International Criminal Tribunal for the Former Yugoslavia

Case No IT-95-14

  1. 1 Wednesday, 2nd July 1997

    2 (10.00 am)

    3 Dr. Zoran Pajic (continued)

    4 Examined by Mr. Cayley

    5 JUDGE JORDA: Please be seated. Please have the accused

    6 brought in, Registrar.

    7 (Accused enters court)

    8 JUDGE JORDA: Does everybody hear? Does the Prosecution

    9 hear? Does the Defence hear? Mr. Nobilo? Mr. Hayman?

    10 Mr. Blaskic, do you hear me?

    11 GENERAL BLASKIC: Good morning, your Honours. I hear you

    12 well.

    13 JUDGE JORDA: Mr. Cayley, do you hear?

    14 MR.. CAYLEY: Yes, your Honour.

    15 JUDGE JORDA: Good morning. Before I give you the floor,

    16 Mr. Cayley, I would like to make a comment about a point

    17 which is of great concern to this Trial Chamber, more

    18 specifically to the presiding judge speaking to you.

    19 I am referring to the translation problem.

    20 I understand the difficulties experienced by the

    21 translation service and can share their concerns as

    22 well. Nonetheless the French language is one of the

    23 working languages of this Tribunal. I do know that it

    24 would be an absolutely Utopian situation if they only

    25 had English, but unfortunately French is one of the

  2. 1 working languages at this Tribunal, and I am doing a lot

    2 of work in English and making progress thanks to you.

    3 Still, to speak more seriously about this issue, I think

    4 that we must try to solve this problem. I know for you

    5 this is a very difficult issue. For instance I can

    6 point out to you that I have still not received a

    7 translation into French. I still do not have a French

    8 translation of one of the protective measures for the

    9 witnesses that one of the parties suggested last week.

    10 It is not a very long document, perhaps a page and a

    11 half. I was able to read it thanks to the help from my

    12 colleagues. I believe beyond the point of

    13 understanding it myself I think it would be proper for

    14 all documents to be translated into French. That is

    15 the first point.

    16 The second has to do with all of the documents.

    17 I think that there is a significant amount of work, and

    18 I'm convinced that we have to find an agreement.

    19 I believe that thanks to the help of my colleagues I can

    20 say to you there is a way of reaching an agreement.

    21 Nonetheless this cannot be done without extra people

    22 working in the French section in the translation service

    23 at this Tribunal. I do not want to say anything else

    24 about it, because we do have a trial here, but it is

    25 part of the trial that the documents are communicated

  3. 1 properly. Perhaps we do not have to translate

    2 everything, but once again I have to tell you we have to

    3 come to an agreement. I want to find one. I ask you to

    4 speak with the translation service and its chiefs so

    5 next week we can have a small meeting in order to find

    6 out a way to solve this problem and find out what can be

    7 done, both in principle. There are certain things

    8 which must be done as regards the principle beyond the

    9 understanding of this judge, because the trials we are

    10 conducting here are for history. In 20, 30 or 40 years

    11 people have to be able to go back to the traces of the

    12 Tadic, Blaskic or Celebici trial in both of the official

    13 languages of this Tribunal. This has to do with moving

    14 legal knowledge forward.

    15 Also what is involved are the facts within this

    16 trial that come out and the three judges must be able to

    17 operate normally and starting with the very person

    18 speaking to you, who is handicapped by being French but

    19 can do nothing about it, and therefore must work in his

    20 own language. Therefore, after having made this little

    21 joke, I would like to take up things more seriously once

    22 again. I can give you back the floor, Mr. Cayley, so

    23 I think you can have once again Professor Pajic brought

    24 in. Thank you.

    25 MR.. CAYLEY: Mr. President, your Honours, learned counsel,

  4. 1 good morning. The Office of the Prosecutor,

    2 Mr. President, fully appreciates your wishes in respect

    3 of translations and indeed, as you say, they do have

    4 historic and important consequences. Specifically in

    5 request of the five items yesterday that were not fully

    6 translated into the French language, I spoke with

    7 Monsieur Gilbert of the translation unit. He is working

    8 on those at the moment and hopefully you will have them

    9 within a short period of time. I will, as you have

    10 requested, make arrangements for a meeting so that these

    11 problems can be solved. Lastly, I would like to

    12 publicly say thank you to the translation unit for all

    13 of the work they have done on these particular

    14 documents. It has been a very difficult task, as the

    15 language is highly technical. They have done an

    16 extraordinarily good job. I would just like to take

    17 this opportunity to thank him for that work.

    18 The second matter, Mr. President, is another matter

    19 of procedure, and that concerns exhibits. I would like

    20 to now formally request before the witness is brought in

    21 that certain items be admitted into evidence that the

    22 Prosecutor did not request during the proceedings. If

    23 there are no objections from the Defence, I can number

    24 those items off, and I think the Registrar's officer is

    25 aware of the documents I'm speaking of.

  5. 1 I would like admitted into evidence documents 36

    2 A, B, C and D. Those are the original versions of the

    3 Narodni lists. Item 38, A, B and C, which are

    4 respectively the Serbo-Croat, the Croatian extract of

    5 the documents selected by Dr. Pajic; the French extract

    6 and the English extract.

    7 JUDGE JORDA: Does the Defence agree?

    8 MR.. HAYMAN: No objection, your Honour.

    9 JUDGE JORDA: Very well. Therefore, we ask the Registrar

    10 to have these documents numbered as requested by

    11 Mr. Cayley. I give you have the floor again,

    12 Mr. Cayley.

    13 MR. CAYLEY: Thank you, Mr. President. One last matter.

    14 The witness, Dr. Pajic, is expecting to leave this

    15 evening. Now, the Office of the Prosecutor fully

    16 respects my learned friend's right to cross-examine the

    17 witness, as indeed is General Blaskic's right under the

    18 Statute, but in that sense he wished me personally to

    19 communicate that to you, that he would be expecting to

    20 leave the Tribunal this evening for business in

    21 London. With that, your Honour, and with your

    22 permission, could I call the witness, please?

    23 JUDGE JORDA: As regards the last point, I believe that the

    24 Tribunal cannot make any commitments, because the

    25 cross-examination will take place under whatever

  6. 1 conditions that the Defence wants. You were able to

    2 ask as many questions as you like, and the Defence must

    3 be able to do the same. We all hope that this will

    4 allow Professor Pajic to leave this evening, but if he

    5 cannot, I do not think we will do what we did for

    6 another witness, who didn't begin, but this time I think

    7 we have to conclude. That's the only thing I can say

    8 as things stand now. Please have the Professor brought

    9 in.

    10 MR. CAYLEY: Thank you, Mr. President.

    11 (Witness enters court)

    12 JUDGE JORDA: Good morning, Professor. Do you hear me?

    13 Have you rested up a bit and everything all right?

    14 Fine. Then this morning you have a few more comments

    15 to which you are being asked to respond, comments from

    16 the Prosecution, and then the Defence will ask you some

    17 questions. Mr. Cayley?

    18 MR. CAYLEY: Thank you, Mr. President.

    19 Dr. Pajic, we left off yesterday at the end of

    20 yesterday's session with you discussing the final

    21 documents in the extract which concern the decision of

    22 the Constitutional Court in Sarajevo, and I stated

    23 yesterday that you wished to make some concluding

    24 remarks as a finish to your examination-in-chief. If

    25 you could now go ahead and make your concluding remarks,

  7. 1 viewing all of the documents as a whole and employing

    2 your expertise to explain to the judges as fully as you

    3 can your overall view of these documents. Thank you,

    4 Dr. Pajic?

    5 A. (In interpretation): since my analysis covered a large

    6 number of documents published in the Official Gazette

    7 and a few documents that were not in that publication,

    8 perhaps it might be useful for me to summarise my expert

    9 opinion.

    10 Regarding the methodology of this summary, let me

    11 say that I shall try to be brief, and, secondly, I have

    12 divided my conclusions into two parts. I will first

    13 make four individual conclusions and end up with the

    14 general conclusion regarding the normative activities of

    15 the Croatian Community of Herceg-Bosna, which later

    16 became the Croatian Republic of Herceg-Bosna.

    17 My first conclusion of an individual nature is as

    18 follows. A community of municipalities was formed

    19 known as the Croatian Community of Herceg-Bosna and

    20 gradually by its normative activities it acquired the

    21 attributes of statehood. From the very beginning all

    22 the documents of the HZ H-B insist on territorial

    23 integrity and the Defence of territorial integrity as

    24 one of the main attributes of statehood. All the

    25 municipalities of HZ H-B are municipalities within the

  8. 1 territory of the sovereign Republic of

    2 Bosnia-Herzegovina. However, The Republic of Bosnia

    3 and Herzegovina in the course of the emergence of the

    4 Croatian Community is systematically ignored as a

    5 State. Its competencies are marginalised. Its

    6 constitutional system is ignored, and the legislation of

    7 the Republic of Bosnia-Herzegovina violated. In fact,

    8 autonomous bodies of authority are established and an

    9 independent legal order is built up of the Croatian

    10 Community of Herceg-Bosna.

    11 What is more, the Croatian Community of

    12 Herceg-Bosna took over part of the frontier of

    13 Bosnia-Herzegovina and regulated independently the

    14 frontier regime which in formal and legal terms belongs

    15 to the Republic of Bosnia and Herzegovina.

    16 My second conclusion is as follows. Through all

    17 the documents that I have analysed, like a thread one

    18 notices the omnipresent role of the HVO, the Croatian

    19 Defence Council, in all state affairs. May I recall

    20 that the HVO was set up as the supreme body of defence

    21 of the Croatian Community, but already in the first

    22 document it acquired a decisive role in the Presidency

    23 of the Croatian Community, which was defined as the

    24 legislative body of the Croatian Community.

    25 In this connection one immediately notices the

  9. 1 unity of functions held by one individual, that is the

    2 President of the Croatian Community, who is at the same

    3 time the President of the Croatian Defence Council.

    4 The Croatian Defence Council is constituted as a supreme

    5 executive and administrative authority, with the

    6 characteristics of a government. The HVO covers the

    7 departments of Defence, the Interior, the Economy,

    8 Finance, Social Affairs, Justice an Administration

    9 through appropriate departments headed by appointed

    10 chiefs. Gradually the Croatian Defence Council

    11 encompasses control over the functioning of the system

    12 of the judiciary, primarily the Prosecutor's Offices and

    13 the courts, the regular courts. It appoints and

    14 relieves judges within that judicial system.

    15 In brief, the Croatian Defence Council is

    16 concentrating within its control the legislative,

    17 administrative and executive powers. At the same time

    18 the Croatian Defence Council preserves all the

    19 prerogatives of a supreme defence body, and it is based

    20 on a principle of subordination at the national level,

    21 without any right of the municipalities to set up their

    22 own bodies at municipal level.

    23 My third conclusion is that the Defence of the

    24 Croatian Community of Herceg-Bosna from the beginning

    25 was entrusted to the Croatian Defence Council. The

  10. 1 Defence of the Croatian Community of Herceg-Bosna was

    2 organised on the basis of the principle of the

    3 participation of all citizens in defence. In the

    4 decision that is I described over the past few days, a

    5 system was elaborated whereby each citizen of the

    6 Croatian community of Herceg-Bosna knows or can know

    7 what his obligations are with respect to defence either

    8 as a conscript, or if he comes under the obligation to

    9 work, or if he has to contribute in financial or

    10 material resources to the activities of defence. The

    11 HVO is the absolute supervisor and holder and proprietor

    12 of all the acquired material goods.

    13 In this connection the entire production for the

    14 needs of the military comes under the control of the

    15 HVO, which also supervises the work of public

    16 enterprises. The armed forces of the Croatian

    17 Community are gradually set up through the documents

    18 I have referred to as a legally founded structure, with

    19 emphasis on the unity of command and subordination and

    20 disciplinary responsibility, which is accompanied by a

    21 system of military courts.

    22 My fourth conclusion of this nature is that the

    23 Croatian Community of Herceg-Bosna was established as a

    24 national entity aspiring to round off a certain

    25 territory, whether legitimately or not -- which I'm not

  11. 1 entering into because that is not my field of expertise

    2 -- a territory that would correspond to the interests

    3 of the Croatian people in this area.

    4 In addition to all the institutions of the

    5 Croatian Community of Herceg-Bosna, which later became

    6 the Croatian Republic of Herceg-Bosna, the attribute of

    7 "Croatian" is emphasised. Though at the moment it was

    8 formed the Croatian Community of Herceg-Bosna in all the

    9 30 municipalities enumerated in the first decision on

    10 its establishment, there are members of other ethnic

    11 groups, with the exception of four municipalities:

    12 Posusje, Siroki Brijeg, Grude and Citluk, where

    13 representatives of other ethnic groups are very few, in

    14 all the other, that is in the 26 out of the 30

    15 municipalities, there are inhabitants belonging to other

    16 ethnic groups, Muslims and Serbs, or Muslims or Serbs,

    17 and their share in the population varies. According to

    18 the 1991 census, it varies from 72-82 per cent depending

    19 on the municipalities.

    20 However, in spite of this, all the regulations in

    21 their wording, as well as in the rhetoric used,

    22 implicitly exclude the non-Croat population from the

    23 political life of the Croatian Community. The

    24 institutions of the system of authority are constituted

    25 in such a way that only representatives of the Croatian

  12. 1 people are represented. I must say in addition to all

    2 this that the Croatian Community of Herceg-Bosna and

    3 later the Croatian Republic of Herceg-Bosna did not pass

    4 a single legal regulation that would guarantee the

    5 rights of minorities in accordance with international

    6 standards, and especially not of national religious and

    7 ethnic and linguistic minorities. This is no

    8 coincidence, because in some documents a general

    9 readiness is expressed to accept and observe the Geneva

    10 conventions and General international law.

    11 Finally allow me to make a very general conclusion

    12 in a few words. I have read and analysed a large number

    13 of documents. I think that I had in total either at

    14 home and in my offices both ten and 12 kilograms of

    15 documents to study. I must say that, as a lawyer,

    16 I immediately noticed one characteristic. These

    17 documents, with very few exceptions, are the product of

    18 highly skilled legal qualities. One immediately

    19 notices a number of principles. First, the gradual

    20 character of the normative activities; secondly, the

    21 continuity in that normative activity; then also the

    22 systematic nature of the regulations and decisions,

    23 their consistency. I have indicated on several

    24 occasions a few minor points where one notices any

    25 contradictions. In brief, one clearly notices the

  13. 1 tendency to expand state prerogatives during 1992 and

    2 1993, and something that impresses me in particular in

    3 view of the fact that I know the conditions under which

    4 the Croatian Community of Herceg-Bosna emerged, that is

    5 conditions of more or less wartime environment,

    6 depending on the time, is the comprehensiveness of these

    7 normative activities.

    8 I was frequently surprised to come across

    9 documents of the following contents. Let me cite a few

    10 as an illustration. For example, the adoption of the

    11 decree on founding a Motoring Club of the Croatian

    12 Community; a decree confirming the Statute of the

    13 Motoring Club and on the appointment of the

    14 secretary-general of the Motoring Club. These were all

    15 published in the Official Gazette number 5 of 1992

    16 signed by the President of the HVO. Then the decree on

    17 the establishment and work of the University in Mostar,

    18 which was also published in the Official Gazette number

    19 6 of 1992, with a provision saying that the Chancellor

    20 is responsible to the HVO.

    21 Then in Official Gazette number 7 of 1992 a

    22 decision on the appointment of the Deans of various

    23 departments of the Mostar University. Then in the

    24 Official Gazette number 8 of 1992 a decree on games, on

    25 lotteries. Then on the foundation of the fire

  14. 1 brigades, again in the Official Gazette of 1993. Then

    2 a decree on the foundation of the Geophysical Institute

    3 in the Official Gazette Number 6 of 1993. I could list

    4 many more examples, which are all illustrative of the

    5 comprehensiveness of those normative activities and the

    6 intention of the legislator to cover also social affairs

    7 by specific legal regulations of the Croatian Community

    8 of Herceg-Bosna.

    9 Thank you, Mr. President, for your attention.

    10 With that I complete my analysis.

    11 JUDGE JORDA: Mr. Cayley, have you any other questions

    12 before we give the floor to Mr. Hayman?

    13 MR. CAYLEY: I have no further questions, your Honour. We

    14 can offer the witness for cross-examination

    15 continuity.

    16 MR. HAYMAN: May I inform the court how we intend to

    17 proceed?

    18 JUDGE JORDA: Yes, of course.

    19 MR. HAYMAN: Mr. Nobilo will commence the

    20 cross-examination. I will also have a smaller number

    21 of questions. I wanted to assure the Tribunal in

    22 advance we will exercise the greatest care not to

    23 duplicate questions, but for reasons of both linguistics

    24 and subject matter, we feel it is important that we both

    25 have the opportunity to ask questions.

  15. 1 Cross-examination by Mr. Nobilo.

    2 JUDGE JORDA: Thank you, Mr. Hayman. The Tribunal has no

    3 problem with that. Both of you represent the Defence

    4 and you organise General Blaskic's defence as you intend

    5 to do, as you like,, but of course, respecting the

    6 conditions set by the Tribunal. Mr. Nobilo, the floor

    7 is yours.

    8 MR. NOBILO: Thank you, Mr. President, your Honours, learned

    9 counsel. Dr. Pajic, my name is Anto Nobilo, defence

    10 counsel of General Blaskic, and I would like to ask you

    11 a few questions. Let us go back to the beginning of

    12 your statement. We won't take so long, of course, but

    13 your first assertion which I noticed was that for the

    14 states of the European tradition and the former

    15 Yugoslavia, it was characteristic to issue official

    16 gazettes in which laws and other regulations are

    17 published, and that that is one of the indications of

    18 the statehood of Herceg-Bosna. Have I remembered well

    19 your submission?

    20 A. Basically yes.

    21 Q. I should like to remind you, do you not recall that even

    22 today and in the former Yugoslavia cities and

    23 municipalities also had their official gazettes, where

    24 city councils published their decisions and regulations

    25 governing life in the towns; is that correct?

  16. 1 A. Yes.

    2 Q. Therefore in view of this one could not claim that only

    3 states had official gazettes?

    4 A. That is true, but I was actually concentrating on the

    5 contents of the legal regulations.

    6 Q. Yes, but you spoke of the form, the existence of an

    7 Official Gazette as a publication for official

    8 documents, and I am now referring to this form, the

    9 method of publication of regulations, and saying that

    10 cities also have some forms, that is such official

    11 gazettes?

    12 A. Yes, that is correct.

    13 Q. Let us go on. Then you said that the first decision on

    14 the establishment of Herceg-Bosna was passed on 18th

    15 December 1991, but that the war in Bosnia-Herzegovina

    16 had still not started at the time?

    17 A. Yes, that is correct.

    18 Q. I should like to remind you that between 18th and 20th

    19 September 1992, 10,000 reservists from Serbia and

    20 Montenegro came to Bosnia-Herzegovina in the area of

    21 Stoliz, Heliodom. They didn't enter the barracks, but

    22 immediately took up positions in the field in the

    23 direction of Neum and western Herzegovina, and those

    24 were the first foreign troops in the beginning of the

    25 invasion. Do you agree with that?

  17. 1 A. As far as my memory serves me, because we are now

    2 talking about facts --

    3 Q. Yes, but it was important to know what was the

    4 environment within which certain documents were passed?

    5 A. If I remember correctly, let me say the following.

    6 First of all, I do not deny that even in that period

    7 there was a certain pre-war psychosis in

    8 Bosnia-Herzegovina.

    9 Q. I myself was a witness of that.

    10 A. And in Croatia it was already war.

    11 MR. CAYLEY: Your Honour, Mr. President, could I make an

    12 objection please? The witness must be given time to

    13 actually answer the question, and at the moment Dr. Pajic

    14 is trying to answer and as soon as he is, Mr. Nobilo is

    15 actually talking over him.

    16 JUDGE JORDA: I find this objection is well founded. Ask

    17 your questions, take as long as you like to ask the

    18 question, but then allow the witness to answer.

    19 A. There was a war psychosis in Bosnia-Herzegovina even in

    20 this period we are referring to now. On the other

    21 hand, I'm not quite sure that I could agree with your

    22 description of foreign troops, because at that time the

    23 Yugoslav People's Army still existed in the territory of

    24 the Republic of Bosnia-Herzegovina and as far as

    25 I remember there was a regional command in Sarajevo of

  18. 1 the JNA at the time. I'm not going to enter into

    2 discussions as to what they were preparing, but they

    3 were co-operating with the legal authorities of the

    4 Government of Bosnia-Herzegovina.

    5 Q. But do you agree that it was visible that the war was in

    6 the offing in Bosnia-Herzegovina?

    7 A. I would agree with that. I myself made a public

    8 statement somewhere in January 1992, saying that

    9 I feared there would be war in Bosnia-Herzegovina, but

    10 for various reasons and looking to the international

    11 community too, we had hoped that the war would be

    12 prevented.

    13 Q. Do you perhaps remember that on 20th September 1991 the

    14 village of Ravna was razed to the ground? Do you

    15 remember that?

    16 A. Yes. That was linked to the operations near Dubrovnik.

    17 Q. But in the territory of Bosnia-Herzegovina?

    18 A. Yes, the territory of Trebinje.

    19 Q. I should like to ask is it for you normal somebody

    20 should prepare for defence before war breaks out, or is

    21 it better and more normal for them to prepare for

    22 defence when the war actually begins?

    23 A. I can only say if only we had prepared in time.

    24 Q. So can we view this document as one of the ways -- I'm

    25 not saying the only one -- to prepare for defence

  19. 1 against the aggressor?

    2 A. No, I would not agree with you, because the decision to

    3 establish the Croatian Community of Herceg-Bosna only

    4 partially speaks of the need for defending the Croatian

    5 Community. It doesn't explicitly say that an

    6 aggression is being prepared or a war against The

    7 Republic of Bosnia-Herzegovina.

    8 Q. That is my problem. May I then draw your attention to

    9 point two of the Prosecutor's file? Perhaps you could

    10 look up those documents. It will be easier. Exhibit

    11 38. I point to page 2. It is the decision

    12 establishing the Croatian Community of Herceg-Bosna in

    13 1991.

    14 A. You are talking about the revised text?

    15 Q. Yes.

    16 A. The second one then.

    17 Q. Perhaps if we follow the same numbers, it will be

    18 easier. So when you were talking about this decision,

    19 I think that you did not exactly indicate the reasons

    20 for the establishment. Here they are explicitly

    21 stated. I should like to read them to you and to hear

    22 your comments. The reasons for the establishment of the

    23 Croatian Community of Herceg-Bosna and it says:

    24 "Faced with the ruthless aggression of the

    25 Yugoslav Army and Chetniks against The Republic of

  20. 1 Bosnia-Herzegovina and The Republic of Croatia, with a

    2 tremendous number of lives lost, with the suffering and

    3 pain, with the fact that age-old Croatian territories

    4 and goods are being coveted, with the destruction of the

    5 Republic of Bosnia-Herzegovina and its legally elected

    6 bodies, the Croatian people of Bosnia-Herzegovina in

    7 these difficult moments of their history, etc., are

    8 establishing the Croatian Community of Herceg-Bosna".

    9 Can you comment on this? Do you accept that these

    10 were the main reasons that are put here as the reasons

    11 for the establishment of the Croatian Community?

    12 A. Mr. Nobilo, you have read to me the preamble of a

    13 decision that was passed on 3rd July 1992, when the war

    14 in Bosnia-Herzegovina was well underway, but the

    15 decision on the establishment of the Croatian Community

    16 of Herceg-Bosna is stated 18th November 1991, and to it

    17 is attached a short preamble, too, which differs in many

    18 respects from the preamble that you will find in the

    19 revised text. Maybe we can read it and we can again

    20 see the reasons for the establishment of the community,

    21 if you agree.

    22 I'm talking about this sentence that you

    23 emphasised. If we read this decision, noting the date,

    24 3rd July 1992, then I quite agree with you that this

    25 preamble is acceptable, that is faced with the ruthless

  21. 1 aggression of the Yugoslav army and Chetniks against The

    2 Republic of Bosnia-Herzegovina and The Republic of

    3 Croatia. However, the preamble corresponding to the text

    4 of 18th, there is no reference to the ruthless

    5 aggression to the Yugoslav Army.

    6 Q. As I was saying the, Yugoslav army in Bosnia-Herzegovina

    7 still existed, but if you look at the preamble of the

    8 first document, you will see in the first sentence:

    9 "At moments when the last Communist army in Europe

    10 together with the Chetniks is threatening the survival

    11 of the Croatian State and Croatian people",

    12 which implies also the Croats in

    13 Bosnia-Herzegovina. The Communist army is the JNA and

    14 the Chetniks are the Chetniks. Does this also not

    15 indicate the reason, only later on it is much clearer,

    16 of course?

    17 A. That is a matter of interpretation. I think your

    18 interpretation is rather extensive, rather broad,

    19 because if we are talking about threats to the survival

    20 of the Croatian state and the Croatian people,

    21 Bosnia-Herzegovina is not mentioned in that context.

    22 It is later.

    23 Q. But it says:

    24 "We, the elected representatives of the Croatian

    25 people in Bosnia and Herzegovina".

  22. 1 Not to dwell on this matter, do you agree or

    2 disagree with me that the reason for the establishment

    3 of this entity or whatever you like to call it, that the

    4 main reason was the danger of war, the need to organise

    5 defence of the territory which the Croats of

    6 Bosnia-Herzegovina feel they are entitled to where they

    7 live. Do you agree that that was the main reason?

    8 A. I would agree, yes, to organise and prepare defence.

    9 Q. Yes. So we have come to an agreement. I should now

    10 like to ask you to recall what the Federal Government at

    11 the end of 1991 -- when I say the Federal Government, I

    12 am thinking of the Government of Bosnia-Herzegovina --

    13 what did it do to prepare for defence? Did the Federal

    14 Government protect its citizens, the citizens of

    15 Bosnia-Herzegovina, against aggression?

    16 A. You are asking me a question which I cannot answer on

    17 the basis of these documents, you see. We could engage

    18 in a discussion which would be reminiscent of

    19 memoirs. This is a period five years ago, and I could

    20 talk to you on the basis of my own memory. I was not a

    21 member of the government of the Bosnia-Herzegovina.

    22 MR. CAYLEY: I'm sorry to object again, Mr. President.

    23 JUDGE JORDA: Mr. Cayley?

    24 MR. CAYLEY: As you can see, Mr. Nobilo is covering

    25 wide-ranging areas well outside the essence of the

  23. 1 testimony of the witness. Dr. Pajic came here to

    2 testify upon the basis of the documents that are before

    3 learned counsel for the Defence, that are before

    4 yourselves. He was not brought here to testify on

    5 these huge political events that were going on

    6 Bosnia-Herzegovina at the time, and I would request that

    7 Mr. Nobilo's cross-examination is limited to the

    8 documents and nothing else.

    9 JUDGE JORDA: Mr. Hayman, do you want to add something?

    10 MR. HAYMAN: Your Honour, the direct examination at various

    11 times went outside the documents and the context for

    12 these events, to the extent this witness has personal

    13 knowledge, and please recall this witness left Sarajevo

    14 in 1992. He has some personal knowledge. I do not

    15 believe there is going to be extensive questioning here

    16 but some questioning, I submit, should be allowed.

    17 JUDGE JORDA: I would like to consult with my colleagues

    18 for a moment. (Pause) We are overruling the objection,

    19 but we request that the Defence remain concise and to

    20 focus more on the documents themselves. Thank you.

    21 You may continue.

    22 A. You do not have to repeat the question. I can answer.

    23 On the reservation that I'm speaking truly only on

    24 the basis of personal impressions, that I do not have in

    25 my possession any documents from this domain of my

  24. 1 statement, I can say that the Defence of the Republic of

    2 Bosnia and Herzegovina at the time when the war fully

    3 broke out was highly impeded. The State territory was

    4 fragmentised to a large extent. The communications

    5 were broken off all over throughout The Republic of

    6 Bosnia-Herzegovina, and then to the best of my knowledge

    7 then in Sarajevo people started being involved in

    8 self-organisations. Some areas were defended better

    9 and some worse. I can only speak from my personal

    10 experience in Sarajevo, which defended itself from

    11 invasion. Whether this was done by the well-organised,

    12 prepared-in-advance army of Bosnia-Herzegovina I do not

    13 know, but it is for sure had there not been an organised

    14 defence, Sarajevo would have fallen into the hands of

    15 the Yugoslav People's Army or later the units that took

    16 over the JNA armaments and equipment and held Sarajevo

    17 to siege. One should not forget before the war broke

    18 out -- whenever I speak of the beginning of the war,

    19 please understand me; I mean April 1992 -- one should

    20 not forget that considerably before that date in

    21 Bosnia-Herzegovina the units of the United Nations armed

    22 forces were deployed, UNPROFOR, and rightfully so or

    23 less rightfully so a lot of people were hoping that

    24 UNPROFOR would stop war breaking out in

    25 Bosnia-Herzegovina and contribute to the preservation of

  25. 1 peace. Unfortunately all our hopes were in vain and

    2 all circumstances point to the fact that it's difficult

    3 to speak of a comprehensive defence of

    4 Bosnia-Herzegovina. It was fragmentised. In some

    5 places it was more successful, like in Tuzla, and in

    6 some places less successful like in Western Herzegovina,

    7 etc.

    8 THE INTERPRETER: Microphone, please. Mr. Nobilo's

    9 microphone is not on.

    10 MR. NOBILO: I agree with you, but we should highlight one

    11 thing. If it was necessary to have self-organisation,

    12 is it not that a negation of a system of organisation of

    13 the Federal Government or shortcomings in the Federal

    14 Government itself. Would you agree with that?

    15 A. Mr. Nobilo, if we are going to talk about the necessity

    16 of defence only, we could agree on that, but I remind

    17 you of Article 1 of the decision on establishing the

    18 Croatian Community of Herceg-Bosna. No reference is

    19 made to defence. It said that the Croatian Community

    20 of Herceg-Bosna shall be established as a political,

    21 cultural, economic and territorial integrity.

    22 Q. But in the reasons for establishing it defence is truly

    23 referred to, and you said later that the military acts

    24 drawn up were very good from the legal point of view,

    25 but let us go back to the fate of the man in the street

  26. 1 in Bosnia-Herzegovina and the defence claims that they

    2 were not protected by the authorities and they should

    3 have been protected by the authorities, your fate.

    4 According to our information you have left Sarajevo some

    5 time in mid-1992. Was that for reasons of security or

    6 rather insecurity in terms of your life in Sarajevo?

    7 A. I shared the fate of all the people of Sarajevo, so yes,

    8 that is one of the reasons. Another reason is that my

    9 activity by its very nature is that of a public figure,

    10 an independent intellectual, and in Sarajevo I felt

    11 rather isolated from the rest of the world.

    12 Q. Exactly. So can we conclude on that basis that your

    13 government did not give you enough security for your

    14 work and communications?

    15 A. Well, you know in conditions of war an individual should

    16 not expect too much from his or her government.

    17 Q. Everyone is the master of his fate. I agree with you

    18 the Croatian people didn't expect that much and they

    19 also took their destiny in their own hands. So let us

    20 proceed.

    21 The next assertion which I would like to dispute a

    22 bit, that is that this organisation was not in keeping

    23 with the constitution of Bosnia-Herzegovina, I would

    24 agree with you on that, but could you explain at the

    25 point in time when the Croatian Community of

  27. 1 Herceg-Bosna was established in November 1991 what the

    2 constitution was still in force in Bosnia-Herzegovina?

    3 A. That is a good question, because nearing the end of the

    4 last regime in Bosnia-Herzegovina there was a confusion

    5 in terms of the legal and constitutional situation. So

    6 when it was certain that the former regime which was

    7 headed by the former League of Communists of Yugoslavia

    8 was losing the ground under its feet certain changes

    9 were made, first of all in the constitutions of the

    10 republics, and, of course, the constitution that was

    11 valid then was the first constitution from 1974, both

    12 the federal constitution and the republican

    13 constitution. However, it was amended considerably in

    14 1988 and 1989. I am speaking of the constitution of

    15 The Republic of Bosnia-Herzegovina. Immediately upon

    16 the establishment of the assembly of Bosnia-Herzegovina

    17 after the first multi-party elections, work was done on

    18 elaborating a new constitution. This took quite a bit

    19 of time but at the beginning of 1991 numerous amendments

    20 were adopted, and they legally sanctioned the existing

    21 situation, namely a multi-party system, the composition

    22 of the Parliament, the composition of the government and

    23 also the composition of the Presidency as the collective

    24 head of state.

    25 So in response to your question I can say that the

  28. 1 old constitution from 1974 was in force with the

    2 amendments from 1988, 1989, and 1991.

    3 Q. I have understood that these amendments changed in a

    4 sense -- touched upon the question of the multi-party

    5 quality of the country, but in terms of Yugoslavia in

    6 November 1991 Bosnia was still part of Yugoslavia a

    7 federal unit of Yugoslavia?

    8 A. I do not have a text of the constitution here but I am

    9 almost certain that that was so for the simple reason

    10 that The Republic of Bosnia-Herzegovina had not yet

    11 become independent in an international legal sense of

    12 the word. As you know, after the conclusions passed by

    13 the Badinter Commission on behalf of the European

    14 Community, then it was envisaged that the republics that

    15 wished to attain independence on the territory of the

    16 former Yugoslavia were supposed to carry out a

    17 referendum on that. It is only after that referendum in

    18 March 1992 that the first international recognitions of

    19 Bosnia-Herzegovina started coming in as an independent

    20 state.

    21 Q. So we can conclude in terms of the first decision on

    22 establishment in November 1991 and the second one in

    23 July 1992 Bosnia was still within the framework of

    24 Yugoslavia at least from the point of view of law and

    25 constitution?

  29. 1 A. Not in July 1992.

    2 Q. But in April? You said that Bosnia was internationally

    3 recognised in the summer; right?

    4 A. No. No. In the first week of April 1992 it was

    5 recognised and it was -- it became a member of the

    6 United Nations the same day as Croatia, on 22nd May

    7 1992.

    8 Q. What is the army according to this valid constitution --

    9 was the army of Bosnia-Herzegovina and all other

    10 republics of Yugoslavia legally, formally?

    11 A. Legally, formally, the functioning army, so to speak,

    12 was the Yugoslav people's army, with highlighted

    13 elements of territorial defence because this was

    14 important in the country.

    15 Q. Who was in charge of the territorial defence in the case

    16 of immediate threat of war or war?

    17 A. In such cases JNA.

    18 Q. Do we not have a constitutional paradox that the army of

    19 the Republic of Bosnia-Herzegovina was in the state of

    20 attacking Bosnia-Herzegovina as a State?

    21 A. This question can only be understood in the context of

    22 national divisions that --

    23 Q. We are talking constitutionally and legally?

    24 A. That came into being in Bosnia-Herzegovina, because

    25 constitutionally and legally that was the status of the

  30. 1 JNA, as you have said. However, in fact, in the units

    2 of the JNA a lot of the military started leaving the

    3 units, those belonging to the Muslim and Croat ethnic

    4 groups, as you know.

    5 Q. Yes, that is true, but formally, legally, when the

    6 fighting broke out in Bosnia-Herzegovina, the JNA was

    7 the army of Bosnia-Herzegovina?

    8 A. Right. Exactly.

    9 Q. Do you not think that in such a constitutional paradox,

    10 when an army attacks its own state, formally, legally

    11 constitutionally -- we know what it was like in real

    12 life -- one group of people or a group of

    13 municipalities, whatever you wish, do you not think that

    14 people or municipalities has the right on the basis of

    15 self-defence to violate certain constitutional

    16 provisions when we have such an anti-constitutional

    17 situation. What is more important there, formal

    18 violation of the constitution or the right to

    19 self-defence?

    20 MR. CAYLEY: Mr. President --

    21 JUDGE JORDA: Mr. Nobilo, ask your question and then allow

    22 the witness to answer, because you keep adding one

    23 question to the next before the witness can answer. Is

    24 your question different from mine, Mr. Cayley?

    25 MR. CAYLEY: No, from President. I would simply echo what

  31. 1 you are saying. Mr. Nobilo must have respect for the

    2 witness and allow him to answer the questions, otherwise

    3 the process becomes ridiculous.

    4 JUDGE JORDA: There is a technical complication here. You

    5 are speaking very quickly. Interpreters are going as

    6 best they can, but at some point while you are

    7 concluding your question, the witness is answering, and

    8 it is not really very convenient. I think it would be

    9 simpler in order to help the work of the judges and the

    10 work of the interpreters to ask your question, allow the

    11 witness to answer, and then continue asking further

    12 questions.

    13 MR. NOBILO: Thank you, and I accept the objections that

    14 were made. However, one thing I cannot accept, that

    15 I do not show due respect to the expert witness.

    16 I think that we're having a fine conversation.

    17 You were in the process of replying, were you not?

    18 A. Before I give a resolute answer to your question what is

    19 the priority, I have to remind you of the context in

    20 which all of this was happening. It is quite clear

    21 that the peoples of Bosnia-Herzegovina are seeking ways

    22 of defending themselves from aggression. However,

    23 I wish to remind you that at the same time when we are

    24 talking about this decision, one version and the other,

    25 accelerated work is being done in the Government of

  32. 1 Bosnia-Herzegovina in Sarajevo on negotiations for the

    2 JNA to leave Bosnia-Herzegovina. Active participation

    3 is taken in these negotiations by Mr. Jerko Dojko,

    4 Minister of Defence, who was nominated to this post as

    5 the candidate of the political party of the Croatian

    6 Democratic Union. I know him personally, and that is

    7 why I have such detailed information. So preparations

    8 are underway for the evacuation of the JNA, that is the

    9 terminology that was used then, from the territory of

    10 Bosnia-Herzegovina, and that is the delicate point in

    11 time when at the same time the army of Bosnia and

    12 Herzegovina was in the process of being established, and

    13 if you remember then, General Sebir -- I can't remember

    14 his first name -- was appointed commander of the General

    15 staff.

    16 Q. Yes, but you didn't answer whether the violation of the

    17 constitution or the right to self-defence are more

    18 important. What is the basic right?

    19 A. That is an academic question. I agree with you that

    20 the right to self-defence is a basic right.

    21 Q. I also wish to draw your attention to another thing.

    22 You have spoken in detail about the decision on

    23 establishing the Croatian Community of Herceg-Bosna.

    24 That is page 2, point two, but perhaps you did not

    25 emphasise Article 5 fully. I wish to draw your

  33. 1 attention to that and read it out to you:

    2 "The community shall respect the democratically

    3 elected bodies of authorities of the Republic of

    4 Bosnia-Herzegovina so long as the state of

    5 Bosnia-Herzegovina remains independent from the former

    6 or any future Yugoslavia"?

    7 A. Thank you for having reminded me of this provision.

    8 I think it is important for interpreting the overall

    9 aspirations of the Croatian Community of Herceg-Bosna.

    10 This provision truly says that the community shall

    11 respect the democratically elected Government of

    12 Bosnia-Herzegovina as long as the State of

    13 Bosnia-Herzegovina remains independent from the former

    14 or any future Yugoslavia. This is a provision of a

    15 conditional nature, I would say, conditional nature, but

    16 a condition which was counted upon, but it was never

    17 truly met, because you would agree with me that in the

    18 dramatic events that followed, Bosnia and Herzegovina

    19 got out of Yugoslavia and so far it has not entered a

    20 future Yugoslavia.

    21 Q. Exactly, and this territory is still in

    22 Bosnia-Herzegovina until the present day?

    23 A. Yes.

    24 Q. Okay. So I go on. Also you asserted that the

    25 decision on page 2, the definite text on the

  34. 1 establishment of the Croatian Community of Herceg-Bosna

    2 in relation to the first decision on establishing the

    3 Croatian Community of Herceg-Bosna goes a step further

    4 in terms of emphasising elements of statehood. So

    5 I ask you what was the situation like in the military

    6 sense in September 1992 or July 1992? Although you

    7 already replied to that in comparison to 1992, I am not

    8 asking you for details. Worse or better?

    9 A. It was worse.

    10 Q. Now I wish to draw your attention to page 4 of point

    11 two, evidence 38. We have a decision of the Croatian

    12 Defence Council, an important decision I would agree

    13 with you. So --

    14 JUDGE JORDA: For the Tribunal, specifically point out

    15 which document you are referring to.

    16 MR. NOBILO: This is document number 2 of the Prosecutor's

    17 evidence, page 4. Perhaps in the French translation it

    18 is different, but in English and in Croatian it is

    19 page 4.

    20 JUDGE JORDA: Thank you.

    21 MR. NOBILO: When speaking of that decision, I think that

    22 you omitted the preamble, so I ask you for your comment

    23 after I read it:

    24 "Pursuant to Article 7 of the decision

    25 establishing Croatian Community of Herceg-Bosna, the

  35. 1 Presidency of the Croatian Community of Herceg-Bosna" --

    2 now this is what I wish to highlight -- "faced with

    3 aggression in the territories of the Croatian

    4 communities of Herceg-Bosna and the fact that the

    5 Croatian people have been left unprotected, aware of the

    6 impotence of the legal authorities of the Republic of

    7 Bosnia-Herzegovina, in particular the disintegration of

    8 its defence system, at its emergency session of

    9 8th April 1992 issues the following ...", etc., etc.

    10 Could you comment on that?

    11 A. What is missing, lacking here in this preamble, if you

    12 are asking me for my opinion, is the following.

    13 I would expect from the point of view of the Croatian

    14 Community of Herceg-Bosna to express the assessment that

    15 this is aggression on the territory of all of

    16 Bosnia-Herzegovina. As you know very well from the

    17 census in 1991, the members of the Croatian people live

    18 throughout the territory of Bosnia-Herzegovina, not only

    19 the 30-odd municipalities included in the Croatian

    20 Community of Herceg-Bosna. That is why I believe that

    21 there is this shortcoming here.

    22 Q. All right, but do you accept the rest, that these were

    23 the main reasons why the HVO was established?

    24 A. From the point of view of defence, yes.

    25 Q. Now we are reaching a key point in your expert opinion,

  36. 1 and I think that we have to pay attention to that and

    2 spend some more time on that. This Croatian defence

    3 council which is established as the supreme defence body

    4 of the Croatian people, is it of civilian or military

    5 nature? Is it an army or is it a civilian

    6 organisation? Can you define that according to this

    7 document?

    8 A. I think that it is still premature to establish such a

    9 definition on the basis of this document only and one or

    10 two or three Articles. However, it is important to

    11 recall something that I've said probably over these last

    12 few days, that in Article 2 it is not only said that the

    13 Croatian people will be defended, but also the sovereign

    14 space of the Croatian Community of Herceg-Bosna. In my

    15 opinion, the sovereign space or territorial integrity is

    16 a far more concrete notion as far as statehood is

    17 concerned than the interests of a particular national or

    18 ethnic group.

    19 Q. I agree with you, but I also wish to draw your attention

    20 to the fact that in Article 2 reference is not only made

    21 to the protection of the Croatian people, but also other

    22 peoples in the community who live on the territory of

    23 the community. So it's not only protection of the

    24 Croat people?

    25 A. Yes. Yes. This definition is clear. This is the

  37. 1 protection of the sovereignty of the space of the

    2 Croatian Community of Herceg-Bosna.

    3 Q. I can agree to that but let us leave that aside. Can

    4 you tell me whether this document is sufficient for you

    5 or not to say whether this is an army, a military or a

    6 civilian organ?

    7 A. According to this decision, it is a civilian authority.

    8 Q. Thank you. Let us go on. Our next page, page 5. We

    9 come to the statutory decision on the temporary

    10 organisation of executive authority and administration

    11 in the territory of the Croatian Community of

    12 Herceg-Bosna. You have said generally that the HVO as

    13 a military structure comes to head the Croatian

    14 Community of Herceg-Bosna and in a way this military

    15 structure governs the Croatian Community of

    16 Herceg-Bosna. Did I understand you correctly?

    17 A. The Croatian Defence Council as a defence counsel.

    18 Q. There is a difference involved. It is a defence

    19 structure. Is it a military structure or can it be a

    20 civilian defence structure?

    21 A. It can be a civilian defence structure in view of the

    22 fact how the units were established and the municipal

    23 HVOs, how they were established. This was a military

    24 organisation after all. You know that very well,

    25 because this was the organisation of the defence of the

  38. 1 Croatian people on the Croatian Community of

    2 Herceg-Bosna.

    3 Q. So you believe that the establishment of the HVO in the

    4 municipalities was basically a military structure and on

    5 that basis you draw the conclusion that the HVO was a

    6 military structure?

    7 A. You see on the basis of these documents at the very

    8 outset the HVO is clearly defined as a defence

    9 structure, and it is said invariably that it is the

    10 supreme body of the Defence of the Croat people of the

    11 Croatian Community of Herceg-Bosna.

    12 Q. I'm speaking about the first document, the supreme

    13 defence body. However, you said according to that

    14 document it was a civilian structure after all. Then

    15 you said that the HVO in the municipalities was

    16 basically a military structure?

    17 A. Yes. I can tell you from my personal experience that in

    18 certain municipalities in Sarajevo HVO units were

    19 established where people in uniform appeared.

    20 Q. Dr. Pajic, we who lived there are all aware of it, and we

    21 know it, and even people on the outside have been

    22 informed. Military units and the executive and

    23 administrative authority of Herceg-Bosna used the same

    24 name, but it is not the same thing, and you have

    25 asserted a different thing here. I draw your attention

  39. 1 to the statutory decision of the municipal

    2 authorities. You did not choose that document in your

    3 compilation. I can have it translated later and

    4 submitted as evidence. I can quote it to you now. In

    5 your translations it is also there. With your

    6 permission, you could have a look at it?

    7 JUDGE JORDA: Has this already been submitted as evidence?

    8 It is already part of the trial?

    9 MR. NOBILO: Yes, it was submitted but it was not

    10 translated.

    11 JUDGE JORDA: Yes, all right.

    12 MR. NOBILO: 36 E.

    13 MR. HAYMAN: A. It is 36 A, page 9.

    14 JUDGE JORDA: The Professor would like to make a comment.

    15 A. Mr. President, I referred to this statutory decision that

    16 Mr. Nobilo is referring to on municipal authorities.

    17 I have it here in my volume, statutory decision on

    18 municipal executive authorities and administrative

    19 bodies. May 15th, 1992.

    20 MR. NOBILO: I'm sorry. So it's page 9. Article 1.

    21 Article 1 defines that executive authority, I repeat

    22 executive authority, that falls within the rights and

    23 obligations of the municipalities, and we know what the

    24 municipalities and cities did, shall be exercised by the

    25 municipal Croatian Defence Council. Therefore, isn't

  40. 1 the municipal Croatian Defence Council a civilian

    2 structure, after all, because if you go on further you

    3 can read the entire statutory decision on page 9. It

    4 is obvious that this is a municipal executive body,

    5 which simply has a different name. Do you agree with

    6 that?

    7 A. Yes, I agree with that.

    8 Q. So it is a civilian structure?

    9 A. Yes, it is a civilian structure.

    10 Q. So from in point of view the HVO is a civilian

    11 structure?

    12 A. Yes, in a sense it is of a civilian structure.

    13 JUDGE JORDA: Mr. Nobilo, I think this is the time you take

    14 a break. For the sake of understanding, I insist we

    15 must take into account the work of the interpreters.

    16 You both speak the same language but I think for all of

    17 us using the interpretation it is very complicated.

    18 You have to make it clear what is the question and what

    19 is the answer. I believe that we can now take a break

    20 and we will resume in fifteen minutes at 11.30.

    21 (11.15 am)

    22 (Short break)

    23 (11.30 am)

    24 JUDGE JORDA: The hearing can now resume. Have the

    25 accused brought in and have the witness brought in as

  41. 1 well, please.

    2 (Accused re-enters court)

    3 (Witness re-enters court)

    4 JUDGE JORDA: Mr. Cayley?

    5 MR. CAYLEY: Mr. President, it is a simple point and a matter

    6 that has been raised by the translation unit. Because

    7 Mr. Nobilo, and I'm sure it is not deliberate, is not

    8 allowing the witness to always answer the question

    9 before he begins with another question, the translation

    10 is just running into itself and the transcript is not

    11 very well. So they have asked if he could pause

    12 between actually the witness answering the question and

    13 him asking another question, because otherwise the whole

    14 thing becomes uncontrollable.

    15 JUDGE JORDA: Judge Riad, would like to make a commentary.

    16 JUDGE RIAD: I follow the translation and it is difficult

    17 to know, because it is the same voice, so sometimes we

    18 think it is the continuation. So perhaps the

    19 interpreter can say "question", "answer", so we know it

    20 is the answer. It is the same voice and the same tone.

    21 JUDGE JORDA: I will allow myself to intervene for a

    22 second. In the French transcript frequently one says

    23 "question", "answer". The difficulty that the

    24 Prosecutor is pointing out and I did as well stems from

    25 two facts. Mr. Nobilo or Mr. Hayman or Mr. Cayley himself

  42. 1 here talking about Serbo-Croat, there has to be a little

    2 bit of time because theoretically even if we can

    3 congratulate the great skill of our interpreters, there

    4 is some time lag. Therefore, the distinction has to be

    5 made between question and answer. They have tried very

    6 hard this morning. The interpreters have put in

    7 question and answer. Mr. Nobilo, please be careful to

    8 be more disciplined. I know you are very much taken by

    9 your subject. You have to show some discipline. The

    10 question raised by the Prosecutor is a good one. The

    11 transcript has to reflect the difference between the

    12 questions and the answers. Based on that and the

    13 indications given by Judge Riad, we can now go on.

    14 Mr. Nobilo, I give you the floor once again.

    15 MR. NOBILO: Thank you. Of course, it takes a little time

    16 to adjust to this multi-lingual environment, but I'll do

    17 my best.

    18 Dr. Pajic, I think we ended with the conclusion --

    19 please correct me if I'm wrong -- that the municipal

    20 HVOs were actually civilian organs of authority?

    21 A. In formal and legal terms yes, but in the context of the

    22 overall defence preparations certainly the HVO later on

    23 assumes certain functions. As we can see from the

    24 documents, certain decisions at the national level are

    25 signed by the President of the HVO relative to military

  43. 1 matters.

    2 Q. That is correct, but you probably remember that in the

    3 former Yugoslavia in the municipalities there were

    4 defence secretariats. There was a Secretariat of the

    5 Interior. Were these civilian or military or police

    6 structures?

    7 A. They were organs of the administration, therefore

    8 civilian. Let me try and make a pause before providing

    9 the answer. That division was not reflected in the

    10 legal documents. We used the following terminology:

    11 administrative organs of authority, military organs,

    12 legislative organs. We did not have that kind of a

    13 division in the legal documents.

    14 Q. But when you say administrative bodies of authority,

    15 that is not a military body?

    16 A. That is correct, but in the context of the overall

    17 organisation of the HVO I insist that the HVO did have

    18 definite military competencies. I repeat, and I have

    19 indicated repeatedly, that all decisions relative to the

    20 defence of the country were signed by the President of

    21 the HVO and later on the head of the Defence Department

    22 of the HVO.

    23 Q. I agree with you, but the question is: is he a civilian

    24 or a military man, because, of course, the civilian

    25 structure also has certain competencies with respect to

  44. 1 defence. We will come to that, but what is essential is

    2 that a civilian structure or a military.

    3 A. The persons I have mentioned, as far as I know, were

    4 civilians.

    5 Q. Dr. Pajic, let me try once again to take you back to page

    6 5 of document number 2.

    7 JUDGE JORDA: It is true that in the French interpretation

    8 people -- the interpreter is saying "question",

    9 "answer", but in the English interpretation we do not

    10 hear the words "question", "answer". If the English

    11 booth could make that extra effort, it would be very

    12 much appreciated. Mr. Nobilo, take up again, please.

    13 MR. NOBILO: I should like to take you back to exhibit 38,

    14 item 3, page 5, the statutory decision on the temporary

    15 organisation of executive authority. Article 1, is it

    16 according to you a definition of the HVO?

    17 A. Article 1 in my opinion defines the competencies of the

    18 HVO in the area of the executive and administrative

    19 competencies.

    20 Q. Is that at the same time a definition of the HVO as a

    21 body?

    22 A. I would agree, yes, it is to a considerable extent.

    23 Q. What does "to a considerable extent" mean? Is the HVO

    24 something outside the executive and the administration?

    25 A. Here is why I have some reservation. You will remember

  45. 1 from my analysis that the HVO participates in the

    2 Presidency which is defined as a legislative body.

    3 Then also you will see in later documents all documents

    4 relative to the establishment of the armed forces, the

    5 structure of the armed forces, were signed by the

    6 President of the HVO and in that respect the authorities

    7 of the HVO, the definition of the HVO is far broader

    8 than simply to say that it is a body of executive

    9 authority and administration in the territory of the

    10 Croatian communities of Herceg-Bosna.

    11 Q. I agree with you that the HVO has certain legislative

    12 powers, but as far as military powers are concerned,

    13 they emanate from Article 20, where the Defence

    14 Department is established as a part of the executive

    15 authority. Article 20 speaks about several departments

    16 and is the Defence Department in this article still a

    17 civilian or a military department?

    18 A. The Defence Department is a civilian structure of the

    19 executive and administrative authority.

    20 Q. That is correct. Therefore, if we summarise all that

    21 you have said now regarding the nature of the HVO, can

    22 we conclude from that that the HVO, as well as the HVO

    23 members who were within the Presidency of the Croatian

    24 Community of Herceg-Bosna, represent the civilian

    25 structure rather than the military, and that there was

  46. 1 also the army, an armed force, bearing the same name,

    2 but which is not identical with the civilian HVO?

    3 A. I'm afraid I do not understand your question. I think

    4 it is of a rather speculative nature. We're trying to

    5 do guesswork regarding what is civilian and what is

    6 military.

    7 Q. Maybe you didn't understand me. Let me repeat

    8 myself. The HVO, as it is defined by the statutory

    9 decision on the temporary composition of executive

    10 authority, you agreed that it was a civilian body. You

    11 also agreed that the municipal HVO was a civilian body,

    12 and yesterday you asserted that the HVO was a military

    13 body, and that the army through HVO representatives was

    14 in the highest level leadership, that is in the

    15 Presidency, of the Croatian Community of Herceg-Bosna.

    16 These are two different conclusions on two different

    17 days?

    18 A. I think that the interpretation of what I said is too

    19 broad. I did not say that the army was a component

    20 part of the Presidency, and if you claim that I did,

    21 then we'll have to look at the transcript.

    22 MR. CAYLEY: Mr. President.

    23 JUDGE JORDA: Mr. Cayley?

    24 MR. CAYLEY: I'm sorry to interrupt again. I have made

    25 this point to counsel, to Mr. Hayman. Mr. Nobilo is

  47. 1 representing matters that the witness has said, and yet

    2 he doesn't refer to where in the transcript from

    3 yesterday these statements were made. It may be that

    4 there is a slight misrepresentation of what the witness

    5 actually stated yesterday, and I think now Dr. Pajic is

    6 actually indicating that. Mr. Nobilo must actually give

    7 some foundation to what he is saying.

    8 JUDGE JORDA: I agree. Mr. Nobilo, you are citing sources

    9 of the witness himself. Cite them properly, please.

    10 Yesterday, -- for example, you said that yesterday he

    11 said at this or this point this or that.

    12 MR. NOBILO: Mr. President, I agree, but I have made a

    13 summary, something that emerges from his statement, so

    14 it is rather difficult, and I asked him whether that was

    15 correct, and only if he answers that it is, then I go

    16 on. If he says it is not correct, then I accept it.

    17 So I do not see any problem here. I'm not citing a

    18 particular statement, but what emerges from several

    19 pages of his statement. If he says that

    20 I misunderstood him, then I accept and we can go on.

    21 JUDGE JORDA: I understand what you are saying, but in

    22 general terms you know you are particularly demanding,

    23 as is your colleague. When a source is cited by the

    24 Prosecutor, you always ask: "Where does the source come

    25 from? How does it come to be here?" I also have a

  48. 1 comment to make. I do understand that in your manner

    2 of asking questions you refer to what the witness said

    3 and you expect the witness to say: "I did or didn't say

    4 something". The witness did answer if -- so the

    5 question has to do with interpretation. The Presiding

    6 Judge tends to think that yes, you should be more

    7 specific as to the place or places in yesterday's

    8 statement which appear subject to interpretation, which

    9 would be different to that from the witness. This is

    10 what I would like to say. Now go on but keep these

    11 observations in mind and be more specific.

    12 MR. NOBILO: I agree, but when we refer to sources that are

    13 not here, as opposed to sources that are here, who can

    14 confirm or reject what we are saying, and that is where

    15 the difference occurs, but I think as far as the nature

    16 of the HVO, we have sufficiently elucidated the

    17 question, and I'm satisfied. So I would now like you

    18 to look at page 12 of this same document and to look at

    19 the decree on the armed forces of the Croatian Community

    20 of Herceg-Bosna.

    21 Within the framework of that decree please examine

    22 Article 61 on page 23. Page 23, Article 61, which

    23 says:

    24 "Members of the armed forces of the HZ H-B shall

    25 be held responsible for criminal, property and petty

  49. 1 offences as stipulated by the regulations in force until

    2 the relevant bodies of the HZ H-B decide otherwise".

    3 On the basis of this Article I'm asking you the

    4 following question: General Blaskic, as the commander

    5 of the operative zone, on the basis of these

    6 regulations, what authority did he have in relation to

    7 his soldiers if that soldier commits a criminal offence.

    8 JUDGE JORDA: Could you ask your question in more general

    9 terms, please? I am sorry to intervene, but not at one

    10 time yesterday was General Blaskic's responsibility

    11 invoked. If we understand correctly, you are speaking

    12 about the constitution, general, diplomatic, structural

    13 problems related to the HVO. Suddenly for purposes

    14 everybody understands you are bringing in the personal

    15 situation of General Blaskic. Personally I think that

    16 you must reformulate your question, ask it in more

    17 general terms. What is the criminal and material

    18 responsibility of those who are the leaders of the

    19 structure in question. Thank you.

    20 MR. NOBILO: I was doing this simply to make myself clear.

    21 I was thinking of a military commander in the Croatian

    22 Community of Herceg-Bosna. What authority did he have

    23 with respect to the criminal proceedings against his

    24 troops, because here it says that members of the armed

    25 forces shall be held responsible for criminal, property

  50. 1 and other offences, as stipulated by regulations in

    2 force. Those regulations are the criminal code of the

    3 former SFRY and the criminal code of

    4 Bosnia-Herzegovina. Therefore, if you are familiar

    5 with these two codes, can you say what would be the

    6 responsibility of any military commander according to

    7 those regulations in force, if you can? This is in the

    8 area of criminal law. I realise that?

    9 A. The regulations you mention were not the subject of my

    10 analysis.

    11 Q. Thank you. I should like to draw your attention to

    12 Article 23 of this same document. On page 17 of

    13 document 2 of Exhibit 38. This Article says:

    14 "Members of the armed forces shall observe in all

    15 circumstances when conducting covert operations the

    16 international laws of war on the humane treatment of the

    17 wounded or captured enemy, on the protection of the

    18 population and other provisions of these laws".

    19 Yesterday or the day before you alleged that this

    20 was typical of states. It seems to me that these are

    21 instructions addressed to the fighters of a particular

    22 military unit. Why would that have to be typical only

    23 of states? Any military unit or formation surely is

    24 obliged to respect international humanitarian law, and

    25 therefore the legislator is also duty bound to make such

  51. 1 an obligation upon the military?

    2 A. Could you please formulate the question?

    3 Q. This obligation, is it the exclusive right of a state or

    4 can it be stipulated by any armed formation regarding

    5 its members?

    6 A. It is one thing when an armed formation or the

    7 leadership of that armed formation reminds its troops of

    8 the general rules of international humanitarian law, and

    9 it is quite another matter when an entity in its legal

    10 documents provides a stipulation rather like a formal

    11 statement saying that members of the armed forces shall

    12 observe the international laws of war. This provision,

    13 in my view, is a highly generalised one, and it is

    14 customary, rather like a solemn declaration of a state.

    15 Q. Can it not be interpreted as obliging the troops to

    16 behave accordingly? Can it not be interpreted in that

    17 way?

    18 A. I can interpret your question as implying that the

    19 Presidency of the Croatian Community of Herceg-Bosna

    20 which passed this decree is assuming, on the one hand, a

    21 commitment in relation to international law, and on the

    22 other hand, internally it commits itself to the

    23 observation of international humanitarian law by its

    24 armed forces.

    25 Q. Will you please now look at page 29, point two of

  52. 1 Exhibit 38, which speaks about the enforcement of the

    2 law on misdemeanours? Actually you asserted that this

    3 was the beginning of the take-over of judicial powers; is

    4 that correct?

    5 A. That is what I said, and that is what I believe.

    6 Q. I should like to remind you that in the former

    7 Yugoslavia, as well as in Croatia and in

    8 Bosnia-Herzegovina, misdemeanour magistrates were part

    9 of the administrative authorities and not part of the

    10 judiciary in the organisational sense, the method of

    11 election and so on. Am I right?

    12 A. Yes, as far as the former Yugoslavia is concerned you

    13 are right.

    14 Q. Were there any new regulations passed in Bosnia

    15 regarding magistrates?

    16 A. I'm not aware of it.

    17 Q. Therefore, the magistrate judges were not part of the

    18 judiciary?

    19 A. I can only interpret your question as questioning my

    20 allegation that this was the first step towards the

    21 take-over of the judicial function. I was very precise

    22 in what I said. I did not claim that the system of

    23 magistrate courts was subordinated to the judiciary

    24 generally speaking but there is no doubt that this is an

    25 indication of the implementation for the responsibility

  53. 1 of misdemeanours by the Croatian Community and the

    2 take-over of all the competence of the republican

    3 magistrate judges.

    4 Q. But you agree with me that the magistrate, including The

    5 Republic and magistrates for misdemeanours, were part

    6 not of the judiciary but of the administrative

    7 authorities?

    8 A. Yes, I agree with that.

    9 Q. A further point I should like to draw your attention to

    10 is the introduction of the Croatian Dinar in

    11 Herceg-Bosna. I should like to ask you: at the

    12 beginning of 1992 what currency was in use in

    13 Bosnia-Herzegovina?

    14 A. The currency in use at the time this decree was passed

    15 and that is July 1992 in Bosnia-Herzegovina, the Dinar

    16 was the currency in use, which all of us called the

    17 Bosnian Dinar. True enough for your information no new

    18 bank notes were issued, but the old Yugoslav Dinar bank

    19 notes were used, which the authorities of the new

    20 Republic of Bosnia-Herzegovina had restamped. Maybe

    21 it's not easy to translate this. Anyway, they placed

    22 on it a stamp, a seal of the government of the Republic

    23 of Bosnia-Herzegovina for practical reasons, that it may

    24 be used in payments in the Republic of

    25 Bosnia-Herzegovina.

  54. 1 Q. From which month of 1992, if you know?

    2 A. I really cannot recall.

    3 Q. If the Yugoslav bank notes were essentially in use, it

    4 was easy to carry out some sort of monetary blows

    5 because war was imminent, and wasn't there a real danger

    6 of that happening, and didn't that happen? Let us

    7 remember the monetary incursions made during the

    8 Government of Anto Markovic --

    9 MR. CAYLEY: I am sorry to interrupt, but learned counsel is

    10 making a speech. He's not asking a question.

    11 JUDGE JORDA: Just a moment, please. I didn't catch the

    12 interpretation here. Could we have the interpretation,

    13 please? Would you shorten your questions, please, make

    14 better summaries of what you have to say and then we'll

    15 hear your question.

    16 MR. NOBILO: Yes.

    17 The events took place a long time ago and it takes

    18 a little time to recall them. My question is were

    19 there any monetary incursions by Serbia in relation to

    20 the rest of Yugoslavia into the budget and was there

    21 such a danger in evidence at the time?

    22 A. You are asking me to present certain assumptions,

    23 whether something could have happened in the area of

    24 financial and monetary policies. My answer may be

    25 positive or negative, but I have no grounds to claim one

  55. 1 or the other. In answer to your previous question,

    2 after trying to recall those events, I can assure the

    3 court that the new Dinar of Bosnia-Herzegovina, though

    4 using the old bank notes, which was changed slightly

    5 with this official seal of the Republic of

    6 Bosnia-Herzegovina, was in circulation quite certainly

    7 before this decree was passed in July 1992, because I

    8 was in Sarajevo at the time and I was using that

    9 currency, the so-called new Dinar.

    10 Q. Thank you. May I draw your attention to page 53 of the

    11 same document? At the same time I should like to ask

    12 you to take a look at page 59 as well, namely if you can

    13 recall, the decision regarding establishing the criteria

    14 for defining confidential defence data on page 53 and

    15 the rules on the military ID card on page 59, in

    16 reference to these two documents, you said that they

    17 represented evidence of the functioning of a system of

    18 administration. Is that correct? Am I interpreting

    19 you correctly?

    20 A. Mr. President, I find it difficult to quote myself and to

    21 answer with precision this question, what is probably

    22 already -- can be found in the transcript.

    23 JUDGE JORDA: We are not going to refer to the transcript

    24 every time, otherwise we would never get to the end.

    25 The Defence is simply asking you a question, having

  56. 1 first said: "Am I interpreting correctly and do you

    2 agree?" If you do or you do not -- if you do agree with

    3 the interpretation that was made, then you should

    4 answer, and you can say: "I don't remember". You can

    5 say what you like, but the question is clear.

    6 A. I remember what I said. I remember what my conclusion

    7 was, and I can repeat it on the basis of the documents

    8 I have before me, because my position on this has not

    9 changed, but whether the formulation of my assertion is

    10 literally word by word what I said is not important,

    11 I suppose.

    12 My assessment is that the system is functioning in

    13 practice, but the system of delegation of authority, or

    14 rather the functioning of the HVO as a government, as a

    15 cabinet with certain departments responsible for certain

    16 areas, and I established this on the basis of the fact

    17 that both of these documents you are referring to were

    18 signed now not by the President of the HVO, the

    19 President of the government, the "Prime Minister" but by

    20 the head of the appropriate department, the Defence

    21 Department in this case.

    22 Q. This quantity of information or the facts that you have

    23 at your disposal surely is not sufficient for you to

    24 come to the conclusion that the system is functioning in

    25 practice?

  57. 1 A. My conclusion is based on the fact that the head of the

    2 Defence Department passes or signs -- has signed two

    3 very important documents. These are not insignificant

    4 documents. They are documents on the secrecy of

    5 documents and on military ID cards. There is no need

    6 to recall here in the court how important classified

    7 information is in the armed forces, and how important a

    8 military ID card is whereby one establishes the identity

    9 of a member of the armed forces, and that is what my

    10 opinion was based on.

    11 Under other conditions, if we were talking about

    12 minor decisions, then certainly your comment would be

    13 justified.

    14 Q. But do not you see a difference between the definition

    15 that the system is functioning in practice and the fact

    16 that the appropriate documents have been passed? The

    17 fact that necessary documents were passed need not

    18 necessarily mean that the system is being implemented in

    19 practice. Would you agree with this way of thinking?

    20 A. My allegation is that the system on which the HVO is

    21 based as an organ of authority did function in

    22 practice. It delegates authority not only on the basis

    23 of Article 20 but also in the practical implementation

    24 of that authority. This system of departmental

    25 activity of the HVO is functioning in practice,

  58. 1 otherwise these documents would still be signed by the

    2 President of the HVO.

    3 Q. It is my submission that on the basis of the fact three,

    4 four or ten documents have been passed signed by the

    5 head of a department need not lead to the conclusion --

    6 MR. CAYLEY: Mr. President, defence counsel is making

    7 submissions to the court. He cannot make submissions

    8 during the cross-examination of a witness.

    9 JUDGE JORDA: Mr. Nobilo, I would like to tell you for the

    10 last time, either you make rapid interpretations and ask

    11 the questions, but you cannot argue here. You are

    12 acting as if it was six months from now. At that time

    13 you can have any interpretation or opinion you want.

    14 Right now you must ask the question to the witness. He

    15 will answer. If you say: "I think this and do you

    16 agree", all right, but you cannot conduct yourself as

    17 you are. I want to tell you now for the last time.

    18 MR. NOBILO: I am just trying to initiate a discussion and

    19 to obtain an answer. I'm not making any firm

    20 submissions, but I can put the question differently.

    21 Dr. Pajic, you are talking about a system

    22 functioning in practice. Please look to see when the

    23 key decisions were passed. On page 12 you find the

    24 decree on the armed forces. When was it passed? What

    25 date?

  59. 1 A. July 3rd, 1992.

    2 Q. Very good. When was the decision on the establishment

    3 of criteria for defining confidential data on page 53

    4 through page 58 passed?

    5 A. On 3rd July 1992. With reference -- allow me to add --

    6 with reference to Article 10 of the previous decree on

    7 the armed forces of HZ H-B.

    8 Q. That is correct. When were the Rules on military ID

    9 cards on page 59 passed?

    10 A. Also on July 3rd, 1992.

    11 Q. When was Bruno Stojic appointed head of the department?

    12 You have that document on page 66. The person who

    13 signed these documents, when was he appointed?

    14 A. May 3rd, 1992 -- sorry, sorry. 3rd July 1992. July

    15 3rd, 1992.

    16 Q. Therefore, are you still claiming that the system was

    17 functioning in practice and all these documents were

    18 passed in the same day, maybe with a few minutes'

    19 difference?

    20 A. Yes, I do claim, and I repeat that a system of

    21 delegation of authority was functioning in practice

    22 within the framework of the HVO.

    23 Q. Let us now go on to document 3 of Exhibit 38, page 3 of

    24 that document, document 3 of exhibit number 38. We are

    25 talking here about the District Military Prosecutors'

  60. 1 offices. Up to then, up to the adoption of this

    2 document, the military prosecutors' offices were part of

    3 which organisation? Which organisation did the District

    4 Military Prosecutors' office belong to?

    5 A. I did not examine earlier documents on the basis of

    6 which I could answer this question, but I assume,

    7 considering the overall organisation of the state, that

    8 the District Military Prosecutors' offices were part

    9 either of the secretariat of the Interior, the

    10 secretariat of the Defence or the JNA.

    11 Q. According to this decree, what was the nature of

    12 Military Prosecutors' Offices in terms of the time-span

    13 that they cover, and where is this indicated?

    14 A. In the title it is stated that District Military

    15 Prosecutors' offices in times of war or the immediate

    16 threat of war.

    17 Q. Who is the Military Prosecutor responsible to a military

    18 or a civilian within the HZ H-B?

    19 A. According to Article 4 the District Military Prosecutor

    20 is responsible for his work to the Presidency of the HZ

    21 H-B.

    22 Q. The civilian or military structure?

    23 A. By definition it is the legislative body of the Croatian

    24 Community of Herceg-Bosna, but in answer to your

    25 question, the Presidency is a civilian body. However,

  61. 1 this answer would have to be qualified by the

    2 composition of the Presidency, which included the HVO,

    3 which we have already discussed.

    4 Q. Please look at document 4 of Exhibit 38, page 6, the

    5 decision on border crossings. Before this decision,

    6 that is 12th November 1992, do you know who controlled

    7 the border crossings in effect, in reality?

    8 A. I do not have personal knowledge, because at the time

    9 I did not use any of the listed border crossings, but

    10 being familiar with the competence of control of border

    11 crossings, those border crossings were controlled on the

    12 one side by the police of The Republic of Croatia and on

    13 the other by the police of the Republic of

    14 Bosnia-Herzegovina.

    15 Q. In 1992, after the formation of the Croatian Community

    16 of Herceg-Bosna?

    17 A. I thought you were asking me of the period that preceded

    18 this.

    19 MR. CAYLEY: Please, Mr. President, the witness must be

    20 allowed to answer the questions. Just because counsel

    21 disagrees with what he is actually saying, he can't

    22 simply keep saying. "No, no, no,".

    23 JUDGE JORDA: Professor, would you please answer the

    24 question?

    25 A. According to, this the decision on border crossings with

  62. 1 The Republic of Croatia Article 3, it says that:

    2 "The safety of goods and passengers at border

    3 crossings shall be ensured by the police of the Ministry

    4 of the Interior and the military police".

    5 Q. I am asking you before this decree was passed and after

    6 the establishment of the Croatian Community of

    7 Herceg-Bosna, who actually had control of these border

    8 crossings?

    9 A. I can only assume that they were the appropriate bodies

    10 of the Croatian Community of Herceg-Bosna.

    11 Q. Do you know? Do you know whether the government in

    12 Sarajevo or rather the bodies of Bosnia-Herzegovina, did

    13 they control any single border crossing of

    14 Bosnia-Herzegovina in 1992 and 1993?

    15 A. They did, as far as their possibilities allowed.

    16 Q. What does that mean?

    17 A. It means that there was a war and that in view of that

    18 it was difficult to maintain normal control of border

    19 crossings at all times and at all places.

    20 Q. I am insisting. Did the authorities of Bosnia and

    21 Herzegovina and its government control a single border

    22 crossing of Bosnia-Herzegovina at that time?

    23 A. I must say again that you are asking me questions which

    24 imply that I must answer from personal knowledge. I

    25 had no personal knowledge regarding the work of the

  63. 1 government of the Republic of Bosnia-Herzegovina. I

    2 was not a member or an employee of any state body.

    3 Therefore, I can only speak on the basis of incidental

    4 information that I heard from people who were travelling

    5 at the time, or if I personally had had occasion to see

    6 for myself what the situation was at the border

    7 crossing.

    8 On the basis of the documents that I had at my

    9 disposal for this expert opinion, I cannot answer that

    10 question.

    11 Q. Well, that is fine. Let me now ask you some general

    12 questions regarding these decisions that you have

    13 analysed. Correct me again if I'm wrong so we do not

    14 have to go back to the transcript again. You asserted

    15 that in certain decisions, in certain decisions, the

    16 name "Bosnia-Herzegovina" is included, namely the

    17 Croatian Community of Herceg-Bosna is part of

    18 Bosnia-Herzegovina. Is it in certain documents only or

    19 all documents, those that you analysed?

    20 A. When replying to this question I must make a distinction

    21 between mentioning The Republic of Herceg-Bosna in the

    22 preamble of a certain decision, which was very rare.

    23 The Republic of Bosnia-Herzegovina in most decisions was

    24 not mentioned in the preamble. However, in most

    25 decisions the name of the Republic of Bosnia-Herzegovina

  64. 1 appears next to the signature of the decision in most

    2 decisions in such a way as follows. First it says The

    3 Republic of Bosnia-Herzegovina. Then in the copies

    4 I have in the Croatian language, it is underlined. The

    5 letters are highlighted "Croatian Community of

    6 Herceg-Bosna" and underneath" Croatian Defence Council".

    7 Q. The decisions that you studied, all of them, are they of

    8 a permanent nature or of a temporary nature?

    9 A. Some decisions are of a temporary nature and some of a

    10 permanent nature, because by accident I have this file

    11 opened to show the document decision on border crossings

    12 with The Republic of Croatia. It does not include the

    13 provision that this is of a temporary nature, so my

    14 conclusion would be that this decision is of a permanent

    15 nature.

    16 Q. This decision, which is an exception, I draw your

    17 attention to the preamble, where one speaks of the

    18 temporary organisation of executive authority. Does

    19 that also imply temporary validity of this document,

    20 this decision, which was reached?

    21 A. Mr. Nobilo, I presented my analysis and expertise on this

    22 document on the basis of all the documents that were

    23 made available to me. I did not read the documents one

    24 by one and then reached a special decision on the basis

    25 of each and every document. My conclusions are based

  65. 1 on continuity. If you look at the overall normative

    2 activity of the Croatian Community of Herceg-Bosna and

    3 later the Croatian Republic of Herceg-Bosna, you will

    4 see that there is a tendency which moves from a

    5 temporary organisation of executive authority towards

    6 permanent organisation of executive authority.

    7 Obviously there is a tendency moving from a Croatian

    8 Community of Herceg-Bosna to a Croatian Republic of

    9 Herceg-Bosna. In that way I believe that your

    10 interpretation of this preamble, that because this is

    11 the temporary organisation of executive authority that

    12 all decisions are temporary too, is too broad an

    13 interpretation.

    14 Q. Thank you. At this point I'm concentrating only on the

    15 decisions, and if we would move from one decision to

    16 another, what is your opinion on this basis? Are most

    17 of these decisions temporary or permanent, the decisions

    18 as enactments?

    19 A. By definition the decisions -- I repeat by definition

    20 the decisions that are related to the war and the

    21 immediate danger of war are of a temporary nature,

    22 because, thank God, war does not go on forever. So

    23 I do not want to confuse the two and draw a conclusion

    24 on that basis, that all decisions are of a temporary

    25 nature.

  66. 1 Q. Also I would like to put a general question, which is

    2 not related to a specific decision, namely what was the

    3 basis for the people who founded the Croatian Community

    4 of Herceg-Bosna for passing this decision? We said the

    5 reasons were the war. What was the law or the right

    6 upon which they based the right to establish such a

    7 community. I do not know if I've been clear?

    8 A. You haven't been clear enough, but in response to your

    9 question I can only quote Article 1 of the decision on

    10 the establishment of the Croatian Community of

    11 Herceg-Bosna. I quote:

    12 "The Croatian Community of Herceg-Bosna is

    13 established as the political, cultural, economic and

    14 territorial integrity".

    15 Q. Exactly?

    16 A. So the reason was to establish a separate political,

    17 cultural, economic and territorial entity.

    18 Q. That is a fundamental provision but that is not a

    19 reason. One of the reasons, if we quote this on page 2

    20 of document 2 of Exhibit 38, we can find the

    21 unacceptability of a unitary model in multi-national

    22 communities, multi-ethnic communities, and proceeding

    23 from the constitution of the Republic of

    24 Bosnia-Herzegovina under which Bosnia-Herzegovina was

    25 founded as a community of three constituent people:

  67. 1 Croats, Muslims and Serbs, is that perhaps a basis on

    2 the basis of which they exercised the right to this kind

    3 of establishment?

    4 A. I do not understand your question, because you mentioned

    5 two contradictory quotations from the preamble. One

    6 says that The Republic of Bosnia and Herzegovina is a

    7 unitary state. Tell me what line it is, please?

    8 Q. 1, 2, 3, 4 ... unitary 6 model. In the first line

    9 pursuant to the constitution of The Republic of

    10 Bosnia-Herzegovina?

    11 A. In my opinion these are two contradictory quotes from

    12 the preamble, because if Bosnia-Herzegovina was

    13 established as a community of three constituent, namely

    14 equitable peoples, Croats, Muslims and Serbs, then the

    15 other assertion is contradictory, that it was a unitary

    16 state. Then it is the question of interpretation of

    17 those who passed this decision.

    18 Q. What is your opinion: the last constitution in force in

    19 Bosnia-Herzegovina in 1991/1992, what was the model,

    20 unitary, federal, within Bosnia-Herzegovina? ?

    21 A. The model of organisation of the state of the Republic

    22 of Bosnia-Herzegovina was the model of unitary

    23 organisation, but I do not give this a pejorative

    24 meaning. I wish to say that Bosnia-Herzegovina was not

    25 a decentralised state in the sense of consisting of

  68. 1 constituent states so that it would be a federation, but

    2 I wish to remind the court of another thing, that in

    3 1991, after the elections in November 1990,

    4 Bosnia-Herzegovina was given full legitimacy as the

    5 state of three constituent peoples, whose national

    6 political parties won a majority in the elections,

    7 specifically the Croatian Democratic Union, the

    8 political party of the Croat people in

    9 Bosnia-Herzegovina; the Party of Democratic Action, the

    10 party of the Muslim people in Bosnia-Herzegovina, and

    11 the Serbian Democratic Party, the party of the Serbian

    12 people in Bosnia-Herzegovina, and on the basis of these

    13 elections at the end of 1990 a Coalition Government of

    14 these three partners who won majority in Parliament was

    15 established, that is to say that from the point of view

    16 of internal law and constitutional law the equal rights

    17 of the constituent peoples Bosnia-Herzegovina was

    18 reiterated, and I wish to remind you of an amendment

    19 from 1991. In the Parliament of Bosnia-Herzegovina a

    20 special mechanism was set up for bringing into question

    21 all those laws for which any ethnic group presented in

    22 Parliament would claim that it jeopardises their

    23 national interests.

    24 Q. According to the Dayton constitution -- I imagine that,

    25 of course, due to the nature of your work, you are

  69. 1 familiar with it -- is The Republic of

    2 Bosnia-Herzegovina a unitary or federal state?

    3 A. I do not want to initiate an academic debate on that

    4 here, but according to the Dayton accords Bosnia and

    5 Herzegovina denies definition, because it is a state

    6 consisting of two entities. Bosnia and Herzegovina

    7 itself is not called a republic any longer, because in

    8 Article 1 of the Dayton agreement or the Dayton

    9 constitution it is said that The Republic of

    10 Bosnia-Herzegovina will continue its legal existence as

    11 Bosnia-Herzegovina and that it shall consist of two

    12 entries, out of which one is called Republika Srpska and

    13 the other is called the Federation of

    14 Bosnia-Herzegovina. Therefore, you have a very strange

    15 legal situation whereby there is a state which consists

    16 of one republic and of one federation. Again, I'm

    17 sorry. I do not want to go into an academic debate

    18 now, but I just want to show the extent to which this

    19 notion has not been defined.

    20 Q. At any rate it's not unitary. I wish to draw your

    21 attention to document 7, page 7, too. So document 7,

    22 page 7 speaks of the flag and the coat of arms. The

    23 coat of arms and the flag. Let us define it

    24 immediately. Is it a permanent or a temporary

    25 document?

  70. 1 A. The decree is valid in times of war or immediate threat

    2 of war.

    3 Q. You highlighted this example as an example of elements

    4 of statehood, and I ask you at that time whether Bosnia

    5 and Herzegovina had a flag of its own, and does it have

    6 a flag today, a federal flag?

    7 A. In November 1992 -- accidentally this happens to be the

    8 month when this decree was passed -- in November 1992

    9 I attended a conference in New York and in front of the

    10 UN building I saw the flag of Bosnia-Herzegovina flying.

    11 Q. I'm asking you as a Professor of law whether the

    12 constitution and law establish what the flag of

    13 Bosnia-Herzegovina is then in 1992 or today?

    14 A. The constitution of Bosnia and Herzegovina, the definite

    15 text from 1993, stipulates the flag of

    16 Bosnia-Herzegovina. This flag was decided upon

    17 previously by the amendments to that constitution, but

    18 I cannot tell you exactly when that was, but I emphasise

    19 once again, because you are asking me, from the point of

    20 view of international law, the flag of a state is that

    21 state which is internationally recognised, and not to go

    22 now into any kind of subjective discussion, that is the

    23 flag that I found in front of the United Nations

    24 building in New York.

    25 Q. Is that flag accepted today, recognised today in a legal

  71. 1 and formal sense?

    2 A. It is well-known that the Dayton agreement did not

    3 decide on that, and negotiations are still being held

    4 between the two entities or three peoples

    5 Bosnia-Herzegovina on establishing a common flag.

    6 Q. The flag and coat of arms is what you highlighted as a

    7 characteristic of statehood. Do you think that this

    8 right to a coat of arms and flag exclusively belongs to

    9 a state, or can other organisations also have a coat of

    10 arms and a flag?

    11 A. Of course non-state entities can also have a flag, but,

    12 as I explained yesterday or the day before yesterday in

    13 one of the answers put to me by one of the honourable

    14 judges, it is customary, and I believe in certain states

    15 it is regulated by law, too, if a regional flag is flown

    16 or a city flag or a provincial flag on official

    17 occasions the State flag is always flown in addition to

    18 that.

    19 Q. Was there such a law in Bosnia-Herzegovina?

    20 A. Bosnia-Herzegovina never recognised the flag of the

    21 Croatian Community of Herceg-Bosna. I recall the

    22 decision of the Constitutional Court of

    23 Bosnia-Herzegovina from 1992, when all of these

    24 regulations were declared anti-constitutional. So

    25 Bosnia-Herzegovina never expressed its views on the flag

  72. 1 of the Croatian Community of Herceg-Bosna.

    2 Q. Please move on to Document 8 of 38, pages 1 and 2, where

    3 reference is made to military --

    4 A. The page, please?

    5 Q. The first page and the second page. That is already

    6 Official Gazette number 2.

    7 Military industry is referred to here, industry

    8 for special purposes, as you mentioned before. Before

    9 this decree was passed, from a formal, legal point of

    10 view, who was the owner of the military industry?

    11 A. The problem of ownership in the former Yugoslavia from

    12 the point of view of modern legal terminology well-known

    13 throughout the world is rather difficult to define.

    14 You know that there was always this contradiction

    15 between social ownership, private ownership. Social

    16 ownership from a legal point of view was very difficult

    17 to compare to any category of ownership and property

    18 existing in a democratic system. Therefore, it is hard

    19 for me to answer your question.

    20 Q. I shall re-word it, re-phrase it. Who managed the

    21 military industry?

    22 A. The military industry was managed by the administrative

    23 organs in charge of defence.

    24 Q. Of the republic or the federation?

    25 A. This is not a subject matter in which I'm an expert, so

  73. 1 I do not want to go into that.

    2 Q. Please let us move on to document 9 of Exhibit 38, and

    3 I wish to draw your attention to page 2, the decree on

    4 the application of the law and regular courts. So page

    5 2, document 9. As usual, I ask the question: is this

    6 a temporary or permanent decree -- sorry. I'm hurrying

    7 again?

    8 A. The decree was passed to be valid in times of immediate

    9 threat of war or in wartime.

    10 Q. The next question. If you are aware of this, in 1992,

    11 1993 and 1994 how were judges elected in the territory

    12 of Bosnia-Herzegovina, if you are familiar with that?

    13 A. I'm not familiar with that.

    14 Q. This decree, does it basically speak of anything else

    15 except the appointment of judges?

    16 A. This decree is characteristic for me, because it speaks

    17 of the right of the Presidency of the Croatian Community

    18 of Herceg-Bosna to establish and abolish courts; also

    19 that the Croatian Defence Council decides on the number

    20 of judges and lay judges, and finally, that the

    21 Presidency of the HZ H-B elects and recalls judges and

    22 lay judges.

    23 Q. Please let us move on to document 10 of Exhibit 38, page

    24 6. That is the decree on border crossing. If you

    25 allow me --

  74. 1 MR. HAYMAN: May we have a moment, your Honour.

    2 JUDGE JORDA: Excuse me?

    3 MR. HAYMAN: We have a translation problem with respect to

    4 the pagination, and I would like to make Mr. Nobilo aware

    5 of it so perhaps the English translation is consistent

    6 with the pagination of the documents.

    7 JUDGE JORDA: Registrar, I was on 10, the decree of 26th

    8 February 1993, having to do with border crossing. Is

    9 that what you are talking about, Mr. Hayman?

    10 MR. HAYMAN: Yes. It is just that the English translation

    11 is resulting on pages that are beyond the length of the

    12 document. So there's some misunderstanding or

    13 miscommunication between Mr. Nobilo and the translator,

    14 and I would like to alert him to it.

    15 MR. CAYLEY: Your Honour, the reason for the confusion is

    16 actually because Mr. Nobilo is actually referring to the

    17 volume number rather than the page number, but frankly

    18 it doesn't really make any difference because he is also

    19 referring to the number of the document, which is quite

    20 clear. For example, on this document, he refers to

    21 page 6. It is, in fact, page 122, but it really makes

    22 no difference, apart from the clarity, which I perfectly

    23 accept.

    24 JUDGE JORDA: Yes, that's right. Yes, I agree with the

    25 Prosecutor. I have been getting along this way for

  75. 1 quite a while now, because I think there is a certain

    2 degree of ambiguity, but I'm getting along even that

    3 much better because it is a decree that wasn't even

    4 translated into French. So ask your question.

    5 MR. NOBILO: I do not have that number of pages. I have

    6 the original page, so I'm trying to identify the page

    7 concerned in each exhibit. So now we are on document

    8 10, original page 6, the decree on border crossing. In

    9 this context I would like to read Article 2 and would

    10 you kindly comment on that? I do not think you

    11 commented on that and I think it is important. So

    12 Article 2:

    13 "The border area shall consist of a part of the

    14 territory of the Republic of Bosnia-Herzegovina

    15 hereinafter referred to as "HB H" within the Croatian

    16 Community of Herceg-Bosna, hereinafter referred to as HZ

    17 H-B, including the mainland, river, lakes and seas along

    18 the borderline, that is a 100 metre wide belt".

    19 Can you put that in the context of your comment?

    20 A. My comment was that this decree actually referring to

    21 the border between The Republic of Bosnia-Herzegovina --

    22 the border between The Republic of Bosnia-Herzegovina

    23 and The Republic of Croatia is the area that is actually

    24 being referred to here -- is taken over by the Croatian

    25 Community of Herceg-Bosna, because Article 7 says

  76. 1 clearly:

    2 "The HVO HZ H-B shall designate the international

    3 border crossings and the local border crossings".

    4 So in that context it seemed to me that this

    5 Article, too, was there actually pro forma in this

    6 decree, and that effectively in terms of establishing

    7 the true border crossing regime, all the competence

    8 falls within the jurisdiction of the HVO of the HZ H-B.

    9 Q. I agree as far as jurisdiction is concerned, but why

    10 don't you interpret it bona fide? The border of the HZ

    11 H-B towards Croatia, isn't that at the same time the

    12 border towards The Republic of Croatia and

    13 Bosnia-Herzegovina?

    14 A. That is so.

    15 Q. Thank you. Article 12 was also extensively discussed on

    16 the next page. I would like to read it out:

    17 "A citizen in the Republic of Bosnia-Herzegovina

    18 carrying weapons and ammunition into or out of the HZ

    19 H-B shall report the weapons and ammunition to the

    20 border police or the military police at the state

    21 border".

    22 I will immediately read Article 13, too, where it

    23 says:

    24 "Foreign citizens shall report the weapons and

    25 ammunition they carry with them to the border police or

  77. 1 military police upon crossing of the border. Foreign

    2 citizens may bring into the HZ H-B side weapons and

    3 ammunition for these weapons provided they have an

    4 authorisation for them from the relevant organs of the

    5 state whose citizens they are".

    6 Kindly interpret these two articles. Who is a

    7 foreigner and who is a citizen of the Republic of

    8 Bosnia-Herzegovina?

    9 A. You mean the HZ H-B?

    10 Q. No. I mean who is a foreigner when crossing a border?

    11 For example, in the Croatian Community of Herceg-Bosna,

    12 who is treated as a foreigner and who is treated as a

    13 citizen of the Republic of Bosnia-Herzegovina, because

    14 we only have two categories. We don't have any

    15 citizens of HZ H-B. So how do you interpret Articles

    16 12 and 13 in relation to the existence of a citizen of

    17 the Republic of Bosnia-Herzegovina and the category of

    18 foreigner?

    19 A. I explained yesterday that this provision implicitly --

    20 I repeat this provision implicitly says that a citizen

    21 of the Republic of Bosnia-Herzegovina on the territory

    22 of the Croatian Community of Herceg-Bosna is treated as

    23 a foreigner. Although this is not explicitly said,

    24 this is implicitly said. Why? Because paragraph 2 of

    25 Article 12 requires for persons from paragraph 1 too,

  78. 1 that is a citizen of the Republic of Bosnia-Herzegovina,

    2 approval of the competent body of HVO HZ H-B. So from

    3 the point of view of authorisation, a foreigner and a

    4 citizen of The Republic of Bosnia-Herzegovina have to

    5 have authorisation for carrying such a weapon across the

    6 border.

    7 Q. Isn't that only natural, because we are talking about

    8 weapons, not a normal border crossing? That is one

    9 question. The second question is: do you not notice

    10 that there is not a third category, for example citizens

    11 of the HZ H-B; only two categories, the citizen of

    12 Bosnia-Herzegovina and a foreigner. One excludes the

    13 other. How can you say --

    14 MR. CAYLEY: Mr. President, I'm sorry to intervene again, but

    15 learned counsel is asking one question after another.

    16 The witness is not allowed to answer. He may wish to

    17 establish a point. He may be hearing answers he

    18 doesn't like, but he must allow the witness to actually

    19 answer the question.

    20 JUDGE JORDA: You must be concerned by the fact that time

    21 is moving along quickly. First, ask the first

    22 question. Sometimes you even answer instead of the

    23 witness, which is, of course, your right, but do allow

    24 him to answer as well. This gives me the opportunity

    25 to set the schedule for the rest of the

  79. 1 cross-examination. Ask your first question first and

    2 then your second.

    3 MR. NOBILO: I try to move as fast as possible and to put

    4 together two interrelated questions, but we can proceed

    5 in that way, too, although we'll require a lot more time

    6 that way. Well, how do you interpret the fact that

    7 there are only two categories of citizens, foreigners

    8 and citizens of the Republic of Bosnia-Herzegovina.

    9 JUDGE JORDA: Professor, answer the question, please.

    10 A. At this point in time it is clear that here, and I

    11 didn't even imply that -- one cannot speak of

    12 citizenship of the HZ HB. It is true that this

    13 provision speaks of citizens of the Republic of

    14 Bosnia-Herzegovina, but I emphasise that this wording

    15 implicitly says that a citizen of the Republic of

    16 Bosnia-Herzegovina has a somewhat different status when

    17 crossing the border or when on the territory of the

    18 Croatian Community of Herceg-Bosna. That was my point.

    19 With your permission, I would like to link this to

    20 Article 18 of the same decree, where it says:

    21 "Citizens of the Republic of Bosnia-Herzegovina

    22 may move and sojourn in the border area only if they

    23 have an appropriate permit".

    24 Why do citizens of the Republic of

    25 Bosnia-Herzegovina have to have a permit in order to

  80. 1 move in the border area on the territory of the Croatian

    2 Community of Herceg-Bosna?

    3 Q. Wasn't there the same kind of regulation in Yugoslavia

    4 on the special status of the border area where those who

    5 do not live in the border area could not move quite

    6 freely? Are you familiar with these regulations?

    7 A. I'm not familiar with these regulations. I have often

    8 travelled throughout Yugoslavia and I did not encounter

    9 such status.

    10 Q. One thing is a border crossing. Another thing is a

    11 border area near the border but without a border

    12 crossing. It has a special status. Do you remember

    13 these regulations?

    14 A. I do not remember these regulations, but I find your

    15 terminology clear.

    16 Q. Do you accept what I said?

    17 A. That there can be a difference? I cannot refer to a

    18 concrete regulation or rule in this sense.

    19 MR. HAYMAN: One moment.

    20 JUDGE JORDA: Yes, Mr. Hayman? The time has come to adjourn

    21 our hearing. We will resume tomorrow morning.

    22 I suppose that causes some problems for Professor Pajic,

    23 as you said, but unfortunately I'm not quite sure what

    24 we can do to change it. First, turning to the Defence,

    25 next morning, which is the last of the week, do you

  81. 1 think that you will be able to complete your questions

    2 tomorrow? I know that you ask several at the same time

    3 in order to speed things up, but for the Presiding Judge

    4 you have to try to summarise things somewhat. Do you

    5 think that tomorrow morning would be enough for you,

    6 Mr. Nobilo, and Mr. Hayman, to complete your

    7 cross-examination? Mr. Hayman?

    8 MR. NOBILO: We will certainly finish tomorrow, sir.

    9 JUDGE JORDA: Thank you. Now I am turning to the

    10 Prosecutor before speaking to the witness. Mr. Cayley,

    11 what do you suggest to us, in agreement with the

    12 witness, who may have to remain.

    13 MR. CAYLEY: The witness will remain tomorrow,

    14 Mr. President. As you are aware, the rules of procedure

    15 allow for a re-examination by the Prosecutor after

    16 cross-examination by the Defence. I believe that will

    17 be a short and concise process, but I would imagine if

    18 the Defence finish within two hours tomorrow, one and a

    19 half hours, we would be able to finish with Dr. Pajic

    20 tomorrow.

    21 JUDGE JORDA: What I first would like to suggest -- let me

    22 thank Professor Pajic. We know that you have commitments

    23 and you have accepted -- you have agreed to stay, as

    24 I asked you and my colleagues asked you. We thank for

    25 that. Tomorrow morning, therefore. So we will

  82. 1 complete this tomorrow morning. If you agree, I would

    2 like to apologise with the interpreters, we could start

    3 at 9.30 tomorrow, so we would have some margin knowing

    4 we might be over at 1 o'clock. I am asking the Defence

    5 and the Prosecutor to complete tomorrow -- what you have

    6 to do tomorrow morning. This is a friendly but firm

    7 request. If you can't, you can't, but I really do ask

    8 you for the conduct of the proceedings to do your

    9 best. We will start tomorrow at 9.30. Thank you,

    10 Professor.

    11 (1.00 pm)

    12 (Hearing adjourned until 9.30 tomorrow morning)

    13 --ooOoo--