International Criminal Tribunal for the Former Yugoslavia

Case No IT-95-14

  1. 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.

  2. 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.

  3. 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

  4. 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

  5. 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

  6. 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

  7. 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

  8. 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

  9. 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

  10. 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

  11. 1 briefly explain this document and give the court your


    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

  12. 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

  13. 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?

  14. 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

  15. 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

  16. 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

  17. 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?

  18. 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

  19. 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

  20. 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,

  21. 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

  22. 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

  23. 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

  24. 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.

  25. 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

  26. 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

  27. 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

  28. 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

  29. 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

  30. 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

  31. 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

  32. 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

  33. 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

  34. 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".

  35. 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

  36. 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

  37. 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

  38. 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

  39. 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

  40. 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

  41. 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

  42. 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

  43. 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

  44. 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

  45. 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

  46. 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

  47. 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

  48. 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

  49. 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

  50. 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.

  51. 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.

  52. 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

  53. 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

  54. 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

  55. 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

  56. 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

  57. 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

  58. 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.

  59. 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

  60. 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

  61. 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.

  62. 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

  63. 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?

  64. 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

  65. 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

  66. 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

  67. 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

  68. 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

  69. 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

  70. 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

  71. 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

  72. 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--