Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16599

1 Tuesday, 1 March 2005

2 [Open session]

3 [The witness entered court]

4 --- Upon commencing at 9.04 a.m.

5 [The accused entered court]

6 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, can you please

7 call the case.

8 THE REGISTRAR: [Interpretation] Thank you, Mr. President. Case

9 Number IT-01-47-T, the Prosecutor versus Enver Hadzihasanovic and Amir

10 Kubura.

11 JUDGE ANTONETTI: [Interpretation] Thank you.

12 Can we have the appearances for the Prosecution, please.

13 MR. MUNDIS: Thank you, Mr. President. Good morning, Your

14 Honours, counsel, and everyone in and around the courtroom. For the

15 Prosecution, Tecla Henry-Benjamin and Daryl Mundis, assisted today by our

16 intern, Lisa Hartog, and our case manager, Janet Stewart.

17 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Mundis.

18 Can we have the appearances for the Defence, please.

19 MS. RESIDOVIC: [Interpretation] Good morning, Mr. President, good

20 morning, Your Honours. On behalf of General Enver Hadzihasanovic, Edina

21 Residovic, counsel, and Stephane Bourgon, co-counsel. Thank you.

22 JUDGE ANTONETTI: [Interpretation] The other Defence team now.

23 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honours. On

24 behalf of Mr. Kubura, Rodney Dixon, Fahrudin Ibrisimovic, and Nermin

25 Mulalic, our legal assistant.

Page 16600

1 JUDGE ANTONETTI: [Interpretation] Thank you.

2 On the 1st of March, 2005, the 188th day of sitting, we bid good

3 morning to the witness, the professor, the representatives of the

4 Prosecution, all the Defence attorneys, the accused, General

5 Hadzihasanovic, General Kubura, and I bid good morning also to all the

6 personnel of this courtroom who are assisting us and all those outside the

7 courtroom.

8 Before giving the floor to the Prosecution who will begin the

9 cross-examination, I should like to ask the Defence about the documents.

10 In the expert report in the footnotes, a series of documents are

11 mentioned. However, in the summary table that you have provided there's

12 again a whole series of documents. For example, the first document in the

13 list, 350, is the constitution of the state of Bosnia and Herzegovina.

14 You provided yesterday a small binder, but in that small binder I

15 did not find the documents mentioned in the footnotes, nor the documents

16 in -- on this list. What do you intend to do subsequently regarding these

17 documents? At what point to you wish to tender them?

18 Mr. Bourgon.

19 MR. BOURGON: [Interpretation] Thank you, Mr. President. Good

20 morning, Madam Judge, good morning, Your Honour.

21 All these documents are part of three binders which have already

22 been provided to the Prosecution some time ago for them to be able to

23 prepare for the testimony of the expert. All these documents except the

24 two or three that I mentioned yesterday are documents appearing on the

25 list of Defence exhibits, and once the testimony of the expert has been

Page 16601

1 completed we intend to ask for the admission of these documents into

2 evidence.

3 As for the footnotes, you will notice that the majority of the

4 documents mentioned have already been admitted into evidence because they

5 are DH exhibit whereas others have a number. The footnote on page 3

6 refers to document 19 -- no, no, a footnote on page 2 refers to a document

7 that is called 1629, Defence Exhibit 1629. This is a new document and we

8 will ask to tender this document into evidence as soon as the testimony of

9 the professor has been completed.

10 If the Chamber wishes to have copies of these documents to put

11 questions to the witness, we do have copies that we can provide. The

12 witness has copies and the Prosecution and each of those documents had

13 been pressed on the ELMO during the testimony of this witness.

14 Thank you, Mr. President.

15 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Bourgon, for this

16 explanation. Our understanding is that at the end of the hearing you will

17 be asking to tender the documents mentioned in the footnotes as well as

18 those on the list of documents which were disclosed to the Prosecution,

19 and I have the numbers from 350, the last one being 465.

20 I shall now give the floor to Madam Benjamin.

21 MS. HENRY-BENJAMIN: Good morning, Mr. President, good morning,

22 Your Honours, good morning to everybody.


24 [Witness answered through interpreter]

25 Cross-examined by Ms. Henry-Benjamin:

Page 16602

1 Q. Professor Trnka, good morning. My name is Tecla Henry-Benjamin,

2 and along with me is my colleague Mr. Daryl Mundis, assisted by our case

3 manager and intern, and we represent the Prosecution. Your

4 examination-in-chief yesterday was very detailed and strictly to the point

5 with respect to the expert report for which you are here today and for

6 which was tendered in evidence. And as such I have a few questions with

7 respect to clarification on what you said yesterday. If at any time

8 during the examination you do not understand what I'm saying or you wish

9 me to rephrase the question for any reason, feel free to do so and I will

10 certainly oblige.

11 Sir, my understanding is that you -- because of your

12 qualifications and academic background and experience in the

13 constitutional law you were requested to prepare an expert report for the

14 Trial Chamber. But my further understanding is that you -- because of

15 your non-academic background and lack of experience in military law and

16 criminal law you do not qualify or see yourself as an expert in these two

17 disciplines of the law. Am I correct?

18 A. Correct. Your Honour, Mr. President, Your Honours, Madam

19 Benjamin, good morning.

20 Thank you for your question. I said yesterday that I do have a

21 degree in law but my specialty is constitutional law. So I delved deeper

22 into the problems of criminal responsibility and regulations within

23 criminal law, and I also consulted regulations linked to internal

24 relations and responsibilities in the army of the Republic of Bosnia and

25 Herzegovina for this purpose. I think that my general knowledge in law

Page 16603

1 and legal qualifications do allow me to give an opinion about these

2 matters, though I of course prefer constitutional law. In any event,

3 principles of criminal law in most democratic systems are a part of

4 constitutional law.

5 Q. Thank you, Professor. And I ask you the question to say this or

6 to inquire from you that any opinion offered in the two areas, i.e.,

7 criminal law and military law, would be limited to the interpretations of

8 the regulations on the law as you see fit and not as an expert. Am I

9 correct?

10 A. I think you are not. I don't know what you mean by inclination.

11 I am speaking from the point of view of theory and practice of

12 constitutional law and the elements of constitutional law that are applied

13 in criminal law and the law in the armed forces, in this case of the

14 Yugoslav army. So I think I can speak about those relationships with some

15 conviction, but of course it is up to the Court to decide whether I am

16 right or not.

17 Q. For example, you would not be able to assist the Trial Chamber

18 specifically with the military commands and the chains of the military

19 commands, would you?

20 A. Of course I didn't go into the details of the relationships within

21 the army; that is not my immediate specialty. But the chain of command is

22 actually what starts with the civilian control of the armed forces and, as

23 we have shown in a number of charts, we see a clear vertical line going

24 from the Presidency to each individual commander at various levels. Of

25 course certain purely military matters are those for which I do not

Page 16604

1 consider myself competent.

2 Q. Thank you, Professor. Let us begin with the conflict itself.

3 What would in your opinion be the overriding factor for the cause of the

4 conflict in Bosnia and Herzegovina in 1992 and 1993?

5 A. Allow me, Madam Prosecutor, to remind you of my testimony

6 yesterday in which I said that in order to understand the situation in the

7 territory of the former Yugoslavia and therefore in Bosnia and Herzegovina

8 as well, one should bear in mind that there were two major processes that

9 occurred within a short period of time and which are of great historical

10 significance. You will remember that I mentioned the breakup of the

11 former socialist or communist system of the Soviet Union and Eastern

12 Europe, a part of which was the Socialist Federative Republic of

13 Yugoslavia, as the name itself indicates, and secondly, the breakup of the

14 country itself, at first into four plus one entities; that is, Slovenia,

15 Croatia, Bosnia and Herzegovina, and Macedonia on the one hand, and Serbia

16 and Montenegro on the other. The breakup of a country of this kind should

17 be seen within the context of the events in the former Yugoslavia and

18 particularly the year 1974 when there was greater emphasis on the

19 independence and statehood of the republics.

20 Also one should bear in mind various concepts that were at play in

21 the territory of former Yugoslavia, and the nationalist forces -- and here

22 I wish to stress the difference between national and nationalist, because

23 national indicates the assertion of cultural, linguistic, and other

24 characteristic of an ethnic group, whereas nationalism actually means the

25 abuse of national feelings and affiliation with a particular ethnic group

Page 16605

1 to achieve goals at the expense of other peoples and other individuals.

2 That is why I wish to point out that already in the former Yugoslavia such

3 nationalist aspirations were developing endeavouring to impose the concept

4 of one -- a single nation state. There were attempts for the members of

5 one ethnic group to live in one state. This is a purely nationalistic

6 idea which has nothing in common with the democratic concept of a nation

7 and a civil state, but it was of great relevance in the period of the

8 breakup of the former Yugoslavia. The protagonists of this idea felt that

9 this international context as well as the domestic context provided a

10 chance for the fulfilment of those nationalist aspirations.

11 One should not forget that most of the members of the Serb people

12 were living and still live in the Republic of Serbia, whereas a certain

13 portion were in Bosnia and Herzegovina, about 32.3 per cent of the

14 population were of Serb ethnicity in Bosnia and Herzegovina. And also,

15 the vast majority of the Croatian population lives in the Republic of

16 Croatia and 17.6 per cent of the population of Bosnia and Herzegovina are

17 of Croat ethnicity. And these mother national states, if I can call them

18 that, and the nationalist ideologies and their leaders and protagonists

19 felt that this was an opportunity to motivate their compatriots in Bosnia

20 and Herzegovina to fulfil the idea that I mentioned a moment ago.

21 If one has in mind the fact that in the former Yugoslavia, as I

22 said yesterday, the military structure was highly centralised and the

23 single party that was in power was also centralised with a certain degree

24 of autonomy reflected in the existence of central committees in the

25 republics, but the principle of democratic centralism applied and

Page 16606

1 therefore decisions had to be implemented from the top down.

2 In the meantime and due to other circumstances that we don't have

3 time to go into, the ethnic composition of the command personnel of the

4 former Yugoslav army was dominated increasingly by Serbs. The regime in

5 Belgrade in power at the time counted on this, and I think that these two

6 elements provide the main causes of the conflict that broke out in the

7 territory of the former Yugoslavia. However, one should not bear in mind

8 that with the collapse of the communist system factors of stabilisation

9 could be provided by elements of a civic society, which unfortunately had

10 still not been constituted. And I indicated yesterday some of the key

11 changes that occurred in 1990 and which were meant to lay the foundations

12 of a civic democracy, but this was still far from being achieved. And

13 through human rights this would have had an integrating effect throughout

14 the territory of the former Yugoslavia as we see in other democratic

15 states.

16 I hope I have managed in very brief lines to give you an answer.

17 Of course I am at your disposal for any further clarifications.

18 Q. Thank you very much, and you were indeed. Would you say that the

19 failure of the plans, the Vance-Owen Plan, intensified the conflict?

20 A. Yes, I can say with certainty that that is so; in fact, support

21 this.

22 The failure of both the Vance-Owen and the Vance-Stoltenberg Plan

23 intensified the military conflict. The political situation was totally

24 unclear. No other solutions were in the offing, and the armed forces were

25 endeavouring to gain control of as much territory as possible so as to

Page 16607

1 have a better position for any further negotiations. I pointed out in my

2 expert report that unfortunately this national component was given

3 priority, and there was always reference to provinces with a majority

4 population.

5 And the Owen-Stoltenberg Plan favoured the ethnic principle and

6 proposed the formation of three national republics. It is quite clear in

7 view of the situation in Bosnia and Herzegovina where the population in

8 the ethnic sense is intermingled throughout the territory, the formation

9 of such small ethnic statelets would actually encourage endeavours for the

10 majority population to get rid of the minorities. Of course this would

11 lead to greater intensity of conflict and that is what happened. In fact,

12 the basis of the peace plan for Bosnia and Herzegovina which was

13 eventually adopted was the Washington Agreement, which is not included in

14 the time period covered by this case, when in 1994 the federation as a

15 part of Bosnia and Herzegovina is no longer described as a country

16 composed of ethnic cantons. On the contrary, ten equal cantons constitute

17 the federation, and not one of them can have any ethnic characteristics

18 nor may the name have any ethnic implications. With the introduction of

19 the body of human rights corresponding to higher standards, in my opinion

20 this created the preconditions conducive to a final peace settlement,

21 which in fact happened in December 1995 when the war ended and peace was

22 established through the Dayton Accords.

23 Q. Professor, could you state why in your opinion the Washington

24 Agreement was such a good thing for Bosnia and Herzegovina?

25 A. I didn't say it was good. It provided only a partial solution to

Page 16608

1 the situation in Bosnia and Herzegovina. Surely you have noticed a

2 provision of the constitution of the federation and of the Washington

3 Agreement, which stipulates that the federation is formed on the territory

4 of Bosnia and Herzegovina where the majority of the population are

5 Bosniaks and Croats, whereas for the rest of the territory of Bosnia and

6 Herzegovina solutions would be sought in the future, or words to that

7 effect.

8 So this was laying the foundations for the future order. And if I

9 go further you will see that the constitution of Bosnia and Herzegovina

10 which is part of the peace agreement of 1995 which stipulates that Bosnia

11 and Herzegovina is a state in which there are three equal constituent

12 nations and in which the rights of all other peoples and citizens of

13 Bosnia and Herzegovina are guaranteed. As a consequence of this

14 provision, all exclusive national characteristics of entities are

15 excluded. So the federation could not be called as some people called it

16 the Croat-Bosniak federation, which has no basis in the Washington

17 Agreement and especially not in the constitution, nor can Republika Srpska

18 be considered an exclusive entity of one ethnic group. Because, as you

19 probably know, the constitutional court provided additional interpretation

20 of the constitution of Bosnia and Herzegovina, saying that both entities

21 have to be formed in such a way that the equality of all ethnic groups and

22 other citizens should be guaranteed in both.

23 Let us recall Annex 7 which refers to the return of refugees and

24 displaced persons, reflected efforts to eliminate the results of ethnic

25 cleansing and to try without any illusions of being able to do everything,

Page 16609

1 to try to reconstruct the ethnic composition of Bosnia and Herzegovina,

2 such as it existed according to the 1991 census. We are now witnesses of

3 that process, and I am mentioning it only for you to understand the

4 tendencies and the key reasons for those let us call them successful peace

5 agreements, though I as a theoretician but also someone practicing

6 constitutional law could find many shortcomings in both the Washington

7 Agreement and the Dayton Accord.

8 Q. Thank you. Now, in your report you discuss the complexities of

9 the functioning of the civilian authority and the military authority

10 during wartime. And particularly, in paragraph 124 of your report at

11 page 50 you said that: "Because of conditions of a state of war there are

12 inherent complexities in the establishment and function of civilian

13 authority and also to the structure of the ABiH, specifically the

14 3rd Corps."

15 Professor, could you explain this perhaps by way of an

16 illustration or example?

17 A. Well, if you can remember yesterday when I used a chart to show

18 the structure, the way in which the military and civilian authorities

19 functioned in, for example, Travnik municipality, you may have noticed

20 that in that very small area there were military structures that

21 functioned. There were the civilian authorities, and in parallel to the

22 civilian authorities that had territorial jurisdiction there was a very

23 developed structure of so-called displaced organs that were present there.

24 So, for example, in the entire area of Banja Luka, this area had

25 direct contact, personal contact, with the citizens who had fled from the

Page 16610

1 combat and had arrived in territory of Travnik municipality, or rather in

2 the territory of Central Bosnia. Bodies of power were formed there. And

3 if you remember, we mentioned the entire structure of the civilian and

4 military organisation of the HVO. If you bear in mind the fact that

5 together with these bodies of power there were religious communities that

6 have been displaced and that were in function and that there were

7 certain -- or various social organisations, international organisations,

8 that were also functioning, you will realise the complexity of the

9 situation within a context of incessant fighting, within the context of

10 various conflicts. So without a doubt, this shows how delicate the

11 situation for the civilian and military authorities was.

12 We must also bear in mind that at the time of the conflict of the

13 ABiH and the HVO there were no points, no common points between these

14 institutions. The HVO and the ABiH, if we take them outside and plan as

15 an example, were supposed to act jointly in the territory of Bosnia and

16 Herzegovina, but this was not the case. Institutions continued to be

17 split, and the army had control over some of them and the HVO control over

18 of others. And the army of the Bosnian Serbs was incessantly active as

19 far as I know through the media on Vlasic and elsewhere because they were

20 in the immediate vicinity. So altogether, this points to the fact that

21 the situation was extremely delicate.

22 Q. Would you agree with me if I were to say that at all times during

23 the conflict, and particularly in the period of the indictment that we are

24 speaking about, that there was cooperation between the civilian and

25 military structures at all levels? Would you agree that there was

Page 16611

1 cooperation between the two bodies?

2 A. Unfortunately I have to be precise when answering your question as

3 to whether there was such cooperation or not, referring to factual

4 situation. I'm testifying as an expert on the system, and I'm testifying

5 about how things should have functioned according to the system.

6 Yesterday I tried to explain the vertical structure within the

7 civilian authorities and the vertical structure within the military

8 authorities. The system made it possible for there to be mutual

9 cooperation at certain levels. Let's bear in mind the position of the

10 security services centres for the Territorial Defence staffs at regional

11 and local level. And it was their duty to provide information to the

12 local authorities on matters of their responsibility, but they could not

13 receive orders. The idea that such organs should be engaged was something

14 that had to be authorised to the central authorities in Sarajevo. And if

15 the centre in Sarajevo accepted such proposal, then through its chain of

16 command or in another way it would forward the relevant information to the

17 local organs, forward authorisation to the local organs. So I have no

18 records, according to which this took place everywhere. You would really

19 need to have the relevant material to be able to express a precise opinion

20 on the matter. I am testifying about the way in which the system

21 functioned.

22 Q. And with respect to the way in which the system functions,

23 certainly in peacetime it functioned much differently than in wartime?

24 A. Well, naturally. And this is something that we discussed

25 yesterday and it's something that I have discussed at length in my report.

Page 16612

1 Throughout the world when a state finds itself in exceptional

2 circumstances, when there is a war. Because you know there is a

3 theoretical difference between emergencies situations and imminent threat

4 of war and a state of war. When a state, a society, finds itself in such

5 a situation then the entire society, the entire state, restructures itself

6 in order to mobilise all the men and all the resources for the defence of

7 the country which is its primary task at such a point in time. We also

8 mentioned what happened to the civilian authorities in such cases and

9 above all what would happen to the parliaments which weren't adapted for

10 wartime conditions. And the executive authorities in the case of Bosnia

11 and Herzegovina were in the hands of the Presidency in an enlarged

12 formation, and it would take important decisions and have the possibility

13 of amending the constitution, and this is that the Presidency did on a

14 number of occasions in the course of the war. So, objectively speaking,

15 the situation is different when the authorities have to operate in wartime

16 and when they have to operate in peacetime.

17 We should also add that communications with the central

18 institutions of power are more difficult and often interrupted, and this

19 means that within such a system it was necessary to take into account the

20 possibility of such situations. As a result, sometimes -- I have already

21 provided you with an example concerning the minister of justice, my

22 predecessor, who authorised the regional organs to issue certain

23 regulations so -- which the Ministry of Justice of Bosnia and Herzegovina

24 would usually have issued. Naturally he asked them to confer with him

25 about the document beforehand and to provide information on adopting it.

Page 16613












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 16614

1 But the real and territorial jurisdiction of the judicial authorities was

2 also adapted, amended. There were displaced institutions within the

3 region of Banja Luka, and this is not something that would usually happen.

4 You wouldn't have a court of the Banja Luka region or a military court of

5 the Banja Luka region or a regular court which operated in Travnik. So

6 the limits were also moved in -- as far as the real jurisdiction of courts

7 were concerned. Sometimes the lower courts were authorised to deal with

8 matters that higher courts would usually deal with. But these were

9 wartime conditions and all the legal documents that were adopted in

10 exceptional circumstances were subsequently to be ratified. And one

11 attempted to make the wartime situation more regular and more in line with

12 the sort of situation that would have prevailed in peacetime.

13 Q. And as a follow-up to what you've just said, isn't it a fact that

14 during wartime that all armies, not only the ABiH, operated under or

15 operate under extremely difficult situations? Isn't that common to all

16 armies during wartime?

17 A. Well, without a doubt there is certain restrictions, certain

18 limits, that are a result of the situation. But I think that this shows

19 the extent to which the authorities attempt to preserve a legal system in

20 such exceptional circumstances. I believe that this is a very important

21 element when assessing whether someone gave up applying legal provisions

22 in wartime because the circumstances were exceptional. I think that if

23 there are exceptional circumstances and one attempts to implement the

24 regulations that must be implemented, this is positive.

25 Yesterday I said - and this is in the report - I said that as far

Page 16615

1 as the special military courts are concerned, you don't have such courts

2 in peacetime. But given a wartime situation, it is not possible to

3 tolerate certain excesses, incidents or excesses carried out against

4 troops. But I think most armies throughout the world do provide for the

5 possibility of such an institution in wartime.

6 Q. Thank you, Professor. As an expert and also being in the position

7 yourself as Minister of Justice, can you explain or elaborate on the role

8 the government played in the war, in particular the conflict in 1992 in

9 conjunction with the army.

10 A. As far as the government is concerned and its relation to the

11 army, the government in fact had no influence on the army. If we don't

12 take into consideration the fact that the Ministry of Justice is also part

13 of the -- the Ministry of Defence is also part of the government. This is

14 something that I have addressed in my report at greater length, but the

15 civilian command structure from the Presidency went through the Ministry

16 of Defence. But at that point it would branch off in two directions.

17 Most of the duties that concerned the military went through the supreme

18 command staff by this vertical line I have mentioned. If it was necessary

19 to support military actions, this should be done through the Minister of

20 Defence who embodied the civilian role in relation to the army. We should

21 remember they had the responsibilities such as mobilisation, keeping

22 military records, training, taking care of the population, et cetera, and

23 this did not involve direct military engagement.

24 In the report I believe that you have noticed that when I

25 mentioned the responsibilities of the Presidency, its responsibilities

Page 16616

1 controlled the armed forces, then these ten items were the responsibility

2 of the Presidency alone. But the item that states that are other matters

3 that the Presidency is responsible for when it comes to civilian

4 commanding, it is also stated that the Presidency can render a special

5 decision and to make the Minister of Defence responsible for certain

6 issues. So the Minister of Defence is member of the government but within

7 the ministry he mostly deals with the civilian issues.

8 So there is something else one should bear in mind. The

9 government had a fairly close relation, and this relation was important, a

10 close relation with the civilian protection staff. The government then

11 had the possibility of intervening in the affairs of the civilian organs

12 and the local organs of power. They could prevent them from carrying out

13 certain -- or implementing certain documents. They could ask for the

14 constitutional court to render a decision on whether a certain act --

15 certain documents were in accordance with the constitution. And as far as

16 other documents are concerned, there could be replacements. And I said

17 that given that the order had been disturbed at the regional level, it was

18 even possible for them to appoint a commission of their own who would be

19 responsible for matters in a given region.

20 So the government was mainly involved in implementing Presidency

21 documents in wartime conditions because the Presidency functioned as the

22 assembly, and these were documents that related to the organisation and

23 functioning of civilian authorities.

24 Q. In your testimony yesterday in elaborating on the report, you

25 indicated that there could -- there is a possibility or there could have

Page 16617

1 been a possibility that at the lower level the cases -- of cases where the

2 civilian organs interfered in the jurisdiction of the military units. And

3 I believe you said included the AOR of the 3rd Corps and it's in the

4 report as well.

5 Now, your function basically - and you keep repeating - is to

6 inform the Trial Chamber as to what happens in principle, but certainly

7 you couldn't tell us what happens in reality. So could you elaborate for

8 me on this aspect for the sake of clarification because why would you say

9 that there were cases where the local civilian organs were found

10 interfering in the jurisdiction of the military units, because that is not

11 what would have happened in principle, if I understand you?

12 A. I'll go back to my approach to the entire report. I've been

13 testifying about the system in place for both sides, but given the

14 documents that were placed at my disposal I came across a few rare cases

15 in those documents. This doesn't mean that I know what the situation in

16 the field was, but I came across some documents that showed that in

17 exceptional -- in rare circumstances, the civilian organs would interfere

18 with the jurisdiction of the military authorities. I also came across a

19 number of cases in which you could mention a sort of borderline relation

20 between the civilian and military authorities. I mentioned the documents

21 I had in mind; I referred to them at the end of my report. In such cases,

22 there was a clear distinction made between the area for which the military

23 and the civilian authorities were responsible. Let's remember the

24 authority of the civilian and military police and joint orders for joint

25 action in the field, and it was clearly stated or the duties of each force

Page 16618

1 were clearly stated.

2 I also mentioned on the basis of what I had before me that there

3 were cases in which the Executive Board of the Bugojno municipality

4 issued, and I'd call them, instructions of some kind to the misdemeanours

5 court, instructions with regard to penalties and a request was made for

6 more severe penalties; and on the other hand, they even brought into

7 question some of the acts of the court. For example, confirmation of

8 contracts that the courts had carried out. And the organ of the civilian

9 local authorities made -- requested that these contracts not be approved,

10 requested that they be controlled by the organs of the executive power.

11 So these are certain cases. I don't have any other records before

12 me, and in order to assess this issue it would be necessary to review

13 voluminous material that concerned the military and the civilian

14 authorities. I think I have tried to explain how this system functioned.

15 Q. And if I understand, and I think I did, it means that you deviated

16 a little bit from your task, you went more into the factual approach there

17 than into principle. Am I correct?

18 A. You're not correct when you say that I went more into the factual

19 approach. I was far more concerned with the way the things functioned in

20 the system. But I mentioned these individual cases to show whether there

21 were cases in which the constitutional system was respected or whether

22 there were any violations of this system. I never wanted to adopt the

23 position of a factual witness. I mentioned these cases because they

24 illustrate an assessment I made in my report. Perhaps one could have said

25 that in certain cases the system or the order that was in place was not

Page 16619

1 always respected.

2 Q. And would you have come across the reverse when perusing

3 documents? Would you have come across where the ABiH 3rd Corps would have

4 done the reverse?

5 A. I didn't come across anything that would confirm such a -- the

6 existence of such a situation. I believe that in one document, but I

7 don't think it was a 3rd Corps document, perhaps it was from the Main

8 Staff, I remember one document that says that the organs of internal

9 affairs should be more involved in fighting crime. I didn't quote that

10 because I think that that would have involved a conclusion rather than an

11 order because the entire sentence doesn't indicate that it's an order or

12 an attempt to establish a relation of subordination. Naturally, we should

13 bear in mind the fact that when the Presidency itself decides that the

14 armed police force should be involved in army tasks, then the army has a

15 legitimate authority of such a police contingent.

16 Q. Thanks, Professor.

17 Professor, I believe you would agree with me when I say that in

18 theory or in principle there might not have been any influence, but what

19 happens in practice could be an entirely different affair. And could you

20 assist us, if it's possible, as to the other side of the coin, as to if

21 there's a possibility that the principle could not be adhered to in

22 wartimes, for whatever reasons.

23 A. Unfortunately I didn't come across any such document. No such

24 document was placed at my disposal. I can't claim that this never

25 occurred; I really don't know. But on the basis of what I had before me,

Page 16620

1 I didn't come across any examples of such traumatic interference, apart

2 from the fact that I have -- apart from the case that I just mentioned. I

3 never came across such examples. So I have the impression that the

4 civilian authorities, in spite of all the difficulties they encountered,

5 maintained their position, the position they had according to the -- in

6 the constitution and they acted legally. I never had the impression that

7 the army tried to take over control of the territory, whereas the civilian

8 authorities should have had such control. I didn't have the impression

9 that the military tried to carry out some sort of a coup d'etat or take

10 over control of the entire territory. That wouldn't have been in

11 accordance with the constitutional order.

12 You must bear in mind that while the authorities were in power,

13 and especially during the period that the relevant to this case, the war

14 in our country was very well-documented, I would say. Many international

15 institutions monitored the war. There were the European Monitors, there

16 was the institute for the protection of human rights, et cetera. And in

17 this case and in other cases, I didn't gain the impression that any of

18 these international monitors mentioned would have referred to -- since I

19 was involved in those negotiations as part of the Presidency of Bosnia and

20 Herzegovina team, I was responsible for constitutional affairs. As such,

21 I wanted the situation to be clear with regard to the -- I wanted the

22 situation to be clear for the international community. I wanted them to

23 realise that the army wasn't trying to influence the civilian authorities.

24 If a commander had tried to exert such an influence and if I had any

25 documents about this, I would have certainly interpreted the document in

Page 16621

1 an adequate way.

2 Q. Professor, at no time at all did it occur to you or did you feel

3 that you should have done research on the other side as well to complete

4 the whole picture, to compare and contrast what happens in principle in

5 peacetime and what happens in principle in wartime so as to give a

6 complete picture. Don't you think that something is missing so that we

7 could get -- or so that history would have been afforded the privilege of

8 seeing the whole picture?

9 A. My assignment, according to the request of the Defence, was to

10 write a report on the functioning of the system, how it was designed and

11 how it was implemented. Now, whether all the elements and activities at

12 all levels differed would require enormous -- an enormous amount of

13 research for me to draw any conclusions. But in the opposite sense, too,

14 when civilian authorities influence military structures, I don't have any

15 records of that. I mentioned only three cases that I had at hand.

16 It was not my understanding that I was expected to go to the very

17 end, but I agree with you that for a complete report for a very serious

18 research project, to see whether it -- everything functioned like that in

19 each and every detail, I assume through other witnesses and other

20 documents you will be able to gain some insight there, but I did not

21 understand that that was my assignment.

22 My assignment was, in my understanding, a description of the

23 system of authority in Bosnia and Herzegovina as a whole, and that is why

24 the report is mostly devoted to this general issue and then also its

25 application in the area of responsibility of the 3rd Corps. And when you

Page 16622

1 look at the document as such, you will see that the latter part is quite

2 small. First of all, I didn't have the necessary documents; and secondly,

3 it was not my understanding that I was expected to go into that matter in

4 such great detail.

5 Q. Yes, I have to agree with you that I did observe that what I

6 thought was the most important aspect was indeed very small, and hence my

7 limitations here. I wish to touch on the area of the districts, and I

8 would like you to elaborate for us. How did the division of districts

9 impact on the 3rd Corps operation?

10 A. We have spoken of the reasons behind the formation of the

11 district. And we see that the structure of the districts overlapped with

12 the area of responsibility of the 3rd Corps. I mentioned this in my

13 report.

14 In the area of responsibility of the 3rd Corps there were 24

15 municipalities, and 12 of those or half of the total were de facto under

16 the control of Republika Srpska and the army of the Bosnian Serbs. Out of

17 the remaining 12, most were fully de facto controlled by the

18 Croatian Defence Council. True in a certain number of municipalities -

19 and you can see this in the report - there was exclusive control of the

20 army. And there were also some municipalities in which both the army and

21 the HVO were active, which of course means that the 3rd Corps was

22 operating under rather complicated conditions. Also from the standpoint

23 of cooperation with the civilian authorities when that was necessary,

24 because they had to confront an area under the occupation of the Bosnian

25 Serbs, a part under the HVO, and a third part with shared jurisdiction,

Page 16623

1 which was further complicated when the conflict broke out between the BH

2 army and the HVO.

3 So that the structure of the districts, in my opinion, did have

4 some impact, especially as at the beginning. There was seven districts

5 and later they were re-organised to form ten, so that some municipalities

6 from other districts like Kupres and some others came within the area of

7 responsibility of the 3rd Corps. So the structure of the civilian

8 authorities and the territorial organisation of the army did not coincide,

9 and I assume that this was a cause of difficulty for the people in charge

10 of military units.

11 Q. But won't this be the same for all the armies in all the areas?

12 Isn't this not anything specific to the 3rd Corps? Each individual army

13 would have had their own complications. Am I correct?

14 A. It's hard to say either way. I'm not familiar with the situation

15 with other armies, but as I was working on this expert report regarding

16 the constitution of Republika Srpska, the area in which the Army of

17 Republika Srpska was active you had a rather simple civilian structure:

18 Organs of Republika Srpska and municipal organs that were active in that

19 area. And as a rule - and I didn't find this in their material - they did

20 not have those dislocated institutions. So that with a great deal of

21 reservation with respect to other armies, in view of all the complications

22 I have referred to, I could not take this into account.

23 Q. But you did say in the report and in that area that basically

24 they -- the system was functioning relatively well for wartime, that there

25 was that communication between civilian authorities and military and that

Page 16624

1 basically, except for few exceptions, blockades, things like that,

2 basically things were progressing as should have been in principle. So

3 how do you reconcile, you know, the difference?

4 A. You have to bear in mind all the circumstances that complicate the

5 situation. And if you bear in mind all the difficulties the authorities

6 had to grapple with, and if you take into consideration the regulations

7 which allow for more flexible positioning of the authorities with changes

8 in the factual territorial jurisdiction, the possibility for the

9 Presidency to appoint presidents of municipalities that were not able to

10 function properly, there were certain palliative measures taken for

11 wartime, which insisted in maintaining what I would call a stable legality

12 of the functioning of the civilian authorities, with all the restrictions

13 and using all the possibilities allowed. Of course under ideal conditions

14 and for peacetime conditions, the system wasn't functioning; but for

15 wartime conditions and in view of the adjustment of regulations by the

16 competent body, in this case the enlarged Presidency, I think that my

17 conclusion is in order.

18 Q. Thank you. Now, in my learned friend's examination yesterday he

19 put to you certain scenarios with respect to prosecutions and indictments

20 laid and so on by the command of the 3rd Corps. And in one of the

21 scenarios he described that if a military -- if a soldier and a civilian

22 had gone into a village and committed an offence, crime of some sort,

23 which court would this soldier could be tried in or -- and your response

24 was: It would have had to be the civil court because he was not in combat

25 and he was with a civilian, and so it would have to be the civil court.

Page 16625

1 Am I correct?

2 A. You didn't quite correctly interpret the first part of the

3 question because the question was: If a civilian and a soldier were to

4 torch a house and the house is not a military facility and is unrelated to

5 the conflict - and this is very important - in that case, according to

6 regulations in force regarding the competencies of regular courts, if a

7 soldier and a civilian are co-perpetrators of a criminal offence or are

8 suspected of being -- and these are not cases that come under the

9 jurisdiction of a military court. It's not a question of attack on the

10 armed forces or any jeopardy to the constitutional order - therefore,

11 these were not actions that had to do with the activity of the army - then

12 naturally it is the civilian court that is competent. There's no doubt

13 about that, only you had to interpret the question fully.

14 Q. Well, I certainly did not interpret it fully because I still don't

15 understand, and I'm going to ask you this question so we could see if we

16 could clarify it: Is it your evidence that the military can only

17 discipline a soldier for offences that are committed in combat or

18 military-related offences? Is that what you're saying to us?

19 A. I'm saying the following: A soldier may be disciplined by his

20 commander by the military disciplinary court, by the military court, for

21 the offences clearly stipulated for such cases. But I also said that if a

22 soldier is acting as a civilian, let us say if a soldier commits a traffic

23 offence, if it is a minor offence he will be called by the magistrate

24 courts, or if it is a graver offence then to the criminal court. And look

25 at the regulation on military courts or decree on military courts, which

Page 16626

1 clearly specifies the jurisdiction of military courts. So in principle,

2 these courts try military personnel except when in cooperation with a

3 civilian they committed an offence which does not fall under the

4 jurisdiction of a military court. I think that is quite clear.

5 Q. Let me see if I could create a scenario, and perhaps we could get

6 it clarified. If a soldier not in combat has left his unit, has gone into

7 a village and has looted, in your opinion who is the person, or which

8 department is responsible for prosecuting that soldier?

9 A. I think you would first have to explain whether the looting was

10 done within the context of military operations, for revenge or to provoke

11 ethnic hatred or intolerance. In that case, one could expect it to go to

12 a military court. But if he committed an ordinary criminal offence and

13 set fire to a house that has nothing to do with the military operations, I

14 think it would be quite appropriate for him to be tried by a regular

15 court. If there are no implications linked to protected values, if it is

16 ordinary crime that we are talking about.

17 Q. But if it's ordinary crime and I am in my uniform and I deviate

18 from my unit and I -- instead of taking a truck full of milk to one place,

19 I take it to another - I may be in my uniform, I may not be - the army --

20 it is your opinion the district military prosecutor does not have the

21 right to prosecute such a soldier, a member of its army?

22 A. I think so. If he was wearing a military uniform, by his external

23 appearance he has identified himself as a member of the army. So the

24 military prosecutor would first have to investigate whether he was acting

25 in accordance with his military duties as a soldier, and I think such

Page 16627

1 action by a soldier could seriously affect the relationships in the local

2 community. And I think that the district court should protect values in

3 the area. If the soldier took off his uniform and committed that offence

4 in civilian clothes, then I think it is the regular court that is

5 competent.

6 Q. I don't want to belabour the point, but I think there is something

7 that speaks about morale of the army and things like that. And in light

8 of that I'm going to ask you this: If a soldier by the choice of apparel

9 that a soldier chooses to wear, is it your opinion that that determines

10 which court has jurisdiction over this soldier, or is it the person, the

11 office that he holds, that has the jurisdiction?

12 A. Of course the position of the army and the morale of a member of

13 the army and the armed forces is something that every army protects. Let

14 me remind you that for such acts -- if a soldier were to commit a

15 burglary, the punishment would be very harsh, including the death penalty.

16 So the punitive policy was designed to strengthen the morale of the

17 soldiers. Because if soldiers were to commit criminal offences then such

18 an army would have no respect from the people, and it would have no chance

19 of attracting to its ranks as many people as possible to fight for the

20 same goals as that army.

21 So I certainly do not agree that an individual by putting on or

22 taking off his uniform could decide where he would be tried. That is out

23 of the question. If we look at the jurisdiction of the military court, it

24 is quite clear, and it is not linked to this formal question of apparel.

25 To disclose military or state secrets, undermining the combat ability of

Page 16628












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 16629

1 the army and various other stipulations listed are what are decisive for

2 the jurisdiction of the court and not the apparel of the perpetrator.

3 Q. So then I think we are both in agreement when I say that the

4 district military prosecutor and the district military courts are not only

5 necessarily for offences committed by its soldiers in combat but also can

6 deal with crimes committed by their soldiers generally. It does not

7 limit -- the district military court is not limited to crimes committed

8 during combat, and that is where I think --

9 A. In -- according to the regulations I have described, the

10 competence of the military court, in my report, association to undermine

11 the constitutional order, this need not have anything to do with military

12 operations, but in that case also the military court would intervene.

13 Q. Thank you, Professor. On the question of reports and where my

14 learned friend indicated to you a scenario where reports should be

15 recorded and where prosecution should be recorded, and your response was

16 that it could be found in the civilian archives, it can be found in the

17 military archives. And I -- my question to you is this: If the

18 prosecution's -- if the charges were brought by the military prosecutor

19 and dealt with at the military court, would that record be also in the

20 civilian court?

21 A. You said if it came to the military court, which means that the

22 prosecutor on the basis of the elements in the case judged that it was

23 within the jurisdiction of the military court, then there are no such

24 records in the civilian courts, except should the following happen: If

25 one of the parties appeal against the decision of the district military

Page 16630

1 court, the whole file goes to the Supreme Court of Bosnia and Herzegovina,

2 and that, you will admit, is a civilian court. So in that case, you would

3 be right, vice versa. If when a military prosecutor receives a criminal

4 report, comes to the conclusion that the case does not fall within the

5 terms of reference of his own or the military court, then he would forward

6 that criminal report to a civilian body, to the civilian court.

7 Q. In light of what you have just said, could you elaborate on -- for

8 us on the process between the military court and the appeals court. Could

9 you explain to us how that operates.

10 A. First of all, I can say that in my opinion and from the standpoint

11 of the system, it is of exceptional importance that the second-instance

12 proceedings were within the competence of the civilian courts of the

13 highest level. This fact in itself means that the Supreme Court will

14 balance out the practice and, if you will, the punitive policy also in the

15 application of criminal substantive and procedural law in both civilian

16 and military courts. I see this as providing guarantees that military

17 courts would not act as a corpus separatum in relation to the whole

18 system, but they would have to fit into the standards applicable to a

19 regular civilian system. And I think it was a very important provision

20 avoiding the formation of an independent separate military system of

21 prosecution.

22 I think this is very important. So that when the matter is

23 reviewed at the Supreme Court -- of course if it is a military secret,

24 this will be done in private session; if it is not a military or state

25 secret, if the court decides to have a hearing, though it does so rarely,

Page 16631

1 it either revises the judgement of the first-instance court. Or if there

2 is not sufficient evidence, it returns the case into the regular court -

3 in this case the military court - indicating which facts needed to be

4 verified once again.

5 I think this is very important, and I think it's a good thing that

6 we have managed to refer to it once again, though I mention it in the

7 report, that this is a key fact reflecting the equal implementation of the

8 law in both civilian and military courts.

9 Q. And one more question before the break, Mr. President.

10 I think if I understand you well, the military court is not the

11 final court. The military court, if there's an appeal, branches out now

12 to the civilian aspect, which is the Supreme Court. Am I correct?

13 A. Yes, yes, that's right. That is why I think this is very

14 important. The military court is only the first-instance court and

15 always.

16 Q. Thank you, Professor.

17 MS. HENRY-BENJAMIN: Mr. President, I think this should be a

18 convenient time for the break.

19 JUDGE ANTONETTI: [Interpretation] Yes, it is almost 10.30. We're

20 going to have the so-called technical break for about 25 minutes, and we

21 will resume the hearing at about five to 11.00.

22 --- Recess taken at 10.27 a.m.

23 --- On resuming at 10.58 a.m.

24 JUDGE ANTONETTI: [Interpretation] The hearing is resumed. I give

25 the floor again to the Prosecution.

Page 16632

1 MS. HENRY-BENJAMIN: Thank you, Mr. President.

2 Q. Professor, I just have a few questions for you and then I will be

3 done, and it surrounds the district military court that we have been

4 trying to clarify and to understand.

5 Now, correct me if I'm wrong or tell me if you agree with me when

6 I say that the district military courts have jurisdiction over all their

7 soldiers until -- up and until such time as a soldier is demobilised or

8 discharged?

9 A. Yes, that's what it says in the regulations. That means that with

10 regard to the jurisdiction over military courts, then yes. Soldiers held

11 to account, and this includes all acts committed as members of the armed

12 forces. But as I have already said, if a soldier is not in uniform and he

13 commits an ordinary crime within a civilian context, then we're no longer

14 talking about a member of the military, we're talking about a civilian who

15 would be held to account elsewhere.

16 But to make sure that everything is clear, in paragraph 99 of my

17 report and in paragraph 100, I provided a breakdown of crimes and of the

18 jurisdiction of military courts. And for such crimes, civilians would be

19 held to account before such courts and members of the military in

20 principle would be held to account before such courts. When a soldier

21 commits a crime in civilian clothes, usually it's the military court that

22 deals with the soldiers, that puts these members of the military on trial.

23 Q. I want to repeat the very last sentence: "When a soldier commits

24 a crime in civilian clothes, usually it's the military court that deals

25 with the soldiers, that puts these members of the military on trial."

Page 16633

1 Well, I think you will agree with what we say now, that if the

2 soldiers deviate from the combat area and they commit a crime, the

3 military court has jurisdiction over them?

4 A. Well, things are as follows. One assumes that the military court

5 is responsible for such an individual, the report will be filed with the

6 military prosecutor. But if the military prosecutor having examined all

7 the circumstances that the crime is -- doesn't fall within the

8 jurisdiction of the military court, if he establishes that it's an

9 ordinary crime, then he will forward the case to the regular prosecutor's

10 office. But as a rule, soldiers are held to account before military

11 courts; civilians held to account before such courts in the circumstances

12 I have mentioned. A minute ago I was mentioning the reverse situation,

13 when a soldier is held to account before a civilian court, and that

14 concerns cases in which he is a co-perpetrator in a crime. But civilian

15 courts are responsible for civilians.

16 Q. Regardless of whether the soldier has on a uniform or not, and I

17 agree with you.

18 The other one I wanted to get clarified was in respect to

19 deserters. Would you agree with me that the military court has

20 jurisdiction over deserters as well? Just bear in mind as deserters they

21 have not been discharged, neither have they been demobilised.

22 A. In other words, you have just confirmed that although he is a

23 deserter, he abandoned the ranks of the army on his own initiative. So --

24 that he is nevertheless a member of the member and as such it is the

25 military court that would have jurisdiction over such an individual.

Page 16634

1 Q. So if deserters were to commit offences, then it is expected of

2 the military prosecutor to proceed with charges against him; that is

3 expected, isn't it?

4 A. That's correct.

5 Q. Thank you. And just one more. The special military courts, they

6 are responsible for all crimes that are committed by the soldiers,

7 regardless of whether the soldiers are in combat or otherwise while

8 they're out in the field?

9 A. You have to be more precise. The jurisdiction of special military

10 courts is regulated in a particular manner, and such courts won't have

11 jurisdiction for all crimes because these special courts, the purpose of

12 these special courts, is to act when the acts are extremely dangerous,

13 when the crimes are extremely dangerous, extremely important, and they are

14 to proceed expeditiously. For example, if the military unit is at some

15 distance and it's impossible for the regular military authorities to take

16 over the entire case, then special military courts function. There are

17 certain crimes for which special military courts are responsible, and

18 these are crimes such as rebellion within the army, refusal to obey

19 orders, and in such cases it's not possible to wait for the cases to be

20 dealt with in a regular manner. These special courts can only hand down

21 the death penalty. This shows that they're responsible for especially

22 serious cases, but there is the right to appeal, to defence counsel, et

23 cetera. As soon as this special court or such a special court decides not

24 to hand down the death penalty, they have to forward the case to the

25 regular authorities, and in such cases, the regular military prosecutor's

Page 16635

1 office and the regular military court will continue to deal with the case.

2 Q. Professor, thank you very much. You have been quite helpful.

3 MS. HENRY-BENJAMIN: Mr. President, this ends cross-examination.

4 Thanks.

5 JUDGE ANTONETTI: [Interpretation] Thank you.

6 I will now give the floor to Defence counsel for re-examination.

7 MR. BOURGON: [Interpretation] Thank you, Mr. President.

8 Re-examined by Mr. Bourgon:

9 Q. [In English] Good morning, Professor. Further to the questions

10 which have been put to you by my colleague from the Prosecution, I just

11 would like to clarify a few of the issues which were discussed. And the

12 first one is I would like to come back again on this issue of courts and

13 jurisdiction in order to provide further information to the Judges and to

14 the Trial Chamber. My first question deals with page 43 of your report,

15 but to be more precise it deals with paragraph 104 --

16 A. Which paragraph, please?

17 Q. Paragraph 104. Now, paragraph 104, Professor, goes along with

18 footnote 86, which deals with the decree law on service in the army of the

19 republic. And I would just like to confirm with you that according to

20 Article 64 to 71 of the decree law on service in the army, that the

21 accountability of military servicemen is regulated by this decree, and

22 that basically you have a system inside the army and you have a system

23 outside of the army which is, as you explain in paragraph 104,

24 accountability in accordance with the regulations regulating criminal

25 offences or regulations regulating misdemeanours in the Republic of Bosnia

Page 16636

1 and Herzegovina.

2 Could you confirm that there are two possibilities for a soldier

3 to face proceedings for a violation, which is inside the army

4 and outside of the army pursuant to the system in place.

5 A. I'll have to repeat certain things, naturally. As far as

6 accountability within the army is concerned, it's necessary to make a

7 distinction between disciplinary accountability and criminal

8 accountability. Disciplinary accountability also has two levels of social

9 danger. If there is a minor offence, a minor violation of the rules of

10 military service, according to the rules this is called a misdemeanour, in

11 such cases it's the commander, the immediate commander, who must take

12 certain disciplinary measures and hand down a sentence of up to 30 days in

13 military prison.

14 Then there's the military misdemeanour court which deals with

15 slightly more serious misdemeanours, but they're still misdemeanours. The

16 penalties are somewhat harsher, and there are two levels to the

17 proceedings. The Ministry of Defence has an appeal court that hear

18 appeals in such situations.

19 As far as criminal offences are concerned, a while ago I discussed

20 the entire matter with Madam Prosecutor, the matter concerning the

21 jurisdiction of military courts. As a rule, a soldier will be held to

22 account before a military court if he is a member of the ABiH. A member

23 of the armed forces can naturally appear before a court as a civilian if

24 he has committed a crime that has nothing to do with his membership of the

25 army. If the crime is an ordinary crime, he will be held to account

Page 16637

1 before such a court, like in any other system. But as a rule, a member of

2 the military is held to account before a military court. We mentioned one

3 exception, that concerns crimes that were co-perpetrated with a civilian,

4 for which a civilian court, a civil court, is responsible. So this is the

5 hierarchy of institutions. These are the proceedings that instituted for

6 crimes committed by members of the military. And such crimes range from

7 misdemeanours to criminal offences for which certain penalties are

8 prescribed.

9 And I would also like to point out something which was mentioned

10 yesterday. In wartime, all the penalties are more severe because

11 naturally the level of danger, the threat of social values is greater in

12 wartime. According to the criminal law adopted from the former

13 Yugoslavia, we have such a law in Bosnia and Herzegovina. And in addition

14 to harsher sentences, there is a list of certain specific crimes, and I

15 mentioned eight additional measures that can be taken, measures that are

16 additional to the penalty. So this outlines the issue of the

17 responsibility of members of the military in a certain sense.

18 Q. Thank you, Professor. If we look at the decree law on service in

19 the armed forces where you find the provisions whereby a member of the

20 military can be sentenced up to 60 days in prison, whether by his

21 commander or by the military disciplinary court, these sentences can

22 follow any of the breaches found in the rules of military discipline. Is

23 that what you have just referred to when you speak about the jurisdiction

24 inside the military?

25 A. With regard to the law on misdemeanours, I think that this

Page 16638

1 concerns the violations of the rules within the army. With regard to

2 criminal offences, it's the military court that is responsible for such

3 matters. So there's a special military structure that is involved in

4 dealing with these cases that concern members of the military.

5 Q. Thank you, Professor. I just happen to be looking at -- I'm

6 trying to find here the decree law on service in the armed forces which I

7 unfortunately just cannot find right now because it refers here to

8 footnote in your report which is footnote 86. And for some reason, I

9 cannot find out.

10 A. Official Gazette number 11 from the year 1992, that's the one.

11 And number 12, 1992.

12 MR. BOURGON: [Interpretation] Mr. President, I just need a minute

13 to find the decree law in question. My footnote refers to another

14 footnote. If you just bear with me for a few seconds, I'll be able to

15 find the relevant document.

16 JUDGE ANTONETTI: [Interpretation] Perhaps the Chamber could assist

17 you, Mr. Bourgon.

18 MR. BOURGON: [Interpretation] The document in question is DH440,

19 Mr. President.

20 I'll have to ask for the Chamber's assistance, Mr. President, to

21 find DH440. It's in the binders.

22 JUDGE ANTONETTI: [Interpretation] Very well.

23 Mr. Registrar, could you find DH440, please.

24 Here it is. We found the document and the English translation.

25 MR. BOURGON: [Interpretation] Thank you, Mr. President.

Page 16639

1 Q. [In English] Professor, I would like you to look at this decree

2 law on service in the army of the republic, and more specifically at the

3 article which deals with the offences which can be committed. And my

4 question is, Professor, that you in response to the last question, you

5 mentioned that inside the military - and I would just look at what you

6 mentioned - you said it's -- with regard to criminal offences -- sorry.

7 What my question is, Professor - I would like to try and make it

8 simple and I apologise for the time I'm wasting here with the Court - is

9 simply that: Within the military, within the rules of the army, there are

10 a number of offences which are listed in the regulations. And for -- I

11 would simply like you to confirm whether for each of those violations

12 which are in the rules of the military, that a soldier can be punished for

13 up to 60 days in prison or detention, whether it is by his commanding

14 officer or by the military disciplinary court.

15 A. Naturally that depends on the particular situation, the particular

16 case. If the danger, the threat, to the social order is minimal and if

17 there are mitigating circumstances and the crime is listed in the decree

18 that you are referring to, then yes naturally this is a situation that

19 could occur. But if the threat posed to the social order was not that

20 insignificant, if there was a significant social threat, then the entire

21 case would have to be referred to the military prosecutor's office, or

22 rather, to the regional military court to deal with.

23 Q. Thank you very much, Professor. Now, my question to you is: If a

24 commanding officer does use his powers of punishment and sentences a

25 soldier for one of the offences which is in the regulations, or whether

Page 16640

1 this takes place by the military disciplinary court, where would we find

2 the records for these punishments having been awarded to soldiers of the

3 unit?

4 A. Well, first of all, since the disciplinary court, the second level

5 disciplinary court is formed within the Ministry of Defence of Bosnia and

6 Herzegovina, if an appeal was filed, which was most often the case, well

7 in such cases you will find the archives in the Ministry of Defence, in

8 the disciplinary court or the appeal court within the Ministry of Defence.

9 If not, then it could be found in the regional defence staff archives. I

10 assume, although I'm not sure, that if there were such regional military

11 staffs, all this would take place within the framework of the corps.

12 Q. Thank you very much, Professor. I move on now to -- within your

13 report where you mentioned, to make clear, and this is -- you find this at

14 paragraph 99 of your report, where you say that: "District military

15 courts were responsible for crimes committed by military personnel, and in

16 some cases for crimes committed by civilians."

17 And my colleague from the Prosecution confirmed that with you in

18 detail. What my question relates to is the two exceptions to this rule,

19 and the first being at paragraph 101 of your report that only in these

20 cases would a member of the military would be tried by a civilian court

21 other than the district military court.

22 A. That's something that I have mentioned on a number of occasions in

23 paragraph 101. I'll quote the decree, the relevant decree, which states

24 the following: "If a military serviceman and a civilian have committed a

25 crime as co-perpetrators or as other accomplices and the trial of a

Page 16641

1 civilian falls within the jurisdiction of a regular court, that court

2 shall also try the military serviceman."

3 That is found in article 9, paragraph 1 of the decree law on

4 district military courts.

5 Q. Thank you, Professor. Now, my question to you is: In such a case

6 where this article applies and a soldier is tried before a civilian

7 jurisdiction, if this -- can you confirm that this may take place either

8 at the misdemeanour court, the municipal court, and the higher court?

9 A. I don't know how this comes out in translation, but it's necessary

10 to make a clear distinction. The misdemeanour court, because the

11 civilians -- there is a municipal court for misdemeanours which has

12 jurisdiction over civilians. But if we provide a strict legal

13 interpretation of this provision, it concerns a criminal offence. A

14 misdemeanour is not a criminal offence. It follows that such a

15 combination occurs in the cases of criminal offences. However, this

16 provision -- this is called a decree law on district military courts. It

17 deals with military legislation. By analogy, one would probably draw the

18 conclusion that when a soldier has committed a misdemeanour together with

19 a civilian, then that member of the military would also be held to account

20 for the misdemeanour. And usually these are traffic offences or

21 disturbances of law and order. That's the essence of misdemeanours. If a

22 soldier was in a car with a civilian and committed a traffic offence,

23 drove through a red light, in such cases he'll probably be held to

24 account. Perhaps it's not a good example because one of the individuals

25 is driving the car and the other wasn't. But we could provide another

Page 16642

1 example in which this analogy could be made. But to be more precise, it

2 would be necessary to have a look at all the items of the provisions on

3 military misdemeanours to see whether there is a relevant provision there.

4 On the basis of legal logic, I come to the conclusion that the analogy

5 would be appropriate here, but naturally to make analogies concerning

6 criminal law is not really permissible.

7 Q. And, Professor, for the same in terms of criminal offences before

8 either a municipal court or the higher court, then it would not be a

9 matter of analogy but it would be that if a civilian -- pardon me, a

10 member of the military who is in the situation covered by paragraph 101 of

11 your report, and he is tried together with a civilian before a civilian

12 court for a criminal offence, that this can take place before the

13 municipal court and the higher court?

14 A. Of course, but you must not forget a part of the wording which

15 says if a civilian court is competent for that offence. This is a very

16 important phrase. Because if the military court is competent for that

17 particular act then both would be tried by a military court. So if you

18 have a situation where the civilian court is responsible for the civilian,

19 then the serviceman will also be held accountable by that court. If at

20 the first instance, then it would be in the basic court, appealed to the

21 higher court as appeals court; or if at the first instance it is within

22 the competence of the higher court, then it will have to be appealed by

23 the Supreme Court of Bosnia and Herzegovina.

24 Q. Thank you, Professor. And just to confirm that, of course if a

25 member of the military is tried before either the municipal court or the

Page 16643












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13 English transcripts.













Page 16644

1 higher court, then the records of those proceedings will necessarily be in

2 the municipal courts and in the higher courts?

3 A. Or in the Supreme Court, if the appeals procedure took it as far

4 as the Supreme Court.

5 Q. Thank you, Professor. I'll move on to another area which was a

6 question raised by my colleague.

7 My colleague raised with you the issue of the Vance-Owen Plan as

8 being a reason for the intensification of the conflict. What I would like

9 to ask in respect of this issue is first of all: What was the attitude of

10 the Presidency in respect of the Vance-Owen Plan? And more specifically,

11 in respect of paragraph 6 of your report, the last sentence of which reads

12 as follows: "It was clear that the existing national mixture could be

13 eliminated only by violent means."

14 So my question is: What was the attitude of the Presidency in

15 respect of the Vance-Owen Plan and in respect of this conclusion of yours

16 that the existing national mixture could be eliminated only by violent

17 means?

18 A. As far as the authorities of Bosnia and Herzegovina are concerned,

19 upon certain suggestions they accepted the Vance-Owen Plan. And the

20 president of the Presidency went to Athens, and I also travelled with him

21 to Athens on the 2nd of May, 1993 when the Vance-Owen Plan was signed. So

22 he had the support of the regular authorities.

23 It should be noted, however, the Vance-Owen Plan did not strictly

24 divide the provinces on the ethnic criterion because there were ten

25 provinces envisaged, as can be seen from the annex attached to the report,

Page 16645

1 so that it was possible to work out which ethnic group had the majority in

2 each of those provinces. But the Vance-Owen Plan did not insist too much

3 on this ethnic criterion and that is why it was more or less acceptable to

4 the regular institutions of authority which consistently insisted that all

5 the plans should not strictly divide up the three nations, but rather that

6 it should ensure the equality of those nations on the basis of the concept

7 of constituent nations which appeared in all the plans from the Cutileiro

8 Plan to the Dayton Accords. But the Presidency and other organs of

9 authority accepted this plan as it spoke of ten provinces and also

10 envisaged special independent institutions for certain infrastructural

11 facilities such as the railways, the power supply system, et cetera, which

12 would be -- which would establish economic links throughout the whole

13 territory of Bosnia and Herzegovina.

14 That is why the Vance-Owen Plan was objectively acceptable. But

15 the question is: How individual forces within Bosnia and Herzegovina

16 interpreted these ten provinces. And there was a special issue regarding

17 the separation of military forces. And maybe there was a certain degree

18 of inconsistency in that respect in the plan because the general principle

19 was that military units with the background of one ethnic group would

20 withdraw to the provinces in which that ethnic group dominated.

21 So again, there was this concept of ethnicity. And this was a

22 highly sensitive issue, especially in the provinces I mentioned, I think

23 eight, nine, and ten, in which the Croats and the Bosniak population

24 accounted for about 50/50 per cent. And when the Federation of Bosnia and

25 Herzegovina was designed, this canton, which is known as the Central

Page 16646

1 Bosnian canton based in Travnik, was provided with a special regime that

2 differed from the other cantons in order to maintain the balance between

3 Bosniaks and Croats. And if you look at the statistics about

4 municipalities for the whole region of Central Bosnia, you will see that

5 the percentage share between Bosniaks and Croats is more or less balanced,

6 with the Serbs being present but in such smaller numbers. So this

7 interpretation of this provisional provision, had the plan succeeded, it

8 was a technical method of separation of armed forces, the aim being to

9 create a factual situation which in the future might be in the interest of

10 one or other military formation.

11 I should like to recall that in fact the authorities of the

12 Bosnian Serbs after formally signing the document later withdrew their

13 signature and the Vance-Owen Plan failed. But precisely because it failed

14 and because they saw that it was quite uncertain when a peace settlement

15 would be found at all and what the components of that settlement would be,

16 there was certainly attempts to gain factual control of as much territory

17 as possible.

18 Q. Thank you, Professor. I'd like now to move to an issue which was

19 raised by my colleague, and that is paragraph 124 of your report dealing

20 with the complexity of the circumstances created by the war. And my

21 question is as follows: Why did the Republic of Bosnia and Herzegovina

22 insist on having displaced organs for the territories occupied, for

23 example, by the VRS in Banja Luka? Why was it so important for the

24 republic to have these displaced organs rather than simply not have any

25 organs for occupied territory?

Page 16647

1 A. I think that I answered that question to some extent yesterday.

2 According to international war law, the force occupying a certain

3 territory does not have the right to change the civilian structure of

4 authorities. The army of the Bosnian Serbs, however, did not consider

5 themselves to be an occupying army. But regardless of that, viewing

6 things from the point of view of the legal authorities of Bosnia and

7 Herzegovina, they proceeded from the position that occupation, because the

8 occupation was carried out by illegal military structures, that it was a

9 temporary situation and that legally and factually it must not be

10 recognised. For that particular reason, because occupation was treated as

11 a temporary situation, organs of authority were formed, in fact one might

12 say a complete structure of civilian and military authorities that were

13 dislocated to territories under the control of the ABiH and those

14 organs continued to function.

15 So the first reason was one of principle, not to recognise the

16 occupation; and the second reason is for these organs, too, to join in

17 efforts to defend the country which meant that those organs were to

18 exercise state authority with respect to citizens who as a result of the

19 occupation under combat operations had either been expelled or had to fled

20 to territory under the army's control, to work with those people just as

21 the district authorities that were responsible for the territory. So the

22 personnel responsibility also existed to keep records of able-bodied men,

23 to give military training for them, and to do everything else for them to

24 assist in the defence in the country, and that is why such dislocated

25 bodies existed.

Page 16648

1 Similarly, such institutions were established for non-governmental

2 institutions, religious communities, social organisations, et cetera, and

3 also of course there were international organisations, observer missions,

4 and so on.

5 Q. Thank you, Professor. You mentioned in response to a question

6 from my colleague the difficulties created by the organs having -- or the

7 personal jurisdiction of the displaced organs and the territorial

8 jurisdiction of the organs of the free territory. Now, my understanding

9 on the basis of your answer is that of course neither the HVO nor the VRS

10 or the Serb authorities had to deal with this concept of displaced organs.

11 And I would like you to come back to how and what kind of practical

12 problems this created for the Army of Bosnia and Herzegovina in the free

13 territories where they dealt with both types of jurisdiction.

14 A. I apologise, but I didn't quite understand the part of the

15 question in which you mentioned the authorities of the Bosnian Serbs and

16 the HVO. What does that have to do with the question you're asking me?

17 Q. I will clarify my question, Professor. Maybe I can split the

18 question in two; it will make it easier.

19 The first question would be: Did the Serb authorities in the

20 territory occupied by the Serbs and did the HVO in the territory under the

21 power of the HVO have to deal with the concept of displaced organs?

22 A. Now it's quite clear; I understand the question. Neither in

23 theory nor in practice did they deal with that matter. It was of no

24 interest to them. They were concerned with the situation in areas under

25 their own control. Of course they were not enthusiastic about the fact

Page 16649

1 that there was a Banja Luka district, a Doboj district, that such

2 authorities existed, and they probably ignored those bodies because they

3 felt that they were responsible for that territory. But that did not

4 change anything because those organs did function, but under the

5 circumstances that we have described they acted on a personal principle,

6 and the Judges know full well that it is absolutely unusual in law, except

7 in the case of certain organisations such as the church or some others,

8 that this personal principle be applied. For the civilian authorities

9 this is common knowledge, that the civilian authorities function on the

10 territorial principle.

11 Q. Thank you, Professor. Now for this second part of this question.

12 Given that the only party which had to deal with the concept of displaced

13 organs, and of course the difficult situation created by the conflict

14 between personal jurisdiction and territorial jurisdiction, that the only

15 party who had these problems was the Republic of Bosnia and Herzegovina

16 and the army of the republic, which was as you mention the only legitimate

17 force and the only legitimately recognised government, what sort of

18 practical problems would this cause in the working of the institutions?

19 A. Let me elaborate a little bit on the first part of the question.

20 As the legitimate authorities and government elected in 1990 insisted on

21 the respect of international law in the first place and respect of the

22 fact that the state had been internationally recognised as a sovereign

23 state and to preserve those attributes of a state, it acted in accordance

24 with the standards of international law which meant not recognising

25 occupation. And by not recognising the legitimacy of factual powers in

Page 16650

1 that territory, it formed dislocated bodies whose legitimacy was derived

2 from the elections and who aspired to establishing their territorial

3 competence as soon as conditions allowed. And that was the motive why

4 only the authorities of the Republic of Bosnia and Herzegovina insisted on

5 this point.

6 In a relatively small territory, though the percentages varied

7 depending on combat operations, but even in the assessment of the

8 Presidency at the beginning of the conflict, mention is made of 70

9 per cent of the territory being occupied. And if we add to this the very

10 unclear situation at times between the ABiH and the HVO, then one can

11 imagine how complicated the situation was to achieve on such a small

12 territory with such a large population which lacked the elementary means

13 of livelihood, accommodation in collective centres, improvised

14 accommodation, they joined military units, et cetera, et cetera, and the

15 territorial jurisdiction -- the authorities with territorial jurisdiction

16 and those with personal jurisdiction had a great deal of difficulty under

17 conditions of wartime and in view of difficulties in communicating with

18 the authorities of Bosnia and Herzegovina, they had enormous problems

19 without any doubt. And Madam Prosecutor drew attention to a very

20 important point, and my position is - and I think that all the evidence

21 speaks in favour - that in spite of all those circumstances the thread of

22 legitimacy of the state authorities was preserved in spite of all those

23 adverse circumstances.

24 Q. Thank you, Professor. One last question on this specific issue.

25 By reading your report, the section dealing with specifically the

Page 16651

1 3rd Corps, we get a clear picture that the commander of the 3rd Corps has

2 a very large area of responsibility, most of which is occupied by the VRS

3 and the Serb authorities, and a big part of what is left being under the

4 control or power of the HVO.

5 My question to you is: What kind of practical problems would this

6 create for the commander of the 3rd Corps in dealing with the civilian

7 institutions?

8 A. I've already said that neither the civilian nor the military

9 authorities of the Republic of Bosnia and Herzegovina had any influence

10 over the part of the territory that was under occupation of the army of

11 the Bosnian Serbs, and the population had moved to this side. It should

12 also be noted that the HVO, and especially at the municipal level, was a

13 specific combined military and civilian structure. One might even say

14 that the HVO was a military force which also exercised civilian authority,

15 which in my opinion differed significantly from what was happening in the

16 territory under the control of the legal authorities. But if we now focus

17 on the situation as it was in this very narrow area in which the

18 authorities of Bosnia and Herzegovina were operating and also the military

19 formations of BiH, this was clearly a source of great difficulty not only

20 for the civilian authorities but also for the military component.

21 Q. Thank you, Professor. I move to another area which was covered by

22 my colleague. A question was asked to you concerning the power of the

23 enlarged Presidency, and you responded by saying that the enlarged

24 Presidency in times of war had exceptional powers including the

25 possibility to modify laws and even the constitution. Now, yesterday we

Page 16652

1 covered already and you explained the need for these changes to be sort of

2 ratified by the assembly when it would meet. But my question deals with

3 the situation before the assembly has an opportunity to meet and ratify

4 these decree laws and changes to the constitution.

5 My question is: Could the constitutional court intervene if there

6 was a decision made by the Presidency, by the enlarged Presidency, which

7 was contrary to the constitution?

8 A. I can say that from the standpoint of comparative constitutional

9 law, all constitutional systems in the world stipulate the so-called

10 extreme necessity. When the executive power, the president of the

11 republic or the government or whatever the name of the executive may be,

12 acquires considerable authorities in cases of war and in some

13 constitutions in cases of other emergencies or extraordinary

14 circumstances.

15 So when it is noted or established that according to our

16 constitution it was a state of imminent war or a state of war, then

17 automatic procedures start functioning envisaged by the constitution when

18 the executive authority acquires constitutional authorisation, which means

19 legitimate authorisation. As the Presidency now passed a large number of

20 decree laws, in French "decret loi," those decree laws were published in

21 the Official Gazettes, indicating the day when they come into effect. So

22 from then on they become a component part of the legal system. Being a

23 component part of the legitimate legal system, they are subject to

24 constitutional control as well as administrative control that I mentioned

25 yesterday, but we're now focusing on constitutional control, and there

Page 16653

1 were quite a number of cases when the constitutional court did intervene

2 with respect to decrees passed by this enlarged Presidency and by its

3 decisions quashed them and eliminated them from the legal system because

4 they judged that they were not in accordance with the constitution. And I

5 mentioned several such examples in my report, and this is further evidence

6 that regular institutions of authority in spite of all difficulties did

7 manage to exercise their functions as stipulated by the constitution.

8 Q. Thank you, Professor. One last question on this issue. You

9 mentioned examples in your report. As paragraph 95 and in footnote 80 you

10 discuss a decision which was taken on the dismissal of a judge or a judge

11 juror which could be rendered even if the proceedings necessary to

12 establish the dismissal would not have been conducted. And if I

13 understand your report correctly, you mention that the constitutional

14 court intervened and said that this was contrary with the BH constitution

15 and this specific decree law was declared unconstitutional. Can you

16 provide further information on this?

17 MS. HENRY-BENJAMIN: Mr. President, if I may interrupt. I do not

18 think --

19 JUDGE ANTONETTI: [Interpretation] Yes.

20 MS. HENRY-BENJAMIN: -- in any way in cross-examination was this

21 raised, neither was it raised in examination-in-chief. So I do not know,

22 you know, if my friend should be allowed to go that route. The report is

23 already in evidence.

24 JUDGE ANTONETTI: [Interpretation] Madam Benjamin is objecting.

25 You're addressing the problem of constitutionality, and I think it is

Page 16654

1 highly relevant to proceed with your question.

2 MR. BOURGON: [Interpretation] Thank you, Mr. President.

3 Q. [In English] Professor, if you can look at this example which was

4 raised in your report and confirm that this is an example of

5 constitutional control over acts of the War Presidency even in the

6 wartime.

7 A. Well, naturally in order to preserve the legitimacy and legality

8 of the system it was necessary for the constitutional court to function in

9 wartime, too. And the constitutional court had its full composition

10 throughout that period of time. So such a small body that has nine judges

11 was able to function within an encircled Sarajevo, and this was of extreme

12 importance for the legal nature of the system. And it was also extremely

13 important for the laws of the highest body of power at that time be

14 subject to the control of the constitutional court. I've mentioned the

15 professional nature of the judges of the constitutional court and the

16 ethnic composition of the bench, but I could also add that there were a

17 series of other instructions, regulations, not only from the Presidency

18 but from lower bodies of power. There were other laws that the court

19 considered. When an Official Gazette published such regulations, these

20 regulations wouldn't be valid if the constitutional court could suggest

21 certain temporary proposals. And within a six-month time frame, they

22 could order the person issuing the act, the law, to amend the law so that

23 it was brought into line with the constitution. But at this point when

24 this decree ceased to be applied - I think this is very important because

25 the constitutional court ensures that the Presidency doesn't violate the

Page 16655

1 basic democratic principles on the independence of the judiciary, and the

2 independence of the judiciary naturally also involves the appointment of

3 judges and relieving them of their duties. So there must be a clear and

4 transparent system which makes it possible to check the moral and

5 professional qualifications of the judges when they are being appointment.

6 And the reasons for which they are being relieved of their duty before

7 their office has expired. The Presidency probably had reasons to proceed

8 without checking why certain individuals were relieved of their duties

9 before their term of office had expired. I think this is of extreme

10 importance.

11 Q. Thank you very much, Professor. This completes my re-examination

12 MR. BOURGON: [Interpretation] Mr. President, I apologise to the

13 Chamber for having wasted time when looking for a document that I had

14 before me.

15 Thank you, Mr. President.

16 JUDGE ANTONETTI: [Interpretation] Very well.

17 Does Mr. Kubura's Defence team have any questions for the witness?

18 MR. IBRISIMOVIC: [Interpretation] Mr. President, we have no

19 questions for the witness. Thank you.

20 [Trial Chamber confers]

21 JUDGE ANTONETTI: [Interpretation] Professor, I have a few

22 questions I would like to put to you about your expert report and the

23 numerous answers you have provided to the questions put to you by Defence

24 counsel and the Prosecution.

25 I will address the issue that was raised by the Defence just a

Page 16656

1 minute ago. This concerns controlling the constitutionality of decree

2 laws.

3 Questioned by the Court:

4 JUDGE ANTONETTI: [Interpretation] You said the constitutional

5 court would verify the constitutional nature of decree laws, but how would

6 the constitutional court be seized of such a case? Who would refer such

7 matters to the constitutional court?

8 A. According to the constitution of Bosnia and Herzegovina - and this

9 is the case in other constitutional courts throughout the world - it is

10 quite precisely stated which bodies can institute proceedings before the

11 constitutional court. Usually there's a distinction made between an

12 initiative taken and a proposal. If we have a system such as the system

13 that existed in the former Yugoslavia, then the constitutional court could

14 assess initiatives. And if they found sufficient grounds, they could

15 institute proceedings before the constitutional court on its own

16 initiative ex officio. But according to the rules, such proposals, and it

17 depended on the law in question and on the laws that were violated,

18 according to the rules the highest bodies of state authority, the members

19 of the Presidency, the president, leaders in parliament, et cetera, had

20 authority to act. And in the former Yugoslavia, this was also applied in

21 that constitutional court, companies whose interests have been violated

22 were also able to submit proposals to the court. This even included

23 citizens, if their interests had been directly violated, infringed by the

24 law in question. I would have to have a look at the decision, but in the

25 decision, at the beginning of the decision, in the introduction, the

Page 16657

1 person who has instituted the proceedings is always referred too. But it

2 could have been the constitutional court itself if an initiative was

3 submitted to the constitutional court. But the judges certainly know that

4 in theory this is a very debatable matter. It's debatable as to whether

5 the court itself should be granted the power to initiate proceedings

6 because this perhaps conflicts with the principle of independence of the

7 judiciary, independence of the court. We know there are certain systems

8 according to which ex officio proceedings can be instituted, and as far as

9 I know, in most systems the court remains absolutely neutral. But if we

10 examined this decision, it quite clearly states who instituted proceedings

11 to assess whether a given law, given decree, was in line with the

12 constitution.

13 JUDGE ANTONETTI: [Interpretation] According to your information in

14 1992, 1993, and 1994, how many times did the constitutional court have to

15 deal with decree laws and render invalid certain decree laws? Could you

16 provide us with an approximative number of the -- of how frequently the

17 court had matters to referred to it and how frequently it had to render

18 decisions on such matters.

19 A. If the Chamber insists on this, it's quite easy to check the

20 number because all the decisions of the constitutional court would be

21 published in the Official Gazette. And in the yearly register for each

22 year of the Official Gazette it states quite clearly how many such

23 decisions were rendered. So it's very easy to obtain that information

24 naturally. I don't have that information right now, but I mentioned

25 something else in my report. For example, in one case the constitutional

Page 16658












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13 English transcripts.













Page 16659

1 court didn't render a decision but it had the authority, according to the

2 constitution - and that's the case for many constitutional courts

3 throughout the world - it had the authority to monitor phenomena that were

4 of interest to ensure that the constitution was respected. And, if

5 necessary, they could inform the relevant organs of issues in which the

6 constitution was in question.

7 In one case, there were rules that were to be established and

8 published in an Official Gazette. Given the encirclement of Sarajevo,

9 given the difficulty to obtain paper or to obtain equipment, et cetera, it

10 quite frequently occurred that the Official Gazette was late in arriving

11 in the field. But what was worse is that sometimes the number and the

12 date of the Official Gazette would be far earlier than the date at which

13 it was possible for this law to be passed. So sometimes it was necessary

14 to apply some sort of rules retroactively, and that's not permissible, of

15 course. And then the constitutional court provided information to the

16 assembly and the Presidency and draw their attention to these

17 circumstances. The court insisted on ensuring that the date for

18 publishing material was respected, and it was also necessary to give those

19 who had to be informed of the contents of the law to be informed in time.

20 So this was an assessment of the constitutional court provided in an

21 official letter which has been attached to the material here. This was

22 also one of the ways in which the constitutional court drew attention to

23 the fact that certain phenomena were not in accordance with the

24 constitution.

25 JUDGE ANTONETTI: [Interpretation] Thank you for this information.

Page 16660

1 I would like to address the issue of the expanded Presidency. You

2 said yesterday at the very beginning of the afternoon that the Presidency

3 in peacetime was usually composed of seven members. But given the

4 declaration of war, the Presidency was enlarged, was expanded. Could you

5 tell me who in addition to the seven individuals composed the enlarged

6 Presidency? Who were the three additional members who formed this

7 Presidency?

8 A. Since that is a very clear constitutional decree, this happened

9 automatically. When an imminent threat of war was declared, and given the

10 clear provisions of the constitution of Bosnia and Herzegovina, then

11 naturally the president who would schedule the first session of the

12 Presidency would then have to call on those who according to the

13 constitution were to become members of the Presidency. They were then

14 supposed to be provided with some sort of a formal document showing that

15 an imminent threat of war had been declared and that according to the

16 constitution the president of the assembly, the prime minister, and the

17 commander of the Territorial Defence staff would automatically become

18 members of the Presidency. And it's necessary to point out that they were

19 equal to the other members of the Presidency. Therefore, it was just as

20 important as the vote of those who had been elected as members of the

21 Presidency.

22 JUDGE ANTONETTI: [Interpretation] Within the framework of the

23 Presidency which was initially composed of seven members, two Croats, two

24 Serbs, two Muslims, and one member who had declared himself to belong to

25 the category of others, within that framework wasn't there a rotating

Page 16661

1 Presidency that depended on the ethnic affiliation of these individuals?

2 A. Well, you're quite correct. That collective head of state,

3 according to the basic principle in force in the former Yugoslavia, there

4 was a one-year term of office for the presiding member of the Presidency,

5 but the presiding member was a primus inter pares, first among equals. He

6 had protocol duties, he had to introduce the Presidency itself, sign the

7 laws, schedule sessions, et cetera, et cetera. However, the constitution

8 itself contained a provision which stipulated that if because of a state

9 of war it was not possible to elect a new Presidency or if it was not

10 possible to elect a president, then the existing composition of the

11 Presidency would continue in the office until conditions for a new

12 election were created and the president would continue in his term of

13 office.

14 Since the Presidency was elected in 1990, this situation occurred

15 in 1994 because peacetime hadn't been achieved by that time. And after

16 the signing of the Dayton Agreement in 1996 the first post-war elections

17 were held and this was then in accordance with the Dayton constitution. A

18 new Presidency was then elected which had three members, and the national

19 and civic principles were combined. There were three representatives of

20 the three constituent peoples, but all the citizens from entities would

21 participate in the election, two from the federation, one from

22 Republika Srpska. So this was a combination and not always a happy

23 combination, a combination of the civic model. In part of Bosnia and

24 Herzegovina, citizens would elect certain members of the Presidency, but

25 there had to be Bosniaks, Croats, and Serbs.

Page 16662

1 JUDGE ANTONETTI: [Interpretation] You referred to the declaration

2 of a state of war. Could you comment on item 3 in the declaration. We'll

3 show the document to you.

4 Mr. Registrar, could you show the witness P362 in the B/C/S

5 version, which is the Official Gazette. We could perhaps place it on the

6 ELMO so everyone can perhaps see the document.

7 Could you please have a look at document 158, which should be on

8 page 2 of the document. Number 158, document 158 is the declaration of a

9 state of war. What I would like to know is the following: There's a

10 statement of reasons for the declaration of a state of war. Could you

11 comment on the reasons provided.

12 A. In my report I already mentioned the reasons for declaring a state

13 of war. This has to do with the fact that it was declared on the 20th of

14 June, 1992, when the fighting escalated and in those first few days of the

15 war, the number of civilian casualties was the highest. And the damage

16 inflicted on towns and civilian buildings was extremely extensive. And

17 the international community did not show that they had the will to put an

18 end to that conflict, although there are a number of important documents

19 from the international community which speak of the nature of the war and

20 of the events taking place.

21 I'd like to point out that there was a resolution of the Security

22 Council dated the 15th of May, 1992, Number 752, and in this resolution it

23 states that it has been determined in the territory of Bosnia and

24 Herzegovina that regular forces of the Federative Republic of Yugoslavia

25 and the Republic of Croatia. And the Security Council explicitly

Page 16663

1 requested that these forces withdraw from the territory of Bosnia and

2 Herzegovina or that they place themselves under the command of the legal

3 authorities of Bosnia and Herzegovina, and naturally none of this was

4 done.

5 Given the way that events unfolded we know that sanctions were

6 imposed on the Federative Republic of Yugoslavia, and we know about

7 everything that took place on the international scene. But as far as

8 internal relations are concerned it became necessary to step up the level

9 of organisation within the state and within the society in order to mount

10 a defence. This decree law, or rather, this decision on declaring a state

11 of war was then taken. And this puts into motion certain mechanisms that

12 are necessary to protect the state. And naturally, a number of other

13 measures were also taken, measures that are necessary to take, for

14 example, declaring an all-out mobilisation.

15 And I'd also like to point out, and this is something that we

16 discussed yesterday, too, it's necessary to establish a political platform

17 and to emphasise the values supported by the State of Bosnia and

18 Herzegovina and emphasise reasons for which it was necessary to engage all

19 patriotic forces and to engage them in the state of Bosnia and

20 Herzegovina. And when the fighting was at its most intense, the

21 Presidency still wanted a peaceful solution to the conflict, and they

22 insisted on international negotiations to achieve such a solution.

23 Everything was done to find a peaceful solution to the crisis.

24 JUDGE ANTONETTI: [Interpretation] Thank you. I'd like you to

25 comment on Article litem 5, paragraph 5, that there was a meeting held on

Page 16664

1 the 20th of June, 1992. This session, was it a session of the Presidency

2 or of the parliament? It is something I am unable to distinguish. The

3 text was adopted by the Presidency or by the parliament or the assembly?

4 The reference refers to whom exactly?

5 A. There's no doubt that it was a meeting of the Presidency, the

6 enlarged Presidency, because the most intensive war operations, as far as

7 I know from my personal experience, the most offensive operations occurred

8 at the very beginning. For example, the very fact that I could not return

9 to the country after going to attend negotiations in Brussels about the

10 succession of states, and many other things confirm that this was a

11 situation when there was absolutely no possibility for the assembly to

12 meet. Therefore, this decision, quite legitimately, was adopted by the

13 enlarged Presidency.

14 JUDGE ANTONETTI: [Interpretation] Could you please look at point 3

15 when the state of war was declared for the whole territory, point 2 and

16 point 3. How in legal terms do you interpret this point 3 regarding the

17 devolution of the powers of the Presidency to the army. Because yesterday

18 you told us the army was under the total control of civilian authorities,

19 that is the Presidency. How can we link that to point 3 in this document?

20 Could you comment, please, on the fact that it is indicated here that the

21 army is authorised to take all necessary measures. Could this be

22 considered as legal devolution of certain powers of the Presidency to the

23 army and what is the ultimate controlling element?

24 A. Not at all. I think that the Presidency here is performing the

25 function of civilian control. And according to the vertical system of

Page 16665

1 command, it commands its units to take all measures necessary to protect

2 the country from the war. My opinion is quite the opposite, that this

3 point actually confirms that there was civilian control over the armed

4 forces, because it was not the armed forces that decided to re-align

5 themselves during a state of war, but it was the Presidency who took this

6 decision, which was a civilian organ which had under its jurisdiction the

7 armed forces, that is the Army of Bosnia and Herzegovina. At this point

8 in time, it was still the Territorial Defence and the beginnings of the

9 formation of the army. So there were certain difficulties to carry out

10 the transition from the Territorial Defence to the army because the

11 Territorial Defence was inherited from the former Yugoslavia and then we

12 started to develop our own concept of defence for Bosnia and Herzegovina.

13 So my answer is quite clear: That this is a document indicating

14 civilian command and political control over the armed forces, because from

15 your question one could describe this as an example of self-restriction of

16 one's own competencies, because after all the subsequent events confirm

17 this because the Presidency as the supreme command continued to issue

18 various by-laws and documents and decisions that confirmed this.

19 JUDGE ANTONETTI: [Interpretation] Thank you for this

20 clarification. So you're telling us that the measures taken by the army

21 were certainly under the control of the civilian authority, in this case

22 the enlarged Presidency.

23 Just before the break I would have a final question to put to you

24 which is of a constitutional nature. According to the constitution in

25 force at the time there was equality between the Serbs, Croats, and

Page 16666

1 Muslims. And in view of this equality, constitutional equality, was it

2 possible within a unit of the 3rd Corps to call a unit a Muslim brigade?

3 Is this name in your view constitutionally permissible, in view of the

4 fact that in the constitution there was no distinction because everybody

5 was treated on an equal footing? In your view the fact that there was a

6 unit with an ethnic attribute, would that be constitutionally possible?

7 A. I agree with you that the constitution clearly stipulated the

8 equality of all three nations and the rights of members of other ethnic

9 groups. I'm not familiar with the concrete circumstances as to how this

10 Muslim brigade came to be formed, but I could agree with you that it did

11 not reflect the spirit of the constitution generally and it may have been

12 questionable. But it is my impression, though I don't have any arguments

13 for this, that this was more of a limited attempt because I don't know

14 that there were many such units. But of course the military people know

15 this better than I. And especially within the structure of the Army of

16 Bosnia and Herzegovina there were no Serb, Croatian, or Muslim entities.

17 As far as I know, this was quite an isolated case and it may have been a

18 reaction to the existence of the Army of Republika Srpska, as they were

19 officially called, or the Croatian Defence Council because both those

20 components contained these national attributes. I agree with you that the

21 Army of Bosnia and Herzegovina, which was working to achieve the goals

22 of the state of Bosnia and Herzegovina in accordance with the

23 constitutional principles, this was not quite in line with those

24 principles. Now, how that actually happened, I don't have any detailed

25 information, but I know there were a relatively isolated number of such

Page 16667

1 units.

2 JUDGE ANTONETTI: [Interpretation] Thank you.

3 It is half past 12.00. We will have a break and we will resume

4 about five to 1.00.

5 --- Recess taken at 12.32 p.m.

6 --- On resuming at 1.05 p.m.

7 JUDGE ANTONETTI: [Interpretation] The hearing is resumed.

8 I just have a few more questions before giving the floor to both

9 parties. Just before the break I asked you about the 7th Muslim Brigade.

10 A historical expert witness who came several weeks ago told us that in

11 history there were cases when there were formations of units with the

12 Muslim attribute. Are you aware of this? And he said that this

13 7th Muslim Brigade was just a continuation of something that existed

14 before.

15 A. I'm really not a historian and I have not studied history so much.

16 But as far as I know during the Second World War there was one such

17 brigade, but I really don't have any more detailed information. I do

18 know, for instance, that some books have been written when Bosnia and

19 Herzegovina was part of the Austro-Hungarian Empire there was a brigade of

20 Bosniaks, and there is a book entitled, "The Bosniaks are Coming." But I

21 don't think then it was used as an ethnic designation but rather people

22 coming from Bosnia as Austro-Hungary treated Bosnia as a separate entity,

23 but I couldn't give you any more information about this.

24 JUDGE ANTONETTI: [Interpretation] Thank you. My very last

25 question. You told us yesterday that in November 1993 you were the

Page 16668

1 Minister of Justice.

2 A. That's right.

3 JUDGE ANTONETTI: [Interpretation] The functioning of the Ministry

4 of Justice in Bosnia and Herzegovina in 1992 and 1993, did it mean that

5 the minister had civilian prosecutors whom he could instruct to conduct

6 Prosecutions?

7 A. No. The Minister of Justice was a civilian and the prosecution is

8 part of the judicial system and the judicial system is separate from the

9 executive, so the minister is part of the executive. And the prosecutor's

10 office is separate from the administration. Maybe as a citizen if I were

11 if I were no give an initiative to the prosecutor, he may review it. But

12 officially as a Minister of Justice I did not have any such experience,

13 though I held that position for a brief period from November 1993 until

14 August 1994. And even during that period I would be outside Bosnia and

15 Herzegovina because of my obligations within the negotiations of a peace

16 settlement. But I know that the Minister of Justice cannot give

17 instructions to the prosecutor.

18 JUDGE ANTONETTI: [Interpretation] Yesterday you indicated with

19 respect to questions relating to offences committed by servicemen and

20 civilians, you said when the military prosecutor finds that he is not

21 competent, he has to proceed, or at least that was my understanding but

22 could you specify, that he needs to forward the file then to the civil

23 prosecutor. Is that how you would explain a case when a file is

24 incorrectly addressed to the military prosecutor, whereas in reality he

25 has no jurisdiction. Could you tell us in view of the important positions

Page 16669

1 that you held how at the procedural level, though I know you're not a

2 specialist in criminal procedure but you told us that constitutional law

3 does cover a very broad area, how is the situation resolved when the

4 military prosecutor is not competent? As far as you know, what are the

5 possible solutions?

6 A. We have to bear in mind two facts in this connection, first that

7 this is a body that is absolutely competent to judge whether there are

8 grounds for criminal prosecution; and secondly, a procedural principle is

9 applied, and that is that throughout the proceedings one has to take into

10 consideration the real and territorial jurisdiction of the deciding

11 institution. In this institution, the military prosecutor is obviously

12 competent to assess whether a criminal offence has been committed and it

13 is his duty to watch over real and territorial jurisdiction. If he finds

14 that there are elements for a criminal offence and that the military court

15 is not competent, then he will forward this to the civilian prosecutor,

16 otherwise it would not be processed at all, an act for which there are

17 grounds to suspect that it does constitute a criminal offence.

18 JUDGE ANTONETTI: [Interpretation] Very well. Following the

19 questions that I have asked, do the parties as part of the adversarial

20 system have any questions to put to the witness for further

21 clarifications?

22 I'm asking Madam Henry-Benjamin first whether he wishes to take

23 the floor.

24 MS. HENRY-BENJAMIN: Mr. President, the Prosecution has one

25 question.

Page 16670

1 Further cross-examination by Ms. Henry-Benjamin:

2 Q. Professor Trnka, can you clarify for the benefit of the Trial

3 Chamber and for our own benefit as to at the outset of war, did the

4 commander of the army replace the position of commander in the Territorial

5 Defence in the Presidency?

6 A. Yes. In accordance with the transformation of the Territorial

7 Defence into regular armed forces, that is the Army of Bosnia and

8 Herzegovina, is the key element of the armed forces.

9 Q. Thank you --

10 A. But this was a process. It was not something that happened in a

11 single day.

12 Q. Thank you very much, Professor.

13 MS. HENRY-BENJAMIN: Mr. President, that will be all, please.

14 JUDGE ANTONETTI: [Interpretation] Mr. Bourgon.

15 MR. BOURGON: [Interpretation] Thank you, Mr. President.

16 Further examination by Mr. Bourgon:

17 Q. [In English] Welcome back, Professor. I just have a few questions

18 arising from the questions by the Trial Chamber. The first being in

19 relation to a question put to you by the Presiding Judge concerning the

20 approximate number of times that the constitutional court intervened in

21 the period 1992/1993. Your answer to this question was that this

22 information would be published in the Official Gazette. I have here the

23 Official Gazette which I would like to show to you with the consent of my

24 colleague so you can maybe provide the Trial Chamber with this information

25 and of course by putting the Official Gazette under the ELMO so that

Page 16671

1 everyone may see. I am referring specifically to the Official Gazette of

2 1992, page 15.

3 My colleague has informed me it is not -- it is within the

4 Official Gazette but it is the register, or "le registre" [phoen].

5 THE WITNESS: [Interpretation] To obtain more precise information

6 on the number of times that constitutional court intervened with regard to

7 rules and instructions issued by the authorities, I refer to the register

8 which at the end of every year is attached to the Official Gazette. There

9 is a register of all such matters and then usually put together in one

10 category the laws of the Presidency, of the government, of the

11 constitutional court, et cetera. Here under the laws of the

12 constitutional court you can see how many such decisions were taken by the

13 constitutional court.

14 MR. BOURGON: [Interpretation] Mr. President, I believe that the

15 ELMO is not working properly. I am trying to see the text on my monitor.

16 I don't know if the Chamber has it before you.

17 JUDGE ANTONETTI: [Interpretation] I have it on my screen.

18 MR. BOURGON: [Interpretation] If everyone else can follow,

19 Mr. President, it is not a problem.

20 Q. [In English] Professor, I do not have what is displayed by the

21 ELMO, but if you may continue with your answer.

22 A. Well, all I can say is that -- all I can mention is the number of

23 decisions rendered by the constitutional. Now it would be necessary to

24 carefully examine which decisions have to do with controlling

25 constitutionality and which decisions deal with other issues for which the

Page 16672

1 constitutional court has jurisdiction, but I don't think I could provide

2 you with an answer by simply examining this document briefly. It would be

3 necessary to examine it at length. I suggest the Defence proceed in this

4 manner.

5 Q. Thank you, Professor. I understand that it may not be possible

6 for you to provide detailed explanations in this regard. But can you,

7 based on the document you have in front of you, establish how many

8 decisions were rendered by the constitutional court in 1992?

9 A. May I just go through this? I'll take it off the ELMO for a

10 minute.

11 JUDGE ANTONETTI: [Interpretation] Mr. Bourgon, it seems that in

12 the B/C/S document the date at which cases were referred to the

13 constitutional court were 1989, 1990, and 1991, and this does not relate

14 to the question I wanted asked. Because I wanted to know whether during

15 1992, 1993 -- I wanted to know how many decisions had been rendered during

16 that period, during the period 1992 and 1993, whereas this document seems

17 to be referring to 1989, 1990, and 1991, but perhaps they are the relevant

18 pages.

19 MR. BOURGON: [Interpretation] Thank you, Mr. President. Perhaps

20 I'll leave this aside and provide the Chamber with this information in the

21 near future.

22 THE WITNESS: [Interpretation] I can see 14 decisions that were

23 rendered in 1992, 14 decisions rendered by the constitutional court. One

24 should carefully determine the period that the decisions referred to, but

25 this is a technical detail. And naturally 1993 is relevant here because

Page 16673












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 16674

1 according to the rules of procedure for the constitutional court, what --

2 the cases examined in 1992 were probably examined in 1993, too. So it

3 would be necessary to have a look at the register from the Official

4 Gazette of 1993 and 1994, because some cases that had been commenced in

5 1993 would have final decisions in 1994. So if we had such elements at

6 our disposal, we could obtain very precise information.


8 Q. [In English] Thank you very much, Professor. I will move on to my

9 next question arising also from a question put to you by the Presiding

10 Judge concerning the enlarged Presidency. You confirmed that the three

11 additional members on the enlarged Presidency consisted of the prime

12 minister, the commander of the Territorial Defence, as well as the

13 president of the assembly.

14 Now, my question to you is: We see that one of these three

15 members happens to be a military officer. Can you confirm that at the

16 district level and the municipal level there were no army members as part

17 of the enlarged Presidency? And to be more specific, that the commander

18 of the municipal defence staff was not on the municipal Presidency and

19 that the commander of the Territorial Defence staff was not on the

20 district Presidency.

21 A. Yes. But to be sure we are quite clear, we have to make a clear

22 distinction between the position of the enlarged Presidencies and the

23 composition of the municipality Presidencies and district Presidencies.

24 They have no particular authority. They only operate as municipal

25 assemblies or rather as district assemblies, and their power is limited to

Page 16675

1 decisions of those bodies.

2 I must make another distinction. According to the system that

3 existed up until the time when the state of war was declared, or rather up

4 until the time when a law on defence was issued, according to the old

5 system that prevailed in the former Yugoslavia the commander of the

6 Territorial Defence in the municipality was envisaged as a member of the

7 Presidency. But since Bosnia and Herzegovina did not automatically adopt

8 the rules about these subjects from the former Yugoslavia, it started

9 organising itself in a different way immediately. I remember that

10 immediately after an imminent threat of war had been declared, the

11 republican Territorial Defence staff was declared as the staff of

12 Territorial Defence of Bosnia and Herzegovina as a sovereign state. It

13 was no longer something that existed within some sort of Yugoslav system,

14 the Yugoslav state. And then the commander of the staff was no longer a

15 member of the Presidency.

16 But this perhaps relates to what we're discussing. In the

17 Presidency there was a secretary for defence which would be analogous to

18 the Minister of Defence at the level of the state of Bosnia and

19 Herzegovina. But since the secretary only had military civilian authority

20 and not military authority, it means that in a certain sense a clear

21 distinction was made between civilian and military structures. These two

22 spheres were clearly delineated. So in municipalities and districts,

23 according to the rules of the Republic of Bosnia and Herzegovina staff,

24 there weren't staff commanders of municipalities and districts, not in the

25 Presidencies.

Page 16676

1 Q. Thank you, Professor. My next question relates to the

2 proclamation of the state of war which was raised with you by the

3 Presiding Judge, and my question here is quite simple. I would just like

4 to confirm that when we see the mention of armed forces, what exactly are

5 we talking about in addition to the army and what is a distinction between

6 the two terms?

7 A. Put very simply, armed forces are all the legitimate formations

8 and armed individuals in the state who were part of the structure of power

9 and who at some point in time, when an imminent threat of war is declared

10 or a state of war is declared, engaged in defence. You quite rightly

11 pointed out that this was above all the army. That was the only defensive

12 force in peacetime, but in wartime, in addition to the armed forces the

13 police are engaged, some of the customs officers who carry weapons are

14 engaged, and even people from the security forces of various companies can

15 legally carry weapons. Since they're all armed and within the system,

16 they are all part of the armed forces, and this is a subject we have

17 discussed on a number of occasions, both today and yesterday. And I said

18 that the relation towards the police and the army members was different.

19 It depended on how the chain of command worked in both cases.

20 Q. Thank you, Professor. Now, just as a follow-up question to your

21 response. In the documents that you have used in making your report you

22 referred to a number of decree laws. Can you help us with the distinction

23 in general terms between the decree law on defence, the decree law on the

24 armed forces, and the decree law on service in the armed forces. Is there

25 a relationship between these three decree laws, and what did they refer to

Page 16677

1 in general terms in order to allow us to better understand the situation?

2 A. Naturally there is an organic relation, but if we have a look at

3 the time when these decrees were issued we can see that they followed on

4 each other. One could say that first general ones were issued and then

5 more specific ones. The decree law on defence deals with the potential of

6 a society that must be employed for the purposes of defence. This does

7 not only refer to armed possibilities, but also the tasks of the civilian

8 authorities and to the overall organisation at all levels of power in

9 order to mount a defence. This is a general global or overall approach to

10 ensure that the state and society can mount a defence in such exceptional

11 circumstances. Naturally the civilian organs and the military organs have

12 different tasks. So there is within this system of defence an armed

13 forces system. And we try to make a further distinction within the idea

14 of armed forces. There's the position of the army, the position of the

15 police, and a fairly marginal role played by other armed elements, customs

16 officials, border officials, et cetera, et cetera.

17 We can then make further distinctions, and there are regulations

18 on internal order within the army. These govern the relations between the

19 soldier and an officer, the rules of service, et cetera, et cetera. So

20 one's going from general principles down towards more specific principles.

21 And finally, we have instructions that stipulate how soldiers should

22 behave, officers, units, et cetera, et cetera. So they have material and

23 a temporal and a logical connection.

24 Q. Thank you, Professor. My last question deals with the issue that

25 was raised by the Presiding Judge in respect to equality of all three

Page 16678

1 nations, and this is a topic which is covered in your report.

2 I would simply ask: Can you confirm that the Army of the Republic

3 of Bosnia and Herzegovina was a multi-ethnic army even though it was

4 comprised of less Croats and less Serbs because most of these had left to

5 join either the HVO or the VRS?

6 A. If you have a look at the structure of the military formations in

7 the ABiH, as I have said, it was exceptional to appoint only people or to

8 employ people from just one nation, and given the general formation of

9 military units, for example, a mountain brigade, this company, that

10 company, in all these cases you don't have such an attribute, no national

11 attributes. So as you have just said in your question, given the

12 information we have on the composition of commands, at the very top of the

13 command there are Croats and Bosniaks. I can confirm that in the

14 international negotiations we were accompanied by a Croatian officer. In

15 the corps command, there was Mr. Jovan Divjak, a Serb. And there's a

16 number of other cases I could mention. If you have a look at the

17 composition of the command of units, I'm sure that the statistics could be

18 checked and the information would confirm that the army had in its ranks

19 members of other ethnic groups. But the policies pursued by the civilian

20 organs were such that they insisted on the multi-national composition, and

21 these are the values that Bosnia and Herzegovina is based on. And in the

22 introduction to my report, and I think it's also relevant for peace plans

23 and for the subject that we are discussing, in the introduction I said

24 that there was certain things that were constant in the history of Bosnia

25 and Herzegovina and in Bosnia and Herzegovina today. That was a state in

Page 16679

1 which there were various religions, cultures, customs, and within that

2 context a tradition of mutual tolerance and respect had been developed.

3 And from a legal point of view, in my opinion, this was of extreme

4 importance. And I have referred to this on a number of occasions in some

5 of my papers. And the internal territorial organisation of Bosnia and

6 Herzegovina, either when it was independent or either when it was part of

7 the Ottoman or Austro-Hungarian Empire or when it was part of the former

8 Yugoslavia, the kingdom of Yugoslavia from 1918 up until 1941 and

9 especially after the Second World War, the internal administrative

10 organisation within Bosnia and Herzegovina was never based on a national

11 principle.

12 Unfortunately, and I can say this from my own point of view, this

13 principle was only advocated in the peace plans of Bosnia and Herzegovina;

14 that's when they first started advocating this principle. And yesterday I

15 referred to the Stoltenberg Plan, and the Dayton Agreement isn't against

16 establishing such a certain national structure either. So certain

17 imbalances formed in terms of the nationality of people. This isn't the

18 best basis upon which Bosnia and Herzegovina would develop as a civic

19 society.

20 Q. Thank you, Professor. I have no further questions.

21 MR. BOURGON: [Interpretation] Thank you, Mr. President.

22 JUDGE ANTONETTI: [Interpretation] I'll ask the other Defence team

23 whether they have any questions.

24 MR. IBRISIMOVIC: [Interpretation] We have no questions. Thank

25 you, Mr. President.

Page 16680

1 JUDGE ANTONETTI: [Interpretation] Very well, Mr. Trnka, this

2 concludes your examination. You have spent two days here to answer the

3 questions put to you by Defence counsel, the Prosecution, and by myself.

4 Thank you for your contribution that you have been able to make, given

5 your knowledge of constitutional matters and your knowledge of other

6 things as well. We appreciate all the answers you've provided to all the

7 questions and we thank you. I wish you on behalf of the Trial Chamber all

8 the best and a safe trip home and naturally I also wish you all the best

9 when pursuing your career in the field of constitutional matters. I will

10 now ask the usher to escort you out of the courtroom.

11 THE WITNESS: [Interpretation] I would first like to thank you.

12 The Defence called me here and the Trial Chamber showed interest in my

13 report. I would also like to thank the Prosecution. If I have

14 contributed to clarifying certain subjects, I'm extremely glad to have

15 been of help. Thank you very much.

16 [The witness withdrew]

17 JUDGE ANTONETTI: [Interpretation] As far as the documents that are

18 going to be tendered are concerned, there's certainly a long list of them,

19 would it perhaps be better to establish a list and disclose it to the

20 Defence [sic] and in the course of another hearing we could deal with the

21 issue. If there are only a few such documents we could deal with them

22 rapidly.

23 Mr. Bourgon?

24 MR. BOURGON: [Interpretation] Mr. President, I believe with the

25 Chamber that it would be better to wait so I can disclose a list to the

Page 16681

1 Prosecution, and then they can check that the documents in the report are

2 the ones that they have been provided with and that they can be admitted

3 into evidence.

4 Thank you, Mr. President.

5 JUDGE ANTONETTI: [Interpretation] And similarly the documents that

6 you mentioned yesterday, some of which haven't been translated, perhaps by

7 that time you'll have the translation of these documents. We'll see about

8 that at a subsequent date.

9 We have another five minutes. Are there any issues you would like

10 to raise? As far as the schedule for tomorrow is concerned, I'll give the

11 floor to the Defence. Do you want to go into private session now? Shall

12 we go into private session?

13 MS. RESIDOVIC: [Interpretation] [No interpretation].

14 JUDGE ANTONETTI: [Interpretation] Usher, thank you for bringing

15 the binders.

16 Mr. Registrar.

17 [Private session]

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 16682











11 Page 16682 redacted. Private session.















Page 16683

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 [Open session]

14 THE REGISTRAR: [Interpretation] We're back in open session,

15 Mr. President.

16 JUDGE ANTONETTI: [Interpretation] Is there anything Mr. Bourgon

17 would like to say? Mr. Bourgon, you have the floor.

18 MR. BOURGON: [Interpretation] Thank you, Mr. President. I would

19 just like to inform the Chamber that we received the military expert's

20 report yesterday morning. We have -- we'll start checking the footnotes

21 this afternoon and the report should be disclosed to the Prosecution by

22 tomorrow morning. This will help us to plan the end of the Defence case

23 for General Hadzihasanovic.

24 Thank you, Mr. President.

25 JUDGE ANTONETTI: [Interpretation] As you know, the Prosecution

Page 16684

1 will have 30 days, but perhaps they won't need this time. So we will wait

2 to hear what their position is.

3 Mr. Mundis.

4 MR. MUNDIS: Thank you, Mr. President. As we have indicated

5 previously, we will endeavour to review that report as quickly as

6 possible. And as I asked my learned colleagues yesterday if they could

7 forward us electronically a copy of that report, that would expedite our

8 review of it as soon as they have reached the conclusion that it's ready

9 for filing. If we could have that electronically as well, that will at

10 least save us one day of it going through the registry, and we can also

11 work much quicker with an electronic copy.

12 So we will do our best, Mr. President, and hopefully in the next

13 day or so we will be meeting with both Defence teams to talk about some

14 planning and expediting the proceedings in order to bring the trial to a

15 close as quickly as possible.

16 JUDGE ANTONETTI: [Interpretation] Thank you for that information.

17 It's 1.45, and I will see everyone at the hearing that is to be

18 held on Thursday at 9.00 in the morning.

19 --- Whereupon the hearing adjourned at 1.46 p.m.,

20 to be reconvened on Thursday, the 3rd day of

21 March, 2005, at 2.15 p.m.