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
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
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.
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.
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
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
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
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.
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
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)
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
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.
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
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).
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).
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
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
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.
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.
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
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
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 --
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
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.
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
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
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
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,
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
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
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).
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
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
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
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
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
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.
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,
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
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
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
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
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
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,
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
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
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
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
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
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,
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
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
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
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.
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
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
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:
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
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
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
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
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
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,
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
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
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
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
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
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
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;
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
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
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
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
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
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).
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
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
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
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.
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
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
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
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
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
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
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.
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
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
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
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
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
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
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).
15 ZLATIJE DJUKIC VELJKOVIC.
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?
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.
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?
9 THE REGISTRAR: D13.
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
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
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?
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.
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
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.
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
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
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
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.
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
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
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
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.
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
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
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?
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
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.
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
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."
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
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
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
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
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
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
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?
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
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
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
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
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.)
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