1 Thursday, 2 February 2006

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 8.04 a.m.

5 JUDGE ROBINSON: Will the Registrar call the case, please.

6 THE REGISTRAR: Good morning, Your Honours. This is case number

7 IT-02-54-T, the Prosecutor versus Slobodan Milosevic.

8 JUDGE ROBINSON: Thank you.

9 Mr. Nice, you're for the OTP, and who is with you?

10 MR. NICE: Today I am assisted by Ms. Dicklich as ever, Mr. Coo,

11 Ms. Kotseva, Ms. Dragulev, Ms. Rebecca Graham and Mr. Randall, all of whom

12 have been involved at various times in various ways in the exercise of

13 trying to obtain documents.

14 JUDGE ROBINSON: Thank you. And for Serbia and Montenegro?

15 MR. OBRADOVIC: [Interpretation] Your Honour, on behalf of the

16 government of Serbia and Montenegro, today we have the honour of appearing

17 before you, and we are Mr. Svetislav Rabrenovic, secretary in the office

18 of National Council for Cooperation with the International Criminal

19 Tribunal; then we have Mr. Vladimir Cvetkovic, as of recently a colleague

20 of mine in the embassy of Serbia and Montenegro in The Hague and who

21 personally acted upon a request from the Prosecution in a matter we'll be

22 discussing today and he will be able to tell you more about it and expound

23 our positions.

24 My name is Sasa Obradovic. I'm the first secretary of the embassy

25 of Serbia and Montenegro in The Hague.

1 Your Honour, I should like to take advantage of this opportunity

2 right at the outset of this morning's session to request that the

3 discussion about the documents be conducted in closed session, or private

4 session.

5 JUDGE ROBINSON: Thank you. Thank you.

6 MR. OBRADOVIC: [Interpretation] Thank you.

7 JUDGE ROBINSON: We have motions filed by the Prosecution for

8 relief under Rule 54 bis, and we also have a motion for protective

9 measures filed by the government of Serbia and Montenegro. Today's

10 hearing will last approximately an hour. Each side will have 20 minutes

11 to present its arguments, and we'll also set aside time for a reply and

12 for any other ancillary matters.

13 The Chamber had directed the parties to focus their attention on

14 certain issues which we identified, and I expect the submissions to be so

15 focused.

16 [Trial Chamber confers]

17 JUDGE ROBINSON: Mr. Obradovic, may I just seek a clarification

18 from you. Are you asking that the entire hearing be in private session or

19 just those portions of it in which reference may be made or will be made

20 to the documents?

21 MR. OBRADOVIC: [Interpretation] Thank you, Your Honour, for asking

22 the question. It's a technical one. At this point in time, bearing in

23 mind the confidentiality of these proceedings and the confidential

24 information that both sides have presented in their written submissions,

25 we are not in a position in advance to foresee when and how long we're

1 going to need to go into private session. That is why we should like to

2 request that the entire session this morning be held in private session,

3 closed to the public, so that we can freely present our views and

4 positions, which don't only have to do with confidential documents which

5 the Prosecution is seeking from us but relate to the confidentiality of

6 the proceedings and relationship and cooperation between the organs of

7 Serbia and Montenegro in these matters.

8 JUDGE ROBINSON: Thank you. Mr. Nice.

9 MR. OBRADOVIC: [Interpretation] You're welcome.

10 MR. NICE: I had intended to start in open session, if there was

11 no objection, but I can recognise that it may be quite difficult to

12 partition the hearing out between those parts that need protection and

13 those that don't, because many of the filings that would be referred to or

14 may be referred to are of themselves confidential, as is the underlying

15 material.

16 JUDGE ROBINSON: Very well. We'll have the hearing in private

17 session.

18 [Private session]

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11 Pages 47783-47815 redacted. Private session.

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1 (redacted)

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6 [Open session]

7 JUDGE ROBINSON: Mr. Milosevic, please continue.

8 WITNESS: BRANKO KOSTIC [Resumed]

9 [Witness answered through interpreter]

10 Examination by Mr. Milosevic: [Continued]

11 Q. Good morning, Professor Kostic.

12 A. Good morning, Mr. Milosevic.

13 Q. Yesterday, where we left off, you said that this session of

14 Slovenia entailed fewer problems because there were no inter-ethnic

15 conflicts in Slovenia. I wanted us to look at the comments on that topic

16 by Borisav Jovic in this film, and I asked for that short clip to be

17 played. Can it be done now, please.

18 [Videotape played]

19 JUDGE ROBINSON: There is a problem with the sound.

20 THE ACCUSED: [Interpretation] There should be sound. This is

21 something different, nothing to do with my clip. I would like them to

22 play Jovic with sound.

23 [Videotape played]

24 THE INTERPRETER: "[Voiceover] At the same time it means a lot of

25 destruction and a lot of victims.

1 "[Previous translation continues] ... the attack. All they

2 needed was the nod from the most powerful republic, Serbia, but they were

3 in for a surprise.

4 "I said very clearly then that it's pointless to discuss and

5 disagree with Slovenes and to wage war with them because the Slovene

6 situation is clear. They have an ethnically pure republic, no territorial

7 disputes.

8 "It doesn't bother us at all if they leave Yugoslavia."

9 MR. MILOSEVIC: [Interpretation].

10 Q. Thank you. The rest does not bear on the topic.

11 So, Jovic said the same as you?

12 A. Well, Jovic also said that there were no inter-ethnic or civil

13 disputes in Slovenia. The problem of war did not arise, and the problem

14 was much simpler, generally speaking, because the population was

15 homogenous. I believe over 95 per cent of Slovenes.

16 Q. That is clear.

17 THE ACCUSED: [Interpretation] But I want to point out to you,

18 Mr. Robinson, this translation is completely wrong, because Jovic does not

19 say at any point that Serbia had no interest in it. That is again a

20 forgery. We were not able to hear it. If you really want to hear what

21 was said, let the interpreters interpret what he said in the Serbian

22 language, and what was written in the subtitles is absolutely not correct.

23 This is not the first example of this. It just goes to show that

24 this entire series is completely falsified.

25 JUDGE BONOMY: All we have, though, is the translation by the

1 interpreter, which is accurate, is it not?

2 THE ACCUSED: [Interpretation] I did not listen to the

3 interpretation. I listened to what Jovic said in Serbian, but I looked at

4 the subtitles in English, and it's completely incorrect.

5 JUDGE BONOMY: But the interpretation into English in the

6 transcript does not make any reference to Serbia. So you shouldn't be

7 concerned about it.

8 THE ACCUSED: [Interpretation] I'm concerned about the fact that

9 this was exhibited, whereas the translation in subtitles is completely

10 wrong. You could see that back when Mr. Nice played a film in which you

11 can see what I was saying about Kosovo Polje and the translation was

12 completely incorrect. Mr. Robinson made interpreters do it and redo it

13 twice in order to show that the subtitles were completely wrong. But let

14 us move on now.

15 MR. MILOSEVIC: [Interpretation]

16 Q. Please, Professor Kostic, tell us very briefly what happened at

17 the Ohrid meeting and what was written in the Ohrid peace declaration of

18 the 22nd of July, 1992 [as interpreted].

19 A. The Ohrid meeting was attended by the full Presidency of the SFRY

20 and all presidents of republics or, alternatively, presidents of

21 Presidencies of republics of the former Yugoslavia. The Ohrid declaration

22 that was adopted at that time, true in the absence of Mr. Tudjman who

23 walked out on that session, appealed to the same principles that the

24 European Community upheld at the time and that we in the Presidency had

25 agreed and harmonised several times, the same principles that we at the

1 session of the Presidency of the 5th of September agreed unanimously and

2 which Mr. Mesic presented at the inaugural conference of The Hague peace

3 conference on the 7th September in The Hague.

4 Q. In tab 20 --

5 MS. UERTZ-RETZLAFF: Your Honour. There is a mistake in the

6 transcript. We are talking about the Ohrid declaration and it's 1991, but

7 in the transcript it says 1992.

8 JUDGE ROBINSON: Thank you, Ms. Uertz-Retzlaff. That's noted.

9 MR. MILOSEVIC: [Interpretation]

10 Q. So in tab 20, you have this Ohrid declaration. We are not going

11 through the entire text. It says: "We have to put a stop to the use of

12 force which has taken human lives and continues to do so and moves us ever

13 further from our vital interests. These interests are democratic

14 development, respect for individual and collective rights and civil

15 liberties. All this can be achieved only in peace. We, the participants

16 in this meeting between war and peace, declare that we are unanimously and

17 categorically in favour of peace."

18 This is basically the spirit of the Ohrid meeting and declaration.

19 Is that expressed here?

20 A. Yes.

21 Q. And then in the penultimate paragraph, it says: "The president of

22 the SFRY Presidency, Stjepan Mesic, and the president of the Republic of

23 Croatia, Dr. Franjo Tudjman, demanded the unconditional withdrawal of the

24 Yugoslav People's Army to garrisons, which was not accepted by the

25 majority of participants in this meeting and hence they have not assented

1 to including this in the text of the statement." Is that correct?

2 A. That's true. Mr. Tudjman and Mr. Mesic both continued insisting

3 that the Yugoslav People's Army should withdraw into its barracks, and at

4 the same time they obstructed the decisions and conclusions adopted

5 several times by the SFRY Presidency to first disarm all the paramilitary

6 units whose number already exceeded the total number of JNA personnel in

7 the whole territory of Yugoslavia.

8 Q. What paramilitary units are you talking about?

9 A. Well, the police force in Croatia over two months increased from

10 17.000 to 19.000. In addition to that, the Home Guards Corps was set up.

11 We're still talking about the time when Yugoslavia was one country, all

12 the system was functioning, all the institutions. The JNA and the

13 Territorial Defence were the only legal armed forces. At that time,

14 Croatia set up the Home Guards Corps, the ZNG, and then they massively

15 armed them and their citizens with illegally smuggled arms. They armed

16 members of the HDZ, the Croatian Democratic Union, on the basis of their

17 political affiliation.

18 And of course, withdrawing the JNA into barracks at the time when

19 there was serious tensions and inter-ethnic conflicts in certain areas of

20 Croatia, especially those areas with majority Serb population, withdraw of

21 the JNA into barracks would have certainly met physical destruction of the

22 Serb people in those territories and complete ethnic cleansing.

23 Let me point out this: Because of the refusal of Croatia and

24 Slovenia, and later some other republics, to send their recruits to the

25 JNA, the Yugoslav People's Army was decimated practically, in terms of

1 personnel. And with the available personnel, we were unable to protect

2 the population in Western Slavonia using the army.

3 What happened to that population? Since we were unable, we did

4 not have the capacity to put the army there to act as a buffer, Croatian

5 units ethnically cleansed those areas, first 28 villages and then the

6 rest. They torched all their houses, destroyed all their property, and

7 created a situation which made it impossible for anyone to return. That

8 was still 1991 when Croatia -- when Croatia was still acting as it acted

9 within Yugoslavia as a single state, and it lasted until the 27th of

10 April, 1992.

11 Q. What did the Presidency do to stop the conflicts in Croatia?

12 A. We did a lot. We adopted a lot of conclusions, but few were

13 implemented. We came out with many communiques, adopted a lot of

14 conclusions, made appeals and noted frequently that the leadership of

15 Croatia and Croatian paramilitary units do not abide by a single

16 cease-fire agreement. They were blocking the barracks of the JNA which

17 were stationed there according to peacetime establishment. Barracks were

18 under blockade. Power could not be supplied, food, and other necessities.

19 Parents gathered around the barracks. Parents of the officers of the

20 Yugoslav People's Army gathered outside the barracks to appeal to their

21 children to surrender.

22 Such an inappropriate attitude to the JNA as the legitimate armed

23 force of the SFRY would not have been suffered by any other army or any

24 other military leadership the way it was suffered by the military

25 leadership of Yugoslavia.

1 Q. Did there ever come a proposal about the future of Yugoslavia

2 prepared by the Presidency commission? I believe it was on the 5th of

3 September, 1991.

4 A. Yes. I have already mentioned that agreement. Later, it grew

5 into a harmonised proposal by the entire SFRY Presidency, and we in the

6 Presidency, chaired by Mr. Stjepan Mesic, had agreed to present that

7 agreement through Mr. Stjepan Mesic at the inaugural meeting in The Hague

8 of the peace conference on 7th September, 1991. There were four basic

9 principles that were agreed and harmonised, and Mr. Stjepan Mesic

10 presented them at that conference.

11 The first, respect of every nation's right to self-determination,

12 including the right to secession and forming unions.

13 Two, democratic expression of the will of every nation and

14 republic to exercise their status in keeping with their real interests.

15 Third, the principle of equality that constitutes equality of all

16 options. No imposition of anyone's will and no use of force.

17 Four, the principle of legality, which is -- which presupposes

18 that political agreement should be legalised and a procedure instituted

19 for its implementation. Every solution should be equal and reasonable,

20 acceptable to all, and it should be implemented with mutual agreement and

21 democratically.

22 Mr. Mesic writes about these principles on page 226 of his book.

23 In order not to take too much of your time, if you look at these

24 principles carefully, these four principles were all seriously --

25 JUDGE ROBINSON: Let's move on to something else.

1 MR. MILOSEVIC: [Interpretation]

2 Q. The basic question I asked you was what did the SFRY Presidency do

3 to stop the war in Croatia? I'll make it more specific. How many

4 decisions on cease-fire were adopted by the SFRY Presidency? How many

5 agreements on cease-fire involved the Presidency?

6 A. Over about eight months the Presidency adopted 14 cease-fire

7 agreements. Each of them, even when they did not directly involve the

8 Presidency, included Mr. Veljko Kadijevic, federal secretary for national

9 defence. And every time before a cease-fire agreement was concluded,

10 Mr. Kadijevic was authorised by the Presidency to take part in this work

11 and to conclude a cease-fire agreement. Regrettably, although each of

12 these agreements required two pre-conditions; immediate cease-fire, and as

13 a second point the obligation of Croatia to lift the blockade of JNA

14 barracks, and I said earlier that over 1.000 army personnel was blocked in

15 those barracks, the Croatian authorities never complied.

16 A very specific conclusion of this kind was also adopted by The

17 Hague Conference on the 18th of October, attended by all eight members of

18 the Presidency. It was also attended by Mr. Tudjman and by you,

19 Mr. Milosevic, by Mr. Cyrus Vance, Lord Carrington, Mr. Hans van den

20 Broek. It was also unanimously adopted by the SFRY Presidency to have a

21 cease-fire, but then already on the 5th of November, 1991, at the next

22 Hague Conference, Lord Carrington began the session by saying that the

23 conclusions of the 18th of September were not observed and the -- Croatia

24 did not abide by the agreement.

25 Q. Were there some -- was there some pattern into it?

1 A. The pattern was that the Croatian authorities unlawfully became

2 renegades from the Yugoslav constitution. They threw out the Serb people

3 from their own constitution, whereas the Serb population of Croatia

4 expressed their desire to observe, to abide by the Yugoslav constitution

5 and to remain within Yugoslavia. In this conflict, the Croatian

6 authorities tried to impose their will on the Serbs in Croatia by use of

7 force.

8 I don't have to invent any of this. Mr. Mesic himself says in his

9 book that every time Croatia launched an initiative or an action, a

10 reaction followed by the other side. The indictment refers to it as the

11 Serbian Bloc, where I say that it cannot be called a Serbian Bloc. It can

12 only be called supporters of the Yugoslav option.

13 So every action of Serbs in Croatia was provoked by prior action

14 of the Croatian authorities.

15 Q. What you said about the Serb bloc, that it's a misnomer, it should

16 be called supporters of the Yugoslav option, was that something you were

17 advocating or was it the valid constitutional arrangement?

18 A. It was the valid constitutional arrangement.

19 Q. Was it your constitutional obligation to protect it?

20 A. Yes, it was our constitutional obligation. Not only of us who

21 were in favour of preserving Yugoslavia, but those who opted for secession

22 as well. I told Mr. Drnovsek and Mr. Mesic at the time that their

23 behaviour and their engagement and their work in those days, despite the

24 fact that they signed and gave the same oath at the federal parliament as

25 I did, their behaviour cannot be qualified otherwise but treason.

1 Q. Throughout this time -- you were at the head of the Presidency

2 until mid-1992, for quite a long time after the peacekeeping forces

3 arrived and all conflicts were halted. Throughout this time, did a

4 situation arise in which the JNA carried out an action, first initiated an

5 action, or did it only respond to what the Croatian forces were doing?

6 A. The JNA took no offensive action at that time. I was one of those

7 who very often spoke out in public to say that if the Croatian armed

8 formations and the Croatian authorities, even after so many cease-fires

9 and even after having undertaken so many times to lift the blockade of the

10 JNA barracks, failed to carry out this obligation, I will advocate that

11 the JNA finally take offensive action and lift the blockade on the JNA

12 barracks by force. Not to take over territory or to take over Croatian

13 towns, but simply to use force to enable our soldiers to be taken out of

14 those blocked barracks.

15 Only in the area of Karlovac did the JNA move forward, did it

16 advance, but it only reached the outskirts of the town. And I think that

17 that barracks was liberated through fighting.

18 What was happening in the areas of Dubrovnik and Vukovar in my

19 deep conviction was a very firm commitment by the Croatian leadership to

20 spread the flames of war to other territories in Yugoslavia. Dubrovnik

21 borders with Montenegro, and Vukovar is on the border with Serbia. We had

22 military barracks in both areas. The effort of the Croatian leadership

23 was aimed at spreading the flames of war to Montenegro, Serbia, and

24 Bosnia. I think that through its decisive action, both on the territory

25 of Dubrovnik and the territory of Vukovar, the JNA prevented Tudjman from

1 carrying out this intention. Unfortunately, however, we did not manage to

2 stop the spreading of the flames of war to Bosnia-Herzegovina, primarily

3 because of areas in Bosnia-Herzegovina, mainly in Western Herzegovina, but

4 also in Posavina, bordering with Croatia, were inhabited primarily by

5 Croats, so that the paramilitary formations from Croatia could infiltrate

6 the territory of Bosnia and Herzegovina through these Croat inhabited

7 areas.

8 Q. Professor Kostic, what you have just explained now, was this the

9 main characteristic of the engagement of the JNA on Croatian territory

10 while you, as part of the Presidency, were part of the Supreme Command?

11 A. Yes. That was what the JNA engagement was all about. What it

12 says in this indictment is all topsy-turvy. Had we had a plan to create a

13 Greater Serbia, had there been some kind of secret joint criminal

14 enterprise, the Rump Presidency, as they called it, would not have called

15 on the United Nations to send its peacekeeping forces on that territory in

16 order to withdraw the JNA from those areas and avoid further conflict.

17 The main purpose of calling on the peacekeeping forces was for them to

18 protect the Serb population which had, up 'til that time, been protected

19 by the JNA.

20 JUDGE BONOMY: Mr. Kostic, what was the longest period that any of

21 the contingents of the JNA were blockaded in barracks? Can you give me an

22 example of one that was blockaded for a lengthy period?

23 THE WITNESS: [Interpretation] To tell you the truth, I couldn't

24 give you any precise information right now, but I think that the barracks

25 in Sisak, Karlovac, Jastrebarsko near Zagreb, and some other peacetime

1 locations remained under blockade for quite a long time, as did the

2 barracks in the Vukovar, until a really serious conflict broke out there

3 between the JNA and the Croatian paramilitary formations. I think, if I'm

4 correct, it lasted three or four months if not five.

5 JUDGE BONOMY: Thank you.

6 MR. MILOSEVIC: [Interpretation]

7 Q. So several months, you say.

8 A. Yes. I think that some barracks were blocked for as long as seven

9 months, because the final lifting of the blockade and the withdrawal from

10 the barracks on the territory of Croatia took place only after the last

11 cease-fire was signed in which Mr. Cyrus Vance participated. This was one

12 of the pre-conditions for the peacekeeping forces to be deployed in

13 Croatia, and that was already in January or February 1992.

14 JUDGE BONOMY: Can you tell me, then, what was your principal

15 motivation as a member of the Presidency in not directing the army to take

16 action to remove these blockades?

17 THE WITNESS: [Interpretation] I can tell you that. We were aware

18 that issuing such an order to the JNA, which had artillery, projectiles,

19 an air force, and so on and so forth, but the Croatian side had more armed

20 men. The JNA, however, was far superior in technology and weaponry.

21 Therefore, had the JNA initiated offensive action in order to reach all

22 those towns and lift the blockade of the barracks through fighting, this

23 would have involved large-scale destruction, possible large-scale civilian

24 casualties among the population, and possibly casualties among our own

25 soldiers. The only reason that prevented us from issuing such an order

1 was the desire to achieve this aim through peaceful means and save

2 people's lives.

3 There was 14 cease-fires. After each one, we expected the

4 Croatian leadership and armed formations to finally agree to lift the

5 blockade on the barracks without fighting.

6 Mr. Bonomy, I have to tell you that we were under intense moral

7 pressure. I myself was under intense moral pressure as a member of the

8 Supreme Command. There was pressure from the mothers and parents not to

9 mobilise new conscripts, but we also had to bear in mind the fate of the

10 conscripts who were living in those barracks in conditions worse than

11 those in concentration camps.

12 JUDGE ROBINSON: Who broke the cease-fires?

13 THE WITNESS: [Interpretation] At the time, we were all in the

14 Presidency. It was the Presidency of the SFRY that negotiated the

15 cease-fires. We were the civilian Supreme Command. When an imminent

16 threat of war was declared on the 1st of October -- may I continue?

17 JUDGE ROBINSON: Yes. Just tell me briefly, can you, how were the

18 cease-fires broken and who broke them? Or is it brokered?

19 THE WITNESS: [Interpretation] Every time --

20 THE ACCUSED: [Interpretation] Mr. Robinson, there's been a

21 misunderstanding. Your question was who broke the cease-fire. However,

22 the interpretation that the witness heard was who agreed the cease-fires.

23 THE WITNESS: [Interpretation] I said that while the Presidency was

24 working in its full composition it issued decisions on the cease-fires and

25 agreed --

1 JUDGE ROBINSON: What I'm interested in finding out is not who

2 made the cease-fires, how they came about, but how they came to an end.

3 Who broke or breached the cease-fires?

4 THE WITNESS: [Interpretation] Every time, they were broken by the

5 paramilitary formations of Croatia, as I said yesterday, with abundant

6 assistance from outside. Everything was done to continue the war clashes,

7 because this was the only way that Croatian territory could be freed of

8 the Serbian population living there.

9 I can show you several statements issued by the staff of the

10 Supreme Command stating who had broken the cease-fire and how. If we have

11 time, we can look at a tab containing statements after the 18th of

12 October, after the joint session at The Hague Conference, which was

13 attended by all the members of the Presidency and the decision on a

14 cease-fire was issued. After this, we have statements by the Supreme

15 Command and the Presidency of the SFRY that only 24 or 36 hours later

16 Croatian paramilitary formations breached the cease-fire 124 times. There

17 were 124 violations which large numbers of soldiers killed on the JNA

18 side.

19 JUDGE ROBINSON: Yes, Mr. Milosevic, continue.

20 MR. MILOSEVIC: [Interpretation]

21 Q. Do you remember the session of the SFRY Presidency of the 1st of

22 October, 1992 [as interpreted]?

23 A. Yes, I remember it well.

24 Q. Who participated in that session?

25 A. Six members of the Presidency. Only Mr. Drnovsek and Mr. Mesic

1 were missing. The representatives of Croatia of Slovenia, that is.

2 Q. At that session attended by six members of the Presidency and held

3 on the 1st of October, was any evaluation made of the situation?

4 A. We tried more than once to convene a session of the Presidency

5 before the 1st of September [as interpreted], but we could not do so

6 because Mr. Mesic kept obstructing, failing to turn up.

7 JUDGE BONOMY: Mr. Milosevic, the transcript's becoming a bit of a

8 mix-up, I think. This is October of 1991, I think, not 1992, and we

9 started off talking about a meeting on the 1st of October and now the

10 transcript is talking about the 1st of September. So ...

11 THE ACCUSED: [Interpretation] Mr. Bonomy, we are talking about the

12 meeting of the Presidency of the 1st of October.

13 THE WITNESS: [Interpretation] 1991. I only wanted to say that

14 previously there had been several unsuccessful attempts to hold a meeting

15 of the Presidency, because the leadership of Bosnia and Herzegovina

16 insisted that the Presidency meet as soon as possible due to the highly

17 dangerous situation in Bosnia-Herzegovina. We were unable to gather all

18 the members of the Presidency, and we finally met on the 1st of October,

19 1991, in the composition I have just described. Six members were present,

20 and only Mr. Drnovsek of Slovenia and Mr. Mesic of Croatia were absent.

21 MR. MILOSEVIC: [Interpretation]

22 Q. And what conclusions did you arrive at on the 1st of October?

23 A. As we had several times previously, we again concluded that the

24 security situation was extremely difficult, that there was an imminent

25 threat of war and civil war, but for the first time we concluded that the

1 country was actually in an imminent threat of war.

2 Q. So this was the session where the Presidency for the first time

3 concluded that there was an imminent threat of war.

4 A. Yes. This was a unanimous decision of all six members of the

5 Presidency, which constituted the two-thirds majority required by the

6 rules of procedure of the Presidency.

7 Q. At that point in time, was there actually an imminent threat of

8 war in the state?

9 A. Not only was there an imminent threat of war, there was already a

10 war going on with the paramilitary formations of Croatia.

11 Q. You have just explained this. On the 1st of October, six members

12 of the Presidency, with a two-thirds majority, issued a conclusion that

13 the country was facing an imminent threat of war, and you say, and this is

14 not in dispute, that there actually was a war already going on.

15 In these indictments, and also we have heard from some witnesses

16 about the Rump Presidency. Have you heard this expression?

17 A. Yes.

18 Q. That's what some media called it.

19 A. Not only the media but also the leadership of the secessionist

20 republics. They kept using this term. Not only that, but they openly

21 stated that we had in this way perpetrated a military coup; a coup d'etat,

22 that is.

23 Q. What was the legal basis after the Presidency, with a two-thirds

24 majority, concluded that the country was facing an imminent threat of war?

25 What was the legal basis for the continuation of the work of the

1 Presidency in this composition?

2 A. After Tito died in 1980, this problem arose. The problem of

3 extreme nationalism and inter-ethnic conflict existed before. They did

4 not arise only in the 1990s. So that in 1984, the Presidency of the SFRY

5 issued a special decision amending the rules on the work of -- on the

6 procedure of the Presidency. And according to this decision, if there was

7 an imminent threat of war, the Presidency could meet regardless of whether

8 it had the necessary majority to issue decisions. Two, three, or four

9 members of the Presidency could hold a session if the others were unable

10 to attend or were absent, and they could issue valid decisions, qualified

11 legal decisions. So that constitutionally, the Presidency was authorised

12 to issue decree laws if the parliament was unable to meet.

13 Q. All right. Now, let's find the link in that chain now and see

14 whether it follows a logical evolution of events.

15 On the 1st of October, you, within a two-thirds majority, assessed

16 that the country was in a state of imminent threat of war.

17 A. Yes.

18 Q. After 1984, you have a rules of procedure for the Presidency where

19 it says that when there is imminent threat of war, the Presidency works

20 with as many members as it has. So those are two points.

21 A. Yes.

22 Q. Was that the legal grounds for continuing the work of the

23 Presidency in any composition?

24 A. Yes.

25 Q. In paragraph 63 of the Bosnian indictment, it says that: "On the

1 3rd of October of 1991, four members of the Presidency of the SFRY from

2 Serbia Montenegro -" it says Borisav Jovic, Jugoslav Kostic, doesn't

3 mention Kosovo and Vojvodina here, Sejdo Bajramovic, Ibrahim Kostic, the

4 three of them, therefore, and you yourself - "assumed the function of the

5 SFRY Presidency circumventing the roles and responsibilities of the

6 Presidency members from Slovenia, Croatia, Bosnia and Herzegovina, and

7 Macedonia."

8 Now, please, explain this to us. Since this is what it says

9 there, I've read it out to you, it's paragraph 63 of the BH indictment,

10 does this mean taking over the function of the SFRY Presidency, or was it

11 a case of the legal performing of that function by its legally elected

12 members?

13 A. First of all, the observation made and the formulation as it

14 stands in the indictment is completely incorrect and wrong. It was not a

15 matter of assuming the function of the SFRY Presidency, taking over its

16 function, but it was continuing the work of the Presidency in its

17 functioning in a legal, constitutional manner on the basis of assessments

18 made that a state of imminent war existed, which the Presidency made

19 according to its rules of procedure at a previous meeting on the 1st of

20 September.

21 Q. You mean the 1st of October.

22 A. Yes, I mean the 1st of October.

23 Q. All right. Fine. Now, what happened? Because it says on the 3rd

24 of October 1991 the four members of the SFRY Presidency, et cetera,

25 assumed the function. What happened on at that day the 3rd of October,

1 the date quoted in this paragraph?

2 A. Well, immediately after the 1st of October, we had intended to

3 hold a new meeting of the Presidency on the 2nd of October, and I was

4 personally called up by Mr. Bogic Bogicevic and Mr. Vasil Tupurkovski, and

5 they asked me defer the meeting to the 3rd of October, to postpone it.

6 And I consulted the other members of the Presidency and accepted their

7 proposal. So we convened that meeting for the 3rd of October, we

8 scheduled it for the 3rd of October. However, neither Mr. Tupurkovski nor

9 Mr. Bogicevic turned up on the 3rd of October, and of course faced with a

10 situation of that kind we had -- could do nothing else but, on the basis

11 of what we had already established and assessed on the 1st of October,

12 that we go on with a normal session on the 3rd of October.

13 Now, Their Honours, the Judges, don't have enough patience ...

14 JUDGE ROBINSON: What is on the transcript there?

15 Mr. Milosevic, please continue.

16 THE ACCUSED: [Interpretation] Well, the witness interrupted when

17 he saw you conferring, so he thought it best to stop what he was saying,

18 to have you hold your consultations after which he could resume.

19 MR. MILOSEVIC: [Interpretation]

20 Q. So, Witness, you were interrupted in giving your explanation.

21 A. Yes. I thought it was very important for the Judges to hear this

22 detail that I'm going to present regardless of the fact that they don't

23 have all the patience to hear all the details which convincingly speak of

24 the fact that there was no plan for a Greater Serbia nor was there any

25 joint enterprise afoot but what was afoot was the existence of a plan on

1 the violent secession by the protagonists of that secession against the

2 constitution. And this is one of the details which I think is very

3 important for you to hear and which will show how much even the most

4 obvious matters are being distorted and shown to be in an untruthful

5 matter.

6 And here it is: Mr. Mesic, speaking about the 1st of October and

7 speaking about the 3rd of October, said that we had conducted a military

8 putsch. Mr. Mesic says quite literally, and I'm quoting him here, the

9 following. We can find that in page 269 --

10 Q. It's tab 73.

11 A. That's right, tab 73, but it's easier for me to follow it in my

12 book. This is what Mr. Mesic says: "However, on the 1st of October the

13 situation of an imminent threat of war was not mentioned but what is

14 stated in the statement as well, the Presidency of the SFRY of the

15 competent federal organs was informed that the political security and

16 safety situation in the country was highly serious and dramatic, and that

17 there was the threat of an all-out civil war from breaking out."

18 And Mr. Mesic goes on to say: "In the statement, there is no

19 mention of an imminent threat of war and on the basis of that we can see

20 that invitation to a previous session was forgery, was false, but this

21 cabinet went on with the decision that their function and action was not

22 falsely presented." And he's referring to us who supported the Yugoslav

23 option.

24 Now, in that same statement that was published by Tanjug on the

25 1st of October, both for the international public and for the domestic

1 public, which is quoted by Mr. Mesic himself only eight lines below what

2 he's just quoted, it says the following, quite literally: "It was

3 assessed that there was obvious -- that there was the obvious danger of

4 armed conflicts expanding to Bosnia-Herzegovina and engulfing Montenegro

5 as well whereby new areas of conflict would be opened in the country."

6 And then, from the statement published in Tanjug on the 1st of October, it

7 says: "It was assessed that this was a serious threat and would create

8 even more serious inter -- inter-ethnic conflicts and that Yugoslavia was

9 facing a war -- the danger of a war."

10 Now, Your Honours, Judges, if we have such obvious matters on such

11 important matters such as the 1st of October Presidency decision which

12 Mr. Mesic and this indictment attempts to portray as being a putsch, and

13 if such untruths and obvious falsities are presented, then you can only

14 assume how many -- how much falsehood there is and untruths there are in

15 Mr. Mesic's books and in his statements and in the indictment itself,

16 because the authors of the indictment quite obviously did not take the

17 trouble to compile the indictment both in Belgrade and Sarajevo and

18 Podgorica and Ljubljana and Skopje but they compiled and drafted it in

19 Zagreb and they made a plagiarism of Mesic's book but Mesic calls us,

20 those of us who were in favour of the Yugoslav option, he calls us the

21 four-member band or group -- gang of four, and the gentleman compiling the

22 indictment referred to us as the undertakers of a joint criminal

23 enterprise.

24 JUDGE BONOMY: The question to which that interminable answer

25 related was what happened on the 3rd of October. Can I take you back just

1 slightly on that to the 1st of October. Is there a tab here in which we

2 see recorded the decision of the 1st of October?

3 THE WITNESS: [Interpretation] Yes, there is. In my book --

4 JUDGE BONOMY: No, no. A formal document. Is there a decision of

5 the Presidency, properly recorded, minuted decision about the imminent

6 state of war and, therefore, a determination that it was appropriate for a

7 meeting to take place and decisions to be made by smaller numbers?

8 THE ACCUSED: [Interpretation] Mr. Bonomy, Mr. Kostic quoted the

9 decision in very precise terms in his book. I don't have the original

10 document here, just as I don't have many other original documents.

11 JUDGE BONOMY: But Mr. Mesic's complaint seems to be that the

12 decision wasn't properly recorded, and what I'd like to see is the record.

13 Now, it seems such a major, important decision that one might expect it to

14 be available to the Tribunal in its proper formal form.

15 Now, are you telling me you don't have it, and we've just to look

16 at books written by people for the material?

17 THE WITNESS: [Interpretation] Mr. Bonomy, a decision is one thing,

18 a decision by which the Yugoslav state Presidency in 1984 regulated the

19 question of how and in what way the Presidency should function under

20 conditions of an imminent threat of war, and in that sense I mentioned

21 that decision as the grounds, the legal grounds and framework for the

22 continuance of the work of the Yugoslav state Presidency. However, in

23 that decision no mention is made of any separate decisions nor is there

24 the obligation of bringing in separate decisions, but at the time when the

25 Presidency assesses, evaluates, therefore, that the country is indeed

1 facing imminent war, then at that point in time the Presidency starts

2 functioning under such conditions.

3 Now, you're asking of me -- or, rather, to do that whereas the OTP

4 can come by those documents more easily than I can. But it's not a

5 question of somebody writing that down in a book. It is an official

6 statement which was published by Tanjug, the Yugoslav news agency, on the

7 1st of October 1991 for the domestic public and the international public.

8 And in my book --

9 JUDGE BONOMY: Mr. Kostic --

10 THE WITNESS: [Interpretation] -- in my book you have literally --

11 JUDGE BONOMY: I follow that. But, Mr. Kostic, we are bombarded

12 in this Trial Chamber by official documents of various state organs of

13 various parts of the former Yugoslavia, and it seems to be a trait that

14 the most minute decisions are recorded in some formal document, and here

15 we have a massive decision that there is an imminent threat of war and a

16 much reduced composition of the Presidency can act in that situation. Are

17 you telling me that you don't in that situation make a formal record for

18 the federal record purposes of the assessment that that was the situation

19 and that therefore a smaller number of the Presidency could act?

20 THE WITNESS: [Interpretation] Mr. Bonomy, we are discussing two

21 matters here. Quite obviously, I'm not a lawyer myself and I can't

22 discuss it on a par with you in the legal sense when it comes to this

23 matter, but a moment ago you said yourself that Mr. Mesic was objecting

24 and saying that a decision had not been taken. I think that's what you

25 said a moment ago, words to that effect, whereas I didn't address those

1 complaints and objections by Mr. Mesic. All I was saying is that

2 Mr. Mesic was claiming that in the statement that I quoted, there was no

3 mention of an imminent threat of war being in existence --

4 JUDGE BONOMY: Okay, but --

5 THE WITNESS: [Interpretation] -- and he's quoting that passage.

6 JUDGE BONOMY: But could you answer my question: Is there no

7 formal decision written down and kept in the archives, federal archives at

8 that time, by the Presidency - at least the numbers that were able to

9 assemble - that there was an imminent threat of war and that therefore

10 future decisions could be made by a smaller number? Is there no formal

11 record kept of that?

12 THE WITNESS: [Interpretation] I said a moment ago that there is

13 the decision about how the Presidency functions and makes decisions in

14 circumstances of that kind. But in that 1984 decision, it was just an

15 assessment of there being an imminent threat of war situation. I don't

16 think there's a separate decision because there was no need for a separate

17 decision to exist because the situation -- an assessment of the situation

18 was brought in in the presence of six Presidency members on the 1st of

19 October. It was these people who assessed that situation as being such.

20 JUDGE BONOMY: I understand -- I understand all of that, and I

21 understand that we can all -- the people who were there can all write

22 books about it, give their versions, but it would be nice to have the

23 formal record just to confirm it. Anyway, it doesn't look as though it

24 exists from your answer, so let's move to something else.

25 JUDGE ROBINSON: We will take the first break at 11.00 for 20

1 minutes.

2 MR. MILOSEVIC: [Interpretation] L.

3 Q. Professor Kostic, is this assessment, this appraisal of the

4 existence of a situation of the imminent threat of war, was that

5 established on the 1st of October, and was it published in an official

6 communique or official statement issued by the Presidency after having

7 held that meeting?

8 A. Yes.

9 Q. What you quoted, is that the official statement, the official

10 communique of the Presidency?

11 A. Yes. It was the official communique broadcast by Tanjug. In 1992

12 I had already withdrew from political life -- withdrawn from political

13 life. I wasn't in a position to be able to come by such documentation,

14 but this is the original text quoted by me and published and broadcast by

15 Tanjug on the basis of an official Presidency communique.

16 Q. So is that the official Presidency communique statement where it

17 states what you said, that the country was faced with imminent threat of

18 war, was it published and printed, not just an agency piece of news, a

19 news item by Tanjug?

20 A. Yes, it was, it was officially published.

21 Q. So the printed media, the electronic media, and that same

22 communique and statement as quoted by Mr. Kostic can be found in the

23 newspapers of the 2nd of October, and that, too, is a public document

24 because the Presidency thereby informed the public about the position it

25 had taken.

1 A. I have a recording of the entire press conference held at the

2 time.

3 Q. Of course you do. But the essential point is, is that how it was

4 made public from the Presidency meeting? Was that an official Presidency

5 communique that you gave?

6 A. Yes.

7 THE ACCUSED: [Interpretation] I shall do my best to get hold of a

8 copy of the newspapers and to attach that as an exhibit.

9 MR. MILOSEVIC: [Interpretation]

10 Q. All right. Now with respect to the quotation from paragraph 63

11 that I read out, and I don't wish to read it out again, the four of you,

12 did you go beyond the duties of -- and go beyond what the members of

13 Slovenia, Croatia, Bosnia-Herzegovina, Macedonia do? Did you circumvent

14 the roles and responsibilities of the Presidency?

15 A. No. All the meetings, including the 3rd of October session and

16 all the following Presidency sessions, not only Mr. Mesic as president but

17 all the members of the Presidency received invitations to attend. They

18 received all the accompanying documents. They were regularly informed,

19 and even if Mr. President does claim that it was a putsch, that -- whereby

20 we excommunicated the other Presidency members, I should just like to

21 remind you of the fact that 15 days after that, in The Hague, a meeting of

22 the Presidency of the FRY was held before The Hague Conference and at that

23 Presidency meeting it was Mr. Mesic that presided over the meeting as

24 president of the Presidency.

25 Q. So two weeks after that 3rd of October date, when you allegedly

1 went ahead and went -- and conducted a putsch, he chaired a Presidency

2 meeting?

3 A. Yes, correct. And not only that, but asked by journalists whether

4 he was the new -- whether I was the new Presidency president, I said no.

5 I said if Mr. Mesic were to appear tomorrow, he would preside over the

6 Presidency meetings as president, but if he was not present, then in his

7 absence it would be the vice-president who chaired the Presidency

8 meetings.

9 Q. How about the Presidency members who continued to work; you,

10 Jovic, Bajramovic and Kostic? Did you agree on all issues or was there

11 any disagreement?

12 A. Far from it. We had differences on many issues.

13 Q. But what was the key joint position of those members of the

14 Presidency who continued to work?

15 A. Our key joint commitment was to preserve Yugoslavia and to work

16 for it, and failing that, to preserve life in a joint state to the extent

17 possible.

18 Second, to find a peaceful solution to the Yugoslav crisis and not

19 to dispute any nation's and any republic's right to self-determination and

20 secession provided it is done in a constitutional and peaceful way.

21 The third issue on which we all found ourselves on the same

22 wavelength was that the Yugoslav People's Army should not be used as a

23 force to topple any government in any republic that was elected at multi-

24 party elections but to use instead the Yugoslav People's Army either as a

25 buffer or as a protector of any nation or part of a nation that finds

1 itself in jeopardy and possibly to lift the blockade of the barracks in

2 Croatia if it is not done otherwise.

3 Q. Could you give us an example of the differences among the four of

4 you?

5 A. Most of them were between Mr. Borisav Jovic and me. Of course,

6 not on the four issues on which we all agreed. But otherwise, we had

7 plenty differences. For instance, the election of Mr. Mesic was one thing

8 we didn't agree on. He gave his vote for and I didn't. He had his own

9 convictions and I had to respect them. I think that's only democratic.

10 Also, with regard to the 14 cease-fire agreements, after all of

11 them expired and our soldiers were still blocked, I advocated that the

12 General Staff's proposal to use force to lift the blockade of the barracks

13 should be accepted. Mr. Jovic was against.

14 Also, at the time when we were working in a reduced composition,

15 only the four of us, decisions were made by the Presidency to send into

16 retirement a great number of generals. The first group included 28

17 generals. The second group was even larger. We did not agree on that.

18 Mr. Jovic calls my engagement in the retirement of these generals

19 insolence.

20 We had other differences as well but they were marginal compared

21 to the important issues on which we did agree.

22 JUDGE BONOMY: Mr. Kostic, whether you the only member of the

23 Presidency who favoured using force to lift the blockade?

24 THE WITNESS: [Interpretation] Well, I have to say that Mr.

25 Jugoslav Kostic and Mr. Sejdo Bajramovic, when we discussed this, did not

1 voice their opinions, whereas Mr. Jovic was emphatically against. But

2 again, you see, when we had this disagreement about the retirement of the

3 generals, Mr. Jovic tried everything to bring the issue of the second

4 group of generals back on the agenda, which I categorically refused. The

5 other two members of the Presidency abstained from saying yea or nay, and

6 then I gave my irrevocable resignation to the post of vice-president,

7 telling them I cannot go on working under those conditions, and after that

8 Mr. Jugoslav Kostic and Sejdo Bajramovic both came to see me, confirming

9 that I wasn't doing anything on my own initiative, alone, that they agreed

10 with me. Mr. Jovic was at that time in China. He thought that everything

11 should pass through him, but later he abandoned his demand.

12 MR. MILOSEVIC: [Interpretation]

13 Q. All right. Those are examples of your differences. But

14 concerning the main issues, your commitment to preserving Yugoslavia, et

15 cetera, you agreed on that?

16 A. Yes.

17 Q. Was it also your constitutional obligation?

18 A. It was. Let me also say that concerning the preservation of

19 Yugoslavia, when the first Yugoslavia was established, Serbia and

20 Montenegro were the only recognised states who invested their statehoods

21 into their new -- into that new state.

22 Montenegro had its statehood recognised at the Berlin Congress in

23 1848, and I fought until the end for preserving that Yugoslavia.

24 JUDGE ROBINSON: We will take the break now for 20 minutes. The

25 next break will be at 12.20, or one hour after we -- Mr. Kay?

1 MR. KAY: Tab 33 is the Presidency statement of 1st of October

2 concerning imminent threat of war.

3 JUDGE ROBINSON: All right. Thank you, Mr. Kay.

4 JUDGE BONOMY: Is that the one that was said to be 73? The actual

5 statement is 33?

6 MR. KAY: Tab 33, yes.

7 JUDGE ROBINSON: It's translated, yes. All right. We'll have a

8 look at it, if necessary, after the resumption.

9 We will break for 20 minutes.

10 --- Recess taken at 11.04 a.m.

11 --- On resuming at 11.27 a.m.

12 JUDGE ROBINSON: Mr. Milosevic, please continue.

13 THE INTERPRETER: Microphone, please.

14 MR. MILOSEVIC: [Interpretation]

15 Q. Tell me, Professor Kostic, did the Presidency of the SFRY in that

16 composition, after the assessment was made of the imminent threat of war

17 when was Presidency was working in a reduced composition, did it adopt any

18 decisions? Did it adopt a single decision ordering some offensive

19 engagement of the JNA or the armed forces of the SFRY?

20 A. In that entire period, the Presidency working with four members

21 did not pass a single decision that would order the JNA to take offensive

22 action. Not only that, it did not avail itself of the constitutional

23 possibility to make decrees with the force of law, to abolish political

24 parties, replace leaderships, or to eliminate democratic rights. The

25 Presidency did not adopt a single decision of that kind, although such a

1 constitutional possibility existed.

2 Q. What was the content of the decisions passed by that Presidency?

3 Can we go through them? What are the most important decisions taken by

4 the Presidency in the period we are reviewing, from the 3rd of October

5 onwards?

6 A. We can go tab by tab, but I could also say simply, very briefly.

7 All the main decisions taken by the Presidency, both in its full

8 composition and its reduced composition, are: The election of Stjepan

9 Mesic as president. The second decision was to dismiss the December class

10 of trained soldiers. The decision on 13 concluded cease-fire agreements

11 and attempts to resolve the Yugoslav crisis by peaceful means. Then the

12 decision to shift to the method of work under conditions of imminent

13 threat of war, which paralysed the highest leadership of the state and the

14 Supreme Command of the JNA, which was the Presidency. The decision to

15 send a request to the Secretary-General of the United Nations and the

16 Security Council to send peace troops, peacekeepers to crisis areas in

17 Croatia to enable the JNA to pull out from those territories. Also, we as

18 the Presidency passed a decision to be the sponsors of the peace

19 conference on Yugoslavia regarding events in Bosnia-Herzegovina on the 3rd

20 of January. Also, the decision on the withdrawal of JNA units and

21 temporary relocation from Slovenia to other areas until a political

22 solution is found. And, of course, our decisions to pull out the Yugoslav

23 People's Army from other territories of the former Yugoslavia at the time

24 when other republics were taking their decisions on independence, such as

25 withdrawal of the JNA from Macedonia, which was carried out without any

1 conflict because there were no Macedonian paramilitaries and no attacks on

2 the JNA.

3 JUDGE ROBINSON: May I ask you, Professor, did the Presidency in

4 its reduced membership have the same powers as the Presidency in its full

5 membership?

6 THE WITNESS: [Interpretation] No. The Presidency in its full

7 composition had less authority, fewer authorisations than the reduced

8 Presidency. When the Presidency is working under conditions of imminent

9 threat of war, it also assumes in part a legislative role, but we didn't

10 take advantage of that.

11 JUDGE ROBINSON: So it would have been entitled to order an

12 offensive by the JNA.

13 THE WITNESS: [Interpretation] Yes. So under circumstances of

14 imminent threat of war, the Presidency can work in its full composition as

15 well, and even as such it has greater authority, greater authorisations.

16 In The Hague, on the 18th of October, the Presidency was in its

17 full composition. It was chaired by Mr. Mesic. But since the conditions

18 were those of imminent threat of war, they had greater authority.

19 JUDGE ROBINSON: Yes, Mr. Milosevic.

20 MR. MILOSEVIC: [Interpretation]

21 Q. In paragraph 65 of the Bosnian indictment, it says: "On the 22nd

22 of October, 1991, or around that date, Slobodan Milosevic, together with

23 other members of the joint criminal enterprise, continued to advocate for

24 a unitary Serb state governed from Belgrade, Serbia. On the same date,

25 the Rump Presidency called for the mobilisation of reservists in Serbia

1 and other regions that want to stay in Yugoslavia." "Other regions" under

2 quotation marks, and the "Rump Presidency" also under quotation marks.

3 Mr. Robinson did not use the term that you heard in the

4 interpretation. He didn't say a "Rump Presidency," he said "reduced."

5 A. Yes. It's a better term.

6 Q. "Reduced" is a correct term, whereas "rump" is derogatory.

7 Tell me, please, can a unitary state in Yugoslavia be the same

8 thing [as interpreted]?

9 A. No way.

10 Q. Did you hear from me or my close associate or any of those people

11 who allegedly were with me in the so-called joint criminal enterprise, did

12 you hear ever from any of us anything about a unitary Serb state?

13 A. Never.

14 Q. Could you comment on this allegation that I, together with other

15 members of that joint criminal enterprise, continued to advocate for a

16 unitary Serb state governed from Belgrade, Serbia? How does it sound to

17 you, that somebody on that day continued something that it seems from

18 other allegations he never stopped doing anyway?

19 A. I think it's a nonsensical allegation. I can say nothing about

20 it. Maybe the authors of the indictment can better explain what they

21 wanted to say with this. I don't see what you could have continued to do

22 on at that day even if you had been doing it.

23 Q. For example, during the testimony of academician Kosta Mihailovic,

24 Mr. Nice accused me and the leadership for not accepting the confederate

25 state as proposed by Slovenes and Croats. Similar testimony was given by

1 other witnesses, such as Mesic.

2 What, in your view, was the point of that proposal for

3 confederalisation; and do you believe that this proposal was realistic,

4 acceptable, a serious one?

5 A. I think that even the most prominent protagonists of aggressive

6 secession, the very top echelons of the Slovene and Croatian leadership,

7 have already confirmed in their public statements themselves that the idea

8 of confederalisation was only the first step towards independence and

9 secession from Yugoslavia, the establishment of an independent Croatian

10 state. They persisted on that path. Mr. Tudjman stated publicly that war

11 could have been avoided if they hadn't insisted on an independent Croatia

12 and its secession from Yugoslavia.

13 It would also be good to look at some statements of Mr. Mesic

14 while he was the right hand of Mr. Mesic [as interpreted] in 1992 and 1993

15 and later president of Croatia, and his very different approach to the

16 issue in 1999 -- sorry, 1990, when he was the leader of the opposition

17 party in Croatia.

18 Q. It would be useful to look at that, but before that I want to read

19 to you a brief part of the transcript of Mesic's testimony. Pages 10546

20 and 10547. "[In English] Slovenia and Croatia, assisted by

21 Bosnia-Herzegovina and Macedonia, we proposed to have a confederal system

22 because the model of a federation as the one that existed could not be

23 sustained. That is what I always emphasise. The three cohesive factors

24 were no longer there. And the only possible thing was a confederacy.

25 However, until the present day, Serbia did not respond to our proposal to

1 opt for a confederal solution, to reach an agreement on this, to come to a

2 consensus and not act through the army and have solutions imposed on us.

3 We could not accept Croatia, Slovenia, and other republics to be treated

4 the way Milosevic treated Vojvodina, Montenegro, and Kosovo. We could not

5 accept that kind of federation, and that is precisely what he wanted, a

6 firm federation.

7 "That is what I wish to say by way of an explanation. What was

8 said was that confederation could not exist. They even said that there

9 was a confederacy in the United States of America. Well, true, but it did

10 not fall apart. But it did function and it -- and there is proof of

11 that." Et cetera.

12 [Interpretation] So he claims in his testimony that he had

13 advocated a confederation, that it was a principled view of theirs, but

14 let us clear up this first. He says that what "he" wanted - he being me -

15 was a firm federation. Did anybody talk about a firm federation?

16 A. I know that I personally worked for at that time and many times

17 later for a functional federation, not a firm one. For what we have now

18 in Serbia and Montenegro is neither a federation nor a confederation. It

19 is an extremely unfunctional creature. Every union presumes that two

20 entities that are sovereign invest part of that sovereignty into that

21 union and work together.

22 Q. So did I advocate a firm federation?

23 A. No.

24 Q. Mesic says that their approach was to propose a confederation.

25 Let us look now at his statement given on television regarding the issue.

1 I think it was in 1997.

2 A. 1999.

3 Q. You're right, 1999.

4 A. It was in October 1999, on Montenegro TV.

5 Q. Let us play the clip briefly.

6 [Videotape played]

7 THE INTERPRETER: "[Voiceover] The Croatian contribution is this:

8 Croatia had lived for a long time without having a separate state. The

9 Croatian people always lived in states that were more or less imposed on

10 it; the Austro-Hungarian monarchy, both the first and the second

11 Yugoslavia. But throughout there always existed an aspiration on the part

12 of Croats to have -- to achieve their state. That ambition was never

13 satisfied so that it could be taken for granted like it is the case with

14 many European states in which there was never such insistence for

15 independence. But Croatia was in a different position. On one hand, we

16 had Milosevic's pressure, and on the other hand the aspiration to have a

17 state. Would a confederation be an objective? That is a big question.

18 That would probably be a -- not an objective but a means to reach a goal,

19 and the goal was independence."

20 MR. MILOSEVIC: [Interpretation]

21 Q. So he says here that the confederation was the means to reach an

22 end and the end was independence.

23 A. Yes.

24 Q. Can we say that this proposal for confederation was a serious one?

25 A. We did not regard it as such, and that's why we refused to accept

1 it as a solution at the time.

2 Q. What can you say about the mobilisation of reservists, the reasons

3 for the mobilisation in the time and in the conditions in which it was

4 announced?

5 A. Earlier in my testimony, I have said several times that the

6 Yugoslav People's Army, despite all the crises and the war in Yugoslavia,

7 especially in Croatia, was decimated. First because Slovenes stopped

8 sending their recruits to the JNA, and they were followed by Croats, then

9 Kosovo Albanians stopped sending their soldiers to the JNA. So the army

10 remained decimated. And this additional mobilisation that was undertaken

11 was a measure to reinforce the army and enable it, but not enable it for

12 offensive action, because I've already said we had never taken such

13 decisions nor did we accept such proposals from the general command staff.

14 This additional mobilisation was only supposed to fulfil the gap

15 that appeared due to the absence of recruits from Slovenia, Croatia, and

16 Kosovo. We also had a special reason to do it, because practically on the

17 4th of October, Tudjman proclaimed general mobilisation in Croatia.

18 Q. And what was the content of the order issued by the Presidency on

19 the 18th of October? Is that the session of the Presidency chaired by

20 Stjepan Mesic held in its full composition in The Hague?

21 A. Yes. That was that session. We held it before the session of The

22 Hague Conference. I've already said that all eight members of the

23 Presidency were there, as were President Tudjman and you, Mr. Milosevic.

24 The leadership of the international community was there also.

25 Q. Is this found in tab 37? It's an order issued by the Presidency

1 of the SFRY held in The Hague, urgent and unconditional cease-fire.

2 A. Yes.

3 Q. It's very brief. It's in tab 37. It says: "The SFRY Presidency

4 at its session held in The Hague issued an order for an urgent and

5 unconditional cease-fire, said a statement by the chairman of the Dutch

6 Ministry of Foreign Affairs.

7 "The SFRY Presidency issued this order at the beginning of the

8 latest round of the International Conference on Yugoslavia, which is being

9 held at the highest level in the Dutch capital today.

10 "The cease-fire will come into force at 1300 hours Yugoslav time,

11 1200 hours Central European Time, concludes the statement."

12 JUDGE BONOMY: Mr. Kostic, this is an example. Is there an order

13 somewhere behind this statement, or was the order simply given orally?

14 THE WITNESS: [Interpretation] Well, you see, Mr. Bonomy, we were

15 all in The Hague when this session was held. I really do not know whether

16 there is a written order. All I know is that as the date was practically

17 the same day, 1300 hours, and the order was issued by telephone to the

18 General Staff to cease urgently and unconditionally all armed activity.

19 And Mr. Tudjman was supposed to issue the same order to his paramilitary

20 formations, but in view of what happened later, I'm not sure that he did.

21 MR. MILOSEVIC: [Interpretation]

22 Q. This is a statement by the Dutch Ministry of Foreign Affairs,

23 because they also attended the session. You yourself said van den Broek

24 was there. Was this implemented?

25 A. None of it was implemented. The first two points of that order

1 which was issued orally were adopted unconditionally. At The Hague

2 Conference, Mr. Tudjman even attempted to impose conditions on point 2

3 pertaining to lifting the blockade on the barracks. And he was

4 interrupted by Lord Carrington. The conditions he wanted to impose they

5 later did impose, and they did not lift the blockade on the barracks.

6 Q. Tell me, please, the statement issued by the SFRY Presidency to

7 the public on the 19th of October, 1991, which is found in tab 38, what is

8 it about? Let's take a look at the first sentence. "The SFRY Presidency,

9 President Tudjman and in the presence of President Milosevic, agreed to

10 issue the following orders to their forces:

11 "Immediate and unconditional cease-fire.

12 "Immediate unblocking of all JNA barracks and JNA facilities in

13 Croatia.

14 "Evacuate all blocked barracks and JNA facilities as soon as

15 possible; evacuate in the direction leading out of Croatia at a pace which

16 is to be agreed upon at the meeting of the tri-party working group in

17 Zagreb," and so on.

18 Please be kind enough to explain this a little bit. The SFRY

19 Presidency and President Tudjman agreed. Is this the essence?

20 A. Yes.

21 Q. And I was present there?

22 A. Yes, you were present. I have to point out that throughout this

23 period you played a very prominent role as a strong political authority

24 whenever agreements were made. After the 1st of October, many

25 protagonists of the international community bypassed the SFRY Presidency

1 except when it was not possible to do so. For example, when dealing with

2 the General Staff and the role of the JNA in all this, concluding

3 cease-fires and so on. However, the immediate commander of the armed

4 paramilitary forces in Croatia was President Tudjman, and the Presidency

5 was the other side, the commander of the JNA.

6 Q. So what was the nature of my presence at these agreements?

7 A. I think, as in some other cases, your presence was your political

8 support as someone with authority to assist the resolution of the crisis.

9 Q. Was it aimed at finding a peaceful solution or at raising tensions

10 and conflicts?

11 A. I have to say that all your efforts, as was also seen after my

12 withdrawal from public and political life, all your efforts were aimed at

13 searching for a peaceful solution, at reaching agreements. And you

14 confirmed this somewhat later in the case of the Vance Plan, because you

15 and Mr. Cyrus Vance advocated the adoption of the peace plan for Croatia

16 and the Krajina, not to mention your later advocation of the Cutileiro

17 plan in Bosnia and other peace proposals that were put forward after I was

18 no longer a member of the Presidency, not to mention Dayton, and so on and

19 so forth.

20 Q. And what was concluded at the session of the 21st of October?

21 It's in tab 39A. The date is the 21st of October, 1991, and it refers to

22 a session of the SFRY Presidency.

23 A. At every session, we had occasion to evaluate and to inform the

24 public about every cease-fire that was concluded. As you see, not a

25 single barracks had had the siege lifted. What's more, some of these

1 blockades were even strengthened, and an unusual gesture in diplomatic

2 practice occurred which brings into question the impartiality of the

3 international community. The four principles that Mr. Mesic had put

4 forward at the inaugural session of The Hague Conference on the 7th of

5 September had all been trampled on, especially the third one, which says

6 that every option was to be treated equally and that nothing could be

7 imposed on anyone by force.

8 What is special about this statement is that none of the

9 obligations undertaken by Tudjman at The Hague Conference in relation to

10 the cease-fire had been carried out.

11 Q. In the fourth paragraph of this document, you mention a letter

12 that you sent. It says: "It was emphasised at the session that the

13 stipulations of Dr. Franjo Tudjman, president of the Republic of Croatia

14 in commanding the Croatian Armed Forces were unacceptable and contravened

15 the positions and the decision adopted on 18 October 1991 in The Hague.

16 Thus prompted, the SFRY Presidency addressed a letter to Lord Carrington

17 and to the chairman of the EC Council of Ministers van den Broek, pointing

18 out that establishing peace, unfortunately, depends exclusively on the

19 Republic of Croatia implementing agreements, and the behaviour of the

20 Armed Forces. It was also pointed out ..." and so on.

21 And then: "Concern was expressed by the SFRY Presidency because

22 of the situation in which JNA members found themselves in the barracks

23 that were under siege, as well as several members of their families in the

24 Republic of Croatia."

25 What were the responses to this letter that you sent, and were

1 there any positive developments after this or not?

2 A. No. There were no positive responses. We really expected that

3 the European Community, as it had promised at the very outset, would use

4 its influence and authority to get the Croatian and Slovenian leaderships

5 to search for political solutions peacefully. None of this was achieved,

6 and I believe that on the 5th of November, at the next session of The

7 Hague Conference, Lord Carrington expressed this very well. He opened the

8 session by stating that the conclusions of the Presidency of the 18th had

9 not been carried out and that Croatia had not lifted the blockade of the

10 military barracks of the JNA on the territory of Croatia.

11 Q. And what is there in tab 40? What is the content of the

12 Presidency decision on mobilisation?

13 A. This is a detailed answer to one of the questions put by Judge

14 Bonomy as to who violated the cease-fires.

15 First it speaks of the blockade of the work of the tripartite

16 working group.

17 Q. What was that group?

18 A. At The Hague Conference of the 18th of October -- or, rather, the

19 Presidency meeting, with all the members present, it was agreed that there

20 should be an unconditional cease-fire and an unconditional lifting of the

21 blockade of the barracks. The modalities and manner of the withdrawal of

22 the JNA from the territory of Croatia was to be discussed at the

23 tripartite working group and agreed in that group. However, the Croatian

24 leadership procrastinated and started imposing conditions on the lifting

25 of the blockade, at the same time failing to respect the cease-fire.

1 And at the beginning of the next page, at the top of the next

2 page, that is at the bottom of page 495 and the beginning of the next

3 page, it says that: "On the -- between the 20th and 21st of October,

4 1991, members of the armed formations of the Republic of Croatia carried

5 out 34 attacks on JNA units and facilities. In these attacks, 12 JNA

6 members were killed and 37 were wounded, of whom 11 seriously and 26

7 slightly." There were 24 attacks, that is. Although, according to the

8 decisions from The Hague, Croatia had been required to lift the blockade,

9 it had not done so. Moreover, some garrisons, Zagreb, Karlovac and

10 Sibenik, the blockades have been intensified."

11 "The regular supply of food, electricity and water is still

12 blocked and hindered in the barracks and military facilities of the

13 Republic of Croatia. At a meeting of the tripartite working group in

14 Zagreb, the representative of the Ministry of Defence of the Republic of

15 Croatia refused to allow the lifting of the blockade of barracks to be

16 placed on the agenda and said that this issue could only be discussed on

17 condition that the evacuation of JNA units from Croatia be discussed

18 first. It is a known fact that under the decision adopted in the Hague,

19 the blockade of the barracks was to be lifted immediately and the blocked

20 barracks and facilities were to be evacuated as soon as possible following

21 a schedule that was to be agreed at a meeting of the tripartite group in

22 Zagreb."

23 Q. In the fourth paragraph, under the title "Obstruction of the work

24 of the tripartite working group," it says: "Members of the armed forces

25 of the SFRY have completely observed the cease-fire order of the 19th of

1 October, 1991. They were never the first to open fire, and they only

2 fired back when they were forced to defend themselves."

3 Is this the situation obtaining at the time?

4 A. I have to say that throughout this time, throughout the time of

5 the crisis on the territory of the former SFRY, the JNA acted with extreme

6 restraint. Hardly any army anywhere in the world could have shown so much

7 patience and restraint.

8 Q. And towards the end, you say: "The armed forces will comply with

9 the Presidency decision of the 18th of October."

10 A. They always found ways to not comply with anything we had agreed

11 on. You can see that here. It says clearly: "The decision adopted in

12 The Hague specified that only the blocked garrisons would be evacuated.

13 The Republic of Croatia, however, still requests that JNA units withdraw

14 from all the garrisons and facilities in the territory of that republic."

15 Q. Let's dwell briefly on the issue of mobilisation. In paragraph

16 65, it says: "The Presidency called for the mobilisation of reservists in

17 Serbia and other regions that want to stay in Yugoslavia." That's in this

18 quoted paragraph.

19 Was this full or partial mobilisation? What did it imply? On

20 whose initiative was this decision made? Does what it says in paragraph

21 65 of the indictment hold water?

22 A. This is completely incorrect. The Presidency could never have

23 made such a decision, the calling for mobilisation in Serbia. At the

24 request of the staff of the Supreme Command, the Presidency called for

25 raising the manpower levels, because the generation of September and

1 October of 1990 who were completing their training, which lasted for a

2 year, were being sent home. Had we wanted to wage war and engage in

3 offensive action, we would not have let two generations of already trained

4 soldiers go home.

5 Q. Now, in this Presidency decision is there any mention made of

6 Serbia? Because in paragraph 65 of the indictment, it said that

7 reservists -- "called for the mobilisation of reservists in Serbia."

8 A. No. There's no formulation like that at all.

9 Q. All right. Fine.

10 THE ACCUSED: [Interpretation] I apologise, Mr. Robinson; I omitted

11 to ask that these documents that we've already been through and quoted

12 from be tendered into evidence as exhibits.

13 JUDGE ROBINSON: Yes, they may be exhibited.

14 MR. MILOSEVIC: [Interpretation]

15 Q. Otherwise, on page 68, line 20 of the transcript, it says: "Can a

16 unitary state in Yugoslavia be the same thing?" And I said "Was a unitary

17 state of Serbia and Yugoslavia one and the same thing or can they be one

18 and the same thing?" So I should like to ask that that be put right in

19 the transcript.

20 JUDGE ROBINSON: Yes.

21 MR. MILOSEVIC: [Interpretation]

22 Q. At whose decision was this decision on mobilisation made?

23 A. At the proposal of the federal secretary for national defence,

24 that is to say general or, rather, the commander of the supreme -- supreme

25 General Staff, Veljko Kadijevic.

1 Q. You mean the Chief of Staff.

2 A. Yes, the Chief of Staff.

3 Q. In tab 77, now, we have General Kadijevic's statement of the 22nd

4 of October in the Presidency session. Do you have that?

5 A. Yes, I do.

6 Q. Now, these proposals by General Kadijevic were adopted by the

7 Presidency, were they? Which were they? Were they the three adopted

8 decisions that were incorporated into the decision we quoted earlier on?

9 A. Yes, that's right.

10 Q. Tell us now, please, the decisions made by the Presidency of the

11 22nd, were they offensive in nature, of an offensive nature or defensive

12 in nature?

13 THE INTERPRETER: Could the witness repeat his answer, please.

14 JUDGE ROBINSON: Please repeat your answer. The interpreter did

15 not hear it.

16 THE WITNESS: [Interpretation] I said that it is quite clear from

17 the formulation and the contents of these proposals for measures to be

18 taken that they were of a defensive nature, not offensive.

19 MR. MILOSEVIC: [Interpretation]

20 Q. Professor Kostic, did you take part at The Hague Conference on

21 Yugoslavia in the autumn of 1991?

22 A. There was -- there were a number of Hague conferences. I took

23 part in three of them. The first inaugural meeting of The Hague

24 Conference, on the 7th of September, I attended that one, and the 18th of

25 October meeting as well, and the 5th of November meeting, 1991. I

1 attended those three.

2 Q. What was your attitude towards the proposals presented by Lord

3 Carrington?

4 A. Well, I, for example, stemming from my own personal views and

5 positions and my desire to settle the conflict peacefully, to settle our

6 political crisis peacefully, but also stemming from our right that if

7 certain republics wish to secede, then those who wish to remain living in

8 a common state, joint state, should be given equal treatment, at least

9 equal treatment as those who wish to secede and are seceding in a forcible

10 manner. So it was along these lines and in that sense that I was rather

11 reserved vis-a-vis the first chapter of The Hague document.

12 And let me also say that Lord Carrington at the very outset did

13 not attend -- invite the Presidency of the SFRY to attend the conference

14 at all, and then we sent September a sharp-worded letter of caution in

15 which we stated that even if the presidents of the republics did agree,

16 that the decision -- that the decisions would not be fully valid because

17 it is not up to the presidents of the republics to decide such matters but

18 it was up to the Presidency as the head of state to decide such matters.

19 Now, the first chapter of The Hague document left open the

20 possibility in practical terms that of the six republics of the former

21 SFRY six independent and sovereign states be automatically constituted.

22 Yugoslavia would be wiped off the political map at The Hague Conference.

23 Serbia and Montenegro already at that time expressed their desire to

24 continue living together in a joint state, and at The Hague Conference,

25 similarly, that right of theirs was challenged precisely by the leaders of

1 the secessionist republics, and thereby the third principle was trampled

2 upon, the third principle from the joint appearance that Mr. Mesic

3 publicised at the inaugural conference of the 7th of September in The

4 Hague, and that was that all options should be taken on an equal footing.

5 Q. Do you remember the amendments tendered by the then president of

6 the Presidency of Montenegro, Momir Bulatovic and I myself?

7 A. Well, that amendment followed on the steps of the 18th Presidency

8 session held on the 18th. Mr. Carrington didn't -- Lord Carrington did

9 not give me the floor, did not allow me to speak at The Hague Conference,

10 and after that meeting there was an amendment that followed. In fact,

11 there were two amendments. One was sent by you and Mr. Bulatovic, and the

12 second amendment was sent in by the Montenegrin Presidency, but the

13 substance of those two amendments was almost identical. It said that,

14 along with acceptance of everything stated in the first chapter of The

15 Hague document, you went on to propose that there should be another point

16 included which would read roughly as follows -- I have it somewhere but to

17 paraphrase it, there was just one sentence, and it was this: To recognise

18 the rights of those who wish to continue living in a joint state to do so,

19 just as the right of those secede was recognised; that they be treated

20 equally.

21 Q. So to be treated equally, those who wished to step down from

22 Yugoslavia and those who wished to remain in Yugoslavia?

23 A. Yes, that's right.

24 Q. Was that something that was not principled, to ask for the same

25 treatment, those wishing to leave and those wishing to stay? Was there

1 anything wrong with that?

2 A. That was a very principled stand and position. And let me say

3 again, the position adopted unilaterally -- or, rather, unitedly in the --

4 that was a stand that was fully endorsed by the Presidency.

5 Q. So you mean the Presidency of this SFRY, including Mesic as a

6 member and all the rest, accepted that position whereas later on this was

7 not incorporated into the Hague document, and we asked for the equal

8 treatment of those who wished to remain as well as those who wished to

9 leave. That was rejected.

10 A. Yes. They rejected it and I had the impression that Lord

11 Carrington was willing to adopt that amendment which would provide for

12 equal treatment for those wishing to secede and those wishing to stay in

13 the same state, however it was rejected -- I don't know who, but it was

14 rejected by the republics and leaderships of the republics which had opted

15 for secession.

16 Q. In paragraph 85 of this alleged Croatian indictment, it says the

17 following: "As of the 1 August 1991 until at least June 1992 --" that is

18 to say it was the period where you were -- you led the Presidency; is that

19 right? It says in Croatia there was a situation of armed conflict, and

20 there's a full stop there. "Up to the 7th of October, 1991, that conflict

21 was an internal one. From the 8th of October, 1991, an international

22 armed conflict and partial occupation existed in the Republic of Croatia."

23 Now what is it that happened on the 7th or 8th of October, 1991,

24 that the situation in Croatia which you've just described to us in all the

25 events suddenly turned into an international armed conflict and partial

1 occupation, as it says here?

2 A. Well, on the 8th of October, the Croatian leadership proclaimed

3 that the deadline had expired, the three-month deadline that had been

4 granted, it had been an erroneous interpretation of the Brioni

5 Declaration, in fact.

6 Q. When we looked into the Brioni Declaration, it had nothing to do

7 with Croatia, those three months.

8 A. Yes, but at the time they proclaimed their independence -- they

9 had proclaimed their independence, and this formulation given in the

10 indictment read out by you a moment ago is highly incorrect and actually

11 nonsensical, all the more so since in the indictment itself there is a

12 separate count or paragraph - unless I'm much mistaken, I think it's 110

13 or 109 - in which it is claimed that Yugoslavia had existed up until the

14 27th of April, 1992, when the constitution of the Federal Republic of

15 Yugoslavia was replaced by the constitution of the Socialist Federal

16 Republic of Yugoslavia. So in the indictment, to claim that up until the

17 8th of October, 1991, that conflict had an internal -- was of an internal

18 nature and after the 8th of October international nature, although I'm not

19 a legal man myself or an expert in international law, as far as I'm

20 concerned that is quite nonsensical.

21 Q. Now, do you know in what manner the Constitutional Court of

22 Yugoslavia reacted to the decision taken by the Sabor of the Republic of

23 Croatia, or its Assembly, the decision on the dissolution of the state

24 ties between the SFRY adopted on the 8th of October, 1991, the unilateral

25 act of the 8th of October? How did the Constitutional Court react to

1 that?

2 A. I think that the Constitutional Court of Yugoslavia, unless I'm

3 much mistaken, on the 12th of November, or around that date, or the 20th

4 of November perhaps, discussed the issue and decided and ruled that that

5 was unconstitutional and invalid, what the Croatian leadership had

6 adopted.

7 Q. Please take a look at tab 86 now, please, and in that tab you will

8 find the decision taken by the Sabor or Croatian Assembly, where it says

9 the 8th of October, 1991, where it says Croatia is abolishing all state

10 relationships which, based with the other republics and provinces made up

11 the SFRY up until that date. So that's the decision. I don't want to

12 quote it in full, but you have the document of it there and it is tab 86.

13 And in that same tab you have the decision on the constitutionality -- on

14 assessing the constitutionality of Croatia's decision to sever ties.

15 A. If you're referring to tab 86, I must say I don't have that tab in

16 my binder.

17 Q. Well, that's a technical error then on my part, I assume.

18 A. Yes, I do have it, I do have it.

19 Q. All right, fine. Tell us now, please, in view of the text of the

20 decision by the Constitutional Court, who moved proceedings before the

21 Constitutional Court against the Republic of Croatia and its severance of

22 any ties with the SFRY and the decision adopted on the 8th of October?

23 A. It was the Federal Executive Council that took those steps and

24 initiated those proceedings, led by the president or, rather, the Prime

25 Minister, Ante Markovic.

1 Q. Tell us now, please, to the best of your knowledge and your

2 understandings, according to the attitude of the Presidency, did the armed

3 conflict indeed change its nature when Croatia proclaimed its

4 independence?

5 A. I've already said, although I'm not an expert in legal matters,

6 any form, especially not international law, I would say that that

7 observation seems to me to be slightly ludicrous, although I'm a layman,

8 as I say.

9 Q. Now, the JNA was there. It was in its garrisons. It was

10 stationed throughout the territory of the former Yugoslavia. How long did

11 the JNA and prior to that the army of the Kingdom of Yugoslavia spend on

12 that territory, the territory for which it is claimed the international

13 armed conflict broke out there?

14 A. Well, the army was deployed throughout the territory and therefore

15 also on the territory of Croatia for a full 70 years, when the first

16 Yugoslavia was in existence and when the second Yugoslavia came into

17 being; throughout that time. And on the 8th of October, it was still the

18 sole constitutional armed force of the country, the country that was

19 Yugoslavia still.

20 Q. What can you tell us about the agreement to withdraw the JNA from

21 Croatia and the applications of that agreement, its implementation?

22 A. Well, we didn't have the intention in Croatia or anywhere else to

23 impose a solution by using the JNA on anyone, but to all intents and

24 purposes in Croatia, for example, and at the beginning in Slovenia and as

25 later happened in Bosnia where we did intend to pull out and withdraw

1 certain units of the Yugoslav People's Army, we were prevented in doing so

2 because those units of the JNA, which in peacetime were to be found on the

3 territory of Croatia, had been blocked for several months.

4 Q. All right. Fine. Now, a moment ago you told us how long the army

5 remained on the territory of Croatia. Tell me now according to the

6 Presidency decision and attitude and your personal attitude, could the

7 JNA, that JNA that had been there for decades, could it, on the basis of

8 the fact that Croatia had proclaimed its decision, which we can see was

9 rejected by the Constitutional Court, but based on Croatia's

10 proclamations, could it automatically become an occupying force?

11 A. No, it could not because, according to the constitution, it was

12 the sole constitutional armed force.

13 Q. But it found itself there, it happened to be there. These people

14 took their decision and suddenly it had the role of an occupier, having

15 been there for 17 years.

16 A. Not only was it not an occupier in those barracks, but it was

17 itself occupied by Croatia's paramilitary forces.

18 Q. But was it able physically to withdraw?

19 A. No. That's why I'm saying it could not have physically withdrawn,

20 because it was under a blockade. It was under siege.

21 Q. In paragraph 108 of the Croatian indictment, we have mention of

22 the fact that Tudjman, Kadijevic, and Milosevic were in Geneva with Vance.

23 The agreement called for the lifting of blockades of the barracks and the

24 withdrawal of the JNA forces from Croatia, and something is quoted there.

25 It says: "units under their command, control, or political influence."

1 That is the quotation. Can you explain that to us, please?

2 A. Well, it's the same explanation that I gave a moment ago when we

3 were discussing the Presidency meeting prior to The Hague Conference on

4 the 18th of October, when they were in full composition. In those

5 agreements at the time, we had the participation on behalf of the SFRY,

6 Mr. Kadijevic; and on behalf of the Croatian military forces, you had

7 Mr. Tudjman attending. And similarly, as insistence was made then on this

8 occasion too, and many times later, insistence was made on your

9 participation regardless of the fact that in the formal sense, in the

10 formal legal sense, you did not have the competence and authority to do

11 so. However, all the actors in the international community that were

12 included in trying to solve the Yugoslav crisis and trying to assist in

13 it, their attitude towards you was towards a man who enjoyed high

14 political authority and influence. So I think that this formulation

15 reflects that, because the political influence is stressed there.

16 JUDGE ROBINSON: Mr. Milosevic, we'll take the break now for 20

17 minutes.

18 --- Recess taken at 12.23 p.m.

19 --- On resuming at 12.47 p.m.

20 JUDGE ROBINSON: Mr. Milosevic, please continue.

21 MR. MILOSEVIC: [Interpretation]

22 Q. So what is the purpose, the meaning of this agreement, especially

23 in the part that relates to the lifting of the blockade of the barracks

24 and the withdrawal of the JNA?

25 A. The basic purpose of that agreement is to finally start doing what

1 was envisaged by the previous 14 agreements. Every one of those

2 agreements began with that demand, and it was a requirement for bringing

3 UN peacekeepers. If you mean the Cyrus Vance agreement.

4 Q. Yes, yes. And speaking of an army that's been in a territory for

5 70 years and that is currently under blockade in its barracks and is

6 unable to move, can it be considered an occupier?

7 A. That's a bit ridiculous.

8 Q. And can Krajina Serbs be considered occupiers in the area of

9 Krajina? Let's say a Krajina Serb who leaves his house in which his

10 family had been living for hundreds of years. If he leaves his house to

11 protect his family from attackers coming from hundreds kilometres away,

12 can he be considered an occupier as opposed to the person who is attacking

13 him who is treated as a fighter against occupation?

14 A. It is a well known fact that Krajina Serbs had lived there for

15 hundreds of years. So that's a ridiculous proposition, like many others

16 that can be found in the indictment. I had the impression, reading the

17 indictment, that this -- if a tsunami had happened before the indictment

18 was written, it would have been one of the charges against you.

19 Q. When was the last time Mesic chaired a Presidency session in The

20 Hague?

21 A. The last time that Mr. Mesic chaired a full Presidency session was

22 on the 18th of October in The Hague.

23 Q. All right. Let us play just another brief clip from that

24 television programme that was shown on Montenegro television.

25 THE ACCUSED: [Interpretation] Could you play the clip.

1 [Videotape played]

2 THE INTERPRETER: "[Voiceover] You say that Croatia had ambitions

3 to create its own independent state. Do you think that the fear of Serbs

4 from that independent Croatia was justified in view of the history, the

5 Jasenovac camp, the Independent State of Croatia, the iconography, and the

6 rhetorics of the Croatian Democratic Union, especially if we bear in mind

7 Tudjman's statement?"

8 THE INTERPRETER: The sound is gone.

9 "[Voiceover] Well, that statement of his will continue to be paid

10 for by our people. A person, especially a president of the state,

11 shouldn't even think that, let alone say it aloud. I have to say, for the

12 sake of truth, on one side there were misgivings among the Serbs, and that

13 fear was of a recreation of that independent state of Croatia that was

14 everything but independent. It was a creature of the Third Reich, the

15 powers of the axis; Germany and Italy."

16 MR. MILOSEVIC: [Interpretation]

17 Q. Were you able to hear?

18 A. I heard.

19 Q. Could you comment on what he said?

20 A. Well, here, answering the question from the anchor whether Serbs

21 in Croatia had reasons to fear, Mr. Mesic confirmed that they did indeed

22 have reason to be afraid because there were many things that reminded them

23 of what had happened in the Independent State of Croatia, when Croatia was

24 not actually a state but a creature of the Third Reich, as he said.

25 Q. You said a moment ago that he chaired a session on the 18th of

1 October.

2 A. Yes.

3 Q. And we saw in the paragraph that was quoted that on the 7th of

4 October some international armed conflict happened. Explain to me,

5 therefore, how is it possible for a president of an occupied state to

6 chair a session of the Presidency of the -- which is a Supreme Commander

7 of the occupying force?

8 A. I cannot explain that.

9 Q. Then please read the second half of the penultimate paragraph --

10 JUDGE ROBINSON: [Previous translation continues] ... occupying

11 force, because an occupying army is a particular concept in the law of

12 armed conflict. But as used in the indictment, does it mean anything

13 other than that the Serb forces were there?

14 It's not clear to me, because you have used the term several

15 times, so you attach importance to it, and I'm not sure whether that

16 significance is to be gathered from the indictment.

17 THE ACCUSED: [Interpretation] Well, Mr. Robinson, paragraph 85

18 says: "From 8 October 1991, there was international armed conflict and

19 partial occupation in the Republic of Croatia."

20 I don't attach importance to it because it's correct but because

21 it's absurd, because it begs the question of whether an army that has been

22 legally on the territory of its own state for 70 years can become an

23 occupier overnight and whether the local people can become occupiers on

24 their own doorstep. How can it be used in a serious text -- at least,

25 Mr. Nice pretends its serious. How can that term be used if it's pure

1 absurd?

2 JUDGE ROBINSON: Very well. It just wasn't clear to me the sense

3 in which you were using it. For example, in paragraph 109, there's a

4 reference to "the areas occupied by Serb forces." And further on, there

5 is a reference to "the Serb-occupied areas," and "the territory of the RSK

6 remained under Serb occupation."

7 It's not clear to me whether all of that translates into an

8 occupying army, but we need not debate that now. Please proceed with the

9 questions.

10 THE ACCUSED: [Interpretation] All right. We can also ask the

11 witness.

12 MR. MILOSEVIC: [Interpretation]

13 Q. Was it under some sort of Serb occupation; and if so, in what way?

14 A. I can only say what I have already repeated several times here.

15 In the area of Serbian Krajina in Croatia, where the majority population

16 was Serb, the Serbs had lived several hundred years. I don't know how it

17 is even possible to talk about those Serbs there who had their property,

18 houses, as somebody who occupied the territory. That's one.

19 And second, in those places where there was JNA presence, we

20 cannot talk about the JNA as an occupying force unless we accept the

21 language of Mr. Mesic and others from the secessionist republics who

22 called the Yugoslav People's Army an occupying army. But in practical

23 terms, until --

24 JUDGE ROBINSON: Mr. Milosevic, in paragraph 109, the line I just

25 read: "The territory of the RSK remained under Serb occupation." I think

1 "occupation" there, it seems to me, means habitation. Well, on the face

2 of it, but it's a matter to be determined.

3 THE ACCUSED: [Interpretation] Well, that there was Serb habitation

4 there for centuries is not in dispute. But in my terminology and my

5 language, "occupation" means something quite different. If that is

6 considered occupation when I occupy my house, then your interpretation

7 would be correct. Then it is not something that could be a charge against

8 someone. How can somebody be charged with occupying their own home? Why

9 did it find its place here at all then?

10 JUDGE ROBINSON: Please proceed. Proceed with the questions.

11 MR. MILOSEVIC: [Interpretation]

12 Q. Professor Kostic, please read the second half of the penultimate

13 paragraph and the last paragraph on page 294 of Mesic's book. That's tab

14 73. What does Mesic say, how he participated in the convoy of ships to

15 Dubrovnik?

16 A. Could you repeat the page number again?

17 Q. Page 294 of his book. Read the second half of the penultimate

18 paragraph, beginning with the words: "As a result of the commitment of

19 the most prominent intellectuals ..." and the last paragraph on that page.

20 A. "As a result of the commitment of the most prominent intellectuals

21 of Croatia that was unequivocally supported by the humane world but also

22 due to the chauvinism of the unpoisoned personality of Belgrade, a

23 humanitarian convoy of ships and vessels was organised to set out on the

24 28th of October from Rijeka, make a stopover in Zadar, Split, and Korcula

25 and set in, if everything goes according to plan, at Dubrovnik on the

1 morning of the 30th of October. I decided to join the convoy to give my

2 support to general solidarity, but also because somehow I was number one

3 in the Supreme Command."

4 Q. Let me ask you about this. He says he was man number one in the

5 Supreme Command, that he was indeed president of the Presidency, so it's

6 not in dispute. How is it possible then for the president of an occupied

7 state, as he put it, to be at the same time number one of the Supreme

8 Command of the occupying force and to set in to places held by that

9 occupying army?

10 A. That is pure nonsense. And although you are telling me I'm going

11 into too much detail in my testimony, but I have to say that while

12 Mr. Mesic was president of the Presidency, he was president of the

13 Presidency as long as it suited him. Whenever it didn't suit him, he

14 appeared paralysed and disabled from performing that function.

15 In all this time as a president of the Presidency, did not have

16 any powers circumventing the authorities of the full Presidency to go and

17 make any international visits. But he did go to Vienna, Berlin, Brussels,

18 Washington, London, The Hague, and he appeared everywhere as president of

19 the Presidency of the SFRY, although both under the constitution and under

20 the rules of procedure of the Presidency, he did not have such powers. So

21 now when he was supposed to join the convoy to Dubrovnik, and he says

22 himself he was bringing volunteers, he presents himself as number one of

23 the Supreme Command.

24 Q. And how is it possible for this number one man in the Supreme

25 Command to go there, and he is at the same time president of an occupied

1 state? Is that possible?

2 A. I can't explain that.

3 Q. Can you read the heading and the first few lines on page 305. It

4 says: "Dismantled Yugoslavia disappears even formally."

5 A. Page 305?

6 Q. Yes, 305. What does he say? Read the title and the first and

7 penultimate points of the sub-heading.

8 A. He said: "Dismantled Yugoslavia disappears even formally. The

9 4th of November until 5th December 1991."

10 Q. So Mesic claims that Yugoslavia disappeared by 5th December 1991.

11 This indictment claims that as of 8th October there existed armed conflict

12 and occupation. What is true?

13 A. Neither is true. What is true is paragraph 110 or 109. That's

14 where I agree with the Prosecution. "Yugoslavia existed as an

15 internationally recognised state until 27th April 1992."

16 Q. And what does Mesic say? You told us in what capacity he

17 travelled to various places; Luxembourg, Belgium, France, his last travels

18 as president of the Presidency.

19 A. Well, he allegedly travelled as president of the Presidency of the

20 SFRY, but from everything he said and from his book, the purpose of his

21 travels was to advance the interests of the Croatian leadership, to secede

22 from Yugoslavia as soon as possible, and to achieve Croatian independence.

23 So he was actually engaging in anti-constitutional activity.

24 Q. And when did the Croatian Assembly withdraw Stjepan Mesic from his

25 post as president of the Presidency?

1 A. I believe it happened on the 5th of December, 1991, in the

2 Croatian Assembly.

3 Q. Let us look at the 5th of December. In what way did Stjepan Mesic

4 make his last report to the Croatian Assembly about the Presidency

5 session? That's the 5th of December, 1991.

6 [Videotape played]

7 THE INTERPRETER: "[Voiceover] ... became a self-reliant and

8 independent Croatian state. I have performed my task. Yugoslavia is no

9 more. Thank you very much."

10 MR. MILOSEVIC: [Interpretation]

11 Q. What did he say here?

12 A. "I have performed my task. Yugoslavia is no more. Thank you very

13 much."

14 Q. So he has performed his task and Yugoslavia is no more. The other

15 day you said here that the title of his first book was "How I Toppled

16 Yugoslavia."

17 A. Yes, that's what he himself said, and then Genscher told him it

18 would not be received well. That's why he changed the title to "How We

19 Toppled Yugoslavia," and then in the final version it was, "How Yugoslavia

20 Was Toppled."

21 Q. So this title has its evolution, but now we've seen the original

22 footage, where he says, "I have performed my task. Yugoslavia is no

23 more."

24 Let us now look at a clip where he speaks in the Sabor, the

25 Croatian parliament, and it's here on page 296, where I say: "[Previous

1 translation continues] ... [In English] confidence, and you made a

2 notorious statement to the effect that you -- that you -- I have performed

3 my task. Yugoslavia is no more.

4 "Is it so, Mr. Mesic?"

5 [Interpretation] I'll jump over what I asked because we have seen

6 this on the footage.

7 His reply: "[In English] Excellent question. I will explain what

8 this was about. The Croatian parliament elected me to be Croatian member

9 of the Presidency of Yugoslavia." [Interpretation] Then he goes on to

10 explain how he was elected. We've been through all that.

11 And he says: "[In English] ... decision of its independence,

12 Croatia, in agreement with the international community, postponed its

13 secession from Yugoslavia by three months. This time period had elapsed.

14 Yugoslavia no longer existed. The federal institutions were no longer

15 functioning. I returned to Zagreb, and that's precisely what I said,

16 because I did not go to Belgrade to open up a house painting business. I

17 went there as a member of Presidency of Yugoslavia. Since Yugoslavia no

18 longer exists and Presidency no longer exists, I perform the task

19 entrusted to me by Croatian parliament and was reporting back, ready to

20 take up a different office."

21 "Very well, Mr. Mesic. This is truly worth your admiration, your

22 explanation of what you said, but you haven't told me whether you actually

23 said, 'I have performed my task. Yugoslavia is no more.'

24 "The accused is a lawyer, he understands very well what I'm

25 talking about. My task was to represent Croatia in Federal Presidency."

1 [Interpretation] And then I say there's no need for him to mention

2 that.

3 Well, you have now seen the footage. Is what he says in his

4 testimony correct or is what is correct what we see in the footage?

5 A. Well, there's no doubt that what we have seen in the footage is

6 true. On that same occasion, Mr. Domljan, who was the speaker of

7 parliament, the Croatian parliament at the time, literally said, I quote

8 -- it's on page 320 of Mesic's book --

9 JUDGE ROBINSON: The Chamber will make up its mind as to what is

10 true, what is credible, so move on to another matter.

11 THE ACCUSED: [Interpretation] Very well.

12 MR. MILOSEVIC: [Interpretation]

13 Q. Tell me, Professor Kostic, how is it possible for a representative

14 of an occupied state for a full two months after the so-called occupation

15 remains the head of state --

16 JUDGE ROBINSON: That's not a permissible question.

17 THE ACCUSED: [Interpretation] Very well.

18 MR. MILOSEVIC: [Interpretation]

19 Q. We will then move on. Of what Yugoslav republic was General

20 Kadijevic a representative when he was elected as secretary of defence?

21 A. Of Croatia.

22 Q. And until what time did he hold that post?

23 A. Until -- well, just before the end of 1992, he announced that, for

24 reasons of health, he had to resign. Officially, it was the 8th of

25 January, 1992.

1 Q. So how is it possible for a minister from an occupied state to be

2 at the head of an army that is actually occupying that state?

3 A. I have no question [as interpreted].

4 Q. And what was he?

5 A. He was a minister. He was a member of the Federal Executive

6 Council, which is practically the government.

7 Q. And who was at its head at the time mentioned in the indictment,

8 the 8th of October, 1991?

9 A. It was Ante Markovic.

10 THE INTERPRETER: Could there be a pause between question and

11 answer, please.

12 JUDGE ROBINSON: Mr. Milosevic and the witness, the interpreter is

13 asking you to pause between the question and the answer.

14 THE WITNESS: [Interpretation] Also from Croatia.

15 MR. MILOSEVIC: [Interpretation]

16 Q. Until when was Markovic the Prime Minister of the federal

17 government?

18 A. I don't know the exact date, but I think it was around the 20th

19 or the 22nd of December, 1991.

20 Q. Do you remember why Ante Markovic resigned on the 20th of

21 December, 1991?

22 A. Ante Markovic resigned because he did not agree with the other

23 members of the government about the federal budget for 1992.

24 Q. I just wanted that on the record. How was it possible for the

25 representative of an occupied state to be the Prime Minister of the

1 government of an occupying state?

2 A. I really have no answer to that question.

3 JUDGE ROBINSON: Don't answer that. Don't answer that question.

4 Next question.

5 MR. MILOSEVIC: [Interpretation]

6 Q. In paragraph 110 of the Croatia indictment, it says: "The SFRY

7 existed as a sovereign state until the 27th of April, 1992, when the

8 constitution of the Federal Republic of Yugoslavia was adopted, replacing

9 the constitution of the Socialist Federal Republic of Yugoslavia of 1974."

10 Is this correct, or what it says in paragraph 85, or can both

11 statements be correct?

12 MS. UERTZ-RETZLAFF: Your Honour, this is not a question for the

13 witness to answer. This is all about the statehood of Croatia, the legal

14 consequences of certain moves that were made. That's not for the witness.

15 We are actually wasting a lot of time now, for almost an hour on this, and

16 I think it should really be stopped.

17 JUDGE ROBINSON: That issue is not, as the Prosecutor said, for

18 this witness. Move on, Mr. Milosevic, and we really need to make some

19 progress. How much longer will you be with this witness?

20 THE ACCUSED: [Interpretation] I think at least a whole day.

21 JUDGE ROBINSON: You will bear in mind what I said to you

22 yesterday.

23 THE ACCUSED: [Interpretation] I am bearing it in mind, but I think

24 that this a witness is very important. He was at the head of the

25 Presidency practically throughout this whole relevant time period. That's

1 why I feel his testimony is relevant on all points.

2 MR. MILOSEVIC: [Interpretation]

3 Q. Professor Kostic, what did the SFRY Presidency put forward in the

4 information of the 15th of November, 1991, presented to the Assembly of

5 Yugoslavia regarding the resolution of the Yugoslav crisis?

6 A. I submitted an expose to the Yugoslav parliament. Not my personal

7 view but the assessment of all of us in the Presidency, and we

8 communicated to them our assessment of this situation which was causing us

9 extreme concern. All the efforts towards peace that we had invested and

10 everything we had done through General Kadijevic, who acted pursuant to

11 our orders, was yielding no results. At the same time, we stated that at

12 the Presidency level and at the level of the federal government work was

13 being carried out on parallel tracks. Mr. Ante Markovic as the Prime

14 Minister, and Mr. Budimir Loncar as the foreign minister were failing to

15 carry out their constitutional obligations referring to the preservation

16 of Yugoslavia, as opposed to Mr. Gracanin and Mr. Kadijevic who were the

17 minister of the interior and the minister of defence respectively and who

18 were acting in accordance with their constitutional duties.

19 We expressed our view that this was a very grave situation and

20 that a way out had to be found.

21 Q. And what was the main point of the letter sent to Lord Carrington

22 on the 19th of December regarding the Arbitration Commission by the

23 Presidency?

24 A. The Presidency expressed its disagreement with its -- with the

25 assessment made by the Arbitration Commission simply because the

1 commission failed to take into account the basic provisions of the

2 Yugoslav constitution which were then valid and in force, one of which was

3 the right of each nation to self-determination, including the right to

4 secession. The Arbitration Commission in this particular case did not

5 recognise the right of the Serbian people in the Republic of Croatia,

6 although even according to the constitution of Croatia, this nation was a

7 constituent nation of the Croatian state until Tudjman's government and

8 the HDZ removed it from the Croatian constitution and gave it the status

9 of an ethnic minority.

10 Q. How did the SFRY Presidency express itself on the 15th of

11 December, 1991, regarding the recognition of Croatia and Slovenia?

12 A. The Presidency evaluated this as a conscious attack on Yugoslavia,

13 as a move leading to further escalation of the conflict.

14 Q. How did the Presidency of the SFRY express itself on the 17th of

15 December, 1991, regarding the criteria of the European Community on the

16 recognition of new states?

17 A. In the same way the Presidency expressed its dissatisfaction,

18 because throughout this time, the time of the Yugoslav crisis, practically

19 until November the European Community had publicly supported the

20 preservation of the territorial integrity of Yugoslavia and the

21 comprehensive solution of the Yugoslav crisis, but evidently when Germany

22 finally managed to impose its own standpoint on the other members of the

23 European Community, a turnaround came about and the European Community

24 completely changed its standpoint. On the 17th of December, it publicly

25 announced and communicated the criteria to the Yugoslav republics,

1 encouraging them to queue up and apply for independence with the European

2 Community.

3 Q. Well, you explained this at length yesterday, so we will not dwell

4 upon it any longer.

5 What was --

6 JUDGE KWON: Professor, if you could explain to me in brief terms

7 the difference of being a constituent people on the one hand and being an

8 ethnic minority on the other hand.

9 THE WITNESS: [Interpretation] According to the Yugoslav

10 constitution and according to the constitutions of each individual

11 republic, it was defined. There were two kinds of status, that of a

12 constituent nation and that of an ethnic minority.

13 In Croatia, the two constituent nations of the Croatian Republic

14 were the Croats and the Serbs. All the others were designated as ethnic

15 minorities.

16 In Bosnia-Herzegovina, in the constitution of Bosnia-Herzegovina,

17 it was expressly stated that Bosnia-Herzegovina, as a socialist republic

18 within SFRY, was constituted by three constituent nations; the Muslims,

19 the Serbs, and the Croats. And this was in order of their numbers.

20 The difference between the way constituent nations were treated as

21 opposed to ethnic minorities - and I'm referring to Yugoslavia - and this

22 may not be a legal explanation, but the difference was that members of

23 nations that already had a nation state somewhere could not become

24 constituent nations in a Yugoslav republic.

25 For example, the numerous Albanian population living in Kosovo,

1 although they were more numerous than the Serbs were in Croatia, had the

2 status of an ethnic minority on the territory of Serbia, because there was

3 a nation state for Albanians in Albania. Serbs lived in Croatia and they

4 had the status of a constituent nation.

5 The provisions in the constitution of the SFRY and also in the

6 constitutions of the various republics clearly prescribed that the

7 interests of each constituent nation had to be taken into account. One

8 constituent nation, or two constituent nations in the case of Bosnia,

9 could not make any decisions without the approval of the remaining

10 constituent people. There could be no out-voting.

11 I don't know if this answer is clear enough.

12 JUDGE KWON: As long as the rights of the minority people are

13 respected, or to put it differently, unless they are discriminated, I

14 don't see much difference between constituent people and minority.

15 THE WITNESS: [Interpretation] With your permission, Mr. Kwon, had

16 you perhaps lived in the territory of the Balkans at any time, and had you

17 by chance lived in that area where the Serb people lived in Croatia, for

18 example, and if you had experienced everything that that peoples had

19 experienced in World War II, then you would understand that difference far

20 better. It is precisely because of that unfortunate destiny and fate that

21 the Serb people suffered during World War II that most -- this most

22 probably had an effect and the Serb people in the constitution were a

23 constituent nation together with the Croatian people.

24 JUDGE KWON: I understand that. My question was rather a

25 practical one. What is the difference in terms of the rights they have in

1 practical terms?

2 THE WITNESS: [Interpretation] Well, I think I've already told

3 you: All matters of fate and destiny that are decided must be decided

4 with the acquiescence of both or all three constituent peoples. And in

5 cases of national minorities, that is not required, not called for.

6 JUDGE KWON: And that is -- is that provided by the provision of

7 constitutional law -- constitution?

8 THE WITNESS: [Interpretation] It must be defined -- defined in the

9 constitution. I can look for it. The Croatian constitution and the

10 Bosnia-Herzegovina constitution, where that is stated.

11 JUDGE KWON: Thank you, Professor.

12 JUDGE BONOMY: One -- one of the attributes you ascribe to a

13 constituent people is the right to self-determination and secession. Now,

14 does that apply to a constituent people as a constituent people of a

15 republic separately from its application to that constituent nation or

16 people as part of the federation?

17 THE WITNESS: [Interpretation] Mr. Bonomy, I'm afraid that is too

18 complex a question for me to answer, but I'll do my best to answer on the

19 basis of practice, because I'm not a lawyer myself.

20 On the basis of practice and the experience we gained according to

21 the Yugoslav constitution and respect for the Yugoslav constitution and

22 the republican constitutions by the same token, both in the Yugoslav

23 constitution and in the republican constitutions, where there are a number

24 of constituent peoples making up a territorial whole, the basic principle

25 was that one nation, regardless of its number and size, can do anything to

1 the detriment of another people, make any fateful decisions.

2 In the case of Croatia, what happened was this: The Croatian

3 people to all intents and purposes by adopting the new constitution threw

4 out the Serbs, left out the Serbs. They were no longer this constituent

5 people. The same thing happened in Bosnia.

6 JUDGE BONOMY: Can I ask then, to just clear one thing to which I

7 think the answer is obvious but it would be helpful to have it on the

8 record: How many constituent peoples made up the Republic of Serbia?

9 THE WITNESS: [Interpretation] The Republic of Serbia was made up

10 just by one constituent peoples, and that was the Serbs.

11 JUDGE BONOMY: Thank you very much.

12 THE WITNESS: [Interpretation] But since there were no other

13 constituent peoples in the Republic of Serbia, what was decided was that

14 within the composition of Serbia you had two autonomous provinces; the

15 autonomous province of Kosovo and Metohija and the autonomous province of

16 Vojvodina.

17 JUDGE BONOMY: Thank you.

18 MR. MILOSEVIC: [Interpretation]

19 Q. I should like to ask us to hear a brief statement made by Lord

20 Carrington which I think would fit in very well here within the context of

21 our discussions and deliberations.

22 JUDGE ROBINSON: Mr. Milosevic, I'm advised that the booth is

23 looking for the tape. So move on, and we can come back to it.

24 Oh, it's there now.

25 THE ACCUSED: [Interpretation] Very well.

1 [Videotape played]

2 "This was a war that European leaders believed could have been

3 avoided.

4 "The Bosnian Serbs, until comparatively recently, have been in

5 the majority in Bosnia, and then the Muslims, who had a very much higher

6 birth rate, became predominant, the majority population, and this of

7 course was something very hard for the Serbs to swallow, and they made it

8 abundantly plain very early on that they were not prepared to accept the

9 situation in which there was an independent Bosnia under the constitution

10 which then prevailed. And indeed under the constitution which then

11 prevailed, it was not -- it was illegal for Izetbegovic to declare

12 independence because any constitutional change of that magnitude had to be

13 agreed by all three parties."

14 MR. MILOSEVIC: [Interpretation]

15 Q. I couldn't hear the soundtrack. I was just listening to the

16 interpretation into Serbian. I don't know whether you were able to hear

17 what he said in English.

18 So what is it that Lord Carrington says; that the proclamation of

19 independence was illegal because something like that had to be agreed upon

20 between the three constituent peoples. So when we're talking about the

21 rights of constituent peoples or a constituent people, the right to

22 self-determination, was it possible or was it legal to change the

23 constitution or legal status of a republic without the acquiescence and

24 agreement of the constituent peoples?

25 A. Absolutely not. And I think that Lord Carrington put this very

1 properly: It was illegal.

2 Q. All right. I hope that this explanation given by Lord Carrington

3 has served to clarify your dilemmas.

4 A. With your indulgence, Mr. Milosevic, may I be allowed to say

5 something further? Bosnia-Herzegovina also had a collective Presidency, a

6 collective head of state for the republic, and that Presidency was left.

7 They left because by the representative members of the Presidency of

8 Bosnia-Herzegovina who were the Serb representatives. But then a double

9 yardstick was applied. Alija Izetbegovic was treated throughout by the

10 international community as president of the Presidency of

11 Bosnia-Herzegovina and it never entered into anybody's head in the

12 international community that that -- to refer to that Presidency of

13 Bosnia-Herzegovina as a Rump Presidency because it didn't have any Serb

14 representatives in it.

15 Q. Although Lord Carrington also says that the decision was illegal.

16 A. Yes.

17 Q. And he was the chairman of the Conference on Yugoslavia, the

18 presiding officer. But let's move on to the next topic. What is the

19 meaning and substance of the SFRY Presidency to the Security Council in

20 December 1991, 21st of December?

21 A. Well, when we finally came to realise that all our efforts were

22 not bearing fruit and that the European Community was not giving us the

23 support and assistance the European Community had -- as a mediator, good

24 services had offered us at the very beginning and we received evermore

25 open criticism to the effect that the Yugoslav People's Army and the use

1 of the Yugoslav People's Army was aimed at taking over territory, we in

2 the Presidency arrived at the conclusion that the best solution would be

3 that we as a Presidency, as the Yugoslav state Presidency and the Supreme

4 Command, we address the UN Secretary-General and the Security Council and

5 to have them send the UN peace forces, which would be deployed in the

6 crisis spots in Croatia with the basic task of physically protecting the

7 Serb population living in those areas. And in that case, the Yugoslav

8 People's Army could withdraw from those areas, because it was accused of

9 being an occupying force.

10 So what we wanted was that the UN peacekeepers should take over

11 the role of physical protection for the population, because we considered

12 that the Croatian paramilitary formations would not attack the UN peace

13 forces as they had been attacking the JNA. So that a truce could be

14 established, a cease-fire, and then given those peaceful conditions

15 without mutual conflicts, a political settlement could be sought.

16 Q. On that same day, the 20th of December, you sent an opinion by the

17 Presidency to the Arbitration Commission having to do with the right to

18 self-determination. That was the subject; is that right?

19 A. Yes.

20 Q. And what was the reason for that? You wrote to the Security

21 Council to send in UN forces, and what did you write to the Arbitration

22 Commission?

23 A. Well, we said that we disagreed, and we said that the Arbitration

24 Commission failed to take into account the constitutional solutions that

25 we had adopted linked to the rights of each constituent people to

1 self-determination to the right to secession.

2 Q. What did it say in all the constitutions of Yugoslavia? Did it

3 say the people's of Yugoslavia, the nations of Yugoslavia, is that what it

4 said?

5 A. Yes, the peoples of Yugoslavia, that's what it said.

6 Q. And who were the peoples of Yugoslavia or the nations of

7 Yugoslavia that were enumerated in all the country's constitutions?

8 A. The people of Yugoslavia that were listed in all the constitutions

9 were as follows: The Slovenes, the Croats, the Serbs, the Montenegrins,

10 and the Macedonians. And from 1962 onwards, I believe --

11 Q. It was a little later. It was a little later.

12 A. Anyway, the Yugoslav coat of arms had five torches, symbolising

13 the five constituent peoples. Somewhat later, I think that was in -- in

14 the mid 1960s, the then party and state leadership of Yugoslavia

15 recognised the right of the Muslims as a national right, as a separate

16 entity. So that the Muslims too in Yugoslavia gained the status of a

17 constituent people. And from that moment on, in future constitutions the

18 Muslims are also listed as a constituent people. Of course, that was on a

19 religious basis.

20 Q. That was a little later on, but never mind, it's not relevant to

21 what we're discussing here I won't go into that now, but tell us, at whose

22 initiative was the Vance Plan adopted?

23 A. Well, the Vance Plan was adopted -- or what brought about its

24 adoption was the initiative of the four-member Yugoslav state Presidency,

25 which was in function as of the 3rd of October and continued working faced

1 with the situation of imminent threat of war.

2 Q. In tab 72 do we have a letter by the Yugoslav state Presidency

3 that was sent to the president of the Security Council, inviting the

4 Security Council to send peacekeepers to the country? I think you quoted

5 it in your book on page 133 to 135. It's in tab 72, if I remember

6 correctly.

7 A. I've found it.

8 Q. So what was it you asked for at the time? What did you request?

9 A. I don't know whether you want to read it -- me to read it all out.

10 Q. No. Just the elementary points.

11 A. Since we described the situation, the lack of respect of all the

12 truces agreed upon, and we highlight the blockade, and failure to comply

13 by Croatia and the Croatian paramilitaries and forces, we said the

14 following: With our invitation, or in view of everything that was

15 happening and in our call to have the UN peacekeepers come to the Republic

16 of Croatia in the border belt between the territories that are populated

17 by majority Serb population and territories where there is a majority

18 Croat population, we say in such a way that the UN forces would create a

19 buffer zone and separate the two conflicting sides until a peaceful and

20 just solution and one based on international law is found along with the

21 engagement of the United Nations, until the Yugoslav crisis is solved in

22 that way, thereby creating the necessary prerequisites for the Presidency

23 of the SFRY as the Supreme Command of the armed forces of the SFRY makes a

24 decision to disengage the Yugoslav People's Army in preventing

25 inter-ethnic clashes and conflicts on the territory of Croatia.

1 Q. So there you call for the UN peacekeepers to be sent in and the

2 disengagement of the army in view of the fact that the UN peacekeepers

3 would take on the role of protecting the population.

4 Now, when was the plan drawn up, just briefly?

5 A. Well, the plan was drawn up, I think, during the month of December

6 that was. And on the 2nd of January, 1992, I think it was, Mr. Cyrus

7 Vance informed the public that the plan had been drafted.

8 Q. What about the attitude of the authorities in Serbia? My own

9 attitude towards the Vance Plan?

10 A. There was undivided support for the Vance Plan, without any

11 reservations whatsoever.

12 Q. And what about the attitude of the overall -- the entire

13 Presidency towards Vance's plan? This was the initiative. Now, once the

14 plan had been compiled, what did the Presidency think about it?

15 A. Well, the basic substance of Vance's plan was to establish a

16 truce, to establish the physical protection of population in the area;

17 therefore, the Presidency was in favour. So the sense and substance of

18 Vance Plan coincided with our views as to how conditions could be created

19 for a political settlement to be found in peaceful conditions.

20 Q. Now tell me another thing: This striving to have the UN

21 peacekeepers sent to the country, can that be linked up with any intention

22 or intent to expel the Croats from some territory and then to attach that

23 territory to Serbia?

24 A. That's nonsense.

25 JUDGE ROBINSON: Don't answer that. Those are matters for the

1 Chamber.

2 THE ACCUSED: [Interpretation] Very well.

3 MR. MILOSEVIC: [Interpretation]

4 Q. Was there any resistance to having the Vance Plan adopted?

5 A. Well, I have to say that at the very outset there was great

6 resistance to the Vance Plan by most of the leadership in the Serbian

7 Krajinas on the territory of Croatia. However, with patient politicking

8 and numerous efforts at persuading them and explaining to them what it was

9 all about -- we had several meetings, one went on for 40 hours, a

10 Presidency meeting with the most responsible representatives of the Serbs

11 from Krajina -- all of them ended up by accepting the plan with the

12 exception of Mr. Milan Babic. And I have to say that at the time during

13 that -- those many hours of persuasion to have them accept the plan, we

14 were greatly assisted by the gentleman from the leadership of Serbs in

15 Bosnia-Herzegovina because they took part in the negotiations. And they

16 were Mr. Radovan Karadzic, for instance, Mr. Koljevic, Mr. Krajisnik, and

17 Mrs. Plavsic. Out of all of those, it was only Mrs. Plavsic who expressed

18 her non-agreement with the plan and gave her support to Milan Babic. Of

19 course, there were also the corps commanders such as Ratko Mladic. He was

20 commander of the Drina Corps at the time. He also lent his support to the

21 plan, and as a general and as a military commander, he cautioned what a

22 war conflict would mean and the sufferings that that would bring.

23 JUDGE ROBINSON: And on at that note, we must end the day's

24 proceedings. We will resume tomorrow at 9.00.

25 MR. NICE: Your Honours, do we know which witness is coming

1 tomorrow? Should we check, perhaps?

2 THE ACCUSED: [Interpretation] Well, with your permission, the

3 witness testifying tomorrow will be Ms. Eve-Ann Prentice. Eve-Ann

4 Prentice. I have to apologise to the witness for interposing

5 Ms. Prentice. I have already explained why I asked her to be interposed,

6 so I apologise to the witness for that.

7 JUDGE ROBINSON: Will she be here all day, all three sessions?

8 THE ACCUSED: [Interpretation] Yes. Well, I assume she'll have to

9 take up the whole day with the cross-examination as well.

10 JUDGE ROBINSON: Very well. We will adjourn. And you should be

11 back on Monday, the 6th, not tomorrow.

12 MR. NICE: If Your Honour thought I was looking a little

13 concerned, I was just wondering whether it would be prudent to ensure that

14 this witness is available. I don't know what the scope of Ms. or

15 Mrs. Prentice's evidence is going to be nor, thus, how long I will wish to

16 spend with her in cross-examination.

17 JUDGE ROBINSON: Yes. Well, in that event, then, you should make

18 yourself available for tomorrow. The Victims and Witnesses Unit will see

19 to that.

20 We are adjourned.

21 --- Whereupon the hearing adjourned at 1.47 p.m.,

22 to be reconvened on Friday, the 3rd day

23 of February, 2006, at 9.00 a.m.

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