International Criminal Tribunal for the Former Yugoslavia

Case No IT-95-14

  1. 1 Thursday, 3rd July 1997

    2 (9.30 pm)

    3 JUDGE JORDA: Please be seated. Could we have the accused

    4 brought in, please?

    5 (Accused enters court)

    6 JUDGE JORDA: First, let's see whether the interpreters are

    7 prepared and make sure that everybody hears the

    8 Presiding Judge and the other judges when we speak.

    9 Does the Prosecution hear? Does the Defence hear?

    10 Mr. Blaskic, do you hear?

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

    12 fine.

    13 JUDGE JORDA: Thank you. Good morning. We can now

    14 resume the hearing and again have the witness brought

    15 in, Professor Pajic. Mr. Cayley, would you have the

    16 Professor brought in?

    17 MR. CAYLEY: Yes, Mr. President.

    18 JUDGE JORDA: Merci.

    19 (Witness enters court)

    20 JUDGE JORDA: Good morning, Professor. Would you please

    21 be seated. Did you have a good rest? Again the

    22 Tribunal thanks you for remaining available for this

    23 morning's hearing. We can -- I believe it was

    24 Mr. Nobilo who can now continue his cross-examination.

    25 Mr. Nobilo, I give you the floor.

  2. 1 THE INTERPRETER: Microphone, please. Microphone.

    2 Professor Pajic (continued)

    3 Cross-examination by Mr. Nobilo

    4 MR. NOBILO: Mr. President, your Honours, esteemed

    5 colleagues, I wish to continue where we stopped

    6 yesterday. Dr. Pajic, if you remember, yesterday we

    7 were on document 10, Exhibit 38. This was the decree

    8 on border crossing and traffic in the border area of the

    9 Croatian Community of Herceg-Bosna in times of war or

    10 the immediate threat of war. So with your concurrence,

    11 could you give me your basic opinion on the status of

    12 who is a foreigner and who is not a foreigner according

    13 to this law, so we can proceed from there?

    14 A. Yes. I shall try to continue where we broke off our

    15 discussion on this question yesterday. Very briefly,

    16 I wish to underline that my conclusion was based on

    17 provisions that imply a certain situation. To be quite

    18 clear, there is no explicit mention that the citizens of

    19 the Republic of Bosnia-Herzegovina are foreigners in the

    20 Croatian Community of Herceg-Bosna, but there is a

    21 certain contradiction in certain provisions, and I got

    22 the impression that implicitly the citizens of The

    23 Republic of Bosnia-Herzegovina who do not reside in the

    24 Croatian Community of Herceg-Bosna are treated as

    25 foreigners. We discussed it yesterday. Article 12 is

  3. 1 relevant, and it says:

    2 "A citizen of the RBH carrying weapons or

    3 ammunitions into or out of the HZ H-B shall report the

    4 weapons and ammunition to the border police or military

    5 police at the state border".

    6 You have rightfully said that carrying arms into

    7 and out of the area was subject to permits, wasn't it,

    8 but what led me to claim that implicitly citizens of The

    9 Republic of Bosnia-Herzegovina are treated as foreigners

    10 is paragraph 2 of Article 12, where it says that:

    11 "Authorisation from the relevant administrative

    12 body of the HVO HZ H-B shall be required when carrying

    13 weapons and ammunition across the border".

    14 So the question that is raised here in my mind is

    15 why does a citizen of the Republic of Bosnia-Herzegovina

    16 from paragraph 1, why is it not enough for him to have a

    17 permit, which he would possibly obtain from the

    18 competent authority in Sarajevo, namely the competent

    19 authority of the Republic of Bosnia-Herzegovina.

    20 Q. I agree that this is a good question, but isn't this a

    21 question of competence of certain organs, certain state

    22 organs, not a question of citizenship? Isn't that now a

    23 question of jurisdiction between a local organ and a

    24 federal organ related to permits, for example, for

    25 carrying weapons, not a question of citizenship?

  4. 1 A. I see from this that you actually agree with me that we

    2 are talking about what is implicitly said by certain

    3 provisions.

    4 Q. Yes, but I'm asking you what you just said, one cannot

    5 draw a conclusion on citizenship on that basis. It is

    6 perhaps an illogical or wrong distribution of

    7 jurisdiction between the two. Do you understand the

    8 distinction?

    9 A. I understand the distinction, and it is true that it is

    10 a separation of jurisdiction, but also it is a fact that

    11 the HVO HZ H-B never had this kind of jurisdiction on

    12 the basis of the constitution of the Republic of

    13 Bosnia-Herzegovina.

    14 Q. True, but you keep evading the issue of citizenship.

    15 Perhaps I can rephrase it. The citizens of the

    16 Republic of Bosnia-Herzegovina who have permanent

    17 residence in the Croatian Community of Herceg-Bosna, do

    18 they also need a permit from the authorities of

    19 Herceg-Bosna? Do they have a different status from the

    20 citizens of the Republic of Bosnia-Herzegovina who

    21 reside outside the area of Herceg-Bosna?

    22 A. This distinction cannot be seen from this specific

    23 provision between persons residing on the territory of

    24 the Croatian Community of Herceg-Bosna and the other

    25 citizens of the Republic of Bosnia-Herzegovina.

  5. 1 Q. Can we conclude that they have the same status?

    2 A. We can conclude that they have the same status, but

    3 I remind you once again that it is illogical that a

    4 citizen of the Republic of Bosnia-Herzegovina who, let

    5 us assume, is travelling from Sarajevo through the

    6 Croatian Community of Herceg-Bosna asks the HVO HZ H-B

    7 for a permit to carry weapons, not the competent

    8 authority of his republic.

    9 MR. CAYLEY: Mr. President, yesterday I made eight separate

    10 objections based upon the fact that learned counsel kept

    11 interrupting the witness, and indeed now even Mr. Hayman

    12 is warning his colleague about this. I would request

    13 respectfully that Mr. Nobilo be reminded again that the

    14 witness be allowed to answer the questions that he is

    15 putting to him.

    16 JUDGE JORDA: Yes. I would like the day to begin the way

    17 it ended yesterday, that the cross-examination be done

    18 properly, but the Presiding Judge also wants to move

    19 things forward. I would have to say that I saw your

    20 colleague moving his arm, Mr. Nobilo. You asked your

    21 question, you got an answer. I think that either this

    22 is a discussion between two deaf people and you draw the

    23 conclusions you want. Perhaps you want to move to

    24 another question. Then go to another question, if you

    25 do not mind. All right.

  6. 1 MR. NOBILO: I agree, but I think that we were close to

    2 reaching agreement. I wish to clarify matters. I do

    3 not want them to remain in the air. If it is clear to

    4 you, then everything is clear to me.

    5 JUDGE JORDA: The trial is not an arbitration hearing,

    6 Mr. Nobilo. You ask your questions, you get answers,

    7 you draw the conclusions from that you like, and then

    8 you move to the next question. These discussions will

    9 go on for a long time. The issue will be brought up

    10 several times. Please, I said that we had to finish at

    11 12.30, I will repeat this throughout this trial. With

    12 the deepest respect for cross-examination available to

    13 each of the parties. Mr. Nobilo, please start again.

    14 MR. NOBILO: So we have come to the question of the

    15 distinction, distinction between the status of those who

    16 live been the territory of Herceg-Bosna and those who do

    17 not live under the territory of Herceg-Bosna. Can you

    18 give me a brief answer to that?

    19 A. Very briefly, the decree we are speaking about is not

    20 the decree on citizenship. It pertains to a specific

    21 procedure of crossing the State border and concretely

    22 this is an Article on carrying weapons, so in this

    23 procedure, in this treatment, I believe that by

    24 implication a citizen of the Republic of

    25 Bosnia-Herzegovina is treated as a foreigner or as a

  7. 1 quasi-foreigner. That expression is not used here, but

    2 he has to seek a permit from an organ which is not an

    3 organ of the Republic of Bosnia-Herzegovina.

    4 Q. And a person residing in Herceg-Bosna, does that person

    5 have to seek that kind of permit?

    6 A. Yes, I imagine so.

    7 Q. Thank you. We move further on to document 11?

    8 JUDGE JORDA: I think you have already asked this

    9 question. Let us move to a different question. You

    10 have already asked that question.

    11 MR. NOBILO: My question.

    12 JUDGE JORDA: The question having to do with the

    13 citizenship of Bosnia-Herzegovina. The entire

    14 transcript was transcribed. You have received the

    15 answer. I think we have to move forward. For fifteen

    16 minutes now we have been dealing with the same

    17 question. So I'm asking you to move forward.

    18 MR. NOBILO: Yes. I have just said that we were moving on

    19 to document 11. That is a different decree. We have

    20 moved on to the next decree or law, so we have completed

    21 the previous one. So now it is document 11, the decree

    22 on implementing the law on the movement and residence of

    23 aliens. You have already spoken about that and I wish

    24 to draw your attention to Article 2?

    25 A. I have been following you.

  8. 1 Q. In the light of the discussion we have had so far do you

    2 still think that this definition of an alien deviates

    3 from a consistency that you noted or is it in line with

    4 the previous decree?

    5 A. I am sorry. I am looking at the transcript and I have

    6 been trying to find what I said about this provision

    7 yesterday but I will try to repeat it. This provision,

    8 as I said, is in a way the product of indecisiveness in

    9 terms of passing a more decisive and definite norm on

    10 this matter. I said yesterday that an alien as

    11 provided for under this decree shall be any person who

    12 is not a citizen of Bosnia-Herzegovina and, argumentum

    13 ad contraria, as I said, it can be said that a citizen

    14 of The Republic of Bosnia-Herzegovina is at the same

    15 time "a citizen of the Croatian Community of

    16 Herceg-Bosna". Is that the question that you are

    17 aiming at?

    18 Q. Thank you. Document 12 of Exhibit 38. This is the

    19 decree on the implementation of the law on registering

    20 the domicile and residence of citizens in the Croatian

    21 community of Herceg-Bosna. I just wish to draw your

    22 attention to Article 5. Please have a look at it.

    23 Could you give me your comment? In your opinion is this

    24 Article actually an obstacle in the path of ethnic

    25 cleansing or the results of ethnic cleansing?

  9. 1 MR. CAYLEY: Mr. President, this is a very sensitive area of

    2 the case. To try to link of concept of ethnic

    3 cleansing to these documents and the testimony of this

    4 witness is completely improper.

    5 JUDGE JORDA: Could you reformulate your question, please?

    6 Please reformulate the question. We are now discussing

    7 the decree on document 12. I've just looked at it in

    8 the English version. You cannot ask information from

    9 the witness which he was not called to speak about by

    10 the Prosecutor. He is not here to judge as to whether

    11 or not this is part of the process of ethnic

    12 cleansing. Therefore, I ask you to reformulate your

    13 question so that you can get the answer you like, but

    14 please reformulate it.

    15 MR. NOBILO: You didn't understand me correctly. I didn't

    16 say that it was part of ethnic cleansing, but does this

    17 rule prohibit the results of ethnic cleansing from

    18 remaining permanent and lasting. So I said that this

    19 regulation was a way of annulling the results of ethnic

    20 cleansing. Look at Article 5.

    21 MR. CAYLEY: Mr. President, I'm sorry. I know you wish

    22 matters to move forward, but I really do not believe

    23 that this witness can comment on ethnic cleansing.

    24 JUDGE JORDA: Absolutely: I grant the objection of the

    25 Prosecutor and ask you to move to another question if

  10. 1 you can't ask this one in a different fashion.

    2 MR. NOBILO: All right. Then we'll move on. I wish to

    3 draw your attention to document 15 of Exhibit 38. Do

    4 you know whether we are talking about the decree on the

    5 rights and obligations of citizens temporarily working

    6 abroad concerning service in the armed forces in times

    7 of immediate threat of war or wartime?

    8 A. Could you please tell me what page this is?

    9 Q. Page 316, number 12. It is document number 15?

    10 A. Yes. Thank you.

    11 Q. You have found it. Okay. So it is the decree on the

    12 rights and obligations of citizens temporarily working

    13 abroad, etc. Do you know on the basis of your general

    14 knowledge or professional knowledge that

    15 Bosnia-Herzegovina had a similar law? How was it

    16 regulated on the rest of its territory? Are you aware

    17 of that? If not, we'll move on.

    18 A. My comment to this -- my comment on this decree was that

    19 it mirrors the state-like behaviour of Herceg-Bosna, and

    20 that is why I cited it in my analysis. I can answer

    21 your question by saying yes. As far as I know, after

    22 I came to Great Britain at the end of the summer of

    23 1992, I heard from the then information centre of the

    24 Republic of Bosnia-Herzegovina in London that some kind

    25 of directive was sent from Sarajevo to invite the

  11. 1 citizens of the Republic of Bosnia-Herzegovina to give a

    2 material contribution for the Defence of the country.

    3 Q. Thank you. Please let us now move on to document

    4 number 17. So this is the basic decision on

    5 establishing and proclaiming the Croatian Republic of

    6 Herceg-Bosna. Issue number 1, page 6. In fact,

    7 I wish to draw your attention to page 5 of number 1 and

    8 the preamble. With your permission I shall briefly

    9 read out the third paragraph of the preamble and I would

    10 like to hear your comment. In view of the nature of

    11 the state, unitary, federal, confederal, does this refer

    12 to the break-up of Bosnia-Herzegovina or establishing

    13 Bosnia-Herzegovina as a composite state, federal or

    14 confederal:

    15 "Having found that the existing political and

    16 state system does not ensure the Croat people their

    17 rights in Bosnia-Herzegovina and their rights to

    18 Bosnia-Herzegovina, the Croatian people are determined

    19 ..."

    20 JUDGE JORDA: Ask your question, Mr. Nobilo.

    21 MR. NOBILO: This preamble, does it advocate the division of

    22 Bosnia-Herzegovina or establishing Bosnia-Herzegovina as

    23 a complex, a composite state in any form?

    24 A. In the part of the preamble that you are referring to it

    25 is said explicitly that the Croatian people are

  12. 1 establishing their state community on part of the

    2 territory of Bosnia-Herzegovina. That is one

    3 conclusion, and I do not see that there's any scope for

    4 interpretation there. The State community is clearly

    5 defined, so according to general international law a

    6 State has a certain territory, a certain population and

    7 effective authority, and there is no point in quoting

    8 authorities on the basis of whose writings these

    9 provisions of international law and customary law and

    10 international practice are based.

    11 The second part of this section says that this

    12 kind of state community would transfer part of its

    13 rights to a federation of republics and would

    14 participate in certain joint institutions and services

    15 of mutual interest in the republic. If you ask me as a

    16 Professor of international law, this means opening the

    17 door to a confederacy with the other parts of this

    18 future Bosnia-Herzegovina and a confederacy by

    19 definition is not a state but an association of

    20 sovereign states.

    21 Q. My final question. So what would be your opinion as a

    22 Professor of international law having analysed all the

    23 legal documents of the Croatian community of

    24 Herceg-Bosna? As an international Professor what was

    25 your assessment, was this community a state or not?

  13. 1 Briefly yes or no?

    2 MR. CAYLEY: Mr. President, I believe that the witness has

    3 already answered this question yesterday in his final

    4 concluding remarks that run for some four pages in the

    5 transcript. It is simply a repeat of a question I have

    6 already asked.

    7 JUDGE JORDA: Mr. Cayley, you did ask the question, but you

    8 asked it from your point of view. It is normal that

    9 the Defence would ask the question as well. It was a

    10 short question. There will now be an answer in light

    11 of what he said yesterday, but I cannot accept that

    12 objection. Mr. Nobilo, you can go on and I instruct the

    13 Professor to answer the question "yes" or "no", or if

    14 not that, at least briefly, because even the Defence

    15 asked you to answer very briefly?

    16 A. The Croatian Community of Herceg-Bosna, later the

    17 Croatian Republic of Herceg-Bosna, had the

    18 characteristics of a state community, and in that

    19 process, which lasted some two or three years, there was

    20 a clear tendency of strengthening all the elements of a

    21 state community. What the Croatian Community of

    22 Herceg-Bosna lacked from the point of view of

    23 international law was international recognition, so they

    24 would fully qualify as a state. From that point of

    25 view we can say according to international law it was

  14. 1 not a state. At the same time I have to warn you that

    2 this process of establishing, consolidating the

    3 statehood of the Croatian Community of Herceg-Bosna was

    4 interrupted by the Washington Agreement in March and

    5 April 1994, when at the insistence of the international

    6 community and, above all, the United States of America,

    7 a cease-fire was agreed upon, peace -- I must say this

    8 colloquially -- the Bosnian Croats and the Bosnian

    9 Muslims, and a federation of the Muslim and Croatian

    10 people of Bosnia-Herzegovina was established. That is

    11 the whole story.

    12 Q. Thank you, Mr. Pajic. Now my colleague, Mr. Hayman, will

    13 continue.

    14 A. Thank you, Mr. Nobilo.

    15 Cross-examination by Mr. Hayman

    16 JUDGE JORDA: Thank you, Mr. Nobilo. Mr. Hayman, you have

    17 the floor.

    18 MR. HAYMAN: Thank you, your Honour. Good morning,

    19 Dr. Pajic.

    20 A. Good morning, Mr. Hayman.

    21 Q. First, I would like to ask some general questions

    22 concerning your preparation for your testimony here at

    23 the Tribunal. How many meetings did you have with

    24 representatives of the Prosecutor's Office in

    25 anticipation of your testimony and indeed preparing your

  15. 1 study of the Narodni list documents?

    2 A. The first meeting with the office of the Prosecutor took

    3 place in February this year in The Hague, when I was

    4 informed of the problem and when I was asked to accept

    5 the role of an expert witness in these proceedings, that

    6 is to present my expert opinion regarding the legal

    7 documents of the Croatian Community of Herceg-Bosna or

    8 rather the Croatian Republic of Herceg-Bosna. At the

    9 time I took with me -- let me note that this meeting in

    10 February in The Hague took one day, maybe one and a

    11 half, and then I took with me the documents that you

    12 have had occasion to see bound into four volumes of

    13 documents of the Croatian Community of Herceg-Bosna, and

    14 I was given a clear indication of what it is that the

    15 Office of the Prosecutor expects of me and I undertook

    16 this obligation and started my studies.

    17 I worked on it in March and April, taking notes,

    18 analysing the documents, linking this with my own

    19 personal experiences and my personal knowledge about

    20 this area, and I have those notes somewhere, but I do

    21 not suppose you need such a detailed answer. Towards

    22 the end of April a representative of the Office of the

    23 Prosecutor visited me in London and then we had a

    24 two-day briefing when we went through my analysis which

    25 I had prepared by then. Then we met again in London

  16. 1 for a day's meeting. As far as I can recall, this was

    2 three weeks ago. Finally, I came to The Hague last

    3 week expecting to be called to testify last week

    4 already. However, this was postponed for Monday 30th

    5 June.

    6 Q. I take it you have had some further meetings with

    7 representatives of the Prosecutor's office since you

    8 arrived here in The Hague last week?

    9 A. Yes, in the course of last week.

    10 Q. Would those total half a day or a day in length?

    11 A. This was half a day, because the prosecutors were busy

    12 in the courtroom in connection with the testimony of my

    13 predecessor, the previous expert witness.

    14 Q. So if my maths is correct, Professor, you have spent

    15 about five days in total discussing your testimony and

    16 the needs of the Prosecutor's office with them; is that

    17 right?

    18 A. That's right.

    19 Q. Now you testified that either most or all of the

    20 documents you reviewed were contained in Exhibit 36, the

    21 four Narodni list volumes; correct?

    22 A. Yes.

    23 Q. But not all; some were not taken from those volumes;

    24 correct?

    25 A. Yes. There were documents, mostly official gazettes of

  17. 1 the Republic of Bosnia-Herzegovina, which I had in my

    2 possession, and I referred to them in my testimony, such

    3 as the constitution of the Republic of

    4 Bosnia-Herzegovina, the decision of the Constitutional

    5 Court of Bosnia-Herzegovina, which, of course, is

    6 included in these volumes.

    7 Q. Are the only documents that you were given by the

    8 Prosecutor's Office contained in Exhibit 36?

    9 A. Will you repeat the question, please?

    10 Q. Are the only documents you have been given by the Office

    11 of the Prosecutor in connection with your study or

    12 review contained in Exhibit 36, the Narodni list

    13 volumes?

    14 A. Yes, but during our first meeting --

    15 JUDGE JORDA: 36 or 38? What document are you talking

    16 about here?

    17 MR. HAYMAN: 36, your Honour, four fat volumes.

    18 A. Yes, but during our first meeting I had occasion to see

    19 the text of the indictment against Mr. Blaskic.

    20 Q. What about Exhibit 38, tab 1? How did you come by that

    21 document? Do you need that placed before you?

    22 A. Yes, please.

    23 Q. Could that exhibit, your Honour, be placed before the

    24 witness? (Handed)

    25 A. As far as I can see, these are the same documents --

  18. 1 JUDGE JORDA: One moment, please. (Pause.) Which tab are

    2 you talking about here?

    3 MR. HAYMAN: Tab 1.

    4 JUDGE JORDA: Could you show that to me?

    5 MR. CAYLEY: Mr. President, could I just speak?

    6 JUDGE JORDA: Yes.

    7 MR. CAYLEY: It is to clarify matters. I mean, I can

    8 understand where my learned friend is trying to take

    9 this, but in essence this is the first document in the

    10 bundle that's before you in the file. It was provided

    11 to Dr. Pajic. It's not part of the Narodni list. It

    12 is the original unamended version of a document that

    13 later appears in an amended version in the Narodni

    14 lists. That is the documents, the very first document

    15 in the file.

    16 MR. HAYMAN: I appreciate my colleague's assistance but

    17 I would actually like to question the witness about

    18 where he got the documents he studied. May I?

    19 A. You are referring to the document on establishing the

    20 Croatian community of Herceg-Bosna.

    21 Q. Exhibit 38, tab 1. Do you have that document?

    22 A. Yes, I have it in front of me.

    23 Q. Was that document published in the Narodni list?

    24 A. This document was not published in the Narodni list.

    25 Q. But you were also given this document by the

  19. 1 Prosecutor's Office. We have heard Mr. Cayley describe

    2 that.

    3 A. This document was given to me by the Office of the

    4 Prosecutor and in this exact form inserted into the

    5 cover of the first volume of these four volumes that you

    6 have.

    7 Q. Besides that document and a copy of the indictment which

    8 you were either given or shown, were you provided with

    9 any other documents by the Prosecutor's office in

    10 connection with the study you undertook?

    11 A. To the best of my knowledge, no.

    12 Q. How long did your review of the four volumes which

    13 comprise collectively Exhibit 36 take?

    14 A. Are you thinking of the number of hours or the number of

    15 days that I spent?

    16 JUDGE JORDA: The question, Mr. Hayman, is this an important

    17 question for the Defence strategy? Is it very

    18 important, because for five or six minutes we are now

    19 talking about this document. If you think it's

    20 important, go on.

    21 MR. HAYMAN: It goes to the process of his study, whether

    22 this is a scientific process, some other process, the

    23 origins of the information he reviewed, who selected

    24 them and so forth. I'm moving forward as quickly as

    25 I can, your Honour. There have been some questions and

  20. 1 discussions with my learned counsel across the way.

    2 JUDGE JORDA: All right.

    3 MR. HAYMAN: But I'm moving forward as quickly as I can.

    4 Thank you.

    5 JUDGE JORDA: (Not translated).

    6 MR. HAYMAN: Translation please.

    7 JUDGE JORDA: General Blaskic says he is not hearing. Can

    8 you hear me, General Blaskic?

    9 GENERAL BLASKIC: Your Honour, your Honour, I cannot hear

    10 at all the questions put by my counsel. I can only

    11 hear you.

    12 JUDGE JORDA: That is not enough. You have got to be able

    13 to hear. First of all, Mr. Hayman, do you have a

    14 comment you would like to make about the technical

    15 issues here?

    16 MR. HAYMAN: For a period I was not receiving an English

    17 translation of your Honour. There was a gap.

    18 JUDGE JORDA: This is important. I want this technical

    19 problem to be solved. Mr. Blaskic.

    20 GENERAL BLASKIC: I can hear well now.

    21 JUDGE JORDA: Mr. Hayman, do you hear me now?

    22 MR. HAYMAN: I do.

    23 JUDGE JORDA: I suppose, Mr. Hayman, you would not like the

    24 Presiding Judge repeat his earlier intervention.

    25 I think you understood what he meant. We can go on

  21. 1 now. If you feel that your client has not heard

    2 everything that you are saying, then you just start over

    3 again.

    4 MR. HAYMAN: I do not think that's necessary, your Honour.

    5 JUDGE JORDA: Go on.

    6 MR. HAYMAN: Dr. Pajic, in days or hours how long did you

    7 spend reviewing Exhibit 36?

    8 A. I didn't keep a very close track of the time, but I must

    9 say that these documents were before me all the time, to

    10 such an extent that even last week before coming to The

    11 Hague I think that I could by heart from memory give you

    12 the name of each of the documents in their order, when

    13 they were passed, and I could even quote much of those

    14 documents, but I really did not keep a close account of

    15 the time spent. After all, I'm not an employee of this

    16 Tribunal, nor am I engaged full-time, but throughout

    17 March, April and May I kept taking notes. I entered

    18 them into my computer. I went back to them.

    19 I revised my conclusions. I amended them and on. So

    20 it was an on-going process. Maybe that is the best way

    21 to answer your question.

    22 Q. Did you spend several weeks engaged in this endeavour?

    23 A. I didn't work on it every day.

    24 MR. CAYLEY: Mr. President, please.

    25 JUDGE JORDA: Mr. Cayley, first of all allow the question to

  22. 1 be asked and the witness has to answer after which you

    2 can intervene. Mr. Pajic, I myself asked that

    3 question. I think Mr. Hayman understood. Now I would

    4 like Mr. Pajic to answer, but as quickly as possible,

    5 that is answer Mr. Hayman's question.

    6 A. Yes, I spent analysing these documents certainly many

    7 weeks.

    8 MR. HAYMAN: Did you review any other material, such as

    9 secondary sources, articles, books and the like?

    10 A. Everything that was relevant and linked to the current

    11 events in the region of Bosnia and Herzegovina, or

    12 rather the region that has been designated as

    13 Herceg-Bosna, I have been following events there and

    14 I am still following developments there.

    15 Q. Did you conduct any field interviews in connection with

    16 your study?

    17 A. No.

    18 Q. Did you visit Bosnia and Herzegovina in connection with

    19 your study?

    20 A. No. I visited Sarajevo in May and again in June I spent

    21 three days there. In May I was there as a consultant of

    22 an international non-government organisation,

    23 International IDA from Stockholm. Now in Sarajevo from

    24 17th-21st June I was on a private visit.

    25 Q. I take it you made no effort to interview persons

  23. 1 directly involved in the events and decrees and so forth

    2 in Exhibits 36 and 38; is that right?

    3 A. No. Indeed I believed it was an assignment I was given

    4 to analyse the documents. I didn't feel it was

    5 necessary for me to engage in any kind of conversations

    6 with peoples living in the region there. In fact,

    7 I sought to ensure a certain degree of discretion in

    8 dealing with this matter, because I am following the

    9 work of the Tribunal, and I see that there is a kind of

    10 routing here and there and some lay interpretations that

    11 have nothing in common with what is actually happening

    12 in this court.

    13 Q. You have mentioned the decrees and decisions then

    14 necessary in Exhibit 38. Do you know who drafted them?

    15 A. You mean am I familiar with the persons who worked on

    16 these drafts? No.

    17 Q. Do you know whether they were copied in large part from

    18 other documents, perhaps from other countries?

    19 A. I have no reason -- I do not know what you mean under

    20 other countries, but I assume that the experiences that

    21 existed in the territory of the former Yugoslavia and

    22 its legislation were used.

    23 Q. Based on your review of our materials at your disposal,

    24 as you have described, did you determine to what extent

    25 the decrees and decisions in Exhibit 38 were actually

  24. 1 implemented on the ground?

    2 A. First, I didn't have occasion to do that and, secondly,

    3 that was not my task to investigate to what extent these

    4 normative documents were implemented in practice. All

    5 I could see was that within the scope of normative

    6 activities one could conclude that the system of

    7 decision-making had such an effect that, as Mr. Nobilo

    8 and myself discussed yesterday, in some cases bodies or

    9 departments of the Croatian Defence Council functioned

    10 as kind of independent "ministries" or "administrative

    11 departments", but in quotation marks, but I do not have

    12 any personal knowledge from the field to what extent

    13 this was implemented in practice. All I can speak

    14 about are my impressions on the basis of reports in the

    15 media, but that is certainly not relevant in this case.

    16 Q. Did you prepare a written report of your study or

    17 review?

    18 A. All I have in writing are my own notes, which I used

    19 while reading these documents, but I did not prepare any

    20 written report, and in the first conversation with the

    21 prosecutors this year in The Hague I asked and it was

    22 agreed that no written report was expected of me.

    23 Q. Did you use your notes in connection with your

    24 presentations and briefings of the representatives of

    25 the Prosecutor's office?

  25. 1 A. Yes. I did. I used my notes.

    2 Q. Then based on the feedback they gave you, did you take

    3 additional notes to assist you in your presentation to

    4 the Tribunal?

    5 A. The feedback, I must say, was back and forward, because

    6 the Prosecutor and I co-operated in this matter. Though

    7 suggestions came from the Prosecutor regarding further

    8 clarifications of this or that point, I frequently felt

    9 the need to brief the Prosecutor too regarding many

    10 questions that in view of my expert knowledge and my

    11 origins from Bosnia-Herzegovina I could familiarise them

    12 with.

    13 Q. Did you prepare any charts or graphical aids to assist

    14 you in your work, in your briefings, or in your

    15 briefings of the Prosecutor's office representatives?

    16 A. No.

    17 Q. Were you paid for your work or did you perform it

    18 gratis?

    19 A. For this work I received the fee of a consultant as

    20 prescribed by the rules applicable in the United

    21 Nations.

    22 Q. So I take it you were paid a fee?

    23 A. Consultancy fee, yes.

    24 Q. Now during your testimony have you also utilised some

    25 notes hand-written on some of the decisions and decrees

  26. 1 in Exhibit 38?

    2 A. Yes, for my own needs, of course, attached to each of

    3 these documents I made notes, a memo, I underlined some

    4 things, which is normal, I think, when you are analysing

    5 a text, put notes in the margins and so on.

    6 Q. Were some of those notes prepared during your meetings

    7 and conferences with the Prosecutor's Office, based on

    8 the content of your discussions with those

    9 representatives?

    10 A. Yes. If I thought something was important so when

    11 I went back home I could refer to it and study something

    12 in further depth, so I put down a note as a memo to do

    13 that.

    14 Q. So I take it when you undertook your review of

    15 Exhibit 36 and 38 you were aware of the charges against

    16 the accused in this case?

    17 A. In very general terms I must tell you. You see,

    18 I thought about this a great deal, and maybe this is the

    19 opportunity for me to say this. When one accepts such

    20 a delicate assignment there are necessarily certain

    21 morale dilemmas, no professional dilemmas, because we do

    22 what we know best, because, after all, at my age one can

    23 only do something one knows how to do. It's rather

    24 difficult to start learning. As for morale dilemmas,

    25 you see, I gave priority with respect to this project on

  27. 1 the analysis of the documents of the normative situation

    2 regarding the Croatian Community of Herceg-Bosna and

    3 throughout my study of this, though I did read the

    4 indictment very superficially, I knew very well that

    5 I had no personal relationship towards the accused, that

    6 I have absolutely no personal knowledge about the

    7 Croatian Community of Herceg-Bosna. I do not even

    8 carry in my mind the smallest dose of bitterness towards

    9 the Croatian Community of Herceg-Bosna. I simply

    10 experience this whole situation that happened and that

    11 is still on-going in my homeland or the country that

    12 I come from. I have developed a certain attitude

    13 towards those developments, an attitude of professional

    14 curiosity. So please, I would like you to understand

    15 my engagement in this case in that sense.

    16 Q. Thank you. I think things will move a little quicker

    17 if you focus on my question and try to answer my

    18 questions as briefly as possible. The Prosecutor will

    19 have an opportunity to ask further follow-up

    20 questions. So my question was: were you aware of the

    21 charges against the accused when you undertook your

    22 review?

    23 MR. CAYLEY: Mr. President, I realise we wish to move things

    24 forward. The indictment is a public document. It is

    25 accessible to the world. It is not the witness'

  28. 1 special knowledge being aware -- this is not relevant,

    2 Mr. President.

    3 MR. HAYMAN: He may or may not have seen it just because

    4 it's a public document, your Honour, and it is very

    5 relevant for the line of questioning I'm going into.

    6 May I proceed?

    7 MR. CAYLEY: Your Honour, I would emphasise again this is a

    8 publicly available document. The sight of it is in the

    9 --

    10 JUDGE JORDA: I would suggest -- I think we are wasting

    11 time here. This is a public document. I think that

    12 you made an observation to the witness, Mr. Hayman.

    13 I could make one to you. You have been asking these

    14 questions for a long time now, of course, the context in

    15 which this testimony was gathered by the witness, and

    16 that is your right, but going back more specifically to

    17 the indictment, it is true that it has been published

    18 now for over a year, and since the time that Mr. Blaskic

    19 has been in The Hague. I would like us to go

    20 forward.

    21 MR. HAYMAN: From your review of the documents in

    22 Exhibits 36 and 38 were you able to draw any conclusions

    23 concerning the ability of an HVO field commander,

    24 military field commander, such as the commander of an

    25 operative zone, to appoint an HVO brigade commander?

  29. 1 A. I think that I didn't go that far in my analysis.

    2 I have already stressed that I am not an expert for

    3 military affairs, nor for military hierarchy, so that

    4 I couldn't make any conclusions in that respect.

    5 Q. Does one of the decrees and decisions in Exhibit 38

    6 state that the President or Presidency has that

    7 authority? Do you recall that?

    8 A. Yes. To a point, commanders.

    9 Q. So an operative zone commander would not have authority

    10 under these documents to appoint a brigade commander;

    11 correct?

    12 A. I have to look at the document.

    13 JUDGE JORDA: Could you tell us what document this is,

    14 Mr. Hayman?

    15 A. Will you refer to the document, Mr. Hayman, please?

    16 MR. CAYLEY: If I could assist my learned friend, it is, in

    17 fact, document 2, page 19, Article 34.

    18 MR. HAYMAN: Thank you: do you have that before you,

    19 Dr. Pajic?

    20 A. What is the title of the document, please?

    21 Q. Decree on the armed forces of the Croatian Community of

    22 Herceg-Bosna?

    23 A. Thank you. I have the document in front of me.

    24 Q. Tab 2, page 19, Article 34?

    25 A. Uh-huh.

  30. 1 Q. Shall I restate my question?

    2 A. Yes, please.

    3 Q. So under this Article would you agree that the

    4 President, not an operative zone commander, has the

    5 power and authority to appoint and dismiss brigade

    6 commanders?

    7 A. Yes. That falls under the jurisdiction of the President

    8 of the HZ H-B, the Presidency.

    9 Q. Without taking the time to refer to it, do you recall

    10 the decree on the district military prosecutors'

    11 offices?

    12 A. Yes.

    13 Q. And do you recall that the power to appoint those

    14 district military prosecutors was also vested in the

    15 President or the Presidency, not zone HVO military

    16 commanders?

    17 A. Yes.

    18 Q. Do you recall the decree on discipline, on disciplinary

    19 measures, regarding soldiers in the HVO, or shall we

    20 turn to it? That's tab 2, page 60.

    21 A. 60?

    22 Q. 6-0.

    23 A. Uh-huh.

    24 MR. CAYLEY: If I could correct my learned friend, the Rules

    25 of Military Discipline appear on page 37, so the witness

  31. 1 is not confused.

    2 A. 60 is something different.

    3 MR. HAYMAN: How would you describe the document that begins

    4 on page 60?

    5 A. The title of the document is "Mandatory Directive".

    6 Q. On, among other things, the possible pronouncement of

    7 penal sanctions for acts committed against the armed

    8 forces of Herceg-Bosna?

    9 A. Yes.

    10 Q. Now this directive delineates some 35 or 40 offences;

    11 correct?

    12 A. Yes.

    13 Q. May I direct your attention to Article 38?

    14 A. Article 38 of what document?

    15 Q. I'm sorry. 238. It is on page 61 of tab 2.

    16 I misspoke.

    17 A. The last one?

    18 Q. Yes, the last one. Why don't you take a moment to read

    19 it, please, to yourself?

    20 A. Yes.

    21 Q. Would you agree that this Article stipulates that

    22 disciplinary punishment applies or can apply only to

    23 listed offences that are punishable by less than three

    24 years, whereas listed offences punishable by more than

    25 three years are a matter of penal sanctions?

  32. 1 A. I'm sorry. Can you make your question more simple,

    2 please?

    3 Q. I'll do my best. Under Article 238 a distinction is

    4 drawn between -- and I do not know how these phrases are

    5 being translated so I will identify the terms -- a

    6 distinction is drawn between penal sanctions and

    7 disciplinary punishment. Do you see --

    8 JUDGE JORDA: Would you tell us what document this is

    9 again, please? We're a bit confused.

    10 MR. HAYMAN: Of course, your Honour. Tab 2 of Exhibit 38,

    11 page 61, the last article on that page is Article 238.

    12 Dr. Pajic, do you see these two --

    13 JUDGE JORDA: Would you ask your question again. Since

    14 you mentioned three different texts, could you now make

    15 your question more concise?

    16 MR. HAYMAN: Yes. Do you see Dr. Pajic, in Article 238 that

    17 it draws a distinction between "disciplinary punishment"

    18 and "penal sanctions"?

    19 A. Yes.

    20 Q. And is the distinction drawn that disciplinary

    21 punishment may only be imposed if the offence is

    22 punishable by less than three years of imprisonment?

    23 A. Yes.

    24 Q. Now are you familiar with the meaning of the term

    25 "disciplinary punishment" versus the term "penal

  33. 1 sanctions" as used in Article 238?

    2 A. Yes.

    3 Q. And it means, does it not, that penal sanctions can only

    4 be imposed by a court, such as a military court?

    5 A. Yes. In this case a military court.

    6 Q. So would you also agree then that a zone commander, an

    7 HVO military commander of an operative zone, could not

    8 impose on any soldiers under his command any penal

    9 sanctions as that term is used and limited in Exhibit

    10 238?

    11 MR. CAYLEY: Mr. President, if I could intervene, I really do

    12 not believe that this witness can answer the question

    13 that is being posed from that provision. That is not

    14 why he was called here to give evidence. These are

    15 specific questions on military justice, of which the

    16 witness has already stated he has no special knowledge.

    17 MR. HAYMAN: What I would say, your Honour, is he -- may

    18 I read one sentence of his direct testimony?

    19 JUDGE JORDA: Please allow the Presiding Judge to speak to

    20 the objection. I do not agree with this objection of

    21 the Prosecutor. You cited all these documents,

    22 Mr. Cayley. Your witness analysed them. When your

    23 witness considered that he had real competence over an

    24 area he stated that. When he said that he had less

    25 competence in a certain area specifically in the

  34. 1 military area he also stated it, and I criticised the

    2 Defence several days ago when it wanted to use the

    3 witness' answers when he said that he was not a military

    4 expert. I must have told the Defence that even if he

    5 was not a military expert, he could continue to

    6 testify. He is a Professor of law. Perhaps he is not

    7 a criminal -- an expert in criminal law like you,

    8 Mr. Cayley, but you cited the three documents. The

    9 Defence has the right at least to ask for an

    10 interpretation of that -- of those documents, and

    11 therefore I overrule your objection. Please continue.

    12 MR. HAYMAN: If you would work with me for a moment to

    13 identify at least for example purposes a few of the

    14 offences that are punishable by less than three year's

    15 imprisonment?

    16 A. Uh-huh.

    17 Q. Would you direct your attention to Article 204 on page

    18 60?

    19 A. Yes.

    20 Q. The offence of disobeying a guard, do you see that is

    21 punishable by up to three year's imprisonment?

    22 A. Up to three years, right.

    23 Q. Turning to the next page, the offence under Article 218

    24 of avoiding registration, do you see that is punishable

    25 by only up to one year?

  35. 1 A. Or punishable by money, by paying a certain amount of

    2 money.

    3 Q. Thank you. Yesterday you gave four general

    4 conclusions. The second general conclusion was the

    5 omnipresent role of the HVO in all state affairs. Do

    6 you recall that?

    7 A. Yes, I do.

    8 Q. Now since you made that statement, you and Mr. Nobilo

    9 have had a discussion concerning the existence within

    10 the entity generally described as the HVO of both civil

    11 organs as well as a military organ or an army; correct?

    12 A. Correct.

    13 Q. Now when you made the statement that the HVO was

    14 omnipresent in all state affairs, were you including

    15 both civil and military elements or organs of the HVO

    16 when you used the term "HVO" in that context?

    17 A. I think that I tried to be quite precise when I was

    18 speaking about the omnipresent role of the HVO.

    19 I meant the decisive influence in the legislative area

    20 through the Presidency, then influence in terms of the

    21 executive and administrative government, a decisive role

    22 in the judiciary, in terms of the right to appoint

    23 courts, judges, to appoint and recall judges, and

    24 decisive influence in the defence of the country.

    25 Q. And excluding the last item for the moment, the Defence

  36. 1 of the country, all the other responsibilities and

    2 powers you just stated fell to civil organs or elements

    3 within the so-called HVO; correct?

    4 A. But not to waste time on looking for documents, but the

    5 HVO was in charge of appointing military courts. Is

    6 that not right?

    7 Q. During the break we can find that decree and save time

    8 and look at it after the break. For the moment let me

    9 ask you: at any time reflected in any of the documents

    10 in Exhibit 38 did all authority within the HZ H-B pass

    11 to the military body within the HVO, that is the army?

    12 A. Please repeat your question.

    13 Q. At any time reflected by any of the documents in

    14 Exhibit 38, in other words as of the date of any of the

    15 documents in Exhibit 38, did all authority within the HZ

    16 H-B pass to the military body within the HVO, that is

    17 the army?

    18 A. Certain competencies were also enjoyed by the President

    19 of the HZ H-B, not the HVO directly, but as far as I can

    20 remember, the same person held two offices, the

    21 President of the HZ H-B and the President of the HVO.

    22 Q. And that's like the commander in chief of US armed

    23 forces; he is both a civil leader, the President, and he

    24 is the Commander In Chief of the armed forces. Are you

    25 familiar with that concept?

  37. 1 A. In principle, yes, but I find it difficult to make such

    2 comparisons between a state which is based on a

    3 democratically established system and, on the other

    4 hand, a state which is in the process of coming into

    5 being.

    6 Q. Right now I'm not asking you about the democratic or

    7 undemocratic foundation of HZ H-B, but I would like as

    8 succinct an answer to the question as you can give me.

    9 As of the date of any of the documents in Exhibit 38 did

    10 all authority within HZ H-B pass to the military body

    11 within the HVO, that is the army?

    12 A. No.

    13 Q. Would you characterise the HZ H-B at any time as of the

    14 date of any of the documents in Exhibit 38 as a military

    15 totalitarian state?

    16 A. I could characterise the HZ H-B as an authoritarian or,

    17 if you wish, totalitarian state. As far as the other

    18 adjective is concerned, that it was a military regime,

    19 I could not fully claim that. In many aspects that

    20 were such elements.

    21 Q. So I take it that your answer to the question: "Would

    22 you characterise the HZ H-B as a military totalitarian

    23 state?", your answer to that question is "no"; correct?

    24 A. By definition these two adjectives, "military" and

    25 "totalitarian", do not have to go together

  38. 1 invariably. Therefore if you are asking if it was a

    2 totalitarian regime my answer is yes. If you are

    3 asking if it was a military regime, my answer would be

    4 not fully a military regime.

    5 Q. So it was a military totalitarian state? Can you answer

    6 "yes" or "no"?

    7 JUDGE JORDA: Mr. Hayman, I think that you asked the

    8 question several times. You got the answer that

    9 obviously the witness wishes to give. I would suggest

    10 at this point that we could suspend the hearing and

    11 resume at 11 o'clock.

    12 (10.45 am)

    13 (Short break)

    14 (11.00 am)

    15 JUDGE JORDA: The hearing is resumed. Please have the

    16 accused brought in. Have the witness brought in, too,

    17 please.

    18 (Accused re-enters court)

    19 JUDGE JORDA: Do you have an objection, Mr. Cayley?

    20 MR. CAYLEY: I have no objection, Mr. President.

    21 JUDGE JORDA: We will note on the transcript that do you

    22 not have an objection.

    23 (Witness re-enters court).

    24 MR. CAYLEY: I have a request. My learned friend Mr. HARMON

    25 has spoken to me in the break and has stated that a

  39. 1 matter of some urgency has arisen in the break that

    2 requires your attention and your brother judges and he

    3 has stated he would like a closed session at the end of

    4 this hearing for approximately fifteen minutes when the

    5 matter can be raised by him.

    6 JUDGE JORDA: Which involves the Blaskic case?

    7 MR. CAYLEY: Yes, your Honour. Yes.

    8 JUDGE JORDA: It has to be in camera?

    9 MR. CAYLEY: Yes, your Honour. Yes.

    10 JUDGE JORDA: Yes. All right. That will be all the more

    11 reason to make sure that the questions that are asked

    12 are succinct. All right. Mr. Hayman, would you go on,

    13 please?

    14 MR. HAYMAN: Thank you, your Honour. Dr. Pajic, on 2nd July

    15 you and Mr. Nobilo discussed whether there was a

    16 sufficient defence of Bosnia and Herzegovina by an army

    17 of Bosnia and Herzegovina at the time of the Serb

    18 attack, and you said, and I'm reading from a transcript

    19 of that hearing:

    20 "Some areas were defended better and some worse.

    21 I can only speak from my personal experience in

    22 Sarajevo, which defended itself from invasion. Whether

    23 that was done by the well-organised, prepared in advance

    24 army of Bosnia-Herzegovina I do not know".

    25 Do you recall generally that testimony?

  40. 1 A. I do.

    2 Q. Would you agree with the statement that at the time, at

    3 least in June 1992, at the time of attacks on Sarajevo,

    4 there was no army present to return the attack?

    5 A. What I can recall is that there was an army of

    6 Bosnia-Herzegovina. Even a commander of the general

    7 staff was appointed, Mr. Stefavic. Defence operations

    8 were carried out, but all that I'm telling you is --

    9 belongs to memoirs, as I said yesterday, and everything

    10 else I could say by way of response is something that

    11 could be based on the knowledge acquired in my Sarajevo

    12 apartment. Movement was very difficult and I didn't

    13 have any direct knowledge of that.

    14 Q. Could a document, your Honour, be marked for

    15 identification and provided to the witness? Perhaps it

    16 could be placed on the ELMO.

    17 JUDGE JORDA: Document, please?

    18 MR. HAYMAN: It is a document I have, your Honour. I have

    19 copies for the court and the Prosecution.

    20 Dr. Pajic, this is a copy of an article that

    21 appeared in the Manchester Guardian Weekly on June 7th,

    22 1992?

    23 A. Excuse me. May I take the document from here? It's

    24 easier for me to read it. Thank you.

    25 Q. Certainly. Why don't you --

  41. 1 A. Can you turn this off for me, please?

    2 Q. If you could satisfy yourself that it is the news

    3 article, and then I would like to call your attention to

    4 the top of the second page of the article, which should

    5 be highlighted in yellow for you. First of all, did

    6 you write this article?

    7 A. I didn't.

    8 Q. Well, you -- strike that. Were you interviewed for

    9 this article?

    10 A. Yes.

    11 Q. So a reporter called you over the telephone and you

    12 spoke --

    13 JUDGE JORDA: Just a moment, please. Could the

    14 interpreters give me as close as translation as possible

    15 of the part which is being discussed now?

    16 MR. HAYMAN: Perhaps the yellow --

    17 JUDGE JORDA: Do all of the interpretation booths have this

    18 article?

    19 MR. HAYMAN: They do, your Honour, in relevant part.

    20 Perhaps they could translate the highlighted paragraph

    21 for the court.

    22 JUDGE JORDA: I have more or less understood, but still

    23 I would like to have this translated. The reason

    24 I asked it to be put on the ELMO is that it would be a

    25 way of having a translation.

  42. 1 MR. HAYMAN: Thank you. So you were interviewed for this

    2 piece; correct?

    3 A. Yes.

    4 Q. And do you -- did you make the statements depicted in

    5 the first paragraph of the second page? Again it's

    6 marked page 45 in the upper right-hand corner, but

    7 I believe it is the second page of this print-out of the

    8 story?

    9 A. The statement that is contained in the first paragraph

    10 is basically, I think, a true reflection of what

    11 I said. Actually I have to explain that this interview

    12 was conducted under very unusual circumstances. Ms.

    13 Hela Pik, the foreign policy editor of The Guardian,

    14 phoned me and she found me in my Sarajevo apartment

    15 while the city was being shelled. There were

    16 explosions all over. I gave this interview over the

    17 telephone under very dramatic conditions. So it is

    18 very difficult for me to recall each and every word now

    19 and I have not had a look at this text for a long time

    20 now, for four or five years, so I cannot exactly confirm

    21 that all of it is absolutely accurate, but basically

    22 I think that is what is contained in this text.

    23 Q. Thinking back to the terrible events of the period of

    24 time in which you were interviewed, did you believe at

    25 that time and feel at that time that, in fact: "There is

  43. 1 no army to return the attack"?

    2 A. I think that your question is not very precise, because

    3 you have to understand that the attack on Sarajevo was

    4 made exclusively by heavy artillery. In that sense the

    5 army of Bosnia-Herzegovina could not return the attack,

    6 because it did not have any heavy weapons of its own, so

    7 that they could from the centre of the city, the centre

    8 of Sarajevo, fire back at the heavy artillery which was

    9 deployed on the hills and mountains around Sarajevo.

    10 Q. You said in your testimony of the 2nd that whether the

    11 Defence of Sarajevo was done by a well-organised,

    12 prepared in advance army of BiH I do not know. Does

    13 this article in the Manchester Guardian weekly refresh

    14 your recollection that the Bosnian Territorial Defence

    15 Force was only created after the war began?

    16 A. I think that this part of my statement is true.

    17 Q. Thank you. Now if you could take up Exhibit 38 once

    18 again shall the excerpts of the Narodni list --

    19 JUDGE JORDA: Before we move to the binder, this is a

    20 prosecution witness and will be given what number --

    21 rather its exhibit number. This will be number 38.

    22 All right. This is D1.

    23 MR. HAYMAN: Do you have Exhibit 38, Dr. Pajic?

    24 A. Yes, I think I have.

    25 Q. The notebook?

  44. 1 A. If you give me the page, please.

    2 Q. If you turn to tab 2, page 5 of the English, tab 2, page

    3 5 of the English?

    4 A. Uh-huh.

    5 Q. I would like to return to the earlier subject of the

    6 nature of the legislative body and powers within the

    7 HVO. Directing your attention to Article 2, does this

    8 state that the HVO is a temporary body?

    9 A. Yes.

    10 Q. Which will cease with the establishment of regular

    11 executive authority and administration?

    12 A. That is your interpretation.

    13 Q. Do you see the words "shall cease"?

    14 A. In Article 2?

    15 Q. In Article 2, at least in the English translation I'm

    16 reading from?

    17 A. May I read the Croat text, please?

    18 Q. Please.

    19 JUDGE JORDA: Excuse me. Could you identify both the

    20 document and the article? I wasn't able to follow.

    21 Tell me where we are, please.

    22 MR. HAYMAN: I'm sorry, your Honour. I do not have an

    23 index of the English and the French, so I'm not able to

    24 give the court page guidance.

    25 JUDGE JORDA: Mr. Cayley, perhaps you could help.

  45. 1 MR. CAYLEY: Mr. President, if I could direct you to the

    2 portion which my learned friend is referring to, it is,

    3 in fact, index 2 in the binder before you and it's page

    4 5, which is the statutory decision on the temporary

    5 organisation of executive authority.

    6 JUDGE JORDA: Thank you. Excuse me, Mr. Hayman. You can

    7 continue now.

    8 MR. HAYMAN: Article 2, Dr. Pajic. You were going to read,

    9 I think, your untranslated version so we could hear the

    10 contemporaneous translations.

    11 A. "The HVO is a temporary body whose authority will be

    12 exercised until the moment regular executive authority

    13 and administration are established."

    14 Q. Thank you. Do you see under Article 7 that the types

    15 of members of the "HVO" as described in this decision

    16 are listed? This is also on the same page in the

    17 English version, Article 7?

    18 A. Yes.

    19 Q. It identifies the President, Vice-president, department

    20 head and other members?

    21 A. Yes.

    22 Q. Do those types of individuals -- is that characteristic

    23 of a civil body as opposed to a military body or an

    24 army?

    25 A. Yes.

  46. 1 Q. Turning to the next page, Article 16, and it is the next

    2 page in the English translation do you see the first

    3 sentence of that Article states:

    4 "The HVO shall conduct its business in sessions"?

    5 A. Yes.

    6 Q. Is that also characteristic of a civil body, not an

    7 army?

    8 A. I do not know the way in which military organs operate,

    9 for example army staffs, whether they work in session,

    10 as you say.

    11 Q. How about the third sentence of Article 16, which

    12 states:

    13 "The HVO shall decide by a majority vote ...".

    14 Would you agree that that is characteristic of a

    15 civil legislative type body, not an army?

    16 A. Yes.

    17 Q. Now you told us in the first day of your testimony that

    18 you had been asked by the Prosecution to explain the

    19 division of competency and the scope of jurisdiction

    20 regarding relations between the Presidency of HZ H-B and

    21 the HVO, firstly; secondly, to explain the legal

    22 position of the armed forces of the HZ H-B, as well as

    23 the organisation of the judiciary and the executive

    24 branches.

    25 Based on your study of these documents, are you

  47. 1 able to set forth with precision the relationship

    2 between the Presidency of the HZ H-B and both the civil

    3 and military elements within the HVO?

    4 A. In determining this relationship, the documents, the

    5 acts of the HZ H-B have a certain degree of

    6 imprecision. The basic one I wish to draw your

    7 attention to is that the Presidency -- if I can take you

    8 back to this decision on the establishment of the Croat

    9 Community of Herceg-Bosna, I think that it is the same

    10 section of this document, namely it is document 2, page

    11 3, where it says in Article 7, paragraph 2:

    12 "The President of the HZ H-B consists of the

    13 representatives of the Croatian people and the municipal

    14 bodies of authority, the senior official of the

    15 municipal body of the HVO".

    16 This shows a lack of provision. It shows that

    17 the HVO at the same time takes part in the Presidency.

    18 The other imprecision that can be seen from the later

    19 documents is that Mr. Mate Boban signs documents

    20 simultaneously as the President of the HZ H-B or, if you

    21 wish, the President of the Presidency, because it was

    22 not precisely spelt out whether the Presidency has its

    23 President or not, and at the same time he signs these

    24 documents as the President of the HVO.

    25 So, to go back to your question, it is rather

  48. 1 difficult to make this distinction. I think that there

    2 is a lot of overlapping involved between the Presidency

    3 as the legislative authority and the HVO as executive,

    4 administrative and the supreme defence structure.

    5 Q. Given that the accused in this case was a military

    6 officer, you can appreciate that it's important that all

    7 of us gain as much insight as we can into the structure

    8 of this entity and entities that were created in

    9 Herceg-Bosna. You have an easel to your left with a

    10 black felt tip pen placed on it. Are you able to show

    11 us graphically what the relationship between the

    12 military and civilian elements of the entity described

    13 generally throughout these documents as the HVO, what

    14 the elements -- what the relationship between those

    15 elements was at any particular point of time?

    16 A. With all due respect for the court, I always felt rather

    17 embarrassed if I had to draw anything, because

    18 throughout my academic career I either spoke or wrote,

    19 so that I really cannot make a graphic description of

    20 what you are asking me to do.

    21 Q. Then if I may ask, perhaps there is a mobile unit of the

    22 headsets that I can utilise, and I will do the drawing

    23 for you, Dr. Pajic. You can instruct me how graphically

    24 you answer the question when you were asked by the

    25 Prosecution at the beginning of your study to explain

  49. 1 the legal position of the armed forces of the HZ H-B.

    2 May I proceed?

    3 MR. CAYLEY: Mr. President, the witness was never asked to

    4 graphically represent anything for the Prosecutor.

    5 There was never that type of request. It was simply

    6 his expert opinion that was asked for. So I object to

    7 this process.

    8 JUDGE JORDA: I would like to confer for a moment with my

    9 colleagues. (Pause) the Tribunal will confer when a

    10 new issue comes up so that for the future there would be

    11 a definitive decision. The Tribunal considers that

    12 Mr. Hayman is absolutely entitled to ask for a graphical

    13 representation of his question, after which the witness

    14 will express himself. The Tribunal does not, of

    15 course, want the Tribunal to repeat his entire testimony

    16 (sic). We can then talk about the drawing, which will

    17 be tendered as an exhibit into the record. Mr. Hayman,

    18 take your pen and then remember that you have to watch

    19 the hour, and allow us to move forward. Go ahead.

    20 MR. HAYMAN: Thank you, your Honour. So, Dr. Pajic, keeping

    21 in mind that we are all very interested in the position

    22 of the military element or elements within the HVO, can

    23 you help us diagram how that military entry or body

    24 related to these other supreme and more superior powers

    25 of a civil, political, administrative, executive, of

  50. 1 whatever nature, within the entity described in these

    2 documents and decrees.

    3 JUDGE JORDA: Mr. Hayman, you are the one who is doing the

    4 drawer, though; correct? You are the drawer and then

    5 you will ask for comment from the witness. He was not

    6 here -- he is not here to make drawings. I simply said

    7 you have the right to illustrate your question by using

    8 graphic representation. Of course, you are the

    9 artist. You are the one who has to do the drawing.

    10 MR. HAYMAN: Absolutely, your Honour, and though I am sure

    11 my drawing is no better than Dr. Pajic's, I accept his

    12 declination to be the drawer. Do you agree we could

    13 begin with the Presidency of the HVO?

    14 A. Please proceed.

    15 JUDGE JORDA: Mr. Cayley?

    16 MR. CAYLEY: Mr. President, could the board be moved so that

    17 the witness can actually see what Mr. Hayman is doing?

    18 MR. HAYMAN: Thank you, counsel.

    19 JUDGE JORDA: Can the public gallery see the drawing as

    20 well? That isn't possible. Put the easel in such a

    21 way that the accused and the witness can see it and the

    22 public should be able to see it as well. I do not know

    23 whether the technicians can do all of that skilful work.

    24 MR. HAYMAN: You have drawn a box representing the HVO

    25 Presidency. Do you have an opinion or can you give me

  51. 1 any direction as to what box might appear below? In

    2 other words did the Presidency have a hierarchical

    3 relationship with, for example, the departments that

    4 were created within the HVO, the Defence Department, the

    5 Interior Department, Finance and so forth? Do you agree

    6 with the idea that we draw a straight line down from the

    7 Presidency that would then branch out and identify, for

    8 example, the different departments of the HVO or do you

    9 feel that would not be an accurate representation of

    10 your opinions and conclusions?

    11 A. I am not quite clear why you put HVO above the

    12 Presidency.

    13 Q. Shall I cross it out? Is it the HZ H-B Presidency?

    14 A. Yes.

    15 Q. I think we would have done if you had been the

    16 draftsman, Dr. Pajic, but nonetheless continuing with my

    17 handicaps, can you give us an opinion or some direction

    18 as to what body or bodies would exist below the

    19 Presidency in a hierarchical relationship?

    20 JUDGE JORDA: Mr. Hayman, I would like to go back to your

    21 last comment. I understand that you were going to make

    22 the drawing and then you would ask for comment

    23 afterwards. If the witness agrees to do the drawing,

    24 all right, but what I do not want is this questioning

    25 and answering going on for an excessively long period.

  52. 1 Either you do the drawing with a comment from the

    2 witness. If the witness agrees to, you can also make

    3 the drawing and make the comments afterwards. What

    4 would you prefer, Mr. Pajic? Would you like to work

    5 together in order to work more quickly with defence

    6 counsel? We do not want to make you uncomfortable

    7 here. We simply want you to be comfortable?

    8 A. Yes, I would like to work, collaborate with the Defence.

    9 JUDGE JORDA: All right. Then do what you need so that

    10 you can get up and work together with the Defence in

    11 order to make the drawing and things will move more

    12 quickly that way.

    13 MR. HAYMAN: Thank you, Dr. Pajic. My goal is to --

    14 whatever drawing we produce, it as accurately as

    15 possible reflects your views, opinions and judgements.

    16 Can you give me some direction? Is there an entity or

    17 body you believe would fall below the Presidency in a

    18 hierarchical relationship?

    19 A. My conclusion is that there is no hierarchy between the

    20 Presidency and the HVO for the simple reason that the

    21 HVO was included in the Presidency, and the same person

    22 was exercising the function of the President of HZ H-B

    23 and the President of the HVO.

    24 Q. Then perhaps we could identify in the drawing the

    25 constituent parts of the Presidency, the municipal HVO

  53. 1 representatives and the others pursuant to tab --

    2 Exhibit 38, tab 2, page 3, Article 7?

    3 A. Yes.

    4 Q. So, therefore, those elements are whom? The

    5 representatives of the Croatian people in the municipal

    6 bodies of authority, is that one category?

    7 A. Yes.

    8 Q. And how shall we term those? Municipal political

    9 leaders?

    10 A. Municipal Presidents of HVO bodies.

    11 Q. Are those the only members of the Presidency as you

    12 construe Article 7, or are there other members?

    13 A. It is not quite clear if there is a distinction between

    14 Croat people in the municipal authority and those who

    15 are exercising the function of the Presidency of the

    16 municipal HVO according to Article 7.

    17 Q. May I make a proposal? Yesterday you told Mr. Nobilo

    18 that you believed that the municipal Croatian Defence

    19 Councils were civil bodies. Do you recall that?

    20 A. I do.

    21 Q. Would you agree that whatever HVO representatives were

    22 in the Presidency are from those municipal HVO councils

    23 or HVO elements; correct?

    24 A. Yes.

    25 Q. Could we draw on the bottom of the Presidency perhaps a

  54. 1 box that refers to civil municipal HVO representatives,

    2 something like that?

    3 A. Something like that.

    4 Q. So now we have depicted a civil HVO membership in the

    5 Presidency. Again going downstream or below this

    6 Presidency for the moment, do you have an opinion,

    7 conclusion or can you make a recommendation concerning

    8 what other bodies, such as departments, or the military

    9 element within the HVO, would that lie below the

    10 Presidency in a hierarchical relationship?

    11 A. Mr. President, if I may, with due respect, Mr. Hayman

    12 insists on this division between civil and military

    13 characteristics of the HVO, and I agree that the lower

    14 we go towards the municipalities, HVO seems to be

    15 exercising certain competencies on the municipal level

    16 as a civil authority, but I would like to draw your

    17 attention to the decree on armed forces of HZ H-B, page

    18 12 in the Croat text, where it says in the first

    19 article, and I will quote from my original:

    20 "By this decree the rights and duties of citizens

    21 are regulated, the competencies of the Croatian Defence

    22 Council, of administrative bodies and legal entities in

    23 defending the sovereignty and territorial integrity of

    24 the Croatian Community of Herceg-Bosna and other matters

    25 of importance to the defence system".

  55. 1 I cited this Article, this provision, in order to

    2 draw attention to the fact that by a decree on the armed

    3 forces the rights and duties of the Croatian Defence

    4 Council are being regulated, which defence counsel

    5 insists is a civilian body. I am hereby trying to

    6 indicate that the overlapping between organs of civilian

    7 authority and the military hierarchy was so firm, they

    8 were intertwined together, that it is very difficult to

    9 make this distinction. That is why in my expert

    10 opinion I insisted on the fact that authority was

    11 centralised in the Croatian Community of Herceg-Bosna in

    12 that sense.

    13 Doing my best to co-operate with Mr. Hayman's

    14 efforts to graphically represent this situation,

    15 I appeal to you once again to re-examine my general

    16 conclusions and the quotation that I have just made.

    17 JUDGE JORDA: The Tribunal does not want to go back to all

    18 the statements regarding this complex problem having to

    19 do with the distribution or rather with the civilian and

    20 military sides of this issue. I believe that the

    21 witness has already explained himself at great length on

    22 this subject. Questions were asked. Mr. Nobilo went

    23 back to this problem. Mr. Hayman, I believe that you

    24 must continue with your questions and then the witness

    25 can make a general comment about any drawing that you

  56. 1 wish to make. This, it seems to me, would be a better

    2 way to organise the work of the Tribunal. What is the

    3 opinion of the Prosecutor? I would like to have the

    4 opinion if Mr. Cayley.

    5 MR. CAYLEY: Mr. President, your Honours, I think the witness

    6 is making his position quite clear in respect of the

    7 intertwined relationship between the military and

    8 civilian authorities, and I think he infers that it is

    9 extraordinarily difficult to actually represent that

    10 graphically at the top. My own view would be that

    11 learned counsel should move on with his questioning,

    12 that that is a matter for you. I think that is what

    13 the witness is now indicating.

    14 JUDGE JORDA: (Pause.) Mr. Hayman, the Tribunal would like

    15 you to make your drawing. The witness wanted to

    16 co-operate with you but can't. He explained his

    17 position. We give you three minutes to make your

    18 drawing, which will be commented on by the witness, and

    19 then we will move on to the next question.

    20 MR. HAYMAN: I'm afraid I can't make a drawing based on his

    21 testimony to date, because it's unclear to me. I'll

    22 ask a couple more questions in this area and move on, if

    23 it's acceptable to the court.

    24 JUDGE JORDA: Yes, that's all right.

    25 MR. HAYMAN: Do you agree, Dr. Pajic, that a distinction is

  57. 1 drawn within the decrees in Exhibit 38 between the

    2 Department of Defence and the army of the HVO?

    3 A. There is a distinction. The Department is just a part

    4 of the government cabinet, as we can call the HVO.

    5 Q. Would you agree that the Department of Defence answered

    6 to the Presidency?

    7 A. Yes.

    8 Q. And would you agree that the army answered to the

    9 Department of Defence in a hierarchical manner?

    10 A. Yes.

    11 Q. So we can draw those two elements on the chart. You

    12 would consent to that?

    13 A. Yes.

    14 Q. Do you have any comments or corrections to what I have

    15 drawn?

    16 A. No.

    17 Q. Thank you, Dr. Pajic. Thank you for putting up with my

    18 attempt to add clarity to your testimony. You did say

    19 in your testimony, by the way, that you found the

    20 decrees in Exhibit 38 to be clear, consistent and

    21 apparently written by someone with considerable legal

    22 skill?

    23 A. Yes.

    24 Q. Have you ever undertaken a scholarly study of military

    25 institutions?

  58. 1 A. No.

    2 Q. Have you ever studied the issue of command and control?

    3 A. Will you repeat the question, please?

    4 Q. Yes. Have you ever studied the issue in a military

    5 context of the concept of command and control?

    6 A. Are you using the word "control" in the sense of the

    7 control of the military organisation by civilian bodies?

    8 Q. No, I mean within a military organisation the control of

    9 soldiers by commanders and the chain of command?

    10 A. I have. It is an area I studied when studying

    11 international war law, but I did that, of course, at the

    12 academic level, without insight into any legal

    13 documents, but I was mainly reading literature on the

    14 subject.

    15 Q. With respect to the documents you were asked to look at

    16 in connection with this case, did you undertake a study

    17 of the issue of command and control within the army of

    18 the HVO?

    19 A. No.

    20 Q. Have you ever studied the issue of institution building,

    21 that is creating an institution such as a military out

    22 of nothing, from scratch?

    23 A. No, not exclusively the building of military

    24 institutions, but I did study to some extent the process

    25 of development of state institutions as such in

  59. 1 connection with the implementation of the Dayton

    2 accords.

    3 Q. But not military institutions, I take it? You have

    4 never studied that aspect of their birth?

    5 A. No.

    6 Q. In connection with this project or any other have you

    7 ever studied the decrees or decisions of any other

    8 organisation giving birth to a military, that is any

    9 other nascent military organisation, or are these the

    10 only decrees you have studied?

    11 A. These are the only decrees that I have had occasion to

    12 study in this form.

    13 Q. Now you have suggested that the formation of the HZ H-B

    14 reflected territorial ambitions; correct?

    15 A. Yes.

    16 Q. And you have also suggested that those territorial

    17 ambitions were linked to ethnicity?

    18 A. Yes.

    19 Q. And is it further your opinion that that development

    20 increased ethnic polarisation in Bosnia and Herzegovina

    21 during this time period?

    22 A. It could be one of the acceptable interpretations.

    23 Q. Is it an interpretation that you would subscribe to as a

    24 political analyst and commentator?

    25 A. Will you please repeat your question regarding

  60. 1 polarisation?

    2 Q. Do you believe that the formation of the HZ H-B

    3 increased ethnic polarisation within Bosnia and

    4 Herzegovina?

    5 A. Yes, and to a high degree. I say that because at the

    6 beginning of the war in Bosnia-Herzegovina an alliance

    7 was formed or a coalition between two leading political

    8 parties, on the one hand the party of the Muslim people

    9 in Bosnia-Herzegovina, the SDA, and on the other, the

    10 Croatian people in Bosnia-Herzegovina, the HDZ. With

    11 the strengthening of the HZ H-B, the coalition was dealt

    12 a rather heavy blow.

    13 Q. Would you agree with the proposition that the Vance-Owen

    14 plan increased ethnic polarisation within Bosnia and

    15 Herzegovina?

    16 A. I'm glad that you have asked me this question. The

    17 Vance-Owen plan was a comprehensive project for

    18 regulating Bosnia-Herzegovina. That would be based on

    19 a certain number of cantons. I think there were ten.

    20 These cantons were intended to ensure to a greater or

    21 lesser degree the majority authority of the people who

    22 were in the majority in certain areas or cantons, but

    23 I should like to recall that the Vance-Owen plan was a

    24 highly comprehensive document, which contained

    25 exceptional, exceptionally clear provisions regarding

  61. 1 guarantees of human rights, basic freedoms, and

    2 especially the position of minorities in those

    3 cantons. Unfortunately, and I have written about this,

    4 I have written in some of my papers, the majority of

    5 participants in the negotiations in Geneva within the

    6 framework of the UN conference on the former Yugoslavia

    7 understood the Vance-Owen plan exclusively as maps, as

    8 maps delineating certain cantons, and that led many to

    9 believe that this was a sign for them to gain control of

    10 those territories, without paying any attention to the

    11 other provisions referring to the organisation of some

    12 sort of democratic authority giving guarantees for human

    13 rights. I had to make a rather lengthy answer to this

    14 question. I beg your indulgence.

    15 Q. Of course. You agree then, I take it, that the plan,

    16 at least as interpreted by the party to the ensuing

    17 conflict, increased ethnic polarisation an tensions;

    18 correct?

    19 A. In view of the way in which it was interpreted, yes.

    20 Q. Indeed, you have written, have you not, that the cantons

    21 created by the Vance-Owen plan: " ... will likely lead

    22 to further large scale displacements as minority

    23 populations will flee"?

    24 A. This is reminiscent of my position, but I would like to

    25 know which Article you are quoting from.

  62. 1 Q. Could the document be provided to the witness, your

    2 Honour, and I have copies for the court and counsel.

    3 (Handed)

    4 JUDGE JORDA: Mr. Hayman, before we move to this document,

    5 do you want the drawing to be put in as an exhibit into

    6 the record?

    7 MR. HAYMAN: Please, your Honour, yes.

    8 JUDGE JORDA: Does the Prosecutor agree?

    9 MR. CAYLEY: No objection, your Honour.

    10 JUDGE JORDA: Registrar, will you put it in after documents

    11 D1 and 2. This can become a new exhibit as soon as the

    12 other side as looked at it as well. This can then be

    13 entered as an exhibit.

    14 MR. HAYMAN: Dr. Pajic, if you would look at the document in

    15 front of you, and before we place the pertinent part on

    16 the ELMO, can you identify this as an article that you

    17 co-authored in January of 1993 and that was published in

    18 the Manchester Guardian?

    19 A. Yes.

    20 Q. Now perhaps, your Honour, the highlighted paragraph

    21 could be placed on the ELMO so that it may be

    22 translated. I am referring to the paragraph that

    23 begins with the words:

    24 "Most fundamentally ..."

    25 Perhaps the translators could let us know when the

  63. 1 translation is concluded. (Pause.)

    2 JUDGE JORDA: Yes, Mr. Hayman, you can go on now.

    3 MR. HAYMAN: Thank you, your Honour. Dr. Pajic, do you

    4 acknowledge the passage we have referred to as your own

    5 words?

    6 A. Yes.

    7 Q. Would you also agree with the proposition that the

    8 political activities of President Alija Izetbegovic

    9 increased ethnic polarisation within Bosnia and

    10 Herzegovina during this time period?

    11 A. What specific political moves are you referring to?

    12 Q. Well, I must ask your indulgence, and perhaps you can

    13 explain some of your earlier words. Could another

    14 article be provided to the witness, your Honour?

    15 (Handed) For the record, this is an article that

    16 appeared in the Manchester Guardian on August 2nd,

    17 1993. Headline: "Wrong man in the wrong place". The

    18 portion that I wish to call the witness' attention to is

    19 highlighted in yellow, and appears at the bottom of the

    20 page marked page 20, carrying over to the top of the

    21 page marked page 21. First, Dr. Pajic, do you concede

    22 that you were interviewed and gave a statement in

    23 connection with this article?

    24 A. This article was written by Ian Trainor, Guardian

    25 reporter and correspondent for many years from

  64. 1 Bosnia-Herzegovina. I had several meetings with him

    2 and probably during one of those conversations -- it may

    3 even have been by telephone -- he reproduced this

    4 sentence which figures in his article, but there is not

    5 much point in me complicating things now. In essence

    6 I accept that that is what I said at the time.

    7 Q. Could the highlighted sentence be translated, starting

    8 on page 20? That will require the usher to turn the

    9 page at the appropriate time to page 21. (Pause.)

    10 JUDGE JORDA: Thank you.

    11 MR. HAYMAN: Dr. Pajic, you provided us graciously with your

    12 curriculum vitae, which I believe learned counsel from

    13 the Prosecutor's Office said you prepared and provided

    14 to them; is that right?

    15 A. It is, yes.

    16 Q. This, by the way, is exhibit 35, the curriculum vitae of

    17 the witness. In your curriculum vitae as well as your

    18 testimony you have described, among other things,

    19 numerous consultancy relationships with United Nations'

    20 bodies and other third party bodies?

    21 A. Yes.

    22 Q. Have you ever worked for the Government of Bosnia and

    23 Herzegovina, Dr. Pajic?

    24 A. I never had any paid office or duty in the Government of

    25 Bosnia and Herzegovina, but I was a member of the

  65. 1 Commission for Constitutional Matters of the Parliament

    2 of Bosnia-Herzegovina, as I said, in 1991, and a part of

    3 1992, and during the months of war in Sarajevo

    4 I attended several meetings, which were not really

    5 meetings of government bodies, but they were meetings of

    6 political institutions in Sarajevo. I must say again,

    7 though I'm speaking from memory, I must say that before

    8 the war, that is towards the end of the 1980s and during

    9 the election campaign in Bosnia-Herzegovina in 1990, and

    10 throughout the period up to my departure from Sarajevo,

    11 I enjoyed the reputation of an independent

    12 intellectual. I had very good working relationships

    13 with all the political parties, even with all three

    14 national parties, the SDA, the SDS and the HDZ, which

    15 I criticised in public, because of their nationalistic

    16 concepts. I had an open access to the media in

    17 Sarajevo. I was frequently interviewed by Sarajevo

    18 television, and though I was living in quite

    19 insufferable fear that my house, like many others, would

    20 be hit by a shell, I was invited from President

    21 Izetbegovic's cabinet by one of the diplomats of the

    22 former Yugoslavia, who started working at the time for

    23 the Government of Bosnia-Herzegovina, Mr. Harudin Samun,

    24 who told me that Mr. Izetbegovic was asking me to join

    25 the State delegation of the Republic of

  66. 1 Bosnia-Herzegovina as an expert for international law

    2 when this delegation went to the European Summit in

    3 Helsinki. This was a European Summit for the

    4 conference on security and co-operation in Europe which,

    5 as far as I can remember, took place in the first week

    6 of the month of July: I must explain this. I had a

    7 discussion at home with my wife and my closest friends

    8 over this invitation, and I was in a dilemma as to

    9 whether I should accept that invitation, because

    10 throughout the previous period I was quite a prominent

    11 opponent of national parties, including the Party of

    12 Democratic Action, of which Mr. Alija Izetbegovic was the

    13 President. However, after giving the matter some

    14 thought, I decided that, after all, in view of the

    15 significance of the meeting and in view of the situation

    16 in Sarajevo in the first place I felt it to be my morale

    17 duty as an expert for international law to take part in

    18 that delegation. I had a telephone conversation with

    19 Mr. Izetbegovic and I said that I accepted to participate

    20 in the delegation on condition that Sarajevo television

    21 should state that I was travelling to Helsinki as an

    22 independent expert for international law and not as an

    23 official of any state body. That's the whole story.

    24 Q. I take it you served as a legal adviser to that

    25 delegation from Bosnia-Herzegovina, went to Helsinki

  67. 1 with them and provided legal advice and guidance to

    2 them; is that right?

    3 A. Yes, it was an ad hoc consultancy trip.

    4 Q. And that fact is reflected in the article from the

    5 London Times that has been placed to your right on the

    6 ELMO? Do you see this is dated July 14th, 1992.

    7 Paragraph 5 states:

    8 "Mr. Pajic, who was the legal adviser to the

    9 Bosnian government delegation at the CSCE talks in

    10 Helsinki last week".

    11 Do you see that passage?

    12 A. Yes. Yes.

    13 Q. I went through your curriculum vitae and I couldn't find

    14 this consultancy and relationship with the government

    15 anywhere. Can you help me find it?

    16 A. No, it's not in my curriculum vitae and I know why.

    17 I did not enter in my CV any ad hoc engagements for any

    18 organisation, because, after all, for this type of

    19 consultancy there was no contact. There was no special

    20 appointment. It was simply a telephone call.

    21 I accepted the invitation. I went to Helsinki with the

    22 delegation for three days. I came back home and never

    23 since have I seen Mr. Izetbegovic even.

    24 Q. Your Honour, I ask that the documents and exhibits

    25 marked during the cross-examination of Dr. Pajic be

  68. 1 admitted into evidence. I would like to thank Dr. Pajic

    2 for coming to the Tribunal and providing it with his

    3 views, important views, and with that the Defence has no

    4 further questions for Dr. Pajic. Thank you.

    5 A. Thank you, Mr. Hayman.

    6 Re-examination by Mr. Cayley

    7 JUDGE JORDA: Before we give the floor to the Prosecutor

    8 for a brief reply, I would first like to ask the

    9 Registrar if he can tell us the numbering of the various

    10 documents that will fall under D?

    11 THE REGISTRAR: Yes. There's D1, which is the first one

    12 that was given to the witness. Then there's D2, which is

    13 on the easel.

    14 JUDGE JORDA: D2 is on the easel, but you could give some

    15 details about them. I'm sorry. D2 is the drawing.

    16 THE REGISTRAR: Then there is D3, D4 and D5.

    17 JUDGE JORDA: These are the articles. They have to be

    18 indicated more specifically. We will not do them right

    19 now. We will think about stating exactly what they

    20 are. That is D2, 3 and 4.

    21 I think you wanted to use your right to ask

    22 several other questions of the witness. I ask you that

    23 this be done relatively quickly. I give you the floor.

    24 MR. CAYLEY: You have my understanding that I will be brief,

    25 Mr. President.

  69. 1 Dr. Pajic, a few questions in general conclusion.

    2 From your research of all of the documents that the

    3 Office of the Prosecutor has put before you, is there

    4 any doubt in your mind that the entity of Herceg-Bosna

    5 from its commencement in November of 1991 aspired to

    6 statehood, which it ultimately attained when it declared

    7 itself a republic?

    8 A. Yes, I think you are right, and if you take that

    9 legislation as a continuous process, that particular

    10 aspiration could be clearly identified.

    11 Q. Whatever the catalyst for the creation of this entity,

    12 and Mr. Nobilo questioned you at some length and it's in

    13 the transcript, and he spoke of Serbs and used this

    14 pejorative term Cetnik, what were the prime aims of this

    15 entity from the start?

    16 A. The prime aim of the entity as it was defined in the

    17 decision of the establishment of HZ H-B was to circle a

    18 certain territory based on cultural, political, economic

    19 and territorial identity, if I may say so.

    20 JUDGE JORDA: Please try to ask questions that you have not

    21 already asked.

    22 MR. CAYLEY: Yes, your Honour. In any of the documents

    23 that you have read, Dr. Pajic, is there any express

    24 reference which allows the participation of persons of

    25 non-Croat ethnicity in the governing organs of this

  70. 1 entity?

    2 A. To my recollection there is not.

    3 Q. Is there any doubt in your mind whatsoever that the HVO

    4 was in control of the executive, the judiciary, was a

    5 participant in the legislature and in charge of the

    6 armed forces of HZ H-B Herceg-Bosna?

    7 A. That is correct.

    8 Q. What is the founding principle of the HVO?

    9 A. The founding principle of the HVO is to be established

    10 as a supreme body of defence of HZ H-B.

    11 Q. If you were to quantify the amount of documentation

    12 devoted to the armed forces of Herceg-Bosna, what would

    13 be your reply in everything that was provided to you by

    14 the office of the Prosecutor?

    15 A. A great amount of documents was dedicated to the armed

    16 forces, but I do not tend to look at it as a quantity

    17 but more as a quality, if you want, because the longest

    18 documents and the most substantial documents, in fact,

    19 are documents relating to the armed forces in general,

    20 like the document on the establishment of armed forces,

    21 the document on the military discipline, documents on

    22 ranks in the armed forces.

    23 Q. If I could very briefly refer you to document 2 in the

    24 index of documents, page 14, and if I could refer you to

    25 Article 11, could you read to the court the first

  71. 1 sentence of that document?

    2 A. Just to identify with no doubt it is a decree on armed

    3 forces, I take it?

    4 Q. That is correct, Dr. Pajic?

    5 A. Article 11:

    6 "In order to perform the tasks stipulated in

    7 paragraph 2, Article 10 of this decree within the

    8 Defence Department a general staff shall be

    9 established".

    10 Q. It is absolutely clear that the word "within" is used;

    11 is that correct? "Within the Defence Department a

    12 general staff shall be established"?

    13 A. Yes. The "General Staff" would be the translation of

    14 "Glavni Stoija".

    15 Q. Did the HVO give itself powers to appropriate

    16 expropriate private and public property, including the

    17 property of private citizens, public enterprises on the

    18 territory which it claims?

    19 A. Yes, it did.

    20 Q. In any of the documents that have been placed before

    21 you, is there any express contractual incorporation of

    22 international legislation guaranteeing the rights of

    23 minorities?

    24 A. There is not.

    25 Q. I referred yesterday in your testimony to the

  72. 1 constitutional -- the day before yesterday, my apologies

    2 -- to the constitution of the Republic of

    3 Bosnia-Herzegovina and to the decision of the Supreme

    4 Court with regard to the Herceg-Bosna entity, and indeed

    5 Mr. Nobilo discussed with you at some length that

    6 particular decision. This is my last question. What

    7 was the position of the Supreme Court of

    8 Bosnia-Herzegovina in respect of this entity that was

    9 created in November 1991?

    10 A. With due respect, Mr. Cayley, you are probably thinking

    11 of the Constitutional Court, not the Supreme Court.

    12 Q. My apologies. The Constitutional Court.

    13 A. The position of the Constitutional Court expressed in

    14 the decision adopted, if I am not wrong, in September

    15 1992, was that all the documents, decisions and decrees

    16 passed by HZ H-B in the period between November 1991

    17 until December 1992 were unconstitutional, and they were

    18 declared to be illegal from the point of view of the

    19 Constitutional Court.

    20 Q. Indeed, Mr. Nobilo agreed with you on that point. It's

    21 in the transcript. I have no further questions,

    22 Mr. President.

    23 JUDGE JORDA: Mr. Hayman, would you like to reply, but that

    24 will be the end? We agree that Mr. Hayman can have the

    25 final word here.

  73. 1 MR. HAYMAN: Despite the fact there are a few minutes left,

    2 your Honour, I have no further questions. I would like

    3 to note, though, in response to Mr. Cayley's initial

    4 comment that Mr. Nobilo used an ethnically pejorative

    5 term in his cross-examination, the term will Nobilo used

    6 was read from the preamble of one of these decrees. He

    7 did not use it himself. He was quoting a document.

    8 I simply wish the record to be clear in that regard.

    9 MR. CAYLEY: My apologies. I meant no offence at all by

    10 that. I realise you were reading.

    11 JUDGE JORDA: All of this will be included in the

    12 transcript. Thank you, Mr. Cayley, thank you

    13 Mr. Hayman.

    14 Mr. Pajic, you are not yet finished, because there

    15 are still some people who may want to ask you

    16 questions. Judge Riad would like to ask you a

    17 question.

    18 JUDGE RIAD: Professor Pajic, I would just like to have

    19 some clarification concerning the minorities within the

    20 Croatian Community in Herceg-Bosna. You mentioned that

    21 there were strong communities of minorities, which

    22 varied between 7 per cent and 82 per cent according to

    23 the municipalities. What was this minority composed of

    24 in its majority? Could you answer me in your good

    25 English, so that I will not have to put this on?

  74. 1 A. Yes, your Honour. I stated that in 26 out of 30

    2 municipalities listed in the decision of the

    3 establishment of HZ H-B 26 of those did not have an

    4 overall majority of Croat population. I'm not -- if

    5 you want me to, I can go through the data here, but

    6 those data are extracted from the census population of

    7 1991.

    8 JUDGE RIAD: I'm not asking you for details, but basically

    9 they were formed of what communities?

    10 A. Oh, generally, generally Bosnia-Herzegovina was --

    11 consisted, and if I can say it still consisted of three

    12 constituent peoples, and that fact was confirmed by the

    13 Dayton accord, and those peoples are Croats, Muslims and

    14 Serbs, with a small change in terminology where Muslims

    15 are now called Bosniaks, but that's a completely

    16 different matter. A certain percentage of other

    17 nationalities also lived in those communities) and my

    18 assumption is that those others were people who would

    19 categorise themselves either as Yugoslavs, which meant

    20 in the Yugoslav terminology mostly people of mixed

    21 ethnic background, or in some of those municipalities

    22 you could have in addition to Croats, Muslims, Serbs and

    23 others, you could have probably Jews, probably some

    24 Montenegrins, people who had that kind of ethnic

    25 background.

  75. 1 JUDGE RIAD: Now they had no access to public office, as

    2 I understood. They could not participate in any

    3 representations, but they were subjected to the military

    4 duties; is that right?

    5 A. That's the way I understood the documents here.

    6 JUDGE RIAD: Could you, according to your knowledge,

    7 clarify if this commitment, this participation in

    8 military duties was implemented in practice?

    9 A. I have no information about that. I'm sorry.

    10 JUDGE RIAD: Thank you very much.

    11 A. Thank you.

    12 JUDGE JORDA: Judge Shahabuddeen?

    13 JUDGE SHAHABUDDEEN: Professor Pajic, if I may follow on

    14 from the last series of questions, we have this position

    15 outlined by you, if I understood your evidence

    16 correctly, that the constituent documents of the HZ H-B

    17 did not allow non-Croats to occupy governmental

    18 positions. Am I correct in that?

    19 A. Yes, you are, and I can quote two provisions, one

    20 referring to the composition of the Presidency --

    21 JUDGE SHAHABUDDEEN: I really do not need you to quote

    22 them.

    23 A. I'm sorry.

    24 JUDGE SHAHABUDDEEN: I merely wanted to confirm with you

    25 the accuracy of my recollection of what you said. Now,

  76. 1 that being correct, my question is this: was there

    2 anything in the constituent instrument of the HZ H-B

    3 which precluded or prohibited non-Croats from occupying

    4 governmental positions?

    5 A. There was nothing that would allow non-Croats to

    6 participate in the State institutions of HZ H-B; in

    7 other words, attached to the Presidency and later on to

    8 the House of Representatives of the Croat Republic of

    9 Herceg-Bosna there were provisions providing or

    10 establishing that only representatives of Croat people

    11 could be the members of the Presidency or House of

    12 Representatives respectively.

    13 JUDGE SHAHABUDDEEN: Am I right then in understanding the

    14 effect of your testimony to be this, that those

    15 provisions effectively excluded non-Croats from

    16 occupying governmental positions?

    17 A. Yes, sir.

    18 JUDGE SHAHABUDDEEN: Okay. Now the second question, and

    19 there are only two questions I want to ask, has to do

    20 with an instrument to which you alluded some time ago.

    21 It is in the binder at tab 3, I think, and the endorsed

    22 numbering reads in the English text 00507600 at page

    23 53. It probably is page 54 in the French text. I'm

    24 not sure. It is a decision on establishing the

    25 criteria for defining confidential defence data, etc.

  77. 1 You remember that?

    2 A. I remember.

    3 JUDGE SHAHABUDDEEN: I have in mind more particularly

    4 Article 13, which relates to official secrets. What

    5 I wanted to ask you, Professor, was whether this

    6 instrument is still in force so far as the HZ H-B is

    7 concerned?

    8 A. I have no information that it has been repealed.

    9 JUDGE SHAHABUDDEEN: Then on presumption of continuity, it

    10 is still in force?

    11 A. Yes.

    12 JUDGE SHAHABUDDEEN: Yes. Now the effect of this

    13 provision, as you explained it, would be this, to bar

    14 the disclosure of HZ H-B official secrets to the

    15 governmental authorities of Bosnia-Herzegovina. Would

    16 that continue to be the position as at this time?

    17 A. If I may broaden my answer with just a few words. You

    18 will remember, your Honour, that the Croat Republic of

    19 Herceg-Bosna was to be officially dismantled by the

    20 Washington agreement from April 1994, and in particular

    21 the Dayton peace agreement does not mention this entity

    22 at all, and provides for Bosnia-Herzegovina as being

    23 consisted only of two entities, namely Republika Srpska,

    24 the Serb Republic, on one hand, and the Federation of B

    25 & H on the other, with the clarification that

  78. 1 constituent peoples in the federation are Bosniaks, i.e.

    2 Muslims, and Croats.

    3 JUDGE SHAHABUDDEEN: May I put it this way: until the

    4 coming into force of the Dayton agreement, would that

    5 provision have continued to be operated so far as the HZ

    6 H-B was concerned?

    7 A. My answer is yes.

    8 JUDGE SHAHABUDDEEN: Thank you.

    9 A. Thank you.

    10 JUDGE JORDA: Professor Pajic, time is growing short.

    11 I only have one question for you. What was the

    12 reaction at the time that all of these texts were

    13 proclaimed or drafted or came about, which were made

    14 official in the official journal, what was the reaction

    15 of Croatia? Were there any texts which allowed the

    16 different laws to be harmonised?

    17 A. As far as I remember, Mr. President, from November 1991

    18 until the summer of 1992 I did not travel to The

    19 Republic of Croatia, and so I can't be a good witness on

    20 the reactions to the establishment of HZ H-B as far as

    21 the public opinion, if you want, in the Republic of

    22 Croatia is concerned, but according to documents

    23 I analysed, there are a number of references where one

    24 could identify a certain degree of harmonisation of

    25 political interests and legal structures between The

  79. 1 Republic of Croatia and HZ H-B entity.

    2 JUDGE JORDA: Professor Pajic, the Tribunal would like to

    3 thank you for remaining longer than you had planned in

    4 The Hague. The questions to be asked of Mr. Pajic have

    5 been asked. He can be ushered out of the courtroom.

    6 We again thank you and without any further ado we would

    7 like to say that we will continue in camera in order to

    8 move to this question which was raised after the pause

    9 by the Prosecutor. So the usher can take the witness

    10 out?

    11 A. Thank you so very much. I have assumed my role in this

    12 Tribunal with great respect and as a great honour.

    13 Thank you very much.

    14 (Witness withdrew from court)

    15 JUDGE JORDA: The Tribunal, that is the judges, will

    16 withdraw for several moments until the courtroom can be

    17 set up for the in camera hearing.

    18 (12.35 pm)

    19 (Short break)

    20 (In closed session)

    21 (redacted)

    22 (redacted)

    23 (redacted)

    24 (redacted)

    25 (redacted)

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