae. We are not going to go

2 into the details of your rich career. We have been instructed by the

3 Trial Chamber as to how to conduct this examination today after this

4 series of questions, our learned friends from the Prosecution are going to

5 question you, and of course the Trial Chamber is there if they may have

6 any questions for you.

7 First and foremost, could you tell us when you were born and

8 where?

9 A. On the 9th of September, 1947, in Sarajevo.

10 Q. You have a degree in political science from the University of

11 Sarajevo and you graduated in 1975; is that right?

12 A. Yes, that's right.

13 Q. My mistake. That is actually when you got your doctorate in 1975;

14 right?

15 A. Yes.

16 Q. And you got your bachelor's degree in 1971; is that right?

17 A. Yes.

18 Q. And you got your master's degree in 1973?

19 A. I had two majors at the faculty of political science. One is

20 sociology and the other one is political science.

21 Q. You come from a family of intellectuals. What was your father?

22 A. He wrote about the theory of literature and culture. He was a

23 critic and he was a member of the academy of sciences and arts of

24 Bosnia-Herzegovina.

25 Q. What about your mother?

1 A. She was a professor of classical languages. She taught Greek and

2 Latin at the Sarajevo high school.

3 Q. Your grandfather, what was your grandfather?

4 A. He was a priest and a politician. He was a senator in the

5 Yugoslavia between the two world wars, in the kingdom of Yugoslavia.

6 JUDGE MUMBA: [Previous translation continues] ... concerns the

7 Trial Chamber now is that of the witness, and we have it in writing. It's

8 been filed. Can we move on, please.

9 MR. PANTELIC: Yes, Your Honour. I will take care about that.

10 Q. [Interpretation] Professor, tell me: Your immediate family has

11 lived in the territory of Bosnia-Herzegovina for how long?

12 A. The Kecmanovic's have been living in Bosnia-Herzegovina for

13 generations. They originate from Bosnia Krajina.

14 Q. For how long?

15 A. Four or five generations.

16 Q. You were a member of the collective presidency of

17 Bosnia-Herzegovina?

18 A. That's right.

19 Q. In which period was this?

20 A. This was in June 1992.

21 Q. Tell me: After that you were no longer there?

22 A. No.

23 Q. Did you resign?

24 A. I resigned.

25 Q. You were president of the party of reformists in

1 Bosnia-Herzegovina; is that right?

2 A. Yes. This was the party that was called the union of reform

3 forces for Bosnia-Herzegovina, and at the level of all of Yugoslavia, it

4 was led by then prime minister Ante Markovic and I was president of the

5 party in Bosnia-Herzegovina.

6 Q. Recently you were a candidate at the elections in the Federation

7 of Bosnia-Herzegovina; isn't that right?

8 A. Yes.

9 Q. On behalf of which party?

10 A. On behalf of the independent social democrats of Milorad Dodik. I

11 was candidate of that party in the elections in the Federation of

12 Bosnia-Herzegovina.

13 Q. During the communist regime, you were suspected by the regime of

14 cooperating with foreign intelligence services. Could you tell us a few

15 words about that?

16 A. Yes. This had to do with the elections for the last presidency,

17 the Socialist Federal Republic of Yugoslavia. I was one of the candidates

18 for the presidency from Bosnia-Herzegovina. I was the candidate with the

19 largest number of votes. However, just before the election procedure was

20 about to be brought to an end, the public -- the state security service

21 insinuated that I had suspicious links with the West, and this grew into

22 charges for espionage. And then I was eliminated from the elections

23 procedure. Immediately after that, this was called a lack of security

24 culture, so it did not affect my status, apart from this candidacy. I

25 remained director of the university, member of the League of Communists,

1 and quite simply, there were no consequences to be borne, except for the

2 fact that I was eliminated from the elections procedure.

3 Q. You also taught at various universities abroad; is that right?

4 A. Yes, at several universities. I lectured at several universities.

5 Q. Could you please mention some of them.

6 A. Innsbruck, Budapest, Khartoum, Grand Valley State University in

7 Michigan, et cetera.

8 MR. PANTELIC: I do apologise, Your Honours.

9 MR. LAZAREVIC: Yes, maybe I can explain. The transcript was not

10 100 per cent accurate. We heard from the witness that he remained also

11 the director of the university, and we haven't found this in the

12 transcript. So just a matter of accuracy.

13 JUDGE MUMBA: Yes, Mr. Pantelic. Maybe you can deal with that.

14 MR. PANTELIC: I will clarify. Yes, Your Honour, that's correct.

15 Q. [Interpretation] Professor, this was not part of the transcript.

16 After this episode with some insinuations, if I can put it that way,

17 vis-a-vis your personality, you remained director of the university in

18 Sarajevo?

19 A. I pointed that out so that it would be clear this was an

20 insinuation. I said that when this espionage affair came to its peak, as

21 it was then called in the media, I was directly accused of espionage.

22 However, at the moment when every possibility was eliminated for me to be

23 a candidate further, then everything was returned to the previous state of

24 affairs, and then this qualification was just brought down to some general

25 assessment that I had a shortage or lack of security culture, which meant

1 nothing in a formal sense. And the proof that all of this was simply

2 construed was that there was no action that followed. And this would have

3 had to be proven. And inter alia, I remained rector of the university and

4 I kept all the other public positions I had, including my membership in

5 the League of Communists of Yugoslavia, that is to say, in the ruling

6 party.

7 Q. Also here before the Tribunal, you gave evidence in two cases.

8 You gave your expert opinion. As far as I can see, this is Kvocka,

9 Prijedor, and also the Krnojelac Foca case; is that correct?

10 A. Yes.

11 MR. WEINER: I object, Your Honour.

12 JUDGE MUMBA: Yes.

13 MR. WEINER: Your Honour, he's -- the question is: You gave

14 evidence. Could he please explain what you mean by gave evidence? I

15 don't believe this man has ever testified. He might have filed reports,

16 and he was never used as a witness. That might be closer to the truth.

17 Could they please clarify that.

18 JUDGE MUMBA: It's a question of being specific as to what

19 services --

20 MR. WEINER: Yes. When you say gave evidence, filing a report can

21 be giving evidence or giving testimony. I don't believe this man has ever

22 testified. I don't think his reports were ever used. He might have filed

23 them, but ....

24 MR. PANTELIC: Yes, I agree. In order to spare time it's a

25 question of translation. I asked him whether he filed a report, not gave

1 evidence. So it's a matter of translation. I will clarify that. No

2 problem, Your Honour.

3 Q. [Interpretation] Therefore, Professor, let's clarify this for the

4 transcript. You in fact did not appear, did not testify live here before

5 the Trial Chamber in any other case; is that right?

6 A. Yes, that's correct.

7 Q. So you simply wrote a report and then Defence teams in those cases

8 sent it and took care of it later on. So you were not invited here to

9 come and testify. Is that right?

10 A. Yes, that's correct.

11 Q. Please tell me: You have heard and you are probably aware that

12 immediately before this year's elections, this article was published in

13 the newspaper Dani. What is your position? What is your personal

14 viewpoint regarding the fact that this appeared immediately before your

15 coming to testify here and that it had this type of heading?

16 A. I think that --

17 MR. WEINER: I object. What is the relevance to this? I've never

18 read the article. I don't believe any member of our Prosecution team has

19 read the article and it's a public document, so --

20 MR. PANTELIC: The relevance, Your Honour, is from the point of

21 view of the Defence is that Professor Kecmanovic, being a witness, expert

22 witness for the Defence, might be, might be to some extent concerned or,

23 well, I don't know, not to say intimidated, but let's hear him here,

24 because maybe that would be a part of the evidence for the further

25 procedures. After all, he's a witness. He's entitled just to give here

1 his opinion what was his feelings about all these things.

2 JUDGE MUMBA: No, Mr. Pantelic. This witness has come in to

3 support his expert opinion which has been filed, and that's what we are

4 dealing with now. The Trial Chamber has not decided that it's going to

5 conduct an inquiry into this matter which you raised with the magazine.

6 So we are not going to go into that.

7 MR. PANTELIC: I agree, Your Honour. And another matter -- I've

8 finished with these several questions according to the instructions of the

9 Trial Chamber.

10 Your Honour, the Defence is in quite a serious situation, because

11 initially when we filed our briefs regarding the potential exhibits which

12 might be tendered into these proceedings, well, we were not of the opinion

13 that our expert witnesses will give the evidence with regard to the

14 Defence only in this limited way. So there is a number of, well, from the

15 point of view of Defence, significant exhibits that we have on our lists,

16 and now we are prevented to introduce them as the exhibits. So with your

17 permission, maybe we could do that at later stage, or now, but in any

18 case, when the witness is here, just --

19 JUDGE MUMBA: Are there -- what I want to know is: Are there

20 exhibits attached to the expert opinion report of this witness?

21 MR. PANTELIC: No, not on that way. We have certain documents,

22 certain exhibits where this particular witness can give his personal

23 opinion and professional opinion, and then we could tender it into

24 evidence, with regard to the relevant --

25 JUDGE MUMBA: We cannot mix procedures like that, because if an

1 expert witness has got exhibits which he or she wants to discuss in the

2 report, they are always attached to the report and discussed in the

3 opinion.

4 MR. PANTELIC: Yes, Your Honour. But on the other hand we have

5 certain, I would say, common or universal exhibits. For example, these

6 are the extracts from the Official Gazette or from several sources. So we

7 need certain verification, expert verification, of this kind of exhibits.

8 So in that sense, I thought that maybe it would be appropriate for the

9 Defence to submit certain portions of this exhibit and then see the

10 opinion of the expert witness and then this document can be tendered.

11 It's a kind of -- you know, it's very difficult to put only the report.

12 These are only parts of the certain legislation which is of importance for

13 these proceedings.

14 For example, we filed certain memorandum of the assembly of

15 socialist Republic Bosnia and Herzegovina from 1991. We made a

16 translation. We gave it to the Prosecution. It is a crucial and

17 important document for this proceedings with regard to the events, chain

18 of events in Bosnia. And furthermore, we were of the opinion and of the

19 impression, following the practice with, for example, expert opinion,

20 expert report on the Prosecution side, that during the examination of our

21 expert witness, we could ask for certain clarification or a detailed or

22 additional opinion about certain very, very important moments in this

23 life, political life in Bosnia-Herzegovina. And now we are prevented. So

24 what I'm asking, only to pass through these several documents, hear the

25 opinion of our expert witness, and then it is to this Trial Chamber to

1 decide whether this evidence will be accepted. Because, as I said, part

2 of these exhibits are on our list previously filed.

3 MR. LUKIC: Excuse me, Your Honour.

4 JUDGE MUMBA: Yes, Mr. Lukic.

5 MR. LUKIC: [Interpretation] I would just like to add a sentence to

6 what my colleague Pantelic said. If you remember during the

7 cross-examination of Mr. Donia, the Defence was allowed to tender in some

8 documents that were not part of the expert opinion per se, but did pertain

9 to certain parts of that expert opinion. This is why I think that this is

10 a further argument that corroborates what Mr. Pantelic said. We didn't

11 expect that we would not be able to lead the chief examination of the

12 witness, and this applies not only to Professor Kecmanovic but to other

13 expert witnesses. And if such witnesses do have knowledge, information of

14 these matters, then this is the only way to tender in such documents.

15 [Trial Chamber confers]

16 JUDGE MUMBA: Mr. Pantelic, it seems to the Trial Chamber that

17 during the Prosecution case, all the documents that their experts

18 discussed were attached to the report and were actually discussed in the

19 report and the Defence, because they were cross-examining, that's why they

20 were allowed to bring in other documents to ask the expert witness. But

21 in this case, your witness prepared this report and didn't attach any

22 exhibits.

23 MR. PANTELIC: Your Honour, well, as far as the Defence is

24 concerned, we have, I would say, certain well-known facts, for example,

25 legislation --

1 JUDGE MUMBA: And I'm wondering --

2 MR. PANTELIC: Which we'll discuss Your Honour in many occasions

3 with other witnesses too. So it is not strictly related to this

4 particular witness, you know.

5 JUDGE MUMBA: Yes. When you filed in your list of exhibits, did

6 you indicate which witnesses are going to discuss those exhibits?

7 MR. PANTELIC: Well, not yet. We have to reorganise maybe certain

8 number of exhibits. We shall cut in order to --

9 JUDGE MUMBA: Yes. But for this particular expert witness, there

10 are no exhibits attached in his report, so you can't discuss any other

11 exhibits which are not in the report. Because this is an expert opinion.

12 It is not a fact witness.

13 MR. PANTELIC: Well, his expert opinion -- he's an expert witness,

14 of course, but maybe his personal knowledge --

15 JUDGE MUMBA: Limited -- as far as the Trial is concerned, it is

16 limited to the report which has been filed before the Trial Chamber.

17 Because there's no other notice that he's an expert in other fields as

18 well. It's only limited to the report which has been filed.

19 MR. PANTELIC: Your Honour, you know what the problem is with this

20 approach: The Defence was quite surprised when we realised that we shall

21 not be able to lead this witness in chief. In that case, Your Honour, we

22 would be -- I'm not speaking about -- Your Honour, please allow me just to

23 finish my words. We were not, Your Honour -- it is not -- it was not our

24 intention to tender into evidence certain documents there, because we

25 would seek from this witness one additional explanations about certain

1 points which are important for our case. That's one matter. And

2 therefore, we were not in a situation to attach certain number of the

3 documents, since we have explanations in the report. Now, Your Honour,

4 this is a new situation. Therefore, I kindly ask you and respectfully ask

5 you to allow us to pass certain portions of the legislation and certain

6 documents, because the Defence now is, according to the instruction and

7 the ruling of this Honourable Trial Chamber, prevented to lead this

8 witness in chief. So that's the bottom line, Your Honour.

9 JUDGE MUMBA: That's not correct, Mr. Pantelic. That's not

10 correct. If what you wanted was to discuss the highlights of the opinion,

11 that you can do.

12 MR. PANTELIC: That is correct.

13 JUDGE MUMBA: But the point is, this witness is limited only to

14 discuss matters which are in his expert report which has been filed. That

15 is the limitation.

16 MR. PANTELIC: That is correct, Your Honour.

17 JUDGE MUMBA: And that is why I'm saying that he can't discuss

18 exhibits which have not been attached to his report where there is no

19 indication that this expert witness is going to discuss those exhibits.

20 If what you want is to highlight certain aspects of the opinion of this

21 witness, that you can do, but not to bring in things which are not in this

22 report.

23 MR. PANTELIC: In fact, that is my idea, and I am satisfied with

24 this approach, Your Honour. And then we could see --

25 JUDGE MUMBA: Yes. Maybe you misunderstood what an expert

1 witness's role is all about in any given case. You can go ahead,

2 Mr. Pantelic.

3 MR. PANTELIC: Yes.

4 JUDGE MUMBA: Limited to the opinion report which has been filed,

5 please.

6 MR. PANTELIC: Yes. I will do that, Your Honour, of course.

7 Q. [Interpretation] Professor Kecmanovic, let us just cover a few of

8 these points. Tell me, please: You were chairman of the party of

9 reformists in 1991, in October of 1991?

10 A. Yes.

11 Q. And your party was represented in the assembly of the then

12 socialist Republic of Bosnia-Herzegovina in 1991?

13 A. Yes, after the first free elections.

14 Q. How many deputies did your party have in the assembly of BH?

15 A. I believe 11.

16 Q. And who was the head of your group of deputies?

17 A. In the beginning, it was first Dragan Kalinic, and later on it

18 was Sefudin Tokic.

19 Q. What seems to be important, both in your report and for the

20 Defence case, is the time in the middle of October when deputies of Serb

21 ethnicity left the assembly. I would like to ask you now: What parties

22 did those Serb deputies represent, the ones that left the BH assembly in

23 October of 1991?

24 A. The premise -- they left the premises of the assembly that evening

25 before the elections. Members of the SDS and also a large number of Serbs

1 who were members of other parties, multinational parties, meaning the

2 party of reformists, that I was a member of, and SDP, which is the

3 reformist party of communists, and also other smaller parties. Not all of

4 the Serbs left those parties, but a large majority did. I would also like

5 to say that in addition to the Serbs who were members of the SDS, there

6 were other 13 Serbs who were deputies in the assembly and who represented

7 other multinational parties. There were also Muslims and Croats who were

8 deputies but did not represent the three national parties: SDS, SDA, and

9 HDZ.

10 Q. I would like to ask you to slow down a little bit for the sake of

11 interpreters. You and I speak the same language, so we need to bear this

12 in mind.

13 What was the main reason for what happened on the 14th and 15th

14 October of 1991, when the deputies of Serb nationality left the multiparty

15 and multi-ethnic assembly of BH?

16 A. As I explained in my expert opinion, there was a key moment in the

17 political fate of Bosnia and Herzegovina, and that was that event, which

18 in a way violated the constitutional order. We can even say that the

19 basic principle, constitutional principle of equality and

20 constitutionality of people was violated, which prompted them to do that.

21 MR. WEINER: I object, Your Honour.

22 JUDGE MUMBA: Yes, Mr. Weiner.

23 MR. WEINER: Your Honour, he has a background in political science

24 and sociology. I have no objection to him discussing his political views,

25 political opinions, or giving us some insight into the history of what

1 occurred. However, with regard to describing constitutional violations,

2 there is no evidence that he is a constitutional scholar, has any legal

3 background or training. He is not an expert in that area. That's outside

4 the scope of his expertise, and we would move to strike any comments that

5 he has in relation to constitutional violations.

6 JUDGE MUMBA: Yes, Mr. Pantelic. That objection is sustained,

7 because, like I said, I did say he should discuss only what is within his

8 report.

9 MR. PANTELIC: He was there, Your Honour, and --

10 JUDGE MUMBA: Yes, but he's not a fact witness. Can we stick to

11 what the expert report contains, please.

12 MR. PANTELIC: Okay.

13 JUDGE MUMBA: And if you think that you are through with any

14 highlights in the opinion report, then that's the end of your

15 examination-in-chief.

16 MR. PANTELIC: Yes. I have only one matter and I will finish,

17 Your Honour. Thank you.

18 Q. [Interpretation] So please tell me, in view of the fact that

19 you're an expert in political sciences and humanities: So based on your

20 professional expertise and education, and since you are also a connoisseur

21 of political situation in Bosnia and Herzegovina, please tell us this:

22 When the memorandum and platform of BH were adopted without the presence

23 of Serb deputies in the assembly, what were the consequences of that?

24 A. If I can just add to what we discussed previously. This event

25 that you brought up and which I tried to assess, we don't have to look at

1 it only from the constitutional point of view. We can also look at it

2 from the political point of view. This was one of the fateful events in

3 the history of Bosnia and Herzegovina, and it was a political fact. Let's

4 leave the constitutional aspect of it aside. The constitutionality of

5 people, the status of the constitutional status of people, was violated.

6 At that time, Bosnia and Herzegovina was defined as a republic which was

7 neither Croat nor Serb nor Muslim, but all of these three together. This

8 was a political principle that was very important for the political

9 functioning of all three peoples in Bosnia-Herzegovina. And up until that

10 moment, this principle was upheld, even in that assembly, regardless of

11 numerous conflicts that existed between political parties. Up until that

12 time, this principle was upheld, and it held the entire Bosnia-Herzegovina

13 together, in a way. The consequence -- the political consequences of that

14 are well known. In my opinion, this caused a break-up, and the Serb

15 party, upon facing the fact that it was ignored by other two sides, left

16 the joint administration and organs of Bosnia and Herzegovina.

17 Q. And what happened with Croats?

18 A. As far as the Croatian side is concerned, the later events showed

19 that this was some kind of a tactical support, because soon after the SDS

20 left the assembly, the HDZ started establishing its own autonomous

21 administration in western Herzegovina, in Posavina, and other parts of the

22 republic that held Croatian -- that had Croatian majority. Later on there

23 was also a conflict between the HVO and the army of Bosnia and

24 Herzegovina, which was predominantly a Muslim party, and all of this led

25 to the break-up of Bosnia-Herzegovina. The political act of separation,

1 however, had been carried out much earlier. So at that time, the break-up

2 actually started, and later on three national administrations were

3 established in Bosnia and Herzegovina which covered their own territory,

4 and this is why, in my expert report, I stated that from that moment on,

5 three states started -- or three state administrations started functioning

6 in Bosnia and Herzegovina. All of them had their own assemblies, their

7 executive organs, their armies, their territory. And naturally, they

8 waged a war against each other.

9 Q. I would ask you to slow down so that the interpreters can catch

10 up.

11 A. I will attempt to do that.

12 Q. Professor, another item that we need to cover is the effort of the

13 international community to bring about a peaceful resolution of the

14 conflict. This pertains to Cutilheiro's plan in February of 1992. What

15 is your professional and expert position regarding this second crucial

16 moment in the so-called Bosnian drama?

17 A. Yes, you're right. We could call this the second crucial and

18 dramatic moment in its fate. Since I have -- since I appear here as an

19 expert witness, not as a fact witness, I will try to disregard the fact

20 that I was a participant in these events. And at the time, it was

21 believed that there was a resolution in sight. The negotiations went on

22 for quite a while. Some of them took place in Sarajevo, some in Lisbon,

23 in the Sarajevo phase of negotiations, opposition parties were included as

24 well, although marginally, as was the party that I represented in those

25 negotiations. It seemed that the resolution of the crisis was near,

1 especially when the news arrived from Lisbon that there was -- that a

2 principled agreement on the internal order of Bosnia-Herzegovina had

3 been reached and that the main issue had been solved, namely, that Radovan

4 Karadzic and the SDS, and those Serbs who were in Lisbon negotiating

5 there, that they accepted -- or they agreed that Bosnia-Herzegovina should

6 be recognised as an independent state. And that was quite important,

7 because that was the first time that the Serb side had agreed that

8 Bosnia-Herzegovina should exist as an independent state.

9 This is especially important because up until then the Serb side

10 had insisted on the continuity of Bosnia and Herzegovina and wished

11 Bosnia-Herzegovina to remain within Yugoslavia. So in a way, this

12 represented a change in the position of the Serb party, a compromise on

13 their behalf, and they agreed to this despite the results of the

14 plebiscite.

15 On the other hand, the Muslim side accepted, or shall we say gave

16 up, this reciprocal compromise, gave up on it, and gave up on the

17 unitarian internal structure of Bosnia-Herzegovina that they had supported

18 up until then. So it seemed that these multilateral concessions made the

19 compromise possible and that the worst consequence that everyone feared,

20 which was the internal interethnic conflict, was avoided.

21 And soon thereafter, we received the news that the Muslim leader

22 and president of Bosnia and Herzegovina at the time, who also at the time

23 represented the Muslim side in negotiations, withdrew his signature. What

24 is most interesting and most important about this - and I will conclude

25 this - is that this arrangement that had been approved, initialed in

1 Lisbon, was not different from what later was signed in Dayton. The huge

2 difference, of course, that is what happened -- is that it happened three

3 and a half years later, after many victims and much destruction. Some

4 experts, such as Warren Zimmerman, and I can use his opinion, which

5 probably would be supported by the analysis, is that Muslim or later on

6 Bosniak side, that for them the Lisbon arrangement was in fact more

7 favourable than the Dayton arrangement that ensued later on.

8 That's my commentary to what you brought up.

9 Q. You mentioned Dayton. What is the parallel between the Cutilheiro

10 plan and the Dayton Agreement? What is this parallel that you wish to

11 highlight? Just briefly, please.

12 A. Well, you see, the parallel lies in the following: First of all,

13 in the method of seeking agreement from the Lisbon negotiations all the

14 way up to the Dayton negotiations, in the talks, as protagonists, it is

15 not the representatives of the institutions of Bosnia-Herzegovina that

16 appear. It is not members of the presidency belonging to the three ethnic

17 groups. It is not ministers or MPs. These are actually delegations of

18 the three ruling parties, the three national delegations. It is

19 interesting that this move in these first negotiations under the auspices

20 of the European Union already then, in a way, sidetracked the institutions

21 of Bosnia-Herzegovina. The delegations were headed by Izetbegovic, who

22 was the only one who was a member of the presidency, and he was the top

23 man in the presidency, but also Karadzic and Boban, who held no state

24 functions whatsoever. All ensuing negotiations were conducted on the

25 basis of that principle, this being concluded by Dayton.

1 As for the substance involved, in Lisbon and later in Dayton, an

2 internal decentralisation was carried out, an internal division. As

3 cantons were referred to previously, in Dayton we have an addition to

4 this. Perhaps I could put it that way. In addition to the cantons, we

5 have entities as well. Of course, what is particularly noteworthy is the

6 fact that this is a new structure of central joint organs that function on

7 the basis of the principle of parity, consensus, the national right to

8 veto, a Chamber of nations in the parliament. So there are many

9 analogies, but the differences are related to certain percentages in the

10 territorial division.

11 THE INTERPRETER: Microphone, please.

12 MR. PANTELIC: [Interpretation]

13 Q. Are you trying to say that in Bosnia, before the war, before 1992,

14 in this political system, and then in relation to the Cutilheiro plan and

15 in relation to Dayton, the principle of the vital interest of peoples was

16 protected in the same way? Is that your claim?

17 A. You see, in the period -- the communist period, or rather, in the

18 socialist period, this principle, this tenet that I referred to earlier

19 on, I didn't want to go into constitutional subject-matter, so let us call

20 it a basic principle. It functioned or rather it was implemented in a

21 different way, since there was a one-party system in place. What was

22 strictly observed was the so-called national key in the distribution of

23 political offices among the members of the three national ethnic groups.

24 However, crucial matters were resolved within one party, which greatly

25 insisted upon this element of the fact that all three peoples were

1 constituent and what was constantly invoked was the formula that I already

2 mentioned, namely, that Bosnia-Herzegovina is neither Serb nor Croat nor

3 Muslim, but that rather it belongs to all three.

4 I think that a great problem cropped up in the first

5 post-communist government, because in a different situation of multiparty

6 elections, democratic elections, et cetera, firmer mechanisms of equality

7 of rights were not ensured. The principle of veto, or rather, the

8 principle of consensus, was not introduced in the presidency of

9 Bosnia-Herzegovina. Therefore, at the moment when I joined the

10 presidency, I put forth as a prerequisite the right of veto, that is to

11 say, decision-making by consensus. Quite simply, this was the only way to

12 make it impossible to have one national group outvoted by the other or

13 others. Two sides against one.

14 A reserve mechanism, so to speak, existed only in the parliament

15 of Bosnia-Herzegovina. There was no Chamber of nationalities, but it was

16 to be introduced in Dayton. However, what existed was a council for

17 national equality. It was a kind of substitute for a chamber of national

18 groups or peoples. Annex 70, I believe, introduced this in the

19 constitution of Bosnia-Herzegovina, that is to say, the socialist Republic

20 of Bosnia-Herzegovina that was dwindling away, namely, that if the

21 principle of equality is infringed upon, 20 MPs in parliament can ask, by

22 tendering their signatures, can ask the speaker of parliament, the

23 president of parliament, to remove a particular topic from the agenda,

24 without any further debate. Then the entire problem would be referred to

25 this council for national equality, which was constituted on the basis of

1 the principle of parity again, an equal number for all national or ethnic

2 groups, and every national or ethnic delegation had a right to veto. This

3 mechanism -- that is one more thing I wish to add -- or actually, matters

4 are sent back to parliament from this consensus only -- from this council

5 only if something is agreed upon by consensus, or to put it even more

6 specifically, the final wording that will be voted on in parliament

7 subsequently is provided by that council. This mechanism, on several

8 occasions in this parliament, was activated successfully, or rather,

9 efficiently, from the moment the assembly was constituted all the way up

10 to its break-up, that is to say, until the war broke out.

11 However, that night, I believe it was crucial for political life

12 in Bosnia-Herzegovina and its recent history, this principle was infringed

13 upon. Quite simply, the intervention of 20 MPs, that the problem be

14 transferred to the council for interethnic equality, or rather, national

15 equality, was simply not accepted. That was a precedent in that sense.

16 And this infringed upon the principle of equality.

17 There is another interesting point in relation to that body. In a

18 way, it was a phantom body. The council for national equality was

19 actually never constituted. However, it was not necessary for that to be

20 done in order for it to yield certain effects. Namely, as soon as 20

21 members of parliament would file an objection stating that national or

22 ethnic equality was being infringed upon, the particular item was removed

23 from the agenda. And since it went without saying, or was assumed,

24 rather, that one of the three national delegations had been infringed

25 upon, this would definitely be taken off the agenda. So it was not even

1 necessary for that body to be constituted. It did function very well

2 nevertheless. I believe that this is yet further proof of how important

3 this principle of national equality was for the survival and proper

4 functioning of Bosnia-Herzegovina.

5 Q. Finally, Professor --

6 JUDGE MUMBA: Yes, Mr. Pantelic. Because I think we've got all

7 the details. You should wind up now.

8 MR. PANTELIC: Absolutely, Your Honour. Just one question with

9 regard to that issue and I'm finished. Thank you.

10 Q. [Interpretation] You mentioned the presidency, the collective

11 presidency of Bosnia-Herzegovina. Please be so kind as to tell the Trial

12 Chamber and us, briefly, about this collective presidency in the period

13 from April 1992 until July 1992, that is to say, the period while you were

14 on the presidency, and also, possibly, if you have any knowledge as to who

15 this presidency represented. Then I have another question: Which

16 territory did this presidency and its institutions control, and how did

17 this presidency function within the institution itself? This is an

18 outline of what I would like you to tell us about. So if you could bring

19 it all together within one answer, and this would conclude the examine in

20 chief and then the prosecutor will continue.

21 A. In my previous remarks, I already emphasised the problem that had

22 to do with the presidency of Bosnia-Herzegovina. Namely, according to the

23 Prosecution -- I beg your pardon for referring to matters that I am not

24 competent for once again.

25 JUDGE MUMBA: I think the counsel simply asked you to describe how

1 the presidency functioned. During the period that counsel referred to.

2 A. That is precisely what I had embarked upon. I do thank you.

3 It functioned by majority vote. That was the principle involved.

4 This was the process in which there was constant outvoting at a 2:1

5 ratio. This was a stage in which the representatives of the Muslim side,

6 to be more had precise, the candidates of the Party of Democratic Action

7 and the Croat representatives, or rather, to be more precise, the

8 candidates, the members of the presidency who were elected from the HDZ

9 list, they acted together, in opposition to the Serb side and the

10 representatives of the SDS. Of course, later on, as events evolved,

11 alliances changed and there were new confrontations. However, in that

12 period, that was the balance of forces involved, if I could put it that

13 way.

14 Since the majority principle of decision-making was in force, the

15 Serb side was constantly being outvoted. At the moment when I entered the

16 presidency, or when, according to the constitutional law, I was supposed

17 to enter the presidency as the third-ranking person from the list from the

18 elections, because beforehand Mrs. Plavsic and the late Mr. Koljevic

19 withdrew from the presidency, bearing in mind this experience, I insisted

20 upon the following: That as a prerequisite for my acceptance of this

21 office, the principle of consensus be introduced in its work. In addition

22 to this request, this was not only a request of mine; it was also a

23 request put forth by the fourth-ranking person, Mr. Pejanovic. We asked

24 for consensus as a prerequisite for our work in the presidency of

25 Bosnia-Herzegovina and after certain contemplation we did receive a

1 favourable answer.

2 However, in practice, that's not the way it happened. This

3 principle was practically sidestepped. Quite simply, when Mr. Pejanovic

4 and I, either one or the other, or most often both of us together, would

5 express in our discussions certain reservations vis-a-vis a particular

6 proposal, then the chairman, knowing or feeling that this would be

7 followed by a veto, would remove the item from the agenda, stating that it

8 was insufficiently prepared and that therefore a consensus could not be

9 reached. Then, afterwards, he would put it on the agenda of sessions that

10 the two of us did not attend, or these sessions were scheduled at such a

11 time that everybody knew we could not be present. Or, quite simply,

12 because of the war situation, we could not receive invitations to attend

13 the session in good time.

14 However, even more drastic things happened, in terms of this

15 anomaly in our work, as compared to the principles agreed upon. For

16 example, in this period when I was on the presidency, one morning in the

17 newspapers I read that an alliance was made between Bosnia-Herzegovina and

18 Croatia, specifically Tudjman and Izetbegovic had signed an agreement on a

19 military alliance. Beforehand, I had not heard about this at all at the

20 presidency, and I raised that question that very same morning. The answer

21 of the presiding member was that first of all this is just a canard that

22 was launched by the newspapers. When I insisted that this should be

23 seriously dealt with, because it was a serious matter that had to be

24 seriously denied, the explanation I was given was that that is not exactly

25 the way it was, or rather --

1 JUDGE MUMBA: Mr. Pantelic, we seem to go going into the

2 nitty-gritty details, and that is not --

3 MR. PANTELIC: Yes, Your Honour, I agree.

4 Q. [Interpretation] Professor, let us just conclude, please. I asked

5 you about the presidency controlling a particular military force. It was

6 commander at that point in time. I'm asking you which part of the

7 territory of Bosnia-Herzegovina did this army control at the beginning of

8 the war in 1992? Can you give us a percentage on the basis of your own

9 knowledge? And this would conclude this part of the examination. Just be

10 brief, please.

11 A. I think it was about 30 per cent of the territory, not more than

12 that.

13 MR. PANTELIC: Thank you, Your Honour. I don't have further

14 questions. Thank you.

15 JUDGE MUMBA: And you are submitting the report and the c.v. as

16 exhibits?

17 MR. PANTELIC: That is correct. I have a copy here for the -- do

18 you need --

19 JUDGE MUMBA: We all have copies. We just have to get the

20 numbers. Can we have the numbers, please, for the c.v. and then the

21 report.

22 [Trial Chamber and registrar confer]

23 THE REGISTRAR: Yes, Your Honours. The expert report will be

24 treated as D53/1, and the c.v. will be D53A/1. Thank you.

25 MR. PANTELIC: Thank you.

1 JUDGE MUMBA: Very well.

2 Cross-examination by the Prosecution.

3 Cross-examined by Mr. Weiner:

4 Q. Good morning, Professor.

5 A. [In English] Good morning.

6 Q. My name is Phillip Weiner. I represent the Office of the

7 Prosecutor and I'm going to ask you some questions.

8 Now, the report that you just filed, did you prepare that report

9 yourself?

10 A. [Interpretation] I had co-workers.

11 Q. Did you or the co-workers do the research on that report?

12 A. I don't understand the question. I beg your pardon.

13 Q. The research to provide information for that report, was that done

14 by you or the co-workers?

15 A. Which type of research? That's what I don't understand.

16 Q. The newspapers that you cited, the books that you cited and

17 quoted, that type of research.

18 A. This was done by my co-workers, under my instructions.

19 Q. All right. Now, sir, did you check the citations or did your

20 co-workers check the citations, investigate them, to determine if they

21 were correct so you would have a valid report?

22 A. Yes. Yes.

23 Q. And as part of that, did you corroborate any of the information

24 that you described, any of the incidents, to determine that that

25 information was in fact valid or correct?

1 A. I would kindly ask you to tell me what you are specifically

2 referring to. Could you give me the paragraph involved? It will be

3 easier that way.

4 Q. I was asking you on a general basis, but we will get into

5 paragraphs, sir. Did you corroborate the information in that report, the

6 facts in that report, to determine that it was correct before you placed

7 it in that report?

8 A. Well, you see, if I manage to understand you correctly, as regards

9 a series of events that occurred in the period that we dealt with in

10 Bosnia-Herzegovina, there are different opinions, different reports,

11 different assessments, et cetera, because, of course, I made a selection

12 among those results. I could not mention all sources and all

13 contradictory information involved, but I simply pointed to some

14 particular information, and therefore, I would be glad if we could discuss

15 this in concrete terms, because then I could give you concrete answers as

16 well.

17 Q. That's fine.

18 Now, let us move on. Let's go to paragraphs 95 and 96 of your

19 report. Do you have that in front of you, sir?

20 A. [In English] Excuse me.

21 Q. I'll help you out with it. What I'm referring to is the February

22 5th, 1994 explosion at the Markale marketplace in central Sarajevo. Do

23 you see what I'm talking about?

24 A. [Interpretation] Yes.

25 Q. Now, sir, in your report, you quote a 1994 London Times report

1 that a UN investigation had established, beyond doubt, that the mortar

2 shell was fired from inside the Muslim lines. Correct?

3 A. Yes. That is one of the assessments, yes.

4 Q. And you further state, sir -- or I'll summarise it. The Muslims

5 would fire on their own people and blame the Serbs. And you noted that

6 the Serbs denied their involvement in that February 5th incident.

7 Correct?

8 A. Yes.

9 Q. Now, sir, as part of your research, as a professor and an author,

10 did you ever read or analyse or review that United Nations report that was

11 referred to in the London Times? Did you go to the direct source and

12 review that report, sir?

13 A. You see, as far as paragraph 95 is concerned -- or rather, this is

14 the way in which we made our presentation, not only on the basis of -- not

15 only with regard to this subject. You will see that we quoted various

16 opinions. I, as an author, am not making any assertions. I am mentioning

17 different facts and I'm just insisting on the fact that there were

18 different opinions with regard to particular matters.

19 Q. On that matter, you indicated that a London Times report stated

20 that a UN investigation had established, beyond doubt, that the mortar

21 shell was fired from inside the Muslim lines. Did you review that report,

22 sir? Yes or no.

23 A. No. No. But I have to point out, if you allow me, that it's not

24 only the Times of London that provided this information. Right this

25 minute I cannot give the other sources of information, but --

1 Q. All right, sir. Isn't it a fact that the United Nations report

2 never held the Muslim army responsible for that explosion? Isn't that

3 true, sir, that your report is wrong?

4 A. I do not go beyond what is said here.

5 MR. WEINER: Do you want to take the break now or should I

6 confront him with the report, Your Honour?

7 JUDGE WILLIAMS: Just one question. In fact, to you, Mr. Weiner.

8 If the witness, as he has stated, did not go to the primary source and did

9 not actually read the UN report, then he obviously can't know what's in

10 it.

11 MR. WEINER: That's what I want to confront him. I have the

12 copies in B/C/S here. I want to show it to him and show that it's all a

13 fiction, his statement or his opinion is based on fiction.

14 THE WITNESS: [Interpretation] No. It's based on the London Times,

15 the Times of London.

16 MR. WEINER: Which was wrong.

17 Q. So your report, therefore, is wrong.

18 MR. WEINER: Would you like to take the break now, Your Honour, or

19 should we continue?

20 JUDGE MUMBA: We'll take the break now and continue at 11.30

21 hours.

22 --- Recess taken at 11.01 a.m.

23 --- On resuming at 11.30 a.m.

24 JUDGE MUMBA: Yes. Cross-examination continuing. I did say you

25 continue, yes.

1 MR. WEINER: I'm sorry, Your Honour.

2 Madam Usher I have copies in both English and B/C/S of the UN

3 report -- investigative report. If you could put the English one on the

4 video and give the witness a B/C/S copy.

5 JUDGE MUMBA: Yes, Mr. Pantelic.

6 MR. PANTELIC: Your Honour, I don't see any relevance for that,

7 because Professor Kecmanovic replied that the sources was the newspaper,

8 and he said that he never consulted or looked into these documents, so I

9 don't see any particular reason why we should go or establish what is in

10 this report, because from the answers of our expert witness, it's very

11 clear.

12 JUDGE MUMBA: The objection is overruled. The Prosecution will

13 proceed. It is relevant because the newspaper cited this particular UN

14 report.

15 MR. WEINER:

16 Q. Professor, and members of the Court, I invite your attention to

17 paragraph 17, please, on the third page.

18 Sir, I have in front of you the United Nations report on the

19 Sarajevo market explosion of 5 February 1994. This is an initial report

20 which the newspaper commented on. Now, if we look at paragraph 17, there

21 is no indication in that paragraph, as you indicated in your report from

22 the London Times that the mortar shell was fired from inside the Muslim

23 lines. Is that correct, sir?

24 A. Yes.

25 Q. Thank you. Now, sir, let us continue. Are you aware that General

1 Galic, of the Bosnian Serb army, has been indicted for that incident of 5

2 February 1994? Are you aware of that, sir?

3 A. No.

4 Q. Sir, are you aware that General Galic is currently being tried

5 here at this Tribunal, not in this courtroom but here at this Tribunal for

6 that crime which was committed on the 5th of February, 1994?

7 A. No, I wasn't aware of that. However, based on the paragraph that

8 was just quoted by you from the UN report, there is no specific finding as

9 to culpability. It remains open that either side could have been culpable

10 in this respect.

11 Q. Well, let us move on to that. Are you aware that in the Galic

12 trial, testimony has been introduced linking the explosion to the Bosnian

13 Serb army, linking the shell coming from the Bosnian Serb army, and

14 basically linking that to General Galic? Are you aware of that, sir?

15 A. No, I'm not aware of that. But I know that there is a trial going

16 on against General Galic. However, it hasn't been completed yet.

17 Q. I realise it hasn't been completed, sir, but are you aware that

18 the Trial Chamber in the Galic case has recently ruled that the

19 Prosecution has presented sufficient evidence that a reasonable trier of

20 fact could convict General Galic on that incident? Are you aware of that

21 fact?

22 MR. PANTELIC: Objection, Your Honour. We are getting into the

23 legal issues 98 bis rulings and all other standards, I don't believe that

24 this witness can give any answer to these inquiries. Thank you.

25 JUDGE MUMBA: Yes, Mr. Weiner. I think we are getting into

1 territory where it's still unspecified, it's still not a concluded finding

2 of fact.

3 MR. WEINER: Well, sir -- then let me ask him this question.

4 Q. Based on the information I presented to you, which shows that the

5 article you cited to was incorrect, would you like to amend your report at

6 this time and remove that paragraph or those two paragraphs?

7 A. The text that has been presented by you, for which I thank you,

8 because it is the report of the UN, and item 17 does not specify who is

9 culpable, which side was culpable. I encountered in the past assumptions

10 indicating that this side was the culprit, or the other one, and that the

11 culpability had not been established. I would not like to comment on the

12 trial against General Galic, but that trial has not been completed yet.

13 Therefore, it remains open what kind of a decision will be passed, and I

14 would not like to get into that now.

15 Q. No, sir. I'm not asking -- that wasn't my question, sir. My

16 question is: You based your report on information that was eight years

17 old and that was incorrect. Having based your report on eight-year-old

18 information that was incorrect, would you at this time like to amend or

19 change your report? Because we know it's incorrect.

20 A. I would be willing to amend it once the trial of General Galic is

21 completed and once all the facts are established. Until then, there are

22 various assumptions that can stand.

23 Q. Well, regardless of the assumptions, sir, nowhere in the United

24 Nations report does it state it has been established beyond doubt that the

25 mortar shell was fired from inside Muslim lines; is that correct?

1 A. Yes, that's correct.

2 Q. Thank you. Let us continue.

3 Could we move to paragraph 70, please. Sir, I would like to

4 direct your attention to the third, fourth, and fifth sentences in

5 paragraph 70. I'm sorry, the fourth, fifth, and sixth sentences:

6 "Indeed --" I'll read them to you:

7 "Indeed, the media pressure in the West was focused exclusively

8 on the Serb side and its alleged atrocities against the Muslims. Early in

9 August, in order to prove that the Serbs were not mistreating Muslims,

10 Karadzic allowed the western media to freely inspect some detention

11 camps. The result of this, however, was that Serbs were made to look even

12 worse, as western television stations and the press competed on the basis

13 of flimsy evidence, to present the Serbs as modern-day Nazis running

14 extermination camps."

15 Sir, what I'd like to talk to you about is the alleged atrocities

16 and the flimsy evidence. Do you know which camps were visited by the

17 journalists in that case or in that situation? Which camps were visited

18 by the journalists when Karadzic allowed them to visit?

19 A. I think it was the camp in Trnopolje.

20 Q. That was one of them, sir. Can you think of any of the others?

21 A. Keraterm.

22 Q. Keraterm was another. Let me see if I can refresh your

23 recollection as to the others. You've cited on at least seven occasions,

24 either cited or quoted "Yugoslavia death of a nation," by Laura Silber and

25 Allan Little; isn't that correct, sir?

1 A. Yes.

2 Q. All right. Let me please read to you one paragraph which begins

3 on the bottom of page 250 and continues through the top of page 251:

4 "There were, it turned out, four large detention camps that gained

5 international notoriety. Trnopolje and Manjaca were transit camps, where

6 inmates lived in appalling conditions and were subject to random beatings

7 and a sadistic whim of their guards. But in Omarska and Keraterm, a

8 former ceramics factory on the outskirts of Prijedor, there was evidence

9 that the prisoners were separated into categories based on interrogation.

10 They were intimidated into giving evidenced against each other. After

11 this screening process, they were placed in one of three categories: A,

12 B, or C. In category A, those who were judged to have been leaders of the

13 Muslim community or volunteers of one of the Bosnian militias or

14 Territorial Defence. Most of these were killed. Category B consisted of

15 men who were drafted into the Territorial Defence. And category C was all

16 the rest. They were transferred to Trnopolje or elsewhere, where they

17 would be held until they could be exchanged for Serbs, taken prisoner by

18 the government forces, or for Serbs living on government-held territory

19 who wanted to cross to the Serb side."

20 In your opinion, sir, when you've published your opinion or your

21 report, you didn't mention that information from a book by Silber and

22 Little when you discussed the alleged atrocities and the flimsy evidence

23 in paragraph 70.

24 A. What's your question?

25 Q. My question is: Although you have quoted and cited the Laura and

1 Silber book -- the Laura Silber and Allan Little book on several

2 occasions, you did not mention that paragraph when you talked about not

3 atrocities, not potential atrocities, but in your words, alleged

4 atrocities.

5 A. The book of Laura Silber and Allan Little has a chapter that I

6 think is entitled, "The meeting between Izetbegovic and Krajisnik." Do

7 you remember that chapter?

8 Q. Sir, that's not my question. My question to you is: Did you

9 mention that information?

10 A. It's quite important, this chapter. Let me remind you. It speaks

11 about the fact that that was the last meeting between two leaders of two

12 national sides, that it was tete-a-tete meeting and it also goes on to

13 present the content of their conversation.

14 Q. That's not my question. My question to you is: Did you mention

15 the description of atrocities in that book in your report? Yes or no.

16 A. What I'm saying now is supposed to indicate how authentic that

17 text and that book is. I have direct knowledge that some parts of that

18 book are not accurate, and I can confirm that. That meeting was not

19 tete-a-tete. I was present there as well, and the content of the

20 conversation was quite different. I was in fact the one who arranged that

21 meeting. I don't have to take everything that's contained in that book as

22 an authentic fact.

23 Q. All right, sir. So your answer is you did not mention that

24 paragraph in your report. Yes or no, sir.

25 A. That part of the book, you mean?

1 Q. Yes, sir.

2 A. No. No, I didn't, obviously.

3 Q. Since, sir, you have questioned certain parts of the book,

4 apparently, let us talk about some of those camps. Are you aware, sir,

5 that three guards or commanders from the Keraterm camp have pled guilty in

6 the fall of 2001 and have admitted their involvement in the persecution

7 of non-Serbs at that Keraterm camp, just like they said in the Silber

8 book, including murder, torture, sexual assault, confinement in inhumane

9 conditions, harassment, humiliation, and psychological abuse? And the

10 case is Sikirica, Dosen, and Kolundzija. Are you aware that those people

11 have pled guilty to committing those crimes at the Keraterm camp?

12 A. I'm not aware of that, but I'm not disputing the fact that there

13 were atrocities committed on both sides, and not only in the camps that

14 you are mentioning, but in the wider area of Bosnia-Herzegovina.

15 Q. Well, let's continue in those camps, since you questioned the

16 Silber book, are you aware that Dusko Tadic, known as Dule, was convicted

17 in 1997 for crimes relating to the Omarska, Keraterm, and Trnopolje prison

18 camps? Were you aware of that, sir?

19 A. I have to repeat once again that we don't need to mention specific

20 admissions of guilt. I have knowledge, regardless of those admissions,

21 that there were crimes committed on Muslim side, on the Serb side, and on

22 all other sides. I know about that, and there were crimes committed in

23 Sarajevo as well. I lived in Sarajevo at the time.

24 Q. But sir, you didn't say that in paragraph 70. You said: Alleged

25 atrocities. And you said: Flimsy evidence. Which we know isn't true,

1 that those atrocities did occur at those camps; correct? You're admitting

2 that those atrocities have occurred at those camps.

3 A. Yes, that's correct.

4 Q. In fact, even closer to Bosanski Samac is Brcko, which is right at

5 the edge of the Posavina corridor; correct, sir? And in Brcko

6 Goran Jelisic, known as the Serbian Adolf, after Adolf Hitler, pled guilty

7 in October 1998 to serious crimes against non-civilians in the Luka camp,

8 including 13 murders, beatings, and plunder. Were you aware of that, sir?

9 A. I don't see why you are putting forth these examples of crimes to

10 me when I've already said that I'm aware that there were crimes committed

11 in Bosnia-Herzegovina by all three sides. You are now using specific

12 examples to support my general claim.

13 Q. Well, let's look at that general claim. Based on these admissions

14 of guilt that you've just heard, which occurred in this courthouse, the

15 decision in the Tadic case and the statement in the Silber and Little

16 book,

17 would you like to amend your report as to the phrase "alleged atrocities"

18 and flimsy evidence? Would you like to amend your report at this time,

19 sir?

20 A. It is said here that Serb atrocities were exaggerated, that Serbs

21 were demonised and were portrayed in an even worse light. This is what it

22 says here, that this is how they were portrayed in Western media, and that

23 the journalists competed among themselves as to how they were going to

24 portray Serbs, claiming that Serbs ran extermination camps. This is what

25 I said here. Those were not exterminating camps. Those were not Nazi

1 camps. And I simply said that they were portrayed in an even worse light.

2 Q. Well, sir, you say that these weren't extermination camps. I'd

3 like to show you a piece of evidence from the Jelisic case of the Serbian

4 Adolf, Goran Jelisic, executing a man. And would you please look at this

5 picture?

6 MR. LAZAREVIC: Objection, Your Honour. Expert witness already

7 explained that he is not challenging that there were crimes, and we really

8 don't see what is the relevance of producing one particular crime.

9 MR. WEINER: Your Honour, I'm asking him if he will change his

10 testimony. He won't answer my question. Maybe when he sees an execution,

11 he'll -- maybe that will affect his testimony.

12 Q. Would you look at that picture, please.

13 JUDGE MUMBA: Yes. The Prosecution will go ahead.

14 MR. WEINER:

15 Q. Once again, based on the evidence you've heard so far, as well as

16 the picture of an execution right in front of you, would you change your

17 testimony in relation to the phrases "alleged atrocities" and "flimsy

18 evidence"? Yes or no.

19 MR. PANTELIC: Your Honour, objection. This witness cannot say

20 who is on that picture. There is not enough evidences that he can make

21 any comments. I think this witness clearly stated that all three sides in

22 Bosnia committed various war crimes. So let's be -- otherwise we are

23 opening another case into our case with this bunch of evidence and all

24 other photographs. He doesn't know where -- who is on that picture,

25 et cetera. I mean, what is the sense of that?

1 JUDGE MUMBA: The Prosecution have a point which they're trying to

2 make in relation to the expert report which is before us, so they will go

3 ahead. Let the witness answer.

4 A. If you will allow me, if you're not going to interrupt me, then I

5 will proceed and say two sentences. Please do not interrupt me. I lived

6 in Sarajevo during a portion of the war. There were crimes committed

7 against Serb civilians there, and I did not need photographs to learn of

8 this. I was there and I saw that directly. Those were crimes committed

9 against Serb civilians. Please allow me to continue.

10 MR. WEINER:

11 Q. On re-direct, your counsel has the right to bring out any

12 explanation of any answer if you feel you want further explanation. My

13 question to you is: Are you willing to amend your report at this time?

14 It's a yes or no. I'm not asking you about atrocities committed against

15 Serbs, atrocities committed against Croats. I'm asking you: Are you

16 willing to amend the information based on the evidence that has been

17 presented to you? Yes or no.

18 A. I cannot give such a simple answer to such a complex question.

19 We're not here on a quiz, and the topic is much more complex to allow me

20 to answer with a yes or no. Will you allow me to proceed?

21 Q. No. I'm asking you to answer the question. If you can't answer

22 the question, sir, we'll move on. If you feel you can't answer the

23 question, we'll move on. If you will not -- that's fine.

24 A. I cannot give you a yes or no answer. The question is much too

25 complex for that.

1 Q. Fine, sir.

2 Now, sir, do you believe your report to be objective?

3 A. I'm glad you asked this question. I gave expert opinions before

4 as well, but this time I had in front of me the expert opinion of my

5 colleague, Dr. Donia. I analysed his report and determined it to be quite

6 one-sided, and I tried to supplement what was missing in that report in

7 order to give the Trial Chamber a comprehensive insight into everything

8 that took place in Bosnia and Herzegovina.

9 Q. Sir, apparently you didn't understand my question. My question is

10 a simple one. Do you believe your report to be objective? Are you saying

11 it is, and you've gone to the other side to try to neutralise Mr. Donia,

12 the other expert, or is your report objective? Simple question.

13 A. I didn't want to deny what Dr. Donia said. I simply wanted to

14 supplement it in order to give a comprehensive picture to the Trial

15 Chamber.

16 Q. Fine. Let's try it again. Do you believe your report to be

17 objective, sir? I'm not asking you about Dr. Donia. I'm just asking you

18 if you believe your report to be objective.

19 A. Unfortunately, I cannot give you the kind of answer that you're

20 looking for.

21 Q. All right. Let's move on.

22 A. I've already given you an answer to that question.

23 Q. Sir, in your report, you are very critical of Alija Izetbegovic.

24 Would you please show us where in your report you criticise Radovan

25 Karadzic, Biljana Plavsic, Slobodan Milosevic, all alleged war criminals?

1 Please show us in your report where you criticise them.

2 A. I will repeat something that I've already said. The report of

3 Dr. Donia speaks in detail about the culpability of persons that you've

4 just mentioned, but doesn't speak about Alija Izetbegovic and his

5 culpability in that situation. I tried to supplement that picture

6 precisely because Dr. Donia does not speak of it at all.

7 Q. So basically, sir, what you're saying to me is nowhere in your

8 report do you criticise the Serb leadership, or the SDA leadership?

9 A. I've just given you an answer to your question.

10 Q. Do you criticise the Serb leadership or SDS leadership in your

11 report, sir?

12 A. I've already replied to your question.

13 Q. Let us continue looking at that report. In your report, sir, you

14 mention the pre-war preparations of the Muslims and the Croats. At

15 paragraphs 33, 39, and 68. Where in your report do you describe the

16 pre-war preparations of the Bosnian Serbs?

17 A. Pre-war preparations of Bosnian Serbs were actually not necessary,

18 if I can put it that way, because, conditionally speaking, the Serb side,

19 or the Serbs in Bosnia and Herzegovina, were in favour of Bosnia and

20 Herzegovina remaining within Yugoslavia, so they didn't want the situation

21 to change. They didn't support the changes, because they wanted Bosnia

22 and Herzegovina to remain within Yugoslavia. This is why they believed

23 that the Yugoslav People's Army represented the force that would defend

24 the status quo, and this is why they probably believed that there was no

25 particular need for them to arm themselves, because there was a regular

1 army that was going to protect the status quo, because it was its duty, as

2 defined by the constitution.

3 Q. Are you saying, sir, that there were no pre-war preparations by

4 the Bosnian Serbs?

5 A. I am not aware of any such thing. They relied upon the Yugoslav

6 People's Army as an armed force that protects the political interests of

7 the Bosnian Serbs, and that was the survival of Yugoslavia.

8 Q. But you didn't say that in your report, that the Serbs did not

9 prepare; rather, they relied upon the Yugoslavian army. You didn't say

10 that in your report, did you, sir?

11 A. Well, you see, in my report I did not say a great many things I

12 could have said. But if you are interested in any of that, you can put

13 questions to me.

14 Q. Once again, you didn't say it? Yes or no.

15 A. I have to tell you, quite simply, that the subject is too complex,

16 to delicate, and if at all possible, please do not suggest that I should

17 give simplified answers by way of yes or no only.

18 Q. Well, let's look at some factual issues. Were you aware that the

19 paramilitary office, paramilitary soldiers from Serbia entered the area of

20 Bosanski Samac prior to the war which began on April 17th, 1992? Are you

21 aware of that?

22 A. Yes. That is in Donia's report.

23 Q. And did you discuss that in your report?

24 A. I repeat once again. I do apologise to the Trial Chamber and

25 everybody else for having to engage in such repetition. I wrote expert

1 reports earlier for The Hague Tribunal too that were far more

2 comprehensive. They included a great many facts of this nature, such as

3 those that the Prosecutor has been referring to now. However, I had been

4 acquainted with the expert report of my colleague, Dr. Donia, and I saw

5 that he had quite thoroughly dealt with many of the questions that the

6 Prosecutor is insisting upon now. Therefore, in my analysis, I dwelled on

7 those matters that he omitted, and I thought that that was the point of

8 expert opinions, that the Trial Chamber should be provided with as

9 comprehensive a picture as possible as to what was going on on the

10 ground. Quite simply, I believe that the Trial Chamber will take into

11 account what Dr. Donia presented in his expertise, as well as that which I

12 presented in my report. I am not entering a polemic with him in my text.

13 Yes?

14 Q. Sir, did you discuss in your report the arrival of the

15 paramilitaries in Bosanski Samac? Simple question. Did you discuss it in

16 your report? Not your reasoning, not your basis why you did, why you

17 didn't. Did you?

18 A. Again, I cannot give an answer that way. I think that I have

19 sufficiently dealt with it in my previous answer.

20 Q. You still haven't answered the question. Let's move on to another

21 question concerning this less comprehensive report.

22 Did you indicate that local Serbs were sent to Serbia two, three

23 months prior to the war for paramilitary training, 20 to 30 local Serbs

24 from Bosanski Samac? Did you mention that in your report as part of the

25 pre-war preparation?

1 A. Quite simply, I'm not aware of that particular fact.

2 Q. Okay. That's fine. Sir, you indicate that certain --

3 A. I beg your pardon. I'm not sure that Donia mentions that fact

4 either. Perhaps I do not remember. Perhaps it is there. But I do not

5 recall that. However, I fully trust it, if my colleague put it in his

6 report.

7 Q. Now, sir, in your report, you mention that there were certain

8 Muslim or Croatian barricades or checkpoints. Were you aware that the JNA

9 and the Serbs had set up barricades and checkpoints in the municipality of

10 Bosanski Samac prior to the war? Are you aware of that? It wasn't in

11 your report, so that's why I'm asking the question. Are you aware of it

12 and you deleted it, or it's not in your report and you're not aware of

13 it? Did you not know of it?

14 A. No. As for the existence of Serb barricades, I know about that,

15 but not about Samac. I know that this had existed in Sarajevo and that

16 the army of BH, or rather the JNA, together with the police of

17 Bosnia-Herzegovina, together with the presidency, intervened and that the

18 barricades were removed. So I do know of Serb barricades in Sarajevo, but

19 I do not know of barricades in Samac.

20 Q. You had no mention that at least a month prior to the war JNA

21 tanks, mortars, and artillery had been brought into that area, into the

22 municipality of Bosanski Samac. Were you aware of it, sir, or did you

23 know of it and decide to delete the information, not place the information

24 in the report, or were you not aware of it?

25 MR. LAZAREVIC: Your Honours, I do have to object to this question

1 of the Prosecution. Maybe if our learned colleague could explain what is

2 the basis of this statement that a month prior to the outbreak of conflict

3 tanks and mortars and other artillery was placed in Bosanski Samac. On

4 what basis he states that.

5 MR. WEINER: Certainly. Your Honour --

6 JUDGE MUMBA: Yes, Mr. Weiner.

7 MR. WEINER: Your Honour, in paragraph 38, going into 39 --

8 actually, beginning in paragraph 37, those two and a half paragraphs are

9 the only paragraphs in this 117-page report relating to Bosanski Samac.

10 And in the third paragraph, which would be paragraph 39, he describes

11 factor after factor of incidents, if you want to call them, or incident

12 after incident or action and action taken by either the Croats or the

13 Muslims from Bosanski Samac. However, he doesn't describe any actions

14 taken by the Serbs, and I'm asking him about this omission. He might not

15 be aware of it. That might be the issue. It might be a lack of

16 knowledge, or he might have deleted it for some reason and established a

17 bias or a nonobjective or an unobjective report. And I don't know which

18 he has done.

19 JUDGE MUMBA: Yes, Mr. Lazarevic.

20 MR. LAZAREVIC: Your Honour, it is quite clear for the Defence

21 what the Prosecution would like to establish through his line of

22 cross-examination, but -- well, first, to be honest, we did not intervene

23 when the Prosecution asked about paramilitaries. We did not intervene

24 about sending some citizen from Bosanski Samac to a special military

25 education. But now we are intervening, because the fact that tanks and

1 mortars and artillery was placed, we are asking what is the basis for this

2 statement. And we still didn't get the answer from the Prosecution.

3 MR. WEINER: Your Honour, when I am doing is proving that the

4 Serbs took several actions to prepare for war, that he did not include any

5 of those actions taken in preparation for war. So either he purposely

6 deleted them or he just doesn't have the knowledge, he was unaware of

7 them.

8 JUDGE MUMBA: Yes. Because the report to some extent goes into

9 factual matters in the sense that, as the Prosecution is putting it, he

10 describes what the other people were doing, the Croats and the Muslims,

11 and as Mr. Weiner has said, he's trying to find out whether his report

12 could have been balanced in giving information on what the Serbs were also

13 doing. So the Prosecution can go ahead.

14 MR. WEINER:

15 Q. Were you aware that JNA tanks, mortars, and artillery were brought

16 into the area or the municipality of Bosanski Samac around March of 1992?

17 A. In order to clarify this, are you referring to JNA artillery or

18 some other Serb forces, paramilitary forces, or are you talking about JNA

19 artillery?

20 Q. JNA artillery. Artillery, tanks, or mortars that had never been

21 in that area before suddenly arrives approximately one and a half months

22 prior to the war. Were you aware of that?

23 A. You see, I didn't know that. But I don't see anything

24 controversial about this. The JNA was the regular army of that country,

25 and there was nothing strange about it or suspicious about it if army

1 units were moving about in a country where there are regular military

2 force, especially when the situation was particularly difficult. Because

3 incidents had already started. There was unrest. And it is normal that

4 military and police forces should be present and should be moving about,

5 of course, in a way which their commands consider to be the proper way to

6 do it.

7 Q. You said that there was nothing strange about it. The fact that

8 mortars are now facing the non-Serb towns, artillery is facing the

9 non-Serb towns, and tanks that have never been seen in that area suddenly

10 appear, that's not strange to you?

11 MR. LAZAREVIC: Again I have to object.

12 MR. WEINER: That's argumentative. I'll withdraw. Let us move

13 on.

14 Q. Sir, you mentioned the new TO. Were you aware that Serbs were

15 invited to join the new TO, or Territorial Defence, of Bosanski Samac?

16 Were you aware of that fact?

17 A. I'm not aware of that specifically, but I have to tell you in

18 general terms that in my expert report I have been dealing with the

19 situation in general, as you also noticed in extensive text, I only refer

20 to Samac in three paragraphs, and the text is about 100 pages. So I'm

21 dealing with the general situation, and therefore I wish to remind you

22 that there were also Muslims and Croats involved, that they were called up

23 in accordance with the law. They were called up as conscripts. However,

24 there was a sabotage and they refused to go along with this legal

25 obligation of theirs. The TO --

1 Q. Sir, we're talking about the TO of Bosanski Samac, not the other

2 TOs in the country, not the draft. Were you aware that Serbs were invited

3 to join the Territorial Defence of -- the new Territorial Defence of

4 Bosanski Samac? Were you aware of that in April of 1992, the Serb

5 civilians were invited to join?

6 A. Specifically, as far as Bosanski Samac is concerned, I don't know.

7 I cannot really say anything to you. I can only say what the situation

8 was generally in Bosnia-Herzegovina.

9 JUDGE MUMBA: Yes. And in fairness to this witness, Mr. Weiner, I

10 think it's clear now that he has explained that he was describing the

11 situation in general, so he has no particular details of any particular

12 place.

13 MR. WEINER:

14 Q. So you have no knowledge of what happened in April of 1992, April

15 and May of 1992, in Bosanski Samac, sir; is that correct?

16 A. Well, when you're talking about concrete things in Bosanski Samac,

17 there is nothing that I can confirm or deny. I can only tell you in

18 principle what the situation was with the Yugoslav People's Army in

19 Bosnia-Herzegovina, also as regards the TO, et cetera, and I can refer

20 only in the barest terms to the situation in Bosanski Samac.

21 Q. So obviously, I'll take it the next step - you weren't aware of

22 the prison camps or the detention centres that were established in

23 Bosanski Samac in April of 1992?

24 A. No. In that respect, I know what the situation was in Sarajevo.

25 Q. Okay. Let me ask you a few more questions about the area. In

1 your report, at paragraph 64, you mention an attack on Bosanski Brod. You

2 mention, actually, a massacre of Serbs in Bosanski Brod.

3 A. What paragraph was that?

4 Q. Paragraph 64, sir.

5 A. This has to do with the massacre in the village of Sijekovac.

6 Q. Yes. Now, sir, did you, in your report, mention at that same time

7 period the attack on Bijeljina by Serb paramilitaries? Did you mention

8 that, sir, where they had summary executions in the street of Muslim

9 political leaders? Did you mention that in your report, the attack on

10 Bijeljina?

11 A. In my previous expert reports, I mentioned both. However, as I

12 said a minute ago, this was extensively dealt with in Dr. Donia's

13 expertise, whereas Sijekovac was not mentioned. Both cases occurred

14 within a short span of time, and the members of the presidency were Fikret

15 Abdic, Biljana Plavsic, Franjo Boras, and they went to both places and

16 both tragic incidents attracted a great deal of attention at the time.

17 This was the beginning of such developments in Bosnia-Herzegovina.

18 Q. Since you mentioned this in your other reports, which I apologise

19 I haven't seen, would you agree that in a period of one week, on April

20 1st, the Serb paramilitaries, Arkan's paramilitaries, attacked Bijeljina,

21 and on April 8th, one week later, the paramilitaries attacked Zvornik, and

22 in both cases there were summary executions in the street, thousands of

23 people lost their homes, people were beaten? Do you agree with that, sir?

24 A. Once again, I have to repeat my general statement that crimes were

25 committed in that period both against Bosniaks and Croats and Serbs, in

1 different parts of Bosnia-Herzegovina. I was an immediate eyewitness of

2 this in Sarajevo. As I said a minute ago, I was aware of the tragic

3 events in Bijeljina. You yourself confirmed the tragic events in

4 Sijekovac.

5 Q. I'm not asking you about Sarajevo. I'm asking you about two

6 particular places just east of Bosanski Samac: Bijeljina and Zvornik.

7 Are you aware of those specific atrocities occurring? They weren't listed

8 in your report. Are you aware that they occurred? I'm not asking about

9 Sarajevo. I'm not asking about other atrocities. We could stay here for

10 days talking about every atrocities. Those two. Are you aware of those

11 two, one on April 1st and one on April 8th?

12 A. I have confirmed to you these crimes in Bijeljina. I don't see

13 why you're asking me about that again.

14 Q. Bijeljina is fine. What about Zvornik, one week later on April

15 8th?

16 A. Believe me, I do not recall. These crimes later became a mass

17 phenomenon in Bosnia-Herzegovina. Bijeljina and Sijekovac, though, I

18 remember very well, because that was the very beginning.

19 Q. Now, sir, let's move on. You mention in your report, in your

20 criticism of Alija Izetbegovic, his goal, or what you believe to be his

21 interest in establishing a united Muslim community or a pan-Muslim nation,

22 or something along those lines. You never in your report mention the goal

23 of a greater Serbia; is that correct?

24 A. I think that the interest of the wish of Serbs in

25 Bosnia-Herzegovina was no Greater Serbia. Rather, it was the preservation

1 of Great Yugoslavia. The plebiscite that was held in Bosnia-Herzegovina

2 before the referendum, if you remember, the question in it was not the

3 question at the referendum that was organised by the Serb Democratic Party

4 was not: Are you in favour of a Greater Serbia or not, but the question

5 was: Are you in favour of preserving Yugoslavia or not?

6 Q. Sir, even though you make that statement that the Serbs weren't

7 interested in a Greater Serbia, are you aware that in the case of

8 Prosecutor versus Dusko Tadic, also known as Dule, in the decision, the

9 Court states the following, paragraph 85:

10 "The concept of a Greater Serbia has a long history. It emerged

11 at the forefront of political consciousness, close to its modern-day

12 form. As early as 150 years ago and gained momentum between the two

13 world wars, kept in check during the years of Marshal Tito's rule, it

14 became very active after his death. Greater Serbia involved two distinct

15 aspects. First, the incorporation of two autonomous provinces of

16 Vojvodina and Kosovo into Serbia, already referred to; and secondly, the

17 extension of the enlarged Serbia, together with Montenegro, into portions

18 of Croatia and Bosnia and Herzegovina, containing substantial Serb

19 populations."

20 Were you aware of that quote and that information from the Dusko

21 Tadic decision?

22 A. No, I'm not aware of that. But what I am aware of is, since we're

23 talking about awareness, tradition, et cetera, and of course this is not

24 the subject of this discussion here, what kind of plans or ideas were

25 espoused by individual politicians anywhere, including Serbia and

1 Belgrade. But as for politicians in Bosnia-Herzegovina, there was an

2 unequivocal option in favour of Yugoslavia, and therefore, the question at

3 the plebiscite was worded the way it was.

4 Q. Let's talk about politicians.

5 A. Allow me to finish, please.

6 Q. Well, you're not answering my question, sir. You have to answer

7 the questions. So let's talk about the politicians of Bosnia. I'll take

8 the portion from your answer. Paragraph 89:

9 "In the early 1990s there were rallies that advocated and promoted

10 the idea with Serbian leaders in attendance. In 1992, Radoslav Brdjanin,

11 president of the Crisis Staff of the Serb autonomous region of Banja Luka

12 area, declared that 2 per cent was the upper --"

13 A. Excuse me. Excuse me.

14 JUDGE MUMBA: Yes?

15 A. This is not clear to me. Which document are you quoting from?

16 MR. WEINER:

17 Q. I'm sorry. The Tadic decision. He "declared that 2 per cent was

18 the upper tolerable limit on the presence of all non-Serbs in the region.

19 Radoslav Brdjanin advocated three stages of ridding the area of

20 non-Serbs. 1, creating impossible conditions that would have the effect

21 of encouraging them to leave of their own accord, involving pressure and

22 terror tactics; 2, deportation and banishment; and 3, liquidating those

23 remaining who would not fit into his concept for the region."

24 Are you aware of Radoslav Brdjanin making those particular

25 comments or any other rallies in Bosnia-Herzegovina where the concept of

1 Greater Serbia was discussed?

2 A. Can I just put a question to you for the sake of clarification and

3 accuracy?

4 Q. Certainly, sir.

5 A. Could you now put your question to me? What is your question on

6 the basis of all of this?

7 Q. Are you aware of that comment or similar comments by any SDS or

8 Serb party politicians?

9 A. I don't know what people -- officials of the SDS spoke

10 individually at lower levels. However, their leaders, people who held top

11 offices in the SDS in Republika Srpska, I don't know of them having made

12 such statements that they want to create a Greater Serbia. I never heard

13 about that, for one.

14 JUDGE MUMBA: Mr. Weiner, you are aware that your time is almost

15 up.

16 MR. WEINER: I just have one more area after this. He's not

17 answering the questions, Your Honour, and he goes on --

18 JUDGE MUMBA: Yes. That sometimes happens. So you simply make

19 your point and you move on.

20 MR. WEINER: All right.

21 Q. One more quotation and then we'll move on to the last topic, sir.

22 Sir, are you aware -- you mentioned -- and the reason I'm asking

23 this you mentioned in one sentence the Serb autonomous regions in your

24 report, just one sentence. But are you aware of the tie between the

25 Greater Serbia theory and the Serb autonomous regions. And this I'm

1 quoting from, again, the Tadic decision, paragraph 97: "The greater

2 Serbia theory was put into practice after the 1990 elections and before

3 the beginning of the war. In April of 1991, several communities joined a

4 Serbian association of municipalities --"

5 THE INTERPRETER: Would the speaker please slow down. The reading

6 is too fast for the interpreters.

7 MR. WEINER: I'm very sorry.

8 Q. "In April 1991, several communities joined a Serbian association of

9 municipalities. These structures were formed in areas predominantly

10 inhabited by Bosnian Serbs, generally by vote of the predominantly

11 Bosnian Serb local assemblies. At first, this association was a form of

12 economic and cultural cooperation with administrative power. However,

13 separate police forces and separate assemblies rapidly developed. In

14 September 1991, it was announced that several Serb autonomous regions in

15 Bosnia and Herzegovina had been proclaimed, including the Krajina,

16 Romanija, Stara Hercegovina, with the aim of separating the republican

17 government agencies in Sarajevo and creating a Greater Serbia."

18 Had you ever heard that information before, sir?

19 A. Well, listen. These are topics that are dealt with in the expert

20 opinion, expert report, and I can give you specific answers regarding them

21 because they have to do with the global political movements. What I

22 believe is that these autonomous regions, these so-called SAOs, the

23 Serbian autonomous regions, and if I understood your question well, you

24 asked me whether I see a link between that and Greater Serbia. However, I

25 see a different kind of link there between these autonomous regions, on

1 the one hand, and on the other hand, what -- during the peace negotiations

2 up until Dayton was discussed, namely, how to decentralise

3 Bosnia-Herzegovina along the lines of the ethnical principle, because

4 three sides participated in negotiations. There is something that was the

5 established structure in Bosnia and Herzegovina regarding decentralisation

6 and regionalisation, namely, that western Herzegovina was mostly populated

7 by Croats, Cazin area was mostly populated by Muslims and then certain

8 other areas were mostly populated by Serbs, and so on. It is true though,

9 that some areas had mixed population, ethnically mixed population. The

10 Croatian of these autonomous regions, and not only Serb ones but also

11 Croat ones, which you know existed. There was the western Herzegovina as

12 a region, and so on. So let me just conclude --

13 Q. Okay. Just conclude.

14 A. Therefore, I do not see a link there. I don't see how this is

15 linked to the concept of Greater Serbia. But if you insist, the link that

16 I see has to do with a decentralised Bosnia-Herzegovina, which through all

17 of these arrangements, starting with Lisbon and all the way up to Dayton,

18 was discussed, and in a sense it represents a continuation of the previous

19 state that I've described. Naturally, I --

20 JUDGE MUMBA: Yes, Mr. Pantelic.

21 MR. PANTELIC: Excuse me, Your Honours. Excuse me,

22 Mr. Kecmanovic. Intervention -- correction to the transcript. Page 62,

23 line 3. I think that the professor mentioned, after the Croatian region

24 of Herceg-Bosna, and then he mentioned Croatian region of Bosanska

25 Posavina. He said that, but we don't have that in transcript. Maybe my

1 learned friend can clarify that or simply I can do that in re-direct,

2 whatever is suitable. Thank you.

3 MR. WEINER: Re-direct would probably be better, because it's not

4 in answer to my question anyway.

5 JUDGE MUMBA: Yes.

6 MR. WEINER:

7 Q. Sir, you indicate -- last question on this. You indicate that you

8 understand the concept of Greater Serbia. You never mention in your

9 report, in your 117-plus-paragraph report, the concept of Greater Serbia

10 in your -- in this report, sir; correct?

11 A. Once again, I need a clarification. You said that I understood,

12 grasped the concept. What did you mean by that?

13 Q. You mentioned the concept of Greater Serbia. Those are your

14 words. And you talk about the concept of Greater Serbia. And my question

15 is: You never mention it in your 60-page report; correct?

16 A. I don't believe it to be relevant to the events in Bosnia. I will

17 repeat this again. Bosnian Serbs did not --

18 Q. [Previous translation continues] ... whether you agree it to be

19 relevant or not, you never mention it; is that correct? Can you agree

20 with me that you never mentioned the concept of Greater Serbia in your

21 60-page report? Whether you -- regardless of your views on its relevance,

22 you never mention it?

23 A. This concept was not mentioned anywhere by the leaders of the SDS

24 either, or leaders of Serbian Republic, as far as I know.

25 Q. But I'm not asking you that question, because we can get into that

1 if we had more time. You never mention it in your 60-page report, sir; is

2 that correct?

3 A. Yes.

4 Q. Thank you. Let us go on to one final issue. As you know -- or I

5 believe you know the defendants in this case have been charged with ethnic

6 cleansing, to wit, crimes of transfer of civilians, deportation. In your

7 60-page report, you never mention ethnic cleansing; is that correct?

8 MR. LAZAREVIC: Objection, Your Honour.

9 JUDGE MUMBA: Yes, Mr. Lazarevic.

10 MR. LAZAREVIC: We already have this kind of questions during

11 testimonies of witnesses and other expert witnesses of the Prosecution,

12 when we asked those kind of witnesses, even expert witnesses, about ethnic

13 cleansing. We have to understand that it's a legal term. And as our

14 learned colleague said, this witness has no legal education.

15 MR. WEINER: Your Honour, the phrases deportation, transfer, have

16 legal meanings. Ethnic cleansing is a common term which was used by the

17 newspapers, the press, the politicians, the diplomats --

18 JUDGE MUMBA: I mean, to be brief, why don't you just explain what

19 your question is all about.

20 MR. WEINER:

21 Q. My question, sir, is: You never mentioned the term or the phrase

22 "ethnic cleansing" in your report; correct?

23 A. I can once again give an answer, but not a yes or no answer.

24 Q. Do you know what the term "ethnic cleansing" refers to? If you

25 don't let me give you that first. Ethnic cleansing, according to the

1 Special Rapporteur of the UN Commission on Human Rights for Yugoslavia on

2 28 August 1992 states:

3 "Ethnic cleansing refers to the elimination by the ethnic group

4 exercising control over a given territory of members of other ethnic

5 groups."

6 Do you discuss in any place in your 60-page report the concept of

7 ethnic cleansing or the ethnic cleansing which occurred in

8 Bosnia-Herzegovina during the war?

9 A. If you want me to give a yes or no answer, I will then exercise my

10 right not to give you an answer, because I would like to answer in one or

11 two sentences. I cannot simply answer yes or no.

12 Q. Well, sir, the question is: Does it exist in your report or

13 doesn't it exist in your report? On re-direct examination, you can

14 explain why you placed it there or why you didn't place it there. Do you

15 agree with me, though, it does not exist in your 60-page report?

16 A. Well, listen. Then my answer is not really important there. We

17 can simply go through the report and see whether it's mentioned there or

18 not. This is simply a matter of record. We can go through the text and

19 see whether it's mentioned in the text or not. It's not relevant what I'm

20 going to say. If you want me to give an explanation about why is that not

21 mentioned in my report, then I can do that too.

22 Q. So you are agreeing that it is not mentioned in your report, then?

23 A. I agree.

24 Q. Final question. Sir, are you aware of the decision on strategic

25 objectives of the Serbian people in Bosnia and Herzegovina? It was

1 drafted on 12 May 1992, and strategic objective number 1 and this is an

2 exhibit which is in evidence in this case. Strategic objective number 1

3 is to establish state borders separating the Serbian people from the other

4 two ethnic communities, and that was drafted on 12 May 1992 by Momcilo

5 Krajisnik, president of the National Assembly. Are you aware of that

6 document?

7 A. No, I'm not aware of that.

8 Q. And are you aware -- were you aware that that document was adopted

9 by the Republic of Srpska assembly?

10 A. Could you please repeat that? I didn't quite understand the bit

11 that had to do with state borders.

12 MR. LAZAREVIC: I can be of some assistance. If the document can

13 be shown.

14 MR. WEINER: P5.

15 JUDGE MUMBA: It's Prosecution Exhibit P5?

16 MR. WEINER: Yes.

17 Q. I invite your attention to Article 1, please.

18 A. Yes.

19 Q. Are you aware of that document and familiar with it?

20 A. Not in detail, but please put your question.

21 Q. All my question was, since we're talking about ethnic cleansing:

22 Were you aware of this decision which was adopted by the Republika Srpska

23 Assembly? And it's number 1 was to establish state borders separating the

24 Serbian people from the other two ethnic communities, and it was signed by

25 President -- or stamped by President of the National Assembly, Momcilo

1 Krajisnik. Were you aware of that?

2 A. Where does it talk about state borders?

3 Q. Article 1 says: "The strategic objectives or priorities of the

4 Serbian people in Bosnia and Herzegovina are to: 1. Establish state

5 borders separating the Serbian people from the other two ethnic

6 communities."

7 A. All right. All right.

8 Q. And it comes from a session held on 12 May 1992 of the assembly of

9 Serbian people.

10 A. Yes.

11 Q. You're aware of that. Last question --

12 A. Well, I just learned of that now.

13 Q. And you were never aware of this document prior to -- or that vote

14 prior to today?

15 JUDGE MUMBA: Yes, Mr. Lukic.

16 MR. LUKIC: [Interpretation] In view of the fact that my colleague

17 from the Prosecution mentioned the date of this document, and we have

18 dealt with this before with this Trial Chamber, since this witness at the

19 time was not a member of the assembly, could we please hear when was this

20 decision announced in the Official Gazette, not when it was adopted, but

21 when was it announced or published. Because I think that the publishing

22 date was one year later.

23 JUDGE MUMBA: Mr. Weiner, do you have that information?

24 MR. WEINER: No, I don't. I have the English translation. It's

25 not there. I'm just trying to determine if he was aware of it, being an

1 expert on political affairs. Because it's not in his report.

2 JUDGE MUMBA: So you don't know when it was established? So you

3 just want to find out whether the witness was aware of this decision. All

4 right.

5 MR. WEINER: Yes, this decision. He has the gazette right there.

6 He can probably tell us from the front page the date of its publication.

7 THE WITNESS: [Interpretation] 26th of November, 1993.

8 MR. WEINER:

9 Q. And were you aware of that, or is today the first day that you've

10 become aware of that decision?

11 A. This is the first time that I see it in the original form.

12 Q. Had you been made aware of the objectives, even though you haven't

13 seen it in the original form? Were you aware of those objectives and

14 those statements, those six statements or objectives listed there?

15 A. No, not in this specific concrete form, but regarding this, I can

16 only tell you that these objectives -- may I continue?

17 Q. Sure.

18 A. All I can say is that these objectives changed based on the

19 situation. We had a plebiscite where Serbs opted for remaining in

20 Yugoslavia. Then in Lisbon, Bosnia-Herzegovina was accepted as a

21 decentralised state, which is a completely different concept and then we

22 have this that you're bringing up. After this the Serb signed the Dayton

23 Accords and it's a completely different matter with respect to the

24 previous one.

25 JUDGE MUMBA: Mr. Weiner, please wind up.

1 MR. WEINER:

2 Q. One last question, sir. You indicated that you read Professor

3 Donia or Dr. Donia's report. He mentions the variant A and B document.

4 Were you familiar with that?

5 A. I have heard of it, but I don't know any specific details

6 regarding it. I've heard of it recently.

7 Q. Thank you very much.

8 MR. WEINER: No further questions.

9 JUDGE MUMBA: Re-examination.

10 Re-examined by Mr. Pantelic:

11 Q. [Interpretation] Very briefly, Professor, we need to conclude

12 before the break. My first question during re-direct stems from the

13 question put to you by the Prosecutor. While preparing a scientific

14 report, an academic report, so when preparing an expert opinion, an expert

15 report, could you please explain the method that you use when preparing

16 such reports, expert reports. What is your method when writing scholarly

17 papers?

18 A. Could you please be more specific?

19 Q. Well, when you're writing scholarly works, how do you define your

20 sources? How do you formulate them? How do you deduce conclusions? Can

21 you please describe your methodology for us.

22 A. If this has to do with the question put to me by the Prosecutor,

23 then I have to say that no report, especially such a brief one, can take

24 into account all facts and all sources. One has to make a selection, and

25 in compressing this, I had to -- I counted on the discussion that we will

1 have here before the Trial Chamber, where I will be given an opportunity

2 to give explanations and so on. However, Mr. Prosecutor, by limiting my

3 answers, did not allow me to proceed with that, and I think that the Trial

4 Chamber thus was denied further explanations which would be quite useful

5 in creating the comprehensive picture that would complement what Dr. Donia

6 stated in his report.

7 MR. PANTELIC: Yes, Your Honour.

8 JUDGE WILLIAMS: Sorry, Mr. Pantelic. Just for the sake of

9 clarity, is my understanding of your question correct when you're talking

10 about researching a scholarly work, were you referring to the issue of how

11 you research UN documents, whether you cite primary sources, whether you

12 rely on newspaper articles in lieu of such, or was your question directed

13 to something broader than that? I'm just a bit uncertain.

14 MR. PANTELIC: Yes, Your Honour. My -- that is the gist of my

15 question. The process how one will prepare his report in process of

16 citing and stuff like that, yes. But of course including this part of

17 answer, which is quite logical. Otherwise the report can be thousands of

18 pages maybe. Thank you, Your Honour, for your intervention.

19 Q. [Interpretation] So you spoke about a certain domination of the

20 Croat and Muslim political parties which dominated the political life, the

21 parliament, and the presidency. I would like to ask you this now, whether

22 this domination of the Croat/Muslim coalition transferred to other regions

23 in Bosnia and Herzegovina in the time period relevant and described in

24 your report.

25 A. Yes. Those were central organs of government of Bosnia and

1 Herzegovina, and that was the centre of political life in Bosnia. It is

2 quite natural for every country, including Bosnia and Herzegovina, to have

3 events that transpire in capital to other areas, and therefore these

4 events had their reflection elsewhere in Bosnia. Political conflicts that

5 broke out in the parliament, outvoting and so on, yes, they had direct

6 repercussions in other regions. Political conflicts broke out in

7 Sarajevo, whereas violent conflicts emerged in the provinces.

8 Q. So based on this coalition that was established, you say that

9 these relations transferred or spread to other areas of Bosnia and

10 Herzegovina. Is that what you're trying to say?

11 A. Yes. If you have in mind the symmetry that I spoke about with

12 ratio 2:1, then it went, it flowed from upper levels to lower levels along

13 the political party structure. Even before the elections, the conflict

14 became apparent, and especially once the third party entered the conflict,

15 then this basically spread out down the municipal structure. So one

16 aspect of it was the government, where there was a confrontation, and then

17 it also had its effects in the political parties.

18 Q. You participated in the political life in Bosnia-Herzegovina after

19 the multiparty elections in 1990. In view of the fact that you were born

20 in Bosnia, did you in that capacity, as a politician, as a scholar, as a

21 publicist have you ever in that capacity visited Samac afterwards and do

22 you have information or knowledge about the events, local events, in

23 Samac? Were you interested in that?

24 A. I have to say that my knowledge about Samac is quite limited, and

25 as I've already stated, I mostly limited myself to the general picture of

1 the situation in Bosnia and Herzegovina. And this thesis of mine is that

2 this global picture had its reflections in provinces. So I did travel to

3 Bosanski Samac. I visited that place. The party that I was a member of

4 had its branch offices in Bosanski Samac, and I travelled to that town,

5 especially in a post-war period. On my way to Banja Luka I would stop in

6 Bosanski Samac.

7 Q. Another question of mine that stemmed from the question put by the

8 Prosecutor. You mentioned a massacre of Serbs in Sijekovac, which is

9 quite near Bosanski Samac. What is your opinion? Did this tragic event

10 have any effects in Posavina and in Samac, in view of a very tense

11 political situation? What is your opinion of this?

12 A. The event in Sijekovac, as I've already stated, was one of the

13 first large incidents that caused great number of victims, and once the

14 war broke out, there were a lot of victims everywhere. But at that time,

15 there was still peace. And yes, that event had very serious effects in

16 the whole of Bosnia.

17 Q. My next question is that you were -- since you were a member of

18 the party of reformist forces, was the SDS, in a political sense, your

19 opponent?

20 A. Yes. Not only among the members of the reformist party, but also

21 among those members of the SDP. We kept a certain distance from all three

22 national parties. And yes, in the political sense, yes, they were our

23 opponents.

24 Q. We have to correct the transcript. If I am not mistaken, you said

25 that Croats in Bosnia created their regions. You mentioned western

1 Herzegovina and also Posavina. Is that right?

2 A. Yes. And this came about immediately after the HDZ expressed its

3 support of creating independent Bosnia, because the HDZ opted for

4 supporting the establishment of independent Bosnia and Herzegovina. Those

5 Croats who in the elections voted mostly for the HDZ followed this in the

6 referendum, but despite that, shortly after the referendum, the creation

7 of the so-called HAOs was begun, meaning Croatian autonomous regions.

8 These were areas that were predominantly populated by Croats in

9 Bosnia-Herzegovina.

10 Later on, in confrontations after Dayton, when the third entity

11 was discussed, members of the HDZ explained this ambivalent position in

12 the following way: They said that in the referendum, they supported the

13 wholesomeness of Bosnia-Herzegovina as a state, but at the time they did

14 not touch upon its internal structure and that they believed that question

15 should be dealt with later on, and this is how they tried to get through

16 the door the discussion about the creation of the third entity that would

17 be representing Croats in Bosnia-Herzegovina. When I say "Croats," I'm

18 referring to regions that are predominantly populated by Croats.

19 Q. In that context, can you tell us what was controlled by the Muslim

20 leadership? You've just touched upon this sphere of interests of the

21 Croat and the Serb side.

22 A. Well, in a way, this was a Bosnia-Herzegovina consisting of three

23 entities. There were three separate national units, and what created the

24 confusion was that the Serbs and Croats, with their national leadership,

25 defined their territories and their administration clearly, as Croat or

1 Serb territories in Bosnia, whereas the Muslim side, during that entire

2 period, declared what was the Muslim administration as the Bosnian

3 administration.

4 JUDGE MUMBA: Yes, Mr. Weiner.

5 MR. WEINER: Your Honour, --

6 JUDGE MUMBA: I didn't want to interrupt the witness.

7 MR. PANTELIC: An objection or I don't know.

8 MR. WEINER: I gave them the benefit when they talked about

9 Croat-controlled areas, which was outside of cross-examination. Now

10 they're into Muslim-controlled areas, which is well outside

11 cross-examination. This isn't re-direct. This is trying to get in what

12 they couldn't get in on direct examination.

13 MR. PANTELIC: This is just to cover the illustration and last

14 question with regard to variant A and B and I'm finished, Your Honour.

15 JUDGE MUMBA: Yes, Mr. Pantelic. Go ahead.

16 MR. PANTELIC: [Interpretation]

17 Q. Professor, when the Prosecutor asked you about variant A and B,

18 you told us that you had just learned about that recently. From what

19 source? Books, the media? How did you learn of this variant A and B?

20 A. I think that I came upon that in Dr. Donia's report. I'm not

21 quite sure.

22 MR. PANTELIC: Thank you, Your Honours. I don't have further

23 questions.

24 JUDGE MUMBA: Thank you very much, Professor Kecmanovic, for

25 giving evidence to the Trial Chamber. You are now finished. You can

1 leave the courtroom and you can also go.

2 Yes. It's actually just after 1300 hours and the Trial Chamber

3 will rise and we'll sit this afternoon from 1430 hours.

4 --- Luncheon recess taken at 1.03 p.m.

5 --- On resuming at 2.32 p.m.

6 [The witness entered court]

7 JUDGE MUMBA: Yes. Can the witness make the solemn declaration.

8 WITNESS: PAVLE NIKOLIC

9 [Witness answered through interpreter]

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

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

12 JUDGE MUMBA: Yes. Please be seated.

13 Who will examine the witness? Yes, Mr. Pantelic.

14 MR. PANTELIC: Yes, Your Honour. Good afternoon.

15 Examined by Mr. Pantelic:

16 Q. [Interpretation] Professor, good afternoon.

17 A. Good afternoon.

18 Q. Can you hear the interpretation all right?

19 A. Yes. Yes everything is fine.

20 Q. We should speak at a slower pace in order to give the interpreters

21 an opportunity to translate this, and I would ask you to make a pause --

22 JUDGE MUMBA: One of our microphones is not working for Judge

23 Williams. Can somebody from the machine room help us? It's not picking

24 up channel 4. Judge Williams's microphone. Maybe we can test. Can the

25 interpreters say something?

1 THE INTERPRETER: Can you hear the interpreters now? Can you hear

2 channel 4?

3 JUDGE WILLIAMS: Yes. Thank you very much.

4 JUDGE MUMBA: We can proceed, Mr. Pantelic.

5 MR. PANTELIC: Yes, Your Honour. Thank you.

6 Q. [Interpretation] Therefore, Professor, due to technical

7 considerations that I told you about, we should make a pause between

8 question and answer so that we are assured that both the questions and

9 answers will be recorded in the transcript. We know that you arrived just

10 yesterday, and in view of your advanced age, please let us know if you

11 should feel any discomfort or fatigue, so that we know about it and then

12 the Trial Chamber will be able to do something regarding that.

13 Professor, in your expert opinion, you dealt with constitutional

14 aspects in quite a great detail. In view of the instructions of the Trial

15 Chamber, we will not go into further explanations of some portions of your

16 expert opinion. Therefore, I will ask you just a few questions regarding

17 your professional and personal biography.

18 First of all, as we analysed your resume, your curriculum vitae,

19 you told me that the book that you published in Italy - and this can be

20 found at page 2 of your curriculum vitae -- it is recorded in your c.v.

21 that this book was published when in fact --

22 A. Yes. In fact it was published in 2002.

23 Q. Yes. Professor, please tell us: When were you born?

24 A. I was born in Belgrade on the 23rd of April, 1928.

25 Q. During your schooling and during your life in the post-war period,

1 you were known as a person who was -- who had an anti-regime or an

2 anti-communist attitude; is that right?

3 A. Yes, that is correct, especially after the beginning of

4 dictatorship of Slobodan Milosevic. During the previous time, I had a

5 critical view of the Tito's communist regime; however, no significant

6 consequences ensued as a result of that viewpoint of mine. However, from

7 the beginning, I did have some repercussions in that I was not immediately

8 elected to my post at the faculty, the post of assistant professor, due to

9 my political views. However, later on I was elected to that post. In the

10 dictatorship regime of Slobodan Milosevic, without any false modesty, I

11 can say that as far as the constitutional viewpoint is concerned, I was

12 one of the greatest critics of his constitution of Serbia from 1993 and

13 the federal constitution of Yugoslavia from 1992. I was also a critic of

14 a number of his acts that I qualified as unconstitutional, criminal, and

15 so on.

16 Q. During your schooling and specialist training, you also spent some

17 time abroad, didn't you?

18 A. Yes, that's right. I received a scholarship from the French

19 government as a result of which I spent the entire school year in France,

20 cooperating with the then most important professor of constitutional law,

21 Georges Videl [phoen] from the Sorbonne university. I would like to add

22 that prior to that, as a young assistant professor, I applied for the Ford

23 scholarship in the United States. However, I did not receive an approval

24 from the Yugoslav committee in charge of that, so the American committee

25 never had an opportunity to review my application. I spent some time in

1 France, not only on the occasion that I described to you, but later on,

2 during some additional training that I received, and I also lectured at

3 the Sorbonne university.

4 Q. The reason you gave for your failure to receive the American Ford

5 scholarship is connected with a certain communist political structures

6 which did not support you in your bid to go to America for specialisation;

7 is that correct?

8 A. It was mostly people favoured by the regime who were approved by

9 the authorities who received such scholarships.

10 Q. Regardless of this, you were an honourary professor of Columbia

11 University, a French university in Rouen, and also at the Sorbonne. You

12 lectured in Fribourg in Switzerland; is that correct?

13 A. This is correct, but I have to clarify. The doctor honoris causa

14 was awarded to me at the French university of Rouen, in Bogota in

15 Columbia. They do not give honourary doctorates. So I was elected an

16 honourary professor. At the Sorbonne, however, the Pantheon Sorbonne in

17 Paris one, I was also a professor. At Fribourg I was invited to give

18 lectures as a professor, and I have also given lectures at over 40

19 universities worldwide. So in all, I held 50 or 60 courses of lectures,

20 and so on.

21 Q. Another question and then we will finish with this topic. You are

22 also one of the founders of the international association for

23 constitutional law; is that correct? Who were your colleagues who were

24 cofounders of this association?

25 A. The international association for constitutional law was founded

1 in 1981 on the initiative of a professor from Argentina, and also

2 professors from France, and some other countries, and it was decided that

3 the establishing of this international association, which today

4 encompasses over 40 national organisations, should take place in Belgrade.

5 On that occasion, a founding assembly was convened, at which there were

6 several professors from Belgrade, including me, as well as professors from

7 France, Greece, Switzerland, and a number of other countries. Today the

8 executive board consists of representatives of many countries, and I can

9 say with pleasure that the future president of this international

10 organisation will be our esteemed colleague from Australia, Cheryl

11 Saunders [phoen] from Melbourne University, and today a professor from

12 Finland, a dear colleague of ours from Turku University, professor Ante

13 Jurankis [phoen] is the president of this association. There are some

14 others who have been very active ever since the beginning, ever since the

15 founding of this association.

16 Q. You were the Secretary-General of this association from 1993 and

17 you are also one of the vice-presidents of this association; is that

18 correct?

19 A. Yes.

20 Q. My last question: You are also a member of the --

21 MR. LAZAREVIC: I apologise. There is some inconsistency in the

22 transcript. The question was -- posed to the witness, and I heard it from

23 our colleague Pantelic: You were the Secretary-General of this

24 association until 1993, not from 1993. It makes a difference.

25 JUDGE MUMBA: Very well.

1 MR. PANTELIC: I will clarify that, if you will allow me, Your

2 Honour.

3 Q. [Interpretation] So this is a matter of the transcript --

4 A. From 1981, when the association was established, it was right away

5 that I was elected Secretary-General, and I remained at that post until

6 1993, when I resigned because Yugoslavia was then -- the sanctions had

7 been imposed on Yugoslavia, so I was unable to contact the other national

8 associations, especially as regarded financial matters. The Executive

9 Council of the international organisation accepted my resignation, and

10 right away they elected me vice-president, and I'm still in that post.

11 Q. Thank you. One last question in connection with your membership

12 of the crown council, could you please explain what kind of council this

13 is and what your function in it is?

14 A. Thank you for this question, because it gives me an opportunity,

15 not wanting to take up the time of the Trial Chamber and the others

16 present here. Serbia, throughout its historical development, was a

17 monarchy. It was only under the communist regime of Tito and the

18 communist dictatorship of Slobodan Milosevic that it became a republic.

19 The consequences of this fateful revolutionary transformation are still

20 felt today. The son of the last king, King Peter the 2nd, who died abroad

21 as a refugee, as were the other members of the dynasty, returned to the

22 country after the radical transformation that took place on the 5th of

23 October, 2002. But even some ten years before that, he was active in

24 promoting the welfare of the Serbian people. And in connection with this,

25 he established a crown council. This is an advisory body advising the

1 crown, the heir to the thrown, and the aim of this council is to

2 communicate with him and to give him their opinions, their proposals, and

3 initiatives. That is the reason why the crown council was set up. And I

4 was one of the first five or six members of this council, and I was

5 elected to it in 1992.

6 Q. Thank you, Professor. We shall now discuss your work. Only a few

7 questions, in view of the time we have at our disposal.

8 Tell me, please: What is your professional standpoint in relation

9 to the fact that in the parliament of Bosnia and Herzegovina, which

10 consists of representatives of the three constituent peoples, in October

11 1991, the Serbian people were outvoted by the Croatian and Muslim people,

12 and what were the consequences of this in the constitutional sense, since

13 you discussed this in your paper?

14 A. Yes. I wrote a few pages about this, but with Their Honours'

15 leave and the leave of the Prosecutors, I would only like to emphasise

16 some things. Bosnia and Herzegovina was established as a federal unit in

17 the period just after the end of World War II, but in essence, this was an

18 artificial construct. There were three constituent nations on its

19 territory. The Croatian, Serbian, and Muslim people. In the beginning,

20 the Muslims did not have the status of a constituent people, but Tito's

21 communist regime gave them this status in the 1970s, so that still today

22 they are a constituent nation, and this is a fait accompli.

23 The other federal units in federal socialist Yugoslavia were

24 established on the national principle. The Croats had Croatia, the Serbs

25 had Serbia, the Montenegrins had Montenegro, and so on and so forth. The

1 same goes for the Slovenes and the Macedonians. Therefore, in the

2 case of Bosnia and Herzegovina, it is of crucial importance, a problem of

3 crucial importance is that of the equality of these three peoples and

4 their acting on the principle of consensus. However, in the assembly of

5 Bosnia and Herzegovina, certain tendencies emerged, not only there, but

6 also in the parties that were established on the -- on ethnic principles,

7 and a coalition was established between the HDZ and the SDA which tended

8 toward independence. This was in the early 1990s. They tended toward the

9 independence of Bosnia and Herzegovina, and this coalition outvoted on

10 several occasions the third constituent nation, that is, the Serbs, and

11 this is ultimately the cause that led to the Serb MPs leaving the

12 assembly.

13 There were also other political circumstances and measures which I

14 feel -- I believe have been discussed here which contributed to this, and

15 this is why the Serbian deputies left and established their own assembly,

16 but in their documents they expressed the intention of remaining in the

17 joint assembly of Bosnia and Herzegovina, but only to the extent that this

18 did not go against the interests of the Serbian people. So they were

19 going to stay in the assembly, but only provided it did not go against the

20 interests of the Serbian people.

21 This is all I can say now, but I would appreciate being given the

22 opportunity to explain some matters in greater detail.

23 Q. The next area --

24 JUDGE MUMBA: Yes. I just want to make it clear to the witness

25 that his expert opinion report was filed with the Trial Chamber, and we

1 all have copies of it and we have read it. So that's why we are not

2 interested in going -- into discussing what is already on paper.

3 And Mr. Pantelic, please do wind up, only essential areas.

4 MR. PANTELIC: Yes, Your Honour. I will take care about that.

5 Q. [Interpretation] A second area which is of importance to the

6 Defence is the fact that when, after the plebiscite, the Serbian Republic

7 of Bosnia and Herzegovina was established and adopted its constitution,

8 bearing in mind what you have just said, can it be said that this was an

9 illegal, illegitimate body, or was it a sort of shadow government? I'm

10 now asking about the legality of the establishment of the assembly of

11 Republika Srpska and the adoption of its constitution. If you could only

12 go into this briefly and then I will have just one further question about

13 the local level.

14 A. Your question is doubtless one of the crucial questions in

15 relation to the subject-matter, which requires more detailed answers. I

16 have written quite a lot about this, but bearing in mind what Her Honour

17 has said, I will say only the following: I am deeply convinced that the

18 legislation passed by the Serbian deputies when they set up their own

19 assembly and then adopted and promulgated the constitution, were

20 absolutely legal and legitimate, legal and legitimate. I can only adduce

21 some facts to support this.

22 At that time, the order, not only of Yugoslavia as a federal state

23 but also of Bosnia and Herzegovina as a federal unit, had been badly

24 disrupted. The rights of the Serbian people were imperiled and they were

25 in danger of becoming an ethnic minority in Bosnia and Herzegovina. That

1 is why the passing of the appropriate legislation and the adoption of the

2 constitution on the basis of the right to self-determination, which in my

3 view is the most important fact in this entire discussion, the assembly of

4 the Serbian people adopted this constitution. I believe I will have an

5 opportunity to say a little more about the right to self-determination,

6 but for the present, I would only like to mention this fact.

7 Q. In connection with the local assembly, the municipal assembly, can

8 you please explain, because at that time there was no such institution as

9 mayor in the area. All that existed was the president of the Municipal

10 Assembly. What part did the president of the Municipal Assembly play?

11 A. This is something that was left over from the previous regime of

12 Yugoslavia as a whole and of Bosnia and Herzegovina as a federal unit. At

13 the local level, to be specific, at the municipal level, in accordance

14 with the principle that was formally in force at the time - and if given

15 the opportunity, I will explain this in greater detail - there was a

16 principle of unity of government, and the main exponent of the government

17 was the assembly, which had an executive organ and administrative organs.

18 The president of the assembly was only the president of the assembly. He

19 was not some sort of mayor or anything like that. The president of the

20 assembly in that system - and when the constitution of Republika Srpska

21 was adopted in 1991, this remained the same - he was only primus inter

22 pares, the first among equals, and he had no special authority or powers.

23 His function was mainly to convene and chair sessions of the assembly,

24 establish an agenda, keep order at sessions, coordinate the work of

25 various working bodies of the assembly, and so on and so forth. He did

1 not have any powers of government. And this is what made him different

2 from the institution of mayor. In our countries, because these are

3 special offices in those countries, as distinct from speakers of

4 parliaments or assemblies or other territorial units.

5 Q. And my last question in connection with this topic. Briefly, the

6 executive board, that is, the government, both at local and higher levels,

7 and the relation between the local executive board and the structures in

8 the ministries, how did this function, both in peacetime and in wartime?

9 Very briefly. And where was the power actually?

10 A. As I said, this was a continuation of the system of former

11 socialist Yugoslavia in accordance with the principle of unity of

12 government. The executive board was an executive organ. This was called

13 "comite," committee, from the time of the French revolution onwards. So

14 they worked for the assembly. And in normal times, this organ supervised

15 the administrative organs, which were set up separately. So this was an

16 operative body which had certain powers of government within the limits of

17 the statute, the legislation, and the constitution. However, in the

18 period when, in 1992, the constitution of Republika Srpska was adopted,

19 the principle of unity of government was abandoned because the

20 constitution expressly provided for a division of power. So, however, in

21 practice, no changes occurred. The executive organ remained, such as it

22 was. It could be linked to administrative organs in terms of personnel,

23 which meant that senior officials were in these organs, but in times of

24 imminent threat of war and wartime, the situation changed radically,

25 because in such cases the elements of decentralisation which existed under

1 the pressure of the circumstances arising during times of imminent threat

2 of war, they -- the various ministries acquired more direct powers in

3 relation to local organs of administration and also partially the

4 executive board. So that the assembly was suppressed to a large extent,

5 which also meant that its president did not have the same powers. The

6 government then acquired more direct powers, especially the minister of

7 the interior, but also other ministers, such as the minister for

8 agriculture and so on and so forth. Because everything had to be directed

9 toward the achievement of the goals imposed by the situation of war or

10 imminent threat of war. So that the element of centralism under these

11 circumstances was much stronger, and therefore there was a departure from

12 the system as it was envisaged.

13 I wish to say that this is something that was not unique to

14 Republika Srpska. This is something that happens in many countries. It

15 is well known that constitutions, especially at the level of the central

16 government, when there is a state of war or an imminent threat of war,

17 there are much bigger powers given to the leaders of the country, the

18 president, and the government.

19 JUDGE MUMBA: Mr. Pantelic -- yes.

20 MR. PANTELIC: [Interpretation] Thank you, Professor [In English]

21 That was the end of my examination-in-chief I would say, so the

22 witness is yours, my learned friend.

23 JUDGE MUMBA: Can we have the numbers for the report and the

24 curriculum vitae.

25 Mr. Lukic?

1 MR. LUKIC: [Interpretation] Your Honours, I had just one

2 question -- in fact, a suggestion, if it is necessary, in view of the

3 Trial Chamber. It has not been discussed in this expert opinion. Last

4 year the Trial Chamber wanted to find out more about the local community,

5 and this was not covered by this expert opinion. However, if the Trial

6 Chamber needs to learn what the definition of the local community is and

7 what is its relationship with other organs at other levels, then perhaps

8 this would be a good opportunity to ask the professor to explain this.

9 However, should the Trial Chamber not feel this is necessary, then,

10 naturally, this will not be done.

11 JUDGE MUMBA: All right. Can we have the numbers first, before we

12 forget, for the report and the c.v. The report includes the annex.

13 THE REGISTRAR: Yes, Your Honours. It will be D54/1 and D54A/1.

14 Thank you.

15 [Trial Chamber confers]

16 JUDGE MUMBA: Yes, Mr. Lukic. The Trial Chamber is of the view

17 that this witness is dealing with the report which has been filed, as per

18 rules, and we are going to proceed like that. If at any time the Trial

19 Chamber feels that there is a need for such evidence, the Trial Chamber

20 will call for such evidence, as provided for under the Rules.

21 Cross-examination.

22 Cross-examined by Mr. Re:

23 Q. Professor Nikolic, my name is David Re from the Prosecution. I'm

24 going to ask you some questions. We thank you for coming here this

25 afternoon.

1 The lengthy report which you've prepared and has been tendered

2 into evidence, did you prepare this yourself or did you have research

3 assistants help you with it?

4 A. I prepared it personally, because even before I was asked to come

5 and appear in this case, I dealt with the subject-matter. As was

6 mentioned in the beginning, I published a book in Italian. The Italians

7 wanted me to write a book --

8 Q. I'm not asking you that. I was only asking you whether you

9 prepared it yourself. The answer is yes, I take it.

10 A. Yes.

11 Q. Thank you. In preparing an expert -- I withdraw that. Do you --

12 of course, as a constitutional expert of many years' experience, recognise

13 and respect the opinions of constitutional courts of different countries,

14 don't you?

15 A. Yes.

16 Q. Of course, it's one of the tools of your trade, isn't it,

17 analysing the judgements of constitutional courts?

18 A. Yes, but I have to say that in certain situations - and I have to

19 say this with great regret - the fact that this took place in Yugoslavia,

20 namely, that the constitutional courts passed decisions that satisfied or

21 were in accordance with the position taken by the regime, which naturally

22 jeopardises the dignity and reputation of the constitutional judiciary,

23 which, as a famous French professor Louis Favere [phoen] said, represents

24 one of the greatest achievements of the civilisation after the Second

25 World War.

1 Q. Nonetheless, even if you don't agree with the decision of a

2 constitutional court of one of the countries of the former Yugoslavia, as

3 a constitutional lawyer, you would recognise its existence, wouldn't you?

4 A. It is an integral part of the legal system and is carried out in

5 accordance with the way that has been decided in that country.

6 Q. Can you just please listen to the question I'm asking you, and I'm

7 talking about you as a constitutional expert. I ask you whether you, as a

8 constitutional expert, would recognise the existence of the decision.

9 A. It is recognised because it is upheld by state organs that must

10 implement it. However, every citizen is allowed to have its own opinion.

11 During the dictatorship of Milosevic, I criticised decisions passed by the

12 constitutional court on a number of occasions because they had been passed

13 in order to suit the spirit of his regime.

14 Q. Again, I'm asking you only about the existence of decisions and

15 you as a constitutional expert. You recognise the fact that there are

16 constitutional decisions of courts, don't you? It's a yes or no answer.

17 A. Yes.

18 Q. And of course, as a constitutional lawyer, in preparing a report

19 for a body such as this, and in recognising the decisions -- the fact that

20 decisions exist, you would refer to them, wouldn't you?

21 A. I didn't review these decisions. I simply familiarised myself

22 with original documents that had a specific effect in reality.

23 Q. So are you saying you've come here with a report on the

24 constitutions of the Republic -- the Socialist Republic of Bosnia and

25 Herzegovina, the Republika Srpska, and the Socialist Republic of the

1 former Yugoslavia -- the Federal Republic of Yugoslavia, looked at those

2 documents, the constitutional documents, but haven't looked at the

3 decisions of the constitutional courts in relation to those documents? Is

4 that what you're saying?

5 MR. PANTELIC: Objection, Your Honour. My learned friend should

6 be more specified. I mean, we are wasting so much time with this general

7 nature of the question. Why he simply put the question to professor: Are

8 you familiar or are you aware of certain decision of the constitutional

9 court of -- because we don't know yet which court, Bosnia, Austria, Italy,

10 or whatever. So let's move on in this particular thing. That's just a

11 suggestion with the flavour of objection. Thank you.

12 JUDGE MUMBA: Yes. I think the Prosecution can be more specific

13 so that the witness is -- the witness's mind is directed to particular

14 decisions which maybe the Prosecution would like to discuss with the

15 witness.

16 MR. RE: Thank you, Your Honour.

17 Q. You referred to the constitutions of the three governments I

18 referred to a moment ago without referring to any constitutional court

19 decisions, don't you?

20 A. I did not -- I have not mentioned them, no.

21 Q. You haven't mentioned a ruling of the Republic of Bosnia and

22 Herzegovina -- sorry, the Socialist Republic of Bosnia and Herzegovina

23 constitutional court of the 1st of November, 1991, annulling the

24 agreements to join the association of the Bosanska Krajina municipalities,

25 have you?

1 A. I haven't mentioned it. And if you wish, I can tell you why.

2 Q. You haven't mentioned the fact that the Bosnian government took

3 the question to the constitutional court, which was the highest court in

4 the land, have you?

5 A. Yes.

6 Q. You haven't mentioned in your report that the Bosnian government

7 took that question to the constitutional court of Bosnia, have you?

8 A. I have not.

9 Q. Neither have you mentioned that, on the 18th of September, 1992,

10 the Republic of Bosnia-Herzegovina constitutional court annulled the

11 decision on the establishment of the Croatian Community of Herceg-Bosna.

12 You haven't mentioned that in your report either, have you?

13 A. No.

14 Q. You also haven't mentioned in your report that on the 8th of

15 October, 1992, again the same court, the highest constitutional court in

16 Bosnia, then an internationally recognised sovereign nation, annulled the

17 declaration, the proclamation of the Republic of the Serbian people in

18 Bosnia and Herzegovina, have you?

19 A. I have not, and I would like to explain why. Putting some

20 questions such questions at a first glance seems to be very appropriate,

21 in view of the high reputation that the constitutional judiciary has in

22 the world. However, in this instance you are forgetting that this

23 constitutional court was an integral part of that very system of

24 governance in which political forces which supported unitarisation of

25 Bosnia-Herzegovina existed. There was a tendency for it to become a

1 sovereign, independent country, and this all came as a result of the

2 Croat-Muslim coalition's activities aimed to this end. These activities

3 fully violated the interests of the Serb nation, because the Serb nation,

4 together with Croats, was a constituent nation. They created together

5 with the Croats their own joint state in 1918, whereas in 1945 they agreed

6 to become peoples in the Bosnia-Herzegovina, which at the time was a

7 federal unit. And living in a federal unit means that they lived in the

8 same area, within the wider sense, with other members of the Serb peoples.

9 The same thing applied to Croats, who agreed to live under the same roof

10 with other Croats living elsewhere in Yugoslavia. The tendency to

11 proclaim Bosnia and Herzegovina a sovereign state would mean the

12 separation of Serbs and Croats from their mother states, namely, Serbia

13 and Croatia, which in turn represents a direct attack on the integrity of

14 Serb and Croat people. The government and government organs are all part

15 of the same system.

16 I would like now to remind you about the chronology of everything

17 that was done to further this tendency to create a unitarian state.

18 Q. Please stop there. That wasn't what I was asking you, I was

19 asking you about 1992, not 1918 and not 1945. Do you understand that?

20 Yes or no. Do you understand what I'm asking you?

21 A. Yes, I understand, but I hope that you also understand that

22 certain things cannot be explained if you don't understand the essence and

23 previous state. Everything has its cause, just as everything has its

24 consequence. One cannot analyse the cause without analysing the

25 consequence.

1 JUDGE MUMBA: Yes. That is understood by everybody, Professor,

2 but do stick to the questions that counsel is asking. So just answer his

3 questions. That way we shall get on much faster.

4 MR. RE:

5 Q. All I'm suggesting to you, Professor, is that in your report you

6 have quoted only from the constitutions themselves and you have completely

7 ignored constitutional court decisions on those constitutions. That's all

8 I'm suggesting to you. Do you agree with that?

9 A. Yes, I agree.

10 Q. And you have, in effect, ignored completely the decision of the

11 highest court in Bosnia, in a sovereign country, which annulled the

12 declaration of the Republika Srpska and is completely opposed to your

13 point of view. Do you agree with that?

14 A. [No interpretation]

15 MR. RE: There's no interpretation, Your Honour.

16 JUDGE MUMBA: We are not -- excuse me, Witness. We are not

17 getting any interpretation. Can the question perhaps be repeated so that

18 the witness can answer.

19 THE INTERPRETER: Can you hear the interpretation from this

20 headset now?

21 JUDGE MUMBA: Yes. We can all hear the interpretation.

22 MR. RE:

23 Q. I'll repeat the question, Professor, and I'll ask you to

24 concentrate on the question, answer that question and try to keep it as

25 brief as possible. The question I asked you was and you have in effect

1 completely ignored the highest court -- a decision of the highest court in

2 Bosnia, a sovereign country, which annulled the declaration of the

3 Republika Srpska and a decision which is completely opposed to your point

4 of view. Do you agree with the fact that you ignored it?

5 A. Yes. But at the same time, I have to remind you of the following,

6 esteemed Mr. Prosecutor, that you keep forgetting that this constitutional

7 court, as I said when there was no interpretation, that this

8 constitutional court of Bosnia-Herzegovina constitutes an integral part of

9 the authorities that were striving towards creating a unitary state, an

10 independent, sovereign state. After all, you yourself mentioned in your

11 original question that this was a sovereign state of Bosnia-Herzegovina.

12 The Serb people could not accept that because in this way it would

13 separate itself from the other members of its own people. It is not

14 correct that I only referred to constitutional texts, because in that case

15 my report would have probably been 70 per cent shorter. I mentioned all

16 other relevant documents that you do not refer to here, and I would kindly

17 ask that these other relevant legal documents be dwelt upon as well,

18 because they would also shed more light on the overall situation in the

19 best possible way, and in this way we would get to the truth. And the

20 truth, as Liveus [phoen] said in Roman antiquity, the truth can be

21 concealed, but it cannot be buried altogether. That is the motto of this

22 Honourable Court, I'm sure, and I'm sure the Prosecutors are guided by

23 this lofty motto, but allow me to say that I am guided by it myself.

24 Q. So the answer to the last question is yes, is it?

25 A. Yes, along with the addition I made, and please take into account

1 what I added to this.

2 Q. So in effect, your report was misleading by leaving out viewpoints

3 which are opposed to yours, including those of the constitutional court of

4 Bosnia.

5 A. I don't think that it is misleading, because original documents

6 clearly show the different tendencies of the Croats and Muslims as a

7 coalition and the interests of the Serb people, who proclaimed their

8 sovereignty. I think that this presupposes or requires that something be

9 said about the right to self-determination, which you regrettably do not

10 raise. And all of this cannot be understood apart from that. And I think

11 that everybody knows that the right to self-determination is guaranteed in

12 a large number of international legal documents, starting with the UN

13 charter from 1945 --

14 JUDGE MUMBA: Professor, we are aware that you have a great wealth

15 of knowledge, and we respect that, but this is a criminal trial, and that

16 is why we have lawyers on both sides simply asking questions. And I did

17 explain that your report was filed and it has been received by the Trial

18 Chamber. So please just answer the questions.

19 The Prosecution can proceed.

20 MR. RE:

21 Q. As a constitutional lawyer, you were aware, weren't you, of the

22 Badinter commission?

23 A. Yes.

24 Q. That was the conference -- an arbitration -- on Yugoslavia,

25 established by the European community, wasn't it?

1 A. Yes. This is the international legal aspect of this

2 subject-matter, and I'm not an expert in that.

3 Q. It was a commission established by the European community, headed

4 by a French lawyer, Mr. Badinter, and comprising Judges of the

5 constitutional courts of Germany, Belgium, Italy, and Spain. Do you agree

6 with that -- are you aware of that, I mean?

7 A. To a considerable degree, from news reports and television

8 reports.

9 Q. You're aware of it from newspaper reports. Are you saying you

10 haven't seen the opinions published by the Badinter commission on the

11 break-up of Yugoslavia?

12 A. I said that this belongs to international law. That aspect. And

13 it is not directly related to this particular subject-matter.

14 Q. It hasn't stopped you expressing some opinions on international

15 law in your report, has it, Professor?

16 A. What are you precisely referring to?

17 Q. One point you say that you were -- at one point you make an

18 opinion as to whether or not Bosnia-Herzegovina is a sovereign state,

19 don't you? It's at paragraph 56 of your report. I read from it: "As a

20 complex state formation Bosnia-Herzegovina is a state of international

21 relations while -- are not. However, it is not a sovereign state, as the

22 international community has limited in certain elements." You agree

23 there that you are expressing an opinion on international law, aren't you?

24 A. I would not agree that this is an opinion on international law. I

25 think that it is the simplest possible fact that could be ascertained. It

1 has to do with the Dayton constitution and with the adoption of the Dayton

2 constitution, and a series of related problems.

3 Q. I asked you earlier whether you had seen the Badinter reports. Is

4 your answer that you haven't seen the Badinter reports?

5 A. I cannot remember exactly, because I read quite a few of these

6 things as a citizen and as a scholar. But I don't know what your question

7 is specifically, so if you would be so kind as to put a specific question

8 to me.

9 Q. Specifically, in the second Badinter opinion, on the 11th of

10 January, 1992, Lord Carrington submitted the following question to the

11 commission: "Does the Serbian population in Croatia and

12 Bosnia-Herzegovina, as one of the constituent peoples of Yugoslavia, have

13 the right to self-determination." Badinter commission --

14 A. Yes.

15 Q. -- reported that the -- that was a question submitted. Are you

16 aware of the question submitted by Lord Carrington of the Badinter

17 commission which is directly on the topic that you're giving evidence

18 about?

19 A. And?

20 Q. Are you aware - I'm asking you - of the question submitted by

21 Lord Carrington to the Badinter commission, which is a question directly

22 on the topic you're giving evidence about? Are you aware of it?

23 A. I assume that this will be followed by your substantive question,

24 so please go ahead.

25 Q. I'm asking you whether you are aware that Lord Carrington

1 submitted that question to the Badinter commission. That's the question

2 you're giving evidence about in your report.

3 A. Well, please, could we look at the core of the matter? Can we

4 look at the substantive question behind this? It is so irrelevant whether

5 I know that or not. What is important is that you put your real question

6 to me so that I could give you an answer related to the right to

7 self-determination.

8 Q. As a constitutional expert, you've come to this Trial Chamber to

9 give evidence on the constitutional issues involving the break-up of the

10 former Yugoslavia and the constitutional validity or otherwise of the

11 Republika Srpska and the Federation; correct?

12 A. Yes, but it was not my understanding that it is the break-up of

13 Yugoslavia that is highly relevant in these proceedings, although in my

14 opinion it would be a good thing if this were to be discussed. But the

15 question is the establishment of Republika Srpska and relations within

16 Bosnia-Herzegovina.

17 Q. You have expressed an opinion, and a fairly strong opinion, I'd

18 suggest, on whether the Serbs, as a constituent nation of Yugoslavia, had

19 a right to self-determination. What I'm asking you is: Are you aware

20 that the very same question was considered by the Badinter commission in

21 January 1992, which is the time frame if which you're giving evidence

22 about here today?

23 A. As for my opinion, it is not important whether Badinter's

24 commission discussed this or not. I can have my own views that may fully

25 coincide with those of that commission, or they can be quite divergent.

1 Q. Well, I don't know how many times I have to ask the same

2 question. I'm asking you only whether you are aware of the question that

3 was considered by the Badinter commission. Can you please give me an

4 answer to that.

5 A. This is probably the fourth time that I'm saying that I do not see

6 the point of this question. I would appreciate it if you would put a

7 direct question to me as to what I think about the right to

8 self-determination and whether I know what one person or another person

9 thought about this can be of great importance, lesser importance, or no

10 importance whatsoever, as far as my personal views are concerned.

11 JUDGE MUMBA: Yes. It's clear that the witness won't give a

12 direct answer, so can you move on, counsel.

13 MR. RE: As the Trial Chamber pleases.

14 Q. I take it from your last answer you don't know, so I'll give you

15 the answer. The Badinter commission found -- this is the French, Belgian,

16 German, Italian, and Spanish constitutional Judges deliberating on the

17 question of self-determination in Yugoslavia, and specifically in Bosnia,

18 held: "It is well established, whatever the circumstances, the right to

19 self-determination must not involve changes to --"

20 THE INTERPRETER: Could the speaker please slow down. The reading

21 is too fast for the interpreters.

22 JUDGE MUMBA: Yes. Can you please read it slowly.

23 MR. RE: I will read it slowly, Your Honour, "The right to

24 self-determination must not involve changes to existing frontiers at the

25 time of independence (uti pucidatus juris) [phoen], except where the

1 states concerned agree otherwise." That was the conclusion they came to.

2 Q. Were you aware of that?

3 A. I don't know why you insist on that, whether I know or do not

4 know. You should be interested in my opinion. As for the scope of my

5 knowledge regarding other people's opinions, that's a different matter

6 altogether. Excuse me, but it is becoming increasingly embarrassing for

7 me to have to say this.

8 Q. I don't wish to embarrass you, Professor. All I'm asking you

9 about is the fact that the Badinter commission looked into the very issues

10 that you are here giving evidence about today, looked into these issues,

11 made conclusions, published them, they were accepted by the European

12 community, and you haven't mentioned them.

13 A. I don't think that I have to mention everything in my report,

14 because this would then be a great big book. I was asked to present my

15 own opinion on a particular case, the right to self-determination. I

16 spoke about that, and I wish I could say a few words about it today.

17 There were divergent views, though. The Badinter commission then in

18 various circles among the Serb people in Bosnia-Herzegovina, Yugoslavia,

19 Croatia, et cetera, and generally speaking, the right to

20 self-determination over the past several years was the subject of major

21 discussions.

22 Q. In your report at paragraph 20, you said finally the right to

23 self-declaration as absolutely incontestable is pledged by international

24 documents as well. You haven't actually mentioned what those

25 international documents are, Professor, so we haven't been able to check

1 what they are. Can you tell the Trial Chamber what international

2 documents absolutely incontestably allow the right to declaration?

3 A. I did not mention them because I believe that this was general

4 knowledge and that anybody dealing with constitutional law, let alone

5 international law, is aware of that. This is first and foremost the UN

6 charter of 1945. And then also another very important document is the

7 covenant on economic, social, and political rights from 1976.

8 JUDGE WILLIAMS: Excuse me, Professor. If I could ask you one

9 little question on this. For sure, self-determination is mentioned in

10 both the UN charter and the international covenant on civil and political

11 rights of 1976, but it is somewhat controversial. It isn't that

12 straightforward, I don't think. Is it a right of states or of peoples

13 within a state? I just have a simple question, though, for you, which is

14 if there is a rule of customary international law based on state practice

15 and opinio juris that peoples in colonial or neocolonial situations.

16 Peoples before independence have a right, if we are dealing with a state

17 of an independent state, whether it's a unitary state or a federal state

18 or a confederation, what are the criteria for the people to put forward

19 that they have a legitimate right at international law to

20 self-determination and therefore to secede? And if you could give me or

21 give the Trial Chamber your view on that very succinctly, I think that

22 would be very much appreciated.

23 THE WITNESS: [Interpretation] I appreciate the fact that you have

24 put this question. First and foremost, it is not the right of states to

25 self-determination, because one could hardly speak of that; isn't that

1 right? Because if the independence of a state is jeopardised, then it is

2 not a question of the self-determination of that state, but it is the

3 defence of its national and state independence. We are talking about the

4 right of peoples to self-determination. Some people say of nations.

5 Self-determination of nations or peoples, the right to self-determination,

6 including the right to secession, is referred to in the mentioned

7 international documents, and it is considered to be a major democratic

8 achievement of contemporary civilisation. By your leave, and I assume

9 that this is what you asked for yourself, I would like to present my

10 opinion.

11 A major achievement of the democratic civilisation is the

12 proclamation of the sovereignty of peoples and nations. The sovereignty

13 of peoples, as is a well-known fact, and university students can give an

14 answer to that. That is a general thing. That is the right of a people,

15 of a certain state, of the citizens of a certain state, to elect the

16 government under which they are going to live. But national sovereignty

17 does not correspond with that type of sovereignty. National sovereignty

18 means the right to self-determination, precisely. That is to say that the

19 nation maintains its national integrity and identity within a state

20 entity, within the state entity within which it wishes to live, either

21 within the existing state or within another independent state, and so on.

22 May I add, in passing, that the right of a people or a nation to

23 self-determination exclusively pertains to a nation people, not to

24 national minorities. Therefore, if the Serb people - and I assume that we

25 have all agreed on that - that was my understanding, just like the Croat

1 people, and after the 1970s, after the communist regime, Tito's regime,

2 Josip Broz Tito gave them this right, this characteristic. That is to say

3 the Muslim people became a people too, then all these three peoples have

4 the right to self-determination, including the right to secession.

5 That is where the core of the problem lies. However, unfortunately we did

6 not manage to understand each other properly, the gentleman, the

7 Prosecutor and I, that is to say, why the Serb people wanted to avoid the

8 creation of a unitary state and the proclamation of a sovereign

9 Bosnia-Herzegovina. They wanted to remain within Bosnia-Herzegovina and

10 Bosnia-Herzegovina within the joint state of Yugoslavia, in which in other

11 areas the Serb people live, the Croat people live, not to mention all the

12 peoples of the former Yugoslavia. So that is the core of the problem as

13 regards the right to self-determination. Thank you.

14 JUDGE WILLIAMS: Thank you for your response, Professor.

15 THE WITNESS: [Interpretation] Thank you for your question.

16 MR. RE:

17 Q. Your thesis -- excuse me for a moment. Your thesis is that the

18 referendum held by the Serbs was constitutionally legitimate, but the

19 referendum held by the Bosnian government wasn't; is that correct,

20 constitutionally correct?

21 A. I did not speak specifically about the referendum that was held in

22 Bosnia and Herzegovina as a whole, but I referred to the referendum that

23 had to do with the creation of the new Serb state, Republika Srpska. This

24 referendum stems from this very right of people for self-determination.

25 If Serbian people in Bosnia and Herzegovina, as a constituent nation --

1 Q. I was just asking you --

2 A. You interrupt me quite frequently.

3 Q. I was asking you a simple question whether your thesis, that is,

4 the bones of what you were saying, is that what the Bosnian government did

5 was unconstitutional but what the Serbian people did was constitutional.

6 It's not a difficult question, surely.

7 A. No. A very simplified question, and I agree with what you said,

8 which is that the Serb people, through their legitimate and legally

9 elected representatives, enacted certain documents and took certain steps

10 that brought about the creation of Republika Srpska. I believe this to be

11 legal and legitimate, whereas the other one I don't believe to be legal

12 and legitimate because it violated the consensus which lies in the core of

13 the relationships that existed in Bosnia and Herzegovina, where three

14 constituent peoples live. If we have three constituent peoples, then

15 there must be a consensus among them in order to ensure equality. The

16 violation of consensus, regardless of to whose detriment it was done,

17 whether to the detriment of Muslims, Croats, or Serbs, is something that

18 cannot be considered legal or legitimate.

19 Q. Are you aware that following the Serb referendum, the Bosnian

20 government -- or sorry, the Badinter commission considered the issue of

21 whether or not the Socialist Republic of Bosnia and Herzegovina should be

22 recognised internationally? Are you aware of that? Just yes or no.

23 A. This is the same question like the one you put to me before. I

24 would like to ask you to describe what I think about the essence of this

25 subject-matter. Now, whether I know something or not will become obvious

1 based on the answer that I will give you.

2 MR. RE: [Previous translation continues] ... it's a simple

3 question whether he's aware or not of the Badinter commission. That's not

4 responsive to the question.

5 JUDGE MUMBA: Yes, Professor. I think you must understand what

6 the question is and then you simply answer. He's not asking you to agree

7 with the contents of that report of the Badinter commission. He's simply

8 asking you whether you are aware of it.

9 THE WITNESS: [Interpretation] I would like to give my opinion. I

10 don't want to be asked whether I know about something. And then once I

11 give you my explanation, then it will become obvious whether I am aware of

12 something or not. I don't see why this is being insisted upon.

13 JUDGE MUMBA: That is how the questions should be answered,

14 Professor, and the Trial Chamber orders you to answer. If you're not

15 aware of anything that is put to you by the Prosecution, you say you're

16 not aware. If you are, you say so. It does not mean that you agree with

17 whatever the contents of that particular decision are.

18 THE WITNESS: [Interpretation] I'm not aware of it.

19 MR. RE:

20 Q. So you're not aware that the referendum sponsored by the

21 government on February 29, March 1, 1992, was held at the suggestion of

22 the Badinter commission? And I quote from the opinion number 4, 11th of

23 January, 1992, paragraph 4:

24 "In these circumstances, the arbitration commission is of the

25 opinion that the will of the peoples of Bosnia-Herzegovina to constitute

1 the Socialist Republic of Bosnia-Herzegovina as a sovereign and

2 independent state cannot be held to have been fully established. This

3 assessment could be reviewed if appropriate guarantees were provided by

4 the republic applying for recognition, possibly by means of a referendum,

5 of all the citizens of the SRBH without distinction, carried out under

6 international supervision."

7 A. Yes. That's correct, that the referendum was organised under

8 international supervision, with participation of representatives of all

9 three constituent peoples. Yes, that's all fine. However, if one nation

10 does not participate in it, then this referendum cannot be either legal or

11 legitimate. Because, as I've just told you, this violates the consensus

12 that can be found in the essence of their inter-relations.

13 Q. What I want to suggest to you is that the two referendums were

14 very, very different, weren't they? I'll explain why to you they were

15 very different. The referendum for the Serb people had two different

16 ballot papers, didn't it, one for Serbs and one for non-Serbs? Are you

17 aware of that?

18 A. Yes. Yes.

19 Q. But the referendum which was internationally supervised and

20 sponsored by the Bosnia government in relation to independence was a

21 referendum with only one ballot paper for everyone, wasn't it?

22 A. Yes.

23 Q. The -- and as a constitutional expert, you, of course, would

24 recognise and respect the judgements of this Tribunal, wouldn't you?

25 A. Absolutely.

1 Q. In the Tadic judgement of the 7th of May, 1997, I just want to

2 read to you what the Trial Chamber found after hearing evidence about the

3 Serb ballot in November 1991. I'm reading from paragraph 99:

4 "In November 1991 --"

5 THE INTERPRETER: Please read slowly because the interpreters do

6 not have the original text.

7 MR. RE:

8 Q. "In November 1991 the SDS sponsored, organised, and conducted a

9 plebiscite primarily for the benefit of the Bosnian Serb population.

10 Voters were given different ballots depending on whether they were Serb or

11 non-Serb. The difference between the two ballots was significant. For

12 Bosnian Serbs the ballot asked: Are you in favour of the decision reached

13 by the assembly of the Serbian people in Bosnia and Herzegovina on the

14 24th of October, 1991, whereby the Serbian people should remain in the

15 common state of Yugoslavia, which would include Serbia, Montenegro, Serb

16 autonomous region Krajina, Serb autonomous region Slovinka-Krajina

17 [phoen], Western Srem, along with others willing to remain in such a

18 state. While the question for non-Serbs was: Are you in favour of Bosnia

19 and Herzegovina remaining a republic with equal status in a common state

20 of Yugoslavia, with all the other republics, which also declare themselves

21 willing to do so?"

22 Prosecution Exhibit 97. The great majority who did vote were

23 Serbs. Those Serbs who did not being branded as traitors. Most non-Serbs

24 regarded the plebiscite as directed only to Serbs. The Trial Chamber goes

25 on, "The outcome of the plebiscite purported to be a hundred per cent in

1 favour. The SDS leadership --"

2 THE INTERPRETER: Could you please slow down for the interpreters.

3 MR. RE:

4 Q. The SDS leadership used this outcome as a basis on which to

5 develop the separate Serb political structure. The plebiscite was cited

6 as justification for all subsequent moves such as the ultimate walkout of

7 the SDS representatives from the Bosnia and Herzegovina assembly. The

8 various negotiations conducted at the federal and international levels and

9 the proclamation on the 9th of January 1992 of the republic of the Serbian

10 people of Bosnia and Herzegovina. It was, "Used as a pretext, as an

11 excuse, explanation, for everything they did.

12 "Also, on the basis of the plebiscite, the SDS and military forces

13 in each region, including the JNA, paramilitary organisations, local TO

14 units, and special police units began to establish physical and political

15 control over certain municipalities where it had not already gained

16 control by virtue of the elections. In these regions, which included

17 opstina Prijedor, the SDS representatives in public office in some cases

18 established parallel municipal governments and separate police forces.

19 Physical control was asserted by positioning military units, tanks, and

20 heavy artillery around the municipalities and setting up checkpoints to

21 control the movement of non-Serbs."

22 That's what the Trial Chamber found in the case of Tadic in

23 relation to that ballot. Is there anything -- were you aware of that, and

24 is there anything you could disagree with there?

25 A. I did not have an opportunity to read the Tadic judgement. I

1 don't even know whether that was published in Belgrade. However, as

2 regards the plebiscite that was held on the 9th and 10th of November,

3 1991, I can say that this was simply a confirmation. I think that I read

4 somewhere that 96.something per cent expressed the support for the

5 enactments and measures that had been taken by -- until that time by the

6 Serb assembly in order to create Republika Srpska, which later on was done

7 on the 9th of January, 1992 by proclaiming the declaration. I believe

8 this referendum to be fully legal and legitimate, because, like in all

9 other democratic countries, when people express their will at a

10 referendum, that is a legal expected measure, and we saw that this was

11 done in this case as well. You said that -- it is true what you said,

12 that there were different formulations on the ballots but this was an

13 opportunity for representatives of other peoples to express their opinion

14 regarding the coexistence in that area, because the first ballot applied

15 only to the members of the Serb people. However, this was an opportunity

16 for others who lived there to express their opinion regarding their future

17 life together, and I believe that to have been appropriate as well.

18 Q. The conduct of the -- or the circumstances surrounding the second

19 referendum were very different, and I quote to you from "Bosnia, a short

20 history," by Noel Malcolm, the updated edition 1996, at page 230, where he

21 says that "The army was not impartial or unpolitical, was made evident on

22 29th February and 1st of March when the referendum was held in Bosnia.

23 While Karadzic's SDS forbade Serbs to vote in the referendum and erected

24 road blocks to prevent ballot boxes entering the areas of Bosnia it

25 controlled, federal army planes dropped leaflets supporting --"

1 THE INTERPRETER: Could you please slow down when reading.

2 MR. RE: "-- dropped leaflets supporting the boycott. Roughly 64

3 per cent of the electorate did vote. However, including many thousands of

4 Serbs in the major cities on a ballot paper which asked: Are you in

5 favour of a sovereign and independent Bosnia-Herzegovina, a state of equal

6 citizens and nations of Muslims, Serbs, Croats, and others who live in it?

7 Almost unanimously, they voted yes."

8 My question is: Were you aware of the circumstances surrounding

9 the conduct of that ballot in February/March 1992, as described by

10 Mr. Malcolm?

11 A. Unfortunately, I have not read that book. But what you just read

12 out pertains to the factual situation. What was ordered by Mr. Karadzic

13 or somebody else, or what was done by them is something that I did not

14 cover in my report. It is not a constitutional, legal question; it is a

15 factual question that naturally needs to be discussed in a certain way.

16 But I don't see that how I could have contributed to that within my

17 report. I did not live in Bosnia and Herzegovina at the time, and I am

18 not aware of factual situation of what -- who did what, regardless of

19 which side they belonged to.

20 Q. The Yugoslavian constitution in force in early 1992, and of course

21 the Republika Srpska constitutions and the Socialist Republic

22 constitutions, none of those authorised one nationality or ethnicity to

23 establish parallel governments, did they?

24 A. These are very different constitutions. Yugoslav constitution

25 from 1992 was adopted during the dictatorship of Milosevic, whereas

1 socialist constitutions of other republics, including Serbia, all of these

2 constitutions were passed in 1974. Yugoslavia had a constitution of this

3 nature in 1974. Now, I'm not quite sure what you want me to do. Do you

4 want me to compare these constitutions, or what exactly would you like me

5 to do.

6 Q. [Previous translation continues] ... the constitutional expert,

7 Professor. I just asked you simply, or put to you the proposition that

8 none of those constitutions authorised a nation to set up a separate

9 government or a parallel government, did they?

10 A. This is not contained in any constitution in this world.

11 Q. And of course, none of those constitutions authorised the Bosnian

12 Serbs to forcibly take control of any towns, cities, or villages

13 throughout Bosnia, did they?

14 A. Yes. These constitutions do not envision that. But the

15 constitution from 1974 saw Bosnia and Herzegovina only as a federal unit

16 and status of a federal unit within a federal state is well known. You

17 can see examples of that in Canada, in Switzerland, and so on. So none of

18 these states can proclaim their independence or secede or do something

19 else. People can proclaim that, but after that, the issue of borders

20 needs to be established. If you are setting up discussion along these

21 lines, and if you are denying the right to Serb people to

22 self-determination, then we will find ourselves in front of a very

23 delicate question, which is that this can bring us to a conclusion, and a

24 wrong one at that, namely, the conclusion that Slovenes, Croats,

25 Macedonians, did not have a right to self-determination. They did not

1 have a right to secede and establish their own states. And then this

2 would be followed by the next conclusion, which is that the current

3 Slovenia, current Croatia, current Macedonia are illegal states in fact.

4 However, Slovenes as a separate nation, Croats as a separate nation, and

5 Macedonians too, did had a right to self-determination and they did create

6 their own independent sovereign states. What could have presented a

7 problem -- well please allow me to complete my answer. Please to not

8 interrupt me.

9 JUDGE MUMBA: No, no. Witness, you have gone outside the question

10 that counsel asked you, so that's why you are being stopped.

11 THE INTERPRETER: Microphone, please.

12 THE WITNESS: [Interpretation] The question was such that I had to

13 present my answer. Could you please put a more specific question to

14 me.

15 Q. I don't think I can be any more specific than asking you which of

16 the constitutions authorised Serbs to forcibly take control of towns,

17 cities, or villages. That's fairly specific, I think. I'm just

18 suggesting to you that none of them authorised the Serbs to forcibly take

19 control, that is, with arms, villages, towns, cities, or municipalities,

20 did they?

21 A. Then I can ask you this: Which constitution was it that

22 authorised Slovenes, Croats, and Macedonians to start creating their own

23 states? It's the same matter. You are ignoring this fact, and you should

24 not do that. You should have that in mind.

25 JUDGE MUMBA: Witness, you're not here to ask counsel questions.

1 You are here to answer the questions. And just stick to the questions

2 asked by counsel.

3 MR. RE:

4 Q. The -- excuse me for a moment. You would agree that the

5 constitution of the Serb republic of Bosnia and Herzegovina contained a

6 fairly impressive set of human rights guarantees, doesn't it?

7 A. Yes.

8 Q. The first one which was proclaimed on the 16th of March, 1992

9 contains some fairly impressive articles on human rights and freedoms

10 under article 2 you have a copy there in front of you I take it.

11 "Article 12, freedom and personal safety of men are inviolable.

12 No one can be deprived of or limited in his freedom except in cases in

13 compliance with the procedures provided for by law."

14 A. Yes. This is a classical formulation.

15 Q. "14, no one may be subject to torture, cruel, inhumane or

16 humiliating treatment or punishment. Any extortion of confession or

17 statements shall be forbidden and punishable."

18 THE INTERPRETER: Could counsel please read slower. It is

19 impossible to follow this pace.

20 MR. RE: I apologise.

21 JUDGE MUMBA: Yes, counsel. Slow down so that they can interpret

22 what you are reading.

23 MR. RE: The second part, I'll reread it. "Article 14, no one may

24 be subjected to torture, cruel, inhuman or humiliating treatment or

25 punishment. Any extortion of confession or statements shall be forbidden

1 and punishable. It is forbidden to conduct --" I won't go into that one.

2 "Article 15, unlawful deprivation of freedom is punishable. No

3 one may be deprived of freedom without a court decision, which must be

4 stated and handed to the person at the time of deprivation of freedom. A

5 person suspected of having committed a criminal offence can be detained

6 only if it is indispensable for the conduct of criminal proceedings or for

7 the safety of people. A detention has to be as short as possible.

8 Pursuant to the decision of a first instance court the detention may last

9 two months at the most. Republic supreme court may extend it for another

10 2 months."

11 It guarantees the right to free trial in article 18. Freedom of

12 movement, article 21. Freedom of religion, article 28. Article 30, the

13 right to peaceful assembly and peaceful protest. Article 31, freedom of

14 political association and activity in compliance with the law shall be

15 guaranteed. Article 39, forced labour shall be prohibited. Article 47,

16 human rights and freedoms shall be restricted only by equal rights and

17 freedoms enjoyed by others and by the need to protect universal human

18 values and democratic accomplishments. Article 48, the rights and

19 freedoms guaranteed by this constitution cannot be denied or restricted.

20 Abuse or freedom and rights is unconstitutional and punishable.

21 You know this document very well, don't you professor?

22 A. I believe I do.

23 Q. Nothing in this authorises the forcible takeover by the military

24 or paramilitaries of a municipality, does it?

25 A. Yes.

1 Q. And if people were to do so, it would be unconstitutional,

2 wouldn't it?

3 A. Yes.

4 Q. Nothing allows -- nothing authorises the establishment of extra

5 judicial detention centres for the detention of non-Serbs, does it?

6 A. Certainly, absolutely.

7 Q. And to do so, to establish extra judicial detention centres for

8 non-Serbs would be unconstitutional, wouldn't it?

9 A. Yes.

10 Q. As would --

11 JUDGE WILLIAMS: Sorry to interrupt, Mr. Re, but for the sake of

12 clarification, on page 113, your question on line 20, "nothing in this

13 authorises the forcible takeover by the military or paramilitaries of a

14 municipality, does it?" The witness's answer is "yes." I think it should

15 be clarified. Does he mean yes, I'm agreeing with you, or contra?

16 MR. RE: Thank you.

17 THE WITNESS: [Interpretation] I agree. I agree. I agree. The

18 constitution does not authorise it.

19 MR. RE:

20 Q. And in order telling non-Serbs that they had to wear white

21 armbands would be contrary to this constitution too, wouldn't it?

22 A. Absolutely.

23 Q. And so would an order preventing more than three Muslims from

24 meeting, that would be unconstitutional too, wouldn't it?

25 A. Yes.

1 Q. And punishable under this constitution?

2 A. Yes.

3 Q. So would an order forbidding political parties. That would also

4 be unconstitutional?

5 A. Yes.

6 Q. As would the proclamation of a state of emergency preventing

7 citizens from leaving a municipality. That too would be unconstitutional,

8 wouldn't it?

9 A. Which provision is that?

10 Q. It's not there, and I'm suggesting that an order proclaiming a

11 state of emergency which prevents citizens from leaving a municipality

12 under that constitution with its model human rights provisions would be

13 unconstitutional, wouldn't it?

14 A. That requires a broader discussion, because imminent threat of war

15 or a state of war always calls for extraordinary measures. So this is a

16 factual question. It has to do with regulations in the country

17 concerned. As for all the rest that you mentioned, I fully agree with

18 you.

19 Q. And of course, isolating an order, isolating all people of

20 Croatian nationality to be isolated and taken to vital facilities, that

21 is, Croats, would also be contrary to this constitution, wouldn't it?

22 A. Yes, that's the way it should be.

23 Q. And of course forced labour, which I mentioned earlier, would be

24 contrary to the constitution?

25 A. Yes.

1 Q. And more so if it was at the frontline, doing things like digging

2 trenches. It would be ultra-unconstitutional, wouldn't it?

3 A. Yes, certainly.

4 Q. So would the looting of non-Serb properties by Muslims and Croats

5 forced into labour. That would also be unconstitutional, wouldn't it?

6 A. Yes. Any looting is unlawful and illegal.

7 Q. A Municipal Assembly --

8 JUDGE MUMBA: The Prosecution, you've consumed your time.

9 MR. RE: Yes.

10 JUDGE MUMBA: Of one hour. Yes.

11 MR. RE: I have. Not in questions, Your Honour. I think in

12 answers.

13 JUDGE MUMBA: No, no. It's the whole time put together.

14 MR. RE: I appreciate under Rule 98, the Prosecution is supposed

15 to put its case to an expert witness --

16 JUDGE MUMBA: That's not the contention. It's just the time that

17 we have come to the end of today's proceedings.

18 Mr. Pantelic, you had indicated that the witness was required to

19 leave, but we can start in the morning with him and complete his evidence.

20 MR. PANTELIC: Your Honour, I believe that it's very, very

21 complicated question. I think we have to finish with this witness today.

22 I have only a couple of questions, not more than five or ten minutes, so

23 we could -- I do apologise to our colleagues from interpreters' booth.

24 They are working very hard today. But if maybe one break of ten minutes

25 or fifteen minutes --

1 JUDGE MUMBA: Yes. I was going to suggest that. I was wondering

2 whether that would be accepted by the interpreters. Have a ten-minute

3 break so that we can complete this witness today.

4 THE WITNESS: [Interpretation] Thank you, Madam President.

5 JUDGE MUMBA: I'm asking the interpreters. Can we have an

6 answer?

7 THE INTERPRETER: Could the interpreters kindly ask that we finish

8 within the next ten minutes and we go on working that way, rather than

9 reschedule the entire afternoon.

10 JUDGE MUMBA: Yes. I think we can proceed.

11 Mr. -- the Prosecution can wind up, please.

12 MR. RE: May it please the Court.

13 Q. The takeover of a municipality by one ethnicity, forcing out the

14 others, would be contrary to the constitution of the Republika Srpska,

15 wouldn't it?

16 THE INTERPRETER: Could the counsel speak in the microphone,

17 please.

18 JUDGE MUMBA: The interpreters didn't pick your question.

19 MR. RE: As Your Honour pleases.

20 Q. The takeover of municipality by one ethnicity forcing out the

21 others, one nation, would be contrary to the constitution of the Republika

22 Srpska, wouldn't it? You're nodding. Are you saying yes?

23 A. Correct. Any democratic constitution.

24 Q. [Previous translation continues] ... takeover of a municipality

25 by one ethnicity, such as the Serbs, and taking over the government and

1 preventing the others from participating in the government would also be

2 unconstitutional, wouldn't it?

3 A. You are right. Any discrimination on national grounds is

4 anti-constitutional, anti-civilisation, and inhumane, and contrary to

5 international legal documents.

6 Q. As would, of course, an article in a municipality -- sorry - a

7 decision to establish a municipality assembly which allowed only Serbian

8 Democratic Party deputies and other deputies of Serb ethnicity to

9 participate, that would also be unconstitutional, wouldn't it?

10 A. Any discrimination on national grounds is absolutely unacceptable.

11 Q. I'm referring here specifically to Article 5 of Exhibit P124, the

12 Official Gazette of the municipality --

13 THE INTERPRETER: Could counsel slow down, please.

14 MR. RE: I'm referring specifically here to Article 5 of P124, the

15 Official Gazette of the municipality of Samac.

16 JUDGE MUMBA: Counsel, please. Yes. You're finished?

17 MR. RE: Yes, Your Honour.

18 MR. PANTELIC: And one suggestion, Your Honour. If my friend wish

19 to make some certain reference to Article 5, I think it would be fair

20 enough to show to professor this particular Official Gazette, this act,

21 and this Article 5, and then he can make his opinion. Otherwise there is

22 no sense in the transcript. My learned friend Mr. Re said, "I'm referring

23 here specifically to Article 5," but professor didn't see Article 5. So

24 he was not able to even give a comment, as well as the Defence, of course.

25 So maybe we can put on the ELMO and one copy in B/C/S language in front of

1 professor and then we shall hear the proper answer.

2 JUDGE MUMBA: Yes. The Prosecution.

3 MR. RE: Well, in order to put the Prosecution case to the

4 professor, I was intending to take him through about 20 exhibits in this

5 trial, the various orders of the municipality of Bosanski Samac, or the

6 Crisis Staff of the War Presidency, but the one hour didn't permit me the

7 time to do so, and the length -- the answers didn't allow me to do so

8 either. So in that respect, I haven't taken him through each of the

9 documents which I wished to and asked him to comment on them. He said

10 they're all unconstitutional -- the extracts I've read from, or the effect

11 of them. So in my submission, if it's good for one, it's good for all of

12 them and I should be permitted to go back and show all of them to him

13 again. There are other documents I intend to tender. I won't necessarily

14 do it at the moment because again for time considerations, I intend to

15 tender the constitution and the Badinter commission reports. And again

16 for time reasons, not having the time in the hour to get the witness to

17 look at them and to comment, I haven't shown them to him.

18 [Trial Chamber confers]

19 THE WITNESS: [Interpretation] By your leave --

20 [Trial Chamber confers]

21 JUDGE MUMBA: Yes. The Trial Chamber is of the view that the time

22 taken and explanations of the witness are sufficient. I don't think there

23 is any more reason why we should spend more time with this witness. So

24 we'll go ahead with the re-examination. The Prosecution can always

25 produce the documents they wanted to produce.

1 MR. RE: Do you mean to tender the documents into evidence, Your

2 Honour?

3 JUDGE MUMBA: Yes.

4 MR. RE: Yes. If I can do that, maybe after Mr. Pantelic

5 finishes, to allow the witness to go.

6 JUDGE MUMBA: Yes. Because that can be done at any stage. It

7 doesn't have to be today.

8 Yes, Mr. Pantelic.

9 MR. PANTELIC: Yes, Your Honour. Well, it's, I mean, quite --

10 situation. Now I would like to see this Exhibit P124 and finally this

11 Article 5, so that we know about we are talking here. Otherwise it is not

12 fair for Defence expert witness just to put him a question what is in

13 Article 5 of I don't know which decision. Even I'm not so familiar. And

14 then we shall see whether something is in accordance or against the

15 constitutional law principles. That was the proper way, and that was the

16 idea of my intervention. And I would kindly ask my learned friend to make

17 a specific reference, because this is Official Gazette, of course, what --

18 which article we have to find, because there is a lot of decisions and

19 orders here. Contains each of them Article 5. So on which Article 5 and

20 which decision you particular is referring, so in order to clarify this

21 thing.

22 MR. RE: Well, that's not difficult. It's quite simply P124, it's

23 page 5. It's the -- headed, as I said for the benefit of the Trial

24 Chamber "Decision to establish an assembly of the Serbian people of the

25 municipality of Bosanski Samac." And it's Article 5 of that, which is at

1 the top of page 5.

2 MR. PANTELIC: You mean Bosanski Samac and Pelagicevo

3 information? Is that? So because there are many things like that.

4 Okay. So Article 5.

5 Re-examined by Mr. Pantelic:

6 Q. [Interpretation] Professor, could you please read out the -- read

7 out Article 5 of this decision on establishing the assembly of the Serbian

8 people, and could you tell us whether there is anything unconstitutional

9 about it.

10 A. Could now the representative of the Prosecution put his question?

11 Q. Sir, but I am asking you now. So can you tell me whether the

12 formulation of Article 5 has any unconstitutional -- anything

13 unconstitutional about it?

14 A. It depends on the ethnic composition of the municipality. If the

15 assembly man of the SDS were elected democratically, then I don't see

16 anything unconstitutional about it. However, this is a factual question,

17 and I now cannot decide, cannot assess whether they were elected

18 democratically or in any other way. This is beyond my expertise.

19 MR. PANTELIC: You can take these exhibits. I don't need your

20 assistance. Thank you very much.

21 Q. [Interpretation] My next question, Professor, is as follows: My

22 colleague mentioned these famous decisions passed by constitutional

23 courts. My first question is this: In view of the fact that the Serb

24 people left all political institutions and organs of government in 1992,

25 can you tell us what was the composition of the courts in Bosnia and

1 Herzegovina, for example, in November of 1992, when this constitutional

2 court passed its decision? What was the ethnic composition of these

3 organs, and did this constitutional court in fact represent a body that,

4 following the principles accepted in Bosnia, had within it representatives

5 of all three constituent peoples?

6 A. I now cannot tell you what was the composition of the assembly,

7 the government, the constitutional court, and other organs, but what I

8 know is that that was the period of time when members of the Serb nation

9 did not participate in the work of these organs. Therefore, the decisions

10 passed by these organs cannot be considered legally valid because, as I've

11 mentioned several times, this violated the core, or the substantive

12 element or principle that required that there be a consensus, an equality

13 among the three constituent peoples. If any nation, be it Serb nation,

14 Croat nation, or Muslim nation, does not participate in the work of any

15 organ, be it assembly or constitutional court, and so on, then the work of

16 that body is not legally valid, let alone constitutional.

17 Q. My next question -- and this is something that you mentioned in

18 your report. You mentioned the constitutional court based on the Dayton

19 constitution. This is the constitutional court of Bosnia and Herzegovina

20 , which also has foreign justices. I'm asking you this now: Why is it

21 that in the constitutional court of Bosnia and Herzegovina there are

22 justices who are foreign nationals? What is your explanation for this?

23 A. This question should be put to authors of the Dayton

24 constitution. It is obvious that this was an expression of mistrust that

25 main protagonists, meaning the international community, had when the

1 constitution was drafted, and they obviously mistrusted the ability of

2 people in Bosnia and Herzegovina to respect consensus. This is why they

3 wanted to ensure the presence and active participation of prominent

4 judges, among whom was one of my good friends, Professor Louis Favere,

5 from France. They basically wanted to ensure that there wouldn't be any

6 bias present.

7 Q. In view of the fact that, unlike other former Yugoslav republics,

8 Bosnia and Herzegovina had three constituent peoples living in it then,

9 tell us, please, this: If one of the constituent peoples leaves all

10 government organs, then does the old Bosnia and Herzegovina, in its old

11 form, continue to exist?

12 A. No, because this is a precondition for continual existence of

13 Bosnia and Herzegovina. At the time, Bosnia and Herzegovina was -- or had

14 a status of a federal unit, and this same would apply to the Federal

15 Republic of Yugoslavia. In 1992, its constitution was adopted by the rump

16 assembly of SFRY, without participation of MPs from Slovenia, Croatia,

17 Macedonia, and so on, and I believe that that constitution was legally not

18 valid, and this is something that I stated in my opinion. The same would

19 apply to the situation you described in Bosnia.

20 Q. Now let me ask you this. A referendum was scheduled for late

21 February/early March of 1992 by that rump Bosnia and Herzegovina, and now,

22 can you tell us whether this referendum was legally valid?

23 A. If this was a referendum in which only members of Croat and Muslim

24 nations participated, and not those of Serb nation, then that referendum

25 cannot be legally valid or legitimate.

1 MR. PANTELIC: I've finished with my examination, Your Honour.

2 Thank you.

3 [Interpretation] Thank you, Professor.

4 JUDGE MUMBA: Thank you very much, Professor, for giving evidence

5 to this Tribunal. You are now free. You can go.

6 The Trial Chamber wishes to thank the supporting services, the

7 interpreters, the recording systems, the court reporters, for their

8 patience. We are now finished for this afternoon. We'll adjourn until

9 tomorrow.

10 --- Whereupon the hearing adjourned at 4.30 p.m.,

11 to be reconvened on Wednesday, the 13th day of

12 November, 2002, at 9.30 a.m.

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