1 Thursday, 6 February 2003
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.18 p.m.
5 JUDGE ORIE: Madam Registrar, would you please call the case.
6 THE REGISTRAR: Case number IT-98-29-T, the Prosecutor versus
7 Stanislav Galic.
8 JUDGE ORIE: Thank you, Madam Registrar.
9 Ms. Pilipovic, is the Defence ready to call --
10 MS. PILIPOVIC: [Interpretation] Yes, Your Honour.
11 JUDGE ORIE: -- the next witness, Professor Cavoski?
12 MS. MAHINDARATNE: Mr. President, before that --
13 JUDGE ORIE: Yes.
14 MS. MAHINDARATNE: On a previous date, the Defence inquired from
15 the Prosecution for the date when the photograph of the Kobilja Glava
16 mosque was taken.
17 JUDGE ORIE: Yes.
18 MS. MAHINDARATNE: It was taken in September 1992.
19 MR. PILETTA-ZANIN: [Interpretation] Mr. President.
20 JUDGE ORIE: Yes.
21 MR. PILETTA-ZANIN: [Interpretation] This raises another issue.
22 When exactly in September 1992? Because that could be the 1st of
23 September or it could be the 30th. Thank you.
24 JUDGE ORIE: Yes.
25 MS. MAHINDARATNE: Mr. President, at the moment we don't have that
1 information, the exact date. At this present moment, I could only give
2 the month and the year. Perhaps later on in the afternoon I'll be able to
3 inform --
4 JUDGE ORIE: Yes. If you could provide that information.
5 Would you need the hour and the minutes as well,
6 Mr. Piletta-Zanin, or would the day for the time being be sufficient?
7 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I think you
8 have understood why we're interested in this matter. I think that today
9 would be sufficient. I'll provide you with the hour, if you need it.
10 JUDGE ORIE: Yes.
11 [The witness entered court]
12 JUDGE ORIE: Good afternoon. Professor Cavoski?
13 THE WITNESS: Yes.
14 JUDGE ORIE: Yes. I see that you respond to me in English. Of
15 course, it's up to you whether you want to listen to me in English and
16 to --
17 THE WITNESS: Yes, of course.
18 JUDGE ORIE: -- to testify in English, or whether you'd rather use
19 your own language, because we have --
20 THE WITNESS: I will speak in Serbo-Croat.
21 JUDGE ORIE: You'll speak -- as we call it, B/C/S, and you call it
23 The -- would you then please put your headphones on - the usher
24 will assist you - and will you please tell me whether you now receive
25 translation in a language you understand.
1 THE WITNESS: Yes, I do.
2 JUDGE ORIE: Yes. Then the Rules of Procedure and Evidence
3 require you to make a solemn declaration at the beginning of your
4 testimony. The text will be handed out to you now by the usher. May I
5 invite you to make that solemn declaration.
6 THE WITNESS: [Interpretation] I solemnly declare that I will speak
7 the truth, the whole truth, and nothing but the truth.
8 WITNESS: KOSTA CAVOSKI
9 [Witness answered through interpreter]
10 JUDGE ORIE: Thank you, Professor Cavoski. Please be seated.
11 Ms. Pilipovic, please proceed.
12 MS. PILIPOVIC: [Interpretation] Thank you, Your Honour.
13 Examined by Ms. Pilipovic:
14 Q. [Interpretation] Mr. Cavoski, could you please put your headphones
15 on. Mr. Cavoski, good day.
16 A. Good day.
17 Q. Could you please tell us your full name, your date of birth, in
18 spite of the fact that with your statement you provided a full
20 A. My name is Kosta Cavoski. I was born on the 26th of October, 1941
21 in Banatsko Novo Selo, Pencevo.
22 Q. Thank you. Mr. Cavoski, could you now tell us what your
23 profession is, not to say what subject you teach at the university.
24 A. I'm a professor at the School of Law in Belgrade, and I lecture on
25 the introduction to jurisprudence. I give a course on jurisprudence. In
1 addition to that, I am involved with political philosophy, constitutional
2 law, and national issues.
3 Q. Thank you. You say that you are interested in constitutional
4 law. Can you tell us for how long this has been the case.
5 A. Well, as a post graduate, I was interested in American
6 federalism. I worked on that subject, and the title of my masters degree
7 was the role of judicial control in shaping American federalism. In the
8 course of my career, I've published three or four books that deal with
9 constitutional law.
10 Q. Thank you, Professor. Bearing in mind -- Professor, bearing in
11 mind the fact that time is restricted, could you please tell us whether
12 you stand by your written statement which was presented to the Chamber and
13 in which you dealt with the issue of multi-ethnicity in Bosnia and
14 Herzegovina during various historical periods and under various historical
16 A. Yes, of course I stand by that statement. And that part of my
17 work, like other work that I have done, was based on my multi-disciplinary
19 Q. Professor, we are particularly interested in the 1990s and from
20 1990 and onwards, so a period during which it was possible to get an
21 inkling of the events that would lead to the disintegration of the
22 Socialist Federative Republic of Yugoslavia. But we're interested in the
23 constitutional aspect, the aspect of constitutional law with regard to
24 this period. Could you tell us, during this period, just before the
25 conflict in the former Bosnia and Herzegovina broke out, what was the
1 position of Bosnia and Herzegovina in terms of constitutional law?
2 A. Bosnia and Herzegovina was a federative unit of the Socialist
3 Federative Republic of Yugoslavia. At the time the constitution of the
4 SFRJ was in force from 1974. We called it the Brioni constitution and
5 that republic also had a particular constitution of its own in addition to
6 that constitution of the federal unit.
7 Q. Can you tell us, as the Republic of BH, which was part of the
8 SFRJ, which laws was it to apply?
9 A. As a federal unit, Bosnia had to apply the federal constitution.
10 The SFRJ constitution and then its own constitution, the federal laws, its
11 own laws, et cetera.
12 Q. Can you tell us whether the fact that Croatia and Slovenia secede,
13 did that change anything in that regard, when we're talking about applying
14 the federal constitution?
15 A. That didn't change the position of Bosnia and Herzegovina at all
16 because the secession of these two federal units, in terms of
17 constitutional law, it was anti-constitution. It was against the
18 constitution. When this actually happened in the rump Yugoslavia, as we
19 called it at the time, the federal constitution was still applied. Even
20 the money was changed, and this was done on a voluntary basis in Bosnia
21 and Herzegovina.
22 Q. Can you tell us whether the constitution was actually enforced in
23 Bosnia-Herzegovina, the constitution of the SFRJ.
24 A. Well, at that time the federal constitution was applied to a
25 certain extent and to a certain extent it wasn't. And at the time there
1 were already attempts to trample on that constitution. One of the
2 attempts consisted of the declaration of the rump assembly of the National
3 Republic of Bosnia and Herzegovina, in which sovereignty was declared or
4 the independence of Bosnia and Herzegovina. This was an act which
5 violated the constitution, the second act which violated the constitution
6 which was also very important was the calling of the referendum on the
7 so-called independence of Bosnia and Herzegovina.
8 Q. You have now answered our question, but can you tell us when
9 Bosnia and Herzegovina became an independent state?
10 A. Bosnia and Herzegovina gradually became an independent state. It
11 started obtaining international recognition on the 6th of April, 1992.
12 The European Union was the first to recognise it, and this example is then
13 followed by other countries. It achieved this in terms of international
14 law, when it was accepted by the United Nations. In terms of law, after
15 this had been -- after it had been recognised by the United Nations, the
16 state was considered to be independent.
17 Q. Thank you. Professor, from the 6th of April, in terms of
18 constitutional law, was there a difference with regard to the
19 implementation of the constitution -- from the 6th of April, to the 27th
20 of April, 1992?
21 A. Not from the point of view of constitutional law. Bosnia remained
22 a secessionist republic. So in formal terms, it had to respect the
23 federal constitution.
24 Q. In that legal situation and in accordance with your answer, can
25 you tell us what the position was of the federal army of the former SFRJ
1 in the terms of constitutional law. What was the position of the Yugoslav
3 A. The Yugoslav People's Army was a constitutional and a legitimate
4 military force before the 6th of April and after the 6th of April. When
5 Bosnia became a member of the UN, then it was of course possible to
6 negotiate on the status of the Yugoslav People's Army. It couldn't be a
7 foreign force, an exterior force in Bosnia and Herzegovina. It couldn't
8 be considered as such.
9 Q. You said in your answer that through negotiations it was possible
10 to find a solution. Could you perhaps clarify what you mean by
12 A. Well, the army could have remained. For example, Great Britain
13 still has a basis in Cyprus, and it was a colonial force. And to this
14 very day it has a basis in Cyprus. This happened with other states too.
15 It could also have withdrawn from there. So this was a matter of
16 negotiation between the authorities of the rump Yugoslavia and the
17 authorities in Bosnia-Herzegovina itself.
18 Q. When I ask you the following question, whether after the
19 withdrawal of the JNA, the Yugoslav People's Army, from the territory of
20 Bosnia-Herzegovina, is it possible to talk about the implementation of the
21 constitution in the territory of Bosnia and Herzegovina? I'm talking
22 about the constitution of the SFRJ.
23 A. Well, as soon as the army and police withdraw from given
24 territory, then it's possible to say that the constitution that existed to
25 date is no longer in force, because in addition to the nominal validity of
1 law, its effectiveness is also important. If such effectiveness no longer
2 exists, then it's no longer possible to say for a given order that this
3 order is still in force and still a valid order.
4 Q. Professor, can you tell us, up until when the constitution of the
5 former federal unit of Bosnia and Herzegovina was in force?
6 A. The constitution up Bosnia and Herzegovina as a federal unit was
7 in force -- remained in force right up until the signing of the Dayton
8 Agreement. So throughout the wartime period, it was necessary to enforce
9 the constitution of Bosnia-Herzegovina. And only after all three sides
10 that had signed the Dayton Agreement accepted via an agreement a new
11 constitution of Bosnia-Herzegovina, only at that point did the
12 constitution that was in force up until then cease to be considered as
13 valid. That happened in Dayton -- or, rather, in Paris, when that
14 agreement was formally signed.
15 Q. You said that in Bosnia-Herzegovina during that period of time the
16 constitution of the former Bosnia-Herzegovina was implemented, and you say
17 this was the case right up until the Dayton Agreement. Can you tell us
18 how the state functioned after the multi-party elections in the 1990s
19 which were held. Were parts of the constitution changed?
20 A. Well, first of all, there was the amendment number 60 which was
21 introduced. It didn't change anything as far as the constitutionality --
22 the constituent nature of the peoples of Bosnia-Herzegovina was concerned,
23 and this concerned the Croats, the Serbs, and the Muslims. First of all,
24 the constitution was respected, and then later it was respected less and
25 less. So the Muslim side within the common authorities tried to obtain
1 independence. And one of the constituent peoples opposed such
2 independence, and that constituent people, they were the Serbs.
3 Q. Professor, before we return to the issue of independence, can you
4 tell us what it means when you talk about the constituent nature of the
5 three peoples.
6 A. Well, it's an expression that we used. It's derived from Latin.
7 The word is derived from Latin. In German they would say "state-forming
8 nature," and that is a better expression, in fact. That means that those
9 three peoples - the Muslims, the Serbs, and the Croats - it means that
10 these three peoples are state-forming peoples of Bosnia-Herzegovina. They
11 form the state. They have a special status contrary to the others who can
12 have the status of an ethnic minority. The Serbs also had the status of a
13 state-forming people, not only in Yugoslavia as a whole but in Serbia, in
14 Croatia, and in Bosnia-Herzegovina. And similarly, the Muslims and the
15 Croats had this status in Serbia and in Bosnia-Herzegovina. So it's a
16 constituent people that forms the state.
17 Q. Professor, the organs of the former Bosnia and Herzegovina, did
18 they take any decisions which violated the constitutional order of 1974?
19 And you told us amendment 60.
20 A. Well, first of all, there was the declaration of the rump assembly
21 of the National Republic of Bosnia and Herzegovina on so-called
22 sovereignty -- or rather, on independence. And when this decision was
23 taken, it's not only that the representatives of the Serb people did not
24 participate in that. They actually opposed this move. And then after the
25 referendum was held on the so-called independence of Bosnia and
1 Herzegovina, after that, a referendum was held. As far as the
2 representatives of the Croatian people is concerned, their position was
3 ambiguous for the simple reason that Croatian deputies followed the
4 interests and the orders that they received from Zagreb. Until Croatian
5 Slovenia were recognised by independent states by the European Union.
6 Until then the Croats in Bosnia supported -- publicly supported the
7 independence of Bosnia-Herzegovina. So they were against the Bosnian
8 Serbs for this reason.
9 When independence obtained international recognition of its --
10 when Croatia obtained international recognition of its independence, then
11 the Bosnian Croats started conducting their own policies and these
12 policies were in favour of dividing Bosnia.
13 Q. Professor, you have mentioned the recognition of Croatia. And
14 within that context my question would be as follows: Such
15 non-constitutional decisions of the rump part of the Assembly of Bosnia
16 and Herzegovina, was this detectable in former statements of the SDA and
17 HDZ parties in the territory of Bosnia and Herzegovina?
18 A. Yes, of course. When elections were held for the Presidency of
19 Bosnia and Herzegovina, there were certain anti-constitutional activities.
20 For example, Fikret Abdic received the majority of votes, the greatest
21 number of votes in those elections. And then the Party of Democratic
22 Action concluded that instead of him Alija Izetbegovic should be the
23 member of the Presidency and the first president of the Presidency. And
24 then in accordance with the constitution, it was planned that the
25 president of the Presidency should rotate, and Alija Izetbegovic had been
1 the president of the Presidency for five years, although this was
2 prohibited by the constitution.
3 And then in the Croatian part of the presidency was also changed,
4 contrary to the constitution. And when Mr. Koljevic left the Presidency
5 and Mrs. Plavsic, two Serbs were brought into the Presidency, and that was
6 against the constitution.
7 Q. Thank you. Professor, you mentioned the position of the Croats in
8 Bosnia and Herzegovina and the existence of the HDZ in that territory.
9 Can you tell us whether there was a way at the time of joining up the
10 Croats in the territory of Bosnia and Herzegovina. And if so, tell us
11 about it.
12 A. Yes. The Croats in accordance with the constitution of
13 Bosnia-Herzegovina at the time did something that was allowed. According
14 to the provisions of that constitution, municipalities could form
15 associations if they thought that it was appropriate, necessary. So the
16 Croats in Western Herzegovina and in Central Bosnia formed an association,
17 and this was presented to the public as Herceg-Bosna.
18 Q. Now that you have answered this question and told us about the
19 constitutional right to form municipal associations by the Croats in the
20 territory of Bosnia-Herzegovina and you said that the name given to this
21 association was Herceg-Bosna, can you tell us whether similar alliances,
22 associations, were formed in other parts of Bosnia and Herzegovina.
23 A. The Serbs followed the same route. They formed their own
24 autonomous associations of municipalities in those areas where they were
25 in the majority. So, for example, in Bosnian Krajina there was an
1 association of municipalities which was formed, and then in Eastern
2 Serbian Herzegovina, in Romanija and in that area in the direction of
3 Vlasenica right up to the River Drina, Semberija, too, that was an area
4 where the municipalities formed an association.
5 Q. You said that such associations were constitutional. In your
6 opinion, could you consider such associations to be a matter of
8 A. Well, no, according to constitutional theory, regionalisation is a
9 third solution. It's something between real federalism and a unitarian
10 state. It's an order which exists in Italy, in Europe at the moment, and
11 also in Spain, and this is what we call regionalisation. This is a simple
12 association of municipalities within a unitary federal unit -- within a
13 unified federal unit.
14 Q. Given your order, could I conclude that it would be wrong to think
15 that the Croats and Serbs in the former Bosnia and Herzegovina embarked on
16 a process of regionalisation?
17 A. No. That answer is completely wrong. It's not a matter of
18 regionalisation in the sense of changing the order of the state. It's a
19 matter of doing something that is allowed by the constitution, and that
20 means it is a matter of forming municipal associations.
21 Q. At the beginning of your testimony, you told us how the state
22 organs of Bosnia-Herzegovina functioned after the first multi-party
23 elections. Can you tell us how the authorities, how the government was
24 divided in accordance with the constitution which was in force at the
25 time. And I'm referring to the --
1 A. The three parties that beat the communists at the elections, this
2 was the Party of Democratic Action, then the HDZ, the Croatian Democratic
3 Union, and the SDS, and they formed a government and they divided up the
4 ministries. But very soon after this act of taking over the power, the
5 authorities, they started to have conflicts between them. First of all,
6 because of an announcement of a foreboding that Yugoslavia could fall
7 apart. And of course that's when these anti or unconstitutional acts
8 started to happen.
9 Q. Can you tell us, who was -- who was the carrier of the legislative
10 power authority in Bosnia-Herzegovina?
11 A. That was the national assembly. That was presided by Momcilo
12 Krajisnik. I think it had 240 members. And then there were two organs.
13 There was the presidency, which consisted of seven members, and the
14 government. The presidency is quite an interesting case because although
15 there were three constitutive peoples, that is, the Muslims, the Serbs,
16 and the Croats, the constitution also said that they should all have two
17 members, two representatives, while the seventh place in the presidency
18 was reserved for a member of other nationalities, that is, ethnic
19 minorities, as we called them. And then it was the most usual to have a
20 Jew as a seventh member because in Sarajevo what happened, that during the
21 reign of Ferdinand of Aragon in Spain, a lot of Jews went over from Spain
22 to Bosnia. So the SDS then elected, or rather, put the candidature of a
23 Jew, and then Ejub Ganic decided that he was going to put himself forward
24 as a Yugoslav. So then Yugoslav found himself as being the seventh
25 number -- as being a Yugoslav. And then after he was elected, he started
1 to then show his real face as a Muslim, which of course became very
2 apparent as he was one of the most extreme ones during the war.
3 Q. Professor, you told us that the legislature -- legislative body
4 was the national assembly, can you tell us whether the assembly worked in
5 accordance with the constitution that was then in force? We've already
6 elaborated on that.
7 A. To start with it did, but at the very moment when the
8 representatives, that is, the deputies from among the Croatian and the
9 Muslim peoples tried to push through the declaration of sovereignty at
10 its own independence, the president of the assembly, Momcilo Krajisnik,
11 refused to call this session, and so they still called the session without
12 the president. And in a rump constitution, they actually voted through
13 this declaration.
14 Q. When you've told us that this was an unconstitution decision on
15 making this decision on sovereignty independence, were there any other
16 acts that were passed in the national assembly that were offending or
17 violating the then-constitution?
18 A. The key decision was to call a referendum. That was an
19 unconstitutional act.
20 Q. Can you tell us, what was the unconstitutional character of the
22 A. The valid constitution of the SFRJ did not allow for a secession
23 of any federal unit, not Bosnia-Herzegovina. Particularly, there was an
24 article which provided for that the borders of Yugoslavia could not change
25 without the agreement of all the member units of the federal state. So
1 from the point of view of the valid constitution, the secession was
2 forbidden. So any attempt to have any part of that state secede, that was
3 an unconstitutional act.
4 Q. Professor, can you tell us whether during this period in 1991 the
5 referendum was also called by the Assembly of the Serb People. And if so,
6 can you tell us, is there a difference between this referendum that
7 you've told us about, called it unconstitutional, and the referendum that
8 was called by the Assembly of the Serb People?
9 A. First of all, this Assembly of the Serb People wasn't a
10 particularly specially selected assembly, but it was made up of
11 previously - from 1990 - elected deputies at perfect legitimate
12 elections. So this assembly was made up of deputies that were at the same
13 time were also deputies of this legitimate National Assembly of
14 Bosnia-Herzegovina. And this referendum was then called in order to find
15 out the position of the Serb people with regard to this question. And as
16 the question was do you want to stay within the Socialist Federative
17 Republic of Yugoslavia, this question from the point of view of the valid
18 constitution was not unconstitutional but the constitution allowed for
19 this kind of question to be put.
20 Q. Professor, bearing in mind what you've just told us, can you tell
21 us whether you personally know the decisions that were adopted by the
22 National Assembly of the Serb People. Particularly, the decision dated
23 12th of May, 1992.
24 A. Because I followed the media and the newspaper meticulously, I
25 remember at that time the assembly -- and it was called of the Serbian
1 Republic of Bosnia-Herzegovina -- it decided on strategic objectives, and
2 it had established some six strategic objectives which the Serb people
3 should follow in the period that was in front of them.
4 Q. Telling us that there were six strategic objectives that were
5 adopted, can you tell us if you recall whether one of these objectives was
6 the war option or a war objective.
7 A. Serb people, as far as I know, never had war objectives. That is,
8 they never started the war. But they always defended their survival
9 within the existing state, and that is the SFRJ. So if there was war, it
10 was obvious that it was imposed, because somebody in Bosnia -- somebody
11 wanted for Serb people in Bosnia to be moved from their constitutive
12 position of the state-forming people and give them the Serbs, the status
13 of ethnic minority, a subdued ethnic minority. Of course the Serbs
14 opposed this -- oppressed.
15 THE INTERPRETER: Correction: Not subdued. Oppressed.
16 Q. Do you recall whether in terms of Sarajevo, regardless of your
17 position, do you know whether in Sarajevo there was a war objective?
18 A. As far as I can recall, the only thing that the Serbs wanted, they
19 wanted for Bosnia and to start with the Croats and Muslims agreed -- they
20 wanted Bosnia to be divided into three autonomous units, and then on the
21 basis of that in Sarajevo, which at the time had ten municipalities, the
22 division was supposed to take place depending on the ethnic composition of
23 each municipality separately, individually. And since the Serbs had the
24 majority in the border municipalities of Sarajevo, it was natural that
25 those municipalities would be constituting or would be part of the Serb
2 Q. Professor, considering you've told us what the objective in terms
3 of Sarajevo -- the city of Sarajevo was and what the situation was. Did
4 you while you were preparing your expert report or your statement, while
5 you were working on this, did you at any time in the documents that you
6 have studied for this, did you come -- did you encounter a fact that when
7 this objective was defined, was there anything that was ever said that
8 Sarajevo should be completely levelled to the ground?
9 A. Well, this was never something that was --
10 MS. MAHINDARATNE: Mr. President, I object. Leading -- leading
11 the witness.
12 JUDGE ORIE: Ms. Pilipovic, there is certainly a leading element
13 in that question. I have, however, a different problem; that is, you ask
14 a lot of questions about matters of which I find no direct basis. For
15 example, these objectives and what was meant for Sarajevo. Could you
16 please indicate to me where I found the basis for that in the statement of
17 the expert. I happen to know something about objectives on the basis of
18 the report of Macedonia, but I don't know whether this is the basis you
19 would like me to rely upon. But could you please tell me exactly where I
20 find it.
21 MS. PILIPOVIC: [Interpretation] Your Honour, the foundation for
22 these questions can be found in the expert report and the findings that
23 the Prosecution handed over to us and all the documents that were entered
24 into evidence by our learned colleagues when Mr. Robert Donia testified.
25 JUDGE ORIE: That was -- but this report is not an answer to
1 Dr. Donia, as far as I can see, because it deals with substantially
2 different matters, compared to the report of Dr. Donia. So could you
3 please indicate to me where I find in this report the basis, as far as the
4 facts are concerned, because we are talking about objectives and -- let me
5 just look.
6 MS. PILIPOVIC: [Interpretation] Your Honour, my questions that I'm
7 asking the professor to answer, they are as part of the questions that are
8 not specifically included in the statement of the professor. But bearing
9 in mind that we are --
10 JUDGE ORIE: Let me just ask you one thing to make it more
11 concrete: You are talking about the decision of the 12th of May. I would
12 say that the report does neither deal specifically with that decision.
13 The witness is answering questions about objectives, part of that
14 decision. I think there were -- you mentioned six, or the witness
15 mentioned six. I've got no idea. It's not in the report. Could you
16 please indicate to me where the report specifically deals with events in
17 May 1992 and later. And I'm -- and where, for example, a basis for the
18 decision of the 12th of May could be found in this report.
19 MS. PILIPOVIC: [Interpretation] Your Honour, specifically I said
20 that the professor in his expert report doesn't specifically talk about
21 the decision of the assembly of the 12th of May, but the professor told us
22 about the work of assembly organs, the assembly being the highest
23 legislative body. And as part of professor's answer, considering that he
24 was answering a question on the work of the assembly as the highest
25 legislative body in Bosnia-Herzegovina, he's also spoken about the work of
1 the Assembly of the Serbian People. And in his answer -- because of his
2 answer, a question I had to ask was whether he was aware of the decision
3 of the 12th of May, 1992.
4 JUDGE ORIE: Yes. From his answers, I take it that he was aware
5 of it. But -- well, please proceed, but keep in mind that for the Chamber
6 in order to understand the testimony of this expert witness having
7 thoroughly studied his report, it's -- if you enter areas which are -- of
8 course everything is related to everything, but if you go away from the
9 report too far, then the basis for our understanding of the testimony
10 might not be sufficient. But then please proceed. But keep this in mind.
11 MS. PILIPOVIC: [Interpretation] Yes, Your Honour.
12 Q. Professor, bearing in mind what you've told us, my question would
13 be: You told us the referendum was called in Bosnia-Herzegovina and that
14 it was not legitimate and that it was on the basis of that not legitimate
15 referendum that a series of decisions were made that were unconstitutional
16 and illegitimate. Do you think that there was inevitable for
17 Bosnia-Herzegovina to be divided along ethnic lines?
18 A. This is something that was foreshadowed earlier. In my report, I
19 did not quote a famous so-called agreement by Adil Zulfikarpasic, who was
20 the number two person in the Party of Democratic Action and later on he
21 was person number one in the Bosniak Muslim organisation. This is an
22 agreement that he tried to have both with Radovan Karadzic and Slobodan
23 Milosevic in the name of Alija Izetbegovic. This happened in the summer
24 of 1991. However, what was much more important was the attempts of the
25 European Union through their famous diplomat Jose Cutilheiro, to try and
1 apply the -- implement the so-called Cutilheiro plan with the presence of
2 the -- an agreement of all three legitimate representatives, that is,
3 Serbs, Croats, and Muslims, that he organises this in such a way that each
4 people would have their own autonomous federal unit.
5 Q. Professor, my -- my co-counsel will ask you more specific --
6 [Trial Chamber and registrar confer]
7 JUDGE ORIE: Yes. Could you please slow down, Ms. Pilipovic. And
8 you, Professor Cavoski, could you also please speak a bit slower because
9 the interpreters really have difficulties in translating what you're
10 saying. And we'd like to hear it.
11 Let me just look on the screen.
12 Yes. It's also the transcriber, it's not just the interpreters.
13 Perhaps, Ms. Pilipovic, we could ask the witness to resume his
14 answer where he said, "However, what was much more important was the
15 attempts of the European Union," and then the witness came to the
16 Cutilheiro plan.
17 Could you please resume your answer from there.
18 THE WITNESS: [Interpretation] Of course. So the European Union
19 through their diplomat, a Portuguese man, Jose Cutilheiro, attempted to
20 implement in practical terms their own plan in Bosnia-Herzegovina or his
21 plan, which provided for Bosnia with the legitimate agreement of all the
22 three constitutive peoples of Bosnia-Herzegovina that Bosnia-Herzegovina
23 should be separated into three autonomous units, Serbian, Croat, and
24 Muslim, and that this would be the way to resolve the national question.
25 The Serbs were already to accept this solution, that is, that they
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 would forfeit their right to unite with Serbia, providing that in the
2 future Bosnia they would have a status of constitutive people and their
3 own autonomous unit.
4 MS. PILIPOVIC: [Interpretation]
5 Q. Thank you. Professor, another couple of questions that I will
6 ask. Can you tell us, you as an expert constitutional law, can you tell
7 us who was able to interpret the assembly decisions?
8 A. The assembly is a legislative organ, and their decisions can only
9 be interested by the assembly as such. It was from the French revolution,
10 there is such an institution called the "refere legislatif," that is, when
11 there is a dilemma in terms of the meaning of a decision of a legislative
12 body, then this is the institution to which a question is addressed.
13 In the Yugoslav constitutional law, there was such an institution
14 of authentic interpretation. What that meant is that if there was a
15 conflict about the meaning and the range of a particular provision in the
16 law, of a word, of a term in a decision or resolution, then the assembly
17 itself can give an interpretation. If individual deputies do this or
18 anyone else, then this is unacceptable. It's considered as unacceptable.
19 Q. So from this answer, we also got your interpretation about what
20 happens when individuals interpret assembly decisions. And you believe
21 this is unacceptable.
22 A. An individual doesn't have the authority to interpret by himself
23 the meaning and the range or the scope of a decision made by the assembly.
24 Q. One more question: The decisions adopted by the assembly or
25 issued by the Assembly of the Serb People that we have discussed -- were
1 they binding for the army --
2 THE INTERPRETER: Could the answer -- could the answer please be
4 JUDGE ORIE: Could you please repeat your last answer. You said:
5 "An individual doesn't have the authority to interpret by himself the
6 meaning and the range or the scope of a decision made by the assembly."
7 Was that your whole answer or did you -- yes, please.
8 THE WITNESS: [Interpretation] What I said -- what I said is an
9 individual doesn't have the authority to do that by himself. As a lawyer,
10 I believe that only an assembly can do that or courts. And courts are the
11 ones that are the masters of the law.
12 MS. PILIPOVIC: [Interpretation] Your Honour, I have finished my
13 part, and I believe that we have another 30 minutes. My co-counsel will
14 continue with the questions.
15 JUDGE ORIE: Yes. Mr. Piletta-Zanin, please proceed. I think you
16 started at -- you took approximately 45 minutes until now, a little bit
18 MR. PILETTA-ZANIN: [Interpretation] Thank you, Mr. President.
19 Examined by Mr. Piletta-Zanin:
20 Q. [Interpretation] Professor, first of all, I'd like to start from
21 the beginning. And I don't think that I have seen it in the transcript.
22 Could you please confirm -- could you please confirm this expert report
23 that you have compiled and signed.
24 A. Well, of course. Of course. That's why I've come. I've come to
1 Q. Indeed. But I just wanted this to be done formally for the
3 Now, Professor, let us go back to the aspect of the Cutilheiro
4 project. First of all, can you give us a time frame, please.
5 A. I have already said that before this project there was an
6 initiative by Adil Zulfikarpasic, he was, first of all, the man number
7 two in the SDA party. And later on he was the president of the Bosniak
8 Muslim organisation. For a long time he lived in Zurich, that is, he
9 lived in Europe. And it was very shrewdly that he concluded that in fact
10 Muslims have been living with Serbs in Bosnia-Herzegovina in the largest
11 number of municipalities and that, therefore, the interest for the
12 Muslims -- life interest for the Muslims, that it was the most important
13 for the Muslims to find a suitable agreement with the Serbs rather than
14 going with the Croats against the Serbs. And it was then that with the
15 agreement -- that is what he says in his memoirs -- that with the
16 agreement of Alija Izetbegovic, he came to Belgrade. And there he spoke
17 to Radovan Karadzic and Slobodan Milosevic. And he was, as he said then
18 publicly -- he was just about to conclude this historical agreement. But
19 this failed because Alija Izetbegovic kept thinking that he would be able
20 to achieve full independence of a unified Bosnia-Herzegovina, and because
21 of that he frequently went to the Libyan Dzamahirija and sent his
22 representatives to the fundamentalist Iran.
23 And then came the second stage --
24 Q. Professor, I'm going to have to stop you here. We'll come back to
25 the second stage. We'll come back to the second stage. But before that
1 what I wanted you to clarify or to give us a precision of this period --
2 you told us this was before the Cutilheiro plan, but what was the period,
3 what was the month, what was the year, and so on?
4 A. That was May or June 1991.
5 MS. MAHINDARATNE: [Previous interpretation continues] ...
6 JUDGE ORIE: What's your objection, Ms. Mahindaratne?
7 MS. MAHINDARATNE: No. I just mentioned that there was no
8 interpretation for a moment. It's just that the wire has come off. I beg
9 your pardon.
10 JUDGE ORIE: Yes. Then if interpretation is restored, please
11 proceed, Mr. Piletta-Zanin.
12 MR. PILETTA-ZANIN: [Interpretation] Very well. Thank you.
13 Q. After this interruption, I will proceed. What I am interested in
14 is to find out - and I believe that it is clear in the transcript - when
15 was this? Very well.
16 Now, between this period, that is, May or June 1991, and the
17 implementation or the start of the Cutilheiro plan, what was happening in
18 the political life in and around Sarajevo?
19 A. When we are speaking about the political life, it was Lord
20 Carrington who influenced it greatly. He had some ideas about a special
21 status, so-called. He was thinking about the special status of Serbs in
22 the Republic of Croatia, and most probably for the Alb Aras people, the
23 Albanian people in Kosovo and Metohija, and also for the Serbs -- or
24 Croats in Bosnia and Herzegovina. And Alija Izetbegovic, that says in my
25 report, it was because of this he said that he completely agreed with this
1 and saying that the Serb people had a right to a special status which
2 would mean to be autonomous, to have an autonomous unit of the Serbs
3 within Bosnia-Herzegovina. So as you can see, this whole time there was
4 this idea in the air that Bosnia-Herzegovina must be divided into three
5 autonomous units, and therefore, Sarajevo as well. As I said, Sarajevo
6 had ten municipalities. So there were Serbian municipalities there as
7 well, and there was also a plan to think about creation of Serb Sarajevo
8 within this autonomous unit.
9 Q. Thank you very much. You spoke to us about Alija Izetbegovic.
10 And my question in relation to that is: Have you ever in all your
11 academic history, have you ever supported Mr. Alija Izetbegovic?
12 A. I knew Mr. Alija Izetbegovic personally. He was imprisoned
13 because of the so-called Islamic declaration. And a committee which was
14 chaired by Dobrica Cosic, and I was its secretary and member, and we
15 took him to -- wanted to defend him. And at the time Alija Izetbegovic
16 wrote to us and to me from prison, which at the time was completely
17 forbidden. We used to see each other, and I believe that the last time we
18 saw each other, that was prior to the establishment of the SDA party in
19 Sarajevo when I was in the company with him and Adil Zulfikarpasic.
20 Q. Very well. But how did you react when he was called to your
22 A. Well, that was in the 1980s, and at the time we formed a
23 committee -- we were a committee who defended people who were victims
24 because of their opinions. When we defended people who had said something
25 or written something and then suffered the consequences because of an
1 article -- notorious -- Article 118, we would then defend their right to
2 speak up and to write, which doesn't mean that we identified ourselves
3 with the positions they expressed. At the time I was critical of the
4 Islamic declaration, but I thought that Izetbegovic had the right to say
5 in public what he thought, regardless of the fact that it wasn't necessary
6 for me to agree with that.
7 Q. Yes. If I have understood you well, Professor, you're telling us
8 that you reacted as an intellectual in accordance with Voltaire's
9 statement, it was in order to defend a principle, the principle of free
10 speech, which can be expressed regardless of which form it takes. Is that
11 how I am to take your testimony?
12 A. Yes. Exactly. And we defended everyone, not just Serbs but let's
13 say Dobroslav Paraga as well, and a number of Muslims, Omer Behmen, Hasan
14 Cengic. Hasan Cengic was later the deputy and the Minister of Defence in
15 the course of the war. Some Albanians too. That was quite simply our
17 Q. Thank you. I now want to go back to your chain of reasoning. You
18 spoke about this idea which was in the air which concerned the structure
19 of the State of Bosnia and Herzegovina. I would appreciate it if you
20 could now go into more details and tell us what the Muslim party -- the
21 strongest Muslim party could have done at the time during this period and
22 with regard to this idea. Did you present -- did they want to present
23 this idea? Did they want to fight against it? Et cetera, et cetera.
24 A. The position of the SDA, the Party of Democratic Action, with
25 regard to the autonomous constitution of the people within
1 Bosnia-Herzegovina was ambiguous. Alija Izetbegovic and those surrounding
2 him felt that they had to make such a concession. And on this basis, they
3 not only negotiated but they also signed the appropriate agreements
4 according to which such a division of Bosnia into autonomous units was
5 supposed to happen. At the same time, they did everything in their power
6 to abandon such an intention and to betray the people they negotiated
7 with. They did this either by relying on powerful Muslim countries
8 throughout the world, Libya and Iran above all, and they attempted to see
9 certain differences in the positions of EU countries, on the one hand, and
10 the positions of the USA on the other hand. And it appears that the key
11 person who prevented the implementation of Cutilheiro's plan that had
12 almost been finished, it appear that is it was Warren Zimmerman, who was
13 the ambassador of the USA in Belgrade at the time.
14 Q. Professor, I apologise. I'm going to stop you there because we
15 haven't gone back to the Cutilheiro plan yet. You mentioned the attitude
16 of the Muslim forces at the time.
17 MS. MAHINDARATNE: Mr. President, I object.
18 MR. PILETTA-ZANIN: [Interpretation]
19 Q. And you said they wanted to --
20 MS. MAHINDARATNE: There was no reference to Muslim forces. The
21 witness has been speaking about the SDA, the political party.
22 MR. PILETTA-ZANIN: [Interpretation] Mr. President. Mr. President,
23 when I say "Muslim forces," I didn't mean the armed Muslim forces. I
24 meant the intellectual sphere, et cetera. I think that everyone
25 understood that.
1 JUDGE ORIE: [Previous interpretation continues] ... please
3 MR. PILETTA-ZANIN: [Interpretation]
4 Q. Professor, a minute ago you spoke to us about the fact that these
5 forces that I mentioned a minute ago would rely on countries throughout
6 the world, on Iran and elsewhere. I would like you to give us further
7 details about this matter, not only about these facts but also about the
8 reality. How did this manifest itself, et cetera, et cetera? Thank you?
9 MS. MAHINDARATNE: Mr. President, I object.
10 JUDGE ORIE: Yes.
11 MS. MAHINDARATNE: This line of questioning is going completely --
12 entirely out of the report submitted by this expert.
13 JUDGE ORIE: Well, I'll allow you to put this question to the
14 witness, and I'll allow the witness to answer the question. But,
15 Mr. Piletta-Zanin, what I previously said to Ms. Pilipovic is valid for
16 you as well. If you're going into all kind of details on who asked for
17 the support of whom, who went to South America, Australia, Asia, Africa in
18 order to find support, and if we find nothing about these exercises in the
19 report, then of course the Chamber will have to consider that the
20 Prosecution could not be aware of this questioning and that the
21 possibilities of verifying whatever the expert witness says and the
22 transparency which is of major importance for the Chamber might not be
23 observed in the way the Chamber would like it to be observed. So would
24 you please keep that in mind when you continue your examination.
25 MR. PILETTA-ZANIN: [Interpretation] Thank you, Mr. President. I'd
1 like to add that my question didn't have to do with --
2 JUDGE ORIE: Please ask your question to the witness.
3 MR. PILETTA-ZANIN: [Interpretation] -- with people carrying
4 luggage, et cetera.
5 Q. Witness, could you please provide more details about these -- the
6 political support obtained throughout the world. Thank you.
7 A. Well, contrary to Franjo Tudjman and the Slovenian president at
8 the time who -- who mostly visited European centres while Milosevic
9 remained in Belgrade, Izetbegovic turned to the Arab and Islam -- Islamic
10 world. As I have already said, he went to Libya on several occasions, and
11 his people went to Iran quite often. This was quite natural because many
12 people who were clerics, Imams, and hodzas, they were educated in Cairo.
13 That was most often the case -- or in Iran or in Baghdad, some other
14 Muslim or Arab country. They could speak the Arabic language because the
15 Koran is in Arabic, so it's necessary to know it. And thus, they would
16 travel to those countries seeking the necessary support.
17 Q. Thank you. I'd now like to focus on the plan itself, Cutilheiro's
18 plan, which was aborted. First of all, could you confirm what happened as
19 far as the first plan is concerned, the first time it was signed.
20 A. The first plan, the so-called historical agreement which fell
21 through - I didn't even mention it - it fell through because Alija
22 Izetbegovic withdrew from that and he left Adil Zulfikarpasic, he left
23 him alone. He betrayed him. So Adil Zulfikarpasic it turned out
24 negotiated without any authority with Slobodan Milosevic and with Radovan
25 Karadzic, and he was very much affected by this and since that time he no
1 longer played a key role in public life in Sarajevo and in Bosnia and
3 Q. Thank you. What can you tell us, if you know anything about this,
4 about what Mr. Alija Izetbegovic said when an agreement was finally
5 reached between the three parties concerned?
6 A. I've already mentioned this, that after a conference that was held
7 in Brussels and where this plan by Carrington -- Lord Carrington was
8 presented on the special status, Alija Izetbegovic on that occasion said,
9 and this is in my report -- Alija Izetbegovic said that he would
10 recognise, he would accept any Serbian request for Serbs to establish
11 their own autonomous units, and he said that he considered this
12 legitimate. But when the European Union engaged the Portuguese diplomat
13 Jose Cutilheiro to negotiate with all three sides, Alija Izetbegovic
14 participated in this himself and he signed that plan too. I can also
15 discuss the details of that plan later on, of course.
16 Q. I would be very grateful if you could tell us very briefly what
17 happened after the signing of this agreement.
18 A. When this plan was signed, it in fact established certain
19 constitutional preconditions, certain constitutional principles, as they
20 were called that had to do with the new constitutional organisation of
21 Bosnia and Herzegovina. Each of the three constituent peoples was to have
22 its own federal unit or its own autonomous unit, and the division of
23 Bosnia into three units had already commenced, and a principle had been
24 established according to which when petitioning BH, the population census
25 from 1971, 1981, and 1991 should be used, and it already had been
1 established which municipalities were not in dispute, which municipalities
2 would be Muslim, Croat, or Serbian, and that this would not be disputed.
3 And there was a list of municipalities which were still in dispute as to
4 whether they should be Croat, Muslim, or Serb. And then it was a matter
5 of whether these municipalities should join a certain unit or whether
6 certain municipalities, individual municipalities, should actually be
8 Q. I'm going to interrupt you there, Professor. You will continue in
9 a minute. But with regard to this list of municipalities, did this
10 concern many municipalities or was it an obstacle that one might consider
11 to be a minor obstacle? What can you say about this? And then you can
12 carry on with your presentation.
13 A. Well, according to the way it was presented in the press, it was
14 an obstacle that could have been overcome, for sure. So one expected this
15 work to be carried out. All three sides were expected to make
16 concessions. No one would be totally satisfied -- no one would be able to
17 achieve its objective in full, but it would have to make certain
18 concessions so that the other side could obtain certain things. And in
19 return, concessions would be made to the side that had already been
20 concessions. I think that this procedure could have been completed.
21 Q. Thank you. So as a result, what happened then, since this did not
22 occur? Can you tell us about it?
23 A. Well, in Sarajevo, Cutilheiro's plan had already been signed.
24 There was -- it was ceremoniously declared, and the representatives of all
25 three peoples had to meet -- were to meet in Lisbon. Then the American
1 ambassador, Warren Zimmerman, came to Sarajevo to talk among other things
2 to Alija Izetbegovic as well. We don't have reliable information about
3 what was discussed, especially since Warren Zimmerman, according to what
4 we can read in the literature, interpreted the contents of his discussion
5 in various ways. It appears that on that occasion Alija Izetbegovic
6 complained and said that, well, he had to accept a plan that he was not
7 happy with. And Warren Zimmerman then told him, "Well, why should you
8 accept it?" And Alija took this to mean that it wasn't necessary to
9 accept it. He thought this was a diplomatic way of saying it wasn't
10 necessary to accept it, and he thought that America would support the
11 independence of Bosnia even if Alija Izetbegovic rejected this plan that
12 had almost been completed, this EU plan that had almost been completed.
13 In my opinion, this was the casus belli, the cause of the war.
14 Q. Professor, thank you. A minute ago you told us about the ten
15 municipalities that formed Sarajevo. You spoke about relative majorities
16 in these municipalities. My question is as follows: As far as the
17 country, the so-called rural zones are concerned, and as a general rule,
18 how were the majorities divided in ethnic terms in these areas? What was
19 the ethnic composition in these areas?
20 A. I'd just like to clarify something about the status of the city of
21 Sarajevo and the status of the municipalities. These municipalities were
22 normal municipalities. They resembled all other municipalities. And then
23 the town of Sarajevo as a superstructure covering these municipalities had
24 a twofold responsibility. One was to transfer the responsibility of those
25 municipalities to the town and the second part of its responsibility had
1 to do with what the republic transferred to the town. So one could freely
2 say that this concerned ten municipalities. In historical terms in
3 Bosnia, first of all the Turks and then the Muslims mostly lived in towns
4 because they weren't involved in agriculture or in livestock. They were
5 agas or beys. They had state professions, they were judges or tradesmen,
6 et cetera. So they mostly lived in urban areas. There were some
7 exceptions, along the River Drina -- along the estuary of the River Drina.
8 Q. Thank you. Perhaps you could slowly repeat the two names that you
9 mentioned a minute ago just for the sake of the transcript so that the
10 matter is clear. They were --
11 A. Well, they were agas and beys. These are feudal terms. And then
12 they were kadijas, these are judges. And then they held other
13 professions, for example they were Imams or hodzas. These people were
14 clerics. There were many other professions. Naturally I can't remember
15 all of them.
16 Q. Thank you very much. Professor, let us now return to the
17 political majority of the Muslims in relation to the possible acceptance
18 of a plan such as the one presented by the diplomat Cutilheiro. According
19 to what you know - and I'm not talking about Alija Izetbegovic himself -
20 but did the Muslim party or the majority of the Muslim party desire this
21 plan to be accepted, or did they want it to be rejected?
22 A. Unfortunately I'm not in a position to answer that because at the
23 time there was no serious research of public opinion. That was a period
24 that preceded the war. So the party leaders decided for their people
25 about the fate of their people and about the fate of Yugoslavia and about
1 the fate of Bosnia and Herzegovina. If people had been aware of the fact
2 that war was terrible - and it really was terrible - they would probably
3 all have accepted Cutilheiro's plan and then the war in the territory of
4 Bosnia and Herzegovina wouldn't have happened. But someone thought that
5 it was possible for the state to secede and that it was possible for a
6 constituent people to be deprived of its right to enjoy the status of
7 equality without this leading to war. As far as I know - and I have
8 studied constitutional law - secession, which is unconstitutional, is
9 usually carried out by having recourse to war, and it leads to war.
10 Q. Professor, let's now have a look at the other side, please, the
11 Serb side. According to the research that you have carried out, were you
12 able to determine whether the Serbian side - and we're talking about the
13 period of February, spring 1992 - at that time did the Serbian side
14 support the implementation of this plan or the implementation of a similar
16 A. As far as the Serbs are concerned, in Bosnia and Herzegovina and
17 in Croatia, above all, their natural tendency was to preserve the
18 integrity of Yugoslavia or to remain at least within the framework of a
19 rump Yugoslavia. So if someone wanted to secede, it shouldn't be possible
20 for the secession to be carried out if it concerned territory where the
21 Serbs were in a majority. This was the first objective of the Serbs.
22 The Bosnian Serbs, who were led by Radovan Karadzic, the Serbian
23 Democratic Party, went one step further and made more significant
24 concessions that could have damaged the Serbs in Croatia, in historical
25 terms. When the SDS accepted Cutilheiro's plan at a given moment, it in
1 fact rejected the possibility of joining Serbia, of being unified with
2 Serbia. It accepted Bosnia as a possible future independent state under
3 the condition that the Serbs in such a Bosnia should have their own
4 autonomous federal unit. I know that the current Bosnian leaders
5 reluctantly said that they were prepared for such a sacrifice in order to
6 avoid a war, although it was obviously a better option to preserve
7 Yugoslavia and to ensure that all Serbs were in one state, as they were
8 since 1918.
9 Q. Professor, thank you. And since Sarajevo is a key problem, given
10 the majority that the population had in Sarajevo, did the administrative
11 partition of the city -- could the administrative partition of the city
12 have been done, been carried out, at a lesser cost; that is to say,
13 without the loss of life, et cetera, which is what happened later on?
14 Could the administrative partition have been achieved without paying such
15 a price?
16 A. Yes, obviously. I said that in the central municipalities the
17 Muslims had a significant majority. But in the border municipalities,
18 which were in the suburban parts of the town or had earlier on been the
19 rural parts of the town, the Serbs were in the majority there. Naturally
20 these municipalities had fewer inhabitants, were not as densely inhabited.
21 So such a partition could have been accepted, depending on which people
22 had the majority, or some other sort of partition could have been accepted
23 given the appropriate concessions. But this would have enabled the war --
24 this would have enabled us to avoid the war. But since someone desired --
25 from the time that someone desired the entire city of Sarajevo, it was no
1 longer possible to avoid the war.
2 Q. You said "someone." Are you referring to anyone in particular?
3 A. I'm thinking of the Party of Democratic Action, the SDA.
4 Q. Could you be more specific?
5 A. Well, I am thinking of Alija Izetbegovic and the other people who
6 led that party.
7 Q. Witness, a minute ago you mentioned the intervention in diplomatic
8 terms of the American ambassador, and you mentioned the reaction that
9 followed. Could you expand on that, on this aspect of the problem.
10 A. Well, that reaction was -- was a bad reaction, and it led to war.
11 Alija Izetbegovic was given a silent promise according to which Bosnia and
12 Herzegovina, even without Cutilheiro's plan, would be internationally
13 recognised. And even before he managed to obtain international
14 recognition, his government, the rump government, naturally without the
15 Serbs - I think it was on the 4th of April - his government declared a
16 general mobilisation and thus made it known to everyone that it would use
17 certain means if war broke out, if there was a conflict. I didn't discuss
18 this. I'm not a military expert, and this doesn't fall within the domain
19 of constitutional law. But I know this because I followed the papers. I
20 know that the Muslims established the necessary paramilitary units.
21 Q. Professor, you're not a military expert. A minute ago you used
22 the term "casus belli." I'd appreciate it if you could tell us why in
23 your opinion this chain of events couldn't have been interpreted in your
24 opinion by the other party as anything other than a casus belli.
25 A. In my report, and I think it's quite clear, the balance between
1 the three peoples in Bosnia-Herzegovina was a very delicate one, and it
2 was very dangerous if one of the peoples was oppressed, because two of the
3 peoples had joined and were against it or because one of the peoples was
4 in charge of the situation. Only full equality and respect for the
5 state-forming nature of the state and the constituent character of the
6 peoples, only such respect could ensure peace among the citizens. When
7 the SDA, the Party of Democratic Action thought that it could obtain
8 international recognition of a unified Bosnia and that it could reduce the
9 Serbs to the status of the -- to the humiliating status of an ethnic
10 minority, they should have been aware of the fact that this represented a
11 casus belli.
12 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I have another
13 two questions. Would you like me to ask them now or after the break.
14 JUDGE ORIE: Yes. If you could finish in a couple of minutes, I'd
15 like you to continue your questioning.
16 MR. PILETTA-ZANIN: [Interpretation]
17 Q. Professor, my penultimate question will be as follows: According
18 to your experience and your research, do you think that Europe, given what
19 it knew - and I'm talking about the historical and political Europe- do
20 you think that they could have expected -- they could have foreseen such
21 an event?
22 A. Well, it was very easy to foresee it. In 1847 six Swiss cantons
23 formed the Zonderbund alliance and tried to secede. This was followed by
24 the well-known Zonderbund Krieg or Zonderbund war. And it wasn't until
25 '48 that the current constitution of Switzerland was adopted, which was
1 the constitution of the federal state. Although, Switzerland is still
2 nominally a confederation. In 1861, 13 southern states in the USA left
3 the union, formed a confederative alliance, and armed its militia, and the
4 constitution allowed for this -- the federal constitution allowed for
5 this. But when the militia in South Carolina attacked a fortress, this
6 was a casus belli. As you can see, secession always leads to war.
7 I can also mention the case of Biafra. This is a more recent
8 event. The Biafra case in Africa secession. The succession of a federal
9 unit which is unconstitutional leads to war. Today we are still facing
10 the consequences of the Chechnia problem.
11 Q. Professor, my very last question: It won't interest Nicolas de
12 Flue but it has to do with reasons of credibility. Who is comrade Tacitus
13 and what can you tell us about this, the Tacitus comrade?
14 A. I'm sorry. Who are you referring to?
15 Q. Tacitus.
16 A. Tacitus. The -- I think you are referring to the criminal
17 offence that I committed in 1972 according to the findings of the court.
18 In the work on the value of Yugoslav law, I quoted Tacitus and his annals,
19 and in particular the well-known phrase "corruptissime respublica plurime
20 legis," which means the more corrupt a state is, the more laws there are.
21 So the court in Tito's Yugoslavia at the time thought that this was the
22 dissemination of false information. And because of that quote, because of
23 the quote from Tacitus' annals, I was sentenced to five years in prison
24 and I was given a two-year conditional sentence -- two-year suspended
1 MR. PILETTA-ZANIN: [Interpretation] No further questions. I thank
2 you, Mr. President.
3 JUDGE ORIE: We'll adjourn until twenty minutes past 4.00.
4 --- Recess taken at 3.50 p.m.
5 --- On resuming at 4.23 p.m.
6 JUDGE ORIE: Ms. Mahindaratne, is the Prosecution ready to
7 cross-examine the expert witness?
8 MS. MAHINDARATNE: Yes, Mr. President.
9 JUDGE ORIE: Yes. As soon as he enters the courtroom, you may
11 Professor Cavoski, you'll now be examined by counsel for the
13 Please proceed, Ms. Mahindaratne.
14 MS. MAHINDARATNE: Thank you, Mr. President.
15 Cross-examined by Ms. Mahindaratne:
16 Q. Good afternoon, professor.
17 A. [In English] Good afternoon.
18 Q. Sir, according to your curriculum vitae, which you have provided
19 with your report, your academic qualifications and professional
20 experiences are all exclusively in the field of law, in the legal field;
21 isn't that the case?
22 A. [Interpretation] That's not quite the case. I am also working on
23 political philosophy. I think you are able to see that with a colleague
24 of mine I co-wrote a book on Esquilus, on his arrest. That is a tragedy
25 written by the most famous tragic playwright of all times who lived in the
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 fifth century, BC. Then together with Vojislav Kostunica, who is
2 currently the federal president of Yugoslavia, I published a book in
3 history, that is, "Political pluralism or monism." So I worked on
4 different things apart from those that are to do with the field of law.
5 Q. Apart from the publications and what you've just stated, you do
6 not have a degree in history or political sciences?
7 A. No. No. I am a Doctor of Law.
8 JUDGE ORIE: Yes, Mr. Piletta-Zanin.
9 MR. PILETTA-ZANIN: [Interpretation] Mr. President, as I was
10 adjusting my headphones and I heard the name, I'm not sure -- I didn't
11 hear the name of the author from the fifth century before BC. It doesn't
12 appear in the transcript, so could it be repeated. I believe I'm talking
13 about the playwright, Mr. President. I believe that is Esquilus.
14 JUDGE ORIE: Could you please repeat the name of the writer you
15 told us about.
16 THE WITNESS: [Interpretation] The author of a Hellenistic study
17 about the ancient Greek playwright, Esquilus who wrote a trilogy called
19 JUDGE ORIE: Yes. You've repeated the name. So please proceed.
20 MS. MAHINDARATNE: Thank you.
21 Q. So in view of that, I suggest to you that your report, which
22 relates to the subject of history, should be ideally submitted by a
23 historian is outside your area of expertise since you are a professor of
24 law, to use your own words.
25 A. If you have read my report carefully, you will see that one of the
1 key books that I quoted is a book by Mustafa Imamovic about the state and
2 legal position of Bosnia-Herzegovina dated from 1878 until 1914. You see,
3 this person, Mustafa Imamovic, among other things, he was a colleague of
4 mine at the university. He's one year older than me. During the war he
5 was a dean of the legal -- of the law school in Sarajevo. He completed a
6 law degree, but he dealt with legal history. When legal history is in
7 question, we believe that people who are dealing with this, they should
8 have study in law and then they learn about history. Rather than being
9 historians and then trying to, as historians deal with the history of law.
10 That is far more difficult.
11 Q. So speaking about your publications, I note in your list of
12 publications there's a notable omission. You omitted to mention one of
13 your publications. You're nodding your head. Do you know what I'm
14 referring to?
15 A. Which publication did I not list, if you please? I have listed
16 all the books that I have written.
17 Q. Is it your position, sir, that all the books you've written are
18 listed in your list of publications attached to your curriculum vitae? Is
19 that your position?
20 A. Well, you see, obviously you don't have a list of published works,
21 obviously. With us it's not usual to list a smaller publications between
22 50 and 100 pages -- or under 50 and 100 pages, particularly if certain
23 publications are published later with other publications in other books.
24 So please, can you just tell me the name of the publication that you're
25 thinking about, what -- so that I can tell you whether it is -- it is
1 included in the book. And if it is not so, then perhaps it's an article
2 which is quite difficult for me to list because that would be over 200
4 Q. Sir, you wrote a book by the name of "The Hague against justice
5 revisited." And it is not in your list of publications. What is the
6 reason for this omission?
7 A. Well, there's no reason. It is included in this. Let me expand
8 on this: When the case of General Djordje Djukic came before the
9 Tribunal, I wrote the book "The Hague against justice." Perhaps it should
10 have been "The Hague versus justice."
11 Q. Let me interrupt you. You have listed your first book "The Hague
12 against justice," but you have omitted to list a book which has more pages
13 than the first book, so it's certainly not a small publication, which is
14 "The Hague against justice revisited." So could you explain to us how you
15 list one book and not the other?
16 A. First of all, what I've published about General Djordje Djukic,
17 that was, I think, in 1996. After that I published this other book, both
18 in Serbian and in English. But as a small booklet. The first one is also
19 a small booklet. But this is "The Hague against justice revisited." And
20 then after that in Serbian I published ten or so processed cases, and then
21 I've put it all together in one book, also about General Djordje Djukic,
22 about Dr. Radovan Karadzic, and about eight other cases.
23 And then in 1998 in Serbian I published a large study "The Hague
24 against justice," where all previous publications are included in one
1 MR. PILETTA-ZANIN: [Interpretation] Mr. President.
2 JUDGE ORIE: Yes, Mr. Piletta-Zanin.
3 MR. PILETTA-ZANIN: [Interpretation] I'm just allowing myself to
4 say this because sometimes the position of -- sounds important. I don't
5 think that the quote, unquote signs are necessary in line 17, because
6 that's not what the witness said -- no, I didn't say that. Their
7 position, the way that it is -- the way that they are included in the
8 transcript do not reflect the witness's testimony.
9 JUDGE ORIE: You would say that he didn't express the quotation
10 marks, and he -- when he cites a title of a book, then you think it
11 inappropriate to put that in quotation marks? Is that -- how I have to
12 understood it?
13 MR. PILETTA-ZANIN: [Interpretation] No. I think, Mr. President -
14 but I may be wrong - I believe that the quotation marks could come after
15 the word "justice." And that is not -- it's not -- the title doesn't
16 include this word.
17 JUDGE ORIE: Let me just see, Mr. Piletta-Zanin. You are
18 referring to page --
19 MR. PILETTA-ZANIN: [Interpretation] Page 42, line 15,
20 Mr. President -- page 42, line 15.
21 JUDGE ORIE: "The Hague against justice revisited." What's wrong
22 with that quotation?
23 MR. PILETTA-ZANIN: [Interpretation] My impression is that the
24 quotation marks should stop after "justice."
25 JUDGE ORIE: May I just clarify. Did you say that you first wrote
1 a booklet on "The Hague against justice" and that you then wrote a second
2 booklet called "The Hague against justice revisited"?
3 THE WITNESS: [Interpretation] Yes.
4 JUDGE ORIE: I still do not understand what the problem is,
5 Mr. Piletta-Zanin.
6 MR. PILETTA-ZANIN: [Interpretation] I apologise, Mr. President.
7 JUDGE ORIE: Yes.
8 Please proceed, Ms. Mahindaratne.
9 MS. MAHINDARATNE:
10 Q. Sir, I'm referring to -- drawing your attention to your second
11 book, which is "The Hague against justice revisited," which deals with the
12 case of Dr. Radovan Karadzic, and it is described as a line of defence of
13 Dr. Karadzic in a possible ICTY trial that you have written; is that
14 correct, sir?
15 A. No. No. I simply believed that it was necessary, just like for
16 the case of General Djordje Djukic, that this case should be analysed.
17 And if you did know by any chance the Serbo-Croatian language, you would
18 also be able to see that in a similar way I analysed the cases of, for
19 instance, Dr. Karadzic, Slavko Dokmanovic, the Vuckovic brothers, that
20 is, the Banovic brothers, the case of Simo Drljaca, the case of Goran
21 Lajic, and other cases. So it's been a long time that as a lawyer I
22 have been dealing with these cases that are appearing before this
23 Tribunal, whether they have started or whether they have finished. And I
24 don't think there is anything unusual in that. In fact, it should be
25 expected from experts among the public to carefully follow what this
1 Tribunal is doing.
2 Q. Let me interrupt you. I just ask you one question, whether it was
3 the line of defence of Dr. Karadzic.
4 I put it to you that --
5 A. No, it's not. It's not a defence.
6 Q. I put it to you, sir, that you did not specifically mention this
7 second book, "The Hague against justice revisited" for two reasons, first
8 being because it is seen -- and a clear reading of the book shows that it
9 is a line of defence for Dr. Karadzic in a possible ICTY trial. And
10 secondly, because you have referred -- described the Tribunal in extremely
11 negative terms.
12 A. I have to say that you are wrong. First of all, people in this
13 field of work know that when a person is speaking about books, these books
14 include works that have at least ten pages. So I decided to just include
15 books that I published. The book that I published here, which is quoted
16 "The Hague against justice," from 1998, where this small piece of work
17 of -- about Radovan Karadzic is included, I did not conceal it except that
18 you thought because I wrote this in English -- I've written the title in
19 original. It was written here in Serbian, so I translated into English.
20 So this work on Dr. Radovan Karadzic, I did not conceal it. I don't know
21 why I would do such a thing. But I don't think that that is -- it's
22 inappropriate for a person, for an expert, to put -- to list smaller works
23 in his list of publications. Otherwise, then that seems pretentious, so
24 that's why I put books in my list like "The collection of work," which is
25 from 1998. And I think it's done appropriately, correctly. I didn't put
1 smaller works in. As far as smaller works, I have about 15 of them.
2 Q. If you did not want to list your smaller works, why did you list
3 your first book "The Hague against justice," which is a very small book?
4 A. Well, it seems that we are not understanding each other. That's
5 not the first book about The Hague. The first book was "The Hague against
6 justice," the case of General Djordje Djukic, and it was published both in
7 Serbian and in English. And it's a small booklet which has 48 pages.
8 What I have listed here from 1998, it's a book which has almost 300 pages.
9 It is a B5 format book.
10 Q. Sir, do you know someone by the name of Professor Kostunica?
11 A. Professor Kostunica, I have known him from early days. And I
12 believe that I met him sometime in 1966 or 1967. From that time we have
13 been friends -- we have socialised together, from the time when we both
14 left the army it was about in 1968 and now --
15 Q. [Previous interpretation continues] ... due to time restraint,
16 wherever you could answer with a yes or no, please do so.
17 A. Very well.
18 Q. Are you involved with Professor Kostunica in a movement which is
19 referred to as the anti-tribunal movement in Belgrade?
20 A. Together with Professor Kostunica, I was a founder member of the
21 democratic party in 1990 -- that is, in 1989. But sometime from September
22 1990, politically we went into separate ways. For a while we didn't see
23 each other, we didn't speak, so it's been for a long time --
24 Q. [Previous interpretation continues] ... my question to you is
25 whether you were involved with him or whether you are involved with him in
1 a movement referred to as the anti-tribunal movement in Belgrade. If you
2 can answer with a yes or no, please do so.
3 A. No, no. I do not take part in that with him. No, I'm not
4 involved in that with him.
5 Q. And there is such a movement, then.
6 A. I don't know that such a movement exists except that what I did -
7 and I can inform you about that - is that as the professor of the law
8 school on two occasions, together with 51 colleagues from the university
9 and there are about 90 lecturers, we submitted a submission to the
10 constitutional court of Yugoslavia where we requested for the
11 constitutional court to start proceedings in order to consider the
12 constitutionality first of one provision of the federal government on
13 cooperation with the ICTY and then in order to check the law on
14 cooperation -- or rather, the constitutionality of a law on cooperation --
15 on law cooperation with the Tribunal.
16 Q. Sir, earlier I suggested to you that your reason for not listing
17 "The Hague against justice revisited," that one of the reasons was because
18 you had referred to the Tribunal in extremely negative terms. And did you
19 agree with that or don't you agree with that?
20 A. I have to say that like any critically conscious lawyer, I
21 critically examined its work. And in those publications, I listed a
22 number of critical remarks about this Tribunal, starting from when it was
23 founded and also the way it operated. But I did this just like many other
24 lawyers in the world did and as they will continue to do in the future.
25 This is nothing unusual in law. No one is outside criticism.
1 Q. Sir, is it your position that the terminology you've used is in a
2 scholarly sense?
3 A. Well, of course.
4 Q. I have your book "The Hague against justice revisited" here, sir.
5 And you start with the first paragraph.
6 A. Yes.
7 Q. Which I will read to you.
8 MS. MAHINDARATNE: If it's necessary, Mr. President, I have
9 photocopies of the relevant page. Otherwise, I would just read the
11 JUDGE ORIE: If you would start reading it. If it's not too
12 many -- but perhaps you would give a copy to the Defence.
13 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. Yes,
15 And of course, like always, if we can have a copy in Serbian
16 because the authenticity of the text is very important. Thank you.
17 JUDGE ORIE: Yes. Do you have a copy in Serbian?
18 MS. MAHINDARATNE: Yes, Mr. President. In Serbian -- in Serbian
19 it's printed on one side and in English on the other side.
20 JUDGE ORIE: Yes.
21 MS. MAHINDARATNE: That's how the book is printed.
22 Q. I will read the first paragraph to you, sir.
23 JUDGE ORIE: Would you please listen carefully.
24 THE WITNESS: May I also get the copy of -- yes.
25 JUDGE ORIE: Yes. I think there's --
1 MS. MAHINDARATNE:
2 Q. You start your book with this paragraph:
3 "It has long been known that a bad beginning is a sure sign that
4 things will continue badly. There is even a valid legal principle that
5 time cannot correct or make --"
6 JUDGE ORIE: Ms. Mahindaratne, could you please tell us what
7 you're reading. I have page 47 in front of me. Where do you start?
8 MS. MAHINDARATNE: Mr. President, it's page 7.
9 JUDGE ORIE: Yes. Well, I've got 47 in front of me. That's --
10 MS. MAHINDARATNE: I beg your pardon, Mr. President. You've got
11 the wrong page.
12 JUDGE ORIE: Yes. It would be --
13 MS. MAHINDARATNE: I will read the next page, also, so it can be
15 JUDGE ORIE: Yes. We'll keep 47 for the future.
16 MS. MAHINDARATNE: Page 7.
17 JUDGE ORIE: Yes.
18 MS. MAHINDARATNE:
19 Q. It is your first paragraph, and that is page 7: Under the title
20 of "The Hague against justice revisited, the case of Dr. Radovan
22 The first paragraph goes like this: "It has long been known that
23 a bad beginning is a sure sign that things will continue badly. There is
24 even a valid legal principle that time cannot correct or make worthwhile
25 that which from the outset was misconceived. As a famous Serbian jurist,
1 Valtazar Bogisic put it, in the form of a national proverb, "Time never
2 straightened a hunchback." The saying fits the International Tribunal at
3 The Hague to a tee. From the very beginning, it was wrongly conceived and
4 badly constituted and in the course of trying the first cases brought
5 before it, has shown absolutely no sign of improvement."
6 That sir, is your first paragraph, and there are --
7 A. Yes.
8 Q. -- several such references. Due to time constraints, I will take
9 you directly to your concluding paragraph, which is on page 47. You refer
10 to another --
11 MR. PILETTA-ZANIN: [Interpretation] Mr. President.
12 JUDGE ORIE: Yes.
13 MR. PILETTA-ZANIN: [Interpretation] I'd like to make an objection
14 here because I have read these pages. And if this whole series of
15 questioning is about to say that this is offending the Tribunal, I do not
16 see that the comparison with a popular proverb, and we know what popular
17 proverbs are, I don't think there's anything offensive in that or
18 offending. So I object to this type of questions.
19 JUDGE ORIE: As far as I understand, Ms. Mahindaratne seeks to
20 establish that this expert witness, because of the content of what he has
21 written, intentionally kept away part of his publications. Whether or not
22 she intends to say that the expert is offending the Tribunal and whether
23 it would be bad to offend the Tribunal is, I think, a totally different
24 thing. But perhaps that develops in that way.
25 MS. MAHINDARATNE: My point --
1 JUDGE ORIE: I don't know.
2 MS. MAHINDARATNE: You're correct, Mr. President. My point is
3 that this publication has been kept out.
4 Mr. President, if this can be dealt with in the absence of the
5 witness, I could respond.
6 [Trial Chamber confers]
7 JUDGE ORIE: Yes. We'll ask the expert witness to leave the
8 courtroom for a while, and perhaps he could stay -- stand by so that
9 Ms. Mahindaratne could express herself.
10 I -- unfortunately, but you as a lawyer will understand that
11 sometimes procedural issues have to be discussed. Thank you for your
13 Ms. Mahindaratne.
14 [The witness stands down]
15 MS. MAHINDARATNE: Mr. President, the reason for this is
17 Firstly, Mr. President, the Prosecution intends to demonstrate
18 that through these passages the type of low esteem the witness has for
19 this Tribunal -- there is a question as to his commitment to speak the
20 truth before the very institution he has, if I'm permitted to read the
21 rest of the passages -- he proposes should be disbanded, firstly.
22 Secondly, Mr. President, in keeping this particular publication
23 out of his list of publications where he lists a very similar and in fact
24 a more -- a smaller publication but not this, it is very clear that it's
25 an attempt to conceal this type of -- this particular publication from the
1 attention of the Tribunal, from the attention of your Chamber,
2 Mr. President.
3 Thirdly, Mr. President, through the next few questions I intend to
4 demonstrate the bias of this witness towards one side and the lack of
5 objectivity and lack of impartiality, and therefore his incompetency to be
6 treated as an expert.
7 JUDGE ORIE: Mr. Piletta-Zanin.
8 MR. PILETTA-ZANIN: [Interpretation] Mr. President, first of all,
9 in the twenty-first century to conceal something, when it's enough to
10 click on the Internet to find anyone's publications, I don't think that's
11 very plausible.
12 Secondly, the right to criticise does exist. There are lawyers as
13 it happens who have criticised this Tribunal. They have done it on their
14 own terms. They have done it with full respect. They were never
15 sanctioned. Far from it for, for having done so. The fact that this
16 person could have thought and written that this Tribunal does not have the
17 qualities required structurally speaking, not for internal reasons,
18 doesn't imply at all that his credibility could be questioned. Otherwise,
19 we can read the complete list of works of someone. We can never finish
20 them. We cannot find out whether this person has written about -- in
21 reference to a proverb or in reference to something else. I don't think
22 that there's anything in here that we can say that this person has a
23 specific opinion on this Tribunal. And even if that is the case, the
24 right of everyone is to have such-and-such an opinion about such-and-such
25 a person or such-and-such an institution. That is a sacred right. This
1 person has paid for having defended his ideas. And at the time, he has
2 paid for having defended people with whose ideas he didn't agree,
3 including Mr. Izetbegovic. I believe this is clear, Mr. President.
4 I don't think I said -- I didn't say "I believe this is clear." I
5 said "his intentions should not be put on trial."
6 [Trial Chamber confers]
7 JUDGE NIETO-NAVIA: Ms. Mahindaratne.
8 MS. MAHINDARATNE: Please, Your Honour.
9 JUDGE NIETO-NAVIA: I really don't understand you when you are
10 saying the following: "Through these passages the type of low esteem the
11 witness has for the Tribunal -- there is a question as to his commitment
12 to speak the truth." Could you elaborate on that, because I cannot --
13 this is not my conclusion. I agree with Mr. Piletta-Zanin. I think that
14 everyone is entitled to think about any institution, including the
15 Tribunal, what he thinks.
16 MS. MAHINDARATNE: I agree, Your Honour. But --
17 JUDGE NIETO-NAVIA: And that -- I cannot conclude that for that
18 reason coming here and giving the testimony under oath he is not speaking
19 the truth. I don't -- I would like you to give me some reasons for that.
20 MS. MAHINDARATNE: Your Honour, he takes his oath before an
21 institution he describes as, to use his own terminology -- compares to a
22 hunchback. And he, if Your Honour, you may permit me to read out the next
23 passages, he proposes that this institution in the very strongest of
24 terms -- he proposes that it should be disbanded. My point is --
25 JUDGE NIETO-NAVIA: So what?
1 MS. MAHINDARATNE: My point is, Your Honour, that --
2 JUDGE NIETO-NAVIA: So what?
3 MS. MAHINDARATNE: My point is before such a forum he has such a
4 disregard for, if he is taking an oath, it is -- there is -- one can
5 easily disregard -- can easily come here and give -- take an oath without
6 any commitment to really speak the truth. That is my point, Your Honour.
7 MR. PILETTA-ZANIN: [Interpretation] Mr. President.
8 THE INTERPRETER: Microphone, please.
9 MR. PILETTA-ZANIN: [Interpretation] Thank you.
10 With all due respect, now I rebel here, because this witness has
11 never stated that this Tribunal is to be compared with a hunchback. I
12 believe that one has to be able to read. That's the beginning of things.
13 What we have the text here - and I don't have the French translation,
14 which is a shame - when we say that something is a hunchback, that means
15 it cannot be straightened. It doesn't mean it is a hunchback. The words
16 should not be twisted.
17 JUDGE ORIE: Yes. I do agree.
18 Let's first make one thing perfectly clear. This Chamber, without
19 any restriction, acknowledges the right of everyone to express his
20 feelings, his opinions freely. This Chamber does not consider criticism
21 on the Tribunal as a reason not to tell the truth, just as this Chamber
22 would not consider the way someone is spending funds as a reason not to
23 tell the truth. At length, the Prosecution experts have been questioned
24 about financial involvement in supporting certain funds. One could
25 question to what extent that would substantially assist the Chamber in
1 assessing the credibility, reliability of those expert witnesses.
2 Similarly, one could seriously question to what extent attention drawn to
3 this criticism to the Tribunal would assist the Chamber in assessing the
4 reliability or the credibility of this expert witness. The questions as
5 such, to draw the attention to earlier writings of an expert, are not
6 inadmissible. But let's not spend too much time on it for the reasons I
7 just gave.
8 The -- yes, Ms. Mahindaratne.
9 MS. MAHINDARATNE: No, Mr. President. I just -- just to indicate
10 that I will now move on to another area in the interests of time.
11 JUDGE NIETO-NAVIA: I would like to say that for me, at least,
12 what this witness wrote in this book or in another book doesn't affect his
13 credibility at all.
14 JUDGE ORIE: Yes. It's clear that -- and that I think -- or the
15 Chamber has expressed that these earlier writings are not of great
16 assistance for -- and perhaps as far as credibility and reliability, every
17 of the Judges will make up his mind. And since you indicated that you'll
18 move on to your next subject, Ms. Mahindaratne, I'll ask the usher to
19 escort the witness into the courtroom.
20 [Trial Chamber and registrar confer]
21 [The witness entered court]
22 JUDGE ORIE: Professor Cavoski, we'll continue.
23 Please proceed, Ms. Mahindaratne.
24 MS. MAHINDARATNE: Thank you, Mr. President.
25 Q. Sir, are you or were you at any time senator of Republika Srpska?
1 A. Of course I was. I think that we appointed senators towards 1995,
2 and we were appointed as senators by Mrs. Biljana Plavsic.
3 Q. Sorry to interrupt you. Just wherever you could answer with a yes
4 or no, I would appreciate it if you would do so.
5 A. I was.
6 Q. And are you or were you an official of the Serbian Liberal Party?
7 A. I was the president of the main committee of the Serbian liberal
8 party from the time it was founded. That was in 1991.
9 Q. The Serbian Liberal Party is considered as a conservative Serbian
10 political party; isn't that the case, sir?
11 A. Well, on the basis of its name, you couldn't say that it was
12 conservative. You'd conclude that it was liberal. Otherwise, we would
13 have been called the Serbian Conservative Party. It's necessary to know
14 what words mean.
15 Q. Very well. Sir, do you not think it would have been appropriate
16 to indicate your political involvement that you were a senator and an
17 official of the Serbian Liberal Party in your curriculum vitae which you
18 have provided with your report?
19 A. My political lifespan is very rich. I thought it was necessary to
20 mention only the most essential factors. I was the founder of the
21 democratic party, for example, which is now led by Mr. Zoran Djindjic. I
22 didn't think it was necessary to mention that.
23 Q. Are you not a close associate of Dr. Radovan Karadzic?
24 A. I am not an associate of Dr. Radovan Karadzic's but I was a friend
25 of his.
1 Q. And you were in the close circle of friends of the former
2 president, Mr. Slobodan Milosevic.
3 A. As far as Slobodan Milosevic is concerned, I'd need a little more
4 time to answer that. I started my university studies with him at the same
5 time. I knew him very well. But in 1968, after those well-known student
6 demonstrations, we parted ways. And since that time I was not a political
7 friend of his. And as you could see from my curriculum, in 1991 I
8 published a book. It was called "Slobodan protiv slobode." That is to
9 say, Slobodan against liberty.
10 Q. Sir, do you know a person by the name of Vojislav Seselj - pardon
11 my pronunciation?
12 A. Yes. I personally know Vojislav Seselj, and I met him when he
13 started having serious difficulties in Sarajevo. At the time he was a
14 lecturer at the faculty of political science.
15 Q. Sir, due to time restraint, I would appreciate it if you could
16 restrict your answer to the question.
17 A. All right.
18 Q. He's an author, isn't he?
19 MR. PILETTA-ZANIN: [Interpretation] No, Mr. President, objection.
20 [Trial Chamber and registrar confer]
21 JUDGE ORIE: Yes, please, Mr. Piletta-Zanin.
22 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I think that
23 the witness is going to have the leave the courtroom again.
24 JUDGE ORIE: Yes.
25 MR. PILETTA-ZANIN: [Interpretation] Or I could phrase it -- put it
1 in French if the witness doesn't understand French.
2 JUDGE ORIE: [Previous interpretation continues] ... speaks or
3 understands any French.
4 THE WITNESS: I will take my -- I don't understand French.
5 JUDGE ORIE: You don't understand French. But then, of course,
6 we'll have the problem of Ms. Mahindaratne having to respond in English.
7 So perhaps it's better -- unless -- it's just --
8 MR. PILETTA-ZANIN: [Interpretation] In very general terms,
9 Mr. President.
10 My objection has to do with the fact that when politicians are
11 mentioned who have certain connotations, we can't satisfy ourselves with a
12 yes or no answer. We have to allow the witness to continue so that we are
13 familiar with the context. That's my objection. Thank you.
14 JUDGE ORIE: Yes. If the witness needs to explain an answer, then
15 of course he can ask whether he may do so. On the other hand, if the
16 question is just do you know a certain person, then perhaps the next
17 question could already elicit from the witness what he wanted to say. So
18 we'll start -- yes. You may put on your --
19 THE WITNESS: Okay.
20 MS. MAHINDARATNE: May I proceed, Mr. President?
21 JUDGE ORIE: You may put on your headphones.
22 THE WITNESS: Okay. Thank you.
23 JUDGE ORIE: So the witness should first wait and see what the
24 next questions will be. And if then finally something important is
25 missing, then he could explain that.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 Please proceed, Ms. Mahindaratne.
2 MS. MAHINDARATNE: Thank you, Mr. President.
3 Q. Sir, would you answer my question, which was -- I was referring to
4 Vojislav Seselj, who was an author. He was an author, isn't he -- or he
5 is an author. He's an author?
6 A. Mr. Vojislav Seselj is not a great author. We consider him to be
7 a pamphleteer.
8 Q. Sir, haven't you reviewed and recommended his publications and I
9 will give you the titles of some of his publications that you recommended,
10 the person that you don't consider as a great author. One is the
11 publication titled "The campaign against the heretic." Second is
12 "Twilight illusions." Another one is "Democracy and dogma." These are
13 three of his publications that you've recommended.
14 A. The first book is called "Pursuing the heretic." And I read that
15 book and recommended it. And that is a description of his experience in
16 Sarajevo. And then as a friend -- at the time we saw each other, I
17 suggested certain other books until he offended me and I haven't spoken to
18 him for ten years now.
19 Q. Is that why you called him -- you said that you don't consider him
20 an author now, but there was a time you considered him as a great author?
21 You've changed because you don't speak to him now, sir?
22 A. I'm afraid you have misinterpreted what I said. His first book
23 was a testimony that was very affecting. And as such it had to be
24 published. But as far as the legal field is concerned, and he is a
25 lawyer, his works don't have great value. And this is well known.
1 Q. Sir, isn't it the case that in most of his publications - and I
2 did not at any stage refer to legal publications. I just used the word
3 "author," - in most of his publications he's quoted you or used your
4 articles or refers to your own publications as his source references.
5 Isn't that the case?
6 A. That was the case in the publications that were published 10, 12,
7 13 years ago. But in his most recent publications, he says that I'm
8 barking at the moon like someone crazy.
9 Q. Weren't a number of his --
10 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I apologise,
11 but it's difficult to see the relevance of a question which has to do with
12 whether a person who is not directly or indirectly connected to this case,
13 about what someone said. I don't see the relevance.
14 MS. MAHINDARATNE: I'm just coming to that, Mr. President, my last
15 point on this.
16 JUDGE ORIE: Coming to what, Ms. Mahindaratne?
17 MS. MAHINDARATNE: My point of this line of questioning,
18 Mr. President.
19 JUDGE ORIE: Okay. Let's then listen to your next question and
21 MS. MAHINDARATNE:
22 Q. Sir, weren't quite a number of Mr. Seselj's publications,
23 including the one you recommended, banned by -- in Belgrade by district
24 court as being extremely nationalistic publications and having the
25 capacity to use the terms of the district court judgment, "which could
1 have disturbed the public"?
2 A. Naturally those publications were forbidden. But you're taking me
3 back to a terrible period, which I lived through and I never accepted the
4 right of the court to sanction so-called opinions. So regardless of
5 whether we agree with what Vojislav Seselj or someone else says or doesn't
6 say, we have no right to deprive such a person of the right to express his
7 or her position.
8 Q. Sir, weren't your services terminated by the political science
9 department of the faculty of law of the Belgrade university in 1975 on the
10 basis that you were morally and politically unfit for the job of associate
11 professor, which were the words used by the commission which enquired into
12 your reappointment? Wasn't that the case?
13 A. That's what it says in the report of that commission. Three of my
14 professors drafted that report. I published that report. In the book
15 "Revolutionary Machiavellianism." But I was dismissed for my opinion.
16 That's what I was condemned for.
17 Q. In using the terms you were politically unfit, wasn't it the case
18 it was your extremely nationalistic stance that disqualified you from
19 reappointment to the political science department of the faculty of law of
20 the Belgrade university?
21 A. One can tell that you don't know me well or that the information
22 you have about me is not correct. When I was dismissed from the
23 university, no one spoke about me in terms of a nationalist. No one said
24 I was a nationalist. I was dismissed because I had criticised Tito's
25 regime. That was the real reason for which I lost my job. In the
1 communist system, it's not at all unusual for professors to be removed
2 from their university posts.
3 Q. Sir, I suggest to you that in view of your political involvement
4 and association with the political leadership of Republika Srpska and the
5 Serbian political leadership, as well as your actions in recommending
6 publications which have been banned judicially for being extremely
7 nationalistic, you have demonstrated very clearly that you're extremely
8 biased and you possess extremely nationalistic views?
9 THE WITNESS: Mr. President, this is not a question. It's a
10 distribution. All I can do is reject it.
11 Q. Can I suggest to you, sir, that in view of that clear bias and
12 lack of impartiality on your part you cannot be -- you're not a competent
13 witness to render an opinion on the political history of the conflict of
15 A. Naturally that's one of the party's opinion, and it's up to the
16 learned Chamber to assess whether this is the case or not.
17 Q. So you would agree then, sir, that your opinion is from the
18 perspective of, to use your own terms, "one of the parties"?
19 A. No. I said that that is your description. You described me as an
20 extremist, a nationalist. That is the opinion of your side. And the
21 Chamber, being impartial, shall decide whether I can be accepted as an
22 expert witness or not. That's what I said.
23 JUDGE ORIE: Could you please move to your next subject,
24 Ms. Mahindaratne.
25 MS. MAHINDARATNE: Yes, Mr. President.
1 Q. Sir, in your paper, the central thesis of your report was that war
2 was inevitable, owing solely to three events, being, firstly, the decision
3 of the BH Presidency and government to seek independence, referring to
4 23rd December, 1991; secondly the Badinter commission's interpretation of
5 nationality rights in January 1992; and thirdly, Izetbegovic's alleged
6 annunciation of the Lisbon agreement in March 1992. Isn't that the case?
7 A. I think that the casus belli is the first item mentioned and the
8 third one, as far as the opinion of the Badinter Commission is concerned,
9 which you mentioned under number 2, well, I just indicated that there were
10 shortcomings in that opinion and I emphasised this, if you were careful
11 enough to read this. And I emphasised the fact that Badinter's Commission
12 abandoned the usual concept of a national minority, and in fact it covered
13 all the peoples in Bosnia-Herzegovina with this term. So in fact, there
14 was not a single people that had a majority. And then it spoke about the
15 rights of the Serbs as an ethnic minority.
16 Q. Well, you explicitly argue that the alleged negation of Bosnian
17 Serb group rights in these -- now, as you say two events then, not taking
18 the second one -- made war inevitable. That's what you say, the casus
19 belli, to use your term.
20 A. Yes, yes. I'd also like to add that the attempt to secede itself
21 was a casus belli. So if you examine the history of the federal states,
22 the attempts of one or several federal units to secede as a rule result in
24 Q. And less explicitly, you suggest that these events validate and
25 justify the war?
1 A. I'm not talking about justifications of war. I'm talking about
2 provocations, provoking war. And there is an important difference to make
4 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I object about
5 the value of the words, the weight of the words. Once one has asked a
6 witness whether this justifies war -- if one is a lawyer and if one is
7 aware of the weight that words have, then one is saying something that has
8 a lot of importance. And the Defence protests. They can't accept this.
9 As a general rule, war is not justifiable.
10 JUDGE ORIE: Let's not engage in a legal debate on whether war
11 could ever be justified or not. This is not the place to enter such a
12 debate. But in more general terms, Ms. Mahindaratne, it does not greatly
13 assist the Chamber, if you first simplify the report of the expert
14 witness, ask him then whether he agrees with your simplified version of
15 his report, and then invite him in this way to report -- to repeat what
16 he's written and what the Chamber has read.
17 MS. MAHINDARATNE: I will move on to another area, Mr. President.
18 JUDGE ORIE: Yes.
19 MS. MAHINDARATNE:
20 Q. Sir, I draw your attention to page 30 of your report. And I have
21 the English translation. Maybe you'd have perhaps the corresponding page
22 to page 30.
23 A. Yes. [In English]
24 Q. In the first paragraph, which is the last paragraph before the
25 fourth section starts. And I'm referring to the paragraph which starts
1 with the word "transformation." The last three lines of that paragraph
2 reads in these terms. You say: "They say that he had done so after his
3 talk --" I will read the line before that to bring it into context. "And
4 then, for many, a completely unexpected happened. Alija Izetbegovic
5 treacherously withdrew his signature from the said document and thwarted a
6 successful completion of the conference in Lisbon."
7 And then you go on to say, "They say he had done so after his talk
8 with the American ambassador in Belgrade, Warren Zimmerman, and some even
9 add that it was at the ambassador's suggestion that this life-saving plan
10 failed and a three-year civil war started."
11 Sir, when you say "they say" and "some add", what is your source
12 of information? Who are you referring to here?
13 A. First of all, the source of information were in the press, then
14 various memoirs wars. Warren Zimmerman himself on several occasions
15 provided various versions of that conversation that he had. You can read
16 this in the books on the unfortunate events in Bosnia and Herzegovina.
17 What is certain is that after that conversation with Zimmerman, Alija
18 Izetbegovic withdrew his signature from Cutilheiro's plan that had already
19 been shaped. The details of that conversation haven't been disclosed to
20 date, but this Chamber can request from the American State Department the
21 official report that the ambassador Warren Zimmerman certainly made as
22 ambassador to his country, and then they could check to see what the
23 contents of that conversation were.
24 Q. Sir, as a person who has written many books and there are many
25 publications to your credit, would you not agree with me that it is not
1 competent scholarly work to refer to abstract entities such as "they" and
2 "some" without giving a proper source reference, especially in a report
3 such as this where you're tendering it for the perusal of judicial body?
4 A. I must say you are not right. I'll provide you with an example
5 from history. It's Britannicus' murder, who was the adopted brother of
6 the emperor Neron. He was killed and Tacitus says that he was probably
7 poisoned. But then he adds, some say that he was poisoned; others,
8 that he wasn't. But what we will decide depends on both. It's a question
9 of whether we will ever know what was discussed in that conversation. But
10 it's very likely that Warren Zimmerman managed it one way or another to
11 incite Alija Izetbegovic to withdraw his signature. But what we know for
12 certain is he did withdraw his signature after that conversation.
13 Q. Sir, you say -- you used here the words "but it's very likely that
14 Warren Zimmerman managed it one way or another to incite Alija Izetbegovic
15 to withdraw his signature." How can you conclude this? What is your
16 source of information? What are you basing your conclusions on?
17 A. Like I said, I followed the press carefully, and then it's a fact
18 that Warren Zimmerman spoke to him, and it's a fact that Alija Izetbegovic
19 accepted the plan up until that point. And after they had spoken to each
20 other, he withdrew his signature. What more would you like to know.
21 Q. Sir, when you say "press," which press are you referring to?
22 A. I'm referring to the press in Sarajevo and in Belgrade. I read
23 Serbo-Croat, which means that I am able to read everything that is
24 published in Yugoslavia.
25 Q. Do you read the New York Times?
1 A. Yes, I also read the New York Times occasionally.
2 Q. When this rumour about this alleged conversation between Warren
3 Zimmerman and Alija Izetbegovic did get published in the New York Times,
4 are you aware that Mr. Warren Zimmerman published an article in the New
5 York Times denying and placing the correct sequence of events in the
6 newspaper? Did you read that?
7 A. No, I haven't read that.
8 Q. Sir, is it then correct to -- I put it to you then, sir, that your
9 assertions in your report are quite incomplete. You have not gone through
10 the necessary material to arrive at the correct conclusions.
11 MR. PILETTA-ZANIN: [Interpretation] Mr. President.
12 JUDGE ORIE: Yes.
13 MR. PILETTA-ZANIN: [Interpretation] In order to be completely
14 clear about this, may I ask my learned colleague to have a copy of the
15 newspaper in question so that I can see what this is about.
16 MS. MAHINDARATNE: It's the New York Times of 30th September
18 Perhaps a copy may be given to the witness.
19 THE WITNESS: Thank you.
20 MS. MAHINDARATNE:
21 Q. Sir, could you please go through the article titled "Bosnian
22 about-face." And you will see Mr. Warren Zimmerman's account of the
24 A. I've read it.
25 Q. Well, you haven't read it before, have you?
1 A. I haven't read it before, no.
2 Q. So when you prepared your report, which is the subject matter
3 here, you have not perused all material relating to that particular
4 incident; isn't that the case?
5 A. You have to know that in the next 50 years no one is going to be
6 able to peruse the complete material in order to give a reliable report.
7 What is necessary, you must know this, is to have access to archives and,
8 first of all, to the diplomatic archive of the State Department. So we
9 have to have the original of the instructions given that were sent from
10 Washington to Warren Zimmerman in Belgrade before he spoke to Alija
11 Izetbegovic, and then the subsequent report by him. It is only on the
12 basis of this that we can then establish what Warren Zimmerman really
13 did. In fact, I fully understand this letter by Warren Zimmerman. He's
14 simply on his own behalf in his own -- and on behalf of the US government,
15 he published this letter in order to remove the responsibility, his own
16 personal responsibility and that of the US government, for the
17 commencement of the war in Bosnia, particularly bearing in mind the
18 efforts of the European Union to avoid this war through the implementation
19 of the life-saving Cutilheiro's plan.
20 Now, I have to say that this is probably -- that I would have had
21 a completely the same conclusions had I read this.
22 Q. [Previous interpretation continues] ... you --
23 JUDGE ORIE: Ms. Mahindaratne, could you find a moment rather soon
24 to have the next break.
25 MS. MAHINDARATNE: Very well, Mr. President. Just one more
1 question and --
2 JUDGE ORIE: Yes. Please proceed.
3 MS. MAHINDARATNE:
4 Q. You make an assumption about an article as to why that article has
5 been published by Warren Zimmerman even without having read it. I suggest
6 to you, sir, that you made -- you arrive at conclusions or make
7 assumptions --
8 MR. PILETTA-ZANIN: [Interpretation] This is wrong. This is
9 wrong. Mr. President. Mr. President. This is false.
10 The witness said, "I've read this article," and he said it a
11 moment ago. And we cannot now have it said, things that are falsehoods.
12 MS. MAHINDARATNE: No, Mr. President. My point was --
13 JUDGE ORIE: Yes.
14 MS. MAHINDARATNE: With regard to his assumption why Warren
15 Zimmerman has published this article, the witness merely read the article
16 in this courtroom right now.
17 JUDGE ORIE: Yes. But you can't say that he didn't read the
18 article if five minutes ago the expert witness has read the article. But
19 I now understand your question to be that how this expert witness could
20 give an interpretation of the reasons why this letter was written where he
21 has testified that he didn't know it before and that he read it only in
22 this courtroom. Is that your question?
23 MS. MAHINDARATNE: Yes, Mr. President.
24 JUDGE ORIE: Could you please answer to that question. And could
25 you please phrase your questions more precisely next time.
1 MS. MAHINDARATNE:
2 Q. Would you please answer my question, please.
3 JUDGE ORIE: My question, please. Yes.
4 THE WITNESS: [Interpretation] Yes. This answer by Warren
5 Zimmerman published in this newspaper, I hadn't read it before. But even
6 if I had read it, this is what I said, I probably would have had the same
7 conclusion because it was a general opinion based on various sources,
8 press articles, that Alija Izetbegovic did this following the conversation
9 he had with Warren Zimmerman, and it is logical that diplomats who have
10 this duty to also defend their own person and also the respect of their
11 state is that obviously they are trying to publish this letter in doing
12 so. But later on, when this 40- or 50-year ban which stops us from
13 looking in the archives, when it's lifted, then it can be found out what
14 happened. But obviously, if you think that I am wrong, you as the
15 Prosecution and as the Trial Chamber, you can ask the State Department to
16 give you the instructions that were given to Warren Zimmerman and also his
17 report that went to the State Department to establish what the truth was,
18 if that is important for these proceedings, for this trial.
19 JUDGE ORIE: Yes.
20 MS. MAHINDARATNE: One more question, Mr. President.
21 JUDGE ORIE: Yes, one more question then.
22 MS. MAHINDARATNE:
23 Q. So I put it to you, sir, likewise, you arrive at conclusions based
24 on, to use your own words, general opinions and logic.
25 A. There's no question here. You haven't asked me a question.
1 Q. I suggested to you.
2 JUDGE ORIE: Yes. I take it that you -- you suggest to the expert
3 witness that he arrives at conclusions based on general opinions and logic
4 and what his response is to that suggestion.
5 MS. MAHINDARATNE: Yes.
6 JUDGE ORIE: Could you please respond to the suggestion put to you
7 by Ms. Mahindaratne.
8 THE WITNESS: [Interpretation] I think this is not appropriate for
9 me. I think I have done my work conscientiously. And when people don't
10 have all the documents and as it happens people have different insights.
11 Expert reports can never be completely identical. The only case from
12 history is the so-called Septuaginta, which was the very first translation
13 of the old testimony from Hebrew into ancient Greek. 70 people were doing
14 this translation work, among whom Septuaginta, and when they compared the
15 translation, they were completely identical, which is -- which was the
16 sign of God's intervention. Since we do not have such intervention,
17 obviously we cannot have identical opinions and they differ and for this
18 reason each of our reports has shortcomings. Obviously -- I'm not a
19 perfect reporter, of course this can be criticised -- of course this can
20 be done a lot better. That's why you have so many expert reports and the
21 Trial Chamber, who is supposed to look into this.
22 MS. MAHINDARATNE: This is a good time, Mr. President.
23 JUDGE ORIE: We'll then adjourn until 6.00.
24 --- Recess taken at 5.40 p.m.
25 --- On resuming at 6.02 p.m.
1 JUDGE ORIE: Yes. May the witness be escorted into the courtroom
3 Ms. Mahindaratne, please proceed.
4 MS. MAHINDARATNE: Thank you, Mr. President.
5 Q. Sir, if I may draw your attention to page 28 of your report. In
6 the first paragraph, you refer to 54 municipalities. I will read the
7 sentence to you. You say: "Thus it was said that more than one half of
8 Bosnia and Herzegovina, or to be exact, 54 municipalities would be
9 completely indisputable because they are more than 90 per cent ethnically
11 And then you go on to name a few municipalities. Sir, from where
12 did you obtain the information - and I'm referring to the data that 90 per
13 cent -- that in those municipalities, 90 per cent -- more than 90 per cent
14 was ethnically homogenous. What was your source of information?
15 A. This data I received in these additional papers that -- when they
16 were attached to Cutilheiro's plan.
17 Q. What papers are you referring to? Could you name them?
18 A. No. I have a vast series of published articles in newspapers. I
19 used to do press clippings, and it was from those articles, from those
20 papers, that I drew my data, all that was published in the press at the
21 time. Which municipality do you contest?
22 Q. Sir, have you ever had the opportunity to peruse the population
23 census issued by the state office for statistics of Bosnia-Herzegovina for
25 A. No, I have not.
1 Q. When you referred to statistics, especially in a report of this
2 nature, do you not verify the accuracy of them?
3 A. Well, you cannot check everything. Something has to be taken as
4 such if it is being published continuously and no one contests this so
5 occasionally I dabble in history. And then when you take -- sometimes
6 data is taken from other books without quoting the source. I am not
7 somebody who is dealing with statistics or with population, so that I
8 would have to always check the census from 1991 -- 1981 in order to check
9 the accuracy of the data. By this, what I stated here, I wanted to say
10 that there was a minority of municipalities where this issue of partition
11 would be contestable, while in the majority of municipalities it would be
12 incontestable. That was my idea, and I believe that by listing these
13 municipalities, I've shown this. It is possible that one municipality
14 I've listed here should not be there, but at least then you'll have to
15 tell me which one do you mean.
16 JUDGE ORIE: Yes, Mr. Piletta-Zanin.
17 MR. PILETTA-ZANIN: [Interpretation] Mr. President, one of the
18 interpretations - I don't know which one any more - was also speaking
19 about '71, census from '71 as well, apart from '81 and '91. When I say
20 "one of the interpretations," I don't know whether it was French or
22 JUDGE ORIE: Yes. I did understand that you referred to 1991.
23 MS. MAHINDARATNE: Yes, Mr. President.
24 JUDGE ORIE: Yes. Ms. Mahindaratne, would it not be far more
25 efficient to put to the witness where mistakes were made, if there were
2 MS. MAHINDARATNE: I'm about to do that, Mr. President.
3 JUDGE ORIE: And if it's just one, one could wonder whether that
4 would affect the line of the report in that respect.
5 MS. MAHINDARATNE: Yes, Mr. President. I'm about to do that.
6 May the witness be shown the population census for 1991.
7 Mr. President, I don't have -- I don't have an English translation, but
8 it's only for verification of statistics. I have sufficient copies.
9 JUDGE ORIE: Yes.
10 MR. PILETTA-ZANIN: [Interpretation] Mr. President, no, I was just
11 asking if there was a copy for General Galic.
12 JUDGE ORIE: Yes, there is, Mr. Piletta-Zanin.
13 MS. MAHINDARATNE:
14 Q. Sir, can you identify this document --
15 MS. MAHINDARATNE: May I proceed, Mr. President?
16 JUDGE ORIE: Yes, please proceed.
17 MS. MAHINDARATNE:
18 Q. Sir, could -- do you know what this document is, which was just
19 shown to you?
20 A. Yes, I do. It is a copy of the census population which was
21 published by the statistical -- statistics institution -- or state
22 institution for statistics of Bosnia-Herzegovina. That's what it says
24 Q. Would you please turn to page 14.
25 A. Yes.
1 Q. Where statistics for Banja Luka is contained.
2 A. Yes, I can see.
3 Q. In your report, you refer to Banja Luka as one of the
4 municipalities which has more than 90 per cent -- which is more than 90
5 per cent ethnically homogenous municipality. Would you please examine the
6 statistics in this document and state as to whether your conclusion in
7 your report is correct with regard to Banja Luka or not.
8 JUDGE ORIE: Mr. Piletta-Zanin.
9 MR. PILETTA-ZANIN: [Interpretation] Mr. President.
10 JUDGE ORIE: Yes.
11 MR. PILETTA-ZANIN: [Interpretation] Perhaps things are clear for
12 everyone, but it would be good if my learned colleague could read the
13 title of this page, to give us a translation, because there is no English
14 document. My learned colleague, could you please read exactly what it
15 actually says on the top of the page.
16 JUDGE ORIE: Could the -- Ms. Mahindaratne, could you please try
17 to read the -- at least the different categories which are mentioned.
18 "Muslimani" at least needs no translation, I take it is Muslims. "Srbi" I
19 take it is Serbian. "Hrvati" I take it is Croatian. "Jugosloveni" is I
20 take it are those people who say that they are Yugoslavs. And "Ostali"
21 could the interpreters please tell us what "Ostali" would be?
22 THE INTERPRETER: The rest. It means the rest. Others.
23 JUDGE ORIE: The rest. And then we have --
24 THE INTERPRETER: Others.
25 JUDGE ORIE: [Previous translation continues] ... Another category
1 which reads -- I'll spell it out, U-K-U-P-N-O. I don't know how to
2 pronounce it. What would that mean?
3 THE INTERPRETER: Total, Mr. President.
4 THE WITNESS: Total.
5 JUDGE ORIE: Yes. Please proceed.
6 MS. MAHINDARATNE:
7 Q. Sir, for Banja Luka the total population is 195.692, according to
8 the 1991 census. And the Muslim -- the population belonging to the Muslim
9 group is 28.558. Under the column referred to as Serb, it's 106.826. And
10 Croatian, 29.026. And it goes on further. So considering these
11 statistics, would you still maintain your position that this is a
12 homogenous municipality?
13 A. In my report, I said that in order to check the population census
14 from 1971, 1981, and from 1992, it is obvious that the Serbs here in this
15 municipality in Banja Luka have a large majority. And I'd also like to
16 point out to the data that there were 23.656 Yugoslavs. According to my
17 information, those who preferred to call themselves Yugoslavs were mostly
18 Serbs. Muslims didn't do this at all, least of all Croats. Of course
19 there were some people from mixed marriages. So yes, I admit that here
20 certainly there are not 90 per cent of Serbs, but you can see that this
21 figure is something that is far above the others. It's practically
22 two-thirds. And as such, it would be incontestable that it should be
23 Serbian municipality within this unit, which would be within
25 Q. Sir, would you please turn to page 19, which gives statistics for
1 Bosanska Dubica municipality, which is also a municipality included by you
2 in your report as being over 90 per cent ethnically homogenous. The total
3 population there is 31.606; the Muslim population is 6.440; the Serb
4 population is 21.728; the Croatian, 488; the Yugoslavian, 1.851; and
5 others, 1.099. Would you still maintain your position which is what you
6 asserted in your report, that this is a municipality which can be
7 considered as over 90 per cent homogenous?
8 A. Obviously here it's not 90 per cent. But as you can see, apart
9 from 21.728 Serbs, there are also 1.851 Yugoslavs, for whom you can assume
10 that later on they would declare themselves as being Serbs. So from the
11 point of view of this partition, this municipality was also uncontested.
12 So my data of 90 per cent wasn't quoted in order to show that this was
13 done according to the latest population census, but from the point of view
14 of that plan these municipalities would have been uncontested as to
15 whether they should belong to the Serb, Muslim, or the Croatian entity.
16 So it's only from that point of view that I'm talking about these
17 municipalities being uncontested. It was not my intention. I'm not a
18 person who's dealing with population policies -- population politics, but
19 that was not my intention.
20 Q. Sir, due to time restraint, I'll quickly take you through to your
21 other municipalities which you quoted in this manner incorrectly.
22 Bosanski Novi, at page 23, where the total population is 41.665; Muslim
23 population is 14.040; Serb population is 25.101; and so on.
24 Then on page 24.
25 A. Yes.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 Q. The municipality of Bosanski Petrovac. Likewise, total population
2 15.621; Muslim population, 3.288; Serb population 11.694; and the rest
3 you'll find the statistics there.
4 And if you please turn to page 99 you will see Stolac, total
5 population 18.681; Muslim population 8.101; Serb population 3.917; and
6 Croatian population 6.188. In fact, in that municipality, which is one of
7 the municipalities you cited as being over 90 per cent homogenous, the
8 Serb population is less than the other two ethnic factions.
9 So I put it to you, sir, you have with regard to five
10 municipalities which I've demonstrated here, there are certainly not over
11 90 per cent homogenous and you've incorrectly cited the statistics in your
12 report. What do you have to say to that?
13 A. First of all, I didn't say that Stolac should belong to the Serbs,
14 which is what you're imputing. But it's obvious that it should be Muslim.
15 Secondly, this list that I received, that was from the papers that
16 I got, where all the three sides agreed that these parties were
17 uncontested. That's why I've published this data. It was from the point
18 of view of the negotiating sides, Muslim, Serb, Croats, that these were
19 uncontested. And for the other municipalities, one would have to
20 negotiate to see how this should be resolved. So of course I'm not saying
21 that Stolac should belong to Serbs. God forbid. It should belong to the
23 Q. Sir, is it your position that you do not verify the accuracy of
24 data in your publications?
25 A. I'd like to say something, madam. Those of us who are dealing --
1 or working with science, we're trying to approach the truth. And Karl
2 Popper, that I quoted in my works is using an expression -- instead of the
3 truth, he's saying verisimilitude. Now, everything that we are trying to
4 achieve in our works, it's more or less approaching the truth, while the
5 truth itself is only in God's hands, so none of us is that perfect to be
6 able to acquire absolute truth. And of course, I thank you for the
7 criticism that you have demonstrated here.
8 Q. So you do agree then, sir, that your paper may contain many
9 inaccuracies due to, as you say, your inability to acquire absolute
11 A. Well, I wouldn't say that these are inaccuracies, but this is more
12 or less approaching the truth. And I have to say that I have done this
13 with full professional consciousness, that I have applied myself fully,
14 and I believe that I have achieved a good result. But it's up to the
15 Trial Chamber to decide. But such perfection that you demand for me, no
16 one else can achieve.
17 Q. Sir, would you please turn to page 22 of your report. And I refer
18 to paragraph 1, where you say, "It proved, however, that such predictions
19 were not even convincing enough for Izetbegovic himself, because only a
20 few days before this statement was made on October 14th, 1991, the
21 Assembly of Bosnia and Herzegovina with the participation only of the
22 representatives of the Muslim and the Croat nationality and without the
23 presence of the Serb nationality in parliament proclaimed the sovereignty
24 of the Republic of Bosnia-Herzegovina."
25 Sir, are you aware of the complete sequence of events that took
1 place -- although you refer to the date as the 14th of October, this is --
2 the correct date is the 15th of October. The sequence of events which
3 took place at the assembly sessions on the 15th October 1994 -- I beg your
4 pardon, 1991, which led to the declaration of sovereignty?
5 A. At a memorandum of the Republic of the Assembly of
6 Bosnia-Herzegovina on sovereignty, that is, on the independence of
7 Bosnia-Herzegovina was adopted on October the 14th, 1991. And for this
8 decision was voted by the SDA and the HDZ, there were 142 votes out of
9 240. That is the correct data.
10 Q. Sir, as -- I asked you whether you do know the full sequence of
11 events that took place on the -- at the assembly sessions of the 15th
12 October 1991, which led to the declaration of sovereignty. Isn't it the
13 case that once the assembly sessions were adjourned on 15th October 1991
14 by its president, Momcilo Krajisnik, the SDA and the HDZ delegates
15 reconvened and approved this declaration but before adjournment party
16 president Radovan Karadzic made a fiery speech suggesting that Muslims
17 might disappear as a nation if they insisted on the sovereign
18 declaration? Wasn't that the correct sequence of events?
19 A. Of course I can't remember every single detail, but I know for
20 certain that Momcilo Krajisnik, that is, he adjourned the session and then
21 I would say on their own initiative the deputies of the SDA and the HDZ
22 reconvened in order to pass this memorandum, and this was done, as I said,
23 with 142 out of -- in favour out of 240 votes. I also know the contents
24 of the speech made by Radovan Karadzic on that occasion. That was
1 Q. Sir, before 15th October 1991, before the declaration of
2 sovereignty, wasn't there a process referred to as regionalisation
3 employed by the SDS in operation, from April 1991, and it is due to many
4 such actions that the SDA and the HDZ ended up adopting the declaration of
5 sovereignty of 15th October 1991?
6 A. If you have listened to my answers to Defence questions carefully,
7 I have already explained it was precisely the HDZ in the so-called
8 Herceg-Bosna, which is West Herzegovina in fact, and Central Bosnia,
9 they've implemented the association of those municipalities where Croats
10 had a majority. And I had said that the then-constitution of
11 Bosnia-Herzegovina allowed for this. And I had already explained how the
12 Serbs did the same with those municipalities where they had a majority.
13 And I've also explained in detail, if you listened to me carefully, that
14 from the legal constitutional point of view this was not regionalisation.
15 Regionalisation is creation of a regional state, which is something in
16 between a federal system and a unified state. This was not
17 regionalisation in this sense.
18 Q. Sir, is it your position that the HDZ and the SDS both employed
19 this scheme at the same time, simultaneously? Is that your position?
20 A. I think even that the HDZ went ahead with this first. The Croats
21 did it. Because Croatian state was so much better organised and they
22 cared a lot more for their compatriots in Croatia than the Serbs did so in
23 Belgrade itself, so this is something that cannot be contested, that the
24 Croats had organised themselves in a timely fashion and had created the
25 association of their municipalities.
1 Q. Isn't it the SDS that started this process in April 1991 and the
2 HDZ started this process only in August 1991? Isn't that the case?
3 A. Well, it all depends which data you have at your disposal.
4 Otherwise, there's no doubt that this was done for the first time by Serbs
5 in Croatia, that is in the Knin Krajina. And there was a lot of pressure
6 for the Knin Krajina to get joined to the Bosnian Krajina, and the Serbian
7 Democratic Party which wanted to respect the constitution of
8 Bosnia-Herzegovina believed that from a legal constitutional point of view
9 it was not acceptable to have a municipality -- said municipality joining
10 which would then cross over that Bosnian-Herzegovinian border, so in this
11 sense the SDS was loyal to the constitution.
12 MS. MAHINDARATNE: I beg your pardon, Mr. President.
13 [Prosecution counsel confer]
14 MS. MAHINDARATNE:
15 Q. Sir, you stated that in examination-in-chief the Serbian
16 autonomous organisations were constitutional and could not be considered
17 as unconstitutional.
18 A. Yes.
19 Q. Are you aware, sir, that the constitutional court of
20 Bosnia-Herzegovina has found this scheme to be unconstitutional? Are you
21 aware of that decision?
22 A. No, I didn't follow that decision. But it wasn't just a matter of
23 the competence of the constitutional court of Bosnia and Herzegovina, but
24 it was also a matter of the competence of the federal constitutional
1 Q. Sir, I put it to you that in your report you have completely left
2 out the -- this particular process you spoke of - I used the term
3 regionalisation process - which you spoke of in examination-in-chief. In
4 your -- in part 3 of your report, which is the political history of the
5 conflict, you completely left this information out. What was the reason
6 for that?
7 A. Which information are you referring to? The decision of the
8 constitutional court?
9 Q. No. I'm referring to the regionalisation process employed by the
10 SDS during -- from April 1991 onwards. There is no reference whatsoever
11 to it.
12 A. Well, as you see, the main purpose of my work was to demonstrate
13 what the casus belli in Bosnia was. And I am claiming that the so-called
14 regionalisation that you have referred to - but I don't consider that to
15 be regionalisation - I don't consider this to have been the casus belli in
16 Bosnia, and I quite simply thought that this was irrelevant.
17 Q. Sir, in arriving at a conclusion on the casus belli, cause for
18 conflict, wasn't it incumbent upon you to examine all political
19 developments without being selective and to enumerate a relevant aspect of
20 the history of the conflict?
21 A. You're now making a request which one can't quite simply satisfy.
22 If you read books on history very carefully, for example, on very distant
23 events, you'll notice that each generation feels the need to reinterpret
24 history. For example, as far as the French Revolution is concerned, there
25 have been several interpretations and there will surely be even more. You
1 can't ask an author to be totally comprehensive and to take each piece of
2 information that you consider relevant into consideration. So that sea of
3 information, given that mass of data, each author, even if he doesn't
4 admit this, each author has to adopt a standard as to what is important.
5 And when he's selecting his material, he will follow this criteria. I was
6 expected to write a report, about 30 pages, and I did that to the best of
7 my ability and conscientiously. But to request -- to ask that report to
8 be totally complete, that's impossible. You certainly have other reports,
9 and you'll see that in each report certain objections can be raised.
10 That's, I suppose, one of the consequences of human imperfection.
11 JUDGE ORIE: Ms. Mahindaratne, could you look at the clock and --
12 MS. MAHINDARATNE: Mr. President, I'm about to finish.
13 JUDGE ORIE: Yes. Please do that, then.
14 MS. MAHINDARATNE:
15 Q. Sir, I put it to you that in making your case for casus belli you
16 presented diplomatic constitutional developments in a vacuum, omitting
17 crucial political developments on the ground. And therefore, I submit to
18 you, sir, that your report is selective, one-sided, and reflects your
19 political stance. What do you have to say to that?
20 A. I can only take note of that. But I would like to repeat that I
21 wrote my report as conscientiously as possible and to the best of my
22 ability. I stand behind it. I have always attempted to say what I
23 thought to be the truth.
24 MS. MAHINDARATNE: Just one more question, Mr. President.
25 [Prosecution counsel confer]
1 MS. MAHINDARATNE: That concludes cross-examination,
2 Mr. President.
3 JUDGE ORIE: Thank you, Ms. Mahindaratne.
4 Mr. Piletta-Zanin, is there any need to re-examine the expert?
5 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. But we
6 won't have any questions that have to do with the vacuum.
7 Re-examined by Mr. Piletta-Zanin:
8 Q. [Interpretation] Witness, a series of questions were put to you in
9 relation to the report that you have in front of you. So that is going to
10 be our starting point. That is the simplest way to proceed. Can you tell
11 us, since we don't have the document in English, can you tell us whether
12 this document that is supposed to express percentages, does this document
13 also deal with the issue of land property with regard to the communes and
14 the municipalities mentioned? Could you go through it, go through the
15 document and tell us about this.
16 A. I would just like to add that the people who drew up Cutilheiro's
17 plan had a census not only from the year 1991 that the Prosecutor has
18 referred to, but they also had censuses from 1971 and 1981, and there were
19 certainly differences in these censuses.
20 Q. I'll turn to that but --
21 A. But when you were talking about the cadastral office, cadastral
22 matters, it's certain that the Serbs were in possession of most of the
23 land. And as the cities didn't cover large surfaces and the surrounding
24 villages and suburban areas covered a far larger area, to that extent the
25 percentage of the territory owned was far greater.
1 Q. As a result, in Cutilheiro's plan, did they try and weigh up the
2 number of population and the extent of land property with regard to the
3 ethnic groups that the land belonged to?
4 A. Well, yes, of course. That was taken for granted. And it was
5 even taken for granted that some municipalities would be partitioned, so
6 some parts were to be separated in which the Serbians had a majority and
7 would be attached to the Serbian entity. It was certainly possible to do
8 that with other parts of other municipalities in which Croats or Muslims
9 were in the majority, not only in terms of the number of inhabitants but
10 also in terms of the property that they possessed.
11 Q. Thank you. But when weighing up these factors, Professor, this
12 doesn't -- this isn't something that comes out of this sole document; is
13 that correct?
14 A. No. It comes out of all three censuses. And the factors that I
15 have mentioned when talking about cadastral matters.
16 Q. Very well. And when you mention your percentage of 90 per cent,
17 your well-known per cent of 90 per cent, is this a percentage we should
18 take in a global sense, that is to say, after taking into consideration
19 these two factors, the number and property owned?
20 A. Yes. That is certainly the case, but I should add that all the
21 three sides in an attempt to show their citizens that this plan was a good
22 one, they presented themselves in the press -- this was published in the
23 press with such qualifications. So all three sides thought that these
24 municipalities which I have mentioned were municipalities which were not
25 in dispute, and this is for the reason which I have already mentioned.
1 Q. Thank you. Witness, this question directly concerns this study.
2 But first of all, I would like you to tell us the following: Do you know
3 whether in 1993 or even in 1992 the parties attempted to discuss other
4 plans, that is to say, to discuss the possibility of reaching a peace
6 A. Well, from the time that unfortunate war broke out --
7 MS. MAHINDARATNE: Mr. President, I object.
8 JUDGE ORIE: Ms. Mahindaratne.
9 MS. MAHINDARATNE: This doesn't arise from cross-examination.
10 JUDGE ORIE: Mr. Piletta-Zanin.
11 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President, I'll
12 gladly explain why this arises, but I have to ask our witness to leave the
13 courtroom, to avoid any difficulties.
14 JUDGE ORIE: [Previous interpretation continues] ... point at the
15 place where it derives from in the transcript so that we can see even
16 without the witness to leave the courtroom. But since he is on his way
17 already, he is quicker than Mr. Usher.
18 [The witness stands down]
19 JUDGE ORIE: Could you -- and if we could try to finish today,
20 then we should hurry up rather than slow down. Yes.
21 MR. PILETTA-ZANIN: [Interpretation] Mr. President, it's very
22 simple. I didn't want to do it in front of the witness. I couldn't do
24 If we have a look at this document, we can see that the date of
25 the document is 1993, and what is more it's December 1993. This is a
1 period during which obviously if one party is discussing a peace
2 agreement, this party is going to try and present reality in a manner that
3 is most favourable to it. That is to say, in historical terms we were
4 more present in a certain area than you were. And as these figures
5 reflect what carried out by one side, the authorities of Sarajevo, the
6 connection is the following one: These figures were provided certainly,
7 but not in favour of the Serbs. That's for sure. It's more likely that
8 they were in favour of the party that published these figures; that is to
9 say, the Muslim party, because they were going to be used in a discussion,
10 as part of a discussion, if there was to be a discussion. And this is
11 what I would like the witness to tell us about. And as the Prosecution
12 examined the witness at length about these figures and the percentages, I
13 think that we have the right to do this.
14 JUDGE ORIE: So what you wanted to ask the witness is whether he
15 has any reason to doubt the correctness of the figures. Is that what you
16 are -- I mean, that's what I would say derives from the examination -- the
17 cross-examination. The witness was presented with these figures, and now
18 you're telling us for what reason they might have been manipulated.
19 That's more or less what you tell us. Why not ask the witness whether he
20 has any specific reason to assume that these figures, whether he knows
21 anything about it and whether there's any reason for him not to accept
22 them because of their reliability. That's the issue you wanted to raise.
23 I'll allow you to put that question to the witness because that arises
24 from cross-examination. Not on whether the parties had all kind of other
25 thing, because that is already part of your explanation why the figures
1 are unreliable, and that's leading the question to an answer where the
2 question as such is perfectly admissible but not by suggesting the
4 Mr. Usher, could you please escort the witness into the
6 MR. IERACE: Mr. President, whilst that's taking place.
7 JUDGE ORIE: Yes.
8 MR. IERACE: Might I take advantage of this opportunity to request
9 a minute before we adjourn this evening to raise a matter very briefly in
10 relation to the next witness.
11 JUDGE ORIE: Yes.
12 MR. IERACE: Thank you.
13 JUDGE ORIE: Let's try to see whether we can finish with the
14 expert witness today.
15 [The witness entered court]
16 JUDGE ORIE: Please proceed, Mr. Piletta-Zanin.
17 MR. PILETTA-ZANIN: [Interpretation] Thank you.
18 Q. Witness, given what we were talking about a minute ago, do you
19 have any reason to doubt the absolute reliability of these figures which
20 were published by the authorities in Sarajevo at the end of 1993 -- 93?
21 A. All three sides in Sarajevo came out with this information to
22 persuade the citizens to accept the plan and to demonstrate that the
23 municipalities I have mentioned were not a problem of any kind. And
24 within that context, this information is very valid, especially if you
25 take into account the possession of land, land property relations. I
1 explained why this was the case.
2 JUDGE ORIE: [Previous interpretation continues] ... that was not
3 the question. The question was: You have been presented with a document
4 containing numbers by the Prosecution. Is there any reason to assume and
5 what would then be that reason to assume that they are not reliable?
6 THE WITNESS: [Interpretation] No, no. The figures in this
7 statistical report, they are correct for certain. What has been
8 photocopied and brought here, yes, that's accurate. There's no doubt
9 about that.
10 MR. PILETTA-ZANIN: [Interpretation]
11 Q. Thank you very much. Professor, when you say that what was
12 photocopied is correct, you want to say that the photocopy is correct or
13 do you want to say that the figures are correct? Which is not quite the
15 JUDGE ORIE: Mr. Piletta-Zanin, please proceed to your next
17 MR. PILETTA-ZANIN: [Interpretation] I'll move on to another
19 Q. Witness, I would now like to state -- to specify what you said a
20 minute ago with regard to Mr. Zoran Djindjic. You said that you were
21 the founder of his party, of the party that he leads now. And my question
22 is the following: First of all, which party is concerned, and is it a
23 nationalist party or even an extremist party?
24 A. Well, it's the democratic party in power now, which was founded in
25 November 1989. The idea arose in a circle of three men, Vojislav
1 Kostunica, Leon Cohen, and myself. At the time Vojislav Kostunica was
2 ill, Leon Cohen abandoned the project, and I with 13 other co-founders
3 among whom was Zoran Djindjic of course, established, founded that party
4 at the beginning of the 1990s. The first session was held and that's how
5 the party was founded.
6 Q. Thank you, but you still haven't answered my question. The
7 question was whether this party was a nationalist one, because sometimes
8 we find parties -- we come across parties that are democratic but they're
9 also nationalistic. So was it a nationalistic party or was it even an
10 extremist party?
11 A. When I used the word "nationalism" I think of patriotism. But one
12 of the founders of that party was Vladimir Gligorov, the son of Kiro
13 Gligorov, who was the president of Macedonia when it became independent.
14 So he was in terms of nationality a Macedonian, although he had declared
15 himself as a Yugoslav because he was married to a Montenegrin woman. So
16 as you can see, we were quite happy to have founders amongst us who were
17 not Serbs.
18 Q. Absolutist?
19 A. I don't know what that means -- what that expression means. It
20 was a democratic party. It was called a democratic party.
21 Q. Thank you. I'm going to move -- turn to one of your previous
22 answers with relation to prosecuting -- pursuing heretics. You mentioned
23 the author of the book and you spoke about testimony that was very
24 moving. Could you please provide us with more details about that. Have
25 you understood the question? Have you understood the question?
1 A. Well, I can't really find that page, but I know exactly what I
2 said. Vojislav Seselj came -- suffered because in Sarajevo he discovered
3 that a town, a party official plagiarised something. He copied his -- he
4 plagiarised his mentor Hamdija Pozderac and he then published this. And
5 as Miljus and Hamdija Pozderac were high party officials, they managed to
6 obtain Seselj's dismissal from the university. And as he did not remain
7 calm, he was taken to court for the opinions he held. And I think that he
8 spent three years in Zenica as a prisoner. Our committee for the defence
9 of freedom of speech thought that it was its duty to defend such a man,
10 and this is what we did.
11 Q. Thank you. We spoke about your -- I'll withdraw that and rephrase
13 You were told that you were close to -- this is the idea, that you
14 were close to nationalist circles. I'd like to ask you some questions
15 with regard to this series of questions put to you by the Prosecution.
16 And the first one is as follows: As far as Mr. Alija Izetbegovic is
17 concerned - at the time he was in prison and when you defended him - can
18 you tell us why he was imprisoned?
19 A. Alija Izetbegovic was convicted because of the Islamic
20 declaration. That has already been mentioned. He was convicted also
21 after -- immediately after the Second World War, and he served his
22 sentence and then he was arrested again and convicted. That was a large
23 group of people that we were aware of, and in Belgrade it was our opinion
24 that our beliefs and -- made it necessary for us to defend him because he
25 was in prison for the opinions he held, and we thought that being
1 convicted for the opinions that are held is not legitimate.
2 Q. Is it true to say that formally speaking Mr. Izetbegovic was
3 convicted for nationalist reasons?
4 A. Well, that was the interpretation of the court itself. The court
5 decided that his declaration was very dangerous for the relations, the
6 multi-ethnic relations in Bosnia-Herzegovina, and that's why he was
7 imprisoned. I never accepted such a decision rendered by the court.
8 MR. PILETTA-ZANIN: [Interpretation] [Previous interpretation
9 continues] ...
10 JUDGE ORIE: Yes. I would like to ask you to see whether we can
11 finish or not today, because you -- it seems that you think the Chamber
12 has not many questions, but -- please proceed.
13 MR. PILETTA-ZANIN: [Interpretation] No, it's clear. Thank you,
14 Mr. President.
15 [Trial Chamber confers]
16 JUDGE ORIE: Judge Nieto-Navia has a question for you.
17 Questioned by the Court:
18 JUDGE NIETO-NAVIA: Mr. Zimmerman later makes reference to an
19 article. The title is "US policy makers on Bosnia admit errors in
20 opposing partition in 1992." Did you read it?
21 A. As I said, it's the first time I've read this letter which was
22 published in the New York Times.
23 JUDGE NIETO-NAVIA: I wonder whether Ms. Mahindaratne has a copy
24 of this.
25 MS. MAHINDARATNE: No, Your Honour. I'm sorry, I don't have it
1 right now.
2 JUDGE NIETO-NAVIA: Thank you. No further questions.
3 [Trial Chamber confers]
4 JUDGE ORIE: Judge El Mahdi also has one or more questions for
6 JUDGE EL MAHDI: [Interpretation] Witness, it's just to clarify
7 something. When the Defence asked you a question, you said that -- you
8 said that what you wrote -- what you mentioned in your report about the
9 percentage -- about 90 per cent of Serbs who lived in certain localities,
10 you said that in your opinion they had a majority because of the Serbian
11 territory in these localities. But I didn't gain the impression from your
12 report that you took this factor into consideration. Could you clear this
13 matter up, please.
14 A. Well, thank you for that question. I was thinking of what all
15 three sides claimed, and I mentioned the municipalities which were not in
16 dispute. It's not a matter of the municipalities where the Serbs had a
17 majority, but also it is a matter of Croat and Muslim majorities. If you
18 take into consideration all the information from the census, from the
19 census of 1971, 1981, and 1991, and other information, including
20 information that had to do with land property. So all three sides made it
21 known, declared that these municipalities were not in dispute, and that
22 was the purpose of providing this piece of information.
23 JUDGE EL MAHDI: [Interpretation] Very well. But I'll quote you in
24 order to clarify matters. You said, and I'll quote you in English: [In
25 English] "54 municipalities would be completely indisputable because they
1 are more than 90 per cent ethnically homogenous." [Interpretation] And
2 this is why I fail to understand that you can state that 90 per cent of
3 them were ethnically homogenous and at the same time you say that you took
4 into consideration a factor that is not an ethnic factor, because ethnic
5 membership has to do with persons, but land, whether it's Serbian or
6 Muslim property, I -- when one speaks about a census and about percentage,
7 there is something that doesn't fit into the context, that is not
8 adequate. So I don't understand this.
9 A. I've already said that I didn't verify all the information from
10 all three censuses, but this is information that was published in the
11 press, and all three sides that participated in negotiation participated
12 in the presentation of this information, and it was not in dispute.
13 JUDGE EL MAHDI: [Interpretation] Very well. Thank you very much.
14 JUDGE ORIE: If you would just allow us a few more minute, then we
15 could perhaps conclude your testimony.
16 Professor Cavoski, could you tell me on the basis of what
17 research -- verifiable research so that we can look it up -- you have told
18 us that most of those who reported as Yugoslavs were actually Serbs in the
20 A. Well, the latest data confirms this. Well, I have to say I don't
21 know how much you know about this, that after 1945, as the Muslim
22 nationality was not recognised - and I state this in the report - they
23 were publicly asked to declare themselves as undeclared, or as Serbs and
24 Croats. And then some of them said they were Serbs and some said they
25 were Croats, and most of them then said they couldn't declare themselves.
1 And then later on, from the 1960s --
2 JUDGE ORIE: My question was: Where can I find the results of the
3 research that supports your position that those who reported as Yugoslavs
4 would actually be Serbs? So is there any research done, is there any
5 interview done with the specific purpose of this? I'm just trying to find
6 the source of your --
7 A. Yes. First of all, when we are talking about refugees from
8 Croatia and Bosnia-Herzegovina, among them there were many people who in
9 times of peace they declared themselves as being Yugoslav, and then they
10 felt they were Serbs and they left or fled Croatia and Bosnia-Herzegovina.
11 This year -- or I think it's this year, that was published -- the census
12 population, the population of the census in Serbia and Montenegro, but
13 primarily in Serbia. What was demonstrated, that the number of Yugoslavs
14 was reduced. And most of those are Serbs who would declare themselves
15 when we're speaking about Serbia. It is probably the case that if we
16 organised a population census in Bosnia and in Croatia that that category
17 of Yugoslavs would completely disappear. It is among the Serbs that there
18 is a tendency to declare themselves Yugoslavs because the Serbs had this
19 feeling of a dual identity. They were historically Serbs but they lived
20 in a country called Yugoslavia.
21 JUDGE ORIE: Let me again interrupt you. Your answer is I cannot
22 give you the research basis, and you deduce that from shifting numbers in
23 recent census. Is that a correct understanding of your answer?
24 A. Yes, that's correct.
25 JUDGE ORIE: My next question would be: You explained to us why
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 Mr. Zimmerman did write his letter to the American newspaper. You started
2 saying that we had no reliable information about the conversation
3 Mr. Zimmerman had with Mr. Izetbegovic. You told us that a final judgment
4 would need the information from the US state department. You also told us
5 that without this information, it would not be possible to draw firm
6 conclusions. Nevertheless, you drew firm conclusions in the absence of
7 this knowledge. I'm wondering how to reconcile your statement as that you
8 would need this information to finally draw conclusions and that you
9 yourself have drawn conclusions stating that this information is not
10 available to you.
11 A. I have already said that in 30 or 50 years these reports will be
12 published, unless this is asked for officially to be received beforehand.
13 This is what we conclude in our profession: You weigh up the pro and
14 contra and then you decide what is more probable. So there is a far
15 higher probability that precisely as I have outlined it in my report and
16 what I state to be rather than what Warren Zimmerman said. All those
17 people who were involved during that time not only believed but even said
18 that Alija Izetbegovic was swayed by Warren Zimmerman. He probably spoke
19 about it to his people and these people spoke on further, and that's how
20 it got to the press. And after all, those reporters who wrote are
21 certainly serious people. They wouldn't have done it without checking up
22 the facts. And of course Warren Zimmerman had to issue a denial.
23 JUDGE ORIE: I do understand that your opinion is based on the
24 probability that is the result of you weighing the incomplete --
25 unfortunately incomplete information.
1 A. No one can have complete information.
2 JUDGE ORIE: Yes. These were my questions to you.
3 This would then conclude your examination as an expert witness in
4 this court, Professor Cavoski. I'd like to thank you very much for coming
5 and having answered all the questions of the parties and the Bench and --
6 THE WITNESS: Thank you so much for your respect.
7 JUDGE ORIE: And I wish you a safe trip home again.
8 Yes. Mr. Usher, could you please escort Professor Cavoski out of
9 the courtroom.
10 Mr. Ierace, I'm looking at the interpreters whether they would
11 allow us -- you said one minute. I hope for one minute.
12 THE INTERPRETER: That's fine, Mr. President.
13 MR. IERACE: Thank you, Mr. President.
14 JUDGE ORIE: Please proceed.
15 MR. IERACE: It's important that the next witness, the sniping
16 expert, have with him the various documents with which he was briefed by
17 the Defence, either the actual documents he received or a copy of those
18 documents provided by the Defence. Thank you.
19 JUDGE ORIE: Mr. Piletta-Zanin, I understand this request as the
20 Prosecution seeks full transparency as to the sources of the next expert
21 witness to be called. May I take it that the Defence is aware that this
22 Chamber very much sticks to transparency that we'll be fully informed
23 about it if necessary?
24 MS. PILIPOVIC: [Interpretation] Yes, Your Honour.
25 JUDGE ORIE: Yes. We'll then adjourn until tomorrow morning in
1 Courtroom II, 9.00.
2 --- Whereupon the hearing adjourned at 7.09 p.m.,
3 to be reconvened on Friday, the 7th day of February
4 2003 at 9.00 a.m.