1 Thursday, 15 May 2008
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.03 a.m.
5 JUDGE BONOMY: Good morning, everyone. We shall now take the
6 final stages of the evidence of the professor, Stankovic.
7 [The witness entered court]
8 JUDGE BONOMY: Good morning, Professor.
9 THE WITNESS: [Interpretation] Good morning.
10 JUDGE BONOMY: We'll continue your evidence, but I don't think
11 we'll be detaining you for long.
12 Mr. Ivetic.
13 MR. IVETIC: Thank you, Your Honours.
14 WITNESS: ZORAN STANKOVIC [Resumed]
15 [Witness answered through interpreter]
16 Re-examination by Mr. Ivetic: [Continued]
17 Q. Good morning, Dr. Stankovic, Dr. Professor Stankovic. I have
18 essentially the one question that I had started yesterday with you, and
19 that is, within your legal jurisdiction is it the custom -- is there a
20 custom for experts on opposite sides in a pending legal proceeding to
21 have contact with one another outside of court during the penance of that
22 legal proceeding, or is that something that is not done either by law or
23 by custom in the legal jurisdiction wherein you come from?
24 A. In my country, to consult an expert before the trial begins is
25 not permissible. The expert is consulted in front of the Trial Chamber
1 that called for the expertise.
2 Q. Professor Dr. Stankovic, I thank you for answering my questions.
3 MR. FILA: [Interpretation] Just to be useful for the Court,
4 that's Exhibit P1824, and we're talking about Articles 250 and 251.
5 Thank you.
6 JUDGE BONOMY: Thank you, Mr. Fila.
7 Questioned by the Court:
8 JUDGE BONOMY: Professor, let me pose a situation to you which
9 may not arise in practice in your jurisdiction, but if it does I would be
10 interested in the answer. Certainly in an adversarial system, it is
11 often the case that when someone is killed, a post mortem is carried out
12 at the time, and then the body is cremated or, indeed, buried but at
13 least when cremated there is absolutely no possibility of access to the
14 body. Subsequently, there is a trial of a person who's discovered to be
15 the culprit, and he wants his own pathologist to advise him as an expert.
16 Are you saying that before the trial that pathologist would not be
17 allowed to speak to the original investigating pathologist for
18 information to enable him to prepare a critique or report of the work
19 done for the court, that he would have to come to court without that
21 A. If an autopsy carried out in accordance with all the standards
22 and the methodology envisaged for the performance of the autopsy and if
23 this report is decisive, accurate, and clear, and if attached to it there
24 are proper photo files and video recordings, then there is no need for
25 anyone to communicate to anyone. If there is any need or if a new expert
1 in this trial has any objections to the work done or to the autopsy
2 report, then the competent Trial Chamber summons the person who actually
3 conducted the autopsy and calls the witness -- the expert witness who
4 made the objections, and then there is a debate that is moderated by the
5 Trial Chamber, and questions are asked and answers are given to elucidate
6 those doubts, if any. These are the rules that are in place in my
8 JUDGE BONOMY: That's very helpful. Just one other question. Do
9 you know what the reason is for a rule obliging experts not to
10 communicate with one another prior to a trial?
11 A. Well, in the systems where there are rules in place to govern the
12 methodology and the procedure, this is legislated, simply -- to put it
13 simply. This is the case in our system, and the fact that the experts
14 cannot communicate is the consequence of the doubt that exists -- that is
15 built into the system in my country into the bias, possible bias of the
16 witness -- of the experts, and that is why they are called to explain any
17 doubts arising from the autopsy report before the Trial Chamber.
18 Because, as you know, in our country, in our legal system, every party --
19 the parties to the proceedings do not have their experts. The
20 Trial Chamber appoints experts, and they then evaluate the expertise.
21 The parties, the defence counsel of the injured party or of the accused,
22 have the right to seek opinion. They can ask me to provide an opinion,
23 but that is not considered expert testimony. This is my opinion, and the
24 court then evaluates its validity. They can either accept or reject my
25 opinion, or they can summon me to testify. That's up to the
1 Trial Chamber to decide.
2 JUDGE BONOMY: Yes. We are constantly reminding ourselves of the
3 difference between the system here and the system you have in relation to
4 experts. Indeed, I think it was Dr. Tomasevic who actually refused to
5 answer questions here on the basis that they were for an expert only and
6 she wasn't in the context an expert. So it's an issue that poses or
7 presents differences, and differences that it's important that we
9 A. If you allow me to say a few words. When the Hague Tribunal was
10 established, I was one of the representatives that talked to the
11 representatives of the United Nations, and then a discussion was made
12 whether to apply our system, criminal law system, or the Anglo-Saxon
13 system. I argued that we should apply our legal system because our
14 people who would be indicted are much more familiar with this legal
15 system than with common law system. Perhaps some of the answers that I
16 provided yesterday that were too lengthy, as you indicated, were -- that
17 was the consequence of my desire to familiarize you with my findings to a
18 much greater extent than I would usually do. That's what I wanted to
20 JUDGE BONOMY: So are you saying that you were involved in 1993
21 in these discussions?
22 A. No. That was right at the beginning when the delegations visited
23 the country. On the eve of the establishment of the Tribunal in The
24 Hague, then some delegations from the United Nations came, and then some
25 discussions were held.
1 JUDGE BONOMY: What year was that?
2 A. I think it was in 1992, if I'm not mistaken. Charif Bassiouni
3 and Kalshoven were there. I think it was 1992.
4 JUDGE BONOMY: Still, we have to make do with what we have, I'm
6 A. Well, I hope so.
7 JUDGE BONOMY: I think that completes your evidence, Professor.
8 Thank you for coming here to give evidence and to assist us. You're now
9 free to leave the courtroom with the usher.
10 MR. FILA: [Interpretation] If you need, we can explain --
11 JUDGE BONOMY: [Previous translation continues]...
12 MR. FILA: [Interpretation] No, no, no --
13 JUDGE BONOMY: Well, let's wait until he leaves, please.
14 [The witness withdrew]
15 JUDGE BONOMY: Yes.
16 MR. FILA: [Interpretation] We have to go back to the issue of
17 communism. In order to avoid any possibility that the Defence counsel
18 should be able to retain better experts because they have more money than
19 the Prosecutors do - that is why the Prosecution is now laughing now that
20 I'm saying that, and that's why Judge Kamenova is laughing - that's why
21 we had an institute for expertise. Professor Aleksic, Professor
22 Stankovic, all of them were there for all areas of expertise, and then
23 only the Trial Chamber was in contact with the institute, not the Defence
24 counsel, not the Prosecution, and that's why those people were called
25 Court-appointed experts, and Mr. Stankovic is on the list of
1 Court-appointed experts. Now, if I don't trust Mr. Stankovic, I can find
2 somebody else, and I can pay that person to provide an opinion, and then
3 I sell that opinion as if it was mine, and that's how I tried to
4 challenge the findings of the Court-appointed expert. That is the system
5 in which we lived and in which we still live, but we are trying to change
6 it. Thank you very much for listening to me.
7 JUDGE BONOMY: Yeah, that's a rather different topic from the one
8 that the question relates to. The question relates to communication
9 between experts, and there are domestic systems, too, which have odd
10 rules about not allowing one expert to listen to the evidence of another
11 expert, which has always seemed crazy to me. So it's a matter that is
12 the ongoing subject -- well, the subject of ongoing debate, which is
13 rather different from the question of who's got deeper pockets. But it's
14 helpful to hear your comments, Mr. Fila.
15 Now, you are presumably warming up for your next performance, or
16 are you delegating that?
17 MR. PETROVIC: [Interpretation] Your Honour, well, I have this
18 pleasant duty. Our last witness is Professor Radomir Lukic.
19 [The witness entered court]
20 JUDGE BONOMY: Good morning, Professor Lukic.
21 THE WITNESS: [Interpretation] Good morning.
22 JUDGE BONOMY: Would you please make the solemn declaration to
23 speak the truth by reading aloud the document which will now be shown to
25 THE WITNESS: [Interpretation] I solemnly declare that I will
1 speak the truth, the whole truth, and nothing but the truth.
2 JUDGE BONOMY: Thank you. Please be seated.
3 You'll now be examined by Mr. Petrovic.
4 Mr. Petrovic.
5 MR. PETROVIC: [Interpretation] Thank you, Your Honour.
6 WITNESS: RADOMIR LUKIC
7 [Witness answered through interpreter]
8 Examination by Mr. Petrovic:
9 Q. [Interpretation] Good morning, Professor Lukic. Could you please
10 state your full name for the record, please.
11 A. My name is Radomir Lukic.
12 Q. Professor Lukic, were you asked by Nikola Sainovic's Defence to
13 draft an expert report that contains three parts: The first part is
14 Kosovo and Metohija and the constitutional system of Yugoslavia and
15 Serbia; the second one is the federal government in the Federal Republic
16 of Yugoslavia; and the third part, which is an attachment to the first
17 part, relates to the issue of the two-thirds majority needed to adopt the
18 amendments to the 1974 constitution that were passed in 1989.
19 A. Yes, that's true.
20 Q. Do you have this report in front of you?
21 A. Yes.
22 Q. Did you have an opportunity to go through this report in recent
23 times, and were you able to find some errors in the text itself?
24 A. If you would allow me, I would like to say that there is an
25 amendment, and actually, there is an error. The amendment pertains to
1 the second part of the expert report about the position of the federal
2 government in the Federal Republic of Yugoslavia because at page 24 of
3 this part of the expert report, in the second whole paragraph which
4 begins with the words: "The tasks of the deputy prime minister ..." and
5 so on, right at the very end it is listed that this is regulated by
6 Articles 11 and 12 of the Rules of Procedure of the federal government,
7 whereas in fact it is regulated in Articles 9 and 10 of the Rules of
9 And there was also a technical error whereby the appendix 3 to
10 this report was actually the Rules of Procedure of the federal government
11 from 1994 instead of 1997. And, Your Honours, I would like to ask you to
12 allow us to tender the rules from 1997 instead of the rules that are
13 appended to this report. The Defence will provide the appropriate
15 I would also like to say that at page 29 of the expert report, in
16 line 1, after the comma, there are words "the federal government has so
17 far in actual fact not ..." and so on. What I would like to say is the
18 following: This part of the expert report was drafted before the Federal
19 Republic of Yugoslavia ceased to exist, so you have to take that into
20 account. The first part of the expert report that relates to Kosovo and
21 Metohija at page 9, in the first line, it says: "Northern Ireland in
22 Great Britain has judicial autonomy." In the meantime, the status of
23 Northern Ireland has changed in this respect, and I would like that to be
24 taken into account.
25 In the last part of the report, which is probably appended to it,
1 the one that is entitled: "The issue of two-thirds majority in the
2 adoption," and so on, the first full paragraph at page 29 that begins
3 with the words: "On this basis and with this purpose," that is the
4 amendment to that.
5 Q. Thank you.
6 JUDGE BONOMY: Let's clarify some of that because all of these
7 page references are B/C/S page references, I think. Can you assist us,
8 Mr. Petrovic, with the English pages?
9 MR. PETROVIC: [Interpretation] Yes, Your Honour.
10 JUDGE BONOMY: Page 24, first of all, what page is that in
12 MR. PETROVIC: [Interpretation] Your Honour, at page 24, that was
13 the first reference made by Professor, that would be page 93 in e-court
14 or 83 in English in e-court. And --
15 JUDGE BONOMY: In the report I -- copy I'm working from, can you
16 give me a page number --
17 MR. PETROVIC: [Interpretation] In that part, if you have the
18 version that was not uploaded into the e-court but the hard copy, that's
19 at page 16 of the English version.
20 THE WITNESS: [Interpretation] That's page 16 in the English
21 version. It's, again, the second paragraph on this page. [In English]
22 "The duties of a deputy federal prime minister ..." [Interpretation]
23 That's in this paragraph.
24 MR. HANNIS: Your Honour, if you're working from the same hard
25 copy as I am, I think it's page 16 of annex 2.
1 JUDGE BONOMY: Yes.
2 MR. PETROVIC: [Interpretation] Yes, it's in the second part, the
3 one about the federal government.
4 JUDGE BONOMY: Thank you. Now, that clears that one. Now,
5 there's a -- I think a mistake in the English transcript in relation to
6 what's being said about appendix 3. The one that we have is -- at the
7 moment is 1994; is that correct? And you want to --
8 MR. PETROVIC: [Interpretation] Yes.
9 JUDGE BONOMY: -- replace it with 1997?
10 MR. PETROVIC: [Interpretation] Yes, that's correct, Your Honour.
11 The Rules of Procedure from 1997 have been uploaded in the e-court as
12 2D346. It's already been admitted into evidence.
13 JUDGE BONOMY: So in that case, we should simply ignore appendix
14 3 -- or I think it's -- is it annex 3 to the report, which at the moment
15 is the 1994 version; is that correct?
16 MR. PETROVIC: [Interpretation] That's correct, Your Honour. To
17 avoid confusion, the annex that is currently in the record is Exhibit
18 1D223. That's the 1994 Rules of Procedure, but for the purposes of our
19 expert findings, we are relying on 2D346. That's the 1997 Rules of
21 JUDGE BONOMY: Well, we will allow you to substitute these for
22 the existing version in the report. You should probably as a result of
23 that upload an amended version of the report, and if any of these other
24 amendments are capable of being incorporated, then they could be. But
25 the only one I think is the one we've looked at where the wrong
1 paragraphs are referred to and the changes made to the -- the point about
2 Northern Ireland and the point about the federal government references.
3 We simply note the position from what's been said. There's no point in
4 amending the report to try to bring it up to date in that respect.
5 Incorporate the amendments to page -- was it 2 -- page 24, and
6 incorporate 1997 Rules of Procedure, and tender that revised version, and
7 it will be substituted for the existing version of the report, which is
9 MR. PETROVIC: [Interpretation] We'll do that, Your Honours.
10 JUDGE BONOMY: Thank you.
11 MR. PETROVIC: [Interpretation]
12 Q. Professor Lukic, bearing in mind the amendments that you've just
13 noted for us, could you please confirm that this report is -- presents
14 your views on the issues that the Defence has asked you to deal with?
15 A. Yes. All parts of this expert report present my views on the
16 issues that the Defence has asked me to look at.
17 THE INTERPRETER: The counsel and the witness are kindly asked to
18 make pauses between questions and answers.
19 MR. PETROVIC: [Interpretation] Could we please have documents
20 2D239 and document 2D394 - that's Professor Lukic's CV - into evidence,
21 and I would have just a couple of questions for the witness that I feel
22 are really necessary for our Defence.
23 THE INTERPRETER: Interpreter's correction: The first document
24 reference is 2D393.
25 JUDGE BONOMY: Sorry, that's answered my concern. The report and
1 the CV will be admitted into evidence.
2 MR. PETROVIC: [Interpretation] Thank you, Your Honour.
3 Q. Professor Lukic, I'd like to attempt to clarify some points in
4 your expert report. The first question or the first issue I would like
5 you to explain to us is the position and role of the president of the
6 federal government according to the legislation in force from 1994 until
7 the constitutional changes.
8 THE INTERPRETER: Could the speakers please slow down.
9 JUDGE BONOMY: Mr. Petrovic, your speed is -- has already become
10 an issue, and there's already been a yellow card for talking over the
11 interpretation of the witness's answer, so you're on thin ice already.
12 So you'll need to --
13 MR. PETROVIC: [Interpretation] I hope I won't turn another yellow
14 card, and I'll try to slow down. I hope my question has been
15 interpreted -- no, it hasn't.
16 JUDGE BONOMY: You'll need to deal with the question again.
17 MR. PETROVIC: [Interpretation] Yes.
18 Q. The position of the president of the federal government under the
19 constitutional system of 1992 until the constitutional changes in the
20 year 2000, the influence or effect of the position of the president of
21 the federal government on the way that government made decisions and on
22 its manner of working.
23 A. The constitution of the Federal Republic of Yugoslavia of 1992
24 opted for a system of government based on the principle of the division
25 of power, and this follows from the fundamental provisions of this
1 constitution. As it's not usual for a constitution to deal with
2 scholarly and other issues of state organization, this constitution did
3 not go any further in explaining, nor was it its task, what -- in
4 explaining what kind of government authority this was. In order to save
5 time, I won't go into this matter, but I will simply conclude that the
6 legislators who enacted the constitution opted for a well-known type of
7 horizontal organization of central government authority called a
8 chancellor type of government, that is, a government that rests on the
9 so-called chancellor principle. This means that it is a government in
10 which the decisive, the key, role from the moment it is formed until the
11 end is played by its president. In spite of the fact that the federal
12 government consists of the president, the vice-presidents, the federal
13 ministers who are in charge of the ministries, and the federal ministers
14 who are not in charge of federal ministers, in spite of that, in spite of
15 the fact that one might say that the government consisted of several
16 members, the crucial role was played by its president because the only
17 important -- the only thing that was important was that the candidate who
18 was nominated to be the president of the government or the prime minister
19 was elected. Before the candidate came up for election, he was
20 duty-bound to present the programme of his government to the Federal
21 Assembly, and once he was elected, it was considered that the entire
22 cabinet was elected or the entire federal government, and with reference
23 to the aspect I am referring to this was not all that important. If in
24 the course of the life of a government or a cabinet the prime minister
25 decided that changes had to be made in the composition of the cabinet, he
1 would do this of -- on his own initiative, of his own volition, bearing
2 in mind all relevant elements, including his relations with the Federal
3 Assembly, and he would simply inform the Federal Assembly of this, but
4 the Federal Assembly would not issue any decisions concerning this.
5 In addition to this, the prime minister has the right to resign
6 of his own volition when he concludes that this is necessary and no
7 decision is reached in the government, in the cabinet, but only the
8 Federal Assembly -- the Federal Assembly is simply informed of this. The
9 predominant role of the federal prime minister in relation to all the
10 other members of the federal cabinet is also seen from the fact that the
11 constitution expressly provides - and this is shown in my expert
12 report - that the federal prime minister is responsible to the Federal
13 Assembly for his own work and for the work of the federal government. So
14 all this shows that the federal prime minister had a predominant role, so
15 one might conclude that the ministers in the federal cabinet, regardless
16 of their rank or the type of ministers they are, are in a manner of
17 speaking the prime minister's associates.
18 JUDGE BONOMY: Just a moment, Mr. Petrovic. It may be my
19 misunderstanding of this, but the transcript says, page 13, line 7: "In
20 spite of the fact that the federal government consists of the president,
21 the vice-presidents, the federal ministers who are in charge of the
22 ministries and the federal ministers who are not in charge of federal
23 ministries, in spite of that, in spite of the fact that one might say the
24 government consisted of several members, the crucial role was played by
25 its president."
1 Now, is that what the witness actually said?
2 MR. PETROVIC: [Interpretation] Yes, Your Honour.
3 JUDGE BONOMY: Because it's now gone on to talk about the
4 predominant role of the prime minister.
5 THE INTERPRETER: Interpreter notes that the president of the
6 government is a synonym for the prime minister.
7 MR. PETROVIC: [Interpretation] My understanding is that from
8 lines 7 to line 11 refers to the prime minister of the federal
9 government --
10 JUDGE BONOMY: I would not read it that way in English, I'm
11 afraid, Mr. Petrovic. There's a very important distinction to be made in
12 this between the president of the FRY and the prime minister.
13 MR. IVETIC: If I can -- if I can intervene, perhaps I can
14 assist, it's -- the president of the government is, in fact, the prime
15 minister. It's a nuance of translation. It can be translated one way or
16 the other. The president of the government is I believe the prime
17 minister. I think that CLSS is help us out on that. The president of
18 the FR would be the president of the republic --
19 JUDGE BONOMY: So the answer to this is that the president is not
20 a member of the government, and that clarifies it, I think.
21 MR. IVETIC: The president of the republic is not a member of the
22 government, correct.
23 JUDGE BONOMY: Thank you.
24 MR. PETROVIC: [Interpretation] Your Honour, he is referring to
25 the president of the government. That is the prime minister and not the
1 president of the republic.
2 JUDGE BONOMY: Thank you.
3 MR. PETROVIC: [Interpretation] So everything that has been said
4 refers exclusively to the prime minister.
5 JUDGE BONOMY: Well, it was my mistake, Mr. Petrovic. It's now
6 clear. Please continue.
7 MR. PETROVIC: [Interpretation] Thank you, Your Honour.
8 Q. His Honour Judge Bonomy mentioned the president of the republic.
9 What was the role of the president of the Federal Republic of Yugoslavia
10 in the process of the election of the federal government, and what was
11 his relation to the federal government and its members?
12 A. Before I answer this, I should say that the main constitutional
13 organs are the Federal Assembly, the president of the republic, the prime
14 minister - as far as I know, prime minister is the only proper
15 translation - and two courts. One of the main constitutional organs is
16 the president of the republic, who according to this constitution has
17 very weak powers, very weak authority, except for his relation to the
18 army. The constitutional relation between the president of the Federal
19 Republic of Yugoslavia and the federal prime minister refers to only two
20 situations according to the constitution. The first is nominating the
21 candidates for the prime minister, and this is a power that belongs to
22 the president of the republic. However, it should be mentioned that in
23 Yugoslavia at the time there was a multi-party system. The parties
24 competed in the elections, and this power of the president of the FRY was
25 such that he could not act of his own volition. When nominated the
1 candidate for prime minister, he always had to bear in mind the number of
2 seats won by each party in the Federal Assembly because bearing in mind
3 what the majority was in the Federal Assembly, that was the only way he
4 could nominate a candidate for prime minister. Apart from this power of
5 his, the president of the FRY under the constitution of this country had
6 no other legally prescribed powers over the federal government. On the
7 other hand, there was only one power of the federal government in
8 relation to the president of the FRY, and that was that the federal
9 government had expressis verbis, an express authority to propose to the
10 president of the FRY candidates for the post of ambassador. So they
11 could propose what ambassadors would be accredited with other governments
12 or, if need be, with other international organizations, and in this case,
13 also, the president of the republic did not have any powers because the
14 foreign policy fell within the competence of the federal government. So
15 the ambassadors who were nominated were actually implementing the policy
16 of the federal government, and this was prescribed by the constitution.
17 Q. Thank you, Professor. Can you tell us what was -- whether there
18 was any relation between the federal government and the Army of
19 Yugoslavia, and if so, what it was?
20 A. The Army of Yugoslavia was another constitutional organ in the
21 then-FRY, and its legal position was expressly regulated in part 8 of the
22 constitution bearing the title: "The Army of Yugoslavia." The relations
23 between the federal government and the Army of Yugoslavia is something we
24 can draw conclusions about only on the basis of the text of the
25 constitution. If we look at the powers that the federal government has
1 in relation to the army, we may conclude that these were not powers to
2 decide on the use of the Army of Yugoslavia except in one exceptional
3 case, a minor case, and that was that the conduct of foreign policy fell
4 within the remit of the federal government. So the legislator who
5 enacted the constitution empowered the federal government to decide on
6 whether the army would be used for the needs of international
7 organizations, i.e., on peacekeeping missions in other countries.
8 Apart from this power, the federal government had no other powers
9 in relation to the army, especially not as regards command, the internal
10 organization of the Army of Yugoslavia, and so on and so forth.
11 The other powers of the federal government which are prescribed
12 by the constitution are legal powers having to do with the army in the
13 context of preparation for the defence of the country because the federal
14 administration of the federal government prepared a defence plan, but it
15 only had authority over civilian structures in wartime or in the period
16 regulated by norms before a war, and we might say that these were
17 administrative powers in logistical matters. There were no other
18 relations. On the other hand, the Army of Yugoslavia, as is quite normal
19 in democratic countries, has no powers over the federal government.
20 Q. Does the federal government have any powers regarding civilian
21 control of the Army of Yugoslavia?
22 A. This is not performed by the government, but rather by the
23 Federal Assembly. The Federal Assembly decides when necessary on the
24 responsibility of the president of the FRY or enacts other legislation
25 having to do with control over the Army of Yugoslavia. So the federal
1 government has no powers falling within the scope of civilian control
2 over the work and activities of the Army of Yugoslavia.
3 Q. Professor, can you please tell us something about the relations
4 of the federal government and the republican organs in the republics who
5 were members of the federal state? I'm especially interested in the
6 relations between the federal government and the MUP of the Republic of
7 Serbia. Was there any relation between these two organs, and if so, what
8 was it?
9 A. The legislator who enacted the constitution probably had reasons
10 to decide on a type of federation, the type that is prescribed by this
11 constitution. It is characterized by several principles and several
12 fundamental relations. The main principle is that the federal state
13 carries out only those tasks of state government which are linguistically
14 and logically unambiguously assigned to it in the constitution, and this
15 is done by enumerating the powers, and this is a closed list. Apart from
16 the tasks enumerated in the constitution, the federal government cannot
17 undertake any other tasks unless the member republics agree on this, and
18 they did not agree on it while this state lasted. So the fundamental
19 tenet is that the member states are sovereign states, and this is
20 provided for in Article 6 of this constitution; they are sovereign
21 states, and they are sovereign in all issues not expressly put under
22 the -- not expressly assigned to the federal government.
23 There is double track in implementing legislation laws, bylaws,
24 and other legal documents. This constitution provides that the federal
25 state shall implement the federal laws it enacts, and it cannot implement
1 only those federal laws which cannot be implemented directly because, for
2 example, they regulate only the bases of some legal relations, and there
3 were few of these in this constitutional system. This falls to the --
4 under the so-called mixed or parallel competence, and this has to do with
5 the tax system, the labour system, the social welfare system, and so on
6 and so forth. I won't list them all.
7 On the other hand, the republic in everything that was the task
8 of the government which was not expressly assigned to the federal
9 government was independent, and there were no control mechanisms for the
10 federal government to control this, so these were two separate tracks.
11 Of course, the legislation of the member republics had to comply with the
12 federal constitution, but there were very few principles and very few
13 norms that were binding on the republics.
14 In view of all this, my answer to your question is that the
15 member republics were really independent in carrying out the work falling
16 within its judicial administrative and other competence, and the federal
17 government had no powers of control except for control over legislation
18 and documents, not control over behaviour and activities, and everything
19 else was done by the republics independently. This general rule also
20 applies to the Ministries of the Interior of the member republics, as no
21 organ of the federal government had any legal power over them. The
22 member republics had the right of so-called self-organization, and in
23 this they were bound only by two principles of the federal constitution,
24 that of a civil sovereignty and that of the division of power.
25 Q. Thank you. And the last subject that I would like us to deal
1 with has to do with Article 99 of the Constitution of the Federal
2 Republic of Yugoslavia, dealing with all the competencies or the powers
3 of the federal government, or rather, Article 77 dealing with the federal
4 organs. In Article 77(1) of the powers of the federal organs is the
5 security of the Federal Republic of Yugoslavia, whereas in item 6 there
6 is the power of exercising control over crossing the state border. This
7 was envisaged in the constitution, but was it specified in concrete norms
8 more specifically?
9 A. The constitutional legislator practically said what the purview
10 was of the federal state and its organs, and this was done through two
11 procedures. First, in Article 77, the issues and relevant fields were
12 specified that the federal state was in charge of, regulating every one
13 of the powers of each federal organ. Of course, it should be stated that
14 the Federal Republic of Yugoslavia was -- did not have very long life,
15 historically speaking, and from the point of view of a well-organized or
16 a perfectly organized state, it had not been completed, or rather, it had
17 not been rounded off from a legal point of view. This particularly holds
18 true with regard to two of the questions that you asked me about because
19 Article 77 says that "The Federal Republic of Yugoslavia, through its
20 organs, establishes or formulates policy, enacts and enforces federal
21 legislation, other laws and general enactments, and ensures judicial
22 protection in various fields."
23 And then it says in item 6: "Border crossing and control of the
24 circulation of goods, services, and passengers across the border."
25 And in item 7, it says that this pertains to the fields of
1 defence and security of the Federal Republic of Yugoslavia as well.
2 Perhaps this would be the right place to point out that the area
3 of defence was regulated, both by laws and bylaws, and that that is where
4 the judiciary, executive, and legislative branches of government
5 function. However, in the Federal Republic of Yugoslavia, as we can see,
6 the federal state did not exercise judicial legislative authority,
7 rather, and therefore executive authority wasn't there either. And since
8 both were lacking, then judicial authority could not be exercised in the
9 field of security of the Federal Republic of Yugoslavia throughout its
10 existence, until it ceased to exist, that is.
11 With regard to all three branches of government, border crossings
12 and the control of circulation of goods, et cetera, everything that is
13 mentioned in this item, was regulated as it was. So that was the destiny
14 of this one particular issue falling under the jurisdiction of the
15 federal state throughout the existence of the Federal Republic of
17 Q. Thank you, Professor. Those were all of our questions.
18 JUDGE BONOMY: Professor, I'm afraid I've lost you a little in
19 your last answer where you're dealing with item 7, and you talked about
20 the federal state did not exercise judicial legislative authority, at
21 least that's the English translation. What is that?
22 THE WITNESS: [Interpretation] I think that I will be in a
23 position to clarify this very quickly. As for Article 77 of the
24 constitution, it states that the federal state carries out judicial --
25 JUDGE BONOMY: I've got Article 77. It's what you're telling us
1 about that part 7, item 7, in that.
2 THE WITNESS: [Interpretation] Yes, yes. Item 7 envisages that
3 the federal state has judicial, executive, and legislative authority in
4 the field of security of the Federal Republic of Yugoslavia; however,
5 throughout its existence, the Federal Republic of Yugoslavia did not pass
6 a law on security. Since such a law was not passed, it could not be
7 carried out by the executive, and since it was not being implemented,
8 then there could be no judicial disputes in that area. There was just a
9 single court that existed in this state: The federal court of the
10 Federal Republic of Yugoslavia. That was the only one in existence. In
11 other words, the federal state did not exercise its powers in the field
12 of security at all because, in fact, this was carried out by the member
13 republics. I would be very pleased if I managed to explain the essence
14 of this question and the situation in the Federal Republic of Yugoslavia
15 in the field of security.
16 JUDGE BONOMY: Trying to put it into simple layman's language,
17 are you saying that the secret service of Yugoslavia was operated by the
18 various republics?
19 THE WITNESS: [Interpretation] Yugoslavia didn't have a secret
20 service at all as its own service, as a service of the federal state, as
21 unusual as this may seem to you, but that's the way it was.
22 JUDGE BONOMY: But are you saying that each republic had one?
23 THE WITNESS: [Interpretation] Then every one of the republics
24 carried out this work in relation to its territory, and that is as far as
25 my constitutional law knowledge goes because I am well-versed in
1 constitutional law matters.
2 JUDGE BONOMY: Was there a Federal Ministry of the Interior?
3 THE WITNESS: [Interpretation] No, no. There was never a Federal
4 Ministry of the Interior because, you see, when a prime minister
5 designate would be appointed, then he would decide what the composition
6 of his government would be or his cabinet, to put it in your own
7 linguistic and legal terms. Every prime minister designate did that, but
8 in all the cabinets that were established from 1992 up until the end of
9 the existence of the state union, there was no Federal Ministry of the
11 JUDGE BONOMY: I'll be corrected if I'm wrong, no doubt, but I
12 have a recollection that Mr. Bulatovic, when here, told us that there was
13 a Ministry of the Interior of sorts in the federal government, but that's
14 not your understanding?
15 THE WITNESS: [Interpretation] If it did exist -- well, you really
16 caught me by surprise now. I cannot remember because at that time I did
17 not live in Serbia. At any rate, it was not involved in carrying out
18 security work.
19 JUDGE BONOMY: So throughout the Federation, how were the
20 activities of the security services coordinated?
21 THE WITNESS: [Interpretation] I don't think that I would be best
22 placed to answer that question because as for police coordination and
23 police work, indeed, I never dealt with such matters.
24 JUDGE BONOMY: All right. Thank you.
25 You'll now be cross-examined by the Prosecutor, Mr. Hannis.
1 Mr. Hannis.
2 MR. HANNIS: Thank you, Your Honour.
3 Cross-examination by Mr. Hannis:
4 Q. Good morning, Professor.
5 A. Good morning.
6 Q. I wanted to start with a couple of questions about your CV, which
7 I understand is annex 4 to your report, and it's our Exhibit Number
8 2D394. In looking at your work history, I seem to have a gap between 25
9 May 1992 and 25 October 1993. Can you tell us what you were doing during
10 that time-period?
11 A. During that period of time, unfortunately, I was not in a
12 position to pursue my academic or research career because due to the war
13 operations in Sarajevo where I lived and worked at the law school of the
14 University of Sarajevo, my university career was interrupted. From May
15 1992 until October 1993 I was unemployed, but during that period of time
16 at the request of people that I had cooperated with before the war, I was
17 legal advisor but without having established formal employment with
18 Professor Dr. Aleksa Buha, who was then foreign minister of Republika
19 Srpska. In that period of time I was also legal advisor, upon
20 invitation, of the delegation of Republika Srpska that negotiated in
21 Geneva under the auspices of the International Conference on the former
22 Yugoslavia. All of this, due to the fact that from 1991 I took part as a
23 representative of the Serb side from Bosnia-Herzegovina in the work of
24 the International Conference on the former Yugoslavia that started
25 working precisely here, in The Hague, and later on continued working in
1 Brussels and ultimately in Geneva. So that is the void, as it were, that
2 you referred to, whereas the CV states only matters of relevance to my
3 academic and researcher status, not only to -- it was not done to avoid
4 things, but I thought that I should only give references that qualified
5 me as an expert in constitutional law.
6 Q. I understand that, and I trust you'll understand that I'm asking
7 these questions to determine if there's anything that may bear on
8 credibility or bias or some motive to testify a particular way. I had a
9 note somewhere that listed you as a deputy minister for foreign affairs
10 for the Republika Srpska in 1994. Would that be accurate?
11 A. Yes, yes, indeed. First, you asked me about the period from 1992
12 and 1994, and I responded; now you're asking me about the period from
13 1994. Yes, from October - I don't know exactly when, October
14 20-something - I was deputy foreign minister of Republika Srpska all the
15 way up to 1998.
16 Q. And you say from October. Is that October 1993 or October 1994
17 that you achieved that position?
18 A. 1994 at any rate.
19 Q. And was that a paid position?
20 A. It was so well paid that I had to work in Belgrade in order to
21 feed my family, so that I could work for free in Pale. Even if it had
22 been paid -- I mean, people who were paid for work there could not live
23 off that money. Just as a matter of curiosity, people who worked as
24 deputy ministers had a salary of 10 euro in present-day terms.
25 Q. Is that per month or per year?
1 A. Per month. I, in order to feed my family and myself, worked at
2 the Institute for Comparative Law in Belgrade, which is a research
4 Q. Are you a member of any political party?
5 A. During a certain period of time, six or seven years, I'm not
6 sure, I was a member of the Serb Democratic Party. I left the party in
7 1992. I can't remember the exact date, but let's say it was the month of
8 April because that year I competed in order to become a judge of the
9 constitutional court of Bosnia-Herzegovina, and one of the requirements
10 for that job was that the candidate involved was not a member of a single
11 political party. So for five or six or seven years - I can't tell you
12 exactly - I was a member of this party. If I give it some more thought,
13 I may be able to tell you. I think it was from 1996 -- now, was it
14 1996 -- until April 1992 [as interpreted]. That is when I resigned from
15 the main committee of the Serb Democratic Party for the reasons that I've
16 just explained to you.
17 Q. And did you not again after --
18 MR. PETROVIC: [Interpretation] Your Honour.
19 JUDGE BONOMY: Mr. Petrovic.
20 MR. PETROVIC: [Interpretation] I do apologise. Could my learned
21 friend Mr. Hannis put the question regarding the duration of his
22 membership in the Serb Democratic Party. I think that the answer is a
23 bit confusing. The transcript is not [as interpreted] confusing. From
24 1996 until when?
25 THE WITNESS: [Interpretation] Until April 2002.
1 MR. HANNIS:
2 Q. Thank you. And during that time-period from 1996 to 2002, did
3 you hold any positions within the SDS?
4 A. From 1996 until 2002, I think that it was only from 1998 that I
5 was a member of the Main Board, as I said to you, and then I left it in
6 April 2002.
7 Q. That was the party that was founded by Radovan Karadzic, correct?
8 A. That is a party that was founded at its founding assembly in
9 Sarajevo. I did not attend. Many people founded it. Radovan Karadzic
10 was not the only man who founded it. The founding meeting was held, as
11 far as I know, in a big sports hall of the biggest sports centre of
12 Sarajevo, Skenderija, that could take 6 or 7.000 people at a time. This
13 is what people told me about. The hall was full, so there were many
14 people who founded that party.
15 Q. My point is, though, that that's the party that is primarily
16 associated with Radovan Karadzic and generally viewed or termed a Serb
17 nationalist party, correct?
18 A. I really cannot state any views on that, and I did not look at
19 how people were characterizing it. Some people characterize it this way;
20 some people characterize it that way. At any rate, this is not a
21 question that I would need to answer. This is a statement made by the
22 person who was actually putting that by way of a question in terms of
23 what he believes.
24 Q. Well, you're not aware that the SDS in Bosnia and Herzegovina
25 during President Karadzic's time in that position was viewed as a
1 nationalist Serb party? You must have been aware of that?
2 A. Let me make one thing clear. I understand English quite well,
3 but I am listening to my language because one feels the best in one's own
4 language. I don't know whether the interpretation I received was
5 correct, but it said that the Serbian Democratic Party was a nationalist
6 party and was viewed as a nationalist Serb party. I can tell you only
7 this. You can talk about various qualifications. You asked me whether I
8 was aware of that, but I can tell you this. At that time, I paid very
9 little attention to labels, to how things were called, because one had to
10 make a living and survive.
11 Now, as to the second part of your question, whether I was aware
12 of the fact that it was a nationalist party, it of course gathered around
13 it mostly Serbs, but it was not by any means the only party in Bosnia and
14 Herzegovina that had Serb membership, that attracted Serbs, if by that
15 you mean that most of its members were of the Serbian ethnic background.
16 Q. Well, what would you describe as its primary platform in Bosnia
17 and Herzegovina in 1992?
18 A. How would I describe its platform, its primary platform? As far
19 as I know, I share those views, I and the party, although I was not a
20 member, supported it because it expressed the interests of the great
21 majority of the Serb people in Bosnia and Herzegovina. They wanted to
22 retain the joint state, to restructure it to the degree that it was
23 possible, and to do that in -- by peaceful means and without any blood.
24 This is what I knew about the Serbian Democratic Party at that time.
25 Q. And I take it, then, that you wouldn't know whether the HDZ was
1 viewed as a Croatian nationalist party or the SDA was viewed as a Muslim
2 nationalist party?
3 A. Well, I can give you the same answer as I did about the Serbian
4 Democratic Party. What is clear and evident and -- both to me and to
5 everybody else in that area was that the Croatian Democratic Union
6 gathered in the overwhelming majority Croats, people of Croat ethnic
7 background in Bosnia and Herzegovina, and the same went for the Party of
8 Democratic Action, which gathered around it Muslims, or as they are now
9 defined in the constitution of Bosnia and Herzegovina, Bosniaks. This is
10 a fact that cannot be denied.
11 Q. Okay. You say that you were a professor at the Serb Sarajevo law
12 faculty from 1 November 1999. Are you still a member of that law
14 A. I continued my university career. I resumed it in November 1999.
15 I no longer work there. Throughout this period, I was the dean and the
16 professor. I taught constitutional law and political system, and I was
17 fired on the 16th of January, 2006, so it's been two years and a half -
18 how time flies - because the decision of the High Representative for
19 Bosnia and Herzegovina of the 30th of June, 2004, was being implemented,
20 removing me from the position of the member of the Main Board of the
21 Serbian Democratic Party. I was not a member of that board at all at
22 that time, but this imprecision does not really concern me because many
23 other people were also fired, and some of them were characterized or
24 mistaken for some other people who simply shared the same name, and the
25 Office of the High Representative then made this mistake. They said I
1 was a member of the Main Board of the SDS, although I was not, and they
2 also prohibited me from taking any public office. I was prohibited from
3 being a member of any political party. I was prohibited from
4 participating in any elections as a candidate. So I was prohibited from
5 taking any public office that would be funded by the budget. So as the
6 university professor, I could not work in any service that was financed
7 from the budget of Bosnia and Herzegovina, I could not get a job as a
8 cleaner, as a driver, anything. Of course, all this was the consequence
9 of the enforcement of this decision, and I was not even informed that
10 proceedings had been instituted against me. I was not aware of any
11 accusations levied against me. I think that you will find this decision,
12 and you will not be able to find any act that would constitute a criminal
13 offence on my part, and what was done to me actually amounted to a
14 criminal sanction. I think that now I've given you my answer to this
16 Q. Yes, and it raises a few more questions for me. There is a
17 decision from 30 June 2004 by Paddy Ashdown as the High Commissioner to
18 remove you from your position as a member of the Main Board of the SDS.
19 You're telling us you were no longer a member of the Main Board at that
20 time; is that right?
21 A. Yes. At that time, I was not a member of the Main Board. Had
22 any proceedings been instituted against me by the Office of the High
23 Representative, they would have been able to determine that fact very
24 easily because in the Serbian Democratic Party archives, there is a
25 letter in which I informed the president of the party that I resign from
1 my position in the board and that I no longer want to be a member because
2 I wanted to apply for the post at the constitutional court and -- but no
3 proceedings had been instituted, and this was not done.
4 Q. What was not done? Your resignation was not accepted?
5 A. My resignation was accepted, and after that I did not participate
6 in the work of the Serbian Democratic Party and its Main Board because
7 first I was appointed a judge of the constitutional court in Bosnia and
8 Herzegovina, and then the High Representative cancelled this appointment
9 on the basis of a request by the Bosniak representatives in the
10 Constitutional Commission of Bosnia and Herzegovina, and I was a member
11 of that commission too. But I was not a member of the Serbian Democratic
12 Party Main Board at that time, so there could be no debate about any
13 acceptance or not acceptance because it -- this was my personal action.
14 But if any proceedings had been instituted against me or if any procedure
15 was done to check these facts, then they would have found that out, but
16 this was simply not done. They did not check the facts.
17 Q. And did you try to seek any relief from that decision through
18 some legal proceeding?
19 A. Of course. I did not appeal against this decision with the High
20 Representative because no proceedings in which I participated were
21 actually conducted, and if there were no proceedings then I could not
22 appeal with any other body, external body. These are the basic tenets of
23 legal procedure that I taught my students. Out of the 59, 26 of us filed
24 a complaint before the European Court of Human Rights because the rest of
25 the people from that group of 59 were very much afraid that they might
1 face harsher sanctions than the ones that they got, and these sanctions
2 were imposed without any legal norms and without any legal proceedings.
3 The 26 were brave enough. We were brave enough to do that, if you can
4 call that bravery, of course, because this is a basic expression of your
5 self-esteem. And European Court of Human Rights recently issued a
6 decision rejecting our complaint. We, of course, filed suit against
7 Bosnia and Herzegovina for failing to fulfil its obligations under
8 Article 1 related to Article 6 of the European Charter -- I'm sorry, not
9 6 but 7 of the European Charter of Human Rights, and the European Court
10 of Human Rights decided that it lacked jurisdiction because this action
11 could not be attributed to Bosnia and Herzegovina but to the High
12 Representative, and the High Representative in making this decision did
13 not perform any of the tasks of the sovereign government of the Republic
14 of Bosnia and Herzegovina; but, as is indicated explicitly in the
15 decision of the court, it had the authority of the UN Security Council.
16 On the other hand, I filed three suits before national courts in
17 Bosnia and Herzegovina; one is the legal suit about the fact that I was
19 Q. And none of those have been resolved yet; is that correct?
20 A. In one of them I have the first-instance judgement, and the
21 first-instance court ruled in my favour, ordering the faculty to give me
22 back my job and to pay both the damages, but the faculty appealed against
23 this judgement. And there were also two administrative proceedings
24 before the district court in Banja Luka. In the first case, the court
25 decided it was not an administrative case and that there could be no
1 administrative proceedings. In the second one, it ruled in my favour
2 because it decided that the Government of Republika Srpska did not have
3 the authority to remove from office a dean of a faculty and to appoint
4 somebody else to that post. These were legal suits that I filed in order
5 to protect my rights. Of course, now we're talking about filing suit
6 before appropriate bodies of the United Nations because we cannot see how
7 it is that the bodies of the United Nations can violate their own basic
8 documents such as the Declaration of Human Rights, which has become part
9 of international law, and how two covenants on human rights.
10 Q. My question was, are any of those finally resolved, or are they
11 still pending on appeal or at some other stage of the proceedings?
12 A. Appellate proceedings are now underway in the administrative
13 proceedings and in the proceedings before the court. Well, when we're
14 talking about administrative proceedings, we're talking about different
15 kind of relief, but that's basically it.
16 Q. Okay. I have one other question dealing with this general topic
17 before I go to ask you about your report. I furnished to the Defence
18 counsel yesterday some open-source news articles about you that I might
19 ask a question about. I don't know if you were shown that or you're
20 aware of it, but one is a story from the Pale Javnost publication on the
21 13th of July, 1996, which purports to be an interview with you where you
22 are described as the deputy foreign affairs minister of the Serb
23 Republic, and you're being interviewed by someone named Jovan Janjic. Do
24 you recall that interview?
25 A. I know Jovan Janjic. He's a journalist. He used to be an editor
1 in Javnost magazine, and if you remind me, I will be able to recall.
2 Q. Well, in English, the title of the article: "Serb Official On
3 Achieving Strategic Balance," and he's asking -- he's describing or
4 talking about a conference on arms control and Vienna among other things.
5 Do you remember being interviewed about that?
6 A. Yes, yes. I was the head of the delegation of the Republika
7 Srpska at the talks about the implementation of the annex 1, I think, to
8 the Dayton Peace Accords.
9 Q. Okay.
10 A. That's arms control, regional stabilization, and so on.
11 Q. Okay. And in the article, he mentions that you've also been to
12 Brussels, The Hague, London, and Geneva, and taking part in various
13 negotiations, including the final negotiations in Dayton, correct?
14 A. Yes, yes. I was a member of the delegation of Republika Srpska
15 during proximity talks in Dayton.
16 Q. Did you read this article at the time it came out, do you recall?
17 A. Well, try and jog my memory, and if I'm able to recall I will
18 talk about that because I don't have any details in my life that I would
19 like to keep secret. I didn't give many interviews. I didn't write a
20 lot, but a long time has passed, so I can't really recall that.
21 Q. Okay. Just two parts I want to ask you about. In the first
22 paragraph, he describes you as the deputy foreign affairs minister, and
23 he says that you have "been a part of the Serb nationalist movement from
24 the very beginning."
25 That's correct, isn't it?
1 A. Well, the Serb nationalist movement or national movement -- yes,
2 you can say that in a way because as an expert for constitutional law, I
3 took part in the talks under the auspices of the International Conference
4 for the former Yugoslavia, the International Conference for Yugoslavia
5 first and then for the former Yugoslavia, so that's the time-period
6 1991/1992; and these were my duties mostly until 1998, which was the time
7 until which I worked as the deputy foreign minister of Republika Srpska.
8 So you could say that I was a member of that movement. I think in 1996,
9 I became a member of the Serbian Democratic Party. Now, I cannot really
10 interpret the journalist's thoughts or ideas because these are not my
11 words. These are his words.
12 Q. Okay. Then let me ask you one last thing before the break, if I
13 may, which reflects your words. The question from Mr. Janjic was: "What
14 do you as a legal specialist think about The Hague trial of Serb
16 You said, according to him: "It is completely clear that this is
17 an attempt to break the morale and ethics of the Serb nation and place it
18 at the very bottom of the historical and civilizational pit; an attempt
19 to drive the Serb nation to self-hatred and create in it a feeling of the
20 absurdity of its own existence and the futility of any struggle. Also,
21 it is an attempt to decapitate the Serb nation in the Serb republic by
22 destroying its leaders. It seems that someone has to replace Germany and
23 the German people in that historic role. Numerous legal and political
24 problems of that Tribunal and the trial itself have still not been
25 resolved. It's impossible to make the Serb nation guilty of genocide
1 because it was defending itself there and had no intention of destroying
2 other nations; it never did. This holds true for its political and
3 military leaders. I think that this completely senseless and pale
4 attempt at a rerun of Nuremberg will not succeed."
5 That's what you said, isn't it?
6 A. If you allow me, this sounds like some of the views that I
7 expressed, and I don't want to keep it a secret. Now, whether I phrased
8 it quite exactly in those terms I can't tell you, but for the most part
9 this corresponds to my views of some elements of the pre-war, war, and
10 post-war developments in these areas. And of course, I'm doing this as a
11 free man because freedom of thought for me and even in areas where there
12 is none is the basic prerequisite for any other freedom and for a free
13 society, so this does sound like my views. Now, whether this is really
14 what I said or whether he really transposed my words the way that I said
15 them, I don't know that. You may know that unfortunately newspaper
16 articles and interviews are rarely authenticated or reviewed before
18 Q. I do. Thank you.
19 MR. HANNIS: This is a good time for the break, Your Honour.
20 JUDGE BONOMY: It is.
21 Professor, we need to have a break at this stage. It's routine.
22 It's for 20 minutes. Could you leave the courtroom, please, with the
23 usher while we have this break, and we'll resume at five to 11.00.
24 [The witness stands down]
25 --- Recess taken at 10.33 a.m.
1 --- On resuming at 10.58 a.m.
2 [The witness takes the stand]
3 JUDGE BONOMY: Mr. Hannis.
4 MR. HANNIS: Thank you, Your Honour.
5 Q. Professor, now I want to turn to your report, which is our
6 Exhibit 2D239, I believe, and I want to talk first about annex 1, which
7 has to do with territorial autonomy. This is kind of complex and
8 difficult for me to follow, so I'll try to ask you just a few questions
9 in layman's terms. Would it be fair to say that between 1968 and prior
10 to 1988 that the autonomous provinces of Kosovo and Vojvodina enjoyed a
11 very high level of autonomy, so high, in fact, that they were pretty much
12 on an equal footing with the republics in the former Yugoslavia? Or is
13 that too simplistic?
14 A. Well, as usual, if it's simple, it's bound to be complicated.
15 Let me try and sum up in the briefest possible terms as follows: Perhaps
16 we should first address the issue of what autonomy is, whether there is a
17 universal type of autonomy, whether there is one measure, one content
18 that would allow us to measure all the other phenomena that could be
19 termed autonomy. But it would be pointless in this case. All I'm trying
20 to stress here is that there is a problem of how one understands it, even
21 if we use the same terms. If you allow me, I will answer. A famous
22 professor, we share the same name, he was famous and very prominent in
23 the former Yugoslavia. He said always whenever there was a debate, Our
24 first task is to define the terms lest we should use the same words to
25 talk about different things or different words to talk about the same
1 things. And you could say that the autonomous province of Vojvodina and
2 the autonomous province of Kosovo and Metohija and then later on Kosovo
3 in the period that you referred to - well, that period could further be
4 divided into subperiods - did have the constitutional position that in
5 some respects was similar to those of other units, similar but not the
6 same. I say that advisedly because although there were similarities,
7 there were also some differences. Only federal units under the
8 constitutions that were in force in Yugoslavia at that time were entitled
9 to self-determination. Of course, the issue was what the right to
10 self-determination entails, whether it entails the right to secession.
11 Similar to that was the constitutional position of peoples and ethnic
12 minorities. Of course, we could talk about the relationship between the
13 Socialist Republic of Serbia, as the federal was called at that time, and
14 the socialist autonomous provinces that were part of it, and we could
15 also conclude that there was a high degree of similarity with some
16 differences. So there was a high degree of similarity but there were
17 some fundamental differences, the key being the fact that the territorial
18 and political autonomies, the two that existed in Serbia, did not have
19 the right to self-determination.
20 Q. But during that period, the autonomous provinces each had their
21 own constitution?
22 A. Not from the beginning, only at a later stage. First, they had
23 the constitutional laws when the 1968 constitution was amended, and then
24 they were given right to their own constitutions. I do apologise for
25 this correction.
1 Q. And during this time-period they also -- and I'm primarily
2 interested in Kosovo, obviously. They primarily got the right to have
3 their own Supreme Court, correct?
4 A. Yes, under the 1974 constitution, that is correct. They had the
5 right to set up their own courts as part of their judiciary government in
6 the territory of their province, which was in accordance with the way in
7 which the state then was organized.
8 Q. And during this time-period, Kosovo had its own assembly and own
9 Executive Council, which had the right to initiate proceedings before the
10 Constitutional Court of Yugoslavia?
11 A. Yes, they did have the right to initiate proceedings in certain
12 cases before the Constitutional Court of Yugoslavia and the
13 Constitutional Court of Serbia.
14 Q. And at page 14 of your report in English, you talk about the
15 province got basically the right of veto regarding changes or amendments
16 to the federal constitution; is that correct?
17 A. Yes, yes. In this aspect their position was the same as the
18 position of the federal units because the SFRY constitution could only be
19 amended with the approval of the assemblies of the republics and of the
20 autonomous provinces.
21 Q. And on page 16 in the English of your report, you talk about
22 "Since they now were able to participate in changing the SFRY
23 constitution on the principle of unanimity, the provinces like the
24 republics have ultimate responsibility, which is the most important
25 component of the right to self-organizing."
2 A. Let me just read it first. I do apologise. I'm just checking to
3 verify. What do you mean the responsibility? The responsibility of
4 which the most important component was the right -- which responsibility
5 are you referring to, the ultimate responsibility?
6 Q. I don't know. I'm just reading the English translation. It
7 says: "And since they participate in changing" -- and I don't know what
8 the B/C/S page is. Maybe Mr. Petrovic --
9 A. No, no, you can say it in English. Please, do say it in English.
10 Q. In English, it says: "And since they participate in changing" --
11 A. Could you please give me the paragraph and the line.
12 Q. Okay. On page 16 of the English. It's the second paragraph, and
13 it's the last sentence in that paragraph. Do you find it?
14 A. [In English] "And since they participated ..." [Interpretation]
15 Is it that one you mean?
16 Q. Yeah. And there's a reference to "ultimate responsibility"
18 A. Just a moment. Let me compare it to see whether the translation
19 is correct because there are usually problems.
20 MR. PETROVIC: [Interpretation] That's page 22, first paragraph in
21 the Serbian version.
22 MR. HANNIS: Thank you.
23 THE WITNESS: [Interpretation] No, the translation is not correct.
24 The translation is not correct, the English translation. In fact, I used
25 the term "kompetenz" from the German legal theory. I think that there is
1 a similar legal term in the English language. So they have the
2 jurisdiction to have jurisdiction. Under the German theory of
3 federalism, that would pertain only to the federal state. Here, it went
4 one level down to the federal unit and the autonomous province. It's a
5 mistake in translation, but you can't really blame the translators
6 because these are technical terms.
7 JUDGE BONOMY: Professor, would you now read the sentence in
8 B/C/S slowly, and we'll have it clarified by the interpreter.
9 THE WITNESS: [Interpretation] "And since they participate in
10 amending the SFRY constitution on the principle of unanimity, the
11 provinces have, as do the republics, the competence of the competence,
12 "nadleznost nadleznosti," which is the most important component of the
13 right to self-organizing.
14 "So the autonomous province has the competence of the competence
15 over itself, which is atypical. If you do a comparative study of various
16 forms of autonomy, there is no historical precedent in which an autonomy
17 has this "kompetenz kompetenz" kind of competence to decide on how it
18 would organize itself. Everywhere, it is connected to the state, and it
19 is the state that prescribes how the political and territorial autonomy
20 will be organized. It is the competence of the state. It does so in its
21 constitution or by its constitution and laws. Unlike this solution,
22 which is quite usual, there are some" --
23 JUDGE BONOMY: I just wanted a translation. Thank you very much.
24 Mr. Hannis.
25 MR. HANNIS: Thank you.
1 Q. Okay, Professor. The point I'm trying to get to is that from
2 this position that existed in Kosovo and Metohija prior to 1989, this
3 high level of -- what I call this high level of autonomy, there were
4 changes made in the constitution of Serbia, and then there were the
5 events on the 23rd of March, 1989, in the Assembly in Kosovo. And after
6 that, Kosovo had what I would call a much reduced level of autonomy.
7 Would you agree with that general statement?
8 A. Well, again, I can say that sometimes we're using the same words
9 to refer to different things. In 1988, changes were made -- or rather,
10 amendments were made to the SFRY constitution, and some of these
11 amendments concerned the position of the provinces in the Republic of
12 Serbia. These amendments to the federal constitution were made precisely
13 for the reason -- or rather, precisely in order to eliminate elements
14 blocking the legislative and executive power in the Republic of Serbia in
15 relation to Article 301 of the constitution referring to laws enacted by
16 Serbia for the territory of the entire republic. The goal of these
17 amendments - and this was beyond dispute - was to remove impermissible
18 blockades in the functioning of the republics so that amendments were
19 made to the Serbian constitution, and there were many amendments, but
20 only four or five related to the status of the autonomous provinces
21 within Serbia. And it was stated there that the position of the province
22 in the Federation cannot be changed by that constitution, but the
23 position of the province within Serbia was changed, which actually got
24 Serbia out of this situation where its work was being blocked so that
25 judicial control of laws and bylaws on the territory of all of Serbia was
1 put in place. Nowhere is it written down that this part of the position
2 of the autonomous provinces within Serbia is inalterable, nor is it
3 guaranteed as a right, and it was Serbia that had the "kompetenz
4 kompetenz" power in relation to the organization of its state government.
5 Q. No, I understand that. But would you not agree with me that a
6 reasonable outside observer would look at the difference between 1998 and
7 1990 and say that Kosovo, the province, does not have the same level of
8 autonomy that it had earlier, that it has been reduced. Can you agree
9 with that general proposition?
10 A. Even an unreasonable observer could notice that there had been a
11 change, but anyone versed in the problems of constitutional law could not
12 say that autonomy had been reduced because the kind of autonomy - and let
13 me use your expression rather than mine - the kind of autonomy that
14 existed in constitutional and legal terms was atypical for both
15 provinces. There were not many such experiences with federalism and
16 regionalism, so serious evaluation would be that the contents of the
17 political territorial autonomy under the amendments of 1988 and 1989 and
18 the federal and republican constitution were reduced within -- to within
19 the reasonable limits of what was known and what had already been seen in
20 constitutional law [as interpreted]. In any case, it's correct that the
21 provinces did not have some of the powers they had had before, but I
22 would not agree with you that their autonomy had been reduced. It was
23 only that something that in comparative legal terms had been warped or
24 overemphasized in that autonomy was withdrawn.
25 JUDGE BONOMY: Mr. Petrovic.
1 MR. PETROVIC: [Interpretation] Your Honour, by your leave, page
2 44, line 13, the professor said what was already seen in comparative
3 constitutional law.
4 JUDGE BONOMY: Thank you.
5 MR. HANNIS:
6 Q. Well, Professor, maybe it's a matter of semantics, but if money
7 is withdrawn from my bank account, I view my bank account as being
8 reduced. Do you agree with me?
9 A. Yes, but it's not the same situation.
10 Q. Okay.
11 A. This was not a provincial bank account that could be reduced.
12 They had more -- they had been given more, actually, than they should
13 have had. So these are two different situations, and we can't view them
14 in the same terms.
15 Q. Okay. Let me ask you this way. After 1990, was Kosovo permitted
16 to have a constitution of its own? Yes or no?
17 A. Was Kosovo permitted to have its constitution? Well, Kosovo had
18 its statute, which was the legal document pertaining to its organization.
19 Likewise, Vojvodina, as you view it, did not have the right to its own
20 constitution, and it enacted a statute, and it was quite peaceful
21 until -- well, it has been peaceful up to now.
22 Q. Right. But before 1988, Kosovo was permitted to have a
23 constitution; after 1990, they only had a statute, not a constitution,
25 A. Yes, but you have to bear in mind when drawing this comparison
1 that Kosovo had had a statute before that also.
2 Q. No. Please, just try to answer my questions. I'll try to keep
3 them simple. Before 1989, during that time-period between 1974 and 1989,
4 Kosovo was permitted to have a Supreme Court, but after 1990, they were
5 not, right?
6 A. Of course, but Kosovo hadn't had the Supreme Court before that.
7 Q. You answered my question when you said "of course." I'm talking
8 about what level of autonomy they had, what things they had prior to 1990
9 that they no longer had after 1990. After 1990, they no longer -- Kosovo
10 no longer had the right of veto of the federal constitution, correct?
11 A. After 1990, after 1990, Kosovo did have the right of veto to the
12 federal constitution for as long as the federal constitution applied.
13 But the problems were of a different nature then because the federal
14 state was not functioning at the time for reasons which are probably not
15 of interest in these proceedings.
16 Q. Okay. You then talk about the period in the autonomous provinces
17 in 1998 [sic] to 1990 at page 20 of the English, and the first paragraph,
18 you say: "The position, organization, and role of territorial autonomies
19 in the constitutional order of Yugoslavia and Serbia, the Constitution of
20 the Republic of Serbia, the Constitution of Vojvodina and Kosovo, which
21 were adopted in 1974, elicited numerous and various debates and demands
22 for change."
23 And based on what you described earlier in your report and what
24 you told us, I can well imagine that that did happen, and that's what led
25 to the events that led to what you talk about, the withdrawal of
1 autonomy, correct?
2 A. What do you mean withdrawal of autonomy? What point of time are
3 you referring to, and what do you mean exactly?
4 Q. The changes that occurred as a result of the changes to the
5 Constitution of Serbia.
6 A. What year are you referring to?
7 Q. I'm talking about the 1989 amendments and the vote that took
8 place in the Kosovo Assembly on March 23rd.
9 A. The amendments of 1989 did not withdraw autonomy. Kosovo
10 continued to have the status of a political and territorial autonomy,
11 just as Vojvodina did, but with reduced competencies corresponding to the
12 actual position of these two provinces, which with some small differences
13 corresponded to what they had had prior to 1968. One could [as
14 interpreted] say that the autonomy of Kosovo and Metohija had been
15 withdrawn if Kosovo and Metohija had ceased to exist or if it ceased to
16 have the kind of rights that belonged to autonomous provinces generally.
17 So I cannot agree with you when you say that territorial autonomy was
18 withdrawn by the amendments of 1989 because it simply does not correspond
19 to the truth when one looks at the theoretical thought about the position
20 of autonomy.
21 Q. Stop. I don't think --
22 JUDGE BONOMY: Just a moment, Mr. Hannis.
23 Mr. Zecevic.
24 MR. ZECEVIC: I'm sorry, Your Honours. 47, 5, 6, it is obvious
25 that from the context of the answer this doesn't make sense: One can say
1 that the autonomy of Kosovo and Metohija had been withdrawn. I believe
2 witness said quite contrary.
3 THE INTERPRETER: Interpreter's correction: One cannot say.
4 MR. ZECEVIC: Maybe the witness should be instructed to talk
5 slower so the interpreters can --
6 JUDGE BONOMY: The interpreter has corrected it. Thank you.
7 MR. ZECEVIC: Oh. Thank you.
8 MR. HANNIS: Thank you.
9 Q. Thank Professor, I stopped you because I don't believe in my
10 question I used the term "territorial autonomy." Let me ask you, though,
11 in your report on page 22 where you're talking about the autonomous
12 provinces in the constitutional order of the Republic of Serbia since
13 1990, the last sentence in that first paragraph says: "According to the
14 Constitution of Serbia, Article 6, in the Republic of Serbia there exists
15 the autonomous province of Vojvodina and the autonomous province of
16 Kosovo and Metohija as forms of territorial autonomy."
17 Can you give me a brief description of what territorial autonomy
18 means. Does that just mean you have a border that can't be changed, or
19 is it something more?
20 A. There's an express provision in article 6 of the constitution,
21 which says that: "In the Republic of Serbia, there is the autonomous
22 province of Vojvodina and the autonomous province of Kosovo and Metohija
23 as forms of territorial autonomy."
24 In comparative constitutional law, it's usual for the very
25 existence of autonomy to be established by the constitution because,
1 thereby, the highest legal guarantee is provided of its existence because
2 there is no law higher than the constitution. And, likewise, there is no
3 greater guarantee than the one provided by the constitution.
4 Q. And the guarantee is for territorial autonomy. My question was:
5 What is territorial autonomy? Does that just mean you have a nonviolable
6 border that can't be changed?
7 A. Territorial autonomy rarely in the world means that there are
8 borders which cannot be violated or changed. The unchangeable borders of
9 territorial autonomy do not exist anywhere. There can only be a
10 provision stating that the territory of a political territorial autonomy
11 can be changed only with the agreement of the autonomy itself. But in
12 constitutional history, there is no example of an autonomy, with one
13 exception up north in history, which had certain elements, but there is
14 no example of a territory being unalterable as regards its existence.
15 Q. Well, can you tell me what the term "territorial autonomy" means
16 in Article 6 of the Constitution of the Republic of Serbia? What does
17 that mean for Kosovo?
18 A. For Kosovo, it means what is in norms 108, 109, 110, 111, and 112
19 of this constitution because the norm in Article 6, the provision in
20 Article 6, has a principled nature. It's a general nature, so the
21 initial provisions are general provisions, and then after that in section
22 6 entitled "Territorial Organization," the first part, the first
23 subsection is entitled: "The Autonomous Province of Vojvodina and The
24 Autonomous Province of Kosovo and Metohija," and that is what is meant by
25 a legislator when he guaranteed the existence of the autonomy in Article
2 Q. Let me move on to another --
3 JUDGE BONOMY: Wait. You understand the answer, do you?
4 MR. HANNIS: No.
5 JUDGE BONOMY: Does it not just mean that there's autonomy on a
6 certain territory?
7 I'm reluctant to put words in the witness's mouth when he's been
8 asked the question a number of times.
9 Can you not help Mr. Hannis by just telling him what territorial
10 autonomy means as a concept?
11 THE WITNESS: [Interpretation] Everything that is listed in these
12 provisions, Articles 108 to 112, the concept of a political territorial
13 autonomy, is reached in the following way: The position of certain
14 territories in a certain state is compared on the one hand with the
15 position of the federal units in the state, if they exist, or if they
16 exist in the world comparatively --
17 JUDGE BONOMY: I think you've now answered it, and it does say on
18 page 16 in the English, Mr. Hannis: "On its territory, the province is
19 the alter-ego of the republic ..."
20 So it does appear that territorial is simply an indicator of the
21 territory over which autonomy is exercised.
22 MR. HANNIS: Thank you.
23 Q. I would like to move on, Professor, to what's annex 2 of your
24 report. This is the portion dealing with the federal cabinet in the
25 Federal Republic of Yugoslavia, and in your introductory paragraph you
1 explain that your analysis in paragraph 4 -- you explain your analysis
2 will be carried out using the legal dogmatic method, and in the last
3 paragraph under that introduction section, you say: "Other methods of
4 analysis can only be second rate and supplemental."
5 You mention the Anglo-American legal system where the necessary
6 reliability and precision of conclusions is achieved by the primary use
7 of non-legal methods requiring the method of analysis to be absolutely
8 adapted to the subject of analysis."
9 Maybe I'm biassed. That sounds like a good approach to me.
10 What's wrong with that approach?
11 A. Well, it's not just that. In European continental law when such
12 matters are analysed, the primary thing is the legal source or the legal
13 regulation. It is studied by the dogmatic legal method. So first, its
14 meaning is studied, possible meanings are sought, and one meaning is
15 selected. In European continental law and its system of education, for
16 example, you will find that constitutional law is studied much more using
17 the text of the constitution and so-called organic laws, whereas in the
18 USA, if you are from the USA you will know that it is studied more from
19 the decisions of the constitutional court.
20 Also, you will find there that the court in the USA, especially
21 the courts when they are carrying out constitutional control, they say
22 that there are political questions that the court will not deal with.
23 You will not find such a situation before the constitutional courts in
24 continental Europe because the legal dogmatic or legal normative method
25 is primarily applied. So these are different legal civilizations or
1 legal cultures. It's not a matter of one being superior to the other.
2 It's like the old discussion as to whether it's better to create law by
3 legislation or by precedent. That is a discussion which I think is out
4 of place here.
5 Q. Okay. Let me move, then, to section 2 where you talk about the
6 position and the federal cabinet in the organization of the government in
7 the federal republic. In the first paragraph, you mention eight -- in
8 addition to the federal cabinet eight explicitly named state organs
9 starting with the Federal Assembly and so on. You say that "In addition
10 to these nine in total explicitly named and established state organs, the
11 constitution also establishes several generic and functionally defined
12 state organs called ministries, whose exact number and exact competence
13 are not established in advanced and permanently, but rather depend on the
14 federal cabinet."
15 So, for example, we know that at various times in Yugoslavia
16 there was a Ministry of Foreign Affairs, a Ministry of Justice, a
17 Ministry of Defence. Are those not permanent ministries and they only
18 appear depending on the particular federal cabinet that's in power?
19 A. The answer to your question lies in the following explanation.
20 Tradition, or rather, the tradition of constitutional legal regulation in
21 the second Yugoslavia from 1945 to 1992 was in one period that the
22 constitution expressly prescribes the number and kind of federal
23 ministries, and later on this was abandoned, and then the number and kind
24 of federal ministries was regulated by law. Therefore, in establishing
25 the organization of executive -- of the executive government, the
1 fundamental role was played by the legislative government [as
2 interpreted]. Why? Because in that period in Yugoslavia, state
3 authority was founded on the principle of the unity of government in the
4 hands of the legislative body, the representative body. The constitution
5 of 1992 rests on the principle of the division of power and on the
6 chancellor principle. The influence of the legislative government on the
7 forming and establishing of the executive government should not have been
8 large. Any federal prime minister could -- I'll answer your question --
9 Q. [Previous translation continues]... well, I'm not sure you are.
10 I just asked are those not permanent ministries, and do they only appear
11 depending on the particular federal cabinet that's in power? Maybe I
12 should break it in two parts. Are those not permanent ministries?
13 A. That's not what it's about. Every federal minister could
14 introduce a new ministry or abolish an existing ministry.
15 Q. Even -- wait, wait --
16 A. -- that --
17 Q. Even one of the eight or nine explicitly named bodies, or are
18 those not ministries?
19 A. What are you referring to? What bodies?
20 Q. What you referred to as explicitly named state organs. So I
21 guess the federal state prosecutor is not a ministry, right?
22 A. That's right, yes.
23 Q. Okay. So those could not be --
24 A. Of course.
25 Q. Those specifically named constitutional bodies could not be
1 abolished by the cabinet or the prime minister, right?
2 A. No, because there's the division of power. When you say division
3 of power or the branches of government, this cannot influence the
4 judicial, executive, and legislative branch of government. So the state
5 organs that are named are constitutional organs, and the executive
6 authority was in the hands of the federal government. The ministries and
7 other federal organs and organizations, what it says here is the federal
8 ministries, the federal organs and organizations. It doesn't say that by
9 chance because in Serbia - and that's how it was in Montenegro and still
10 is - there are three kinds of administrative organs who are not
11 exercising executive power. They have an administrative function, and
12 these are ministries, independent and non-independent federal organs, and
13 the so-called independent administrative organizations. They are there
14 to implement the laws, to implement legislation. Their number and kind
15 depends on the acts of the federal government. The federal government
16 has the right to organize itself as the executive branch of government.
17 It can say how many ministries and how many administrative bodies and
18 independent administrative organizations there will be.
19 Q. Okay. You list --
20 MR. HANNIS: Sorry, Mr. Zecevic.
21 MR. ZECEVIC: I just have an intervention in the transcript
22 before we move on. It's 52, lines 14 and 19. Instead of legislative
23 government, it should be legislative body, because that is what the
24 witness has said.
25 JUDGE BONOMY: Thank you.
1 MR. HANNIS:
2 Q. Now, in that Article 2, you list the eight other explicitly named
3 state organs, and on page 5 of the English in this report, you say:
4 "Based on the aforementioned constitutional provision, it can be
5 concluded that no federal organ has a dominant role over another."
6 And I take it you mean based on what it says on paper, but in
7 real life in 1998 and in 1999 that was not the case in the FRY, was it?
8 Did not the president of the republic, Mr. Milosevic, have a dominant
9 role over some of those other state organs, like the Yugoslav Army, the
10 Supreme Defence Council, the national bank? I'm talking about de facto
12 A. Legal norms were the subject of my expertise, regulating
13 questions pertaining to political territorial autonomy and questions
14 related to the position of the federal government and also its relations
15 with other constitutional and legal organs. So in terms of factual
16 questions, in terms of how power was exercised, I did not deal with that,
17 I did not prepare to speak about that, and after all, I'm not
18 methodologically equipped to deal with it here and now, this particular
19 question. So even though I have the best of intentions, I cannot give
20 you an answer to that question because it goes beyond my expertise.
21 Q. Well, I'm asking you as a non-expert and as a citizen who lived
22 in the territory or in the area at the time. Can you answer it that way?
23 A. First of all, I did not live in that area at the time. I lived
24 in Pale, near Sarajevo, and I worked there. Secondly, I am giving
25 answers here as an expert, not as a citizen. I hope that you understand
1 my position.
2 Q. Well, are you -- if the Judge asked you to answer the question,
3 would you provide the answer, then, as a non-expert, or are you refusing
5 A. If the honourable Judge asked me, I would give the same answer
6 because this is the subject of my testimony. I did not come here as a
7 fact witness; I came here to testify about facts pertaining to law, legal
8 facts based on legal norms, I could say, conditionally speaking.
9 Q. Okay. Then.
10 JUDGE BONOMY: Well, there's no point in my remaining silent on
11 this at the moment because I have a list of questions which will tread
12 into actuality rather than theory, and you're telling us now that you
13 won't be prepared to answer these questions. For example, I'll be
14 interested to look at what appears to be the position in theory as
15 contrasted with what might appear to have been the position in practice,
16 and you say you would not deal with that sort of question.
17 THE WITNESS: [Interpretation] As far as I understand my testimony
18 and the invitation addressed to me by the Defence, I am dealing with
19 these major constitutional law issues. I really did not study those
20 questions and those relations that the honoured Prosecutor is talking
21 about, so that is the truth. If I was called here as an expert on norms
22 and the system, it would be proper for me to give answers to that. I was
23 not called here, and that wasn't the subject of my expertise, either, to
24 compare the normative and the actual. After all, that would be a major
25 expertise that could not be carried out by one person, but rather an
1 entire team of people, and this expertise would take a rather long time
2 if one wanted to be serious about it and close to the truth.
3 JUDGE BONOMY: Mr. Fila.
4 MR. FILA: [Interpretation] Well, let me take the blame --
5 MR. HANNIS: Do we need to have the witness leave the room?
6 MR. FILA: [Interpretation] No, no. So let me take the blame for
7 this. I intentionally asked for an expert outside the territory of
8 Serbia, or rather, Yugoslavia who knows about constitutional matters so
9 that he could tell us what it should have been like. According to the
10 system that I work in, you will establish what things actually were.
11 Now, if my thinking was erroneous, then I'm to be blamed because there
12 are so many professors in five or six law schools at universities in
13 Serbia, and they could have all come here as expert witnesses; however, I
14 chose, an expert witness so that we would have a clear-cut situation as
15 to what it is supposed to be like. Unfortunately, we are all aware of
16 what it was like. So that is for you to establish. That is what I
17 thought. So mea culpa, the witness did not live in Serbia at the time or
18 in Montenegro, for that matter. Mea culpa, as we say.
19 JUDGE BONOMY: Thank you, Mr. Fila.
20 Let me give you an example, Professor. You've told us that under
21 the FRY constitution, the president of the FRY had very few powers. Now,
22 as a matter of fact in the period from 1997 onwards, do you accept that
23 the most powerful person in Yugoslavia was Slobodan Milosevic?
24 THE WITNESS: [Interpretation] You see, as a researcher, as a
25 university professor, I was taught to utter my judgements very cautiously
1 when I'm trying to deal with research and when I'm involved in scholarly
2 matters. Of course that I can give you an answer straight away, this or
3 that kind of answer, but that would be mere speculation. In order to
4 give an answer to that question, I would have to look at a series of
5 documents from these or other archives. I would have to look at
6 correspondence, programmes, documents, and it is only then that I could
7 answer that question --
8 JUDGE BONOMY: Well, let me put it to you another way just as a
9 citizen of the world. Do you accept that world leaders at that time
10 regarded Slobodan Milosevic as the most powerful person in Yugoslavia,
11 rightly or wrongly?
12 THE WITNESS: [Interpretation] I read in the newspapers something
13 along those lines, but I did not talk to any one of them. I did not talk
14 to foreign diplomats about that question, so I did not participate in
15 that kind of international politics. So at this point in time I'm not
16 qualified to discuss the matter in that way.
17 JUDGE BONOMY: Well, there is an issue that does concern this
18 Tribunal, which doesn't live in the theoretical world but tries to live
19 in the real world. And if there is a perception in the world in general
20 that he is Mr. Yugoslavia and you are a constitutional law expert that
21 considers that the terms of the constitution give him limited powers, do
22 you not think it is a legitimate question to be put to you as an expert:
23 How could it be that he could wield power way beyond that provided in the
25 THE WITNESS: [Interpretation] I can discuss that with you only in
1 the domain of norms and examples. Now, whether I am good-looking and
2 strong, well, somebody may say that I am, and others may say I'm not. If
3 you're talking about the powers that Mr. Milosevic exercised when he was
4 president of the republic, I do beg your pardon, Your Honour, but then
5 you have to tell me what this is exactly about, whether this does fall
6 under a norm, and then I will tell you whether that is in accordance with
7 the constitution. However, that is only the language and the terrain of
8 legal documents. However, as for this kind of analysis and expertise, I
9 did not prepare for that because the Defence did not ask me to do that.
10 JUDGE BONOMY: Well, you haven't answered my question, but
11 insofar as your answer may have a bearing on the question, are you saying
12 that my -- that to pose the question I posed would not be legitimate?
13 THE WITNESS: [Interpretation] You mean to me as an expert
14 witness --
15 JUDGE BONOMY: Yes.
16 THE WITNESS: [Interpretation] -- regarding these two questions
17 and the norms related to that? I hope that you will understand that what
18 my belief is exactly what you said, precisely due to the subject matter
19 that I'm providing expertise on. By your leave, it would be legitimate
20 to put the question to me in the following way: A document is shown to
21 me, and then I try to give my estimate and say whether that is within the
22 constitution or not. All the rest is really speculation. Sometimes it
23 seemed to me that some of my professors were very wise, and later on when
24 I matured myself, I realized that they were not as smart as I thought
25 they were although they were smart. Now, it's a question of moment; it's
1 a question of impression. However, we are trying to go into serious
2 analysis here. If you tell me Slobodan Milosevic passed a law and said
3 that was the law and then you asked me whether that was in accordance
4 with the constitution, I will say straight away no because the president
5 of the republic is not entitled to exercise judicial authority. That's
6 the kind of analysis I'm prepared to go into because that is why I am
7 here. As for beyond that, I cannot answer questions like that.
8 [Trial Chamber confers]
9 JUDGE BONOMY: Does it follow from what you've said so far that
10 you cannot say that the conduct of President Milosevic throughout his
11 period in power fell within the terms of the constitution?
12 THE WITNESS: [Interpretation] Your Honour, you will have to tell
13 me what you mean exactly, what legal document. I can only talk about
14 documents. Lawyers deal with power, and political sociologists deal with
15 might. I'm a lawyer. Power or might can be exercised in different ways,
16 as influence, but I did not go into that kind of analysis. I only deal
17 with analysis through law and through the language of law.
18 JUDGE CHOWHAN: Well, I'm going to, Professor, ask you a question
19 in a more simpler way to understand and appreciate what may be your
20 information. Now, you're telling us about those limitations which are
21 enshrined in the constitution with respect to the powers of the
22 president. Okay. These are now laid, enshrined in the constitution.
23 Well, there is another issue, whether the president kept himself within
24 the periphery of those limitations or did he transcend and overstep.
25 Have you any information on that? Did he keep himself within those
1 limitations or he did not; he overstepped, circumvented, cut corners here
2 and there. Can you speak on that subject, or you cannot? I mean, this
3 may help us in appreciating the realism of the constitution and not what
4 is just the black-lettered words. Thank you.
5 THE WITNESS: [Interpretation] Except for legal sources, or
6 rather, the constitution that is attached to certain laws and some
7 bylaws, I did not study documentation or archives about the work of these
8 organs. I did not study any documents of any kind pertaining to the
9 mutual relations among these organs. So, quite simply, I do not have
10 that kind of information in my hands.
11 Finally, the Defence told me that I was not called for that kind
12 of expertise. No documents of that kind were placed before me, and there
13 was no agreement to that effect, that I would be providing expertise on
14 that. So, quite simply, I don't have that. As for my own impressions
15 about this or that person, I really wouldn't go into that. That's not
16 what I do as an individual let alone as a researcher. This is the way I
18 JUDGE CHOWHAN: I'm sorry. Anybody who claims himself to be an
19 expert on the constitution shall also speak about whether the
20 constitution was being followed or it was not being followed because
21 obviously when he's reading the constitution he's also reading the areas
22 where it was followed or where it was not followed. That was the simple
23 question because anybody -- all the constitutional experts you would see
24 who have written books on constitution would say, Well, this was being
25 followed or this was not being followed. This is the law whether they
1 adhered to it or didn't adhere to it. General way. It's nothing to be
2 specific about nor to place you in any difficulty. If you have a view,
3 good enough; if you say, well, you are oblivious to all that unless you
4 see that, then what have you been reading to be an expert to tell us
5 whether this in reality was something followed that way? I mean, this is
6 something which bothers me a little, if you can speak on that. Thank
8 THE WITNESS: [Interpretation] I can repeat what I have already
9 said, but I'm not going to do that because that is pointless, isn't it?
10 I repeat, I did not have this kind of documentation before me. I was not
11 looking at the documents that Mr. Milosevic had signed. If somebody
12 claims that there is a document through which he overstepped his
13 authority, then I'd have to have this document shown to me. I'm not the
14 Prosecutor here, you see. I can provide expertise only on matters that
15 are contentious and where people tell me, Yes, it seems to us that this
16 document was adopted as authority was overstepped. I'm an expert in
17 that. I can provide my expert opinion on that, but if you're asking me
18 whether Mr. Milosevic or somebody else had the power or might to resolve
19 things by simple glances, that is terra nostra to me. I have no
20 knowledge about that. If you're asking me whether he had a Praetorian
21 Guard or not, I cannot judge a man that way even in a restaurant or in
22 the street let alone in this kind of a situation. I hope that you
23 understand my position. As for -- well, we could talk now about what
24 different authors in the field of constitutional law have written, but,
25 you know, we scholars are used to looking at all this stuff until our
1 eyes pop out, but we just have to see things in order to be able to
2 discuss matters. Whoever speaks in the field of law a priori has missed
3 his calling, I believe.
4 Your Honour, Judge Bonomy, if I may address you. May I correct
5 myself in respect of an answer I gave you to one of your questions in the
6 first part?
7 JUDGE BONOMY: Yes.
8 THE WITNESS: [Interpretation] As a teacher of young students,
9 when I was conducting examinations, I was not really inclined to accept
10 self-corrections, but ultimately I would accept them. In the Federal
11 Republic of Yugoslavia - I've been thinking about this during the break -
12 there was a Federal Ministry of the Interior, but it was reduced only to
13 international police cooperation or the appearance of the federal state
14 in international police cooperation when only the federal state could act
15 rather than the federal units and the like. I kindly ask you to take
16 into account this self-correction of mine.
17 JUDGE CHOWHAN: Professor, what do you kindly understand -- how
18 do you distinguish between constitution and constitutionalism?
19 THE WITNESS: [Interpretation] Well, now we are going into
20 theoretical debates and differences in legal civilizations. The country
21 that you come from, Your Honour - it's Pakistan, I believe - in part it
22 is inclined towards Anglo-Saxon tradition due to historical
23 circumstances. Then I can understand the distinction that you're making
24 between a written constitution and a live constitution, as people say in
25 my legal culture.
1 After all, a great deal was written about that in the 1950s and
2 the 1960s when constitutions were discussed, those that were alive and
3 those that were not in part. However, regrettably that debate was
4 coloured by ideological hues, regrettably. At that time, there was a
5 free world and an enslaved world, so this debate could not yield full
6 results. One knows how a constitution is defined in European continental
7 theory and everywhere where it appears in a written form.
8 On the other hand, one knows what constitutionality is in
9 constitutionalism in countries that do not have a written constitution.
10 In the country where I was born and where I lived until the age of 35,
11 what prevailed was the tradition of written constitutions, and
12 constitutional law was studied by studying the constitution and
13 regulations dealing with the way in which the state and government
14 function. Of course, there are human rights and freedoms, too, but that
15 is something that is unavoidable. It is precisely for that reason that
16 my analysis is the way it is, and it has to do with norms, legal sources,
17 that is.
18 JUDGE BONOMY: One of the things I've learned this morning is
19 that you were a deputy foreign minister of the Republika Srpska during
20 part of the period when Milosevic was the president of the federal
21 republic. During the break, I'll consider the extent to which I wish to
22 press you on matters beyond your expertise.
23 Meanwhile, we'll continue with the cross-examination by
24 Mr. Hannis, and if the issue arises again and has to be adjudicated on,
25 then we'll take the break early to consider it.
1 MR. HANNIS: Thank you, Your Honour.
2 Q. Professor, did you ever hear of a body called the Joint Command
3 for Kosovo and Metohija that existed in 1998 or 1999?
4 A. I really have to admit that I have not heard of it. Also, an
5 organ under that name is not mentioned in the relevant legal sources
6 regulating the field of defence and the Army of Yugoslavia.
7 Q. Based on your expertise and your study, there's nothing in the
8 constitution that would provide for such a body; is that correct?
9 A. I can say to you that there is no such organ. There is no such
10 organ in the constitution, in the Law on Defence, or in the Law on the
12 Q. Okay. How about a body called the operations inter-departmental
13 staff for suppressing terrorism or combatting terrorism?
14 A. Again, I really haven't heard of that body, and that body is not
15 mentioned in the kind of legal sources that I was telling you about.
16 Q. Okay. Prior to coming to testify here, did you follow any of
17 this trial or the Slobodan Milosevic trial by watching on TV or reading
18 newspaper accounts?
19 A. I really did not follow trials on television because for years
20 I've been watching sports only on TV and a film or two. I read some
21 things in the newspaper, but you know what it's like. Newspaper articles
22 can be very sparse, and the journalists writing about these things
23 usually only have a general education, at university level, of course.
24 So one cannot rely on everything they write, let alone the precision in
25 the use of words.
1 Q. When did you first become aware that you were likely to come and
2 testify as a witness at this Tribunal?
3 A. I think that it's been a couple of years now. I think -- I think
4 it's been two years now, a year and a half perhaps. I really haven't
5 kept any records on this precisely because this was a difficult period in
6 my life, you remember from the questions you put to me about that, so
7 time seemed to fly.
8 Q. And during that approximate two years, you didn't have any
9 curiosity about the proceedings or the personalities here? You never
10 bothered to see what was happening in this trial, knowing that you were
11 going to be a witness?
12 A. Well, in the broadest possible terms, from the newspapers, if
13 that's of any interest to you. I read Politika daily, regularly, but not
14 all of it, but I have had no interest in that because I have other things
15 that I do in my life.
16 Q. And in dealing with your expert report about the federal cabinet
17 and its relationship with other components of the government and the
18 president of the republic, et cetera, did you have occasion to speak with
19 anybody, such as Mr. Sainovic or Mr. Bulatovic, who had a role to play
20 during 1998 and 1999? Did you talk to any of those people about their
21 jobs or their experiences?
22 A. I'm sorry. Could you please specify. When do you mean? When
23 was I supposed to have talked to them? 1998, 1999, 2002, while they were
24 at large, while they were in Scheveningen? I'm asking you this. It's a
25 bona fide question. I just want to -- want you to help me.
1 Q. Right now I'm limiting my question to since the time you became
2 aware that you might be called as a witness here and in preparing your
3 expert report, did you speak to Nikola Sainovic?
4 A. No, no. This might sound in bad taste, but I agreed with the
5 Defence as to what the topic of my expert report would be.
6 Q. Okay.
7 A. Given the limited topic, I had no call to talk to Mr. Sainovic.
8 Q. You have answered my question. Was it the same answer for
9 Mr. Bulatovic, who was the prime minister back in 1998?
10 A. Yes, the same.
11 Q. And in your -- well, let me ask you one more question before I
12 get to that last one. You may not be aware, we have an exhibit in this
13 case which is P2166. If we could put that up on the screen with the
14 English and B/C/S side by side. I want to ask you a question related to
15 the constitutional authority of the president vis-a-vis other personnel.
16 Professor, this is a document that purports to be the minutes of a
17 meeting on the 29th of October, 1998, at the Beli Dvor palace in
18 Belgrade. It's described as a minutes of the meeting of the operations
19 inter-departmental staff for the suppression of terrorism in Kosovo. The
20 meeting was chaired by the president, Mr. Milosevic, and you'll see among
21 those attending are the president of the Republic of Serbia,
22 Mr. Milutinovic; we have the president of the chamber of citizens of the
23 Federal Assembly, Mr. Minic; we have the deputy prime minister,
24 Mr. Sainovic; we have the minister of interior for the Republic of
25 Serbia, Mr. Stojiljkovic; we have General Perisic as the Chief of Staff;
1 some other military guys; some other police generals. So we have the
2 president of the republic of the FRY, the president of the Republic of
3 Serbia, somebody -- the chairman or the president of the Chambers of
4 Citizens from the Federal Assembly, a deputy prime minister, the minister
5 of the interior for Serbia, these are people from both the federal
6 government and the republic government, from the army and the police;
7 this meeting is chaired by the president. Was there a constitutional
8 provision allowing for Mr. Milosevic to create this kind of body and
9 chair this kind of body? There wasn't, was there?
10 MR. PETROVIC: [Interpretation] Your Honour.
11 JUDGE BONOMY: Mr. Petrovic.
12 MR. PETROVIC: [Interpretation] I think that it would make our
13 work more efficient if the expert would be allowed to look at this
14 document, not just a heading on page 1, but to look at it in its entirety
15 and then perhaps to answer some questions in relation to this document.
16 THE WITNESS: [Interpretation] I've never seen this document
17 before, and I haven't seen any of the documents of this kind, indeed, not
18 a single one.
19 JUDGE BONOMY: Just a moment.
20 Mr. Hannis, what do you say to what Mr. Petrovic says?
21 MR. HANNIS: Your Honour, I'm happy if we can make a copy and
22 take a break now and let him come back and answer our question then.
23 JUDGE BONOMY: Very well. We can do that. We need to have a
24 break around this time, anyway. You'll be given a copy of the document
25 to have a look at during the break, this time for half an hour, and we'll
1 resume at quarter to 1.00.
2 [The witness stands down]
3 --- Recess taken at 12.16 p.m.
4 --- On resuming at 12.53 p.m.
5 [The Accused Lazarevic not present]
6 [The witness takes the stand]
7 JUDGE BONOMY: Mr. Hannis.
8 MR. HANNIS: Thank you, Your Honour.
9 Q. Professor, did you have adequate time during the break to look at
10 that exhibit, P2166?
11 A. Not enough time, but enough to get an impression -- well, I can't
12 go any further than that in this context, but it should be sufficient.
13 Q. And can you make any comment on what you can say based on this
14 document regarding President Milosevic's role in interrelationship with
15 the federal government and these other organs represented by the people
16 attending this meeting on the 29th of October, 1998?
17 A. About the relationship of President Milosevic and the federal
18 government and the people who were present there, I can't tell you
19 anything about that, but I can tell you what my personal opinion is about
20 what I've read with a lot of caveats because there is a lot of other
21 material that is missing, and it would be as follows: So I'm not giving
22 you an answer to the question about the relationship between President
23 Milosevic and the federal government and the people, the officials of the
24 state government who were present there because I don't know anything
25 about that. The document that you gave me - and this is the first time
1 that I see it - I tried to put it in the context of legal norms about the
2 competence of state organs and in the context of legal norms about the
3 documents -- or legal documents enacted by those state authorities. I
4 was able to ascertain, and this is not difficult. If we look at the
5 constitution, the Law on Defence, and the Law on the Army, since the
6 Rules of Service in the Yugoslav Army were not consulted by me and I
7 didn't have an opportunity to look at them before, I ascertained that I
8 am missing the document establishing the operations inter-departmental
9 staff if such a document exists. I was also able to ascertain that
10 within the Law on the Army of Yugoslavia, this organ, if it is an organ
11 indeed - I cannot say that because I don't have the act on its
12 establishment - if such a document exists, this group of people, this set
13 of people, at page 16 in relation to everything that is said here - and
14 let me tell you right in advance that I did not have an opportunity to
15 read everything in detail - did not issue any acts or orders. Under our
16 system, conclusions are not individual legal acts or separate legal acts
17 or orders. This is uncontroversial. In our system, conclusions are made
18 by some administrative organs in some secondary issues. In Article 4 of
19 the Law on the Army of Yugoslavia, it is stipulated - that's paragraph 2
20 - that the president of the republic in performing tasks from paragraph 2
21 of this article shall issue orders, commands, and decisions. The General
22 Staff implementing the --
23 THE INTERPRETER: The witness is kindly asked to read a little
24 bit slower when reading legal documents.
25 JUDGE BONOMY: Professor, could you speak a bit more slowly,
1 please, when you're reading. There's a temptation for all of us to speak
2 much too quickly, then.
3 THE WITNESS: [Interpretation] Yes, you are right, indeed.
4 So the Chief of the General Staff in implementing the statutory
5 documents or legal documents enacted by the president of the republic
6 shall issue rules, orders, commands, instructions, and other legal acts.
7 On the other hand, it is also stipulated in the Law on Defence - please
8 bear with me as I'm trying to find my way in this heap of papers - it is
9 stipulated that the Supreme Defence Council shall issue documents that
10 shall be entitled the defence plan of the country, the decisions in
11 accordance with which the president of the republic shall command the
12 army, shall exercise command over the army, shall establish the strategy
13 for armed struggle, and so on, so that you cannot really find any order
14 or any legal document that would be called a conclusion. On the other
15 hand, it is quite clear that in the Federal Republic of Yugoslavia, as it
16 was at the time, despite the fact that the federalist principle was in
17 force, the federal organs had to eo ipso cooperate with the organs of the
18 member republics, to cooperate with them. The member states had to
19 cooperate with each other, and despite the fact that the government in
20 the Republic of Yugoslavia was set up on the principle of the separation
21 of powers, the organs of the federal state did not operate in isolation,
22 but they also had to cooperate, to consult each other, and so on. On the
23 basis of this document, the document that you've given me, I say it
24 again, on the basis of this document and without having access to any
25 other evidence that pertains to this document, I can only conclude on the
1 basis of what we can read at page 16 and on the basis of the exchange of
2 information that is done here relating to certain military and police
3 actions, this is some kind of a consultative meeting of various people
4 because I really don't have anything on which to base any other
5 conclusion. Of course, I fully take into account the fact that it says
6 here that this was issued by the military cabinet of the president of the
7 republic, but this fact is not enough. Since I don't have a document
8 establishing this body within the system of command or as a state organ
9 of this particular body, either as a permanent body or as an ad hoc body,
10 so I cannot reach any other conclusions here.
11 Q. And can you reach a conclusion as to whether or not President
12 Milosevic was acting within or beyond his constitutional powers in
13 setting up such a body and chairing such a body?
14 A. Well, I cannot say that because I don't have the act on its --
15 MR. PETROVIC: [Interpretation] Your Honour --
16 JUDGE BONOMY: Mr. Petrovic.
17 MR. PETROVIC: [Interpretation] -- if you allow me. The
18 interpretation by my learned colleague Mr. Hannis I think does not
19 correspond to the facts, especially the facts of this case, and in
20 particular of -- with what this witness has in front of him. So we want
21 him to establish a foundation for his claim as to why this body was set
22 up, and then we can ask the witness to give us his answer about the merit
23 of the question.
24 JUDGE BONOMY: Mr. Hannis.
25 MR. HANNIS: Your Honour, I'll move on to another question.
1 Q. You see the reference -- the main subjects of this meeting
2 appears to be a report or reports about the work of a body called the
3 Joint Command for Kosovo and Metohija. Would you agree with me?
4 A. No, no. Mention is made of the Joint Command, but apart from
5 page 1 and in several other places, that's the only places where I found
6 this Joint Command being mentioned. So I can't tell you anything about
7 its functioning, its existence, because I don't have any legal document
8 establishing that body.
9 Q. But my question was: Would you agree with me that most of this
10 document, most of the meeting, dealt with discussing the work of the
11 Joint Command between July 25th and 29 October 1998? That's the bulk of
12 what this document is about, right?
13 A. Well, most of this document, as far as I was able to see in the
14 brief period of time, concerns the exchange of information between
15 Lieutenant-General Nebojsa Pavkovic, the commander of the Pristina Corps,
16 and -- well, I don't want to now enumerate all the officials, state
17 officials that attended this meeting. The Joint Command is mentioned at
18 one point here, and I actually didn't find it mentioned so many times to
19 be able to say that this document deals with the Joint Command. I read
20 the reports presented by all those officials about what was done in
21 their -- within their purview. Well, you can go through -- but you have
22 to bear in mind that you have had this document for years, and I only had
23 25 minutes to look at it. You have to bear that at mind. At page 7
24 there is mention of it, maybe three or four other places -- well, I can't
25 tell you now whether this is really focused on the Joint Command. I read
1 this as a series of reports by people who were all in charge of
2 implementing certain military or police measures in Kosovo or perhaps as
3 part of some other task that is not of a military or a police nature
4 because, after all, there are people here who are not state officials at
5 all. For instance, I was able to see that the deputy president of the
6 Serbian Socialist Party, Dusan Matkovic, so I really can't say that I
7 agree with you when you say this.
8 Q. Well, in fairness to you because you had such a short time, I
9 won't press you on that. But do you find -- is there any provision in
10 the constitution for a body such as a Joint Command based on what you're
11 able to understand about what the Joint Command was from reading -- from
12 your brief review of this document?
13 MR. PETROVIC: [Interpretation] Your Honour.
14 JUDGE BONOMY: Mr. Petrovic.
15 MR. PETROVIC: [Interpretation] It appears to me that this has
16 been asked and answered in the first part of the cross-examination by my
17 learned colleague Mr. Hannis.
18 JUDGE BONOMY: It has actually, Mr. Hannis.
19 MR. HANNIS: Your Honour, I have no further questions.
20 JUDGE BONOMY: Thank you.
21 Questioned by the Court:
22 JUDGE BONOMY: While this document is before us, can you from
23 your experience think of any other similar example of a body that existed
24 in some form within the federal republic headed up by the president
25 comprising representatives from the army -- senior representatives from
1 the army and the police from the federal government and the republican
2 government, that's the Republic of Serbia, and there was no order,
3 decision, conclusion, or any other formal process or document
4 establishing it?
5 A. Well, to be quite frank, based on what I know I did not have any
6 encounter with such bodies, not in the literature, not through any
7 documents, and least of all through any -- my personal contacts or
8 personal knowledge. We have the concept of consultation, the
9 consultation by the president of the Federal Republic of Yugoslavia as
10 the president or the head of state, head of any other state. This is
11 done when it is necessary to designate the prime minister-elect, the
12 federal prime minister-elect. For instance, the president of the
13 republic also presents --
14 JUDGE BONOMY: Please confine yourself to my questions. If it's
15 something you really think needs to be added to make sure the full
16 picture is understood, then you should give that information, but I think
17 you're going on to a different area now. I really would like to know
18 whether you as a constitutional expert would expect that a body such as
19 this would have been constituted in a formal way, there would be some
20 formal document recording its establishment?
21 A. If such a body makes decisions, legal documents or acts of
22 command, then yes; but if not, in every state, a head of -- the head of
23 state can have this kind of consultations because how would he gain
24 knowledge in light of the fact that the president of the Federal Republic
25 of Yugoslavia represents the state in the country and abroad? I'm just
1 giving you this as an example. So if it issues legally binding documents
2 and acts of command, then there has to be a legal basis for its
3 establishment; if not, then this is an acceptable form of -- forum for
4 meeting, consultations, exchange of information, and so on, among those
5 various organs.
6 JUDGE BONOMY: Now, following on from that, is it the case that
7 the president of the FRY had no formal relationship with the MUP of the
8 Republic of Serbia?
9 A. He did not have powers over the Serbian MUP, but you have to bear
10 in mind the fact that something that was -- that no federal police
11 existed. There was no police at the federal level. You have to bear in
12 mind that this was a federal state and that in part of its territory
13 there was a disturbance of the peace, whichever term you want to use.
14 And at that time, in a way, the Federal Republic of Yugoslavia joined
15 with one of its republic -- member republics in an effort to settle the
16 situation. So this form of cooperation is permissible because the laws
17 stipulate when units of the Ministry of the Interior - we're talking
18 about laws on police - when they can participate in certain police
20 JUDGE BONOMY: Now, you use the expression "... this form of
21 cooperation is permissible ..." and in that context you're talking about
22 the federal authorities cooperating with the Serbian MUP. What do you
23 mean by "this form of cooperation"? Could you be more precise about
24 that? What is the form of cooperation you see occurring from these
1 A. What form of cooperation?
2 JUDGE BONOMY: Yes. You have used the expression "... this form
3 of cooperation is permissible ..." so you as an expert think that
4 something in here is permissible, and I would like you to define what
5 that form of cooperation is that you have in mind.
6 A. In view of the fact that this gathering did not issue any kind of
7 legal decision or document of command, of course it's permissible to
8 cooperate by exchanging information concerning the situation in Kosovo in
9 this case, but basically information about anything. How, otherwise,
10 could the president of the state command the Army of Yugoslavia, for
11 example? Everywhere in the world where there are federal units and
12 federal officials, they meet; they exchange information so that each one
13 can later on arrive at the appropriate legal decisions within his own
14 sphere of competence.
15 JUDGE BONOMY: But in relation to the MUP of Serbia, what is it
16 that you say you can draw from this -- these minutes about the
17 cooperation that was occurring between the federal authorities and the
18 Serbian MUP?
19 A. Well, you see here that General -- or rather, Major Sreten Lukic
20 informed this gathering about the police actions which the police forces
21 engaged there in Kosovo had gathered out. Exchange of information
22 amounts to cooperation. Noncooperation is when there is no exchange of
23 information and no mutual contact. So I'm referring to the form of
24 cooperation that I see here, and this is exchange of information. Let me
25 repeat, there's no command document or any other legal document that
1 would enable me to draw any other legal conclusion.
2 JUDGE BONOMY: Now, if we're looking at the same part of this
3 document when you say that, Major-General Sreten Lukic reported or
4 submitted a report on the work of what's called the Joint Command for
5 Kosovo and Metohija.
6 A. I don't know what this is. What's it called: The Joint Command
7 for Kosovo and Metohija. I have no documents concerning all this --
8 JUDGE BONOMY: Yes, I understand, but that's the cooperation
9 that's taking place. The cooperation, if it's Lukic you're thinking
10 about, it's the cooperation between the Joint Command and the federal
11 authorities, apparently. You see, that's why I want to understand what
12 it is you mean by "this form of cooperation that is permissible."
13 A. I'm speaking of cooperation from this, through exchange of
14 information, based on this, because as for other forms of cooperation,
15 strategic, tactical, and so on, I don't know anything about that. I'm
16 not a military expert. I didn't get very far in the army. I was just a
18 JUDGE BONOMY: One of the things that General Lukic reported to
19 this meeting was about an agreement reached between President Milosevic
20 and a US envoy called Holbrooke about the reduction in the number of MUP
21 forces in Kosovo. What authority would Milosevic have to agree to a
22 reduction in MUP forces in Kosovo?
23 A. According to the Constitution of the FRY, in international and
24 internal relations it is represented by the president of the republic.
25 In paragraph 1 of Article 96, it says that the president of the republic
1 represents the Federal Republic of Yugoslavia at home and abroad. On the
2 other hand, I didn't look at this Law on Foreign Affairs here, but it's
3 well known in international law that there are three organs which are
4 authorised without any additional authorisation to sign international
5 treaties, agreements, and so on. That's the head of state, the prime
6 minister, and the minister of foreign affairs. As a lawyer, this is
7 where I see the connection because it should not be forgotten that the
8 FRY at that time was a unique and unified international legal subject,
9 whereas its -- it was a single subject, in other words, and its member
10 states were not.
11 JUDGE BONOMY: This is a matter of some importance to us, and
12 your opinion would assist us. You're saying that somehow or other the
13 president of the FRY has authority to agree to a reduction in the numbers
14 of MUP forces present in Kosovo, which is a part of the Republic of
15 Serbia, just because he's talking about it to some foreign representative
16 who wants to poke his nose in?
17 A. I don't know many details, but I can recall that Mr. Holbrooke
18 arrived here as a representative probably of the president or the State
19 Department of the USA.
20 JUDGE BONOMY: Well, according to General Lukic he was a
21 representative of the international community, even wider than that. But
22 what I'm trying to understand from --
23 A. All the more so, all the more so.
24 JUDGE BONOMY: Indeed. But what I'm trying to understand is how
25 does that give rise to a situation where President Milosevic can reach
1 agreement about the reduction of MUP forces within Serbia? What is the
2 constitutional provision that gives him that power?
3 A. The Federal Republic of Yugoslavia, as is stated in Article 1 of
4 its constitution, is a sovereign federal state founded on the equality of
5 citizens and the equality of its member republics. Just a moment. In
6 Article 16 [as interpreted], it says that: "The Federal Republic of
7 Yugoslavia shall fulfil in good faith" -- oh, yes.
8 "The Federal Republic of Yugoslavia shall fulfil in good faith
9 the obligations contained in international treaties to which it is a
10 contracting party."
11 JUDGE BONOMY: Perhaps we can --
12 A. In Article 7, it says that: "A member republic within its
13 competences may maintain relations with foreign states but not to the
14 detriment of the Federal Republic of Yugoslavia or any of its other
15 member republics."
16 In Article 77 of the constitution, it says -- just a moment,
17 please, that: "The Federal Republic of Yugoslavia shall through its
18 organs formulate policy, enact and enforce federal legislation, and ...
19 in matters concerning," and then, 6, international relations. That's
20 item 6. And Article 96, paragraph 1, which I have already quoted, all of
21 this taken together can give the answer to the question as to who can
22 conclude international treaties or agreements on behalf of Yugoslavia.
23 It can be done by the president of the FRY, the prime minister, or the
24 minister of foreign affairs. How this agreement was reached, I don't
25 know, but I am trying to see whether it can be brought into line with
1 constitutional norms. Of course --
2 JUDGE BONOMY: Well, we can return to this tomorrow because your
3 evidence will continue tomorrow, and you can think about that and
4 possibly expand upon your answer then, and I will turn to something else.
5 One of the articles you referred to in the constitution today was
6 Article 77, and you referred in particular to two parts of it, part 6 and
7 7. Can I ask you a little more about 6, which says that the -- and
8 you've just referred to it again a moment ago, the general part. But it
9 goes further than that. It talks, also, of "border crossing and control
10 of the circulation of goods, services, and passengers across the border,
11 the status of aliens and foreign artificial persons."
12 Now, the evidence in this case suggests that all of these
13 functions were carried out by the republican MUP. Can you explain how
14 that fits into the constitution?
15 A. Of course. It is usual to have a constitutional law alongside
16 the constitution regulating issues which are sometimes complex dealing
17 with the transition from one constitutional regimen to another which is
18 partially changed. With respect to your question, a constitutional law
19 was passed, and the enactment of that law is envisaged in Article 143 of
20 the Constitution of the FRY, and a dead-line is set for its enactment,
21 and this law was amended more than once because the FRY, as we say, based
22 on certain material, sources of legal norms, was not in a position to
23 undertake it so that the dead-line was constantly pushed back by the
24 constitutional law, and that's why there was a delay in regulating these
25 issues, and unfortunately the state lasted -- did not last for long
1 enough for us to see how it would have been regulated in its entirety.
2 JUDGE BONOMY: I don't think I fully understand that. I
3 understand that there may be difficulties in transition, but is there
4 some provision of a constitutional nature that says that these jobs
5 should meanwhile be done by the MUP of the Republic of Serbia?
6 A. Well, yes, that's understood. It goes without saying. Because
7 the time-limit, the dead-line by which the laws regulating these issues
8 kept being pushed back in a legally permitted manner, that is, the
9 constitutional law.
10 JUDGE BONOMY: But --
11 A. Where it says which laws shall cease to be in force, when, and so
13 JUDGE BONOMY: Are you saying that the SFRY did not control the
15 A. Well, you know, control of the borders, that's a detail I did not
16 deal with here, but I know that there was dual control of the border at
17 the time. It was controlled partly by the army and partly by the police
18 in various areas, and that's as far as my knowledge of this matter goes.
19 Recently, the system of control of the border was changed, and civil
20 control of border crossings and of the border in general is now
21 implemented, as is usual in Europe.
22 JUDGE BONOMY: Do you know if there's a provision in the
23 Constitution of the Republic of Serbia dealing with their role in
24 controlling the border?
25 A. With the best will in the world, at this point in time I really
1 can't answer that question.
2 JUDGE BONOMY: Perhaps we also can return to that one tomorrow.
3 You've indicated that you worked in the Institute of Comparative
4 Law Studies in Belgrade?
5 A. Yes, yes.
6 JUDGE BONOMY: During what period?
7 A. In the period from November 2003 -- no, 2003 -- 1993 --
8 THE INTERPRETER: Interpreter's correction.
9 THE WITNESS: [Interpretation] -- to April 2000. First I worked
10 full time, and as of November, one-third of work time, part time, in
12 JUDGE BONOMY: And what was your specialist subject then?
13 A. We worked on several projects at the time funded by the federal
14 government, and each one of us had to write a certain number of papers in
15 the area of comparative law, either comparing legal institutes or
16 describing certain legal institutes in the world or in Yugoslavia.
17 JUDGE BONOMY: Well, to what extent, then, were you dealing with
18 issues of constitutional law or issues that can be said to relate to
19 constitutional law?
20 A. At the time, I dealt mainly with issues concerning constitutional
22 JUDGE BONOMY: And --
23 A. For example, the new constitutional order of Russia, of the
24 Baltic states, the position of the government in the UK or Great Britain
25 and Northern Ireland and so on. Those were the issues I dealt with at
1 the time.
2 JUDGE BONOMY: And my understanding is that this is an institute
3 with a high reputation; is that correct?
4 A. I would be glad to have worked in such an institute. Yes, at
5 that time it was held in high esteem, especially when it was headed by a
6 professor, Professor Slobodan Blagojevic. That was up to the 1980s. At
7 that time, it was held in very high esteem. He was a professor of the
8 faculty of law in Belgrade.
9 JUDGE BONOMY: And your period there was 1993 to 2000; is that
11 A. Yes, yes.
12 JUDGE BONOMY: So how much of your time, then, was spent living
13 in Belgrade?
14 A. Two days. On Mondays and Thursdays, that's when I was at work in
15 the institute, and the rest -- for the rest of the time we worked where
16 we could because at that time there was a shortage of space in the
18 JUDGE BONOMY: I don't know if my question was perhaps fully
19 interpreted to you. I'm anxious to know how much of your time you lived
20 in Belgrade.
21 A. Two days a week.
22 JUDGE BONOMY: So you travelled back to Bosnia twice a week?
23 A. Yes.
24 JUDGE BONOMY: Now, in your comparative constitutional law
25 studies or any other constitutional law studies, have you ever come
1 across a book or an article suggesting that President Milosevic acted
2 beyond his legal powers, in either Serbia when he was president there or
3 Yugoslavia when he was president there?
4 A. Not in the constitutional legal scholarly literature, but I
5 didn't read many articles of that type because my professional curiosity
6 went in a different direction.
7 JUDGE BONOMY: Now, you told us that you had a role in the Dayton
8 peace negotiations. What exactly was your role there?
9 A. Throughout the time of my participation in all peace negotiations
10 from 1991 onwards, I was a member of a delegation going to Dayton dealing
11 with legal and constitutional issues. I was there as a legal expert. I
12 took my Ph.D. at the chair of constitutional law at the faculty in
13 Belgrade, and my Ph.D. thesis had to do with the constitutional order of
14 the Soviet Union.
15 JUDGE BONOMY: And were you involved in -- at the end of the day
16 when these negotiations achieved a result?
17 A. Yes, I was in Dayton all the time, until the agreement was
18 initialled, until the very last day.
19 JUDGE BONOMY: And was Milosevic involved in these negotiations?
20 A. Yes, Mr. Milosevic was in Dayton also.
21 JUDGE BONOMY: What was his role in these negotiations?
22 A. He was the chief of some preliminary agreements. He was the
23 president -- or rather, the head of the joint delegation of Serbia and
24 Republika Srpska, if I recall correctly, and this happened after numerous
25 negotiations between the -- with the representatives of the contact group
1 and especially the USA, just as the agreement concerning Northern Ireland
2 was reached through the activity of the USA and the secessionist side
3 lost and the other side and advocating different solutions achieved its
5 JUDGE BONOMY: What was it within the Constitution of the
6 Republic of Serbia at that time that gave him the power to head a joint
7 delegation in negotiations such as this?
8 A. It was an agreement achieved under the auspices of Mr. Holbrooke
9 in a situation which - how shall I put it -- cannot easily be made to fit
10 a regular situation. There was pressure from the members of the contact
11 group, and this was an agreement between the organs of Republika Srpska
12 and the organs of Serbia.
13 JUDGE BONOMY: I have a number of matters still to deal with, and
14 there may be questions also from Mr. Petrovic when I am finished, so you
15 will require to return tomorrow to continue and complete your evidence.
16 That will be -- yeah, that's at 9.00 tomorrow in this court. So all I
17 need to say to you at the moment is be back here at 9.00 tomorrow.
18 I have another administrative matter to deal with, so if you
19 could please leave the courtroom. We'll see you at 9.00 tomorrow.
20 [The witness stands down]
21 JUDGE BONOMY: It's unlikely that the evidence of Professor Lukic
22 will take a great deal of time tomorrow. The next witness will be a
23 Chamber witness, General Djakovic, but there will be one or two other
24 issues to be addressed when we get to the end of the professor's
25 evidence. It seems to us that the best plan is to postpone the evidence
1 of General Djakovic until Monday and to deal with anything that's
2 outstanding tomorrow. I hope that that does not inconvenience anyone,
3 but although time was booked to sit until 3.30 tomorrow, it's not very
4 likely that we will occupy any part of the afternoon session, and,
5 indeed, we'll probably be finished fairly quickly.
6 Mr. Fila, you've raised informally an issue over the order of the
7 examination of Chamber witnesses, and we can address that at some time
8 tomorrow. We'll -- and if there are any other administrative issues that
9 parties are concerned about, they can be raised tomorrow and - just a
10 second - counsel for each accused should be in a position to state
11 clearly what, if anything, remains outstanding in respect of the
12 presentation of their cases.
13 So we can adjourn now, can we, Mr. Fila, until 9.00 tomorrow
14 morning. Thank you.
15 --- Whereupon the hearing adjourned at 1.46 p.m.,
16 to be reconvened on Friday, the 16th day of
17 May, 2008, at 9.00 a.m.