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  1. 1 Monday, 14th December, 1998

    2 (Open session)

    3 --- Upon commencing at 10.40 a.m.

    4 JUDGE JORDA: Please be seated. Have the

    5 accused brought in.

    6 (The accused entered court)

    7 JUDGE JORDA: Good morning to the

    8 interpreters. Be sure that they can hear me. Also

    9 good morning to the Prosecution. Judge Shahabuddeen.

    10 JUDGE SHAHABUDDEEN: Gentlemen, I would like

    11 to offer to you both my very sincere apologies for my

    12 tardiness in arriving this morning. I think I must

    13 have been misled by the usual rhythm of our proceedings

    14 of a Monday. Thank you very much.

    15 JUDGE JORDA: Thank you very much, Judge

    16 Shahabuddeen. All of us run into some problems

    17 occasionally, and, of course, it's natural for

    18 everybody to apologise for what he is guilty of, but

    19 I'm particularly sensitive to the fact that Judge

    20 Shahabuddeen said what he just said.

    21 We can now proceed on the basis of the

    22 decision that was rendered on Friday. We are to hear

    23 the testimony of Vladimir-Djuro Degan, this morning; is

    24 that correct?

    25 MR. HAYMAN: That's correct, Mr. President.

  2. 1 JUDGE JORDA: I want to thank you for the

    2 more detailed summary that you have given us today. I

    3 am sure you have told the professor what we talked

    4 about on Friday and about what questions could be

    5 asked. All right, I think we can agree to that. Do we

    6 agree with that Mr. Hayman?

    7 MR. HAYMAN: We do. We have informed him, he

    8 has applied a scalpel to his notes and prepared

    9 comments to reduce and redact them, and I think he has

    10 done a serious job at that. If he errs in any

    11 respects, I'm sure, in any material respects, I'm sure

    12 we will hear and take appropriate steps.

    13 JUDGE JORDA: I'm sure that the Prosecutor

    14 also has a scalpel, I'm sure he does, and we too have

    15 our own scalpel. I think things should go without any

    16 hitches, but on the basis that was indicated here, all

    17 of us would be interested in hearing what the professor

    18 has to say in respect of the information that the

    19 Defence wants to give us. Here is the professor.

    20 (The witness entered court)

    21 JUDGE JORDA: I'm very sensitive and pleased

    22 by this early greeting you are giving me. Before you

    23 sit down, please give us your name, your first name,

    24 what your position is, and then remain standing for a

    25 few more moments in order to take an oath and then you

  3. 1 can sit down.

    2 THE WITNESS: My name is Vladimir-Djuro

    3 Degan. I come from Zagreb, I now live in Croatia. I

    4 was born at Bosanski Brod which is now called Srpski

    5 Brod, according to the Dayton Agreements in the

    6 Republic of Srpska. I am a professor, I teach at the

    7 law school in Rijeka. I teach international public

    8 law, and I also direct an institute in Zagreb which is

    9 called the Adriatic Institute which deals with maritime

    10 law and the law of the sea.

    11 JUDGE JORDA: Thank you. If you would please

    12 remain standing for a moment and take the oath before

    13 the International Tribunal.

    14 THE WITNESS: I solemnly declare that I will

    15 speak the truth, the whole truth and nothing but the

    16 truth.

    17 JUDGE JORDA: Thank you very much,

    18 Professor. You may be seated now. The Tribunal is

    19 very sensitive to your arrival at the request of the

    20 Defence in this trial initiated by the Prosecutor at

    21 International Criminal Tribunal of Colonel Blaskic, who

    22 is now a General, the accused, who is sitting in this

    23 courtroom to your left.

    24 In a decision taken by the Trial Chamber on

    25 Friday, we limited your remarks in order that they be

  4. 1 focused on the points of fact, which are those of the

    2 trial that are of interest to us, and not a strictly

    3 legal perspective, since the Judges are qualified to

    4 deal with and to resolve legal questions that are

    5 raised before this Tribunal.

    6 There we go. If everything was explained to

    7 you, I think now, without any further ado, we should

    8 give the floor to Mr. Hayman. It is now a quarter to

    9 11 and we will take a break in about an hour or hour

    10 and 15 minutes. Mr. Hayman, proceed, please.

    11 MR. HAYMAN: Thank you, Mr. President.

    12 Examined by Mr. Hayman:

    13 Q. Good morning, Professor Degan.

    14 A. Good morning, sir.

    15 MR. HAYMAN: I would like to commence by

    16 handing out copies of the professor's curriculum vitae

    17 in French and English, perhaps it could be marked as

    18 one exhibit with an A and B subcomponent. Perhaps the

    19 French could be A and the English B.

    20 THE REGISTRAR: Yes, this document would be

    21 D468A for the French version, B for the English

    22 version.

    23 MR. HAYMAN:

    24 Q. Professor, while your curriculum vitae is

    25 being handed out, let me ask you to speak more slowly

  5. 1 than your natural rhythm of speech would be and we

    2 allow for a slight gap in our questions and answers for

    3 clarity of interpretation.

    4 Also, if I could ask the clerk to move the

    5 ELMO slightly. Thank you very much.

    6 Professor, we have distributed your

    7 curriculum vitae, could you, though, briefly describe

    8 your academic career and the academic positions you

    9 have held?

    10 A. As I just told, I'm now teaching the public

    11 International Law at Rijeka University and I run an

    12 institute on maritime law and the law of the sea in

    13 Zagreb. I don't know whether you are interested in my

    14 education, which everything is written in my curriculum

    15 vitae.

    16 Q. In a few words, could you tell us what degree

    17 or degrees you hold, and the like?

    18 A. I took my doctor's degree at the University

    19 of Ljubljana. My thesis was on treaty interpretation,

    20 which I wrote originally in French and published here

    21 in the Hague, 1963, it's a long time ago.

    22 Q. Welcome back to The Hague.

    23 A. Yeah, thank you. And later on, I took

    24 Habilitation, that's a German system which was used in

    25 Croatia at the University of Zagreb. And I wrote

  6. 1 another book in French, it's title is L'ecoute et le

    2 Droit International, or Equity in International Law,

    3 but equity in a different sense than common law

    4 equity.

    5 So I followed the courses at The Hague

    6 academy of International Law in eleven instances

    7 between 1960 -- 1959 until 1971, and I was twice the

    8 member of centre of studies and research here at The

    9 Hague Academy in the French section.

    10 I published articles and books in Croat,

    11 English and French. Last year was published here my

    12 big book in HE English language, Sources of

    13 International Law.

    14 Q. Let me ask you, Professor, on the second page

    15 of your curriculum vitae under nonjudicial legal

    16 activities, it indicates you've been a member of an

    17 expert group on state succession and a member of the

    18 Croatian delegation in negotiations on succession

    19 issues of the former Yugoslavia. Could you briefly

    20 describe your work in those capacities?

    21 A. That's correct. I took part since the

    22 beginning at the conference on the former Yugoslavia

    23 which started here in The Hague in 1991. I was the

    24 first Croatian member in the work and group on human

    25 rights and rights of minorities. Later on this

  7. 1 conference started the negotiation process which did

    2 not end on state succession. It still lasts. But I

    3 must say that is an expert job, and in problems of

    4 state succession the positions of Croatia,

    5 Bosnia-Herzegovina, Slovenia and Macedonia are the

    6 same.

    7 Q. Vis-a-vis the Federal Republic or former --

    8 A. The former Republic of Yugoslavia, which

    9 claims identity of continuity with the Socialist

    10 Federal Republic of Yugoslavia, which disappeared. In

    11 that respect, there are no differences in my actual

    12 job, which is an expert job with the views and

    13 positions of Bosnia-Herzegovina.

    14 Q. Thank you. Let me also ask you, at the end

    15 of your curriculum vitae you identify two decorations;

    16 could you describe those for the Court?

    17 A. I was awarded by the French government for

    18 teaching International Law in the French language at

    19 French Universities, Le Mans, Nanterre, Pantheon-Assas

    20 and for teaching in French and organising French

    21 lectures and also English lectures at the

    22 Inter-University Centre of postgraduate studies in

    23 Dubrovnik.

    24 And I flatter myself that the French

    25 government awarded me also for my contribution of the

  8. 1 doctrine of International Law in the French language,

    2 but perhaps it was a courtesy of that government.

    3 Q. The Defence has asked you to come here, and

    4 we thank you for coming, to address the Court on the

    5 subject of the formal state-to-state relations between

    6 Croatia and Bosnia-Herzegovina at times relevant to

    7 this case and how those relations bear on the issue of

    8 the existence or nonexistence of an international armed

    9 conflict in Central Bosnia, the territory for which the

    10 accused in this case, General Blaskic, was the

    11 Operative Zone commander.

    12 Could you please provide the Court the

    13 information and comments that you have prepared on this

    14 subject?

    15 A. Thank you. I will start reading in the

    16 English language, but I have an accident, I have my arm

    17 broken. That accident happened in Zagreb, I was cured

    18 here in the Hague. I cannot take notes by my hand, but

    19 I think it will not prevent me in my job here today.

    20 Mr. President, Your Honour, the problem which

    21 I will discuss is the state-to-state relations of

    22 Croatia and Bosnia-Herzegovina, and there are

    23 consequences relating to whether General Blaskic can be

    24 accused for a commission of grave breaches of the 1949

    25 Geneva Conventions under Article 2 of the Statute of

  9. 1 this Tribunal. By that part of his indictment the

    2 Prosecutor alleges that in the period between May, 1992

    3 and January, 1994 there was an international armed

    4 conflict in the valley of Lasva between

    5 Bosnia-Herzegovina and Croatia.

    6 All four Geneva Conventions of 1949, except

    7 Common Article 3, apply in international armed

    8 conflicts. The appeals Chamber of this Tribunal noted

    9 in its decision of 2nd of October, 1995 in the Tadic

    10 case --

    11 MR. HARMON: Excuse me, Mr. President, excuse

    12 me Professor Degan.

    13 Mr. President, the decision of the Trial

    14 Chamber was to restrict Professor Degan to facts, not

    15 law and not comments on the decisions that have been

    16 rendered by this Tribunal; and therefore, I am offering

    17 an objection to his testimony.

    18 JUDGE JORDA: Professor, the Trial Chamber's

    19 decision was very clear. We didn't expect you to give

    20 us an interpretation of the Geneva Conventions or for

    21 you to tell us whether General Blaskic should be

    22 prosecuted in respect of the indictment that was issued

    23 here. This is a decision of the Judges.

    24 I think you have to remain with the question

    25 that was asked by Mr. Hayman, that is: Were the former

  10. 1 relations among the states, did they, rather, did they

    2 have any influence on the armed international conflict

    3 in your opinion?

    4 Your opinion on the interpretation of the

    5 Geneva Conventions is, of course, relevant, and with

    6 your curriculum vitae it is, of course, something which

    7 is important, but that is not what the Trial Chamber is

    8 asking for. The discussion took place on Friday and we

    9 circumscribed the questions which were be to taken up

    10 by you.

    11 You are here as an expert to speak about the

    12 relations between the states and their influence, in

    13 your opinion, of an international armed conflict. The

    14 Judges will then know at the proper time how to

    15 interpret the relevant provisions of the Geneva

    16 Conventions. Thank you very much.

    17 MR. HAYMAN: Mr. President, if I misled the

    18 witness, I apologise. I understood on the Court's

    19 ruling on Friday that he would be allowed to introduce

    20 his subject by painting a construct or a framework for

    21 the relevant facts, and that framework is necessarily a

    22 legal framework.

    23 So I understand that by mentioning the

    24 Tribunal or the Appellate Chamber the professor may

    25 have pushed a hot button for the Prosecutor, but I can

  11. 1 represent to the Court that there is a framework that

    2 the professor would like to paint, and the bulk of his

    3 comments are relating to factual matters.

    4 JUDGE JORDA: I don't want there to be an

    5 incident at each sentence, and that's why I've allowed

    6 myself to intervene the way I did. If we want to avoid

    7 frequent interruptions the witness might make his legal

    8 presentation introduction quickly but then move quickly

    9 to what was asked of him.

    10 MR. HAYMAN:

    11 Q. Let me ask you, Professor, to do so. I know

    12 it's difficult to speak ad hoc on these types of

    13 issues, but please, as we have discussed and as the

    14 Court has directed, let's proceed.

    15 A. Mr. President, I'm in a very unhappy

    16 position, because there is some confusion in

    17 interpretation of some parts of the four Geneva

    18 Conventions, and there are different doctrinal

    19 opinions, and I wanted to explain my opinion which are

    20 closely linked to the facts of General Blaskic. I can

    21 avoid all of that, but I think it would be a pity.

    22 I can just say that framework of that

    23 division of armed conflicts before 1949 and after 1949,

    24 but I think it will be useful to this Court. It would

    25 be different at the International Court of Justice, but

  12. 1 if you don't allow me --

    2 Q. I think the Court is indicating that you will

    3 be allowed a brief period to paint the legal framework,

    4 keeping in mind that the bulk of your comments, will,

    5 as I believe you have planned and intended, will be

    6 factual.

    7 A. Thank you. Mr. Chairman, with your

    8 permission, I will quote the Tadic case in respect to

    9 four Geneva Conventions. It was said that in the

    10 present state of development of the law, Article 2 of

    11 the Statute only applies to offences committed within

    12 the context of international armed conflicts.

    13 My comment is that it cannot be otherwise, at

    14 least in criminal law. Grave breaches of conventions

    15 applicable to international armed conflicts apply only

    16 to this type of hostilities and not in noninternational

    17 armed conflicts, nor in situations of internal

    18 disturbances.

    19 My comment is also if the Prosecution fails

    20 to prove in the present proceedings that in the

    21 critical period and in the critical region of

    22 Bosnia-Herzegovina there was an international armed

    23 conflict of that stage, of Bosnia and Herzegovina,

    24 which Croatia -- my comment is that General Blaskic can

    25 be indicted only for violations of the laws or customs

  13. 1 of war or for crimes against humanity, that is because

    2 Articles 3 and 5 of this Tribunal Statute apply to

    3 internal armed conflicts, as well. I don't know

    4 whether the Prosecution complies to this, my comment;

    5 if not, I will proceed.

    6 Now I would like to introduce the framework

    7 for this issue, which will be pointed out on factual,

    8 on facts which happened in relations between Croatia

    9 and Bosnia-Herzegovina in the critical period between

    10 May 1992 and January 1994.

    11 Prior to the 1949 Geneva Conventions on

    12 humanitarian law, classical International Law knew only

    13 three types of armed conflicts; they were war, civil

    14 war and use of force short of war, such as armed

    15 reprisals, self-defence, other kinds of armed

    16 interventions, like Pacific blockade of a part of the

    17 coast of a foreign state, et cetera.

    18 Conventional rules which are now in force

    19 distinguish between international armed conflicts,

    20 armed conflicts not of an international character, or

    21 noninternational or internal armed conflicts, and

    22 finally, situations of internal disturbances and

    23 tensions which are not armed conflicts.

    24 However, as I already mentioned, this

    25 repetition did not avoid certain doctrinal confusions

  14. 1 which I want to discuss here. In respect to the

    2 criteria for existence of all these three different

    3 situations, it is Common Article 2 of the four Geneva

    4 Conventions which gives criteria for existence of

    5 international armed conflicts.

    6 Those are all cases of declared wars that

    7 situation between high contracting parties, that is to

    8 say sovereign states, that these conventions equally

    9 apply to any other armed conflict which may arise

    10 between two or more states, even if the state of war is

    11 not recognised by one of them.

    12 That's my interpretation. I think it can be

    13 of some use in these trial proceedings, that this part

    14 of the phrase in Article 2, paragraph 1 of four Geneva

    15 Conventions means a contrario that there is no

    16 international armed conflict if all belligerent parties

    17 deny the existence of the state of war. In this

    18 respect exactly, most doctrinal writings neglect that

    19 difference. Probably in the light of the large

    20 after-war practice of denials of state of war.

    21 The third situation of international armed

    22 conflicts is provided in paragraph 2 of Article 2. It

    23 reads: "Conventions shall apply to all cases of partial

    24 or total occupation of the territory of a high

    25 contracting party, even if the said occupation meets

  15. 1 with no resistance."

    2 Under the impact of later developments in

    3 general International Law, paragraph 4 of Article 1 of

    4 the 1977 Protocol I of the Geneva Conventions,

    5 assimilates into international armed conflicts some

    6 kinds of armed struggles which were previously

    7 considered as civil wars. Those are conflicts in which

    8 peoples are fighting against Colonial domination, and

    9 alien occupation or against racist regimes. However,

    10 no party --

    11 MR. HARMON: Excuse me, Professor Degan.

    12 Excuse me, Mr. President and Judge Shahabuddeen, but

    13 again I hearken back to the ruling of this Chamber,

    14 which was that Professor Degan would come to discuss

    15 facts, and now he's giving us his interpretation and

    16 his point of view in respect of various Articles

    17 contained in the Geneva Conventions, and that is

    18 precisely what I thought the decision of the Chamber

    19 sought to avoid. A Chamber itself is fully capable of

    20 understanding and interpreting the law of the Geneva

    21 Conventions. In fact, that is the Chamber's mandate.

    22 So I would object, once again, Mr. President,

    23 and I would ask that Professor Degan get to the facts

    24 about which he intends to testify.

    25 JUDGE JORDA: Yes, Professor. I have to

  16. 1 sustain that objection, and that was why, through the

    2 Defence counsel, to refer you in the French version to

    3 the summary that Mr. Hayman prepared on your

    4 testimony. Let me remind you of it, because apparently

    5 it has to be repeated, that most of the testimony will

    6 deal with the theoretical framework, which will allow

    7 us to answer the question of knowing whether in the

    8 period of interest there was an armed international

    9 conflict in Central Bosnia. The question is very

    10 simple; in your opinion, was there an armed

    11 international conflict or not?

    12 The second question was to describe the

    13 circumstances which allow us to conclude there was an

    14 international armed conflict according to the Geneva

    15 Conventions as indicated in Common Article 2. Nothing

    16 prevents your giving us your interpretation, but do it

    17 very quickly, please. The Judges will note it as

    18 evidence which has been tendered into the case file.

    19 Thank you.

    20 A. Now I'll pass to the facts to make the

    21 Prosecution satisfied.

    22 JUDGE JORDA: We thank you very much for

    23 that. Well, we're not trying to please the

    24 Prosecution, you see, or to please the Judges. Each

    25 person simply has to do what he has to do in this

  17. 1 Tribunal. It's not to please one party or the other.

    2 That's not why we're here.

    3 Please continue, but remain within the scope

    4 that we've indicated, and this is the last comment we

    5 can make on this point, otherwise, we have to redefine

    6 the scope of your intervention. If you agree, please

    7 continue.

    8 A. In fact, what happened in the valley of Lasva

    9 from January 1993 to January 1994 was not of such a low

    10 intensity as to be qualified as internal disturbances

    11 or tensions against the central power of the state.

    12 That's the factual situation.

    13 For an international armed conflict to exist,

    14 it must be proven that one of the conflicting parties,

    15 namely Bosnia-Herzegovina or Croatia, formally declared

    16 war to another, or, alternatively, that any of them

    17 recognised the state of war, or, finally, that there

    18 was a final occupation of that faction of

    19 Bosnia-Herzegovina territory of the Croatian army

    20 according to the provisions on occupation which are

    21 still in force. They are led down in Articles 42 to 56

    22 of the regulations respecting the Laws and Customs of

    23 War on Land in 1907.

    24 If it was not the case, there are still other

    25 criteria to be satisfied for the existence of

  18. 1 international armed conflicts, which I shall discuss.

    2 I would like only to note here that use of force

    3 non-authorised by the Security Council or a crime of

    4 aggression can consist in single acts, then it does not

    5 necessarily create a state of war or a state of

    6 international armed conflict, because there is not a

    7 protracted armed conflict.

    8 As examples, I can point to the U.S. bombing

    9 of Libian territory for its involvement in terrorist

    10 acts in Berlin in 1986, or its launching of cruise

    11 missiles against installations used by terrorists in

    12 the Afganistan and Sudan of this year. Those are some

    13 facts that happened outside of Bosnia-Herzegovina and

    14 valley of Lasva.

    15 Regardless of the actual situation in the

    16 valley of Lasva, I want now to examine whether at any

    17 time between 1992 and 1995 there existed a state of

    18 war. That is to say, objective situation of an

    19 international armed conflict between Croatia and

    20 Bosnia-Herzegovina.

    21 I told already that neither of these two

    22 states declared war one to another, that's the fact,

    23 nor they recognised the state of war between

    24 themselves. I also said that there is no proof that

    25 Croatian army kept under occupation any part of

  19. 1 Bosnia-Herzegovina. Those are also facts with some

    2 legal qualifications.

    3 In this respect, the situation is sharply

    4 different with the Federal Republic of Yugoslavia. On

    5 20th of June, 1992, Bosnia-Herzegovina proclaimed a

    6 state of war, identifying Serbia, Montenegro, the

    7 Yugoslav army and the local Serbian Democratic Party in

    8 Bosnia-Herzegovina as aggressors.

    9 From the state practice in wartime appeared

    10 some additional criteria for ascertainment of the

    11 existence of the state of war, which I want to examine

    12 now in four points.

    13 Point (A), the outbreak of a war has, as its

    14 immediate effect, rupture of diplomatic and consular

    15 relations between belligerent states. Nothing similar

    16 happened between Bosnia-Herzegovina and Croatia.

    17 Embassies of two states, in Zagreb and Sarajevo

    18 respectively, exercised unimpeded all their functions

    19 since establishment of diplomatic relations near the

    20 end of 1992.

    21 I hope the Prosecution will not interrupt me

    22 now.

    23 I can give here some details collected from

    24 the Ministry of Foreign Affairs of Croatia. After the

    25 two states formally recognised one another as

  20. 1 independent states on 7th of April, 1992, only a few

    2 days later on they agreed, on 14th of April, that their

    3 diplomatic and consular missions abroad will protect

    4 interests of nationals of the other state party where

    5 only one of them had such a mission.

    6 Pursuant to paragraph 9 in the Agreement of

    7 Friendship and Co-operation of 21st of July, 1992, on

    8 25th of July, on next 25th July, they reached an

    9 agreement on establishment of diplomatic relations

    10 between two states. On 29th of September, Croatian

    11 president Tudjman accredited Mr. Zdravko Sancevic as

    12 first Croatian ambassador in Sarajevo. Mr. Sancevic

    13 delivered his letter of credence to President

    14 Itzebegovic in Sarajevo on 17th of November, 1992.

    15 Madam Bisera Turkovic was accredited by the Presidency

    16 of Bosnia-Herzegovina as its first ambassador in

    17 Croatia on 19th of January, 1993. She delivered her

    18 letter of credence to President Tudjman on following

    19 25th of March. On 14th of June, 1993, President

    20 Tudjman was in official visit to besieged Sarajevo, in

    21 his effort to stop the conflict of HVO with the army of

    22 Bosnia-Herzegovina.

    23 Therefore, in the period between January 1993

    24 and January 1994, for which General Blaskic is accused

    25 for grave breaches of Geneva Conventions, Croatia and

  21. 1 Bosnia-Herzegovina did not interrupt their diplomatic

    2 relations. In that very period, they established and

    3 developed them.

    4 However, because of the practice of some

    5 belligerents to keep diplomatic relations even during

    6 full-fledged hostilities, like China and Japan until

    7 1st of February, 1938, the Soviet Union and Japan,

    8 during hostilities in Siberia and Mongolia in mid 1938

    9 and in 1939, or Iran and Iraq throughout the war

    10 between 1980 and 1988, of importance are other tests of

    11 existence of an international armed conflict which I'll

    12 discuss now.

    13 Point (B), the outbreak of war has

    14 considerable effects on treaties between belligerent

    15 states. Not one treaty enforced between

    16 Bosnia-Herzegovina and Croatia was suspended or

    17 abrogated, even in the period of hostilities between

    18 HVO and Bosnian army in Bosnia-Herzegovina.

    19 In this respect I would like to add that

    20 there are now not generally agreed rules on effects of

    21 international armed conflicts on multilateral and

    22 bilateral treaties of which belligerents are parties.

    23 That important topic remained outside the scope of the

    24 1969 Vienna Convention on the Law of Treaties, and I

    25 discussed that problem in my book on sources of

  22. 1 International Law, pages 465 to 469, where I analysed a

    2 resolution on this subject matter adopted by l'Instiut

    3 de Droit International in 1985.

    4 However, from the former state practice it

    5 can be concluded the following: The first, the

    6 outbreak of war cancels all bilateral treaties on

    7 political or military co-operation or alliances between

    8 the belligerents. On this account, no party cancelled

    9 the above mentioned Agreement on Friendship and

    10 Co-operation of 21st of July, 1992.

    11 Second, during the wartime, each of

    12 belligerents is free to suspend the operation of

    13 treaties on trade, commerce and similar matters unless

    14 the U.N. Security Council decides otherwise. This

    15 relates, above all, to all bilateral treaties between

    16 belligerents, but not to multilateral treaties or

    17 treaties constituting international organisations of

    18 which all belligerents are parties.

    19 I examined, to this end, the situation of

    20 bilateral treaties between two states concerned before

    21 January 1993. In a list provided by the Croatian

    22 Foreign Ministry, besides the above-mentioned

    23 agreements on diplomatic representation abroad, on

    24 friendship and on establishment of diplomatic

    25 relations, I found only a protocol between two

  23. 1 governments dating before the proclamation of

    2 independence of Bosnia-Herzegovina. The matter was of

    3 the Protocol of 27th of February, 1992 on co-operation

    4 in settlement of problems of refugees from

    5 Bosnia-Herzegovina in Croatia.

    6 This means that in that tragic period of

    7 Serbian occupation of one-third of Croatian territory,

    8 with a huge number of Croatian displaced persons from

    9 its own occupied territories like Vukovar, Gospic and

    10 others, Croatia continued to receive refugees from

    11 Bosnia-Herzegovina. Bilateral treaty relations

    12 expanded greatly after the Washington Framework

    13 Agreement on Confederal Relations of 18th of March,

    14 1994. However, there is no evidence that either

    15 Bosnia-Herzegovina or Croatia cancelled or suspended

    16 the operation of any of the agreements I have

    17 mentioned. All of them were applied under the

    18 circumstances even after January 1993.

    19 Finally, the outbreak of hostilities renders

    20 operative multilateral and bilateral treaties which

    21 expressly provide to be operated during the armed

    22 conflicts. While the International Committee of the

    23 Red Cross was active to conclude ad hoc agreements on

    24 application of Geneva Conventions and protocols between

    25 Croatia and SFRY and the JNA in summer 1992, I have no

  24. 1 data that these conventions on humanitarian law were

    2 applied any time in relations between Croatia on the

    3 one side and Bosnia-Herzegovina on the other.

    4 Point (C), the outbreak of hostilities has

    5 important effects on enemy citizens in the territory of

    6 another belligerent state.

    7 An important objective test of existence of

    8 an international armed conflict proceeds from Article

    9 4, paragraph 2 of the 1949 Fourth Geneva Convention

    10 relative to the protection of civilian persons in time

    11 of war.

    12 With permission of the Prosecution, I'll

    13 quote it: "Nationals of a neutral state who find

    14 themselves in the territory of a belligerent state, and

    15 nationals of co-belligerent state shall not be regarded

    16 as protected persons while the state of which they are

    17 nationals has normal diplomatic representation in the

    18 state in whose hands they are."

    19 The fact is that no citizen of

    20 Bosnia-Herzegovina possessing its passport, being

    21 refugee or resident in Croatia, needed protection from

    22 the Fourth Geneva Convention. None of them was treated

    23 by Croatian authorities as an enemy citizen. None was

    24 repatriated by force to Bosnia-Herzegovina, nor was

    25 interned or placed an assigned residence in Croatia.

  25. 1 On the contrary, all of them were treated as nationals

    2 of the co-belligerent state, enjoying protection of

    3 their embassy in Zagreb. So far as I know, the same

    4 was true for Croatian citizens in parts of

    5 Bosnia-Herzegovina under the control of its central

    6 authorities. We can say only besieged Sarajevo.

    7 Croatian citizens in besieged Sarajevo were protected

    8 by their embassy in Sarajevo.

    9 Point (D), finally, the outbreak of

    10 hostilities has important effects on intercourse,

    11 especially trading between belligerents. In this

    12 respect, not conclusive are provisions from treaties of

    13 peace concluded in 1919 and 1947 respectively, which

    14 settled very much unequal relations on these issues

    15 between victorious states and their subjects on the one

    16 hand, and vanquished states and their subjects in two

    17 world wars on the other. Conclusive is, however,

    18 practice of all belligerents during two world wars.

    19 From legislation and practices of the United

    20 Kingdom, France, the United States in two World Wars,

    21 also of Italy and Germany, on trading with enemy, some

    22 conclusions may be drawn.

    23 Each of belligerents is empowered to prohibit

    24 by its laws all trade between its own and enemy

    25 subjects, including, of course, their state

  26. 1 enterprises. On behalf of these laws in two world

    2 wars, practically, all trade and contracting with

    3 persons resident in an enemy country or with persons

    4 from neutral countries doing business with the enemy,

    5 all payments to such persons, and all business and

    6 communications with them were interrupted.

    7 All contracts made before the entry into

    8 force of that legislation were abrogated. Being in

    9 contravention with that legislation, all new contracts

    10 were null and void and constituted criminal offences.

    11 Only contracts concomitant of rights of property, such

    12 as leases or mortgages, were not abrogated but they

    13 were suspended until the conclusion of peace treaties.

    14 Furthermore, all belligerent states seized

    15 public enemy property on their owned and on occupied

    16 territories, such as funds, ammunition, provisions or

    17 rolling stocks of enemy state railways. All these

    18 measures were considered by all belligerents as

    19 consistent with the law of war which did not suffer

    20 changes even after 1945.

    21 In relations between Croatia and

    22 Bosnia-Herzegovina, during all the period up to the

    23 conclusion of Dayton Agreement near the end of 1995, it

    24 was just opposite what happened, like in respect of

    25 diplomatic and treaty relations. Following resolutions

  27. 1 of the U.N. Security Council 757, 787 of 1992, and 820

    2 of 1993, commercial, industrial, financial and other

    3 intercourse were forbidden in Croatia, and as I know

    4 also in Bosnia-Herzegovina only with the Federal

    5 Republic of Yugoslavia, and with the Serbian occupied

    6 territories in Croatia and Bosnia-Herzegovina, but it

    7 was the duty of all Member States of the United

    8 Nations, including Canada, or the United States or

    9 France or others.

    10 I have know data, and I cannot give testimony

    11 on these matters here, but I'm informed by Defence

    12 counsel that they have documents that even shipment of

    13 arms and ammunition in contravention to the arms

    14 embargo imposed by the Security Council Resolution 713

    15 of 1991 passed through Croatia to the army of

    16 Bosnia-Herzegovina. Equally, most of provisions in

    17 food, clothing and medicine, which were not transported

    18 by air, went to Sarajevo and to other unoccupied parts

    19 of Bosnia-Herzegovina through Croatian territory.

    20 It would probably be a unique case in history

    21 of wars that a belligerent in an international armed

    22 conflict helped his enemy by arms and ammunition in

    23 such a quantity as Croatia has done for

    24 Bosnia-Herzegovina.

    25 In addition to the state-to-state relations

  28. 1 as I understand it, in the critical period between

    2 January 1993 and January 1994, in the zone of

    3 responsibility of General Blaskic, no units of Croatian

    4 army could penetrate because that area was entirely

    5 surrounded by the Bosnia army. Therefore, in that

    6 region and in that period, at least there was no

    7 international armed conflict, on this account, also, he

    8 cannot be indicted for grave breaches of the 1949

    9 Geneva Conventions.

    10 It is reported that some units of the

    11 Croatian army happened to be outside the Lasva Valley

    12 in other areas of Bosnia-Herzegovina. They mostly

    13 consisted of soldiers originating from

    14 Bosnia-Herzegovina as I am here, and their presence --

    15 their temporary presence was, in my view, nothing

    16 similar to a protracted armed intervention by a foreign

    17 state.

    18 Lastly, there is no proof that in their zones

    19 of operation they exercised competences of an occupying

    20 power.

    21 From all the above, I came to the following

    22 conclusion, I'll read it carefully: State-to-state

    23 relations strongly indicate that a state of war or an

    24 objective situation of an international armed conflict

    25 did not occur between Croatia and Bosnia-Herzegovina in

  29. 1 1993 or afterwards. On the contrary; there is plenty

    2 of evidence that two states were co-belligerents in the

    3 conflict against Serbian forces, and that the conflict

    4 between HVO and the army of Bosnia-Herzegovina was an

    5 unfortunate internal armed conflict. Thank you

    6 Mr. President.

    7 JUDGE JORDA: Thank you, Professor. I think

    8 after this testimony you would perhaps like to ask some

    9 questions, Mr. Hayman.

    10 MR. HAYMAN: Mr. President, I don't have any

    11 further questions at this time. I would offer Defence

    12 Exhibit 468, his curriculum vitae, into evidence, and I

    13 also want to assure the professor that although in

    14 perhaps diplomatic or academic circles if a party

    15 interrupts another it could be a misstep, but please be

    16 assured that in the courtroom, when one party makes an

    17 objection they're simply following their duty and

    18 obligation to their client. Thank you.

    19 A. Thank you.

    20 JUDGE JORDA: The Judges can only agree with

    21 what has just been said, that this is part of normal

    22 judicial proceedings. Do you have a lot of questions

    23 to ask, Mr. Harmon? Would you like to us take a break

    24 now? What would you prefer?

    25 MR. HARMON: I would prefer a break now,

  30. 1 Mr. President, if that is possible. Thank you.

    2 JUDGE JORDA: All right. We're going to take

    3 a 20 minute break, and we'll resume for the

    4 cross-examination.

    5 --- Recess taken at 11.34 a.m.

    6 --- On resuming at 12.00 p.m.

    7 JUDGE JORDA: We can resume the hearing now,

    8 have the accused brought in, please.

    9 (The accused entered court)

    10 JUDGE JORDA: Mr. Harmon, you will allow me,

    11 with all the respect that I owe to you, to focus your

    12 cross-examination on the direct examination. Don't

    13 speak about legal issues, yourself. Don't make law,

    14 also.

    15 MR. HARMON: Yes, thank you very much, Mr.

    16 President and Judge Shahabuddeen. Good morning,

    17 Counsel.

    18 Cross-examined by Mr. Harmon:

    19 Q. Good morning, Professor Degan. I'm sorry I

    20 interrupted you, but as Counsel has indicated, there

    21 are times when a lawyer in court must fulfil his duty.

    22 I meant no offence when I interrupted you.

    23 Now, let me ask you some questions briefly,

    24 and I won't spend too much time, but let me ask you

    25 some questions about your testimony. Specifically, you

  31. 1 testified that a factor that led you to the conclusion

    2 that there was no international armed conflict in

    3 Central Bosnia in 1991, 1992 and 1993 was the fact that

    4 there was an absence of a declaration, a formal

    5 declaration of war. Did I understand your testimony

    6 correctly?

    7 A. Mr. President, I think the critical period is

    8 between January, 1993 and 1994. I think I explained

    9 with a lot of arguments of law and facts that there was

    10 not an international armed conflict in state-to-state

    11 relations between Croatia and Bosnia-Herzegovina as

    12 sovereign states and as members of the United Nations,

    13 and specifically that in the region of Lasva Valley

    14 there was not an international armed conflict, because

    15 there were no troops of the Croatian army present

    16 there.

    17 Q. Professor Degan, you didn't understand my

    18 question. I understand your testimony to be that a

    19 factor that these Judges should consider in determining

    20 whether there was an international armed conflict was

    21 the fact that there was no declaration of war between

    22 Bosnia and Herzegovina in the Republic of Croatia; did

    23 I understand your testimony correctly?

    24 A. Yes, but it was one of the elements.

    25 Q. Well, let me ask you about that element, we

  32. 1 will come to the other elements. Please.

    2 And you cited as examples where there was no

    3 formal declaration of war, but, in fact, war existed.

    4 The situation between Japan and China in 1938. Did I

    5 understand that testimony correctly?

    6 A. Yes.

    7 Q. Let me ask you, then, Professor Degan, was

    8 there an international armed conflict between the FRY

    9 and the Republic of Croatia?

    10 A. I studied that problem carefully --

    11 JUDGE JORDA: Please put your microphone on.

    12 There you go, thank you.

    13 A. I studied the problem carefully of

    14 relationship between Croatia and Federal Republic of

    15 Yugoslavia on the basis of all elements which I exposed

    16 here. But it's my conclusion, I came to the conclusion

    17 that there was not an international armed conflict

    18 between Croatia and Federal Republic of Yugoslavia

    19 because of many elements which I can explain here.

    20 Probably it's not important.

    21 Q. Let me ask you, did Croatia ever declare war

    22 on the Federal Republic of Yugoslavia?

    23 A. It did not.

    24 Q. Now, I take it your testimony is the absence

    25 of a declaration, formal declaration of war between two

  33. 1 sovereign states is not dispositive of whether there in

    2 fact exists an international armed conflict, it is only

    3 one factor to be considered?

    4 A. Yes. I'm sorry, I had not opportunity to

    5 expose all those elements from the Common Article 2

    6 from four Geneva Conventions in 1949. I wanted to

    7 explain that in order to prevent the further

    8 discussion, but I am ready to do that now.

    9 Q. Let me ask you, Professor Degan, while there

    10 may have been an absence of a formal declaration of

    11 war, was there a recognition, as far as you know, of

    12 hostilities that existed, armed hostilities that

    13 existed between the Republic of Croatia and the

    14 government of Bosnia and Herzegovina during the

    15 relevant time period?

    16 A. Between governments of Croatia and

    17 Bosnia-Herzegovina?

    18 Q. Yes, was there a recognition of the existence

    19 of armed hostilities during that time period?

    20 A. As I know in the state-to-state relations,

    21 there was not such a recognition.

    22 MR. HARMON: Let me show you, then, if I

    23 could, if I could have the assistance of the usher, I

    24 would like to show you some documents, Professor.

    25 THE REGISTRAR: This is 556A for the English

  34. 1 version.

    2 MR. HARMON: Professor Degan, if you could

    3 just look at that for a couple of moments.

    4 JUDGE JORDA: Do you want a little bit of

    5 time, Professor? This is the Presiding Judge speaking

    6 to you. Professor, do you need some time to read it?

    7 MR. HARMON:

    8 Q. Professor Degan, this is a statement of the

    9 government of the Republic of Bosnia and Herzegovina,

    10 and it is a result of a session that was held on the

    11 13th of May, 1993 in which it considered the situation

    12 in the region of Mostar and Central Bosnia, and in this

    13 respect there are certain government conclusions.

    14 I would like to direct your attention to, on

    15 the English version, the second page, the last

    16 paragraph on the second page that reads, "The

    17 government of Bosnia and Herzegovina states, once

    18 again, that it wishes to develop all encompassing

    19 relations in cooperation with the Republic of Croatia

    20 on the basis of mutual trust and respect; however,

    21 unless the attacks are immediately stopped and the

    22 units of the state of Croatia are withdrawn immediately

    23 from the territory of Bosnia and Herzegovina, the

    24 government of the Republic of Bosnia and Herzegovina

    25 will be forced to turn to the international community

  35. 1 and request protection from the aggression."

    2 So my question to you is: First of all, were

    3 you aware, Professor Degan, at any time during the time

    4 frame of 1993 that the government of the Republic of

    5 Bosnia and Herzegovina complained about armed

    6 aggression in the Republic of Bosnia and Herzegovina by

    7 soldiers from Croatia? Did you ever hear of any such

    8 complaints?

    9 A. Mr. Chairman, I wanted to explain in my

    10 larger text that there can be some differences between

    11 the act of aggression and international armed

    12 conflict. I mentioned in my intervention this morning

    13 that single interventions by the United States in

    14 Libya, and this year in Afghanistan and Sudan. Did not

    15 generate into any international armed conflict.

    16 Such acts which are, which can be acts of

    17 aggression can generate into international armed

    18 conflicts; and if it happens, then all provisions from

    19 Geneva Conventions apply, and then both sides, even the

    20 victim of aggression can commit international crimes.

    21 But that, what you quoted here,

    22 Mr. Prosecutor, it may be the proof of an unlawful

    23 intervention by Croatia, internal armed conflict in

    24 Bosnia-Herzegovina which was not authorised by the U.N.

    25 Security Council. But many unlawful armed

  36. 1 interventions do not generate into international armed

    2 conflicts.

    3 I am still of a view that there was an

    4 internal armed conflict in Bosnia-Herzegovina between

    5 HVO and the army of Bosnia-Herzegovina, and perhaps you

    6 have some evidence that in some periods temporarily

    7 there were some fractions of the Croatian army present

    8 in Bosnia-Herzegovina, but that's very far from an

    9 international armed conflict. Even the passage you

    10 quoted finishes that the "government of the Republic of

    11 Bosnia-Herzegovina will be forced to turn to the

    12 international community and request protection from the

    13 aggression." It's not said "international armed

    14 conflict." Your document is dated, I don't see a date,

    15 it's dated -- maybe you know the date of the document.

    16 13th of May 1993.

    17 The declarations and letters of the permanent

    18 representative of Bosnia-Herzegovina in the United

    19 Nations are also acts of state. And I can quote you a

    20 letter dated on 21st of April, 1993 from the permanent

    21 representative of Bosnia-Herzegovina to the United

    22 Nations, to the president of the Security Council, of

    23 21st of April, 1993. I will quote you some parts of

    24 this letter.

    25 Q. Excuse me, we may come to that letter in a

  37. 1 few minutes if you could refrain for a few minutes.

    2 A. All right, you are in privileged position

    3 here.

    4 Q. As professors often times --

    5 JUDGE JORDA: I would like things to be clear

    6 here. The people who have a privileged position is the

    7 Judges. This is the second time that you consider one

    8 of the parties has a privileged position. Let me

    9 remind you this is a specific procedure, that is one of

    10 the International Criminal Tribunal, which has its own

    11 procedures, different from others. We are the

    12 guardians of equitable proceedings, Professor. I did

    13 not interrupt you, but I do not accept you saying that

    14 the Prosecutor has a privileged position, only the

    15 Judges do.

    16 A. I beg your pardon, but if you allow, I would

    17 like to cite sections of that letter.

    18 JUDGE JORDA: Well, go ahead, cite them if

    19 you want to, but please don't forget that you must

    20 answer the Prosecutor's questions. It is not to give

    21 him a privilege. He is asking questions and you have

    22 to answer. And, of course, you will answer taking as

    23 much time as you consider necessary for the details you

    24 want to provide in your answer. Proceed, please.

    25 A. Thank you, Your Honour. "The recent reports

  38. 1 of the conflict between the Bosnia and Herzegovina army

    2 and the Croatian Defence Council have been greatly

    3 exaggerated as an ethnic conflict between Muslim and

    4 Croats. This fighting is not a conflict based along

    5 ethnic lines; rather, it is a conflict which is a

    6 consequence of the international communities arms

    7 embargo on Bosnia and Herzegovina and the International

    8 Community's failure to provide adequate humanitarian

    9 assistance to the besieged population in Central Bosnia

    10 and Herzegovina. This arms embargo denies both Muslims

    11 and Croats adequate defence capabilities in the face of

    12 barbarous aggression from Serbia and Montenegro. The

    13 arms embargo and the lack of adequate sustenance pits

    14 neighbour against neighbour for control of scarce

    15 resources. If the two armies had adequate defence

    16 capabilities, and if the population in Central Bosnia

    17 were adequately assisted with humanitarian needs,

    18 conflict between local leaders would have never

    19 occurred."

    20 Thank you, Your Honour. I think it's my

    21 answer to the question of the Prosecution.

    22 MR. HARMON: Let me show you another

    23 document, if I could. And this document, Professor

    24 Degan, is dated September the 4th, 1993, and you will

    25 have a copy of it in front of you in just a minute.

  39. 1 THE REGISTRAR: This is document 557.

    2 MR. HARMON:

    3 Q. This document, Professor Degan, is dated

    4 September 4, 1993 from a member of the presidency of

    5 the Republic of Bosnia and Herzegovina, and it is it

    6 addressed to UNPROFOR BH command, and UNPROFOR

    7 headquarters for the former Yugoslavia. And if you

    8 will take just a moment to read it.

    9 Professor Degan, this document, again, in

    10 light of my previous questions, was there a recognition

    11 of the existence of hostilities between the two

    12 countries? This is a letter that is from the

    13 individual who was a member of the Bosnian presidency,

    14 and he describes, does he not in there, attacks by, in

    15 Bosnia and Herzegovina by members of the Croatian army

    16 and HVO forces?

    17 I direct your attention to the second full

    18 paragraph.

    19 A. May I comment?

    20 Q. Please.

    21 A. Yeah, here is also mentioned only the term

    22 "Aggression" not "international armed conflict". It

    23 dates 4th of September, 1993.

    24 Mr. President, with your permission, I can

    25 quote another document issued not by one of the parties

  40. 1 in that internal armed conflict, but by co-chairman

    2 Stoltenberg of 10th of January, 1994 on talks between

    3 presidents Izetbegovicvic --

    4 JUDGE JORDA: Excuse me, Professor. I have a

    5 procedural question. Mr. Hayman, your witness is

    6 citing documents which the judges don't have. Do you

    7 intend to present them? Because there is something

    8 inequitable here. The witness is answering through

    9 documents, that is his right, but he is the one who

    10 knows what is in the documents, he knows his own text,

    11 whereas we do not know anything.

    12 I would like to know how the Defence

    13 considers this call for documents which seem to be very

    14 interesting, to be of great interest to the Defence or

    15 the accused, but we don't have them. What is your

    16 opinion on that, Mr. Hayman?

    17 MR. HAYMAN: Mr. President, the witness has

    18 referenced a great many documents in his testimony we

    19 have not produced. The fact is it is very time

    20 consuming and it greatly lengthens the proceeding to

    21 inundate the Tribunal with documents. The tack that

    22 the Prosecutor is taking currently is asking the

    23 witness "Aren't these documents that tend to indicate

    24 armed conflict between Croatia and Bosnia-Herzegovina,"

    25 which is an empirical question, what do documents

  41. 1 reflect, and the witness quite appropriately is

    2 responding with similar empirical material concerning

    3 what other documents contain.

    4 I haven't seen the document he is

    5 referencing. This is, I think, the nature of the

    6 testimony.

    7 JUDGE JORDA: No objection, Mr. Harmon?

    8 MR. HARMON: I am going to object at some

    9 point in time, Mr. President, I ask the witness a

    10 question, he doesn't answer my question but he refers

    11 to other documents. I would like him to focus on the

    12 question that I asked him.

    13 JUDGE JORDA: What I would like is for you to

    14 focus on the answer. If you need to refer to documents

    15 you can do so, but refer to them -- only first of all

    16 give us your answer.

    17 A. Thank you, Your Honour. My answer is that in

    18 the document the Prosecution presented to this Trial

    19 Chamber mentions inter alia, "to put an end to the

    20 aggression against our country as soon as possible."

    21 It was alleged that in some parts of Bosnia-Herzegovina

    22 with Muslim population, they were attacked by over

    23 5.000 members of the Croatian army and HVO forces.

    24 This is a document by one side in an internal

    25 armed conflict. Even by those data, if they were

  42. 1 accurate, nobody can prove that there was an

    2 international armed conflict between Croatia and

    3 Bosnia-Herzegovina, if those data were accurate, then

    4 it would be again an unlawful armed intervention by the

    5 units of Croatian army in Bosnia-Herzegovina.

    6 For instance, the United States intervened in

    7 many other countries and probably most of those armed

    8 interventions were acts of aggression, but they did not

    9 bring it to international armed conflicts. Thank you.

    10 That's my answer, Mr. President.

    11 MR. HARMON:

    12 Q. Professor Degan, in addition to these

    13 examples wherein the government of the Republic of

    14 Bosnia and Herzegovina was indicating that there were

    15 hostilities between forces of the Republic of Croatia

    16 and their own forces, there were United Nations

    17 resolutions demanding the withdrawal of Croatian troops

    18 from Bosnia and Herzegovina. And I specifically refer

    19 to resolution 752 dated the 15th of May, 1992 and U.N.

    20 Security Council 787, also making a similar demand.

    21 Have you seen those resolutions?

    22 A. I know those resolutions, but they relate to

    23 the time which precedes the critical period for which

    24 General Blaskic was accused.

    25 Q. Now, you agree, do you not, you don't dispute

  43. 1 that the United Nations in two resolutions demanded

    2 that Croatian army forces be withdrawn from the

    3 Republic of Bosnia and Herzegovina?

    4 A. Mr. Prosecutor, I agree, there is resolution

    5 787 of 16th of November, 1992, but perhaps it relates

    6 to the crime of General Blaskic, but I am not sure in

    7 that.

    8 Q. Let me show you, if I could, a document which

    9 is found, it's Prosecutor's Exhibit 406/95.

    10 JUDGE JORDA: If you don't have enough copies

    11 for everybody, put it on the ELMO so that the Judges

    12 can see it, because we don't have the document.

    13 MR. HARMON:

    14 Q. This, Professor Degan, is a letter dated the

    15 28th of January, 1994, from the permanent

    16 representative of Bosnia and Herzegovina to the United

    17 Nations, addressed to the president of the Security

    18 Council. You will see attached to the second page an

    19 annex, and you will see on the annex there is a

    20 description of the military intervention of the armed

    21 forces of the Republic of Croatia against the sovereign

    22 and independent Republic of Bosnia and Herzegovina.

    23 And you will see in reviewing that particular document

    24 dated the 28th of January, 1994, a description of the

    25 units from the Republic of Croatia that were in the

  44. 1 Republic of Bosnia and Herzegovina. And you will see,

    2 sir, the last paragraph, and I will quote the last

    3 paragraph, "We express our deepest concern about such

    4 an extent of military intervention of the Republic of

    5 Croatia in the Republic of Bosnia and Herzegovina and

    6 request that Security Council to firmly condemn such

    7 activities and take all necessary measures in

    8 accordance with the provisions of Chapter 7 of the

    9 United Nations charter and all the relevant general

    10 assembly and Security Council resolutions."

    11 So, Professor Degan, you have cited some

    12 examples of, in Libya, an example of an intervention in

    13 Libya, which consisted of, as I recall, a single

    14 bombing incident. You have cited an example of

    15 Afghanistan attacked by the United States on alleged

    16 terrorist camps in Afghanistan which consisted of a

    17 single bombing attack. And you have now seen three

    18 documents I have shown you, the earliest document is

    19 May 13th, 1993, these are examples, and the latest

    20 document is a letter dated the 28th of January, 1994,

    21 and you have seen two Security Council resolutions,

    22 those being resolution 752 and 787 dealing with

    23 Croatian troops present in the Republic of Bosnia and

    24 Herzegovina.

    25 And my question to you, Professor Degan, is:

  45. 1 Was there a recognition both by the states themselves,

    2 by Bosnia and by the United Nations, that hostilities

    3 between two sovereign states was, in fact, occurring?

    4 A. No, Mr. Prosecutor, that was a letter of one

    5 side. Perhaps there were present some troops of

    6 Croatian army, but I tried to prove before this

    7 Tribunal that an element of an international armed

    8 conflict should be its protracted character in time and

    9 intensity.

    10 With your permission, Mr. President, I would

    11 now quote Mr. Thorvald Stoltenberg's report, which

    12 dates almost at the same time.

    13 MR. HARMON: Mr. President, if we could have

    14 a copy of that report before Professor Degan quotes it,

    15 then I might be able to ask questions of Professor

    16 Degan in respect of that particular report. I find

    17 myself disadvantaged.

    18 A. May I add a comment, Mr. President?

    19 JUDGE JORDA: Yes, you may, but let me remind

    20 you though the Judges don't have this report. We would

    21 like to have it. Perhaps we should suspend so we could

    22 have it.

    23 A. Mr. President, General Blaskic was accused

    24 for grave breaches of Geneva Conventions in that very

    25 closed area of his responsibility, which was besieged

  46. 1 by the army of Bosnia-Herzegovina. There was no

    2 presence of troops of the Croatian army, that region of

    3 responsibility of General Blaskic. To accuse

    4 General Blaskic for consequences of the presence of

    5 Croatian troops in other parts of Bosnia-Herzegovina

    6 would be tantamount to accusing him for the crime of

    7 aggression, and Mr. Blaskic was of so low of a

    8 commanding position that he cannot be guilty of --

    9 JUDGE JORDA: Professor, let me remind you, I

    10 don't want to have to do it again, you're not here as

    11 the Defence counsel for the accused. He has his

    12 counsel, and they will argue in respect of the

    13 documents that have been provided here. You are a

    14 Defence witness. Let me remind you to remain within

    15 the scope of your testimony for the Defence.

    16 However, if you rely significantly on this

    17 report, the Prosecution doesn't have it, and apparently

    18 the Defence doesn't have it either, neither do the

    19 Judges, and we would like to have the report.

    20 A. I -- again --

    21 JUDGE JORDA: No, that's not it. If you're

    22 going to base yourself on the report, could you give it

    23 to the Defence, the Prosecution, unless you decide not

    24 to use it.

    25 MR. HAYMAN: Maybe it can be put on the ELMO

  47. 1 and he can read from it, Mr. President. That way

    2 everyone can see what he's reading from and we can

    3 proceed. That's fine.

    4 MR. HARMON: Mr. President, I would still

    5 like a copy of any report that Professor Degan reads

    6 from, so I can look at the rest of the report, those

    7 portions he has not read from.

    8 MR. HAYMAN: Mr. President, I just want to

    9 note that there have been lots of occasions in this

    10 trial where the Prosecutor or indeed I have asked a

    11 question and quoted a document or a source. It does

    12 not automatically follow, therefore, that we have to

    13 suspend the hearing, make copies and circulate it for

    14 everyone. I have no problem providing this document.

    15 I haven't see it, I don't know exactly what it is, the

    16 Professor has far-ranging factual knowledge, but I

    17 suggest we can put it on the ELMO and we can read from

    18 it.

    19 JUDGE JORDA: All right. We're going to put

    20 the document on the ELMO, but it must be provided to

    21 the Prosecution, and it will appear in the Judges' case

    22 file under a number that the registrar will give us.

    23 For the time being we can continue the proceedings.

    24 I would ask the Professor, who speaks French

    25 very well, perhaps he could put his headset on, because

  48. 1 apparently I'm not sure he heard what I have to say,

    2 and I really want you to hear what I have to say.

    3 That's my privilege, my little privilege. Therefore,

    4 please put the headset on. You speak French very well,

    5 but sometimes you don't quite hear what I'm saying. So

    6 if you don't mind, please put on the headset and I

    7 think that will facilitate everybody's work.

    8 For the time being we will resume the

    9 proceedings, and then the report will be provided to

    10 the Prosecution and will appear in the Judges' case

    11 file. All right. We want to hear what you have to

    12 say, Professor. I'm sure that you understand me even

    13 better now.

    14 A. Thank you. No, in English.

    15 JUDGE JORDA: Proceed, please.

    16 A. This was the report by Thorvald Stoltenberg

    17 of 10th of January, 1994 on talks in Bonn between

    18 President Itzebegovic and Tudjman. I'll quote

    19 paragraphs 3 and 4. Paragraph 4 is more important. In

    20 paragraph 3 it's written: "President Tudjman, in his

    21 draft treaty on future relations between Croat and

    22 Muslims, advanced the idea of a confederation between

    23 the Republic of Croatia and the Muslims and Croat parts

    24 of Bosnia-Herzegovina. Nevertheless, he would like to

    25 see the boundaries defined between the areas allocated

  49. 1 to the Bosnian Croats and the Bosnian Muslims.

    2 President Itzebegovic, on the other hand, is not in

    3 favour of such a delimitation but would like to achieve

    4 agreement that the two components should have around 51

    5 per cent of the territory of Bosnia-Herzegovina. Each

    6 side maintained its position on that issue."

    7 The paragraph 4 is more important, because it

    8 directly relates to the responsibility of

    9 General Blaskic: "On Central Bosnia, President

    10 Itzebegovic would clearly like to have Croat pockets

    11 such as Vitez, Busovaca, Kiseljak, Kresevo, Vares, Novi

    12 Travnik, Fojnica and Gornji Vakuf included in the

    13 Muslim majority area. President Tudjman, for his part,

    14 is not prepared to concede this. Part of the problem

    15 has to do with a munitions factory at Vitez and three

    16 munition factories at Novi Travnik that each side would

    17 like to have. President Itzebegovic openly expressed

    18 his determination to fight for the plant at Vitez,

    19 while President Tudjman was equally firm that he could

    20 not have it. Both sides are aware that current BiH

    21 offences against Vitez have this objective in mind."

    22 I find -- there is, I think, another --

    23 yeah.

    24 In point seven, second page. That's the

    25 conclusion: "The Muslims having scored victories in

  50. 1 Central Bosnia and knowing that the Serbs are under the

    2 burden of sanctions, are demonstrating confidence in

    3 their ability to win more territories through military

    4 action. Indications from various capitals that all

    5 parties must co-operate in the search for a negotiated

    6 settlement have come at the same time as calls have

    7 been voiced in the NATO summit for more vigorous

    8 military action ."

    9 So those quotations go in favour of innocence

    10 of General Blaskic, but I'll not comment anymore.

    11 MR. HARMON:

    12 Q. Now, Professor Degan, during the war in 1993

    13 in Bosnia, did you ever travel to Bosnia?

    14 A. Unfortunately I did not, but if you are

    15 interested in my personal situation, my mother lived in

    16 Sarajevo, and she died in January 1995 when the city

    17 was still besieged. I could not penetrate to the city

    18 for the funeral of my mother. She was victim of

    19 aggression from surrounding mountains of the Serbian

    20 part. I have some other very sorry experience of my

    21 sister's destiny. Her only son perished in the battle

    22 of Herzegovina, but it's better that I do not explain.

    23 I can only say I was for the first time in

    24 Sarajevo two years ago. Thank you.

    25 Q. Professor, do you know the extent to which

  51. 1 Croatia had its troops in Bosnia and Herzegovina?

    2 A. Only from documents.

    3 Q. Do you know the geographic extent of their

    4 penetration into Bosnia and Herzegovina?

    5 A. Some parts of Bosnia-Herzegovina I know

    6 better than others, and I know especially well the

    7 valley of Lasva where I passed my vacations -- summer

    8 vacations in 1946, '47, before General Blaskic was

    9 born. I know also the valley of Neretva. I passed it

    10 many times by car.

    11 Q. So when you testify today about your

    12 opinions, you are -- don't know the facts about how

    13 many Croatian army troops were deployed in the Republic

    14 of Bosnia and Herzegovina, how far those troops

    15 penetrated northward into Bosnia and Herzegovina; do

    16 you?

    17 A. I can only legally qualify the presence of

    18 troops of Croatian army in Bosnia-Herzegovina, and my

    19 conclusion is that it was not a protracted armed

    20 conflict between two states, it was unlawful armed

    21 intervention without authorisation of the U.N. Security

    22 Council.

    23 Q. Now, let me ask you, you also testified about

    24 various agreements that existed between the Republic of

    25 Croatia and the Republic of Bosnia and Herzegovina, and

  52. 1 you cited an agreement on friendship and co-operation.

    2 A. Yes.

    3 Q. Was that a treaty or was that an agreement,

    4 and is there a difference in International Law?

    5 A. As I understood, it was a treaty governed by

    6 the 1969 Vienna Convention on the Law of Treaties.

    7 There is not such a difference from the point of view

    8 of Public International Law, between agreements and

    9 treaties. There is some difference in the American

    10 practice but not in International Law practice.

    11 Q. Have you seen a copy of that Agreement on

    12 Friendship and Co-operation?

    13 A. Yes, I read it.

    14 Q. Now, can you tell the Court what other

    15 treaties existed between Bosnia and Herzegovina and

    16 Croatia in 1993?

    17 A. I -- Mr. President, I quoted all of that

    18 which I collected from the Croatian Ministry of Foreign

    19 Affairs, and I can quote them again.

    20 Q. Please, tell me what they are.

    21 A. I read a few.

    22 Q. Just tell me what they are.

    23 A. Just a moment. Both countries were victims

    24 of aggression from the Federal Republic of Yugoslavia.

    25 Both countries got their independence in that very

  53. 1 unhappy time for both of them, and because the treaties

    2 of the predecessor state do not regulate the bilateral

    3 relations between successor states, a new set of

    4 treaties must be concluded between all successor

    5 states. In this respect, I find -- I'll find. Just a

    6 moment. There were very few treaties before January

    7 1993. Just a moment.

    8 I mentioned the agreement between

    9 governments -- I mentioned the agreement between

    10 governments of Bosnia-Herzegovina and Croatia before

    11 the international recognition of Bosnia-Herzegovina and

    12 before of proclamation of Bosnia-Herzegovina, so one

    13 can suspect, in the real nature of that agreement, it's

    14 of -- it's of -- I think in -- on refugees in Croatia.

    15 I mentioned that treaty -- excuse me. I

    16 cannot find here everything I wanted.

    17 There was an agreement of 14th of April that

    18 the diplomatic and consular missions of Croatia and

    19 Bosnia-Herzegovina abroad will protect interests of

    20 nationals of the other state party where only one of

    21 them had such a mission. I know personally that that

    22 agreement was applied, because at that very time I

    23 was -- I happened to be in Brussels at the conference

    24 on former Yugoslavia. The representatives of

    25 Bosnia-Herzegovina and Croatia in that city were in

  54. 1 close co-operation.

    2 Then came the Agreement of Friendship and

    3 Co-operation of 21st July, 1992. After it, 25th of

    4 July agreement on establishment of diplomatic relations

    5 between two states.

    6 As I know, until January 1993 there were no

    7 other bilateral treaties, but for the -- for the

    8 existence of the international armed conflict,

    9 important is the faith of those bilateral treaties in a

    10 situation of an armed conflict like that which happened

    11 in Bosnia-Herzegovina. No party cancelled any of those

    12 agreements.

    13 Q. So your testimony, in response to my

    14 question, was there were very few such agreements,

    15 perhaps two or three at the most?

    16 A. Probably four or five.

    17 Q. Four or five. All right. Now, let me ask

    18 you: You said that at the outbreak of hostilities,

    19 certainly normal diplomatic relations is a measure of

    20 whether or not there is or is not international armed

    21 conflict. Were you aware, Professor Degan, that after

    22 the embassy of Bosnia and Herzegovina was established

    23 in Zagreb, that the funds supporting that mission in

    24 Zagreb were seized?

    25 A. I didn't know. I don't know for that.

  55. 1 Q. Now, is the seizure of funds of a diplomatic

    2 mission in Croatia normal? Is that an indication that

    3 diplomatic relations between the two sovereign states

    4 is conducted in a normal fashion?

    5 A. If it really happened, then it would be in

    6 breach of the 1961 Vienna Convention of diplomatic --

    7 of diplomatic relations. I don't know for that what

    8 you allege here, but even if such an unlawful act was

    9 committed, it did not bring to the rupture of

    10 diplomatic relations.

    11 Q. Now, you testified as well that the citizens

    12 who -- from Bosnia and Herzegovina, the Muslims who

    13 found refuge in the Republic of Croatia, you said that

    14 no citizen was forcibly repatriated; is that correct?

    15 A. They were not forcefully repatriated to

    16 Bosnia-Herzegovina, and that was the practice of

    17 belligerents in two world wars or even in French

    18 Prussian war of 1870, '71. Most of them wanted to go

    19 to third states, that's true, but that's not a measure

    20 of a belligerent state if it allows them to go, for

    21 instance, to Germany or to Switzerland.

    22 Q. Can it force them to go to a third state?

    23 A. That you allege, not me.

    24 Q. I'm not alleging anything, Professor.

    25 A. Probably.

  56. 1 Q. I'm asking you if a state can forcibly send

    2 citizens who seek refuge into in this case the Republic

    3 of Croatia, can send those citizens to a third state?

    4 A. Croatia, in that very time, do you think it

    5 was -- it happened in 1992 or 1993?

    6 Q. 1993.

    7 A. 1993. Still the situation with a mass of

    8 displaced persons and refugees in Croatia was

    9 difficult. Croatia got some help for refugees and

    10 those persons, but there were too many, that perhaps

    11 something happened what you said here, I don't know.

    12 Q. Is it your testimony --

    13 A. It was not -- it was not an act of a

    14 belligerent state.

    15 Q. Is it your testimony that Croatia did not

    16 repatriate back to Bosnia any Muslim refugees in 1993?

    17 A. As I know, it did not.

    18 Q. Now, let me ask you, you testified that

    19 Croatia also supplied arms to --

    20 A. Yes.

    21 Q. -- Bosnia and Herzegovina, and you indicated

    22 that that was an indication of normal state relations?

    23 A. Yes.

    24 Q. Are you aware, Professor, that when the

    25 Bosnian -- Croat Bosnian Muslim war broke out that the

  57. 1 Republic of Croatia stopped sending arms to the Bosnian

    2 Muslim forces?

    3 A. The Defence counsel told me they had two

    4 testimonies which will follow me who will talk about

    5 that problem. Certainly I am not a person to testify

    6 to that.

    7 Q. Let me show you some documents as my next

    8 exhibit, and while these are being prepared perhaps,

    9 Mr. President, we could go into private session with

    10 these particular documents.

    11 JUDGE JORDA: All right. It's almost five to

    12 one. Do you have a lot of questions? I suppose quite

    13 a few.

    14 MR. HARMON: On these documents,

    15 Mr. President, it will just take a few minutes, but I

    16 think it's best we proceed in private session.

    17 JUDGE JORDA: All right, we'll move into

    18 private session.

    19 (Private session)

    20 (redacted)

    21 (redacted)

    22 (redacted)

    23 (redacted)

    24 (redacted)

    25 (redacted)

  58. 1












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  59. 1 --- On resuming at 2.35 p.m.

    2 (Open session)

    3 JUDGE JORDA: Resume the hearing now.

    4 Registrar, have the accused brought in, please.

    5 (The accused entered court)

    6 JUDGE JORDA: And have the witness brought in

    7 as well, please, Professor Degan.

    8 (The witness entered court)

    9 JUDGE JORDA: Good afternoon, Professor, have

    10 you rested up a bit? Is everything all right? All

    11 right, we will continue with the cross-examination.

    12 Mr. Harmon.

    13 MR. HARMON:

    14 Q. Yes, thank you, good afternoon Mr. President,

    15 Judge Shahabuddeen, Counsel, and good afternoon

    16 Professor Degan.

    17 A. Good afternoon, sir.

    18 Q. During your testimony you stated that, and

    19 I'm quoting you from the transcript on your point A,

    20 "The outbreak of war has as its immediate effect

    21 rupture of diplomatic and consular relations between

    22 belligerent states. Nothing similar happened between

    23 Bosnia-Herzegovina and Croatia. Embassies of the two

    24 states of Zagreb and Sarajevo respectively exercised

    25 unimpeded all of their functions since the

  60. 1 establishment of diplomatic relations near the end of

    2 1992."

    3 If I could have the assistance of the usher,

    4 I would like to pass out the next exhibit.

    5 THE REGISTRAR: This is document 559.

    6 MR. HARMON:

    7 Q. Professor Degan, this document consists of

    8 two documents appended together. The first is a

    9 communication from the ambassador of Bosnia and

    10 Herzegovina in Croatia to the president of the

    11 presidency, Mr. Alija Izetbegovic. And she indicates

    12 in her letter, "Please find attached information of the

    13 freezing of the account of the embassy which in effect

    14 renders the operation of the embassy impossible." And

    15 this is dated January the 7th, 1994.

    16 Now, the second part of this document, please

    17 take some time to read it.

    18 A. Do you have a text in English? It's more

    19 useful to me.

    20 Q. I have a translation that is unofficial,

    21 so --

    22 A. All right, then I will look at the original.

    23 Q. Yes, please.

    24 JUDGE JORDA: Do you have relevant parts that

    25 you want to have read out? Because the Judges would

  61. 1 like to have the translation once the witness has

    2 looked at the document.

    3 MR. HARMON: Perhaps we could put it on the

    4 ELMO and the interpreters could read the second -- is

    5 it possible that the interpretation booth could read

    6 this document in French and in English?

    7 THE INTERPRETER: The entire document?

    8 JUDGE JORDA: If you allow for the transcript

    9 it would be better that somebody in the courtroom were

    10 to read the document and then if possible we could ask

    11 the witness to read it.

    12 MR. HARMON: I will ask the witness to assist

    13 us in reading the document.

    14 JUDGE JORDA: Or Mr. Nobilo.

    15 MR. HARMON:

    16 Q. Thank you, Professor, if you would read the

    17 document, both documents, then, starting with --

    18 A. I have two pieces, but I think that's one

    19 document.

    20 Q. Could you read the first page of the

    21 document, the short letter?

    22 THE INTERPRETER: I'm sorry, this is not the

    23 document we have on the ELMO. This is not the

    24 document.

    25 MR. HARMON: I need to put another document

  62. 1 on the ELMO, first, the first page. We are now in a

    2 position if you would kindly assist us in reading the

    3 document.

    4 THE REGISTRAR: Let me also remind the

    5 witness that he should read slowly, a bit more slowly

    6 than he was doing, for the interpreters.

    7 A. That document was addressed to the president

    8 of presidency of Bosnia-Herzegovina, Mr. Izetbegovic,

    9 to the government of the Republic of Bosnia-Herzegovina

    10 and to the Minister of Foreign Affairs who was at the

    11 time Mr. Ivan Ljubjankic.

    12 Now I proceed reading each in original Croat

    13 or Bosnian language.

    14 "Please find attached information concerning

    15 the freezing of the account of the embassy which

    16 practically makes it impossible for the embassy to

    17 operate."

    18 The document is dated 7th of January, 1994.

    19 "Embassy of the Republic of Bosnia and

    20 Herzegovina, Zagreb. Reference: Explanation of the

    21 impossibility of allocating resources from the

    22 nonresidential account of the embassy of the Republic

    23 of Bosnia and Herzegovina in Zagreb because the

    24 resources were blocked on the 6th of January, 1994.

    25 "On the 6th of January, 1994, the embassy of

  63. 1 the Republic of Bosnia and Herzegovina was informed by

    2 Zagrebicka Banka, a bank, address Savska number 60,

    3 foreign services department. The council of legal

    4 officers of the mentioned bank passed a decision to

    5 block the resources on the nonresidential account of

    6 the embassy of the Republic of Bosnia and Herzegovina

    7 up to 260.202 Deutschemark, German marks. The decision

    8 was passed on the basis of the ruling of the district

    9 economic court in Zagreb, number R1, 162/93, on the

    10 basis of reference number 393387/93. Proceedings

    11 related to this have not been completed yet. From a

    12 economic point of view the embassy of the Republic of

    13 Bosnia and Herzegovina in Zagreb is not in a position

    14 to use its own resources on this account or the

    15 resources from possible inflows which makes it totally

    16 impossible to operate on the territory of the Republic

    17 of Croatia. Also the fact should be highlighted that

    18 foreign exchange payments in cash are in contravention

    19 of the legal provisions of the Republic of Croatia from

    20 this field and the cash payments in the currency of the

    21 Republic of Croatia, the Croatian dinar, makes it

    22 impossible for the embassy of Bosnia and Herzegovina to

    23 use tax facilities as a diplomatic representation and

    24 tax alleviation to which it is entitled. Otherwise,

    25 all enterprises have to take a certain amount of cash

  64. 1 payments by way of a tax up to a certain percentage

    2 depending on the goods being purchased. In addition to

    3 that, even in the case of cash payments without tax

    4 facilities or tax exemptions it is very difficult to

    5 provide for the conversion of larger sums of foreign

    6 currencies into the currency of the Republic of Croatia

    7 in official exchange offices. The accounting

    8 department of the embassy of the Republic of Bosnia and

    9 Herzegovina."

    10 INTERPRETER: The date is not on the ELMO.

    11 MR. HARMON:

    12 Q. Thank you very much for your assistance,

    13 Professor Degan. Let me ask you some questions about

    14 this document now and then I will permit you to make

    15 some comments on the document. But first of all, this

    16 document shows there was apparently a domestic court

    17 decision that attached some kind of a lien against the

    18 assets of the Bosnian embassy. Do you agree with me on

    19 that?

    20 A. This document proves that a bank blocked the

    21 funds, and it's obviously in violation of the 1961

    22 Vienna Convention on diplomatic relations. It is not

    23 the act of state. And that is what I could also

    24 comment, is that it happened on 7th of January, 1994.

    25 That's just before the time of the Washington agreement

  65. 1 with which the armed conflict in Bosnia-Herzegovina was

    2 stopped.

    3 Q. Let me ask you, are you aware that this, that

    4 in spite of repeated requests by the Bosnian embassy to

    5 the Croatian embassy that those funds remained frozen

    6 for at least eight months?

    7 A. I don't see it from this text.

    8 Q. I'm giving you information and asking you, in

    9 respect of the information that I have provided you,

    10 while this does not appear to be an act of state,

    11 should the state immediately regulate a problem of this

    12 nature involving an embassy of a separate sovereign

    13 state?

    14 A. The state was obliged to prevent such acts,

    15 but -- can I add? I don't see the personal

    16 responsibility of Mr. Blaskic in the Lasva Valley for

    17 such an unlawful act.

    18 Q. I can assure you he didn't seize these

    19 funds.

    20 JUDGE JORDA: That's not the question that

    21 was asked of you, Professor. You're very adroit, but

    22 that is not quite the question he asked.

    23 MR. HARMON:

    24 Q. Let me change the subject to a different

    25 direction and ask you, Professor Degan, if in 1993, was

  66. 1 there, in fact, a war going on in the Lasva Valley

    2 between forces of the Bosnian government and the HVO?

    3 A. Yes, it was an internal armed conflict

    4 between the army of Bosnia-Herzegovina and the HVO.

    5 Q. Was Croatia allied with the HVO in that

    6 conflict?

    7 A. I think it was unhappily involved in such an

    8 internal armed conflict, it was involved on both sides

    9 but mostly on the part of the HVO.

    10 Q. So your testimony is that, as far as you

    11 know, in the conflict between the Bosnian Muslims and

    12 the Bosnian Croats, the Republic of Croatia supported

    13 the HVO?

    14 A. I was told that at that time there was some

    15 help at least for passage of arms of ammunition through

    16 Croatian territory to the other side in the conflict.

    17 Q. Do you know, though, aside from what you were

    18 told, whether the Republic of Croatia, which side of

    19 the conflict the Republic of Croatia supported in 1993?

    20 A. It was in between, but it was mostly friendly

    21 to the HVO.

    22 Q. Now, let me ask you, then, do you know who

    23 General Bobetko is?

    24 A. Yes.

    25 Q. General Bobetko is a Croatian General who was

  67. 1 appointed as the commander of the southern front --

    2 A. Yes.

    3 Q. Commanding Croatian units in the southern

    4 front; is that correct?

    5 A. Yes.

    6 Q. Now, let me show you Exhibit 406/10.

    7 Mr. Dubuisson, while this is being shown on

    8 the ELMO, if you could get 406/16 and 406/20, it would

    9 expedite the matter.

    10 Professor, you have in front of you

    11 Prosecutor's Exhibit 406/10, and this is an order dated

    12 the 20th of April, 1992 by General Bobetko, and in it

    13 you will see and can see that General Bobetko appoints

    14 officers of the HVO.

    15 A. Yes.

    16 Q. I would very much appreciate your views on

    17 this particular document, given that this is a Croatian

    18 General appointing Bosnian Croats to positions within a

    19 military of a separate sovereign state. What is your

    20 view on this, sir?

    21 A. My view is that it happened in time of joint

    22 operations of HVO and army of Bosnia-Herzegovina and

    23 Croatian army against Serbian forces. It was dated

    24 20th of April, 1992. And on this list I don't see the

    25 name of Mr. Blaskic.

  68. 1 Q. Okay, now if I could show you 406/16 and

    2 406/20. Professor, we will start with 406/16, it is a

    3 document dated the 19th of May 1992.

    4 A. Before the critical period.

    5 Q. And let me ask you, Professor, this is a

    6 document that establishes a command in Central Bosnia,

    7 in Gornji Vakuf, and it appoints Brigadier Zarko Tole

    8 as commander of that particular command.

    9 The second document, Professor, is dated the

    10 14th of June, 1992, and it is also from General

    11 Bobetko, and it is, if you turn to paragraph 3.1 on

    12 that document, it is an order for offensive operations

    13 in which General Bobetko orders forces of the HVO to

    14 move in certain directions and take certain actions in

    15 a military campaign. What is your reaction to these

    16 documents?

    17 A. My reaction is the same. It happened before

    18 the critical period for which the General Blaskic was

    19 accused, and that was the period of alliance of army of

    20 Bosnia and Herzegovina, HVO and Croatian army in the

    21 battle against the Serbian enemy. That's my comment,

    22 and I forgot.

    23 Q. Professor, did Croatian soldiers fight

    24 against Bosnian army forces in Bosnia in 1993?

    25 A. I saw some documents which prove the presence

  69. 1 of some units of the Croatian army, not in the Lasva

    2 Valley, but in some other parts of Herzegovina, and the

    3 border region between Bosnia and Herzegovina.

    4 Q. My question is not just the presence of

    5 Croatian soldiers in Bosnia, my question to you was:

    6 Did Croatian soldiers engage in armed conflict --

    7 A. Yes.

    8 Q. Against the forces of the legitimate

    9 government of Bosnia and Herzegovina?

    10 A. Yes, from those documents, it proceeds they

    11 were engaged in the battle. But it's the tricky

    12 question whether before that unhappy armed conflict

    13 both armies recognised themselves, and is the question

    14 whether even the government of Bosnia-Herzegovina

    15 recognised the HVO, and vice versa.

    16 But I must agree that the presence of some

    17 units of Croatian army, although they were probably

    18 mostly originating from Bosnia-Herzegovina, as I was,

    19 and although they were not very distinguishable from

    20 the HVO, was an unlawful armed intervention in that

    21 unhappy internal armed conflict.

    22 MR. HARMON: Mr. President, at this time I

    23 need to show the witness certain documents under seal,

    24 and if we could go into private session I would like to

    25 show him certain documents and ask for his comments.

  70. 1 Mr. Dubuisson?

    2 JUDGE JORDA: Objection?

    3 MR. HAYMAN: None.

    4 JUDGE JORDA: Very well. We'll move for --

    5 into a private session for a few moments.

    6 (Private session)

    7 (redacted)

    8 (redacted)

    9 (redacted)

    10 (redacted)

    11 (redacted)

    12 (redacted)

    13 (redacted)

    14 (redacted)

    15 (redacted)

    16 (redacted)

    17 (redacted)

    18 (redacted)

    19 (redacted)

    20 (redacted)

    21 (redacted)

    22 (redacted)

    23 (redacted)

    24 (redacted)

    25 (redacted)

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    2 (redacted)

    3 (redacted)

    4 (redacted)

    5 (redacted)

    6 (redacted)

    7 (redacted)

    8 (redacted)

    9 (redacted)

    10 (redacted)

    11 (redacted)

    12 (redacted)

    13 (redacted)

    14 (redacted)

    15 (redacted)

    16 (redacted)

    17 (redacted)

    18 (redacted)

    19 (redacted)

    20 (redacted)

    21 (redacted)

    22 (Open session)

    23 MR. HAYMAN:

    24 Q. Professor, you were asked about the conflict

    25 between Japan and China in 1938 and whether there was a

  2. 1 formal declaration of war in 1938. In that conflict

    2 were the other factors you've identified for an

    3 international armed conflict, other than a formal

    4 declaration of war, were they present?

    5 A. Yes. It was an ongoing armed conflict which

    6 in fact started in 1928 with the Japanese bombing of

    7 the city of Shanghai, and later on there was invasion

    8 and occupation of Manchuria and creation of a puppet

    9 state of Pandrakua, and if I remember well, in 1937

    10 there was a full-fledged offensive by Japanese army to

    11 the northern part of China, and they came to the bridge

    12 of Peking. They stopped, and then it was recognised by

    13 both states that war existed. In that specific

    14 conflict both parties had interests for the time being

    15 not to recognise the state of war.

    16 The Chinese government, both the quantities

    17 of arms from the United States, if they recognised the

    18 state of war because of the isolationist policy of the

    19 United States of that time, it would be stopped.

    20 On the other side, Japan did not want to

    21 recognise the war for not being aggressor in that war.

    22 So it was an unusual situation, and I can prove that

    23 the international armed conflict between Japan and

    24 China started at least 1937.

    25 MR. HAYMAN: I have a document if I could

  3. 1 have assistance to hand out, this is the letter of 21

    2 April, 1993 that the Professor referred to earlier in

    3 his testimony, and I wanted to put that into the record

    4 and have him identify it as such.

    5 JUDGE JORDA: Can we have the number for the

    6 Stoltenberg report that was requested by the Trial

    7 Chamber? What is the Defence number for that?

    8 THE REGISTRAR: For that document, the

    9 Stoltenberg report, it is D469; and this one is 470.

    10 JUDGE JORDA: Thank you.

    11 MR. HAYMAN:

    12 Q. Professor, I would like to ask you, is this

    13 the letter that you were referring to earlier in your

    14 cross-examination?

    15 A. Yes.

    16 Q. And would you agree in paragraph 4 of this

    17 letter that the permanent representative of

    18 Bosnia-Herzegovina to the United Nations at the time

    19 referred to the conflict in Central Bosnia as a

    20 conflict between local leaders?

    21 A. Yes.

    22 Q. Thank you.

    23 A. I quoted it.

    24 Q. You were asked about examples of military

    25 intervention, including unlawful military intervention,

  4. 1 as opposed to a state of international armed conflict,

    2 and the two examples mentioned by the Prosecutor were

    3 the American bombings of Libya and Afghanistan.

    4 Can you give the Court any other examples of

    5 military interventions, including unlawful military

    6 intervention, as distinguished from a state of

    7 international armed conflict?

    8 A. Certainly. For instance, the Soviet

    9 intervention in Prague, Czechoslovakia in 1968, it

    10 generated into an occupation of the country which did

    11 not last for a long time because there were some new

    12 agreements with the puppet Czechoslovak regime, and

    13 there were also armed interventions by the United

    14 States, in the Dominican Republic, 1965, that was an

    15 intervention of I think six member states of the

    16 organisation of American states, including the U.S.

    17 Army.

    18 There was an intervention in Grenada by the

    19 United States which lasted at least for some weeks in

    20 the period of the Reagan Administration. That which

    21 was the bloodiest was probably the American armed

    22 intervention of Panama. If I remember well, it

    23 happened 1980. It lasted for some time. The Panama

    24 City was bombed and there were many civilian

    25 casualties.

  5. 1 Q. Thank you for those additional examples. You

    2 were asked about provision of military assistance, and

    3 to what extent the existence of such aid or the absence

    4 of such aid may indicate the presence or absence of an

    5 international armed conflict.

    6 May it also be an indicia of the presence or

    7 absence of an international armed conflict if a state

    8 sells munitions to another state or if that state

    9 allows the transhipment of munitions through its

    10 territory to the other state? Could you comment?

    11 A. It would be proof to the opposite.

    12 Q. Namely?

    13 A. For instance, the United States massively

    14 helped Israel, by arms and credits, and Israel

    15 committed some acts of unlawful intervention against

    16 third states, mostly in Lebanon, but there were not

    17 acts of the United States government.

    18 Q. Now, let me ask you about the reverse, that

    19 is, if, for example, Croatia, in 1993, did not donate

    20 arms to the BH army, but if they allowed the

    21 transhipment of arms through the Croatian territory to

    22 the BH army and sold arms to the BH army, is that an

    23 indicia in any way of the presence or absence of an

    24 international armed conflict between Croatia and

    25 Bosnia-Herzegovina?

  6. 1 A. It was a proof of the absence of the armed

    2 conflict between those two sovereign states.

    3 Q. Thank you, Professor.

    4 MR. HAYMAN: I have no further questions, Mr.

    5 President.

    6 JUDGE JORDA: Thank you very much,

    7 Mr. Hayman. Let me now turn to my colleague, Judge

    8 Shahabuddeen. Now you're going to answer questions

    9 that the Judge wishes to ask you.

    10 JUDGE SHAHABUDDEEN: Professor Degan, I would

    11 like personally to welcome you and to thank you for the

    12 help which you have come to give the Court in

    13 unravelling and understanding many of the complicated

    14 issues in a relatively mysterious area of law. Thank

    15 you.

    16 Now, would I be right, sir, in understanding

    17 your presentation?

    18 A. Pardon?

    19 JUDGE SHAHABUDDEEN: In understanding your

    20 presentation -- perhaps you would like to put on the

    21 earphone, because I'm a chronically soft speaker. I

    22 ought to apologise to you.

    23 Would I be right in understanding your

    24 presentation to be based essentially on the distinction

    25 between an international armed conflict and an armed

  7. 1 intervention?

    2 A. Yes. In fact, armed intervention is an

    3 unlawful act if it's not authorised by the Security

    4 Council or if it doesn't happen in self-defence. I

    5 tried to explain here that some sorts of armed

    6 intervention can generate into international armed

    7 conflicts, but not all.

    8 JUDGE SHAHABUDDEEN: I give you time to think

    9 it out, not that you need to think it out.

    10 A. But we should also discuss the different

    11 levels of intervention in International Law.

    12 JUDGE SHAHABUDDEEN: Well, Professor, would I

    13 also be right in thinking that your application of that

    14 distinction to the facts of this case, as you

    15 understand the facts, means this: Yes, Croatia had

    16 armed forces within Bosnia-Herzegovina, but that

    17 amounted not to an international armed conflict but

    18 only to armed intervention; is that your position?

    19 A. Yes, my position was that it was probably an

    20 unlawful armed intervention.

    21 JUDGE SHAHABUDDEEN: Then would I also be

    22 right, sir, in understanding you to mean that in

    23 determining whether there was an international armed

    24 conflict, two criteria were applicable. One, the

    25 duration in time of the relationship of hostility; and

  8. 1 two, the intensity of the hostility?

    2 A. I tried to explain that there are many

    3 elements, some elements of existence of international

    4 armed conflicts are provided in Article 2 of the 1949

    5 Geneva Conventions, and one in Article -- first of the

    6 protocol of 1977, and I added some other criteria, so

    7 the sum, or all those criteria applied on the actual

    8 situation could lead to a conclusion whether an

    9 international armed conflict existed or not.

    10 JUDGE SHAHABUDDEEN: I accept that. May I

    11 rephrase it this way: That your presentation suggested

    12 that two of the most applicable criteria in the

    13 circumstances of this case were, one, the duration in

    14 time of the hostilities, and two, the intensity of the

    15 hostilities?

    16 A. They are among other criteria. I tried to

    17 prove on the basis of some other criteria from the

    18 wartime practice that it was not an international armed

    19 conflict.

    20 JUDGE SHAHABUDDEEN: In other words, I would

    21 understand your position, I'm sure everybody would

    22 think it most reasonable, that the final conclusion

    23 would depend on the facts of each case; is that right?

    24 A. Yes, but there is another tricky problem

    25 before the criminal jurisdiction like this one, the

  9. 1 personal guilt of an accused person; but that's what

    2 happened.

    3 JUDGE SHAHABUDDEEN: Sometimes the problem is

    4 apt to be complicated by this reflection which

    5 experience will be that ever so often words used by one

    6 party or another do not exactly match the facts?

    7 A. It sometimes happens, but I think not so much

    8 in relations between Bosnia-Herzegovina and Croatia,

    9 because there were some declarations from which it

    10 could be concluded that an international armed conflict

    11 didn't exist.

    12 JUDGE SHAHABUDDEEN: You would say that is a

    13 complicating factor in the analysis?

    14 A. Happily for us lawyers, our profession would

    15 not exist if all facts are simple.

    16 JUDGE SHAHABUDDEEN: Exactly so, exactly so.

    17 Now, I have a problem on the bench in that

    18 unfortunately I didn't take a note of the exhibit

    19 number of a certain document. So I will hold it up and

    20 hope that our registrar and counsel will be able to

    21 come to my help. It's a statement of the government of

    22 the -- 556A, I wonder if the registrar would be so kind

    23 as to put it before you.

    24 Now, would you very kindly turn to page 2,

    25 paragraph 3. This is a statement made on 13th of May,

  10. 1 1993. Now, in paragraph 3 you see references being

    2 made by Bosnia-Herzegovina to partition of Bosnia and

    3 Herzegovina, its confederalisation and so forth. In

    4 other words, Bosnia-Herzegovina is accusing Croatia of

    5 making statements of this kind. You see that part?

    6 A. Yes.

    7 JUDGE SHAHABUDDEEN: Now, I'm not asking you

    8 whether you agree or not that such statements were

    9 made. I am only asking you about your reaction to the

    10 distinction suggested between partition of Bosnia and

    11 Herzegovina and its confederalisation. Do you see a

    12 distinction there?

    13 A. I could not say that such declarations of

    14 which I am aware proves the objective situation of

    15 international armed conflict, but I agree with you that

    16 that was an unhappy policy from the Croatian side which

    17 did not help the mutual trust between not only Croats

    18 and Bosnians in Bosnia-Herzegovina, but also with the

    19 decent Serbian population of that country. Thank you.

    20 JUDGE SHAHABUDDEEN: Let me pick your fertile

    21 brain a little further. Would I be right, Professor,

    22 in understanding this reference to partition on the one

    23 hand and confederalisation on the other to mean this:

    24 That in the case of confederalisation the component

    25 units of Bosnia-Herzegovina would remain within the

  11. 1 same state, but that in the case of partition, this

    2 would not be so, the state would split into two

    3 different states on the plane of international

    4 relations. Is that understanding right or wrong?

    5 A. If I remember well of Croatian official

    6 declarations, it was not the word of partition in

    7 official declarations but of confederalisation or

    8 federalisation, probably. Confederalisation and

    9 federation are, from the point of view of International

    10 Law, the unity is very much different, because

    11 confederation is a union of sovereign states, on the

    12 basis of an international treaty, and federation is

    13 based on the federal constitution.

    14 I can only say that those designs did not

    15 help to stop the conflict in Bosnia-Herzegovina.

    16 JUDGE SHAHABUDDEEN: So do I understand you

    17 to mean this: That even in the case of

    18 confederalisation, each of the component units would be

    19 a sovereign state on the plane of International Law?

    20 A. Yes.

    21 JUDGE SHAHABUDDEEN: And do I then understand

    22 you to mean that each of these two concepts, partition

    23 or confederalisation, would rupture the previous

    24 integrity of the state of Bosnia-Herzegovina?

    25 A. I am very lucky that it did not realise

  12. 1 this. The situation was settled first by the

    2 Washington Agreement in the beginning of 1994, and

    3 finally by the Dayton Agreement. So there were some

    4 designs with which personally I don't agree, but

    5 happily that internal armed conflict was stopped. It

    6 did not generate into an international armed conflict.

    7 I hope the same will happen in Kosovo, the development

    8 can be very much similar.

    9 JUDGE SHAHABUDDEEN: Shall we all observe a

    10 little restraint in our references to Kosovo for

    11 reasons which would be obvious to you as a

    12 distinguished international lawyer.

    13 Now, let us talk about partition. Did you

    14 ever learn of any allegation of an agreement between

    15 the Republic of Croatia and Serbia Montenegro to divide

    16 Bosnia-Herzegovina between those two states?

    17 A. Your Honour, I read a lot in Croatian press

    18 about it criticising it, and I read also in the press

    19 that my elderly colleague academician Bilandzic was

    20 here testifying on those talks, but I have no personal

    21 experience about that. I was not present at

    22 Karadjordjevo and I was -- unlike him, I was not, as an

    23 expert, involved in the Serbian delegation on working

    24 on any maps. It was the position I liked.

    25 JUDGE SHAHABUDDEEN: Professor, I don't know

  13. 1 who was at Karadjordjevo and who was not, and, of

    2 course, I take it from you you were not there, but you

    3 had heard that there was an agreement made at

    4 Karadjordjevo between the Presidents of Croatia and

    5 Serbia Montenegro to divide Bosnia-Herzegovina between

    6 those two states. Did you hear of that in the press or

    7 otherwise?

    8 A. There were accusations by Croatian opposition

    9 of the policy of the Croatian president in that

    10 respect, but I have no data or documents that it

    11 happened or that it didn't happen.

    12 JUDGE SHAHABUDDEEN: Let me put it

    13 hypothetically this way to you: If the Court should

    14 find that there was an agreement between Croatia and

    15 Serbia Montenegro to divide Bosnia-Herzegovina between

    16 them, then would you say that that would influence your

    17 position that the presence of Croatian armed forces in

    18 Bosnia-Herzegovina mounted only to an armed

    19 intervention and not to an international armed

    20 conflict?

    21 A. Probably my view would be that that was a

    22 political cause, very serious cause for the conflict,

    23 but that still that conflict remained on the level of

    24 an internal armed conflict.

    25 JUDGE SHAHABUDDEEN: Let me ask you another

  14. 1 question of fact. Did you learn of any allegations to

    2 the effect that the Republic of Croatia planned to

    3 annex Herceg-Bosna as a component part of the Republic

    4 of Croatia after Bosna-Herceg would have succeeded in

    5 severing its ties with Sarajevo?

    6 A. Personally, I don't know on that, but I know

    7 even before the aggression of the Yugoslav army against

    8 Bosnia-Herzegovina happened some factions of population

    9 only in Herzegovina wanted to -- they wanted to join

    10 Croatian with their territory, but you know, my

    11 personal situation is very much different. My family

    12 lived in Sarajevo where Croats are a minority. My

    13 mother died there, and I was born in Bosanski Brod,

    14 that's a small city on the boarder line with Croatian

    15 on the river of Sava and populations from Bosanski

    16 Posavina and Sarajevo really did not want to change the

    17 boarder lines of Bosnia-Herzegovina. I could say the

    18 most of that population. Maybe there were some

    19 extremes. I really don't know whether the most of

    20 Croats from Herzegovina really wanted to join the

    21 Croatian state or not.

    22 JUDGE SHAHABUDDEEN: Professor, I didn't know

    23 of these personal difficulties which you and your

    24 family suffered, and I take the opportunity of letting

    25 you know very sincerely how deeply I sympathise with

  15. 1 you. I really mean that.

    2 Now, tell me this: Would you say the

    3 analysis of the situation is slightly complicated by an

    4 opposition between two forces? By this I mean, was it

    5 the case that the Republic of Croatia had two competing

    6 objectives in Bosnia-Herzegovina? On the one hand, the

    7 Republic of Croatia would wish to calibrate with the

    8 government with the government of Bosnia-Herzegovina in

    9 a common cause against Serbia Montenegro. On the other

    10 hand, the Republic of Croatia stood opposed to the

    11 government of Bosnia-Herzegovina insofar as the

    12 Republic of Croatia supported the HVO in its struggle

    13 against the Republic of Bosnia-Herzegovina? Was that

    14 the situation, the opposition between two forces?

    15 A. Your Honour, probably the political situation

    16 in Bosnia-Herzegovina and relations between Croatia and

    17 Bosnia-Herzegovina were even more complicated.

    18 There were different views, different

    19 ambitions of the future of two states and their

    20 relationship. There were some extremist views which

    21 were friendly to the partition of Bosnia-Herzegovina,

    22 but on the other hand, probably on the side of the

    23 Bosnian army there were extremists, there were

    24 fundamentalists who also committed crimes in that

    25 unhappy -- unhappy war.

  16. 1 As I remember from my experience, my lifetime

    2 in Bosnia-Herzegovina, you will find even now some

    3 Croats who are more friendly to Serbs than to Muslims.

    4 There are some -- and vice versa. There are Muslims

    5 who are more friendly to Croats than Serbs and vice

    6 versa, and it's the same with Serbs.

    7 It's interesting that in some parts of

    8 Bosnia-Herzegovina that friendship between all three

    9 groups survived even this disastrous war. For

    10 instance, the small city of Visoko and some other

    11 places. But because of some historic events in some

    12 other part, in eastern Herzegovina, there were clashes

    13 between Serbian and Muslim sides, in the beginning on

    14 the First World War, at the end of that war, in the

    15 Second World War and so on. And unfortunately, if I

    16 understand well, in those regions of Bosnia-Herzegovina

    17 where Croats are in some majority, there was a

    18 sentiment more friendly to Serbs than to Muslims.

    19 Also, I found many Muslims from Mostar who are not --

    20 who are hostile to Croats from Herzegovina. So the

    21 situation is very complicated, and everybody suffers

    22 for it. Maybe it's not the answer which satisfies you,

    23 but the picture is not black and white.

    24 JUDGE SHAHABUDDEEN: Then -- I appreciate

    25 that very much. That is not the least of the problems

  17. 1 which the bench has to face. The picture is not black

    2 and white. We have to navigate very carefully between

    3 facts which are not all easily reconcilable.

    4 So I come to my last question on which I

    5 would like the benefit of your assistance. I've put to

    6 you, my impression is that you accept it in substance,

    7 that the Republic of Croatia was pursuing two competing

    8 aims in Bosnia-Herzegovina. On the one hand, it would

    9 like to have Sarajevo in a common struggle against the

    10 Serbs. On the other hand, it was opposed to Sarajevo

    11 insofar as it supported the HVO in its struggle against

    12 Sarajevo.

    13 Now, the question which I put to you is

    14 this: Would you say that insofar as the Republic of

    15 Croatia offered military assistance to Sarajevo, that

    16 assistance was rendered in pursuance of the first aim,

    17 and that aim was to help Sarajevo in the common cause

    18 which the two governments were prosecuting against the

    19 Serbs. It had nothing to do with the help which

    20 Croatia was giving to the HVO?

    21 A. Your Honour, in the Croatian government there

    22 were some people from Herzegovina who probably followed

    23 the line of the conflict with Bosnia-Herzegovina, and

    24 perhaps of its partition. So the situation is so

    25 complicated that I would not like to give you my

  18. 1 opinion on that.

    2 JUDGE SHAHABUDDEEN: Then, Professor, it

    3 remains for me to say how much I appreciate the guarded

    4 terms of your reply, and to wish you well.

    5 A. Thank you Your Honour.

    6 JUDGE JORDA: Professor Degan, I would like

    7 to add my thanks to yours for Judge Shahabuddeen's

    8 contribution, which characterises his traditional

    9 modesty. Of course, things are not always black and

    10 white, and frequently we have arguments over the grey

    11 areas.

    12 I have very few questions for you. For my

    13 two or three questions, I would like to go back to the

    14 distinction you made when you characterised the

    15 situation that we have to judge, that is the

    16 distinction between the international armed conflict,

    17 legally speaking, which was well constituted, and for

    18 which I would like to congratulate you for your

    19 competence which you showed.

    20 You also indicated the fact that there was a

    21 certain duration and a certain intensity. I don't want

    22 to go back to what the Prosecutor already asked or

    23 those that my own colleague Judge Shahabuddeen asked,

    24 but I would like to know within this concept of

    25 intensity you include a constitution of

  19. 1 Bosnia-Herzegovina, and, therefore, of the HVO. How

    2 would you characterise, in respect of the international

    3 armed conflict, the assistance and support to the

    4 constitution of a kind of confederation which is known

    5 as a political administrative entity, that is

    6 Bosna-Herceg, or do you put that back into the duration

    7 and intensity which are the two major factors in the

    8 international armed conflict?

    9 A. Your Honour, I am not very pleased that I did

    10 not have the opportunity here to present my entire text

    11 which is made up of 40 pages in which the different

    12 problems which are the subject of the many questions

    13 that the Prosecutor asked are covered.

    14 However, I discussed the problems of

    15 intensity only in respect of the existence of an

    16 international armed conflict. The same criteria should

    17 also be present in a domestic conflict within the

    18 framework of a single country. And I found that that

    19 element was present in armed conflicts between the HVO

    20 and the army of Bosnia-Herzegovina, including the Lasva

    21 Valley.

    22 As regards the establishment of Herceg-Bosna,

    23 perhaps in 1990 or 1991 that was an initiative of the

    24 local population mostly from eastern Herzegovina, which

    25 wanted to join in with the Republic of Croatia, which

  20. 1 was in the process of acquiring its full sovereignty

    2 and independence.

    3 Perhaps it was not so much the ambitions of

    4 the Croatian leaders but the desire of the local

    5 population, that is the Croatian population, in a part

    6 of Bosnia-Herzegovina. I have already said that in

    7 Sarajevo, in Bosanska Posavina, the majority of the

    8 Croats wanted to maintain the sovereignty of

    9 Bosnia-Herzegovina. I don't know whether my answer has

    10 satisfied you.

    11 JUDGE JORDA: Well, in part it satisfies me,

    12 but I might supplement it by asking you whether a

    13 situation like the one we are aware of is unique. Is

    14 it unprecedented or could you attach it to precedence

    15 in other conflicts that are known as international?

    16 A. Probably the most similar one would be the

    17 one in Lebanon. That would probably be the most

    18 similar conflict because in Lebanon there are actually

    19 four religions, and within each religious community

    20 there were factions that fought against one another.

    21 There were different types of Sunnis, Shiites,

    22 Christians. The situation in Lebanon was very

    23 complicated, and I was pleased to have a colleague

    24 among the members of the members of the Institute for

    25 International Law who came from Beruit, and when the

  21. 1 conflict in the former Yugoslavia began, I asked him

    2 what we should do under the conditions of internal or

    3 international armed conflict.

    4 JUDGE JORDA: Thank you very much. I have

    5 only one other question to ask you. You have alluded

    6 to -- actually, more than alluded to the

    7 intervention -- an intervention of that type would

    8 certainly commit the criminal responsibility of the

    9 leaders. I'm a criminal Judge, therefore, this was of

    10 interest to me; therefore, I would like to know what

    11 leaders.

    12 And my second question, at what point do you

    13 stop the chain of command or the chain of the leaders?

    14 Could you make a comment on that?

    15 A. Unfortunately, Your Honour, the crimes

    16 committed against peace were covered only in the

    17 Nuremberg Tribunal statutes and the Tokyo Tribunal

    18 statutes. Afterwards, we have a definition for crimes

    19 of aggression in the Code that was drafted by the

    20 International Law Commission.

    21 We know what happened during the conference

    22 in Rome. By adopting the Statute for the future

    23 International Criminal Court, there was an Article

    24 which provided for the jurisdiction of that new court

    25 which would be to punish crimes of aggression, but no

  22. 1 provisions were made for a definition of aggression.

    2 That problem was postponed for the conference which is

    3 to take place seven years after the entry into force.

    4 JUDGE JORDA: Let me stop you there. Let me

    5 stop you there, because I do know that my question --

    6 I'm sure it's my fault and it's my question that led

    7 you a bit astray from where I wanted you to go.

    8 A. Pardon me, Your Honour.

    9 JUDGE JORDA: I realise you want to finish

    10 what you have to say about the International Court but

    11 I have another question I wanted to get into. Well, go

    12 ahead. Your great knowledge allows me to give you back

    13 the floor, but please be brief.

    14 A. Thank you, Your Honour. The contracting

    15 parties did not want to give jurisdiction to the Court

    16 over that crime. In my opinion, the definition of

    17 crimes against peace and crimes against -- crimes of

    18 aggression show that it is only the political leaders

    19 or the military leaders at the highest levels who could

    20 be accused should a criminal court be endowed with such

    21 jurisdiction, which is the not the case today.

    22 JUDGE JORDA: Yes. I think that we've got a

    23 bit aside from where I wanted to go. I had not

    24 properly interpreted something that you were saying.

    25 You were saying that it was not an international

  23. 1 conflict, in some sort of way it was a legal

    2 intervention with this being understood by the Croatian

    3 leaders, which continued over a certain amount of time

    4 with a certain intensity, but that's not what

    5 characterises international crimes. But such

    6 initiatives could bring with them criminal

    7 responsibility I had thought, and this is my question,

    8 that you were getting away from Article 2, but that you

    9 were leaving open the entire scope of the Tribunal's

    10 statute, which is, of course, not the great

    11 International Court that we're all expecting and

    12 waiting for, but which do exist in this institution

    13 where you've come today. Perhaps I was wrong. Perhaps

    14 you were only thinking of crimes of aggression.

    15 A. Yes, I was thinking about crimes of

    16 aggression. I compared the situation with the

    17 Nicaragua case before the court in The Hague, which did

    18 not have the jurisdiction to punish the President of

    19 the United States. That was my intention.

    20 JUDGE JORDA: We can allow the other

    21 institutions to think about what you have to say. As

    22 far as I'm concerned, I have said all I have to say.

    23 You might be surprised to see we're not

    24 wearing robes. That is because one of our colleagues

    25 is unavailable, which means that with the agreement of

  24. 1 the accused and the Defence, we are acting as presiding

    2 officers in order to hear your testimony. It is

    3 self-evident that has consequences, both legal and

    4 judicial, that is, our third colleague, who we are

    5 pleased to hear is getting better, when he reads the

    6 transcript may have some questions to ask you, may

    7 have, and that means that you might have to come back

    8 again and then we would have the pleasure of listening

    9 once again. I know that's not a convenient thing for

    10 you and I'm sorry, but I have nothing further to say to

    11 you.

    12 I would like to speak for my colleague, who

    13 has already said this, and myself, to thank you for

    14 coming here. I apologise to the interpreters, but I

    15 didn't want to interrupt the testimony. Now we will

    16 try to make up for the time we spent by taking a

    17 30-minute not a 20-minute pause. I see the registrar

    18 is signalling to me.

    19 THE REGISTRAR: No, no, no. I just wanted to

    20 know what should be done with the various exhibits that

    21 were submitted by this witness.

    22 JUDGE JORDA: Mr. Harmon?

    23 MR. HARMON: May we briefly go into private

    24 session with respect to one of the documents that has

    25 been submitted, Mr. President?

  25. 1 JUDGE JORDA: Private session, and then we'll

    2 take a break until 4.45 and move to the next witness.

    3 All right. Let's go into a private session for a few

    4 minutes and then we'll take our break.

    5 (Private session)

    6 (redacted)

    7 (redacted)

    8 (redacted)

    9 (redacted)

    10 (redacted)

    11 (redacted)

    12 (redacted)

    13 (redacted)

    14 (redacted)

    15 (redacted)

    16 (redacted)

    17 (redacted)

    18 (redacted)

    19 (redacted)

    20 (redacted)

    21 (redacted)

    22 (redacted)

    23 (redacted)

    24 (redacted)

    25 (redacted)

  26. 1












    13 Pages 16218 to 16242 redacted – in closed session







    20 --- Whereupon the hearing adjourned at

    21 5.33 p.m. to be reconvened on Tuesday,

    22 the 15th day of December, 1998 at 10.00 a.m.