1 Tuesday, 27
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 9.35 a.m.
6 JUDGE MAY: Yes, Mr. Nice.
7 WITNESS: STJEPAN MESTROVIC [Resumed]
8 Cross-examined by Mr. Nice: [Cont'd]
9 Q. Can you tell, please, when you were first
10 retained by lawyers to appear in this case?
11 A. I believe it was around July 1999.
12 Q. Before or after, on your recollection, either
13 Dr. Donia or Dr. Allcock had given evidence?
14 A. I don't recall when Dr. Donia gave evidence.
15 Q. Before or after Allcock gave evidence?
16 A. It was before Dr. Allcock gave evidence.
17 Q. So that the allegations you make about
18 Dr. Allcock were available to the Defence lawyers to
19 put to him if they chose to?
20 A. No, because my report was not completed or in
21 progress at that time.
22 Q. Was it drafted?
23 A. The section on Dr. Allcock was most certainly
24 not drafted.
25 Q. Had you been invited by the lawyers to
1 comment on Dr. Allcock's report?
2 A. Yes.
3 Q. And your comments were thus available to the
4 Defence lawyers?
5 A. Yes.
6 Q. And may we assume arising from consistency
7 that they would have been broadly in line with the
8 nature of your allegations against him in your report?
9 A. I'm sorry, what would have been broadly in
11 Q. Well, your comments on Dr. Allcock's report
12 would have been broadly in line with the allegations
13 you now make against him?
14 A. It's hard to say. At that time, I was not as
15 thoroughly engrossed in the empirical studies by Dusko
17 JUDGE MAY: Yes.
18 MR. NICE:
19 Q. But in general, at the very least,
20 Mr. Kordic's lawyers at that time, I think it was
21 Mr. Stein, were in a position to raise with Dr. Allcock
22 the various criticisms you now make?
23 A. I really don't know that.
24 Q. Well, if you told them about it, they were.
25 JUDGE MAY: I think it's probably a matter of
2 MR. NICE:
3 Q. Because you as a sociologist would accept,
4 wouldn't you, that there are a range of competing
5 theories on many, if not most topics?
6 A. Yes.
7 Q. And the only fair way to deal with these
8 matters is for competing theories to be thrashed out by
9 competing theorists?
10 A. I would put it to be empirically verified.
11 Q. It's just, therefore, -- it would probably be
12 easier, you would accept, for a Tribunal dealing with
13 the issues raised by these various reports simply to
14 hear from the various experts rather than have it all
15 filtered by lawyers. It would probably be easier that
16 way, wouldn't it?
17 A. I'm sorry, I don't understand that question.
18 Q. I'll move on. Your report contains a passage
19 dealing with your curriculum vitae, to which I will
20 return, and then just to remind the Judges, if they
21 don't have it before them, it contains a huge number of
22 appendices and to which I'm not going to go into them
23 in detail at all, but I just want to identify them.
24 Appendix A1 simply sets out the various plans
25 for partition and reorganisation and cantonisation of
1 Bosnia-Herzegovina; correct?
2 A. Yes.
3 Q. In Appendix A2, you list mini wars and
4 civil -- it must be wars that raged within, you say,
5 Bosnia-Herzegovina, even as Croats and Muslims fought
6 as an alliance. You remember that?
7 A. I'm going by recollection, yes.
8 Q. So you are acknowledging internal warfare not
9 just a matter of the Serbs attacking, things like that?
10 A. I'm saying one could characterise this as
11 several conflicts going on simultaneously.
12 Q. Thank you. Appendix A3 is headed, "Competing
13 interpretations and the chaos of concepts." Can you
14 just tell me what that -- what part that has to play in
15 your report?
16 A. Well, I don't have the report in front of me,
17 but --
18 Q. Well, you can have it, of course. You had
19 the marked one yesterday, you can have it today.
20 A. Well, I think I can go by memory. It is
21 simply to state that there are, indeed, many different
22 interpretations upon what happened in
23 Bosnia-Herzegovina and that the ones offered by the
24 Prosecution's expert witnesses are two among many.
25 Q. What was the purpose of your report, as you
1 understood it, you were providing? What was its
3 A. Well, it was first of all to rebut the expert
4 testimonies of Drs. Allcock and Donia; and then second,
5 to offer an alternative explanation of what occurred.
6 Q. To rebut -- I'll come to the specific purpose
7 of rebuttal in a minute, but just help me with this
8 before I move on. Was the tone of your report your own
9 decision or was that suggested to you by the lawyers?
10 A. What do you mean by "tone"?
11 Q. Well, the tone of your report could hardly be
12 stronger. You accuse people of bias, you try and link
13 the experts with the Prosecution. Was that all your
15 A. Yes.
16 Q. I see. We then come to appendix A4, which is
17 an interview with Muhamed Filipovic.
18 A. Yes.
19 Q. The significance of that? Just trying to get
20 somebody else's evidence in, or what's its
22 A. Its significance is that because Dr. Donia
23 puts so much emphasis on the Karadjordjevo meeting,
24 that Dr. Filipovic, who was very close to President
25 Izetbegovic, reports that he and Mr. Zulfikarpasic made
1 forays for negotiation, cantonisation, reorganisation
2 of Bosnia-Herzegovina, around the same time as
3 Karadjordjevo, with the Belgrade regime.
4 So the point of that is that there were many
5 competing plans for the reorganisation of
6 Bosnia-Herzegovina going on at roughly the same time.
7 Q. Well, either witness statements or summaries
8 of witness statements -- that takes us through appendix
9 A5 as well, which is Adil Zulfikarpasic's statement,
10 and I'm not going to deal with those. Likewise, A6 is
11 Sefer Halilovic, another account of somebody else who
12 fell out with Izetbegovic; yes?
13 A. Well, not quite. I think that given that
14 General Halilovic was the Chief of Staff of the Bosnian
15 army, that his account is something worthwhile here to
16 take note of, and it basically puts into context the
17 other actors in this drama. Whereas, as I've noted in
18 my report, Drs. Donia and Allcock tended to focus
19 primarily on President Tudjman.
20 Q. Again, in the absence of the witness being
21 here, we can't weigh him, and I shan't deal with him.
22 Appendix B, Huntington's view on the cultural
23 East/West divide. Just explain, please, so that I can
24 understand that. What's the significance of that?
25 A. Both of your expert witnesses take Franjo
1 Tudjman's 1981 book on contemporary nationalism in
2 Europe and treat it as some sort of blueprint or some
3 sort of relationship to the events that occurred during
4 this tragic war in Bosnia-Herzegovina, and the purpose
5 was to show that Franjo Tudjman makes historical
6 comments that are very similar to what an eminent
7 Harvard historian -- namely, Samuel Huntington -- says
8 about the general deterioration of Islamic Western
9 relations in the post-Cold War world.
10 Q. The mere fact that Huntington may be, in your
11 terms, eminent, says nothing about the underlying
12 purposes or intentions of Tudjman, does it?
13 A. Well, Mr. Tudjman's intentions are a matter
14 for the Court to decide. I was referring very clearly
15 to historical writings.
16 Q. Akbar Ahmed --
17 JUDGE BENNOUNA: [Interpretation] I should
18 like to know what is the relationship between
19 Dr. Tudjman and the well-known Croatian historian and
20 Samuel Huntington, the author of the famous book called
21 "Clash of Civilisation." Would you please try to
22 explain to me, because I don't really understand what
23 is the link between them.
24 A. Is the question being posed to me?
25 JUDGE BENNOUNA: [Interpretation] Yes.
1 A. Your Honour, there is no, that I know of,
2 direct or personal link between them. What I was
3 trying to say was that President Tudjman's writings, as
4 a historian, in his 1981 book do bear some resemblance
5 on this issue of there being an East/West clash with
6 those of Professor Huntington, and that therefore the
7 way that Dr. Donia and Dr. Allcock take some of the
8 statements out of context in Mr. Tudjman's book to
9 suggest intent on the partition of Bosnia-Herzegovina
10 seems to me to be an arbitrary conclusion. So that
11 I'm, by bringing in Samuel Huntington, simply widening
12 the context and saying historians, intellectuals write
13 and discuss about these matters without there
14 necessarily being any sort of a blueprint for war.
15 JUDGE BENNOUNA: [Interpretation] Yes, but I
16 think that this comparison is rather daring, because we
17 have a book which is written by a historian, who at the
18 same time is a man of action, on a particular situation
19 which concerns the future of a people, of a nation; and
20 on the other hand, there is a very general conjecture
21 post-Cold War, and the end of ideologies and the
22 conflict, the confrontation between civilisations. I
23 do not really think that there is anything in common
24 between them. Are we talking about a man who is a
25 historian, at the same time a man of action, such as
1 Mr. Tudjman? We are not now discussing an academician
2 or an academic or a man of learning, a professor.
3 A. Your Honour, at the time Franjo Tudjman wrote
4 that book, he was a professor. He was not a man of
5 action. He became a man of action and a politician
6 after he had been imprisoned and following the
7 elections in 1990. So that I am making a comparison, a
8 contrast, strictly on the basis of what Mr. Tudjman
9 wrote before he became a man of action.
10 JUDGE BENNOUNA: [Interpretation] Very well.
11 Thank you.
12 MR. NICE:
13 Q. Appendix C, Akbar Ahmed. Significance,
15 A. Akbar Ahmed is a distinguished anthropologist
16 at Cambridge University who also writes about a general
17 world-wide clash between Islam and the West. Moreover,
18 he believes that this very general clash, which he sees
19 going on from Kashmir to Palestine to Bosnia, to
20 Chechnya, and other places, is the result, actually, of
21 a vacuum in Western leadership. And I think again it
22 offers an interesting contrast, which is what a scholar
23 should do, in examining, as I did examine the works of
24 Dr. Allcock and Dr. Donia, to present competing,
25 opposing, different points of view and explanations for
1 the phenomenon being considered here.
2 Q. This particular expert's field of expertise
3 is where? It's the Indian subcontinent, isn't it?
4 You're not suggesting, are you, that his works in some
5 way excuse or justify the actions of individual
6 politicians or soldiers in the Balkans?
7 A. No, and I don't see where you would get such
8 a conjecture. He is an expert on the South Asian
9 continent, but he's also a distinguished anthropologist
10 who has written many books on many topics, and
11 certainly his book "Living Islam" pertains to Islam all
12 over the world and was a BBC televised series.
13 Q. Appendix D was public opinion studies -- I'm
14 probably going too fast, I'll try and slow
15 down -- was public opinion studies in Croatia as
16 against the rest of Europe. I'm not going to deal with
17 those. We don't have the raw material with us.
18 Appendix E was empirical research conducted
19 by Lazic and his team on the status of ethnic
20 minorities and inter-ethnic relations in Croatia.
21 Would you accept that that fits with and isn't in
22 contradiction with what Dr. Allcock says?
23 A. Sorry. You said fits with and contradicts?
24 I don't understand that?
25 Q. I didn't say "in contradiction."
1 A. I'm sorry.
2 Q. At least, I hope I didn't. It fits with and
3 supports what Dr. Allcock says, is what I intended,
4 whatever I said.
5 A. He does not cite that study. There's no way
6 for me to determine.
7 Q. Do its findings fit with and support what he
8 says or do they contradict them? Because if they
9 contradict them, let me know exactly how and then I
10 might be able to deal with it. Otherwise I'll move
12 A. Well, I think I made it clear yesterday, it's
13 very hard to find a clear statement in Dr. Allcock's
14 testimony because he cites so few scholars. He does
15 not cite the study.
16 Q. I'll come to that point immediately rather
17 than later. Citation is one thing, clear statement is
18 another. Dr. Allcock's statements are entirely clear,
19 aren't they, about what you take exception to in such
20 strong and sometimes virulent language. You understand
21 what he's saying.
22 A. No, I disagree with that.
23 Q. Well, we'll have a look at some passages
24 later. As to citation, Dr. Allcock was instructed, as
25 he makes clear, to provide a general background to
1 assist the Court, not necessarily a learned study. Do
2 you really make complaint of the lack of citation?
3 A. As I have already stated, when one looks at
4 some of his claims, it's really difficult to know what
5 he's saying because he does not cite. I can give you a
6 very specific example, if you'd like.
7 Q. Yes, give it.
8 A. Well, on page 32 of his report, if you have
10 Q. Yes, we can find it, that's not a problem.
11 A. And I need a copy in front of me, please.
12 Q. That can be provided by the Defence.
13 A. Thank you.
14 Q. There was a problem in your page numbering,
15 sorry -- it was not in his -- I'll come back to that
17 A. Yes, if you look at seven, Roman numeral six,
18 he writes, "Expressions of social distance".
19 THE INTERPRETER: Could it be placed on the
20 ELMO, please.
21 A. Somebody asked to put it on the ELMO.
22 JUDGE MAY: Put it on the ELMO, could you?
23 Yes, can we have the relevant part?
24 A. Yes. Only one part. "Expressions of social
25 distance are notably sensitive to changes in political
1 climate. Two studies done in 1985 and 1990, for
2 example, found that in that period the degree of
3 closure or distance manifested by Albanians had grown
5 Now, the problem here is Albanians could
6 refer to the actual Albanian minority which is very
7 small in Yugoslavia, or to the Albanian people in
8 Albania, or to the Kosovo Albanians but then again, it
9 doesn't say where. One has to assume that these are
10 the same studies that I have spoken about by Lazic and
11 by Sekulic, but it is not at all clear. But even then,
12 what's most problematic here, as I stated yesterday
13 very clearly, in 1985 and 1990 the point of comparison
14 is Croatia. These studies were not done on Kosovar
15 Albanians or any Albanians in 1985 so this is, in fact,
16 a misleading statement. It does not cite, and as a
17 colleague, as a reader, as anyone, one has to make
18 guesses as to what it's true intention is. So this is
19 what I meant.
20 Q. As to that example, you were quite right --
21 THE INTERPRETER: Microphone for the counsel,
23 MR. NICE:
24 Q. You are quite right about the studies he was
25 basing it on.
1 A. It's not clear. One has to guess.
2 Q. Well, they are dealt with in your Appendix E,
3 aren't they, where you indeed do make the appropriate
4 guess because you deal with Lazic's research and you
5 say, 'implies but doesn't cite' this study of
6 Dr. Allcock?
7 A. Yes, but I wouldn't think one had to guess in
8 circumstances such as these. I mean as a professor, as
9 an editor of books, I'm used to things that when
10 somebody makes an argument to present very clearly what
11 they are saying, why, and who they are drawing upon.
12 Q. If he'd cross-examined on this complaint then
13 the matter could have been clarified.
14 JUDGE MAY: That's not a matter for the
16 MR. NICE:
17 Q. Appendix F is the empirical research
18 conducted by Dusko Sekulic and I have no observations
19 to make on that at all. Appendix G is USIA surveys and
20 again in the absence of raw material, we can't deal
21 with that. Appendix H is the 30-page, 31-page rebuttal
22 of John Allcock's testimony which wasn't put to him and
23 so I can't and won't deal with that in detail.
24 Appendix J is the 10-side or 9-side rebuttal
25 of Robert Donia's testimony and again, that not being
1 explored with him I am not going to deal with that.
2 And then we have Appendix K, Senator Daniel Patrick
3 Moynihan on the self-determination versus the
4 sovereignty of nation. Can you just explain that,
6 A. Yes, along the lines of Professor Akbar
7 Ahmed, who is saying in the post-Cold War world, there
8 is a general tendency towards scission, towards chaos,
9 because the world seems to have been thrown out of
10 control. So to speak, Senator Moynihan wrote a book
11 called "Pandemonium" to that effect and, again, I think
12 it was an interesting alternative and an interesting
13 contrast to the focus of your expert witnesses.
14 Q. Providing what answer so far as the Balkans
15 is concerned, so that I can understand it?
16 A. So far as what is concerned.
17 Q. So far as the Balkans are concerned and this
18 particular war, what is the answer that it provides?
19 A. Similar to the answer I gave to one of the
20 Justices yesterday, that precisely because the
21 International Community was disorganised at the time
22 the war erupted in the former Yugoslavia, that gave
23 rise to people falling back on nationalism as a
24 fall-back position.
25 Q. Well, does that in any way legitimise any
1 specific activity in Yugoslavia, Patrick Moynihan's
3 A. No.
4 Q. And then is it finally, I think, we have
5 Tudjman's theory of nationalism and what's the
6 significance of that?
7 A. Again, for the sake of scholarly
8 completeness. Since that book is used by your expert
9 witnesses, I think it should be noted simply for
10 context. This is a book about nationalism throughout
11 Europe, not about Bosnia-Herzegovina, not just about
12 the former Yugoslavia. When one analyses a text, one
13 generally notes the general context. So he was
14 concerned with the rise of nationalism and how this
15 problem could be dealt with throughout Europe.
16 Q. Again, does it legitimise anything
18 A. No, I offer it for the sake of context.
19 Q. Very well. Let's come back to your
20 curriculum vitae, and one thing isn't clear to me. You
21 cover a very wide area geographically. Indeed you
22 cover the world geographically, in your studies and
24 A. Sociology is a cosmopolitan enterprise. I
25 suppose I do.
1 Q. It's not clear, from what you set out, the
2 degree, if any, to which you engage in field work; do
4 A. I engaged in the field work in the field of
5 mental health and I had some publications on that, but
6 I am primarily a theorist.
7 Q. Yes, you are a general, abstract theorist;
9 A. I don't know what a general, abstract
10 theorist means. I apply social theory to interpret
11 studies and events. That's what theorists do.
12 Q. And you are wholly dependent on the field
13 work of others in the sociology works -- in the
14 sociology works that you engage in?
15 A. I would be careful with the word
16 "dependent". I analyse, put into context, criticise
17 the work of others.
18 Q. You are also, well, you accept that, of
19 course, Dr. Allcock has been visiting Yugoslavia and
20 engaging in field work there for 20 years or more?
21 A. I don't know that for a fact.
22 Q. But you have no reason to doubt it?
23 A. No.
24 Q. Thank you. You make obvious points about the
25 performance of scholarship. I think indeed in your
1 bibliography you cite some 400 works. Are they all
2 cited in the text?
3 A. No.
4 Q. Is that padding of a bibliography, please?
5 A. No. As I state in my report, I wish to set a
6 fuller context. It's not padding, I've made it very
7 clear to show that there are a plethora of views and
8 opinions and competing interpretations of what
10 Q. What was your Ph.D. dissertation in, please?
11 A. "In the shadow of Plato: Durkheim and Freud
12 on Suicide and Society".
13 Q. Did that have any connection with the
14 particular topic at hand?
15 A. Yes, I think it does.
16 Q. Better explain it.
17 A. Well, the dissertation deals with not only
18 suicide, with murder, accident rates, death and
19 destruction; how these things relate to the development
20 of societies; how we can use social theory to explain
21 these things as social facts, and I think these kinds
22 of investigations actually are connected to the kinds
23 of issues that are coming to the foreground here in
24 relation to this war.
25 Q. You got a Fulbright scholarship. Of course
1 you will recognise another fellow Fulbright scholar,
2 Bill Tomljanovich, sitting behind me, won't you?
3 Another Croat of American nationality on the same
4 scholarship; yes?
5 A. Yes.
6 Q. I'll come back to that a little later. Can I
7 now look, please, at some of the comments there have
8 been on your work in various learned journals and I'm
9 going to end, you will be interested to know, with
10 comments by Dr. Allcock on your work. Have you read
12 A. Are you referring to his review of my book
13 "Balkanisation of the West"?
14 Q. Yes.
15 A. I believe I may have read it a while ago.
16 Q. And what we will discover so far as he is
17 concerned is that he takes an even-handed approach to
18 you, he's not -- well, we'll look at in its course.
19 Your Honour, these come in bundles, I hope.
20 They don't, I'm sorry they have to be dealt with
21 separately, but I want them to be before the Court.
22 1465.8 because there aren't many of them. If we could
23 have the next one ready to go as soon as the first one
24 is distributed.
25 John Armitage's criticism on the barbarian
1 temperament and the whole thing is in context and this
2 is one view of an academic on you. Right hand column,
3 just over half way down the page, "A final criticism,"
4 if one can see that.
5 "A final criticism concerns the sheer scale
6 of Mestrovic's ambitions. Thus he claims he not only
7 wants to complete Horheimer's affinities with
8 Schopenhauer, but also to supply what he calls a depth
9 sociology and psychology to the works of Baudrillard,
10 as well as subverting the traditional view of both
11 Durkheim and Freud. This is something of a tall order,
12 to say the least. Still, if critical theory's reach
13 does not exceed its grasp, what's a post-modern
14 philosophy for?"
15 Would that be some of the reflection of the
16 criticism for you that you try and encompass far too
17 much --
18 A. I don't know if it's general, I think for me
19 the interesting line is it's a provocative and timely
20 contribution to post-modern critical theory; that's
21 merely all an author would like to see, that's
22 basically a favorable point of view.
23 Q. The next one please, 1472.9. This is on the
24 first sheet, we see under the line where it says "Garth
25 Massey, University of Wyoming":
1 "The prolific professor Mestrovic has added
2 another volume to his list of recent publications, this
3 time combining his revitalization of Durkheim's theory
4 of primacy of morality with a partisan interpretation
5 of the war in the former Yugoslavia, all in the light
6 of 'the affinities between post-modern narcissism and
7 post-communist violence'. It is a daunting and
8 original effort that earlier admirers of Stjepan
9 Mestrovic's work will enjoy. Readers new to his
10 writing may be put off by some intemperate language and
11 a point of view that eschews neutrality."
12 If you turn to the next sheet, the first
13 column, last complete paragraph, the judgement on you
14 here by a fellow academic:
15 "The books central thesis a marred by
16 chapters that may be expected to elaborate, but tend to
17 detract from, Mestrovic's formulation. Chapter 2 is
18 devoted to dismantling the link between Croatia and
19 Nazism and hanging the label of 'Nazis' on Serbia.
20 Chapter 4 applies a superficial post-modernist
21 framework to dissect and critique the U.S. media
22 presentation of the war in the former Yugoslavia,
23 including coverage of wide-scale rape of non-Serbian
25 Do those comments reflect some of the
1 judgement of you that you are -- that you eschew
3 A. I don't think it's a general trend. Again, I
4 think this is a favourable review. Calling me prolific
5 and saying I make some significant contributions to
6 this is all an author can hope for.
7 MR. NICE: 1465.6, please.
8 THE INTERPRETER: Could Mr. Nice speak a bit
9 more slowly when he cites.
10 JUDGE BENNOUNA: Mr. Nice, we are asked to
11 speak a little bit slowly when you read the citations.
12 MR. NICE: Thank you, Your Honour. I've been
13 alerted, and I'll do my best to keep on favourable
14 terms with the interpreters.
15 Q. This, then, by Jan Kubik, and if we look to
16 the last sheet -- I think this is "Habits of the
17 Heart," isn't it?
18 A. No. That should be Thomas Cushman.
19 Q. Thomas Cushman. Thank you. Yes. I want to
20 come back to that in detail later, for a particular
21 reason. But what is said here in the second sheet and
22 in the second column, where you're dealt with in this
23 way, or your book is dealt with in this way:
24 "There are a number of potential problems
25 with an ambitious and broad theoretical study of this
1 kind, not the least of which is paucity of any data on
2 the relationship that the author suggests among family
3 dynamics, religious culture and the emerging
4 structure. At the same time, glaring contradictions to
5 his theory are ignored, such as male-centred Islamic
6 culture that also produces 'virulent' nationalism."
7 And then about ten lines further down:
8 "Most importantly, 'cultural' studies that
9 draw directly on theories of individual behaviour to
10 explain larger social phenomena oversimplify the link
11 between the two levels of analysis. If 'normal'
12 nationalism is defined by public support of the state
13 by the nation, for instance, when did the duly elected
14 Nazi government cross the line into 'virulent'
15 nationalism? By skipping over the interceding
16 structural processes and social dynamics that translate
17 individual action into larger social institutions, his
18 methodology forgoes the stuff of sociology and is
19 limited to blanket explanations that cannot explain
20 social change. Moreover, such a methodology risks
21 promulgating social stereotypes, one of which could be
22 the unregenerate chauvinism of eastern European
24 Is that a sort of typical criticism that
25 there has been of your work, or works, with Cushman?
1 A. This is not a work with Cushman, first of
2 all. And second, your reviewer takes a pejorative view
3 of Islam here. And I'm very glad I did not make the
4 claim that she attributes to me, because I find it
5 pejorative. And given that she does have a pejorative
6 view towards Islamic males and eastern European males,
7 no, I don't find this particularly troubling.
8 Q. Well, now, what I'm going to do, because the
9 time taken to deal with this is time that is in short
10 supply, is I'm going to leave out several which I may
11 try and lay before the Chamber in another way more
12 succinctly later. But I think it's only fair that you
13 should see the Allcock review, which is 2826. You told
14 us yesterday you've never, I think, heard of --
15 THE INTERPRETER: Your microphone, please.
16 MR. NICE:
17 Q. You told us yesterday you've never heard of
18 Dr. Allcock, but it appears you may have heard of him
19 in relation to the review of your books.
20 A. I came across the review when I began the
21 project, my report.
22 Q. I see. Well, this relates to "Balkanisation
23 of the West", and of course was written entirely
24 independently of any known involvement of you in this
25 case or independent of this case altogether.
1 On the second sheet, page 575, towards the
2 bottom -- well, perhaps it's worth looking at the end
3 of the top paragraph. Would you agree with this
4 description of yourself, about eight lines town:
5 "Mestrovic is never a man to pull his
6 punches, even though some of them turn out to be wild
7 swings rather than crisply executed upper-cuts.
8 Consequently, his work is always dramatically
9 thought-provoking, although that experience may result
10 in disagreement with him."
11 Then towards the bottom of the page, about --
12 a couple of inches up, about 20 lines up:
13 "Mestrovic is obviously unaware of the huge
14 disparity which has grown up between popular and
15 governmental responses to the situation in
16 Bosnia-Herzegovina. Consequently, he moves from
17 observations about the inadequacy of politicians, and
18 especially American politicians, to a diagnosis of the
19 total moral depravity of the West, which seems to me to
20 go beyond what the evidence will support, bearing in
21 mind the fact that one of his motivating concerns is a
22 rediscovery of the social and cultural conditions which
23 support caritas. Perhaps he should have devoted a
24 little more attention to the phenomenon of a massive
25 upwelling of popular sympathy for Bosnia among the
1 ordinary people of Europe."
2 And then two lines up from the bottom of the
4 "While taking seriously Mestrovic's
5 insistence upon the importance of cultural continuity,
6 however, we do need to be careful about the dangers of
8 Then the next page, please.
9 "It seems to me to be a perfectly
10 respectable and prima facie convincing hypothesis that
11 the collapse of communist rule will not result in a
12 sudden cultural transformation of the countries of
13 eastern Europe but will reveal the strength of cultural
14 traditions older than communism which in many respects
15 are equally as infertile a soil for the growth of
16 democracy. Where Mestrovic does his own case a
17 disservice, however, is in his apparent readiness to
18 conflate the cultural history of all formerly communist
19 states to a lowest common denominator. This
20 intermittently takes the form of appeals to the work of
21 Dinko Tomasic, which, whatever its merits or demerits,
22 does not provide conceptual seven-league boots which
23 permit Mestrovic to move from the hypothesised cultural
24 attributes of Dinaric man to all Balkan peoples, and
25 thence to the cultural substratum of all communist
2 And then a comment by the author, which I can
3 pass over, unless it's wanted to be read. But the last
5 "If neither post-modernism nor post-communism
6 will bear close conceptual examination, what are we
7 left with? This is a fascinating book. Every
8 colleague I know who has read it has been gripped by
9 its interest. Their response, as well as my own,
10 derives as much from the desire which it rouses to
11 debate the issues which Mestrovic raises rather than
12 simply to adopt his analysis. He also offers us a
13 confluence of three important endeavours: a deep
14 engagement with the social and cultural development of
15 the South Slav peoples, driven by a realisation that
16 this is more than parochial interest; a passionate
17 concern for moral truth; and a keen interest in the
18 value of theory."
19 Here is somebody who disagrees with you, as
20 you can see, strongly, and can do so courteously. Do
21 you still think that the tone of your report was
22 appropriate in this case?
23 A. I am courteous when I disagree with
24 colleagues. And by the way, this is a very flattering
25 review and I appreciate it. I am very courteous with
1 colleagues when I disagree with them in meetings of the
2 American Sociological Association, learned societies,
3 and so forth. I did not see the task here as anything
4 personal in Dr. Allcock. He made some claims in his
5 expert report which I found wanting, I cited some
6 empirical studies that I think contradict it, and
7 that's that.
8 Q. And you think it right, do you, to suggest,
9 as we can find in your report on several occasions, do
10 you think it right to suggest that these experts,
11 Dr. Donia and Dr. Allcock, may, as it were, be fitting
12 in with the Prosecution's case? Is that what you're
13 suggesting from time to time?
14 A. Fitting in the sense that the arguments
15 you make and the arguments they make fit the general
16 pattern of top down, yes.
17 Q. You're not suggesting, are you, or are you,
18 there's been any changing of opinion by these two men,
19 neither of whom comes from the former Yugoslavia and
20 each of whom just has a long interest in the country --
21 you're not suggesting that either of these men has
22 tailored a view to fit the Prosecution, are you?
23 A. No.
24 Q. I may come back to reviews a little later,
25 but before I do, can we look, please, at just one
1 passage, page 2 of your report. There's a slight
2 difficulty with your report in that the page numbers
3 are repeated, but the body of the report is clear. So
4 if we can look at just one passage in detail --
5 JUDGE MAY: Let the witness have a copy of
6 his report.
7 MR. NICE: Page 2. It can go on the ELMO.
8 Q. And it's towards -- it's just a little
9 over -- it's about six lines down on the second
10 paragraph: "Most sociologists accept Weber's central
11 argument ..." The interpreters I think have copies of
12 this document. It's on page 2 and six lines down on
13 the second paragraph.
14 "Most sociologists accept Weber's central
15 argument that highly rational ends/means behaviour,
16 including capitalism, science, rational music and arts,
17 among other cultural products, is possible and is
18 enshrined in Western countries with a predominantly
19 Protestant, especially Calvinist cultural base; namely,
20 the USA, Canada, Great Britain, the Netherlands, and
21 Germany. Countries and societies with non-Protestant
22 cultural bases, ranging from the former Soviet Union
23 and the former Yugoslavia to India, tend to lag behind
24 in cultural activities that regard rational demand,
25 rational ends/means behaviour. Even if this finding is
1 offensive to cultural groups that seek to emulate those
2 that enshrine rational ends/means behaviour, it has
3 been replicated on numerous occasions across the
4 world. It must be emphasised that this sociological
5 argument is cultural in that it involves learned
6 behaviour and does not make any racial or biological
7 assumptions of any sort. Also, sociologists do not
8 make an inherent association between rationality and
9 values," and so on.
10 Now, that passage, would you accept that that
11 would be regarded as offensive to, for example, Croats
12 or Croats living elsewhere in this world?
13 A. No.
14 Q. Does it not suggest inferiority?
15 A. No. I think it states very clearly that I'm
16 not making a value judgement about rationality; simply
17 that rationality does refer to organised, systematic
18 ends/means behaviour, which is indeed taken for granted
19 in the West and is not so prevalent in other
21 For example, there are more lawyers per
22 capita in the United States than anywhere else in the
23 world. Lawyers deal with what is known, and they bury
24 in terms, as rational legal authority. There are much
25 fewer lawyers in non-Western societies. Issues that in
1 the West would go before a court would be settled there
2 by more traditional sources of authority. In no way am
3 I saying that the West is superior; I'm saying the West
4 is different, and there are studies in sociology that
5 document this.
6 Q. At one place in your report I haven't
7 immediately to hand, but we can find it, you even
8 suggest that catching a bus or going to a restaurant, I
9 think, is a qualitatively different experience in the
10 Balkans from that which it is in the West, that that is
11 somehow culturally driven and a reflection of
12 fundamental differences. It's on page 2, I think --
13 page 3.
14 A. Yes. I think if anyone has had an experience
15 of going into a restaurant in eastern Europe, I think
16 it's a fairly general one -- there may be some
17 exceptions, but in general it's a very long wait to get
18 served and to move out, whereas in the United States
19 there is a huge emphasis on fast-food restaurants, such
20 as McDonald's, Burger King, and so forth, which are
21 highly efficient, which are highly organised, and again
22 I think exemplify, not in my view, but in the views of
23 sociologists such as George Ritzer, who take this
24 varying view, do exemplify some of these principles.
25 Q. I'm going to suggest to you that the
1 proposition you advance is extreme and extended, and
2 unpalatable to people who can produce mathematicians,
3 who can run trains on time just as well as people in
4 the West. But you won't accept that?
5 A. No, because again I've cited for you George
6 Ritzer's book on the subject, and no one finds it, to
7 the best of my knowledge, unpalatable; in fact, it's
8 very popular. It is standard reading in most sociology
9 courses in the United States. There are many, many
10 conceptualisations of the United States being a sort of
11 fast-food kind of place. I don't think this should be
12 construed as offensive in a culture that does not take
13 to fast food.
14 JUDGE MAY: Mr. Nice, have you ordered a meal
15 recently in The Hague?
16 MR. NICE: I was going to make that point,
17 Your Honour, but I thought that, out of respect for my
18 host country, I shouldn't make it publicly. But, Your
19 Honour, I entirely agree with the underlying thesis.
20 May the witness please have a copy of
21 Dr. Allcock's report. I don't know if there's a marked
22 copy in the Defence bench. Is there?
23 THE WITNESS: It's right here.
24 MR. NICE:
25 Q. Can you lay on the ELMO appendix 6. This is
1 an appendix that I think you did not comment on in your
2 report, presumably because you had nothing to say about
3 it. It's right at the end. If you bring it here, I'll
4 find it. Let me lay this one on the ELMO. Here it
6 You understand that at the time that
7 Dr. Allcock prepared his report, he had and could have
8 had no knowledge that you were involved at all in the
9 work of the defence for Kordic, so that his appendix 6
10 was written ignorant of your future involvement. And
11 we'll just read it. It's a page and a half, and I'll
12 ask for your comments. He says he heads it with your
13 name and the theory of social character and he says
15 "The political transformation of Croatia and
16 the Croatian national movement in general has gone
17 along with several attempts on the part of academics of
18 different disciplines to provide intellectual
19 foundations for secession from Yugoslavia.
20 These are of interest and relevance to this
21 report for three reasons: One, they support the claim
22 that Croat secessionism has been more than an ad hoc
23 and pragmatic response to the course of the political
24 and economic crisis which engulfed the federation after
1 Two, these ideas were being advanced in some
2 case by individuals who were close to the leadership of
3 the HDZ.
4 Three, while not necessarily indicating that
5 their authors held to views which could be described as
6 racist are open, in some cases, to a reading along that
7 line and to exploitation by those who might wish to
8 find academic justification for extreme political
10 Now, you didn't comment on this appendix in
11 your report unless I have missed it. If I have, I
13 A. No, I did not.
14 Q. Do you accept his thesis?
15 A. No.
16 Q. Tell us what's wrong with it then.
17 A. As I made clear in "Habits of the Balkan
18 Heart", I've following a trajectory or tradition
19 established by writers such as Emil Durkheim, Alexis
20 De Tocqueville, David Riesman in a book entitled "The
21 Lonely Crowd" where he discussions the social character
22 of Americans in a book that sold 1.5 million copies and
23 David Riesman was my major professor at Harvard
25 Seymour Martin Lipset who wrote a book called
1 "Continental Divide" in which he argues that there are
2 differences between social character between Canadians
3 and Americans despite similarities between these
4 peoples overall in language in religion, in ethnic mix,
5 and in other factors.
6 So it is a respectable, venerable concept
7 used by people who in no way are racist and does not
8 carry any connotations that would imply biology or that
9 this character is indelible. It simply talks about
10 what it is about a Canadian that makes him or her a
11 Canadian versus an American. So, for example, Lipset
12 talks about how Canadians tend to be conservative, tend
13 to accept big government, whereas Americans tend to be
14 very individualistic and they mistrust big government.
15 In "Habits of the Balkan Heart", I'm doing no
16 more or no less in suggesting something similar. That
17 there is this idea of social character, something that
18 makes cultural groups different.
19 Q. What we've reached in this appendix of
20 Dr. Allcock, if you look at it carefully, says while
21 the authors -- well, not necessarily indicating that
22 the authors held to views that could be described as
23 racist, "... it's open to a reading along that line and
24 to exploitation." Do you accept that?
25 A. No, that's his opinion. I've never seen it
1 used by anyone for racist points of view.
2 Q. He goes on to say this in paragraph two,
3 "Young Croatian sociologist, Stjepan Mestrovic, has
4 produced a succession of publications since 1993 in
5 which he has sought to revive the work Tomasic.
6 Tomasic issued in 1948 his personality and culture in
7 eastern European politics in which he argued that the
8 peoples of the Balkan region would be divided into two
9 broad types, ethnographically speaking, the Zadruga
10 culture and Dinaric culture. These were founded on
11 different types of ecology yielding contrasting ways of
12 life, different types of life which he believed gave
13 rise to opposed personality types.
14 His argument was that the history of the
15 Balkan region in particular, but also eastern Europe
16 more generally, could be understood in terms of cycles
17 of conflict between these antithetical cultures.
18 Tomasic interpreted the history of the
19 Balkans in terms of cycles in which the war-like
20 Dinaric pastoralists periodically descended from the
21 hills to impose themselves upon the peaceful agrarian
22 Zadruga agriculturalists. Following victory, they
23 settled in towns, became assimilated by the lowlanders
24 and embarked on a process of decadence to be replaced
25 before long with another wave of Dinaric conquest."
1 Now that is a summary but is that a summary
2 of the Dinaric culture upon which you rely to explain
3 these events?
4 A. No.
5 Q. What's wrong with it then?
6 A. Dinko Tomasic was educated at the Sorbonne.
7 He was a distinguished professor of sociology at
8 Indiana University. He was highly respected in
9 sociology. His book, which is cited, was favorably
10 reviewed, and I cite those reviews in my book, in the
11 American Journal of Sociology and a number of other
12 eminent work.
13 Basically what that theory states is again
14 something that's nonproblematic. That in mountainous
15 regions throughout the world, not only in the former
16 Yugoslavia, there is a tendency to less
17 cosmopolitanism, more isolationalism, less contact with
18 other peoples. This is in true as the Appalachians in
19 the United States, for example, as it would be in the
20 hills of the former Yugoslavia.
21 And that this isolationism, this lack of
22 cosmopolitanism, coupled with the patriarchy of the
23 way, usually the way the people are raised there, can
24 produce a value system not an unchangeable one, not a
25 permanent one that is not add odds and a cosmopolitan
1 and more democratic outlook than one will find in a
2 cosmopolitan urban setting in which people from many
3 ethnic groups are thrust upon the other. That would be
4 my summary of the significance of Dinko Tomasic.
5 Q. And have I understood your report correctly,
6 and I'm not sure that you are differing from
7 Dr. Allcock, but that it's the mountainous Serbs that
8 are more capable of top down calculated leadership and
9 the lowland Croats who aren't; is that what you are
11 A. No, you will find that nowhere my report.
12 Q. How does Dinaric culture as opposed to
13 Zadruga culture have any bearing, please, on the
14 unravelling by this Court of what happened in the Lasva
16 A. Mr. Nice, I did not bring this theory into
17 the report. I did not bring this in to try to explain
18 the unravelling of the Lasva Valley. I brought it in
19 "Habits of the Balkan Heart", as I've stated in a
20 larger discussion of De Tocqueville, Riesman, Lipset
21 and other people in the disintegration of Yugoslavia
22 following the end of communism. These are very
23 different tasks.
24 Q. Let's just look at the last two paragraphs of
25 what, ignorant of your future involvement, Dr. Allcock
1 said. Paragraph three, just over the page, please,
3 "Although largely discredited since the
4 period of its publication, the work of Tomasic has been
5 taken up in the form of Stjepan Mestrovic's theory of
6 social character as providing the basis for an
7 interpretation of the events surrounding the collapse
8 of Yugoslavia. Mestrovic goes beyond Tomasic in a
9 number of respects particularly in that he quickly
10 abandons the relatively firm ecological footing of the
11 latter's ideas and frequently falls into a simple
12 equation between Dinaric peoples and Serbs or
13 Montenegrins and Zadruga types and Croats which borders
14 on straightforward racism. (It happens also to be
15 anthropological nonsense for a variety of reasons which
16 it would be distracting to enumerate here.)
17 An important point to note about the work of
18 Mestrovic is that it is acknowledged by the author to
19 be based upon his cooperation with Slaven Letica who
20 was not only a sociologist based at Zagreb University
21 but also an aide to President Tudjman. Together with
22 the work of Anto Valenta, it does suggest that
23 quasi-academic ideas which lend themselves to the
24 support of ethnic intolerance have circulated
25 regularly, and have been taken seriously, among those
1 who hold influential positions within the HDZ both in
2 Croatia and in Bosnia and Herzegovina."
3 I take it you don't accept any of that.
4 A. Correct.
5 Q. Save for the fact that it's true that you
6 were working in cooperation with Slaven Letica?
7 A. Yes.
8 Q. What do you say then, please, about the value
9 of Anto Valenta's book?
10 A. May I return to Slaven Letica for a moment?
11 Q. Of course.
12 A. He's my friend's, he is my colleague. What
13 is not noted is that he resigned for working for
14 President Tudjman and has been one of President
15 Tudjman's more severe critics. So this attempt to
16 smear him and to smear me, again, in an unsubstantiated
18 I notice here that there is no citation for
19 my book, and I will repeat here again; in my book, I
20 make it very clear I'm making a cultural argument, not
21 a biological one, no ties to politics, and that I'm
22 working in a very venerable tradition not relying upon
23 Dinko Tomasic but putting him in the context of Alexis
24 De Tocqueville's "Democracy in America," David
25 Riesman's "The Lonely Crowd" and other venerable
2 Now as for Anto Valenta, I have no
3 connection, I don't know why Mr. -- Dr. Allcock would
4 choose to link the work of Anto Valenta. In my book, I
5 see no connection here whatsoever. I never cite him.
6 I never knew about him. I see no connection here
8 JUDGE BENNOUNA: [Interpretation]
9 Mr. Mestrovic, could we usually call you in sociology
10 is called a "culturalist"?
11 A. Yes, Your Honour.
12 JUDGE BENNOUNA: [Interpretation] Very well,
13 thank you. Do you draw some consequences about
14 cultural differences are they based on the respect or
15 lack of respect for human rights?
16 A. If Your Honour is asking me in general, yes,
17 I do. In this report, I do not. If you care for me to
18 elaborate in general in response to your specific
19 request, I will do that.
20 JUDGE BENNOUNA: [Interpretation] Does this
21 mean that the cultural diversity may justify the lack
22 of respect for the human personality in certain
24 A. No, Your Honour. What I would say, which I
25 think would be supported by most cultural theorists, by
1 most sociologists, is that the West does have an
2 ingrained cultural tradition of respect for human
3 rights, again, going back to the Declaration of
4 Independence, the Constitution, the Bill of Rights, the
5 Reformation, the Renaissance, a number of writings.
6 There is a very long cultural and very rich cultural
7 history in the West.
8 I do not see it as offensive but I do see it
9 as a matter of fact that those societies which did not
10 experience those events, namely the Reformation, the
11 Renaissance, the Bill of Rights and so forth will have
12 a more difficult time, culturally, with the notion of
13 human rights and therefore will have to, in a sense,
14 experience it vicariously through the West.
15 JUDGE BENNOUNA: [Interpretation] Thank you.
16 And my last question about your views about nationalism
17 in relation to the end of the Cold War.
18 Mr. Mestrovic, do you think that a
19 nationalist will ever come up, will invent a foreign
20 enemy in order to be able to structure himself? Would
21 you support that theory that a nationalist needs to
22 create a foreign enemy in order to structure himself as
23 a nationalist, in order to lend strength to his
25 A. Not necessarily, Your Honour. Instead, I
1 would say that there are different varieties of
2 nationalism. A certain amount of nationalism has to be
3 present even in western societies or people would not
4 go off to war. They would not want their children to
5 die for a patriotic cause. They would not pay taxes.
6 So that nationalism is tempered by other institutions
7 in the culture which promote human rights and
9 In other cultures, the nationalism, if it is
10 not mitigated or tempered by other cultural factors,
11 may degenerate into a war-like stance but again there
12 will be mitigating factors.
13 JUDGE BENNOUNA: [Interpretation] And the --
14 does nationalism need a foreign enemy or not?
15 A. Not necessarily, Your Honour.
16 JUDGE BENNOUNA: [Interpretation] Thank you.
17 Mr. Nice, and of course I'm speaking in my
18 own name, but I believe that we have made a round of
19 theoretical and sociological views of Mr. Mestrovic and
20 what interests us more specifically is his report
21 insofar as it does with the case before us, so could
22 you please try to focus on these matters?
23 I believe that the Chamber has been amply
24 informed today because you have before you professional
25 judges and we are broadly informed about
1 Mr. Mestrovic's positions as a sociologist.
2 MR. NICE: Yes, and my next topic was to pick
3 up an answer of the witness to ask him this question.
4 Q. You say that the purpose of your report was
5 to offer, amongst other things, you said this, was to
6 offer alternatives to the reports of Donia -- well, in
7 particular, of Dr. Allcock. But what is your
8 alternative? What have you provided?
9 A. Well, it's set in my report that the lion's
10 share of the blame for what occurred in
11 Bosnia-Herzegovina lies with Slobodan Milosevic of
12 Serbia. It was Serbian aggression against Croatia
13 first, and Bosnia-Herzegovina second, which created a
14 set of circumstances, especially demographic
15 conditions, which basically put tremendous pressure
16 upon two peoples; the Bosnian Muslims and the Croats
17 who, by the empirical research that I have cited, were
18 extremely tolerant at the time.
19 So a very tolerant Bosnia-Herzegovina was
20 squeezed first by the fact that about 70 per cent of
21 its territories went over to the Serbs about two weeks
22 after hostilities started, and then the Bosnian Muslims
23 and the Bosnian Croats, who were allies, tragically
24 ended up fighting each other for an ever-decreasing
25 share of the pie.
1 That is the alternative explanation in
2 summary form that I give.
3 Q. Returning to His Honour's question just a
4 minute ago, about the need or necessity for an enemy.
5 The existence of an enemy creates a fertile territory,
6 intellectual territory for the generation of
7 nationalism and for the generation of ethnic
8 intolerance, doesn't it?
9 A. I would not recognise that as a sociological
10 theory. I would give alternatives to what you give.
11 Q. I wasn't suggesting it as a sociological
12 theory, I was asking it as a matter of common sense.
13 If you have an enemy to fight that gives rise to the
14 potential to build nationalism, it also gives rise to
15 the potential to build ethnic disquiet particularly if
16 -- well, go and answer that if you will, please.
17 A. I'm sorry, I don't know what the term "common
18 sense" means, I would rather stick to my sociological
20 JUDGE MAY: Well, you know what common sense
21 means. Yes. Just answer the question, please.
22 A. Your Honour, I believe that intolerance does
23 not necessarily lead to violence, and tolerance does
24 not necessarily prevent war. I do believe that the
25 enemy is created. It is not something that's waiting
1 out there, it is created through a set of contingent
2 circumstances and changes.
3 MR. NICE:
4 Q. Is that any different from what Dr. Allcock
5 has proposed?
6 A. I'm not sure.
7 Q. Although I want to stay contemporaneous for
8 the time being and probably for the rest of my
9 questions which I hope won't go on much longer, there's
10 one matter broadly connected that I'd like to go
11 through with you. If you'd go to page 26 of your
12 report, please.
13 Now, on page 26 of your report, you -- bottom
14 of the page, please. You make this suggestion,
15 "Whereas the Prosecution uses the 'frame' of the
16 Ustasha as the central focus for its depiction for the
17 origins of Croatian independence in the 1990s, Sekulic
18 uses the larger frame and so on."
19 Now, where do you get that suggestion that
20 the Prosecution used the frame of the Ustasha as the
21 central focus for independence of the origins of
22 Croatian independence?
23 A. Dr. Allcock's report goes into great length
24 about the NDH, about Croatian iconography from that
25 period, about Croatian symbols, and does make the
1 suggestion that there were some connections between the
2 HDZ and the symbolism of the Ustasha.
3 Q. Shall we look, then, please, at Dr. Allcock's
4 report, which we can lay on the ELMO conveniently.
5 First of all, page 60. And we need only look at three
6 short passages, but take us wider if you think the
7 context demands it.
8 Starting at page 60, in paragraph 3.4, the
9 last few lines of which are what I refer to, what he
10 actually says, having summarised some of the matters
11 that you're referring to, but we can read in detail if
12 we need to:
13 "Not all Croat emigres were Ustasha
14 supporters by any means. The Croatian Peasant Party
15 continued to operate from headquarters in Canada."
16 That's perhaps not such an important
17 passage. If we go over to the next page, page 61,
18 paragraph 4.1, this may be the passage you have in
20 "It is important to acknowledge the cautious
21 and partial rehabilitation of the NDH, which the HDZ
22 was prepared to support. Its position went by no means
23 far enough for several more strident factions, notably
24 the HSP. In some respects, the HDZ can be said to have
25 adopted the superficial trappings of the NDH without
1 committing itself publicly to its substance. Although
2 the HDZ never advocated the extreme racist policies of
3 the NDH, its concern to reiterate at every opportunity
4 the narrative of the historical continuity of Croatian
5 political identity led it to adopt historical symbols
6 of the former Croatia, notably the checkerboard flag."
7 To take matters fairly, and I hope swiftly,
8 if we go to 4.2, where other matters, and in particular
9 the renaming of streets in Zagreb, has been covered,
10 Dr. Allcock says this at the end of 4.2, in brackets:
11 "This practice has been given exaggerated
12 importance on occasions in that the authorities have
13 been criticised for including individuals who, while
14 prominent in public life, were not necessarily
15 supporters of Pavelic. However ill-informed criticism
16 has been on occasions, its policy was controversial."
17 And then finally on page 62, to see how
18 Dr. Allcock really expressed the position, in paragraph
19 4.5, this, the last four lines, please:
20 "Nevertheless, it is certainly not the case
21 that the HDZ has espoused the racist policies and
22 genocidal practices of that regime, and individuals who
23 have done so have generally found their political home
24 in other more extreme organisations within Croatia,
25 such as the HSP."
1 Now, that's actually how Dr. Allcock
2 expressed himself. If we go back to what you were
3 saying on your page 26, I'll just remind you, the
4 suggestion that the Prosecution frame of the Ustasha as
5 the central focus for the origins of independence is
6 simply incorrect, isn't it?
7 A. I don't think so, because there's a long and
8 tedious discussion of the Ustasha and its symbolism in
9 the Allcock report. It is central to, despite his many
10 nuances and ramifications, to the discussion. And the
11 context of my paragraph is clearly, if you read that
12 page, in relation to Dusko Sekslic, who is making the
13 point that there were eminent Croats who were
14 instrumental in the creation of a multiethnic
15 Yugoslavia. He never mentions that. And I think
16 again, for the sake of context, I thought it was
17 important to offer a contrast and a competing point of
19 MR. NICE: Your Honour, I notice the time. I
20 intend to reduce to the bare minimum what remains, and
21 I hope it won't be very much longer. I imagine the
22 other witness is available for this afternoon and
23 certainly can be completed in the afternoon. I observe
24 through this witness that the complaints made about or
25 comments made about Dr. Donia and Dr. Allcock were
1 never put to them, and indeed if I were to complete
2 what I have to say in half an hour, it would always be
3 possible for them to give their own explanations as
4 they're here, should the Court want it, in answer to
5 the complaints that are made, and we would be happy for
6 that to happen.
7 JUDGE MAY: We'll consider that. We'll
8 adjourn for half an hour.
9 --- Recess taken at 11.02 a.m.
10 --- On resuming at 11.40 a.m.
11 JUDGE MAY: Yes, Mr. Nice.
12 MR. NICE:
13 Q. Your top-down/bottom-up theory approach, if
14 -- and this is going to be for the Judges, of course,
15 to decide -- if it's found in due course that in
16 December 1991 President Tudjman was planning for
17 possible annexation of Bosnia and, further, was
18 planning to keep things private by having a dual-track
19 approach, doing something in public and doing something
20 in private, if that's the case, that doesn't fit with
21 your theory, does it?
22 A. That's correct.
23 Q. If it's the case in January of 1992, at a
24 meeting in Busovaca, Dario Kordic and others were
25 speaking, and one in particular, a man called
1 Kostroman, was espousing strong and, by many, thought
2 to be unacceptable views on linkage with Croatia --
3 this is in January 1992 -- would that fit with your
4 understanding of the history? This would be an HDZ
6 A. Well, I don't understand the question. I
7 mean --
8 Q. It's difficult not seeing the video, but we
9 don't have time. If we have a political meeting -- I'm
10 not going to trouble you too much with what Dario
11 Kordic said, but just to take -- the man Kostroman, was
12 saying that Busovaca was Croatian land and would be
13 subject to Croatian laws. If that was a position being
14 taken by representatives of the party in January 1992,
15 publicly, so to whip up enthusiasm, does that fit with
16 your theory of an absence of top-down control?
17 A. Well, I'd have to know the context.
18 Q. Very well. Yes. He was the secretary of the
19 HDZ, the man Kostroman. Did you know anything about
21 A. No.
22 Q. Am I right in thinking you know nothing of
23 the man Valenta, or is it that you don't wish to be
24 associated with Valenta's works?
25 A. I know nothing of the man Valenta.
1 Q. Can we look at your report, please --
2 JUDGE ROBINSON: Mr. Nice, I wanted to ask
3 Dr. Mestrovic a question in relation to the top-down
4 and bottom-up theory. Might it not be the case that
5 what happened reflected characteristics of both top
6 down and bottom up, or is it that the discipline that
7 you pursue doesn't allow for that kind of mixture?
8 A. I think Your Honour I would agree with you I
9 think it does allow for a top down and bottom up, and
10 it does allow for that kind of mixture.
11 JUDGE ROBINSON: Thank you.
12 MR. NICE:
13 Q. Can we look, please, at page 61 of your
14 report following on the same topic. So if we just look
15 at this, the end of the first paragraph, six, seven,
16 eight lines up and I'll read it slowly. "The rational
17 top down explanation may apply to Belgrade to some
18 extent, but not to Zagreb and not to Sarajevo."
19 Pausing there, should we, in light of your
20 last answer to His Honour Judge Robinson say "but only
21 to a limited extent" or "only to some extent to
23 A. Yes.
24 Q. Thank you. Can you explain how you never
25 made that concession, really, in your report before?
1 A. Because I was responding to the rather
2 one-sided approaches of top down that I found in the
3 works of your expert witnesses.
4 Q. I'm sorry. First of all, it's not accepted
5 for one minute that that's the correct characterization
6 of their reports or anything like it, but even if it
7 were the case, do you have to respond to white with
8 black if the true answer is grey?
9 A. There are a number of places in this report
10 where I make it clear that to some extent, either one
11 of these or both explanations can be at work.
12 Q. We may have to find those places. We may not
13 have time. I press on.
14 I read on, "The Bosnian Serbs supported by
15 Belgrade, fought against the Muslim-led Sarajevo
16 government forces and those of the Bosnian Croats. The
17 two allies, Bosnian Croats and Bosnian Muslims, turned
18 against each other for a time even as they remained
19 allies during the same time in other parts of Bosnia.
20 It cannot be repeated often enough that in the northern
21 strip of Bosnia, especially, in Orasje, Bosnian Croat
22 and Muslim brigades maintained their alliance against a
23 common Serb enemy."
24 The position, I think, is this: This is the
25 Posavina you're talking about here, isn't it?
1 A. Yes.
2 Q. Which is the strip of land that crossed the
3 top of Bosnia providing an essential corridor so far as
4 the Serbs judged it; correct?
5 A. Yes.
6 Q. And if one looks at, and Your Honour to save
7 time I can lay on the ELMO my page of 92.1 which is a
8 document we looked at yesterday, the Graz agreement,
9 this is the agreement made at Graz and it's -- I want
10 your help on these things, please. We see this, one
11 and two items. One and two reveal disagreement or
12 failure to agree between Serbia and Croatia in respect
13 of Mostar.
14 One says, "In the city of Mostar, the Serbian
15 side considers the Neretva River to be the borderline,
16 while the Croatian side considers the entire city of
17 Mostar to be within the Croatian constituent unit."
18 And item two says, "South of Mostar, the
19 Croatian side considers the entire area delineated in
20 1939 to be within the Croatian constituent unit. The
21 Serbian side considers the Neretva River to be the
23 So items one and two reflect, if you like, an
24 agreement to continue disagreeing; would you accept
1 A. I know nothing of the context of this
2 document, when was it taking place, where was it taking
3 place, who signed it.
4 Q. You'll have to, of course, you'll have to
5 accept simply for the purposes of this part of the
6 discussion, that this is a document at Graz and that it
7 reflects an agreement between the Serbs and the
9 Are you aware of the agreement or is it a
10 fact of which you are entirely ignorant?
11 A. I'm not aware of this particular agreement
12 and I'm not prepared to speak on something I have no
13 expertise upon.
14 Q. I want you to look at paragraph three,
15 please. "Both sides agree that in defining the
16 borderline between the two constituent units in the
17 areas of Kupres as well as Bosanska Posavina account
18 should be taken of the compactness of areas and
20 Now this is your area of expertise. They're
21 dealing there with the Posavina, are they not?
22 A. No, this is not dealing with my area of
23 expertise. I see nothing sociological here. I see
24 this as a matter for historians or people who are
25 experts in documents.
1 Q. Well, then what I want you to help me with is
2 this: If it be the case, following an agreement of the
3 type I've suggested is revealed here, if it be the case
4 that following such an agreement, fighting stopped in
5 the Posavina but continued on in Mostar where there was
6 disagreement, doesn't that reflect top down control in
7 respect of both sides, both sides to the agreement and
8 both sides to the disagreement?
9 A. Well, not necessarily. I'd have to know a
10 lot more about the situation. I'm not prepared to make
11 such judgements.
12 Q. Well, then, finally on this point, if you
13 have two areas, the Posavina and the Lasva Valley, in
14 one of which there is a controlling figure and in one
15 of which there is not. Would you expect, on your
16 theory -- that is a controlling figure on the Croat
17 side -- on your theory, where would you expect to find
18 ethnic intolerance, in the one with no controlling
19 figure or the one with a controlling figure?
20 A. I would expect, based on what I know as a
21 sociologist, for the ethnic intolerance to be where
22 there is a firm majority of one ethnic group and a
23 minority. Because of the general proposition found in
24 the studies I've cited that where there is a great
25 majority, it's the majority that tends to be
1 intolerant, as in Slovenia and Kosovo which were found
2 to be the most intolerant republics.
3 So that works for the enclave as well and I
4 cited the study in 1999 in "Social Forces" by Dusko
5 Sekulic to that point.
6 Q. But you really have no knowledge of the area
7 and no knowledge of the details that I've been raising
8 with you.
9 A. No knowledge upon which I can offer my
11 Q. And do you accept that the Croats were in the
12 minority in most of the territory of Herceg-Bosna?
13 A. What areas are you referring to as
15 Q. I'm not going to take time on that. Can I
16 have that exhibit back. Can I turn to something else,
18 You quote Dr. Donia, and we can find it, if
19 you want, at page ten of your report. You quote
20 Dr. Donia from his book, "A Tradition of Trade" as
21 saying, "At no time did Bosnians fight civil wars," my
22 emphasis on the word civil, "along these or any other
23 ethnic lines." Do you remember that quotation?
24 A. Yes, I do.
25 Q. That comes from Dr. Donia's book written by
1 Donia and Fine, and would you accept that that comes
2 from a chapter written by Fine rather than by Donia?
3 A. I have no knowledge of that.
4 Q. Well, I can show you the copy of the
5 introduction to the book if you want to have a look at
6 it, lay it on the ELMO. I really don't think it needs
7 to be -- just that page, two pages on the ELMO.
8 Your Honour, I hope this won't need to become
9 an exhibit, it can be if it's wanted to.
10 What I'm showing you -- by showing it to you
11 on the ELMO that the book is available. In the
12 introduction to the book, there's page one of the
13 introduction. If we go to the next sheet, you'll see
14 that there is a reference to Chapters 1 to 4 dealing
15 primarily with medieval and Ottoman periods written by
16 John Fine. So that's where the quotation where you lay
17 at Dr. Donia's door actually comes from.
18 You've talked a lot about scholarship, what
19 are you saying so that I can understand this? Are you
20 saying that because he co-authored a book he should
21 accept full responsibility for what his co-author
23 A. It's a tricky case. I mean I've co-authored
24 and co-edited books, and generally there is a degree of
25 collaboration between the two and there should be some
1 degree of mutual responsibility. This is a rather
2 unusual thing to be doing.
3 Q. Can we look at another exhibit, please, 2825,
4 I think this is my penultimate exhibit. This is a
5 passage from a book of yours edited by Cushman and
7 A. Mmm-hmm.
8 Q. It's a book in respect of which you said, I
9 think, you had an almost perfect working relationship
10 with your colleague Cushman; correct?
11 A. Yes.
12 Q. If you go to the second page which is -- and
13 is in the introduction of the book something for which
14 you share responsibility, just over half -- well,
15 second paragraph, about eight lines down, we see this
16 passage. "To be sure, Croatian offensives against
17 Bosnian Muslims in 1993, particularly in the city of
18 Mostar, were contemptible and indefensible; those
19 events should be publicly exposed and those responsible
20 punished. The International War Crimes Tribunal has
21 indicted seven Croats including individuals directly
22 and closely linked to Franjo Tudjman. Indictments of
23 Bosnian Croats for war crimes is one indication that no
24 side is without blemish in this conflict."
25 A view to which you still cleave?
1 A. Yes.
2 Q. If we turn, please, to the next page, in fact
3 the next page is 27 for context and it's really on 28
4 that I want your assistance, in the introduction to the
6 And if we go over then to page 28, paragraph
7 9, just read this and see if you still stick to this,
8 "The leader of the Bosnians, Alija Izetbegovic, is an
9 Islamic fundamentalist."
10 A. That is a view we reject, of course, here.
11 Q. "This is a variant of the more general
12 orientalist theme rather than a comment on
13 Izetbegovic's own book 'Islam Between East and West',
14 in which Izetbegovic's admiration for the West is so
15 great as to be pathetic given how the West has rejected
16 him. In fact, Izetbegovic takes great pains to show
17 the distinctive identities of Bosnian Muslims as being
18 between east and west." And then this quote, or this
19 line, "Anyone even faintly familiar with the history of
20 Bosnia would find the assertion that Bosnians are
21 Islamic fundamentalists preposterous given Bosnia's
22 history of religious tolerance, pluralism and
24 Do you still stick with that?
25 A. Yes.
1 Q. Does that -- perhaps I should go on. "This
2 frame is taken directly from Serbian propaganda, which
3 uses a youthful work by Izetbegovic," and so on.
4 Do you say that what you're saying there
5 about the history of tolerance and pluralism and
6 cosmopolitanism is entirely consistent with the report
7 that you've presented to this Court?
8 A. Yes.
9 Q. Can I ask you to look, please, in your report
10 at page 53. On page 53 at the foot of the page
11 following an analysis, if we could go to the bottom of
12 the page there's a man called Zimmerman who you deal
13 with. The Court knows who he is, and you say this as a
14 conclusion: "Thus, both Zimmerman and Donia assume a
15 negative attitude toward any form of separatist
16 nationalism and assume a positive attitude toward
17 integrationist nationalism represented by Slobodan
18 Milosevic and to a lesser extent Alija Izetbegovic."
19 Do you really wish to say that about
20 Mr. Zimmerman?
21 A. Yes, because in his book he very clearly
22 singles out Franjo Tudjman as the nationalist, whereas
23 he says that Slobodan Milosevic was not a nationalist
24 but was simply bent upon power. So he, Mr. Zimmerman,
25 places his more pejorative remarks for Tudjman. Yes, I
2 Q. Very well. I have -- the chronology that you
3 set out between pages 45 and 48 and 49 of your report,
4 50, actually, was it your own chronology or was it
5 simply copied from elsewhere?
6 A. It was copied from the Carnegie endowment,
7 which I cite, their chronology.
8 Q. I know that you cite it. Did you check it
9 for accuracy before you included it in your report, or
10 did you just put it in lock, stock, and barrel?
11 A. I don't know how well I may have checked it
12 for accuracy.
13 MR. NICE: Your Honour, I think I'm going to
14 leave comments on the chronology insofar as they're
15 material for argument later, because I don't think it's
16 going to use your time very usefully if I take time
17 with it now. Would Your Honour just give me one
19 Q. There's only one other general point that I
20 want to be sure I understand so that we can either lay
21 it to rest or pursue it.
22 When you speak of the clash of cultures and
23 the differences that apply to Croatia, for example, do
24 you partition up Croatia and say that it really does
25 only apply to -- I beg your pardon. I'll start again.
1 When you speak of the clash of cultures and
2 the differences that apply to the former Yugoslavia,
3 you really do, do you, partition up the former
4 Yugoslavia and say that different standards should be
5 applied to the Serbs from that which are applied to the
7 A. What kind of standards, Mr. Nice?
8 Q. Well, when you were speaking, as we saw in
9 page 2 of your report, which we looked at in detail,
10 and when we looked at the passage about ordering food
11 in restaurants and matters of that sort, do you say
12 that those comments apply to all of the former
13 Yugoslavia or only to Croatia or only to Bosnia?
14 What's the position?
15 A. Well, of course there will be a complex
16 continuum, where I think the United States, as I've
17 indicated already, has a sort of fast-food
18 orientation. There are McDonald's openings in Zagreb
19 and Belgrade but not as many, of course, as there would
20 be in Miami. It's a continuum.
21 Q. Just help me, because I'm not a sociologist,
22 that you would understand; I don't pretend to be. In
23 order to distinguish these two opposing cultures,
24 advanced and less advanced, do we also have to look not
25 just at where people come from, but at what they do?
1 A. I'm sorry. I don't accept the premise of
2 advanced or less advanced. I believe I answered that
3 very clearly earlier on. I am not saying one is more
4 advanced than the other; simply different.
5 Q. All right. On the concept of difference, do
6 we have to look not just at where cultures come from,
7 but at what they're doing at a particular time? For
8 example, to build on your example of the train service
9 and the restaurants and so on, do we have to look at
10 what cultures are doing at particular times to judge
11 their difference, one from another?
12 A. One has to look at a particular time, but one
13 has to also look at development over time.
14 Q. Here we've got warring parties at some
15 stage. Were it to have been the case that one party or
16 the other was formerly wandering around the streets
17 armed with sharp and dangerous knives and other
18 weapons, would that be an indicator that they were
19 different, and significantly different, from what
20 you've described as "the West"?
21 A. Mr. Nice, these are hypothetical sorts of
22 questions. I mean, I really am at a loss how to answer
24 Q. You deal in theory and other people's
25 research and you deal in the hypothetical, don't you?
1 A. No. Again, I stated clearly: I use very
2 solid theory to interpret very specific events and
3 works by others.
4 Perhaps I can cut to the chase and say that
5 in the case of Slobodan Milosevic, there was a certain
6 degree of rational top-down planning in that, one can
7 see that there was an ideology of Greater Serbia that
8 had been present for a long time; that in 1986, Serb
9 Academy of Arts and Sciences memorandum had established
10 this as a platform; that there was preparation for war;
11 that the Orthodox church did not oppose it. And so
12 there, because the Serbs had inherited much of the
13 machinery of the West in terms of having embassies and
14 government centres, and even because Marxism, Leninism
15 is itself a Western cultural product, we see more,
16 again on a continuum, of a rational top-down system or
18 My point is that when one looks at the
19 Croats, one sees a nationalism that is less prepared
20 for war. They simply did not have, in 1990, the armies
21 and the weapons that the JNA had. You had the Roman
22 Catholic Church, which was much more independent of the
23 government than was the situation in Serbia. You did
24 not have anything like an equivalent of a Croatian
25 Academy of Arts and Sciences that was making a
1 programme like this. So there are differences, and
2 that's the way I would answer your question as a
3 sociologist, to look at mitigating factors and a matter
4 of continuum, not these kind of black-and-white
6 Q. I'm not going to take that any further
7 because, as His Honour Judge Bennouna said, we've gone
8 through theory earlier today.
9 1472.8, please. This is my last exhibit.
10 This is a review of your book "Habits of the Balkan
11 Heart," and we can see, if we turn to the second sheet,
12 the last page, I think, it's by Andrei Simic. You
13 would accept he is a respected academic from the
14 University of Southern California?
15 A. Yes.
16 Q. This is what he has to say. If we just lay
17 it, top of the page, on the ELMO. Next page, please.
18 Thank you very much. And it's just the top section, if
19 we can get into that.
20 "One of the most disturbing aspects of this
21 book is its thinly veiled biases coupled with the
22 intemperate use of judgmental buzz words. A blatant
23 example of this is the description of the consumption
24 of hard liquor at morning business meetings in former
25 Yugoslavia is 'barbaric.' In a similar vein, after
1 having established that the Croats and Slovenes are not
2 really part of a Balkan culture, the authors hold that
3 'the Balkans exhibit more extremely the opposition
4 between the barbaric and peaceful traits found all
5 around the world.' .
6 'Habits of the Balkan Heart' cannot really
7 be taken seriously as a piece of dispassionate or
8 careful scholarship in spite of its reliance on a
9 constellation of sociological and psychological
10 classics. Rather, it constitutes a primer on the
11 misuses of theory and data. Its principal value lies
12 in its study as an example of political and national
13 discourse transparently cloaked in scholarly regalia."
14 And I'm going to have to suggest to you,
15 Doctor, that that judgement on your book reflects very
16 much what you've given us today in your -- and
17 yesterday, in your report.
18 A. I would respond that there are two very
19 positive reviews of this book in the "Journal of
20 Psychiatry and Law" and in "Contemporary Sociology."
21 Yes, this is a negative review. This happens to
22 authors. And I would also comment on the use of this
23 word "barbaric," which is here taken out of context. I
24 use it in the sense of Thorstein Veblen in his book
25 "The Theory of the Leisure Class."
1 In that sense, in my lectures I've discussed,
2 for example, the bonfire at Texas A & M University
3 legitimately as barbaric because it wastes trees. And,
4 as you probably know from CNN, there was a horrific
5 accident last year which killed 17 students at my
6 university. And people have an emotional reaction to
7 that word "barbaric," but I use it in a very strict
8 sociological sense of wastefulness.
9 I think that consumption of hard liquor at
10 morning business, which is indeed very frequent in the
11 former Yugoslavia, qualifies under Thorstein Veblen's
12 theory. So this is a negative review, yes.
13 Q. Where I've asked you detailed questions about
14 the facts, you have made it clear that you don't have
15 knowledge of the facts and you have returned to
16 theoretical positions because you are a theorist.
17 A. No. I was very careful to say that I did not
18 have the full context of the documents you put in front
19 of me, and I, as a professional, I have to be very
20 careful in giving my professional judgement.
21 MR. NICE: Thank you very much.
22 JUDGE MAY: Yes, Mr. Browning.
23 MR. BROWNING: No questions, Your Honour.
24 JUDGE MAY: Thank you.
25 Dr. Mestrovic, that concludes your evidence.
1 Thank you for coming to the Tribunal to give it.
2 You're free to go.
3 THE WITNESS: Thank you.
4 [The witness withdrew]
5 MR. NICE: Just before Mr. Naumovski
6 addresses the Court, the Court will have in mind that I
7 raise the possibility of the --
8 JUDGE MAY: Yes. I was going to give a
9 ruling on that matter.
10 MR. NICE: Thank you.
11 JUDGE MAY: Whatever the Rules about
12 cross-examination, it would appear that the Prosecution
13 are probably right in their interpretation of the
14 relevant Rule, that matters should have been put.
15 There has, however, in this case been very much
16 evidence, and we have to consider that in the light of
17 the need to get on with the case. And as a result, the
18 Trial Chamber has come to the conclusion that it has
19 sufficient evidence, and we will not trouble the
20 witnesses for more evidence on the topic.
21 MR. NICE: I'm obliged, and I will respond --
22 or we will respond in due course, as perhaps suggested
23 by His Honour Judge Robinson, by dealing with these
24 issues, as perhaps with other issues, more by way of
25 argument in due course than by extensive adduction or
1 cross-examination of evidence.
2 JUDGE MAY: There will be the appropriate way
3 to deal with it, and of course if the gentlemen want to
4 withdraw, they can.
5 MR. SAYERS: Mr. President, may I just point
6 out that actually Rule 90(H)(ii) was changed on
7 November 30th, 1999, as I'm sure the Court is well
8 aware. Rule 90(H)(ii) is the Rule that actually
9 requires matters to be put to witnesses during the
10 course of an examination. And Dr. Donia testified on
11 July 16th of last year and Dr. Allcock on July 22nd,
12 finishing up his testimony on September 13th. So the
13 actual regime envisaged by Rule 90(H)(ii) after seven
14 days, after November 30th, was not in effect at the
15 time that these two expert witnesses testified.
16 JUDGE MAY: You don't want the witnesses to
17 give evidence, do you?
18 MR. SAYERS: No.
19 JUDGE MAY: Very well. Yes.
20 Mr. Naumovski.
21 MR. NAUMOVSKI: [Interpretation] Your Honours,
22 our next witness is Dr. Petar Pavlovic, who is prepared
23 to testify in public. However, since the Honourable
24 Trial Chamber has already decided for this matter to be
25 discussed in closed session, so let it be.
1 [Trial Chamber confers]
2 JUDGE MAY: Yes, Mr. Nice.
3 MR. NICE: Your Honour, although I certainly
4 will be in a position to deal with this witness
5 immediately this afternoon, I've been entirely occupied
6 with the experts up until this very minute, and the
7 other steps I have to take in order to be able to deal
8 with Dr. Pavlovic have yet to be taken by me. I
9 forecast, from the little I know already, that it may
10 not be necessary for the whole matter to be conducted,
11 or any part of it, in private session. I will
12 certainly need some time to discuss matters before I'll
13 be able to make that concluded decision.
14 May I, in the circumstances, ask for either
15 an early break or an adjournment? We are, in any
16 event, ahead of the Defence timetable for this week,
17 which allocated all of yesterday and today, originally,
18 for experts, and we will finish Dr. Pavlovic this
20 [Trial Chamber confers]
21 JUDGE MAY: Mr. Nice, what are you really
22 asking us to do? If we have a quarter of an hour
23 break, will you be ready then to cross-examine?
24 MR. NICE: Quite possibly not, but --
25 JUDGE MAY: It would be better if the whole
1 evidence is heard in one piece.
2 MR. NICE: I would respectfully agree.
3 JUDGE MAY: We can adjourn now until 1.00.
4 Yes, Mr. Naumovski.
5 MR. NAUMOVSKI: [Interpretation] Your Honour,
6 I just wanted to help you with your decision.
7 Actually, we have already informed the Honourable Court
8 that one witness would not be able to come this week,
9 as we had previously agreed upon. However, yesterday
10 afternoon we realised that we had problems with yet
11 another witness coming in. Something was wrong with
12 his passport. He has to get a new passport. That
13 means a visa as well.
14 So we are afraid that as far as this week is
15 concerned, we're going to lose this other witness as
16 well. Unfortunately, there were circumstances beyond
17 our control that were in place, so we could not really
18 organise somebody else's coming in. So to put it
19 mildly, we'll have quite a bit of free time this week,
20 regrettably. So I wish to say that what the Prosecutor
21 asked for just now, that is, to be given additional
22 time for preparation, is quite acceptable for the
23 Defence as well.
24 [Trial Chamber confers]
25 JUDGE MAY: We'll adjourn now until 2.00.
1 --- Luncheon recess taken at 12.20 p.m.
3 --- On resuming at 2.03 p.m.
4 JUDGE MAY: Yes, Mr. Nice.
5 MR. NICE: I'm grateful for the time.
6 Mr. Cicak is here, and in the public gallery. There is
7 no objection to this part of the evidence being heard
8 so far as he is concerned in open court and I, indeed,
9 would ask that it takes place in open court.
10 If the time comes when the Chamber considers
11 that it would be preferable for Mr. Cicak to withdraw,
12 he can, of course, do so against the possibility of his
13 giving evidence and the Chamber preferring him not to
14 hear the cross-examination. But for the time being, I
15 propose that he should stay in the public gallery.
16 JUDGE MAY: Yes, very well. Let the witness
17 be brought in open session.
18 [The witness entered court]
19 JUDGE MAY: Let the witness take the
21 THE WITNESS: [Interpretation] I solemnly
22 declare that I will speak the truth, the whole truth,
23 and nothing but the truth.
24 WITNESS: PETAR PAVLOVIC
25 [Witness answered through interpreter]
1 MR. NAUMOVSKI: [Interpretation] Thank you,
2 Your Honour.
3 Examined by Mr. Naumovski:
4 Q. Doctor, please be so kind as to give your
5 full name and surname to the court?
6 A. Petar Pavlovic.
7 Q. Dr. Pavlovic, you signed on the 19th of
8 January [as interpreted] this year a statement, an
9 affidavit before the court in Vitez; is that correct?
10 A. Yes.
11 Q. There is a mistake. It says January in the
12 transcript rather than May. We were talking about May,
13 weren't we?
14 A. Yes, May.
15 Q. So the 19th of May. Please, Dr. Pavlovic,
16 tell me, this sworn affidavit that you have signed
17 before the court in Vitez, does it contain everything
18 you know to the best of your knowledge and
20 A. I fully agree with what I stated, with what I
21 signed, and I -- that fully matches what I know about
22 this case.
23 Q. Along with this sworn affidavit of yours,
24 there are some attached documents. Are these attached
25 documents a faithful copy of the originals that were in
1 the files of your institute?
2 A. Yes. I must admit that these are only copies
3 but that they fully coincide with the original. These
4 are special forms that are made by the institution for
5 the evaluation of work ability attached to the
6 retirement insurance company in Sarajevo. At that
7 time, it was called the Community for Retirement and
8 Disability Insurance of Bosnia-Herzegovina. It is part
9 of the disability and retirement insurance, and it is
10 the only professional organ that is entitled to give an
11 assessment and opinion concerning an insured person
12 whose work ability is to be evaluated.
13 Q. Very well. I think that that is sufficient
14 by way of introduction and, if necessary, you are going
15 to give a wider explanation later.
16 Dr. Pavlovic, the affidavit, the sworn
17 affidavit that you gave, did you give it first and
18 foremost as the long-time head of the Zenica office of
19 this particular institution for the evaluation of work
21 A. I was chief of the institute for the
22 evaluation of work ability for two big regions, the
23 region of Zenica and the region of Doboj in which there
24 were 20 municipalities. I can also say that I worked
25 there for 15 years, that is to say, that I -- my
1 experience is exceptionally good. I worked with very
2 good people, and I believe that this assessment
3 evaluation and opinion was given with the greatest
4 possible degree of professional knowledge, professional
6 Q. Thank you. My last question, Dr. Pavlovic:
7 You were not the personal doctor of Mr. Cicak, never;
8 is that right?
9 A. No, never. There are certain doctors, I mean
10 every insured person was entitled to choose his or her
11 own doctor. Certain work organisations had their own
12 doctors that treated the persons employed in such
13 organisations, so I personally was never this man's
14 doctor. I knew this man just in passing from the
15 street, it's not a big town. We would say hello to
16 each other, but I never had anything to do with his
17 medical care.
18 MR. NAUMOVSKI: [Interpretation] That would be
19 all. Thank you Dr. Pavlovic. Your Honour this
20 concludes the examination-in-chief.
21 JUDGE MAY: Yes, Mr. Naumovski, do you wish
22 to exhibit the two documents which were attached to the
24 MR. NAUMOVSKI: [Interpretation] Your Honour,
25 I believe that the witness has this affidavit along
1 with the attached documents. I thought that he needed
2 that if this would be necessary for the
3 cross-examination so if the Court deems it necessary,
4 we can handle it now, but then I would require another
5 copy for myself.
6 JUDGE MAY: Well, there ought to be a copy.
7 If you want to make these records part of the court
8 file, then you've got to exhibit them. Now, is that
9 what you're applying to do with Exhibit A and Exhibit
11 MR. NAUMOVSKI: [Interpretation] Absolutely.
12 Absolutely, Your Honour.
13 JUDGE MAY: Hand in, then, two copies,
14 please. And we'll get a number for A and then a number
15 for B.
16 THE REGISTRAR: Document A will be number
17 D281/1, and B will be number D282/1.
18 JUDGE MAY: Thank you. Mr. Mikulicic,
19 anything you want to ask about this?
20 MR. MIKULICIC: No, Your Honour. We have no
22 Cross-examined by Mr. Nice:
23 MR. NICE:
24 Q. Do you have your affidavit before you,
25 Dr. Pavlovic?
1 A. Yes.
2 Q. Before we come to what's in your affidavit
3 and some other matters, tell me, please, how -- tell
4 me, please: When were you first contacted by lawyers
5 representing Mr. Kordic?
6 A. I think it was in the second half of December
7 last year.
8 Q. On the 27th of April of 1999, when Mr. Cicak
9 was giving evidence, questions were being asked by
10 Mr. Kordic's lawyers about you, so they knew something
11 of your contact with Mr. Cicak. How did they know of
12 your contact with Mr. Cicak? Can you help me?
13 A. I don't know how they knew about my contact.
14 I don't know what kind of contacts these are. But my
15 relationship with Mr. Cicak dates back to the distant
16 past. But this was just on very specific terms, saying
17 hello to each other, that's all, if that's what you can
18 call a relationship. But I mean it's not a contact by
19 way of that kind of communication.
20 Q. I only want to know, please -- I only want to
21 know how, as you understand it, Kordic's lawyers were
22 able to come and see you. What was their introduction
23 to you?
24 A. Well, there are different ways of getting in
25 touch with a person. I don't know exactly, but I do
1 know that they called me to come to an office in
2 Busovaca. That's where we first met. That's where we
3 first saw each other. They presented the problem that
4 had cropped up, and I said that there's no problem
5 whatsoever and that I was there.
6 Q. Please pause. I don't want to know, and you
7 mustnít tell me, what passed between you and them. I
8 only want to know if you know how they got to learn of
9 you. For example, if it was a question of a friend of
10 yours saying, "Why don't you go and see Dr. Pavlovic,"
11 then you can tell me, "Well, it was my friend, Mr. X or
12 Mr. Y."
13 Now, do you know how it was that they got to
14 find your name? And if the answer is no, we'll move on
15 to something else.
16 A. Well, it's not that I don't know. I think
17 that my name is well-known generally speaking, not only
18 in Zenica but also in Busovaca, where I work at
19 present. Everybody knows me. So I don't know.
20 Perhaps somewhere this question was raised, who was the
21 chief at that time, or perhaps everybody said it was
22 Dr. Pavlovic. So that's it. People know where I work
23 and where I go, so there's no problem.
24 Q. Are you still working at the same office or
1 A. No. I now work at the health centre in
2 Busovaca. Until 1995 I worked at the Institute for the
3 Evaluation of Work Ability. And then, due to certain
4 personal matters --
5 Q. Please, by all means, if you feel you must
6 expand an answer, do, but some of my questions will be
7 capable of a yes/no answer or a very short answer.
8 Who copied the documents that you have
9 produced to this Court?
10 A. Well, with the assistance of the lawyers,
11 most probably Mr. Mitko Naumovski, and the service, or
12 rather the office in Busovaca. I think it was them.
13 It was not me.
14 Q. So you personally had nothing to do with
15 getting these documents; they were simply handed to you
16 by the lawyers?
17 A. Exactly.
18 Q. They did not tell you from which individual,
19 if they obtained them from an individual, they got
21 A. No.
22 Q. You therefore technically -- I'm not going to
23 take really an issue on this, but you can't technically
24 say whether they're genuine copies or not, can you?
25 A. I can, on the basis of the correctness of the
1 form, on the basis of the facsimile of the doctors who
2 worked with me for 15 years, on the basis of signatures
3 that cannot easily be forged, on the basis of the
4 complete form, on the basis of the complete anamnesis.
5 I can claim that the form is correct, or rather that
6 the copy is right.
7 Q. Do you accept that in your country, to take
8 the medical records, for whatever purpose they're
9 lodged, of an individual is a serious violation of that
10 individual's rights?
11 A. At any rate, any kind of information
12 concerning the health of an insured person is not
13 permissible. However, obtaining certain papers, I
14 mean -- how should I put this? Perhaps I did not fully
15 understand the question.
16 Q. Do you accept that in your country, to take
17 the medical records of an individual is a serious
18 violation of that individual's rights, wherever those
19 medical records may have been lodged, may have been
21 A. Believe me, I don't know about this. I don't
22 know what to say. Violation or non-violation, I know
23 that in our country, medical files are kept by certain
24 institutions. These medical files are sent from one
25 person to another until finally a person obtains his
1 insurance. So it is possible for quite a few people to
2 get in touch with medical documents, but the question
3 is the extent to which they understand medical
4 language, medical terms.
5 Q. And just yes or no to this, before signing
6 your affidavit, the medical man though you are, you
7 made no inquiry as to whether Mr. Cicak had consented
8 to copies of his records being in the hands of the
9 lawyers who spoke to you.
10 A. No, I did not ask and ...
11 Q. The lawyers haven't shown you, is this
12 correct, any originals, they have only shown you
14 A. No. No, no originals.
15 MR. NICE: I don't know if the Court has full
16 affidavits before it, and if it does, if it has the
17 registry page numbers legible in the top right-hand
18 corner, they are on in handwriting, they are really the
19 only way of really tracking one's way through the
20 document because I want to ask, first of all, about the
22 I don't know whether the witness will be able
23 to find it, it's probably simply better if I take mine
24 out. 14823 is the English translation and the original
25 of that is 14809, and I'll take that out as well. It
1 will probably be easier for Your Honour's colleagues if
2 they don't have the affidavit before them, if the usher
3 would be good enough.
4 In fact, the original is all I need lay on
5 the ELMO, 14809, and incidentally, I call for the
6 original of this document to be produced to the Court,
7 if that's possible.
8 Q. Now, you're looking at an original document,
9 and those of us who don't speak your language are
10 following it in an English version so forgive us taking
11 some time. I'll find another version of mine for me to
12 have look at.
13 You say the documents you looked at are in
14 order. This one, tell us about it, first of all, and
15 then we'll see whether it's in order or not. What is
17 A. These are discharge papers from a hospital,
18 the Institute for Occupational Medicine, which is
19 involved in curative and preventive medicine as far as
20 occupational diseases are concerned. This is an
21 institution which is not an ordinary hospital. It is a
22 hospital for all examinations, not only for
23 occupational diseases, but also for general diseases.
24 This hospital, or rather this institution,
25 the Zavod, catered to over 100.000 or 150.000 people;
1 the population of Zenica and its immediate
3 Q. I'm sorry, I'm going to stop you. We don't
4 have all afternoon. You must focus on the questions,
5 please. This document is the only document or copy
6 document you have produced apart from the various
7 actual retirement forms that purports to suggest that
8 Mr. Cicak was ever treated for anything; would that be
10 A. Yes.
11 Q. So let's examine it together, because you
12 tell us that the documents are all in order, Doctor.
13 What dates was he treated as this form will reveal?
14 Please look at the form, it's on the overhead projector
15 beside you.
16 A. Yes.
17 Q. You're not looking at that document, you're
18 looking at something else, will you please --
19 A. No, no. On the monitor, it doesn't say the
20 date or it's very illegible, but on the letter of
21 discharge, because what you are showing me on the
22 monitor now hardly means a thing, that is what I can
23 tell you. It is the letter of discharge that is
25 This is just a piece of information stating
1 that somebody was treated in the certain institution.
2 However, the letter of discharge says very nicely that
3 the insured person was there from the 24th of January,
4 1984 and that a certain diagnosis was made, that is to
5 say, this was 15 years ago.
6 You will have to understand that I won't be
7 able to remember absolutely everything, but will try to
8 do something.
9 Q. Can you explain to me please why the document
10 that has been produced as a piece of raw material
11 purporting to show that someone was treated in hospital
12 is manifestly incomplete?
13 A. I can say like many other documents, we can
14 always find various shortcomings, however, in this
15 letter of discharge, it says very nicely -- there's
16 everything. He was observed not only for psychiatric
17 reasons but also for eye treatment, internal medicine,
18 psychology, everything that was possible at the time
19 was used to see whether there was an illness or not.
20 It says very nicely there. This is a very strong
21 institution, a very good institution, exceptionally
22 good. I don't see any mistakes.
23 Q. You are a general practitioner or some kind
24 of specialist, please?
25 A. Specialist of occupational medicine for over
1 20 years.
2 Q. But you have no experience of psychiatry?
3 A. I do, and how, may I tell you straight away,
4 that I worked -- perhaps this is not important, but I
5 worked as a general practitioner, as a specialist of
6 occupational medicine when evaluating work ability. I
7 also worked in health protection where I worked as an
8 advisor, and I worked on legislation related to these
9 matters. From 1993 I was employed at the institute for
10 evaluating work ability, I became the boss there.
11 And may I tell you straight away that every
12 doctor who comes to work at this institute for
13 assessing work ability has to undergo certain course,
14 has to attend a certain course for at least three
15 months, that is to say, where we refresh some of our
16 knowledge from psychiatry, internal medicine, surgery,
17 eye illnesses, et cetera.
18 This is a specialised institution that deals
19 with assessing work ability. Right.
20 Q. I'll stop you because I'm trying to get on.
21 Would you look at paragraph 14 of your affidavit,
22 please. This paragraph -- tell us, was your affidavit
23 drafted for you by the lawyers, or was it all your own
25 A. This was recorded and it was presumably
1 signed and I stand by what is written here.
2 Q. Whose idea was it to put in this paragraph a
3 comment or commentary on the various documents that
4 you've produced, was it your idea or was it the
5 lawyer's idea?
6 A. Well, I can't be sure. I think both mine and
7 the lawyer's. The important thing was to bring here an
8 accurate opinion about a letter and Mr. Cicak and
9 answer any question that you may have about Mr. Cicak.
10 Q. You were attempting to say in this paragraph
11 that the diagnosis of syndroma paranoides would show
12 bizarre behaviour and other symptoms, weren't you? You
13 were trying to do damage to Mr. Cicak's testimony,
15 A. I don't really want to say whether I will
16 damage or won't damage anyone. I'm sorry I have to say
17 I am not an expert witness on psychiatry, but I, like
18 any other psychiatrist, I can tell you what syndroma
19 paranoides is. I know I'm quite competent to testify
20 as expert about all the diseases which affect one's
21 fitness to work.
22 I do not say that I can testify as an expert
23 about psychiatry cases here or elsewhere. All I can
24 say that the diagnosis established by the expert team,
25 and I was their boss at that time, all I can say is
1 that they were correct. I can tell you that enough
2 time has elapsed over course -- according to this
3 documentation, I never treated Mr. Cicak nor saw him
4 all this time, nor do I look at him now, but I -- his
5 case history shows that for two years, he was treated,
6 that all the possibilities of psychiatric treatment
7 were exhausted after two years and after two years,
8 naturally, under the disability law, he had to be sent
9 to the medical board.
10 I do not see that the physicians who were
11 involved in this had made any omission. They were all
12 excellent people, good ones. Unfortunately, one of
13 them died, another one is still alive, but he is of a
14 rather advanced age.
15 Q. If this man was treated for two years, can
16 you tell us, please, where we can find his medical
17 notes, because such notes must have been kept and they
18 must be available. Tell us where they are, please.
19 A. I am not Mr. Cicak's physician, so I do not
20 know what particular health unit he belonged to. I
21 can't tell you that. He must have had a particular
22 health centre where he had his medical card, and every
23 time he would go there, they would put it on record
24 what kind of treatment was prescribed for him and so on
25 and so forth. Because you must know, these diseases
1 are sometimes bad, sometimes good, but everybody knows
2 what their outcome is.
3 Q. There is nothing to suggest in your file of
4 papers that we've looked at so far that there was any
5 communication from his treating doctor or his treating
6 health centre, is there? Find me a reference, if you
7 can, in the papers to the health centre that you must
8 have referred to.
9 A. Sorry. I didn't quite understand.
10 Q. Of course, we're trying to approach this
11 problem with our own perceptions of how doctors
12 behave. But if somebody is going to be retired through
13 ill health, on the grounds of long-term or substantial
14 ill health, one would expect to find communication with
15 the treating doctor or the treating health centre. And
16 I'm asking you, please, in the papers you produce and
17 say are entirely genuine, to point me to any place that
18 shows where the treating centre or the general
19 practitioner is. Maybe it's here, but just find it for
21 JUDGE BENNOUNA: [Interpretation] Mr. Nice,
22 together with this question, I'd like Dr. Pavlovic to
23 explain what he means by what he stated earlier on in
24 the transcript. He stated the following: [In English]
25 "Sometimes bad, sometimes good, but everybody knows
1 what their outcome is." [Interpretation] What did
2 Dr. Pavlovic mean by that, that everybody knows what
3 the outcome is, how they end?
4 A. In psychiatric patients, one knows that they
5 simply lose their fitness to work. That's what I
6 meant. Nothing special. Psychiatric patients are
7 under separate treatment, and if the treatment is good,
8 then for a while they may be in a good condition and
9 there is no distinction between a psychiatric patient
10 and a healthy man. And at times a psychiatric patient,
11 and one knows that, in their behaviour, in their manner
12 of conversation and communication, can be very easily
13 told apart from healthy people.
14 MR. NICE:
15 Q. You don't have the slightest idea what you're
16 talking about, have you?
17 A. You're addressing me?
18 MR. NICE: The witness, of course. I
19 certainly wasn't addressing Your Honour. I was
20 addressing the witness. I thought Your Honour had
21 finished. I'm sorry.
22 JUDGE BENNOUNA: [Interpretation] Yes, I did
23 understand that you're not turning to me, and just as
24 well for you. You're not turning to me to say that.
25 So I did understand you. Sorry, Mr. Nice, for
1 interrupting. I just wanted, following this question,
2 to ask Dr. Pavlovic if I had understood him properly.
3 Could he confirm whether I got him right?
4 So you're somehow rectifying what you just
5 said, but you say that this type of disease, illness,
6 can be treated, that you can return to normality, and
7 that therefore it does not necessarily mean that you're
8 no longer able to work or that you have to give up your
9 work for good, forever. Did I understand you properly?
10 A. Well, yes, quite. Some diseases may be
11 brought back to some more normal state than before but
12 never revert back to normal. I think you did
13 understand my point. Perhaps I didn't express myself
14 properly. But I think that psychiatric patients, as a
15 rule, always move towards the worse and ever worse
16 situation. Perhaps I may be putting it in
17 oversimplified terms.
18 JUDGE BENNOUNA: [Interpretation] Yes. Well,
19 I must confess that I do not understand you well. Can
20 psychiatric diseases be cured or treated, especially
21 paranoia, which is nothing exceptional? Can they be
22 treated or not?
23 A. Are you asking me?
24 JUDGE BENNOUNA: [Interpretation] Indeed,
1 A. Syndroma paranoides is something different
2 from paranoia. And I should like to ask [as
3 interpreted] you, I'm not a neuropsychiatrist and I did
4 not treat Mr. Cicak, and I was not called to give
5 expert testimony here. If I was, then that's a
6 different matter. But then tell me. I came here to
7 simply confirm certain documents which were shown me
8 here, to say whether this was done by my institution,
9 whether it was done by my physicians, whether this
10 corresponds, the original, of which I was the boss.
11 Because let me tell you, I never treated Mr. Dragutin
12 [as interpreted], I never examined him at the time, nor
13 is this my opinion. This was done by my physicians,
14 who worked at the institute of which I was the boss.
15 JUDGE BENNOUNA: [Interpretation] Therefore,
16 Dr. Pavlovic, can you explain to the Chamber what is to
17 be understood by syndroma paranoides, which is stated
18 as such in the document. We're not doctors either.
19 You are a specialist. We're neither doctors, and
20 therefore, a fortiori, not specialists either.
21 A. I am not a specialist in that particular
22 field, but a couple of minutes ago I said that we go
23 through the training for all the diseases, or rather
24 all the medical branches: neuropsychology, internal
25 and all the rest. Syndroma paranoides is a set of
1 syndromes. It is a multiple -- even the symptomatology
2 is a multiple, from affective responses to impulsive
3 responses, alienation, loss of concentration, loss of
4 concentration at work, separation from the family,
5 simply strange behaviour, strange behaviour of all
6 patterns. That is what I, as a physician, can tell
7 you, and I was involved in assessing one's fitness to
9 As for the expert evidence, psychiatric, I do
10 not think I am competent to do that today.
11 JUDGE MAY: How do you think that your
12 production of these documents is going to help us
13 assess the evidence of a witness who gave evidence 15
14 years after this diagnosis?
15 A. Yes, quite. I wonder myself, after 15 years,
16 how can one say about an insuree or a patient -- that
17 is, after all the time, how can I say now that he was
18 such-and-such? Or if I already stated on one occasion
19 that I never treated Mr. Cicak, nor followed him as a
20 patient, nor do I have any insight into his medical
21 card, which possibly records all his visits to the
22 clinic and the therapy that he received. I see
23 Mr. Cicak only on paper here, and in no other way at
24 all. My assistance, that is, my help to bring this
25 case to a close is all -- that is, the discharge from
1 the hospital and everything that it says here, that is,
2 the assessment, the findings, and the opinion of the
3 disability commission, are 100 per cent accurate. That
4 is, they are identical with the original.
5 MR. NICE:
6 Q. You in fact know, Doctor, that you've come
7 here actively to mislead this Court, because these
8 documents are in reality not at all what they seem.
9 And I'm just going to explain that in a little more
11 Between 1968 -- I beg your pardon, 1978 and
12 1984, or thereabouts, Mr. Cicak was, maybe as is his
13 want, vocally critical of the communist party of which
14 he was a member. Do you remember that? Do you
15 remember that?
16 A. No. I'm not a man of politics, and I don't
18 Q. Very well. By 1984, Mr. Cicak, having been
19 expelled from the party and been at certain forms of
20 risks, needed to retire, or certainly wanted to, and it
21 was well within the experience of your bureaucracies
22 that retirement could be used as a way of freeing
23 people from being where they otherwise were obliged to
24 be and to work. This sort of medical discharge could
25 be used as a ruse; correct? Something that happened
1 not infrequently?
2 A. I wouldn't agree with you.
3 Q. Are you saying it never happened, it happened
4 sometimes, or that it happened frequently?
5 A. I wouldn't know even though I was 15 years
6 there. I am not susceptible to political games or
7 anything else.
8 Q. I suggest you know perfectly well your wife
9 and Mr. Cicak worked in the same department, I think.
10 A. No.
11 Q. Did they know each other?
12 A. I suppose so, through the spouses, yes. Well
13 that's a small place, everybody knows everybody else,
14 but it does not affect the commission anyway because
15 then it wouldn't be a commission but something
16 completely different, a private ...
17 Q. Go on. It may seem irrelevant, but you can
18 confirm, as a matter of fact, that Mrs. Cicak is the
19 maker of what were and may still be prized wall
20 decorations, namely needle-point designs and pictures
21 of one kind and another, correct, and that you have
22 some of them probably on your walls; correct?
23 A. No, that is not true.
24 Q. Is it right that she does needle-point --
25 A. No, believe me, no. I don't know. I did not
1 see her for the past 10 years or so. I do see
2 Mr. Cicak in the street from time to time, but it's --
3 we only greet one another.
4 Q. It may be that you received both prints and
5 money perhaps about a month's salary in order to
6 provide and sign these documents. What do you say to
8 A. This is preposterous. I don't write these
9 documents, nor may I sign these documents. What is
10 important to us are findings. I can't understand that
11 you are asking me such a question.
12 Q. Would you go to page 14811, please, in the
13 exhibits, the little writing on the top right-hand
14 corner, 14811. No, it's not there, it's an original
15 document. I'll lay mine on the ELMO.
16 Now, you have examined these documents and
17 you tell us that they are all entirely sensible and
18 consistent and straightforward. Above Cicak's name, we
19 see his wife's signature. Would you explain to me
20 why? Who produced these documents?
21 A. I am not sure. I am guessing now. Possibly
22 Mr. Cicak did not take this, perhaps he was
23 unaccountable at the time but I cannot affirm that. So
24 it must have been why Mrs. Dubravka took this.
25 Q. Because the original of the document, which I
1 can produce -- I am so sorry, did you want to say
3 A. By statute -- no, no, no, I mean we do not
4 have Mr. Cicak's signature here so it wasn't Mr. Cicak
5 who picked up the finding but his wife because it is on
6 the basis of these findings and the opinions. Certain
7 rights, certain insurance rights derive for retirement
8 or disability pension, and I believe that is why
9 Mrs. Cicak took them.
10 Q. I don't wish to produce to the Court the
11 original, but if you just look at the document that
12 you've got in front of you which is the original, we
13 can lay it on the ELMO, Mrs. Cicak's signature is
14 certainly not there. So --
15 A. No, if you compare it with the original.
16 Q. Can you explain, please, how it can come
17 about that these very important documents that relate
18 to Mr. Cicak and his retirement are passed to his wife,
19 unless, as I suggest to you, there was an exchange for
20 money and indeed for prints, and you and your doctor
21 colleagues were all involved.
22 A. Let me tell you right away, I should like to
23 ask you not to use those words because that is not
24 true. As for the delivery of the document, it says
25 clear here who it is delivered to, Mr. Dragutin Cicak,
1 then the health institution, the physician on duty, the
2 organisation that the man worked for, the health
3 insurance community because the man was on a sick
4 leave, and that's it.
5 How did it come about that Mrs. Cicak
6 received this finding and how it was signed, that is
7 something I don't know.
8 Q. May we now go back, please, to the question I
9 asked you earlier. Can you find in the documents
10 you've produced to us, any document that goes to show
11 either where Mr. Cicak was being treated or even the
12 name and address of his treating general practitioner
13 or the medical centre where he was apparently treated
14 for two years?
15 A. Believe me, I can't.
16 Q. No. And are you really telling this Chamber
17 that a major institution presided over by you dealing
18 with the retirement of a person for ill health would
19 neither send nor receive a communication from that
20 man's treating doctor; is that really what you're
21 telling us?
22 A. Let me explain it a little bit how one is
23 sent to the disability board. An insuree is treated at
24 the general practice clinic. If no results are
25 obtained there, then that patient is sent to a higher
1 institute, and that is the occupational medicine
2 institute. They have the specialist services so there
3 is a higher level of treatment. And if that doesn't
4 produce any result, then that person is sent to the
5 disability board which then gives its view about the
6 person's work fitness.
7 In addition to medical documentation, we also
8 need the legal documentation or rather the job
9 description of that particular insuree. So that we
10 have medical documentation on the one hand, on the
11 other hand, we have labour and legal documentation.
12 Then, this insuree comes to us and we examine him head
13 to foot while fully respecting every patient.
14 So a patient stays an hour or two, sometimes
15 more, sometimes less, depending on the diagnosis. The
16 patient is examined and at the end of it, the patient
17 goes out and then the council, the board stays here,
18 like you are here, and then the chamber discusses
19 whether that person is fit to work or not.
20 And I have to repeat, I have two physicians
21 on my board and from time to time -- on my council, and
22 from time to time, we also bring in a psychologist.
23 Since there is a psychological test, that everything
24 that has to do with the medicine has been treated. He
25 was with us, we examined him and, at the end, the
1 chamber meets and decides on that person's fitness to
2 work, ability to work.
3 Q. Very well. Just breaking it down into two
4 parts. As a doctor, you will accept, won't you, just
5 yes or no to this, that any person suffering mental ill
6 health for a couple of years and being treated for it
7 will have medical records going to show the treatment
8 and the consultations that he has had; correct?
9 A. That is what it should be, yes.
10 Q. And your last very long answer given to the
11 Judges, not only showed a great knowledge of the law,
12 as you say it to be, it also was a way of trying to
13 avoid the need for your assessment to build on a
14 general practitioner's records. I must suggest to you
15 that's wholly unrealistic. No doctor would avoid
16 turning to a general practitioner for help on a matter
17 as serious as this.
18 A. The board uses all the methods in order to
19 obtain the best knowledge, the best information
20 possible about the state of health of the person who
21 comes to us. Why I'm telling you that, health cards,
22 and then we visually look whether the person has had
23 any case history, whether it was treated or not treated
24 for diseases or not. I do not know whether this expert
25 team used this or not, because one of the doctors who
1 examined him and assessed him died, and I'm really
2 sorry I have to say that, because we've known one
3 another for 15 years, I'm sorry about that. So this
4 doctor cannot tell you that himself.
5 But we use all the methods like -- and again,
6 I must compare it with you as you do it. So we use all
7 the methods in order to establish one's true state of
8 health. We have instructions. We have a manual.
9 Q. Turn, please, to what is in the English in
10 the pages of the affidavit 14820 and more materially
11 14819, and I'll find the original for the witness. I
12 think it's all on 14806.
13 I don't know if Your Honour has any of those
14 pages. But if Your Honour's colleagues don't, I better
15 put one on the ELMO if not. And I'll make the original
16 available for the witness to look at.
17 While they are coming to you, I should tell
18 you, Doctor, that I've had these notes considered by a
19 Dutch psychiatrist. Unfortunately he's gone on
20 holiday, and unfortunately he has locked his report
21 away before it was faxed to me so I can only give you a
22 summary of what I understand he will explain to us if
23 it ever becomes necessary.
24 The Chamber will see on -- absolutely at the
25 foot of page 120, can you lay, literally, the foot of
1 120 on the ELMO for His Honour's colleagues.
2 Your Honour, give me a minute.
3 Just to look at it, the first page simply
4 shows that at this part of the report, we reach at the
5 bottom of the page the findings of the psychologist.
6 So now if we can go to the next page, please, because
7 it's not headed we start at the top so what we're
8 looking at here in English, and I hope you have there
9 in the original is, first, the findings of the
10 psychologist and then the findings of the
12 Let's just see what they say, shall we? The
13 first psychologist apparently says, "Emotional tension
14 which influences general neurosis. Differential
15 neurotic stages in the level of concentration." It
16 deals with memory and as far as personality is
17 concerned, "a general neurosis is expressed with
18 presence of hypersensitive anxietal and partially
19 obsessive, compulsive and depressive tendencies. On
20 the basis of diagnosed abilities shows a change of
22 Then we come to the findings of the
23 neuropsychiatrist. He apparently finds for the same
24 patient on information gathered from wife and
25 co-workers to which I will return, a clinical picture
1 after testing and a psychiatric examination of paranoid
2 syndrome as was previously found and treated. Never
3 hospitalised because never wanted to accept something
4 like that, but took medication. It sets out the
6 Incidentally, one of those medications is
7 quite dangerous, isn't it, and would have to be the
8 subject of a prescription, would you accept that?
9 Nozinan, do you accept that it's quite dangerous?
10 A. Yes, Moditen and Nozinan and also this
11 intramuscular Moditen injection that is given for one
12 month, yes, all of these medicines require
13 prescription. I don't know whether that time or all of
14 these medications required prescription, but now all of
15 these Depo Moditen and Nozinan require prescriptions,
16 and there is strict control over who takes it, how,
17 why, et cetera.
18 Q. He goes on, the psychiatrist, the
19 neuropsychiatrist, "...because of the illness and rigid
20 attitude within his illness to treatment by a
21 psychiatrist and institution, we are of the opinion
22 that he shouldn't work. Syndroma paranoides."
23 Now, do you know whether one way or another
24 whether the conclusions of the psychiatrist are
25 consistent with those of the psychologist or whether
1 they are incompatible?
2 A. Well, right now I would not go into the
3 entire problem as far as evaluation is concerned. I am
4 an individual. This conclusion is relevant. The
5 Institute for Occupational Medicine is a highly
6 specialised institution, and it has a very high
7 standing and it involves professionals of all kinds.
8 It is their duty to give recommendations and
9 conclusions regarding work ability. That is their
10 opinion. We on the commission can accept it, but we
11 don't have to.
12 Q. I'm going back to my question, but I'll
13 recast it. In a document which makes a total of sort
14 of five different symptoms, you have the psychologist
15 talking of neurotic symptoms and the psychiatrist
16 talking of paranoid symptoms. Incompatible, simply
17 borrowed from somebody else's records, Doctor, and you
18 know it.
19 A. A psychologist looks at things from a
20 psychologist's point of view and a neuropsychiatrist
21 looks from a neuropsychiatrist's point of view, and the
22 two should not collide with one another. Different
23 expressions are used. A psychologist uses
24 psychological terms; a neuropsychiatrist uses
25 psychiatric terms. Not both use the same terms.
1 A medical doctor has medical terminology. A
2 lawyer has legal terminology. In medicine,
3 neuropsychiatrists have neuropsychiatric vocabulary,
4 but they all work towards a final diagnosis. I do
5 apologise. I'm only looking at a piece of paper here,
6 not a man, and I'm saying something about what has been
8 MR. NICE: My last question probably. I've
9 taken long enough on this. It can be found on Your
10 Honours' page 14825, and I'll try and find it in the
11 original. And I'll hand my copy of 14825 for placing
12 on the ELMO and I'll find the original for the witness,
13 if I can.
14 Q. This man was quite ill, wasn't he?
15 A. Yes. Different psychiatrists would describe
16 this in different ways.
17 Q. Why didn't he have to be followed up? We've
18 got -- I can't find the original at the moment. The
19 papers are confusing, but why didn't he have to be
20 followed up?
21 A. I believe that they did follow this for about
22 two years. At least, that's what the papers say.
23 People should be trusted. I must mention once again
24 that I did not examine him, nor was I involved in the
1 Q. I'm going to show you the reference. Here it
2 is. It's on 14812. If I can have it back. "Follow-up
3 not necessary." There it is in your own document. Not
4 followed up because there was nothing to follow up.
5 A. When the loss of work ability is concerned,
6 there is no need to have a follow-up. If our
7 assessment is that he is not able to work anymore, not
8 work at all, why would we, from the institute -- I
9 mean, we are talking about that kind of follow-up, from
10 the institute. As far as a neuropsychiatrist is
11 concerned, that is different. He is still being
12 followed by his own doctor or a service that he belongs
14 However, as far as the institute is
15 concerned, in terms of evaluating his work ability, and
16 also in terms of the panel that assesses this is
17 concerned, the commission, the panel doesn't have to
18 re-evaluate this. In some countries, it is necessary
19 after five years or so. However, in our country, the
20 situation was such that it was not necessary to
21 re-examine things or follow up. It is not the health
22 condition that did not have to be followed up and
23 monitored, et cetera; it is the findings of the
24 commission that did not have to be looked at again.
25 Q. From four statements or affidavits, and in
1 some cases, evidence has been produced by Mr. Kordic's
2 lawyers that seek to confirm ill health. One is a
3 person called Anto Stipac -- sorry. Only three others
4 -- one is a person called Zoran Maric, and one is
5 someone called Niko Grubesic. Do you know how they got
6 the idea to allege, at least in their written form, if
7 they didn't say it in evidence, ill health, and mental
8 ill health in this man? Did you have anything to do
9 with that?
10 A. No. I'm a doctor. I'm a physician. I'm
11 telling you that once again. I'm not involved in
12 politics. I know some people by sight only, but I was
13 not told anything. Probably in contact with
14 the insuree or -- I don't know -- perhaps some other
16 Q. I'm not going to ask the questions that would
17 be built on the premise of these being genuine records
18 and their irrelevance medically, in any event, to
19 activities later or to recollection 14 years later,
20 because I don't need to in the circumstances.
21 Just to give you an opportunity in case it
22 arises later, I'm going to suggest to you, Doctor, that
23 it's not just in relation to this case that you may
24 have done things like this, but that you may have done
25 it on many other occasions.
1 A. I'm sorry that you have such an opinion. No
2 way. Once again, I'm stating that at least I did not
3 do anything dishonourable. I read this solemn
4 declaration and I am responsible for everything I
5 said. The medical documents that were presented to the
6 Institute for Occupational Medicine are faithful
7 copies, and I think that the institute worked fairly
8 and honestly.
9 MR. NICE: That's all I ask, Your Honour,
10 although I repeat, for obvious reasons, I would like to
11 see the best original that exists of the document that
12 seeks to show the medical discharge that bears no
14 MR. NAUMOVSKI: [Interpretation] Thank you,
15 Your Honour.
16 Re-examined by Mr. Naumovski:
17 Q. Dr. Pavlovic, I think that because of the way
18 in which you were examined, we have to put things into
19 right order, so to speak, so I have only a few
20 questions in this connection.
21 This Exhibit A that you have, D188/1, as it
22 was numbered today, that is the opinion and the finding
23 of your institute that you were head of for 15 years;
24 is that correct?
25 A. Yes. Yes.
1 THE INTERPRETER: Could Mr. Naumovski's
2 microphone please be adjusted. The interpreters are
3 having difficulty in hearing what he says.
4 MR. NAUMOVSKI: [Interpretation]
5 Q. This was signed by the doctors that you
6 already mentioned. These are doctors who work in the
8 A. Yes. These are doctors who were employed by
9 the institute only. These are their only jobs.
10 Q. Exhibit A is number D -- it is D281/1, so we
11 want to correct the transcript. Right.
12 So these are doctors who were permanently
13 employed by the institute. One question related to
14 your institute, another one as well. You have teams of
15 experts who evaluate the work ability of a person for
16 whom this is required; is that correct?
17 A. Yes.
18 Q. However, you do not treat people. Your
19 institute, and I imagine things have not changed until
20 the present day, does not have the ability to carry out
21 full examinations and medical supervision and
22 check-ups, et cetera, such as classical hospitals do;
23 is that right?
24 A. That's right. However, we have specialised
25 doctors. For example, when there are head injuries,
1 brain injuries, for example, when the CT was not
2 performed, when magnetic resonance was not done, that
3 is to say, all these methods that the institute could
4 not have carried out, then we are ourselves required
5 from our services to get these additional findings so
6 that we would assess a person's working ability to the
7 best of our ability. So we have all these
8 possibilities made available to us. Actually, we did.
9 Q. Of course. I do apologise. Perhaps I should
10 tell you that you should not answer my questions
11 immediately, because my questions have to be
12 interpreted into the official languages of the
13 Tribunal, and we should try to facilitate the work of
14 the interpreters. And I do apologise to them once
16 So of course your institute has the
17 possibility of asking for all the necessary
18 examinations to be carried out, but it is not a
19 hospital in the classical sense of the word, that has
20 wards where all these check-ups are done; is that
22 A. To put it briefly, we use all methods to
23 objectivise a certain illness, bearing in mind the
24 illnesses that may lead to a loss of work ability.
25 That is to say that we use all methods. Even in the
1 institute in Sarajevo, if we do not have super experts
2 -- neurologists, internists, cardiologists, et cetera
3 -- then we ask for an even higher instance, if
4 necessary. If we have the relevant -- if we have the
5 relevant documentation, if we have the right kind of
6 documents, we don't require anything in addition to
7 that. Then we -- I want to say this once again. We
8 look at all the medical documents. We look at the
9 patient as a patient. We interview the person and then
10 we deliberate, just as deliberations are carried out
11 over here.
12 Q. I do apologise for having interrupted, but I
13 believe that the Honourable Trial Chamber has heard
14 quite a bit about this. However, as far as the last
15 page of this document of yours is concerned, that is,
16 concerning the assessment, the evaluation -- I'm
17 talking about the institute, not you personally -- and
18 it can be seen that it was addressed to seven different
19 addressees; is that right?
20 A. Yes. And these documents, these findings,
21 were invariably present.
22 Q. In my opinion, this means that this original,
23 so to speak, was done at least in seven copies that
24 were sent to different addresses; is that correct?
25 A. Correct.
1 Q. The Prosecutor showed you a copy which was, I
2 assume, sent directly to Mr. Cicak.
3 A. Yes. This could have been obtained by
5 Q. My question is the following: This copy,
6 this copy that was sent to Mr. Cicak, it does not have
7 the signature of Mrs. Dubravka Cicak, whereas the copy
8 that was attached to your affidavit does have a
9 signature. My question is the following: As far as
10 the institute is concerned, I believe that you will
11 agree with me, in the files in the institute, there is
12 a single original where it says who it was given to,
13 and then these people sign it, the people who received
14 it; is that right?
15 A. Yes.
16 Q. Only the original remains in the institute;
17 is that right?
18 A. Yes. Yes.
19 Q. Very well. Thank you. So that is the first
20 set of documents.
21 The other one is Exhibit B, that was attached
22 to your affidavit, and it was marked D282/1. This set
23 of documents was sent to your institute before you made
24 your own findings and gave your own opinion; is that
1 A. Yes. That is the procedure that is required.
2 Q. The Prosecutor asked you about the discharge
3 papers, and quite a bit of time and words were spent on
4 this. However, it is important, perhaps, to draw the
5 attention of the Honourable Judges only to what it says
6 here before the stamp itself. It says: "Attached
7 letter of discharge." See, over here in the discharge
8 papers, that is document B? It says: "Attached letter
9 of discharge."
10 A. Yes, yes. This is it, the paper I'm showing
11 you now.
12 Q. In other words, discharge papers from a
13 hospital is just a technical paper?
14 A. It's just information.
15 Q. That's right. And this paper contains the
16 expertise, the expert opinion; is that right?
17 A. Yes.
18 MR. NICE: [Previous translation
19 continues]... Mr. Naumovski's examination, but I really
20 must protest.
21 MR. NAUMOVSKI: [Interpretation] Your Honours,
22 I concur with what my colleague says, but this is such
23 an obvious question that I was dealing with. It is
24 technically such an obvious issue. So I'll try to
25 redefine myself.
1 Q. Dr. Pavlovic, please, this letter of
2 discharge was drawn up at the -- you said Cicak, not
3 Zenica. Zenica is the correct word. That is the
4 Zenica Steel Works Institution.
5 A. Oh, yes. I'm sorry.
6 Q. So this was signed by the doctors who are in
7 that -- who worked in that institute, and their
8 specialities are also mentioned here on page 3; is that
10 A. Yes.
11 Q. You have already said this a few times to the
12 Honourable Judges, but for the last time: These
13 doctors whose names are mentioned here, and who looked
14 through all the documents, who examined Mr. Cicak, they
15 suggest, by way of a conclusion, that he be sent to the
16 Commission for Disability Insurance in order to
17 evaluate the work ability that he still has.
18 My question is the following: As doctors, as
19 physicians who have had insight into Mr. Cicak's full
20 medical condition, they believe it is necessary to send
21 him to the commission?
22 A. Yes, that's right, it says here syndroma
23 paranoides. That is to evaluate work ability it is
24 necessary to have regular check-ups with
25 neuropsychiatrists every three weeks. You see, they
1 still suggest check-ups every three weeks. The
2 possibility has been given for us to assess whether the
3 insuree has lost his ability to work or whether there
4 is some remaining work ability or whether he should be
5 sent to do some other kind of work, that would be in
6 keeping with the professional qualifications that he
8 JUDGE BENNOUNA: [Interpretation]
9 Mr. Naumovski, you're now referring to what document in
10 which it would be -- or the names of the doctors that
11 have examined Mr. Cicak would be mentioned and those
12 doctors would have sent a report to the Institute for
13 Occupational Medicine. Which is that document,
15 MR. NAUMOVSKI: [Interpretation] Your Honour,
16 D282/1 that was admitted today, and it was called
17 Exhibit B in relation to the affidavit of
18 Dr. Pavlovic. This is a document that was drawn up by
19 the Institute for Occupational Medicine of the Zenica
20 Steel Works. That is a completely separate institution
21 from the institution that Dr. Pavlovic worked in.
22 JUDGE BENNOUNA: [Interpretation] Could you
23 put it on the ELMO, please?
24 MR. NAUMOVSKI: [Interpretation] The last
25 page, please. That is the document --
1 JUDGE BENNOUNA: [Interpretation] This is the
2 document we saw earlier on, that's the same document,
3 isn't it, which was presented by the Prosecution?
4 MR. NAUMOVSKI: [Interpretation] Exactly, Your
6 JUDGE BENNOUNA: [Interpretation] That comes
7 from another institute; is that so?
8 MR. NAUMOVSKI: [Interpretation] I do
9 apologise, I'm waiting for the interpretation. Yes.
10 That is another institute, and then on the basis of
11 their documents, the institute where Dr. Pavlovic
12 worked continued to work and ultimately made a
13 decision, so these are completely different doctors.
14 That is what I wish to highlight for the Court.
15 However, I don't believe that there is any controversy
16 involved there so we can continue.
17 Q. Of course, Doctor, you already answered
18 this. It was suggested to you by the Prosecutor that
19 in your document, in the document of your institute it
20 says, "Unnecessary to have further check-ups," but it
21 says here that it is necessary to have regular
22 check-ups with a neuropsychiatrist, and that is what is
23 suggested by doctors; is that right?
24 A. I'm saying this that from the point of view
25 of the institute for assessing work ability. When we
1 are presenting an evaluation of one's work ability, we
2 are saying -- very often we say that that it's not
3 necessary to have any follow up. For example if a man
4 does not have an arm or a leg or whatever, why would
5 there have to be further check-ups in this respect? So
6 that is the way things are, but on the basis of our
7 opinion, there are certain legal aspects involved. So
8 we are just a professional authority that is supposed
9 to give a medical professional opinion concerning the
10 insuree, that's all.
11 Q. The last question concerning this document
12 that is on the ELMO right now. In these documents that
13 you have the opportunity of seeing, is there anything
14 unusual there? Is there anything inappropriate there?
15 Is there anything that brings into question the
16 correctness of this document of the Institute of Health
17 of the Zenica Steel Works and you say that they were a
18 very professional institution?
19 A. I'm saying, once again, that the Institute
20 for Occupational Medicine is an institution that is
21 highly professional and that enjoys a very high
22 reputation until the present day.
23 Q. So there is no reason to doubt the
24 correctness of the information in the letter that was
25 sent to you, to your institute?
1 A. All of this is quite right.
2 Q. Dr. Pavlovic, basically today you were told
3 that you were bribed, you and your doctors at your
5 A. Believe me, nothing was more difficult for me
6 than that. I am not afraid of this. This is all
7 fine. I am glad to have come here, but the only thing
8 that pains me is that. I made this oath and I am
9 saying it once again, that never ever did I accept
10 anything in my life. You can ask other people about me
11 also. Let people who know me speak about me. I should
12 not speak about myself.
13 I'm so sorry that it is this Court that is
14 putting such questions. This really hurts a person, I
15 mean, I'm really sorry.
16 JUDGE MAY: The questions are a matter for
17 the Court, and the Prosecution are entitled to put
18 their case to you.
19 Now, Mr. Naumovski, is there anything more
20 that you have?
21 MR. NAUMOVSKI: [Interpretation] No, Your
22 Honour. Thank you. Thank you, Dr. Pavlovic.
23 JUDGE MAY: Thank you, Dr. Pavlovic. You are
24 free to go.
25 THE WITNESS: [Interpretation] Thank you too.
1 [The witness withdrew]
2 MR. NICE: If I can just intervene, the Court
3 will, of course, recall that Mr. Cicak was asked
4 questions about retirement when he was here last year.
5 He was also asked questions about a Mr. Pero Pavlovic
6 but nothing was suggested about ill mental health or
7 anything else of the kind that I've raised.
8 The Court knows that he's here today. If the
9 Court may think it would be assisted on this issue by
10 hearing from him, I realise, of course, the various
11 ways in which this can become a peripheral issue either
12 medically or for the reason that I've advanced one way
13 or the other and I'm anxious, of course, not to clutter
14 the Court's mind or the transcript with material that
15 has become or may become ultimately marginal. But he
16 is here, and he can stay, he will be staying until
17 tomorrow in any event.
18 We understand that the Defence are a witness
19 short, and if the Court will want to hear evidence from
20 him, he's only too happy to give evidence straight away
21 or tomorrow morning.
22 [Trial Chamber confers]
23 JUDGE BENNOUNA: Mr. Nice, may I ask you what
24 is the -- why do you suggest for the Court to listen
25 again to Mr. Cicak? [In French] I'm going to speak
1 French. What point do you want to make? What do you
2 wish to achieve? What do you think Mr. Cicak can add
3 to all the things we've just heard in relation to the
4 issue of ill health, ill mental health?
5 MR. NICE: If the Court wished to hear this
6 particular issue that's been raised by the Defence
7 dealt with in evidence by both sides, the Chamber --
8 and I'm, in a sense, I'm neutral on the topic. I'm
9 anxious not to press the Chamber one way or the other,
10 but I make it quite plain that both we and Mr. Cicak
11 are entirely willing to give evidence.
12 If I can diffidently remind you of how all
13 this arose, it was never heralded in the
14 cross-examination of Mr. Cicak that he was mentally
15 unwell and that this could have, in any way, affected
16 his evidence. There were some rather delphic questions
17 asked about retirement and Pavlovic and there it was
19 Then, when summaries, that is, first of all
20 the short summaries, yes, and then the longer summaries
21 emerged, we started hearing the suggestions that he was
22 unwell mentally. Rather interestingly and curiously at
23 the time, one or two of the witnesses departed
24 significantly from any attribution of mental illness to
25 a much lesser form of complaint about him which made
1 one concerned about the summaries. But that was all
2 detailed microargument given the scale of evidence in
3 this case.
4 Then Pavlovic's affidavit was advanced and it
5 was clear from that affidavit that by a side wind or
6 back door, which ever analogy is most appropriate, and
7 describe via paragraph 14 there was now a positive
8 effort to attack him so that in the closing arguments,
9 the written briefs, we will find -- I don't think
10 Mr. Naumovski wants to say, but -- so that we would
11 find arguments which will say you can discount this
12 man's evidence because of mental illness. That's what
13 is going to be forthcoming.
14 Therefore, we first of all decided simply not
15 to trouble Mr. Cicak with all this and to try to
16 eliminate the affidavit on the grounds of tangential or
17 limited relevance. When we failed to do that, we had
18 to take his instructions, not his instructions, but
19 what his account was, and his account is how I have
20 advanced it.
21 And therefore, if the Chamber needs to
22 resolve this issue as one of the many small issues in
23 evidence, it should probably have the witness before it
24 and he's available to do that, but I am a not pressing
1 JUDGE BENNOUNA: [Interpretation] If I
2 understand you properly, you want to ask Mr. Cicak in
3 what conditions he went into retirement. Thank you.
4 JUDGE MAY: Yes, Mr. Naumovski.
5 MR. NAUMOVSKI: [Interpretation] Yes, thank
6 you, Your Honours. All I wanted to say was our
7 opposition to this Prosecution's suggestion. I believe
8 this is the third time that while Mr. Kordic's Defence
9 adduces his evidence, some rebuttal elements are being
10 introduced. The Prosecutor will have the opportunity
11 to produce every evidence that he wishes in rebuttal,
12 but I see no reason to do this during our case, and if
13 that was the idea, that is why Mr. Cicak appeared
14 today, then I think it would have been the minimum of
15 decorum not to have Mr. Cicak sitting in the gallery
16 listening to this testimony. So we oppose this idea of
17 having him testify in our case.
18 JUDGE MAY: Thank you.
19 [Trial Chamber confers]
20 JUDGE MAY: No, we've -- we have enough
21 evidence on which we can decide the matter.
22 MR. NICE: I'm grateful.
23 JUDGE MAY: Thank you. Now, I think it's
24 about time to adjourn. Can I deal with one or two
25 while they are in mind, administrative matters.
1 We shall not be sitting on this case on the
2 afternoon of the 19th of July. That has been already
3 noted as a Chambers day and in fact on that afternoon
4 we shall be hearing motions in another case. And that
5 may also, although this isn't confirmed, it may also be
6 the case that we shall not be sitting on this case on
7 the morning of the 28th of July when, again, the
8 motions in another case will have to be heard.
9 That last date is not confirmed, the first
10 date is. Tomorrow, if it's convenient, we need to be
11 working on the calendar for the autumn and I would like
12 to hear submissions from the parties on that, for
13 instance, I note that if we start Mr. Cerkez's case as
14 predicted two weeks before the recess, we should finish
15 it by the 20th of October.
16 I will be grateful, Mr. Mikulicic, if you
17 would consider that proposition.
18 I also have in mind that we should sit on the
19 final round of this case, that is on the rebuttal case
20 rejoinder case, and submissions for two weeks in
21 December, the 4th and the 11th of December.
22 I would be grateful for your assistance,
23 because it's difficult in this Tribunal to fix matters
24 because one has to do it so far ahead, and there is not
25 the flexibility to which many of us are used to in
1 domestic courts. Therefore, your assistance about
2 those matters would be helpful tomorrow.
3 And you've got two witnesses, Mr. Sayers or
4 Mr. Naumovski?
5 MR. SAYERS: We have -- I think we have one
6 witness who is ready to testify today, but if the Court
7 wants to defer him until tomorrow that's perfectly
8 acceptable and a second witness coming this afternoon
9 who should also be available tomorrow and Thursday for
10 the Court to hear.
11 JUDGE MAY: How long do you anticipate those
12 will be?
13 MR. SAYERS: The first witness is
14 Mr. Marusic, his direct examination we would anticipate
15 as being 15 minutes, 15 to 20 minutes. And then the
16 second witness is a former ECMM monitor, Mr. Garretson
17 [phoen], specifically with reference to Bugojno, one of
18 the municipalities that we informed you about in our
19 opening statement that we would address. His
20 testimony, Your Honour, I would think 30 minutes.
21 JUDGE MAY: So we're going to run out
23 MR. SAYERS: I think we will.
24 JUDGE MAY: Mr. Sayers, no criticism at this
25 stage because this sort of thing can happen, but
1 obviously, we want to remain on target and we're going
2 to lose two days.
3 MR. SAYERS: Yes, if I may just say to the
4 Trial Chamber we do not anticipate that the loss of the
5 two witnesses for this week is going to affect the
6 estimate that we have given for the completion of our
7 case in the least. We still adhere to our prediction
8 of July 17th and it may be earlier in the week than
9 later in the week of the 17th.
10 JUDGE MAY: Thank you. We'll adjourn until
11 tomorrow at half past nine.
12 --- Whereupon the hearing adjourned
13 at 3.45 p.m., to be reconvened on
14 Wednesday, the 28th day of June, 2000,
15 at 9.30 a.m.