1 Tuesday, 14 November 2006
2 [Open session]
3 [The accused entered court]
4 [Witness appeared via videolink]
5 --- Upon commencing at 2.20 p.m.
6 JUDGE MOLOTO: Good afternoon. Just before we start with the next
7 witness, let me just mention that the Trial Chamber is seized of a motion
8 for certification. It is pretty urgent. I don't know whether the
9 Prosecution would be in a position to give an expedited response today
11 MR. WHITING: Your Honour, if -- it depends. Are we going to
12 continue with the witness?
13 JUDGE MOLOTO: Yes, we are going to continue with the witness.
14 MR. WHITING: In that case, we could provide -- because I can't do
15 two things at once, we could provide a response certainly first thing
16 tomorrow morning, if that's okay. I'm seeing shaking of the head.
17 JUDGE HOEPFEL: That's too late.
18 MR. WHITING: Well, I -- I can't write a response while I'm in
19 here doing a cross-examination.
20 JUDGE MOLOTO: I appreciate that.
21 MR. WHITING: So I can do it after court. And it won't take very
22 long and I'm happy to file it after I finish it. I'll stay here and do it
23 and file it when -- or provide it when it's done.
24 JUDGE MOLOTO: You can't rely on any of your colleagues to help in
25 the team?
1 MR. WHITING: Well, I guess I could -- I could do that, if that's
2 what the -- if the Trial Chamber wants a response today, then that's what
3 we'll do. That's fine. I'll ask Mr. Black to step out and take charge
4 of -- by the way, if I may, just as a matter of politeness, I'm sorry I
5 didn't do this sooner. I'd like to just introduce Ms. Hanne Walker. She
6 is an intern with the Office of the Prosecution who has been helping us on
7 these matters in particular, so we have asked that she sit in the
8 courtroom today. So that's why she's here.
9 JUDGE MOLOTO: Welcome to the courtroom. Maybe you could postpone
10 your coming into the courtroom and draft the response and then come in
11 after finishing that.
12 MR. WHITING: I think what I'll' do, having read the body language
13 from the Trial Chamber, if not the explicit statements from the Trial
14 Chamber, I think I'll ask Mr. Black to excuse himself from the courtroom
15 and to draft a response. And it's now 2.30, and I hope we can get it in
16 buy 4 o'clock, but if not, we'll ask for the ability for a late filing
17 and -- but we'll certainly get it in today.
18 JUDGE MOLOTO: Thank you very much. The Chamber is indebted to
19 you and appreciates the effort. We are trying to give this decision on
20 certification today.
21 MR. WHITING: I understand.
22 JUDGE MOLOTO: Thank you very much.
23 Mr. Milovancevic?
24 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.
25 The Defence would like to inform the Trial Chamber that we are
1 going to suspend our presentation of evidence until the question of the
2 status of the expert findings. In result, we have two expert findings.
3 One is an international law expert, this is Professor Avramov who is now
4 in the Tribunal's office in Belgrade. We have her on the link now. We
5 believe this is an exceptionally dramatic situation, as far as the Defence
6 is concerned. Simply the way in which the introduction of the expert
7 findings of Dr. Avramov has been permitted denies the Defence to deal with
8 the series of questions that have been mentioned in the indictment. To be
9 specific, these are paragraphs 18 and 20 of the indictment, in which --
10 JUDGE MOLOTO: Mr. Milovancevic, that argument, as we said to you,
11 you'll put it on paper and put it before the Court. You don't need to go
12 into that argument at all now verbally, because you want us now to look at
13 the reasons why the report is redacted in the manner in which it's
14 redacted and you want us to reconsider that. We cannot do that unless you
15 submit a proper submission on that point. Let me say this: On the first
16 two sentences or two of your introductory remarks, that I'm not quite sure
17 what you mean by you're going to suspend, because you're asking for an
18 appeal. Obviously, if your appeal succeeds, you will call this witness in
19 full to the extent that the appeal court has granted you. For now, I
20 would like us to proceed with the proceedings as this Trial Chamber has
21 determined. Obviously, if you disagree with the finding of this Trial
22 Chamber, as you have rightly done, your recourse is in the appeal court
23 and to the extent that the appeal court comes to your rescue, you will
24 repair what this court has done. Now I want to suggest that you consider
25 seriously calling this witness so that we proceed now.
1 MR. MILOVANCEVIC: [Interpretation] Your Honours, thank you. I
2 understand what you have said, and I am completely aware of the logic of
3 that, especially when one has in mind the principle of the efficiency of
4 the Court proceedings. What I'm saying now is not an attempt to provide
5 arguments for our beginning sentence, but just to indicate to you the
6 reasons why Defence has the position that it has. Your Honour, the expert
7 findings of Professor Avramov do not contain her conclusion or the essence
8 of her findings, in fact.
9 JUDGE MOLOTO: Mr. Milovancevic, I'm sorry. As I said to you, to
10 the extent that the appeal court will come to your rescue, and allow those
11 conclusions, to the extent we will repair that evidence at that time. At
12 this point in time, this Trial Chamber has ruled in a particular way and
13 we -- let us carry on the way this Trial Chamber has ruled. You cannot --
14 you cannot have your cake and eat it. You cannot ask for an appeal and
15 then on the other hand say, I'm sorry, I'm not participating, unless
16 you're closing your case. If you're closing your case, fine, close your
17 case and go on appeal, but you can't hold the Trial Chamber to ransom,
18 because this is what you're now doing.
19 [Defence counsel confer]
20 MR. MILOVANCEVIC: [Interpretation] Your Honours, I would like the
21 Trial Chamber to give us a 15-minute break so that the Defence team can
22 consult Mr. Martic. Thank you.
23 JUDGE MOLOTO: Court adjourned. We'll reconvene at quarter to
25 --- Break taken at 2.30 p.m.
1 --- On resuming at 2.49 p.m.
2 JUDGE MOLOTO: Yes, Mr. Milovancevic?
3 MR. MILOVANCEVIC: [Interpretation] Your Honours, after our
4 consultation, I would like to inform the Trial Chamber that the Defence,
5 in accordance with the suggestion of the Trial Chamber, will continue with
6 its work today. Based on the decision on this matter by the Trial
7 Chamber, regarding the testimony of Professor Smilja Avramov, I would like
8 to add the following thing in order to have the Defence's position
9 understood correctly. It was not our intention, Your Honours, to
10 blackmail either the Trial Chamber or the Appeals Chamber. We simply
11 believe that we are in the position, as a result of such editing of our
12 expert reports, are in a position that is not to our full advantage and
13 then we will have to see how to proceed on the basis of that. We are
14 going to act on your instructions, since the Prosecution is in the process
15 of drafting its response. So we will continue today with our work, with
16 the remark that parts of the expert report by Professor Avramov relating
17 to the mediation by the European Commission relating to recognition were
18 direct response to the count 68 or paragraph 68 of the indictment. And in
19 the indictment, the Prosecution states that as the basis for making an
20 assessment of the situation, thus, we are not now in a position to be able
21 to deal with that point, at the moment, at least. These are some of the
22 reasons why we wanted to make our position clear. The
23 examination-in-chief of the expert, Professor Avramov, will be conducted
24 by my learned friend, Mr. Nikola Perovic.
25 JUDGE MOLOTO: Thank you very much, Mr. Milovancevic. We have
1 lost a lot of time. I hope we are going to finish with this witness in
2 the time allocated. Mr. Perovic.
3 MR. PEROVIC: [Interpretation] Your Honours, I would like to summon
4 as a Defence witness an expert witness of the Defence, Professor Smilja
6 JUDGE MOLOTO: Thank you very much, Mr. Perovic.
7 [Witness appeared via videolink]
8 JUDGE MOLOTO: May the witness please make the declaration. Is
9 somebody helping the witness where she is? Because I see her lips moving,
10 we don't hear sound and I don't see a face of a person from -- oh, thank
11 you very much. There is somebody.
12 JUDGE HOEPFEL: Sorry, we don't have sound.
13 THE WITNESS: [Interpretation] I solemnly declare that I will speak
14 the truth, the whole truth and nothing but the truth.
15 WITNESS: SMILJA AVRAMOV
16 [Witness testified via videolink]
17 [Witness answered through interpreter].
18 JUDGE MOLOTO: Thank you very much, ma'am. You may be seated.
19 Yes, Mr. Perovic.
20 MR. PEROVIC: [Interpretation] Thank you, Your Honour.
21 Examination by Mr. Perovic:
22 Q. Good day, Madam Avramov.
23 A. Good day.
24 Q. Do you hear me well?
25 A. Yes, very well.
1 Q. Thank you. Before I put some questions to you regarding your
2 expert report, I would like to ask you to tell us briefly something about
3 your career. I'm going to help you in that. You were born in 1918; is
4 this correct?
5 A. Yes.
6 Q. You were born in?
7 A. Pakrac, now in Croatia.
8 Q. You completed the -- your secondary school, gymnasium?
9 A. Yes, I graduated at the classical gymnasium and then later I
10 studied law in Zagreb and in Vienna. And I defended my master's thesis,
11 the standard of international economic law in Yugoslav practice. I
12 obtained my Ph.D. in law in Belgrade, after defending my doctor's thesis.
13 I published about ten books and about 200 research papers and scientific
15 Q. You're a retired Professor of the law faculty of the university in
16 Belgrade; is that correct?
17 A. Yes.
18 Q. How many years did you spend teaching as a Professor at the
19 Belgrade university?
20 A. For a full 39 years. And in the meantime, I taught at numerous
21 universities in the country and abroad, from Japan to the United States,
22 Germany, London and so on and so forth.
23 Q. Were you a member of any international associations that dealt
24 with international law?
25 A. Yes. That is correct. I was the president of the Yugoslav
1 Association for International Law, and then in 1980, I was elected as the
2 president of the International Law Association. Other than that, I was
3 the president of the International Confederation for Peace and Disarmament
4 from 1968 until 1978. I was a member of other professional associations.
5 Q. Madam Avramov, excuse me, I did not turn my microphone on. Do you
6 have international and domestic awards for your work?
7 A. Yes. I received the greatest national award, the award Dositej
8 Obradovic, the Dositej Obradovic medal for my overall scientific and
9 teaching contribution.
10 Q. Thank you. Madam Avramov, you are retired and tell us what you
11 are doing now?
12 A. I am still involved in international law. I am still publishing a
13 lot of articles and books. I, since my retirement, I have published five
14 or six -- six books in total and these most recent books of mine are more
15 or less devoted to current issues. Before then, I published more legal
16 and philosophical topics. I also published textbooks from -- on
17 international law. Actually, that particular textbooks was published in
18 19 editions and is still used at all universities, law universities in
19 Serbia and outside of Serbia too. My book, Genocide in the Light of
20 International Law, was translated into English.
21 Q. Thank you, Madam Avramov. I think that this is quite an
22 exhaustive account of your career. In your expert report, you noted that
23 Yugoslavia was formed in 1918 as part of the Versailles system based on
24 military and political victories of the Kingdom of Serbia, the only
25 sovereign state in this area at the time, and the only ally of the entente
2 A. Yes.
3 Q. After World War II, that state was transformed into a federal
4 community; is that correct?
5 A. Yes.
6 Q. On the basis of the constitution, what was the position of the
7 federation and the federal units, the socialist republics, as the federal
8 units of the federation? Could you please explain that to us?
9 A. The position of the federal units in Yugoslavia was no different
10 in Yugoslavia than the position of federal units in all other states that
11 had a federative system. Meaning that at the local level, they had
12 brought autonomy but no powers in the sphere of international law and
13 international relations. In other words, what I want to say is that, as
14 the only subject of international law, in international relations, you had
15 the Socialist Federal Republic of Yugoslavia, which was the only body that
16 had the essential attributes of sovereignty, and it alone could be
17 represented in international organisations. It had a united diplomatic
18 and consular representation. Only the federation had the right to
19 conclude international treaties and, of course, to the use of military
21 The federal units belonged to the federation and these were the
22 powers of the federation that I just mentioned, and in that sense, you
23 could say that the Socialist Federal Republic of Yugoslavia, regardless of
24 the socioeconomic changes that ensued in the course of the revolution
25 actually preserved a united or a specific status of a state as a single
1 unified subject of international law. I would like to note one more
2 thing, which is perhaps of exceptional significance, and that is that
3 revolutionary changes which happened in Yugoslavia did not influence the
4 international legal status of Yugoslavia because, at the Jalta conference,
5 the three major statesmen officially, in a formal way, confirmed in
6 writing the state and legal continuity of the Kingdom of Yugoslavia and
7 socialist Yugoslavia.
8 Q. Thank you. Therefore, in the international community, Yugoslavia
9 appeared as the only and exclusive subject of international law. Is it
10 fair to put it that way?
11 A. Yes, that is correct.
12 Q. Thank you. In the SFRY constitution, and its introductory part of
13 a declarative character, there is mentioned the right to
14 self-determination on the part of the members of the federation. Hence my
15 question: Does the right to self-determination include the right to
16 secession or are these two terms synonymous?
17 A. Most of the theorists, and this was particularly noted in the
18 United Nations on several occasions that one ought to distinguish the
19 notion of self-determination from the notion of secession of a state, that
20 these were two different categories. Self-determination is a legal
21 category, secession is a political category.
22 In international law doctrine, secession was never recognised as
23 the legitimate basis for the creation of a state. It was worked out and
24 recognised in the Soviet doctrine and this was the consequence of Lenin's
25 doctrine concerning the right to self-determination as including the right
1 to secession. However, this had an exclusively ideological character
2 because it was in this way that Lenin saw a way to destroy the so-called
3 imperialist states. However, the European doctrines and doctrines
4 worldwide stood firmly on the principle that secession is not a rule of
5 international law and has no basis in international law. To this day,
6 there is not a single rule or regulation in international law that will
7 allow secession as the legal basis for the parting or the break-up of an
8 existing state. Not only that. It was before the International Court of
9 Justice that what I've just stated was confirmed. This was done in the
10 period between the two world wars in the league of nations.
11 Q. Therefore, am I right in saying that the principle of
12 self-determination does not automatically include the right of secession?
13 A. Yes, that's correct. It does not.
14 Q. Madam Professor, can I just ask you to speak more slowly so that
15 the interpreters can catch up interpreting you? Thank you.
16 We have therefore stated that the principle of self-determination
17 does not automatically include the right of secession?
18 A. Yes, that's correct.
19 Q. In your report, you stated that the acts of secession on the part
20 of Slovenia and Croatia were counterconstitutional and violent. Why did
21 you come to this conclusion?
22 A. Above all, secession is mentioned in the 1974 constitution in its
23 preamble, which has a declarative character. However, in the operative
24 part of the constitution, Article 5, it is explicitly stated that changes
25 to the borders can only take part with the consent of all the federal
1 units and two autonomous provinces. Therefore, secession is a
2 multilateral act. In order for it to be accepted, it has to be a
3 multilateral act and not a unilateral act. Otherwise, as a unilateral
4 act, it is contrary to the constitution and to the position of the United
5 Nations. As you know, United Nations have not accepted secession as a
6 rule of international law. It was only accepted by Moscow. Now, when the
7 United Nations took firm position that secession can never be accepted by
8 the United Nations, this was something stated by the UN Secretary-General
9 on the occasion of Katanga seceding from Congo. This was confirmed later
10 on about by several resolutions that I mention.
11 Q. That is why I will not go back to them now. But as an
12 international law expert of long standing, are you familiar with the
13 instance of a secession that was internationally recognised?
14 A. No. You see, this was a practice employed by Hitler. As you
15 know, under the pressure of the international community, the Sudet region
16 seceded from -- or, rather, from Poland, it was annexed to Germany. This
17 was reversed after World War II because the international community did
18 not recognise this. Now, in the instant case, we are talking about
19 Yugoslavia. This was to become an area of thorough studies and criticism,
20 of course. And I mean the secession from Yugoslavia.
21 Q. Madam Avramov, how do you explain the fact that in this particular
22 case involving Slovenia and Croatia, an exception was made? Why did the
23 international community depart from its accepted positions?
24 A. Let me just respond to why I said that this was a violent act.
25 This because the preparations for the secession took place several years
1 ahead of the secession itself, both domestically and internationally. A
2 great deal was done toward that by the Croatian emigres who were very well
3 organised and returned en masse to the country in 1990. Croatia had
4 numerous emigres after World War II, because you know that during World
5 War II, a Nazi Croatian state was set up with the assistance of the Nazi
6 Germany. With the return of the emigres into the country and the setting
7 up of the HDZ, Croatian national union, when a multi-party system was
8 introduced, at one of the meetings of the HDZ, it was pointed out that the
9 goal Croatia had was to go back to its original historical borders.
10 Franjo Tudjman mentioned in the context of these original historic
11 borders, the borders all the way to the town of Zemun or, rather, the
12 borders that existed during the World War II Nazi-type Independent State
13 of Croatia. Alongside the political process, there was also the setting
14 up of the Croatian paramilitary formations in Croatia, which were widely
15 documented, and attacks were carried out on the Serb population.
16 Therefore, secession went hand in hand with a series of terrorist acts.
17 JUDGE NOSWORTHY: I believe that the expert had gone into an area
18 that overreaches her expertise, but there is --
19 MR. PEROVIC: [Interpretation] I'm not receiving interpretation
20 into English, Your Honour or, rather, into B/C/S.
21 JUDGE NOSWORTHY: I would like to pose some questions to her at
22 this stage. I'm sorry to intervene, Mr. Perovic, but whilst it's hot off
23 the press and the fire, so to speak.
24 MR. PEROVIC: [Interpretation] Your Honour, I'm not receiving
25 interpretation, and I'm not sure the witness heard what you were just
2 THE WITNESS: [Interpretation] Yes, I've heard.
3 JUDGE NOSWORTHY: You're hearing me very clearly, Madam Avramov?
4 THE WITNESS: [Interpretation] Yes, I can hear you.
5 JUDGE NOSWORTHY: There are a couple of questions I would like to
6 pose to you intervening in -- at this stage. Now, you mentioned Article 5
7 of the constitution, is it? And the fact that it --
8 THE WITNESS: [Interpretation] Yes.
9 JUDGE NOSWORTHY: -- that changes to the border can only take
10 place with the consent of all federal units. Now, correct me if I'm
11 wrong, is there not a distinction between change in --
12 THE WITNESS: [Interpretation] That's correct.
13 JUDGE NOSWORTHY: -- border and secession. Because change in
14 border, would it not mean whether or not, for example, Bosnia and
15 Herzegovina tried to take -- change their borders to encroach on the
16 territories of neighbouring states or whether Yugoslavia itself tried to
17 overreach its territories and take in territory of a neighbouring country
18 or state? And I see that as quite distinct from the issue of secession.
19 Please explain for me whether you agree with that premise or you disagree
20 and why.
21 THE WITNESS: [Interpretation] No. I don't agree at all. First, I
22 wish to say the following: The military power of Yugoslavia never went
23 beyond the Yugoslav borders, which had been determined in several
24 international treaties right after World War II, and the victorious forces
25 of World War I and World War II were the guarantors of the Yugoslav
1 borders. That is why the post Second World War Yugoslavia was the
2 successor of the Kingdom of Yugoslavia. Secondly, Tudjman, president of
3 Croatia and Mr. Kucan, president of Slovenia, explicitly stated and
4 confirmed in their acts of secession that the borders would be changing.
5 JUDGE NOSWORTHY: I do not think you have got to the nitty-gritty
6 of what I'm trying to get from you. I think the place to begin is for you
7 to describe the process of secession or define secession and then by
8 contrast or in addition, for you to describe what a change of border is by
9 definition. Are you following me clearly, Madam? Learned Madam?
10 THE WITNESS: [Interpretation] From the viewpoint of international
11 law, secession is a unilateral act whereby one country forcibly attempts
12 to leave the community of federal units and to set up its own independent
13 state. This is, therefore, a unilateral act which is contrary to
14 international law, in view of the Charter which guarantees the territorial
15 integrity of all its members. I would like to remind you, Madam, that
16 Yugoslavia is among the founding countries of the United Nations and the
17 signatories of the Atlantic Charter dating from November 1942.
18 And that in San Francisco in 1945, it was stated that members who
19 were part of the war coalition of the United Nations held a special status
20 and that the organisation had specific moral obligations toward such
21 countries. As far as the borders are concerned, borders are a
22 multilateral legal act. They cannot be established unilaterally. They
23 can only be established with the consent of the neighbouring countries and
24 under international control. I wish to remind you, Madam, that treaties
25 determining the borders of Yugoslavia were multilateral treaties and were
1 never cancelled by any of the countries: France, Great Britain, United
2 States, who were guarantors of its implementation and were never called
3 into question by these.
4 The determination of borders is a two-step process. The first
5 step is to determine the borders pursuant to a legal enactment and then
6 delineation on the part of international factors who determine precisely
7 the line dividing the two countries. Therefore, a multilateral and a
8 unilateral enactment.
9 MR. PEROVIC: [Interpretation] Can I continue?
10 JUDGE NOSWORTHY: Yes, counsel, but she appeared to be saying that
11 one could not -- initially she appeared to be saying that one could not
12 unilaterally secede because Article 5 provides that changes to the border
13 can only take place with the consent of all federal units and is
14 multilateral and not unilateral.
15 THE WITNESS: [Interpretation] That's correct. Therefore, Slovenia
16 and Croatia did an unlawful act which was contrary to the constitution and
17 to the United Nations charter. If I may be allowed to continue, and add
18 the following. If we --
19 MR. PEROVIC: [Interpretation] Just a moment. Pause there, Madam
21 JUDGE NOSWORTHY: I'm having a difficulty because she doesn't seem
22 to be saying that there is a distinction between secession and changes to
23 border based on that statement and that principle. I don't know if you
24 can assist.
25 MR. WHITING: Your Honour, I don't know if it would be of
1 assistance, but the constitution is in evidence. It's Exhibit 480 and if
2 the Trial Chamber wanted to look at Article 5 in its language, I don't
3 know if that would be of assistance.
4 JUDGE MOLOTO: It is not of assistance. It is the witness's
5 interpretation of the issues. You see, Mr. Perovic, I think what Judge
6 Nosworthy is saying is there seems to be a contradiction contained in what
7 the witness testifies to as the position under Article 5 of the 1974
8 constitution and what she says secession is by definition. Under the
9 constitution, definition, a secession must take place with the consent of
10 all the federal units. By definition, secession is a unilateral act.
11 That's a contradiction. I don't know whether I've articulated what you
12 wanted to articulate correctly.
13 JUDGE NOSWORTHY: Yes.
14 THE WITNESS: [Interpretation] Please allow me to add --
15 JUDGE NOSWORTHY: And a further fact -- changes in the border
16 would have nothing to do with secession specifically further.
17 JUDGE MOLOTO: Firstly, because the changes in borders could
18 affect internal borders or external borders, whereas secession essentially
19 relates to breaking away from a mother country.
20 MR. PEROVIC: [Interpretation] I believe that the witness will be
21 able to explain this quite clearly.
22 Q. Madam Avramov, did you hear what the discussion was about?
23 A. Yes.
24 Q. Please, go on, please.
25 A. I would just like to say that the federation was the product of
1 the revolution, the socialist, communist revolution, and the constitution
2 and the constitutional system were built according to the Soviet
3 constitutional model. Secession, as I said, was of the -- a result of the
4 socialist or communist and Stalinist system, so secession was thus
5 included into the SFRY constitution. There is no contradiction there from
6 the point of view of international law; secession is not permissible as a
7 constitutional category. It was based in the ideology and if you permit,
8 the ideological identity and international legal identity are not
9 identical things. And Europe, in the post Cold War period, as the basic
10 principle of its policy, adopted the status quo ante, and that is
11 restoring the states where there was a socialist revolution to the
12 situation before the socialist revolution. This was in force everywhere
13 except in the case of Yugoslavia. This is where there was some confusion
14 there, which was caused by the international community or, better said,
15 the European Community.
16 JUDGE MOLOTO: Proceed, Mr. Milovancevic.
17 MR. PEROVIC: [Interpretation]
18 Q. Madam Avramov, you pointed out the moment of the Croatian and
19 Slovenian secession as crucial in a turning point where the crisis in
20 Yugoslavia turned into civil war. Why do you believe that?
21 A. Quite naturally, I believe that, because at the time, the
22 so-called All People's Defence was misused. Federal units declared
23 paramilitary units as their own regular army. And this caused a lot of
24 upheaval and it caused, especially because there was a series of incidents
25 and a series of confrontations, that the secessionist forces in all parts
1 of Croatia inhabited by Serbs tried to take power violently. For example,
2 in Plitvica, in Pakrac and in a series of other places, which led to armed
3 conflict and these armed conflicts progressed geometrically with the
4 injection of mercenaries, both mercenaries and volunteers. This was one
5 aspect of it.
6 But I have to add the international factor. The war still could
7 have been prevented at the time. However, before war fully began to rage
8 in Yugoslavia, in July 1991, the European Community demanded that the
9 Yugoslav People's Army, the only legitimate military power in the country,
10 which was a multi-national force, including generals and officers and so
11 on, should pull back into the barracks, which made it possible for the
12 paramilitary forces to enter even more forcefully into conflict. This was
13 the second reason why the civil war raged.
14 Q. Thank you for this explanation. But just one moment, I would like
15 to ask you the following question. As a legal theoretician and an
16 international law expert, what is your experience? At what point do the
17 nationalist and ethnic conflicts acquire their most cruel and drastic
19 A. In my modest knowledge, I always relied on important international
20 sources and authorities and I would like to do that on this occasion,
21 citing very prominent legal expert, Mr. Horowitz, a US theoretician and
22 somebody who analyses current events, who wrote a lot about the situation
23 in Yugoslavia, who said, the critical period in secession, when it turns
24 into war, is at the point in time when one side or the other acquires
25 international support. This is the critical point because, parallel with
1 the proclamation of secession, Germany already in June, sought recognition
2 for Croatia and Slovenia. The Vatican also, on its part, insisted on
3 recognition. I would like to remind you, sir, that at the EU community,
4 it was the community still and not union, 11 member countries of the
5 European Community were decisively against recognition of secession. Only
6 one country was in favour and that was Germany.
7 Q. Thank you. And finally, I have one more question for you as an
8 international law expert: Do you know whether disassociation is an
9 international legal term?
10 A. No, it's not an international term, disassociation, it's a
11 sociological term which, in legal terminology, does not exist. It can be
12 used as an explanation in some way but not as a concept that is accepted
13 in law. It doesn't exist.
14 Q. From the point of view of law, international law, specifically,
15 that term means absolutely nothing?
16 A. It was used, let me tell you. It was used by Tudjman and Kucan as
17 a euphemism, as a euphemism, because I would also like to remind you about
18 a very significant moment while the last stage of negotiations was still
19 under way. Amongst the federal units, where all representatives, all
20 presidents of the federal units, were invited to this meeting, this was in
21 April or May 1991, I indicated the exact dates when this was, that Tudjman
22 was categorically against any kind of compromise. The only thing was to
23 constitute Croatia as an independent state, in any possible way including
25 Q. Thank you very much, Madam Avramov. To the extent that I was
1 permitted, I have completed my examination-in-chief. Thank you, Madam
3 JUDGE MOLOTO: Thank you, Mr. Perovic. It is just at that moment.
4 Shall we maybe take a break and come back at 4.00. Court adjourned.
5 --- Recess taken at 3.30 p.m.
6 --- On resuming at 4.01 p.m.
7 JUDGE MOLOTO: Mr. Whiting?
8 MR. WHITING: Thank you, Your Honour. First, I'd just like to
9 inform the Trial Chamber that we have filed our response and it's been
10 filed, it's also been e-mailed to your legal officer, a courtesy copy, as
11 well as, of course, to the Defence.
12 JUDGE MOLOTO: Thank you very much, Mr. Whiting, for that.
13 MR. WHITING: Secondly, I'm not sure if the report of the witness
14 has been give and exhibit number and if that needs to be done.
15 JUDGE MOLOTO: I don't think it has. Unless, of course, Mr.
16 Perovic doesn't want it to be filed, to be admitted into evidence.
17 MR. PEROVIC: [Interpretation] I thank you for directing my
18 attention to this and I would like to tender the expert report into
19 evidence, as an exhibit, and be assigned an exhibit number, please.
20 JUDGE MOLOTO: Thank you very much, Mr. Perovic. The report is
21 then admitted into evidence. May it please be given an exhibit number.
22 THE REGISTRAR: Your Honours, this becomes Exhibit number 1019.
23 JUDGE MOLOTO: Thank you so much. Mr. Whiting?
24 MR. WHITING: Thank you, Your Honour.
25 Cross-examination by Mr. Whiting:
1 Q. Good afternoon, Madam. My name is Alex Whiting. I'm one of the
2 prosecutors in this case. Can you see me and can you understand me?
3 A. Yes. I understand you.
4 Q. Thank you. We have the added difficulty of the videolink here, so
5 if at any time you can't understand me or you can hear me, please let us
6 know, okay? Now, you are testifying here at the Tribunal as a legal
7 expert, right?
8 A. Yes.
9 Q. As a law Professor, as a legal expert, testifying under oath in
10 this case, is it important for you to be careful and precise in what you
11 write in your report that's been now admitted into evidence and what you
13 A. I wrote the report as was my position, and I relayed my position
14 and my firm convictions in that report, and I was governed by my work
15 ethic which I always thought was highly important. And my work product is
16 the product of my firm beliefs and of my studying of these areas. I have
17 made a series of publications from that particular legal area.
18 Q. I understand that. Does -- I take it your work ethic includes
19 being careful and precise in your legal writing, including in writing of
20 this report. Am I right when I say that?
21 A. By all means.
22 Q. Okay. Now before I ask you some questions about your report, I
23 want to ask you some questions about your views about this Tribunal, in
24 particular, about the legality of this Tribunal. Now, in June of 1996,
25 were you -- you were one of 24 signers of a declaration demanding that The
1 Hague Tribunal repeal the charges brought against Radovan Karadzic; is
2 that right?
3 A. Yes. I believe it is. But if you'll allow me, I should like
4 to --
5 Q. We are going to look at the declaration. We have it here.
6 It's -- it is -- if we could bring it up in the e-court and the registrar
7 who is with you will be able to provide you a hard copy of it. It's
8 0115-0593. And this document is in multiple languages and you of course
9 will look at the B/C/S version, and the English version.
10 A. Sir, if you'll allow me, may I say what I have to say.
11 Q. Let me ask the question first and you'll have an opportunity to
12 answer my questions. If we, on the e-court, could turn to 0115-0600.
13 Now, I've just lost the witness. There we go. I have her back. Madam,
14 while we are finding the right page for us, you can look at your page at
15 the B/C/S page, but while we are looking at -- while we are trying to find
16 the English page --
17 A. Yes.
18 Q. -- is this in fact the declaration that you signed in June of
20 A. Yes, it is.
21 Q. Do you stand by the views that are expressed in this declaration?
22 A. I believe I do, fully, but I have -- I have trouble hearing.
23 Q. Okay. Let me see -- can you hear me now? Are you able to hear me
25 A. Yes. It's better now.
1 Q. Okay. If you can't hear me at any point, please let me know. Do
2 we have the correct --
3 A. No, no, there are interruptions. I can hear half of the sentence
4 and then the other half is gone.
5 Q. Well, I'll try talking so that -- can you hear me now? Okay.
6 Okay. We'll try to proceed, but do tell us if you can't hear. Does the
7 Chamber have the correct English page of this document?
8 JUDGE MOLOTO: Yes.
9 MR. WHITING: Okay, because it's not on my screen, but that's
10 fine, because I have the hard copy. Sorry, 01150600. I don't have it on
11 my English screen but it's -- but everybody has it?
12 JUDGE NOSWORTHY: Yes, I think so.
13 JUDGE HOEPFEL: It is page 8.
14 MR. WHITING: Correct. Now I think it's on every screen. Thank
16 Q. I'd like to look at paragraph 2. It says, "Attempts to exclude
17 Radovan Karadzic from the political life of the Republic of Srpska in the
18 period of its stabilisation." And I assume in the context that it means
19 attempts by seeking to charge him at the Tribunal and arrest
20 him. "Putting into effect the Dayton agreement regulations and the Paris
21 Treaty are directly aimed at ruining Serbian people interests and
22 represent that the attack against the democratic processes." Madam, did
23 you -- did you believe that then and do you believe that today?
24 A. Yes, sir. One ought not to forget that Mr. Karadzic took part in
25 the entire process, from day one. Allow me to tell you that I was a
1 member of the negotiating team since 1991 all the way to 1993.
2 Q. Please stop.
3 A. And that I --
4 Q. You've answered my question. You've answered my question. My
5 question was just whether you stand by this statement and you said yes.
6 There is no need for further explanation. Let's look at paragraph 3 where
7 you say, "Bringing up criminal charges against Radovan Karadzic, the
8 president of the Republic of Srpska because of the alleged war crimes has
9 not been grounded on facts." Now, as a law professor, and an academic and
10 a lawyer, do you believe that that's a responsible thing to say without
11 actually letting the process take its course, without letting a trial
12 happen and letting the facts come forward? Is it responsible before
13 anything has even occurred to say that the charges are not based on facts?
14 A. Sir, I was a member of the negotiating team from day one, from
15 1991 through to the end of 1993. All the while, I was collecting
16 voluminous documentation. I followed the developments and was kept fully
17 abreast of the events in the territories of the Republic of Serbian
18 Krajina and the Republika Srpska. Based on my knowledge of the time,
19 which stemmed from my presence on the ground, I arrived at these
20 conclusions. I would like to say another -- one other thing. I published
21 a book on the destruction of Yugoslavia where I substantiate and
22 corroborated the part you're currently asking me about.
23 Q. But, Madam, you cannot possibly be aware of every fact that might
24 be relevant to the charges against Mr. Karadzic, right? So to make a
25 statement that the charges are not based on facts, is that a
1 responsible --
2 MR. PEROVIC: [Interpretation] Objection, Your Honour.
3 JUDGE MOLOTO: Mr. Perovic?
4 MR. PEROVIC: [Interpretation] --
5 THE WITNESS: [Interpretation] I don't know what has this got to do
6 with --
7 MR. PEROVIC: [Interpretation] Would you pause, Madam Avramov? I
8 have an objection to make which has to do with the relevance concerning --
9 with the relevance of the questions put to Madam Avramov. I don't see
10 what her views on the alleged culpability of Mr. Karadzic could possibly
11 have to do with the subject matter of this trial.
12 JUDGE MOLOTO: Mr. Whiting?
13 MR. WHITING: Your Honour, the witness has been called as a legal
14 expert in this case to express legal opinions. I think it's entirely fair
15 for the Prosecution to explore the bases for other legal opinions and to
16 challenge the credibility of the witness in this way. And that is exactly
17 what I'm doing.
18 JUDGE MOLOTO: Mr. Perovic?
19 MR. PEROVIC: [Interpretation] Of all the matters that my learned
20 friend pointed out, the only true point is that he is trying to challenge
21 the credibility of the witness in this way. Therefore, I stand by my
22 objection based on relevance.
23 JUDGE MOLOTO: Well, if you accept then that he's challenging
24 credibility, then you are overruled, Mr. Perovic, because that is
25 perfectly within the right of the opposing party to do.
1 MR. WHITING: Thank you, Your Honour.
2 Q. Now, Madam, would you answer my question? Was it -- is it a -- as
3 a law professor, as an academic, as a lawyer, is it responsible to say
4 before a trial has occurred, before the charges have been explored, before
5 the facts have been set forth, that the charges of the Tribunal are not
6 based on facts? Is that, in your view, a responsible position to take
7 as -- in your position?
8 A. As a scholar, sir, I had been following and studying for years the
9 areas that you started examining when dealing with this case. Based on my
10 knowledge of the events on the ground and the documentation that I
11 collected, I arrived at certain conclusions. Therefore, what I stated is
12 not in contradiction to what you are saying because you're merely at the
13 beginning of the process of examining these events. I told you that I was
14 on the negotiating team as one of the main members there, ever since 1991.
15 I also took part in the conference which dealt with the setting up of this
16 Tribunal. I don't know if I mentioned this.
17 Q. Madam, when you were on the negotiating team, you were a
18 representative -- you were representing Serbia or you were on that team on
19 behalf of Serbia, correct?
20 A. Yes.
21 Q. Now, in paragraph 9 of this document, you say, "Bearing in mind
22 the illegality of The Hague Tribunal." And do you stand by that position
23 today, that The Hague Tribunal is illegal?
24 A. Sir, I wrote a study which I also defended at the conference of
25 the International Law Association in Washington. My position was then and
1 is now that the Security Council does not have the power to set up
2 international bodies such as this Tribunal. It can be done only on the
3 basis of an international treaty, as was the case in the ICC, and not on
4 the basis of a Security Council resolution. It can only establish in
5 auxiliary bodies and that is as far as the Security Council can go.
6 Q. And Madam --
7 A. And, sir, I published this study, both in English and in Serbian.
8 This is nothing new.
9 Q. And Madam, are you aware of any decisions from this Tribunal that
10 deal with that very issue that you are talking about? That is the
11 legality of or illegality of how the Tribunal was created?
12 A. I wouldn't be able to answer you at this time. I was following
13 these developments. I cannot tell you now whether I am familiar with this
14 particular matter.
15 Q. So, Madam, are you not familiar with the Appeals Chamber decision
16 in the Tadic case dated the 2nd of October 1995, before you wrote this,
17 which considered that very issue about the legality of the establishment
18 of the Tribunal? Are you not familiar with that decision?
19 A. Sir, on the basis of my free, legal views, I have the right to
20 take a certain expert view which doesn't necessarily always have to
21 correspond to yours.
22 Q. Madam, you haven't answered my question. My question is: Are you
23 familiar with the Appeals Chamber decision in the Tadic case? Have you --
24 are you familiar with it or not?
25 A. It happened a long time ago. I cannot recall the details of the
1 case at this time, and therefore I do not wish to speak on that matter.
2 JUDGE HOEPFEL: Could we clarify when the witness -- the expert
3 witness wrote this study and where it was published?
4 MR. WHITING:
5 Q. Madam, were you able to hear that question? Could you tell us
6 when you wrote that study and where it was published?
7 A. I wrote the study shortly after my return from New York. That was
8 in 1995. It was first published in Serbian in the publication of the law
9 school in Belgrade. There, I presented an exhaustive analysis of the
10 entire matter. It was translated into English. I can have it sent to you
11 if you're interested. Since, as I told you, I sent it to the American
12 International Law Association, of which I was a member.
13 Q. Madam, when was it first published? You told us you wrote it in
14 1995. When was it first actually published?
15 A. In 1995. That is when it was published for the first time.
16 Q. And do you recall when in 1995?
17 A. I think it was in mid-1995. I can't tell you the date.
18 JUDGE HOEPFEL: Apparently, Mr. Whiting, it was written before the
19 Tadic decision.
20 THE WITNESS: [Interpretation] But let me tell you, I wrote very
21 many articles after that one.
22 MR. WHITING: Your Honour, though, the -- I was proceeding on the
23 basis of the fact that the witness stated that today she still stands by
24 that view.
25 JUDGE HOEPFEL: Right. Professor, may I ask you, did you write on
1 this issue of the legitimacy of the Tribunal also later, and if yes, still
2 only on basis of your own views or discussing the Tadic decision?
3 THE WITNESS: [Interpretation] I proceeded on the basis of my own
4 views, yes.
5 JUDGE HOEPFEL: Thank you. Please, Mr. Whiting, you may continue.
6 MR. WHITING: Thank you, Your Honour.
7 Q. I guess my last question on this topic is, did you ever read the
8 Tadic decision?
9 A. A long time ago. I read it a long time ago.
10 Q. And do you recall anything about the decision or what your views
11 were about the reasoning in that case?
12 A. Sir, I wouldn't want to be discussing these matters on the basis
13 of assumptions. I would have to have the decision before me in order to
14 answer your question. I can't proceed on the basis of what I may or may
15 not remember. A lawyer cannot respond to questions in that way before the
17 Q. Okay.
18 MR. WHITING: Could this document be admitted into evidence,
20 JUDGE MOLOTO: The document is admitted into evidence. May it
21 please be given an exhibit number.
22 THE REGISTRAR: Your Honours, this becomes Exhibit number 1020.
23 JUDGE MOLOTO: Thank you so much. Mr. Whiting.
24 MR. WHITING: Thank you, Your Honour.
25 Q. I want to look at another document and this is one you wrote in
1 1996. And if we could look at 034133 -- sorry, 3430. Madam, the
2 registrar will provide you with a copy of it in the B/C/S. We have one in
3 English and you will have one in B/C/S, and it should be entitled "Models
4 of Serb-hood." Do you have that in front of you?
5 A. Let me tell you right away, sir, that this same document was shown
6 to me at the time of my testimony in the case against the former
7 president, Mr. Milosevic. This same document was shown to me at the time,
8 and let me tell you straight away, that I was surprised at the time. I
9 didn't write such an article. What is stated here was my speech in the
10 association of literary writers in Belgrade on the matter of the Tribunal
11 and proceedings and it was an extemporised speech that was translated. I
12 don't know who wrote it down or recorded it.
13 Q. Right. But Madam, in the Milosevic trial, you reviewed this
14 document and you stated that you stand by it and that it accurately
15 reflects your views.
16 A. Yes.
17 Q. Okay. So if we could --
18 A. But not in the form of an article that was allegedly published
19 under this title.
20 Q. I understand. We'll call it a speech. In the first paragraph,
21 you say that the opening of the office of the so-called Hague Tribunal --
22 and this was in 1996 that you gave this speech, correct?
23 A. Yes. I guess so.
24 Q. And it says -- you say that you "perceive the act as yet another
25 offence to both the science of law and the honour of the Serbian people."
1 And then in the third paragraph, you say, "the foundation of this court
2 which is in actual fact genocidal and anti-Serbian, generated bitterness
3 among intellectuals." Now, can you explain for us, how is the Tribunal
4 genocidal? What do you mean by that?
5 A. Sir, I am not quite certain about this genocidal part ever being
6 within my original speech. I believe that it was inserted. But let me
7 tell you right away, the setting up of this Tribunal embittered the
8 lawyers in this country and above all, it embittered me as an
9 international law expert because we believed it to have been a
10 discrimination against the Serbian people. 220 international --
11 Q. Stop, stop, stop.
12 JUDGE MOLOTO: Ma'am. Doctor.
13 THE INTERPRETER: The interpreter notes that the speakers overlap
14 and it's impossible to translate.
15 THE WITNESS: [Interpretation] -- until the setting up of the
16 Tribunal took place and --
17 JUDGE MOLOTO: Dr. Avramov. Dr. Avramov.
18 THE WITNESS: [Interpretation] -- and that was the forcible
19 breaking up of a small country, of a small state, Yugoslavia. And I
20 raised this issue before the international community that, for instance,
21 the crimes that took place in Cambodia, in Vietnam, in Korea and in a
22 number of other international conflicts, in none of these conflicts a
23 Tribunal was set up. This only took place in the case of Yugoslavia. To
24 me, as a lawyer, to me, as a lawyer, it strikes me as a discrimination
25 against the people of which I happen to be a member.
1 JUDGE MOLOTO: Dr. Avramov, does it mean I'm being heard if I
2 don't see her on the screen?
3 MR. WHITING: I think you're being heard.
4 JUDGE MOLOTO: Okay. Dr. Avramov, can I say this to you. It does
5 not help you --
6 THE WITNESS: [Interpretation] Yes, I can hear you.
7 JUDGE MOLOTO: Yeah. It does not help to you carry on talking
8 when you're being asked to stop, because at that stage, you're talking,
9 the person who is asking you to stop is talking and we don't hear what you
10 say, so your words fall on infertile soil. So when you're asked to stop,
11 please do stop, okay? Because otherwise you're just making sounds which
12 are not going to be taken into consideration because they are not being
13 recorded. We don't hear what you're saying. Now, do understand that
14 when --
15 THE WITNESS: [Interpretation] It doesn't depend on me. It depends
16 on --
17 JUDGE MOLOTO: Just listen to me. Let it also depend on what you
18 hear, okay? When the lawyer wants any further explanation from you in
19 addition to the answer that you have given to his answer, he will ask you
20 to explain. If he just wants the short answer, please just give the short
21 answer. And if he wants explanation, he'll call for it. If he doesn't
22 want explanation and you want to give that, you can wait until when your
23 lawyer asks you questions again and you can give that explanation at that
24 time. Okay? Thank you very much.
25 MR. WHITING: Thank you, Your Honour.
1 JUDGE MOLOTO: Yes, Mr. Whiting.
2 MR. WHITING: Madam, just to reiterate, if you hear me say stop,
3 and you see me put my hand up, please stop. So that we can continue.
4 Q. Now, I want to focus on the word "genocidal" here. When you were
5 shown this document in the Milosevic case, you had the document overnight,
6 you read it and you testified in that case that you stood by what it said
7 which you repeated here in your testimony just a few moments ago. Are you
8 now saying that you did not say that this Court is genocidal? That that
9 is incorrect?
10 A. I think that this bit was inserted.
11 Q. But that's not something you said either in the Milosevic case or
12 when I asked you if this was -- you stood by it a few moments ago.
13 A. I stand by the text in its entirety, but this part doesn't seem to
14 be logical. It doesn't seem to logically fit into the context into which
15 it was inserted.
16 Q. So everything else in the text but that word genocidal is
17 accurate, is that what you're telling us?
18 A. I think that this one bit was inserted.
19 Q. And you didn't notice that when you reviewed this document during
20 your testimony in the Milosevic case? That didn't jump out at you as a
21 dramatic word at that time? You didn't notice that?
22 A. I didn't notice that.
23 Q. Otherwise, the document is accurate and you stand by it, correct?
24 A. I don't understand. I didn't get your point.
25 Q. Other than that one word, "Genocidal", you stand by every other
1 word that's written in the document, correct?
2 A. Correct. And I explained to you why.
3 Q. My apologies, Madam. When you say, and this is the end of the
4 fourth paragraph --
5 JUDGE HOEPFEL: Could we remain discussing the third paragraph?
6 You picked one word out which is obviously absurd but something we heard
7 also from a witness is also stated here. This is the Court being called
8 anti-Serbian. And, Witness, would you -- Professor, would you stand by
9 that also today? And if yes, do you -- are you aware that this is a
10 criminal court dealing with individual responsibility?
11 THE WITNESS: [Interpretation] 90 per cent of those brought before
12 this Tribunal are Serbs. The only president of a state, of all the states
13 that fell apart, was the Serb president, who was brought before this
14 Tribunal. Much greater blame is to be borne by a president of Croatia or
15 Slovenia and they were not brought before this Tribunal.
16 JUDGE HOEPFEL: Thank you. Sorry for the interruption. Please
18 MR. WHITING:
19 Q. Actually following on from that, I'll go to the -- in the fifth
20 paragraph, which is the last paragraph on the first page in the English,
21 you state -- it states, just after you talk about that you were shocked as
22 a member of the Serbian people when an indictment was issued against
23 President Karadzic and General Mladic, the two greatest figures in recent
24 Serbian history, you say, "I perceived the attack against them as an
25 attack on the entire Serbian people." Is that a view you stand by?
1 A. In a certain way, yes, because I know those people personally as a
2 member of the Serb delegation. I cooperated with them frequently and I am
3 well aware of their work. We published five or six books of documents in
4 Serbian so far, also in English. I don't know if you have those books.
5 The commission that published those books is called the commission for
6 truth. And it published the complete documents relating to the activities
7 of General Mladic and Mr. Karadzic when they were performing the functions
8 that they performed in Republika Srpska.
9 Q. Has your view that you express here about President Karadzic and
10 General Mladic, being the two greatest figures in recent Serbian history
11 and what you've just said, has it been affected at all by the
12 unwillingness of these two men to come face charges here at the Tribunal
13 in The Hague?
14 A. Sir, these are completely different questions, diametrically
15 opposed questions, that have nothing to do with each other.
16 Q. It's actually just one question. And the question is: Does your
17 view, the view that you expressed here in 1996, about General Mladic and
18 President Karadzic, has it changed at all because these two men have been
19 unwilling to come here to The Hague to face the charges that are against
20 them? It's a very simple question.
21 A. It's a very simple question. I stopped all contacts with both of
22 those people. I don't know anything about their work after the Dayton
24 Q. That's not an answer to my question. My question is: Has your
25 view of these two men changed in light of the fact that they have been
1 unwilling to come face the charges here that are against them in The
3 A. That is their personal position that I cannot go into, and I
4 cannot make a judgement about the character of a person based on that.
5 That is their personal position. In the same way that there is the
6 personal position of Bin Laden or others.
7 JUDGE MOLOTO: Dr. Avramov, can I just try to intervene here?
8 Please try to listen to the question and try to answer the question as
9 directly as you possibly can. You are not being asked to judge them.
10 What you are being asked is whether your view as expressed in this
11 document in 1996 has it changed or has it not changed in the light of the
12 fact that these two gentlemen have not come to The Hague to face to the
13 charges against them? Are you able to just -- it has nothing to do with
14 them to say it is their personal view. Has nothing to do with their view.
15 It is your view of them that you're being asked about. Do you have any
17 THE WITNESS: [Interpretation] Sir, I was summoned before the
18 Tribunal as an expert in the case against Mr. Martic. If you were to open
19 proceedings against Mr. Karadzic, then I can be summoned to speak on that,
20 but I would like to now just stick to the topic about which I was summoned
21 to testify. I cannot mix up the cases of Mr. Mladic and Mr. Karadzic with
22 the case of Mr. Martic. Let me tell you right away, if proceedings should
23 begin against Mr. Karadzic and Mr. Mladic, then you can call me and I will
24 give you my opinion, but this time we are speaking about Mr. Martic.
25 JUDGE MOLOTO: Can you -- may I stop you, please? Mr. Mladic and
1 Mr. Karadzic are not here being tried. You are just being asked for a
2 view on them. If you don't want to answer the question, say you don't
3 want to answer the question. If you don't have an answer, say you don't
4 have answer. Nobody is suggesting that you are being -- you're
6 THE WITNESS: [Interpretation] No.
7 JUDGE MOLOTO: In that trial. And please listen to the questions
8 and answer to the questions directly.
9 THE WITNESS: [Interpretation] I do not wish to talk about cases
10 that are not the topic of this particular case.
11 JUDGE MOLOTO: I want to take that as saying you don't want to
12 answer that question. Thank you very much. The record will show that.
13 MR. WHITING:
14 Q. Madam, do you understand that the --
15 A. Please let it be stated in the transcript that I do not wish to
16 talk about matters that have nothing to do with the matters about which I
17 was summoned this time before this Tribunal. That is what I would like
18 the transcript to reflect.
19 Q. Madam, surely, as given your expertise and your knowledge about
20 international affairs and this Tribunal, surely you are aware that the
21 subjects about which you are asked about and required to give
22 information -- answers to, are decided by the lawyers and the Judges at
23 the Tribunal and not by the witness. You do understand that, don't you,
25 A. Yes, but there is a limit in each case, as much as I am familiar
1 with the practice in courts. And I was in courts before. You cannot go
2 and exceed the boundaries of the case itself too much. You cannot go much
3 beyond the case. I mean, I am well aware of that at least.
4 Q. Madam, that is up to the Judges. It is up to the Judges here. If
5 the Judges believe that either of the parties have exceeded -- are
6 exceeding the boundaries with their questions, then the Judges will stop
7 us. Okay? But until that happens, it's your obligation to answer our
8 questions. Do you understand?
9 A. But I also have the right as an expert to appear or not to appear
10 as an expert. It is one thing to be a witness and another thing to be an
11 expert witness. For an expert witness, you need to have explicit
12 individual agreement.
13 Q. Well, Madam -- Madam, I can tell you that under the Rules, when
14 you start testifying, there is really no difference between the fact that
15 you're an expert and any other witness. If you refuse to testify
16 entirely, then there could be a decision about whether you would be
17 summoned and what would happen with your testimony and so forth, but
18 you're not permitted, I would say, to pick and choose which questions you
19 want to answer and which ones you don't want to answer. Do you understand
21 MR. PEROVIC: [Interpretation] [No interpretation]
22 JUDGE MOLOTO: Yes, Mr. Perovic?
23 THE WITNESS: [Interpretation] I understand except I cannot
24 understand you as a lawyer. I understand your question, what you're
25 trying to say, but please allow me, this logic in the legal profession is
1 something I am not familiar with.
2 MR. PEROVIC: [Interpretation] Madam Avramov, just one moment,
3 please. I would like to say something that I'm not sure that is an
4 objection. I would just like to express my concern. We are coming up to
5 the end of our second session and my learned friend from the Prosecution
6 did not put one single question relating to the findings of this expert
7 witness. I'm not sure that this is an objection, but perhaps it is some
8 sort of a caution, can be taken like that.
9 JUDGE MOLOTO: Thank you very much, Mr. Perovic. If your learned
10 friend doesn't go to the contents of the document, that's his choice.
11 We'll see what he does.
12 MR. WHITING: Thank you.
13 Q. Madam, I just want to give you one last opportunity, since we have
14 talked a little bit about how the procedure works here. Do you want --
15 I'm going to give you one last opportunity to answer my question which is:
16 Have your views about -- that you express about Mr. Karadzic and General
17 Mladic in this document that you wrote -- or this speech from 1996, have
18 they changed at all in light of the fact that these two men have refused
19 to come to the Tribunal to face the charges against them? Will you now
20 answer that question or do you still refuse to answer that question?
21 A. I responded quite clearly that this was a matter of an
22 individual's personal choice and not a matter for the public.
23 Q. I'm going to take that as non-responsive and not press it any
25 MR. WHITING: Could this document be admitted into evidence.
1 JUDGE MOLOTO: The document is admitted into evidence. May it
2 please be given an exhibit number.
3 THE REGISTRAR: Your Honours, this becomes Exhibit number 1021.
4 JUDGE MOLOTO: Thank you very much.
5 MR. WHITING: Thank you.
6 Q. Now I'm not -- I do want to look at one last document on this line
7 of questioning. I'm not going to go into it in detail, but if we could
8 look at 03279758, and this is a document from 1997, which essentially
9 repeats the original declaration demanding that The Hague Tribunal
10 criminal charges brought against Mr. Karadzic be repealed. Now, I only
11 have a copy of this in English. Do you recall that this declaration was
12 repeated again in 1997 and that you were one of 60 signers? You're signer
13 number 33.
14 A. Yes. Yes. I recall, not just this. There were many such
15 submissions. I can tell you that I signed at least ten. I can also say
16 that there were about 100 altogether that were signed by legal experts or
17 lawyers in Serbia, and that action is still continuing. It's ongoing.
18 Q. Madam, you did sign this declaration, correct, in 1997?
19 A. Yes.
20 Q. And do you stand by what's expressed in this declaration today?
21 A. Probably. I should read it first, but I believe that I would
22 stand by it. I think that it stands today.
23 MR. WHITING: Could this document be admitted into evidence,
25 JUDGE MOLOTO: The document is admitted into evidence. May it
1 please be given an exhibit number.
2 THE REGISTRAR: Your Honours, this becomes Exhibit number 1022.
3 JUDGE MOLOTO: Thank you very much.
4 MR. WHITING: Thank you, Your Honour.
5 Q. Now I will turn to your report. Do you have your report in front
6 of you, Madam? Madam, do you have your report in front of you?
7 A. Yes.
8 Q. Okay. I want to look at the first section which is called
9 Yugoslavia and International Law and in this first section, and in your
10 testimony here today, you state, don't you, that the federation had sole
11 and exclusive control over the conduct of foreign affairs, correct?
12 A. That is correct.
13 Q. And now, in reality, didn't you believe that even before 1991,
14 there was not a single foreign policy in Yugoslavia and all of the
15 republics were conducting their own foreign policies? And didn't you
16 write about that in your book called, "Control over Foreign Policy"?
17 A. You are right. I was deeply concerned. At the time, I was a
18 member of the legal counsel of the Ministry of Foreign Affairs, and many
19 times I pointed to the abuse and misuse in the case of certain republics,
20 and I stated this before the highest organs as a danger for the future
21 unity and integrity of the state. And in order to accentuate this in a
22 way or stress it, I wrote this booklet on control of foreign policy,
23 actually accusing the Ministry for Foreign Affairs of not having full
24 control and that this was a matter that was perhaps just not deliberate or
25 that was a question of a lack of attention on this. I also said that
1 since Yugoslavia was a party state, a dictatorship, that the last word was
2 in the hands of the party forums. That is why I, as a lawyer, objected to
4 Q. And this book or pamphlet that you wrote called, "Control over
5 Foreign Policy," you wrote that before 1991, correct?
6 A. Yes, yes. I think that it was published in 1987. I cannot
7 remember precisely what year.
8 Q. In your testimony in the Milosevic case, you stated this, and I
9 can show you the testimony if you like, but I'll just read to you this
10 sentence. It's from 32403 of the Milosevic case. And my question is
11 going to be, do you stand by this statement today? You stated, "I wrote
12 this book entitled 'Control over Foreign Policy' in which I underlined
13 that we do not have any control over foreign policy, that we no longer
14 have a single foreign policy, that foreign policy is being branched off
15 into six federal units. That was my point." Do you stand by that
16 testimony today?
17 A. Yes. That was the preparation. Yes. I stand by that and I
18 pointed that out with the example that there was an anti-state policy
19 being conducted that was leading to the break-up of the actual state.
20 Q. Okay. And you also said, and I'm going to ask you if you stand by
21 this, this is on the following page in your testimony, in Milosevic,
22 32404, you say, "I have to say that Yugoslavia was in a crisis in a
23 certain way ever since 1945 until 1990. In a certain way, Yugoslavia was
24 often on the brink of civil war. The cause of that was the resistance or
25 the protest that was there." Do you stand by that testimony from the
1 Milosevic case?
2 A. Yes. I explained that later, in a more detailed article, and then
3 I am going to deal with that subject in even more detail in a book that
4 will be published, that I'm working on, if you're interested in all the
5 stages of the crisis that Yugoslavia was going through.
6 Q. I think we can leave it at that. Thank you. Now, I'd like to
7 look at the next section of your report called the "Secession of Slovenia
8 and Croatia from the Point of View of International and Domestic Law."
9 And in this section, and I believe also in your testimony today,
10 you state, do you not, that the Yugoslav constitution of 1974 gives the
11 right of secession to peoples or -- I'm sorry. Not the right of
12 secession, the right of self-determination to peoples and not to
14 JUDGE NOSWORTHY: I'm sorry. Mr. Whiting, please give an
15 indication of the paragraph if you could or the portion or is it a
17 MR. WHITING: Yes. It's the second paragraph of that section,
18 Your Honour, the last sentence.
19 JUDGE NOSWORTHY: Thank you very much.
20 THE WITNESS: [Interpretation] Should I respond?
21 MR. WHITING:
22 Q. I just want to confirm that that's what you say in your report.
23 If you want to look at it, it's in the second paragraph of that section
24 that we are on now. You say that the Yugoslav constitution gives the
25 right of self-determination to peoples and not republics.
1 A. Self-determination is not a territorial principle but the
2 subjective right of the people in essence.
3 Q. What does that mean? What does it entail?
4 A. I think that, for any lawyer, it is clear what the subjective
5 right is of a people as the bearer of sovereignty as opposed to territory
6 which is just the object of a state.
7 Q. Are you -- could you explain it in a little --
8 A. One of the elements of a state.
9 Q. Could you explain in a little more detail what you mean when you
10 say, the subjective right of a people as the bearer of sovereignty? What
11 does self-determination mean to you? If it's not territorial, what is it?
12 A. It's the right of a people to express its will in relation to a
13 particular question. For example, the system of leadership, in terms of
14 the regime, or in terms -- ultimately, it can be, but then it must be
15 specified also in terms of a territory, but it cannot --
16 self-determination cannot be linked exclusively to territory or, rather,
17 self-determination and secession cannot be linked. I repeat, it is
18 explicitly stated in the constitution that self-determination of people
19 and we know what the term "people" implies and we know what federal units
20 are as territorial units which, in essence, can have their internal
21 borders changed also.
22 Q. So Madam, so that I understand you correctly, if you could listen
23 to my question, do I understand you correctly to be saying that
24 self-determination means the exercise or expression of political and civil
25 rights in a society? Is that a fair definition of self-determination of a
2 A. Yes.
3 Q. Okay. Now, isn't it -- is it -- isn't it true that there was a
4 dispute at the time, which continues today, about whether under the 1974
5 constitution, republics had a right to secession? There are people, I
6 know you are not one of them, but there are people that will -- that say
7 that under the 1974 constitution, republics had the right to secession;
8 isn't that right? Even though you don't agree with them, there are people
9 who say that, right?
10 A. Sir, these were assertions by people, and this is beyond dispute,
11 and I will say that they were right, that this was a right derived from
12 the socialist revolution. Thus, their legal and state identity was proved
13 on ideological principles and not on principles of international law, and
14 as you know, ideologically -- the ideological identity and international
15 legal identity are not the same legal categories.
16 Q. Madam, I'm not talking at this point about international law. I'm
17 talking only about the 1974 constitution. Could we look just for a moment
18 at the 1974 constitution. It's Exhibit 480 in evidence in our case. And
19 you have it there. The registrar will provide it to you. And I draw your
20 attention, on the B/C/S version of it, to 0229-4922 and in the English we
21 want to look at 00460862. And I'd like to look, please, at Article 1 of
22 the constitution which states -- does the Chamber have it? I'm not
23 following because I have hard copies. Is it up or --
24 JUDGE MOLOTO: [Microphone not activated]
25 MR. WHITING: 0862. Which is page 31 on the internal pagination.
1 Q. I'm sorry for the delay, Madam. We are just trying to all get it
2 up on our screens, here. It will just take a moment?
3 JUDGE NOSWORTHY: Somewhere at page 234, 235?
4 MR. WHITING: On the internal pagination, it should be at page 31.
5 JUDGE NOSWORTHY: Okay. But on the document itself?
6 JUDGE HOEPFEL: Mr. Whiting, do you mean internal pagination 31
7 and then page number 00460864?
8 MR. WHITING: 62.
9 JUDGE HOEPFEL: 62. Then, it would be internal page 29, I think,
10 with part 1 of the constitution, the socialist --
11 MR. WHITING: Yes, part 1.
12 JUDGE HOEPFEL: Article 1.
13 MR. WHITING: You have it as 64?
14 JUDGE HOEPFEL: I have it as internal page 29 and this is here
15 with 862 but --
16 MR. WHITING: Okay.
17 JUDGE HOEPFEL: The other number is a little bit confusing but
18 it's internal page 29.
19 MR. WHITING: Okay.
20 JUDGE HOEPFEL: And book page 31.
21 MR. WHITING: That was what I was referring to when I said
22 internal page, that was the confusion. Okay. Now it's up on the monitor
23 as well.
24 JUDGE NOSWORTHY: I'm sorry. Is it internal page on the document
25 230 and 231? I thought you said page 29.
1 [Trial Chamber confers]
2 MR. WHITING: It's confusing.
3 JUDGE HOEPFEL: But we are learning. We keep learning and of
4 course, meanwhile, we know the Yugoslav constitution quite well already.
5 JUDGE NOSWORTHY: I think you can go ahead.
6 MR. WHITING:
7 Q. Thank you, Your Honour. Madam, I just want to look at Article 1
8 of the constitution. It says, "The Socialist Federal Republic of
9 Yugoslavia is a federal state having the form of a state community of
10 voluntarily United Nations and their socialist republics and of the
11 socialist autonomous provinces of Vojvodina and Kosovo." Now, having some
12 people who have a different view of the constitution pointed to this
13 provision to say that if the SFRY is created by voluntarily United Nations
14 and republics, that if you -- if a republic voluntarily joins, it can
15 voluntarily secede? Would you agree -- I know you don't agree with that
16 argument, but would you agree that that argument has been put forward
17 based on this provision of the constitution?
18 A. Sir, this Article clearly shows that this was a party state, a
19 one-party system state, and ideologically-based state.
20 Q. Madam, I understand your view and there is no need to repeat it.
21 My only question was: Did other people have a view that, based on this
22 article and other articles, but based in part on this article, that
23 republics could secede voluntarily from the SFRY? Did some people advance
24 that argument at the time and today?
25 JUDGE HOEPFEL: And if you would say people, some people, maybe
1 the Professor can answer this in terms of other experts of constitutional
3 MR. WHITING: If she knows.
4 JUDGE HOEPFEL: If this is the case, please, I would like to know
5 the names of these experts.
6 THE WITNESS: [Interpretation] I was just about to say precisely
7 that. We, lawyers, had one almost unanimous view on this, whereas the
8 party that ruled the country had a different position and view. The party
9 dogmas and party ideas could not always be fitted into the norms of
10 international law and principles of international law, and there,
11 gentlemen, the rift occurred. With the break-up of Yugoslavia, we found
12 ourselves upon legal ground and I believe we should discuss the matter as
13 lawyers and not as party members. Let me tell you that one, well-known
14 American lawyer wrote an extensive article - I'm sorry not to have brought
15 it along - where he put the following question at the end of the article:
16 Did this international community, that's to say, the United States and
17 European Union, are they today proclaiming themselves to be the successors
18 of Josip Broz and the socialist revolution? Why are party principles
19 being applied today to solve the problem of Yugoslavia?
20 MR. WHITING:
21 Q. Madam, let me try to ask you a very narrow and direct question.
22 Are you aware of any legal academics or any lawyers who advanced the view
23 that republics had the right of secession under the SFRY constitution of
24 1974? And if you're aware of none, just say so. But if you are aware of
25 some, tell us.
1 A. This was advanced by lawyers at the time of the negotiations, who
2 were representatives of the Slovenian and Croatian delegations. Among
3 them was Professor Degen, then let me remember, Separovic, although he is
4 a specialist in criminal law, but that was his view as well. Generally
5 speaking, those who were in favour of secession at any cost advanced such
7 Q. Now, did the people who advanced those views, did they also rely
8 on Article 3, which is on the next page in the English? It's on the same
9 page in the B/C/S. Which states that the socialist republics are states
10 based on the sovereignty of the people and the power of the
11 self-management of the working class, suggesting that the republics have a
12 state quality to them? Do they also rely on that provision in advancing
13 their argument that republics have the right of secession under this
15 A. Gentlemen, this article has a merely declarative character because
16 it's being derogated from in the other articles of the constitution.
17 Because in this part, and in the other parts of the constitution, we
18 have -- we have the three elements of the sovereignty, jus belli, jus
19 legationis, jus tractatum, none of this was possessed by these republics.
20 Q. Madam, I understand that's your view and that that's expressed and
21 set out in your report, but my question is: Did those who were advocating
22 that the right of secession of republics was contained in the
23 constitution, did they also rely on this article? Correctly or
24 incorrectly, in your view, but did they cite that article as a basis for
25 their argument?
1 A. Well, of course, there were confrontations taking place in the
2 course of negotiation that I took part in.
3 Q. Madam -- please stop.
4 A. -- and we always responded by referring to Article 5, which
5 clearly says that there can be no changes to borders without the consent
6 of everyone.
7 MR. WHITING: Madam, stop. Madam, please, stop.
8 THE WITNESS: [Interpretation] Therefore, there has to be a
9 parliamentary process which could then end in sovereignty.
10 MR. WHITING: Madam, please stop. This is going to take a very
11 long time if you continue talking through me. Article 5 is in evidence
12 and your views about Article 5 are in evidence. There is no need to
13 repeat them. Now you've answered my question. I'd like to go on.
14 JUDGE NOSWORTHY: Mr. Whiting, probably we could ask the
15 interpreters to stop interpreting when she insists on it. I'm sorry.
16 When the Professor insists on continuing to speak when you have advised
17 her repeatedly to stop and when the Trial Chamber has also asked her to
18 stop, and that might --
19 MR. WHITING: Maybe if the Trial Chamber -- I'm happy -- yeah,
20 that's fine.
21 JUDGE NOSWORTHY: I see Judge Moloto shaking his head as in
23 JUDGE MOLOTO: [Microphone not activated]
24 MR. WHITING: I think the interpreters will need more definite
25 guidance than. If Your Honours want them to stop when -- to interpret --
1 JUDGE MOLOTO: I'm just thinking what's the effect of that going
2 to be? She will carry on talking. And she will go on forever and a day.
3 JUDGE HOEPFEL: Maybe the witness should know that it is not being
4 understood, I at least have problems understanding, when you are being
6 JUDGE MOLOTO: Well, I tried to --
7 JUDGE HOEPFEL: This is what the Presiding Judge explained you
8 before, didn't he? Please keep to that.
9 JUDGE NOSWORTHY: Does the witness -- Professor, do you have a
10 problem hearing? Can you hear perfectly well? Because if you can hear
11 perfectly well, then there is no excuse why you cannot stop. You must
12 respect counsel when he tells you to stop and you also need to respect
13 the --
14 THE WITNESS: [Interpretation] There are in fact interruptions, for
15 instance, just now.
16 JUDGE MOLOTO: And the interruption is from you because the Judge
17 is speaking and now you're talking over her.
18 THE WITNESS: [Interpretation] No, no.
19 JUDGE MOLOTO: You may proceed.
20 MR. WHITING: Your Honour, I think it is a convenient time.
21 JUDGE MOLOTO: It is indeed. The Trial Chamber will take a break
22 and come back at quarter to 6.00. Court adjourned.
23 --- Recess taken at 5.15 p.m.
24 --- On resuming at 5.46 p.m.
25 JUDGE MOLOTO: Just before you proceed, Mr. Whiting, the Trial
1 Chamber would like to ask the registrar in the region, sitting next to the
2 witness, whenever the witness is asked to stop and she doesn't, to nudge
3 her on the shoulder and ask her to stop and if she still doesn't, just
4 switch off her mike. Okay? Thank you. You may proceed.
5 MR. WHITING: Thank you, Your Honour.
6 Q. Now, Madam, we were talking about issues of secession. Isn't it
7 right that in fact Croatia and Slovenia did not gain their independence
8 ultimately through secession but because there was a dissolution or
9 disintegration of the SFRY? Isn't that correct?
10 A. In my opinion, there was no dissolution. Yugoslavia was forcibly
11 broken up through an uprising which first appeared in Slovenia, spilled
12 over to Croatia, and was then given support from abroad. From that point
13 on, Yugoslavia was forcibly broken up. This was no dissolution.
14 Q. You would agree would you not, that in opinion number 1, the
15 Badinter commission concluded in December of 1991 that Croatia and
16 Slovenia had not seceded but that there was a dissolution or
17 disintegration of the SFRY? Correct? That was their conclusion even if
18 you disagree with it.
19 A. That was the conclusion of the commission, to which we immediately
20 lodged a protest in writing because we did not agree with the position put
21 forth by Badinter, and I do not agree with it today.
22 Q. I just want to take a moment to look at the opinion itself. It's
23 01171654 in the English and the B/C/S version that you have is 03089137.
24 And Madam, the question that is -- that is considered and an
25 opinion given on in this opinion, which was published on the 7th of
1 December 1991, is whether the republics had seceded or whether there had
2 been a disintegration or breaking up of the SFRY. And in this opinion,
3 after going through the various arguments, this opinion concludes that
4 there was a disintegration, right?
5 A. No. In my opinion, this is not true, all the more so as there was
6 fighting going on in the territory of Yugoslavia. There was not the
7 minimum of agreement between the parties, ever.
8 Q. I understand that's your view, Madam, but I'm just saying it was
9 the view of the Badinter commission as expressed in this opinion that
10 there wasn't an act of secession, it was a disintegration of the SFRY that
11 had occurred. And that's -- that conclusion is expressed at the end of
12 the document in paragraph 3 at the very end of the document. That's their
13 view, right? You would agree with that, that that was their view?
14 A. Yes. Their opinion, which is completely contradictory to the
15 actual situation. Look at the decisions passed by Croatia and Slovenia
16 where it is explicitly stated that this is the secession at hand.
17 MR. WHITING: Could this document be admitted into evidence,
19 JUDGE MOLOTO: The document is admitted into evidence. May it
20 please be given an exhibit number.
21 THE REGISTRAR: Your Honours, this becomes Exhibit number 1023.
22 JUDGE MOLOTO: Thank you very much. And Mr. Whiting, while we are
23 on exhibits, the previous document which was the 1974 constitution is
24 already in evidence.
25 MR. WHITING: It is, Your Honour.
1 JUDGE MOLOTO: Thank you very much.
2 MR. WHITING: Thank you.
3 Q. Now, would you agree with me that whether or not Croatia's move
4 towards independence, whether -- however it occurred, whether it was legal
5 or illegal, you would agree that that has no bearing on whether war crimes
6 or crimes against humanity were committed during the conflict, correct?
7 Those are two completely separate issues.
8 A. What is the question?
9 Q. The question is you would agree, would you not, that whether the
10 secession -- the act of independence, Croatia moving towards independence,
11 which you call illegal secession, the Badinter commission says it's
12 disintegration, whether it's legal or illegal under international law or
13 the law under the former Yugoslavia, that has no bearing on the issue of
14 whether war crimes or crimes against humanity were committed during the
15 conflict, correct?
16 A. Not quite, because precisely that act constituting the greatest
17 crime which was the crime against peace committed with the break-up of
18 Yugoslavia. As you know, the crime against peace is something that was
19 qualified as the gravest crime by the Nuremberg trials. This was the
20 starting point of the war and what ensued later.
21 Q. Okay.
22 A. Hierarchically, the worst crime was the crime against peace
23 committed through secession.
24 Q. Okay. Now, let's put that aside for a moment. You would agree
25 that if in the conflict that ensued, between Croatia and Serb forces, war
1 crimes or crimes against humanity were committed, the issue of how the
2 conflict started and whether and whose fault it was or whether it was a
3 legal secession, or what, none of that would matter, right?
4 A. No. I think it would matter and much.
5 Q. How?
6 A. You have the film broadcast by Austria recently where border
7 patrols, that's to say, JNA members, were killed, shot in the back of
8 their heads, on the orders of President Kucan and this was the first crime
9 committed coupled with the crime against peace. You can't avoid the
10 causal link, the cause and effect link when it comes to crimes.
11 Q. Let me put the question.
12 A. And I do agree with you that there were crimes committed during
13 war operations.
14 Q. Okay. Let me put the question in a different way. Let's say that
15 during the conflict, during 1991, a member of Serb forces committed a
16 crime against humanity or a war crime against a Croatian civilian, that
17 person could not raise as a defence that the secession of Croatia had been
18 illegal. That would be irrelevant to the issue, right? How the conflict
19 started would be irrelevant to the issue of whether he had committed a war
20 crime, right?
21 MR. PEROVIC: [Interpretation] Objection, Your Honour.
22 JUDGE MOLOTO: Yes, Mr. Perovic?
23 MR. PEROVIC: [Interpretation] This question put by my learned
24 friend is based on a hypothesis, and that's why I consider it
1 JUDGE MOLOTO: Mr. Whiting?
2 MR. WHITING: I think with a legal expert, a hypothetical question
3 is permissible.
4 JUDGE MOLOTO: Any response, Mr. Perovic?
5 MR. PEROVIC: [Interpretation] I believe that there is no
6 difference between witness and expert witness. In my view, hypothetical
7 questions are not permitted in the case of either.
8 [Trial Chamber confers]
9 JUDGE MOLOTO: The objection is overruled.
10 MR. WHITING: Thank you, Your Honour.
11 Q. Madam, do you remember my question or should I repeat it?
12 A. Please repeat it.
13 Q. Okay. Let's imagine a case where a member of the Serb forces in
14 the conflict in Croatia during 1991 commits a war crime or a crime against
15 humanity against a Croat civilian. The issue about how the war started,
16 whose fault it was, whether the secession of Croatia was legal or illegal,
17 would be irrelevant to a determination of whether that person had
18 committed a war crime or a crime against humanity, correct?
19 A. No. The question is far complex than you are trying to make it
20 seem. I would like to remind you of the constitutional provision whereby
21 every citizen is duty-bound in the event of an aggression against
22 Yugoslavia as a state to take up arms and defend the sovereignty of the
23 state with arms. Therefore, one could infer the following conclusion from
24 this hypothesis: That a crime is not a crime but, rather, this particular
25 case involves defence of one's homeland.
1 Q. But Madam --
2 A. You have to remember that we had the system of All People's
4 Q. Madam, you're changing my hypothetical. My hypothetical posits
5 that a war crime or a crime against humanity has been committed, and the
6 only issue I'm asking is whether the way the conflict started or the
7 origins of the war, whose fault it was and whether Croatia's secession or
8 illegal or legal, whether that has any bearing on the issue of the person
9 committing the war crime. In fact, it's completely irrelevant, isn't it?
10 A. It is very much relevant.
11 Q. How?
12 A. It is -- like, for instance, when a person, an individual, kills
13 another person in self defence, the -- and you raise the issue of
14 aggravating or extenuating circumstances because this is related to that
15 issue. In law, you don't have ground zero. You always have a causal link
16 that leads to the truth.
17 Q. Well, let's be a little more explicit about this. Let me put a
18 little more detail into the hypothetical. Your Honour?
19 JUDGE MOLOTO: I hate to do this to you. I just wanted to find
20 out from the witness, but if you now deal with aggravating or extenuating
21 circumstances, that's after a finding of guilt. So indeed, to the -- for
22 purposes of conviction, then it would have no relevance whether or not the
23 secession was illegal. Aggravating circumstances, as the witness poses
24 it, or extenuating circumstances, relate to the question of sentence.
25 Would you agree, ma'am?
1 THE WITNESS: [Interpretation] Not fully.
2 JUDGE MOLOTO: Okay. Thank you very much. You may proceed.
3 JUDGE NOSWORTHY: Mr. Whiting, if you will. Professor, you have
4 said that the question is more complex and that there was a duty to take
5 up arms in the defence of the homeland and the All People's Defence. Now,
6 would you go as far as saying, that in those circumstances, that it would
7 be lawful and justified to kill civilians, for example, who were not
8 combatants and not engaged in the active warfare in any way whatsoever?
9 Would you take your principle to that conclusion and to that end?
10 THE WITNESS: [Interpretation] You cannot do that, because under
11 the All People's Defence system, the military -- or, rather, the -- a
12 difference between a civilian and a military person is -- there is a very
13 thin line there. Of course, committing a crime is a crime. Under the All
14 People's Defence, the difference between a civilian taking up arms and a
15 military person's taking up arms is almost non-existent and one could even
16 say under our constitution that that's the case.
17 JUDGE NOSWORTHY: Yes, but remember I've asked you specifically in
18 the case of a civilian who is not borderline, who is not a combatant and
19 who is not engaged in warfare in any way whatsoever, who is first and
20 foremost and clearly a civilian. Those are the specific circumstances
21 that I gave you and which you are requested to address.
22 THE WITNESS: [Interpretation] Quite naturally, if I were to take a
23 rifle and were to kill a civilian, that would constitute a crime. But
24 place yourself in a situation in 1991 when there was a chaotic situation
25 in the country, where the legal force was marched off into barracks and
1 the paramilitary forces started fighting amongst themselves and were
2 uncompromisingly killing. It was a chaotic state. There was
3 undiscriminate -- indiscriminate killing.
4 JUDGE NOSWORTHY: Let me ask you this further: Do you agree,
5 then, that given the right to act by way of taking up arms and given that
6 one is acting in the defence of the homeland by right of the All People's
7 Defence, then one is still governed by the laws and customs of war and
8 other laws pertaining to the conduct of war? One does not lawfully act
9 outside of those laws and customs and the laws in respect of how warfare
10 should be conducted.
11 THE WITNESS: [Interpretation] That's how it should be, Madam, and
12 I absolutely agree with you if we are talking in terms of positive law.
13 JUDGE NOSWORTHY: Thank you very much, Professor.
14 MR. WHITING: Thank you, Your Honour.
15 Q. Madam, I want to pursue my hypothetical and take it up from what
16 you said. Let's imagine a scenario where a -- and a Serb soldier fighting
17 in Croatia in 1991 takes his weapon and deliberately shoots and kills a
18 civilian who is not engaged in any way in fighting. That soldier --
19 MR. PEROVIC: [Interpretation] Objection, Your Honour. Does the
20 Prosecutor have some information that I don't have? During my
21 examination-in-chief, I only used the segments of the expert report that
22 were permitted, that were not eliminated. The international legal status
23 of Yugoslavia and secession in light of international and domestic law.
24 The segment relating to characteristics and details relating to armed
25 conflicts were eliminated by the Trial Chamber, and from what I can see,
1 the Prosecutor's questions are all related to that particular segment.
2 Either he knows something that I don't or he's putting irrelevant
3 questions to the witness.
4 MR. WHITING: No, Your Honour. I don't believe that's the case.
5 The purpose of the hypotheticals is to explore the relevance of the
6 section which is in evidence, which she has testified about, which relates
7 to the secession of Croatia and the illegality of that and what the
8 implications are of that for our case here in the Tribunal. And that is
9 what I'm exploring, the relationship between that opinion about the
10 illegality of the secession and the charges here in this case.
11 JUDGE MOLOTO: Do I understand you to be saying whether the
12 illegality of the secession would be a defence to the charge of this case?
13 MR. WHITING: Exactly, and that was just about to be my
15 JUDGE MOLOTO: Any response, Mr. Perovic, bearing in mind that
16 what we talk about must still come back to the trial here?
17 MR. PEROVIC: [Interpretation] If the Trial Chamber believes that
18 this does not touch upon that part of the expert report that was
19 eliminated, at least for now, then I withdraw my objection.
20 JUDGE MOLOTO: Thank you, Mr. Perovic. Yes, Mr. Whiting?
21 MR. WHITING: Thank you, Your Honour.
22 Q. I'll repeat my hypothetical scenario to get your opinion. Let's
23 imagine a scenario where a Serb soldier fighting in Croatia in 1991 takes
24 his weapon and deliberately shoots and kills a civilian, a civilian who is
25 not engaged in any way in fighting. That soldier could not plead as a
1 defence the fact that -- the assertion that the secession of Croatia was
2 illegal, could it -- could he? That would not be a defence to that war
3 crime or crime against humanity.
4 A. Sir, instead of hypothetical questions, I would like to present
5 the factual situation.
6 Q. No, Madam?
7 A. The scenario of the secession and everything that came with it.
8 Q. Please stop. Please address yourself to my question that I put to
9 you. Could the soldier charged with war crime or crime against
10 humanity --
11 A. It can be taken into account, of course, in the legal
12 qualification of the act, whether it was a crime or defence of the
13 homeland. It's a subtle distinction and requires an expert approach to it
14 and very, very careful deliberation.
15 JUDGE MOLOTO: And what is your expert approach to it, ma'am, now
16 that you are the legal expert?
17 THE WITNESS: [Interpretation] I was about to present the factual
18 state of affairs. And also what my opinion is is based on that, if you
19 permit me. Yes or no.
20 JUDGE MOLOTO: The opinion is being sought on the hypothetical
21 thesis. Let's try to answer the questions that are put to us rather than
22 formulate our own questions and answer them.
23 THE WITNESS: [Interpretation] Can I do what I wanted to do and
24 substitute the hypothesis with facts?
25 JUDGE MOLOTO: No, you may not. Do what you're asked to do,
1 sorry. We don't do what we want to do. We do what we are asked to do as
2 witnesses in court.
3 THE WITNESS: [Interpretation] Then I believe that I have answered
4 that it was a matter of qualification what a war crime is and what the
5 defence of the homeland is in terms of All People's Defence. It's a
6 specific question that needs to be precisely explored on the basis of all
7 the circumstances that are relevant to the given case.
8 MR. WHITING:
9 Q. Madam, are you actually saying that a -- under these
10 circumstances, a soldier could execute, because that's really what was
11 described, a civilian and it would not be a war crime or crime against
12 humanity because it would be in defence of the homeland? Is that really
13 your view?
14 A. If the civilian had a rifle in his hands and is in the function of
15 a combatant, then the situation is different than when we have an unarmed
16 civilian. If it's an unarmed civilian, then it is a war crime.
17 Q. And you could not claim as a defence that Croatia had started the
18 war and it had been illegal secession. That could not be a defence to
19 such a war crime, correct?
20 A. No. Excuse me, but the causal link must be laid down as one of
21 the foundations for making the legal qualifications.
22 Q. I'm afraid I don't understand that answer. The question is very
23 simple. Could a soldier, and I'm deliberately saying a Serb soldier here,
24 a Serb soldier, who executes a civilian, and there is no doubt that it's a
25 civilian, not engaged in any fighting, claim that because Croatia had
1 illegally declared independence or had started the conflict, that was not
2 a war crime? That is not a valid legal argument, correct?
3 A. I said that I believed that it was a war crime but that it could
4 not be ruled out that it was a consequence of a prior state or situation,
5 the state or situation of inciting general disorder and a settling of
6 accounts by using weapons. This is where chaotic violence occurs,
8 Q. Well, Madam, I think you're changing again my hypothetical, but I
9 think I'm going to move on.
10 Would you agree with me that by the summer of 1991, if not
11 earlier, it was widely understood in the former Yugoslavia that Yugoslavia
12 would not, in fact, remain intact and that it would break apart?
13 A. That's the direction of it in that sense, but the war could have
14 been prevented and it could have been a completely different outcome than
15 the one that actually happened. The cause in all of that lies first of
16 all in the ban on the self defence on the part of the state of Yugoslavia,
17 and with the insertion of the order that legal forces need to return to
18 the barracks while the paramilitary forces were given full freedom. That
19 is one thing. The second thing is that the president of the Presidency at
20 the time, Mr. Mesic, fulfilled his duty and that was that he was going to
21 act in order to preserve the integrity of the territory and to resolve
22 conflicts in a peaceful way. He failed to abide by that duty and that is
23 why what happened happened.
24 Q. Okay. Turning again to your report, at page 4 in footnote 9, you
25 quote from an article from Joseph Nye. And the article is in the
1 Washington Post. And you'll see it's -- you quote him as saying
2 that, "Secession is not a legal category or a rule of international law."
3 Do you see that where you quote that in your report? From Joseph Nye,
4 footnote 9?
5 A. Yes.
6 JUDGE MOLOTO: What page is that?
7 MR. WHITING: It's page 4, Your Honour, of the report.
8 THE WITNESS: [Interpretation] Excuse me, yes, this is a statement
9 of the General Secretary U Thant. This was a statement by Mr. U Thant.
10 MR. WHITING:
11 Q. I'm sorry. Do you see the paragraph where you talk about Joseph
12 Nye, a Professor at Harvard University? Do you see that paragraph?
13 A. Yes, yes, yes.
14 Q. And --
15 A. Two separate categories, according to him.
16 Q. Right, and you see you quote him in the last sentence of that
17 paragraph. You say, according to him, "Secession is not a legal category
18 or a rule of international law." Do you see that?
19 A. Yes.
20 Q. Okay. I'd like to take a look at that article. It's 06050150.
21 Madam, while the registrar is looking for the article, I take it you read
22 this article in English. It's in the Washington Post. It was published
23 in English. Did you read it in English? Did you -- were you -- did you
24 hear my question? This article in the Washington Post by Joseph Nye, did
25 you read it in English? Madam? Madam, can you hear my questions?
1 A. No.
2 Q. Okay. Can you hear me now? Can you hear me talking and can you
3 tell me, this article?
4 A. Yes.
5 Q. Did you -- you read it in English? Did you read it in English?
6 A. When I had that newspaper, then probably I read it.
7 Q. And so you read it in English?
8 A. Yes.
9 Q. Okay. Can you show me where in the article that sentence is that
10 you quoted, that secession is not a legal category or a rule of
11 international law? Can you point me to where that appears in the article?
12 A. I don't know whether this reflects the article. I had the
13 newspaper itself, not the article in this form. I was in the United
14 States at the time.
15 Q. Well, the article that you quote, it's got the same name, the same
16 author and the same date and the same publication. So this is just a
17 different format, but could you just take a moment to look at this format
18 and tell me where that sentence appears?
19 A. I repeat that what you are showing me now is not something that I
20 had in my hand. I actually had the newspaper in my hands.
21 Q. Madam, in fact, the sentence does not appear in the article. That
22 sentence that you quoted is not in the article.
23 A. It could be. Perhaps, it's not in this one, but it's in the one
24 that I happened to read.
25 Q. Madam, on the 4th of October, we, "we" being the Prosecution,
1 asked the Defence to provide us with all of the sources that you cited in
2 your report. Was that request communicated to you? Were you asked by the
3 Defence to provide all the sources cited in your report?
4 A. Yes. I gave what I had at the time, and I tried to find it all,
5 because I have to say this: Last year, I had a fire in my apartment and
6 half of my library burned, a whole room.
7 Q. Okay.
8 A. Also, and that is when many of my manuscripts burned.
9 Q. Well, when you wrote this report, did you have this article in
10 front of you to quote from it?
11 A. Yes. I think that I did.
12 Q. And was that one of the things that you provided to the Defence
13 when they requested your sources?
14 A. No. I didn't give the Defence anything because my documents are
15 not sorted. They are in a chaotic state right now. So I couldn't provide
16 that myself, but I did indicate to them where they could find it.
17 Q. Did you -- when the Defence requested the sources from you, did
18 you provide any of your sources to the Defence?
19 A. No.
20 Q. And Madam, you --
21 A. I didn't because I believe that those were --
22 Q. What did you believe? Why didn't you provide them to the Defence?
23 A. I believed that these were all such generally known things,
24 especially to lawyers, to you, so that it was not necessary.
25 MR. WHITING: Your Honour, could this document be admitted into
1 evidence, please?
2 JUDGE MOLOTO: The document is admitted into evidence. May it
3 please be given an exhibit number.
4 THE REGISTRAR: Your Honours, this becomes Exhibit number 1024.
5 JUDGE MOLOTO: May I just ask of the witness one or two questions
6 on this point? Madam, now you being an expert witness and having been an
7 expert witness in more than just this case, you knew that when you write
8 your report, you have to support it with your original sources, didn't
10 THE WITNESS: [Interpretation] This is the first time.
11 JUDGE MOLOTO: The first time what happens?
12 THE WITNESS: [Interpretation] This is the first time that I'm
13 before this Tribunal in the capacity of an expert, and I believed that
14 things that are self-evident or notorious for lawyers, that for those
15 things, it's not necessary to indicate them as sources.
16 JUDGE MOLOTO: Ma'am, you do understand that newspaper articles
17 are not notorious to lawyers. Wouldn't you agree with that?
18 THE WITNESS: [Interpretation] Yes. Up to a point.
19 JUDGE MOLOTO: Thank you. And, in fact, because you knew it is
20 not notorious, and yet you went ahead and quoted it, you understand
21 therefore that you had to keep your original source safe so as to back
22 your opinion, because that's the only way that the opposite side can check
23 your sources. Or rather to check the reliability of your opinion. You
24 did know that, didn't you?
25 THE WITNESS: [Interpretation] I believe that I told you clearly,
1 sir, that I had a fire in my apartment and that unfortunately half of my
2 library and documents burned down.
3 JUDGE MOLOTO: When did the fire take place, ma'am?
4 THE WITNESS: [Interpretation] A few months ago.
5 JUDGE MOLOTO: Are you able to give us an exact date?
6 THE WITNESS: [Interpretation] It was the 2nd of September when I
7 had the fire.
8 JUDGE MOLOTO: 2nd of September which year, ma'am?
9 THE WITNESS: [Interpretation] Not this year. I'm sorry.
10 September of last year.
11 JUDGE MOLOTO: And when did you write this report, ma'am?
12 THE WITNESS: [Interpretation] I wrote the report after that. But
13 I repeat: There was the problem with my documentation. It was made more
14 difficult because a large part of it burned, and I still have not managed
15 to classify everything until now.
16 JUDGE MOLOTO: Madam, you said to the Prosecutor at the time of
17 writing this report, you did have that newspaper, a copy of that
18 newspaper, didn't you? You just accepted that --
19 THE WITNESS: [Interpretation] I wrote this report on the basis of
20 my earlier -- yes, yes.
21 JUDGE MOLOTO: That's not my question. The question is you just
22 admitted to the Prosecutor that at the time of writing this report you had
23 in your possession a copy of the article.
24 THE WITNESS: [Interpretation] I had this report -- actually, it's
25 an excerpt from a very large work that I'm going to publish, and I've been
1 working on that manuscript for two years already.
2 JUDGE MOLOTO: Would you like to answer my question, ma'am?
3 THE WITNESS: [Interpretation] Yes.
4 JUDGE MOLOTO: Then answer it, please.
5 THE WITNESS: [Interpretation] I don't know what you mean.
6 JUDGE MOLOTO: I say, you admitted to the Prosecutor a few minutes
7 ago that at the time you wrote this report, you had a copy of that article
8 in your possession, ma'am. Do you remember that?
9 THE WITNESS: [Interpretation] Yes, when I was writing that, I did
10 have it in front of me.
11 JUDGE MOLOTO: That's right. And when you wrote this report,
12 according to your testimony, it was after the fire, ma'am.
13 THE WITNESS: [Interpretation] Yes. But -- I've been working on a
14 manuscript for a book for two years now which is a part of that.
15 JUDGE MOLOTO: Listen to me. Now, the Prosecutor also asked you
16 if the Defence counsel requested you to turn over to them your source
17 documents. Do you remember him asking you that question?
18 THE WITNESS: [Interpretation] Yes.
19 JUDGE MOLOTO: And why didn't --
20 THE WITNESS: [Interpretation] And I answered yes.
21 JUDGE MOLOTO: And why didn't you turn this document, this
22 specific newspaper, over to the Defence counsel? Because it didn't burn
23 in the fire.
24 THE WITNESS: [Interpretation] I repeat, sir: That for these two
25 years I've been working on a manuscript of a book, and from that book,
1 which is partly completed, this report came out.
2 JUDGE MOLOTO: Let me stop you, ma'am. You told us that you wrote
3 this report after the fire in your apartment and at that time you had a
4 copy of the newspaper, ma'am. You have been asked by the Defence to turn
5 over your source documents to them. You haven't done so. My question is
6 why? Forget about the manuscript for your book. I'm talking about this
8 THE WITNESS: [Interpretation] Because I did not think it necessary
9 to -- I'm responding to you, sir. I believed that for the premises
10 contained in this report, I did not need to provide sources themselves
11 because they are so notorious, that any lawyer would know them.
12 JUDGE MOLOTO: But the legal team requested you, ma'am, to turn
13 these things over and you have accepted, by way of an answer to my
14 question, that newspaper articles are not necessarily notorious with
15 everybody, in fact, let alone lawyers only.
16 THE WITNESS: [Interpretation] Where an expert puts forth his view
17 in a newspaper, then this definitely carries weight.
18 JUDGE MOLOTO: And when another expert wants to use that view,
19 then that other expert must attach his or her source document. That's you
20 in this case. I see you nodding. Do you agree with me?
21 THE WITNESS: [Interpretation] I repeat what I said.
22 MR. PEROVIC: [Interpretation] Your Honour?
23 JUDGE MOLOTO: Yes.
24 MR. PEROVIC: [Interpretation] By your leave, this might be of
25 assistance. On the screen, I can see that the text shown by the
1 Prosecutor shows page 23, at least that's what the numeration on the
2 screen says. In her expert report, the expert states that this is Joseph
3 Nye's article entitled "Self-determination" from Washington Post and the
4 date is December 15th, 1992, pages 17 to 23. This is what is contained at
5 the bottom of the page in B/C/S. I'm not sure whether the Prosecutor has
6 shown the entire article or is merely sticking to what is contained on
7 page 23 and this may have led to the whole misunderstanding.
8 JUDGE MOLOTO: Mr. Prosecutor, I'm no longer pursuing my questions
9 with the witness any way. Thank you very much. You may answer.
10 MR. WHITING: Thank you. It's true that the cite is to page 17 to
11 23 and on the document we have it just says 23. However, reading the
12 article, it's quite clear that the entire article is contained there.
13 It's obvious that it's not just a part of the article. And this sort of
14 underlines the point that's being made, that had the sources been
15 provided, we would not have had this problem. And that's, I think, the
16 issue that was being pursued. And without the source, you know, we could
17 just do the best we could and this is what we found. We believe this is
18 the full article and the quotation from the witness does not appear in the
20 JUDGE HOEPFEL: So may we ask the witness for a further
21 explanation? Professor, can you hear me? Do you remember having had this
22 article in your hand, Joseph S Nye junior, the "Self-determination Trap,"
23 Washington Post, 15 December 1992? Was this an article on one page? Was
24 it a normal paper clip? Or was this an article which was a dossier of
25 seven pages which would be quite unusual, wouldn't it? So you might
1 remember, was it a normal newspaper article, a commentary or whatever on
2 one page or was it a seven-page dossier? I'm asking because then we could
3 go into some further research.
4 THE WITNESS: [Interpretation] If I can remember, at this time
5 you'll imagine that it's quite difficult. I believe that it involved an
6 article which -- you know the way it is with these newspapers, it started
7 on one page and then the end of it was on another page. For instance, the
8 beginning of the article on the cover page and then the continuation on
9 the subsequent pages, and I believe that this was the case concerning this
10 particular article. I don't remember. Take it as you will. But this is
11 the point of it all. I merely wanted to substantiate the statement by U
12 Thant, that was my intention, to substantiate his statement. And I
13 believe that his statement is of primary and fundamental importance.
14 JUDGE HOEPFEL: Thank you.
15 MR. WHITING: Thank you.
16 Q. Now, on page 5 of the report, which now I've lost track of. Here
17 it is. And it's page 5 of the B/C/S. There is a paragraph that
18 begins, "Croatia followed the same path." Do you see that paragraph?
19 A. Yes.
20 Q. And then it says, "The Sabor of the Republic of Croatia adopted a
21 constitution stating that 'the Republic of Croatia is established as a
22 national state of the Croatian people.'" Do you see that sentence?
23 Ma'am, did you see -- I'm not sure your answer was picked up. Do you see
24 that sentence in your report?
25 A. Yes, yes.
1 Q. Now, that's not an accurate quotation, is it, because the sentence
2 does not stop there after "Croatian people" but continues, doesn't it?
3 A. Yes. But I found only this part relevant.
4 Q. But, Madam, when you put a period there and end the quotation,
5 doesn't that lead the reader to believe that the sentence ends there and
6 there is no continuation to the sentence? You didn't put three dots, for
7 example, indicating that the sentence continued.
8 A. That's a typographical error.
9 Q. Do you know how the sentence continues, ma'am?
10 A. I didn't bring the Croatian constitution along. I don't have it
11 with me.
12 Q. Well, the gentleman next to you does. So if we could just take a
13 moment to look at it, it's Exhibit 910 in evidence. And on the version
14 you have, you'll want to turn to the page that has 00873839 on the top,
15 and in the English, it is 00084402. And -- I don't know, do we have it up
16 on the -- I'll just wait until it gets up on the screen.
17 Now, on the English, if we can focus on the right-hand column and
18 it starts with "proceeding from the above presented historical facts."
19 And it's a very long sentence, but I'll start sort of halfway in that
20 paragraph where the witness in fact started her quotation. And it says
21 what -- it actually says is, "The Republic of Croatia is hereby
22 established as the national state of Croatian nation," and that's where
23 you stop the quotation. And it continues, "And a state of members of
24 other nations and minorities who are citizens, Serbs, Muslims, Slovenes,
25 Czechs, Slovaks, Italians, Hungarians, Jews and others who are guaranteed
1 equality with citizens of Croatian nationality and the realisation of
2 ethnic rights in accordance with the democratic norms of the United
3 Nations organisation and the free world countries."
4 Now, Madam, that was not a typographical error. You deliberately
5 left that part of the sentence off in your report, didn't you?
6 A. No, sir. I didn't.
7 Q. Madam, didn't you tell me --
8 A. That was an error but I didn't type it out. It was typed out for
10 Q. Madam, didn't you tell me at the beginning of the session --
11 A. I wanted to point out what you --
12 Q. Madam, could you please listen to me, my question. Didn't you
13 tell us at the beginning of the cross-examination that you -- your work
14 ethic is to be precise and careful in your work and didn't you notice here
15 that you had quoted just a snippet, just a little part of that very long
17 A. No. Because one uses quotations depending on what one -- on the
18 point one wants to make.
19 Q. Precisely.
20 A. I wanted to show the constitution setting down a state as proof of
21 the fact that this was secession and not dissociation, and that was why I
22 thought this was enough. I did not speak of the nature of the state. I
23 was speaking of the formation of a state.
24 Q. But the part that you quoted says nothing about secession or
25 disassociation, and by leaving out the rest of the sentence, isn't what
1 you quoted highly misleading?
2 A. No. I don't think it's misleading. I was telling you that the
3 emphasis is on the creation of a Croatian state which wasn't
4 disassociation but secession, a unilateral act. That was why I did not
5 believe it necessary to present the entire quotation. In my view, the
6 expert's report had to be as short as possible.
7 Q. I see. Madam, I'm going to move on to a different topic. On page
8 5 of your report, at the end of that paragraph that we've been looking at,
9 you've been talking in your report about the declaration of-- on
10 sovereignty of the Republic of Slovenia and the Croatian constitution and
11 the referendum and then in the last sentence you say, "In both cases,
12 these unilateral enactments of identical content represented a flagrant
13 violation of the SFRY constitution and the UN charter." I'd like to focus
14 on the UN Charter part. Can you tell us which Article of the UN Charter
15 was flagrantly violated?
16 A. Sir, I told you at the start that the only subject, the only
17 member of international organisations is the SFRY, Socialist Federative
18 Republic of Yugoslavia. In Article 2, I believe, the Charter guarantees
19 all its member territorial integrity and political independence.
20 Q. Okay.
21 A. Secession, therefore is a flagrant violation of the part of the
22 Charter which provides those guarantees to its members.
23 Q. Madam --
24 A. And it was only Yugoslavia, as a state, that was a member of that
25 charter and the subject of international organisations and not its federal
2 Q. Okay. Article 2, section 4, which I believe can be the only
3 section that you would be referring to states as follows: "All members
4 shall refrain in their international relations from the threat or use of
5 force against the territorial integrity or political independence of any
6 state or in any other manner inconsistent with the purposes of the United
7 Nations." Now that is talking about states acting internationally. That
8 would not apply to this situation, where you're talking about the
9 declarations of sovereignty of the Republic of Slovenia and the
10 constitution of the -- of Croatia. Correct?
11 A. No. That's quite illogical.
12 Q. Why?
13 A. Let me tell you what is common knowledge. Look at the list of
14 member states of the United Nations. You will not find Slovenia or
15 Croatia there. You will find the SFRY as the original member state, one
16 of the member -- founding member states and signatories of the Atlantic
18 Q. Madam --
19 A. The Charter of the United Nations cannot be interpreted or,
20 rather, it would be incorrect to interpret it in isolation by interpreting
21 only parts of it. It has to be interpreted as a whole.
22 Q. But can you tell me --
23 A. Likewise, it cannot be regarded separately from the enactment
24 which accompanied the setting up of the United Nations and you know full
25 well which enactments these are.
1 Q. But can you cite to me any other article or provision of the UN
2 Charter, aside from the one I've just read, which is Article 2 section 4,
3 that was flagrantly violated by the enactments of Croatia and Slovenia,
4 because that's what you put in your report, ma'am?
5 A. Well, yes. I stand by that. Please, for any lawyer, this is a
6 matter of common knowledge. Nothing that needs to be proven. The Charter
7 guarantees territorial integrity for all its members and the only member
8 was the sovereign state of Yugoslavia. Please, find Articles to the
9 contrary. Can you find a single article that would be referring to or
10 drawing upon federal units --
11 Q. Madam --
12 A. -- or any Federative state? Let's look at the practice of the
13 United States of America.
14 Q. Madam, let's stick to the UN Charter. Are you able or are you not
15 able to cite to any other article which, as you say, guarantees the
16 territorial integrity of the -- of its member?
17 A. Well, of course. I could tell you, from the top of my head now, a
18 number of them, but I do not want to do that. I would want to have the UN
19 Charter here with me. I do recall my first year of studies in Vienna when
20 my professor told me --
21 Q. Please give me the ones you can think of on the top of your head?
22 You cited one of them.
23 A. Chapter 7, as a whole, can be taken for that purpose because it
24 relates to forcible measures. Look at the preamble, look at chapter 1 of
25 the Charter. I don't want to misquote the Charter because I don't have it
1 before me. At the same time, I don't believe I'm here to take an exam.
2 Rather, we are here to have a discussion among lawyers who are
3 knowledgeable or at least should be knowledgeable.
4 Q. Madam, I'm not trying to give you an exam and I'm not trying to
5 quiz you. I'm just trying to understand the basis for the assertions you
6 make in your report and since there is no footnote to that sentence, the
7 only way I can do that is by asking you questions. Do you understand?
8 Now, on page 6 of your report, you state -- you talk about --
9 A. No, no, I cannot --
10 Q. You cannot what?
11 A. I cannot understand or conceive of you putting such questions
12 concerning the UN Charter. This is common knowledge for every lawyer.
13 Q. Okay. Let's move on to page 6. You talk -- do you see -- I'm not
14 sure if -- it should be on page 6 in the B/C/S. You talk about the
15 eight-point agreement made between Kucan and Tudjman.
16 A. Yes.
17 Q. Okay.
18 JUDGE MOLOTO: What page is it in English?
19 MR. WHITING: In English it's on page 6. It's in the first
20 paragraph on page 6.
21 JUDGE MOLOTO: Thank you.
22 MR. WHITING:
23 Q. Now, I'd like to just take a look at an article. It's R0292668.
24 And the registrar will have it. Unfortunately, this is an article that I
25 only have in English. This is an article published in Tanjug, a Belgrade
1 newspaper, dated the 13th of February 1991?
2 JUDGE HOEPFEL: A news agency as we already said, Tanjug.
3 MR. WHITING: I think it's both actually.
4 JUDGE HOEPFEL: It's a news agency.
5 MR. WHITING: It's not a publication?
6 JUDGE HOEPFEL: Okay.
7 MR. WHITING: We will just --
8 JUDGE HOEPFEL: The Professor will understand.
9 MR. WHITING:
10 Q. You're familiar with Tanjug, correct, Madam?
11 A. Yes, of course.
12 Q. Thank you, Your Honour. It says in the first paragraph, it
13 says, "In a special statement today, the Slovene Secretariat for National
14 Defence denied some of the claims in the article published in the
15 Ljubljana Delo under the heading Slovene Croatian Agreement on Joint
16 Defence, and prior to that, in the pamphlet, war against Croatia from the
17 Zagreb Globus publishers from which it was taken."
18 Then the article goes on to explain what occurred in the meeting
19 that -- and that in the third paragraph, it says, a joint statement was
20 issued on the 22nd of January which states -- which -- sorry, says inter
21 alia and then moving to the fourth paragraph, "in the event of the use of
22 armed force by the Yugoslav People's Army, JNA, in contravention of the
23 systems and measures of the legitimate and legal services of government in
24 the republics, the Presidency of the Republic of Slovenia and the
25 president of the Republic of Croatia will, in coordination, adopt certain
1 measures within the framework of their constitutional powers." And then
2 in the next paragraph, it talks about agreement with eight points, it
3 says, "is only a proposal of possible measures on which decisions would be
4 made by the republican services within the framework of their
5 constitutional powers only in the event of armed intervention by the JNA."
6 Now, is this your -- is this consistent with the agreement -- your
7 understanding of the agreement that you refer to in your report?
8 A. [No interpretation]
9 Q. Madam, I'm not sure your answer was picked up.
10 A. I've told you already that I was a member of the negotiating team.
11 We received the agreement through the intelligence service. The text of
12 the agreement is contained and can be found in the case file from the
13 Milosevic case. As a member of the delegation, I had the agreement in my
14 hands. You know very well that, in the early days of the fighting between
15 the legal JNA army and paramilitary forces, there was a lot of double
16 dealing and Slovenia and Croatia passed a number of documents in order to
17 prove the legality of their steps. This document exists. You can find
18 it. I don't have it at the time but I am sure you can find it in the case
19 file from the proceedings against the late Milosevic.
20 Q. But just based on your memory --
21 A. As for these --
22 Q. Based on your memory, is this consistent -- is what's described
23 here consistent with your memory of what that agreement is about?
24 A. Fully.
25 Q. Thank you.
1 A. Now as for the denials from Slovenia and Croatia, they didn't just
2 stop there. There was a lot more of that.
3 Q. Okay.
4 MR. WHITING: Could this document be admitted into evidence,
6 JUDGE MOLOTO: The document is admitted into evidence. May it
7 please be given an exhibit number.
8 THE REGISTRAR: Your Honours, this becomes Exhibit number 1025.
9 JUDGE MOLOTO: Thank you very much.
10 MR. WHITING: Thank you, Your Honour. I think it's a convenient
12 JUDGE MOLOTO: Thank you very much, Mr. Whiting. Just one or two
13 housekeeping matters. Or shall we excuse the witness first?
14 We have come to the end of the day today where the Chamber is not
15 done yet with you, Doctor. The case stands postponed to tomorrow,
16 tomorrow being Wednesday, the 15th, at quarter past 2.00 in the
17 afternoon. If you can make sure that you're available at quarter past
18 2.00 in the afternoon, same place where you are. For now, you're excused
19 until tomorrow at quarter past 2.00. You may stand down. Thank you very
21 Judge Hoepfel has just asked me to make sure that the parties are
22 aware that on Friday, the 17th, the hearing is in the morning and not in
23 the afternoon. At 9.00. Thank you very much.
24 That done, the Trial Chamber would like to give its oral decision
25 in -- on the Defence request filed today requesting the Trial Chamber to
1 certify an interlocutory appeal. The Trial Chamber is seized of a Defence
2 request filed today requesting the Trial Chamber to certify an
3 interlocutory appeal of its decision concerning the expert Smilja Avramov
4 dated the 9th of November 2006. The Trial Chamber notes the arguments of
5 the Defence in the motion and the Trial Chamber also notes the arguments
6 of the Prosecution as filed today.
7 Under Rule 73(B), the Trial Chamber has first to decide whether
8 the redaction of the expert report involves an issue which would
9 significantly affect the fair and expeditious conduct of the proceedings
10 or the outcome of the trial.
11 Secondly, but only after having found that the first prong of the
12 Rule has been met, the Trial Chamber has to determine that an immediate
13 resolution of that issue by the Appeals Chamber may materially advance the
15 The Trial Chamber finds that the first prong of the Rule has not
16 been met. Even if the Trial Chamber would have found that the first prong
17 of the Rule had been met, the Trial Chamber would not have granted leave
18 for certification as the Trial Chamber finds, particularly in light of the
19 late stage of the proceedings, that an immediate resolution by the Appeals
20 Chamber would not materially advance the proceedings. In this regard, the
21 Trial Chamber notes that the Defence was first ordered to file this report
22 immediately after the summer recess, that is on the 14th of August 2006.
23 That brings us to the end of the day. Court adjourned until
24 tomorrow at quarter past 2.00 in the afternoon. Court adjourned.
25 --- Whereupon the hearing adjourned at 7.07 p.m.,
1 to be reconvened on Wednesday, the 15th day of
2 November, 2006, at 2.15 p.m.