Case No IT-95-14
1 Tuesday, 1st July 1997
2 (10.00 am)
3 Dr. Zoran Pajic (continued)
4 Examined by Mr. Cayley
5 JUDGE JORDA: Would you please be seated? Could we ask the
6 usher to have the accused brought in, please?
7 (Accused enters court)
8 JUDGE JORDA: Does everybody hear me? Are there any
9 technical problems? Does the Defence hear? Does
10 Mr. Blaskic-once he puts his headset on, Mr. Blaskic, do
11 you hear me? Do you hear me, Mr. Blaskic.
12 GENERAL BLASKIC: Good morning, your Honour. I hear you
13 fine.
14 JUDGE JORDA: Does the Prosecutor? Have they fixed all the
15 technical problems? All right. That's good. We can
16 resume at the point where Mr. Cayley stopped yesterday.
17 We resume therefore at 10 o'clock, and we should have a
18 pause around 11 o'clock or 11.15. 11.15, that would
19 allow everybody to rest up a bit but without having to
20 interrupt any testimony. I give you the floor,
21 Mr. Cayley.
22 MR. CAYLEY: Good morning, Mr. President, your Honours,
23 learned counsel. The Prosecutor would like to
24 continue, with your permission, Mr. President, with
25 Dr. Zoran Pajic.
1 (Witness enters court).
2 JUDGE JORDA: Good morning, profess off. Would you settle
3 yourself in, as you did yesterday? Please be seated.
4 Mr. Cayley?
5 MR. CAYLEY: Thank you, Mr. President. While the witness is
6 getting his paperwork ready, if I could just remind
7 everybody in the court where we are at the moment in the
8 course of Dr. Pajic's testimony. We are presently
9 referring to exhibits 38A, B and C, which are the
10 extracts chosen by Dr. Pajic from the Narodna list. You
11 will remember there are three different versions of
12 this. Yesterday we terminated at page 37 in the
13 English and Croatian version and page 40 in the French
14 version. That is grey tab number 2 on the side of the
15 file, so grey tab number 2, page 37 and page 40
16 respectively.
17 Dr. Pajic, are you ready to proceed?
18 A. Yes, I am. (In interpretation): yes, I am. Thank
19 you.
20 Q. Dr. Pajic, if I could refer you to page 40 -- rather page
21 37 in your edition -- which is specifically titled
22 "Rules of military discipline", without going into
23 particular detail in this extensive document, I would
24 like you to generally explain its structure and purpose
25 to the court.
1 A. This document is a collection of rules and military
2 discipline and, as I said yesterday, your Honour, I can
3 speak about this document only as a lawyer, that is to
4 say without going into the military terminology
5 involved, and the professional military contents of this
6 document. So from that point of view I can say, first
7 of all, that this is an unusually extensive document,
8 which shows the legislator, or rather the people who
9 worked on this piece of legislation devoted special
10 attention to the rules of military discipline, which is
11 the original title, because I believe that if this is
12 not the longest document that I had the opportunity of
13 analysing, it is definitely one of the longest and most
14 extensive ones. It even has 112 Articles.
15 In this document we find, first of all, provisions
16 on very clear rules regarding the breaking of
17 discipline. There is a special section on sanctions.
18 The procedure has been elaborated in detail, and there
19 are many material provisions. So from the point of
20 view of legal procedure and material procedure this is a
21 very detailed document, and, finally, there is the
22 structure of military disciplinary courts too.
23 Q. Dr. Pajic, what is the date of this document? When did
24 it come into force?
25 A. This document is dated 3rd July 1992. It was signed by
1 the President of the Croatian Defence Council and the
2 Croatian Community of Herceg-Bosna, so it is one single
3 person who signed this document in both capacities.
4 Q. Does this document, as you have stated before, show a
5 consistent structure based on subordination?
6 A. I have to repeat once again, although I said this
7 several times during my testimony yesterday, that this
8 is again a very consistent document, which fully shows
9 how much the principle of subordination has been carried
10 out completely, a clear hierarchy in terms of carrying
11 military discipline in the armed forces of the Croatian
12 Community of Herceg-Bosna, and may I reiterate again, as
13 a lawyer, I invariably have the impression that this is
14 an excellent example of legal skills in terms of
15 elaborating these documents.
16 Q. Thank you, Dr. Pajic. If you have nothing further to
17 say about that document, if I can take you to page 53 in
18 the Croatian and English text, and page 60 in the
19 French, which is a decision on establishing the criteria
20 for defining confidential defence data and special and
21 general procedures for their protection. If you could
22 make some general comments about this document?
23 A. This is a decision on establishing the criteria for
24 defining confidential defence data and special and
25 general procedures for their protection. Also this is
1 a rather extensive document in view of the subject
2 matter regulated by it. There are 24 Articles in it.
3 I believe it is characteristic. It should be
4 highlighted. The introduction, the introductory
5 section of this document shows that the armed forces of
6 Herceg-Bosna function in practice, the decree
7 establishing them. Article 10, paragraph 4, HZ H-B,
8 the function for adopting such a document was delegated
9 to the head of the Defence department. The Head of the
10 Defence Department was entrusted with adopting such a
11 document and signing it.
12 JUDGE JORDA: Excuse me, Mr. Cayley. I hope that this is
13 the right document I have in front of me. You are
14 talking about 10, paragraph 4. I do not have an
15 Article 10, paragraph 4. Perhaps I'm making an error
16 here.
17 MR. CAYLEY: Mr. President, the witness is actually referring
18 to a previous document, which was the decree on the
19 armed forces of the Croatian Community, which commences
20 at page 12 in the English text, and he is referring to
21 Article 10 of that text, which empowered certain
22 officials within the HVO to pass what I would call in
23 English terminology delegated legislation. I will just
24 ensure it is --
25 JUDGE JORDA: What decree are you talking about? Could you
1 tell me because I do not really see it here?
2 MR. CAYLEY: The decree on the armed forces of the Croatian
3 Community of Herceg-Bosna.
4 JUDGE JORDA: Yes, page 12 of the French version.
5 MR. CAYLEY: Correct, your Honour.
6 JUDGE JORDA: It's Article 10 then.
7 MR. CAYLEY: Correct.
8 JUDGE JORDA: Page 4, what's being discussed is the
9 structure of the command -- the command structure.
10 MR. CAYLEY: Article 10, line 4, the structure of command
11 and control of the armed forces.
12 JUDGE JORDA: Yes, I see it. Thank you.
13 MR. CAYLEY: Dr. Pajic, if you would like to continue.
14 A. I'm sorry for this bit of confusion that was created.
15 Perhaps I didn't state clearly enough why I'm referring
16 to the decree of the armed forces of the Croatian
17 Community of Herceg-Bosna. I refer to this decree
18 because it is mentioned in the preamble to the decision
19 on establishing the criteria for defining confidential
20 defence data. The reason I mentioned this first was
21 because I wished to point out that the system that is
22 elaborated on the decree on the armed forces from July
23 1992 functions in practice, that is to say that certain
24 departments of the Croatian Defence Council took over
25 the functions given to them by this previous decree of
1 the armed forces of the Croatian Community of
2 Herceg-Bosna, and they function according to the
3 principle of delegated responsibility.
4 I should repeat briefly that on the basis of these
5 principles this decision was signed by the head of the
6 department for defence of the HVO, not by the head of
7 the HVO personally, as was previously the case.
8 As concerns the contents of this decision, I
9 should say that the system itself was elaborated, the
10 rules and criteria and standards, as to what
11 confidential data are, who has the right to handle
12 confidential data and at what level certain confidential
13 data can be made available to certain persons.
14 I wish to draw your attention to Article 13
15 specifically, where there are different degrees of
16 confidentiality. It says that:
17 "Every information which is an official secret
18 depending on its importance shall be classified
19 according to one of the following degrees of
20 confidentiality: strictly confidential, confidential or
21 internal".
22 If we look at the legal and administrative legacy
23 of the former Yugoslavia, that is to say that certain
24 officials at certain levels had access either to
25 strictly confidential or confidential or only internal
1 papers, depending on the post they held. That would be
2 all I have to say on this document.
3 Q. Dr. Pajic, if you could now move on to page 59 in your
4 edition, that is page 67 in the French and page 59 in
5 the Croatian --
6 JUDGE JORDA: Mr. Cayley, Judge Shahabuddeen would like to
7 ask a question.
8 JUDGE SHAHABUDDEEN: Professor, just before you move on,
9 could I attract your attention to what I believe was the
10 last provision you referred to? I think that was
11 Article 13. More particularly I'm referring to the
12 second line on the first paragraph in which there's a
13 reference to the security and defence of the country.
14 The country there would be what country and the official
15 secrets there would be official secrets as between what
16 country and any other country?
17 A. If I may have a minute to read it, please ... (Pause.)
18 If I understood your question correctly, your Honour,
19 this is the protection of data that are important for
20 defence, and if they were to be revealed, it could
21 impair the security and defence of the Croatian
22 Community of Herceg-Bosna. So when it says "country",
23 what is meant is the Croatian Community of Herceg-Bosna.
24 JUDGE SHAHABUDDEEN: So the secrets which are enjoined by
25 that provision would include secrecy as between even the
1 Croatian Community and the Government of the overall
2 Republic of Bosnia-Herzegovina, would it? I'm not sure
3 I understand. In other words, if an official of the
4 Croatian Community were to divulge information to the
5 Government of Bosnia-Herzegovina, would that be caught
6 by the prohibition in that provision?
7 A. The way I understand Article 13, this would be a grave
8 breach of secrecy of protected data, data protected by
9 this provision.
10 MR. CAYLEY: Dr. Pajic, just to clarify the point that
11 Dr. Shahabuddeen is making, if I could refer you to
12 Article 2 of this decision, which I think makes it quite
13 clear who the proprietor of this confidential
14 information is?
15 A. Yes, you are right. It is Article 2 where it says and
16 I quote:
17 "Confidential defence data shall be deemed to be
18 data important to defence originating from the sphere of
19 competence from the administrative bodies of the
20 Croatian Community of Herceg-Bosna and legal bodies, the
21 discovery of which may cause harm to the security of HZ
22 H-B".
23 JUDGE SHAHABUDDEEN: I'm content.
24 MR. CAYLEY: Dr. Pajic, if I can refer you to page 59 of the
25 Croatian edition, that is page 67 of the French, if you
1 could very briefly make some comments on this
2 document. I think it also demonstrates the principle
3 of delegated legislation under Article 10, paragraph 4
4 of the decree on armed forces.
5 A. The Defence Department or the head of the Defence
6 Department issues the rules and the military
7 identification card, identifying the members of the
8 military of the Croatian Community of Herceg-Bosna,
9 that's to say those who serve in the armed forces.
10 Article 1 says:
11 "Members of the HZ H-B shall be issued a military
12 identification card".
13 The military ID is a public document attesting to
14 membership in the HZ H-B army. So this is the way in
15 which the members of the armed forces of the HZ H-B are
16 identified within the armed forces and vis-à-vis the
17 public.
18 Q. By whom is the document signed?
19 A. The document was signed by Mr. Bruno Stojic in his
20 capacity as Head of the Defence Department.
21 Q. If I could now refer you to page 60 of your text, page
22 60 in the English and Croatian versions and page 68 in
23 the French, this is a mandatory directive on the
24 enforcement of penal sanctions for acts committed
25 against the armed forces of the HZ H-B. Could you
1 briefly explain this document and give the court your
2 comments?
3 A. Again, this is a document which on the basis of the
4 previous authority I referred to was issued by the Head
5 of the Defence Department of the Croatian Community of
6 Herceg-Bosna. This is a mandatory directive, and its
7 exact title is "Mandatory Directive on the Application
8 of Current Regulations and Possible Pronouncement of
9 Penal Sanctions for Acts Committed against the Armed
10 Forces of HZ H-B". I shall refer to this document very
11 briefly. It is important, because it shows in practice
12 also not only on the basis of the documents that I
13 reviewed and that I quoted here until now, but it is
14 obvious that in practice, too, military discipline was
15 supervised and controlled and in the process of this
16 supervision 37 types of breach or violation were listed,
17 the first four paragraphs of the text. On this basis
18 one can see that indeed the Defence Department was in
19 charge of the military discipline in the armed forces of
20 the HZ H-B and adopted certain directives in this
21 connection.
22 Q. The date of this document is 14th August 1992?
23 A. Yes, that is correct.
24 Q. Thank you.
25 JUDGE JORDA: I have a copy where the signature has been
1 crossed out. Does this have any specific meaning,
2 Professor? I think this is something my colleagues have
3 picked up as well. You can see it has been crossed
4 out. Does it have any special meaning?
5 MR. CAYLEY: Mr. President, I can explain this. There was a
6 typographical error in the translation in that the name
7 of "Bruno Stojic, Department of Defence" was
8 incorporated into the English and French versions.
9 JUDGE JORDA: I am not get the translation here. I mean,
10 I'm not getting the interpretation.
11 MR. CAYLEY: So it is in effect a correction to make it
12 absolutely identical to the original version, to the
13 Croatian version.
14 JUDGE JORDA: Yes, thank you.
15 MR. CAYLEY: If I could now refer you, Dr. Pajic, to page 62
16 of the bundle before you, which is page 70 in the
17 French, and I think you can actually deal with the next
18 four documents, five documents together, these are
19 decisions on appointing various officials within the
20 departments of the HVO.
21 A. I have before me a few decisions on personnel matters,
22 appointments of individuals to certain posts within the
23 HVO, and, finally, a decision on the appointment of the
24 members of the commission for certificates for
25 elementary and secondary schools on the territory of the
1 Croatian Community of Herceg-Bosna. What these
2 documents have in common are that they were all signed
3 by the President of the HVO, who was at the same time
4 the President of the HZ H-B, namely Mr. Mate Boban.
5 Q. I think they all demonstrate the principle of delegated
6 authority from the preambular paragraph in that the
7 official appointing was actually utilising legislation
8 that had been previously passed; is that correct?
9 A. Correct.
10 Q. Dr. Pajic, if you have no further comments on the first
11 volume, we can now move on to document 3, and that, your
12 Honours -- the number of the document is indicated by
13 the grey tabs on the spine.
14 JUDGE JORDA: I would like clarification from the
15 Professor. On page 75, the last decision, could you
16 make a very brief comment which would explain why the
17 four individuals named as heads of the departments are
18 responsible for drafting formulas and diplomas in
19 primary and secondary schools? Would you have a comment
20 to make in answer to that question? It seems at least
21 theoretically to be kind of unusual. This is a very
22 troubled period. Then one sees these four individuals
23 who are going to be in charge of forms having to do with
24 the diplomas. It is really a clarification I'm asking
25 for. Just answer quickly please?
1 A. I understand this decision within the context of the
2 overall efforts to build up a State structure within the
3 Croatian Community of Herceg-Bosna which would through
4 its legislation and legal order cover all walks of life,
5 including the drafting of certificate forms for school
6 certificates. I think that is the only way to explain
7 this. This was probably given such importance because
8 in the drafting of these forms the wish was to reflect
9 certain cultural and national characteristics which were
10 given priority when the Croatian Community of
11 Herceg-Bosna was formed, but I agree with you,
12 Mr. President, that it is rather unusual at a time of war
13 and wartime environment to come across this type of
14 decision in the Official Gazette of Herceg-Bosna.
15 JUDGE JORDA: Yes, thank you. Mr. Cayley, go ahead, unless
16 there are any other questions from the bench. No. All
17 right. Go ahead, please.
18 MR. CAYLEY: Thank you, Mr. President. If I could now refer
19 you, Dr. Pajic, to document 3, which is the decree on
20 District Military Prosecutors Offices, published in
21 November 1992 and dated 17th October 1992, this
22 document, I believe, established a military prosecution
23 service within the territory of Herceg-Bosna. I wondered
24 if you could make some comments about this document?
25 A. During my testimony yesterday I pointed out that the
1 Croatian Defence Council held control over the
2 legislative, executive and administrative powers, and
3 yesterday I made a brief comment on the document dealing
4 with misdemeanours and breaches in the armed forces, and
5 I qualified that document as the first, though a modest
6 step towards the take-over or rather the establishment of
7 control over the judiciary by the Croatian Defence
8 Council. This decree, which was passed on 17th October
9 1992 on District Military Prosecutors Offices of the
10 Croatian Community of Herceg-Bosna is a step further on
11 building up an autonomous legal system in the Croatian
12 Community of Herceg-Bosna, and we shall see later on
13 that there is a continuity of effort in that direction
14 so that the judicial system should be subjected to this
15 centralised authority, the principle of unity of
16 authority within the hands of the HVO in the
17 Herceg-Bosna community.
18 I should like to draw your attention to Article 7,
19 which says that:
20 "The District Military Prosecutor and his deputies
21 shall be appointed by the HZ H-B Presidency at the
22 proposal of the Head of the Defence Department".
23 I should like to recall that the Presidency of the
24 Croatian Community of Herceg-Bosna is composed of
25 representatives of the Croatian Defence Council, as I
1 pointed out yesterday, when referring to the revised
2 text on the formation of the Croatian Defence Council,
3 dated July 1992.
4 Q. Dr. Pajic, if I could refer you to Article 4 of the
5 decree, which I think states to whom the District
6 Military Prosecutors were responsible for their work,
7 could you make some comments about that?
8 A. Article 4, paragraph 3, clearly says that, and I quote:
9 "The District Military Prosecutor shall be
10 responsible for his work to the Presidency of the
11 Croatian Community of Herceg-Bosna".
12 Q. So the Presidency both appointed the District Military
13 Prosecutor, the District Military Prosecutor was
14 responsible to the Presidency, and, as you said, a
15 constituent part of the Presidency was the HVO, the
16 Croatian Defence Council?
17 A. That is a correct conclusion.
18 Q. If I could now refer you to document 4, which is a
19 decision on the establishment of border crossings with
20 The Republic of Croatia?
21 A. This is a very interesting decision and it covers the
22 question of border crossings with The Republic of
23 Croatia. In connection with this decision I should
24 like to remind your Honours that the only two
25 internationally recognised states in this area, that is
1 the area of the border crossing mentioned in this
2 decision, is The Republic of Croatia, on the one hand,
3 and The Republic of Bosnia-Herzegovina, on the other.
4 I find it to be extremely unusual and strange that the
5 Croatian Community of Herceg-Bosna should pass a
6 decision unilaterally or autonomously on border
7 crossings with The Republic of Croatia. I stress again
8 that this is a borderline between The Republic of
9 Bosnia-Herzegovina and The Republic of Croatia. This
10 decision was passed on 12th November 1992, which means
11 more than six months after the international recognition
12 of both The Republic of Croatia and of Bosnia and
13 Herzegovina, when both were admitted to the United
14 Nations in May of that same year.
15 After reading this, my conclusion is that the
16 Croatian Community of Herceg-Bosna unilaterally
17 virtually appropriated the border crossings between The
18 Republic of Bosnia-Herzegovina and The Republic of
19 Croatia and by this independent decision designated
20 those border crossings.
21 Q. Dr. Pajic, if I could refer you to the recitals of this
22 decision pursuant to Article 18 of the statutory
23 decision on the temporary organisation of executive
24 authority, is this another example of delegated
25 authority at work within this structure?
1 A. On this occasion the signatory of the decision is the
2 President of the Croatian Defence Council, Dr. Jadranko
3 Perlic, who was in the meantime appointed President of
4 the HVO, and this decision was passed on the basis of
5 authority delegated to the HVO as a real government or
6 ministerial cabinet.
7 Q. Thank you. If I could now refer you to --
8 JUDGE JORDA: Judge Riad has a question.
9 JUDGE RIAD: Professor Pajic, your conclusion as to this
10 document indicates that the Government of, or the so
11 called Government of HZ H-B considered the borders as
12 the borders of Bosnia itself, so it means that it
13 extends, it considers itself as extensive in all the
14 country of Bosnia-Herzegovina. Would that be your
15 conclusion, or is there any other text or provisions
16 clarifying the borders of the Croatian -- the Bosnia
17 Croatian government?
18 A. My conclusion is that the Croatian Defence Council,
19 acting as the supreme executive body of the Croatian
20 Community of Herceg-Bosna, took this decision on the
21 establishment of border crossings along the frontier
22 line between two sovereign states, The Republic of
23 Croatia and The Republic of Bosnia-Herzegovina. This
24 implies that the Croatian Community of Herceg-Bosna
25 simply appropriated a frontier belt and took over
1 authority over that frontier belt from The Republic of
2 Bosnia-Herzegovina, because logic would indicate that
3 these frontier crossings can be designated only by
4 decision of the Government of Bosnia-Herzegovina based
5 in Sarajevo.
6 If I may continue, there is no example in theory
7 or practice of international law of any regional
8 communities within a certain state determining border
9 crossings with other sovereign states.
10 JUDGE RIAD: Would you conclude that the Croatian Community
11 considered its borders as the borders of
12 Bosnia-Herzegovina itself and that they should -- they
13 had no strict borders of themselves?
14 A. I believe in the opposite. By this decision the
15 Croatian Community is rejecting the fact that this
16 border is the border between The Republic of
17 Bosnia-Herzegovina and The Republic of Croatia, and it
18 appropriates this border as its own, which implies that
19 the Croatian Community sees itself as a sovereign state,
20 which is now situated -- if I may refer to the map we
21 saw yesterday, it is between The Republic of
22 Bosnia-Herzegovina and The Republic of Croatia, along
23 this border area referred to in this decision.
24 JUDGE RIAD: I'm sorry. I would like to be more
25 clarified. If I understand you rightly, they do not
1 consider that the party between -- the space between the
2 Croatian Community and Croatia as separate from them; is
3 that right?
4 A. Yes. This decision wants to show, in fact, that the
5 Croatian Community of Bosnia-Herzegovina is a sovereign
6 entity with respect to The Republic of
7 Bosnia-Herzegovina and is declaring border crossings by
8 itself towards The Republic of Croatia, completely
9 ignoring the sovereignty of the Republic of
10 Bosnia-Herzegovina in that particular border area.
11 JUDGE RIAD: I thought it was ignoring the existence of
12 Bosnia-Herzegovina itself, not only the borders. It is
13 speaking of the borders of Bosnia as its own borders?
14 A. It is ignoring the existence of Bosnia-Herzegovina and
15 implicitly it is ignoring that there exists a borderline
16 between The Republic of Bosnia-Herzegovina and The
17 Republic of Croatia in that particular area, and it
18 wants to proclaim that that area belongs to the Croatian
19 Community of Herceg-Bosna.
20 JUDGE RIAD: Exactly. Thank you very much.
21 A. Thank you.
22 MR. CAYLEY: If it would assist, Dr. Pajic, I have the map
23 for you there, so you can demonstrate visually what we
24 are talking about here to assist Judge Riad.
25 JUDGE JORDA: Judge Shahabuddeen has a question. Well,
1 first we could finish with the map in respect of the
2 question that was asked by Judge Riad. Judge
3 Shahabuddeen would like to ask a question. Professor,
4 would you first try to answer my colleague's question as
5 completely as possible before moving to the question
6 that Judge Shahabuddeen would like to ask.
7 MR. HAYMAN: Could we have the exhibit identified, your
8 Honour?
9 MR. CAYLEY: My apologies to my learned friend. It's
10 Exhibit 22.
11 JUDGE JORDA: Yes. This is one of the first that we saw.
12 We have to grant this objection. We have to identify
13 the exhibit so that the Defence can be sure about what
14 it wants to ask during its cross-examination.
15 Professor, please go on.
16 A. I apologise. I needed a little time to master this
17 equipment, but may I show you briefly what we are
18 talking about on this map? You see that the
19 south-western border of what is outlined here as the
20 territory of the Croatian Community of Herceg-Bosna
21 borders, in fact, on The Republic of Croatia. On this
22 map you do not see The Republic of Croatia, but this
23 entire area south-west of this border on the map is, in
24 fact, The Republic of Croatia. By this decision which
25 we are analysing now the HVO of HZ H-B determines
1 frontier crossings between the territory of the Croatian
2 Community of Herceg-Bosna and The Republic of Croatia.
3 In the territory between the municipalities of
4 Tomislavgrad and Imotski -- I should like to draw your
5 attention on this map we have the old name of the
6 municipality of Tomislavgrad as "Duvno". This name was
7 changed, as far as I remember, in 1990 from "Duvno" to
8 "Tomislavgrad". Beneath the letter "Z" you see the
9 name "Duvno", which is now called Tomislavgrad within
10 the Croatian Community, and on its western or
11 south-western side it borders on the municipality of
12 Imotski, which is a municipality within The Republic of
13 Croatia. Going further south, we see that the next
14 border crossing has been designated in the territory of
15 the municipality of Posusje. There's a printing error
16 here. It should be P-O-S-U-S, with an accent, J-E.
17 It borders on the municipality of Imotski, therefore the
18 same municipality within the territory of Croatia.
19 Further south we come to the municipality of Grude, one
20 of the component municipalities of the Croatian
21 Community, which also borders on The Republic of
22 Croatia. On the other side of the border is the
23 municipality of Imotski. The next border crossing is
24 in the territory of the municipality of Ljubuski
25 bordering on the municipality of Vergoraz in the
1 territory of the Republic of Croatia.
2 Finally, clearly there are two border crossings
3 between the municipality of Ljubuski on the one hand and
4 the municipality of Vergoraz in the Republic of Croatia,
5 and finally along the same borderline between The
6 Republic of Croatia and the Croatian Community of
7 Herceg-Bosna in the territory of the municipality of
8 Kaplina on the side of the Croatian Community and the
9 municipality of Metkovic in the territory of the
10 Republic of Croatian on the other side.
11 JUDGE SHAHABUDDEEN: Professor, I have a brief question
12 which runs like this. We have listened to your
13 testimony which moves in the direction of establishing
14 that a separate state with accompanying state apparatus
15 was being built up in the HZ H-B under the aegis of the
16 HVO. In proof of that interpretation you point to the
17 fact that the south-western boundary of the HZ H-B was
18 congruent with the south-western boundary of
19 Bosnia-Herzegovina and that the HZ H-B established
20 certain border crossings along that frontier, which was
21 the international frontier between Bosnia-Herzegovina
22 and Croatia. You referred to that as an act of
23 appropriation.
24 Now, the question which I have is whether similar
25 border crossings were or were not established by the HZ
1 H-B along those parts of its frontier with the rest of
2 Bosnia-Herzegovina?
3 A. I understand completely your question, and indeed from
4 the documentation placed at my disposal in the period
5 covered by the document that I analysed there is no
6 analogous decision of the Croatian Community of
7 Herceg-Bosna on the establishment of border crossings or
8 a borderline of The Republic of Herceg-Bosna.
9 If you are asking me for an explanation, I can
10 just guess. In this period, that is the period of
11 1992-1993, the situation was still not quite clear, and
12 there were some hesitant -- the Croatian Community of
13 Herceg-Bosna hesitated to break off relations with The
14 Republic of Bosnia-Herzegovina. As in this case, in
15 addition the signatory, the President of the HVO HZ H-B,
16 you find names referring to The Republic of
17 Bosnia-Herzegovina. On the one hand, The Republic of
18 Bosnia-Herzegovina is still the only internationally
19 recognised state in this part that we are talking
20 about. On the other hand, there is an obvious need for
21 the Croatian Community of Herceg-Bosna to create an
22 impression in relation to third parties of apparent
23 loyalty to The Republic of Bosnia-Herzegovina, which
24 will gradually weaken and will become less in subsequent
25 documents, particularly those dating from 1993 and 1994.
1 JUDGE SHAHABUDDEEN: Thank you.
2 JUDGE JORDA: Mr. Cayley, would you go on, please?
3 MR. CAYLEY: Thank you, Mr. President. Dr. Pajic, if I could
4 now refer you to document 5, which is a decision on the
5 import of goods from The Republic of Croatia and I
6 wondered if you could make some brief comments about
7 this document?
8 A. In this decision, to put it quite briefly, preferential
9 treatment is accorded to goods that are imported from
10 The Republic of Croatia or goods originating from The
11 Republic of Croatia. Special provisions are applied in
12 terms of customs tariffs that are applied in the case of
13 such goods.
14 Again, the general conclusion that I can draw from
15 this decision is that preferential treatment is accorded
16 and it is a well-known fact that preferential treatment
17 in international trade can only be accorded by a State
18 to a State, not by entities that are not states to other
19 states.
20 Q. If I could now refer you to document 6, which is the
21 decision on the structure of the Home Guard, could you
22 make some brief comments about this document, and in
23 particular I would like you to refer to Articles 3 and 5
24 of this document?
25 A. The decision on the structure of the Home Guard was
1 passed by the President of the Croatian Community of
2 Herceg-Bosna, and this decision actually stipulates that
3 the Home Guard as a special form of territorial defence
4 is established according to the territorial principle,
5 and Article 3 that you mentioned shows that the Home
6 Guard and I quote:
7 " ... shall be comprised of all local reserve
8 units of the armed forces of the HZ H-B and of new local
9 units formed according to the territorial principle".
10 As regards the chain of command, I draw your
11 attention to Article 5, which clearly shows and I quote:
12 " ... that units and headquarters of the Home
13 Guard shall be subordinated to the commands of
14 operational zones and to the general staff in the chain
15 of command".
16 That is to say that once these units start
17 operating they fall under the chain of command of the
18 operational zones and the general staff. The
19 elaboration of these regulations is given according to
20 Article 7 to the Defence Department of the HVO.
21 Q. If I could now refer you to document 7, which is a
22 decree on the coat of arms and flag of the Croatian
23 Community of Herceg-Bosna in times of war and the
24 immediate threat of war. It's a fairly detailed
25 document, but if you could draw the court's attention to
1 the provisions which are specific to your testimony.
2 A. In my opinion the point of the decree on the coat of
3 arms and flag of the Croatian Community of Herceg-Bosna
4 in times of war or the immediate threat of war is to
5 state clearly the identity, the external identity and
6 marks of this community. Therefore, we will see in
7 Article 8 a very detailed elaboration on the rules
8 governing the use of the coat of arms of the Croatian
9 Community of Herceg-Bosna. Not to quote all of this
10 Article, but it is stated quite clearly on what
11 occasions and on what documents the coat of arms of
12 Herceg-Bosna would be used, and also in Article 11 the
13 flag of the HZ H-B, when it will be displayed:
14 "At all times on the premises of all HZ H-B
15 bodies, on national holidays, on days of mourning", etc.
16 It also says that:
17 "Ships and other vessels shall fly the flag of the
18 HZ H-B".
19 So this is truly a document which is supposed to
20 complete this picture of the HZ H-B as an independent
21 entity. That is how I explain this. Heraldic experts
22 could probably say a lot more about this. What is
23 important is that there is a special chapter of this
24 decree on punitive provisions, penalties, and in
25 Croatian Dinars they stipulate the fines that are to be
1 paid by a legal person if they violate the rules and the
2 coat of arms and flag.
3 JUDGE JORDA: I thought, Professor, that you would try to
4 explain the title of this decree. During your answer
5 to Judge Shahabuddeen's questions you showed the process
6 that was going on, but this decree seems to restrict the
7 separatist notions. This has to do with imminent war
8 danger or war itself. Could you give us an explanation
9 of that, please?
10 A. I understand your question as one related to the time
11 when this decision was passed. The 18th November 1992
12 was when it was passed. Of course, its intention is
13 precisely in times of war, the immediate threat of war,
14 to give immediate identification of the Croatian
15 Community of Herceg-Bosna. Finally, we see that many
16 of these documents that I am quoting include this in
17 their titles "in times of war or the immediate threat of
18 war", because, as far as I know, that is the environment
19 in which this entity was being created and where it
20 was.
21 MR. CAYLEY: Dr. Pajic, if I could refer you --
22 JUDGE JORDA: Judge Shahabuddeen would like to ask a
23 question.
24 JUDGE SHAHABUDDEEN: Your evidence is directed to a process
25 of building up a State, and you identified a while ago a
1 discrepancy between the establishment of border
2 crossings on one side as against a non-establishment of
3 similar border crossings on the other side, and now we
4 are dealing with flags.
5 Now, we know, and I take it we accept, a recent
6 example illustrates that, that a province could have a
7 distinctive flag without that necessarily being intended
8 to construe constitutional separatism. Now here we
9 have your evidence, backed up by this document, that the
10 Croatian Community instituted its own flag, and that
11 flag was to be displayed on certain occasions. Was
12 there any regulation within the Croatian Community about
13 the permissibility of flying on official occasions the
14 flag of the Republic of Bosnia-Herzegovina?
15 A. Not in a single document out of all that were made
16 available to me was any mention made of an obligation or
17 right to fly the flag of The Republic of
18 Bosnia-Herzegovina and the territory of the Croatian
19 Community of Herceg-Bosna. They speak exclusively of
20 the symbols, namely the coat of arms and the flag of the
21 Croatian Community of Herceg-Bosna. I avail myself of
22 this opportunity to recall that in the tradition of the
23 former Yugoslavia there were regional flags, flags of
24 the republics that were members of the Yugoslav
25 Federation. However, whenever these flags, regional
1 flags, to call them regional flags on this occasion,
2 were flown, there was always a legal obligation to fly
3 at the same time the federal flag next to the flag of
4 The Republic concerned.
5 MR. CAYLEY: Thank you. Dr. Pajic, if I could briefly refer
6 you back to a document, document 6, on the decision of
7 the structure of the Home Guard and its subordination, I
8 wonder if you could just give the court the date of that
9 document, when that document actually came into force.
10 A. The decision on the structure of the Home Guard enters
11 into force on the day of issue, and that day is
12 3rd November 1992.
13 Q. Thank you. Dr. Pajic, if we could now move ahead to
14 document 8, which is a decree on the manufacture of arms
15 and military equipment within the territory of the
16 Croatian Community of Herceg-Bosna. This is a
17 significant document and I wondered if you could make
18 your general comments on this document to the court?
19 A. I wish to draw your attention to a technical detail
20 here. First of all, you will see that this decree was
21 published in the Official Gazette of the Croatian
22 Community of Herceg-Bosna number 2 of January 1993. If
23 you look at the date when this decision was passed, that
24 is the 6th December 1993. I believe that this is a
25 typographical error, namely this document was published
1 in January 1993. So I imagine that it was adopted in
2 December 1992. Just a small correction.
3 To go back to the substance of the document now,
4 the decree on the manufacture and trade of arms and
5 military equipment in times of immediate threat of war
6 or wartime in the Croatian Community of Herceg-Bosna is
7 the document stipulating the manufacture, trade,
8 provision and services in the domain of arms and
9 military equipment, as well as business transactions.
10 Management, financial and other aspects and other
11 services related to the manufacture and trade of arms
12 and military equipment are proclaimed as activities of
13 special public interest of the HZ H-B.
14 Article 2 stipulates that only those companies can
15 be involved in this production which have the needed
16 facilities for that kind of production, and which have
17 obtained approval from the Croatian Defence Council.
18 Further on, in Article 3, it is stipulated that
19 companies that were previously registered for military
20 production continue to operate as public companies for
21 the manufacture of arms and military equipment. I wish
22 to remind you of a document that I referred to yesterday
23 on public corporations, public enterprises, where I said
24 that this meant ethisation of former social ownership.
25 So such enterprises were put under the control of the
1 HVO in the HZ H-B, and this is now specifically
2 stipulated for military facilities, and the most
3 important public companies for the manufacture of
4 military equipment and arms are listed here, and they
5 are put under the control of the HVO.
6 First of all, I wish to highlight that these are
7 appropriate facilities in Vitez, Kiseljak, Travnik, Novi
8 Travnik, then Mostar, Bugojno and Konjic, and that would
9 complete the list. So these are military industrial
10 complexes inherited from the former Yugoslavia, which
11 remained naturally on the territory of the Republic of
12 Bosnia-Herzegovina when the Socialist Federal Republic
13 of Yugoslavia fell apart, and now the Croatian Community
14 of Herceg-Bosna proclaims these enterprises to be their
15 own public enterprises.
16 This is the well-known aircraft industry of Soko
17 in Mostar; then in Novi Travnik a factory of machinery
18 and hydraulics; Slobodan Prinsip Seljo in Vitez, I think
19 this is a chemical industry; then the factory in
20 Travnik; then Vitezite in Vitez; Slavko Radic in
21 Bugojno; Igman in Konijc; then two enterprises in Varic;
22 Optic Mechanics also belonging to the big company of
23 Zrak. The headquarters of this company were in
24 Sarajevo before and this facility was in Kiseljak. In
25 Kiseljak there was also another part of the big Zrak
1 company.
2 JUDGE JORDA: We are going to suspend our hearing until
3 11.30.
4 (11.15 am)
5 (Short break)
6 (11.30am)
7 JUDGE JORDA: We can now resume our hearing. Please be
8 seated and have the accused brought in. Mr. Cayley,
9 have your witness brought in and we can then resume.
10 (Accused re-enters court)
11 (Witness re-enters court)
12 JUDGE JORDA: Please be seated. Mr. Cayley?
13 MR. CAYLEY: Thank you, Mr. President. Dr. Pajic, if I could
14 now refer you to document 9 in the bundle, which is the
15 decree on the application of the law on regular courts
16 in the territory of the Croatian Community of
17 Herceg-Bosna. Would you please give your comments on
18 this document to the Tribunal?
19 A. The name of this decree is the decree on the application
20 of the law on regular courts in the territory of the
21 Croatian Community of Herceg-Bosna in times of war or
22 the immediate threat of war.
23 Actually, this is a rather unusual title, because
24 it introduces into practice a law on regular courts of
25 the Republic of Bosnia-Herzegovina which will be applied
1 in the territory of the Croatian Community of
2 Herceg-Bosna according to the law unless the provisions
3 of that law contravene this decree. How can this be
4 explained? In my opinion this is a simplified take-over
5 of the law of the Republic of Bosnia-Herzegovina and
6 especially its procedural provisions, which are quite
7 acceptable, and which can be applied and used in the
8 practice of the Croatian Community of Herceg-Bosna.
9 What I consider to be particularly important in this
10 decree is Article 2 and I quote:
11 "In the territory of the Croatian Community of
12 Herceg-Bosna courts shall be established and abolished
13 by the decree of the Presidency of the Croatian
14 Community of Herceg-Bosna".
15 Actually Article 2 puts an end to the authority of
16 Bosnia-Herzegovina over the judicial system in
17 Herceg-Bosna, because it is by decision of the Croatian
18 Community that courts may be established and
19 abolished. What is more, the number of judges,
20 according to Article 4, is also determined by the
21 Croatian Defence Council of the Croatian Community, and,
22 finally, Article 5 says that:
23 "Judges and lay judges shall be elected and
24 dismissed by the Presidency of the Croatian Community of
25 Herceg-Bosna".
1 My conclusions on the basis of this decree, as we
2 are talking about regular courts, not military courts,
3 my conclusion is that the Croatian Community of
4 Herceg-Bosna through the Presidency and the HVO is
5 actually taking over control over the judicial
6 function.
7 I should like to recall that their control over
8 the legislative, administrative and all defence affairs
9 has already been established, and now, finally, it is
10 the regular courts that are also placed under the full
11 control of Herceg-Bosna, and it is particularly
12 important to note that it is under the control of the
13 Presidency and the Croatian Defence Council, which shows
14 that the Croatian Defence Council actually has control
15 overall state powers, legislative, judicial and every
16 other.
17 The document was passed on 23rd December 1992, and
18 signed by the President of the HVO of the Croatian
19 Community of Herceg-Bosna, Dr. Jadranko Perlic.
20 JUDGE JORDA: How do you interpret the fact that a decree
21 can invalidate a law? At the same time it puts into
22 force the law on ordinary courts of
23 Bosnia-Herzegovina. The same decree seems to have a
24 value which is greater than that of the law?
25 A. I can understand your question. It has to do with the
1 hierarchy of legal documents, where indeed a law would
2 be superior to a decree, because a decree is in the
3 hierarchy lower than a law, but I have no explanation
4 for this. This is obviously a decree which introduces
5 the law on regular courts.
6 MR. CAYLEY: If I could now refer you, Dr. Pajic, to document
7 10, which is a further decree on border crossing and
8 traffic in the border areas of the Croatian Community of
9 Herceg-Bosna, if you could give your comments on this
10 document and include, as you've done before, the date of
11 the document and the signatory to the document.
12 A. This document is dated 26th February 1993. It is
13 signed by the President of the Croatian Defence Council
14 of HZ H-B, Dr. Perlic, again. It is a decree on border
15 crossings and traffic in the border area of the Croatian
16 Community of Herceg-Bosna in times of war or the
17 immediate threat of war. I should like to draw your
18 attention to Article 7, which says that:
19 "The HVO of the HZ H-B shall designate the
20 international border crossings and the local border
21 crossings".
22 I have two observations to make in connection with
23 this Article 7. The first is that prima facie this is
24 a state act, because only a state can designate border
25 crossings for international traffic and for local border
1 traffic. In no state is that the responsibility of any
2 regional community of municipalities. This is,
3 therefore, a state-like act, which the Croatian Defence
4 Council has assumed.
5 My second observation is linked to your question,
6 your Honour, as to whether there are border crossings
7 along the northern border area of the Croatian Community
8 of Herceg-Bosna. They were not designated by this
9 degree, but there is a reference to border crossings
10 without any specification, border crossings of the
11 Croatian Community of Herceg-Bosna, and not solely
12 border crossings with The Republic of Croatia. So this
13 is a more general provision, which could serve as a
14 legal basis for determining border crossings with The
15 Republic of Bosnia-Herzegovina. That is the northern
16 borders of the entity.
17 Article 11 has to do with the transportation of
18 arms and ammunition and the regime in force in that
19 connection. I should like to draw your attention to
20 Article 12. Let me read it. Paragraph 1:
21 "A citizen of the Republic of Bosnia-Herzegovina
22 carrying weapons into or out of the HZ H-B shall report
23 the weapons and ammunition to the border police or the
24 military police at the state border".
25 This is a highly complex provision, which implies
1 several conclusions. First, that citizens of the
2 Republic of Bosnia-Herzegovina are treated here as
3 aliens in relation to the Croatian Community of
4 Herceg-Bosna; secondly, citizens of the Republic of
5 Bosnia-Herzegovina, when entering or leaving the
6 territory of the Croatian Community of Herceg-Bosna, are
7 actually crossing a state border, as is stated in this
8 Article. So there are two major implications from this
9 provision. To reiterate briefly, that citizens of the
10 Republic of Bosnia-Herzegovina are implicitly treated as
11 foreigners and, secondly, that they are crossing a state
12 border when entering or leaving the Croatian
13 Community.
14 JUDGE RIAD: Professor Pajic, you said that citizens who
15 are not of the Republic of Herceg-Bosna are foreigners;
16 is that right?
17 A. I said that implicitly they are considered to be
18 foreigners according to Article 12.
19 JUDGE RIAD: But what is the criterion of who is a
20 foreigner and who is not? Is it just the fact that they
21 are resident in Herceg-Bosna, or racial, a racial
22 denominator?
23 A. There is not any racial reference as the citizenship is
24 concerned. So I would answer to your question that
25 just the residence would be a criteria for citizenship
1 in this case.
2 JUDGE RIAD: So if a Bosnian Muslim is resident in
3 Herceg-Bosna, is he a citizen?
4 A. He would be treated as a citizen of HZ H-B in this case,
5 but we are not, as of yet, in the area of citizenship,
6 citizenship of HZ H-B.
7 MR. CAYLEY: What do you mean by "not yet"? You will come
8 to it?
9 A. Yes, there is a document that deals with that.
10 JUDGE RIAD: I see. Thank you very much.
11 A. At the moment this can be translated as -- the term in
12 my language is "Grain HZ H-B", less citoyens of HZ H-B.
13 JUDGE RIAD: I will wait for your document. Thank you.
14 A. If I may at this point, in the Serbian, Croatian or
15 Bosnian language there is a small complication when
16 talking about citizenship. Actually in the English
17 language someone may be a British national, which in my
18 language would mean a British citizen, but he may also
19 be a Scotsman or a Welshman. In our languages,
20 however, there is this term that we call "nation" and
21 "nationality". Someone may be a Muslim by
22 nationality, as you said, while at the same time being a
23 citizen, having citizenship in this case of the Croatian
24 Community of Herceg-Bosna. Therefore in the languages
25 I have mentioned, Croatian, Serbian and Bosnian, there
1 is a clear distinction between ethnicity, which we call
2 nationality, and citizenship. There are two terms for
3 these two different conditions, but in English I always
4 come across this problem in my papers and in my lectures
5 that in the English language a national can mean either
6 a citizen or a particular ethnic background of a person.
7 JUDGE RIAD: Then my question is: who is a foreigner in
8 this text number 13? Foreign citizens, who are the
9 foreign citizens?
10 A. Implicitly again foreign citizens according to
11 Article 12 are people who have residence out of the HZ
12 H-B, who are residing out of the territory of HZ H-B.
13 JUDGE RIAD: I see. Anybody who is residing out, whether
14 he is a Serb, a Croat or an Englishman?
15 A. Exactly. Correct.
16 JUDGE RIAD: Thank you.
17 JUDGE JORDA: Judge Riad, have you got any other
18 questions? Judge Shahabuddeen?
19 JUDGE SHAHABUDDEEN: Professor, I invite you to look at
20 Articles 18 and 19 and more particularly at the first
21 two lines of each provision. Would you say there --
22 JUDGE JORDA: Judge Shahabuddeen, up to this point I
23 haven't made this clarification, but the French Judge
24 does not have a translation of this text. It will help
25 me in my English and my neighbour on the right could
1 help me, but if we are going to talk about this a long
2 time I would like to have a translation. It's not
3 particularly urgent, but I would like both to be able to
4 understand the scope of my colleagues' questions as well
5 as the answer from the witness, because I have a stopped
6 at Article 9 here. That is the translation stops at
7 Article 9. That is what I would like to point out.
8 This is not the question, of course, but perhaps in your
9 answer you could give further clarifications as to what
10 these Articles consist of and in the time being I will
11 ask my colleagues to help me, and I can also ask the
12 Prosecutor to promise me in the next few days to give me
13 a translation of this, which is very important, because
14 it does mark for the Prosecution that there was really a
15 real interstate border system. Now again, Judge
16 Shahabuddeen, would you mind repeating your question and
17 also give some further details. I will try to get
18 along as best I can with the help of Judge Riad.
19 JUDGE SHAHABUDDEEN: I commiserate with the President for
20 being as handicapped as he is. Certainly I should feel
21 that very strongly if I were deprived of an English
22 translation, which is the only language that
23 unfortunately I know. I am at Articles 18 and 19, and
24 I shall read the first two lines of Article 18:
25 "Citizens of the Republic of Bosnia and
1 Herzegovina may move and sojourn in the border area only
2 if they have an appropriate permit",
3 which I take it as a permit to be issued by the
4 authorities of the Croatian Community. So you have a
5 reference there to citizens of Bosnia-Herzegovina and a
6 reference to movement and sojourning in the area.
7 Now, in 19 you have a reading which runs this way:
8 "A foreign citizen may move and sojourn in the
9 border area only if he has obtained a permit from the
10 competent authority or is crossing the border with a
11 valid travel document".
12 So you have two ideas here now -- several ideas
13 but two relevant ones. You have a reference to a
14 foreign citizen as distinguished from the reference in
15 Article 18 to a citizen of the Republic of Bosnia and
16 Herzegovina, and you have a reference here now to
17 crossing the border. This reference to crossing the
18 border occurs in conjunction with a reference to a
19 foreign citizen.
20 Now, do you see any sort of distinction between a
21 reference to citizens of The Republic of Bosnia and
22 Herzegovina in Article 18 and a reference to a foreign
23 citizen in Article 19?
24 A. In my view there is no difference between these two
25 provisions that you have cited. The first provision
1 that you cited in Article 18, which reads:
2 "Citizens of The Republic of Bosnia and
3 Herzegovina may move and sojourn in the border area only
4 if they have an appropriate permit".
5 However, after all, in my view the implication is
6 that the citizens of the Republic of Bosnia-Herzegovina
7 are treated as foreigners in relation to the Croatian
8 Community of Herceg-Bosna, because if that were not so,
9 then they would not need a special permit for movement
10 and sojourn in the border area. Actually they have a
11 virtually identical treatment as foreigners, which are
12 mentioned in abstract terms, in Article 19, which may
13 also move and sojourn in the border area only if they
14 have obtained a permit from the competent body or if
15 they are crossing the border with a valid travel
16 document. Therefore, I see no distinction between
17 these two concepts: citizens of the Republic of
18 Bosnia-Herzegovina and foreigners in relation to the
19 Croatian Community of Herceg-Bosna.
20 JUDGE RIAD: Again, Professor Pajic, who are the citizens
21 of the Republic of Bosnia-Herzegovina? Isn't the
22 Croatian Community part of Herzegovina?
23 A. The Croatian Community of Herceg-Bosna is a part of the
24 Republic of Bosnia-Herzegovina to the extent to which it
25 wishes to be that on the basis of these documents that I
1 have been quoting throughout my testimony; in other
2 words, by all these documents, by establishing separate
3 bodies of authority, separate institutional, autonomous
4 state structures, the Croatian Community of Herceg-Bosna
5 is slowly, gradually but in a continuous manner
6 indicating its intention to separate from The Republic
7 of Bosnia-Herzegovina. That is the argument that I
8 wish to set forth here.
9 JUDGE RIAD: The argument is clear. Thank you.
10 MR. CAYLEY: Mr. President, first of all --
11 JUDGE JORDA: Go ahead.
12 MR. CAYLEY: Mr. President, first of all, my apologies for
13 the abridged translations in the French before you.
14 Certainly I will ensure that you have a full translation
15 of that document within the next few days, and if there
16 are any of the others which are slightly abridged
17 following on from there that you require full
18 translations of, please indicate to me and I will have
19 them done for me as quickly as I can.
20 JUDGE JORDA: Yes, thank you. Please go on.
21 MR. CAYLEY: Dr. Pajic, if I can now refer you to document
22 11, which is a decree on implementing the law on the
23 movement and residence of aliens in the Croatian
24 Community of Herceg-Bosna in times of war or the
25 immediate threat of war, could you give your comments on
1 this document to the court? I know it is related to the
2 previous document.
3 A. It is a decree on the implementation on the law on the
4 movement and residence of aliens in the Croatian
5 community of Herceg-Bosna in times of war or the
6 immediate threat of war. I shall very briefly draw
7 your attention to a provision which will take us back to
8 the debate we had a moment ago, your Honours. Actually
9 the only inconsistency in the normative activities of
10 the Croatian Community of Herceg-Bosna that I have been
11 able to discover is to be found in Article 2 of this
12 decree. Article 2 says:
13 "An alien, as provided for under this decree,
14 shall be any person who is not a citizen of The Republic
15 of Bosnia and Herzegovina".
16 Therefore, argumendum ad contrario, it can be
17 established that citizens of Bosnia-Herzegovina are not
18 aliens in the Croatian Community of Herceg-Bosna. As I
19 have said, this is an inconsistency in relation to the
20 treatment enjoyed by citizens of the Republic of
21 Bosnia-Herzegovina, that is the persons with residence
22 in the territory of the Republic of
23 Bosnia-Herzegovina. It is inconsistent with the
24 treatment provided for in the previous decree on border
25 crossings and sojourn regarding citizens of
1 Bosnia-Herzegovina in that decree. I do not wish to
2 speculate on this matter at all, but I would say that
3 there was a certain amount of hesitation on the part of
4 the legislator at this point in time, in February 1993,
5 when this decree was passed, to treat other citizens of
6 the Republic of Bosnia-Herzegovina as aliens in relation
7 to the Croatian Community of Herceg-Bosna.
8 JUDGE JORDA: Is there another interpretation possible?
9 One assumes that the citizens of the Croatian Community
10 are considered to be citizens of Bosnia-Herzegovina and
11 that the contradiction that you have pointed out would
12 be less apparent then.
13 A. It is true that the citizens of the Republic of
14 Bosnia-Herzegovina of Croatian ethnicity with residence
15 in the territory of the Republic of Bosnia-Herzegovina
16 outside the Croatian Community of Herceg-Bosna are
17 treated as citizens of the Republic of
18 Bosnia-Herzegovina. There are large numbers of
19 population of Croatian ethnic origin who are living
20 particularly in urban centres of Bosnia-Herzegovina, in
21 towns such as Sarajevo, I assume, Zenica, Tuzla and
22 others, which are outside Herceg-Bosna.
23 JUDGE RIAD: Are they also citizens of Herceg-Bosna? Is it
24 some kind of dual nationality or dual citizenship?
25 A. I think it is still premature to talk about dual
1 citizenship or the possibility of a dual citizenship.
2 It is true, however, that during the war, and we are
3 talking of 1993, that persons of Croatian ethnic origin
4 residing in The Republic of Bosnia-Herzegovina could
5 easily obtain a passport of the Republic of Croatia,
6 because of their ethnic origin. Now I'm going beyond
7 the framework of these documents, because they do not
8 cover this question, but they are the fruit of my
9 personal experience. For many citizens of the Republic
10 of Bosnia-Herzegovina that was the only way under
11 conditions of a terrible surroundings and conditions in
12 which certain areas of Bosnia-Herzegovina were during
13 the war, the only way of getting out of that environment
14 was by obtaining a Croatian passport, because that
15 passport permitted the holder to go to the Republic of
16 Croatia, and also to many third countries without
17 requiring a visa very often.
18 I could elaborate further on this matter, if you
19 wish, but that would be the crux of my answer.
20 JUDGE SHAHABUDDEEN: Professor, may I put to you a sort of
21 general question? If it is too general in nature, do
22 not hesitate to tell me that. I understand your
23 evidence to be directed to establishing that the process
24 was in the course of creating a separate state with
25 accompanying state apparatus, but at any particular
1 stage the exact position reached by that process might
2 differ from the position which it might reach at another
3 stage of the process. Is my appreciation of your
4 evidence correct?
5 A. Your appreciation is very correct. This evolution of
6 the legal system, of the legal order of Herceg-Bosna is
7 something that I view from the very outset as a
8 continued process, which, of course, does have it ups
9 and downs, if I may say so, and, of course, it depends
10 on the development of the political situation in
11 Herceg-Bosna itself and the situation in the entire
12 environment, and also the situation concerning war
13 operations in 1992 and 1993. It is quite certain that
14 this was not always a smooth process, so your
15 appreciation is quite correct.
16 JUDGE SHAHABUDDEEN: Thank you.
17 JUDGE JORDA: Mr. Cayley, would you go on, please?
18 MR. CAYLEY: Thank you, Mr. President. One last question on
19 this document, Dr. Pajic, and I will be calling on the
20 fruits of your more extensive knowledge beyond these
21 documents but it is a simple point. This document, in
22 effect, regulates the movement of aliens, which are
23 defined by Article 2 under this decree. It regulates
24 their movement within this entity. What was the
25 position at law in the former Yugoslavia about the free
1 movement of the people between the different constituent
2 states?
3 A. I'm sorry. What document are we talking about? Which
4 page, please?
5 Q. We are talking about page 2 of the decree on the law on
6 movement and residence of aliens?
7 A. Aliens.
8 Q. Yes, document 11?
9 A. Yes. I apologise, because there are two similar
10 documents, one dealing with the movement of aliens and
11 the other of the movement of nationals or citizens
12 within the Croatian Community of Herceg-Bosna. That's
13 why I was confused.
14 The decree on implementing the law on the movement
15 and residence of aliens in the Croatian Community of
16 Herceg-Bosna stipulates quite strictly that an alien,
17 for example, in Article 6 who wishes to reside
18 temporarily in the HZ H-B should submit a request for
19 such temporary residence permit immediately upon
20 entering the HZ H-B.
21 I think in this case we can talk about a legacy,
22 so to speak, from the former Yugoslavia. On the one
23 hand, the movement of foreigners in the territory of the
24 former Yugoslavia was not subject to such strict control
25 as was the case in other countries of east and central
1 Europe, especially the Soviet Union. On the other hand,
2 there was a system according to which aliens were
3 supposed to register in the places where they would
4 stay, in the hotel where they would stay or in tourist
5 organisations, if they were spending their vacations
6 there, etc. So this is a practice that was valid
7 beforehand.
8 Q. But strictly was there control within the former
9 Yugoslavia between the constituent republics, or was
10 passage between the republics free?
11 A. No, of course not, but as far as citizens of that
12 country were concerned, the former Yugoslavia, there was
13 unlimited freedom of movement practically from one
14 region to the other, from one republic to another, from
15 one city to another, again as opposed to the situation
16 in the former Soviet Union, where people had to be
17 granted various approvals. They had to register when
18 they left, when they came, etc., etc.
19 Q. Thank you, Dr. Pajic. If we could move on, now to
20 document 12, which introduces the concepts of residency
21 and domicile, if you could make some brief comments
22 about this document?
23 A. In connection with the previous decree I mentioned the
24 situation in which the citizens of the former Yugoslavia
25 had full freedom of movement within their own country.
1 They could change their place of residence. They could
2 travel either on business or private matters. They
3 could leave their place of residence without any special
4 restrictions. I think that that is the situation here
5 in this decree, too, although very strictly Article 5
6 says that:
7 "Citizens having the status of a refugee or
8 displaced person in the territory of HZ H-B and other
9 citizens whose domicile was in their place of residence
10 until 1st April 1992 shall retain their place of
11 domicile".
12 This is nevertheless a strict control over where
13 refugees are or persons who were displaced. So we are
14 talking about refugees and displaced persons. It is
15 stipulated that the place of residence they have -- de
16 jure practically as their place of residence they have
17 that which they had before 1st April 1992, probably in
18 the hope they would go back to the place where they
19 lived before that date or from which they were expelled.
20 Q. If I could now refer you to document 13, I think you can
21 deal with this document very briefly. It is a further
22 decision on preferential treatment of goods imported
23 from The Republic of Croatia.
24 A. I can say the same thing that I said concerning the
25 previous decision that dealt with this subject matter.
1 Again this means an extension of preferential treatment
2 of goods imported from The Republic of Croatia or goods
3 originating from The Republic of Croatia. It says that
4 a special decree on customs tariffs will not be applied
5 in the case of such goods. May I highlight once again
6 that this is something that is done by a state towards
7 another state.
8 Q. If I could now refer you to -- if I could give you --
9 I'm sorry. If we could continue with that document and
10 if you could give the date of that document?
11 A. The decision on the import of goods from the Republic of
12 Croatia is dated 9th April 1993, and it was signed by
13 the President of the HVO of the HZ H-B. Perhaps I
14 should have done this before, but with your permission I
15 wish to say that practically all documents, all
16 decisions that were published in the Official Gazette
17 contain a final provision saying that: "This decree
18 shall enter into force on the day it is issued". In
19 Yugoslav legal tradition this is quite unusual, because
20 again, thanks to continental European legal legacy, in
21 the former Yugoslav legislation, legislation would
22 usually enter into force seven days upon publication in
23 the Official Gazette, and on that basis I draw the
24 conclusion that these were rather urgent measures
25 invariably, that norms were needed and certain social
1 relations had to be regulated as soon as possible.
2 Q. If I could refer you to Article 14, which is the
3 decision on carrying out mobilisation, if you could make
4 some brief comments about this document?
5 A. The decision on carrying out mobilisation in the
6 territory of the Croatian Community of Herceg-Bosna in
7 times of immediate threat of war or in wartime was
8 adopted on 10th June 1993 and it was signed by the
9 President of the HVO of the HZ H-B, Mr. Jadranko
10 Perlic. Again, this is my opinion that this is a
11 document adopted by a state. I do not know of a single
12 case from International Law of War that mobilisation was
13 ever declared by a non-state entry, so by its very
14 definition an act of mobilisation is passed by a
15 sovereign state. Actually this decision carries out in
16 practice the previous document on the Croatian Community
17 of Herceg-Bosna, that is the decree on the armed forces
18 of Herceg-Bosna, which was adopted in July 1992. This
19 is practically all I would have to say in this
20 connection. Of course, as in any document on
21 mobilisation, a certain procedure is mentioned here, how
22 men of military age are supposed to report, various
23 departments, etc. In this connection I just wish to
24 remind you that The Republic of Bosnia-Herzegovina a
25 year before that, on 20th June 1992, declared
1 mobilisation as it was faced by aggression, as was then
2 designed by the Yugoslav people's army. This
3 mobilisation was declared on 20th June 1992 and the act
4 on mobilisation was published in the Official Gazette of
5 Bosnia-Herzegovina number 7 from 1992 on page 234.
6 Due to my professional interests I started
7 following these new developments in the legislation of
8 the states that were created on the territory of the
9 former Yugoslavia at a very early stage, and that is how
10 I received these official gazettes too. Yesterday in
11 my introductory remarks, when I spoke of my professional
12 experience, I mentioned that, too, I believe.
13 Q. Thank you. If I could now refer you to document 15.
14 Specifically this decree concerns the rights and
15 obligations of citizens of Herceg-Bosna working abroad,
16 and their particular commitment to the defence
17 obligation, and I wondered if specifically you could
18 explain this rather odd provision in this decree
19 concerning the financial obligation of those living
20 abroad?
21 A. The Croatian Community of Herceg-Bosna by this decree
22 actually prescribed the obligation of all its citizens
23 temporarily working abroad, that they should contribute
24 through certain material resources to the defence of the
25 Croatian Community of Herceg-Bosna, that is to say that
1 all of those who are temporarily abroad, as they say
2 here, and whose permanent residence is on the territory
3 of Herceg-Bosna, that is to say on the territory of the
4 HZ H-B, are duty bound by this decree to contribute a
5 certain monetary amount which is stipulated here. They
6 shall pay 300 Deutschmarks to the HVO in the
7 municipality of their permanent current place of
8 residence anywhere in the world.
9 It is interesting to note the consistent thought
10 that was given to financing the needs of the Croatian
11 Community of Herceg-Bosna and the Defence needs in
12 particular, and the extent to which this budget policy,
13 if I may call it that, was taken into account. This
14 decision was adopted on 9th April 1993. However, this
15 obligation mentioned in Article 3 was backdated to 1st
16 April 1992. So paragraph 2 of Article 3 reads as
17 follows and I quote:
18 "The obligation to pay the above amount shall be
19 applied as of 1st April 1992".
20 So that is to say a year back. These obligations
21 had to be met. A later decision that was published in
22 the Official Gazette number 14 of 1993, we find a
23 decision that as far as these dues are concerned for the
24 period from April 1992 until April 1993, a lump sum was
25 supposed to be paid by all citizens to the amount of
1 4,800 Deutschmarks as their overdue obligations
2 vis-à-vis the Croatian Community of Herceg-Bosna.
3 Q. Dr. Pajic, under this document of 9th April 1993, am I
4 correct in saying that failure to meet this financial
5 obligation was regarded as equivalent to avoidance of
6 military service within Herceg-Bosna?
7 A. Yes. Article 6 contains the following provision and I
8 quote:
9 "Avoiding payment of the financial obligation
10 described in Article 2 of this decree shall be
11 considered equivalent to avoiding service in the armed
12 forces and shall incur sanctions as stipulated in the
13 corresponding regulations on avoiding service in the
14 armed forces".
15 Q. Dr. Pajic, although it doesn't strictly run in the order
16 of the documents, could I refer you next to --
17 JUDGE JORDA: Excuse me, Mr. Cayley. Dr. Shahabuddeen would
18 like to ask a question.
19 JUDGE SHAHABUDDEEN: This is interesting. Am I right in
20 my impression of your earlier evidence that Croatians
21 resident in Bosnia-Herzegovina outside of the HZ H-B
22 would be regarded in the HZ H-B citizens of the HZ H-B?
23 If that is correct, would those Croatians resident in
24 Bosnia-Herzegovina outside of the HZ H-B be regarded as
25 citizens of the Croatian Community to whom this decree
1 would apply?
2 A. My answer is no.
3 JUDGE SHAHABUDDEEN: No. Thank you.
4 JUDGE JORDA: Mr. Cayley, would you go on, please?
5 MR. CAYLEY: Thank you, Mr. President. If I could refer
6 you, Dr. Pajic, to document 17 first. Although it
7 actually comes in terms of date order after document 16,
8 I think it's a more correct manner of dealing with
9 things. This is the basic decision on establishing and
10 proclaiming the Croatian Republic, republic as opposed
11 to community, of Herceg-Bosna. Could you explain this
12 document to the court, please?
13 JUDGE RIAD: Which document?
14 MR. CAYLEY: This is document 17, your Honour.
15 JUDGE JORDA: Please note that there are many documents
16 here. I do not have 13, 14, 15, 16. This is 17
17 now. Please note that as well and then go on.
18 MR. CAYLEY: If you would continue, Dr. Pajic.
19 A. In the process of the construction of statehood of the
20 Croatian Community of Herceg-Bosna we reach a stage when
21 on 28th August 1993 this decision was adopted called
22 "Basic Decision on Establishing and Proclaiming the
23 Croatian Republic of Herceg-Bosna". This means a
24 departure from the previous name, the Croatian Community
25 of Herceg-Bosna, which was probably no longer suited to
1 this developed state and legal structure that developed
2 in the territory of this entity, and a decision was
3 passed on the proclamation of the Croatian Republic of
4 Herceg-Bosna. I think this marks a formal and legal
5 completion of a process that I have tried to illustrate
6 in the course of my testimony, because finally
7 Herceg-Bosna is established as a state community.
8 I say this because such a decision has to be
9 viewed in the context of the events linked to the
10 break-up of the former Yugoslavia. I should like to
11 underline that after the collapse of the Yugoslav
12 Federation all states emerging from the former
13 Yugoslavia retained attached to their name the attribute
14 "republic", The Republic of Slovenia, The Republic of
15 Croatia, The Republic of Bosnia-Herzegovina, the Federal
16 Republic of Yugoslavia and finally The Republic of
17 Macedonia. We will not go into difficulties linked to
18 the name of an international legal nature, considering
19 the position it has. It is very important to note that
20 each of the entities that aspired to proclaiming itself
21 a republic within the former Yugoslavia retained this
22 attribute of republic, because thereby it was on an
23 equal level with all the other states emerging from the
24 former Yugoslavia. So that is one point I wish to
25 make.
1 Another has to do with the preamble of this
2 decision, which is very meaningful. It is a strongly
3 expressed nationalist rhetoric, noting that this is a
4 republic of the Croatian people, and what I find is
5 lacking in a preamble of this kind, since emphasis is
6 placed on the national character of this republic, at
7 least a line is lacking regarding the rights and
8 freedoms of minorities, and there are no such provisions
9 in the documents that I have analysed.
10 Let me mention just two provisions of this
11 decision, and that is Article 2, which says that:
12 "The territory of the Republic shall encompass the
13 territory of the Croatian Community of Herceg-Bosna".
14 That is what was initially established as the
15 territory. That is the group of municipalities. I
16 think there were 30 of them. "
17 The final borders" -- I am quoting -- "shall be
18 determined by the constitution of the Republic".
19 This, in my opinion, leaves the door open
20 regarding the question of the borders of the Croatian
21 Republic of Herceg-Bosna, which could be interpreted as
22 an aspiration towards including certain other
23 territories that were not originally included according
24 to the original act on the foundation of the Croatian
25 Community, and Article 10, which refers to Mostar, which
1 was formerly of the centre of the community, now it is
2 described as "the capital of the republic ".
3 Q. Dr. Pajic, if I can now refer you very briefly back to
4 document 17, which is the decision on the constitution
5 on the House of Representatives, if you could briefly
6 explain that document to the court?
7 A. It has to do with the constitution --
8 Q. I'm sorry. Can I interrupt you? It's document 16.
9 My apologies. Please continue.
10 A. It is a decision on constituting the house of
11 representatives of the Croatian Republic of
12 Herceg-Bosna. Therefore actually it has to do with the
13 establishment of the highest representative body in The
14 Republic of Herceg-Bosna. It is what one might call a
15 Parliament of the Croatian Republic of Herceg-Bosna, and
16 I shall quote Article 1:
17 "The House of Representatives of the Croatian
18 Republic of Herceg-Bosna shall be the supreme
19 representative body vested with legislative power in the
20 Croatian Republic of Herceg-Bosna".
21 I beg your pardon. Forgive me for this pause.
22 Article 2 is noteworthy because it says:
23 "Pending the first free and democratic elections,
24 the representatives of the House of Representatives
25 shall be representatives of the Croatian people in the
1 Chamber of Municipalities of the Assembly of the
2 Republic of Bosnia and Herzegovina and members of the
3 Presidency of the Croatian Community of Herceg-Bosna".
4 We see here the introduction of the ethnic element
5 regarding the right to represent the people in the House
6 of Representatives; in other words, the passive right to
7 vote, the right to be elected to a House of
8 Representatives belongs, according to this decision,
9 only in the Croatian people, people of Croatian
10 ethnicity.
11 Q. Briefly, Dr. Pajic, if I could refer you to Article 19,
12 which concerns the transfer of the powers of the
13 Presidency of the Croatian Community --
14 A. Uh-huh.
15 Q. -- into the House of Representatives, what are your
16 comments on that provision?
17 A. Article 19 is actually the logical consequence of the
18 constitution of the House of Representatives, because
19 let me remind you that the Presidency of the Croatian
20 Community of Herceg-Bosna had legislative powers, and
21 now these powers, according to this decision, are taken
22 over by the House of Representatives of the Croatian
23 Republic, so that the competencies of the Presidency
24 cease here and are being taken over by the House of
25 Representatives.
1 Q. Since the Presidency originally consisted -- a
2 constituent element of the Presidency was the HVO, was
3 the HVO effectively being transferred into the House of
4 Representatives?
5 A. Article 2 says that until the first democratic
6 elections, the representatives of the House of
7 Representatives will consist, among others, of members
8 of the Presidency of the Croatian Community of
9 Herceg-Bosna, which includes HVO members. Therefore,
10 it can be said that the House of Representatives
11 includes members of the HVO, because the Presidency
12 continues to be a constituent part of the House of
13 Representatives.
14 Q. Thank you. Can I now move on, please, Dr. Pajic, to
15 document 18, which is a declaration on the adoption of
16 documents on the protection and exercise of human
17 freedoms and rights? If you could give the date of this
18 document and the signatory. I do not want you to read
19 every single provision of this decision, but can you
20 highlight for the court the important areas?
21 A. Uh-huh. The declaration on the adoption of documents
22 on the protection and exercise of human rights and
23 freedoms was adopted by the House of Representatives of
24 the Croatian Republic of Herceg-Bosna on 30th July
25 1993. Let me say straightaway that this is a customary
1 declaration for all states that emerged in the territory
2 of the former Yugoslavia. All the constitutions
3 contain such reference to basic human rights or rather
4 the legal instruments governing human rights. This
5 declaration lists 19 of them. If you examine closely
6 the list of all these international documents, you will
7 see that they cover what is considered today to be the
8 core of international law governing human rights,
9 starting from the Convention on the Prevention and
10 Punishment of the Crime of Genocide, through what is
11 known as the Bill of Rights, that is the universal
12 declaration on human rights, the Geneva Conventions on
13 Human Rights, to specific documents linked to human
14 rights.
15 Q. If I could now refer you to document 19, Dr. Pajic, which
16 I think is a decision on --
17 JUDGE JORDA: Excuse me, Mr. Cayley. I thought that the
18 witness was speaking about B, the protection of ethnic
19 groups and minorities. Very, very briefly, because you
20 said before that in the preamble of the constitution
21 nothing was said about ethnic groups or minorities and
22 perhaps this is the place you would explain the
23 difference that took place as time went by or is this
24 simply what is ordinarily put in this type of
25 declaration, this type of protection that is?
1 A. I should like to draw your attention to chapter B of
2 this declaration, which refers to two documents devoted
3 to rights of minorities, but neither of these documents,
4 neither the recommendation of the European Council and
5 the Parliamentary Assembly on the rights of minorities,
6 nor the United Nations' declaration on the rights of
7 members of national, ethnic, religious and linguistic
8 minorities are internationally binding documents. One
9 is a recommendation and the other is a declaration.
10 They stipulate certain standards in international law
11 for treatment of minorities but they are not binding on
12 states because they do not have the character of a
13 contract. Therefore, I can still allege that in the
14 constitution and legal documents of the Croatian
15 Republic of Herceg-Bosna there are no specific
16 operational provisions on the protection of minorities
17 living in the territory of the Croatian Republic of
18 Herceg-Bosna. There is no reference to the rights and
19 freedoms that minorities and members of non-Croatian
20 peoples would enjoy in the territory of the Croatian
21 Republic of Herceg-Bosna.
22 Allow me also to say that this declaration, in my
23 view, is a very positive one in the process of
24 development of the legal system of the Croatian Republic
25 of Herceg-Bosna, because it is new in relation to
1 previous legal documents, as it is devoid of
2 nationalistic rhetoric and reference to historical
3 claims. So I think that this declaration is the fruit
4 of a good legal or legal/political instinct of the
5 legislators of the Croatian Republic. It was the right
6 time, that is the summer of 1993, to pass a decision of
7 this time. Since I remember this period well in the
8 peace process initiated by the international community,
9 this declaration was also the upshot of pressure on the
10 part of the international negotiators who were trying to
11 stop the war in Bosnia Herzegovina. Let us not forget
12 that at that time representatives of the Croatian
13 Republic of Bosnia-Herzegovina were participating in the
14 peace negotiations within the framework of the
15 international conference on the former Yugoslavia in
16 Geneva co-chaired by Messrs Vance and Owen and later
17 Messrs Stoltenberg and Owen. So I assume that this
18 declaration was also part of the political environment
19 surrounding the representatives of the Croatian
20 Republic.
21 Q. I think just to conclude on this document, it shows an
22 awareness of global obligations under international
23 humanitarian law by the drafters of these documents; is
24 that correct?
25 A. Yes, that is correct, though the implementation of these
1 general documents of international law is lacking, that
2 is their transformation into national legislation, but
3 it is an indication of the acceptance of the general
4 instruments on human rights.
5 Q. Thank you. If we could now proceed to document 19,
6 which is the decision on the appointment of the
7 commission for investigation of war crimes. Can you
8 give your general comments on this document to the
9 court?
10 A. I would also describe this decision as a progressive one
11 in the process of evolution of the legal system in the
12 Croatian Republic of Herceg-Bosna. So now it is called
13 HR H-B. That is the formation of a commission for the
14 investigation of war crimes. Of course, war crimes
15 that occurred in the territory of the Croatian Republic
16 of Herceg-Bosna. So I think that this, too, reflects a
17 feeling of obligation, legal and political obligation,
18 towards the peace process under the sponsorship of the
19 international community. The decision was passed in
20 November 1993.
21 Q. If I could now refer you to document 20, which is the
22 decision on the establishment of a presidential
23 council. If you could make some brief comments about
24 this document?
25 A. The decision on establishing the presidential council of
1 the Croatian Republic of Herceg-Bosna was passed on
2 December 10th, 1993 and it is followed by a series of
3 decisions on appointments made and signed by the
4 President of the Croatian Republic, Mr. Mate Boban, who
5 at the same time nominates members of the presidential
6 council, that is members of his council. Since the
7 House of Representatives of the Croatian Republic of
8 Herceg-Bosna has been constituted, the President of
9 Herceg-Bosna remains as an individual, as a head of
10 state, in this case, the implementing the practice of
11 the latter day history of the former Yugoslavia, that is
12 from the 1970s onwards, a collective council is formed
13 to advise the President in the process of performing his
14 functions.
15 Q. If I could now refer you to document 21, and we get back
16 to the subject of citizenship again, a short decision.
17 If you could give the Tribunal your comments on this
18 document.
19 A. This is a decree taking over the decree with the force
20 of law on the citizenship of the Republic of
21 Bosnia-Herzegovina. Let me point out that in our legal
22 practice decree actually provided the legal procedure
23 for acquiring citizenship. What was the procedure for
24 naturalisation, the time period required, the special
25 conditions and so on, that was the contents of the
1 decree on citizenship of the Republic of
2 Bosnia-Herzegovina. So taking over those provisions
3 means taking over the procedural mechanism for the
4 acquisition of citizenship of the Republic -- of the
5 Croatian Republic of Herceg-Bosna. It has no other
6 function, as can be seen from the text.
7 JUDGE JORDA: A question from Judge Riad.
8 JUDGE RIAD: As far as military service was concerned, was
9 it imposed on everyone within the borders of the
10 community of -- of the Croatian community, or was there
11 a criterion based on ethnicity or anything in the choice
12 of people to do the military service?
13 A. No. Sorry. I shouldn't speak in English.
14 JUDGE RIAD: Go ahead.
15 A. The criterion for military service was based actually on
16 permanent residence in the territory of the Croatian
17 Republic of Herceg-Bosna. The ethnic element is not
18 mentioned in that context.
19 JUDGE RIAD: Thank you very much.
20 MR. CAYLEY: In that respect, Judge Riad, if I could refer
21 you to document 14, Article 1, which is the foundation
22 for what Dr. Pajic is saying, it talks about the concept
23 of permanent residence within the Croatian Community.
24 Lastly, Dr. Pajic, if I could refer you to document
25 22, which is part of the Official Gazette of The
1 Republic of Bosnia and Herzegovina, I wonder if you
2 could, first of all, distinguish for the court the
3 origin of this document as compared to the origin of the
4 documents which we have referred to up to this point
5 before actually explaining the decision itself?
6 A. So far in my testimony I have been speaking exclusively
7 about documents and on the basis of the documents
8 published in the Official Gazette of the Croatian
9 Community of Herceg-Bosna that later became the Croatian
10 Republic of Herceg-Bosna.
11 I now have before me a document published on 18th
12 September 1992 in a different edition, in a different
13 publication, which is the official publication carrying
14 laws, enactments and decisions of state organs. I'm
15 referring to the Official Gazette of The Republic of
16 Bosnia and Herzegovina, number 16, in which a decision
17 was published of the constitutional court of Bosnia and
18 Herzegovina, which responded -- I beg your pardon. The
19 decision was taken on 14th September, the decision of
20 the constitutional court, which was reacting to a
21 decision on the establishment of the Croatian Community
22 of Herceg-Bosna, and to several other decisions which
23 laid the foundations for the legal order and bodies of
24 authority within the Croatian Community of Herceg-Bosna.
25 The constitutional court of Bosnia-Herzegovina
1 assessed that all the decisions listed in the preamble
2 of this decision which you have before you --- the
3 decision on the establishment of the Croatian Community;
4 the decision on changes and amendments to that decision;
5 the statutory decision on temporary establishment of
6 executive authority; the decree on the organisation,
7 operation and jurisdiction of the judicial authorities
8 in the event of war on the armed forces of the Croatian
9 Community; the decree on the reimbursement of salaries
10 and other financial reimbursements to members of the
11 armed forces; the decree on the take-over of the
12 resources of the former JNA; the decree on the
13 appropriation and transfer of ownership to the Croatian
14 Community of property owned by the occupying force; the
15 decree on public enterprises in the Croatian Community
16 -- all these decisions were annulled by decision of the
17 Constitutional Court of Bosnia-Herzegovina, or rather
18 they were declared unconstitutional in relation to the
19 constitution of Bosnia-Herzegovina. The Constitutional
20 Court found these decisions to be in violation of the
21 valid constitution of Bosnia and Herzegovina.
22 According to the ruling of the Constitutional
23 Court, the articles of the constitution of Bosnia and
24 Herzegovina are referred to, that is the 1979
25 Constitution with the amendments of 1991, which were
1 passed after the first democratic and multi-party
2 elections in Bosnia and Herzegovina, held in November
3 1990.
4 I could say in reference to this decision of the
5 Constitutional Court that it cites the appropriate
6 provisions of the constitution, declaring the decisions
7 of the Croatian Community unconstitutional, and it is
8 also important to note the dry legal language. It is
9 extremely legalistic, without any excessive rhetoric.
10 It refers to constitutional provisions and the chapters
11 of the constitution that were violated by the decisions
12 of the Croatian Community of Herceg-Bosna.
13 Let me end by saying that in these documents taken
14 from the Official Gazette of Herceg-Bosna I did not come
15 across any kind of official reaction on the part of
16 anybody of the Croatian Community of Herceg-Bosna to
17 this decision of the Constitutional Court of
18 Bosnia-Herzegovina which annulled all those decisions up
19 to September 1992 declaring them unconstitutional in
20 terms of the constitution of Bosnia-Herzegovina.
21 JUDGE JORDA: Mr. Cayley, it's now 1 o'clock. We can stop
22 here. The interpreters have worked very hard. I
23 would like to know how you see things going forward
24 tomorrow morning between 1 o'clock and 1 o'clock. Do
25 you have any other questions you want to ask? How do
1 you wish to proceed?
2 MR. CAYLEY: We thought, your Honour, that we would finish
3 with Dr. Pajic's general conclusions, an overview of all
4 of the documents, which we establish will be about
5 fifteen minutes, and then after that we would, of
6 course, offer the witness for cross-examination by the
7 Defence.
8 JUDGE JORDA: Then that is how we will proceed. We can
9 now suspend our hearing and begin with the same witness
10 tomorrow for his conclusion and the cross-examination.
11 We are suspending the hearing now and we will resume
12 tomorrow at 10 o'clock.
13 (1.00 pm)
14 (Hearing adjourned until tomorrow morning at 10 o'clock)
15 --ooOoo--
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