1 Monday, 28 February 2005

2 [Open session]

3 --- Upon commencing at 2.19 p.m.

4 [The accused entered court]

5 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, could you call

6 the case, please.

7 THE REGISTRAR: [Interpretation] Thank you, Mr. President. Case

8 number IT-01-47-T, the Prosecutor versus Enver Hadzihasanovic and Amir

9 Kubura.

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

11 we have the appearances for the Prosecution, please.

12 MR. MUNDIS: Thank you, Mr. President. Good afternoon,

13 Your Honours, counsel and everyone in and around the courtroom. For the

14 Prosecution, Tecla Henry-Benjamin and Daryl Mundis, assisted by our intern

15 Lisa Hartog and our case manager, Janet Stewart.

16 JUDGE ANTONETTI: [Interpretation] Could we have the appearances

17 for Defence counsel, please.

18 MS. RESIDOVIC: [Interpretation] Good day, Mr. President, good day,

19 Your Honours. On behalf of General Hadzihasanovic, Edina Residovic, lead

20 counsel and Stephane Bourgon, co-counsel.

21 JUDGE ANTONETTI: [Interpretation] Could we have the appearances

22 for the other Defence, team, please.

23 MR. IBRISIMOVIC: [Interpretation] Good afternoon, Your Honours.

24 On behalf of Mr. Kubura, Rodney Dixon, Fahrudin Ibrisimovic and Nermin

25 Mulalic, our legal assistant.

1 JUDGE ANTONETTI: [Interpretation] On behalf of the Trial Chamber I

2 would like to greet everyone present. Now that we are resuming with our

3 hearings, I greet the members of the Prosecution, Defence counsel,

4 Mr. Bourgon, who is hidden behind the files, but as I know he will be on

5 his feet I'll greet him now. I also greet Mr. Kubura's Defence counsel,

6 the two accused who are present and who are back in the courtroom after

7 the break we had last week.

8 We'll be hearing an expert witness today, but I would first like

9 to address the Prosecution. Do they have all the documents that were

10 supposed to be translated? Mr. Mundis.

11 MR. MUNDIS: Mr. President, thank you very much. We have received

12 late last week a large bundle of translations. I'm not sure yet if we

13 have all the translations, but it doesn't seem to be a problem at this

14 point in time, and we certainly appreciate the extra time that was

15 afforded to allow us to get the translations. We can confer with our

16 learned colleagues from the Defence to determine how many, if any,

17 additional translations remain to be done but we don't anticipate a

18 problem for the foreseeable future.

19 JUDGE ANTONETTI: [Interpretation] Very well. Can the Defence

20 respond to the issues raised? Mr. Bourgon.

21 MR. BOURGON: [Interpretation] Good day, Mr. President; good day,

22 Your Honours. In response the Chamber's question, Mr. President, I would

23 say we have received the bundle of translations, but there are others that

24 we should still be receiving in the course of today, and we should be in a

25 position to provide a summary tomorrow. We'll be able to inform you of

1 the number of documents that remain to be translated. There are some

2 outstanding documents but not many, and I don't think that this should

3 delay the proceedings. Thank you, Mr. President.

4 JUDGE ANTONETTI: [Interpretation] Thank you. Very well. Are

5 there any other issues anyone would like to raise before we call the

6 witness into the courtroom? If there aren't any issues to be raised, I

7 will now ask the usher to call the witness into the courtroom.

8 Yes, Mr. Bourgon.

9 MR. BOURGON: [Interpretation] Thank you, Mr. President. While

10 waiting for the witness, we could perhaps file the report of the expert

11 witness, which is what we did in the case of the Prosecution's expert

12 witness. We could perhaps tender it into evidence. This is what was done

13 for the Prosecution's expert witness, General Rheinhardt.

14 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Bourgon.

15 Mr. Mundis. Ms. Benjamin, Defence counsel has just said that they would

16 like to tender the exert witness's report into evidence. Are there any

17 objections?

18 MS. HENRY-BENJAMIN: Mr. President, the Prosecution doesn't have

19 any objections at this time. Thank you.

20 JUDGE ANTONETTI: [Interpretation] Very well. Mr. Registrar, could

21 we have a number, please.

22 THE REGISTRAR: [Interpretation] This is Defence Exhibit DH2044.

23 The English version shall be admitted into evidence under number DH2044/E.

24 Thank you, Mr. President.

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

1 take note of the fact.

2 [The witness entered court]

3 JUDGE ANTONETTI: [Interpretation] Good day, sir. I would like to

4 make sure you are receiving the interpretation of what I'm saying you. If

5 so, please say you hear me and understand me.

6 THE WITNESS: [Interpretation] I hear you and I understand you.

7 JUDGE ANTONETTI: [Interpretation] Sir, you have been called here

8 as an expert witness for the Defence. Before you take the solemn

9 declaration, I would be grateful if you could tell me your first and last

10 names, your date of birth and your place of birth.

11 THE WITNESS: [Interpretation] My name is Kasim Trnka. I was born

12 on the 16th of April, 1939, in Sarajevo, in Bosnia and Herzegovina.

13 JUDGE ANTONETTI: [Interpretation] What are you by profession?

14 What is your current profession?

15 THE WITNESS: [Interpretation] Currently I'm a judge at the

16 Constitutional Court of the BH Federation, but I also lecture in

17 constitutional law at the faculty in Bihac in Bosnia and Herzegovina.

18 JUDGE ANTONETTI: [Interpretation] In that case I should call you

19 Judge since you are a judge at the Constitutional Court.

20 THE WITNESS: [Interpretation] Yes that is also possible, although

21 I prefer my work as a professor.

22 JUDGE ANTONETTI: [Interpretation] Very well, you would prefer to

23 be called Professor.

24 THE WITNESS: [Interpretation] Yes because my career as a professor

25 has been longer.

1 JUDGE ANTONETTI: [Interpretation] Very well, Professor. Could you

2 tell the Court what your position was in 1992 and 1993, over ten years

3 ago, but could you tell us the position you held at the time?

4 THE WITNESS: [Interpretation] In 1989 I was appointed as a judge

5 of the Constitutional Court in Bosnia-Herzegovina. Before that I was the

6 president of the court for one year because the term of office lasted for

7 one year. And then when the war broke out and while the former Yugoslavia

8 was breaking up, I worked as an expert to assist with legal issues that

9 concerned the republic gaining independence and that concerned the peace

10 process for former Yugoslavia or, rather, for Bosnia and Herzegovina.

11 So in 1992, from the end of April, I spent most of my time outside

12 of Bosnia-Herzegovina. I was involved in negotiations, and I was part of

13 the delegation of the Presidency of Bosnia and Herzegovina involved in

14 discussing the peace plans for Bosnia and Herzegovina. I went to Bosnia

15 and Herzegovina on a number of times and then again went to various

16 meetings which were held in various European countries.

17 Towards the end of 1993 or to be more precise in November 1993, I

18 was appointed as the Minister of Justice in the government of the Republic

19 of Bosnia and Herzegovina. I remained at that post until August 1994.

20 JUDGE ANTONETTI: [Interpretation] Very well. Thank you. Have you

21 already testified before a national or international court with regard to

22 the events at that took place in your country in 1992 and 1993, or is this

23 the first time that you will be testifying as an expert witness?

24 A. This is the first time that I'll be testifying before this Trial

25 Chamber, before this Tribunal. I've never testified before a national

1 court, but at the request of the OTP from this Tribunal, Mr. Harmon and

2 his associates asked me with regard to Mr. Krajisnik's case to draft an

3 expert report that concerned the establishment and the functioning of

4 Republika Srpska. I provided that expert report. I had contract with

5 Mr. Harmon's associates on a number of occasions with regard to this

6 matter, but so far I have not been requested to take any part in that

7 case.

8 JUDGE ANTONETTI: [Interpretation] Very well. So you are telling

9 us that you have already drafted an expert report at the request of the

10 Office of the Prosecution. This concerns the Krajisnik case, but

11 apparently you have not yet testified to hearing; is that correct? Very

12 well. Could you please read out the solemn declaration.

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

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

15 JUDGE ANTONETTI: [Interpretation] Thank you. You may sit down

16 now.

17 THE WITNESS: [Interpretation] Thank you.

18 WITNESS: KASIM TRNKA

19 [Witness answered through interpreter]

20 JUDGE ANTONETTI: [Interpretation] Before I give the floor to

21 Defence counsel who will be questioning you about your expert report,

22 there's some information I would like to provide you with, information

23 that concerns the procedure that we will be following here.

24 You have said that you would prefer to be called Professor, but we

25 note that you have been a judge at the Constitutional Court and you also

1 said that you were the Minister of Justice in your country in November

2 1993. So the procedure that is followed here and will certainly not be a

3 surprise for you, but nevertheless I will like to provide you with certain

4 guidelines so that you can follow the proceedings without any problems.

5 First you will have to answer the questions that will be put to

6 you by Defence counsel, who are to your left. You have certainly met them

7 when being proofed for this hearing. According to the procedure we follow

8 here, which is adversarial in kind, you will have to first answer

9 questions that will be phrased in a neutral manner, and you can then

10 respond to them in detail. In the course of their examination-in-chief,

11 Defence counsel may not or is not allowed to put leading questions to you.

12 Defence counsel believes that they will need about three hours for your

13 examination-in-chief. This means that this hearing today will be taken up

14 by the questions put to you by Defence counsel.

15 After that stage, the Prosecution, who are to your right, and I

16 believe that Ms. Benjamin will be examining you, in the course of her

17 cross-examination, the Prosecution told us 15 days ago that they would

18 require about four hours for their cross-examination. In the course of

19 the cross-examination, the questions put to you may be leading, and you

20 will be able to answer them by simply saying yes or no. Then the Defence

21 may ask you additional questions that relate directly or indirectly to the

22 questions put to you in the course of the cross-examination.

23 The three Judges who are before you may, pursuant to the Rules of

24 this Tribunal, put questions to you at any point in time, but the Judges

25 prefer to wait for the parties to put all the questions they believe

1 should be put to you first before the Judges put their questions to you.

2 When asking a witness questions, we have two objectives in mind.

3 Firstly, we want to clarify certain answers that you may have provided to

4 both of the parties, and the second objective is that if we believe that

5 there are some gaps in your testimony, as it is our duty to try and

6 establish the truth, we may put questions to you in the interests of

7 justice that have not been put to you by either of the parties. This is

8 in order to enable the Judges to subsequently gain an idea of what you

9 meant to say in the course of your testimony.

10 Given that you are an expert witness, the questions might be very

11 technical, and in fact this is why you have been called here as a witness.

12 Given the technical nature of the debate, try to answer the questions as

13 concisely and as clearly as possible for the benefit of those who are

14 following your testimony. If you believe that a question is too

15 complicated or too confusing, ask the person putting it to you to rephrase

16 the question.

17 When the Defence said that they intended to call you as a witness,

18 the purpose of calling you as a witness was to enlighten the Judges with

19 regard to the general context in your country in 1992, 1993, the political

20 context, military context, the political, social context. All these

21 questions should enable one to understand the situation that prevailed at

22 the time. As a result, your testimony will be very important, all the

23 more important in that you were a judge at the Constitutional Court and

24 you were the Minister of Justice and you are also a professor of law. As

25 a result, we'll all be extremely interested in the answers you will be

1 providing us with. We have your report, and we'll be referring to your

2 written report and to the annexes.

3 Professor, I should also point out two other things. This is

4 something I do whenever a witness appears here. You have taken the solemn

5 declaration. You have declared that you will speak the truth. This

6 excludes false testimony. I don't need to insist on this.

7 There is another provision contained within our Rules. According

8 to this provision, if the witness believes that an answer he gives to a

9 question may subsequently be used against him to incriminate him, the

10 witness may refuse to answer such a question. This is a right contained

11 in the American -- in the US Constitution but also a right contained in

12 constitutional system.

13 If something of this nature should occur, the Chamber may compel

14 the witness to answer the question but the witness is guaranteed a form of

15 immunity. According to the American system it's the Prosecution that

16 guarantees this form of immunity, but on the basis of this procedure

17 within this framework it is the Chamber that guarantees this immunity. I

18 just wanted to point this out as it might be a matter of interest. It

19 should not really concern you.

20 So generally speaking, this is how we will be proceeding today,

21 Professor. We will have to have a break every hour and a half. We have

22 to have these breaks because there are interpreters who are assisting us

23 and it is necessary for them to have a break every hour and a half, and in

24 addition, since everything that is being said here is recorded on CDs,

25 it's necessary to change the CDs. This is why we need these technical

1 breaks, but it's also necessary for the witness to have a rest, because as

2 you will soon realise, to answer questions incessantly may be tiring. And

3 this is also necessary for witnesses to have a rest.

4 The hearing will finish at 7.00 p.m., and we'll have two 20- to

5 25-minute breaks in the course of the hearing. If you encounter any

6 problems, don't hesitate to inform us of the fact. We are here to deal

7 any problems that may arise in the course of your testimony.

8 You should be examined today and tomorrow. If it's necessary to

9 continue with your testimony after that, we'll continue on Wednesday, but

10 I think that the Victims and Witnesses Unit has taken all the measures

11 necessary to facilitate your stay here in The Hague and to ensure that you

12 can return to your country.

13 This is the information I wanted to provide you with before giving

14 the floor to the Defence. Defence will provide you with an additional

15 piece of information.

16 I see you have some documents before you. Don't use them as soon

17 as a question is put to you, because in theory as the procedure followed

18 here is purely oral, it is your testimony, your oral testimony that is

19 important. On the other hand, if you need a document to answer a

20 question, inform us of the fact and we will deal with the issue at that

21 stage. It might be necessary for you to consult some notes or documents

22 to answer some questions, but we'll deal with that when the time comes.

23 I don't know who will be conducting the examination-in-chief. I

24 believe it was Mr. Bourgon, who was hidden, but he isn't hidden any more.

25 MR. BOURGON: [Interpretation] Thank you, Mr. President. I should

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1 like to specify that the Defence will endeavour as soon as possible to

2 complete the examination-in-chief before the second break. That is within

3 a period of two hours, 30 minutes. Of course, that will depend on the

4 answers given by the witness.

5 Secondly, Mr. President, I should also like to point out that

6 during the examination-in-chief I will be referring first and foremost to

7 the report of the expert, which has now been admitted into evidence as

8 DH2044, as well as DH2044/E for the English version.

9 I would like to recall, Mr. President, that this report has nine

10 attachments and that I will be using some of those attachments during the

11 examination-in-chief.

12 As for the documents which are currently in the possession of the

13 expert, he has compiled three binders containing all the documents that

14 are referred to in the footnotes in his report. Each of those documents

15 has already been provided to the Prosecution, and I have binders with all

16 the documents that will be used if necessary.

17 Similarly, Mr. President, we have also provided all the parties in

18 the courtroom, and I think the registrar can provide the Chamber with the

19 three series of documents which are referred to and covered in the

20 footnotes. But to facilitate the proceedings, we have provided them

21 separately as they will probably be used.

22 JUDGE ANTONETTI: [Interpretation] You may continue.

23 MR. BOURGON: [Interpretation] Thank you, Mr. President.

24 Examined by Mr. Bourgon:

25 Q. Good afternoon, Professor. We have had the opportunity of meeting

1 yesterday and once again this morning, but for the purposes of the

2 transcript, allow me to introduce myself. My name is Stephane Bourgon,

3 and I am accompanied this afternoon by my colleague, Mrs. Edina Residovic,

4 and together we represent the accused General Hadzihasanovic.

5 Professor, I would like to ask you a few questions this afternoon

6 which focus on your report. I understand that your report contains the

7 specifics of your opinion, but my questions this afternoon will be in

8 order to provide maybe a bit of the context in which you provided those

9 answers.

10 Are you able to follow me in your own language?

11 A. Okay.

12 Q. Thank you, Professor. The first thing I would like to begin with

13 is simply to review your curriculum vitae and your experience as an expert

14 to testify in this case. And I would like, Professor, if you could help

15 the Trial Chamber and express what your academic background is in the

16 field of constitutional law.

17 A. Mr. President, Your Honours. I thank you for your questions,

18 attorney. As far as my academic career is, I graduated from the law

19 school in Sarajevo at the age of 24. I also acquired a masters degree at

20 the same faculty, and in 1975, at the law school in Sarajevo, I defended

21 my doctoral thesis on subject relating to constitutional law. After that

22 I was elected professor at the law faculty in Mostar. During the war, of

23 course, I was unable to teach, but immediately after the war I continued

24 my career at the Faculty of Law in Bihac in Bosnia-Herzegovina, again

25 teaching constitutional law.

1 Q. Thank you, Professor. Can you help the Trial Chamber with

2 information in regards to your teaching experience at the post-graduate

3 level?

4 A. I had the honour to be invited to hold several courses at

5 faculties of law in Zagreb, Split, Banja Luka, and Sarajevo at the Faculty

6 of Political Sciences. In addition, as I focused throughout my career on

7 constitutional law, I have published a number of expert and scholarly

8 papers among which I should like to underline my textbooks on

9 constitutional law.

10 I wrote one in 1989 and -- which covered, in addition to general

11 theoretical questions, the constitutional order of the former state. And

12 in the year 2000 a textbook I am still working with with my students that

13 covers the constitutional order of Bosnia and Herzegovina today. And in

14 this connection, I should point out that I covered the period of the

15 dissolution of the former Yugoslavia and the independence gained by the

16 Republic of Bosnia and Herzegovina, including the functioning of the

17 system of power in the course of the conflict in Bosnia-Herzegovina.

18 Q. Thank you, Professor. Have you published any other books or

19 monographies on any other topics or topics related to constitutional law?

20 A. You see, in Bosnia and Herzegovina -- or actually in the former

21 Yugoslavia already, there was a specific category under the term

22 "constituent people." This is a question that is not well known to

23 comparative constitutional law, and that is why I thought it important to

24 write a monograph on the question of constituent peoples. What prompted

25 me to prepare this book was the procedure in the constitutional court in

1 Bosnia-Herzegovina in 1998 when I supported the proposal on behalf of the

2 Presidency regarding the assessment of the constitution of Republika

3 Srpska, and this prompted me to write this book.

4 It may be of interests to note that for the needs of another

5 university textbook, I prepared a special document on international war

6 law, and more recently I have written several papers, and one that may be

7 of particular interest is the one on constitutional democracy in general

8 and particularly in Bosnia and Herzegovina.

9 Q. Thank you, Professor. I would like to confirm your answers to the

10 Presiding Judge a little earlier that in 1989, you were elected as a judge

11 of the Bosnia and Herzegovina Constitutional Court, that you were the

12 president of that court in 1990, and that after the war, in fact in March

13 2002, you have been elected as a judge in the Constitutional Court of the

14 Federation of Bosnia and Herzegovina.

15 A. Yes, that is correct. And I am still a judge in the

16 Constitutional Court of the Federation of Bosnia and Herzegovina.

17 Q. Thank you, Professor. Just to finish with respect to your

18 experience and knowledge in the field of constitutional law, you mentioned

19 to the Presiding Judge that you were for a period of time minister of

20 justice in the government of the Republic of Bosnia and Herzegovina. Have

21 you had any other positions that you occupied around that time frame in

22 the field of constitutional law?

23 A. I don't know to what extent my involvement in the peace process is

24 linked to constitutional law. I assume it is, because it was in that

25 capacity that I participated. I was not a political figure in the

1 negotiating process but was a sort of consultant for constitutional legal

2 matters as of the Cutileiro plan from 1992 up to the Washington and Dayton

3 agreements and their implementation.

4 Q. And finally, Professor, which position did you hold in 1994 after

5 being minister of justice and then the next position after that?

6 A. In August 1994, I accepted the position of ambassador of Bosnia

7 and Herzegovina in the Republic of Croatia, and I served my full term

8 there until 1998, after which I rejoined the Presidency of Bosnia and

9 Herzegovina as consultant for constitutional matters until I was elected

10 Judge of the Constitutional Court.

11 Q. Thank you, Professor. One last question in this area. On the

12 basis of your qualifications, your academic background, and your

13 experience, do you believe that you are qualified to provide the expert

14 opinion you have been requested to provide on the system of government in

15 the Republic of Bosnia and Herzegovina in the period of 1990 to 1993?

16 A. Of course it is not up to me to judge my own work, but I did

17 everything I could to work competently, and I should be very grateful if

18 the Trial Chamber and the Prosecution find that my report is acceptable

19 professionally.

20 Q. Thank you very much, Professor. I would now move on to the

21 preparation of the expert report itself, and my first question would be

22 when were you asked to provide this expert opinion, and who was the person

23 to -- who asked you to prepare this report?

24 A. It will be almost a year in May, because in May 2004, Mrs. Edina

25 Residovic who is counsel in this case asked me to prepare an expert report

1 about the questions you have mentioned.

2 Q. And can you help the Trial Chamber, Professor, what was the object

3 of the opinion you were requested to provide and what kind of instructions

4 you were given in order to prepare this expert opinion.

5 A. Mrs. Edina Residovic gave me a framework concept which she felt

6 was needed for this case, and on a page she listed a number of theses that

7 she felt should be professionally elaborated, and the approach mainly

8 consisted of providing an expert opinion of the overall constitutional

9 system in Bosnia and Herzegovina in that delicate period of time from the

10 standpoint of the functioning of the civilian authorities and their

11 relationship with the military authorities and finally the implications of

12 that general framework to the situation in the zone of responsibility of

13 the 3rd Corps, and that is what I have tried to do in my expert report.

14 Q. Thank you very much, Professor. Can you tell us whether the

15 report you have provided us with and which now I take this opportunity to

16 inform you has been admitted in evidence, whether this report corresponds

17 to the themes you were asked to cover in respect of the system in Bosnia

18 and Herzegovina?

19 A. I think that it almost fully corresponds to my own idea, the more

20 so as I had already elaborated that same concept in my textbooks and other

21 papers prepared for other purposes.

22 Q. Now, Professor, when you say almost fully corresponds, was there a

23 part of the opinion that was added during the preparation of the report,

24 and if so, how did this come about?

25 A. Actually, I had another consultation with Mrs. Edina Residovic

1 when I had prepared the first draft of my report, and she thought that

2 some matters were missing, primarily the question of regulations linked to

3 disciplinary responsibility within the army of Bosnia and Herzegovina.

4 Originally, I didn't believe that that was my task because I focused

5 mainly on civilian authorities, and I thought that this matter was more a

6 matter of internal organisation. So I didn't discuss it. However, I

7 accepted the suggestion and maybe 10 per cent was added to my final report

8 in the final version.

9 Q. Thank you, Professor. Can you please provide some information to

10 the Trial Chamber with respect to the material that was used in preparing

11 your report?

12 A. The most important materials that I used were certainly sources of

13 law, and I am referring to constitutional law, especially the

14 constitutional changes in 1990 when the Presidency intervened several

15 times in that area. Then a large number of decree laws passed by the

16 Presidency and some other regulations. I could find all this in the

17 collection of Official Gazettes of Bosnia and Herzegovina, and this was

18 extremely useful. I also used documents from available literature

19 relating to this period. And finally, I myself tried to provide a clear

20 overview, and I asked for certain annexes and tables to be made to

21 illustrate visually the issues addressed in my report.

22 Q. In your report, Professor, you have joined nine annexes. Can you

23 provide some information as to how these annexes were prepared and why you

24 thought it would be appropriate to join these annexes?

25 A. These annexes, apart from the first one which is my curriculum

1 vitae, correspond directly to the subject matter I dealt with. I took

2 official statistical data from the population census, particularly the one

3 from 1991, to support the thesis that this was a multi-ethnic society and

4 that the ethnic mix applied virtually to the whole territory of Bosnia and

5 Herzegovina. I also prepared certain tables and diagrams, for instance

6 annexes 6 and 7 have a schematic presentation of government in Bosnia and

7 Herzegovina before the war, and I think annex 8 shows how the armed forces

8 had civilian command, which I think is very important and that is why I

9 provided that annex. Then there are some other annexes from literature

10 such as maps used in the peace process, the Vance-Owen Plan, the

11 Owen-Stoltenberg Plan for Bosnia-Herzegovina, which can also fully

12 demonstrate the elements of the plan, and these presentations affect the

13 subject matter discussed in the report itself.

14 Q. Thank you, Professor. One last question with respect to the

15 preparation of the report. Can you confirm that your report which you

16 have given to the Defence represents your expert and objective opinion on

17 the questions which were posed to you by lawyers for the Defence?

18 A. Actually, I've already answered that question. I did my very best

19 to provide an expert opinion based exclusively on facts. So I think all

20 the things I have said can be supported by numerous documents and

21 unequivocally established facts, and the references are to be found in the

22 footnotes. And I always endeavoured to support each of my opinions with

23 factual material.

24 Q. Thank you, Professor. I now move on to the first part of your

25 report in which you discuss the manner in which the Republic of Bosnia and

1 Herzegovina was recognised as an independent and sovereign state. My

2 first question to you in respect of this section of your report is whether

3 from a constitutional law point of view the procedure which led to the

4 independence of Bosnia and Herzegovina was lawful and legal, and if you

5 can provide the context in this respect.

6 A. In answer to the first part of your question, I think it would be

7 best for me to say that the international community and the European

8 Community at the time and the member countries of the European Community,

9 followed by the United States and a certain number of other countries,

10 too, recognised Bosnia-Herzegovina as a sovereign and independent state.

11 Those countries would not have decided to do that had they any doubts as

12 to the lawfulness or legitimacy of the state independence of Bosnia and

13 Herzegovina.

14 I believe that the Trial Chamber certainly knows that during

15 efforts to resolve the crisis in the former Yugoslavia, the conference on

16 Yugoslavia set up the so-called Arbitration Commission chaired by

17 Mr. Badinter, was referred to as the Badinter Commission, and the

18 commission consisted of presidents of constitutional courts of a large

19 number of countries of the European Community at the time. They provided

20 answers to some highly sensitive legal questions involved in the crisis in

21 the former Yugoslavia. And when the countries which wanted to be

22 recognised, that is the former republics of Yugoslavia applied for

23 recognition, all those applications were submitted to the Arbitration

24 Commission, which provided an opinion as to whether all the requirements

25 had been met, the requirements as stipulated by a declaration of the

1 European Union summit, and opinion number 4 dated 15th of January, 1992,

2 the Arbitration Commission which I will refer to later on, but it found

3 that the pre-conditions required by Europe had been met, but they required

4 a referendum to be called at which the citizens of Bosnia and Herzegovina,

5 under international control, would state their opinion as to whether they

6 wanted Bosnia and Herzegovina to be a sovereign and independent state.

7 So in my opinion, these are arguments which unequivocally confirm

8 that the course of international recognition was legitimate and lawful.

9 As for the second part of your question, the context of these

10 events, I should like to state in summary form as more detailed discussion

11 is to be found in the expert report, we have to bear in mind two points as

12 providing the context. The former Yugoslavia at the end of the 1980s and

13 the beginning of the 1990s found itself within a process of dissolution of

14 communist and socialist systems in Eastern Europe. A system was falling

15 apart.

16 And another point that certainly has to be borne in mind is that

17 simultaneously, we evidenced a process of dissolution of a common state,

18 and efforts were made for Bosnia and Herzegovina to acquire state

19 independence, and on the ruins of the old system to develop a system of

20 civic democracy modelled on countries with a long tradition of such

21 democracies.

22 Q. Thank you very much, Professor. One more question on this topic.

23 In your report, you discuss that the old system was founded on a

24 single-party political monopoly, whereas this was different in the new

25 system. Can you elaborate on the major changes from the old system to the

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1 new system?

2 A. You yourself have already said that the old system was based on

3 state ownership, which we called social ownership, of the most important

4 means of production on a single party and a series of other elements which

5 characterised the system such as state planning, the limited effect of the

6 market, limited entrepreneurship, and a series of other characteristics.

7 Of course the transition to a system of civic democracy required a change

8 of those elements in the first place, and Bosnia-Herzegovina, while it was

9 still within the framework of the former Yugoslavia, undertook some

10 serious constitutional changes. This happened in the summer of 1990, when

11 still within the old system amendments were introduced to the constitution

12 of Bosnia and Herzegovina whereby, among other things, political pluralism

13 was introduced, that is the right of citizens to freely associate, to form

14 political parties, trade unions, associations, et cetera. Also with

15 respect to property relations and the market, priority was given to

16 private property, the free market, entrepreneurship. The system of

17 protection of human rights and freedoms was developed and many other

18 elements.

19 I should like to point out that similar processes took place in

20 the other parts of the former republics of the former Yugoslavia, but in

21 Slovenia, Croatia, and Macedonia, they were able, thanks to their own

22 political forces, to adopt an entirely new constitution which provided a

23 complete framework for an independent and sovereign state.

24 In Bosnia and Herzegovina, these questions, too, had started to be

25 discussed, but the positions of the main political proponents on these

1 matters differed to a great extent and especially so after the first

2 multi-party elections in Bosnia and Herzegovina, which took place in the

3 autumn of 1990. That is, two months after the constitutional amendments

4 had been adopted. And the new multi-party parliament endeavoured to

5 develop a complete text of the constitution, but their basic positions

6 differed primarily with regard to the future of Bosnia and Herzegovina.

7 And let me add, we will probably be coming back to that, according

8 to the results of the elections, the so-called national parties, that is

9 the parties that gave preference to national or ethnic interests of the

10 three peoples that were dominant in the population structure of Bosnia and

11 Herzegovina, they had completely diverse views regarding the future of

12 Bosnia and Herzegovina. The Serbian Democratic Party and some other

13 parties of Serb orientation insisted that Bosnia-Herzegovina remain within

14 Yugoslavia even though it was already clear that all attempts to

15 reconstruct the former state, and there were various proposals along those

16 lines, how the former state could be reconstrued, these attempts had

17 failed to find a new model of state organisation for the former

18 Yugoslavia. But nevertheless, these parties or, rather, the Serbian

19 Democratic Party was in favour of preserving Yugoslavia and for Bosnia and

20 Herzegovina remaining within Yugoslavia.

21 However, the SDA party, the party that gave preference to the

22 interests of the Muslims, as they were called at the time, who were during

23 the war renamed to become Bosniaks, they preferred a solution that would

24 preserve a common state but only on condition that both Serbia and Croatia

25 remained in that state. The reason for this was the ethnic composition of

1 Bosnia-Herzegovina at the time when there was a large Serb population in

2 Bosnia-Herzegovina and also a large body of Croats, whereas the majority

3 was in Croatia, the majority of Serbs in Serbia.

4 So the interests of Bosnia-Herzegovina was to establish a

5 favourable balance between Bosnia-Herzegovina and these neighbouring

6 states. So the crisis broke out when it became clear that the unified

7 state could no longer function and when Croatia and Slovenia had covered

8 much of the path to independence. So the end of 1999 was spent in these

9 difficult discussions about the possible constitutional solutions for

10 Bosnia-Herzegovina.

11 The constitutional commission of which I was a member in 1991 did

12 prepare a model of the constitution. Unfortunately, all the key points of

13 that draft provided for several alternatives which showed that no unified

14 position could be developed regarding the future set-up of Bosnia and

15 Herzegovina.

16 Q. Thank you, Professor. Now for a shorter question in terms of:

17 Did the Republic of Bosnia and Herzegovina hold a referendum, what was the

18 result of the referendum, and did Bosnia gain its independence and when?

19 A. This issue is dealt with at length in the report, of course, but

20 very briefly I would like to emphasise the fact that when the European

21 Community established the criteria according to which new states could be

22 recognised, it was necessary for each interested country to make an

23 application fairly rapidly. I don't have time to go into all the details

24 that preceded that event, but up until the 25th of December, which was the

25 deadline by which this should be submitted, there was a meeting of

1 presidents in Bosnia-Herzegovina which was -- at which this application

2 was submitted with all the necessary documents for such an application.

3 Unfortunately, the representatives of the Serbian Democratic Party, the

4 SDS, who in the Presidency and in the government who participated in the

5 Presidency and the government didn't want to support the application.

6 Although they had already previously organised structures of power in

7 Serbian municipalities, in the so-called Serbian municipalities and

8 Serbian autonomous regions.

9 And finally on the 9th of January, 1992, they declared the

10 existence the Serbian Republic of Bosnia and Herzegovina, which in August

11 1992 was renamed and called Republika Srpska. The SDS, the Serbian

12 Democratic Party, had already started working on the destruction of Bosnia

13 and Herzegovina, because they wouldn't accept the independence of Bosnia

14 and Herzegovina.

15 The arbitration commission established that Bosnia-Herzegovina met

16 the conditions as far as protecting human rights are concerned and as far

17 as other issues are concerned, but they came to the conclusion that the

18 Serbian representatives had not participated in drafting the application.

19 And then on the 15th of January, 1992, they stated that at that point in

20 time, in Bosnia and Herzegovina had not met the conditions for

21 international recognition, and this is the key sentence. This opinion

22 could be changed if the authorities, if the government in

23 Bosnia-Herzegovina holds the referendum under international control, a

24 referendum to which all the citizens of Bosnia and Herzegovina will be

25 called to and he the question as to whether they are in favour of a

1 sovereign Bosnia-Herzegovina. Sovereign Bosnia-Herzegovina. On the 25th

2 of January, 1992, the Assembly of Bosnia and Herzegovina issued a

3 declaration on holding a referendum which was held on the 29th of February

4 and on the 3rd of March, 1992, under international control, of course.

5 It's interesting to note that the constitutional definition of

6 Bosnia-Herzegovina was contained in the question put at the referendum,

7 and the question was as follows: Are you in favour of Bosnia and

8 Herzegovina as a sovereign state of citizens, equal peoples - and then

9 they listed the peoples, the Muslims, the Serbs, and the Croats, and other

10 ethnic groups - are you in favour of this state being independent?

11 Naturally the SDS, the Serbian Democratic Party tried to convince citizens

12 under its influence not to participate in the referendum, but the

13 participation of the citizens in the referendum confirmed the fact that

14 about 63 per cent of all those who voted in the referendum were in favour

15 of the independence of Bosnia and Herzegovina as a state.

16 On the basis of the results of the referendum, the European

17 Community and its Member States in April 1992 recognised Bosnia and

18 Herzegovina. On the 6th of April, that was done as far as Slovenia and

19 Croatia were concerned. Macedonia had problems with Greece because of the

20 name. Macedonia on the 7th of April was recognised by the USA, and that's

21 how Bosnia and Herzegovina was recognised.

22 Q. Thank you very much, Professor. Moving on to the period or

23 something you mentioned a little earlier concerning the SDS who adopted

24 the Serbian Republic of Bosnia and Herzegovina. Can you explain what was

25 the process used by the SDS, and what happened to this project before the

1 constitutional court of Bosnia and Herzegovina?

2 A. Since the main constitutional ideas differed among the political

3 parties at elections in 1990, the SDS, in autumn -- as of autumn 1991, had

4 already started creating para-states, Serbian municipalities, Serbian

5 autonomous regions and, later on in November, the Assembly of the Serbian

6 people of Bosnia-Herzegovina was also formed. In order to show that this

7 Assembly was legitimate, deputies elected in 1990 at the parliamentary

8 elections were asked to withdraw from the Assembly of the Republic of

9 Bosnia-Herzegovina and to form an Assembly of the Serbian people. That

10 was an Assembly that consisted of one nation. In addition to the SDS,

11 there were two deputies from the Serbian Radical Party. So in fact, they

12 established de facto authority in contravention of the constitution of

13 Bosnia-Herzegovina, which is what the Constitutional Court declared in its

14 decision of autumn -- in the autumn at the proposal of the government of

15 Bosnia-Herzegovina.

16 It's interesting to note that there was a similar situation with

17 the Croatian Democratic Union, the HDZ, because the HDZ ostensibly

18 supported the independence and sovereignty of Bosnia and Herzegovina, but

19 at the same time they formed institutions which were called cultural --

20 which were called a cultural and economic community. But in fact it acted

21 as a de facto authority in certain areas where the Croatian population was

22 in the majority but not always in the majority. There were other criteria

23 that were in force too. But in the autumn 1991, at the same time that a

24 legal system of power was established, there were para-state formations

25 that were formed under the SDS and under the HDZ.

1 Q. Thank you, Professor. Now, can you help the Court - help the

2 Trial Chamber, sorry - in explaining what was the constitutional impact of

3 the Constitutional Court about the projects and decisions adopted by the

4 SDS and the HDZ?

5 A. To answer the question, one should bear in mind certain things.

6 One should make a distinction between the legal consequences and the

7 factual consequences from the point of view of law, national and

8 international law, these entities were illegal entities because they had

9 not been created in accordance with the constitution which was what was

10 established by the Constitutional Court of Bosnia and Herzegovina. In any

11 case, from a factual point of view, it in fact had no direct effect

12 because those who had created these para-state entities didn't pay much

13 attention to the decisions of the Constitutional Court. They continued to

14 pursue their projects. And as far as the SDS activities are concerned,

15 this culminated in the declaration of the Serbian Republic of Bosnia and

16 Herzegovina subsequently renamed Republika Srpska. And the HDZ, after a

17 certain period of time, renamed this community and called it the Croatian

18 Community of Herceg-Bosna. And a decision of the Constitutional Court of

19 Bosnia and Herzegovina also exists with regard to this matter.

20 Q. Now, Professor, from a legal point of view, what is the validity

21 of any laws or decree laws or any other legal text adopted by the

22 authorities of either the SDS and the Serbs and the HDZ and the Croats?

23 A. Since there was a military force behind their decision, standing

24 behind their decisions and since the organisation of those entities

25 included the organisation of armed forces, this means that the armed

1 forces ensured the de facto implementation of their decisions. But on the

2 other hand, in the light of what I have already said, it's quite clear

3 that this couldn't be accepted by the local legal system and

4 international -- the international legal system couldn't accept it either.

5 And as far as the Croatian republic of Herceg-Bosna is concerned and

6 Republika Srpska later on, if we carefully analyse the peace agreement

7 with Bosnia-Herzegovina, better known as the Dayton agreement, we will see

8 that that agreement, too, does not recognise the Republika Srpska as such.

9 The Dayton agreement requires that the de facto constitution of Republika

10 Srpska at the time should be brought into line within three months with

11 the constitution of Bosnia and Herzegovina that was confirmed in Dayton.

12 The reasons for this why quite clear, and Republika Srpska really did have

13 to change to a significant extent its initial constitution.

14 I'd just like to point out that for example, in the first draft of

15 the constitution, Republika Srpska ti said that it was an independent

16 state of Serbian people and of members of other peoples. Naturally, when

17 you compare this with the Dayton constitution, but that doesn't concern

18 this dispute, then Republika Srpska is an entity. It's not a state, it's

19 an entity according to the constitution. And it's not just an entity

20 belonging to the Serbian people. Bosnia-Herzegovina is the state of

21 Bosniaks, Croats, and Serbs, and members of other ethnic groups including

22 the citizens of Bosnia-Herzegovina. This is just a digression to explain

23 what the initial situation was in Republika Srpska.

24 Q. Thank you, Professor. I would now like to move on to the existing

25 structure of the authorities on the level of the state, and that is the

1 socialist Republic of Bosnia and Herzegovina during the period of 1990 to

2 1992. My first question in this regard is how many levels of government

3 were there in the SRBiH during the period of 1990 to 1992?

4 A. There were only two levels. There was the state level with the

5 relevant institutions at that level. And I should like to emphasise the

6 fact that the content and organisation of the structure of power had in

7 fact been significantly changed as opposed to the idea of the single power

8 system, a single party system which was the former system.

9 As of 1990, the idea of a division of power as far as the

10 legislative [Realtime transcript read in error "logistics"] of executive

11 and judicial authority was concerned was accepted. So these institutions

12 functioned on the principle of the independence of power, was consistently

13 implemented more or less. To a significant extent, this division of power

14 was respected.

15 There was another level which was the municipal level.

16 Municipalities that hadn't significantly changed in the 1990s apart from

17 the fact that the multi-party system was adopted, in municipalities there

18 was a significant degree of independence. In addition to acting as an

19 organ of executive power of the state organs [Realtime transcript read in

20 error "arrogance"], it had a high degree of independence of when it came

21 to local issues.

22 It's perhaps not necessary to point out the fact that some towns

23 such as Sarajevo didn't have that much significance on the organisation of

24 power. Only Sarajevo had the status of a town with a number of

25 municipalities. It consisted of a number of municipalities.

1 Q. Before I go on, Professor, I would just like to make two

2 corrections to the transcript first on page 29, line 18, we see the word

3 logistics, and my understanding is that the correct word should be the

4 legislative, the executive and the judicial. And the second correction I

5 would like to make is at page 30 line 1 where the word arrogance I believe

6 should be the word state organs.

7 MR. BOURGON: [Interpretation] Mr. President, I wanted to draw

8 your attention to these questions.

9 JUDGE ANTONETTI: [Interpretation] Very well.

10 MR. BOURGON: [Interpretation] Thank you, Mr. President.

11 JUDGE ANTONETTI: [Interpretation] Very well. It's 25 to four. As

12 I said a while ago, we will have our technical break and we will resume at

13 about 4.00.

14 --- Recess taken at 3.35 p.m.

15 --- On resuming at 4.06 p.m.

16 JUDGE ANTONETTI: [Interpretation] We will now resume and I give

17 the floor to Mr. Bourgon is to continue with his examination-in-chief.

18 MR. BOURGON: [Interpretation] Thank you, Mr. President.

19 Q. Welcome back, Professor. When we left before the break, you

20 mentioned in response to one of my questions that in 1992, there were two

21 levels of government in the Republic of Bosnia and Herzegovina, namely the

22 municipal level and the state level. What I would like to do at this

23 point is to refer you to annex 3 of your report and ask you to comment on

24 this annex 3 in terms of the structure of the authorities on the level of

25 the Republic of Bosnia and Herzegovina in 1990.

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1 MR. BOURGON: [Interpretation] Mr. President, if necessary, the

2 witness could put the annex on the ELMO.

3 Q. [In English] Professor, I would simply like you to, using the

4 appointment and attachment 3 in your language on the ELMO, to point at

5 each box and provide some background information to the structure of

6 authorities.

7 A. I've placed the English version on the ELMO, in fact.

8 As I was saying, the structure of the authorities was based on the

9 division of power. The legislative power was in the hands of the

10 parliament of Bosnia-Herzegovina. The parliament, which was elected by

11 the citizens directly. These two levels of power were represented in the

12 Assembly of Bosnia and Herzegovina. We have the council of citizens, the

13 citizens directly elected deputies, and there's the council of

14 municipalities, the municipalities represented on an equal basis and the

15 citizens also directly elect one representative from each municipality.

16 Both Chambers of the parliament take decisions on an equal footing.

17 And then we have the executive authorities formed by the

18 Presidency of Bosnia and Herzegovina and the government of Bosnia and

19 Herzegovina, including ministries and other agencies.

20 In the Presidency of Bosnia and Herzegovina, in accordance with

21 the principle of the division of powers, it has legitimacy because all the

22 citizens of Bosnia and Herzegovina elected seven Presidency members at the

23 elections, and in that institution there is the principle of equality of

24 the three constituent peoples, at the time the Croats, the Muslims, and

25 the Serbs. Although the percentage they represented in the population is

1 quite diverse, as you are well aware. And then there is one member of the

2 Presidency who didn't declare himself to be a member of any of the three

3 constituent peoples but described himself as a member of other peoples.

4 As far as the Presidency is concerned, there is the chief of the

5 state. It represents the head of state. It's of great importance in

6 peacetime but especially in wartime. It has great importance and has an

7 expanded composition.

8 And finally there are the judicial authorities which forms a sort

9 of pyramid. There's a pyramid. You have first level and second level

10 institutions, and you have the Supreme Court of Bosnia and Herzegovina.

11 And as usual, they have jurisdiction. They're competent to deal with

12 criminal and civil proceedings. It depends on their actual and

13 territorial jurisdiction.

14 And then there is another special institution. It's the

15 Constitutional Court. Some call it the fourth body of power, but

16 naturally its primary role is to ensure that the constitution is

17 respected. In our case, it also had to ensure that the law was abided by,

18 and it also had certain other competencies.

19 Judges from the Constitutional Court were appointed by the

20 Assembly of Bosnia and Herzegovina at the proposal of the Presidency. So

21 there was the Constitutional Court and its structure. As I was a member

22 of the court at the time, it was balanced in terms of its national

23 composition, and at least formally speaking it was professional. It was a

24 professional body, because out of nine judges there were eight Ph.D.s.

25 So that would be the main scheme of the structure of the

1 authorities in peacetime when one expects that all these institutions of

2 power, all these bodies of power function normally.

3 Q. Thank you, Professor, you mentioned that the second level of

4 authority in that period was the municipal level. How would the municipal

5 level of government compare with what you see in annex 3 of your report in

6 terms of what organisations would you find at the municipal level?

7 A. A minute ago I said that municipalities had two functions.

8 Firstly to carry out decisions of the institution -- institutions of power

9 at the level of the state; and secondly, they were involved in local

10 self-management. They played these roles within an organisational system

11 that consisted of municipal assemblies. These were, let's say,

12 legislative bodies or representative bodies because the municipality

13 doesn't pass laws. It adopts decisions. They had the Statutes as the

14 most important document for the organisation of the municipality.

15 And deputies in municipal assemblies were directly elected by

16 citizens. Municipalities had their Presidency, and these presidencies had

17 an important role to play when an imminent threat of war had been

18 declared. And the Presidency in peacetime doesn't have a significant

19 role, in fact. It was the Executive Board that had executive power, and

20 it's analogous to the municipal body of power. The Executive Committee

21 consisted of heads of various departments. I won't say ministries.

22 That's not what they were called. They were called secretariats. For

23 example, there was one for economy, for finance, for housing issues, for

24 town planning, et cetera, et cetera. And the Executive Committee, apart

25 from carrying out the decisions of the Municipal Assembly, was also

1 responsible for coordinating various state administration organs, because

2 the heads of those organs were at the same time members of the municipal

3 executive committees.

4 Independently, the judicial authorities were independent of these

5 structures, and the low court, the so-called basic court, that's how it

6 was called, as a rule covered one or several neighbouring municipalities,

7 because not each municipality had such a low -- a lower court. But

8 municipalities in the vicinity of a town would usually be covered by one

9 municipal court.

10 I will also mention the -- the organisation in courts, although

11 that's something I have referred to in my report. There were higher

12 courts which could be either first level or second level, appeal courts,

13 when they dealt with appeals against decisions of first-level courts.

14 Then there was the Supreme Court at the top of the pyramid that represents

15 the judicial system in Bosnia-Herzegovina.

16 Q. Can you explain when this annex 3 reflects the structure of the

17 authorities immediately prior to Bosnia and Herzegovina gaining its

18 independence, that is in April of 1992? Was this the way the system

19 worked?

20 A. This was the structure of the authorities as stipulated by the

21 constitutional amendments of 1990. It doesn't differ significantly

22 organisationally, but substantially it did because on the basis of the

23 multi-party system after the elections, the structure of the Assembly of

24 Bosnia-Herzegovina and the municipal assemblies reflected the political

25 feelings and inclinations at each level, the level of each municipality.

1 One should not forget in the interest of explaining the genesis of

2 this whole matter that the constitutional development of the former

3 Yugoslavia was marked in particular by 1974 when the new constitution was

4 passed for that country and its republics, and this constitution

5 strengthened the position of the republics as states and at the level of

6 Yugoslavia a number of confederative elements were introduced. So this

7 was a forerunner to the subsequent break-up of the SFRY because the

8 republics were fully equipped institutionally and personnel-wise with the

9 exception of the military structure which continued to be highly

10 centralised, and of course the single-party structure which continued to

11 be centralised.

12 As to other forms of the system, they had a high degree of

13 independence and according to the constitution of Yugoslavia and their own

14 constitutions they had characteristics of statehood, and there was a basic

15 constitutional principle that all rights should be realised in the

16 republics and only those which the republics voluntarily deferred to the

17 federal state should be realised at the level of the federation. Whereas

18 in the institutions of the common state such as the Presidency and the

19 Chamber of peoples in the Assembly, there the republics were represented

20 on a parity basis. Republics as well as the autonomous provinces.

21 With respect to vital issues, a consensus had to be achieved among

22 all six republics and two autonomous provinces. So all this preceded the

23 gaining of independence of Bosnia and Herzegovina and some other former

24 republics.

25 Q. The next issue that you cover in great detail in your expert

1 opinion is the changes that took place in the structure of the authorities

2 upon a declaration of an imminent threat of war. My first question in

3 this respect is that on 8 April of 1992, when this declaration of an

4 imminent threat of war was made, we see that the SRBiH or the Socialist

5 Republic of Bosnia and Herzegovina became the Republic of Bosnia and

6 Herzegovina and that the "S" disappeared. Can you explain why this took

7 place?

8 A. First of all, the immediate threat of war was proclaimed because

9 on the day of the international recognition of Bosnia-Herzegovina, the 6th

10 of April, extensive, organised, and very forceful attacks were launched by

11 the Yugoslav People's Army supported by military units of the Serbian

12 Republic of Bosnia-Herzegovina or the army of the Bosnian Serbs against

13 towns and other targets of interest to them. That is why it was essential

14 to declare a state of imminent threat of war, and that is what the

15 Presidency did. In fact, only two days after the beginning of those

16 military operations.

17 The constitutional project that had already been envisaged, and

18 this is not unknown in other constitutional systems, that in the case of

19 emergencies, the system is adjusted to respond to those extraordinary

20 circumstances. The first thing that happens is that the parliament is

21 unable to function, and its prerogatives are taken over by the executive

22 branch of government, in this case the Presidency of Bosnia and

23 Herzegovina, which for that purpose is enlarged by the addition of the

24 president of the Assembly, the Prime Minister of Bosnia and Herzegovina,

25 and the commander of the republican staff, as it was known at the

1 beginning. Later on we will see that it was significantly transformed.

2 So these added members enjoy equal status as the original members of the

3 Presidency, if I can call them that.

4 Perhaps more significant than the actual membership are the

5 competencies of such an enlarged Presidency, because they acquire very

6 wide prerogatives and the Presidency is authorised not only to amend

7 existing laws and regulate certain areas, but it also is entitled to

8 change certain provisions of the constitution but not all of them. This

9 enlarged Presidency also had the authority to elect and appoint

10 individuals which would normally be done by parliament. So this was

11 extremely important. And of particular importance in such situations of

12 an imminent threat of war, the Presidency acquires a more important

13 position with respect to the civilian control over the armed forces.

14 Later on, this institution of civilian authority was further elaborated

15 through constitutional amendments and the passing of other regulations

16 relevant to this matter.

17 Q. Now, Professor, before we move on to annex 6 of your report, which

18 I believe illustrates what you have just said, I have one question

19 concerning an issue raised on your report and that is the level of the

20 district, because earlier you mentioned there were two levels, but I

21 believe in your report you mention a third level which is that of the

22 district. Where does that fit in in the organisation of the authorities?

23 A. A moment ago, I said that there were two levels, but we were

24 talking about peacetime conditions, that is municipal and state level.

25 However, even according to the regulations of the former Yugoslavia, that

1 is while Bosnia and Herzegovina was still a part of the former Yugoslavia,

2 a situation was provided for when in the event of an imminent threat of

3 war or a state of war, it is possible to form an intermediary level of

4 authority, and we shall see later that that is what actually happened in

5 August 1992 when a decree law was passed on the formation of districts.

6 And the entire territory of Bosnia and Herzegovina was divided up first

7 into seven districts, later on into ten, which had as their aim in line

8 with the general principle that I mentioned at the beginning that the

9 system had to adjust to the newly created situation and the whole

10 structure is mobilised in defence of the country.

11 Such a move, such a development is welcome, that is the

12 development of a district, because it will allow more effective defence.

13 The first reason being that the authorities of the State of

14 Bosnia-Herzegovina can more easily communicate with seven or ten

15 districts, because in wartime conditions, communications are difficult;

16 and secondly, such regional structures are better suited to the specific

17 situation that may develop in certain regions. And the focus and main

18 requirement in favour of forming such districts was to mobilise primarily

19 civilian entities to do everything in their power to strengthen the

20 country's defences.

21 True enough, at the beginning the military structure will also be

22 adjusted to this structure, but we will see later on that the military

23 structure was gradually separated from the civilian structure and a

24 separate line of command -- chain of command was established going from

25 the Presidency to the smallest unit of the BH army.

1 Q. [Previous translation continues] ... go to annex 6 of your report,

2 which describes the scheme of civilian control over the armed forces of

3 the republic. I would ask that you place the version of this annex in

4 your language on the ELMO and that you explain to us how this system

5 worked.

6 A. In this annex, we see the composition of the enlarged Presidency.

7 So that in addition to the seven directly elected members, there were

8 three other members attached on an equal footing. But what is even more

9 important is the influence of the Presidency over the other structures of

10 authority. And we will see that this top segment, which has to do with

11 the military chain of command, and a second segment, that is the Ministry

12 of the Interior, and through them relations with other civilian

13 authorities.

14 When talking about the functioning of the civilian command over

15 the armed forces, which is certainly one of the most sensitive and most

16 important questions of any democratic state that legitimately controlled

17 bodies should have control over the use of military force, and that

18 structure goes through the defence ministry, and in the defence ministry

19 we have to distinguish between the position of the minister and the

20 position of the Territorial Defence Staff of Bosnia-Herzegovina, as it was

21 called at the beginning, which was later renamed to the Supreme Command

22 Staff.

23 From the Supreme Command Staff, the chain of command at first went

24 towards the staffs, defence staffs of districts and municipalities, which

25 were also within the defence secretariat. And later in the course of

1 1993, the chain of command went directly through the military structure,

2 through the corps to lower-level military units.

3 When talking about the armed forces, apart from the army of

4 Bosnia-Herzegovina which was the core of the armed forces and the main

5 component of the armed forces, a component of the armed forces are also

6 the police and some other important structures, in point of fact, all

7 persons who are officially under arms. But the situation with the

8 Ministry of the Interior or the police differs significantly from the

9 military structure consisting of the army and its chain of command.

10 The police and the Ministry of the Interior is a civilian body,

11 and in principle it is responsible for the maintenance of law and order,

12 for the regulation of civic relations, for the maintenance of the

13 constitutional order in the civilian sense, whereas the time task of the

14 military structure is to defend the country from external attack but also,

15 should there be a rebellion or any other kind of military pressure against

16 the country it is responsible for that, too. And it is very important to

17 distinguish between these two chains of command, civilian command over the

18 armed forces, the army, and civilian control over other segments of the

19 armed forces, and the police in the first place.

20 Q. Thank you, Professor. I would now like to move to annex 7 of your

21 report, which I believe describes the structure of authorities at the

22 district level. And if you can place the annex 7 in your language on the

23 ELMO and explain to us how the authorities function at the district level.

24 A. The general principles that I have described for the functioning

25 of the authorities were implemented at district level as well, so that at

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1 the level of districts, there was a body which is in a sense a legislative

2 body, though even districts don't pass laws. They pass decisions.

3 Since districts only exist in wartime, there's no possibility for

4 the citizens to directly elect deputies to the district Assembly, and that

5 is why this Assembly for reasons of legitimacy is derived from municipal

6 assemblies, the composition of which were deputies legitimately elected at

7 elections. Therefore, every Municipal Assembly, which means the municipal

8 parliament, delegates a certain number of deputies to become members of

9 the district Assembly or parliament.

10 In view of the fact that the district Assembly is a rather bulky

11 body which is not always able to meet in wartime, the Presidency of the

12 district is formed composed as indicated here, and when the Assembly is

13 unable to meet the Presidency carries out the duties of the district

14 Assembly. Then there is also an Executive Board which acts as the

15 government at the district level, and it has heads of state administration

16 bodies, but in the case of districts and in wartime, these bodies are

17 quite narrow, so there has to be at least four secretariats at the

18 district level, and some districts, probably the more developed ones,

19 could form additional secretariats but upon permission from the Government

20 of Bosnia and Herzegovina.

21 In districts, we also have special organs, and I think they are

22 particularly interesting from the standpoint of what we are discussing

23 here. We have a district defence staff which is vertically linked to the

24 Supreme Command Staff, and it continued to function up until June 1993,

25 after which this position was taken over by corps because the military

1 chain of command was by then completed.

2 Then we had the Civil Defence staff, which was not under the

3 jurisdiction of the Supreme Command Staff but, rather, under the

4 jurisdiction of the republican Civil Defence Staff. And this again is a

5 civilian body focusing more towards the democratic district bodies and

6 vertically linked to the Civil Defence staff at the level of the republic.

7 I wish to draw attention in particular to what I was saying a

8 moment ago, and that is the police structure. The police structure was

9 organised within the Ministry of Internal Affairs of Bosnia and

10 Herzegovina, and it was centralised for the entire territory of

11 Bosnia-Herzegovina. And at the regional level, there were security

12 services centres. You will note that these centres are not called

13 district centres but simply security services centres, though as a rule

14 their area of responsibility did coincide with the territory of the

15 district, and the actual operative body which is part of this police

16 system is the public security station or what we know as a police station

17 which exists in every municipality, and in larger towns there can be

18 several police stations.

19 What is important is that from the police station through the

20 security services centre right up to the Ministry of the Interior there's

21 a centralised, vertical chain of command and communication. True, police

22 organs and security services centres also have horizontal contacts, but

23 they do not receive orders from regional or local authorities but are only

24 duty-bound to provide those authorities with so-called security

25 information about the security situation in a particular area. And if

1 these district or municipal bodies have any initiatives in that respect,

2 it is their duty to address those initiatives to the Ministry of the

3 Interior which will, if necessary, pass on that initiative down their

4 chain of command.

5 And finally, we have the communications and information centre,

6 which is a centre for technical matters. And I didn't really delve into

7 their own competencies, but the name itself speaks for itself.

8 Q. Thank you, Professor. I would now like to come back to annex 3 of

9 your report and to look at the second organisational chart included in the

10 report, the one which displays the structure of civilian and military

11 organs in Travnik in 1993. I would ask that you take the version of this

12 annex in your language and that you place it on the ELMO. The second one,

13 yes.

14 Now, in respect of this particular annex, without going through

15 every part of the annex, I would first ask that you explain the organs of

16 the Travnik municipality going downwards.

17 A. Before that, I think it would be a good idea to say that this is

18 an even more complicated chart, which includes the functioning of the

19 military structure going from the Presidency down to Travnik municipality,

20 then the civilian structure. And on the right-hand side of this chart we

21 have the de facto authorities of the HVO, which was developing its own

22 parallel structure of both civilian and military authorities. However,

23 that structure did not come under the jurisdiction or civilian control of

24 the Presidency. It had its own chain of command going from the Presidency

25 of the Croatian Community, later the Republic of Herceg-Bosna through

1 staffs right down to the HVO military units. And I believe Your Honours

2 have had occasion to learn about this. The Croatian Defence Council or

3 the HVO was a specific entity, in my view unknown in democratic systems

4 when both the civilian and the military component were united

5 organisationally and personnel-wise. So the HVO at the level of the whole

6 of Herceg-Bosna and later at the level of each municipality where they had

7 power combined both the civilian and the military powers.

8 To highlight the specific situation in Travnik, we have to take

9 note of a new category for this whole story, and that is that since a

10 large part of the territory of Bosnia and Herzegovina was under the de

11 facto control of Republika Srpska and de facto control of the Croatian

12 Defence Council and that military operations were ongoing throughout the

13 territory of Bosnia-Herzegovina, the legal authorities treated these

14 territories as occupied territories. And in the documents of the official

15 authorities, when the state of war was proclaimed, it was noted that 70

16 per cent of the territory of Bosnia and Herzegovina was under the de facto

17 control of these para-statal entities.

18 Of course, every legal government, and this is part of

19 international law, does not recognise occupation, and that is why it forms

20 institutions for those areas as well. But as those institutions of

21 authority cannot function at all in those territories, we have what are

22 known as dislocated institutions of authority. And Travnik may be a good

23 example of this, because since the district of Banja Luka was under the de

24 facto control of Republika Srpska and since this area consisting of some

25 12 municipalities leaning on Banja Luka and that were in the area of

1 responsibility of the 3rd Corps, there was a massive influx of refugees.

2 We can't call them refugees because they're in their own countries.

3 Displaced, persons, rather, who arrived in the territory under the control

4 of Bosnia and Herzegovina. And that is where these dislocated bodies were

5 formed consisting of all the authorities that I described when talking

6 about districts and municipalities, and when legislative, executive, and

7 judicial bodies had to be formed, and soldiers know this better than me,

8 including military structures that had the attributes of being from

9 occupied territories.

10 So this chart shows how sensitive the situation was with respect

11 to the functioning of the system coupled with the problems that we had in

12 communications with the central authorities in Sarajevo who were under

13 siege throughout the war so that communication with the authorities in

14 Sarajevo was extremely difficult, in some situations quite impossible.

15 If you may have any specific question about this, I would be glad

16 to and he. I think to explain each of these details would take a lot of

17 time. I think it is the principle that matters.

18 Q. Professor, if I look at this chart, can you explain in what way

19 this chart illustrates the fact that the military is under civilian

20 control and that the military is also separate and distinct from the

21 civilian authorities?

22 A. Well, this chart in fact displays the vertical relation, so to

23 speak, in colours, and there's the civilian vertical that's also

24 represented. The military structure goes through municipal and district

25 staffs towards the Supreme Command Staff or, rather, through the Supreme

1 Command Staff up to the Presidency of Bosnia and Herzegovina, which is

2 without doubt a civilian body that was legitimately elected. Later there

3 would be changes that I have already mentioned.

4 As the armed forces were built up, it gradually became less

5 necessary to form district and regional staffs -- and municipal staffs and

6 they would disappear by the summer of 1993. And the chain of command

7 was -- only went through the corps and the brigades. I don't know what

8 the names of all these military formations are, but it was an exclusively

9 military chain of command.

10 So even units formed of citizens from the territory of, let's say,

11 the Banja Luka district, even they were under the direct control of the

12 Presidency of Bosnia and Herzegovina. On the other hand, the civilian

13 bodies, with regard to the Ministry of the Interior, also had vertical

14 relations. And as far as the other bodies of power are concerned, the

15 situation was a little more particular. There was a relation of

16 subordination when it came to carrying out state rules and regulations.

17 And there was a degree of autonomy when it came to the responsibility of a

18 district or the constitutional responsibility of a municipality.

19 Q. To be a little bit more specific, Professor, I would just like to

20 use one example which would be that of the CSB Banja Luka, which appears

21 to have a line upwards, vertical relationship to the Ministry of the

22 Interior, and at the same time a relationship to the Banja Luka district.

23 Can you explain a little more the difference between those two lines?

24 A. Well, in fact it all has to do with the territorial or personal

25 application of law. Here we're dealing with the personal application of

1 law. The MUP, the Ministry of the Interior or, rather, the CSB in Banja

2 Luka, the security services centre, is vertically related to the Ministry

3 of the Interior in Sarajevo, to the M-U-P, the MUP. But it has personal

4 responsibility for the displaced population from Banja Luka, or rather

5 from the Banja Luka region. Whereas the Travnik CSB, which is also linked

6 to the MUP in Sarajevo, has territorial responsibility for all issues that

7 the MUP would usually be responsible for.

8 So this is a specific situation that we encounter in wartime, and

9 it is not customary in law. Territorial elements and -- elements of the

10 territorial application of law and of the personal application of law are

11 combined.

12 Q. Thank you, Professor. A question related to the civilian police.

13 This chart illustrates or does not provide any line of command and control

14 from the military to the civilian police. Was that always like that or

15 was it possible for the military, the army, to exercise command and

16 control over the civilian police?

17 A. If you look at the system, naturally I can't talk about factual

18 cases that I'm not familiar with, but if you look at the system in force

19 and given what I could see in the documents, it wasn't possible for the

20 army to influence the civilian police. On the contrary. A number of

21 documents demonstrate that it was clearly understood that there was a

22 difference between the responsibility of the civilian and military police,

23 between military units and civilian police units. They were held

24 accountable in different ways. The line or the chain of command was

25 different. When they had a joint task to carry out, then there were joint

1 orders from the military and from the civilian authorities on forming,

2 let's say, joint patrols consisting of members of the civilian and of the

3 military police. It would be stated that the military police would only

4 be responsible for members of the military, whereas the civilian police

5 would be exclusively responsible for civilians.

6 So in the documents that I had, I didn't come across any

7 information according to which the army influenced the police force.

8 Naturally, if there were any incidents, I know nothing about that, but

9 that does not affect the principle that I have mentioned.

10 Q. Professor, wrote it have been possible to subordinate the civilian

11 police to the army?

12 A. Only in exceptional circumstances would that occur. And since

13 we're dealing with irregular incidents, then there must be a decision of

14 the Presidency, the Supreme Command of the armed forces, according to

15 which in some military operation certain police forces will be engaged.

16 But as far as I understood, the Presidency had to clearly define the

17 event, the contingent, the force, and the participation and how the

18 participation of the military police in an operation would take place.

19 And in such a case, the police -- armed police forces would be

20 subordinated to a given military unit, but naturally this was always

21 treated as an exceptional situation given the distinction of

22 responsibilities of the civilian and military bodies.

23 Q. [Previous translation continues] ... I would like to cover on this

24 chart before moving on, and that is the Municipal Staff of civilian

25 protection. I would like to know whether this organisation is a civilian

1 or a military organisation, what its duties are, and to which organisation

2 is it accountable to.

3 A. As the term itself says, the term "civilian protection," this body

4 is a civilian one, a civilian body which functioned and existed both in

5 peacetime and in wartime. It still exists today. There is a civilian

6 protection system, and it's responsible for providing the civilians with

7 all forms of assistance, to provide them with shelter if war breaks out,

8 to protect cultural and historical monuments, to clean up the terrain

9 after military operations have been conducted, to supply the citizens in

10 such exceptional circumstances. It had a series of such civilian tasks to

11 be carried out.

12 Then and today, too, members of the civilian protection had

13 different characteristics. They never wore military uniforms. They

14 always wore blue overalls and carried out the work they had to do.

15 In an organisational sense, they were within the system of the

16 Ministry of Defence. That's true, but the composition of the civilian

17 protection staff was appointed by the government as well -- the commanded,

18 too, was appointed by the government. And this shows that it was a

19 civilian body, although it might be strange given that there was a

20 commander, given that it is called a staff, et cetera. But the assumption

21 was that they operated in exceptional circumstances, or among other

22 things, they would operate in exceptional circumstances, and then it was

23 necessary to have a clear chain of command. I assume that is the reason

24 for which the terms command and staff were used, but otherwise, according

25 to its composition, its responsibilities, et cetera, this body was without

1 a doubt a civilian body.

2 Q. Thank you, Professor. I would now like to move to another area

3 you cover in your report and that is the proclamation of a state of war,

4 and one issue which you cover, namely the adoption of a platform by the

5 Presidency. Can you provide the Trial Chamber with some information in

6 respect of the proclamation of a state of war and the adoption of the

7 platform?

8 A. By virtual proclaiming a state of war one could see that the

9 circumstances were exceptional. The idea of state of the war means that

10 it is necessary to mobilise all the men and all the other resources for

11 the defence of the country. Naturally you can mobilise people. You can

12 organise them to carry out a certain objective if you clearly define the

13 objectives for which it is necessary to organise oneself. And I think

14 that this is why the Presidency platform was of exceptional importance.

15 In a certain sense, it provided a motive, the political basis.

16 If you have a look at the contents of the platform, you'll see

17 that this platform affirms the values upon which the entire territory of

18 Bosnia and Herzegovina is based. The principle of national equality is

19 emphasised, the principle of democratic institutions and relations is

20 emphasised, human rights and freedoms are guaranteed. And I want you to

21 pay attention to one fact in particular. In that document which proclaims

22 state of war, the Presidency clearly state that had they were in favour of

23 a peaceful solution of the situation in Bosnia and Herzegovina, and they

24 even mentioned the principles that the Presidency would abide by in order

25 to find a peaceful solution to the conflict in Bosnia-Herzegovina and in

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1 order to deal with the crisis in the former Yugoslavia.

2 It's not strange that the Presidency required that if further

3 discussions were to be held the legal authorities had to be respected. It

4 was necessary to cease all hostilities. It was necessary to prosecute war

5 criminals. And there are other factors that were mentioned that were

6 necessary if there is to be a peace process. And naturally the Presidency

7 was demonstrating that it was ready to participate in international

8 attempts to solve the crisis in Bosnia-Herzegovina.

9 However, if I may consider myself as a -- someone who can analyse

10 these events, they went further than the constitutional solutions from

11 1992. In order to lay to rest the objections that there was an

12 international conflict in Bosnia, the Presidency mentioned certain

13 solutions, announced certain solutions that the purpose of which was to

14 confirm the idea of nationality equality.

15 At the beginning of my testimony I mentioned the structure of the

16 Assembly of Bosnia-Herzegovina. I said there were two Chambers, Chamber

17 of Representatives and the Chamber of municipalities. This platform made

18 the following proposal and naturally this wasn't contained in the

19 constitution but they announced the council of peoples within the Assembly

20 of Bosnia-Herzegovina. And the members of the constituent peoples were

21 supposed to be co-represented and vital national interests were to be

22 protected within that system. So that was a response to the specific

23 situation. And apart from this defence force in Bosnia and Herzegovina,

24 it was necessary to support these constitutional categories that I

25 mentioned earlier on. And the principle of national equality was to be

1 emphasised more than in 1990.

2 Q. Thank you, Professor. I would now like to move to a different

3 topic which is the judiciary in Bosnia and Herzegovina, and I refer you to

4 paragraph 93 and following of your report.

5 In your report, you explain that the civilian judiciary was as

6 follows: Misdemeanour courts at the lowest level, followed by municipal

7 court or basic court, normally seated in each municipality, but of course

8 there were a lesser number of courts than there were of municipalities,

9 followed by the higher court which could either be a first instance court

10 or an appeals court for the municipal court, followed by the Supreme

11 Court, which was the level of appeal for the higher court and some duties

12 at the first instance but nothing to do with criminal law.

13 Is this the way the judiciary functioned in Bosnia and

14 Herzegovina?

15 A. Yes. I briefly referred to the structure of the judiciary when I

16 was describing the three branches of power. I mentioned the courts that

17 existed. Naturally the judicial system included these lower or, rather,

18 basic courts, which were the first-level ones, the first-level courts that

19 dealt with criminal cases and civil cases of lesser importance. Then

20 there was the higher court, which would deal with appeals against

21 decisions rendered by the lower courts. But it also functioned as a

22 first-level court in cases that were more serious. Appeals against their

23 decisions would be referred to the Supreme Court of Bosnia and

24 Herzegovina, which is the second-level court for criminal cases and civil

25 cases. And the most serious crimes would be dealt with by this court when

1 it came to appeals, and they would render final decisions on such cases.

2 This Supreme Court had one additional function, and that was to

3 control the executive bodies of power. So certain documents from the

4 government or from ministries or other BH bodies could be controlled by

5 the Supreme Court only in order to ensure that the constitution was

6 respected in those documents. If the constitutionality or legal nature of

7 a document, a decree, et cetera, was in question, then as is the case in

8 all other countries throughout the world, the supreme -- the

9 Constitutional Court deals with such issues. The Constitutional Court

10 ensures that documents abide by the -- by general acts of general

11 documents, whereas the Supreme Court deals with individual documents.

12 In addition to this structure, we have the public prosecutor's

13 office, and in criminal cases has the responsibility to carry out

14 investigations, to request that investigations be carried out, to bring

15 indictments and to do everything else prescribed by the law.

16 One should not forget to mention misdemeanour courts, which one

17 could call police courts. As a rule, they are part of the administrative

18 authorities because they deal with minor offences against law and order,

19 minor traffic violations, minor traffic offences. So crimes that don't

20 present such a danger to society. So these courts don't really have the

21 same status as regular courts as far as their responsibilities are

22 concerned, because their jurisdiction is limited by misdemeanors.

23 It's a different case in wartime. This is a new case, because --

24 this is a different situation, because military and district courts and

25 district military prosecutor's office come into the system, are introduced

1 into the system. Their purpose is primarily to protect values that have

2 to be protected for the country, and they are part of the regular judicial

3 authorities, because appeals against the decisions of the District

4 Military Court are referred to the regular Supreme Court of

5 Bosnia-Herzegovina and this ensures that the law is applied in the same

6 way in civilian and in military courts. What is specific is that it has a

7 specific nature when it comes to its real, its actual jurisdiction. But

8 as far as the procedure is concerned and the guarantees for a fair trial,

9 military courts are in no way different than civilian courts. It's true

10 that judges at military courts are appointed by the government of

11 Bosnia-Herzegovina but at a proposal from the minister of defence. And

12 naturally junction ever district courts are appointed in this manner. It

13 is necessary to distinguish the competence of military and regular courts

14 but I've tried to provide you with a detailed explanation of this subject.

15 Q. [Previous translation continues] ... one question I had for you

16 was whether a member of the army could be tried before a civilian court,

17 that is either the misdemeanour court, the municipal court or the higher

18 court, and if so, in what situation?

19 A. Members of the military could be tried by civilian courts if they

20 perpetrated a crime together with a civilian, and the regular court would

21 have jurisdiction to deal with such a case. Naturally if a soldier

22 committed an offence as a civilian, if he had been speeding or had

23 disturbed the law and order, he would be tried by a regular court as a

24 citizen. But in all other cases, military courts or, rather, the District

25 Military Court was responsible for members of the military. But there is

1 a second-level court, and I have emphasised this already.

2 Q. Now, to provide you with an example, Professor, if a civilian and

3 a member of the army are involved together in burning a house, which is a

4 civilian house, and this has not -- no relation with the conflict, which

5 type of court would handle this case?

6 A. If we assume that it's not a military building of no interest for

7 the defence of the country, then it would be the civilian court that would

8 have responsibility to try the case, both for the civilian and for the

9 member of the military.

10 THE INTERPRETER: Could Defence counsel please wait for the

11 interpretation to finish.

12 MR. BOURGON:

13 Q. [Previous translation continues] ... and a member of the army are

14 involved together in the killing of a civilian neighbour in a context that

15 is not related to the armed conflict, which type of court would handle

16 this situation?

17 A. The answer would be the same.

18 Q. I'm sorry, Professor. I will have to repeat my question which was

19 not in the transcript, and my question at the beginning was if a civilian

20 and a member of the army are involved together in the killing of a

21 civilian neighbour in a context that is not related to the armed conflict,

22 which type of court would handle this situation? And your answer was "it

23 would be the same," and I take this to be a civilian court.

24 A. That's correct. I didn't want to repeat the same thing again. If

25 the case is of no military relevance, then the civilian court will try

1 both the member of the military and the civilian.

2 Q. Professor, the issue of the special military court which you cover

3 in your report, can you in a few words explain what was the special

4 military court.

5 A. In our language we'd say "special military court." It's quite

6 clear that military units are often on the move. They're involved in

7 military operations. Sometimes they don't have access to military courts

8 or to military prosecutor's office. Yet the events of great importance

9 for the conduct of military operations. For example, there's a rebellion

10 in a military unit. Someone refuses to obey an order. Other soldiers are

11 incited to rebel, et cetera, et cetera. These are very serious events and

12 it's not possible to get involved in lengthy court proceedings.

13 In such cases, according to a Presidency decree, the commanders of

14 certain units were authorised to form these special military courts.

15 Although that's not what it says in these regulations, but in theory I

16 would say that these are ad hoc courts, temporary courts formed for a

17 particular situation. In the documents I didn't notice that it was

18 established as an independent institution. Such courts would be

19 established for a specific situation, and the composition, the procedure

20 was such that the reaction was prompt. It was rapid, expeditious, and it

21 was necessary for such courts to be able to hand down the death penalty,

22 naturally if they were justified in doing so. So theoretically speaking,

23 I'd call it a court-martial. They could hand down the death penalty, and

24 if they didn't hand down the death penalty, it was their responsibility to

25 refer the case to the regular military prosecutor's office so that the

1 prosecutor, the military prosecutor could continue to work on the case.

2 However, it's necessary to point out that even if this court was a

3 special court, this decree did provide certain minimal guarantees

4 according to which the rights of the person concerned would not be

5 violated, because there are two levels in the proceedings. There's a

6 Chamber. It was necessary to have a defence council. That was

7 obligatory. And a number of other documents also show that there's a

8 minimum -- a minimum sort of democratic procedure was ensured.

9 It's true to say that I couldn't come across any information

10 showing whether this was a mass phenomenon. I don't know to what extent

11 this was resorted to, but if it had been used extensively, I believe that

12 there would have been media coverage of such events. But given the

13 documents that I haven't seen, I didn't notice there was a mass

14 appearance.

15 Q. [Previous translation continues] ... the Army of the Republic of

16 Bosnia and Hercegovina what possibilities existed in order to take

17 measures and punish a member of the army for a violation?

18 A. I would say that the situation was analogous to the situation in

19 the civilian sector. Apart from the regular courts, there were

20 misdemeanour courts. The army is a closed system, and the relations

21 within the army are very clearly defined. The relations between soldiers,

22 between soldiers and their officers, between the higher and lower command,

23 their rules of conduct in the army, in their institutions in their units,

24 et cetera, et cetera. So it's realistic to expect that these rules will

25 sometimes be violated, and as a result there is a system for military

1 misdemeanors, for disciplinary measures much, and as I have said at the

2 beginning, this is not something that I dealt with in the first draft of

3 my report, but I subsequently had a look at the rules that regulate this

4 matter, and I noticed that in these cases the superior commander had

5 certain authorities when it came to minor offences. In such cases, the

6 commander could issue cautions, take certain measures, and the most severe

7 penalty would be handed down, a 30-day prison sentence in a military

8 prison. Then there was a disciplinary and misdemeanour court which could

9 issue penalties for more serious misdemeanors. The penalties were more

10 severe in such cases.

11 For example, military promotion would be banned, sentences of up

12 to 60 days in prison would be handed down, and there were certain other

13 penalties that were more severe. And it's important to point out that in

14 such misdemeanour proceedings, there would be a Bench dealing with the

15 case, and the proceedings would take place at two levels. There was the

16 possibility of appeal, in other words, and the Ministry of Defence formed

17 a second-level disciplinary court which would hear appeals from these

18 misdemeanour or disciplinary courts in military units.

19 Q. Thank you, Professor. On the basis of the answer you have just

20 given concerning the types of courts which existed and where a member of

21 the army could be the object of proceedings, I would like you to answer

22 the following question: If someone wanted to know all proceedings

23 instituted against the members of a military unit such as the 3rd Corps

24 over a period of time, where would that person have to look?

25 A. If I have understood your question correctly, it's necessary to

1 bear in mind everything that I have been saying about the judicial system,

2 both the military and civilian judicial system, because in one situation

3 you might be held accountable before the civilian organs, and in another

4 situation before military bodies, and disciplinary and criminal

5 proceedings could be instituted.

6 So in order to establish whether a member of the military was

7 charged for some sort of offence, whether of a military or civilian

8 nature, it's necessary to try and obtain the information on such an

9 offence in a number of places. First one should see whether the person

10 has been punished as a citizen for some misdemeanour. It's also necessary

11 to see whether he appeared before regular courts with another civilian.

12 It's necessary to establish whether the military prosecutor's office took

13 any action against such an individual, and this should be found in the

14 archives of these institutions. Then it would be necessary to go to the

15 regular courts and to public Prosecutors to see whether this individual

16 was charged together with some civilian.

17 And then if we turn to the military bodies, it's necessary to see

18 what sort of measures the commander took for disciplinary offences if any

19 offences were reported. It's necessary to see what the military and

20 misdemeanour court undertook with that respect, and it's necessary to see

21 whether the military prosecutor took action against the individual in

22 question. And then finally, it would be necessary to establish whether

23 the District Military Court and finally the Supreme Court of

24 Bosnia-Herzegovina had issued a legal decision with regard to the

25 behaviour of such a member of the military. So you would require quite a

1 lot of time in order to gather all that information.

2 Q. Thank you, Professor. I have one more question I wish to cover

3 before we take the break, and that is with respect to the application of

4 the Criminal Code in Bosnia and Herzegovina. I would like you to explain

5 or provide details to what you say in your report as to which Criminal

6 Code was in force in the period from 1992 and 1993.

7 A. With a reservation that I am not a criminal law expert and that I

8 haven't followed with the same amount of attention the developments in

9 criminal law as was the case with constitutional matters, nevertheless I

10 did look into the regulations linked to this question and I was able to

11 establish the following: When Bosnia and Herzegovina became an

12 independent and sovereign state with certain minor adjustments it took

13 over the Criminal Code of the former SFRY but only the segment related to

14 those criminal offences which have to do with violations of international

15 obligations and those affecting state security or protection of the

16 constitutional order. What the Criminal Code of Yugoslavia prescribed

17 could by analogy be applied to Bosnia-Herzegovina which took over many

18 international obligations. For instance, obligations under international

19 humanitarian law and the Geneva Conventions in particular. And it was

20 necessary for domestic laws to sanction violations of each of the

21 provisions of the Geneva Conventions. And this was done very early on, at

22 the very beginning of the armed conflict. And as I mention in the report,

23 a decree law was passed and the takeover of the Criminal Code of

24 Yugoslavia, and this was published in the Official Gazette number 2 in

25 1992, which means at the very beginning of the conflict.

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1 However, conscious of the fact that the danger for society of

2 violations of the law are much graver in wartime, the authorities of

3 Bosnia-Herzegovina have repeatedly strengthened sanctions that were

4 prescribed for peacetime either in the Yugoslav Criminal Code or in the

5 Criminal Code of Bosnia-Herzegovina, the substantive law which was adopted

6 in the meantime. And by a decree passed at the beginning of the war,

7 published in the Official Gazette number 11 through 1992, the penalties

8 were increased for these mentioned criminal offences, and an additional

9 penalty was introduced, that is the confiscation of property of those who

10 in addition to regular penalties need to have their property confiscated.

11 And it was also important, if a certain offence was committed with

12 the same of spreading ethnic hatred and intolerance which was particularly

13 important during the conflict, then the special qualification which was

14 considered an aggravating factor was added, that is if such an offence was

15 committed for -- out of ethnic hatred or to fan intolerance.

16 So there were several instances of the authorities of

17 Bosnia-Herzegovina taking over laws from the former Yugoslavia. For

18 instance, the Official Gazette number 21 of 1992 also refers to

19 stricter -- the introduction of stricter penalties.

20 As for criminal procedural law, it was more or less taken over in

21 its entirety from the former Yugoslavia, because procedure is procedure.

22 It doesn't matter which country we're talking about, on condition that it

23 was a democratic country providing guarantees that a normal democratic

24 society provides. And that is why the Law on Criminal Procedure was taken

25 over. And then later on it was adjusted to wartime conditions, because

1 certain guarantees that are envisaged by criminal procedure are simply

2 impossible to implement during wartime.

3 Thus, for instance, the law and criminal procedure --

4 Q. Professor, I think we will have to stop because we are running

5 into the technical time that we have to stop.

6 MR. BOURGON: [Interpretation] Mr. President, I will need a

7 maximum of ten to 15 minutes to finish with this witness.

8 Q. [In English] I will ask you during the break simply to look at the

9 handout given to you. It's in the side of your documents. It's a handout

10 like this. I would ask you during the break to look at documents 8, 9,

11 10, and 11, and the question will be whether this confirms what you were

12 just explaining about the sanctions that could be awarded by the courts in

13 wartime.

14 Thank you very much, Professor?

15 MR. BOURGON: [Interpretation] Thank you, Mr. President.

16 JUDGE ANTONETTI: [Interpretation] We're going to have the break

17 now, and we will resume at 6.00.

18 --- Recess taken at 5.37 p.m.

19 --- On resuming at 6.03 p.m.

20 JUDGE ANTONETTI: [Interpretation] Mr. Bourgon, you have the floor.

21 MR. BOURGON: [Interpretation] Thank you, Mr. President.

22 Q. Welcome back, Professor. Just before we left, I asked you to take

23 a look at documents 8, 9, 10, and 11. And my first question relates to

24 the first three documents, 8, 9 and 10. I would like you to explain

25 whether these three documents is what you were referring to when you said

1 that the Presidency because in times of war wanted to give harsher

2 penalties and sentences for a variety of crimes. Can you going over

3 quickly documents 8, 9, and 10 and confirm that this is what you were

4 referring to.

5 A. If I'm looking at the right documents, in my view there's no

6 doubt, in my opinion, that 9 and 10 is what I was referring to, probably

7 11 as well. But number 8 is a report only the Executive Board meeting of

8 Bugojno municipality. That's number 8. Is that the document you're

9 referring to? No. That's number 7. No. That's my mistake.

10 Yes, from 8 onwards does relate to what we were talking about,

11 regulations passed by the Presidency designed not only to issue harsher

12 sentences but to introduce additional measures to sanction behaviour from

13 which there was grave social danger. And in this first document there are

14 eight new measures envisaged in addition to the penalty, dismissal from

15 duties, stripping of rank, a ban of appearing in public. All this aimed

16 to have a preventative effect and punish criminal behaviour more strictly.

17 Q. Thank you, Professor. I would like you to look at document number

18 9, and inside this document to Article 2.

19 MR. BOURGON: [Interpretation] The document I'm referring to,

20 Mr. President, is a new document, and I ask the permission of the Chamber

21 to use this document. It has been disclosed to the Prosecution. It is a

22 document addressing the same issues as the two documents shown during the

23 previous hearing, that is DH2042 ID and DH2043 ID, marked for

24 identification.

25 JUDGE ANTONETTI: [Interpretation] The Prosecution. No objection?

1 MS. HENRY-BENJAMIN: Mr. President, the Prosecution has no

2 objections.

3 JUDGE ANTONETTI: [Interpretation] Mr. Bourgon, please continue.

4 MR. BOURGON: [Interpretation] Thank you, Mr. President.

5 Q. [In English] Professor, if you can look at Article 2 of this

6 decree law, and I will just read it in English where it says: "After

7 Article 6, a new Article 6(A) and 6(B) are added, stating," and then we

8 look at Article 6(A), "also a person who takes life of another because the

9 national intolerance will be published for the criminal act of murder."

10 Is this what you were referring to a little earlier when talking

11 about intolerance and harsher penalties?

12 A. I said that because we are dealing with an inter-ethnic conflict

13 and to have a preventive effect, this criminal act, criminal offence was

14 introduced, that is if a criminal offence is conducted prompted by the

15 desire to spread ethnic hatred, and this provision confirms what I was

16 saying.

17 Q. And can you confirm, Professor, that the punishment of death was

18 attributed to such a crime?

19 A. Yes. That would be the worst sentence that can be pronounced,

20 which means that this offence was considered to be of the greatest social

21 danger, the greatest threat to society.

22 Q. Moving on to document number 11. Can you explain what this

23 document is and the relation between these documents and the decree laws

24 adopted by the Presidency before the 1st of June, 1994?

25 MR. BOURGON: [Interpretation] Mr. President, this document,

1 unfortunately, is a new document which is not available in English or in

2 French, and in view of its length, we were unable to have it translated

3 for today's sitting. It is a document which the Chamber asked to see

4 following the testimony of the previous witness, Judge Ahmetovic.

5 JUDGE ANTONETTI: [Interpretation] You can ask the witness to tell

6 us the title and date and identify the document.

7 MR. BOURGON: [In English]

8 Q. Sir, can you identify this document and explain what the document

9 does in relation to decree laws adopted by the Presidency.

10 A. Before I answer this question, I should like to ask the

11 interpreter or the registrar to increase the volume a little bit because

12 I'm having difficulty hearing the translation.

13 As for your question, in the theory of law and in comparative

14 constitutional law, in all situations when the system envisages the

15 introduction of special powers for the executive branch of government, it

16 is democratic practice for those special powers to be used only

17 exceptionally because -- when parliament cannot meet. As under conditions

18 of a state of war, it was virtually impossible to convene such a large

19 Assembly of Bosnia-Herzegovina, then the Presidency issued a number of

20 decrees with the force of law. When the Assembly did meet in full, and

21 this happened, according to this document, in June 1994, that was a

22 superintendent for the Presidency to submit for ratification all decree

23 laws which it had passed in the meantime. And we have here a list of all

24 those decrees and other acts of the Presidency ending with number 364,

25 which means that the Assembly ratified all laws listed here whereby they

1 became laws in the strict sense of the word.

2 If there were Presidency acts which are not listed here, those

3 acts cease to be valid as of this moment. Of course, I didn't compare

4 this list with all the acts passed by the Presidency, but I assumed that

5 virtually all the Presidency decisions taken were ratified by the Assembly

6 in June 1994.

7 Q. Thank you, Professor. I now move on to asking your opinion on the

8 basis of the system of authorities or of government that you explained in

9 your report and ask you your opinion on a few issues, the first question

10 being whether in your opinion the system in place in 1992 and 1993 ensured

11 the civilian control over the army of Bosnia and Herzegovina.

12 A. I beg your pardon. I didn't hear the first part of your question.

13 I'm afraid I didn't hear the first part of the question because the volume

14 wasn't switched on. I'm still having some difficulties because there's a

15 buzzing sound, but I understood the question, whether within the system

16 that I have described, whether civilian control over the armed forces

17 functioned. Was that the question?

18 Q. Yes, it was.

19 A. Judging by the documents I had available to me, I was able to come

20 to the conclusion that during this period of time there was civilian

21 control over the armed forces and that it was implemented according to the

22 order which I presented a moment ago.

23 Q. Thank you, Professor. My second question relates to the civilian

24 bodies during the period 1992 and 1993. In your report, you have

25 highlighted a number of problems which affected the work of these

1 organisations. I with like to know if in your opinion the civilian

2 organisation and bodies continued to function despite these problems.

3 A. The theory of comparative constitutional law views criteria of

4 legitimacy and legality of institutions in wartime are reduced to some

5 extent as required by the circumstances. In my previous presentation and

6 in my report in much greater detail, I cautioned and drew attention to the

7 problems encountered by the civilian authorities in Bosnia and

8 Herzegovina, but I think that basically the legality of institutions was

9 preserved throughout this period and which, perhaps, could be confirmed by

10 the peace agreement for Bosnia and Herzegovina which confirms the

11 international legal continuity and the internal legal continuity of

12 Bosnia-Herzegovina.

13 Q. My next question is whether on the basis of the system in place in

14 1992 and 1993 the 3rd Corps of the Army of the Republic of Bosnia and

15 Herzegovina could exercise control or influence the work of the judiciary,

16 namely the District Military Court.

17 A. Referring exclusively to constitutional law and the system, there

18 were no systemic possibilities for any military influence over civilian

19 courts. I am not claiming that there may not have been certain instances

20 in practice. It's not up to me to speak about facts, but I am speaking

21 about the system as such.

22 Q. My next question is whether the system in place in 1992 and 1993,

23 in your opinion prevented the 3rd Corps from exercising command and

24 control over the civilian police other than in exceptional circumstances

25 as approved by the Presidency.

1 A. Again, from the standpoint of the system, there are no regular

2 channels on influence of the military structure over the civilian police.

3 The exception is the Presidency decision, which needs to be looked into in

4 each particular case, that is whether there was any such decision by the

5 Presidency and whether it was implemented. So again we come to a

6 difference between the system and the actual facts.

7 Q. My next question, Professor, is whether the system in place in

8 1992 and 1993 prevented the 3rd Corps of the army of the Republic of

9 Bosnia and Herzegovina to exercise any command and control or influence

10 over civilian institutions including, for example, the municipal War

11 Presidency or the civilian protection staff.

12 A. [No interpretation].

13 MS. HENRY-BENJAMIN: Mr. President, may I interrupt. We're not

14 getting the translation.

15 THE INTERPRETER: The interpreter apologises. The volume was not

16 switched on. I'm sorry.

17 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, can you deal with

18 the problem?

19 THE WITNESS: [Interpretation] I'm having a problem with the sound.

20 THE INTERPRETER: The interpreter did not switch on her

21 microphone. I apologise.

22 JUDGE ANTONETTI: [Interpretation] Let's try again. Mr. Bourgon,

23 will you put that question again and see whether it works.

24 MR. BOURGON: [Interpretation] Thank you, Mr. President.

25 Q. Professor, the question was as follows: Whether the system in

1 place in 1993 and towards, of course, the end of 1992, prevented the 3rd

2 Corps of the army of the Republic of Bosnia and Herzegovina to exercise

3 any command and control or influence over civilian institutions including,

4 for example, the municipal War Presidency or the civilian protection

5 staff.

6 A. I seem to understand that there were two questions, whether there

7 was any obstacle in achieving the system of command within the military

8 structure starting from civilian control by the Presidency down to

9 military units. Of course there is not something I did not investigate in

10 actual fact but only how things were regulated by laws. And as I said at

11 the beginning of today's hearing, this was regulated in some detail.

12 As for the second part of the question, whether the military had

13 influence over the civilian authorities, be they municipal or district

14 authorities or civilian protection staff, in the system there is no

15 possibility of influence. But in actual fact, since the Staff Commander

16 was a member of the municipal Presidency under the old system and not in

17 the new, I don't see how it could bring any influence to bear over the

18 civilian structure of authority.

19 Q. In your report, Professor, you highlight orders issued by the

20 commander of the 3rd Corps, which highlight the fact that there was a

21 clear distinction to be made between the civilian police and the military

22 police. My question is whether on the documents you have seen you can say

23 that there was a practice amongst all units of the 3rd Corps to issue such

24 orders and whether the orders issued corresponded to the applicable law at

25 the time.

1 A. You're asking me a very complicated question in view of my

2 position. I didn't have insight in a lot of documents of the 3rd Corps,

3 but I did encounter documents in which the 3rd Corps Commander made a

4 clear distinction in a letter addressed to the security services centre in

5 Zenica. He said in that document quite clearly that the army had

6 completed its military operations and withdrawn from the area, and now

7 that it was the duty of the security services centre to take over

8 responsibility for any disorders. So it follows from this that he

9 understood quite clearly what everyone should do under such circumstances.

10 Or we mentioned the example when they need to act together, that is the

11 military and civilian police when there is coordinated action between the

12 military and civilian official who is responsible for these matters and

13 a -- clear instructions were given as to how the civilian and the military

14 police should act. Now, whether the other commanders within the 3rd Corps

15 acted in that manner, I do not know.

16 Q. Thank you, Professor. You mentioned the word "coordinated action

17 between the military and civilian officials who were responsible for these

18 matters." In your report, you talk about the principle of cooperation,

19 which is something that has evolved over time and which led to the

20 issuance of an instruction at the end of 1993. Can you explain this

21 principle and how it worked?

22 A. As in the introduction, we spoke about the functioning of the

23 military vertical chain of command and the functioning of the civilian

24 authorities on the other hand, including the Ministry of Internal Affairs.

25 It can clearly be seen from this that the responsibilities are clearly

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1 designated with respect to the authorities of Bosnia and Herzegovina.

2 However, at lower levels those authorities may engage in cooperation, and

3 I mentioned with respect to the security services centre or the defence

4 staff it was their duty to provide information about the situation in

5 their area of responsibility, but they could not receive orders from local

6 or regional civilian authorities, orders to military or police structures.

7 Q. Thank you, Professor. My next question deals with the

8 relationship between civilian authorities and the army but in the other

9 way, and more specifically whether the system in place created the

10 possibility for civilian institutions such as the War Presidency of a

11 municipality to exercise some type of influence or command and control

12 over units of the 3rd Corps.

13 A. In view of everything presented so far in explanation of the

14 system that was functioning, such a possibility did not exist, though of

15 course if we recall that in the common state of Yugoslavia, at the level

16 of municipal presidencies and Territorial Defence staffs, there was a

17 connection between the civilian and military authorities, and that in

18 people's consciousness there may have been a feeling that the civilian

19 authorities should have some influence, but systemically there was not

20 envisaged.

21 In reviewing the documentation that I had at my disposal, I came

22 across certain instances when the civilian authorities endeavoured to

23 impose not only on military authorities but also on judiciary bodies which

24 should be fully independent their influence. And a moment ago when we

25 were looking at the documents on footnotes or, rather, the attachments, in

1 document number 8 we have an example when the Executive Board of Bugojno

2 suggested to misdemeanour courts how to impose stricter sentences or when

3 they said that certain contracts approved by the court should be

4 re-examined by the executive bodies such as the public attorney.

5 I came across another document from Bugojno in which the local SDA

6 party organisation - I may not remember the exact term used - whether it

7 was -- it gave its approval or it was merely consulted as to who would be

8 appointed to the position of commander of the local military units.

9 So these are examples which show that there may have been

10 deviations in practice, but according to the system that I have described,

11 such practice was illegal.

12 Q. Thank you, Professor. I just have one last question for you. It

13 is a topic which you cover in your report towards the end when you discuss

14 the Vance-Owen Plan as well as the Owen-Stoltenberg Plan. And I would

15 simply like without going over everything you have mentioned in your

16 report about these two plans, provide the Trial Chamber with an idea of

17 the context in which these plans were negotiated, their impacts on the

18 functioning of the system in place, and what happened in both cases.

19 A. The Vance-Owen Plan was negotiated for a long time, and it was

20 signed on the 2nd of May, 1993. But representatives of the Serbian

21 Democratic Party expressed certain reservations. They said that their

22 signature would be valid if the Assembly of the so-called Republika Srpska

23 confirmed such a signature. Such confirmation was not provided

24 subsequently, and in a certain sense the Vance-Owen Plan fell through.

25 This plan envisaged the establishment of ten provinces in Bosnia

1 and Herzegovina. It envisaged amending the constitutional structure of

2 Bosnia-Herzegovina and envisaged ten provinces. And the intransitory

3 solutions were interesting. The solutions it concerned the deployment of

4 military forces when the Vance-Owen Plan was being implemented. It stated

5 which provinces would be under the exclusive control of the Republika

6 Srpska army, which ones under the exclusive control of the HVO, and which

7 ones under the exclusive control of the BH army.

8 According to the chart we have attached, provinces 8, 9 and 10

9 were provinces in which the HVO and the BH army were to play a joint role.

10 And in the field, this was taken to mean that certain forces should

11 establish military authority as soon as possible, military control over as

12 much territory as possible. And according to a record or an order, a

13 decision from the War Presidency in Travnik, in that document we can see

14 that two days after the Vance-Owen Plan had been signed an attempt was

15 made to restructure the municipal authorities and to establish a municipal

16 Presidency in which Croats and Muslims would participate on an equal

17 footing. In a certain sense, this meant that this would ensure the direct

18 implementation of the Vance-Owen Plan.

19 According to the Owen and Stoltenberg plan, this plan was a result

20 of the peace initiative of the then-President Tudjman and Milosevic. They

21 suggested that in Bosnia and Herzegovina, three national republics should

22 be formed. On the basis of the principle that wherever one of the peoples

23 was in the majority, that is where that people should have its republic.

24 It would be called the Croatian republic, the Bosniak republic, and the

25 Serbian republic. And Bosnia and Herzegovina would in fact have

1 disappeared as a result. It would just -- it would have just been turned

2 into or transformed into an unstable union of three republics that had the

3 responsibility of international recognition and also the possibility of

4 seceding from such a union.

5 Naturally, this plan was never implemented, because all the

6 parties had certain reservations in relation to the plan. But it was the

7 most fatal plan for the state of Bosnia and Herzegovina and for a peace

8 solution. But it also had certain results in the field in that there were

9 attempts to legalise the military situation in the field and to ensure

10 that one had control over as much territory as possible.

11 We know that the Owen-Stoltenberg Plan was never in fact

12 implemented. It was discussed after the Vance-Owen Plan fell through.

13 That from autumn 1993 up till the end of 1993, because at the beginning of

14 1994, intensive preparations were under way for the Washington Agreement,

15 and that is when the USA became seriously engaged in the peace process.

16 And through the Washington Agreement, the basis for a peace plan, for a

17 solution to the crisis in Bosnia-Herzegovina was laid.

18 Q. I may have, Professor, one more question for you in relation to

19 your last answer. Were you involved in the discussions and the

20 negotiations leading to the Vance-Owen Plan, and if so, are you in a

21 position to provide an opinion on the attitude of the HVO towards the

22 implementation of this plan?

23 A. Well, in fact I would be changing my position as a witness when

24 answering this question. I think I should continue to testify as an

25 expert witness, to testify about the contents of that plan. I was, as I

1 have said at the beginning of my testimony, that quite by chance I was

2 there as an expert. That was my function in the course of those

3 negotiations, and naturally I had nothing to do with the political

4 decisions. But there is no doubt that the HVO with regard to areas where

5 there was a common interest, they were interested in taking over power in

6 certain areas. In certain municipalities, as far as I know, this was in

7 fact done.

8 Q. Thank you very much, Professor. I have no more questions at this

9 stage. Thank you very much.

10 MR. BOURGON: [Interpretation] Mr. President, that concludes the

11 examination-in-chief of this witness. Thank you.

12 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Bourgon. I'll

13 now give the floor to Mr. Kubura's Defence team if they have any questions

14 for this witness, for the expert witness.

15 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President. This

16 was -- or he is an expert witness for both Defence teams, and we have no

17 questions for this witness.

18 JUDGE ANTONETTI: [Interpretation] Very well. You have no other

19 questions, no additional questions to put to the expert witness. It's 20

20 to seven. We have another 20 minutes. Would the Prosecution prefer to

21 commence their cross-examination now or would you prefer to wait until

22 tomorrow morning? Ms. Benjamin, it's your choice.

23 MS. HENRY-BENJAMIN: Mr. President, I would prefer the opportunity

24 to start afresh tomorrow morning, please. Thank you.

25 JUDGE ANTONETTI: [Interpretation] Mr. Trnka, Professor, Defence

1 counsel has just completed its examination-in-chief. The second stage is

2 the so-called cross-examination, which will commence tomorrow morning, and

3 it is Ms. Benjamin who will be conducting the cross-examination.

4 As you have taken the solemn declaration, you did so at the

5 beginning of this afternoon, you are now a witness testifying in the

6 interest of justice. You are no longer a witness for the Defence, because

7 you are a witness who is testifying in order to establish the truth. This

8 means that you should not meet anyone until the hearing commences

9 tomorrow. You shouldn't meet any representatives of the Defence or of the

10 Prosecution. I just wanted to point this minor procedural matter out to

11 you.

12 In a few minutes we will adjourn. Please contact the Victims and

13 Witnesses Unit to ensure that you are here at the beginning of the morning

14 since the hearing will commence at 9.00. And I believe that we should be

15 able to conclude your testimony here at The Hague by 1.45 tomorrow unless

16 there are other questions or Judges' questions that will mean that we have

17 to work beyond this time.

18 I will see everyone tomorrow at the hearing at 9.00.

19 --- Whereupon the hearing adjourned at 6.42 p.m.,

20 to be reconvened on Tuesday, the 1st day of

21 March, 2005, at 9.00 a.m.

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