The International Criminal Tribunal for the Former Yugoslavia

Case No.IT-96-21

  1. 1 Friday, 13th February 1998

    2 (11.03 am)

    3 (In open session)

    4 JUDGE KARIBI-WHYTE: Good morning, ladies

    5 and gentlemen. Nice to be back after such a long spell

    6 out. So, we are happy also to hear Dr. Gow is fit now.

    7 We will come to him, so can we start now? Appearances,

    8 please.

    9 MR. NIEMANN: If your Honours please, my name

    10 is Niemann and I appear with my colleagues, Mr. Dixon,

    11 Mr. Turone and Mr. Khan for the Prosecution, your

    12 Honours.

    13 MS. RESIDOVIC: Good morning, your Honours.

    14 I am Edina Residovic appearing together with the

    15 Professor Eugene O'Sullivan on behalf of Zejnil

    16 Delalic.

    17 MR. OLUJIC: Good morning, your Honours, my

    18 name is Zejnil Olujic, attorney from Croatia, appearing

    19 on behalf of Mr. Zdravko Mucic, together with my learned

    20 colleague, Mr. Michael Greaves, attorney from the United

    21 Kingdom. Before my next colleague introduces himself,

    22 we have an am application to make, your Honours, namely

    23 Dr. Zdravko Mucic would request this court to give him

    24 leave, after 12 o'clock, to be absent from the

    25 courtroom for the following reasons; namely in the

  2. 1 detention centre premises a Catholic mass will be

    2 held. A priest is coming, and, since Mr. Mucic was

    3 unable to attend church services regularly in the past

    4 period, he would kindly request this honourable court

    5 to allow him leave not to be present to the testimony

    6 of Mr. Gow today, and he would authorise me to represent

    7 him fully in his absence.

    8 MR. KARABDIC: Your Honours, I am Salih

    9 Karabdic, attorney from Sarajevo, appearing on behalf

    10 of Mr. Hazim Delic, together with Mr. Thomas Moran,

    11 attorney from Huston, Texas.

    12 MR. ACKERMAN: Good morning your Honours, my

    13 name is John Ackerman I appear here with Ms. Cynthia

    14 McMurrey on behalf of Mr. Esad Landzo.

    15 JUDGE KARIBI-WHYTE: Thank you very much.

    16 I think we will grant the application of Mr. Mucic for

    17 his wishes to be absent, since he knows that it does

    18 not prejudice the defence. So the application is

    19 granted.

    20 MR. OLUJIC: Thank you, your Honours.

    21 MR. NIEMANN: Yes, Dr. Gow, might he be brought

    22 in, please.

    23 JUDGE KARIBI-WHYTE: Will you kindly swear

    24 the witness, please? Kindly swear him in.

    25 DR. GOW, (Sworn)

  3. 1 Cross-examination by MR. ACKERMAN:

    2 JUDGE KARIBI-WHYTE: Be at ease. You sit

    3 down.

    4 Yes, Mr. Ackerman?

    5 MR. ACKERMAN: Thank you. Good morning.

    6 A. Good morning. Is it working?

    7 Q. Yes, it is working. How are you?

    8 A. I am fine, thank you.

    9 Q. We all heard about your accident and we were

    10 all very concerned, and I hope you have recovered and

    11 everything is okay. Good. Thank you.

    12 Where I want to begin this morning, Dr. Gow,

    13 is to discuss with you some resolutions of the United

    14 Nations Security Council and I want to pass some copies

    15 to the Registrar and to the court, and if someone can

    16 assist me with regard to that, I would be grateful.

    17 (Handed)

    18 JUDGE KARIBI-WHYTE: Mr. Ackerman, I hope you

    19 are ready now.

    20 MR. ACKERMAN: I am getting there your

    21 Honour. I need the Registrar to give me exhibit

    22 numbers for each of these documents, 1, 2, 3 and 4.

    23 THE REGISTRAR: Document D30/4, number 1.

    24 Document number 2, D31/4, document number 3, D32/4, and

    25 document number 4, D33/4.

  4. 1 MR. ACKERMAN: All right. Thank you very

    2 much. Dr. Gow, you now have before you four documents

    3 and up in the upper left-hand corner they are numbered

    4 1, 2, 3 and 4, and that is the order in which we will

    5 talk about them.

    6 First I would like you to look at number 1.

    7 It is Resolution number 777 of 19th September 1992, and

    8 I am interested in having you focus on the second

    9 paragraph of that Resolution beginning with the word,

    10 "Considering ..." Do you see that paragraph?

    11 A. I do.

    12 Q. In that paragraph it reads:

    13 "Considering that the state formerly known as

    14 the Socialist Federal Republic of Yugoslavia has ceased

    15 to exist..."

    16 That is the language; correct?

    17 A. That is what it says.

    18 Q. Now, if another witness has testified to this

    19 Trial Chamber that because of that language of the

    20 Security Council, that it is clear that it was

    21 19th September 1992 when the SFRY ceased to exist, you

    22 would not agree with that statement, would you?

    23 A. I would say that the -- what the document in

    24 front of me does is recognise that the state formerly

    25 known as the Socialist Federal Republic of Yugoslavia

  5. 1 has ceased to exist. I do not think the document is

    2 saying that as of this moment it ceases to exist.

    3 Q. Right.

    4 A. I think that the document addresses the

    5 question of continuing succession questions.

    6 Q. Yes. It would be sort of a profound

    7 misinterpretation of this document to say that that is

    8 the date that we can fix as the end of SFRY, would it

    9 not?

    10 A. It would be a misinterpretation to say that

    11 there were no continuing questions regarding the

    12 dissolution of the SFRY, but I think it would not

    13 necessarily be appropriate to argue that that was the

    14 date for the ending of the SFRY.

    15 Q. Look at --

    16 A. In fact, if you were to take this as an

    17 argument then, because it refers to the continuing

    18 succession issues, then you would say that the SFRY

    19 continues to exist now as well because the succession

    20 talks continue.

    21 Q. Would you look at document number 2?

    22 A. On page 2 of that document which is D31/4,

    23 you will see a paragraph starting with, "Decides ..."

    24 Do you see that?

    25 MR. NIEMANN: Your Honours, might I just raise

  6. 1 a matter? We do not have the numbers, 1, 2, 3 and 4.

    2 I do have copies of the Resolution, so if Mr. Ackerman

    3 would just tell us the Resolution's number, I can

    4 follow, but I do not have the numbers on the top of the

    5 page.

    6 MR. ACKERMAN: This would be Resolution 760

    7 of 18th June 1992, and the paragraph on the second

    8 page of that document starting with the word,

    9 "Decides..." Do you see that?

    10 A. This is operative paragraph 6 in Resolution

    11 761?

    12 Q. No. Resolution 760, and in the upper

    13 left-hand corner you will see a paragraph starting

    14 with, "Decides ...", of the second page.

    15 A. Yes, fine. This is the end of Resolution

    16 760. I am with you. Yes.

    17 Q. That paragraph refers, does it not, to the

    18 Federal Republic of Yugoslavia (Serbia and Montenegro).

    19 A. It does.

    20 Q. So on 18th June 1992 the UN Security Council

    21 is recognising at least the de facto existence of the

    22 Federal Republic of Yugoslavia, that being Serbia and

    23 Montenegro. Is that a fair statement?

    24 A. In a political -- on a political level it

    25 recognises that there is something calling itself the

  7. 1 Federal Republic of Yugoslavia. The reference to

    2 Serbia and Montenegro, I think, is a suggestion that

    3 the Security Council in this case as in many others

    4 before and after, did not want to prejudice a set of

    5 other questions.

    6 Q. Let me ask you to look now at document 3,

    7 that I have put before you, that is exhibit D32/4 and

    8 it is Security Council Resolution 757 of 30th May

    9 1992. In that document I would like to refer you to

    10 the first full paragraph beginning with the word,

    11 "Noting ..." Do you see that?

    12 What the Security Council says there

    13 contained within that is language which says:

    14 "The former Socialist Federal Republic of

    15 Yugoslavia..."

    16 Correct?

    17 A. Correct.

    18 Q. That would be recognition on May 30th 1992

    19 that the Socialist Federal Republic of Yugoslavia was

    20 no longer in existence, would it not?

    21 A. I think it would be recognition that the

    22 Socialist Federative Republic of Yugoslavia was in

    23 a process of dissolution and that by this stage, de

    24 facto, there was acknowledgement that that process was

    25 coming to an end.

  8. 1 Q. Well, when you refer to John Major as, "the

    2 former Prime Minister of Britain", you are not saying

    3 that he is in the process of relinquishing his Prime

    4 Ministership; he is just not it any more, is he?

    5 A. In that case, that would be so, although

    6 I would not necessarily be referring to him in the

    7 course of this evidence.

    8 What I would draw your attention to is

    9 opinions of the Badinter Advisory Commission to the

    10 International Conference which indicated that -- in an

    11 opinion in November 1991 indicated that the SFRY was in

    12 a process of dissolution, i.e. the events of the summer

    13 of 1991 had begun that process at which point in 1991

    14 in November it was not yet completed.

    15 Q. Well, the process of dissolution deals with

    16 issues surrounding matters that need to be dealt with

    17 when a state ceases to exist. It is not a process by

    18 which a state slowly ceases to exist and would you

    19 agree with me that the normal and common understanding

    20 of the phrase "Former Socialist Federal Republic of

    21 Yugoslavia" means that it is not in existence any

    22 more. And all we are dealing with are the issues

    23 surrounding that fact.

    24 A. If you were to ask me as an individual, then

    25 I would say my opinion at the time was that the SFRY

  9. 1 had ceased to exist. If you ask me as an expert to

    2 assist in this matter I would say that others were of

    3 the view that there was a continuing process.

    4 Q. Your view is that it had ceased to exist.

    5 Let me ask you to look at the fourth document

    6 now, which is D33/4. I am referring now to Security

    7 Council Resolution 752 of 15th May 1992.

    8 The second paragraph beginning with the

    9 words, "Deeply concerned ...", contains that same

    10 language, does it not:

    11 "The former Socialist Federal Republic of

    12 Yugoslavia"?

    13 A. It does.

    14 Q. All right. Your Honours, I would offer in

    15 evidence exhibits D30/4, D31/4, D32/4 and D33/4.

    16 JUDGE KARIBI-WHYTE: Yes. Admitted.

    17 MR. ACKERMAN: Thank you, your Honour.

    18 I would now like to talk with you a few

    19 minutes about the JNA, the Yugoslav National Army.

    20 Okay?

    21 A. If you wish.

    22 Q. Okay. During the period of time while the

    23 JNA were still the legitimate armed force of SFRY,

    24 would you agree with me that it had basically two

    25 missions; one was to protect Yugoslavia from external

  10. 1 aggression, and second, to protect the state of

    2 Yugoslavia from internal insurrection.

    3 A. I would agree with you entirely on the first

    4 point. I would amend your phrasing of the second, to

    5 say that -- and also you said, "Yugoslav National

    6 Army". In fact it should be the "Yugoslav People's

    7 Army". The "people's" has a specifically communist

    8 character --

    9 Q. That is true.

    10 A. -- linked to the nature of the system. The

    11 same word, "nalodnja", can mean "people's" or

    12 "national", and I think in this context the people's

    13 element is significant, because the mission it was

    14 charged with in terms of internal -- of the integrity

    15 of the system was upholding the socialist order in the

    16 SFRY.

    17 Q. And also preserving the territorial integrity

    18 of SFRY.

    19 A. Yes. Preserving the socialist order of the

    20 SFRY as well as the territorial integrity.

    21 Q. And that would have been part of its

    22 legitimate job during the time that it was in

    23 existence.

    24 A. That was a role that it was charged with.

    25 Q. And any fighting that might have gone on

  11. 1 within SFRY while it was in existence would have gone

    2 on simply because JNA was carrying out that mission of

    3 preserving the territorial integrity of SFRY.

    4 A. I certainly would not say, "simply", that

    5 would be the case. It would have been a possible

    6 interpretation of some actions, for example, the JNA

    7 operations in Slovenia in June 1991 could possibly be

    8 given that interpretation. Some of the JNA commanders

    9 give the same interpretation to their operations in

    10 Croatia but I think, quite clearly and I think I have

    11 given in evidence in this Trial Chamber before, if not

    12 this one, then in others, there was a decision while

    13 the SFRY formally continued to exist in this period of

    14 process, where the JNA commanders decided not to seek

    15 to preserve the SFRY any more but to create the borders

    16 of a new set of territories.

    17 Q. We are going to go into that. You already

    18 cited the example that I was going to bring to your

    19 attention and that was the Slovenia example.

    20 You have talked, I think in your prior

    21 testimony in the Tadic case and in many of your

    22 writings about the compositional change that the JNA

    23 went through during 1991 and early 1992, and there was

    24 a significant change in composition during that period

    25 of time, was there not?

  12. 1 A. There was.

    2 Q. In fact, by the end of May of 1991 I think

    3 you have said that less than 3 per cent of the JNA at

    4 that stage was classified as something other than

    5 Serb and Montenegrin.

    6 A. I think you may have made a mistake in saying

    7 1991 when you meant 1992. As I recall the evidence

    8 went -- was with reference to March 1992.

    9 Q. You are absolutely correct. That is a typo.

    10 A. March 1992 not May 1991, but yes.

    11 Q. I think what you said in Tadic, in fact, was

    12 that the share of Serbs within the army by March 1992

    13 had become 90 per cent, and non-Serbs had fallen to

    14 10 per cent.

    15 A. That is correct.

    16 Q. And you figured at that point that about

    17 5 per cent would have been Montenegrin?

    18 A. Approximately, yes.

    19 Q. And this Serb component of the JNA at that

    20 stage contained a very high proportion of Bosnian

    21 Serbs?

    22 A. In March 1992, yes.

    23 Q. And some estimates have put that proportion

    24 of Bosnian Serbs as high as 80 per cent.

    25 A. It is possible that some have put it that

  13. 1 high. Certainly the figure would have been somewhere

    2 in the region of 50-80,000, as I understand.

    3 Q. Let me quote for you something you wrote in

    4 Jane's in August of 1992, and ask if you agree:

    5 "Some estimates put the proportion of Bosnian

    6 Serbs in the YPA ..."

    7 That is the same thing as the JNA.

    8 "... as high as 80 per cent."

    9 I mean, those are your words.

    10 A. I would agree that I wrote that and I think

    11 that is consistent with the answer I just gave. Some

    12 estimates would put that.

    13 Q. And in the same paragraph you said:

    14 "Certainly around 80 per cent of the YA in

    15 Bosnia remained there when the new Yugoslav state

    16 ordered its citizens in the army to return from

    17 Bosnia."

    18 A. You are referring to the decision in May 1992

    19 to divide the JNA?

    20 Q. Yes.

    21 A. Yes.

    22 Q. Okay. There certainly did come a time, did

    23 there not, when the JNA itself ceased to exist as a

    24 legitimate armed force of SFRY.

    25 A. If I may, I will avoid the word,

  14. 1 "legitimate", for the sake of simplicity and brevity

    2 in this case, and say, yes, the JNA formally ceased to

    3 exist in May 1992, although of course, its ghost went

    4 on through the course of the Bosnian war and today the

    5 fact that the links are still essentially those of the

    6 JNA continue to be impediments in the Dayton process,

    7 as Ambassador Tardieu the American special

    8 representative pointed out a few months ago.

    9 Q. You would agree with me, would you not, that

    10 generally speaking, an army can only be a legitimate

    11 army if it is serving a legitimate state.

    12 A. I think that is a very complex question. It

    13 would depend on whether you mean, "legitimate", in the

    14 sense of legal or in the terms of a socio-political

    15 phenomenon and one which, unless you really press me on

    16 it, I would not wish to begin a seminar on which could

    17 last all day.

    18 Q. In your book, "Legitimacy", your first book,

    19 you talk about that issue to some extent, and you talk

    20 about an army cannot be a legitimate army if it is not

    21 serving a state that is in existence, unless it is in

    22 a belligerent status or something of that nature.

    23 A. I would say that an army, all armies need

    24 states, and that the position of an army such as the

    25 JNA within a federal system and multi-ethnic country

  15. 1 such as the SFRY was, needs to have a degree of social,

    2 political consent or alignment in order properly to be

    3 able to do the job which, as an army, it is primarily

    4 intended to be.

    5 It is a comment which I think essentially,

    6 General Kadijevic makes in his memoirs: no army in the

    7 world can exist without a state and explains that as

    8 one of their reasons for the change from protecting the

    9 SFRY to the new approach.

    10 Q. Yes, so once SFRY ceased to exist, from

    11 a legitimacy standpoint the JNA necessarily must have

    12 ceased to exist.

    13 A. I am not sure what you mean by, "a legitimacy

    14 standpoint". The JNA went through a process of

    15 disintegration as did the SFRY and both at a point

    16 ceased formally to exist.

    17 Q. I think as we go forward with the next series

    18 of questions, I might be able to clarify for you what

    19 it is I mean.

    20 A. Okay. Thank you.

    21 Q. There came a time when officers and soldiers

    22 who were members of the JNA, found themselves as

    23 serving different interests. For instance, there were

    24 former members of the JNA that became part of the

    25 Croatian army. There were former members of the JNA

  16. 1 that became part of the Bosnian Serb Army. There were

    2 former members of the JNA that became part of the

    3 Bosnia-Herzegovina army. There were former members of

    4 the JNA that became part of the FRY army, so that in

    5 a sense, you could speak of those who were fighting for

    6 each of those four armies, or part of each of those

    7 four armies -- in a sense, you could refer to them as,

    8 "former JNA".

    9 A. The question is, could you refer to people

    10 who had been in the JNA as former JNA?

    11 Q. Yes.

    12 A. Yes.

    13 Q. And so, if someone refers in talking about

    14 the events that were going on in Bosnia-Herzegovina

    15 as -- refers in that context to a former JNA component,

    16 they might be talking about the Croatian army, they

    17 might be talking about the Bosnia-Herzegovinan Army,

    18 they might be talking about the Bosnian Serb Army

    19 because all of those had components of the former JNA?

    20 A. I think that would be a misleading

    21 interpretation, to say they had individuals might be to

    22 say they had components, but I think normally the use

    23 of components would imply that they had the

    24 organisation and structural features of the JNA which

    25 would be a different question, in which case you could

  17. 1 say that the VRS in Bosnia-Herzegovina inherited

    2 components of the JNA, in fact, retained many of the

    3 structures, whereas what you are talking about on the

    4 part of either the army of Bosnia-Herzegovina or the

    5 Croatian Army, or Slovenian Territorial Defence is

    6 a situation in which some people who had been members

    7 moved over, not to fight with the JNA or its direct

    8 successors, but with their opponents.

    9 Q. If you look at the Bosnian Serb rebels

    10 operating in Bosnia-Herzegovina, in many cases those

    11 units were pretty much intact with roughly the same

    12 officer component and enlisted component, and

    13 equipment.

    14 A. At the time of the formal division of the

    15 JNA, the units in Bosnia-Herzegovina simply were

    16 readopted as.

    17 Q. Yes. I think the position you took here

    18 today and it is consistent with the position you took

    19 in Tadic, was that the JNA ceased to exist in May of

    20 1992. Is that fair?

    21 A. It was formally divided in May 1992. I think

    22 in this case and in Tadic and other cases, I have

    23 suggested that the division was, of course, not an

    24 entirely genuine division, but...

    25 Q. Now, in April of 1992 when the FRY was

  18. 1 formed, that was in April of 1992.

    2 A. It was proclaimed on 27th April 1992,

    3 I think.

    4 Q. The 19th or the 27th. It is some time in

    5 April.

    6 In May of 1992 that was when the FRY

    7 announced this division that we have been talking

    8 about, in other words, the removal of all of the Serb

    9 Montenegrin component from Bosnia-Herzegovina, leaving

    10 in Bosnia-Herzegovina the Bosnian Serbs who were part

    11 of those former JNA units.

    12 A. I think you said, "April", but it was 4th May

    13 1992, and Serb and Montenegrin personnel were generally

    14 formally withdrawn, although you will see sometimes in

    15 documents references to the continuing presence of

    16 those people, but essentially formally those personnel

    17 were withdrawn.

    18 Q. And that was done by the FRY out of a sense

    19 that leaving Serbian and Montenegrin citizens in

    20 Bosnia-Herzegovina would lead to an adverse

    21 international assessment of the FRY; correct?

    22 A. Correct.

    23 Q. And this was based on a decision taken by the

    24 FRY Presidency on 4th May 1992 to evacuate those

    25 citizens of the FRY serving in the JNA from

  19. 1 Bosnia-Herzegovina.

    2 A. Yes.

    3 Q. And this evacuation actually started and took

    4 place from 19th May 1992.

    5 A. My understanding was that it was supposed to

    6 begin after 4th May, and to be completed with effect

    7 from 19th May 1992. It was not completed by that date,

    8 but that was the intention.

    9 Q. When you consider what we have talked about

    10 so far this morning, and what we talked about the last

    11 time you were here, once the FRY had been declared as

    12 a combination of Serbia and Montenegro, then the

    13 authority of that government, and we talked about this

    14 last time you were here -- the authority of that

    15 government could not extend beyond the borders of

    16 Serbia and Montenegro. That was its territorial

    17 component. That is a poor choice of words, but that

    18 was the territory that the government sought to govern,

    19 Serbia and Montenegro.

    20 A. You have the advantage over me in remembering

    21 what we talked about in December. I think it is the

    22 case that Serbia and Montenegro formally declared the

    23 Federal Republic of Yugoslavia with a view to the type

    24 of question we discussed, so as not to try to avoid

    25 being charged with the responsibility for the events in

  20. 1 Bosnia-Herzegovina which -- it was playing

    2 a significant role in handling. Its proper legal and

    3 formal content was Serbia and Montenegro. I think if

    4 you talk about authority then it is clear that its

    5 authority also ran into the territories of the

    6 Republika Srpska Krajina and Croatia, and into the

    7 territories which were to become called Republika

    8 Srpska in Bosnia and Herzegovina. That is one of the

    9 reasons why, throughout the international handling of

    10 the war people would go to Belgrade, much of the time

    11 in efforts to try to seek influence there.

    12 It connects with elements such as the -- when

    13 Belgrade formally recognised as the end of -- the SFRY

    14 is not going to be reconstituted, a certain --

    15 continuing to assert, we have the SFRY's rights and

    16 responsibilities over the Serbs in Krajina, with the

    17 Republika Srpska constitution saying that it is part

    18 of this Federation and with the clause in the

    19 Declaration I think of the FRY constitution saying, "It

    20 is Serbia and Montenegro but others may join."

    21 Q. Well, from a purely legal standpoint,

    22 after -- I will agree with you on 27th April just for

    23 the purposes of discussion, after FRY was declared

    24 a state, consisting of Serbia and Montenegro, those

    25 citizens of Slovenia, Croatia, Bosnia-Herzegovina, were

  21. 1 not any longer subjects of FRY, could not be subjects

    2 of FRY because they were subjects of other legitimate

    3 independent countries.

    4 A. I am sure if subjects -- I hesitate to talk

    5 about areas which are not really within my competence,

    6 but I am not certain that, "subjects", is the right

    7 term.

    8 Q. Subjects, citizens, whatever you want to call

    9 them.

    10 A. Yes, I think the question really is that it

    11 became a matter of choice or the discretion of the

    12 authorities in the FRY as to whether or not it accepted

    13 those people as citizens. It continued to recognise

    14 and accept SFRY passports but not all of them. It was

    15 a process of selection on the basis of choice by the

    16 FRY for authorities as to whether or not they accepted

    17 people as being their subjects or citizens or whatever

    18 it is. As long as we are not going to be tied

    19 precisely to the term, we will agree, whatever we call

    20 it.

    21 I think the essential point is that it became

    22 a matter of their choice rather than choice of the

    23 individuals.

    24 Q. Have you read the constitution of the FRY?

    25 A. I have.

  22. 1 Q. You know how it defines who the citizens of

    2 FRY are?

    3 A. It defines them as the inhabitants of Serbia

    4 and Montenegro, as far as I recall.

    5 Q. Thank you.

    6 A. But that -- the inhabitants can be -- that is

    7 why I come back to the question of decision, the

    8 inhabitants of Serbia and Montenegro can be anybody

    9 that the FRY authorities decide to admit.

    10 Q. Well, "inhabitants", in terms of the normal

    11 and customary usage of that word in the English

    12 language, are people who live there.

    13 JUDGE JAN: Excuse me, when did this

    14 constitution come into force, Serbia and Montenegro?

    15 MR. MORAN: Your Honour, I have a copy of it

    16 and I would be happy to pass it out.

    17 JUDGE JAN: I just want the date.

    18 MR. MORAN: It was April 1992. I do not have

    19 the exact date.

    20 A. 27th April 1992.

    21 I am sorry, may I finish the answer? I was in

    22 the middle of just saying...

    23 MR. ACKERMAN: Yes, go ahead.

    24 A. It was a matter of choice, because there are

    25 many people who are FRY citizens who do not live in the

  23. 1 FRY, just as many of the people in this room are not

    2 citizens of the Netherlands. It is a question for the

    3 decision of the state authorities. I know of people

    4 who originated in Serbia and Montenegro who the FRY

    5 authorities have denied citizenship and people who were

    6 not inhabitants of Serbia and Montenegro who have been

    7 admitted.

    8 JUDGE JAN: Just a minute. Serbia and

    9 Montenegro are well-defined geographical units.

    10 A. They are indeed.

    11 MR. ACKERMAN: I want to go now into a little

    12 more discussion about the May 1992 order where the

    13 Serbian Montenegrin citizens serving in the JNA were

    14 ordered back to Serbia, Montenegro. Are you familiar

    15 with a communication that the Federal Presidency of FRY

    16 issued on 21st May 1992 with regard to that issue? Let

    17 me pass you a copy of it just so that you will know

    18 what I am talking about.

    19 MR. NIEMANN: Is there a copy for the

    20 Prosecution?

    21 MR. ACKERMAN: I think it was given to you

    22 before his testimony last time. It is a document that

    23 up at the top has, "YU Society and the Law", check, and

    24 if you do not have it, Mr. Niemann, I can get you a copy

    25 immediately. It says, "Chronology of Events"...

  24. 1 MR. NIEMANN: I do have it.

    2 MR. ACKERMAN: There are several of those,

    3 your Honours, and the one I am referring to is the one

    4 that on the second page would contain the date 21 May.

    5 Can I get from the Registrar the exhibit

    6 number?

    7 THE REGISTRAR: Document D34/4.

    8 MR. ACKERMAN: Thank you. Do you have that

    9 document before you now, Dr. Gow?

    10 A. I have it.

    11 Q. I want to refer you to that language on the

    12 second page of 21 May and contained within there you

    13 will find the phrase:

    14 "the Presidency of Yugoslavia has no longer

    15 any competence to decide on any military operation on

    16 the territory of Bosnia-Herzegovina."

    17 Do you see that?

    18 A. I see that.

    19 Q. That is an indication, is it not, at least

    20 from the Presidency of FRY that they have no control

    21 any longer over those citizens of Bosnia-Herzegovina

    22 who are involved in the conflict there on behalf of the

    23 Bosnian Serb Army.

    24 A. I am sorry, would you mind repeating?

    25 Q. That is a statement by the Presidency of FRY

  25. 1 that they have no competence to control and decide on

    2 the military operations being carried out in

    3 Bosnia-Herzegovina by members of the Bosnian Serb

    4 military.

    5 A. It is a statement to that effect.

    6 Q. I want to show you now another document, and

    7 Mr. Niemann, this would be the one of 25 May, and this

    8 would be D35/4.

    9 THE REGISTRAR: Yes, it is.

    10 MR. ACKERMAN: Thank you.

    11 What is different, your Honours, are the

    12 second pages. The first page on each of these is the

    13 same just to show the sources of the document, and then

    14 the second page is an extract from that source.

    15 Do you have that document before you now

    16 Dr. Gow?

    17 A. I have it.

    18 Q. On 25th May, according to this document, the

    19 Presidency of Yugoslavia discussed the text of the UN

    20 Security Council Resolution of 15 May, and that was the

    21 Resolution where the Security Council ordered FRY to

    22 get the JNA out of Bosnia-Herzegovina, basically, as

    23 well as the Secretary General's report on Yugoslavia

    24 and a marsh of the Chairman of Security Council of 21

    25 May:

  26. 1 "The presidency notes that there are attempts

    2 without any justification to shift responsibility for

    3 ethnic war in Bosnia-Herzegovina to the Federal

    4 Republic of Yugoslavia. It declares that the Federal

    5 Republic of Yugoslavia will do its best to co-operate

    6 and participate in activities and decisions of the

    7 United Nations, that it is ready to engage in efforts

    8 of the UN and international humanitarian organisations

    9 in Bosnia-Herzegovina, appeals to all sides to allow

    10 de-blocking of the Sarajevo airport, openly calls all

    11 warring parties to immediately stop shelling Sarajevo,

    12 Mostar, and destroying other cities, distances itself

    13 from all unacceptable acts committed by certain

    14 military formations in Bosnia-Herzegovina, including

    15 the formations of Serbian people."

    16 That is what that text reads, is it not?.

    17 A. Yes.

    18 Q. Are you familiar with a message on 1 June

    19 1992 that Branko Kostic, the President of the

    20 Presidency of Yugoslavia sent to Boutros Boutros-Ghali,

    21 the Secretary-General of the United Nations?

    22 A. Not at that moment, but if you have a copy...

    23 Q. Maybe it will help in your recollection that

    24 that was a message to the Secretary-General saying that

    25 the 30 May Resolution of the United Nations was based

  27. 1 on false accusations and false premises.

    2 A. I am aware that messages of that kind were

    3 sent.

    4 Q. Yes, and in fact, on 1 June 1992, Kostic

    5 invited the UN Security Council to send UN observers to

    6 Yugoslavia to see what the true facts were.

    7 A. I am prepared to take it from you that that

    8 is what he did. I recall that there was an invitation

    9 to send monitors to patrol the whole border at one

    10 stage, which was quite clearly made as being an

    11 unacceptable -- like an invitation which nobody was

    12 going to accept because it would have entailed so

    13 much.

    14 Q. Let me share with you another document, if

    15 I may.

    16 For your reference, Mr. Niemann, this is the

    17 1 June document.

    18 Do you have this document before you now?

    19 A. I have.

    20 Q. This is the date of 1 June 1992, and reads:

    21 "In his message to UN Secretary-General

    22 Boutros Boutros-Ghali, Branko Kostic, President of the

    23 Presidency of Yugoslavia, stated that the UN Security

    24 Council had imposed severe sanctions against

    25 Yugoslavia, based on the false accusations that it had

  28. 1 committed aggression against Bosnia-Herzegovina. In

    2 order to get the real picture of the situation, Kostic

    3 proposed UN to send observers to Yugoslavia."

    4 That is the language of that document, is it

    5 not?

    6 A. It is, and if you are interested in the

    7 language, I would just point out the discussion we had

    8 earlier, that the terminology, "President of the

    9 Presidency", is old SFRY terminology for a function

    10 which no longer actually existed after the declaration

    11 of the FRY. Sorry, that is a ...

    12 Q. Following the orders from FRY for FRY

    13 citizens to get out of Bosnia-Herzegovina, you know, do

    14 you not, that the last FRY citizens from the former JNA

    15 left the Marshal Tito barracks in Sarajevo on 5 June

    16 1992?

    17 A. I am prepared to accept that they left

    18 the Marshal Tito barracks on 5 June 1992. I do not

    19 recall the precise date for that event, but I am happy

    20 to accept.

    21 Q. I want to share with you now another

    22 document.

    23 A. But, sorry, can I just say, that they have

    24 left the Marshall Tito barracks but I would not say

    25 necessarily that they were the last FRY citizens.

  29. 1 Q. I understand. I have another document.

    2 I presume this would be D37/4.

    3 THE REGISTRAR: Yes, it is.

    4 MR. ACKERMAN: Mr. Niemann for your reference

    5 this is the report of the Secretary-General pursuant to

    6 paragraph 4 of Security Council Resolution 752.

    7 Do you have that now, Dr. Gow?

    8 A. This is the Secretary-General's report?

    9 Q. Yes.

    10 A. Yes.

    11 Q. The second page of the document you have

    12 before you, which is page 517, at the bottom you will

    13 see in paragraph 6 a report on the Secretary-General

    14 detailing the -- basically the removal of Serb and

    15 Montenegrin citizens from Bosnia-Herzegovina.

    16 He says:

    17 "Most of these are believed to have withdrawn

    18 already into Serbia or Montenegro, some having been

    19 subjected to attack during their withdrawal. Others

    20 remain at various garrisons in Bosnia-Herzegovina,

    21 especially in Serb-controlled areas, including two

    22 installations on the outskirts of Sarajevo, that there

    23 are personnel who have been blockaded in their barracks

    24 by the Territorial Defence of Bosnia-Herzegovina, or

    25 hostile irregular forces, mostly in the Sarajevo area."

  30. 1 Then he goes on to talk about the 600 to

    2 1,000 soldiers blocked in the Marshall Tito barracks at

    3 Sarajevo. He talks about, in subparagraph (b), several

    4 hundred JNA personnel in a logistic base at Sarajevo

    5 who were in the process of withdrawing during 27, 28

    6 May and were attacked by Serb irregulars opposed to

    7 their withdrawal from Bosnia-Herzegovina, and several

    8 hundred JNA cadets blockaded in Pazaric, south of

    9 Sarajevo, who were finally evacuated on 29 May.

    10 In essence, what the Secretary-General is

    11 telling the Security Council at that point is that to

    12 his knowledge, based upon his sources, the Serb

    13 Montenegrin units remaining in Bosnia-Herzegovina or

    14 those who were anxious to but prohibited in one way or

    15 another from withdrawing, either by Serb forces or by

    16 Bosnia-Herzegovina having them blockaded in various

    17 locations. Is that a fair statement?

    18 A. That is the content of what you read.

    19 Q. Yes.

    20 A. Yes, that is fair.

    21 Q. And that report, if you look at paragraph 17

    22 on page 519, it is clear that that report was filed

    23 with the Security Council after the adoption of the

    24 Resolution of May 30th imposing sanctions on FRY for

    25 failure to withdraw Serb Montenegrin citizens from

  31. 1 Bosnia-Herzegovina, because this Secretary-General

    2 refers to that decision in paragraph 17, does he not?

    3 A. He does.

    4 Q. Yes. And it certainly can be read as saying

    5 to the Security Council pretty much what Branko Kostic

    6 said to the Security Council, "Your Resolution is based

    7 upon non-existent facts and therefore is improper", and

    8 the Secretary-General is basically saying to them the

    9 same thing, "Everybody who was allowed to leave from

    10 Serbia and Montenegro has left. The only ones there

    11 are being kept there against their will, and it is an

    12 interesting Resolution, Security Council. We hope that

    13 it has some effect on the international community's

    14 determination to end the fighting in

    15 Bosnia-Herzegovina, and will make it easier to

    16 negotiate the necessary agreements."

    17 That would be a way to read paragraph 17.

    18 A. I suppose it could be a way. I do not think

    19 it is necessarily an accurate way to read it, to link

    20 it to what Kostic was saying. It simply says -- it

    21 reports in the earlier paragraph a number of things

    22 which have occurred primarily around Sarajevo. In the

    23 report, I think if you see paragraph 4:

    24 "Given the considerable restrictions on

    25 unperformed freedom in Sarajevo and elsewhere... it has

  32. 1 not been to obtain completely authenticated

    2 information."

    3 So I think the Secretary-General in the

    4 report is to begin with recognising that the

    5 information about which he can provide concrete --

    6 a concrete view, primarily about Sarajevo is there but

    7 that does not necessarily reflect the situation in the

    8 whole of the country, and there is a difference,

    9 I suspect, between the Secretary-General saying,

    10 "I have reported on a certain number of facts about

    11 which I know something, I do not know everything", and

    12 what Branko Kostic says which is quite clearly for the

    13 political purpose of trying to oppose the Security

    14 Council's actions which are because of the role that

    15 Belgrade is playing in Bosnia-Herzegovina.

    16 So I would say -- you asked me before: did

    17 the documents say -- does it say Kostic says this; yes,

    18 it says Kostic said that. Is what Kostic said

    19 necessarily accurate is not what you asked me and

    20 I suspect maybe the answer to that would be, "not

    21 necessarily".

    22 So you have this question -- I mean, I do not

    23 know if you are going to produce the

    24 Secretary-General's report of 15 June but I think if

    25 you are then we will see when we get to that, there are

  33. 1 continuing references to the presence of the JNA units,

    2 or rather of the elements of JNA from Serbia and

    3 Montenegro, still in Bosnia-Herzegovina, in spite of

    4 going beyond the 19 May deadline.

    5 So there is a kind of a series of elements in

    6 the situation which do not necessarily correspond with

    7 that kind of interpretation which links what the

    8 Secretary-General says here to what Kostic says,

    9 I would have thought.

    10 Also, behind all of this I think you

    11 should -- two things are always to be borne in mind.

    12 One is that Belgrade had consciously taken the decision

    13 for the purpose of disguise or deception of the intent,

    14 and so as to try to avoid being punished, formally to

    15 divide the army and leaving its wherewithal, as you

    16 described before yourself, the units, the components

    17 behind to prosecute this campaign essentially as

    18 proxies of Belgrade's campaign to create a set of new

    19 borders that we discussed with reference to Kadijevic,

    20 so in all of this I think you have to bear in mind the

    21 Security Council is firstly addressing that part of the

    22 question and Belgrade's responsibility for that

    23 situation, whereas in other cases, Slovenia, Croatia,

    24 the non-Serb parts of Bosnia and Macedonia it has

    25 actively withdrawn all equipment that it had, so it

  34. 1 shall not fall into the hands of others and, where

    2 possible, destroyed anything that it could that was

    3 left behind, and add to that that I think the permanent

    4 mention of the Security Council probably have other

    5 resources for gathering information than those simply

    6 through their diplomatic and other channels of the

    7 report of the Secretary-General. I think all of that

    8 needs to be borne in mind.

    9 I am sorry, forgive me for...

    10 Q. Well, it is unlikely, is it not, that the

    11 Security Council would have known more about the

    12 situation going on in Bosnia-Herzegovina on May

    13 30th than the Secretary-General would have known.

    14 JUDGE KARIBI-WHYTE: Mr. Ackerman, do you

    15 think we can stop here so that you can continue at 2.30

    16 to allow Mucic to keep his religious appointment?

    17 MR. ACKERMAN: Let me, right before we break

    18 so I do not forget to do it -- can I offer 34-4, 35-4,

    19 36-4 and 37-4?

    20 JUDGE KARIBI-WHYTE: I do not understand

    21 what you have just said.

    22 MR. ACKERMAN: I am just offering as

    23 exhibits, four of these documents that I had not

    24 offered before, 34 35, 36, and 37.

    25 JUDGE KARIBI-WHYTE: Thank you.

  35. 1 MS. RESIDOVIC: May I ask you, your Honours,

    2 for half an hour, because as far as I have understood,

    3 the security officers would keep our defendants

    4 throughout that time in the courtroom, so a half an

    5 hour break would give them the opportunity to go out as

    6 well. If the break is shorter than half an hour, then

    7 they do not have a chance to have a cigarette or

    8 something like that, so my request is, could we have a

    9 half an hour break?

    10 JUDGE KARIBI-WHYTE: This break is more than

    11 half an hour.

    12 MR. ACKERMAN: It is until 2.30, is it not?


    14 MS. RESIDOVIC: Oh! I am sorry, your Honour.

    15 JUDGE KARIBI-WHYTE: We will come back at

    16 2.30. This will not take me long.

    17 (12.10 pm).

    18 (Luncheon adjournment)








  36. 1 (2.30 pm)

    2 JUDGE KARIBI-WHYTE: Good afternoon, ladies

    3 and gentlemen. Perhaps we can get your witness back to

    4 his stand.

    5 Just kindly remind him he is still on his

    6 oath.

    7 THE REGISTRAR: I remind you, sir, that you

    8 are still under oath.

    9 A. I am so reminded.

    10 JUDGE KARIBI-WHYTE: Mr. Ackerman, it is all

    11 for you.

    12 MR. ACKERMAN: Thank you, your Honour.

    13 Dr. Gow, I have good news and bad news for

    14 you. The good news is that I have very few more

    15 questions I have to ask you and the bad news is that

    16 there are three lawyers coming behind me.

    17 A. I have been waiting for that one.

    18 Q. With the help of the usher I have one more

    19 document I want to share with you. I have given you an

    20 extra copy for Mr. Niemann.

    21 Could I get the exhibit number, please?

    22 THE REGISTRAR: The exhibit number, D38/4.

    23 MR. ACKERMAN: Thank you very much.

    24 Dr. Gow, this exhibit is provided to you both

    25 in an English translation and in the original

  37. 1 Serbo-Croatian which I think also shows an original

    2 signature. My question is, do you recognise this

    3 document? Is it a document that you have previously

    4 seen?

    5 A. At this stage, I would not commit one way or

    6 the other. I mean, it looks like documents that I have

    7 seen, but I cannot say -- I would not say without

    8 having something against which to check it that I had

    9 seen it.

    10 Q. It purports to be, does it not, an order from

    11 the chief of the headquarters of the armed forces

    12 ordering the removing from Bosnia-Herzegovina of

    13 citizens of the Federal Republic of Yugoslavia and

    14 specifically listing the units that are to be moved.

    15 A. It appears to be something along those lines,

    16 although I take it from the translation that it is

    17 chief of the headquarters of the armed forces, that

    18 certainly the photocopy that I have here does not show

    19 that clearly on the original, but I am not... you

    20 know.

    21 Q. You do know that on or about 11th May 1992

    22 there was such an order. We have discussed it earlier

    23 in your testimony.

    24 A. Oh, yes, there were orders concerning the

    25 redistribution of personnel and units.

  38. 1 Q. Your Honours, I will offer exhibit number

    2 D38/4.

    3 JUDGE KARIBI-WHYTE: Yes, that should be

    4 admitted.

    5 MR. ACKERMAN: Thank you, your Honour.

    6 Dr. Gow, in June of 1993 you had an article

    7 published in Jane's and in the course of your writing

    8 in that article, it was clear to you that the army of

    9 the FRY was not at that time engaged in the fighting in

    10 Bosnia-Herzegovina. Is that a fair statement?

    11 A. I would not regard it as being a fair

    12 statement. I am not sure quite what you have that is

    13 written or how you are reading it, but I would --

    14 Q. Before you go any further, then let me be

    15 fair and tell you exactly what you said, and if

    16 necessary, I can pull that article and you can confirm

    17 what I am saying and you tell me if that is necessary:

    18 "The declarations by Generals Stefanovic and

    19 Panic that the YA could enter the Bosnian or Croatian

    20 fray must be taken seriously. It may be that threats

    21 to use the YA in the case of any international

    22 intervention on the territory of the former Yugoslav

    23 state are rhetoric. However, with the Stefanovic

    24 approach clearly ascendant, there is every chance that

    25 the YA would undertake knowingly and reluctantly

  39. 1 fruitless action against any potential intervention."

    2 I need to go on:

    3 "The YA's engagement in Bosnia is not

    4 inconceivable. At the same time, the Belgrade

    5 politico-military elite has been careful in testing the

    6 thresholds of international tolerance and probably

    7 would not go into action if it was thought there was

    8 a more prudent course."

    9 That is the quote.

    10 A. Well, that seems a very fair representation,

    11 and I think if you were to understand that and probably

    12 to have read it in context, there is a difference

    13 between the covert use of units of the VJ in addition

    14 to the elements of the old JNA left behind to operate

    15 as proxies, in Bosnia-Herzegovina, and the situation to

    16 which you are just referring, that is a situation in

    17 which there would be the possibility, under discussion

    18 from General Stefanovic of a formal and open commitment

    19 of the VJ, in this case written as the YA, the Yugoslav

    20 Army, to the fray.

    21 So, in addition to the use of those units

    22 left behind as the VRS, and the forces operating in

    23 support of those limited forces in a covert way, you

    24 would be changing the situation to one in which there

    25 would be open involvement in which the kinds of

  40. 1 questions that we discuss from time to time in this

    2 Trial Chamber would not have arisen in the way that

    3 they do, and I think that the essence is to understand

    4 that in the context of that article, that is what is in

    5 question, the formal and open commitment of the VJ as

    6 a whole rather than any involvement in any presence.

    7 I think it is quite clear from the quote

    8 reference to testing thresholds, a key part of this

    9 whole strategy was to test thresholds, and part of the

    10 threshold was the idea that it was unacceptable, in the

    11 given circumstances, openly to commit forces and to

    12 admit that those forces had been committed, but it was

    13 conceivable that circumstances would arise where there

    14 would be no alternative but to do so in a larger way,

    15 and with an open commitment.

    16 If I may, I would also go -- I was not given

    17 a chance to answer the last question this morning which

    18 was about the Secretary-General's degree of knowledge

    19 vis-à-vis that of the representatives of the permanent

    20 members of the Security Council and whether or not

    21 I thought the permanent members would know more or less

    22 than the Secretary-General.

    23 I think it has to be said that with all due

    24 respect to what the Secretary-General can get to know

    25 through certain channels, it always has to be

  41. 1 recognised that the permanent membership, in

    2 particular, of the Security Council is in a position

    3 through a variety of means, if it is government

    4 agencies, to establish what is going on and what

    5 a position is, and that kind of analysis is reflected

    6 inter alia in the memoirs of Warren Zimmerman who was

    7 US Ambassador to Belgrade at this stage, so I think to

    8 be clear about the understanding and where it comes

    9 from and what the Security Council members might or

    10 might not know.

    11 It is rather like the situation, vis-à-vis

    12 Iraq, that is going on around us as we speak. Many

    13 people might say, "Well, what do they know? What does

    14 the Secretary-General know?" I would take it as a very

    15 fair assumption that representatives of my own

    16 government and of your government know full well what

    17 is at stake and why the situation is the way that it

    18 is.

    19 Sorry, it is kind of -- the question was

    20 raised, forgive me for drawing you back to it at this

    21 stage, but it does seem -- it went unanswered.

    22 Q. And it is your position, then, that the

    23 members of the Security Council deliberately keep the

    24 Secretary-General in the dark about matters which they

    25 have instructed him to deal with?

  42. 1 A. I think it would be a fair assumption that

    2 all governments do not share all things that they know

    3 with people at all times.

    4 Q. Your answer before your most recent

    5 explanation leads fairly naturally into the next

    6 question that I wanted to ask you, and that was this:

    7 it was to the advantage of the FRY, Serbia and

    8 Montenegro, to be seen as not involved in the war in

    9 Bosnia and to have it seen as a purely civil internal

    10 conflict, was it not?

    11 A. It was to the advantage of the FRY, if it

    12 could establish that that was the way in which events

    13 were seen. That goes to some of the documents you

    14 showed me this morning, the statements by Kostic and so

    15 forth taken from the Yugoslav official publication

    16 site, all of which were in the context of saying, "This

    17 is not our concern", because they did not want it to be

    18 seen to be their responsibility.

    19 The same with the decision referred to in May

    20 on which this document reflects.

    21 I would also just -- we went away from this

    22 quickly -- note that in the same document that there is

    23 reference in the second paragraph, on the second page,

    24 that if, for any reasons, the transfers detailed on the

    25 first page cannot be accomplished, then the Commander

  43. 1 of the military district will decide what to do with

    2 them. I think if you had looked at a close record of

    3 what actually happened, a number of cases, the units

    4 concerned did not go to the destinations indicated

    5 here. It would be a matter for detailed examination.

    6 Q. I want to try something.

    7 The question that I asked you was: it was to

    8 the advantage of FRY, Serbia and Montenegro to be seen

    9 as not involved in the war in Bosnia, and to have it

    10 seen as a purely civil internal conflict. Is there any

    11 reason why you just cannot say, "yes"?

    12 A. I did say yes, and expanded on the answer.

    13 I thought; forgive me if I did not, I thought that was

    14 the first part.

    15 Q. Would it be possible if you agree with

    16 a question that I ask you, to just say, "yes", if it is

    17 a fair response?

    18 MR. NIEMANN: Well, provided, your Honours, it

    19 is a fair response, because just saying, "yes", to

    20 a question such as, "Is it true that Belgrade had never

    21 had at any stage aspirations over Bosnia-Herzegovina?",

    22 in the context of some comment made by a politician

    23 could be, "Yes"; but an explanation is then called for

    24 as to why that would not be correct.

    25 So, I object to Dr. Gow being constrained to

  44. 1 simply, "yes", "no", answers when it is clear and

    2 obvious that an explanation is called for as to why it

    3 may be a "yes", answer to the contents of some document

    4 or material, but that the reality of the situation is

    5 that it is not, "yes", at all, but some explanation is

    6 called for.

    7 MR. ACKERMAN: And when an explanation is

    8 called for, I have no objection, your Honour; I am just

    9 trying to move things along.

    10 JUDGE KARIBI-WHYTE: I do not know why you

    11 should stretch this question too much. I think it is

    12 a matter of opinion, because he is not the pro tem

    13 government of Yugoslavia. Whatever he says is his

    14 opinion about it. He might say "yes" or "no".

    15 MR. ACKERMAN: Yes, sir. It was also to the

    16 advantage, was it not, of the government of

    17 Bosnia-Herzegovina to be seen as victims of

    18 international aggression because that government was

    19 trying to get international assistance?

    20 A. That is the case.

    21 Q. We discussed that in December, if you

    22 recall.

    23 That political situation with FRY and the

    24 government of Bosnia-Herzegovina having an interest in

    25 matters being seen a certain way by outsiders makes it

  45. 1 very difficult to give account to reports from either

    2 side about what was in fact going on on the ground,

    3 because you never know whether you are dealing with

    4 a political statement or a factual statement. Just as

    5 a general proposition.

    6 A. As a general proposition, it could, but as

    7 a general proposition I think it would have to be

    8 treated with caution and it would really depend on the

    9 situation and what sources were available and the

    10 context and what might be said about it.

    11 Q. Well, for instance, you know that there are

    12 those who contend that Serb paramilitary groups were

    13 operating in Bosnia-Herzegovina under the direction and

    14 encouragement of the Belgrade government. You know

    15 that there are people who so contend, do you not?

    16 A. I do indeed. I would contend that myself.

    17 Q. And in the Tadic case when asked about that

    18 your answer was:

    19 "I have no specific knowledge of meetings

    20 between government officials and members of any

    21 paramilitary groups to establish strategy."

    22 Correct?

    23 A. Could you repeat that, please?

    24 Q. Your testimony in Tadic was this:

    25 "I have no specific knowledge of meetings

  46. 1 between government officials and members of any

    2 paramilitary groups to establish strategy."

    3 A. If that is the record, then I am sure that it

    4 is an accurate transcription of the record. But if,

    5 "government officials", includes members of the JNA,

    6 for example General Stefanovic, then there were

    7 meetings, and also in the evidence presented, as far as

    8 I recall in the Tadic case, we used the personal

    9 evidence of Vojcem Seselj, one of the paramilitary

    10 leaders, about -- referring to his discussions with

    11 President Milosevic himself, so I am not sure. I mean,

    12 I think it is something which would have to be treated

    13 with care.

    14 Q. That is totally fair and we are going to get

    15 into some more specific matters with regard to that.

    16 One of the problems that the international

    17 community in general had, and I am talking about during

    18 the Vance/Owen process, during the Lord Owen process

    19 and any efforts made by international organisations to

    20 try to deal with what was going on in Yugoslavia, was

    21 trying to figure out who was in control of what at

    22 various times.

    23 A. I think it was a question of trying to sort

    24 out at some stages the degree of control that was going

    25 to be exercised. I think it was always clear that if

  47. 1 Belgrade chose to exercise influence and control over

    2 those forces in Bosnia-Herzegovina, it could, which was

    3 demonstrated when finally the war came to an end, and

    4 on a number of occasions the head of the security

    5 service, Jovitze Stanovic was sent down to Bosnia and

    6 Belgrade's wishes came into effect.

    7 Q. Let me go back to a fairly early time, even

    8 before the fighting broke out in Slovenia.

    9 There was activity in Belgrade by the JNA in

    10 the formation of a new communist party; correct?

    11 A. Yes, there was.

    12 Q. And the issuance of arrest warrants for the

    13 Croatian Defence Minister?

    14 A. There was.

    15 Q. In the deployment of tanks on the streets of

    16 Belgrade following speculation regarding the imposition

    17 of Marshall Law?

    18 A. Deployment of tanks on the streets of

    19 Belgrade following agreement of the Presidency, the

    20 State Council to do so, following a request from its

    21 Serb representative on behalf of the Serb

    22 authorities, in response to demonstrations on the

    23 streets of Belgrade on 9th March 1991.

    24 Q. And you said --

    25 A. It was the question of the state of emergency

  48. 1 came in the days after that.

    2 Q. What you said about that, those three issues

    3 in the South Slav Journal was that:

    4 "Each of those demonstrates that the military

    5 action are governed by attachment to its Communist

    6 roots, and the absence of central authority in

    7 Yugoslavia."

    8 What I want to focus on is, "the absence of

    9 central authority in Yugoslavia"; is that correct?

    10 A. Is it correct that that is what you want to

    11 focus on, or...

    12 Q. Yes, that these actions that we just talked

    13 about done by the JNA were done in the absence of

    14 authority. They did those things on their own.

    15 A. No, not on their own. Because, for example,

    16 the deployment of troops on the streets of Belgrade was

    17 taken in conjunction with, as I said, on the authority

    18 of a decision of the Presidency which decision was

    19 arrived at through the request and the pressing of the

    20 Defence Secretary and the Serb representative,

    21 Borislav Jovic and equally that the moves towards

    22 a state of emergency afterwards were part of an

    23 arrangement made between Jovic and the Defence

    24 Secretary, Kadijevic, so to say, "on their own", would

    25 be wrong, and maybe if I were to rephrase what I wrote

  49. 1 as the absence of central authority...

    2 Q. "Absence of central authority in Yugoslavia"?

    3 A. Would be maybe not the complete absence but

    4 the weakness of, and the fact that central authority

    5 was divided and at this stage you were in the run-up to

    6 the final break-up and the conflict.

    7 Q. So then what you said in the South Slav

    8 Journal was not wholly accurate. Is that what you are

    9 saying today?

    10 A. I say that it is a fair representation, but

    11 if you were to give it specific interpretation and

    12 context for something not to be written in the South

    13 Slav Journal, but for the purposes of the court which

    14 -- I think probably an element of fine-tuning would be

    15 required; then I would say "absence" would be the wrong

    16 word, yes, but it would not give you the wrong sense

    17 that central authority had broken down, was breaking

    18 down, and that there were certain events going on and

    19 the army was seeking to carry out the role you

    20 identified this morning in upholding the socialist

    21 order and finding ways to deal with elements within the

    22 system to try and address those problems of weakness.

    23 Q. So, in all of your writings should we read

    24 them with a sense, in our minds, that you may have

    25 chosen the wrong word and not been as precise as you

  50. 1 could have been with regard to your writing?

    2 A. I do not think you should do that at all.

    3 I am happy to say that in -- one of the things I recall

    4 from before Christmas is that you kept putting a lot of

    5 things to me and I was uncertain about them and then

    6 you rephrased them quoting from what I had written and

    7 I was far happier with what you quoted from that I had

    8 written than the way in which you had paraphrased

    9 things, and I think there is a degree of care in what

    10 I write, on the whole, and I cannot say that either

    11 what I say verbally or what I write -- I can never say

    12 that with retrospect I might not choose a different

    13 word here and there.

    14 Q. When you are writing you certainly have an

    15 opportunity to review what you have written, maybe

    16 numerous times in the editing process, to try to make

    17 certain that you have chosen the right words.

    18 A. Often that is the case. It is not always the

    19 case, and sometimes maybe something written at one

    20 stage will look slightly different something like ten

    21 years later.

    22 Q. And by contrast --

    23 A. But thankfully not too different.

    24 Q. By contrast, in testimony you give before the

    25 court you really do not have that opportunity to

  51. 1 carefully review your words to make sure you are using

    2 precision. Is that correct?

    3 A. I do not have the same opportunity. As far

    4 as possible I take care in what I say and I try to make

    5 sure that what I say accurately represents what I would

    6 wish you to understand, and that the court -- if I am

    7 trying to assist the court I try to be as careful and

    8 accurate as I can.

    9 Q. You certainly had control over the words that

    10 you chose in your writing in the South Slav Journal,

    11 did you not?

    12 A. To be perfectly honest I do not remember any

    13 more, but I certainly would have chosen a set of words

    14 in the first place. I feel -- I mean, forgive me but

    15 I fail to see quite what the relevance of all of this

    16 might be.

    17 Yes, I wrote something, I see nothing in

    18 essence with which I would disagree in that, but for

    19 the purposes of the accuracy of working in a court,

    20 I would say, "absence", was the wrong word, but if it

    21 would make everything easier I will go back and I will

    22 stick by "absence" and settle for qualifications within

    23 my own mind.

    24 Q. Well, just so that you will understand and

    25 I think I am quite certain you do, whether or not

  52. 1 something is relevant is an issue for a judge to

    2 decide, not a witness; okay?

    3 A. Absolutely, but I think it is fair for me to

    4 understand what it is that I am being asked.

    5 Q. Let me take you now to the fighting in

    6 Slovenia.

    7 You know what I am talking about when I talk

    8 about, "the fighting in Slovenia"?

    9 A. I believe I do, yes.

    10 Q. During that short conflict there the JNA was

    11 acting largely on its own initiative with what it did

    12 there, was it not?

    13 A. It was acting largely on its own initiative,

    14 yes. It was deployed formally to give assistance to

    15 the Federal Police, but the action which it took was

    16 far beyond the authorisation, so I would say, yes, it

    17 was acting largely on its own initiative.

    18 Q. Yes. Your words again:

    19 "The YPA...[which is the JNA]... seemed to be

    20 acting largely on its own initiative in Slovenia."

    21 Do you want to change anything you wrote in,

    22 "Survival", in that sentence?

    23 A. No.

    24 Q. No?

    25 A. I said, "no". Sorry.

  53. 1 Q. Okay. In that same article you said this:

    2 "After the EC mediators met in Belgrade on 29

    3 June and presented their three-point cease-fire plan the

    4 Federal Army...[that being the JNA]... for its part

    5 acted without political authority and launched its

    6 heaviest assaults to date on Slovenia."

    7 You agree with that?

    8 A. I agree both that I wrote it and that that

    9 was the case.

    10 Q. All right. There were even instances, were

    11 there not, that we can point to where the JNA itself

    12 had little control over what its own commanders were

    13 doing.

    14 A. It is true that there were instances in which

    15 JNA commanders appeared to be acting with a degree of

    16 local initiative and authority, yes.

    17 Q. And this was noticed and reported by EC

    18 monitors who were working in Yugoslavia.

    19 A. That was noted, yes.

    20 Q. And it was admitted by the Deputy Defence

    21 Minister, Stane Brovet --

    22 A. It was admitted by Brovet. I would express

    23 by now a degree of caution to be sure how far, again in

    24 line with some of the other things, that was something

    25 said in the sense of they would not want to say the

  54. 1 opposite.

    2 Q. Again, I think, the best way is for me to

    3 just tell you your own words. This is from a journal,

    4 RFE/RL which stands for something I have forgotten.

    5 A. Radio for Europe/Radio Liberty.

    6 Q. Yes:

    7 "In some instances the YPA...[which is the

    8 JNA]... had little control over its own local

    9 commanders as EC monitors reported and Deputy Defence

    10 Minister Admiral Stane Brovet conceded."

    11 Now, those are your words. Do you agree with

    12 them?

    13 A. Again, I agree that I wrote them and I agree,

    14 broadly, I agree with them. In retrospect I think

    15 I would interpret some of those things differently.

    16 That has to be seen as something written at a time, and

    17 I think, I would stress that most -- that as situations

    18 develop, not only I but other people begin to see

    19 pictures emerge which are not necessarily to be seen in

    20 a particular moment, and if you understand from the

    21 things we discussed before that part of the strategic

    22 approach involved the importance of disguising things

    23 which might actually be happening, and therefore

    24 attempts to give a sense of disorder and confusion, and

    25 it is conceivable that what might have been happening

  55. 1 was not completely, as I wrote there and described, but

    2 as part of a pattern of known camouflage, if you like

    3 -- I cannot think of the right word for the moment to

    4 express it -- which is not to say that I think that

    5 that was always entirely the case.

    6 I think there was an element of confusion all

    7 round, that people were trying to work out at that

    8 stage what was happening, and as part of trying to work

    9 out what was happening, they drew conclusions which, in

    10 retrospect -- some of which might be true, some of

    11 which might be subject to re-evaluation which

    12 essentially is what I was saying in answer to the

    13 question before about the particular word I chose.

    14 Q. And that caveat that you just shared with us

    15 here in this courtroom was not one that you shared with

    16 your readers when you wrote that article for RFE/RL,

    17 was it?

    18 A. Well, it is true that I did not share it with

    19 them. I do not think it was something to be shared.

    20 It is not normal practice to share caveats of that

    21 kind. People write on the basis of the material

    22 available at the time.

    23 If material adds to understanding later, then

    24 it would not be wrong, first of all, to incorporate

    25 that additional material in understanding, and put it

  56. 1 to use, and, secondly, as far as appropriate, to adjust

    2 the understanding. One of the things also, in fact, in

    3 that article to which you refer is the nature of the

    4 paramilitary groups and the way they were operating.

    5 I think it has become far more clear since then, the

    6 degree to which some groups which apparently were part

    7 of this chaotic environment, all ended up having

    8 connections to Belgrade official organs, which is

    9 evidence which emerged some time afterwards and which

    10 evidence has since been presented in course of

    11 testimony here.

    12 Q. In October of 1991, the EC was trying to

    13 negotiate one of the many cease-fires that were

    14 negotiated in the Former Yugoslavia and came up in

    15 October with a plan that five of the six republican

    16 leaderships agreed to. Although? All Milosevic was

    17 being stubborn about it. And in discussing that in an

    18 article you wrote with a gentleman named Freedman,

    19 "Intervention Bands of Wickedness", you said:

    20 "In spite of whatever Kadijevic continued to

    21 say..."

    22 Well, I need to go back:

    23 "The existence of both Croatian and Serb

    24 extremist groups as well as a Federal Army whose

    25 operations in spite of whatever Kadijevic continued to

  57. 1 say were beyond political authority, meant that

    2 a political agreement would probably not mean a prompt

    3 end to fighting."

    4 Those were your words in that article. Is

    5 that correct?

    6 A. Yes.

    7 Q. And to expand on that just a little bit, what

    8 you are saying is that, because the Federal Army and

    9 these extremist groups were operating beyond the

    10 political authority of Belgrade or other political

    11 authorities, any agreement entered into by the heads of

    12 the various republics may not mean much because they

    13 had no control over some of these organisations that

    14 were carrying on the battles?

    15 A. That is -- from what I recall how you read it

    16 I think that is something which could be interpreted

    17 from it. That is something, again, which in the light

    18 of the subsequent publication of Kadijevic's memoirs to

    19 which I have made reference before, it becomes clear

    20 that the situation in that -- on that question was very

    21 different. The apparent lack of political authority

    22 was in fact part of a process, a two-fold process. One

    23 was a competition -- not a competition -- was part of

    24 the process by which the Serb leadership and the

    25 JNA's general alignment was being brought into one of

  58. 1 common cause in the new project to create this set of

    2 borders we described, and the other is the degree to

    3 which it was always possible to try to make political

    4 agreements but with no intention of actually

    5 implementing those agreements because armed force would

    6 be used to prosecute a different cause on the ground.

    7 I think what we have to look at in this

    8 context is the idea that while political agreements

    9 were being sought and discussions on potential

    10 settlement were being conducted there was a conflict

    11 taking place on the ground, and that that conflict

    12 was -- the point of that conflict was to establish

    13 facts on the ground, which facts would then have to be

    14 dealt with as part of the negotiations.

    15 Q. Well, you refer to Kadijevic's memoirs.

    16 Memoirs in the first instance tend to be self-serving,

    17 and so it is a bit dicey to rely on someone's memoirs

    18 to establish undeniable facts about what happened in

    19 a situation, is it not?

    20 A. I think I would agree with the first part of

    21 the proposition that memoirs have to be -- well, always

    22 will have some element of being self-serving and in

    23 that context I would note that when Kadijevic's memoirs

    24 were published in Belgrade a number of those of

    25 a particularly Serb nationalist orientation who had

  59. 1 previously criticised Kadijevic for being too Yugoslav

    2 put precisely that point, that the memoirs as appeared

    3 were self-serving, making it seem as though what he had

    4 been doing all along was the kind of thing that I guess

    5 they might have wanted, rather than what they thought

    6 he was doing at the time.

    7 I still -- and there are areas in which he

    8 expresses opinions about things -- I would presume were

    9 not ones that he actually knew about, but just it was

    10 his opinion.

    11 In those matters concerning military

    12 operations about which he did know something, I would

    13 expect that the material presented is reliable, and to

    14 that extent I would also say that material presented in

    15 other places, for example, the Jovic diaries to which

    16 I made reference, which may also in some lines have the

    17 same kind of self-serving purpose, still also contain

    18 the basic material which establishes what was happening

    19 from the people who were involved as the actors at the

    20 time.

    21 Q. Do you remember an incident that happened in

    22 the time frame of October/November 1992 where Milan

    23 Panic who at that time was the Prime Minister of FRY,

    24 in an attempt to help ameliorate the situation going on

    25 in Bosnia-Herzegovina, agreed to allow the transfer of

  60. 1 Bosnian Serb aircraft to Serbia for safekeeping?

    2 A. I do.

    3 Q. And you remember that in negotiations with

    4 Lord Owen regarding the no-fly restriction and the

    5 almost certain efforts of the United States to enforce

    6 that, that Radovan Karadzic had agreed that the Bosnian

    7 Serb aircraft should be transferred to Serbia for

    8 safekeeping.

    9 A. Yes, declarations or agreements of that kind

    10 were made.

    11 Q. Yes, and you also know that the Commander of

    12 the Bosnian Serb Airforce, Major General Ninkovic,

    13 refused to transfer the aircraft because he said that

    14 could be a capitulation and not even Karadzic has the

    15 right to capitulate?

    16 A. Yes. You beat me to it. I was about to say

    17 that when you came in with a question. Yes. Although,

    18 again, I would point out that in all of these things it

    19 is possible to say one thing for political effect,

    20 but -- to have somebody else be seen not to be doing

    21 it, and either creating ambiguity or testing

    22 thresholds.

    23 Q. That is kind of the bottom line about all

    24 these things. It is trying to get hold of jello

    25 because you never know what is political and what is

  61. 1 real. You have a difficult time distinguishing. That

    2 is a fair statement, is it not?

    3 A. That I do or that people generally might?

    4 Q. People generally do.

    5 A. People generally might, yes. I think that is

    6 fair.

    7 MR. ACKERMAN: I appreciate the time we have

    8 spent together and I have enjoyed it, and thank you,

    9 and I do not have anything more to ask you.

    10 A. Thank you.

    11 Cross-examination by MR. OLUJIC:

    12 JUDGE KARIBI-WHYTE: Mr. Olujic, you are...

    13 MR. OLUJIC: Your Honours. Thank you, your

    14 Honours.

    15 JUDGE KARIBI-WHYTE: Proceed.

    16 MR. OLUJIC: Thank you.

    17 Good afternoon, Dr. Gow. First of all, let me

    18 tell you, I hope that the length of the trials here at

    19 the Tribunal and in view of what you have been through

    20 -- we hear that you have been indisposed -- I hope

    21 that this will not disturb you. I will try to

    22 concentrate myself on what my colleague Mr. Ackerman has

    23 said, in order not to repeat things unnecessarily, and

    24 I think also in order to check certain things, check

    25 the authenticity of certain claims, because it has to

  62. 1 be clear, Dr. Gow, that in the field of social sciences,

    2 unlike exact sciences, natural sciences, where

    3 everything can be verified, social science is always

    4 dependent on one's experience. It is empirical

    5 knowledge.

    6 Dr. Gow, during the chief examination in the

    7 Tadic case, among other things you claimed that there

    8 is a category of so-called, "Yugoslavs". Is that

    9 correct?

    10 A. I made reference to statistical documents

    11 from the SFRY in which one of the ways in which people

    12 could categorise themselves was by the label,

    13 "Yugoslav".

    14 Q. Yes, but Dr. Gow, the constitution from 1974

    15 did not provide for them, but they also were undeclared

    16 at the census.

    17 A. I am getting drawn between the two versions.

    18 If I have understood correctly, all the peoples forming

    19 the States of the SFRY were regarded as Yugoslavs in

    20 the sense of being South Slavs, therefore that is why

    21 I think it would not be relevant to have them treated

    22 in the same way as state-forming peoples because they

    23 were all variants of being South Slavs.

    24 There was some part which I got lost between

    25 the end of your version and the translation and

  63. 1 I wonder if you could just repeat the end of the

    2 question so I can be clear what the second part was,

    3 please.

    4 Q. Of course, doctor. The constitution of 1974,

    5 the last constitution in the Former Yugoslavia did not

    6 provide for the category of "Yugoslavs". However,

    7 during your chief examination in the Tadic case you

    8 said that there was a category of Yugoslavs as

    9 a nation. That is what is in the record. I therefore

    10 suppose that you are familiar with the contents of the

    11 constitution of the 1974 -- and I hope you would agree

    12 with me because this is not disputed.

    13 A. I agree with you on the question of the

    14 state-forming peoples for the SFRY because all of them

    15 from South Slavs, Yugoslavs. The question, as it

    16 appeared to come afterwards referred to there being no

    17 category for the Yugoslavs in the census where the

    18 information I produced was taken from SFRY statistics

    19 in which people in the census were given the

    20 opportunity to declare themselves as Yugoslavs and did

    21 so.

    22 Now, there is a difference between -- and you

    23 used the word, "nado", I think, to refer to Yugoslavs.

    24 The Yugoslavs in this case were not treated as one of

    25 the state-forming peoples but they were a category

  64. 1 registered in the census so there is a distinction to

    2 be made between state-forming people in the

    3 constitution and the census, if I have understood what

    4 you have put to me correctly.

    5 Q. That is precisely where the difference lies

    6 because after the census they were classified as,

    7 "undeclared". They did not declare themselves as

    8 Serbs, Croats, Slovenian, Macedonians or else they were

    9 simply put in the group of "undeclared citizens".

    10 Now, let us move further on.

    11 During the chief examination in this case,

    12 while you were examined by my learned colleague

    13 Mr. Niemann, on page 9247 you said that your work was

    14 focused on the Former Yugoslavia for the past several

    15 years. Is that correct?

    16 A. Yes, it has been. Not exclusively, but it

    17 has been focused on it.

    18 Q. Dr. Gow, could you be more specific and tell

    19 us since when have you been focused on that area?

    20 A. From somewhere in the -- certainly from 1983

    21 onwards, maybe from a little bit before, depending

    22 on -- these are difficult questions, I would not take

    23 as a starting point.

    24 Q. That means roughly about fifteen years.

    25 A. Yes.

  65. 1 Q. Would you be so kind and tell me the title of

    2 your doctoral thesis?

    3 A. I am afraid that I could not. I do not

    4 remember precisely, but it involved the words,

    5 "Legitimisation", and, "Yugoslav People's Army", and

    6 words of that kind. Some of that material went into

    7 the book "Legitimacy and the Military", to which

    8 Mr. Ackerman made reference earlier.

    9 Q. You also said that you could read Croatian,

    10 or as you called it "the Croatian or Serb language".

    11 Is that correct?

    12 A. I do not remember what I called it, but

    13 I read in those languages, yes.

    14 Q. Can you read Macedonian?

    15 A. I busk in Macedonian and other Slav languages

    16 from the base of it. I must say, I have read things in

    17 Macedonian, and I have drawn things from them, also in

    18 other Slav languages.

    19 Q. And how about Slovenian?

    20 A. The same with Slovenian.

    21 Q. Does that mean that we could also speak in

    22 one of the South Slav languages, that you would need

    23 the English language, or do you mean that you can only

    24 read these languages?

    25 A. If it should be necessary, we could speak

  66. 1 Serbo-Croatian, but I think it would be better for me

    2 to continue in English.

    3 Q. Tell us, Dr. Gow, have you read the laws of

    4 the SFRY in one of the South Slav languages or in the

    5 English translations, when you studied the legislation?

    6 A. I guess, if you are making references to

    7 things like the constitution, in both, at different

    8 times, depending on what it was and when and what was

    9 available, but always taken when used -- taken if

    10 possible from the original.

    11 Q. Have you heard of Mr. Taylor who has written

    12 a lot about the Austro-Hungarian monarchy? The name of

    13 the author is, "Taylor".

    14 A. Which Taylor?

    15 Q. A.G.P. Taylor.

    16 A. A.G.P. Taylor, yes.

    17 Q. Dr. Gow, could you supply us with the list of

    18 publications that you have read in relation to the

    19 history of the Former Yugoslavia and its peoples? Would

    20 that be asking too much?

    21 A. I suspect that it would. I mean, I could try

    22 and find ways to provide a list, if you really wished,

    23 but I cannot imagine how I would manage to make...

    24 I certainly could not provide one just now.

    25 Q. Yes. Later. That is what I thought. Could

  67. 1 you also provide us later of course, with a list of

    2 books and articles that you have written about

    3 Yugoslavia?

    4 A. I am not sure, but I believed that that had

    5 already been done.

    6 MR. NIEMANN: That has already been provided

    7 for, your Honour, and I wish to address the court at

    8 some stage, if this request for everything he has read

    9 is pursued because we will be here for the next two

    10 years.

    11 MR. OLUJIC: Please. Go on.

    12 A. I am sorry, I thought I had finished.

    13 JUDGE JAN: All he has read on a particular

    14 subject? How can you do that?

    15 MR. OLUJIC: No, no I thought...

    16 JUDGE KARIBI-WHYTE: Do you really need

    17 that?

    18 MR. OLUJIC: Your Honours, I meant the list

    19 about articles written about the Former Yugoslavia, but

    20 we have just heard that the witness could do that, so

    21 if necessary, I think -- and that is the reason why

    22 I ask him that -- I think it would be good if he could

    23 provide us with that. I did not mean right now, of

    24 course, but let us move on.

    25 A. Excuse me, but if I could just -- I think be

  68. 1 clear, my answer was that, yes, and I was under the

    2 impression that that had already been done and I think

    3 Mr. Niemann confirmed that such a list had already been

    4 passed to the Defence, and I suspect that that was of

    5 assistance to Mr. Ackerman in preparing his

    6 cross-examination, but, I mean, if that is incorrect

    7 then I am sure it can be dealt with.

    8 (3.30 pm)

    9 MR. OLUJIC: Thank you. During the

    10 examination-in-chief and during the cross-examination

    11 by Mr. Ackerman you said, among other things, that the

    12 course of the crisis in the Former Yugoslavia brought

    13 about a collusion of the former JNA and the Serb

    14 cause. Is that correct?

    15 A. It is correct that I gave evidence to the

    16 effect that, as this process was taking place, there

    17 was collusion between the Serb leadership and the

    18 JNA.

    19 Q. Dr. Gow, my question was: could you be more

    20 specific in respect of time? When did this happen?

    21 A. It was happening over a period of time.

    22 I would put the -- that is one of the most critical

    23 movements being in the early part of 1991. I know

    24 there are people who would say there was complete

    25 collusion from an earlier stage, and whilst I would not

  69. 1 absolutely exclude the possibility, I think the

    2 evidence suggests that it was a process evolving, and

    3 I think, in answering Mr. Ackerman a little earlier,

    4 I spoke of the arrangements in March 1991, first of all

    5 by which the Serb leadership got armoured personnel

    6 carriers, which we referred to earlier as tanks, to be

    7 deployed on the streets of Belgrade. I think maybe

    8 there were some tanks as well, and following that

    9 circumstances in which the JNA, acting with the Serb

    10 political leadership, tried to get the State Council,

    11 the collective presidency of the SFRY, to declare

    12 a state of emergency, primarily to create a state of

    13 emergency in Croatia, but the question throughout the

    14 territories of the SFRY, and there was a meeting held,

    15 I think two meetings held, I think on 11th and

    16 12th March 1991, at military headquarters in Belgrade,

    17 where General Kadijevic with the support of Borislav

    18 Jovic put these questions to the State Council.

    19 The State Council was divided, and did not

    20 agree to implement this state of emergency. This

    21 process of collusion, collaboration, whatever we might

    22 call it, then continued, with an arrangement between

    23 the Serb leadership and Kadijevic whereby Jovic

    24 would resign from the State Council. Jovic at that

    25 time was the Chairman of the State Council, creating

  70. 1 a vacuum, something along the lines of the absence of

    2 central authority I was discussing with Mr. Ackerman

    3 earlier, which maybe was somewhere in between

    4 a complete vacuum, but certainly to create a situation

    5 in which that authority was not there, and this

    6 arrangement was then that Kadijevic would act with the

    7 army to declare a state of emergency.

    8 For reasons which I think we probably cannot

    9 be absolutely sure about, but I would suspect mainly go

    10 to Kadijevic's own lack of confidence or conscience in

    11 that situation, he did not go ahead with that intended

    12 action, and subsequently shortly afterwards Jovic took

    13 his place again in the State Council, in the

    14 Presidency. So I think that is one clear example of

    15 the point where this collusion is coming closely

    16 together.

    17 Q. Let us go back a little further, 1989.

    18 Because you have read a lot about the Former

    19 Yugoslavia, you know that there was a celebration of

    20 the 600th anniversary of the Kosovo battle in that

    21 year. So you are familiar with that?

    22 A. Yes.

    23 Q. Dr. Gow, do you know, to whom did the JNA

    24 generals report during that time, during the

    25 celebrations? Was that Milosevic?

  71. 1 A. No. The JNA -- Kadijevic was a member of the

    2 Federal Executive Council, the government, and would

    3 report within the government, but primarily the

    4 authority over the JNA was by the State Council, the

    5 collective presidency. I think at that stage the

    6 Chairman of the Council was the Slovene Janes

    7 Stanovjic, if I recall correctly, but...

    8 Q. Stanovjic no, never. Maybe Danovzcek.

    9 A. I thought it was Stanovjic but maybe it was

    10 Danovzcek. I thought Danovzcek came afterwards, but

    11 never mind, anyway.

    12 Q. So if we could agree on the fact that the JNA

    13 generals at that time reported to Milosevic in 1989,

    14 what would that mean, and what was Milosevic at that

    15 time in Yugoslavia? He was the President of the

    16 Serb Presidency, at that time; am I not correct?

    17 A. Let me be clear first of all that we are

    18 speaking hypothetically, that it is not a matter of

    19 fact that we agree that the JNA was reporting to

    20 Milosevic but we are speaking hypothetically that, had

    21 the JNA been reporting to Milosevic, then what would

    22 the situation have been?

    23 Q. I do not think you have understood me

    24 properly. The generals did report to Milosevic or

    25 saluted to Milosevic in 1989, but we will move on.

  72. 1 A. I am sorry, are you meaning that at the

    2 celebration in Kosovo Polje they saluted? Fine. We

    3 can agree on that. I thought it was a question of

    4 authority and command and to whom they actually

    5 reported in a formal sense. Yes. But I do not think

    6 that should be taken too far.

    7 Q. Dr. Gow, if a celebration that has an internal

    8 Serb character was put to the level of the state,

    9 and if the generals are saluting not the person who is

    10 leading Yugoslavia but the President of the Serb

    11 Presidency, then of course this means what you have

    12 just said.

    13 A. I am not sure that it does because I am not

    14 sure what you take it to be that I just said, but

    15 I think, as I recall it, there was a particular

    16 question at the time about this, essentially, what

    17 could be regarded as Serb celebration --

    18 JUDGE JAN: Mr. Olujic, how is this all

    19 relevant for our purposes?

    20 MR. OLUJIC: Your Honours, it is important

    21 for establishing the relevant facts, the decisive

    22 facts. We can see here that Dr. Gow, he has been

    23 presented here by the Prosecution, and he has been

    24 questioned about all kinds of things and we have to

    25 check them. We have to confirm all the facts that can

  73. 1 be applied to our case, that can be relevant to our

    2 case, especially in relation to the structure of the

    3 state itself, and when the state actually ceased to

    4 exist.

    5 We have abandoned one commission on one side

    6 and then the actual beginning of the process on the

    7 other. Dr. Gow is a specialist in the area. He speaks

    8 South Slav languages and I would like him to answer to

    9 me, to tell me since when this process has been going

    10 on.

    11 JUDGE JAN: ... but they must be saluting

    12 senior members of the Council of State so how does that

    13 really matter to whom they salute? They may be

    14 saluting a number of persons.

    15 MR. OLUJIC: Yes, but at that time Milosevic

    16 did not represent the whole state. He represented one

    17 of the republics, namely the Republic of Serbia. Since

    18 Dr. Gow has assisted us in this matter as much as he was

    19 able to, I shall no longer dwell on this and I would

    20 like to move on, with your Honour's permission.

    21 A. If I may, I would be quite happy to move on

    22 as well, but I was about to finish a point in

    23 assistance which may help clarify exactly the point

    24 raised by the learned judge, that it was essentially

    25 a Serb celebration but one put into a federal

  74. 1 context, and the point I was going to make precisely,

    2 and this is why I raised the name of Stanovjic before,

    3 was that there was a significant political discussion

    4 in Slovenia because of events in Kosovo as to whether

    5 or not Stanovjic should also be there as one of the

    6 representatives at this celebration, and also,

    7 I suspect, receiving salutes, but I think that may

    8 clarify what the situation was.

    9 Q. Dr. Gow, are you sure that the aim of the

    10 aggression in Bosnia-Herzegovina was simply to take

    11 some of its parts or was there something else in the

    12 background?

    13 A. I am not entirely sure what you mean by,

    14 "something else in the background". I mean I would be

    15 quite happy if you could give me a guide as to what you

    16 might mean beyond the first part of the question.

    17 JUDGE KARIBI-WHYTE: Actually, if one might

    18 speculate, he is trying to ask if you have other

    19 reasons, other than your first ones, why the aggression

    20 took place. Any other reasons?

    21 A. I think -- what I think I have said -- I am

    22 not sure. I do not want to go in the wrong direction,

    23 but I think I have said many times that there was

    24 a campaign to create this set of territories, a new

    25 Yugoslavia, and that that would be a new Yugoslavia

  75. 1 essentially built around the Serb people, for the

    2 Serbs, and as a consequence of that there came to be

    3 what is known as "the practice of ethnic cleansing".

    4 JUDGE JAN: If I remember correctly, you

    5 said this morning that the JNA was involved in the

    6 process of refining the boundaries of the new Serb

    7 state. If I remember correctly this morning you said

    8 something to that effect.

    9 A. Indeed, I said something to that effect which

    10 was the project to create the new boundaries of what

    11 they would regard as a mini -- a new Yugoslavia. They

    12 would not call it a Serb state but it would be a set

    13 of federated territories involving Serbia, Montenegro,

    14 the lands in Bosnia-Herzegovina and in Croatia, and

    15 possibly at some stage it would have been thought also

    16 Macedonia, and that within that, in the lands in

    17 Croatia and Bosnia, there was clearly an effort to

    18 create those sets of territories in a way in which

    19 control could be exercised by the removal of people who

    20 might resist the new arrangement. I hope that is of

    21 assistance to your Honours.

    22 JUDGE KARIBI-WHYTE: Well, it depends on

    23 counsel, whether that satisfies your question. Are you

    24 still needing an improvement on it?

    25 MR. OLUJIC: No. Thank you. As far as that

  76. 1 is concerned. Do you know, Dr. Gow, that at that time

    2 certain official persons claimed that it was

    3 anti-constitutional and illegal for the Republic of

    4 Croatia and the Republic of Bosnia-Herzegovina to

    5 demand independence?

    6 A. Yes, I do know that there were people who

    7 said that.

    8 Q. Would you agree that the point is that

    9 Republika Srpska was formed in support of Belgrade and

    10 as a form of threat? Would you agree that it was the

    11 first to start inflicting blows and to threaten with

    12 the destruction of Bosnia-Herzegovina, if it embarked

    13 upon the road of independence, so that Republika

    14 Srpska varied in its ambitions from the minimum to the

    15 maximum but it was always guided and instructed from

    16 Belgrade, and that this support was not limited to

    17 moral support alone.

    18 A. There is rather a lot in there. Essentially,

    19 I would be in agreement that what came to be called the

    20 Republika Srpska was part of this project to create

    21 a new set of federated territories, of which Belgrade

    22 would be the capital, essentially for the Serbs, and

    23 that whilst I think there were periods for political

    24 purposes in 1993, 1994, possibly the Bosnian -- certain

    25 political leadership was given room to make decisions

  77. 1 for itself, it was always in the broad context of this

    2 project that it was acting.

    3 JUDGE KARIBI-WHYTE: That is only part of

    4 the question.

    5 A. I am sorry, there was a lot in it.

    6 I remembered as much of it as I could.

    7 JUDGE KARIBI-WHYTE: Yes. Counsel wanted to

    8 know whether they were not the first to inflict the

    9 blows.

    10 A. I think it would be fair to say that the

    11 onset of major armed hostilities on the territory of

    12 Bosnia-Herzegovina stemmed from this strategic approach

    13 which is to say that it would be a matter of very close

    14 investigation to establish exactly who fired which

    15 first shots where in Bosnia-Herzegovina. There are

    16 some claims that Croats fired the first shots in

    17 Herzegovina but without getting distracted by those

    18 elements I think the main thrust of the armed conflict

    19 was the use of armed force in pursuit of the project to

    20 which I just made reference: the creation of this new

    21 Yugoslavia.

    22 Q. But you agree also that Republika Srpska was

    23 the first to threaten to destroy Bosnia-Herzegovina if

    24 it embarks upon its road, on a road of independence

    25 which would entail an entire organisational structure

  78. 1 and everything else. Thank you.

    2 Do you agree that it was always guided and

    3 instructed from Belgrade?

    4 A. I refer to my earlier answer which is that

    5 I think it was always part of a project which got

    6 essential guidance from Belgrade but there were times

    7 when I believe for political purposes the degree of

    8 control exercised was not as strong as it was at other

    9 times.

    10 So, in 1993, 1994, for political purposes,

    11 Belgrade gave scope for the Bosnian Serb as far as

    12 possible to appear to be acting independently and

    13 I suspect that in some cases they were, but whenever

    14 Belgrade wanted to it could and did take control.

    15 So ultimately, the project was always that

    16 conceived and implemented -- conceived and run from

    17 Belgrade.

    18 Q. I will come back to the second part of your

    19 question, but I am satisfied for the time being, and

    20 thank you.

    21 Shall we now move on to the question of

    22 Konjic which you referred to at length during the

    23 examination-in-chief and Mr. Ackerman's

    24 cross-examination.

    25 Could it be said and would you agree that the

  79. 1 tempora criminis, there were many different formations

    2 in Konjic at the time.

    3 A. In the period in 1992 to which we made

    4 reference, yes. There were different armed

    5 formations.

    6 Q. In the relevant period of time, that is from

    7 May, or maybe April, from April until October 1992.

    8 Would you agree also that those formations

    9 were not fully organised in the military sense?

    10 A. Yes. As far as I recall the

    11 evidence-in-chief that I gave so long ago now, I think

    12 I was making the point that there was a process of

    13 formation taking place for the armed forces of

    14 Bosnia-Herzegovina and that elements of organisation

    15 were being developed.

    16 Q. Would you agree that there was no joint

    17 command in that process of formation, that is the time

    18 we are talking about, not later on?

    19 A. If I could, I would ask you to explain what

    20 you mean by, "joint command".

    21 Q. What I mean is a chain of command,

    22 subordination, hierarchy, ranks, rules, uniforms,

    23 everything else that makes an army an army.

    24 A. Okay. I asked because there was a joint

    25 command formally created between the Croatian forces in

  80. 1 the Konjic area and the territorial defence forces of

    2 Bosnia-Herzegovina. If you were talking about the

    3 overall command structure of the army of

    4 Bosnia-Herzegovina, it was evolving. It was based

    5 around some of the elements of the territorial defence

    6 structure. It was primarily being created around the

    7 framework of the Patriotic League which I made

    8 reference to in evidence-in-chief.

    9 There was some form of a chain of command,

    10 but I think it would become, as I think I said before

    11 -- it was something which was not in position in the

    12 way that you would expect in a regular armed force that

    13 was well-established. It was something which was

    14 developing, and which was only formally really achieved

    15 some time towards the end of the period you suggested,

    16 in November. But it was being achieved throughout the

    17 year and there were clearly elements of hierarchy and

    18 of command, although the use of ranks had not been

    19 formally adopted.

    20 Q. So, we can agree that there were no

    21 prescribed uniforms, rules of combat did not exist,

    22 rules of duty, that there were no ranks, all the other

    23 things that if enumerated, so you agree with that.

    24 A. There were some of those things in some ways

    25 and some of them there were not. It was an evolving

  81. 1 situation and as far as I understand it, most of those

    2 things were in the process of being developed, creating

    3 those structures of authority and hierarchy.

    4 In terms of the documentation on one of the

    5 questions we discussed in December, I believe, is the

    6 process by which in a situation of a number of armed

    7 forces, the role of co-ordinator came to be relevant

    8 and then after that the way in which tactical group

    9 formations had been adopted and used, response to the

    10 relative absence of an overall complete hierarchical

    11 normal command structure, the way that a tactical group

    12 commander had then been given responsibility and

    13 command authority for all units in a particular area of

    14 operation, unlike a conventional use of tactical group

    15 and then after that the way in which the tactical

    16 groups had given way to the formation of the core

    17 structure for the army of Bosnia-Herzegovina, so

    18 overall, you see this process of evolution and

    19 consolidations of command and control authority.

    20 Q. That is why I am asking you this, because my

    21 next question actually relates to your answer.

    22 Could you tell us whether, in any army there

    23 exists this rank of co-ordinator, as a rank?

    24 A. I am not aware of the term, "co-ordinator"

    25 being used to denote a rank, it denotes a function,

  82. 1 rather like Commander In Chief is not a rank within the

    2 armed forces but a function which is usually served by

    3 somebody of the most senior rank.

    4 Q. But the rank of co-ordinator does not exist.

    5 We can agree.

    6 A. Yes.

    7 Q. I am sorry, do you remember of any conflicts

    8 among the Muslims in that same period of time in the

    9 region of Konjic?

    10 A. I do not recall there being armed conflicts

    11 between Muslims in the area. There was clearly some

    12 kind of political conflict between -- when Mr. Dalic was

    13 co-ordinator. Again, this is not from expertise really

    14 in the area of Konjic it is just from some of the

    15 things that I have seen. I think I have said, I got

    16 the impression that there was an argument going on, at

    17 least, between Captain Ramic and Mr. Develic, so if by

    18 that you mean conflict between them, yes, if you mean

    19 armed conflict I am not aware of any armed conflict

    20 between Muslims.

    21 Q. Tell me doctor, do you know anything about

    22 MUP having its own command which did not recognise

    23 others? Could we agree in that statement, that the MUP

    24 had its own command, but that this command, under no

    25 circumstances recognised other commands such as the

  83. 1 command of the army, the territorial defence and the

    2 commands of other formations.

    3 A. I presume that again you are speaking in the

    4 same period.

    5 Q. Always, about that same period, yes. I am

    6 sorry if I did not make myself clear.

    7 A. I just want to be clear about answering.

    8 The interior ministry forces were one of the

    9 three elements which fed into the creation of the

    10 Bosnian army. It was a separate strand with its own

    11 separate lines of authority to begin with, but it was

    12 one of those elements as had been the case in Croatia

    13 which came to form the army, so I do not think I would

    14 agree that it never accepted authority or commands in

    15 other ways, but I would accept that to begin with it

    16 was a separate line of authority, a separate

    17 organisation and line of authority operating, but being

    18 brought into this overall framework that would become

    19 the army of Bosnia-Herzegovina, not the MUP in its

    20 entirety but those armed elements, relevant to the

    21 conflict.

    22 Q. Certainly later on, but then at that time in

    23 addition to the territorial defence, the Ministry of

    24 the Interior forces and other formations that existed

    25 in the area at the time, I think that it can be

  84. 1 ascertained that in that period of time MUP did have

    2 its command, of course, but this command was not

    3 incorporated, not co-ordinated with other commands, in

    4 other words they they were accountable to themselves.

    5 They did not recognise other commands because they were

    6 not operationally linked, in fact, with other

    7 commands.

    8 A. As I understand it, that was the formal case,

    9 but also there were provisions being made in line with

    10 the old general people's defence doctrine which I guess

    11 to some extent was being used as a basis for MUP units

    12 to be assigned to, or to work with, to be co-ordinated

    13 with the territorial defence units. I think the key

    14 thing to stress is that there were separate elements,

    15 but all were being brought together into one formation,

    16 but it was a process.

    17 Q. And that is only your conclusion that you

    18 yourself are making. Is that not so?

    19 A. I am sorry, I am not clear what you are

    20 asking me. Yes. It is the inference that I have

    21 drawn.

    22 Q. Yes. Thank you.

    23 Your Honours, with your leave, perhaps we

    24 should have a break now, or shall I continue with my

    25 cross-examination?

  85. 1 JUDGE KARIBI-WHYTE: No, you may not. We

    2 will have a break and come back at 4.30.

    3 (4.00 pm)

    4 (Short break)

    5 (4.30 pm)

    6 JUDGE KARIBI-WHYTE: May we have the

    7 witness?

    8 (Witness enters court)

    9 Continue, Mr. Olujic.

    10 MR. OLUJIC: Thank you, your Honours.

    11 Dr. Gow, you are familiar with the

    12 international war law?

    13 A. I am familiar with the existence of a body of

    14 international humanitarian law and laws of armed

    15 conflict. To say I am familiar with them, I do not

    16 know. I know something about the content, but I would

    17 not profess to be precisely expert in them or something

    18 of that kind, or to give comments. I mean, I am happy

    19 to discuss them as an individual who is aware of some

    20 things, but not in the sense that I would presume to

    21 pronounce.

    22 Q. But if I ask you some facts about the

    23 international war law, you would not mind?

    24 A. You are welcome to ask me questions and as

    25 far as it is within my competence to answer them,

  86. 1 I will do so.

    2 Q. Thank you. Dr. Gow, do you know anything

    3 about the sort of reflection of the international war

    4 law in the Former Yugoslavia?

    5 A. I am not sure that that is a question I am

    6 competent to answer, as far as I have understood it.

    7 Q. Thank you. Dr. Gow, you have had very

    8 successful co-operation with the ATP, am I not right?

    9 A. I have had co-operation with them. I am not

    10 sure -- it has largely been a good experience; whether

    11 it has been successful, I think, is for others to

    12 decide.

    13 Q. I have read some of your previous

    14 testimonies, and I would like to ask you whether the

    15 ATP has been satisfied with your work.

    16 MR. NIEMANN: I object!

    17 JUDGE JAN: That is for Mr. Niemann to say.

    18 JUDGE KARIBI-WHYTE: You would not have

    19 heard from him if he was not satisfied.

    20 MR. OLUJIC: Dr. Gow, your function here as an

    21 expert witness, is it not more, at least the way

    22 I understand it, to inform this honourable Tribunal

    23 about certain circumstances, including history, law and

    24 politics. Could we say that?

    25 In other words, Dr. Gow, let me illustrate my

  87. 1 question. You are not a forensic witness; I mean, you

    2 do not have to establish certain facts and the scene of

    3 the crime and so on. You are here to instruct,

    4 describe certain situations in this particular case, in

    5 the territory of the Former Yugoslavia.

    6 A. As far as I understand my role, and I would

    7 assume that everybody else in this room understands

    8 what the role is far better than I actually do, it is

    9 to assist the Tribunal by providing material upon which

    10 to establish an understanding of the context in which

    11 alleged crimes were committed, and that that material

    12 may be relevant to whether or not the Statute, or some

    13 parts of the Statute can be applied.

    14 That is my understanding. I would not

    15 profess to say for sure that that is what the role is,

    16 if somebody told me it was otherwise. But, if I may,

    17 the point you made about forensic evidence, I mean,

    18 I understand I am here as an expert to assist the

    19 Tribunal rather than as a witness to events in Konjic

    20 in this case or as somebody who has specific knowledge

    21 of Konjic or as somebody who has made forensic

    22 examination of Konjic. I am somebody who has a broad

    23 understanding of the context and uses that broad

    24 understanding to provide points of contact with what

    25 I know about Konjic which is of course relatively

  88. 1 limited and only on the basis of materials that I have

    2 looked at here.

    3 Q. And of course we are treating you here as

    4 a scientist, so let me ask you, as a scientist, as

    5 a scientific argument, your claim during the

    6 examination-in-chief, the intention of the JNA to

    7 divide itself in officers of Serb origin and others,

    8 you said it was not merely your opinion. Does that

    9 mean that you actually base your opinions on the

    10 opinions of others?

    11 A. I think it is true that at times I base my

    12 opinions on discussions with others. I think I made

    13 that clear a long time ago, but I think I made that

    14 clear at the beginning of the testimony, that I was

    15 giving along with material from other sources,

    16 documentary material, both things from published

    17 sources and elsewhere that I have gathered, documents

    18 that I have seen here in the Office of the Prosecutor;

    19 I base it on a whole range of sources of information.

    20 Q. And do you base your opinions on the

    21 positions of the Prosecution as well?

    22 A. No, I do not, because I am not quite sure

    23 what the positions of the Prosecution are. I know that

    24 the Prosecution has a case to run, and that within that

    25 there might be requirements, but I base my opinions on

  89. 1 an evaluation of the material that I see and my

    2 understanding of the situation and the events, but

    3 I understand that obviously the Prosecutor invites me

    4 to come to act as a witness, because that -- the nature

    5 of that evidence will be presumed to be of some benefit

    6 to them.

    7 Q. During the examination-in-chief, Dr. Gow, you

    8 mentioned that it was very important what Mr. Jovic was

    9 saying. Is that correct?

    10 A. I think it is very important to take what

    11 Jovic says about decisions and events into account,

    12 because he was instrumental in that process taking

    13 place.

    14 Q. Are you familiar with the fact that he had

    15 personal interest and that he played one of the key

    16 roles in those events?

    17 A. I think I would refer to my previous answer.

    18 I think I was saying that he was instrumental in what

    19 was taking place, yes.

    20 Q. Do you not think that he should be afraid for

    21 punishment, of a punishment for his acts?

    22 A. It is a rather difficult philosophical

    23 question. Without knowing about the character of

    24 Jovic, I would not go too far in giving an answer to

    25 it. In a practical sense, then, I think it would be

  90. 1 a decision for others to decide whether or not the

    2 content of what Jovic reveals would be cause for him to

    3 be fearful of the kind of actions you suggest, but

    4 I would have thought it indicates that, were

    5 appropriate circumstances to emerge, then this would be

    6 a factor which might lead to his being fearful, but

    7 that is a very difficult question to answer. I do not

    8 know.

    9 JUDGE KARIBI-WHYTE: You have actually not

    10 answered it. You have not answered the question. So

    11 what is your answer?

    12 A. I think it is very difficult and I thought

    13 I had done my best to answer it.

    14 MR. NIEMANN: But it is an inappropriate

    15 question for him to have to deal with anyway, your

    16 Honour. It is not for him to be determining whether

    17 somebody should be fearful of prosecution or being

    18 guilty of something. I mean he is an expert witness

    19 here to comment on events, not to determine people's

    20 guilt or innocence. In my submission, your Honours, it

    21 is entirely an inappropriate question.

    22 JUDGE KARIBI-WHYTE: He does not know.

    23 Do you know whether he is fearful or not?

    24 A. If it is a factual question as to whether or

    25 not he is fearful, then I have no idea as to whether or

  91. 1 not he is fearful, but I thought the question was one

    2 more of supposition than of fact, but if that is the

    3 case then I am quite happy to say, no, I have no idea

    4 if he is fearful.

    5 MR. OLUJIC: What I am interested in, Dr. Gow,

    6 is the following: if your conclusions, conclusions that

    7 you drew from the diary of Mr. Jovic and you spoke about

    8 that during the chief examination and cross-examination

    9 -- if you have not used your conclusions in the Tadic

    10 case, why did you use them now, now that Moslems and

    11 a Croat are being tried?

    12 A. I think the question that Muslims and a Croat

    13 are being tried has nothing of bearing on the use, and

    14 the use of the diary is to reinforce that which I said

    15 in evidence in the Tadic trial, at which point I made

    16 reference to the actual interview tape from, "The Death

    17 of Yugoslavia", materials in which Jovic gives himself

    18 in his own words -- says these things, but what was not

    19 there in the use of the tape or in my evidence at the

    20 time, was to fix the point in time as being

    21 5th December 1991. We were just -- I was just saying

    22 it happened before and it was really to reinforce that

    23 point, and if you are asking me: would it have been

    24 better to have introduced the diary extract with the

    25 specific date at that time, then I would say, "Yes,

  92. 1 I suspect it would have been", but... well, I did not

    2 choose to use it at that time because I had not --

    3 I thought the material being presented would make the

    4 point.

    5 Q. I will be frank with you, Dr. Gow. I have not

    6 read that diary. I think it is completely irrelevant

    7 because I am familiar with the thinking and acting of

    8 Mr. Jovic, but I am sure he is trying to impress

    9 everybody about himself and accuse others and now

    10 I would like to know whether the fact that the use of

    11 his diary in this case, the case of Celebici, not in

    12 the case of Tadic -- has there not been a disruption of

    13 balance, because we have two approaches to something

    14 that should be identical in terms of scientific truth?

    15 A. If I may say, I have a problem with your use

    16 of the term, "scientific truth", and then if I may just

    17 put that to one side, I can say that the only

    18 difference between the evidence presented is that the

    19 use of the diary specifically locates the date in a way

    20 which the interview tape does not, and in which the way

    21 I presented the use of the interview tape in the Tadic

    22 case did not. So I do not think it really creates any

    23 question of a difference of either two interpretations

    24 or a difference in balance. It simply locates a date

    25 and reinforces the point that was made.

  93. 1 Q. During the examination-in-chief you spoke

    2 about the creation of Yugoslavia. Do you know who Vuk

    3 Stefanovic Karadzic was? Do you know what he said

    4 about Croats and their ethnic background?

    5 A. Perhaps you would care to assist me by

    6 suggesting what you have in mind. I can think of some

    7 things but I would not...

    8 Q. He said that all Croats were actually Serbs

    9 by ethnic background. Are you familiar with that?

    10 A. He regarded them as Serbs, as Serbs of

    11 a different religion who did not necessarily realise,

    12 I think -- that was the way he put it -- that they were

    13 Serbs. I think it was a general expression for most of

    14 the South Slavs. There was a perspective that all

    15 should be seen as the same.

    16 Q. Are you familiar with the fact that the

    17 celebration of his birth was one of the chief events

    18 while Milosevic was climbing to power?

    19 A. I have to say I had not registered it as one

    20 of the chief events in Milosevic's rise to power,

    21 but...

    22 Q. Do you know, Dr. Gow, that in 1989 there was

    23 an attempt to transform on the 1st December, that is

    24 the date of the creation of the kingdom of Serbs,

    25 Croats and Slovenians who did not recognise any single

  94. 1 nation, that there was an attempt to create this, to

    2 turn this into a single national holiday, all-Yugoslav

    3 holiday?

    4 A. In 1989, did you say? I do not recall that

    5 being specifically in 1989. I know that there was

    6 discussion.

    7 Q. Do you know, Dr. Gow, that in the old

    8 Yugoslavia it was only allowed to carry Serb flags,

    9 a Serb banner as a church banner, but still it was

    10 the banner that was carried publicly.

    11 A. Maybe I am not clear what you mean by, "the

    12 Serb flag". Do you mean the flag of the Republic of

    13 Serbia or another flag?

    14 Q. No, I mean the Serb flag with their

    15 emblems. That was the only flag that could be openly

    16 carried out in the old Yugoslavia whereas other flags

    17 could not be displayed publicly for holidays and so on,

    18 but if you do not know, it is not really important.

    19 A. ... to the use of those kinds of flag.

    20 I mean, the flags of the republics I have seen being

    21 carried, but if there is a specific type of flag, then

    22 it is not something which has fallen within that which

    23 I have looked at.

    24 Q. During the examination-in-chief, Dr. Gow, you

    25 testified that the Republika Srpska included in its

  95. 1 constitution that it was part of Yugoslavia; is that

    2 correct?

    3 A. I did, yes.

    4 Q. And did it, ever since the beginning, it

    5 threaten to secede from the BH, if the BH in turn

    6 secedes from Yugoslavia, not only to annex the parts in

    7 Yugoslavia but also to prevent the independence of the

    8 BH?

    9 Let me make myself more clear. It was the

    10 same as in the case of Republika Srpska Krajina in

    11 Croatia. Ever since the beginning it had only one

    12 objective, the preservation of the SFRY. Only here

    13 something different happened because of the events in

    14 the international community, Milosevic agreed to

    15 dissolve Republika Srpska Krajina, that is the one in

    16 Croatia, but not Republika Srpska. Is that correct?

    17 A. Again, it is very difficult because you put

    18 rather a lot of information into the question. I have

    19 to recall it all and try to treat it.

    20 I would agree that -- with the proposition

    21 that the approach in the Republika Srpska Krajina and

    22 later with the formation of the Republika Srpska were

    23 broadly the same process, and part of the same

    24 approach. I would also agree that it is possible, that

    25 if it had been possible to hold together the SFRY, then

  96. 1 there are those who were involved in pursuing that

    2 project who would have preferred to do so, and I think

    3 particularly that goes for senior figures in the JNA.

    4 I think it becomes a little bit redundant to

    5 discuss the ins and outs of those things too deeply

    6 when the fact is that events took a certain course and

    7 that once the dissolution of the SFRY was being

    8 acknowledged, in response to that the JNA acted in

    9 co-operation with Serb political leadership and

    10 security forces to put into operation this plan, and

    11 the plan which would take some of the territories from

    12 Croatia and from Bosnia and Herzegovina, but again

    13 within that, I think for the JNA generals, such as

    14 Kadijevic, if it had been possible to keep the whole of

    15 Bosnia-Herzegovina and something more of what they

    16 regarded as Yugoslavia, then I would expect it to be

    17 likely that they would want to do that, but I cannot

    18 say for sure whether they did or not. I would say that

    19 it was just something so highly improbable in the given

    20 circumstances that further discussion of it is really

    21 rather immaterial, but if I am wrong I am happy to

    22 continue.

    23 Q. Tell us, doctor, please, to follow up with

    24 what you just said, do you know what Milosevic said

    25 when international pressure eased in 1991, 1992 and how

  97. 1 he justified his aggression against the Republic of

    2 Croatia? Do you know that he said that the whole world

    3 was aware of Nazis marching again and that the world

    4 would soon turn against them and destroy them?

    5 A. I do not recall being specifically aware of

    6 Milosevic as having said that. I do recall, for

    7 example, General Kadijevic giving expression to the

    8 idea that -- this idea of what he called, "the Fourth

    9 Reich", Nazis on the move again, and he was doing this

    10 even at the meeting at the military headquarters on

    11 March 11, 12, or thereabouts to which I made reference

    12 before the break. Again at that meeting, he spoke of

    13 the plan which is being unveiled and hatched from, yet

    14 again, for these powerful external forces seeking to

    15 break up Yugoslavia. I mean, yes, he said -- he was

    16 clearly somebody who voiced that kind of opinion.

    17 What I would say is that in January 1991,

    18 Milosevic at a lunch with the ambassadors of the

    19 European Union member states made it clear to them that

    20 if Yugoslavia was to break up, then this kind of action

    21 would take place, without, I suspect, going into the

    22 details of exactly lines and borders.

    23 Q. Do you know that he was in cohorts with the

    24 putschists against Yeltsin, that they maintained

    25 constant links, that they came to Belgrade, that they

  98. 1 conferred with him?

    2 A. Again, I am not specifically aware of their

    3 having had contacts with Milosevic but I am aware that

    4 General Kadijevic and General Krazov, the Soviet

    5 Defence Minister, were in communication and were

    6 according, and that Kadijevic was aware of plans for

    7 a coup in the Soviet Union against Gorbachov, and also

    8 that Jovic was aware of Kadijevic's activity, but I am

    9 not certain -- I do not recall if Jovic himself had

    10 contact of that kind, but I am not aware of Milosevic

    11 having direct contact, which is not to say that he did

    12 not, just that I do not recall.

    13 Q. Are you aware that Milosevic accused even the

    14 Pope and Germany that they are, in fact, Nazis, that

    15 the world would turn against them and that it would be

    16 grateful to Serbia for its attack against the Republic

    17 of Krajina?

    18 A. Again, I am aware of that kind of thing being

    19 said, but I would not... I do not have a specific

    20 recollection that it should be attributed to Milosevic

    21 which is again not to say that he did not, just that

    22 I do not have the specific recollection.

    23 (5.00 pm)

    24 Q. Tell us, Dr. Gow, in the course of the

    25 examination-in-chief, you said that you think that

  99. 1 conflicts among the Serbs themselves would be important

    2 for these events. Do you not think that with regard to

    3 those conflicts they still agree with the basic project

    4 of a greater Serbia, so why would conflicts among the

    5 Serbs themselves be of importance? And in

    6 clarification of the events we are now referring to --

    7 A. I am not sure that I understand what it is

    8 that you are asking of me; if you could try again.

    9 Q. Yes, of course. In the course of the

    10 examination-in-chief, on page 9371 and later on and

    11 a little before that, you said that for an

    12 understanding of the substance of the events and

    13 developments that occurred, it is also important to

    14 bear in mind the conflicts that existed among or

    15 between the Serbians and the Serbs. I am asking now

    16 why those possible conflicts have any importance, when

    17 in essence they agree.

    18 A. I would agree that in essence there would be

    19 agreement on an overall aim. If, as I assume, I do not

    20 recall the specific reference in the testimony, but

    21 I assume with reference to differences primarily

    22 between the Pale Serbs in Bosnia and Belgrade, these

    23 were differences of tactics and style. It was

    24 a question of Belgrade's wanting what was politically

    25 advantageous at a particular moment, which meant to

  100. 1 have apparent agreement with international concerns and

    2 proposals, so, for example, in 1994, that Belgrade

    3 appears relatively genuinely, by the assessments of all

    4 who have looked at it, to have wanted the plan on offer

    5 at that time to be accepted, and to have tried to

    6 persuade the Bosnian Serbs to accept it, without, of

    7 course, taking full measures of control, because that

    8 would have been to break down the efforts to show that

    9 they were not part of this arrangement, and that the

    10 Bosnian Serbs appear clearly to have pursued a course

    11 which Belgrade did not want, but it was not a question

    12 important enough for Belgrade at that stage to do that

    13 which it could do, to make the Bosnian Serbs fall into

    14 line.

    15 So I think the question is one of seeing

    16 that, yes, there is agreement on the overall

    17 perspective, but that at particular moments the

    18 political interests of the sides may differ slightly,

    19 of the different elements, the different Serb

    20 communities might differ slightly. I made several

    21 references to the memoirs of General Kadijevic and one

    22 of the things he points out there is that what they

    23 have achieved is that which could be achieved --

    24 I paraphrase -- in the given international environment

    25 at that time.

  101. 1 I would also point out, a Yugoslav, that is

    2 Belgrade, Federal Yugoslav, Serb diplomat, who,

    3 after the date and agreement put it to me that this was

    4 an agreement for now but that within five or ten years

    5 the Republika Srpska would join the Federal Republic

    6 of Yugoslavia, that this was all things for appearances

    7 at a certain time, but things would change at another

    8 time. So I think -- I mean, I am not sure if I have

    9 been clear and I am sorry that I have taken so long in

    10 giving the answer but I think the sense is that that is

    11 where it is important to be aware of differences, but

    12 in terms of the ideal of an overall objective, then

    13 I think broadly you would say that there would be

    14 agreement.

    15 Q. Therefore it can be said that Belgrade and

    16 Pale agree in essence, and that is to create a greater

    17 Serbia.

    18 A. Without using the term, "Great Serbia", yes.

    19 To form a set of federated territories.

    20 Q. In the course of the examination-in-chief we

    21 gathered that your position -- we will allow you to

    22 answer the question I am asking you now -- that you are

    23 not here to testify about specific events in Konjic,

    24 and Celebici, of course. Konjic, when I say Konjic,

    25 I am thinking of Celebici.

  102. 1 A. I think it is the case that I do not believe

    2 that my role is to give specific evidence either from

    3 personal experience or from investigation regarding

    4 that matter, which is not to say that, as in --

    5 I believe, in the evidence-in-chief, as far as I recall

    6 it, I made references to certain things which I had

    7 noticed about Konjic which broadly met with the

    8 contextual evidence I was providing.

    9 Q. Thank you. Shall we move on to another

    10 segment?

    11 You spoke at some length about history, and

    12 in the examination-in-chief in answer to questions by

    13 Mr. Niemann and also in the Tadic case you spoke about

    14 the formation of the kingdom of Serbs, Croats and

    15 Slovenians and the idea behind it, of creating a common

    16 state. Was that not so?

    17 A. Indeed, yes I did.

    18 Q. I should now like to ask you, Dr. Gow, do you

    19 know who chose, who elected the Yugoslav Committee?

    20 A. I will be careful and I will say, "no", but

    21 it is something that I...

    22 Q. Let me answer the question. No one elected

    23 it, and do you know where it was formed?

    24 A. As far as I recall it was formed in London.

    25 Q. No. In Italy. And do you know under what

  103. 1 name it was formed, and in what year?

    2 A. Would you...

    3 Q. Yes, but under what name was it formed, or,

    4 to put it differently, would you agree that it was

    5 called the Croatian Committee and that it was formed in

    6 1914?

    7 A. I would be very careful about what I am

    8 saying, anything that I say about this. I am not sure

    9 what material relevance it will have. There was

    10 a Croatian Committee. I am not sure that I would agree

    11 that that was entirely the same thing as the Yugoslav

    12 Committee, but I really would not want to be taken...

    13 say everything with a degree of caution.

    14 Q. Are you aware, Dr. Gow, that in Zagreb the

    15 Croatian, "sarbor", or Assembly, never agreed with

    16 a majority with the formation of this joint kingdom of

    17 Serbs, Croats and Slovenians, in other words that, it

    18 never officially endorsed that state?

    19 MR. NIEMANN: Your Honours... yes. I am not

    20 even sure that it is terribly interesting but it is not

    21 relevant in my submission, your Honour.

    22 MR. OLUJIC: Your Honours, at this highest

    23 level tribunal in the world, certain facts are being

    24 established. My learned colleague Mr. Niemann said that

    25 he wanted to prove certain facts relevant to the

  104. 1 history of nations. I would submit, with due respect

    2 for Dr. Gow, that in spite of the fact that he is

    3 a politicologist, that I should be allowed to draw

    4 attention to any possible errors that may have been

    5 made in the course of his testimony, not only before

    6 this Trial Chamber but also in the Tadic case.

    7 MR. NIEMANN: Well, your Honours, I do not

    8 remember saying that, but if I did, I would have said

    9 it in the context of the relevance of the proceedings

    10 before you, and in any event, your Honours, this

    11 cross-examination is proceeding on the basis of

    12 a number of propositions which are being stated in the

    13 nature of giving evidence, and then seeking to

    14 ascertain whether or not Dr. Gow knows about it, but

    15 I do not think it is progressing the matter any

    16 further.

    17 MR. OLUJIC: Your Honours, with your

    18 permission, the Defence will also, in the course of its

    19 case, bring expert witnesses, and I see no reason why

    20 some of the theses proffered by Dr. Gow cannot be

    21 subjected to a certain degree of criticism, and for

    22 that to be done one has to investigate all the relevant

    23 circumstances.

    24 JUDGE KARIBI-WHYTE: You may proceed and let

    25 us know exactly what you are about, what actually you

  105. 1 are driving at, I think. Let us hear it.

    2 MR. OLUJIC: Thank you, your Honours. The

    3 question that I put to Dr. Gow is indeed relevant

    4 because when something is wrong at the outset, it can

    5 never become correct. In other words, if the Croatian

    6 Assembly never accepted the state of Serbs, Croats and

    7 Slovenians, then it can never, in the sense of

    8 international law, or international conventions, be

    9 treated as a lawful and legitimate state.

    10 Now, may I ask you, Dr. Gow, whether you know

    11 that the Croatian Sarbor never endorsed that state,

    12 never endorsed the decision to that effect?

    13 A. Yes, I am aware of that and I am also aware

    14 that the decision to join with the kingdom of Serbia

    15 was made, not with the reference to the Sarbor but with

    16 reference to the decision of the National Council in

    17 Zagreb which was, as I understand it, a second, in

    18 fact, National Council, and that decision was taken

    19 primarily on the basis first of all that the position

    20 of the National Council, that is to create a Slav third

    21 element within the Austro-Hungarian Empire, was not

    22 going to be achievable and that under the terms of the

    23 secret treaty in London in 1915, Italy was preparing to

    24 annex territories promised to it by the allies in

    25 Dalmatia, and therefore the decision was taken as

  106. 1 a matter of what I would regard as expediency, to join

    2 forces with one of the other allies, being Serbia, as

    3 being the better of the likely options available.

    4 I have to say that I do not recall giving

    5 evidence about any of these matters either at Tadic or

    6 before, but simply a summary explanation of elements

    7 which fed into the formation of the -- of what was to

    8 become Yugoslavia. I am quite happy as far as I am

    9 able to deal with those things, to try and assist now,

    10 but I am not sure that what you say about things that

    11 I said in evidence before is correct. I do not recall

    12 everything that I said, of course, but...

    13 Q. Tell us, Dr. Gow, please, since the formation

    14 of that Yugoslavia in 1918, do you know anything about

    15 the genocide of the Moslems, Turks, Albanians and

    16 other persecutions made in Yugoslavia?

    17 A. Again, I think it is -- it would be a matter

    18 to speak of with care. I am aware, for example, that

    19 during the course of the Second World War, that there

    20 were mass murders of Moslems in some parts, for

    21 example, of Bosnia-Herzegovina, Forcha, notably, I am

    22 aware that in the course of the Second World War and in

    23 the immediate period after the Second World War there

    24 were campaigns, I am not sure if that is the right

    25 word, against Albanians, as a result of which many went

  107. 1 to Turkey. I am not sure what it is that you are

    2 seeking from me, but I am aware of -- if it is

    3 literally a question: am I aware of some things; then

    4 yes, I am aware of some things.

    5 Q. Thank you. We have spent quite a bit of time

    6 on the cessation of the existence of SFRY. I should

    7 like to ask you to help us, if you can; that the

    8 question is not when it ceased to exist, but rather

    9 when it ceased to exist in the way envisaged and

    10 required by the freely-expressed will. In other words,

    11 the Badinter Commission could only declare its death,

    12 that it no longer existed, but could we agree that it

    13 ceased to exist much before that? Long before that?

    14 A. Well, I think one thing I do recall

    15 from testimony in the Tadic case was putting forward

    16 the view that, whilst the definitive end of the process

    17 of dissolution as per the Badinter certification of

    18 death might be 27th April 1992, that in my own view the

    19 Federation ceased to function in May 1991. If you are

    20 asking: is it possible to say that the Federation

    21 ceased to function at an earlier stage, then I would

    22 say that, again, there was a process underway from the

    23 late 1980s, elements of which contributed to that

    24 situation, and which were leading to a position in the

    25 Federation in which the Federation would cease to

  108. 1 function, but my own view is that you can say that it

    2 ceased to function on 15th May 1991.

    3 Q. Therefore, until April 1992 -- we know that

    4 by then there were tens of thousands killed in Croatia,

    5 already thousands also in Bosnia-Herzegovina, and

    6 until -- it was then that the Federal authorities

    7 undertook the aggression against Croatia, Slovenia and

    8 Bosnia-Herzegovina. So that by then both Croatia and

    9 Slovenia had abandoned Yugoslavia, availing themselves

    10 of their constitutional right to do so. Would we agree

    11 on that?

    12 A. We would agree that Croatia and Slovenia had

    13 taken the course of action that you suggested. Again,

    14 my own view, suspicion, would be that also the Serb

    15 leadership had done the same thing.

    16 That is the perspective of maintaining the

    17 SFRY.

    18 Q. That is what I wanted to ask you. Did the

    19 Serbs prevent a referendum only in their towns or in

    20 other towns as well, and places?

    21 A. Which referendum? The referendum in

    22 Bosnia-Herzegovina or...

    23 Q. In Bosnia-Herzegovina, yes.

    24 A. ... where it was possible to try to prevent

    25 the referendum being held, as I understand it, those

  109. 1 efforts were made. It was primarily in Serb

    2 majority areas.

    3 Q. Dr. Gow, I have completed my

    4 cross-examination. I wish to thank you once again.

    5 Thank you, your Honours.

    6 JUDGE KARIBI-WHYTE: Thank you very much.

    7 MR. MORAN: Your Honours, I am at your

    8 pleasure. It is 5.20, I have got a few documents

    9 I want to talk about, there is nine copies of each of

    10 them. It is not that much, but do you want me to start

    11 now or do you want me to start Monday morning? In ten

    12 minutes I do not even think it --

    13 JUDGE KARIBI-WHYTE: You may do very little

    14 in ten minutes, and if you are continuing, well, you

    15 might as well start on Monday, except all you need to

    16 do is introduce these documents and...

    17 MR. MORAN: Well, your Honour, there are also

    18 some subsequent questions that are based on some of the

    19 things that he said today that I want to ask him.

    20 I know that I promised you that all I was going to do

    21 was put in documents, but some subsequent questions

    22 have come up.

    23 JUDGE KARIBI-WHYTE: Yes, before he forgets

    24 some of those questions and their answers, you might

    25 start now, in the next ten minutes.

  110. 1 MR. MORAN: Fine your Honour, I would be

    2 happy to.

    3 Cross-examination by MR. MORAN:

    4 MR. MORAN: Good afternoon, doctor.

    5 A. Good afternoon.

    6 Q. I have been dealing with these things on and

    7 I am just going to do without them if I can. It just

    8 seems more comfortable, without the earphones.

    9 My name is Tom Moran and I represent a man

    10 called Hazim Delic. Do you know Hazim, by the way?

    11 Have you ever seen him?

    12 A. I cannot say that I have or I would recognise

    13 him, although I presume I might have seen him if he was

    14 in the room but I would not recognise him from anybody

    15 else.

    16 Q. Okay. I am going to ask you some -- we are

    17 going to go over --

    18 A. Now I have just identified him.

    19 Q. Okay. The last man over.

    20 A. Yes. We winked at each other.

    21 Q. Okay. One of the things that you told

    22 Mr. Ackerman, you said that you think it is important

    23 that you understand what is asked and I think that is

    24 awfully fair, and sometimes I start talking a little

    25 faster than I think, and if sometimes my questions are

  111. 1 not as clear as they ought to be and you have been very

    2 good about saying, "I do not understand the question",

    3 but if you do not understand the question, will you

    4 stop me and get me to rephrase it until you understand

    5 it?

    6 A. Well, I think experience would suggest that

    7 I would rather be careful and accurate than just charge

    8 in. So I will.

    9 Q. And I appreciate that, doctor. By the way,

    10 just so that I am clear in my own mind, you are here as

    11 an expert in military affairs of Yugoslavia and in

    12 political affairs of Yugoslavia as it applies to the

    13 military. Is that a fair assessment of your area of

    14 expertise?

    15 A. I would regard my expertise as being in the

    16 domain of military and military/political matters and

    17 also in international matters as well.

    18 Q. Okay. That is fair enough. If the usher

    19 could help me, I have a couple of documents.

    20 While these are being marked, I will just

    21 tell you where I am coming from, and what I am going to

    22 be doing with these documents so it is not going to be

    23 any surprise to anyone. There has been some dispute in

    24 this courtroom over the exact time of the demise of the

    25 Socialist Federal Republic of Yugoslavia, and you have

  112. 1 testified today and there is frankly -- these are

    2 documents that will probably back up your opinion.

    3 If I could have the exhibit number of the

    4 first one, the Security Council document?

    5 THE REGISTRAR: Document number D14/3.

    6 MR. MORAN: And the constitution of the

    7 Federal Republic of Yugoslavia would be D40/4? Or

    8 D41/3, rather?

    9 THE REGISTRAR: D15/3.

    10 MR. MORAN: Okay. If you would look at --

    11 well, in effect, you are doing it right now. Exhibit

    12 D14/3, have you ever seen that document before? Maybe

    13 not in that particular form.

    14 A. Yes.

    15 Q. And that is a copy of a letter from the

    16 charge of the SFRY to the United Nations to the present

    17 Security Council?

    18 A. I should point out, just for absolute

    19 accuracy, I have not seen the letter before but I have

    20 seen the declaration.

    21 Q. Okay. You have seen the annex which is

    22 attached to this United Nations document.

    23 Would you agree with me that this is

    24 a document that is the declaration, if you would, of

    25 existence, the birth certificate of the Federal

  113. 1 Republic of Yugoslavia?

    2 A. I am not sure about the image, but yes. This

    3 is the point at which the Federal Republic of

    4 Yugoslavia Serbia and Montenegro was declared.

    5 Q. And in paragraph 1 it makes a claim of being

    6 a continuation of the Socialist Federal Republic of

    7 Yugoslavia.

    8 A. Well, it makes the claim to be the legal and

    9 political successor of the SFRY.

    10 Q. The successor state.

    11 A. Yes, and to be the sole successor state, but

    12 of course I am sure you are aware that that is a matter

    13 of dispute and a matter which is unlikely to be

    14 resolved for many years to come.

    15 Q. I promise you, we are headed there. Okay,

    16 document D15/3. That purports to be a copy of the

    17 constitution of the FRY, and just so you know the

    18 source of it, so that you can tell just by looking at

    19 it, it is from the Internet site that is sponsored by

    20 the --

    21 A. It is the Yugoslav government official web

    22 site.

    23 Q. It is the official web site. That is

    24 correct. And would you agree with me that that is

    25 a copy of the constitution? There are a few typos in

  114. 1 it.

    2 A. Fine.

    3 Q. Let me direct your attention to Article 2.

    4 It is on the front page. The bottom of the front page.

    5 It defines what constitutes the FRY. Is that right?

    6 A. It identifies Serbia and Montenegro as being

    7 the elements which compose the FRY, and then goes on to

    8 say that other member republics may join.

    9 Q. Nobody has, have they?

    10 A. To date, not.

    11 Q. Okay. Then let me also direct your attention

    12 to Article 17 of the constitution. That has to do with

    13 citizenship, does it not?

    14 Your Honours, it is on page 4.

    15 Basically what Article 17 says is that the

    16 FRY confers Yugoslav citizenship on its inhabitants,

    17 and that to be a Yugoslav citizen shall simultaneously

    18 be a citizen of one of the republics?

    19 A. Yes, it does.

    20 Q. Then, so to be a citizen of the FRY you would

    21 have to be a citizen of either the Republic of Serbia,

    22 the Republic of Montenegro.

    23 A. Or any other eventual member... yes.

    24 Q. Sure, if some other member state should ever

    25 join, if...

  115. 1 JUDGE JAN: The expression is, "may be

    2 joined...

    3 MR. MORAN: Yes, your Honour. Indicating

    4 that the Federation may allow at some future date

    5 some...

    6 JUDGE JAN: ... sort of a joining. "May be

    7 joined".

    8 MR. MORAN: So one would apply for

    9 admission.

    10 Your Honours, at this point I would move

    11 admission of D14/3 and D15/3.

    12 JUDGE KARIBI-WHYTE: They are admitted.

    13 MR. MORAN: Thank you, your Honour. I have

    14 got a few more documents here and I think we can...

    15 I am at your pleasures, your Honour. Do you want to

    16 just run a few minutes late and get these documents in

    17 and talk about them?

    18 JUDGE KARIBI-WHYTE: Yes, I think so.

    19 MR. MORAN: Okay. With the assistance of the

    20 usher...

    21 A. Would I be permitted just to point something

    22 out?

    23 Q. Yes, sure.

    24 A. In the context of this discussion about the

    25 inhabitants, I think I would probably also draw your

  116. 1 attention, I was looking -- I think, I believe, as

    2 I recall, there is a similar reference in the

    3 constitution but in the declaration here in that, if

    4 you look in -- I think it is the seventh paragraph down

    5 -- in addition to the kind of provisions that you were

    6 just making, they also explicitly make a claim to

    7 continue to exercise the rights and obligations of the

    8 SFRY, vis-à-vis the territories of Krajina and other

    9 areas, so with a view to being -- that they are the

    10 responsible authorities for the inhabitants of those

    11 areas, whether or not that formally fits within the

    12 definition of the inhabitants and the composition that

    13 you have identified there. Maybe I can find it with

    14 looking, but I seem to recall that there was a similar

    15 reference in the constitution. I think it is the

    16 seventh paragraph down. It is easy. It is the second

    17 paragraph from the bottom.

    18 JUDGE JAN: "... bound by obligations"?

    19 A. Yes. The final sentence in the

    20 paragraph reads:

    21 "The Federal Republic of Yugoslavia shall

    22 respect and fulfil the rights and obligations of the

    23 SFR of Yugoslavia, assume vis-à-vis the territories of

    24 Krajina which have been placed within the framework of

    25 the United Nations peacekeeping operation."

  117. 1 Q. Now, while these documents are being

    2 distributed to the court and while we are getting some

    3 numbers on them, you alluded to, a second ago, that the

    4 FRY's claim to being the sole successor state was

    5 not -- was rather controversial.

    6 A. It is a contested matter.

    7 Q. In fact, it is contested to this great good

    8 day.

    9 A. I suspect will be for some very long time to

    10 come. Which is a separate question, of course, from

    11 the one you raised at the beginning about an existence

    12 of a political and territorial community in the state.

    13 Q. I understand. Let me get some exhibit

    14 numbers when the -- in fact, you may have the originals

    15 there, in fact of you. There are four letters. The

    16 first is a note by the present Security Council. Do

    17 you have that one?

    18 A. I have a note by the President of the

    19 Security Council with me.

    20 Q. On the back there is a number. What is that

    21 number? It is D --

    22 A. D16/3. Would you care to do an exchange?

    23 Q. No. You have got the official one.

    24 A. I take on a new job as Registrar or whatever

    25 you call it.

  118. 1 Q. And there is a letter dated 5 May 1992 from

    2 the Deputy Representative of the United States to the

    3 United Nations address to the President of the Security

    4 Council. Do you see that one?

    5 A. This is a second letter. 26th May from --

    6 Q. It is a letter dated 5 May from the Deputy

    7 Representative of the United States.

    8 A. Okay. Hold on a moment. The next one I have

    9 is Canada.

    10 Q. Okay. Canada is fine. There should be two

    11 letters from Canada?

    12 A. United States. I have got United States.

    13 Q. Okay. What is the exhibit number on that?

    14 A. It is D19/3.

    15 Q. And then you have two letters from Canada.

    16 One dated May 6th and one dated May 26th.

    17 A. 6th May is 18/3. And 26 is D17.

    18 Q. Okay. Have you ever seen these before,

    19 doctor?

    20 A. Literally, I have, yes. Because I believe

    21 you handed them to the Office of the Prosecutor,

    22 certainly the Office of the Prosecutor earlier on

    23 today, knew this had been done and just showed them to

    24 me to say that we have been given these.

    25 Q. Now, these are occasions, are they not, from

  119. 1 various members of the Security Council at various

    2 times talking about the former SFRY, Former Socialist

    3 Federal Republic of Yugoslavia?

    4 A. As I recall, looking at them and just

    5 glancing at them now, they deal with the fact of the

    6 non-recognition of the claim to be sole successor.

    7 Q. Yes, and well, for instance, the letter dated

    8 May 26, D/17/3 from the Canadian Ambassador.

    9 A. May I point out that it does not have a /3 on

    10 here?

    11 Q. It does not?

    12 THE REGISTRAR: It should be /3.

    13 A. Okay. It does not.

    14 MR. MORAN: The Registrar will fix it.

    15 A. Just to make a note for the Registrar.

    16 MR. MORAN: That talks about the former SFRY?

    17 A. Yes, it does.

    18 Q. And at the time Canada was a member of the

    19 Security Council, was it not? If you do not know, you

    20 do not know.

    21 A. I do not recall, but -- yes.

    22 Q. But it would surely indicate the Canadian

    23 Government at least as a member of the United Nations

    24 was contesting the right and ability of the FRY to act

    25 as the sole successor state to the Socialist Federal

  120. 1 Republic of Yugoslavia.

    2 A. I am sorry, this is the letter...

    3 Q. 26th.

    4 A. You did it again. I am not sure that it does

    5 that. It requests that sanctions be imposed against

    6 Serbia and Montenegro because of its --

    7 Q. And it refers to the former SFRY?

    8 A. It does, yes.

    9 Q. And that would indicate that at least the

    10 Canadian Government thought that the SFRY had ceased to

    11 exist.

    12 A. Yes.

    13 Q. Okay. Let us look at the letter D/18/3, the

    14 letter dated May 6th from the Canadian Ambassador to

    15 the United Nations. That would seem to indicate that

    16 the Canadian Government had recognised the creation of

    17 the FRY, and had serious questions about the FRY's

    18 right as a sole successor to the Socialist Federal

    19 Republic.

    20 A. With care for the word, "recognition",

    21 I think it acknowledges the declaration of the FRY and

    22 the subsequent information about that declaration to

    23 the United Nations and raises the question about...

    24 Q. And would seem to indicate that everybody is

    25 agreed that the Socialist Federal Republic of

  121. 1 Yugoslavia, that the Canadian Ambassador and the

    2 Canadian Government thinks that the SFRY had ceased to

    3 exist as of 6 May?

    4 A. I am not sure that it absolutely indicates

    5 that, but it is certainly consistent with that.

    6 Q. It is consistent with that kind of belief.

    7 D/19/3 is a letter from the Deputy

    8 Representative of the United States. Again, it talks

    9 about serious questions of whether the FRY is

    10 a continuation of the SFRY. That would lead one to

    11 believe that the policy of the United States was that

    12 the Socialist Federal Republic had ceased to exist as

    13 of 5 May. Would that be a fair assessment?

    14 A. I believe that is the case, yes.

    15 Q. And D/16/3 is a note by the President of the

    16 Security Council, and it refers to the release of

    17 a numbered United Nations document, the number being

    18 S/23877?

    19 A. Which is the letter.

    20 Q. Which is the declaration from the FRY

    21 government of its creation.

    22 That would seem to indicate that there was at

    23 least some question within the Security Council about

    24 the right of the FRY to be a successor state? It is

    25 very carefully worded, but you would agree with me that

  122. 1 it is an indication of that.

    2 A. It is an indication that there is taken to be

    3 a new political fact and that fact is being

    4 acknowledged without prejudice to any other questions,

    5 including succession.

    6 Q. And it would lead one to believe that there

    7 was general agreement at least within the Security

    8 Council that the Socialist Federal Republic of

    9 Yugoslavia had ceased to exist, and that there was

    10 a new entity out there called the FRY?

    11 A. Well, I think there was generally de facto

    12 political recognition that the SFRY, well, if not had

    13 ceased to exist was not going to continue for some time

    14 and that I think there is a general acceptance that on

    15 the political, on a political level, the declaration of

    16 the formation of the FRY is -- that the event which

    17 formally ends the SFRY's existence, and that is the

    18 point at which the process of dissolution is

    19 terminated.

    20 Q. And the --

    21 A. But a number of questions continue.

    22 Q. Sure. On April 27th the SFRY --

    23 A. If no earlier.

    24 Q. But clearly, by that date?

    25 A. Yes.

  123. 1 Q. Your Honours, it is...

    2 JUDGE KARIBI-WHYTE: Well, if you are done

    3 with that --

    4 MR. MORAN: I am done with those documents,

    5 your Honour, and it would be a convenient place to

    6 break.

    7 JUDGE KARIBI-WHYTE: I think so.

    8 MR. MORAN: Thank you, your Honours.

    9 MS. McMURREY: Your Honour, we have one

    10 matter to ask the court about. Mr. Landzo would like to

    11 be excused from the courtroom on Monday and Tuesday,

    12 February 16th and 17th. The Red Cross has graciously

    13 provided for a visit from his family from Bosnia and

    14 they will be here Monday and Tuesday, and he would like

    15 to have that time off to be able to visit with his

    16 family at that time.

    17 JUDGE KARIBI-WHYTE: I suppose it is with

    18 consultation with you as counsel, it should be

    19 sufficient. We do not really need him for such an

    20 exercise on Monday and Tuesday. So, yes.

    21 MS. McMURREY: Thank you very much.

    22 MR. MORAN: Your Honours, I thank you for

    23 letting me continue a little bit long.

    24 JUDGE KARIBI-WHYTE: We are now adjourned

    25 until Monday.

  124. 1 (5.45 pm)

    2 (Hearing adjourned until Monday)