1. 1 Wednesday, 22 April 1998.

    2 (8.30 a.m.).

    3 JUDGE CASSESE: Good morning. May I ask the

    4 Registrar to call out the case number, please.

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

    6 Prosecutor versus Slavko Dokmanovic.

    7 MR. NIEMANN: My name is Niemann. I appear

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

    9 Mr. Vos.

    10 MR. FILA: My name is Mr. Toma Fila and

    11 I appear with Ms. Lopicic and Mr. Petrovic in Defence of

    12 my client, Mr. Slavko Dokmanovic.

    13 JUDGE CASSESE: Mr. Dokmanovic, can you

    14 follow me? Before we call the witness, may I ask you

    15 whether you agree to this note from the Registrar about

    16 the two documents which we discussed yesterday -- you

    17 have probably received the English translation of the

    18 bibliography of our witness, plus the missing pages of

    19 the other document, so I think it is agreed that they

    20 can be admitted into evidence.

    21 MR. NIEMANN: Yes.

    22 JUDGE CASSESE: Shall we proceed with the

    23 witness?

    24 MR. FILA: Your Honour, before we continue

    25 with our witness, I have a problem. We presented a

  2. 1 motion today, to have permission for one safe conduct

    2 for another witness. I do apologise for this. I do

    3 not think there is any need for me to show how

    4 uncomfortable I feel about this, but I think that some

    5 of the witnesses told the other witnesses about their

    6 status with the safe conduct and (redacted), who

    7 is to appear on Monday, together with the witnesses,

    8 (redacted) probably discussed the matter with

    9 them and he is asking for safe conduct as well now. It

    10 is an important witness -- his importance can be seen

    11 from the fact that the Prosecutors talked to him for a

    12 long time, last night took a statement from him, and

    13 took part in the negotiations over Ilok and

    14 (redacted) one of the witnesses in this

    15 connection, he was the former President of the

    16 Municipal Assembly of Backa Palanka. (redacted)

    17 talked to this witness from Ilok. I think he is an

    18 important witness and can clarify matters around Ilok.

    19 I do apologise 5,000 times to you all, but it is out of

    20 my hands when the witnesses are in question. I think

    21 the Prosecutors can understand these difficulties, so

    22 I do ask you to give permission for safe conduct for

    23 this extra witness. Thank you.

    24 JUDGE CASSESE: Mr. Niemann?

    25 MR. NIEMANN: No objection, your Honour.

  3. 1 JUDGE CASSESE: Again, we will have to

    2 consult with the Dutch authorities.

    3 MR. NIEMANN: Yes, your Honour.

    4 JUDGE CASSESE: We may now proceed?

    5 MR. FILA: I apologise, Mr. Niemann, just one

    6 more moment. Tomorrow, they are to be granted visas,

    7 all the witnesses and nobody has visas as yet, neither

    8 do they have aeroplane tickets. You know, you live in

    9 countries where you do not need visas, whereas, with

    10 us, this is a great problem. So, I should like to ask

    11 you, if you could, speed up with the contacts with the

    12 Dutch police. If they do not obtain a visa by tomorrow

    13 afternoon, that is by Thursday afternoon, they have to

    14 have visas by 9 on Friday. Thank you. I apologise,

    15 Mr. Niemann, once again.

    16 JUDGE CASSESE: Thank you. I wonder whether

    17 the Registrar can tell us whether measures can be put

    18 in place, so that the necessary visas are provided?

    19 THE REGISTRAR: Yes, I think we will be

    20 able to arrange that. I will talk this morning with

    21 the relevant people at the Registry, but I do not think

    22 that it should be a problem.

    23 JUDGE CASSESE: Mr. Niemann -- I wonder

    24 whether the witness could be brought in.

    25 (The witness entered court).

  4. 1 Cross-examination by MR. NIEMANN:


    3 JUDGE CASSESE: Good morning, Professor, you

    4 may be seated.

    5 A. Good morning. Thank you.

    6 MR. NIEMANN: Good morning, professor.

    7 A. Good morning.

    8 Q. Professor, yesterday you were speaking of the

    9 Constitution of 1974 and explaining to the court how

    10 you had undertaken a special study in that area.

    11 Professor, under the 1974 Constitution, I think there

    12 is a provision there, is there not, that President Tito

    13 was to be President for life prior to the operation of

    14 the rotating presidency; is that right -- no

    15 translation?

    16 A. Excuse me.

    17 Q. Can I repeat the question for you, Professor?

    18 A. Yes, would you repeat the question, please,

    19 because there was something wrong with the earphones.

    20 Q. By all means. Is it true that, under the

    21 1974 Constitution, Tito was appointed President for

    22 life?

    23 A. Excuse me.

    24 Q. Are you still having problems?

    25 A. Translation -- excuse me, pardon. Yes, I can

  5. 1 hear now, thank you. Excuse me.

    2 Q. I will repeat the question again and see if

    3 we can get it this time. Can you hear me now?

    4 A. Yes.

    5 Q. Professor, I should say that if you have any

    6 difficulty understanding anything I say, or hearing me,

    7 please do not hesitate to let me know so that we can

    8 clear that up?

    9 A. Thank you.

    10 Q. I was asking you, was it true that, under the

    11 1974 Constitution, Tito was appointed President for

    12 life?

    13 A. Usually, we say that he was Josip Broz Tito,

    14 was nominated President for life and my students

    15 usually answer, when I ask them, that, according to the

    16 Constitution of 1974, he was proclaimed life

    17 President. However, if we are to be precise legally,

    18 and constitutionally, he was not appointed life-long

    19 President on the basis of the constitution, but was

    20 given the possibility of being elected by the Assembly,

    21 the Federal Assembly, under whose competence this was,

    22 without any limitation of tenure. For other

    23 appointments, according to this constitution, and for

    24 that period, there was a restriction in the term of

    25 office, but for Josip Broz Tito this did not hold true,

  6. 1 but he was given the possibility of being elected any

    2 number of times, an unrestricted number of times, as

    3 President of Yugoslavia. So, to be precise, nowhere in

    4 the constitution did the norm exist, a formula exist,

    5 that Josip Broz Tito is the life-long President of the

    6 Socialist Federal Republic of Yugoslavia, but on the

    7 basis of the will of the people and the people's

    8 representatives in the assemblies, both republican and

    9 provincial, that he can be proposed to be elected for

    10 an unrestricted number of times by the Federal

    11 Parliament as President of Yugoslavia.

    12 Q. I think you would agree with me, would you

    13 not, Professor, that the effect of this was that the

    14 rotating presidency, if I can use that perhaps crude

    15 language, did not come into effect until after his

    16 death, that is, Tito's death?

    17 A. Yes, that is right, but let me add something

    18 here. By the constitution itself and the

    19 constitutional amendments in 1971, so the amendments

    20 started before the actual 1974 Constitution, the

    21 amendments to the previous constitution and the

    22 supplements to the constitution introduced the

    23 presidency of the SFRY as a collective head of State

    24 for the Socialist Federal Republic of Yugoslavia, -- in

    25 that, the same amendments provided for the fact that,

  7. 1 while Josip Broz Tito performs the function of the

    2 President of the SFRY, the presidency of the SFRY, or

    3 let me say this in simple terms -- the presidency was

    4 the potential organ which would automatically come on

    5 the scene at the precise moment when Josip Broz Tito

    6 ceases to perform his function as President.

    7 We cannot say -- we did not say by virtue of

    8 his death, because there was the theoretical

    9 possibility of Josip Broz Tito tendering his

    10 resignation or ceasing to be President in some other

    11 manner and that is when the constitutional amendments

    12 would come into play, and the presidency, as a

    13 collective head of State, would take over the function

    14 of the Head of State of the Common State.

    15 Q. But, in reality, the experience of having a

    16 rotating presidency was not something familiar to the

    17 Socialist Federal Republic of Yugoslavia until after

    18 Tito died -- you would agree with that, I think, would

    19 you not?

    20 A. Yesterday, I think we understood one another

    21 very well. I am speaking about the constitutional

    22 model, on the one hand, and what is provided for on the

    23 basis of norms, and what we constitutionalists always

    24 have to bear in mind -- there are norms and I adhere to

    25 those norms because the constitution of the lex

  8. 1 superior, the highest law of the country, whereas in

    2 practice things were sometimes different. I know that

    3 as a citizen of Yugoslavia and as an expert as well,

    4 the situation was somewhat different, but that is

    5 another dimension of the problem.

    6 Q. At various times yesterday in your evidence,

    7 Professor, you spoke of the sovereignty of the State.

    8 You may not have used those terms, but we were talking

    9 about Croatia and other republics. What criteria do

    10 you yourself apply when it comes to determining what

    11 constitutes independent sovereignty of the State --

    12 what are the criteria that you apply?

    13 A. Yes, I spoke about this, and I used the term

    14 "sovereignty", because when we are talking about a

    15 federally organised State, then the first and classical

    16 constitutional right is a theoretical question as to

    17 who has sovereignty in the State -- in a State which

    18 has two levels of power, one is central power and the

    19 second level is the power and authority of the Federal

    20 units.

    21 Since the first Federal State was introduced,

    22 that is to say, the United States of America, I think

    23 this question is common knowledge, that is, we know who

    24 is sovereign, but this was a pivotal question, and

    25 theory had to deal with that question. It was a

  9. 1 stumbling block and the secessionist war in the second

    2 half of the last century in the federation, which is

    3 well known as the first federation, and a stable

    4 federation which has been going on for the past two

    5 centuries and theory gave its answer and I think that

    6 is the only possible answer, that the vehicle of

    7 sovereignty in Yugoslavia is the Federal State, that is

    8 to say, the first level I mentioned a moment ago,

    9 whereas the criterion for sovereignty is the one that

    10 the power and authority in the federation has two

    11 meanings. It is the highest authority, both internally

    12 and externally and in a synthetic meaning which

    13 comprises the two, that is to say, the power and

    14 authority of the federation is embodied in its top most

    15 organs determined by lex superior is the highest

    16 authority in the territory of the State. All other

    17 authorities of the Federal units are subordinate to the

    18 Federal authority and that is the second feature of

    19 sovereignty. Am I answering your question? I think

    20 I am. And that is sovereignty in comparison to other

    21 States and this synthetic third element, this top

    22 power, the federation, which is the emanation of

    23 supreme power and authority both internally and

    24 externally.

    25 Q. I think perhaps I was asking a more general

  10. 1 question, and you were sort of answering it in the

    2 context more of a federation, but would you agree with

    3 me -- perhaps we can come at it this way -- that it is

    4 generally established that some of the criteria that

    5 are applied to determine sovereignty is firstly

    6 territory, then that there is a functioning Government

    7 and then that there is population -- at least those

    8 three criteria -- would you agree with me on that?

    9 A. Yes, I do. I think that your question, in

    10 fact, follows on from what I said a moment ago and your

    11 first question and these are the properties of the

    12 State -- the conditions to be fulfilled for a State to

    13 be recognised as a State. Those are the three

    14 necessary criteria you must fulfil -- territory, the

    15 population and functional Government. Is that a more

    16 precise answer to your question?

    17 Q. Thank you.

    18 A. I think we agree that this is connected to

    19 what was said about the federation earlier on.

    20 Q. Thank you. Professor, I do not want in any

    21 way to discourage you from expanding upon your answers

    22 and, if you think it is necessary to give a detailed

    23 answer to fairly answer my questions, please do not

    24 hesitate to do so, but a lot of my questions probably

    25 only require a "Yes" or "No" answer, so if you feel

  11. 1 that you can answer the question that I am putting to

    2 you with a "Yes" or "No" answer, do not feel in any way

    3 obliged to have to go into a detailed explanation, so

    4 it is a matter entirely for you and I do not want to

    5 interfere with the way you address the issues I put to

    6 you, but if you feel you can answer it with a "Yes" or

    7 "No", please feel free to do so. Immediately after

    8 saying that, the next question will require an

    9 explanation, I think.

    10 You speak of this notion of citizenship of

    11 the Socialist Federal Republic of Yugoslavia and

    12 citizenship in a republic itself and you say that, if

    13 you lose the citizenship of the Socialist Federal

    14 Republic of Yugoslavia, then you automatically lose the

    15 citizenship of the Republic. Am I right in saying that

    16 -- is that what you said -- is that a fair statement

    17 of your views on this matter?

    18 A. First of all, thank you for warning me to be

    19 succinct and give "Yes" or "No" answers, but I would

    20 just like to tell you that I am here as an expert for

    21 constitutional law, so you will be helping me if you

    22 guide me towards answering the questions as you would

    23 have them answered. I shall be very grateful to you

    24 for that. Now, to get back to the concrete question.

    25 As far as citizenship is concerned, I think we

  12. 1 understand each other. I am talking about the

    2 constitutional provisions, about citizenship in a

    3 Federal State. These provisions are not the

    4 characteristic only of the constitution of a

    5 Socialist Federal Republic of Yugoslavia that we are

    6 discussing now, but they are also provisions which are

    7 characteristic more or less in different formulations

    8 for the constitution of the majority of federally

    9 organised States.

    10 Therefore, it means Federal citizenship,

    11 citizenship of a federation -- it is a category which

    12 implements the citizenship of the Federal unit and in

    13 conformity with this, and that is characteristic with

    14 other federations as well, as I said yesterday, that in

    15 Yugoslavia as well, there is Republican citizenship,

    16 there is Federal citizenship as determined by the

    17 constitution, and in keeping with the constitution and

    18 Federal laws and Republican laws on citizenship, it is

    19 true, Sir, that I said that Republican citizenship

    20 cannot exist without Federal citizenship.

    21 Q. Why?

    22 A. Quite simply, the federation is a

    23 Federal State. It is a State which is composed of

    24 Federal units, and it is an essentially different

    25 category from an alliance, a confederation of States

  13. 1 and one of the characteristics of a Federal State is

    2 precisely the fact that it has citizenship -- the

    3 citizenship of its citizens -- dual citizenship, as I

    4 say -- the citizenship of the Federal unit and, on that

    5 basis, citizens gain the right to citizenship of the

    6 alliance cities, a legal link between the citizens of a

    7 Federal State because we are talking about a Federal

    8 State, I would like to underline that, and not a

    9 confederation, so it is the legal links between the

    10 citizens and their Federal State as a united unique

    11 State -- specific of course, if we compare it to a

    12 unitarian state.

    13 Q. Does that not mean that one works hand in

    14 hand with the other, so that it does not matter either

    15 way? If you have a Federal unit, and the federation

    16 breaks down, that has an impact upon the remaining

    17 States and, conversely, if the States take matters into

    18 their own hands, that also has a converse effect, does

    19 it not? So, it is not true to say it only works one

    20 way; in other words, if you lose citizenship of a

    21 republic, then that has the same effect as if you lose

    22 citizenship of the SFRY, does it not?

    23 A. I think that I understand your question, but

    24 I should like to ask you to clarify it, if you would,

    25 because I have stated on the disintegration of the

  14. 1 Federal State and that is something else, so would you

    2 clarify your question? We are talking about a State

    3 which exists, which has not disintegrated, and the

    4 position of its citizens, living in the Federal units

    5 and in that sense they should be protected and have

    6 links with the Federal unit, and they are citizens of

    7 the Federal State. So, I think we should clarify

    8 matters on that point. I am not talking about the

    9 situation where there is a disintegration of the State

    10 -- that is not in my domain. I am an expert on the

    11 Federal State as an authentic form of statehood.

    12 Q. Quite so, and I will endeavour to clarify the

    13 issue for you. You have said that your testimony

    14 relates to the existence and the continued existence of

    15 the Socialist Federal Republic, but you also, at the

    16 same time, speak about the issue of citizenship and

    17 what impact the loss of Federal citizenship would have

    18 on a particular Republican citizenship -- I think we

    19 have established that if one goes, the other goes. The

    20 point I am trying to make, though, is that a federation

    21 is just not a one way street -- it works both ways. It

    22 is the States to Federal Government and the Federal

    23 Government back down to the States. It is not just one

    24 way. The point I make is that there is no difference

    25 between losing Federal citizenship than losing

  15. 1 Republican citizenship in the sense that one must go

    2 hand in hand with the other. Must you not have both to

    3 function effectively and properly?

    4 A. For it to function as it should function, we

    5 have Republican citizenship in the federation which

    6 exists and the Federal citizenship and, on both counts,

    7 we gain the corresponding rights, duties and

    8 responsibilities.

    9 Q. Absolutely. So, the law concerning the

    10 implementation of the constitutional law for the

    11 autonomous district of Slovenia, Banija and

    12 Western Srem of 13 August 1991, we looked at, and, in

    13 particular, in relation to the law where the decision

    14 of 30 August was implemented, article 4 of that

    15 particular provision speaks of the fact that the

    16 inhabitants of the Serb district, presumably in

    17 Croatia -- although it does not say so but it is

    18 logical that it must be -- shall cease to be citizens

    19 of the Republic of Croatia, retaining their citizenship

    20 of Yugoslavia. On your theory, that cannot be right,

    21 can it, as a matter of law?

    22 MR. FILA: Your Honour, may I give this

    23 document to the Prosecutor? It might clarify matters.

    24 A. I would like to be clearer in my answers.

    25 MR. FILA: This is Defence D16. Mr. Niemann

  16. 1 is quoting the document D16, and can we have this

    2 document handed to the expert?

    3 MR. NIEMANN: If Mr. Fila is asking for the

    4 document to be given to the witness, by all means, but

    5 I thought she could ask for it herself.


    7 MR. NIEMANN: If I quote anything to you and

    8 you want to look at the document, please do not

    9 hesitate to ask for it. (Handed).

    10 What article did you say?

    11 Q. Article 4. I thought it was --

    12 A. The law on the implementation of the

    13 constitution --

    14 Q. D16A, article 4 -- do you see that article?

    15 A. This is not in contradiction with what I said

    16 yesterday. Yesterday, we said, did we not, that

    17 Republican citizenship cannot exist without Federal

    18 citizenship and that is the point, and here we are

    19 talking about a provisional law, which was enacted for

    20 separate reasons which I do not want to go into now,

    21 but the point of this article is, and I should like to

    22 draw your attention to that, that, for citizenship of

    23 -- it is about Yugoslav citizenship and that is the

    24 thesis that, by losing Republican citizenship, -- the

    25 point is, in citizenship of a Federal State, and that

  17. 1 you cannot have the existence of Republican citizenship

    2 without Federal citizenship, so I do not consider that

    3 there is a collision here in regard to what I said

    4 yesterday.

    5 Q. So you would say that a provision which

    6 deprives a citizen of the Republic of Croatia of

    7 citizenship, such as article 4 does, is a

    8 constitutionally valid provision under the Constitution

    9 of the Socialist Federal Republic of Yugoslavia; is

    10 that your position on the law?

    11 A. I believe that this provision is valid, but

    12 I wish to draw your attention to the following: there

    13 is something that one should not lose sight of here and

    14 that is the major fact that the Constitution of the

    15 Republic of Croatia, from 1990, in that Constitution

    16 the Serbs were no longer a constituent people of the

    17 Republic of Croatia, so this has to be viewed in that

    18 context. This major historic mistake that was made

    19 then, and I wish to draw your attention to that --

    20 Q. I am not asking you to justify it,

    21 professor. I am merely asking you to comment upon the

    22 legality of it, and I am saying to you, surely you are

    23 not seriously suggesting that article 4 conforms with

    24 the 1974 Constitution?

    25 A. I am sorry, Sir, but may I be allowed to say

  18. 1 that I believe that the relevant fact here is that the

    2 Serb people -- I am sorry to have to insist on this --

    3 but the Serb people were turned into a national

    4 minority by the 1990 Constitution. I wish to draw your

    5 attention to an injustice that was done by the

    6 international community and that is this solution found

    7 in the 1990 Constitution and what I would consider to

    8 be valid is the fact that the international community

    9 did not support this. In fact, on several occasions

    10 the international community reacted to this as to a

    11 solution which was not supposed to be part of the then

    12 constitution and, sorry, Mr. Niemann, but that is why I

    13 insisted on this. I wanted to corroborate it. I do

    14 not want this to be -- this was not in contravention to

    15 the then valid constitution of Yugoslavia.

    16 Q. Did the Constitutional Court consider this

    17 provision, this law?

    18 A. No.

    19 Q. Why not -- it impacted upon the Federal

    20 constitution, did it not?

    21 A. The provision of this law -- this provision?

    22 There was no-one who thought that this provision was

    23 not in line with the constitution, that is, those

    24 provisions that we quoted yesterday on Federal

    25 citizenship and citizenship of the Federal units.

  19. 1 There were no initiatives and no proposals to this

    2 effect and the Constitutional Court itself, at its own

    3 initiative did not start a procedure, so this provision

    4 remained as a valid provision.

    5 Q. This provision, in part, impacts upon the

    6 territorial borders of Croatia, does it not?

    7 A. I did not understand this. In what sense --

    8 the territorial border with Croatia? Why would this be

    9 impacted, because the two should not be linked.

    10 Really, from the point of view of constitutional law, I

    11 do not see a link between these two things.

    12 Q. Let me see if I can explain it a little

    13 better, then. We have here a law, which purports to

    14 deal with Croat citizenship in the territory of

    15 Croatia, and we have here a law, which purports to

    16 effect Croat law on its own territory, do we not?

    17 A. I am sorry, are you referring to the same

    18 law?

    19 Q. Yes -- exhibit D16 which you have in front of

    20 you?

    21 A. All of this is within the framework of the

    22 then valid constitution of the SFRY, and therefore

    23 I would not link these two matters.

    24 Q. I see.

    25 A. I proceed from the following -- sorry, Sir --

  20. 1 but I proceed from the following: we are talking about

    2 the SFRY constitution which is still valid and Federal

    3 laws that were still valid at that time, and Republican

    4 laws, too, and it is in that context that we have to

    5 move -- I have to move in that context in particular.

    6 Q. I see. So you are suggesting that the

    7 Federal law would supersede and prevail over the laws

    8 of a republic and laws of this Serb district --

    9 would you agree with that?

    10 A. I agree with that, because this is a basic

    11 tenet in any Federal State, but it is also true that

    12 here I do not believe there is a collision in this

    13 sense -- there is, on the one hand, the valid

    14 constitution of the SFRY; there are the constitutions

    15 of the republics that are still in force; there is the

    16 Federal legislation which is above Republican

    17 legislation and above all other acts; and within this

    18 framework we are assessing as to whether these acts

    19 have been brought into line with one another or not.

    20 From the point of view of what I said yesterday, there

    21 is no lack of concordance here, and this was also

    22 confirmed by the Constitutional Court in terms of the

    23 hierarchy of the legal order in Yugoslavia at that

    24 time.

    25 Q. So, you would seriously suggest to the

  21. 1 Tribunal that it would be perfectly in accord with the

    2 Federal law and the law of Yugoslavia as it then

    3 applied, for the law of the Republic of Serbia to be

    4 applied and operate and be effective in the Republic of

    5 Croatia; are you saying that?

    6 A. We are talking about special circumstances,

    7 but the key fact for me here is that, in that period,

    8 the constitution of the Socialist Federal Republic of

    9 Yugoslavia was still in force. The Federal laws were

    10 still in force, and, in that context, we assess all

    11 other acts that are adopted after them.

    12 Q. I see. Article 2 of exhibit 16 is a curious

    13 provision, is it not, Professor? What do we have

    14 here? We have that the Federal law shall apply so long

    15 as it is not in conflict with the legislation of the

    16 district, which would seem to be contrary to what you

    17 said a moment ago, and it also says that the

    18 legislation of the Republic of Serbia will start being

    19 applied to territory which is covered by this

    20 provision, which includes territory of Croatia, and yet

    21 you assert that this is a constitutionally valid

    22 provision?

    23 A. If I understood this correctly -- actually,

    24 I would prefer a more concise question, if this is not

    25 too difficult for you now. What is the point that you

  22. 1 are making on the basis of all of this so we can be

    2 precise as possible? I am sorry.

    3 Q. Sure. You were telling me a moment ago how

    4 you considered this particular provision, exhibit 16,

    5 to be a constitutionally valid provision under the

    6 constitution of the Socialist Federal Republic of

    7 Yugoslavia of 1974. You were telling me that and you

    8 are asserting that. You then also told me that the

    9 Federal law would prevail over the laws of the

    10 Republic, because that is the nature of a federation,

    11 and you did not say, but I assume you surely would not

    12 disagree, that there is nowhere in the Constitution of

    13 the Socialist Federal Republic of Yugoslavia of 1974

    14 which permits the law of one republic to prevail and

    15 operate and apply on the territory of another republic

    16 -- you do not argue with that, do you, surely?

    17 A. Please, let us bear in mind the fact that we

    18 are not talking about the law of a new republic,

    19 because the Serb district is not a new republic. We

    20 have to bear in mind the entire context. We are

    21 talking about a provisional arrangement, and we have to

    22 take into account the broader circumstances in which

    23 the Serb district was in that situation, and given the

    24 events that were taking place. So I wish to say

    25 that I do not consider this question to be all that

  23. 1 important from the point of view of the situation in

    2 general, and from the point of view of

    3 constitutionality and legality -- in its legal

    4 meaning. It is not that a new republic was established

    5 here on the territory of another republic; there is a

    6 federation, so what we have now is a situation in

    7 which, on one part of the territory, which is under

    8 Serb control, a district is constituted and it is

    9 proclaiming its organisation to be a provisional one

    10 and I must add that the international community was

    11 participating in this throughout, and all of this was

    12 under a certain degree of control, with the best of

    13 intentions, that is to get out of the crisis in which

    14 the federation was then, as well as its constituent

    15 parts.

    16 So, I do not think it is important now, from

    17 the point of view of constitutionality and legality,

    18 and from another point of view, to dwell on this

    19 subject much longer here.

    20 Q. Professor --

    21 A. The important thing -- sorry -- the important

    22 thing is that the constitutional provision on

    23 citizenship of the SFRY remained intact.

    24 Q. Now --

    25 A. Sorry, far more important is the fact that

  24. 1 the Serbs were unconstitutionally erased from the

    2 constitution in 1990 and this was condemned by the

    3 international community. The international community

    4 did not accept this, either.

    5 Q. I am not asking you, Professor, to tell us

    6 the justification or rationale behind it. It could be

    7 perfectly valid and very appropriate, but I am not

    8 asking you that. I am asking you questions about the

    9 operation of the Socialist Federal Republic of

    10 Yugoslavia, and the impact of these laws -- those are

    11 my questions, but I will move on.

    12 This law, this exhibit 16, speaks of a "Great

    13 National Assembly". What is that and, in particular,

    14 your Honours, Article 2 of exhibit 16 mentions that.

    15 What is "the Great National Assembly"?

    16 A. May I mention in passing that I have not come

    17 here to defend certain solutions or attack others.

    18 I am here exclusively as a Professor of Constitutional

    19 Law and I wish to assist in this matter, and I think

    20 that this is the most important thing that we are

    21 trying to do, to get a real picture of the events that

    22 were taking place. Actually, I am a Professor of

    23 Constitutional Law, so I am talking about normative

    24 models, so I would not wish to get out of this

    25 framework, nor do I think that it would really be good

  25. 1 for the ultimate objective.

    2 I repeat: we are talking about provisional

    3 arrangements in a special situation, and efforts that

    4 are made in a normative fashion to get out of that

    5 crisis in the best way possible.

    6 Q. Do you know the answer to my question,

    7 Professor?

    8 A. And that is why we are talking about

    9 Article 2, the Great Assembly, right?

    10 Q. Do you know the answer --

    11 A. It is a provisional organisation and it has

    12 its genesis and I elaborated on that in my expert

    13 opinion. Sorry, the question: could you spell it out

    14 more precisely?

    15 Q. I asked you a very simple question. What is

    16 the Great National Assembly? If you do not know, please

    17 say so -- "Yes" or "No"?

    18 A. The Great National Assembly is an organ which

    19 was envisaged to be one of the organs functioning on

    20 that territory.

    21 Q. Okay. Thank you. What was the word

    22 "national", what did that mean? What did that apply

    23 to in that term "the Great National Assembly"?

    24 A. We referred to all assemblies as national, as

    25 peoples' assemblies. This was meant to show that these

  26. 1 were democratic institutions, that it was the people

    2 who were represented there.

    3 Q. Which people?

    4 A. The Great National Assembly -- the people who

    5 were negated in that area -- the people who were in

    6 that area.

    7 Q. Is that the Serbs, is it?

    8 A. This was the territory that was under Serb

    9 control, and they constituted their provisional

    10 Government, because they were a people who were erased

    11 from the constitution as a people.

    12 Q. So, "national", where it appears there, means

    13 Serbs -- it could be "the Great Serb Assembly"?

    14 A. No, not in that sense -- no, not in that

    15 sense of "people" in the sense of "nation". No, it

    16 would have said; "Great Serb Assembly". This is the

    17 citizens living on that territory, those people. The

    18 point was not to conduct a cleansing in this

    19 constitutional and legal sense.

    20 Q. In no sense did I ask you that. You agree

    21 with me, though, that Serbs often refer to themselves

    22 as "nations", do you not -- you agree with that? There

    23 is nothing sinister in that?

    24 MR. FILA: Your Honour, I apologise, but the

    25 Serbs cannot consider themselves to be a nation -- they

  27. 1 are a nation, they are a people and I do not know what

    2 you consider yourselves to be, but we are a people, a

    3 nation, and we are an old nation, at that, and I

    4 consider this to be highly offensive.

    5 MR. NIEMANN: I was not aware of the fact

    6 that Mr. Fila was giving evidence in these proceedings.

    7 JUDGE CASSESE: Yes, I agree with the

    8 Prosecutor. Besides, may I call your attention to

    9 article 1 of the exhibit we are discussing where

    10 mention is made of members of the "Serb nation" -- it

    11 is in article 1. You may proceed, Mr. Niemann.

    12 MR. NIEMANN: Thank you.

    13 Professor, there were many --

    14 A. I am sorry, may I just say something? May

    15 I just say the following: I think that it is important

    16 -- the Serbs are a nation, and that is precisely what

    17 I wish to say, that here a distinction has to be made.

    18 I have to draw your attention to one of our special

    19 characteristics in this context, too. Serbs are a

    20 nation, yes, but until the present day in the

    21 constitution of the present Federal Republic of

    22 Yugoslavia, we call it "National Assembly", but we do

    23 not consider this Assembly to be the organ of Serbs.

    24 In this National Assembly there are representatives of

    25 other peoples, other nations, too, who live on the

  28. 1 territory of the present day Serbia, and the

    2 representatives of national minorities, too, so I think

    3 it is a misunderstanding, really. I think I should

    4 interpret it in that way.

    5 Q. Professor, in February 1991 -- in fact, on

    6 21 February 1991, Croatia passed a law, which was

    7 entitled "the Constitutional Act Supplementing the

    8 Constitution Act of the Republic of Croatia". In that

    9 provision 9A, it says that:

    10 "In the Republic of Croatia, the provisions

    11 of the constitution of the Socialist Federal Republic

    12 of Yugoslavia, which are not in accord with the

    13 constitution of the Republic of Croatia, are repealed."

    14 It goes on to provide:

    15 "In the Republic of Croatia, the provisions

    16 of the Federal laws and other regulations and

    17 enactments of Federal agencies, which are not in accord

    18 with the Constitution of the Republic of Croatia, and

    19 the laws of Croatia, are repealed."

    20 Is that a valid constitutional provision? Is

    21 that in accord with the constitution of the Socialist

    22 Federal Republic of Yugoslavia of 1974?

    23 A. Please, since we had this discussion a few

    24 minutes ago, I did not hear the very beginning of what

    25 you said. Could you kindly repeat the beginning, so

  29. 1 that I could give an accurate answer? We are talking

    2 about a particular act and a date.

    3 Q. By all means. On 21 February 1991, Croatia

    4 passed a law called "the Constitutional Act

    5 Supplementing the Constitution Act for the

    6 Implementation of the Constitution of the Republic of

    7 Croatia" -- it is a large title, but that was the title

    8 of it. It provided, in part, in particular in article

    9 9A that:

    10 "In the Republic of Croatia, the provisions

    11 of the Constitution of the SFRY, which are not in

    12 accord with the Constitution of the Republic of

    13 Croatia, are repealed."

    14 It then goes on to say that enactments of

    15 Federal agency that were also not in accord with the

    16 Republic of Croatia's constitution, were also

    17 repealed. My simple question is: does that accord

    18 with the constitution of the Socialist Federal Republic

    19 of Yugoslavia of 1974?

    20 A. You mean, were they declared

    21 unconstitutional, these provisions?

    22 Q. I am asking --

    23 A. These provisions were in contravention to the

    24 Constitution of the Socialist Federal Republic of

    25 Yugoslavia, and the Constitution of the Socialist

  30. 1 Republic of Croatia, that were both still in force at

    2 that point in time.

    3 Q. Did the Constitutional Court consider this

    4 law?

    5 A. The Constitutional Court, the Federal

    6 Constitutional Court, did not consider this law.

    7 Q. Is that because it was legally valid and in

    8 accordance with the Constitution of 1974?

    9 A. Not because of that. Just one moment,

    10 please. I should like to remind you that the

    11 Constitutional Court, the Federal Constitutional Court,

    12 by its decision of 16 October, that is the relevant

    13 decision, 1991 -- it is the decision in which the

    14 judges participated, the judges of all the republics,

    15 and autonomous provinces -- it put a stop to the

    16 previous decision enacted on a sovereign and

    17 independent Republic of Croatia, and that decision to

    18 repeal implies an answer to this question. Everything

    19 that followed was considered unconstitutional.

    20 Q. So you say that the decision of 16 October

    21 1991, in fact, considered this law of Croatia of

    22 21 February 1991 -- is that what you are saying?

    23 A. Not that it considered it, but it was

    24 binding, because the decisions of the

    25 Federal Constitutional Court are binding, final and

  31. 1 executive and all acts which are along the same lines

    2 are considered unconstitutional. The constitutional

    3 decision on sovereignty and independence of the

    4 Republic of Croatia, on 25 June 1991, was, by the

    5 Federal Constitutional Court, ended, and there was no

    6 reason to go into other acts which were subordinate and

    7 relied upon that particular law. They had no

    8 foundations, because the constitution of the SFRY was

    9 reasserted, the Constitution of the Socialist Republic

    10 of Croatia, by this act of the Federal Constitutional

    11 Court, was annulled.

    12 Q. You are not seriously suggesting, are you,

    13 that this decision of the Constitutional Court was

    14 followed and applied in Croatia -- it was ignored, was

    15 it not?

    16 A. That is another question all together and not

    17 within my domain of expertise. For me, it is the

    18 decision which is relevant.

    19 Q. So you do not know whether it was followed or

    20 not -- is that what you are saying?

    21 A. I do not think I need say whether I know

    22 whether it was applied or not. I do have knowledge on

    23 that matter and there was a whole series of events

    24 which were to follow and with the international

    25 community as an actor on the scene and organs within an

  32. 1 internal level which were still functioning. Let me

    2 add the organs of the SFRY were functioning, and the

    3 Federal Assembly and the presidency of the SFRY, the

    4 Federal Constitutional Court was functioning and there

    5 is evidence to prove this, and that is what is

    6 important for me.

    7 Q. So, either Croatia withdrew its declaration

    8 of independence, and went back to being a Republic of

    9 the SFRY in the true constitutional manner in

    10 accordance with this decision, or it embarked upon a

    11 programme of independence and sovereignty, did it not?

    12 It is very clear and everybody knows that Croatia

    13 became an independent State?

    14 MR. FILA: Objection, your Honour. The

    15 Prosecutor knows that it became an independent State.

    16 I do not, so I do not think the witness should be asked

    17 more than what they wish to say.

    18 A. For me, it did not become a State, an

    19 independent State. I adhere to the constitution, I

    20 respect constitutional norms and that is the supreme

    21 authority and supreme principle as an expert in

    22 constitutional law. What other people's conduct is,

    23 how they are going to behave, whether they are going to

    24 go against the constitution, that is quite another

    25 matter.

  33. 1 MR. NIEMANN: The whole issue here is

    2 whether or not Croatia became an independent State.

    3 You are asserting the act of independence was a

    4 nullity, and I cite for that this decision of the

    5 Constitutional Court. I am putting to you that the

    6 decision of the Constitutional Court was, at the end of

    7 the day, just totally ignored, was it not, except

    8 perhaps by yourself?

    9 MR. FILA: Your Honours, objection.

    10 Mr. Niemann is not asking the question; he is presenting

    11 his views. I heard his views in the introduction and I

    12 shall hear it in his conclusion. The Professor is a

    13 witness and expert for constitutional matters -- not

    14 for the assertions of Mr. Niemann and the expert witness

    15 has explained the situation concerning the 1974

    16 Constitution. If what happened was true, as Mr. Niemann

    17 states, then this would not be a topic for our expert

    18 here?

    19 A. May I have the floor, please?

    20 JUDGE CASSESE: Mr. Niemann, may I ask you to

    21 rephrase your question as a question proper and

    22 relating to a legal issue without asserting your own

    23 views, but asking the witness to react on a legal

    24 matter?

    25 MR. NIEMANN: Your Honour, I withdraw the

  34. 1 question, but might I say that I have stated a

    2 proposition which I would ask the expert to either

    3 agree or disagree.

    4 THE WITNESS: May I, Mr. President, your

    5 Honour --

    6 (Pause).

    7 JUDGE CASSESE: Mr. Niemann, you may proceed.

    8 MR. NIEMANN: If your Honour pleases.

    9 THE WITNESS: I asked for the floor for a

    10 few minutes. May I just say one sentence, please, if I

    11 may?

    12 JUDGE CASSESE: Yes.

    13 THE WITNESS: Perhaps it will be easier for

    14 us to proceed. I am fully conscious of the fact that

    15 Mr. Niemann has come here with questions which mean

    16 pre-supposed answers. However, it is my great desire

    17 and the reason for which I have come here is to clarify

    18 matters in the best possible way. The Faculty of Law

    19 in Belgrade delegated me as an expert in constitutional

    20 law to help us clarify matters and that is why I have

    21 looked upon everything with goodwill. I am not

    22 offended by the questions that demand set answers in

    23 the way that they were posed, but all these matters are

    24 contained in my expert report. I consider it to be

    25 unconstitutional, all acts which were enacted by the

  35. 1 Republic of Croatia in that particular period, and I

    2 went even further, and I should like to remind you, one

    3 and all, that this is not just an unfounded attitude of

    4 ours that the Republic of Croatia was not an

    5 independent and sovereign republic at that time.

    6 I do not think I will go wrong if I remind

    7 you of an important fact within a series of many

    8 important facts that are linked to the international

    9 aspect, although that is not my job, but let me remind

    10 you that on 29 November 1991, the famous

    11 Badinter Commission considered Croatia's declaration of

    12 May 1991 by proclaiming its desire for independence.

    13 Therefore, I do not consider, and in that sense

    14 I should like to repeat, I do not consider that Croatia

    15 was an independent and sovereign republic and that is

    16 why, although this is not my duty -- I allowed myself

    17 to go beyond the frameworks of my particular task here

    18 -- but I think it would be a good idea if we were to

    19 adhere to the facts and, of course, to answer questions

    20 from my field.

    21 JUDGE CASSESE: Yes, I agree with you,

    22 Professor. Let us confine ourselves to legal issues,

    23 but I would like to call upon you to address the legal

    24 issues, which are raised by the Prosecutor. I must say

    25 that it is clear to everybody that the Prosecutor is

  36. 1 not asking questions waiting for pre-supposed answers,

    2 as you said. I think we are all looking for the truth

    3 and trying to understand what happened, and now, in

    4 this particular case, we are dealing with legal issues.

    5 Mr. Niemann?

    6 THE WITNESS: Translation?

    7 JUDGE CASSESE: You had no translation.

    8 THE WITNESS: I cannot --

    9 JUDGE CASSESE: Sorry.

    10 THE WITNESS: I hear you now. Would you

    11 repeat what the President has said to me, please?

    12 JUDGE CASSESE: Yes. I was saying that we

    13 agree that we should now confine ourselves to legal

    14 issues and I would like to ask you whether you could

    15 also address the legal matters which are put to you and

    16 so let us proceed this way. Mr. Niemann, please?

    17 MR. NIEMANN: If your Honour pleases.

    18 Q. Professor, you were speaking of the fact that

    19 the Badinter Commission was an important authority when

    20 it comes to these issues -- you would agree with that,

    21 do you not?

    22 A. Yes, I would.

    23 Q. Perhaps the witness might be shown

    24 exhibit 192, the Prosecution exhibit. (Handed).

    25 Professor, I am told that it is in the

  37. 1 English language. Do you read the English language?

    2 A. I would like you to translate it for me for

    3 the purposes of exactitude.

    4 Q. By all means, Professor. It is a little

    5 unfair of me to show you an English document, so,

    6 please, if you do not understand anything that I say,

    7 ask for clarification.

    8 Professor, this is an opinion of the

    9 Badinter Commission -- it is opinion number 11. I only

    10 want to go to one part of it, which is paragraph 4.

    11 I will read the English text of it and it can be

    12 translated to you. In paragraph 4 it says:

    13 "The issue is the same as regards the

    14 Republics of Croatia and Slovenia, both of which

    15 declared their independence on 25 June 1991 and

    16 suspended their declarations of independence for three

    17 months on 7 July 1991, as provided for by the Brioni

    18 Declaration. In accordance with the Declaration, the

    19 suspensions ceased to have effect on 8 October 1991.

    20 Only then did these two republics definitely break all

    21 links with the organs of the Socialist Federal Republic

    22 of Yugoslavia and become sovereign States in

    23 international law. For them, 8 October 1991 is the

    24 date of State succession."

    25 You would agree with that, would you not?

  38. 1 A. Yes. The facts that you have presented are

    2 exact, but that date -- by that date neither republics

    3 became sovereign and independent States. They were

    4 still members of the Federation of Yugoslavia, and they

    5 were not considered as independent States. I think

    6 that we shall have an opportunity of clarifying these

    7 matters through the next expert opinion, but we do not

    8 consider, and I do not consider, that they gained

    9 independence on that date, regardless of their desires

    10 and proclamations.

    11 Q. So you say Badinter is wrong -- at least in

    12 relation to this?

    13 A. I quoted the decision of the Badinter

    14 Commission dating back to 29 November 1991. This great

    15 act is proclaimed -- I say this conditionally -- the

    16 act of June, which was to come into force on the date

    17 that you mentioned, 8 October -- the commission

    18 considers it a desire for gaining independence and

    19 constituting independent and sovereign States.

    20 Therefore, there is no collision there, once again.

    21 Q. Except that, where Badinter appears to agree

    22 with your position, you say that he is correct, but

    23 where he appears to differ from your position, you say

    24 that that is not correct; do I have that right?

    25 JUDGE CASSESE: Mr. Niemann, could you put

  39. 1 your question a different way?

    2 THE WITNESS: I do not think that is right.

    3 MR. NIEMANN: I will withdraw the question,

    4 your Honour.

    5 Q. What about the Secretary-General of the

    6 United Nations, do you think he would be likely to get

    7 it right or wrong when it comes to a question of

    8 accepting the sovereignty of a State?

    9 A. I do not wish to give an answer, because I

    10 feel that it is outside the domain of my expertise,

    11 especially as I am -- and bearing in mind the fact that

    12 there is a separate expert's report, which will be the

    13 right occasion for us to discuss this matter. I have

    14 spoken about what I consider to be essential for this

    15 particular question, from the constitutional and legal

    16 aspects. I am not an expert in international public

    17 law, but I have placed this in the function of the

    18 constitutional and legal aspects.

    19 Q. Thank you, Professor. I do not want to press

    20 you in an area where you do not feel comfortable to

    21 comment.

    22 Going back, then, to the issue of the

    23 Constitution of the Socialist Federal Republic of

    24 Yugoslavia, the decision of Serbia on 2 July 1990 to

    25 hold a referendum on the question of Kosovo, was that

  40. 1 in accordance with the constitution of the Socialist

    2 Federal Republic of 1974?

    3 MR. FILA: Objection, your Honour. First of

    4 all, I would like to see the decision and what

    5 referendum Mr. Niemann is talking about and what this

    6 has to do with Vukovar and the indictment that we are

    7 dealing with here. Kosovo is something that I am sure

    8 you will probably be discussing one day, but let

    9 Mr. Niemann show us the decision that he is talking

    10 about.

    11 JUDGE CASSESE: Sorry, the question is quite

    12 relevant, because we are talking about issues of

    13 constitutional law. However, the witness is entitled

    14 to take a look at the relevant document. I wonder

    15 whether Mr. Niemann has the document so that the witness

    16 can -- or maybe the witness is aware of it.

    17 MR. FILA: Yes, I ask my question in that

    18 sense.

    19 JUDGE CASSESE: Professor, are you aware of

    20 this decision on the referendum? Are you aware, or do

    21 you need to take a look at the particular document?

    22 A. I should first of all like to say that I do

    23 not think it is useful to expand our topic here. The

    24 subject is a very complex and important one.

    25 JUDGE CASSESE: Sorry to interrupt you, but

  41. 1 this is for us to decide whether or not the question is

    2 relevant. Please, go on, but tell me whether you need

    3 a document, because then we could, after the break, if

    4 it is possible, provide you with the document so you

    5 can give your answer afterwards. Mr. Niemann, do you

    6 have the relevant document?

    7 MR. NIEMANN: Your Honours, I do not know

    8 particularly what document it is. It is a referendum I

    9 am speaking of --

    10 JUDGE CASSESE: A decision on a referendum.

    11 Are you aware that there was a referendum in Serbia on

    12 Kosovo?

    13 A. No, the referendum was not implemented.

    14 JUDGE CASSESE: Mr. Niemann, could you ask

    15 again your question. I do not remember --

    16 MR. NIEMANN: Yes, I will see if I can

    17 obtain any document on it, if necessary, but I will

    18 move on.

    19 Q. The point is, Professor, that during --

    20 A. May I --

    21 JUDGE CASSESE: Yes, would you like to

    22 answer that question, or would --

    23 THE WITNESS: I think that we should not

    24 discuss that subject today. We do not have the

    25 relevant background.

  42. 1 JUDGE CASSESE: Again, that is up to us.

    2 Let us move on to another question, Mr. Niemann.

    3 MR. NIEMANN: The point is, is it not,

    4 Professor, that during the period starting in late 1989

    5 through to late 1991, there was a whole series of acts,

    6 which, whether they were technically in accordance with

    7 the SFRY Constitution or not, they certainly did not

    8 help it, that occurred in a number of the republics,

    9 would you agree with that?

    10 A. We are discussing one republic here, yes,

    11 that is correct, but I think that, in that period, for

    12 me, something vital happened, when we are talking about

    13 legal facts -- something happened and there is evidence

    14 to bear this out. A series of acts followed, which

    15 meant an infringement of the unified constitutional

    16 system established by the existing Federal and

    17 Republican constitutions that were in force at the time

    18 and, in that sense, if I may just add, the

    19 Federal Constitutional Court did not only react towards

    20 what one or two republics did, but it reacted to

    21 everything which meant a violation of the

    22 constitution. I am mentioning the amendments which

    23 were enacted in 1989. All those amendments were under

    24 the scrutiny of the Federal Constitutional Court and it

    25 brought decisions on all these acts and all the

  43. 1 republics were taken into consideration.

    2 Q. But notwithstanding the best efforts of the

    3 Constitutional Court, this process of disintegration

    4 continued at a pace, did it not, especially between

    5 1989 and 1991?

    6 A. Yes, that is correct.

    7 Q. And it did not --

    8 A. It is a complex question, which is considered

    9 in constitutional legal science. The causes of that

    10 situation are being studied and there will be a lot of

    11 time which will be needed to view the whole question in

    12 its entirety and to assess it.

    13 Q. And the process of disintegration of the

    14 federation was not something that just happened in

    15 Croatia; it happened in all of the republics in varying

    16 degrees, did it not?

    17 A. The process of disintegration was

    18 characteristic for four republics, which are considered

    19 to be secessionist republics and which confirmed this

    20 by a series of legal and factual acts. They are

    21 Slovenia, Croatia, Macedonia, and Bosnia. What

    22 happened with Serbia and Montenegro is common

    23 knowledge.

    24 Q. Are you suggesting it was not in any way

    25 destructive of the federation, what happened in Serbia?

  44. 1 A. I could not give you a simple answer to that

    2 question. My personal opinion is that Serbia tried,

    3 over a longer period of time and Montenegro as well, to

    4 retain Yugoslavia, both from the -- I say this both

    5 from the legal aspect and from the aspects of being a

    6 witness to the event, both in the legal realm and in

    7 actual fact.

    8 This question is related to history and

    9 I think that it will be interesting -- that is my

    10 recommendation -- to go back in time to history and

    11 take a look at history.

    12 Q. Professor, I think cited amongst the material

    13 is the decision on, I think, 23 July, when there was an

    14 order of the Parliament of Croatia to remove or

    15 dissolve the Assembly of Vukovar. I will just find the

    16 exhibit number so you can have a look at it. I think

    17 it is D5. (Handed).

    18 A. Yes, it is alright.

    19 Q. Do you have that one there? Do you consider

    20 that to be a valid and legally binding decision?

    21 A. I mentioned that decision in my expert report

    22 and in connection with this concrete case, it is an

    23 order to undertake special measures in the municipality

    24 of Vukovar. It was enacted in 1991. The

    25 Municipal Assembly was dissolved, the Executive Council

  45. 1 was relieved of its duties, and the mandate of the

    2 President of the Municipal Assembly ceased and that is

    3 what is essential for us here. At that particular

    4 moment, the deputy of the Government, representative of

    5 the Government of Croatia, was nominated, was

    6 appointed. All these were a series of events which,

    7 from the constitutional and legal aspect, did not

    8 coincide with the constitutional system of the SFRY and

    9 the Republic of Croatia, but they were separate

    10 circumstances and the whole thing -- that is how it

    11 stands.

    12 Q. You say that it was not constitutional, so

    13 far as the SFRY was concerned. Do you say that it was

    14 legally valid?

    15 A. I do not say that it is legally valid, but

    16 that it is a fact that that is how matters occurred,

    17 and everything evolved outside the constitutional

    18 norms.

    19 Q. So, as a consequence of that, if the law was

    20 not legally valid, you would say that it has no effect?

    21 A. I do not say that it did not have an effect.

    22 I am just looking at the legal dimension of the

    23 matter. Of course, it did have an effect and it was

    24 applied, that is a fact, but we are talking about non

    25 constitutional conduct under specific circumstances.

  46. 1 This is something that the international community is

    2 well aware of -- it was involved in the situation

    3 there, not events that took place independently, and

    4 they are matters which were held under the control of

    5 the international community, and they reached

    6 agreements together for the most part.

    7 Q. So, if it was not legally valid, then

    8 Mr. Dokmanovic continued on as the mayor of Vukovar or

    9 President of the Assembly of Vukovar?

    10 A. He did not continue being the mayor -- he

    11 could not, because the situation was such that this

    12 decree came into force and Mr. Marin Vidic, nicknamed

    13 Bili, was appointed the representative of the

    14 Croat Government, and by that act, the other

    15 person's functions ceased to exist on two counts.

    16 Mr. Dokmanovic ceased to perform that office. He could

    17 not act as President.

    18 Q. You are familiar with situations in history

    19 where the Royal family of this particular country we

    20 are in now had to go into exile during World War II --

    21 nobody questioned in Holland the fact that they still

    22 remained the Royal Family of Holland, did they, and you

    23 know numerous instances of that in history, surely, in

    24 your readings you have seen that? The fact that one

    25 physically cannot perform the task is not the end of

  47. 1 the matter, surely?

    2 A. This is not within the domain which I deal

    3 with, nor am I in a position to answer that question

    4 competently. Norm is one thing, and a factual

    5 situation is another thing. They may not coincide and

    6 that is a well known fact, but I am talking about legal

    7 aspects.

    8 Q. But I have shown you a law which you just

    9 said you do not consider to be legally valid. Now, I

    10 am putting to you that, if it is not legally valid, it

    11 has no effect. If it had no effect, Mr. Dokmanovic must

    12 have continued as the President of Vukovar, and I also

    13 put to you the fact that this is not something that has

    14 never happened before and, surely, you are not telling

    15 us that you do not know about situations like what

    16 happened in --

    17 JUDGE CASSESE: Mr. Niemann, could you put

    18 your question in a more accurate way as a question

    19 relating to the particular situation in Vukovar?

    20 MR. NIEMANN: You are not suggesting, are

    21 you, that -- Professor, are you signalling to Mr. Fila

    22 and he is signalling to you? I just saw you shake your

    23 head and look at him and he looked at you. You are not

    24 passing signals to each other by any chance, are you?

    25 JUDGE CASSESE: I do not think so. Could

  48. 1 you please try to answer this question?

    2 MR. NIEMANN: I might say that this is the

    3 second time I have observed it.

    4 JUDGE CASSESE: Professor, could you dwell

    5 on this particular matter, namely, a legal act which is

    6 not constitutional under the Constitution of the

    7 Socialist Republic -- the Federal Socialist Republic of

    8 Yugoslavia -- whether this act, however effective,

    9 produced legal effects, was actually implemented?

    10 A. First of all, I have to point out that I am

    11 sorry if you have gained the impression that I am

    12 either giving signals to Mr. Fila, or receiving signals

    13 from him. I must tell you here that I am a

    14 representative of the Faculty of Law and I met Mr. Fila

    15 only when I was supposed to come here. We are involved

    16 in completely different matters, so spontaneously I

    17 look either at you or at him -- perhaps I am

    18 professionally used to addressing an audience, so you

    19 may rest assured on that account.

    20 I must say that the total situation we are

    21 dealing with here is unconstitutional, but it is not a

    22 question of law here. This is not a law, this is an

    23 order, this is a special situation. In this process of

    24 Croatia's separation, we have a sequence of acts that

    25 were passed in cooperation with the international

  49. 1 community, I must say, in the common wish to get out of

    2 that crisis, but, from a formal point of view, or from

    3 a legal point of view, not even in the strictest sense

    4 but in any legal sense, all of these acts are not in

    5 line with the constitution, but what was happening was

    6 happening.

    7 Another office holder was appointed and he

    8 did function according to this order and that is a fact

    9 and it is another question altogether what things would

    10 have been like had everything been in keeping with

    11 legal and constitutional norms. All acts before and

    12 after this would have been dealt with in a

    13 constitutional manner, that is, in accordance with the

    14 constitution of the SFRY and this constitutional

    15 procedure is not an easy one, I must admit -- that is

    16 the only way in which it could be changed.

    17 JUDGE CASSESE: Do you mind if we take a

    18 recess now, probably for 20 minutes, so we now adjourn

    19 and we will reconvene at 10.30.

    20 (10.10 a.m.).

    21 (A short break).

    22 (10.30 a.m.).

    23 JUDGE CASSESE: Mr. Fila, you said something

    24 -- I am sorry, we had already decided to have a

    25 recess --

  50. 1 MR. FILA: No.

    2 JUDGE CASSESE: Mr. Niemann?

    3 MR. NIEMANN: Professor, prior to the break,

    4 we were talking about the law of the Republic of

    5 Croatia -- or the order, I think you called it -- of

    6 Croatia on 23 July 1991 in relation to the municipality

    7 of Vukovar and its President and Deputy President. Was

    8 that law generally accepted by people of Serb

    9 nationality, who were living in the Vukovar

    10 municipality at the time, or who had left the Vukovar

    11 municipality -- was that a law that had been accepted

    12 by them, do you think, or do you know?

    13 A. We are talking about an order, not a law --

    14 the difference is qualitative -- and it is important to

    15 differentiate between order and law, who brought in a

    16 law, or issued an order, and may I have that document.

    17 Q. By all means, it is Exhibit D5. Professor,

    18 if you think that there is a distinction between

    19 "order" and "law" and that that is important, tell us

    20 about it?

    21 A. That is precisely why I asked for the

    22 document, so that I can be precise. I have not got it.

    23 No -- I gave the document back. Yes, thank you, I have

    24 it.

    25 Q. We have to stop for a moment -- we have a

  51. 1 problem with the transcript.

    2 I think, professor, you wanted to tell us

    3 something about orders and laws before we go any

    4 further?

    5 A. I can make a distinction -- a "law" is a

    6 higher act than an "order" -- it is enacted by an

    7 assembly, whereas an order is an executive act by an

    8 organ of management and, as we see in the preamble, it

    9 is an order and it is enacted by the Minister of

    10 Justice -- a functionary at the head of the organ of

    11 management -- and he refers to the Croat law on

    12 administration and the Government of Croatia. It is a

    13 continuation of acts, whereas he refers to Article 130

    14 of the Croat Constitution.

    15 An order is an act of implementation of a law

    16 and acts higher than an order. That is a category of

    17 individual acts, and it is one of a series of acts

    18 which came before organising power and authority.

    19 Here, the act is enacted by a Minister, and I do not

    20 know from the constitutional and legal aspect whether

    21 I can say that the Serb people supported the act or

    22 not -- in the true sense of the word, we cannot say

    23 that, whether it was generally accepted or not. It was

    24 a specific situation. We know that it was a specific

    25 situation and in the whole entire situation there were

  52. 1 many acts which go beyond a legal order and legal

    2 system. This is an act which was applied and was

    3 followed by another concrete act, which was

    4 implemented, and which dissolved the particular person,

    5 Mr. Dokmanovic -- I said this yesterday -- he was

    6 relieved of his duties by the Serb authorities of

    7 the function of President of the municipal assembly.

    8 I think that is the key question that we wish to reach

    9 here, so his function ceased on both counts, according

    10 to the decision of the Croat authorities and the

    11 Serb authorities, that is to say, the authorities of

    12 the territory under the control of the Serb

    13 authorities. Let me say once again that we are dealing

    14 with a provisional organisation of power and authority

    15 under specific conditions -- in the process of

    16 disintegration, on the one hand and, on the other hand,

    17 ways and means were sought in Croatia as they were in

    18 other republics to do this in the best possible way --

    19 in the most painless possible way.

    20 MR. NIEMANN: You said you do not know

    21 whether or not it was accepted or not, but this was a

    22 decision of 24 July 1991. The law that I showed you of

    23 the Serb district of exhibit 16A -- that is a law of

    24 25 September 1991 and it provides in Article 3, does it

    25 not, that "all State authorities, local government

  53. 1 authorities, and other bodies and organisations of the

    2 Republic of Croatia (Handed) shall cease functioning in

    3 the area of the Serb district" -- do you see that?

    4 A. Article 3?

    5 Q. Yes. The effect of that then is that, if

    6 this is a valid law, then if the law of 24 July, or the

    7 order of 24 July, even if it was valid, the effect of

    8 this law is that, whatever may have transpired as a

    9 consequence of the 24 July order, this overrides it,

    10 does it -- if that is not clear, please ask me and I

    11 will try and clarify it?

    12 A. We have here an order which we discussed a

    13 moment ago, and we have a law -- a constitutional law

    14 governing the territory under Serb control. These acts

    15 were enacted in the same process and their legal

    16 situation is the same -- or very similar.

    17 Article 3 of the law you mentioned -- it is

    18 the constitutional law for the Serb district dated

    19 the 25th (INAUDIBLE) of 1991, states that all State

    20 organs will cease to function as well as the organs of

    21 local self-government, and I should like to emphasise

    22 that provisional organs are set up.

    23 Q. The point I make, professor, and --

    24 A. And --

    25 Q. If you can answer it perhaps with a "Yes" or

  54. 1 "No" answer, it will be a lot quicker, otherwise we

    2 will be here for a very long time, if we have detailed

    3 explanations to every question I put, so if you can

    4 possibly answer "Yes" or "No", I think it would speed

    5 up the process a great deal. The point I put to you,

    6 though, is this, is it not: you say that the Croat

    7 law, which had the effect of dismissing Mr. Dokmanovic

    8 and introducing a new regime, was an invalid law or an

    9 invalid order -- I think you said that in your

    10 evidence. Then I asked you whether or not it was a law

    11 that was accepted by the Serb people and you said to

    12 that that you did not know for sure, but then I point

    13 you to Article 3, and I say to you, does that not

    14 suggest to you that the Serb people, from the

    15 Vukovar area, did not accept the Croat law, but

    16 introduced their own law?

    17 A. It was not accepted. I think that the

    18 situation is clear. We are talking about two

    19 territories -- one under the control of Croatia and the

    20 other under the control of somebody else. I cannot say

    21 "Yes" or "No", because I might go wrong, but both

    22 sides established a provisional authority according to

    23 which power and authority is taken over by other organs

    24 until the situation is clarified and the law states

    25 "until the situation is resolved".

  55. 1 Q. And, as a strict constitutionalist, you would

    2 have to agree with me, would you not, that both of the

    3 laws do not comply with the Socialist Federal Republic

    4 of Yugoslavia's 1974 Constitution?

    5 A. They do not comply, like all the previous

    6 Acts which led to secession, and all the ones that came

    7 to follow, but they were accepted and came into force

    8 and were respected and implemented. As I say, it was a

    9 specific situation. The provisional territorial

    10 organisation of power and authority -- if you would

    11 have a broader interpretation of these particular

    12 documents, they were Acts which should be considered

    13 valid within the whole context.

    14 Q. Under the 1974 Constitution, each of the

    15 republics and the autonomous provinces was given a

    16 prominent role in Government by having a seat on the

    17 Federal presidency; that is right, is it not?

    18 A. Not only in the presidency but in all the key

    19 organs of the federation.

    20 Q. This was to avoid the concentration of power

    21 in the hands of one person, or in one group?

    22 A. Yes, it was, and an equal participation of

    23 all the factors of the federation.

    24 Q. And the purpose of this was so that power was

    25 distributed so that it would be Government by a

  56. 1 consensus, with each of the republics expressing its

    2 interest -- there was an understanding that at the end,

    3 the decision would be taken by the majority?

    4 A. Yes, that is a constitutional provision --

    5 all the organs of the federation set up on a parity

    6 basis and representation by the republics and

    7 provinces.

    8 Q. This system was dependent on each of the

    9 republics and autonomous provinces coming to the

    10 presidency free to represent its own people?

    11 A. Yes.

    12 Q. Was it envisaged, then, that one man should

    13 come to control the votes of the representatives of the

    14 four republics?

    15 A. I do not know which man you have in mind --

    16 the presiding individual?

    17 Q. No, I am just talking about --

    18 A. Or during Josip Broz Tito's lifetime.

    19 Q. I was talking about the constitution itself

    20 in general terms and it is a general legal question and

    21 does not have to be related to specific events as

    22 such. I am just saying that the whole object of the

    23 constitution was to avoid a situation whereby one

    24 person would get a majority of the votes, whether it be

    25 of the republics or of the autonomous provinces?

  57. 1 A. You are generally correct, but let us say

    2 more precise terms -- a collective organ is

    3 collectively decided, everybody is equal in the

    4 decision making process, there is one presiding

    5 individual which is rotated and has no extra rights

    6 than everybody else in that particular body.

    7 Q. So, you would agree with me, I think, that it

    8 would be contrary to the constitution for the autonomy

    9 of provinces such as Kosovo and Vojvodina to be

    10 removed?

    11 A. Removed from?

    12 Q. Removed from those provinces -- they have

    13 autonomy, and a voice under the 1974 Constitution. If

    14 that autonomy and voice is taken away, that would be

    15 contrary to the constitution, would it not?

    16 A. The autonomy that we had in 1984, I am

    17 prepared to say this, was not an autonomy, a real

    18 autonomy. The autonomy of -- the autonomous provinces

    19 by the constitution gained a status which meant the

    20 status of a State, which does not exist anywhere and

    21 that was within the frameworks of one republic, the

    22 Republic of Serbia.

    23 Q. And, the point I am trying to make is that

    24 under the constitution, it was envisaged that they

    25 would have autonomy and a voice in the sense that they

  58. 1 had a vote on the presidency?

    2 A. Whether by constitution they could have a

    3 vote and voice -- that is to say, whether in 1989 the

    4 status of autonomy -- of the autonomous provinces could

    5 be altered in that respect, the status that they

    6 enjoyed previously according to the previous

    7 constitution, is that your question?

    8 Q. Previous to what?

    9 A. Whether it was constitutional to change these

    10 factors.

    11 Q. I am talking about the 1974 Constitution.

    12 A. The Constitution of the Republic of Serbia

    13 dating back to 1974 and 1989 was the year when this was

    14 changed. The status was changed in 1989, and the

    15 autonomous provinces were given back the status that

    16 corresponded to the status of autonomy in the

    17 theoretical sense and in the international model sense,

    18 but this was done on the basis of a constitutionality

    19 through amendments to the constitution. It was not

    20 done unconstitutionally and it was done along with the

    21 participation of the representatives of the autonomous

    22 provinces in the legal organs that enacted those

    23 amendments.

    24 Q. What about blocking the rotation of the

    25 presidency, so when the representative of one

  59. 1 republic's turn came up to become President of the

    2 presidency, is that something which is in accordance

    3 with the letter and spirit of the 1974 Constitution?

    4 A. It is in accordance with rotation for a one

    5 year term.

    6 Q. Yes. I mean, if you stopped that from

    7 happening, if you prevent that from happening, that is

    8 not in accordance with the letter and spirit of the

    9 1974 Constitution, is it?

    10 A. But if this is done democratically, by

    11 legally elected organs and according to constitutional

    12 procedure.

    13 Q. So, there was a constitutional amendment, was

    14 there?

    15 A. Yes, there was.

    16 Q. What was the date of that?

    17 A. 1989.

    18 Q. Perhaps you might assist us, Professor, by

    19 taking us to the constitutional amendment of 1989, or

    20 telling us about it, which permitted the rotation of

    21 the presidency to not occur -- for that to be blocked

    22 by political means?

    23 A. It was not blocked -- it was a change in

    24 another sense -- a broader sense. It was not a change

    25 of organisation that had taken place; it was a change

  60. 1 in the status of the provinces within the frameworks of

    2 the Republic of Serbia.

    3 MR. FILA: Your Honours, we are talking about

    4 two constitutions here. There seems to be a

    5 misunderstanding. The 1989 amendment has to do with

    6 the constitution of Serbia and, when Mr. Niemann is

    7 talking about a constitution, could he please tell us

    8 which constitution he has in mind, because we are now

    9 talking about Serbia's constitution altering the

    10 position of Kosovo, not the Federal constitution by

    11 which the presidency is rotated with Mr. Mesic, so would

    12 Mr. Niemann please tell us what constitution he had in

    13 mind.

    14 THE WITNESS: I understood it to be that

    15 the rotation held true until the constitution was valid

    16 and that we are talking about changes in the Republic

    17 of Serbia and that is why I reacted to the question

    18 about rotation.

    19 MR. NIEMANN: No, no, I may have been

    20 confusing there. What I was talking about was

    21 certainly Kosovo and Vojvodina --

    22 A. I feel that there seems to be a

    23 misunderstanding.

    24 Q. There is. I was talking about it initially

    25 and then I moved on. What I moved on to was the

  61. 1 rotation of the President of the Federal presidency,

    2 when Stipe Mesic was prevented from taking his seat on

    3 15 May 1991. I put it to you that that was not a

    4 decision which was either in accordance with the letter

    5 or spirit of the 1974 constitution.

    6 A. One is the spirit of the constitution,

    7 rotation was not changed and Stipe Mesic was the legal

    8 and legitimate President of the presidency until

    9 5 December 1991 the presidency for which the authentic

    10 principle held true, the principle of rotation,

    11 determined by the Federal constitution. So the

    12 misunderstanding is only in that we were talking about

    13 two levels.

    14 Q. Are you suggesting --

    15 A. I had in mind the changes which took place,

    16 whereas you had in mind rotation, but I think we

    17 understand each other now.

    18 Q. But you are not suggesting, are you, that

    19 when Stipe Mesic was due to take up his position of

    20 President of the presidency on 15 May 1991 and that was

    21 blocked and that it was only through the intervention

    22 of the international community that the process was

    23 deblocked, if I may use that term, to allow him to take

    24 up his position -- you are not suggesting that that did

    25 not happen, are you?

  62. 1 A. I maintain that it was his turn. The way in

    2 which he took over his appointment, I do not think

    3 I need go into here and now, but the essential thing is

    4 that he did take over this function and performed this

    5 function until the date I mentioned a moment ago.

    6 Q. Would you agree with me that the statement by

    7 Slobodan Milosevic on 16 March 1991, when he said that

    8 "Yugoslavia had entered into its final phase of agony"

    9 and that the "Republic of Serbia will no longer

    10 recognise a single decision reached by the presidency

    11 under existing circumstances, because it would be

    12 illegal" -- would you agree with me that that was

    13 hardly something that could be said to be in accordance

    14 with the letter or spirit of the 1974 Constitution?

    15 MR. FILA: Your Honour, please, when

    16 Mr. Niemann is speaking about a document, could he

    17 please read the document and could we have a look at

    18 it? Are we talking about evidence offered by the

    19 Prosecution? I have not seen this exhibit. Could he

    20 please read this to us, the authentic text, and then

    21 I shall agree to it.

    22 THE WITNESS: One more thing --

    23 JUDGE CASSESE: Mr. Niemann, have you got --

    24 MR. NIEMANN: It was in the evidence of the

    25 witness Mesic when he came here and testified, your

  63. 1 Honours. I do not have the reference at the moment,

    2 I can find out. It is a simple proposition. If the

    3 witness does not know anything about it, then we will

    4 move on.

    5 JUDGE CASSESE: Do you know about this

    6 declaration by Mr. Milosevic on 16 March 1991?

    7 A. I do not know about it. I would have to have

    8 a look at the document itself, but I wish to say that

    9 many statements were made by responsible persons, not

    10 only Slobodan Milosevic, I could quote others, too, but

    11 I do not really want to do so. I do not think that we

    12 should be discussing that here. I do not think it is

    13 relevant. There were different statements that were

    14 made at the time and I would never agree to them and I

    15 am just mentioning this in passing, but I do not want

    16 to go into political statements now, because if they

    17 are evidence, we should have them here and compare them

    18 to other statements.

    19 MR. NIEMANN: Professor, I am asking you to

    20 either agree or disagree. It is a very simple thing.

    21 If you do not know anything about it, you can say, "I

    22 do not know anything about it", that is fine. Surely

    23 it is easy enough for you to say whether you agree that

    24 that is in accordance with the spirit and letter of the

    25 constitution -- you are supposed to be an expert in

  64. 1 this area?

    2 A. I do not know. I would have to have a look

    3 at the text, so that I could present my view.

    4 Q. On the same day, the Serbs of Knin declared

    5 their independence from Croatia, that is the very same

    6 day as Slobodan Milosevic made this statement, do you

    7 think the Serbs of Knin declaring their independence

    8 from Croatia --

    9 MR. FILA: Please, again, we have not said in

    10 a relevant fashion that Milosevic ever made this kind

    11 of statement and who is this Milosevic in this period

    12 in 1991? Secondly, we also have not established when

    13 this Knin proclaimed its independence and it is not

    14 true they proclaimed their independence but it is not

    15 up for me to say so. But, if Prosecutor Niemann is

    16 saying that someone proclaimed something, then show the

    17 proclamation. We cannot make allegations of this kind

    18 or can we say something in relation to something which

    19 may, to put it politely, exist in the Prosecutor's

    20 Office.

    21 THE WITNESS: I cannot present my position

    22 on something that I am not aware of -- that I am not

    23 aware of in a reliable fashion.

    24 JUDGE CASSESE: So you do not know of this

    25 proclamation of independence by the Republic of

  65. 1 Krajina?

    2 A. No. I think it is not even true, but

    3 I cannot really say this, because I would have to have

    4 the text in front of me. That is my position.

    5 JUDGE CASSESE: Alright. Can we move on to

    6 questions with regard to which you have documents,

    7 Mr. Niemann?

    8 MR. NIEMANN: Yes, your Honour. I need to

    9 respond to what Mr. Fila is putting up. It is not

    10 necessary for me to produce documents to everything

    11 I am saying. If the witness does not know anything

    12 about it, the witness can say, "I do not know about

    13 that" and we can move on. I do not have to go through

    14 a process of tendering a whole lot of material. This

    15 witness comes to us an expert. One would have thought

    16 that every detail and matter that occurs in relation to

    17 the Constitution of 1974 would be something that she is

    18 familiar with. If she is not, we will move on to the

    19 next matter.

    20 JUDGE CASSESE: Alright.

    21 MR. FILA: Your Honour, please, I have to

    22 intervene once again. The witness is an expert in

    23 constitutional law and, for that which exists -- not

    24 for that which does not exist -- and it is not true at

    25 all that Knin had proclaimed its independence in 1991

  66. 1 -- perhaps this exists somewhere in the Office of the

    2 Prosecutor in somebody's thoughts. We are not talking

    3 about experts for something that does not exist.

    4 No-one is an expert in that which does not exist.

    5 No-one is an expert in fantasy. Also, it is offensive

    6 to say that the expert is supposed to know about

    7 something which does not exist.

    8 THE WITNESS: I protest for linking my

    9 expertise --

    10 JUDGE CASSESE: Please, Mr. Fila, the expert

    11 witness is an expert on constitutional law, and

    12 I assume she knows everything about constitutional law

    13 in the Republic of Yugoslavia and the former Republic

    14 of Yugoslavia.

    15 MR. FILA: That is right.

    16 JUDGE CASSESE: As well as, possibly, she

    17 may know about the historical events which have some

    18 relevance, from the viewpoint of constitutional law.

    19 If she has no knowledge of particular events which have

    20 a dimension relevant to the constitutional law, she may

    21 simply say, "I do not know. I am not familiar with

    22 those events" and we move on to other questions. May

    23 you --

    24 MR. FILA: We absolutely understand each

    25 other. If questions are put the way they are put

  67. 1 everywhere in the world, did Knin proclaim its

    2 independence and when, and Mr. Niemann is saying that

    3 Knin had proclaimed its independence -- that is not a

    4 question, that is a claim and it is a claim which is

    5 untrue, by the way.

    6 MR. NIEMANN: We will deal with this in our

    7 rebuttal case, your Honour.

    8 JUDGE CASSESE: Yes, Mr. Niemann.

    9 MR. NIEMANN: Professor, we were talking

    10 about these autonomous provinces. I do not want to ask

    11 you about events that specifically happened

    12 necessarily, but I do want to get to the bottom of this

    13 question of changing the status of the autonomous

    14 provinces. Is it your evidence that this is a matter

    15 entirely for the particular Republic of Serbia in

    16 relation to Kosovo and Vojvodina, that it has nothing

    17 to do with the Federal Government, or the Federal

    18 Constitution?

    19 A. It is related. The autonomous provinces are

    20 part of one republic, the Republic of Serbia, and

    21 according to the constitution of 1974, they were also a

    22 constituent element of the federation, but the position

    23 of the autonomous provinces was essentially regulated

    24 by the constitution of Serbia, and then certain changes

    25 were introduced by way of amendments to the

  68. 1 constitution of Serbia, and this was done by the

    2 authorities on which the representatives of the

    3 autonomous provinces themselves had seats.

    4 Q. Among the documents that you included in

    5 support of your paper -- and I believe this is one that

    6 you rely upon as opposed to the next expert -- was a

    7 copy of the official Gazette of the Municipality of

    8 Vukovar of 28 March 1990, which dealt with amendments

    9 to the Statute of the municipality. Do you remember

    10 that document? If you want the document, please ask

    11 for it, and it can be made available to you.

    12 A. Please, I have the Statute.

    13 Q. It was an amendment to the Statute,

    14 I believe?

    15 A. Yes, please, could I --

    16 Q. It is your document, professor. I am not

    17 sure it has been admitted. I assume --

    18 A. I have not got it with me right now.

    19 Q. Perhaps Mr. Fila has it there then?

    20 MR. FILA: We have not admitted this into

    21 evidence -- the Statute of the municipality -- so I do

    22 not really know what you are talking about.

    23 MR. NIEMANN: I am talking about the

    24 amendment on 28 March.

    25 MR. FILA: This was not submitted into

  69. 1 evidence at all.

    2 JUDGE CASSESE: Is it D4?

    3 MR. NIEMANN: Let me try and approach it

    4 this way.

    5 MR. FILA: D7.

    6 MR. NIEMANN: This is an amendment to the

    7 Statute of the Municipality of Vukovar and I am just

    8 interested in Article 202(a). Firstly, I think

    9 I should establish -- is this a document that you

    10 relied upon when you prepared your report? I am not

    11 asking Mr. Fila.

    12 A. No.

    13 Q. It is not something you relied on --

    14 JUDGE CASSESE: Have you got a copy of this

    15 document, Mr. Niemann, in Serb?

    16 MR. NIEMANN: Yes, I do, in Serb. I have

    17 a Serb version of it -- it is not easy to read.

    18 Perhaps it might be shown to Mr. Fila and then the

    19 witness.

    20 MR. FILA: I am sure I have it, but it is at

    21 the hotel, because I do not have everything here with

    22 me. You know how many documents I have -- my room is

    23 full and I really do not know what Mr. Niemann is going

    24 to bring up in his questioning.

    25 (Pause).

  70. 1 JUDGE CASSESE: I understand this document

    2 was produced by the Defence.

    3 MR. FILA: Yes, as supporting material and

    4 I do not object to Mr. Niemann tendering this into

    5 evidence at all, if he wishes so, but what I propose

    6 for expertise is what I presented as evidence, so this

    7 was not really given to the witness to have a look at

    8 it, but I am not opposed to it at all, because

    9 Mr. Niemann is finally putting questions that are based

    10 on documents.

    11 MR. NIEMANN: I do not want to ask any

    12 questions about it if the witness did not rely upon

    13 it.

    14 THE WITNESS: I based my expert opinion on

    15 the Statute of the Municipality of Vukovar, I also have

    16 that document. I also have it in the hotel. I have it

    17 with me, because I always take all my relevant papers

    18 with me. This photocopy is -- let me have a look.

    19 JUDGE CASSESE: Sorry to interrupt you,

    20 I understand there is a problem with the transcript.

    21 (Pause).

    22 MR. NIEMANN: Professor, is this a document

    23 you are familiar with and did you rely on it in any way

    24 when you prepared your report?

    25 A. I drew on the Statute and I had this document

  71. 1 as well, but I do not know in what context I could fit

    2 it into my expert opinion, and what is it specifically

    3 about, Sir. When we are talking about the changes to

    4 the Statute -- I mean Article 202(a).

    5 Q. I want to know what "nations" and

    6 "nationalities" meant -- whether you knew?

    7 A. This expression of ours "nations" and

    8 "nationalities", this is a special term that we used

    9 and we had replaced "nationalities" -- we had replaced

    10 the term "national minorities" by "nationalities" in

    11 the former Yugoslavia. In the world, people call it

    12 "national minorities", but our authors of the

    13 constitution wanted to qualify them as "nationalities".

    14 Q. I have no further questions, your Honour.

    15 JUDGE CASSESE: Thank you.

    16 THE WITNESS: Otherwise --

    17 MR. FILA: I have no further questions. As

    18 far as I am concerned, the witness can be released, but

    19 before the next witness is brought in, I kindly request

    20 that we see the next video clip that I obtained --

    21 sorry.

    22 JUDGE CASSESE: I wonder whether --

    23 JUDGE MAY: Would it be convenient to exhibit

    24 this document, since we have referred to it -- the

    25 Official Gazette, 28 March 1990 -- it might be

  72. 1 convenient to give it the next D number.

    2 MR. NIEMANN: I have no objection to that.

    3 JUDGE MAY: Unless you have any objection,

    4 Mr. Fila?

    5 JUDGE CASSESE: I have a few questions for

    6 the witness.

    7 Q. Professor, if you do not mind, I would like

    8 to ask you a few questions. First of all, would you

    9 agree with the proposition made by Defence counsel in

    10 his opening statement, and I read out from the written

    11 text:

    12 "That the accused Slavko Dokmanovic was a

    13 citizen of the Socialist Federal Republic of Yugoslavia

    14 and of the Republic of Croatia, as were the victims who

    15 tragically perished."

    16 Would you agree, therefore, that

    17 Mr. Dokmanovic had, in November 1991, a dual nationality

    18 -- he was simultaneously a national of the Federal

    19 State as well as a national of the Republic of Croatia?

    20 A. Yes.

    21 JUDGE CASSESE: Then how would you legally

    22 explain the purport and meaning of Article 4 of a law

    23 which we have been discussing this morning -- the law

    24 concerning the implementation of the constitutional law

    25 passed on 25 November 1991 by the Great National

  73. 1 Assembly of the Serb District of Slavonia, Baranja,

    2 and Western Srem. Article 4 states of this law -- and

    3 you probably have it in front of you -- which we have

    4 already mentioned this morning provides and I quote:

    5 "On the date on which the constitutional law

    6 takes effect, all the inhabitants of the Serb

    7 District shall cease to be citizens of the Republic of

    8 Croatia, retaining their citizenship of Yugoslavia."

    9 So, in a way, if I understand this provision

    10 correctly, that means that, according to this law

    11 passed by the Great National Assembly of the Serb

    12 District and so on, those people who were Croat

    13 citizens and lived in the area of Slavonia, Baranja and

    14 Western Srem ceased to be regarded as citizens of the

    15 Republic of Croatia. I just want to ask you to

    16 clarify, from a legal point of view, this situation.

    17 A. For me, the constitution of the SFRY is

    18 valid, as far as SFRY citizenship is concerned, and the

    19 Federal law on citizenship, which regulates this

    20 particular matter and the rest of your quotation is

    21 something that we have already had an opportunity to

    22 discuss. These were circumstances that I tried to

    23 interpret.

    24 JUDGE CASSESE: Therefore, that means, if

    25 I understand you correctly, that according to you, this

  74. 1 provision, Article 4 of the law which I just mentioned,

    2 is inconsistent or contrary to the relevant Federal

    3 laws of the Socialist Federal Republic of Yugoslavia,

    4 because they, in a way, decide that the citizens of

    5 Republic of Croatia, living in a particular area, cease

    6 to retain their nationality, and only retain the

    7 citizenship of Yugoslavia, so therefore this particular

    8 provision is in conflict with the Federal law?

    9 A. Like many Acts before that and after that, if

    10 we were to subject them to constitutional and legal

    11 expertise under normal conditions, I do not really

    12 think it is relevant in relation to everything that we

    13 spoke of in this context and from the point of view of

    14 this particular case. I think that the introductory

    15 statement is alright, as far as this point is

    16 concerned.

    17 JUDGE CASSESE: Professor, I am asking you a

    18 legal question and, if you do not mind, it is for the

    19 court to decide whether an issue is relevant or is not

    20 relevant to our particular case. Please, therefore,

    21 answer my question, if you are in a position to answer

    22 this question, from a purely legal viewpoint. We are

    23 not dealing with facts; we are dealing with legal

    24 issues. As I say, I think I understood you to say that

    25 this -- I may be wrong -- particular provision was not

  75. 1 consistent with the Federal law of the Socialist

    2 Federal Republic of Yugoslavia. If I am wrong, you can

    3 tell me that I understood you incorrectly?

    4 A. The constitution and the Federal law of

    5 Yugoslavia.

    6 JUDGE CASSESE: We have to stop for a few

    7 minutes, because we cannot get the transcript.

    8 (Pause).

    9 JUDGE CASSESE: We will proceed. I want to

    10 understand, what nationality people living in the area

    11 of Vukovar between September and November 1991

    12 possessed -- people who were born there, who had been

    13 for the whole of their life citizens of the Republic of

    14 Croatia, and by the same token, at the same time, also

    15 of course citizens of the Federal State, at that point

    16 in time, between September and, say, November or

    17 December 1991, whether they still possessed this dual

    18 nationality -- the nationality of the Republic of

    19 Croatia, plus the nationality of the Federal State --

    20 it is a very simple legal question, regardless of the

    21 particular position of the accused. As I say, let us

    22 say, people of Serb ethnic origin living in Vukovar

    23 or in the area of Vukovar, who had been there for many

    24 years, who were born there, were they still in this

    25 particular period nationals -- sorry, let us say

  76. 1 citizens of both the Republic of Croatia and of the

    2 Federal State?

    3 A. Yes.

    4 JUDGE CASSESE: If you do not mind, I would

    5 like to ask you another question. We have been

    6 provided a document -- a law on Croat citizenship

    7 passed in Croatia on 26 June 1991 and this is

    8 Prosecution exhibit 190A and I wonder whether the

    9 Registrar could be so kind as to provide the witness

    10 with a copy in Serbo-Croat. I wonder whether you

    11 are familiar with this law -- the law on Croat

    12 citizenship passed on 26 June 1991 -- only the English

    13 version? Sorry, professor, I apologise, I understand

    14 now from the Registrar that we have not been given the

    15 original Serbo-Croat text, so I will therefore skip

    16 this question, but you may be --

    17 MR. FILA: Your Honour, I think that we do

    18 have it. Mr. Niemann gave us the Serb version, too

    19 -- I mean, the Croat version. Perhaps he did not,

    20 I do not know. The Prosecutor promised us a copy, but

    21 I do not know whether we actually received it.

    22 JUDGE CASSESE: It is the law on Croat

    23 citizenship of 26 June 1991, Prosecution exhibit 190A.

    24 MR. NIEMANN: We gave it yesterday to

    25 Ms. Lopicic, I understand -- that is what I am

  77. 1 instructed, your Honour.

    2 MR. FILA: You gave us the Constitution --

    3 the Constitution of Croatia, not the law on

    4 citizenship.

    5 JUDGE CASSESE: Professor, if you do not

    6 mind, I will read out a few provisions -- these are

    7 long texts, but I will read out only a few provisions.

    8 This law amends previous laws on the citizenship of the

    9 Socialist Republic of Croatia. Can you follow me?

    10 A. Yes.

    11 JUDGE CASSESE: As a lawyer, reading this

    12 particular law, I got the impression that it was not

    13 drafted as a law on citizenship of a republic of the

    14 Federal State, but, rather, as the law of a sovereign

    15 State. For instance -- because it covers so many

    16 issues which are normally covered by the legislation on

    17 nationality on any sovereign country -- France, Italy,

    18 Germany and so on. For instance, at the end, it states

    19 in Article 28:

    20 "The certificate of citizenship is a public

    21 document which serves to prove Croat citizenship and

    22 is issued by the Municipal Registrar's Office, or" --

    23 and I underline this part -- "the authorised diplomatic

    24 or Consular Office of the Republic of Croatia abroad."

    25 So, therefore, it implies that it is dealing

  78. 1 with the citizenship, not as the citizenship which, in

    2 a way, supplements the Federal citizenship of the

    3 Federal State but, rather, as a citizenship of a

    4 sovereign country. So this is the impression which one

    5 gets from reading this law, and afterwards in Article

    6 29 it is stated:

    7 "Croat citizenship is evidenced by a valid

    8 identity card, military identity card or passport."

    9 So, assuming that I am right, but I might be

    10 wrong -- I would like to have your view -- assuming

    11 that this is therefore conceived of as this sort of

    12 typical nationality or citizenship law of a sovereign

    13 country, would this law be inconsistent with the

    14 federal legislation of the Socialist Federal Republic

    15 of Yugoslavia?

    16 A. Absolutely, because it starts out from the

    17 fact that the Republic of Croatia is a sovereign

    18 independent State and that, as such, it could regulate

    19 the citizenship of a sovereign State. However, as

    20 Croatia at that time was still not a sovereign and

    21 independent State, then it follows that this law is not

    22 in conformity either with the constitution of federal

    23 Yugoslavia and the federal laws governing the

    24 citizenship of the SFRY, nor is it in harmony with the

    25 previous law of the Socialist Republic of Croatia as a

  79. 1 member of the federation.

    2 JUDGE CASSESE: Thank you, I take your

    3 point, but, in a way, would I be right in also

    4 inferring from your reply that, mutatis mutandis, this

    5 would also apply to the law which we were discussing

    6 previously passed on 25 September 1991 by the Great

    7 National Assembly of the Serb Districts of

    8 Slavonia. To the extent, this law also provided for

    9 regulated matters of citizenship and therefore could

    10 not be regarded probably as consistent with the federal

    11 law on citizenship -- I think that probably I was a bit

    12 convoluted. I do not know whether my question is

    13 clear. If it is not clear, I could put it in a better

    14 way?

    15 A. Yes, please, would you put it in a clearer

    16 way, although I do follow your trend of thought?

    17 JUDGE CASSESE: I was meaning that I see

    18 some parallelism between the enactment -- the passing

    19 by the Republic of Croatia of a law on citizenship, and

    20 the passing by the Great National Assembly of the

    21 Serb District of Slavonia of a law which includes a

    22 provision of citizenship. Could we say that, also,

    23 this Article 4 of that particular law of Slavonia and

    24 so on is not consistent with the federal constitution

    25 or the federal laws on citizenship?

  80. 1 A. I would not draw a comparison here, in the

    2 context of everything that we have said beforehand.

    3 JUDGE CASSESE: My final question relates to

    4 the legal nature of this entity, which we have been

    5 mentioning so many times, but which we are not very

    6 clear, at least the court is not very clear about --

    7 this Serb District of Slavonia, Baranja and Western

    8 Srem which had a Government, President and assembly and

    9 so on, could you please clarify the legal status of

    10 this District of Slavonia, Baranja and Western Srem,

    11 the fact that it had a Government, assembly and a

    12 President, was it a government, a regional entity?

    13 From the viewpoint of the federal constitution, what

    14 was the legal status of this entity?

    15 A. It was specific, to say the least, and

    16 I could not incorporate it into the ruling federal

    17 constitution, but it can be fitted into the

    18 circumstances that both Croatia, Yugoslavia and this

    19 particular district found itself in and the fact that

    20 it was a question of a provisional situation --

    21 temporary situation -- which was qualified as such

    22 until the final solution to the problem was reached.

    23 JUDGE CASSESE: Do you mean to say that the

    24 setting up of the government of the autonomous District

    25 of Slavonia, Baranja and so on, was not fully in

  81. 1 keeping or in conformity or in accordance with the

    2 federal constitution?

    3 A. It is a question of provisional organs and,

    4 strictly speaking, it was not in keeping with the

    5 federal constitution.

    6 JUDGE CASSESE: Thank you. Was it a sort of

    7 -- it is called "government of the district". Was it

    8 a sort of de facto local government, was it a body, was

    9 it a region? Judging from your experience as an expert

    10 in constitutional law, how would you classify or

    11 characterise the nature of this body?

    12 A. From the constitutional legal aspects,

    13 I cannot incorporate it into any classical model, I

    14 must tell you, because there are models of the

    15 organisation of a State regardless of whether it is a

    16 unitarian state or a federal state -- internal

    17 organisation. We are talking about the temporary

    18 constitution of a district which is under the control

    19 of the Serbs, and it is being organised provisionally

    20 in order that daily life may function, and in order

    21 that the questions vital to the population can be

    22 regulated.

    23 JUDGE CASSESE: Alright. As you know in

    24 international law, we have an expression which is also

    25 used by constitutional lawyers "de facto government",

  82. 1 so a sort of provisional entity, which is set up due to

    2 historical circumstances and which normally therefore

    3 disappears for various reasons.

    4 Leaving aside this possible classification as

    5 de facto government, could you explain to us, again

    6 strictly from a legal viewpoint, the relations between

    7 this Government of the autonomous district of Slavonia

    8 Baranja and Western Srem and the central authorities in

    9 Belgrade -- the federal authorities, one; and, two, the

    10 central authorities of the Republic of Serbia, because

    11 I understand this was in the area within the territory

    12 of the Republic of Serbia. I may be wrong, but -- the

    13 legal relationships?

    14 A. The legal relationship does not exist here.

    15 It is a question of the territory of the Republic of

    16 Croatia with the Serb population as the constituent

    17 titular nation, which hold a given territory under

    18 their control and, in the legal aspects, we cannot

    19 speak of a relationship with the authorities in the

    20 matrix State -- a State which is a matrix State for

    21 that particular nation.

    22 JUDGE CASSESE: This again clarifies -- I

    23 apologise for my ignorance. I thought that Slavonia,

    24 Baranja and Western Srem would also cover part of the

    25 territory of the Republic of Serbia proper -- not only

  83. 1 Eastern Slavonia but also --

    2 A. (Witness shakes head).

    3 Q. No. Therefore, this region --

    4 A. I think that is where the misunderstanding

    5 lies -- it is the Republic of Croatia and the territory

    6 of Croatia, where the majority population is Serb, not

    7 as of yesterday.

    8 JUDGE CASSESE: Thank you. I wonder whether

    9 there are any questions relating to the issues which

    10 I have asked? There is no objection to the witness

    11 being released?

    12 Professor, thank you for coming here to give

    13 evidence. You may now be released.

    14 A. Thank you.

    15 (The witness withdrew)

    16 JUDGE CASSESE: I suggest that now we take a

    17 look at the videotape you mentioned before and then we

    18 break at quarter to 12 until 12.

    19 MR. FILA: Your Honours, before this

    20 videotape is played, let me give you some explanations

    21 -- it is the tape from a cassette given by the

    22 Prosecutor. It is Mr. Dokmanovic's appearance in 1993,

    23 two years after the events which are relevant to the

    24 case, but I should like to draw your attention to the

    25 following fact: I should like to draw your attention

  84. 1 to the fact that count 19 of the indictment, which

    2 states that Slavko Dokmanovic, in November 1991, after

    3 the fall of Vukovar, took over once again the function

    4 of the President of the Municipal Assembly and

    5 continued that function until mid 1996, so the

    6 Prosecutor states that Mr. Dokmanovic, until, if

    7 I understand correctly, he was arrested, he was

    8 President and he probably is still. That is why 1993

    9 is an important date.

    10 Please pay attention to the signature

    11 underneath -- may the signature be translated, please?

    12 THE INTERPRETER: "A life of dignity,

    13 existence".

    14 (Videotape played).

    15 "The people of Vukovar explain why so little

    16 has been done to rebuild Vukovar. It is the

    17 consequence of military engagement because the most

    18 capable are on the front-line, because rifles are still

    19 the most important thing. Vukovar is the largest town

    20 in the Republic of Serbia and Krajina. It is a symbol

    21 of the struggle as was never seen in these areas.

    22 Probably it is the result of the mixture of the

    23 population that exists in these parts and, in view of

    24 everything that Vukovar suffered and what the people of

    25 Vukovar gave for the Republic of Serbia and Krajina, we

  85. 1 expect that, with its rebirth and its reconstruction,

    2 we symbolise the rebirth and creation of the State of

    3 Serbia and Krajina, as we expect it to be, as it will

    4 no doubt be. Therefore, I do not think we will --"

    5 MR. FILA: I would like a translation of the

    6 signature under the photograph -- that is the key

    7 question -- the caption under the photograph, please.

    8 (Videotape played)

    9 THE INTERPRETER: It says "Slavko Dokmanovic,

    10 former mayor of Vukovar". That is the caption.

    11 MR. FILA: And it states in the text "two

    12 years later" -- "two years after that". I would like

    13 this to be admitted as evidence by the Prosecutor,

    14 because it is the Prosecutor's tape, and I think that

    15 this would be a good moment to propose to the court

    16 that, as evidence of the Defence in connection with

    17 this caption, because they are all from Radio

    18 Television Serbia, that the following documents be

    19 admitted, so that we can see who wrote the captions,

    20 both from the Prosecutor's aspect and the aspects of

    21 the Defence. There are other things that are not very

    22 convenient either to me or the Prosecutor.

    23 THE REGISTRAR: The amendment to the

    24 Statute will be D23 and the English translation D23A,

    25 although I do not have an English translation yet. I

  86. 1 do not know whether the Prosecution can provide the

    2 Registry with it.

    3 JUDGE MAY: It is the Registry page D6688.

    4 THE REGISTRAR: I will be able to find it.

    5 I am not really certain about the video, whether the

    6 Defence would like to have it admitted as a Defence or

    7 Prosecution exhibit.

    8 MR. FILA: I would like it to be the

    9 Prosecutor's exhibit, because it is the Prosecution's

    10 tape. It is the same tape where we saw the first two

    11 segments played to us by the Prosecution and this is

    12 the third segment.

    13 MR. NIEMANN: I certainly have no objection

    14 to it being tendered as our exhibit.

    15 THE REGISTRAR: That will be Prosecution

    16 exhibit 193.

    17 MR. FILA: What I have just given you.

    18 THE REGISTRAR: D24.

    19 MR. NIEMANN: Might we see this document,

    20 your Honours? I do not think we have seen it -- we may

    21 have, I do not know.

    22 MR. FILA: Let me explain. It is a

    23 confirmation from Radio Television that the caption

    24 seen on the videotape, which we call krijons, are made

    25 in the television building itself, and not on the spot

  87. 1 -- on location; the caption was made in the television

    2 building by television.

    3 JUDGE MAY: Mr. Fila, it is the date --

    4 I thought you said the video was 1993. The reference

    5 here is to a news programme of 21 November 1991 -- this

    6 is in the document that we have.

    7 MR. FILA: This document refers to the first

    8 tape -- the first Prosecution evidence, where it states

    9 "the mayor", but I accept that the part of "1993"

    10 which suits my purpose was also written on the premises

    11 of the television. I accept what the Prosecutor uses

    12 is correct. So, I do accept that document to my own

    13 debit.

    14 MR. WILLIAMSON: Your Honour, our objection

    15 originally to the admission of this document was the

    16 fact that, in this footage from 21 November, it is not

    17 just a reference that is put in there in a vacuum. In

    18 fact, the reporter says, "I am here with Slavko

    19 Dokmanovic, the mayor of Vukovar" and then he turns to

    20 him and asks a question. This, in and of itself, seems

    21 to imply this was put on by someone in Belgrade without

    22 any information whatsoever. That was the reason we

    23 objected to it. We would still maintain that objection

    24 because of this date and that there is no reference to

    25 the date for 1993.

  88. 1 MR. FILA: Your Honours, I think you know

    2 that I never use tricks -- perhaps somebody else uses

    3 tricks to prove a point. I gave you the document only

    4 for what is written and what Mr. Williamson says, that

    5 the reporter is speaking and says, "This is the mayor

    6 of Vukovar", I have no objection there whatsoever. He

    7 really does say that. What Mr. Williamson says is quite

    8 correct. The document refers to the caption alone, so

    9 we are talking about two different matters here. I do

    10 not question the exactitude of what Mr. Williamson is

    11 saying. It was something that the journalist in

    12 question stated, but the captions, with this segment of

    13 the footage and with the other tape dating back to

    14 1993, were done in the television offices -- that is

    15 the sense of the document. I do not see where the

    16 problem is.

    17 MR. WILLIAMSON: If that is Mr. Fila's

    18 position now, we would have no objection, but if I do

    19 recall correctly, he did raise an objection to this

    20 film being admitted originally and it was overruled by

    21 the court. So, I just wanted to make this absolutely

    22 clear, that this was not an effort to get around that

    23 in any way.

    24 JUDGE CASSESE: It is admitted. This letter

    25 will be D24.

  89. 1 THE REGISTRAR: Yes, and the English

    2 translation D24A.

    3 JUDGE CASSESE: We will now adjourn for 15

    4 minutes until 5 past 12.

    5 (11.49 a.m.).

    6 (12.08 p.m.).

    7 MR. WILLIAMSON: Your Honour, before we get

    8 to the witness, I just had one brief matter to clear

    9 up. In relation to this videotape which has been

    10 entered as exhibit 193, it is necessary for us to copy

    11 it on to an additional tape, which we will submit later

    12 to the Registry, we have arranged this. I just wanted

    13 to point out in response to Mr. Fila's statements in

    14 connection with the videotape, we had already entered

    15 into an agreement with the Defence -- a stipulation to

    16 the effect that Slavko Dokmanovic was not the mayor in

    17 1993, and that he was re-elected as President of the

    18 Vukovar assembly on 10 June 1994. This was

    19 communicated to the Defence on 25 March. This is not

    20 an issue that we are contesting.


    22 THE WITNESS: I solemnly declare

    23 that I will speak the truth, the whole truth and

    24 nothing but the truth.

    25 Examination-in-chief by MR. FILA:

  90. 1 Q. Do you feel comfortable, Mr. Cukalovic, can

    2 you hear me well?

    3 A. Yes, I feel comfortable, but it is not

    4 altogether pleasant, like in any court.

    5 Q. Do you have a degree in law?

    6 A. Yes.

    7 Q. Did you get a MA in 1982 at the Faculty of

    8 Law in Belgrade?

    9 A. Yes.

    10 Q. Did you get your Ph.D. in 1985, also in

    11 Belgrade?

    12 A. Yes.

    13 Q. Are you now a full Professor of International

    14 Public Law?

    15 A. I am an Associate Professor.

    16 Q. During your career, did you take courses in

    17 Moscow, London, The Hague and elsewhere in

    18 international public law?

    19 A. Yes.

    20 Q. Could you please have a look at this document

    21 -- this is your curriculum vitae and say if it is

    22 correct, and did you write all these articles and books

    23 that are mentioned here?

    24 THE REGISTRAR: The document is marked as

    25 D25.

  91. 1 JUDGE CASSESE: This is the CV (Handed).

    2 THE WITNESS: Yes.

    3 MR. FILA: Please, could we show the expert

    4 the next document, too, five copies in the Serb

    5 language and five copies in the English language.

    6 (Handed).

    7 THE REGISTRAR: It is D26, and the English

    8 translation D26A.

    9 THE REGISTRAR: D27 and D27A. (Handed).

    10 MR. FILA: I have the impression that

    11 Mr. Niemann wishes to say something.

    12 MR. NIEMANN: Your Honours, I do not rise to

    13 object to the admission of these documents or

    14 particularly the report, but I wish to make the

    15 following observation: this is an International

    16 Tribunal and I presume that this witness will now opine

    17 on international law and on conclusions which

    18 ultimately your Honours will need to decide upon and

    19 I will, at the end of the day, be arguing that whatever

    20 testimony you receive from this witness should be given

    21 no greater weight than what would be submitted from the

    22 bar table by the Prosecution side, having regard to the

    23 fact that he is touching upon matters which are within

    24 the expertise of the court and is to be distinguished,

    25 for example, from the last witness, who was giving

  92. 1 expert testimony on matters of foreign law -- domestic

    2 law, if your Honours please. (Pause).

    3 JUDGE CASSESE: Mr. Fila, I wonder whether we

    4 could try to restrict ourselves to legal issues

    5 relevant to the present case, generally speaking --

    6 legal issues of public international law relevant to

    7 our case.

    8 MR. FILA: Your Honour, in my brief, I said

    9 how many hours I need for my expert opinions and I am

    10 going to have that time. I am going to cut it by a

    11 half, but you see how long the cross-examination takes,

    12 so it does not really depend on me.

    13 Q. Are you the author of the articles and books

    14 presented in this CV?

    15 A. Yes.

    16 Q. Okay, I already asked you that. Is this your

    17 expert opinion and is it also an amendment to your

    18 expert opinion? I wish this to be admitted into

    19 evidence, please. If I am not mistaken, there are no

    20 objections from the other side. The Defence fully

    21 agrees with the question that you have put, and the

    22 Defence has one question only for this witness. I

    23 really cannot be any shorter than that.

    24 What is the nature of the armed conflict that

    25 happened on the territory of Croatia within the SFRY in

  93. 1 the period which is important for this indictment --

    2 which is relevant to this indictment?

    3 A. In order to draw conclusions on this crucial

    4 matter, certain questions have to be answered before

    5 that, which cast more light on the nature of the war on

    6 the territory of the former Socialist Federal Republic

    7 of Yugoslavia. This was a special war from many points

    8 of view. Also, in view of the fact that on the same

    9 territory, during the past 50 years, two conflicts were

    10 waged between the same protagonists and with tragic

    11 consequences, as we can see. The first conflict

    12 between ethnic groups on the territory of the former

    13 Yugoslavia occurred parallel to the German occupation,

    14 which led to the disintegration of the then Kingdom of

    15 Yugoslavia and the establishment of the independent

    16 State of Croatia, Greater Albania, Bulgaria, on the

    17 territory of the disintegrated Kingdom of Yugoslavia.

    18 The second conflict broke out 50 years later -- its

    19 objective was to change territorial sovereignty and to

    20 create independent ethnic states.

    21 In order to draw a conclusion as to the

    22 nature of the war on the territory of the former

    23 Yugoslavia, we are going to start with a gradual

    24 analysis, because only this comparative historical

    25 legal method can give arguments to this court, so that

  94. 1 it can conclude whether the conflict on the territory

    2 of the former SFRY was an international or internal

    3 conflict.

    4 The period after the first disintegration of

    5 Yugoslavia, the first break-up of Yugoslavia after 1941,

    6 is marked by problems that were resolved only

    7 superficially. In 1918, the first Yugoslavia was

    8 established -- there were three constituent peoples,

    9 Serbs, Croats and Slovenes, and only Serbs brought into

    10 Yugoslavia their independent statehood together with

    11 Montenegro, of course.

    12 In the second Yugoslavia in 1945 onwards,

    13 divisions only grew through quasi constitutional

    14 mechanisms. The number of constituent peoples was

    15 increased from three to six, and every one of these

    16 peoples had their own republic. It should be noted

    17 that the composition of the population of each republic

    18 was mixed from an ethnic point of view. In 1968, in

    19 Croatia, the so-called Maspok, the mass political

    20 movement, occurred in Croatia and it homogenised the

    21 Croat people. Belgrade Press was burned down and

    22 cars with Serb registration plates were demolished

    23 and army personnel were attacked, et cetera. The

    24 crisis was over.

    25 The leadership resigned and proceedings were

  95. 1 instituted before a court of law against Franjo

    2 Tudjman, President of the Republic of Croatia, because

    3 of hostile activities. In the 1970s, Yugoslavia faced

    4 its first terrorist groups, which came into the

    5 Yugoslav territory in 1972 and these were Croat

    6 terrorists. Soon afterwards, in 1980, Josip Broz Tito

    7 died. He was a person who, in a way, kept Yugoslavia

    8 together as a single State and then political Parties

    9 were first established.

    10 The problem was that, in each and every

    11 republic, a national Party came into power, and their

    12 objective was separation. With the exception of some

    13 republics, like Serbia and Montenegro, the political

    14 leadership that won the elections in Serbia and

    15 Montenegro were in favour of maintaining Yugoslavia.

    16 In order to find a way out of this difficult situation,

    17 the members of the presidency visited the republican

    18 centres trying to reach a solution how Yugoslavia could

    19 be preserved. However, Croatia started importing

    20 weapons illegally. Martin Spegelj, the former Minister

    21 of Defence of Croatia, said that secret arms purchases

    22 were made from Switzerland with the assistance of

    23 Hungary -- I quote -- "for the needs of the Croat

    24 army that was secretly being organised", so at that

    25 time already paramilitary units were secretly being

  96. 1 formed in Croatia. In the expose of the presidency of

    2 the SFRY on 17 October 1990, the following is said:

    3 "Relations between individual Federal units

    4 have deteriorated to such an extent that contacts at

    5 the level of responsible organs have been cut off

    6 altogether or have been reduced to confrontation --

    7 even armed threats are being made."

    8 In 1990, the Ministry of Defence of

    9 Yugoslavia documented the illegal import of weapons

    10 into Slovenia and Croatia, and the presidency of

    11 Yugoslavia on 9 January 1991 passed an order on the

    12 disbandonment of all paramilitary formations and in

    13 response to that Croatia said the following:

    14 "The Republic of Croatia, in Defence of its

    15 economic and political sovereignty, shall use all means

    16 available and shall mobilise the entire Croat people at

    17 home and abroad, world-wide."

    18 Stipe Mesic, at that time the President of

    19 Yugoslavia, said the following:

    20 "Croatia has opted for Defence and has armed

    21 itself."

    22 Soon, there was an escalation of a conflict

    23 between Croat paramilitary units and Serbs on the

    24 territory of Croatia who had self organised their

    25 people, because they had learned an historical lesson

  97. 1 from the experience of the Second World War, which you

    2 had an opportunity to see yesterday, on the videotapes.

    3 On this occasion, another statement was made

    4 and that is that this was nothing but the beginning of

    5 a new civil war. At the meeting of the presidency of

    6 Yugoslavia and the supreme command of Yugoslavia, it

    7 was proposed to introduce a state of emergency in order

    8 to stop a civil war and to reach agreement on how

    9 relations in the country should be regulated. However,

    10 the majority of votes was against this proposal.

    11 Soon after that, Croatia launched a

    12 diplomatic offensive and paid visits to members of the

    13 European Union, Rome, Moscow, et cetera. On 1 June

    14 1991, Stipe Mesic was elected President of Yugoslavia.

    15 Only two days after that, he asked Germany for the

    16 recognition of Slovenia and Croatia and I quote the

    17 former German Ambassador to Yugoslavia, Horst Graber:

    18 "Most are dishonourable, they do not speak the truth.

    19 They conceal their true intentions in their attempt to

    20 instrumentalise and abuse the international community."

    21 On 25 June 1991, on the basis of the vote of

    22 their citizens beforehand, they passed a charter of

    23 independence, of the Republic of Slovenia and on the

    24 same day, Croatia adopted a constitutional decision on

    25 sovereignty and independence of the Republic of

  98. 1 Croatia.

    2 How did the Federal authorities react to

    3 this? As regards these decisions to leave Yugoslavia,

    4 the Constitutional Court annulled articles 2, 3 and 4

    5 of the declaration proclaiming independence of Slovenia

    6 and also the declaration proclaiming the Sovereign and

    7 Independent Republic of Croatia and they ruled as

    8 follows:

    9 "The right of the peoples to

    10 self-determination, including the right to secession

    11 laid down by the SFRY constitution may not, in the

    12 opinion of the Constitutional Court of Yugoslavia, be

    13 exercised by the unilateral enactments of peoples, that

    14 is enactments of Assemblies of their republics. That

    15 right may be exercised only under conditions and in a

    16 manner which would be established pursuant to the SFRY

    17 constitution, with the consent of every people, and its

    18 republic, separately and all of them together. The

    19 unilateral proclamation of the Republic of Croatia as

    20 sovereign and independent in the view of the

    21 Constitutional Court of Yugoslavia is in violation of

    22 the provisions of the SFRY Constitution on the

    23 composition of the SFRY as a State community of the

    24 peoples of Yugoslavia, as well as on those on the

    25 borders of Yugoslavia as a Federal State and a State

  99. 1 community of voluntarily united peoples and their

    2 republics. The Ministry of Defence of Yugoslavia sent

    3 information to the presidency of the SFRY, which

    4 discussed the problems that occurred and they came to

    5 the conclusion that, on the territory of the SFRY, in

    6 several places, there were secret imports of weapons

    7 that were made and they were being handed out to the

    8 population and that the laws and constitution of the

    9 Federal State were being grossly violated and that

    10 there is a danger of an uprising with unforeseeable

    11 consequences and conflicts -- could be an international

    12 conflict of limitless proportions .

    13 THE INTERPRETER: Could the witness please

    14 slow down? He is reading and the interpreters do not

    15 have a text.

    16 JUDGE CASSESE: Could you please slow down?

    17 A. Okay, no problem. A few minutes ago I said

    18 that it would take some time, so that is why I...

    19 The presidency of Yugoslavia issued an order

    20 saying that all armed formations would have to be

    21 disbanded throughout Yugoslavia -- these did not belong

    22 to the armed forces of Yugoslavia -- within a time

    23 limit of 10 days.

    24 In Article 5 of this order, it was stipulated

    25 that the Yugoslav People's Army would provide

  100. 1 protection for all citizens throughout the territory of

    2 the Socialist Federal Republic of Yugoslavia. Soon,

    3 the first major incidents occurred. May I recall some

    4 of them?

    5 The Croat armed paramilitary forces, in

    6 the town of Pakrac which had a Serb population,

    7 attacked the municipal building and, in order to

    8 prevent an escalation, units of the Yugoslav People's

    9 Army were sent and fire was opened against them. At a

    10 meeting of the presidency of the SFRY, the Chief of

    11 Defence, General Veljko Kadijevic, informed the

    12 presidency of the fact that the measures envisaged in

    13 the order are not being implemented and he proposed

    14 that a state of emergency be introduced, which was

    15 rejected.

    16 After a new incident in the area of Plitvice

    17 and Titova Korinica, the presidency of the SFRY issued

    18 orders to the Yugoslav People's Army to ensure a

    19 cease-fire, to have it observed, and to raise the state

    20 of alert within the JNA to a higher level.

    21 At the beginning of the trial against Martin

    22 Spegelj, the organiser of the arms purchases, the

    23 building of the military court in Zagreb was attacked.

    24 New incidents occurred in Borovo Selo, Eastern

    25 Slavonia, Knin Krajina and after Croat paramilitary

  101. 1 units attacked military facilities in Trogir and the

    2 military command ordered mobilisation and a higher

    3 state of alertness. You were in a position to see the

    4 attacks in Trogir yesterday.

    5 After the acts of secession made by Croatia

    6 and Slovenia, if we were to analyse the existing state

    7 of affairs, we could draw the conclusion that, in

    8 Yugoslavia, public order was seriously jeopardised.

    9 Also, that the Yugoslav People's Army, according to

    10 internal and international law, acquired the right to

    11 react appropriately.

    12 In this same way, the army has been acting in

    13 Turkey, Algeria and Northern Ireland, so if we were to

    14 analyse the existing state of affairs, as well as

    15 constitutional principles of Yugoslavia from 1974, the

    16 practice of states in similar situations, the Yugoslav

    17 People's Army had the right to try to stop secession,

    18 according to all international documents and according

    19 to the constitution of the Socialist Federal Republic

    20 of Yugoslavia.

    21 On the basis of these theoretical opinions,

    22 and on the basis of an analysis of international

    23 documents, the international jurisprudence of the

    24 international court of law, according to practise in

    25 other countries and, finally, in keeping with the

  102. 1 duties derived from the constitution, there is

    2 sufficient argument to bring in a conclusion as to

    3 whether the Yugoslav People's Army, on its own

    4 territory, acted as an aggressor, or did it act in

    5 conformity with international and internal law?

    6 The prevalent opinion is that we are talking

    7 about a reaction on the basis of legal documents and

    8 that the action was a legitimate action taken by the

    9 JNA.

    10 After a certain amount of time, it became

    11 evident that, on the territory of Yugoslavia, an

    12 internal conflict was being waged with unforeseeable

    13 consequences between the republics and peoples wishing

    14 to secede, and those republics and peoples and the

    15 Yugoslav People's Army, who wished to retain the unity

    16 of the Federal State.

    17 The Yugoslav People's Army acted according to

    18 all the arguments presented earlier on in keeping with

    19 the constitution and the Charter of the United Nations,

    20 and in the year 1991 was marked with a great number of

    21 casualties on both sides.

    22 In 1991, all the arguments presented indicate

    23 the fact that we were dealing with a conflict within

    24 one country and that country is the Socialist Federal

    25 Republic of Yugoslavia and that the conflict was

  103. 1 between the peoples wishing to secede and the Yugoslav

    2 People's Army wishing to retain the Federal State.

    3 The Yugoslav Army acting in keeping with the

    4 constitution and the United Nations charter, had no

    5 other choice but to decide upon a solution to retain

    6 and safeguard the country. If we were to try and find

    7 arguments for an opinion which is contrary to that one,

    8 it would be difficult to do so, relying on any legal

    9 document, either international or domestic, and without

    10 prejudice, everything would lead us to conclude that,

    11 during the year 1991, on the territory of the former

    12 Yugoslavia, a civil war took place and not an

    13 international conflict.

    14 The war was waged within the frontiers of

    15 Yugoslavia itself between its citizens with different

    16 political goals.

    17 Let us now pay attention to the legal

    18 arguments in this regard. An international conflict by

    19 definition takes place between States and an internal

    20 one between the citizens of one State, or parts of

    21 states, against the central powers and authorities that

    22 be. For us to be able to understand this more fully,

    23 that is to say, what we mean by an "international

    24 conflict" and what we mean by an "internal conflict",

    25 let me quote a fairly old concept on the character of

  104. 1 warfare and a modern view. Riviere, in his book, "The

    2 Basis of International Law" dating back to 1898

    3 underlined the following: The differences made between

    4 a real war, which is waged between states, and an

    5 international war and a civil war -- a war which is the

    6 subject of international law is only a war between

    7 states. A civil war is not a war which is the subject

    8 of international law. A Government has, before it

    9 rebels, insurgents which are to be treated as such, but

    10 it is up to that Government to have an attitude as if

    11 it were dealing with belligerent sides. As opposed to

    12 international conflicts in which the two warring

    13 parties are states, the warring parties are states,

    14 internal conflicts take place within a single State

    15 territory -- between antagonistic groups, citizens of

    16 that same State.

    17 The causes of internal conflict can be

    18 manifold -- class differences, national ones, religious

    19 or tribal. Along with this, internal conflicts can

    20 move within different time scopes.

    21 A completely new definition by the

    22 Vice-President of the International Law Association

    23 states that, in international conflicts, the

    24 conflicting parties are equal, which is a reflection of

    25 the sovereign equality of states, and their

  105. 1 relationships and the rules of international law will

    2 be applied to their relationships. Internal conflicts,

    3 however, as they are waged in a territory over which

    4 legal authority has territorial supremacy, are waged

    5 between citizens over whom the State has personal

    6 supremacy and it logically transpires that internal

    7 conflicts come within the competence of the State

    8 itself.

    9 The use of force in order to change the

    10 existing state of affairs and the possible taking over

    11 of power for all legal systems in the world are

    12 qualified as criminal acts, regardless of the

    13 background and motives of the conflict in question.

    14 The legal Government, with its armed force, acts in

    15 Defence of its constitutional rights and the rebels are

    16 punished on the basis of criminal law.

    17 Therefore, if we wish to prove, or to note

    18 the facts according to which a court will be able to

    19 draw its own conclusions as to the character of a war,

    20 and the character of the war on the territory of former

    21 Yugoslavia as it was during the year 1991, in view of

    22 the critical date, that is to say, 20 November of that

    23 year, we must prove, prior to this, the warring parties

    24 on the territory of the former SFRY, that is to say,

    25 whether Croatia, at that particular moment, at that

  106. 1 particular date of 20 November, whether Croatia was a

    2 State from the aspects of international law, or whether

    3 it was not. If it was a State, then it was an

    4 international conflict; if arguments show that it was

    5 not, then the contrary conclusion can be drawn and the

    6 conflict was not an international one -- it was an

    7 internal one.

    8 We have sufficient facts on the basis of

    9 which we are able to see that, in the course of 1991, a

    10 conflict was waged on the territory of Yugoslavia

    11 between peoples who wished to secede and those peoples

    12 who wished to retain the country's unity and the

    13 Yugoslav People's Army, which, as the guarantor of the

    14 sovereignty of the State according to the constitution,

    15 had to act in line with the constitution. Therefore,

    16 nothing that is against the law can have a legally

    17 respected consequence. Therefore, if Croatia was

    18 formed as a State contrary to the law, then it is quite

    19 certain that it cannot be recognised as a State in the

    20 course of 1991. For this reason, we are going to draw

    21 our attention to the legal arguments in this regard.

    22 How can we treat the stepping down of Croatia from

    23 Yugoslavia in the course of 1991 and onwards? Was this

    24 done in keeping with international and internal law, or

    25 was it not? If it was not, then we have on the scene,

  107. 1 concerning Croatia's recognition, some other factors --

    2 not legal factors, that is to say, political factors

    3 which should not interest this Tribunal.

    4 We are going to base our assumptions only on

    5 legal arguments for this particular purpose.

    6 The secession of certain republics from the

    7 makeup of Yugoslavia, the advocates of the Federal

    8 State, treat it as an act of secession and the

    9 representatives of the republics which step down

    10 treated this as an act of self-determination. If you

    11 step down from a State, it breaks up the unity of that

    12 same State. On the other hand, speaking about the

    13 principle of self-determination, it can be explained in

    14 different ways. That is why we are going to try to

    15 show, on the basis of the theory of international law

    16 and the jurisprudence of the International Court of

    17 Law, to give an answer to the following question: in

    18 the case of Croatia stepping down from Yugoslavia, was

    19 it an act of secession, or was it an act of

    20 self-determination?

    21 In theory, that is the theory of

    22 international law, the principle of self-determination

    23 can be explained as a request to answer to the desire

    24 of peoples who, due to historical conditions, were not

    25 able to create a State of their own.

  108. 1 The United Nations charter, in article 1.2

    2 stresses the following:

    3 "The development of friendly relations among

    4 nations, based on a respect for the principles of

    5 equality and self-determination of nations and the

    6 undertaking of corresponding measures in order to

    7 strengthen general peace."

    8 Article 55 underlines the following:

    9 "With the aim of creating conditions of

    10 stability and well-being, which are indispensable for

    11 peaceful and friendly relationships among nations,

    12 based on a respect for the principles of equality and

    13 self-determination of peoples, the United Nations

    14 worked towards, et cetera."

    15 For a long time, in theory, in the theory of

    16 law, a debate was waged over the question of the notion

    17 of self-determination itself. Some people maintained

    18 that it was a political and others that it was a legal

    19 issue.

    20 So, for example, (INAUDIBLE) advocates the

    21 view that it is a political issue, whereas Wright and

    22 Duncan maintain that it is a legal question.

    23 Self-determination as a political principle

    24 appeared at the time of the American and French

    25 revolutions and the doctrine and practice of

  109. 1 international law of the modern times sees

    2 self-determination as a component part of the

    3 democratic changes and view it as part of the struggle

    4 against pressure and not the idea of separatism.

    5 The league of nations rejected --

    6 JUDGE CASSESE: Sorry to interrupt you,

    7 could you please come to the point -- speak about

    8 self-determination in Croatia without citing the legal

    9 references. We do have two written documents.

    10 MR. FILA: With your permission, your

    11 Honours, you need not repeat what has been written, but

    12 move to the question you have been asked: why you

    13 consider it to be an internal conflict and not an

    14 international one, because both sides have read the

    15 document. So there is no need to repeat it -- what is

    16 your opinion, why you consider that to be so and that

    17 is all that you are being asked. Thank you.

    18 A. Let us now dwell on the problem of Croatia

    19 alone. Did Croatia, in 1991, on 20 November, exist as

    20 a State from the aspects of international law, or did

    21 it not?

    22 Q. Was it or was it not a State and that is the

    23 only thing that is relevant in this regard?

    24 A. In the international community, in

    25 international relations, in the theory and practice of

  110. 1 international law, for an entity to be a State, it must

    2 fulfil three elements -- territory, population and a

    3 sovereign authority -- Government. Let us look at all

    4 these three elements in the question of Croatia.

    5 Therefore, territory: Croatia had a

    6 territory which was bounded by administrative and not

    7 international frontiers.

    8 Secondly, the population of this territory:

    9 in Croatia, you had Croats and Serbs living in the

    10 Republic. There were more than 12 per cent of Serbs

    11 living there. Therefore, a population which at that

    12 moment was divided -- the Croats came out in favour of

    13 stepping down from the Socialist Federal Republic of

    14 Yugoslavia. On the other hand, the Serb people came

    15 out in favour of remaining in a unified Federal State.

    16 Therefore, we had a population which expressed

    17 completely different views as to Croatia's unity and,

    18 finally, we come to the most important element and that

    19 is sovereign Government.

    20 For a given State to say that it is a State,

    21 it must have a clearly defined territory with

    22 international frontiers; it must have a permanent

    23 population and not a nomad population, and finally it

    24 must have a sovereign authority, sovereign power and

    25 authority or Government. What do we mean by sovereign

  111. 1 authority? It is the supreme authority over the given

    2 territory and population.

    3 What do we mean by "supreme power and

    4 authority over a given territory and population"? It

    5 is that power and authority which can have effective

    6 administrative control over that particular territory

    7 and that particular population.

    8 Let us take a look at that point. Could

    9 Croatia exercise effective administrative control over

    10 its entire territory?

    11 Q. Would you stick to 1991, please?

    12 A. Yes, I am -- we are talking about the year

    13 1991. Did the Croat legislation, for example -- was

    14 it applied in Knin, in Eastern and Western Slavonia?

    15 No, it was not. Did the military police from Croatia,

    16 from Zagreb -- could the police from Zagreb come to

    17 Knin territory to arrest somebody? It could not.

    18 Did the court -- was the court able, from

    19 Zagreb, to set up its power and authority in Knin? It

    20 could not. Why? Because Croatia did not have

    21 sovereign power and authority over its territory --

    22 entire territory.

    23 Let us now take a look at how international

    24 theory, jurisprudence, looks at States which do not

    25 have sovereign power and authority. When it comes to

  112. 1 the Aland Islands and I will quote:

    2 "The question of Finland arose --"

    3 Please follow what I am saying. In its

    4 opinion, the commission referred to the question of

    5 defining the sovereign authority as an indispensable

    6 requirement for the constitution of Finland as a

    7 sovereign State. Certain elements which are essential

    8 for the existence -- crucial for the existence -- of a

    9 State were lacking in a given period. The political

    10 and social life was disorganised. The authorities were

    11 not sufficiently powerful to be able to confirm their

    12 power and authority, and especially important, the

    13 civilian war was raging. The Government was banished

    14 and forcibly prevented from performing its duties and

    15 now we come to the conclusion:

    16 "It is difficult to say on what date the

    17 Finnish republic was constituted as a State in the

    18 legal sense of the word. At all events, it was not the

    19 case before a stable political organisation was set up,

    20 nor was it before the public authorities became

    21 sufficiently powerful to be able to protect themselves

    22 throughout the country's territory without the help of

    23 foreign troops."

    24 Therefore, a relevant international

    25 commission concluded, in this instance, that if the

  113. 1 State -- or an entity pleading to be a State -- cannot

    2 or is unable to control its entire territory, it cannot

    3 be considered a State from the aspects of international

    4 law.

    5 Now let us move on further. The acts on the

    6 proclamation of independence of Croatia and Slovenia

    7 and the ruling of the Constitutional Court of

    8 Yugoslavia were declared unconstitutional and,

    9 therefore, it was proclaimed that they were not in line

    10 with the constitution and, therefore, legally, not

    11 complying with the constitution.

    12 Now let us move on further. On

    13 29 November 1991, that is to say, after the critical

    14 date, the Badinter Commission -- I imagine that we will

    15 be discussing this Commission later -- stresses in its

    16 opinion number 1, although, until now the SFRY has

    17 retained its international nature, that is to say, that

    18 in its opinion the commission states that Yugoslavia is

    19 still a subject of international law, that is to say,

    20 that it exists, so if Yugoslavia exists, then, on the

    21 same territory, there cannot be two States.

    22 Another conclusion: the recourse to force

    23 has led to armed conflict -- I especially draw your

    24 attention to this -- between the different elements of

    25 the federation. So, it is stated quite clearly here

  114. 1 that, in 1991, on 29 November, on the territory of the

    2 former Yugoslavia, there was an internal conflict

    3 between the members of the federation.

    4 Further on, if we have a look at how the

    5 authorities and Federal agencies of Yugoslavia were

    6 operating, until the end of November, or more precisely

    7 until 5 December, the Federal State, namely, the

    8 Socialist Federal Republic of Yugoslavia, was headed by

    9 a Croat. Tell me, is there a State which is at war

    10 with another State and, at the same time, the citizen

    11 of this other State is its President? The Minister of

    12 Defence was a Croat. The Federal Prime Minister was a

    13 Croat. The Minister of Foreign Affairs was also a

    14 Croat. Therefore, the representatives of Croatia took

    15 part in the work of the Federal authorities.

    16 Stipe Mesic was withdrawn on 5 December, but all the

    17 rest remained. So, if the representatives of Croatia

    18 take part in the work of the Federal authorities, how

    19 can this be interpreted?

    20 If we suppose that Yugoslavia is a State, can

    21 it be at war with Croatia if we suppose that it is a

    22 State and if the citizens of the country with which it

    23 is at war hold all the key positions in that country?

    24 So, what was it all about?

    25 It was about the following: in Yugoslavia,

  115. 1 in 1991, there was still a struggle going on to

    2 maintain the sovereignty and territorial integrity of

    3 Yugoslavia. I wish to remind you of the statement made

    4 by the President of the United States of America in

    5 1945. He stated that those countries which are the

    6 founding members of the United Nations, their

    7 territorial integrity and sovereignty has to be

    8 particularly respected.

    9 Therefore, in 1991, Yugoslavia was still

    10 trying to maintain its unity and territorial integrity.

    11 JUDGE CASSESE: Sorry to interrupt you. I

    12 am afraid we have to stop at 5 past 1 and I wonder

    13 whether you need more time, or have you finished?

    14 A. I need about 15 minutes more or so.

    15 JUDGE CASSESE: Go on, until 1.15.

    16 MR. CUKALOVIC: I will try to be as brief as

    17 possible.

    18 It is very interesting to note the official

    19 position of the United States of America. Mr. Baker has

    20 underlined the following: the fact that Slovenia and

    21 Croatia unilaterally proclaimed independence,

    22 regardless of all warnings, they resorted to force in

    23 order to grab their borders and this actually caused a

    24 civil conflict and we had suggested that this was going

    25 to happen.

  116. 1 Further on, what can be of interest is the

    2 following: to answer the following question, who

    3 qualifies the conflict on the territory of a certain

    4 State? What is the organ that is supposed to do this?

    5 This has to be done by the Security Council. Let us

    6 see how the Security Council behaved.

    7 The Security Council resolution 713, dated

    8 25 September 1991, has emphasised the following:

    9 "Deeply concerned over the conflicts in

    10 Yugoslavia."

    11 So, the Security Council is speaking of

    12 conflicts on the territory of Yugoslavia. Security

    13 Council resolution 721:

    14 "Deeply concerned over the conflict in

    15 Yugoslavia."

    16 That was on 27 November. The

    17 Security Council, in all its statements, adheres to the

    18 following notion: that the conflict is taking place on

    19 the territory of Yugoslavia, so, if the

    20 Security Council says that the conflict is being waged

    21 on the territory of Yugoslavia, and that is the body

    22 that is in charge of international peace and security

    23 and the only one that can qualify a conflict, if that

    24 is so, there are no arguments that can indicate that

    25 the war in Yugoslavia in 1991 and, in particular, on

  117. 1 the critical date of 20 November 1991, was in an

    2 international conflict -- no.

    3 Finally, the Statute of the International

    4 Criminal Tribunal for the former Yugoslavia, the draft

    5 Statute, says that an act cannot be considered to be an

    6 act of an aggression for the purposes of this Statute

    7 if the Security Council has not previously ascertained

    8 that a State has committed an act of aggression. The

    9 Security Council, in its resolutions, speaks about

    10 Yugoslavia -- about a conflict on the territory of

    11 Yugoslavia. Therefore, if a conflict is being waged on

    12 the territory of one State, between its citizens, and

    13 if the Security Council does not qualify it as an

    14 international conflict, and if Croatia does not have a

    15 single one of the attributes needed for recognition,

    16 then all of this points to the following conclusion,

    17 that the war on the territory of the former Yugoslavia

    18 in 1991, in view of the critical date of

    19 20 November 1991, was an internal conflict. I really

    20 wanted to be as brief as possible.

    21 MR. FILA: Your Honour, just one more thing.

    22 You omitted to mention Badinter's opinions.

    23 Perhaps a sentence or two on that?

    24 A. Well, yes, I tried to shorten my remarks,

    25 because I was cautioned to do so.

  118. 1 JUDGE CASSESE: Actually, you did mention

    2 the opinion number 1?

    3 A. Until 29 November, I did, but I probably did

    4 refer to the one that you are interested in. I do not

    5 know if I can find it right now.

    6 JUDGE CASSESE: I think it is number 11?

    7 A. This is treatment of the proclamations of

    8 independence of Slovenia and Croatia. Here it is --

    9 number 11 of the 16th. The situation is the same as

    10 regards the Republic of Croatia and the Republic of

    11 Slovenia -- both proclaimed their independence on

    12 25 June 1991 and this was suspended on 7 July 1991 for

    13 three months, as envisaged by the Brioni Declaration.

    14 According to this declaration, the suspension was to

    15 remain in force until 8 October 1991, when the two

    16 republics became sovereign according to international

    17 law.

    18 Let us analyse this. This was on 16 July.

    19 On 29 November, that is to say, a few months after, the

    20 Badinter Commission had underlined the following and

    21 the Badinter recommendations are not compulsory by

    22 nature, that Croatia and Slovenia became sovereign

    23 States. It gave an explanation on 29 November 1991,

    24 and it reads as follows:

    25 "Acts of independence can be treated and I

  119. 1 quote `only as a republic expressing its will to be

    2 independent'."

    3 So, this one-sided proclamation of

    4 independence by a State is irrelevant from the point of

    5 view of international law. By a unilateral act, a

    6 country, a State, can qualify a certain conflict, make

    7 a statement, renounce a certain right, set the date and

    8 hour on which a blockade would be imposed, but it

    9 cannot unilaterally proclaim its independence from the

    10 point of view of international law -- this is quite

    11 irrelevant.

    12 If this position is to be accepted, the

    13 rulings of this court will have far-reaching

    14 consequences. If a State can be established by

    15 unilateral acts, what will happen in one of the

    16 following periods? Depending on political interests,

    17 there will be disintegration of States and, therefore,

    18 political chaos and, on the other hand, this will be a

    19 flagrant violation of the basic objectives of the

    20 Charter and that is the creation of a world in which

    21 future generations will be saved from the horrors of

    22 war, where belief in basic human rights, and where

    23 there will be social prosperity, will be determined.

    24 Q. Since this has been mentioned this morning,

    25 on the territory of Kosovo, was there any such

  120. 1 proclamation?

    2 A. Just a brief explanation: on the territory of

    3 Kosovo, we have a similar situation. The international

    4 community has spoken in favour of the unity of the

    5 Federal Republic of Yugoslavia. This is the year 1998

    6 -- eight years ago, part of the Federal Republic of

    7 Yugoslavia, rather a part of Serbia, where the Albanian

    8 national minority lives, unilaterally declared its

    9 independence. This independence was not confirmed by

    10 anyone. Everyone absolutely rejected this, but what

    11 will happen if, tomorrow, a possibility arises of

    12 introducing some kind of retroactive recognition of the

    13 Republic of Kosovo and then the acts that are committed

    14 by the army are proclaimed to be international

    15 conflicts? This is not the only case. Chechnya also

    16 proclaimed its independence, but no-one in the world

    17 qualified this as an international conflict between

    18 Russia and Chechnya. What will happen if tomorrow

    19 Northern Ireland, Corsica and the Basque and others do

    20 the same? So, on this particular matter the court

    21 takes the position that, by an unilateral act, one can

    22 proclaim one's statehood, the decisions of this court

    23 will have very dangerous consequences for the 21st

    24 century.

    25 JUDGE CASSESE: If you are referring to our

  121. 1 court, it is for us to follow. We do not follow policy

    2 considerations. We base our decisions only on law.

    3 A. Of course.

    4 JUDGE CASSESE: Are you through? I wonder

    5 if you have any questions to put tomorrow in

    6 cross-examination.

    7 MR. NIEMANN: Yes.

    8 JUDGE CASSESE: We will stand adjourned

    9 until tomorrow.

    10 (At 1.20 p.m. the matter adjourned

    11 until Thursday, 23 April 1998 at 8.30 a.m.)