1. 1 Tuesday, 21 April 1998.

    2 (8.30 a.m.).

    3 JUDGE CASSESE: May I ask the Registrar to

    4 please call the case number?

    5 THE REGISTRAR: Case number IT-95-13a-T,

    6 the Prosecutor versus Dokmanovic.

    7 MR. NIEMANN: My name is Niemann and I

    8 appear with my colleagues Mr. Williamson, Mr. Waespi and

    9 Mr. Vos for the Prosecution.

    10 MR. FILA: Your Honours, I am Tomas Fila.

    11 I am here with Mr. Petrovic and together we are here for

    12 the Defence.

    13 JUDGE CASSESE: Can you hear me,

    14 Mr. Dokmanovic? I would like to thank Mr. Fila for

    15 providing the Prosecutor and the court with the written

    16 text of his opening statement. This will enable you to

    17 focus on the main points, if you see what I mean.

    18 Thank you. You may proceed.

    19 MR. WILLIAMSON: Your Honour, there are a

    20 couple of other matters if we can attend to them before

    21 we get to Mr. Fila's statement. The documents that

    22 I was speaking of yesterday which we were expecting to

    23 receive from the UN in New York, we have, in fact,

    24 received in part. We still have not, as of yet,

    25 received the ultimatum from General Kadijevic to the

  2. 1 Croat Government, but we did receive the listing

    2 from the Secretary-General of the notification of

    3 sucession by the Government of Croatia to 29 treaties

    4 effective as of 8 October 1991 and, additionally, the

    5 final report of the Badinter Commission on the issue of

    6 effective dates of independence. This is opinion

    7 number 11 from July of 1993 in which they fix the

    8 effective date of independence of Croatia and Slovenia

    9 as 8 October 1991. At this time, I would like to

    10 tender this. I believe this will be Prosecutor's

    11 exhibit 192.

    12 THE REGISTRAR: That is correct.

    13 MR. WILLIAMSON: A copy has already been

    14 provided to the Defence. Additionally, in response to

    15 Mr. Fila's request yesterday for this videotape, we have

    16 gone through the videotape in its entirety. The only

    17 portion that we can find that we think possibly is what

    18 he is talking about -- it is not from French

    19 television; it is from Serb television -- it is in

    20 1994 and not 1990 and it refers to Mr. Dokmanovic not as

    21 the "former mayor" of Vukovar, but as the "new mayor"

    22 of Vukovar. If that is what he is requesting, we can

    23 show it, but that is the closest we can come to what he

    24 is talking about.

    25 MR. FILA: Your Honour, my associate will be

  3. 1 coming here today and bringing experts from Belgrade.

    2 He will also bring that tape that I received from you,

    3 so I will show it to you tomorrow.

    4 JUDGE CASSESE: Mr. Fila, you may now make

    5 your opening statement.

    6 MR. FILA: I shall present it more briefly

    7 than as I have written it. As you know, it is also a

    8 response to two Prosecutor briefs so I am really

    9 dealing with three matters all together.

    10 The opening of the Defence: The creation and

    11 break-up of the Yugoslavia State. The creation of the

    12 first Yugoslavia -- the Yugoslav state was created

    13 after the First World War in 1918 by the unification of

    14 two then independent States -- the Kingdom of Serbia

    15 and the Kingdom of Montenegro and of territories of the

    16 former Austro-Hungarian monarchy inhabited by South Slav

    17 peoples, Serbs, Croats and Slovenes. Pursuant to the

    18 decision of the National Council of the State of

    19 Slovenes, Croats and Serbs, those territories were

    20 annexed to the new Yugoslav State which was initially

    21 called the Kingdom of Serbs, Croats and Slovenes and

    22 later the Kingdom of Yugoslavia. This was a unitary

    23 State based on the State thesis of one people with

    24 three entities -- Serbs, Croats and Slovenes. It was

    25 divided into banovinas.

  4. 1 They were a territorial division along

    2 administrative rather than ethnic lines. The

    3 declaration of Nis of 1914, in which the Government and

    4 National Assembly of the Kingdom of Serbia opted for a

    5 joint State of the Yugoslav peoples, shows that the

    6 Serbs had already made such a decision during the First

    7 World War. It is important to mention that they

    8 consciously sacrificed their national and State

    9 identity created during the 19th century and accepted

    10 the idea of a trinomial named South Slav people. In

    11 that State, the Serbs felt nationally united, all of

    12 them living in the same State.

    13 The Prosecution's thesis and that of its

    14 experts of the Yugoslav State as the realisation of the

    15 idea of a "Greater Serbia", has no grounds because the

    16 first Yugoslav state brought national and state

    17 emancipation to the Croat and Slovene peoples for

    18 the first time in their history.

    19 The Allied powers in 1915, in London, offered

    20 by the Treaty of London, the creation of a Greater

    21 Serbia, the Serb Government rejected that offer,

    22 opting instead for unification with other Slav

    23 peoples. It was then that the term "Greater Serbia"

    24 appeared for the first and only time in international

    25 law.

  5. 1 From the very inception of the Kingdom of

    2 Serbs, Croats and Slovenes, there were many strong

    3 antagonisms. This was the consequence of the different

    4 and mutually exclusive State and national programmes of

    5 the Yugoslav peoples. This intolerance and latent

    6 separatism were manifested through the Croat

    7 parliamentary boycott and heavy propaganda against the

    8 creation of a joint State built on democratic

    9 principles.

    10 The Croats and Slovenes, in my opinion,

    11 consciously abused the Yugoslav idea. After the First

    12 World War, the Slovenes left the circle of the defeated

    13 to enter the circle of the victors. The Croats did the

    14 same after the Second World War. By joining the circle

    15 of the winning powers, they avoided responsibilities

    16 and obligations to pay war reparations.

    17 Therefore, the representative of Italy at the

    18 1919 Conference of Versailles, for almost a year would

    19 not consent to letting the Delineation Commission start

    20 work. He refused to sit at the same table with the

    21 representatives of the defeated powers because a

    22 representative of the Croats, Dr. Trumbic, was on the

    23 delegation of the new state of Yugoslavia.

    24 The Croat and Slovene political elite saw

    25 the Yugoslav State as a transitional period in the

  6. 1 process of gaining State and national independence.

    2 For example, the prominent Slovene politician

    3 Anton Korosec, who was a Minister in all the

    4 governments of the Kingdom of Yugoslavia from 1918 to

    5 1941, explained the reasons why the Slovenes joined

    6 Yugoslavia. He said: "We have mounted a good horse.

    7 We will return a worn out nag." However, for the

    8 Serbs, the creation of this kingdom of Serbs, Croats

    9 and Slovenes according to how King Alexander envisaged

    10 the creation of the Yugoslav nation that would be

    11 developed "through barracks and schools", represented

    12 for the Serbs the fulfilment of their centuries-long

    13 dream of the free and joint life of a single Yugoslav

    14 nation in a single Yugoslav state.

    15 The Break up of the first Yugoslavia.

    16 The German invasion in 1941 spelled the end

    17 of the first Yugoslavia and the beginning of the

    18 Golgotha of the Serb nation in the independent State

    19 of Croatia, formed in the meantime by the Ustashas

    20 under German patronage. Already in the 1930s an

    21 Ustasha terrorist organisation was established, the

    22 ultimate objective of which was the creation of an

    23 independent State of Croatia and the extermination of

    24 the Serb population. The establishment of Ustasha

    25 rule saw an unprecedented persecution of the Serb

  7. 1 population which became genocide on the most massive

    2 scale. The Serbs were compelled to defend themselves;

    3 they rose up and organised resistance to German and

    4 Ustasha terror.

    5 The creation of the second Yugoslavia.

    6 Upon the victory of the Allies in the Second

    7 World War, the Yugoslav State was created on a Federal

    8 basis with six republics -- Serbia, Croatia, Slovenia,

    9 Macedonia, Bosnia and Herzegovina and Montenegro. As

    10 distinct from the other four republics, the Republic of

    11 Croatia and the Republic of Bosnia-Herzegovina were

    12 proclaimed republics with a number of constituent

    13 peoples; the Republic of Croatia as the State of the

    14 Croat and Serb peoples, and the Republic of

    15 Bosnia-Herzegovina as the State of Serb Muslim and

    16 Croat peoples.

    17 The communist rule established in 1945

    18 strongly suppressed national hatreds, myths and

    19 stereotypes. The Ustasha crime went unpunished. The

    20 victims and the executioners were reconciled in

    21 brotherhood and unity, the universal formula for

    22 resolving the national question in socialist

    23 Yugoslavia. There was no catharsis of the Croat

    24 people; no Croat Willy Brandt emerged to apologise

    25 to the Serb and other victims of Ustasha madness in

  8. 1 Jasenovac and other camps. The evil was shut away in

    2 Pandora's box.

    3 Ignoring political and ethnic realities, the

    4 leadership of the Communist Party of Yugoslavia

    5 arbitrarily drew administrative borders between the

    6 republics, which several decades later are to become

    7 State borders and along with the unresolved national

    8 question, they became the second major cause of the

    9 civil war.

    10 Josip Broz Tito, an ethnic Croat was the

    11 unassailable ruler of Yugoslavia for decades. Still,

    12 even at the time of his rule, Croat separatism

    13 resurged in the form of the Maspok, spreading ideas

    14 about redesigning of Yugoslavia, the covert objective

    15 being its dismemberment and the creation of an

    16 independent Croat state. During this period, the

    17 persecution of Serbs started again in the form of

    18 dismissal from work in sweeping numbers. Tito settled

    19 scores with the advocates of the Maspok by arresting

    20 them, among them Tudjman and Mesic --

    21 JUDGE CASSESE: Could you please slow down a

    22 little bit for the interpreters? Slow down.

    23 MR. FILA: They have a text. I am sorry, I

    24 thought that they had a translation of the text, too,

    25 because I gave it to them earlier.

  9. 1 JUDGE CASSESE: If you slow down.

    2 MR. FILA: Tito settled scores with the

    3 advocates of the Maspok by arresting them, among them

    4 Tudjman and Mesic. Yugoslavia remained intact for the

    5 time being but the idea lived on.

    6 The Break-up of the Second Yugoslavia.

    7 Clericalism and the Ustasha movement returned

    8 to the political scene of Croatia in 1990, seeing the

    9 Serbs in Croatia as their enemy and proclaiming them as

    10 in the days of Ante Starcevic, a "disruptive factor".

    11 The finale of that process was the assumption of power

    12 by the Croat Democratic Union, the HDZ.

    13 By the 1990 amendments to the Constitution of

    14 the Republic of Croatia, that is the one that the

    15 Prosecutor presented as evidence, from a constituent

    16 nation, that is to say, one of the two equal

    17 constituent peoples of Croatia, they were turned into a

    18 national minority. Serbs were again being fired from

    19 State and local bodies of authority, from the

    20 judiciary, educational establishments, hospitals and

    21 factories.

    22 Croatia's separatism culminated in secession,

    23 in contravention of the provisions of the constitution

    24 of the SFRY which required the consent of all the

    25 federal units for any change in the State borders. Not

  10. 1 only was the SFRY constitution violated, but so was the

    2 constitution of the Republic of Croatia because a

    3 decision on legal secession was impossible to take

    4 without the consent of one of the two constituent

    5 peoples in that republic, that is to say the Serb

    6 people. Parallel with the Croat referendum on

    7 independence and sovereignty, the Serbs in Croatia, as

    8 they felt imperilled, organised a referendum of their

    9 own at which they opted to stay in Yugoslavia.

    10 Illegal secession compounded by physical

    11 pressures, dismissals from work and evictions, physical

    12 assaults, threats and insults, instilled the feeling in

    13 the Serbs they were only a step away from a second

    14 pogrom in 50 years. In such a situation, the Serbs in

    15 Croatia had no option but to organise their

    16 self-defence in areas in which they were in the

    17 majority and to look to the Federal State as their

    18 state for protection.

    19 The Federal State, where the President of the

    20 presidency was Stipe Mesic, a Croat; the Federal

    21 Prime Minister, was Ante Markovic, a Croat; and the

    22 Defence Minister was Veljko Kadijevic, a Croat; the

    23 Minister of Foreign Affairs, Loncar, a Croat -- did not

    24 accept secession and such behaviour on the part of

    25 Croatia (nor on the part of Slovenia for that matter)

  11. 1 and the JNA as the armed force of the SFRJ intervened.

    2 The objective was preservation of the SFRY which had a

    3 constitutional obligation and separation of the rebel

    4 Croats and the Serbs were defending themselves from the

    5 former.

    6 The claim made under count 4 of the

    7 indictment that the JNA intervened in support of the

    8 Serb insurgents is incorrect, just as it is an

    9 arbitrary statement to say in Count 11 of the

    10 indictment that the Serb authorities listed identifying

    11 information about the people imprisoned in Ovcara, for

    12 no Serb authorities existed there. It was either

    13 the JNA or paramilitary troops in the territory of

    14 Ovcara.

    15 It should be reiterated here that, apart from

    16 its illegal secession in terms of the SFRY

    17 constitution, the Republic of Croatia did not fulfil

    18 any of the three constitutive requirements according to

    19 the rules of international law and the practice of

    20 states for an entity so aspiring to be considered a

    21 State, it would have to have a given territory, to have

    22 a given population and to wield sovereign authority in

    23 that territory.

    24 Not a single one of these things was true in

    25 the Republic of Croatia. The declaration of European

  12. 1 Community Foreign Ministers of 17 December 1991, the

    2 communiqué of the Ministry of Foreign Affairs of the

    3 kingdom of The Netherlands of 24 December says, "The

    4 presidency of the European Community invites the six

    5 republics in Yugoslavia to state whether they wish to

    6 be recognised as independent States and to accept the

    7 commitments contained in the letter of 17 December

    8 1991; positive replies have been received from

    9 Bosnia-Herzegovina, Croatia, Macedonia and Slovenia.

    10 The Presidency has informed the Chair of the Conference

    11 on Yugoslavia accordingly, asking that these

    12 applications be referred to the Arbitration Commission

    13 to render its opinion."

    14 I wish to note once again that this is all

    15 happening after the period that is relevant to the

    16 indictment, because this is 17 December 1991. That was

    17 the end of the second Yugoslavia and the second attempt

    18 to put into practice the idea of a joint Yugoslavia

    19 State of the South Slavs and I hope that this is the

    20 last such attempt. My hope stems from tragic

    21 experience. All attempts at creating Yugoslavia in the

    22 20th century have cost dearly -- several million

    23 victims and untold numbers of people driven away from

    24 their homes.

    25 B. The Serbs in Croatia. Historical facts.

  13. 1 Historical material indicates that the Serbs

    2 have been present in the territory of what is today the

    3 Republic of Croatia since the 14th century. The ethnic

    4 space of the Serbs stretched from Northern Dalmatia via

    5 Lika, Kordun, Gorski Kotar, to the border from the

    6 Slovene lands. Banija, the area around Pakrac and

    7 Daruvar to Eastern Slavonia, the areas of the cities of

    8 Osijek and Vukovar. Most of the Serbs inhabiting at

    9 that time had the status of imperial frontier guards

    10 men, while the others were dependent peasants - serfs.

    11 In the cities and pre-towns there were Serb

    12 tradesmen.

    13 The Croato-Hungarian agreement gave birth to

    14 the Greater Croat ideology, whose theses on the

    15 Croats "historical rights" negated the Serbs as a

    16 nation, denying their national distinctiveness and

    17 equality in Croat lands. The Croat Party of

    18 Rights headed by Ante Starcevic defined the Serb

    19 people as "Croats of the Eastern faith", calling the

    20 Serbs non brethren, Byzantines, and a "disruptive

    21 factor".

    22 Croat chauvinism culminated in the

    23 emergence of the Ustasha movement in the 1930s. The

    24 Ustasha saw a solution to the Croat national and

    25 state question in the physical elimination of the

  14. 1 Serb people living in the territories to the west of

    2 the Drina river.

    3 In 1941, with the occupation of the Kingdom

    4 of Yugoslavia, clerical fascists, headed by Ante

    5 Pavelic, assumed power in Croatia. Hitler made it

    6 possible for the independent State of Croatia to

    7 encompass the whole of Bosnia-Herzegovina and the whole

    8 of Srem. The Ustasha leader, with the leader, Ante

    9 Pavelic, embarked on an unprecedented and unparalleled

    10 persecution of the Serbs. The political and state

    11 platform of the Independent State of Croatia was

    12 defined by a single slogan: a third of the Serbs to be

    13 converted, a third displaced and a third killed.

    14 Tens of thousands of Serbs, perhaps hundreds

    15 of thousands, ended their lives in Ustasha death camps

    16 in Jasenovac, Jadovno and Stara Gradiska. About

    17 200,000 Serbs were deported to Serbia. Race laws were

    18 enacted against Serbs, Jews and the Romanies. Orthodox

    19 Serbs were converted en masse to Catholicism with the

    20 support of the Catholic church.

    21 May I show you a segment from the videotape

    22 about killing and converting to Catholicism?

    23 MR. FILA: This is the Jasenovac

    24 concentration camp.

    25 (Videotape played).

  15. 1 "Public service of the Ustasha Defence,

    2 Jasenovac concentration camp 1941 to 1945."

    3 (Videotape continues).

    4 MR. FILA: Those are the Jews. These are the

    5 children that were killed in Jasenovac -- Serb

    6 children. These are Pavelic and Hitler that you saw a

    7 moment ago -- this is the environs of Jasenovac. That

    8 is a map of the concentration camp itself. This is

    9 what was called a Srbosek, a special device for killing

    10 Serbs. This is another device which they used to kill

    11 them. This is an Ustashe at work. These are the

    12 Ustasha caps which were forcibly put on the heads of

    13 Serb children -- they were made to wear them. This

    14 is the compulsory conversion of the Serbs en masse to

    15 Catholicism in the camp itself."

    16 (Videotape ended).

    17 The suffering of the Serbs from 1941 to 1945

    18 in the Vukovar area, that is the subject of our

    19 discussions here.

    20 The genocidal policy of the Ustasha regime in

    21 its most horrendous form was carried out in the area of

    22 Velika Zupa which encompassed 10 districts, 7 towns and

    23 156 municipalities. According to the 1931 census,

    24 439,900 inhabitants lived in this area, 211,000 Serbs

    25 (48 per cent) and 118,000 Croats (27 per cent).

  16. 1 The witch hunt against the Serb people of

    2 the Vuka Welika Zupanija started in mid April 1941.

    3 First the Ustasha authorities banned the use of the

    4 Cyrillic alphabet and took down all inscriptions in

    5 the Cyrillic script. This was followed by arrests

    6 carried out by municipal authorities. Individuals and

    7 so on. Eminent and well-to-do Serbs, volunteers from

    8 the First World War, members of the Soko Yugoslav

    9 sports association and of various Serb cultural and

    10 educational associations, were put in prison. Some of

    11 them were liquidated summarily, many vanished without a

    12 trace and others were deported to camps.

    13 A similar fate was to befall the Romanies and

    14 the Jews, 1,620 Romanies of whom 500 children and 500

    15 Jews were deported to the camp of Jasenovac in 1941 and

    16 1942 alone. The Ustasha "Court Martial" was constantly

    17 in session in Vukovar. There are documents attesting

    18 to its rulings -- 15 persons were shot dead on 31 July

    19 1941, 20 inhabitants of Negoslavci, Brsadin and Borovo

    20 were shot dead on 17 January 1942, 57 inhabitants of

    21 Stara Pazova, Stari Banovci and other places were shot

    22 dead on 27 September 1941 and later in 1942.

    23 According to the report of the Commission for

    24 Establishing the Crimes of the Occupiers and Those Who

    25 Assisted Them, from Vukovar imprisoned the Serbs. One

  17. 1 composition full of women and one containing 50 men

    2 arrived in Jasenovac.

    3 The following day, on 27 August 1942, another

    4 train consisting of 20 wagons full of Serbs was

    5 formed. Its journey to Jasenovac took two days and two

    6 nights. Upon its arrival at the camp, the women and

    7 children were separated and transferred across to the

    8 Sava River to Gradina. They were all immediately

    9 liquidated. 8,000 Serbs were converted to Catholicism

    10 in the area of Vukovar, 4,000 Serbs were killed during

    11 the period of the Ustasha genocide from 1941 to 1945

    12 and many became displaced persons.

    13 The idea of genocide against the Serb

    14 people in the Vukovar area during World War II bore

    15 fruit. The ethnic composition in this area was changed

    16 completely. According to the 1991 population census,

    17 which has been tendered in evidence, this area was

    18 inhabited mainly by Croats 43.7 per cent, followed by

    19 Serbs 37.4 per cent and others 19 per cent.

    20 The position of Serbs in Croatia from 1945 to

    21 1995 with special reference to Vukovar.

    22 With the creation of the communist

    23 Yugoslavia, the Serb people believed that their

    24 sufferings had come to an end. They believed in the

    25 strength of the Communist Party of Yugoslavia and its

  18. 1 ideology of "brotherhood and unity", which rejected

    2 identification and punishment of the guilty. It

    3 reconciled them by force and equalised them in

    4 suffering and guilt. The Ustasha concentration camp of

    5 Jasenovac was razed to the ground by the communists.

    6 Traces of the crime were obliterated from the face of

    7 the earth but not from collective memory of the Serb

    8 people. The Serbs were asked to forgive and forget.

    9 Nothing was asked of the Croat people. They were

    10 not asked to name their criminals or to punish them.

    11 The Serbs exhibited goodwill. En mass they

    12 entered into mixed marriages, all for the sake of

    13 Yugoslavia and brotherhood with other nations and

    14 nationalities. They consciously renounced their own

    15 history, their national identity, and above all their

    16 Orthodox faith. The majority of those who declared

    17 themselves as Yugoslavs hailed from Serb milieus,

    18 primarily from the large towns in Serbia. They were

    19 therefore all the more surprised at the resurgence of

    20 the Ustasha movement. The Maspok, the mass movement in

    21 1968 rallied around the Matica Hrvatska Society, gave

    22 rise to a new euphoria in Croatia and with it came the

    23 persecution of the Serbs. Tito stopped this wave but

    24 only temporarily. Again, not all the culprits were

    25 named, many got away.

  19. 1 The year 1990 saw a new tragedy for the Serbs

    2 in the Vukovar area. The Croat Democratic Union,,

    3 the HDZ, won a convincing victory at the elections for

    4 the Croat Assembly. However, on the territory of

    5 the Vukovar municipality, they did not win a majority.

    6 The Party of democratic change won the majority of

    7 seats in the Municipal Assembly. They were former

    8 communists and with them, Councillor Slavko Dokmanovic

    9 was elected.

    10 However, a changed political climate could be

    11 felt in the city already at that time -- a political

    12 climate. Activities were conducted aimed at

    13 intimidating inhabitants of Serb nationality. The

    14 results of this was their exodus from their

    15 homesteads. Serbs were illegally arrested and searched

    16 in an organised fashion. They were ousted from

    17 leadership positions and threatened with physical

    18 liquidation. At the same time, the Croats were

    19 procuring arms, forming armed groups and blowing up

    20 buildings belonging to the Serbs -- business outlets,

    21 shops, et cetera.

    22 The public services, courts, educational

    23 institutions and the hospital were purged of Serb

    24 personnel. Dr. Rade Popovic, who was the head of the

    25 Vukovar hospital, was replaced with Dr. Vesna Bosanac.

  20. 1 Members of the HDZ took Radio Vukovar by force and

    2 appointed a new director, a Croat, a member of the

    3 HDZ. The makeup of the police station also changed.

    4 People loyal to the HDZ assumed responsible positions

    5 in order to protect the points via which the Croats

    6 were pulling in weapons and military equipment to

    7 Vukovar.

    8 One of the first victims was Zeliko Ostojic.

    9 In 1990 he testified before JNA security bodies about

    10 the existence of these groups, about the intentions and

    11 plans of Glavas, Mercep and Zadro to ethnically cleanse

    12 Eastern Slavonia. In the night between 25 and 26

    13 January 1991, Ostojic was killed in his flat in Borovo

    14 Naselje. His killing coincided with the showing of the

    15 film about General Martin Spegelj. He was a general of

    16 the JNA, who brokered the illicit importation and

    17 distribution of weapons in Croatia and was aired on TV

    18 that same evening.

    19 May we have an excerpt from that film? .

    20 (Videotape played).

    21 "This is if you need it at the decisive

    22 moment. This is Croatia's Defence Minister and the

    23 second is the Minister of Police. Organise two or

    24 three men for the liquidation of the most dangerous.

    25 The physical liquidation dum, dum, dum -- our police

  21. 1 does not dare. Yes, it does, we go to one and then

    2 another at the same time. Those who are the most

    3 dangerous can be killed at their door steps. No

    4 questions are asked, do not ask whether there are

    5 women, children, nothing, no questions asked. As far

    6 as watch towers are concerned, when there is the

    7 disarmament of the watch towers, everybody will be

    8 disarmed, as many people as exist, but leave the

    9 Albanians five bullets a piece in their automatic

    10 rifles and, the others, you should keep them in a

    11 cellar, give them food and water for several days and,

    12 if something does happen, then just issue directives to

    13 all those whom you know -- just say, 'Kill the

    14 extremists' -- on the spot, in the streets, anywhere,

    15 in the barracks compound, just shoot to kill in the

    16 stomach. It will not be a war, it will be a civil war

    17 in which there will be no mercy for anyone -- no mercy

    18 for women and no mercy shown to the children. Kill

    19 them in their flats, just simply a bomb in the family

    20 flat. At the decisive moment, yes, organise two or

    21 three men for the liquidation of those who are most

    22 dangerous, alright? Yes, the physical liquidation --

    23 well, alright. Dum, dum, dum, and that will be that.

    24 Our police does not dare, but it agrees -- yes, it does

    25 dare, you go to one, and then you go to another and

  22. 1 then you go to everybody at the same time. Those who

    2 are the most dangerous can be killed in front of their

    3 door steps. No questions asked. Don't worry whether

    4 they are women, children -- no questions asked."

    5 MR. FILA: As early as 24 March 1990, at the

    6 Vukovar area, paramilitary formations were organised by

    7 Tomislav Mercep and Glavas which were later to grow in

    8 to the 204th Brigade of the National Guard Corps.

    9 On 10 March 1991, they organised a review of

    10 volunteers' detachments of paramilitary formations of

    11 Croatia which was attended by about 2,000 Croat

    12 people. Groups for silent liquidation in Vukovar and

    13 the surrounding villages were set up.

    14 (Videotape played).

    15 MR. FILA: This is the mayor of Osijek. This

    16 is a display of paramilitary formations in Bogdanovci.

    17 "Commanders leaders, line up, one and all.

    18 Cipa, leave the papers alone! Everybody line up,

    19 please. Pero Maric, where is he? Yes, here he is.

    20 Maric, here he is, at the end. Maric has given over

    21 his papers.

    22 Yes, I have given them over to you.

    23 May I have a little silence, please? On

    24 order from the President of the Republic of Croatia, we

    25 must form -- a little silence, please -- more quiet --

  23. 1 be a little quieter. By order of the President of the

    2 Republic of Croatia, we formed unarmed detachments.

    3 You must know what we are talking about here. We have

    4 received orders to select the best men whom are going

    5 to serve in the Ministry of Internal Affairs. So, if

    6 you are on the list, then you will be part of these

    7 formations. On the next occasion, we are going to set

    8 up the medical corps, along with our detachments. We

    9 have 30 per cent of the possible people we need, which

    10 means that you will have to get to know the commanders,

    11 who are going to be located in Graza in Bogdanovci and

    12 then will explain to one and all who the commanders are

    13 and, please, see who the shady characters -- the

    14 suspect characters are. Just note them down if you

    15 think that anybody is shady or suspect. Nothing is a

    16 secret any more. There are no more secrets, so we are

    17 going to set up unarmed detachments and we are going to

    18 organise them. There is no need to keep a secret any

    19 longer, but if anybody is suspect, just make a note of

    20 their names, because we have been told that there are

    21 shady characters in our midst, so we will try and list

    22 them in that way.

    23 Let me tell you one thing: as far as weapons

    24 are concerned, we have the necessary weapons. We have

    25 them now, there are no more problems about that and we

  24. 1 are going to have to start training, because I do not

    2 want people coming here untrained.

    3 You are going to learn what we are going to

    4 do, we have formed the detachments, we have formed the

    5 medical corps, we will form even larger detachments and

    6 we are going to have training -- we are going to do

    7 this in agreement with the Ministry of Internal

    8 Affairs. You are going to go to your own departments

    9 and make a list of the names -- those who do not belong

    10 on the list -- and we all know who these are -- just

    11 strike them off. We will make a note of this, and then

    12 I will tell them what the President told us. I am not

    13 going to speak about arms. I have explained the

    14 armament situation to you. We are going to form

    15 unarmed detachments for the following reasons, and we

    16 are going to line up and go and take a look at the

    17 headquarters in Bogdanovci and then up to Luzac and

    18 then the bunker in Luzac. This is the Serb part

    19 from here to Osijek. We are going to solve that

    20 situation and the other region will be settled by the

    21 others, so this whole territory has been covered. We

    22 must link up the road from Bogdanovci and Nustar.

    23 Is everybody going up there or just the

    24 commanders?

    25 No, everybody.

  25. 1 Turn around, please. Line up; you must line

    2 up properly so we can see who is present and who is

    3 not. There's enough space. The headquarters for

    4 Vukovar, Osijek and Vinkovski. The commanders, would

    5 you please make some order here? Vjiselko, where is

    6 Vjiselko? The President of the Republic of Croatia,

    7 Dr. Franjo Tudjman, has given us the go-ahead to form

    8 unarmed detachments for the first time of the civilian

    9 defence of the Democratic Union, for the first time

    10 publicly and freely.

    11 At this meeting, we are going to make up a

    12 list of the most capable individuals and the most vital

    13 part of all of us and we are going to recommend to the

    14 Ministry of the Interior that we strengthen our ranks

    15 as an army formation. We have gathered you here today

    16 to organise unarmed detachments so that we can organise

    17 a medical corps later on and to inform you with the

    18 headquarters and your commanders for the area of

    19 Vukovar. We are going to have another relocated

    20 command position in the village of Babska, and the

    21 headquarters, the staff in Bogdanovci. Bogdanovci has

    22 been chosen because it is located on part of territory

    23 inhabited by Serbs, to Brsadina until Osijek whereas

    24 the other portion of the territory is inhabited by us,

    25 so we will be able to form a front there just so that

  26. 1 you know the strategy. Bogdanovci has been covered

    2 with bunkers from Luzac to Nustar and you are now going

    3 to see our headquarters, so that if something happens

    4 to your commander or leader, each and every one of you

    5 will know -- will convey this information to the people

    6 that have not been able to come here today, so that

    7 they know where to take up their positions and we will

    8 have our links by courier.

    9 There are some radio devices which are

    10 unreliable, so communication must be held alive through

    11 courier. Anybody who sees that somebody is working

    12 against the Croat republic, make a note of his name

    13 and make a note of any counter intelligence going on.

    14 You must not trust anybody but listen to orders. The

    15 President of the Republic of Croatia has asked us that,

    16 as we have been patient up to now, to show wisdom and

    17 patience from now on, because every day is working in

    18 our favour. I know that it is difficult for you to

    19 come up here, but we must see what we have at our

    20 disposal, the men and equipment, and you know that

    21 everybody has come from the local communities and it

    22 represents a third of all available forces.

    23 We have not called any women here today, but

    24 next time we are going to call up some women to make up

    25 the medical corps and we will have more devices -- we

  27. 1 have some devices now -- you are going to have to learn

    2 to handle them. And, if it is necessary, we must know

    3 how to handle these devices.

    4 So, we are all gathered here together,

    5 calmly, to hear how we are going to act and organise

    6 ourselves, and the people living in Bogdanovci know

    7 this area better than I do. Vinko, here he is, let's

    8 all form a column, four by four, towards the Graza

    9 area. Let us have a walk around the area so we become

    10 better acquainted with it. I should also like to ask

    11 you to dispel slowly and if you are asked by anybody

    12 what you were doing here, say you were preparing for

    13 the gymnastics display to celebrate Republic Day on

    14 30 May."

    15 MR. FILA: At the beginning of May 1991 the

    16 intimidation culminated in this area. During the night

    17 on Wednesday 1 May, two Croat policemen appeared in

    18 a police car in Borovo Selo, this is a Serb village

    19 not far from Vukovar. One of them opened fire from an

    20 automatic weapon and the other tore up the Yugoslav

    21 flag. The provocations continued on the following

    22 day. Josip Daja, the chief of the Croat police,

    23 sent another 20 men of his to Borovo Selo. But his

    24 buses were greeted with salvos from automatic weapons

    25 fired by the villagers. Twelve Croat policemen and

  28. 1 three Serb civilians died in this incident.

    2 The fuse of the inter-ethnic conflict had

    3 been lit. The sequel could be predicted. Croats,

    4 Mladen Miljkovic and Ivica Zrnic slit the throats of

    5 two soldiers on 15 August 1991. Before that, they were

    6 brutally tortured. Let us also mention that three days

    7 later they also committed a crime against a girl,

    8 Sladana Petrovic, whom they raped, tortured and

    9 brutally killed.

    10 The same persons took part in crimes in

    11 August 1991, against 15 men and five women in

    12 Olajnica. In another room, in which there were about

    13 20 women with their children, on the orders of

    14 Ivica Zrnic, Mladen Mirkovic slit the throats of two

    15 boys of about 15 years who were tied to chairs. They

    16 liquidated a group of 10 people. The bodies were

    17 thrown down somewhere in the direction of Borovo.

    18 More and more criminals appeared and the

    19 number of victims multiplied. For example, Ivan

    20 Kapular usually threw his victims into the Danube. He

    21 was on the active force of the ZNG, the commander of

    22 the Defence of Borovo Nasilje, a member of the command

    23 of the Vukovar Brigade. In his headquarters at the

    24 Abazija pizza parlour in Borovo Naselje, in a cellar,

    25 he would interrogate, with a group of his people,

  29. 1 persons who had been brought in, tortured them and

    2 killed them, and then threw them into the Danube. The

    3 following were killed on his orders: Tihomir Kovacevic,

    4 Predrag Ciric, Svetozar Vladisavljevic, Simo Sirota,

    5 Milorad Tesic, Dara Grujic, Milana Siladi and Nikola

    6 Cancarevic.

    7 The same was done by Zoran Sipos who led a

    8 group with Martin Sabljic and Nikola Cibaric. From the

    9 Nova Obuca shelter they hauled out the elderly married

    10 couple Dragoljub and Milica Vracaric, stole 42,000

    11 Dinars from them and shot them. Nothing is known about

    12 the group of Serbs who took shelter in the Dom Tehnike

    13 on 28 October 1991 - Zoran Petrovic, Mladen Jovic,

    14 Radovan Lukicevic, Jovica Leskovac, Vojo Dekic, Ranko

    15 Perkovic, and Mileta Stankovic. Zoran Sipos and his

    16 cronies effaced all traces of their existence.

    17 The Defence is presenting supporting material

    18 in connection with all of this, and these are binding

    19 sentences of the military court in Belgrade. You can

    20 see this and I submitted this to you and to the

    21 Prosecution and the Registry.

    22 I kindly request that we show another video

    23 clip, from which you will see what happened at the JNA

    24 barracks and in Bjelovar.

    25 JUDGE CASSESE: Can I ask you to explain the

  30. 1 origin of these videotapes -- who shot the tapes --

    2 this applies also to the last one?

    3 MR. FILA: It was filmed by the Croats but

    4 they forgot that the Yugoslav television displayed it,

    5 too. I received it from the Yugoslav television and

    6 also the next videotapes you will see, so they are

    7 undeniable. Now you also see a mark logo of the

    8 television, too.

    9 (Videotape played).

    10 Strangling of a soldier, Split, 6 May 1991.

    11 MR. FILA: This soldier was a Macedonian.

    12 (Videotape continued).

    13 THE INTERPRETER: Bjelovar, September 1991,

    14 massacre of members of the JNA.

    15 MR. FILA: 40 groups were identified and

    16 hundreds of criminals on the territory of Vukovar. The

    17 military court in Belgrade identified over 100 members

    18 of the ZNG and the Ministry of the Interior of

    19 Croatia. A small number was brought to justice and

    20 convicted. At that time, the Yugoslav People's Army,

    21 the JNA, comprised soldiers of all nationalities from

    22 the territory of the SFRY suffered special forms of

    23 pressure starting in 1991. During the summer and

    24 autumn of that year, Croat paramilitary forces

    25 attacked JNA units. First they would surround the

  31. 1 barracks, carry out various acts of sabotage and

    2 finally kill soldiers regardless of their nationality.

    3 The JNA barracks in Delnice, Koprivnica, Virovitica,

    4 Osijek and Bjelovar were surrounded in this way. These

    5 were cities in which armed conflicts had not broken

    6 out. The JNA barracks in Vukovar was under blockade

    7 for several weeks. All communications were severed,

    8 the soldiers remained without food and water, in a

    9 word, without they were without the basic necessities

    10 of life. All the efforts of the JNA and the political

    11 bodies of the former SFRY to solve that problem in a

    12 peaceful way were of no avail. The situation

    13 constantly worsened. Many soldiers lost their lives in

    14 their barracks compounds.

    15 I now kindly request you view two video

    16 clips, the one from Split which we already have seen,

    17 and the one from Bjelovar. The barracks in Bjelovar

    18 where the ZNG members killed several members of the JNA

    19 -- you will see that now.

    20 (Videotape played).

    21 The JNA barracks in Bjelovar.

    22 MR. FILA: That is barracks without any Serbs

    23 -- on the territory of Croatia. These are not Serbs,

    24 Sir.

    25 (Videotape continued).

  32. 1 This is the Croat State and it is going to

    2 be free of occupiers and Chetniks. We are going to

    3 liberate it. Until the very last, it will never fall.

    4 For the home and freedom, but only to the Croat

    5 people. This is a young man, he is active -- well, he

    6 is not really active. He is a reservist, possibly.

    7 There were very few active soldiers.

    8 Our army has to be a lasting foundation of

    9 our independence.

    10 MR. FILA: The conflicts in Vukovar started

    11 and the fighting lasted for several months. The city

    12 suffered severe damage. The Vukovar hospital, by

    13 definition a protected building under the relevant

    14 conventions, was used for precisely opposite purposes.

    15 The Croat paramilitary carried out combat operations

    16 from that building, which Dr. Skow has also testified to

    17 before this court, as Dr. Ivankovic in his statement

    18 which I am presenting as supporting material.

    19 Why did the Serb people take up arms to

    20 defend themselves in the Vukovar area? Apart from

    21 their collective memory of their suffering in 1941, the

    22 Serbs were apprehensive of the secession of the

    23 Republic of Croatia -- and they had good grounds for

    24 that -- from the SFRY and for good reason, for they

    25 had already seen a constitution turning them from a

  33. 1 constituent nation into a national minority

    2 promulgated. Everything which happened later only

    3 justified their fears. Of course, the Serb people

    4 organised themselves for the defence and formed in the

    5 areas in which they lived the Republic of

    6 Srpska Krajina covering a third of the territory of

    7 Croatia. They were, once again in their history,

    8 trying to prevent the crime of which they had been the

    9 greatest victim during the Second World War. I kindly

    10 request that we show video clip 6 on the suffering of

    11 Serbs in Vukovar.

    12 (Videotape played)

    13 "This is the JNA entering Vukovar. The one

    14 lying there on his stomach, that is Ilija Vukovic.

    15 This is his home, the house that has been torn down,

    16 the one here, the one lying here on his stomach -- no,

    17 rather on his back -- that is his house, a Serb, too.

    18 This woman lying here, over the old lady, the first one

    19 here, that is the wife of Ilija Vukovic and I do not

    20 know these two women. I cannot see their faces.

    21 I know about the three of them, though."

    22 MR. FILA: The result of the attempt of the

    23 Serbs to win the right of their own State is today

    24 clear to everyone. In 1995, the Croat army mounted

    25 the famous "Flash" and "Storm" operations and, in a

  34. 1 short while, expelled the Serb population from the

    2 regions of Northern Dalmatia, Lika, Banja, Kordun and

    3 Western Slavonia. Of course, those who survived.

    4 The Serbs were banished from their ancestral

    5 homes. Croatia successfully gained an ethnically pure

    6 Croat population within its present State borders.

    7 The Serbs in the area of Eastern Slavonia

    8 suffered the same fate, this time not through a

    9 military operation but at the negotiating table.

    10 According to the Erdut Agreement, it was given to the

    11 Republic of Croatia. What does this look like

    12 numerically? The answer can be found in the publication

    13 "1991 Population Census -- the Ethnic Composition of

    14 Croatia Settlement by Settlement". (Republican

    15 Institute of Statistics of the Republic of Croatia,

    16 Zagreb, April 1991. Preface, Dr. Jakov Gelo, Director

    17 of the Institute). A quote: " Croatia is the state of

    18 the Croats. The Serbs are the most numerous national

    19 minority in Croatia. At the time of the 1991 census

    20 they numbered 581,663 people. The Serbs were an

    21 absolute or relative majority in 1,105 Croat

    22 settlements." .

    23 According to statements made in the

    24 publication, the total number of inhabitants of the

    25 Republic of Croatia in 1991 was 4,784,265, which means

  35. 1 that Serbs accounted for over 12 per cent. The same

    2 publication gives the total number of settlements in

    3 the Republic of Croatia from which it follows that

    4 Serbs constituted an absolute or relative majority in

    5 over 17 per cent of the total number of settlements.

    6 After the "Flash" and "Storm" operations and

    7 the Erdut agreement, 127,000 Serbs remained in

    8 Croatia. Today, there are only 67,000 of them. Hence,

    9 from 1991 to the end of 1997, the Republic of Croatia

    10 managed to reduce the number of its inhabitants as per

    11 the 1991 Census by over half a million Serbs.

    12 This time, all the doors have closed. The

    13 idea of Ante Starcevic, through the genocidal crimes of

    14 Ante Pavelic, to the ethnically pure Croatia of Franjo

    15 Tudjman, has finally come full circle. From 1941 and

    16 the time of the independent State of Croatia, through

    17 the "brotherhood and unity" of the SFRY, to the present

    18 when that State no longer exists, over 90 per cent of

    19 the Serbs in Croatia have been driven into exile or

    20 physically destroyed.

    21 The number of Serbs living in Croatia today

    22 is only symbolic. According to the latest estimates at

    23 the beginning of this year, that number decreased by a

    24 further 30,000 to 35,000 so that if the mentioned

    25 Dr. Galo were to a write a population census in the year

  36. 1 2001, he could, in his introduction, repeat the same

    2 slogan, "Croatia is the State of the Croats" and he

    3 would be 100 per cent. Today Europe can envy Croatia,

    4 it is ethnically the most homogenous State of the old

    5 continent.

    6 With the permission of your Honours, I am

    7 going to go faster through the next portion, because it

    8 deals with the United Nations. From 9 November until

    9 this year --

    10 JUDGE CASSESE: Mr. Fila, may I ask you

    11 whether you could kindly summarise this section on the

    12 impotence of the international community to protect the

    13 Serbs, or even skip it? Please, slow down!

    14 MR. FILA: That is exactly what I asked for.

    15 JUDGE CASSESE: Do not speak too fast,

    16 please.

    17 MR. FILA: As regards point B, there are 15

    18 resolutions of the Security Council of the

    19 United Nations that were submitted. They all deal with

    20 one common idea and that is that the Security Council

    21 of the United Nations calls upon the Government of the

    22 Republic of Croatia to honour its commitments and the

    23 last one is from 6 May this year. In the meantime,

    24 Serb cemeteries in Vukovar were devastated. Over 2,000

    25 Serbs went to Norway and the number of Serbs has been

  37. 1 reduced to a very large extent. What is not clear is

    2 how many more resolutions of the Security Council of

    3 this kind will be passed. Probably not too many,

    4 because, when the last Serb has left, there will be no

    5 reason to pass such security resolutions by the

    6 Security Council of the United Nations.

    7 Now I am going to move on to the resolutions,

    8 or, rather, I wish to say in the supporting material

    9 you have the relevant resolutions and now I wish to

    10 move on to point C, Mr. Slavko Dokmanovic, his

    11 curriculum vitae so that we know who we are dealing

    12 with.

    13 The family of Slavko Dokmanovic has been

    14 living in the area of the municipality of Trpinja for

    15 over 250 years. He was born in 1949 and lived and

    16 worked in that area until he was forced to leave it and

    17 flee to Sombor as a refugee. He graduated from the

    18 Faculty of Agriculture in Osijek in 1974 and after

    19 serving in the army got a job with the VUPIK company.

    20 Since May 1990, at the first multi-Party

    21 elections, as an SDP (Party of Democratic Changes)

    22 candidate, which won the elections, he was appointed to

    23 the office of the chairman of the Municipal Assembly of

    24 Vukovar. He held this post until the beginning of June

    25 1991, when he was told to leave the post.

  38. 1 He lived in the house 10 kilometres from

    2 Vukovar, until he was expelled, and commuted to work

    3 every day. Croat patrols stopped him on the road as

    4 he went to work and carried out checks and searches for

    5 no reason. So after that, on 23 July 1991, he was

    6 formally relieved of his duties.

    7 That same day, the Municipal Assembly of

    8 Vukovar was dissolved according to a decision of the

    9 Government of the Republic of Croatia.

    10 He continued to live in his village and the

    11 office of chairman of the Municipal Assembly was held

    12 by the then deputy chairman Marin Vidic Bili. On

    13 23 July 1991, he was formally installed as

    14 representative of the Government of the Republic of

    15 Croatia in the City of Vukovar, which is four months

    16 before these events. Slavko Dokmanovic was not a

    17 President or anything else at the time.

    18 His political engagement began in August

    19 1991. He was appointed Minister of Agriculture,

    20 because he graduated from the Faculty of Agriculture

    21 for the District of Slavonia, Baranja and Western

    22 Srem. He performed tasks relating to the development

    23 of agriculture, the protection, use, and improvement of

    24 agricultural land, forests and water, flora and fauna,

    25 the development of the countryside, the food industry,

  39. 1 the water industry, and water supply, and other tasks.

    2 I have supplied you with the law and the

    3 ministries of the Serb District of Slavonia, Baranja

    4 and Western Srem, article 10 of the official gazette of

    5 the Serb District No. 1. You can see a description

    6 of these activities.

    7 At the end of 1991, when the Serb Krajina

    8 was established and its Government formed Slavko

    9 Dokmanovic held no Government office in the Republic of

    10 Serbia Krajina at all.

    11 He worked at the Vinarija in Vukovar until

    12 1994. The Municipal Assembly of Vukovar was

    13 constituted in 1993. Slavko Dokmanovic was elected

    14 chairman of the Municipal Assembly of Vukovar, once

    15 again in 1994. He held that post until 5 April 1996,

    16 when he was relieved of office.

    17 He continued to live in Trpinja and, as a

    18 refugee, went to Sombor. He lived in Sombor with his

    19 family, where his family lives today and he lived there

    20 until his arrest and until he was brought to The

    21 Hague. Slavko Dokmanovic was brought before the County

    22 Court in Osijek, accused of criminal offences other

    23 than the ones he is charged with before this Tribunal

    24 and he had to leave Croatia. I should like to

    25 underline the following paradox: if proof really

  40. 1 existed for the acts he is charged with in the

    2 indictment, he would probably have answered for the

    3 same acts before the County Court in Osijek, but he was

    4 never brought up on charges like the ones brought

    5 against him here.

    6 The political functions of Slavko

    7 Dokmanovic:

    8 At the time covered by the indictment, he

    9 neither formally nor actually held the office of

    10 chairman of the Municipal Assembly of Vukovar. The

    11 Defence will present evidence to the effect that, from

    12 June 1991, he was prevented from holding that office.

    13 The assembly was dissolved and stopped

    14 working on 23 July 1991. That marks the formal end of

    15 the term of office of Slavko Dokmanovic. From that

    16 time onwards Marin Vidic Bili held the post of

    17 representative of the Government of Croatia.

    18 Dokmanovic was again elected chairman of the

    19 newly formed assembly only in 1994. The documents and

    20 opinions of experts will prove that it was practically

    21 impossible to gain such a post for Dokmanovic under the

    22 circumstances prevailing until the end of 1991 and that

    23 it is legal fiction in charges and that this was

    24 impossible under the circumstances that prevailed in

    25 those areas at the end of 1991, and, as I say, that it

  41. 1 is a legal fiction in the charges.

    2 Vukovar was under military rule in the period

    3 to which the indictment refers. It was a period

    4 immediately following the end of the fighting, or where

    5 fighting was still going on. According to the

    6 testimony of the witnesses, Vesna Bosanac and Marin

    7 Vidic and others all negotiation were conducted with

    8 JNA officers because there was no civilian authority in

    9 Vukovar and therefore no President of the municipality

    10 of Vukovar.

    11 The first civilian authority of Vukovar was

    12 formed pursuant to a decision of the Government of the

    13 Serb district of Slavonia, Baranja and Western Srem

    14 on 28 November 1991 at the end of the war operations.

    15 At that time, Srbobran Bibic was elected

    16 President of the Executive Council of the municipality

    17 of Vukovar.

    18 This council actually started working only in

    19 mid December 1991, as it gradually took over from the

    20 military authorities' various levels of responsibility

    21 for normal life in the city.

    22 The Executive Council performed its functions

    23 until it was discharged in 1993, which is when the

    24 assembly of the municipality of Vukovar was set up and

    25 its first President was Vojislav Stanimirovic, who is

  42. 1 the leader of the Serbs at the present time in that

    2 region.

    3 Slavko Dokmanovic was elected chairman of the

    4 Municipal Assembly of Vukovar in 1994 for the second

    5 time.

    6 It is important to note that, while holding

    7 that post for the first time in 1991, he undertook

    8 activities aimed at the peaceful resolution of the

    9 crisis - that is why he was not popular either with the

    10 extremist Serbs or the extremist Croats. From the

    11 abundance of available material, we shall present his

    12 speeches, newspaper articles and videotapes attesting

    13 to his unreserved commitment to the peaceful resolution

    14 of the conflict.

    15 May I have tape number 7 now, please, which

    16 is one of the segments that I wish to show you?

    17 (Videotape played).

    18 "Today's information of the Serb

    19 Montenegrin Party of the President of Yugoslavia that

    20 tomorrow I cannot be present at the peace conference in

    21 Yugoslavia and The Hague --"

    22 MR. FILA: This is an error, sorry, just a

    23 moment. I apologise, your Honours, there has been an

    24 error, which we shall put right in just a moment. Your

    25 Honours, I would take advantage of this opportunity to

  43. 1 ask you and the Prosecutors, when I come to the end of

    2 point 7, Slavko Dokmanovic's alibi, and points B and

    3 analysis of the witnesses, I will move over this

    4 quicker, because I will be giving this analysis later

    5 on, and you have the text anyway. You have it before

    6 you, so I will skip over this part of the analysis of

    7 the statements of the Prosecution witnesses.

    8 JUDGE CASSESE: Is it fine with you if we

    9 take a break in 10 minutes, or you can tell me when you

    10 think it is appropriate -- 10 minutes -- because the

    11 interpreters --

    12 MR. FILA: Yes, let us say 10 minutes. We

    13 shall be over in about 10 minutes.

    14 (Videotape played)

    15 "Because of the disturbing situation in the

    16 villages of the Vukovar municipality with the

    17 predominantly Serb population, the President of the

    18 Municipal Assembly, Slavko Dokmanovic, invited all the

    19 citizens to show level-headedness and to wait for the

    20 unfolding of the crisis calmly."

    21 MR. FILA: In the second mandate, once again,

    22 he advocated the peaceful integration of this area into

    23 the Republic of Croatia and the result was his

    24 participation in the agreements which later led to the

    25 Erdut agreement. You have numerous photographs in the

  44. 1 supporting evidence, which bears this out, both with

    2 Mr. Klein, Mr. Rowan, and others.

    3 In that period, no-one applied to him for

    4 permission to carry out exhumations at Ovcara, as such

    5 permission was to be obtained only from the Government

    6 of the Republic of Serb Krajina or the UNTAES, which

    7 we already had occasion to hear about in the

    8 testimonies of the Prosecution's witnesses.

    9 As the Defence has mentioned, Slavko

    10 Dokmanovic held the office of chairman of the Municipal

    11 Assembly of Vukovar twice, but he certainly did not

    12 hold that office at the time of the events at Ovcara.

    13 C: The alibi of Slavko Dokmanovic for 19, 20

    14 and 21 November -- you have received this in written

    15 form by the Defence on several occasions -- the 19th

    16 and 20th has already been claimed by the Prosecution.

    17 As far as 20 November is concerned, we are going to

    18 show, by a videotape and the witnesses to be seen on

    19 the videotape, that Slavko Dokmanovic, on 20 November

    20 1991, could not have been at Ovcara, because, at around

    21 8 a.m., he left his home with witnesses Jovo Cvetkovic and

    22 Rade Leskovac for Backa Palanka. At 9 a.m., he arrived at

    23 Backa Palanka where he spent some time with Ljuba

    24 Novakovic, the President of the Municipal Assembly in

    25 the building with members of delegations from Kladovo,

  45. 1 et cetera.

    2 Some time after 12 noon, he set out with Jova

    3 Cvetkovic, Nebojsa Lazarevic, Zoran Jeftovic and Rade

    4 Leskovac towards Vukovar and the evacuation of the

    5 victims from the hospital had already taken place, and

    6 they were in front of the barracks in Vukovar.

    7 After 3.30 p.m., he arrived in Vukovar, and he

    8 entered a VELEPROMET enterprise a little before

    9 2 o'clock -- he arrived at 1.30 p.m. At that time the

    10 buses with the victims left the barracks and were in

    11 the Ovcara hangar. There was a Government meeting in

    12 the VELEPROMET enterprise, and Dokmanovic was in the

    13 company of numerous Ministers and witnesses at that

    14 Government meeting.

    15 At 3.30 p.m. he left the VELEPROMET enterprise,

    16 and, with his fellow travellers, went to the centre of

    17 Vukovar, where he granted the witness Vukosav Tomasevic

    18 an interview for Radio Polimlje. Polimlje is a

    19 settlement in southern Serbia.

    20 Some time before 4 p.m. Slavko Dokmanovic left

    21 the city in a motorcade heading out of Vukovar. Before

    22 5 p.m., an incident occurred at the checkpoint barrier at

    23 Oriolik, which means that they had left Vukovar a long

    24 time ago, when Slavko Dokmanovic came into conflict

    25 with members of the military police barring passage to

  46. 1 his vehicle.

    2 At 5.30 p.m. he arrived in Sidski Banovci, which

    3 is a town on Serb territory. At 6.30 p.m. he left with

    4 Rade Leskovac to his home in Trpinja via Ilok and

    5 Erdut. He arrived home at about 8 p.m. There is no

    6 doubt that he was on the territory afterwards and the

    7 Prosecution agrees with me and this is the case for the

    8 21st as well. Thank you.

    9 In the written portion, the Defence provides

    10 an analysis of the statements of the Prosecution

    11 witnesses. I am going to pass over this section

    12 quickly, because you have it before you in writing, and

    13 I will mention it again in my summing up. Two witnesses

    14 confirmed that they personally saw Slavko Dokmanovic

    15 for a short while two to five minutes in the hangar at

    16 the Ovcara farm in the interval between 2 and 4 p.m.

    17 The other witnesses did not see Slavko

    18 Dokmanovic or even claim that he was in any of the four

    19 relevant places at which the indictment sees him.

    20 These sites are the hospital, the barracks,

    21 the hangar, and the execution site. These two

    22 witnesses did not see him at those three points,

    23 whereas the indictment sees him there.

    24 The Defence considers that these two

    25 witnesses are not to be believed. This Tribunal has

  47. 1 examples where the witnesses of the Prosecution's

    2 Office have been shown to be unreliable. In the first

    3 case, the first possibility is that these witnesses are

    4 not telling the truth, either on their own initiative,

    5 or on orders from somebody else. This happened with

    6 Witness L in the case of the accused Dusko Tadic, who

    7 said, before this Tribunal, that he was ordered to give

    8 testimony against Tadic.

    9 The second possibility, which is a much more

    10 probable one, is that the witness was wrong, given the

    11 specific mental state he was in, and that he simply

    12 confused persons in his memory.

    13 This same case happened before this same

    14 Tribunal with the witness Nesiha Klipic in the Grabez

    15 case before this Tribunal, but the case was held before

    16 the military court in Switzerland when the witness

    17 claimed she had watched Grabez on a tank for

    18 30 minutes. However, the court established that he had

    19 been in Germany at the time in question, thus the court

    20 accepted the alibi and explained that the witness

    21 Klipic was deluded and did not lend credence to her

    22 statement. In short, the witness had mixed up the

    23 individuals she was identifying. This second variation

    24 is more probable than the first.

    25 The Defence presented a table of the

  48. 1 witnesses Berghofer and Cakalic. The differences in

    2 their testimonies to the Defence and to this Tribunal

    3 and the differences that occur in the statements and

    4 their newspaper interviews -- we provide a table of the

    5 differences, because they do not coincide and agree on

    6 any points apart from the fact that Slavko Dokmanovic

    7 was there. They do not agree as to time, place, or

    8 anything else.

    9 They talk about a blue pilot's uniform which

    10 nobody has ever seen -- airman's uniform -- and the

    11 Prosecutor said that he was wearing a camouflage

    12 uniform anyway. Then we have mention of a blue pilot's

    13 uniform, and the other one testifies to a blue JNA

    14 uniform with the rank of colonel. One of them saw a

    15 five-pointed star on the head of the Tito cap; one

    16 speaks of a blue pilot's uniform with a sweat suit top

    17 to protect him from the rain -- a dark blue in colour

    18 -- and he sees a jacket, a shirt and tie, whereas the

    19 other individual saw a Tito cap with a five-pointed

    20 star on the head and no sweat suit top. Berghofer saw

    21 a pilot's uniform -- I do not know what the aviation

    22 would have been doing there anyway.

    23 As to rank, Berghofer did not see the rank of

    24 lieutenant colonel whereas the Cakalic statement did

    25 see the rank of lieutenant colonel. Berghofer said

  49. 1 there was no Chetnik, whereas the Prosecution says this

    2 was a key individual and was there for two to five

    3 minutes -- 10 minutes -- and said that this was a key

    4 individual. What key individual could have been there

    5 for such a short time?

    6 Berghofer thought that Dokmanovic was

    7 commanding the hangar. Then he later says that he did

    8 not have this impression. In his statement he does not

    9 say he was kicked with the leg. I have provided you

    10 with a complete table, so that you can see what and who

    11 -- who, what, when was stated. I can read out

    12 something else. There is a third possibility as well

    13 -- apart from the cases of Tadic and Grabez, the

    14 witnesses did see Dokmanovic sooner or later who they

    15 knew earlier on. Berghofer knew him better. Berghofer

    16 can easily be mistaken because he did not know him well

    17 and Cakalic because his glasses were broken and he had

    18 blood in his eyes. Both, in their own words, were

    19 beaten up and in terrible fear of their lives. There

    20 were many people at Ovcara and some of them resembled

    21 Dokmanovic. Mention is made of an officer with a

    22 moustache -- Dokmanovic has a moustache. Some people

    23 of his own age, his own height and his build, some

    24 majors and lieutenant colonels were mentioned as well,

    25 so it is possible to make a mistake, and that it was a

  50. 1 mistake. The best proof of that is the blue uniform of

    2 an air force lieutenant colonel of the JNA, which they

    3 only saw, and such a uniform as they describe does not

    4 exist in the JNA. Different type of uniforms were

    5 described -- camouflage, Territorial Defence uniforms

    6 and JNA uniforms, but nobody saw a blue uniform,

    7 especially not one worn by an air force lieutenant

    8 colonel.

    9 The Defence emphasises something else as

    10 well. I have sent you a copy of the interview of

    11 Berghofer and it is interesting that witnesses have the

    12 need to explain their behaviour to the newspaper. So,

    13 Berghofer, in his interview, states: "We have put

    14 Dokmanovic behind bars. We shall be doing the same

    15 with Mrksic." This was to be found in the "Arena"

    16 magazine of 1998. Who "we" are and who has been put

    17 behind bars is not quite clear.

    18 Finally -- I will be over in two minutes --

    19 the most important question is how we can, on the basis

    20 of statements of this kind, bear out the Prosecutor's

    21 point stated in the pre-trial materials, and the fact

    22 that the Defence will bring several witnesses, which

    23 will bear out the key role played by Dokmanovic, and

    24 his direct or indirect involvement in the crime that we

    25 are dealing with -- does this evidence bear that out,

  51. 1 that he had knowledge on the location that he had

    2 bulldozers for excavating the grave, organised buses,

    3 found executioners, misled the international observers

    4 and so on and so forth -- all this, in a matter of two

    5 to five minutes when he appeared at Ovcara, as the

    6 witnesses say.

    7 The second witness said that the bulldozer

    8 was there all the time and that he had selected the

    9 site and that it was some unknown officer and not

    10 Dokmanovic, whom he actually knew.

    11 On 20 November he was in a hunting suit which

    12 can be seen on the tape. It is no camouflage uniform.

    13 It is a hunting suit, because there was no water and no

    14 food, et cetera. He wore that same suit for two to

    15 three months. You will see on several occasions in

    16 several interviews, he was dressed the same way. It

    17 was not a blue pilot's uniform worn by a lieutenant

    18 colonel as the witnesses say.

    19 From the written evidence, we can see that he

    20 was neither an officer nor a soldier of the JNA, nor in

    21 any paramilitary formation. Therefore, he could

    22 neither have commanded nor carried out any supervision

    23 or command, as claimed in counts 25 and 26 of the

    24 indictment.

    25 He neither knew nor saw the accused officers

  52. 1 Mrksic, Sljivancanin and Radic, nor any participants in

    2 the events in the hangar at Ovcara. In any case, had

    3 Dokmanovic been at Ovcara, according to the testimony

    4 of the Prosecution Witness Q, he himself would have

    5 been liquidated, because they resented his having saved

    6 the remaining Croat policemen in Borovo Selo from

    7 liquidation and for not having armed the Serbs in

    8 Ovcara. You will hear more about this tomorrow. The

    9 Defence will prove using a video tape and the

    10 testimonies of witnesses on that tape as well as other

    11 witnesses and exhibits in evidence, that Dokmanovic was

    12 not at the Ovchara farm even for even those two minutes

    13 at the time asserted in the indictment either

    14 intentionally or by chance, as the witness states.

    15 The Defence will prove that Slavko Dokmanovic

    16 not only did not play a key role, as the Prosecution

    17 wishes to prove, but did not have any part in these

    18 events. Simply the wrong man has been accused and

    19 arrested. We should ask ourselves whether Slavko

    20 Dokmanovic is being held to account instead of the real

    21 culprits, who are at present not before this Tribunal.

    22 We must have a little patience and, sooner or later,

    23 they will be brought to face international justice.

    24 I think this is a good time for a break.

    25 JUDGE CASSESE: Yes. Thank you. We stand

  53. 1 adjourned for 20 minutes.

    2 (10.05 a.m.).

    3 (A short break).

    4 (10.30 a.m.).

    5 JUDGE CASSESE: Yes, Mr. Fila?

    6 MR. FILA: Legal issues. The indictment

    7 charges Slavko Dokmanovic on six counts. He is charged

    8 with grave breaches of the Geneva Conventions,

    9 violations of the laws or customs of war and crimes

    10 against humanity (counts 1, 2 and 3 refer to the

    11 beating that happened at Ovcara and counts 4, 5 and 6

    12 refer to the killings which occurred in connection with

    13 the large scale crime which took place there). None of

    14 these counts is alternative, but they are cumulative to

    15 the best of the Defence's understanding.

    16 Grave breaches of the Geneva Conventions

    17 according to the Geneva Conventions, the nature of the

    18 conflict in the territory of the former Yugoslavia --

    19 the Prosecutor claims that it was an international

    20 armed conflict and it is incorrect and unfounded. The

    21 Geneva Conventions from 1949 cannot be applied, so

    22 counts 1 and 4 have to be rejected. It seems that the

    23 Prosecutor treats the declaration of independence of

    24 25 June 1991 of Croatia as an undeniable legal act.

    25 This is not based either on international or internal

  54. 1 law. Croatia seceded from Yugoslavia and obtained

    2 independence in a process of rebellion, which,

    3 according to our internal law, was a criminal offence,

    4 and, in this way, it was in contravention of the rules

    5 of international law.

    6 The qualification of the declaration of

    7 independence as a legally permissible act can cause

    8 disastrous effects in terms of international stability

    9 and international order. This can be understood as

    10 support to all secessionist movements in the world and

    11 I believe this was not the intention of the Prosecutor.

    12 The Prosecutor's claim that "Croatia was

    13 clearly considered to be independent from 8 October

    14 1991" (pre-trial brief page 12) is actually a very

    15 dubious one. In addition to that, it is not of

    16 particular legal importance. In spite of the

    17 proclamation of independence on 25 June 1991 until the

    18 end of 1991, Croatia took part in the Federal

    19 authorities of the SFRY.

    20 On 27 November 1991, in Geneva, the

    21 representatives of the SFRY, the Republic of Croatia

    22 and the Republic of Serbia signed a Memorandum of

    23 Understanding, where it was made possible to apply the

    24 Geneva Conventions from 1949, or some of their rules

    25 for the protection of individuals and for hostilities.

  55. 1 With the permission of your Honours, I am going to say

    2 exhibit 1, 2, 3, 4, because this is supporting

    3 materials, so that you can be following what I am

    4 saying so that you could check whether what I am saying

    5 is true, or not.

    6 So I am talking about exhibit 1. The signing

    7 of the memorandum would have been pointless on

    8 29 November 1991 -- was Croatia considered to be an

    9 independent State, a contracting State according to the

    10 Geneva Conventions from 8 October 1991? Some people

    11 think the signing of the memorandum had an effect on

    12 the international nature of the conflict. This is

    13 quite wrong. There is no proof to support this. The

    14 general provisions of the memorandum include the

    15 following: the application of the previous provisions

    16 will not affect the legal status and the memorandum

    17 follows The Hague declaration of 5 November 1991, where

    18 the observance of International humanitarian Law should

    19 be ensured and this was signed by the Presidents of the

    20 six Republics.

    21 It would be illogical, legally, that the

    22 parties to the agreement sign an agreement to carry out

    23 Article 3 of the Geneva Conventions. They have to

    24 abide by the Geneva Conventions and Article 3 by virtue

    25 of the Geneva Conventions themselves, had they been

  56. 1 independent, of course. The agreement in the field of

    2 international humanitarian law has a point only if they

    3 are prepared to observe this and this was the case

    4 here. Even this Croatia considered to be independent

    5 at that time on 8 October 1991. If it was an

    6 independent State then and if it thought that it had

    7 obtained independence then and if, that is, had they

    8 believe post factum, this is legally unimportant. It

    9 is only facts that are of a decisive importance from

    10 then, from a legal point of view -- not what happened

    11 if in 1992 and 1993 as the Prosecution says and then to

    12 recognise that retroactively.

    13 We are dealing in this trial with what

    14 happened in 1991 and Croatia did not exist as an

    15 independent State and from that date it is said that

    16 Croatia obtained all the criteria for obtaining

    17 independence and this is again from the Prosecutor's

    18 brief and this is not based on facts or law. Two

    19 simultaneous processes of rebellion were taking place

    20 at that time in the Croatia and SFRY. One of the

    21 processes was the armed rebellion of the Croats against

    22 the JNA -- the Croat forces against the JNA whose

    23 units were legally present on the territory of Croatia,

    24 because it was then part of the territory of the SFRY.

    25 The second parallel process is the armed

  57. 1 rebellion of the Serbs against the new Croat

    2 Government. In this situation, the new Croat

    3 Government did not hold under its control a large part

    4 of Croat territory and they were in conflict with

    5 the local Serbs and the JNA. In addition to that, the

    6 relevant situation was characterised by a massive

    7 violation of the rights of Serbs in Croatia during the

    8 relevant period of time. (INAUDIBLE) confidence and

    9 peace in Yugoslavia, organised by the international

    10 community, was active in seeking a peaceful solution.

    11 Finally, the recognition of the Republic of Croatia was

    12 carried out on 15 January 1992 by the members of the

    13 European Community, and that was assessed by important

    14 politicians as having been premature.

    15 The way in which the Prosecutor approaches

    16 the so-called Badinter Commission (page 13 of the

    17 brief) to prove its legal position, does not meet the

    18 high expectations of the legal community of the world

    19 in this respect. The Prosecutor invokes only one

    20 paragraph of the rich legal opus of the Badinter

    21 Commission and this is an incomplete quote. It is more

    22 than surprising that the Prosecutor did not cite the

    23 most relevant statement of the Badinter Commission

    24 expounded in opinion number 1 of 29 November 1991,

    25 which reads as follows:

  58. 1 "Although so far the SFRY has retained its

    2 international personality, notably inside international

    3 organisations, the Republics have expressed their

    4 desire for independence."

    5 This is in the future. B:

    6 "In Croatia a referendum held in May 1991

    7 followed by a declaration of independence on

    8 25 June 1991, which was suspended for three months, and

    9 confirmed on 8 October 1991."

    10 The recourse of force has led to armed

    11 conflict between the different elements of the

    12 federation which has caused the death of thousands of

    13 people and wrought considerable destruction within a

    14 few months only.

    15 The authorities of the federation and the

    16 republics have shown themselves to be powerless to

    17 enforce respect for the succeeding cease-fire

    18 agreements concluded under the auspices of the European

    19 communities or the United Nations organisation (exhibit

    20 number 2 which I have presented).

    21 It is quite clear that the Badinter

    22 Commission qualified then (namely, on 29 November 1991)

    23 the conflict as an internal conflict.

    24 The arbitration commission qualified the

    25 conflict, and I underline this, as "an armed conflict

  59. 1 between different elements of the federation". Then,

    2 on 29 November 1991, the Badinter Commission treated

    3 "declaration of independence on 25 June 1991", which

    4 was suspended for three months, only that the republic

    5 had expressed interests its desire for independence.

    6 At that time, the Badinter Commission did not find that

    7 Croatia had acquired its independence.

    8 Furthermore, the Prosecutor failed to quote

    9 the relevant statements of the Badinter Commission

    10 contained in its opinion number 5 of 11 January 1992 on

    11 the recognition of the Republic of Croatia by the

    12 European Community and its member States, when the

    13 Commission considered the constitutional act of

    14 4 December 1991 does not fully incorporate all the

    15 provisions of the draft convention of 4 November 1991,

    16 notably those contained in Chapter 2, Article 2(c)

    17 under the heading "Special Status". The authorities of

    18 the Republic of Croatia should therefore supplement the

    19 constitutional act in such a way as to satisfy those

    20 provisions and, subject to this reservation, the

    21 Republic of Croatia meets the necessary conditions for

    22 its recognition by the Member States of the European

    23 Community in accordance with the declaration on

    24 Yugoslavia and the guidelines on the recognition of new

    25 States in Eastern Europe and in the Soviet Union

  60. 1 adopted by the Council of the European Communities on

    2 16 December 1991. This is exhibit number 3.

    3 If the Badinter Commission was of the opinion

    4 on 11 January 1992 that Croatia, even at a normative

    5 constitutional level, did not meet the legitimate

    6 expectation concerning the protection of the Serb

    7 minority, who could expect that the SFRY, before that

    8 date, saw Croatia as an independent State, namely, a

    9 State which is prepared to respect its international

    10 obligations, including those concerning protection of

    11 minorities? The full text of the paragraph 11 of

    12 16 July 1993 quoted by the Prosecutor, in part, reads

    13 as follows, and I shall read the entire text now:

    14 "The issue is the same as regards the

    15 Republics of Croatia and Slovenia, both of which

    16 declared their independence on 25 June 1991, and

    17 suspended their declaration of independence for three

    18 months on 7 July 1991 as provided by the Brijuni

    19 Declaration."

    20 In accordance with the declaration the

    21 suspension ceased to have effect on 8 October 1991 --

    22 only then did those two Republics definitely break all

    23 links with the organs of the Socialist Federal Republic

    24 of Yugoslavia and become sovereign States in

    25 international law. For them then 8 October 1991 is the

  61. 1 date of State succession (exhibit number 4).

    2 The underlined part of the sentence is not in

    3 the quotation -- yes, break all links with organs of

    4 the SFRY is of importance for the consideration of the

    5 date of acquisition of independence by the two

    6 republics, but it is not correct that the Republic of

    7 Croatia, on 8 October 1991, did break all links with

    8 the organs of the SFRY.

    9 That is why the Prosecutor did not quote

    10 that. Simply this is not true. We shall demonstrate

    11 that it is wrong -- if the premise is not correct, the

    12 conclusion cannot be correct, either. Finally,

    13 opinions of the Badinter Commission are without legal

    14 force and they are not legally binding. I shall kindly

    15 ask to show the last part of the videotape. You are

    16 now going to see Mr. Mesic.

    17 (Videotape played)

    18 THE INTERPRETER: The information provided by

    19 the Serb Montenegrin Party of the Presidency of

    20 Yugoslavia that they cannot be present at the plenary

    21 session of the Peace Conference on Yugoslavia in The

    22 Hague today because they do not have a platform, Mesic

    23 says this is yet another attempt to stop the European

    24 peace initiative, namely, to have Serbia impose its

    25 option by force. Mesic considered this to be

  62. 1 obstruction of the meeting in The Hague yesterday and

    2 he added that this will not succeed, although they have

    3 opted for general mobilisation."

    4 In response to the question what can be

    5 expected of the conference tomorrow in The Hague, Mesic

    6 said that Lord Carrington could propose a final

    7 solution with which Serbia obviously is not satisfied.

    8 However, Serbia is not satisfied with a single solution

    9 in which the future States will be equal, and in which

    10 borders will be guaranteed, which Europe has worked out

    11 once and for all. Milosevic is not interested in the

    12 right of Serbs in Croatia.

    13 In response to the question whether the

    14 session tomorrow can mean peace for Croatia, President

    15 Mesic said yes, adding that, after tomorrow, in Europe

    16 and in the world, it has to be clear that they have to

    17 take resolute action to stop the Serb aggression

    18 against Croatia and Bosnia-Herzegovina.

    19 Mesic clarified that he meant the

    20 establishment of a buffer zone between Croatia and

    21 Serbia, particularly because this should be acceptable

    22 in principle for Serbia, because if they say that they

    23 are not at war with Croatia, this should be no problem,

    24 so if they are not at war, then they should not be

    25 bothered by buffer zones, said Stjepan Mesic. He also

  63. 1 said that no appeals or plans are valid for Serbia,

    2 saying that the decision passed today by the

    3 illegitimate presidency is proof that they want to

    4 cheat the world. The President, the presidency of

    5 Yugoslavia, Stjepan Mesic, criticised finally the

    6 federal administration, which did not provide an

    7 aircraft for him to fly to The Hague tomorrow. After

    8 having said that there was no (INAUDIBLE) and he said

    9 the federal administration was also working in favour

    10 of the coup d'etat part of the presidency, Tudjman.

    11 All members of the presidency of Yugoslavia were

    12 invited to the meeting, but, as you know, they did not

    13 respond to this invitation -- only the President of the

    14 Presidency, Mr. Stjepan Mesic, came to them as well as

    15 the member of the Presidency from Macedonia,

    16 Mr. Kovkovski, the others did not come. Also the Prime

    17 Minister of the Federal Government, Mr. Markovic, was

    18 invited and the Federal Secretary for Foreign Affairs,

    19 Loncar. The President of the Presidency of Yugoslavia,

    20 Stjepan Mesic, gave an interview to the German TV

    21 station ZDF, which was shown yesterday.

    22 The objective of all of this was to show

    23 that, after 8 October 1991, not all communications were

    24 cut off with Croatia, because this is The Hague

    25 conference, and that part of it the Prosecutor omitted,

  64. 1 let us say by accident, to quote.

    2 The Prosecutor deals with the nature of the

    3 armed conflict in a strange way. He was very selective

    4 in choosing a few facts of plurality from the relevant

    5 facts and on the statement of Badinter Commission

    6 incorrectly quoted and based, indeed, on wrong

    7 information about facts. That is that Croatia broke

    8 off all its relations with the SFRY on 8 October. You

    9 heard that the President Tudjman said on 5 December

    10 Mesic was President and you will agree that the SFRY

    11 could not exist somewhere in the year if it does not

    12 have a President.

    13 The testimony of Mr. Wheeler could be

    14 interesting, as the view of an historian, but it cannot

    15 be relevant from the point of view when the SFRY

    16 allegedly ceased to exist and when Croatia gained its

    17 independence. He is simply not qualified for that.

    18 Mr. Wheeler refers to statements made by the

    19 Presidents of some Yugoslav republics in May 1991,

    20 regarding the alleged dissolution of the SFRY.

    21 However, he fails to mention the well known statement

    22 by Stjepan Mesic made in the Croat SABOR Parliament

    23 on 5 December 1991, when he was recalled by the SABOR

    24 as President of the SFRY and he said "I did the job.

    25 Yugoslavia does not exist any more" -- exhibit

  65. 1 number 5.

    2 If one bears in mind the statement by Mesic,

    3 then there is no wonder that the members of the SFRY

    4 Presidency and some republics which wanted to preserve

    5 the unity of the territory of the SFRY, were opposed to

    6 his appointment as President of the Presidency.

    7 In any case, the fact that Mesic was not

    8 appointed on 15 May 1991 as President of the Presidency

    9 is not a fact relevant for deciding whether the SFRY

    10 ceased to exist and whether Croatia became an

    11 independent State. It is definitely not a relevant

    12 fact for a legal discussion. Perhaps it is for an

    13 historical one.

    14 Let us now take a look at the relevant

    15 facts. On 25 June 1991 Croatia, then one of the six

    16 Federal units of the Socialist Federal Republic of

    17 Yugoslavia, declared its independence. James Baker,

    18 former US Secretary of State, put forward on 12 January

    19 1995 the following opinion on the event to the House

    20 International Relations Committee of the US Congress.

    21 Mr. (INAUDIBLE) Baha(?) asked:

    22 "You were in Belgrade in 1989, I believe, as

    23 Secretary of State. Shortly thereafter, the Serbs

    24 launched an offensive against Croatia. Do you think

    25 that anything you said in Belgrade during that period

  66. 1 might have led them to believe that the United States

    2 would accept that, as an unacceptable policy of having

    3 this Serb domination of this area?"

    4 And Baker answered:

    5 "No, absolutely not. What is said is

    6 interesting, because I am writing a book about my years

    7 as Secretary of State, so I have gone back and reviewed

    8 the transcript of some of those meetings. What I said

    9 was that, if there were unilateral declarations of

    10 independence, followed by the use of force that

    11 foreclosed possibilities for a peaceful break-up,

    12 peaceful negotiations as required by the Helsinki

    13 Accord and that it would lead to the damnedest civil

    14 war ever seen and that is exactly what happened, and

    15 the fact of the matter is that Slovenia and Croatia

    16 unilaterally declared their independence despite these

    17 warnings. They used force to seize their border posts

    18 and that triggered off the civil war, civil conflict,

    19 which is what we said would happen."

    20 I present this as exhibit number 5.

    21 Baker never refuted this or denied it, so it

    22 can be taken to be the truth. Indeed, the unilateral

    23 proclamation of the independence of Croatia caused a

    24 civil war -- the damnedest ever. The Croat

    25 Democratic Union, the HDZ, a political Party winning

  67. 1 the first multi Party elections revived the spirit of

    2 the Croat Nationalist Ustasha movement who committed

    3 genocide of the Serbs, Jews and gypsies during World

    4 War II and the new authorities took a hostile attitude

    5 towards the Serb people in Croatia, culminating in the

    6 crimes including mass crimes in 1991, and this, as its

    7 consequence, led to armed resistance of Serbs in

    8 Croatia and the civil war there.

    9 On 7 July 1991, the European Community

    10 ministerial Troika met the representatives of all

    11 parties directly concerned at the invitation of the

    12 Yugoslavia Government. The following modalities for

    13 the implementation of a cease-fire were agreed upon:

    14 the lifting of the blockade over the JNA units and

    15 facilities and barracks, the unconditional return of

    16 the JNA units to their barracks, that all roads be

    17 cleared, return of all facets and equipment to the JNA

    18 and a deactivation of the Territorial Defence Units and

    19 a return to their quarters (exhibit number 6).

    20 On 1 September 1991, in Belgrade,

    21 Stjepan Mesic, Ante Markovic, and the presidents of the

    22 six Republics signed the Cease-fire Agreement (exhibit

    23 number 7). Let me repeat that Mesic and Markovic were

    24 representatives of the Croats, so that was September

    25 1991. The European Community convened an International

  68. 1 Conference for Peace in Yugoslavia on 7 September

    2 1991. All the Republics and all their presidents and

    3 the President of the EC Council and representatives of

    4 the EC Commission and EC Member States, participated in

    5 the conference.

    6 In September, October and November 1991, the

    7 new Croatia authorities killed a great many Serb

    8 civilians in Gospic, Pakrac, and other parts of

    9 Croatia. On 16 October 1991, the SFRY constitution

    10 court annulled the decision on Croatia's sovereignty

    11 and independence. The judge from Croatia took part in

    12 adopting the decision on this, and that is presented as

    13 exhibit number 8.

    14 On 18 October 1991, the second plenary

    15 meeting of the conference was held at which

    16 Lord Carrington submitted to the conference

    17 arrangements of a general settlement, proposing a new

    18 arrangement for relations between the six Republics and

    19 within them.

    20 On that same day, the Presidency of the SFRY,

    21 Stjepan Mesic and Franjo Tudjman, President of Croatia,

    22 concluded an agreement on a cease-fire including the

    23 lifting of blockade of all JNA barracks (exhibit number

    24 9) so two Croats reached an agreement there -- one on

    25 behalf of the SFRY and the other in the name of

  69. 1 Croatia.

    2 On 4 November, Lord Carrington submitted

    3 treaty provisions for convention, including a catalogue

    4 of human and minority rights; the creation of

    5 autonomous structures, which included legislative,

    6 executive and judicial functions in areas where members

    7 of a national minority form a local majority. This

    8 included demilitarisation, et cetera.

    9 On 6 November (INAUDIBLE) Stjepan Mesic,

    10 President of the Presidency of the SFRY appeared at the

    11 8th plenary session of the Conference for Peace in

    12 Yugoslavia held in The Hague (exhibit number 10). That

    13 is after 8 October. On 5 December, the Croat

    14 Parliament recalled Stjepan Mesic from the post of the

    15 Presidency of the SFRY. On 15 January the Member

    16 States of the EEC recognised Croatia.

    17 Leading politicians, including US Secretary

    18 of State, Christopher, recognised later that the

    19 recognition of Croatia was premature (exhibit number

    20 12).

    21 Relevant contemporary determination of the

    22 nature of the armed conflict: I am just going to tell

    23 you the resolutions. The Security Council was very

    24 much involved in the Yugoslav crisis in November 1991

    25 as it was later on. It is of crucial importance for a

  70. 1 decision on the nature of the armed conflict between

    2 the Yugoslav People's Army and Croat rebel forces that

    3 the Security Council never qualified this conflict as

    4 an international conflict. I shall quote the relevant

    5 parts of the resolutions of the Security Council

    6 reflecting a qualification of the nature of the

    7 conflict. Security Council resolution 713 of 1991,

    8 exhibit number 13:

    9 "Deeply concerned by the fighting in

    10 Yugoslavia, which is causing a heavy loss of human life

    11 and material damage, et cetera. Expresses its full

    12 support for the collective efforts for peace and

    13 dialogue in Yugoslavia, fully supports all arrangements

    14 and measures resulting from such efforts as those

    15 described in Yugoslavia, once again and the peaceful

    16 functioning of the process within the conference on

    17 Yugoslavia. Strongly urges all parties to abide

    18 strictly by the cease-fire agreements of 17 September

    19 1991."

    20 THE INTERPRETER: A little slower, please.

    21 JUDGE CASSESE: You are speaking too fast, I

    22 am afraid. Could you slow down, please?

    23 MR. FILA: Sorry:

    24 "Strongly urges all parties to abide strictly

    25 by the Cease-fire Agreements of 17 September 1991;

  71. 1 22 September decides under Chapter 7 of the Charter of

    2 the UN that all States shall, for the purpose of

    3 establishing peace and stability in Yugoslavia,

    4 immediately implement a general and complete embargo on

    5 all deliveries of weapons and military equipment to

    6 Yugoslavia" -- not Croatia and Yugoslavia but to

    7 Yugoslavia --"until the Security Council decides

    8 otherwise."

    9 Security Council resolution 721 of

    10 27 November 1991, exhibit number 14:

    11 "Deeply concerned by the fighting in

    12 Yugoslavia."

    13 Once again, so on -- serious violations. The

    14 whole sense of what I am speaking of here is that the

    15 question -- what can be concluded from these quotations

    16 of the UN resolutions? There are several conclusions.

    17 The Security Council treated this armed conflict the

    18 same way from 25 September 1991 to 27 November 1991,

    19 the time relevant to the indictment. It treated it as

    20 an internal armed conflict.

    21 Please note that the Security Council uses a

    22 qualification, a term: "Fighting in Yugoslavia", the

    23 Yugoslavia parties, those are the terms used -- peace

    24 keeping operations in Yugoslavia. It did not condemn

    25 the presence of the JNA forces in Croatia in any of its

  72. 1 resolutions. The peace keeping operation was envisaged

    2 not to separate the two parties in conflict but to

    3 protect the local Serb population. It is quite

    4 obvious, therefore, that it has not treated the armed

    5 conflict in the context of an interstate conflict, or

    6 the conflict -- a conflict between two Slovenian States

    7 -- independent States. The Security Council for the

    8 first time requests that the warring or conflicting

    9 parties adhere to the Geneva Conventions of

    10 13 July 1992. There is no permanent or ad hoc body in

    11 the UN system, and neither is the Tribunal empowered to

    12 review or even to change the findings of the UN

    13 Security Council.

    14 The Defence wishes to call your attention to

    15 Article 23 for the draft Statute for an International

    16 Criminal Court which has been adopted as a proposal

    17 presented by the International Law Commission, the

    18 Commission with undisputed legal authority. It reads

    19 as follows:

    20 "An act cannot be considered an act of

    21 aggression in the sense of this Statute unless the

    22 Security Council has not first determined that a State

    23 has committed an act of aggression which is the subject

    24 of a complaint."

    25 That is exhibit number 16. The International

  73. 1 Law Commission is therefore of the opinion that a

    2 determination of aggression comes under the exclusive

    3 competence of the UN Security Council. It is therefore

    4 clear that determining acts of aggression, breaches or

    5 threats of peace is reserved for the Security Council.

    6 It is therefore obvious that determining the nature of

    7 an armed conflict is an indivisible part of this

    8 exclusive competence of the Security Council itself.

    9 There is no reason for me to believe that the Security

    10 Council would wish to share this competence with anyone

    11 else, including this august Tribunal.

    12 Therefore, I conclude at the relevant time of

    13 this indictment, Croat forces were in conflict with

    14 local Serb forces and JNA forces. The Croat

    15 Government did not have any control over large parts of

    16 Croat territory. The Croat Government was not

    17 prepared to respect crucial laws of international law

    18 concerning human rights and the protection of

    19 minorities. Serb people in Croatia were exposed to

    20 crimes, including mass crimes performed by the Croat

    21 authorities.

    22 The Croat Government did not break its

    23 links with the organs of the SFRY. The conference for

    24 peace in Yugoslavia continued throughout this time.

    25 The Security Council treated the armed conflict in all

  74. 1 its relevant resolutions as an internal conflict, and

    2 therefore the armed conflict, at the relevant time, was

    3 an internal conflict and is therefore not applicable

    4 and subject to the Geneva Conventions.

    5 E3, the Application of International

    6 Conventions in Armed Conflict: the concept of grave

    7 breaches of the Geneva Conventions for the protection

    8 of victims of war can be applied only in an

    9 international armed conflict, and this was an internal

    10 armed conflict on the territory of Croatia, that is to

    11 say, the territory of Vukovar.

    12 If the Prosecution persists in its position,

    13 there will be unforeseeable harmful consequences for

    14 the future application of international humanitarian

    15 law. It is inadmissible for the Prosecution not to

    16 acknowledge the sovereign will of States expressed at

    17 the conclusion or ratification or any other commitments

    18 undertaken by States to extend on the basis of

    19 Article 3 mini conventions, the application of the

    20 Geneva Conventions for the protection of the victims of

    21 war from 1949, also in an armed conflict.

    22 That is present in many of the indictments by

    23 the Prosecution. The Prosecutor is endeavouring to

    24 prove the existence of an international armed conflict

    25 on the territory of the former SFRY, because he is so

  75. 1 compelled by the unfounded position of the Appeals

    2 Chamber in the Tadic case. The position of the Appeals

    3 Chamber totally disregards in this specific instance in

    4 the former SFRY, the obviously expressed will of the

    5 parties to the conflict to respect the rules of

    6 international law.

    7 Such a position totally rules out the

    8 possibility and sends a clear message to future parties

    9 to internal armed conflicts that they can freely

    10 conclude agreements on the basis of Article 3 common to

    11 the Geneva Conventions for the protection of victims of

    12 war, but they can freely violate them because they will

    13 not be punished. Therefore, such a position is

    14 indubitably contrary to the very spirit and evolution

    15 of international humanitarian law and the trend to

    16 protect the widest possible circle of individuals and

    17 scope for the application of the rules in particular

    18 cases of armed conflicts.

    19 That is why we consider that it is

    20 understandable, the view of experts dealing with

    21 international humanitarian law, that it would be tragic

    22 for the future application of rules of international

    23 humanitarian law if that position were to become law

    24 and this is quite understandable.

    25 For the sake of truth, we would like to

  76. 1 remind you that the victims at Ovcara also included

    2 persons who were foreign mercenaries, who, according to

    3 the rules of international law, do not fall within the

    4 category of protected persons. You have a German and a

    5 Frenchman, Jean-Pierre, or whatever his name is. In

    6 conclusion, the concept of the breaches of the 1949

    7 Geneva Conventions may only be applied to an

    8 international armed conflict which is not the case in

    9 the Dokmanovic case for at the relevant time on the

    10 territory of Croatia there was no international armed

    11 conflict. The Geneva Conventions for the protection of

    12 victims of war of 1949 cannot be applied in this

    13 particular case, hence the Defence does not accept

    14 paragraphs 22 and 23 of the amended indictment. All

    15 persons in the relevant time enjoyed the protection

    16 only according to the provisions of Article 3 common to

    17 the Geneva Conventions, which refers to the protection

    18 of victims in an internal armed conflict and provides

    19 minimum standards of humane behaviour applicable to any

    20 armed conflict, irrespective of its nature. The

    21 provisions of Article 3 of the Geneva Conventions is

    22 well known to you all.

    23 Let me now go to an analysis -- move on to F,

    24 point F, analysis of Article 2(a), 2(c), Article 3,

    25 Article 5(a) and 5(i).

  77. 1 Articles 2(a) and 2(c) of the Statute do not

    2 apply --

    3 THE INTERPRETER: A little slower, please.

    4 MR. FILA: -- because grave breaches of the

    5 Geneva Conventions for the protection of war victims

    6 are possible only in an international armed conflict

    7 and as we have shown this was not an international

    8 armed conflict.

    9 THE INTERPRETER: Would the speaker speak a

    10 little more slowly, please?

    11 MR. FILA: Article 2 of the Statute, reply of

    12 the Defence to the Prosecutor's brief of 10 February

    13 1998. At the relevant time, an armed conflict was

    14 underway on the territory of Croatia between organised

    15 armed groups of rebellious Croats and the JNA, which

    16 was at the time the armed force of the SFRY and Serbs

    17 defending themselves from the rebellious Croats, so

    18 there you have two sides.

    19 This internal armed conflict took place on

    20 the soil of SFRY, which was a single State at that time

    21 in the international legal sense.

    22 The internal conflict in Croatia started as

    23 early on as August 1990, and it was led by certain

    24 groups of Croat extremists. All the individuals who

    25 took part in the internal armed conflict during the

  78. 1 relevant period, enjoyed protection only according to

    2 the joint provision of Article 3 of the

    3 Geneva Conventions, with regard to a classification of

    4 the nature of the conflict in the former Yugoslavia,

    5 the Prosecutor's citing of the decision in the Tadic

    6 case is unacceptable and this is mentioned in the

    7 interlocutory appeal of April 1992. This does not

    8 hold water by law and it is Vukovar and Croatia. In

    9 the Tadic case, the situation in Croatia was not dealt

    10 with separately, because there was no need for this to

    11 be done.

    12 The Defence points to a major in-exactitude

    13 which the Prosecutor repeats in a number of places in

    14 this brief. It is the factual equalisation of the

    15 SFRY, the SRJ, the Federal Republic of Yugoslavia and

    16 the JNA (lexically, politically, formally and legally

    17 speaking, totally different concepts). In this way,

    18 the Prosecutor inadvertently or deliberately leaves the

    19 impression of total ignorance of the state of affairs

    20 in the then State at the time relevant to the

    21 indictment. At that time there was only one State, the

    22 SFRY, with only one army, the JNA. At the time the

    23 Federal Republic of Yugoslavia did not exist. The SRJ,

    24 which is the country I live in now.

    25 The accused Slavko Dokmanovic was not linked

  79. 1 to either the JNA or any paramilitary unit. The

    2 Defence does not accept the position of the Prosecutor

    3 that the accused had an evident connection with the JNA

    4 occupying power -- he was neither a member of the

    5 military or paramilitary formations, nor was he in the

    6 service of these formations as a civilian.

    7 The Defence does not accept the position of

    8 the Prosecutor that the accused had any evident

    9 connection and I quote "with the JNA occupying power".

    10 The armed forces of the SFRY on their own territory

    11 cannot be an occupying power, for it is impossible for

    12 the army of a State to occupy its own territory.

    13 The accused Slavko Dokmanovic was a citizen

    14 of the SFRY, and a citizen of the Republic of Croatia,

    15 as were the victims who tragically perished.

    16 Slavko Dokmanovic lived in the Republic of Croatia

    17 since birth and was particularly attached to the region

    18 and to the people of different nationalities for whom

    19 for decades he had gone through thick and thin, and he

    20 took no part whatsoever in the armed conflicts which

    21 erupted, that is to say, he never carried a rifle nor

    22 did he ever command soldiers. It is a fact that he

    23 held the post of Minister of Agriculture, which implies

    24 seeing that the civilian population is provided with

    25 food. On the basis of the above, the Defence cannot

  80. 1 accept the application of Article 2 of the Statute in

    2 this specific case. Equally, it does not accept that

    3 the accused was linked to any military formations

    4 whatsoever.

    5 Article 3 of the Statute: the Defence

    6 believes that it cannot be applied either in this

    7 specific case. Article 3 of the Statute refers to

    8 sources of international customary law, which include

    9 the laws and customs of war. Article 3 is a general

    10 clause which, under certain circumstances, covers all

    11 violations of international humanitarian law, which do

    12 not fall under Article 2, or are not covered by

    13 Article 5 of the Statute. This includes violation of

    14 the rules contained in common Article 3 of the

    15 Geneva Conventions and which are applied to armed

    16 conflicts in general.

    17 Therefore, the Defence believes that the

    18 accused cannot be charged with simultaneously

    19 committing articles 2, 3 and 5 respectively of the

    20 Statute, the Prosecutor must choose to prosecute either

    21 under Article 3 or under articles 2 and 5 of the

    22 Statute -- not all 3 together. That is untenable.

    23 I have given an explanation of this and I believe there

    24 is no need to repeat that because I see you have the

    25 text in front of you.

  81. 1 Articles 5a and 5(i) of the Statute -- the

    2 Defence submits that 5(a) and 5(i) of the Statute

    3 cannot apply in this specific case. Slavko Dokmanovic

    4 did not take part in an extensive or systematic crime,

    5 directed against a comparatively large number of

    6 victims. He was not a member of any military or

    7 paramilitary system or formation. He was not a person

    8 vested with authority to issue orders to military or

    9 paramilitary units. What happened at Ovcara was

    10 excessive behaviour by individual members of

    11 paramilitary formations, not an extensive and

    12 systematic crime. That is why the following assertion

    13 of the Prosecutor cannot be accepted: the fact that

    14 200 people were taken away does not suffice to claim

    15 evident methodicalness in the commission of this

    16 offence.

    17 The commission of this crime in Ovcara was

    18 not within the framework of a systematic crime. This

    19 is used from the statement of Witness Q, that the

    20 people were abducted from the barracks by members of

    21 paramilitary formations and taken to Ovcara without any

    22 pre-arranged plan or preparation and they were

    23 liquidated there.

    24 Furthermore, Croatia was not exposed to a

    25 large scale attack by the JNA, because at the time the

  82. 1 JNA was the only legitimate armed force on the soil of

    2 Croatia, because Croatia was at the time one of the six

    3 republics of the SFRY. It is clear from everything

    4 stated here that no elements exist of violations from

    5 Article 5 of the Statute, making its application

    6 unacceptable in this case.

    7 The Defence will now move on to

    8 Slavko Dokmanovic specifically -- his individual

    9 criminal responsibility and command responsibility.

    10 The Defence cannot accept Article 7(1) in this specific

    11 case. No individual criminal responsibility exists on

    12 the part of the accused Slavko Dokmanovic, for he did

    13 not commit, plan, instigate, order, or aid and abet in

    14 the planning, preparation or execution of the crimes

    15 referred to in articles 2, 3 and 5 of the Statute.

    16 2; the definition of intent according to

    17 Article 13 of the criminal code of the Socialist

    18 Federal Republic of Yugoslavia and enforced in the

    19 relevant period is as follows:

    20 "A criminal offence has been committed with

    21 intent if the perpetrator was aware of his offence and

    22 wanted to carry it out; or if he was aware that due to

    23 his action or failure to act a prohibited consequence

    24 might ensue, but consented to it ensuing."

    25 Slavko Dokmanovic -- application of

  83. 1 Article 7(3) of the Statute: the Defence cannot accept

    2 Article 7(3), either, because the accused Dokmanovic

    3 was not a military commander, nor did he have

    4 subordinates.

    5 Omissive criminal offences envisaged by the

    6 rules of international law and the Statute of this

    7 Tribunal can be committed only by persons having the

    8 powers and obligation of command in military units and

    9 of issuing of orders to other members of the unit, that

    10 is to say, that they have to have the position of a

    11 superior officer.

    12 Since Dokmanovic was not a member of any

    13 military or paramilitary formation, he did not have the

    14 authority to issue orders in any formation which took

    15 part in this armed conflict and in the crime at Ovcara.

    16 The Defence will prove that Dokmanovic did

    17 not know, nor could have known, of the critical events

    18 that took place in Ovcara, so he cannot be blamed for

    19 not having stopped the commission of this crime and,

    20 therefore, the application of this article is

    21 unacceptable.

    22 The Defence wishes to say the following: in

    23 the indictment it is established that only one event is

    24 in question -- it is factually and legally described as

    25 such. We do not accept the position of the Prosecutor

  84. 1 in the pre-trial brief that the question of whether the

    2 offences are treated cumulatively or in the alternative

    3 as the penalty does not stand.

    4 In this specific case, there exists an

    5 apparent ideal concurrence. We have a case where a

    6 given situation can be subsumed under a number of norms

    7 of criminal law, that is to say, where one action, one

    8 event, constitutes the substance of a number of

    9 criminal offences, with there existing only one

    10 criminal offence, so that we can speak about the

    11 possible existence of only one offence. This is

    12 because a given norm must take precedence in conformity

    13 with customary principles -- either speciality or

    14 subsidiary or consumption. You have received the

    15 supporting material in the German language, in all

    16 fairness, but I already told you, your Honour, that we

    17 in our country apply Roman law as the mother of all law

    18 and German Continental law. Therefore, the Defence

    19 does not accept there exist as many defences as the

    20 numbers of norms violated i.e. That there exists a real

    21 concurrence - concursus delictorum.

    22 There is additional argument as to why the

    23 Prosecution's view cannot be accepted. It is an

    24 indisputable fact that the norms of international

    25 humanitarian law are less specific and less precise

  85. 1 than the norms of national criminal law. They often

    2 partially overlap. However, they differ only in

    3 respect of some additional circumstances, and this is

    4 somehow called, in our case, the objective condition of

    5 incrimination. Accordingly, the Prosecutor

    6 incriminates the same action thrice; first, it

    7 constitutes grave breaches of the 1949 Geneva

    8 Conventions; secondly it violates the laws and customs

    9 of war; thirdly, it constitutes crimes against

    10 humanity.

    11 The Defence therefore believes that the

    12 principle either of consumption, or of subsidiarity

    13 must be applied here, especially when a less severe

    14 offence precedes a graver one as its preceding phase.

    15 According to the logic and reasoning of the Defence, in

    16 the event that someone committed a murder during an

    17 armed conflict and before that insulted the victim,

    18 tore the victim's clothes, threatened the victim,

    19 inflicted bodily injury on the victim, et cetera, the

    20 following criminal offences would have been committed

    21 concurrently -- an outrage to personal dignity, a

    22 threat to security, damage to the property of others,

    23 light bodily injury, grave bodily injury, murder, a war

    24 crime against the civilian population, because these

    25 are separate offences which differ in terms and

  86. 1 purpose. In this instance, one can speak only of an

    2 apparent ideal concurrence of consumption.

    3 So the Defence can not accept that the

    4 accused be charged with two forms of criminal

    5 responsibility -- command responsibility and

    6 responsibility for aiding and abetting. Legally and

    7 factually this cumulation is impermissible. The

    8 Defence wonders what it is that Dokmanovic is actually

    9 accused of -- what form of command responsibility --

    10 for command responsibility or aiding and abetting? .

    11 One cannot conclude this on the basis of the indictment

    12 at all, because, in my opinion, these are two forms of

    13 criminal responsibility, which are mutually exclusive.

    14 In the case of command responsibility, this

    15 kind of responsibility constitutes a violation of the

    16 principle of subjective responsibility and the

    17 intention of article 86 of Protocol I is not adequate

    18 to the way in which this has been determined in the

    19 Statute and in the heretofore practice of the Tribunal,

    20 and in the case of aiding and abetting, this is a form

    21 of complicity, and a contribution to the commission of

    22 a criminal offence that somebody else is committing by

    23 providing assistance.

    24 So, the two are contrary to one another, and

    25 mutually exclusive, and the Prosecutor must choose

  87. 1 between one or the other.

    2 The position of local Yugoslav legislation,

    3 that is to say of our legislation and of the newly

    4 formed republics, is that an indictment cannot be

    5 formulated to include alternatives as regards the

    6 characterisation of an offence and in Anglo-Saxon law

    7 there is the prohibition of double jeopardy, and there

    8 is also supporting material (Kenny's outline of

    9 criminal law from 1962), so the Defence believes that

    10 criminal substantive law does not permit the

    11 concurrence of criminal offences when there is a

    12 concurrence of criminal-legal norms, which is the case

    13 here, and that criminal procedural law does not allow

    14 the alternative stating of indictments.

    15 If it is not one or the other, then if not

    16 one, a third thing and, if not that, then the fourth

    17 thing.

    18 General laws and principles relating to

    19 judicial practice and law do not permit this. The

    20 Defence appreciates that the solution to this problem

    21 is difficult due to the imprecision of the norms of

    22 international humanitarian law, because the Statute of

    23 the Tribunal does not have special norms in this

    24 respect, but only general norms, but that is the only

    25 way in which this can be taken.

  88. 1 Therefore, a single offence cannot be

    2 variously defined at one and the same time, nor can an

    3 alternatively stated indictment be accepted. Rather,

    4 the Prosecutor must opt for one definition. For the

    5 same reasons, we cannot accept charges of two forms of

    6 responsibility -- command responsibility on the one

    7 hand and aiding and abetting on the other hand.

    8 Cumulative charges H(ii) -- I think there is

    9 no need for me to read this. This is different legal

    10 arguments presented by myself and the Prosecution. Let

    11 me move to the last portion, the responsibility of

    12 Slavko Dokmanovic, the position of the Defence, and I

    13 shall thus conclude.

    14 The amended indictment in counts 10, 13, 25

    15 and 26 states that the Prosecutor associates the

    16 responsibility of Slavko Dokmanovic with his physical

    17 presence at places at which he evidently was not

    18 present, namely, the hospital, the barracks and the

    19 execution site -- three out of four, therefore.

    20 In these criminal proceedings, not a single

    21 piece of evidence has been offered indicating that

    22 Slavko Dokmanovic was at these places at the critical

    23 time, as stated in the indictment.

    24 In count 13 of the amended indictment, the

    25 Prosecutor asserts that troops of the JNA and Serb

  89. 1 paramilitary troops were under the command and control

    2 of Slavko Dokmanovic. Not only has not a single piece

    3 of evidence been offered by the Prosecutor to support

    4 this claim, but the Defence will, in the course of this

    5 process, present to the Tribunal material which will

    6 unequivocally demonstrate that Slavko Dokmanovic was

    7 neither an officer nor at the critical time a soldier

    8 of the JNA, nor of any paramilitary formation, nor did

    9 he have any connection with such formations, and

    10 therefore could not have commanded or in any way

    11 controlled such units.

    12 Therefore, neither are the allegations in

    13 counts 25 and 26 of the amended indictment true, which

    14 claim that Slavko Dokmanovic was a commander and that

    15 he even had subordinates, and the Defence is going to

    16 prove that as well.

    17 In count 19 of the amended indictment, the

    18 Prosecutor claims that Slavko Dokmanovic was President

    19 of the municipality of Vukovar from 1990 to mid 1991

    20 and after the fall of Vukovar he "resumed this position

    21 and held this office until mid 1996". This assertion

    22 of the Prosecutor is untrue as quoted for, first of

    23 all, the Prosecutor offers no proof whatsoever to

    24 support it and, on the other hand, the documentation,

    25 which the Defence will present, will demonstrate that

  90. 1 it was both formally and practically impossible.

    2 In his opening statement, the Prosecutor

    3 stated that he would be proposing several witnesses who

    4 would confirm that Slavko Dokmanovic played a key role

    5 in the beating up of persons at the Ovcara farm. In

    6 the presentation of their case by the Prosecution, no

    7 such witnesses appeared and the Prosecution has

    8 presented its case already.

    9 Also, the Prosecutor has not shown that

    10 Slavko Dokmanovic participated either directly or

    11 indirectly in the killings at Ovcara after being taken

    12 out of the hangar.

    13 In his opening statement, the Prosecutor

    14 claimed he would prove the individual responsibility of

    15 Slavko Dokmanovic on the basis of the provisions of

    16 Article 7, paragraph 1 of the Statute, which stipulates

    17 responsibility for the criminal offences enumerated in

    18 articles 2 through 5 of the Statute, but in the course

    19 of the presentation of evidence, he offered not a

    20 single piece of evidence to corroborate his claim.

    21 The explanation that was given on that

    22 occasion may perhaps refer to JNA officers who were

    23 included in the indictment but not to

    24 Slavko Dokmanovic. The Prosecutor claimed that

    25 Slavko Dokmanovic was absolutely necessary as the

  91. 1 civilian authority to show members of the JNA a

    2 suitable site for the execution and find a bulldozer to

    3 dig the mass grave. This is in the Prosecutor's

    4 pre-trial brief.

    5 The Prosecutor's witnesses themselves have

    6 proven this to be untrue, and it was not this bulldozer

    7 -- the JNA was therefore one year on that territory

    8 and Slavko Dokmanovic was not there.

    9 The Defence states that it follows from the

    10 evidence which the Prosecutor has offered in the course

    11 of these proceedings that Slavko Dokmanovic was at

    12 Ovcara on 20 November 1991, some time between 2 p.m. and

    13 4 p.m. and that he stayed there for some two to five

    14 minutes -- that is what the Prosecutor has offered as

    15 evidence -- and the Defence says the JNA had been

    16 stationed at the Ovcara farm long before the critical

    17 event and that Slavko Dokmanovic had never been seen in

    18 contact with the officers listed in the indictment.

    19 The Defence asserts, and will so prove, that

    20 on that day, Slavko Dokmanovic was not at Ovcara at

    21 all, but one thing is clear: that what the Prosecutor

    22 claims that Slavko Dokmanovic did all of this --

    23 everything that the indictment says -- no-one could

    24 have done that in a period of two to five minutes, and

    25 that is what they say, that that is how long they were

  92. 1 there, so he found the site, he found the bulldozer, he

    2 organised everything and he was the civilian authority

    3 and who knows what else.

    4 One should also bear in mind what the only

    5 two witnesses of the Prosecution said before this Trial

    6 Chamber, Berghofer and Cakalic, what they said before

    7 this Trial Chamber. One should also bear in mind the

    8 fact that the witnesses claimed that people had been

    9 taken to the Ovcara farm also on the days of 18 and

    10 19 November. This is a period for which even the

    11 Prosecution says that Slavko Dokmanovic was not there.

    12 These people were taken to Ovcara then, and this

    13 unequivocally shows that Slavko Dokmanovic was not

    14 needed by anyone to determine a location, to find a

    15 bulldozer that was already there, especially not on the

    16 18th and 19th, because these people were already there;

    17 hence Slavko Dokmanovic is not criminally responsible

    18 in the sense of Article 7, paragraph 1 of the Statute.

    19 Also, Slavko Dokmanovic is charged with

    20 command responsibility envisaged under Article 7

    21 paragraph 3 of the Statute for "having failed to

    22 undertake necessary and adequate measures to prevent

    23 such acts or punish their perpetrators".

    24 However, neither has the Prosecutor proven

    25 that Slavko Dokmanovic had authority over these people

  93. 1 who perpetrated this undeniable crime, nor can there be

    2 proof of it. I repeat: it is clear from the statement

    3 of Witness Q that Slavko Dokmanovic would have also

    4 been killed had he appeared that night at Ovcara.

    5 I remind you that he was being blamed for the

    6 Serbs remaining in Vukovar in this way and for having

    7 allowed the Croat policemen in Borova Selo to be

    8 killed. The Prosecutor has not proved the existence of

    9 any of these three requirements of Article 7,

    10 paragraph 3 of the Statute, namely, that the accused

    11 held a superior position; that the accused knew that a

    12 crime had taken place, or would take place, or could

    13 have known it; that the accused failed to take all

    14 necessary measures to prevent the crime and to punish

    15 those who had prepared it.

    16 The Prosecutor has not proven before this

    17 Chamber the existence of any of these three

    18 requirements, so therefore the application of the

    19 provisions of Article 7, paragraph 3 of the Statute

    20 cannot be accepted either. On the contrary, the

    21 Defence will offer evidence to show that

    22 Slavko Dokmanovic was never in a superior position in

    23 any sense, that he did not know, nor could have known,

    24 what happened at Ovcara or what would have happened at

    25 Ovcara and that even if he had known, he could not have

  94. 1 taken any measures to prevent it.

    2 Therefore, the Defence, your Honours, will

    3 prove that Slavko Dokmanovic is innocent on all counts

    4 of the indictment. Thank you.

    5 JUDGE CASSESE: Thank you. I think this is

    6 the right time to take a break. We adjourn for

    7 20 minutes.

    8 (11.35 a.m.).

    9 (A short break)

    10 (12 noon).

    11 MR. FILA: The Defence will begin by calling

    12 expert witness Dr. Zlatije Djukic Veljkovic, that is the

    13 name of the witness.

    14 (The witness entered court).


    16 JUDGE CASSESE: Good morning, may I ask you

    17 to make the solemn declaration?

    18 THE WITNESS: I solemnly declare that

    19 I will speak the truth, the whole truth and nothing but

    20 the truth.

    21 JUDGE CASSESE: Do you feel comfortable,

    22 professor? Can you hear me?

    23 Examination-in-chief by MR. FILA.

    24 Q. Are you a regular professor of the Faculty of

    25 Law in Belgrade?

  95. 1 A. Yes, I am.

    2 Q. And do you teach the subject of

    3 constitutional law?

    4 A. I do.

    5 Q. Did you graduate from that faculty and did

    6 you do your MA and BA and Ph.D.?

    7 A. Yes.

    8 Q. Were you a judge of the constitutional court?

    9 A. Yes.

    10 Q. Does your knowledge of constitutional legal

    11 matters -- is it based on your personal research in

    12 these matters?

    13 A. Yes, that is correct, precisely that.

    14 Q. Did you publish the following articles from

    15 this area -- "The Problems of the Development of

    16 Federalism in Yugoslavia"?

    17 A. Yes.

    18 Q. "Topical questions of Yugoslav Federalism"?

    19 A. Yes.

    20 Q. "The Federal Executive Council as a Political

    21 Executive Organ"?

    22 A. Yes.

    23 Q. "The Statute in the Constitutional and Legal

    24 System of the SFRJ" and other articles?

    25 A. Yes.

  96. 1 Q. Is this document (document handed) -- is that

    2 your curriculum vitae and the bibliography of the

    3 articles and works you have had published?

    4 A. Yes, that is my curriculum vitae and the list

    5 of works by me. Let me just say they were articles,

    6 studies and monographic articles.

    7 Q. I submit that this be tendered as evidence --

    8 number D12?


    10 MR. NIEMANN: Is there any possibility for

    11 the translation of the articles? They are not of much

    12 assistance to me in this language.

    13 JUDGE CASSESE: Yes. Mr. Niemann, what are

    14 you asking for -- translation by the Registry?

    15 MR. NIEMANN: I object to them being

    16 tendered, because I simply do not know what they are.

    17 They are not in an official language of the Tribunal

    18 and I have no objection if I can see them in the

    19 official language. I am very interested in looking at

    20 them before I cross-examine and they are not in an

    21 official language.

    22 JUDGE CASSESE: These are two and a half

    23 pages.

    24 MR. FILA: We can have them translated by

    25 tomorrow, or you can have them translated. They are

  97. 1 just the titles of her works, which are in the language

    2 in which they were written. But it is no problem.

    3 MR. NIEMANN: It is not up to me to have

    4 them translated, it is up to Mr. Fila who is seeking to

    5 tender them, to tender them in an official language of

    6 the Tribunal.

    7 JUDGE CASSESE: Why do you not try to

    8 provide, maybe in agreement with the Registry, an

    9 official translation into English and then, after that,

    10 at that stage, you may tender this CV.

    11 MR. FILA: Very well, it is in the Serb

    12 language D14 and it will be 14A in English -- 13, I am

    13 sorry.

    14 We shall provide you with the translation in

    15 our own language and the Registrar will probably have

    16 it translated later on for you.

    17 JUDGE CASSESE: That means it will be

    18 admitted in evidence only with the English translation.

    19 MR. FILA: Once it has been translated, yes.

    20 Q. Will you take a look at this document and

    21 does the document represent your expert opinion? There

    22 is an official translation of the expert opinion.

    23 (Handed).

    24 A. Yes, that is my expert opinion on the

    25 constitutional and legal aspects of the case of

  98. 1 Slavko Dokmanovic. Let me mention that there is a

    2 supplement to that opinion, which relates to the

    3 question of citizenship. It is a component part.

    4 Q. I suggest that we adopt the first document

    5 as?

    6 THE REGISTRAR: D14 and D14A in English.

    7 MR. FILA: Does this document represent your

    8 supplementary opinion? (Handed).

    9 THE INTERPRETER: Microphone, please.

    10 THE WITNESS: Yes, that is precisely the

    11 supplementary opinion, which I mentioned a moment ago.

    12 THE INTERPRETER: Microphone, please.

    13 MR. FILA: The Defence proposes that it be

    14 admitted as D15.

    15 Your Honours, I would like the witness to be

    16 presented with D7. (Handed.

    17 Can you tell us what that document is about

    18 and what article 183 of the document states?

    19 A. The document concerns the Statute of the

    20 Municipality of Vukovar, and article 183 of this

    21 document stipulates the method of election and

    22 dissolution of the President of the Municipal Assembly

    23 of Vukovar.

    24 Q. How is the President of the Municipal

    25 Assembly elected and relieved of duties?

  99. 1 A. The President is elected and relieved of duty

    2 at a joint meeting of three Chambers of the Municipal

    3 Assembly -- the Assembly of Associated Labour, the

    4 Local Communities Assembly, and the socio-political

    5 Chamber, so three Chambers which make up the assembly

    6 of this municipality in keeping with the constitution,

    7 and the Statute of this particular municipality. The

    8 President is elected at a joint session of these three

    9 Chambers, and is relieved of his duties at the joint

    10 session of all three Chambers of the Municipal Assembly

    11 of Vukovar.

    12 Q. Thank you.

    13 A. That is contained in article 183 -- I repeat

    14 -- of the Statute.

    15 Q. Could the witness be shown document D4,

    16 please? You can take the other document back.

    17 Could you tell us what this document is

    18 about, and what is written in it? (Handed).

    19 A. It is a document which applies article -- by

    20 which article 183 of the Statute of Vukovar is applied

    21 and, in keeping with it, decides on the election of the

    22 President of the Municipal Assembly. It is by this

    23 decree that Slavko Dokmanovic, a councillor of one of

    24 the Chambers, the socio-political Chamber, is elected

    25 President of the Municipal Assembly of Vukovar.

  100. 1 Q. Is there a date on the document?

    2 A. Yes, there is a date, and it is 29 May 1990.

    3 Q. Thank you very much. Will you now look at

    4 document marked D5? (Handed.

    5 D5 contains two documents that we are

    6 interested in. Could you tell us what they are -- it

    7 is the order on dissolution and order of appointment --

    8 the first is on page 1?

    9 A. This is an order to undertake special

    10 measures in the municipality of Vukovar.

    11 Q. And what does the order do?

    12 A. On the basis of the law on management and

    13 administration and the Government of the Republic of

    14 Croatia, by this order, special measures are undertaken

    15 in the Municipality of Vukovar. The meaning of these

    16 measures is contained in the following: the Municipal

    17 Assembly of the Vukovar is dissolved and the deputies

    18 of the Assembly, their terms of office are terminated.

    19 Q. Does that mean that the term of office of

    20 Slavko Dokmanovic is terminated?

    21 A. Yes, precisely that, the Municipal Assembly

    22 of Vukovar is dissolved and its Executive Council is

    23 dissolved and, furthermore, on the date of the

    24 dissolution of the Municipal Assembly, in point 3 --

    25 point 3 provides for the dismissal of the Executive

  101. 1 Council which means the term of office of the President

    2 of the Assembly is discontinued as well as the

    3 Vice-Presidents of the Assembly and the President and

    4 members of the Executive Council and, on the same day,

    5 their employment is terminated.

    6 Q. Would you take a look at the date of that

    7 document?

    8 A. The date is 23 July 1991.

    9 Q. Can we then conclude that, with that date,

    10 the position of the President of the Municipal

    11 Assembly, which was Slavko Dokmanovic, is terminated?

    12 A. Yes.

    13 Q. Would you look at the next document, what

    14 does that document stipulate?

    15 A. The next order speaks of the fact that, on

    16 the basis of the law of Government, on behalf -- in the

    17 name of the Government of Croatia, the Minister of

    18 Justice and of the Republic of Croatia enacts this

    19 relevant order on the appointment of the deputy of the

    20 Government of the Municipality of Vukovar and this

    21 order establishes a representative of the Government of

    22 the Republic of Croatia and that appointment shall be

    23 by Marin Vidic, who was known as Bili, and he is the

    24 representative of the Government, takes his appointment

    25 on the day of the order.

  102. 1 Q. Does that mean that the representative has

    2 taken on all the functions of the President of the

    3 Municipal Assembly?

    4 A. Yes, it does.

    5 Q. On the Croat territory under the control

    6 of Serbs during 1991, was a form of legal order

    7 established?

    8 A. Yes, it was. Would you like me to tell you?

    9 Q. Just a minute, please. Would the usher show

    10 the witness a document that has already been submitted

    11 to the Prosecution?

    12 THE REGISTRAR: Document is marked as D16.

    13 MR. FILA: Would the expert explain what the

    14 document is about, with particular reference to

    15 Article 3 of the document?

    16 A. In the context of the previous question, my

    17 answer is as follows: on the territory of the Republic

    18 of Croatia, under the control of the Serbs, a legal

    19 order was established, a constitution law was enacted,

    20 which establishes the Serb region of Slavonia,

    21 Baranja and Western Srem, and that the law on the

    22 implementation of the constitutional law was further

    23 enacted. Article 3 provides for the fact that, on the

    24 basis of these acts, all state organs should cease

    25 their work and organs of local self-management in the

  103. 1 area of the Serb district, and provisional organs

    2 are set up.

    3 Q. When was this law enacted?

    4 A. On 25 January 1991.

    5 Q. Does that article, too, mean that

    6 Slavko Dokmanovic's duties were terminated?

    7 A. Yes, it does.

    8 Q. Would you look at the next document, please,

    9 which the Prosecution has also received? (Handed).

    10 I would like the Registrar to have separate numbers for

    11 the Serb and the English versions?

    12 THE REGISTRAR: Serb version will be

    13 D17.

    14 MR. FILA: Both of them 17.

    15 THE REGISTRAR: 17 for Serb and 17A is

    16 English.

    17 MR. FILA: That is the case with both these

    18 documents.

    19 Will you tell us what that document is about

    20 and what is stated in the document?

    21 A. This document deals with the fact that

    22 Slavko Dokmanovic, on the basis of article 15,

    23 paragraph 2, item 7 of the law on the territorial

    24 organisation and so on and so forth, of the republic

    25 was re-elected as President of the Municipal Assembly

  104. 1 of Vukovar, as of 10 June 1994.

    2 Q. Thank you. Would you show the witness the

    3 next document, please? (Handed). It is also in

    4 Serb and in English, and could she tell us about

    5 it?

    6 THE REGISTRAR: That will be marked D18,

    7 and the English translation, D18A.

    8 THE WITNESS: This is a decree on relieving

    9 the President of the Municipal Assembly of Vukovar of

    10 his duties and the date is 5 April 1996, and it is a

    11 decree by which Slavko Dokmanovic, the President of the

    12 Municipal Assembly of Vukovar, therefore re-elected

    13 once again on 10 June 1994, is relieved of his duties

    14 on 5 April 1996 -- of his function as the President of

    15 the Municipal Assembly of Vukovar.

    16 MR. FILA: Thank you.

    17 On the basis of what you have said, may we

    18 conclude that, formally speaking, Dokmanovic performed

    19 the functions of the (INAUDIBLE) of Vukovar in the

    20 period 29 May 1990 to 27 July 1991, and up to 5 April

    21 1996?

    22 A. Yes, these documents bear that out.

    23 Q. I should now like the expert to be shown the

    24 following document. When was the document enacted and

    25 what does that law stipulate? (Handed). It is in

  105. 1 Serb and in English?

    2 THE REGISTRAR: D19, and the English

    3 version is 19A.

    4 MR. FILA: What does Article 22 of that law

    5 stipulate?

    6 A. We are dealing here with the law on the

    7 provisional territorial organisation of the Serb

    8 district of Slavonia, Baranje and Western Srem and the

    9 provisional local self-government in the area.

    10 Therefore, it provisionally determines local

    11 self-government and, as far as your question --

    12 Q. I apologise for interrupting, but what is the

    13 date of that law?

    14 A. The law is dated 22 November 1991.

    15 Q. And what does Article 22 stipulate?

    16 A. Article 22 has set up a different

    17 organisation of local self-government, in concrete

    18 terms Article 22 provides for the fact that the organ

    19 of management for the municipality is the Executive

    20 Council of the municipality, which is appointed by the

    21 Government of the Serb district and let me add one

    22 more thing: the Government of the Serb decision, by

    23 its decision, appoints the President and the members of

    24 the Executive Council of the municipality and other

    25 acts determining their functions.

  106. 1 Q. Could the witness be presented with the

    2 following document, please? It is once again in

    3 Serb and English. (Handed).

    4 It is the official gazette for the Serb

    5 district?

    6 A. Yes, it is.

    7 Q. And does it contain something about the

    8 appointment of the President of the Municipal Assembly

    9 of Vukovar?

    10 A. This document contains the decision which

    11 implements Article 22 mentioned a moment ago of the law

    12 on the provisional territorial organisation of the

    13 Serb district of Slavonia, Baranja and Western Srem

    14 and provisional local self-government, and, in keeping

    15 with that article, the Government of the Serb

    16 district, as the competent authority, brings in a

    17 decision by which, at a meeting held on 28 November

    18 1991, for President of the Executive Council of the

    19 Municipal Assembly of Vukovar Srbobran Bibic is

    20 appointed from Negoslavci.

    21 Q. Is that the first organ of local

    22 self-government since the Serbs took over?

    23 A. Yes, it is.

    24 Q. Was there another form of local

    25 self-government in the form of the President of the

  107. 1 municipality or not -- did it exist or not?

    2 A. No, it did not.

    3 Q. Could the witness be shown the following

    4 document, please? I apologise to our usher.

    5 (Handed). I apologise, your Honours, but I am going

    6 to prove my case on the basis of documents and not on

    7 the basis of a lot of talk.

    8 THE REGISTRAR: Document D21, and English

    9 translation is 21A.

    10 MR. FILA: Would you tell us what the

    11 document is about. Is it the official gazette of the

    12 Serb district?

    13 A. Yes, it is and the decision on the

    14 appointment in question -- just a minute -- on the

    15 right-hand side, six days after this decision was

    16 enacted on the appointment of Srbobran Bibic as

    17 President of the Executive Council, the decision

    18 appoints the Executive Council -- nominates the

    19 Executive Council of the Municipality of Vukovar, also

    20 by decision of the Government, which was the only

    21 competent authority to do this, on the basis of Article

    22 22 of the law on the provisional territorial

    23 organisation of the Serb district of Slavonia,

    24 Baranja and Western Srem.

    25 Q. Are the names listed of the people -- is

  108. 1 Slavko Dokmanovic on the list of names?

    2 A. No, it is not.

    3 Q. Up until the appointment of the President of

    4 the Executive Council and members of the

    5 Executive Council, in the territory of the Municipality

    6 of Vukovar, was there any civilian power and authority?

    7 A. No, there was not -- no civilian authority.

    8 Q. During the war operations that took place

    9 there, was power and authority in the hands of the

    10 military or civilians?

    11 A. The military authorities.

    12 Q. Let us now move on to the constitutional

    13 order and system of -- I almost said the late -- the

    14 former Yugoslavia -- on the basis of the 1974 SFRJ

    15 constitution. Your Honours, we have submitted a copy

    16 of that constitution to the library. There is no need

    17 for me to copy it -- if anybody is interested, it is in

    18 the library.

    19 Could you please tell me how was Yugoslavia

    20 set up on the basis of the 1974 constitutional -- who

    21 made up the Federation, what was the relationship

    22 between the Federation and the republics and autonomous

    23 provinces? Would you tell us briefly -- do not hold a

    24 lecture as a professor which will last 45 minutes.

    25 A. I would like to make a previous remark -- a

  109. 1 remark beforehand. In view of the fact I am Professor

    2 of Constitutional Law and I taught constitutional law

    3 on the basis of the 1974 Constitution, that I wrote my

    4 Ph.D. on the topic of federalism and it will not be an

    5 easy task for me to present the constitution briefly,

    6 but I shall do my best. The model of the Federation

    7 that we had on the basis of the Yugoslav 1974

    8 Constitution -- what I want to say is the following:

    9 I think that, at this point in time, it is important

    10 for me to give you the frameworks of that normative

    11 model, its contours and a general assessment of that

    12 particular model, which -- and let me stress this --

    13 was first and foremost a very complicated one and it

    14 was also a contradictory one. I apologise to you all,

    15 dear colleagues, for having to say that the

    16 constitution always represented a problem for us and

    17 that for my colleagues abroad who are well acquainted

    18 with a federally organised State in the theoretical

    19 sense and in the comparative sense, in simple terms, to

    20 present this model was always very difficult.

    21 However, if I show you how big our

    22 constitution is, and I am sure you know how short the

    23 constitution of the first Federal State is, that is the

    24 United States of America, that will tell you something

    25 in itself.

  110. 1 Yugoslavia, at that period, the people who

    2 wrote the Yugoslav Constitution, wanted to create an

    3 original model for a Federal State and I should like to

    4 stress that we should not lose from sight the fact that

    5 self-management, at the time, was the backbone of the

    6 whole system and, within that context, the model of a

    7 Federal State was shaped in such a way that it should

    8 no longer be a classical Federal State like the

    9 traditional federations were and the normative model in

    10 classical federations and the theoretical model, but

    11 they wanted this to be something more -- they wanted it

    12 to be a new form of federation which would

    13 simultaneously be constituted by the Council of the

    14 Federation as a Federal State of equal nations and

    15 nationalities, constituted in the republics -- and let

    16 me tell you straight away -- I think this is a good

    17 occasion to do so -- that the autonomous provinces were

    18 involved in the Federal system -- were included. They

    19 were structured, as we say in theory, as the

    20 constitutive elements -- titular elements of the

    21 federation.

    22 This model is an interesting one, in that it

    23 aspires towards a great measure of decentralisation to

    24 the advantage of -- and I will dwell on this

    25 particular point -- to the advantage of the republics

  111. 1 and the autonomous provinces.

    2 I think that it is not an unknown factor that

    3 science, in that context assessed the model as not well

    4 adapted and that it always made certain reservations

    5 with regard to it, that on the basis of a Federal set-up

    6 of this kind, a stable and efficient federation would

    7 be able to be built up. I am trying to be as brief as

    8 possible.

    9 The republics and provinces, the autonomous

    10 provinces, received an important role in the

    11 Federation. Let me emphasise two points here. The

    12 republics and provinces on the principle of parity are

    13 represented in all the organs of the Federation and

    14 that, in the Federation, it was decided, and that was

    15 stipulated by the constitution, on the basis of a great

    16 deal of responsibility on the part of the republics and

    17 provinces -- the role and responsibility of the

    18 republics and autonomous provinces for their own

    19 development, but we should not forget that they are

    20 responsible for the development of Yugoslavia as a

    21 whole based on the constitution.

    22 What represented a problem, and we are

    23 talking about the constitutional model of the

    24 Federation -- it is another point how this was

    25 implemented in practice, because when we speak of

  112. 1 constitutional law, we speak of the theoretical model,

    2 the normative model, and the application of the

    3 normative model into practice. The Federation -- and

    4 we should not forget this -- from the standpoints of

    5 the problems that we faced, the concrete problems that

    6 we faced, the problems that you are going to decide

    7 upon, you should bear in mind the fact that the

    8 Federation, by virtue of this particular model, was

    9 supplied by the rights and responsibilities for

    10 maintaining the sovereignty, territorial integrity,

    11 security and unity and the whole system of Yugoslavia.

    12 I can only mention something and I do not

    13 really know had this is necessary, that the republics

    14 and provinces -- I cannot go into all the reasons for

    15 this, and this is not the subject I am dealing with

    16 after all -- the republics and provinces, during the

    17 period in which this constitution was implemented, they

    18 paid more attention to the development of themselves,

    19 that is to say, these republics and provinces rather

    20 than the country as a whole. In this way, they got out

    21 of the framework of the constitutional model, no matter

    22 how much it could be subject to criticism.

    23 Q. According to the constitution of 1974, who

    24 had the right to self-determination -- the republics as

    25 Federal units or the constituent peoples?

  113. 1 A. I think that this is an important question,

    2 and the constitution states quite clearly that the

    3 right to self-determination is enjoyed by peoples --

    4 not republics.

    5 Q. What were the peoples of the SFRY according

    6 to the 1974 Constitution?

    7 A. Should I mention all of them?

    8 Q. Yes?

    9 A. The Serbs, the Croats, the Slovenes, the

    10 Macedonians -- Bosnia was a complex Federal unit, and

    11 that is where there was a major problem.

    12 Q. What were the constituent peoples of the

    13 Socialist Republic of Croatia?

    14 A. In the Socialist Republic of Croatia,

    15 according to the constitution of this Republic, and

    16 according to previous constitutions, the constituent

    17 peoples were the Croats and the Serbs.

    18 Q. According to Article 244 of the constitution

    19 of the SFRY, what was the jurisdiction of the

    20 Federation? Could you please read that article to us,

    21 or rather retell us this article -- it is pretty long?

    22 A. I am answering this question in the context

    23 of what I said, namely, that the Federation was

    24 responsible, among other things, but first and foremost

    25 I should say, for realising and ensuring the

  114. 1 sovereignty, equality, national freedom, independence,

    2 territorial integrity, security, social self protection

    3 -- the Defence of the country, et cetera, and it had a

    4 system of organs to which these rights and

    5 responsibilities were transferred, because these were

    6 functions that were elaborated further on by other

    7 provisions of the constitution.

    8 Q. The presidency of the SFRY, Article 313, how

    9 was it composed and what powers did it have primarily

    10 in the domain of the Defence of the country?

    11 A. The presidency of the Socialist Federal

    12 Republic of Yugoslavia was one of the many organs of

    13 the then federation that was responsible for that which

    14 we mentioned as its functions rights and

    15 responsibilities a few minutes ago. Before the

    16 presidency, there is the Assembly of the Socialist

    17 Federal Republic of Yugoslavia, whose task is similar,

    18 and then comes the Presidency as the collective Head of

    19 State consisting of representatives of the republics

    20 and autonomous provinces, and I think that the most

    21 important thing here is to say that this Article

    22 stipulates that the presidency of the SFRY is the

    23 highest organ of command and control of the armed

    24 forces of the Socialist Federal Republic of Yugoslavia

    25 in times of war and peace.

  115. 1 Q. Thank you. In the constitutional order of

    2 the SFRY, according to the 1974 Constitution, was there

    3 a Constitutional Court and how was it composed and what

    4 was all of that about?

    5 A. Yes. Constitutional Courts are an

    6 institution which is characteristic of Federal States

    7 and it is considered to be a guarantor of the Federal

    8 system and Yugoslavia also had a constitutional court

    9 in that period -- the constitutional court of

    10 Yugoslavia, which was an organ whose purpose was to

    11 protect constitutionality and legality in Yugoslavia,

    12 and in that context it had certain powers according to

    13 the constitution, and I should particularly like to

    14 highlight the following: it means that the

    15 Constitutional Court of Yugoslavia is an organ whose

    16 duty is to ensure that the legal system of all of

    17 Yugoslavia is well balanced, that is to say, speaking

    18 in specific terms, that it decides on whether all laws

    19 and acts are in line with the constitution, so there is

    20 a hierarchy which is characteristic of any State,

    21 including a Federal State and, in that sense, the

    22 Constitutional Court performed its duties in this

    23 period.

    24 Q. Now I would like to ask you to show a

    25 document to the witness so she can explain what it is

  116. 1 about. (Handed). It is also in the Serb language

    2 and in the English language?

    3 THE REGISTRAR: Document D22, the English

    4 translation D22A.

    5 MR. FILA: What is this about? Briefly, what

    6 is the content of this?

    7 A. Well, this document illustrates what I have

    8 been speaking about just now. Actually, when speaking

    9 about the Constitutional Court of Yugoslavia, I

    10 concluded my remarks by saying that, in that period, it

    11 indeed did function as that kind of organ, that is,

    12 that it performed its duties, that is, providing for a

    13 single legal system throughout Yugoslavia in a

    14 well-balanced fashion.

    15 We have here a ruling of the Constitutional

    16 Court of Yugoslavia --

    17 Q. Please, please, could you read the number of

    18 the ruling?

    19 A. The Constitutional Court of Yugoslavia ruled

    20 -- and I think that this is important -- by its ruling

    21 of 16 October 1991, that is to say, the

    22 Constitutional Court ruled as follows:

    23 "The constitutional ruling on the

    24 independence and sovereignty of the Republic of Croatia

    25 is annulled."

  117. 1 That is to say, the decision from 25 June

    2 1991. I wish to mention that the Constitutional Court

    3 consisted of representatives of the republics and

    4 autonomous provinces -- I wish to remind you of that --

    5 and that the representatives of the republics and

    6 autonomous provinces took part in the passing of this

    7 decision.

    8 Q. Did the representative of Croatia also take

    9 part?

    10 A. Yes.

    11 Q. On the basis of the constitution from 1974,

    12 was a law on National Defence passed?

    13 A. Yes.

    14 Q. And how is the Defence of the country

    15 regulated by this law, especially in terms of command

    16 over the armed forces? Please show this document to

    17 the witness. (Handed). This is that particular law,

    18 so in the English and Serb languages respectively?

    19 THE REGISTRAR: D23, English translation

    20 D23A.

    21 MR. FILA: Does this regulate the Defence of

    22 the country in terms of commanding the armed forces --

    23 who commands the armed forces, who has them under their

    24 control?

    25 A. Yes, the law has been translated and I think

  118. 1 that the most important thing is the following: on the

    2 basis of this law, which is again based on the

    3 constitution -- and this highest law of Yugoslavia

    4 establishes the rights and the responsibilities of the

    5 Presidency of Yugoslavia and, may I add, the President

    6 of the Presidency of Yugoslavia -- so on the basis of

    7 this law, I would wish to draw your attention only to

    8 the following provisions: that Article 92 of this law

    9 stipulates that the armed forces shall constitute a

    10 single entity and consist of the Yugoslav People's Army

    11 and the Territorial Defence.

    12 Further, with your permission, article 92

    13 stipulates that the armed forces, that is to say, as a

    14 unified whole as the previous article says, shall

    15 protect the independence, sovereignty, territorial

    16 integrity, and social order determined under the SFRY

    17 constitution. Further --

    18 MR. NIEMANN: I do not know whether there is

    19 some problem with the copy. My copy goes 1, 3, 5 and

    20 7. I do not have 92 in any of these articles.

    21 JUDGE CASSESE: Yes, two pages are missing

    22 -- number -- actually, three pages. We have pages 1,

    23 3, 5 and 7 in English.

    24 MR. FILA: I handed them over as I received

    25 them. We gave it all to the Registrar and this is what

  119. 1 we had back from the Registrar. So, let them

    2 supplement the translation. There is nothing I can do

    3 about it, really. I fully understand you, Mr. Niemann,

    4 but I gave them the entire law in the Serb language

    5 -- here it is -- and I showed them what they were

    6 supposed to have translated, so, please, could you just

    7 tell us about this -- these articles that you are

    8 invoking?

    9 A. Perhaps I could repeat it, so later, when it

    10 is translated, then you will be able to see it for

    11 yourselves. Is it necessary for me to repeat this one

    12 again so it would be easy for you to follow what I am

    13 saying?

    14 JUDGE CASSESE: Yes.

    15 A. Alright. I shall do this slowly, that we

    16 would have this thread which ties this all together --

    17 the important points. Article 91 says:

    18 "The armed forces shall be a unified whole

    19 and shall be comprised of the Yugoslav People's Army

    20 and the Territorial Defence."

    21 May I just mention that these are the armed

    22 forces of Yugoslavia, because this is a Federal Law.

    23 Article 92:

    24 "The armed forces shall protect the

    25 independence, sovereignty, territorial integrity, and

  120. 1 the social order determined under the SFRY

    2 constitution."

    3 MR. FILA: I am sorry, by the way, is this

    4 similar in terms of its wording to the oath made by the

    5 members of the Presidency of Yugoslavia?

    6 A. Yes, that is precisely the kind of oath they

    7 take.

    8 Q. That is the same oath that Mr. Mesic took;

    9 right?

    10 A. Yes. Can we proceed?

    11 Q. Yes?

    12 A. Now, what else is important here in the

    13 context of the proceeding -- article 106 regulates

    14 questions related to command and control of the armed

    15 forces, and it says:

    16 "The Presidency of the SFRY, as the highest

    17 organ of command and control of the armed forces,

    18 shall -- "

    19 Now there are 13 points enumerating its

    20 obligations in terms of carrying out this function of

    21 the top authority in terms of command and control of

    22 the armed forces. May I just illustrate this by giving

    23 you a few of them and not reading them all out? First

    24 of all:

    25 "The Presidency determines the fundamentals

  121. 1 of the development plans of the armed forces and the

    2 plan of development of the Yugoslav People's Army;

    3 determines the fundamentals of the organisation of the

    4 armed forces and the organisation of the information of

    5 the Yugoslav People's Army."

    6 All of this as Supreme Commander of the armed

    7 forces and the highest organ in charge of command and

    8 control of the armed forces determines the system of

    9 command and control of the armed forces -- in keeping

    10 with the fundamentals determined by this law,

    11 et cetera, et cetera. It provides guidelines,

    12 et cetera. Now, the next article stipulates the rights

    13 and responsibilities of the President of the

    14 Presidency, and the Presidents of the Presidency

    15 rotated every year, according to a certain order of the

    16 republics and provinces, because that is how it was

    17 composed, after all, and, in this sense, article 107

    18 stipulated as follows:

    19 That the President of the Presidency of the

    20 SFRY, on behalf of the Presidency of the SFRY,

    21 represents the armed forces at home and abroad, signs

    22 enactments adopted by the SFRY Presidency which are

    23 related to the armed forces and ensures their

    24 implementation.

    25 Q. I am sorry, who was the President of the

  122. 1 Presidency in that period?

    2 A. In that period until 5 December 1991 -- it

    3 was Stjepan Stipe Mesic, the representative of the

    4 Republic of Croatia.

    5 Q. Thank you very much, that will do. Can you

    6 tell us how long this 1974 constitution of the SFRY

    7 remained in force?

    8 A. That constitution, in keeping with the

    9 principles of constitutional law, regardless of

    10 everything that was going on -- and that meant that it

    11 was violated -- and I wish to point out that, on the

    12 one hand, the Federal authorities were functioning in

    13 that period in Yugoslavia, and that they reacted to the

    14 violations of the constitution, primarily the

    15 Constitutional Court did. Already, in 1989, it

    16 declared unconstitutional the amendments of the

    17 republics, which violate the provisions of the then

    18 valid constitution of the SFRY.

    19 The positions of the Constitutional Court on

    20 this can still be found and from the point of view of

    21 constitutional law, this was valid until the

    22 Constitution of the Federal Republic of Yugoslavia was

    23 passed on 27 April 1992. Of course, this act of

    24 adopting the constitution -- I just wish to mention

    25 this -- it was preceded by the unconstitutional

  123. 1 secession of four republics that were members of the

    2 Federation that existed until then, because they did

    3 not leave the Socialist Federal Republic of Yugoslavia

    4 in line with the provisions of the constitution of the

    5 SFRY. I just wish to say here that the constitution of

    6 the SFRY stipulated inter alia that the territory of

    7 Yugoslavia -- and this is what the first provisions of

    8 the constitution said -- that it was a unified

    9 territory, that it could not be changed without the

    10 consent of all members of that Federation -- one should

    11 not lose sight of that -- and, therefore, I am saying

    12 that the departure of these republics from the

    13 Socialist Federal Republic of Yugoslavia was carried

    14 out in a way which is contrary to the provisions of the

    15 then valid constitution of the SFRY.

    16 Q. Thank you, that was the essence of my

    17 question. Your Honour, I just move on to one further

    18 question, because our time is up, and that is the

    19 question of citizenship and the Defence would thus

    20 conclude its questions for the time being.

    21 Ms. Djukic, we have been talking about

    22 Republican and Federal citizenship here at length.

    23 Could you explain this to us according to the 1974

    24 constitution? What kind of citizenship existed in the

    25 SFRY and what did this actually mean?

  124. 1 A. Citizenship means, as we know, a lasting

    2 relationship between the citizens of a State and the

    3 State itself -- in a Federal State, any Federal State

    4 including the then Socialist Federal Republic of

    5 Yugoslavia, there is a rule that there is dual

    6 citizenship in the following sense -- there is parallel

    7 citizenship of a Federal unit and Federal citizenship

    8 on the other hand. In the event of the Socialist

    9 Federal Republic of Yugoslavia, citizenship was

    10 regulated by the SFRY constitution from 1974 and then,

    11 on the basis of that constitution, a law was passed on

    12 the citizenship of the SFRY and the law on citizenship

    13 of the Socialist Republic of Croatia, which was

    14 published in the Official Gazette, number 36 of 1977,

    15 and this is what the constitution says as the highest

    16 law in the country. In article 249, it stipulates, and

    17 that is what I also referred to in my expert opinion,

    18 that for citizens of Yugoslavia, there is a single

    19 citizenship of the Socialist Federal Republic of

    20 Yugoslavia.

    21 Further on, every citizen of a republic is,

    22 at the same time, a citizen of the Socialist Federal

    23 Republic of Yugoslavia. May I also add the following:

    24 the citizen of one republic has the same rights and

    25 responsibilities on the territory of another republic

  125. 1 as those enjoyed by the citizens of that republic.

    2 Q. I am sorry?

    3 A. Article 281 of the constitution of Yugoslavia

    4 stipulates that the citizenship of the SFRY is

    5 regulated by the federation and the law on citizenship

    6 was passed for that reason, and I said this in my

    7 supplementary expert opinion -- it is important to say

    8 the following -- that, from the constitutional

    9 provisions, and the laws that ensued, we can see the

    10 following, which is important and interesting for us,

    11 namely, a Yugoslav citizen can have Republican

    12 citizenship and does enjoy Republican citizenship

    13 according to the constitution and on that basis he or

    14 she is a citizen of the SFRY, but, by losing Yugoslav

    15 citizenship, this person loses Republican citizenship,

    16 too.

    17 THE INTERPRETER: The interpreters could not

    18 hear the question.

    19 THE WITNESS: This means that the Yugoslav

    20 citizenship was incorporated into Republican

    21 citizenship and the Republican citizenship cannot act

    22 independently and this is my answer to your question.

    23 This supplementary expert opinion shows --

    24 JUDGE CASSESE: Could you repeat the

    25 question which the witness just answered? The

  126. 1 interpreters were not able to catch your question, so

    2 it is clear on the record what you asked.

    3 MR. FILA: Can there be a Republican

    4 citizenship without having Federal citizenship?

    5 A. And, on this matter, I would like to draw the

    6 following conclusion, which I think is important,

    7 namely, that Republican citizenship in the SFRY did not

    8 coincide with ethnic, religious, or racial background

    9 of an individual. A citizen -- it is obvious from the

    10 law, too -- so it relates to the place of birth,

    11 Republican citizenship of the parents. To put it more

    12 simply, the principle of ethnicity, so to speak,

    13 I think that we have understood each other now, differs

    14 from the principle of nationality. That is the point.

    15 If a citizen belongs to a certain ethnic group, it does

    16 not mean that it coincides with his or her citizenship,

    17 which means that there is a legal link between that

    18 person and the republic that this person belongs to.

    19 Q. And my final question: the passports that we

    20 had at that time, the red passports we had, what was

    21 the citizenship that was stipulated there?

    22 A. Yugoslav.

    23 Q. Of the SFRY?

    24 A. Yes, of the SFRY. That is relevant because

    25 Republican citizenship did not exist as an independent

  127. 1 category.

    2 Q. In other words, as compared to other

    3 countries, what citizenship was relevant?

    4 A. Of the SFRY.

    5 Q. Thank you. I managed, your Honour, to keep

    6 within the time limit. I thus conclude my remarks and

    7 I propose that the documents included from D12 to D23

    8 be admitted into evidence and I promise that I am going

    9 to bring a translation to Mr. Niemann tomorrow so that

    10 he can cross-examine?

    11 JUDGE CASSESE: Any objection, Mr. Niemann?

    12 MR. NIEMANN: I do object to the documents

    13 that I cannot understand being admitted into evidence.

    14 I do not envisage I will have any problems with them

    15 but I want to check them first. So those documents,

    16 which is the document on the law of All People's

    17 Defence which is incomplete, and the other document

    18 which was the curriculum vitae -- I object to both

    19 those until I have a chance to read them.

    20 JUDGE CASSESE: Tomorrow I hope we will get

    21 the English translation and they will be admitted into

    22 evidence.

    23 MR. FILA: Mr. Niemann, sorry to address you

    24 directly, but I gave this law on All People's Defence

    25 to Judge Cassese at the very outset and I do not know

  128. 1 why it has not been stipulated. If you recall, this

    2 was half a year ago, I think. Thank you.

    3 JUDGE CASSESE: We adjourn now until

    4 tomorrow morning at 8.30.

    5 (At 1.10 p.m. the matter adjourned

    6 until Wednesday, 22 April 1998, at 8.30 a.m.)