Page 25521
1 Tuesday, 11 December 2007
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 2.16 p.m.
6 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, please call the
7 case.
8 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon
9 everyone in and around the courtroom. This is case number IT-04-74-T, the
10 Prosecutor versus Prlic et al. Thank you, Your Honours.
11 JUDGE ANTONETTI: [Interpretation] Very well. Today we are
12 Tuesday, 11th of December 2007. I would like to greet all the members of
13 the Prosecution, the Defence teams. I would like to greet the accused,
14 our witness as well, and all people who are assisting us in and around
15 this courtroom.
16 I will first hand the floor to the registrar for an IC number.
17 THE REGISTRAR: Thank you, Your Honour. One of the parties have
18 submitted list of documents to be tendered through Witness BB. The list
19 submitted by 5D shall be given Exhibit number 745.
20 Thank you, Your Honours.
21 JUDGE ANTONETTI: [Interpretation] Very well. Thank you. Tomorrow
22 we will have a witness, we will not give his name because he is benefiting
23 from protective measures, and he will be heard under 92 ter, the
24 Prosecution will have 30 minutes to present the six documents which will
25 be shown to the witness, and the Defence will have, in turn, two hours and
Page 25522
1 I have to say that the accused Petkovic as well as Praljak will have each
2 30 minutes and the other Defence teams ten minutes, which brings us
3 theoretically to a shorter hearing for that witness. Furthermore, as you
4 may know, I am sitting in another trial as well and since in this other
5 trial we are slightly delayed or we were slightly delayed today,
6 tomorrow's hearing will not begin at 2.15 for this witness as usual but it
7 will begin at 3.15.
8 So this is what I wanted to say to the parties so the
9 cross-examination of this witness is starting immediately. I do not know
10 what is the order -- oh, I see that Ms. Nozica is on her feet. So I would
11 like to wish her good afternoon.
12 WITNESS: CIRIL RIBICIC [Resumed]
13 [Witness answered through interpreter]
14 MS. NOZICA: [Interpretation] Good afternoon, Your Honours. Good
15 afternoon to everybody in the courtroom.
16 Cross-examination by Ms. Nozica:
17 Q. Good afternoon, Professor Ribicic.
18 MS. NOZICA: [Interpretation] I have provided my set of documents
19 to everybody. At this moment, the witness is also being provided with the
20 binder.
21 Q. Professor Ribicic, I will advise you when to look at the
22 documents, but please focus on my questions. I have noticed that you
23 don't speak too fast so that should not be a problem. I just need to tell
24 you that we both speak the same language. We have to make sure to make
25 short pauses between my questions and your answers.
Page 25523
1 Professor Ribicic, in your analysis and in your testimony, you
2 have referred to the decision of the Constitutional Court of
3 Bosnia-Herzegovina of September 1993, which make null and void the
4 decision on the establishment of the HZ HB dated 18/11/1991. I'm talking
5 about document P 00476.
6 Mr. Ribicic, are you familiar with the constitutional provisions
7 of Bosnia and Herzegovina that regulate the constitutional position of the
8 Constitutional Court and I'm concretely referring to the composition of
9 the court, the way the judges are appointed, their mandate, the
10 organisation of the court, the competency to start proceedings and the way
11 decisions are made? We are talking about the Constitution dated 1974
12 based on which the decision in dispute was passed.
13 THE INTERPRETER: The witness's microphone is not on.
14 THE WITNESS: [Interpretation] Yes. When I was preparing for my
15 first appearance at the Tribunal, I had a look at the provisions of the
16 Constitution of the Republic of Bosnia and Herzegovina.
17 MS. NOZICA: [Interpretation]
18 Q. Then you obviously know that at the time when the decision in
19 dispute was passed, the Constitutional Court of Bosnia and Herzegovina had
20 nine judges. Do you remember that?
21 A. Yes.
22 Q. Did you have an occasion to read the book of rules of the
23 Constitutional Court of Bosnia and Herzegovina?
24 A. At the moment I'm not sure whether at that time I read that. I'm
25 sure that I have not read it recently.
Page 25524
1 Q. In my binder, among the documents, I have that book of rules. I'm
2 going to refer to some of its provisions.
3 MS. NOZICA: [Interpretation] Just for my learned friend and the
4 honourable Judges I would like to say that this book of rules and
5 procedure have not been translated. I'm just going to quote some very
6 short provisions and before I ask for the admission of this document, I
7 will provide the Trial Chamber with a translation.
8 Q. Mr. Ribicic, you will agree with me that it is absolutely
9 necessary to establish whenever you examine a decision of the
10 Constitutional Court whether the Constitutional Court complied with the
11 composition of the court that is provided for by the Constitution in order
12 to be able to tell whether a decision, if it had been passed contrary to
13 the regulations, whether such decision may have legal effect, i.e.,
14 whether it can be then stated that this decision was passed contrary to
15 those documents. Would that be only logical once -- at the moment when
16 you are examining a decision?
17 A. Yes. If it comes to the theoretical re-examination, then the
18 answer would be yes.
19 Q. Did you have an occasion to look at the list [as interpreted] of
20 the Constitutional Court of Bosnia-Herzegovina, number U 46/92, which
21 shows the entire procedure which was followed when this decision was
22 passed?
23 A. No, I did not have that opportunity.
24 Q. It is then logical that you did not have an occasion to see the
25 record of the meeting of the Constitutional Court which took place on the
Page 25525
1 9th of July 1992, at which it was decided to launch the constitutional
2 procedure to examine the constitutionality and legality of the decision on
3 the aforementioned general documents. I have just been informed that
4 there is a mistake in the transcript on page 4, line 14, it says a list
5 instead of case. Thank you. So you did not have an occasion to see this
6 record, did you?
7 A. No.
8 Q. It arises from the decision of the Constitutional Court of
9 Bosnia-Herzegovina dated 14 September 1993 which makes null and void the
10 decisions on the establishment of the HZ HB dated 18 November 1991 and the
11 other eight decisions and decrees. It arises from this decision that the
12 Constitutional Court started the procedures at their own initiative. Do
13 you remember that?
14 A. Yes, I do remember and I controlled it last night because
15 yesterday I made a mistake and to the Prosecutor's question, who insisted
16 on asking me whether the government had started the proceedings before the
17 Constitutional Court. I said yes, and that answer was wrong. The
18 Constitutional Court did not make this decision based on somebody else's
19 request. It was their own initiative and I apologise for making that
20 mistake. Only the second decision that referred to the documents of the
21 Republic of Bosnia-Herzegovina was passed after the procedure that was
22 launched at the request of the government of Bosnia and Herzegovina.
23 Q. Yes, Professor Ribicic, that's why I'm asking you this. Then we
24 can also confirm something else. Yesterday you said that in the first
25 decision, we are talking about the decision that was passed on the 14th of
Page 25526
1 September 1993, the Judges were evoking the opinion of the government
2 which does not exist in the first decision. You have made the same
3 mistake; is that correct?
4 A. Yes. But it was in 1992, not in 1993.
5 Q. Very well then. I would now kindly ask you to look at the minutes
6 of the meeting of the Constitutional Court which took place on 9 July
7 1992, the document number is 2D 00592. It is in my binder, the second
8 document in my binder.
9 Mr. Ribicic, here you see that this is an excerpt from the minutes
10 from the Constitutional Court session held on 9 July 1992. At the end we
11 see who took minutes. That was Nikolja Grbic [phoen], that may mean
12 nothing to you but this is the name that is stated herein and here is also
13 a list of the Judges who were present during the meeting.
14 JUDGE ANTONETTI: [Interpretation] Just a moment, please. The
15 French booth was not on. Are you sleeping?
16 MS. NOZICA: [Interpretation] Thank you.
17 Q. Five judges attended the meeting and you will agree with me, I
18 believe, there were four Bosniaks, and one Serb. And Judge Pero Krijan
19 sent his apologies according to this excerpt. He was the only judge of
20 the Constitutional Court who hailed from the ranks of the Croatian people.
21 This may be pretentious, but can you agree judging by the names and I
22 believe you are also familiar with the names, that you know these people?
23 A. I know personally just Dr. Kasim Trnka and Mr. Milicevic, but I
24 agree with you.
25 Q. Thank you very much. I would kindly ask you to look at the second
Page 25527
1 page of the minutes, line 2, of this decision, where it says, "These are
2 the conclusions. It says that the decision on starting the procedure of
3 this matter is sent to the government of the Republic of
4 Bosnia-Herzegovina to the Croatian Democratic Union with a request to
5 sends to the Court, and this is very important, if they have them the full
6 texts of the disputed documents as well as their opinions should be sent
7 immediately.
8 Professor Ribicic, does it arise from the minutes of the meeting
9 that the -- at the moment when the Constitutional Court passed this
10 decision to start the proceedings to re-examine the constitutionality of
11 the decision to establish the Croatian Community of Herceg-Bosna and the
12 other eight acts -- documents, did not have the text of the disputed
13 decisions?
14 A. It may be concluded from this that it did not have at their
15 disposal the texts which were official documents and that it was only
16 familiar with the acts from other sources, from the press, maybe it was in
17 possession of some photocopies or something like that. As much as I could
18 see today and from the documents that we discussed yesterday, that
19 Mr. Scott was referring to, it seems that the Constitutional Court
20 requested from the Croatian Democratic Union the official documents, the
21 body of those documents, so it's very hard for me to say at this moment
22 how many documents the Constitutional Court had at their disposal.
23 Q. We will come to that what they actually had, but now I would ask
24 to you look at document 2D 00591 which is the book of rules and procedure
25 of the Constitutional Court --
Page 25528
1 MR. SCOTT: Excuse me, Your Honour, I'm sorry to interrupt, I know
2 time is precious but perhaps it's happening to others as well. The
3 translation is going extremely quickly and I think it's difficult to
4 follow and I assume that's because the speakers are also speaking very,
5 very quickly. I think it would assist everyone in the courtroom and
6 certainly assist me if the translation would be a bit slower, please.
7 Thanks.
8 JUDGE TRECHSEL: That would mean that the original speakers must
9 be slower because the translation is normally not faster than the
10 translated speakers.
11 MR. SCOTT: You're absolutely right, Judge Trechsel. That was the
12 meaning of my request.
13 JUDGE ANTONETTI: [Interpretation] Go ahead, please.
14 MS. NOZICA: [Interpretation] Thank you.
15 Q. I was convinced that Mr. Ciril Ribicic and myself both speak
16 slowly. I apologise. I only have 30 minutes or maybe a minute or so
17 more, and when it comes to such serious questions this is very short;
18 that's why I may be speaking fast. Sir, you have been able to locate the
19 book of rules. Can we now look at Article 23 and 33. They are on the
20 same page. I apologise, 23, 32 and 33. Mr. Ribicic, these are the rules
21 that are almost identical to all the constitutional courts in the former
22 Yugoslavia. It says in Article 23 that the Constitutional Court discusses
23 and decides pursuant to a written submission, and it says, a submission
24 has to contain the following. Under number 4, the text of the provisions,
25 regulations or other general documents, the constitutionality or legality
Page 25529
1 of which is being challenged. Article 32 says as follows: A proposal for
2 the re-examination of constitutionality and legality has to contain the
3 following: The name of the document or a general document and the
4 indication of the provision that is in dispute as well as the name and the
5 number of the Official Gazette in which this document was first published.
6 Article 33 says that if the document in dispute has never been
7 published in the Official Gazette, then it has to be provided in a
8 certified copy in order to be able to become a subject of re-examination.
9 Mr. Ribicic, this is something that is logical, a decision cannot
10 be passed without a document or its copy?
11 A. I agree.
12 Q. Do we agree that there was a discussion about documents that were
13 of great interest for the Croatian people?
14 A. Yes. Definitely. But not only of the Croatian people but all the
15 other peoples and ethnic minorities in Bosnia-Herzegovina.
16 Q. I agree with you but you will see what my question is going to
17 develop into so I insisted on this point because of that but would you
18 agree with me that if the Constitutional Court discusses matters of
19 national interest of only one of the constituent peoples, as designated by
20 the Constitution, and if there is a judge elected to the Constitutional
21 Court from the ranks of that people, that making a decision in his absence
22 might constitute a violation of the national interests of that people?
23 A. Well, this question is difficult for me to answer. A violation or
24 prejudice to the national interests, this is a concept that we will not
25 find in the rules of procedure of the Constitutional Court, so this is not
Page 25530
1 a violation of the procedure as it is stipulated by the constitution, the
2 rules of procedure or in any other way so national interest is something
3 that we could not find there among all the possible violations of the
4 procedure.
5 Q. That's why I'm not referring to the constitution. I'm not
6 referring to the rules of procedure here but I'm asking you in the
7 practice of the work of the Constitutional Court, would this be the usual
8 practice? In the Constitutional Court of Bosnia-Herzegovina, there are
9 such provisions but is this something that should be taken into account
10 when issues of this nature are being discussed?
11 A. Yes. All nine judges should be present when any decision is
12 taken, particularly if we are talking about the merits, the substantive
13 provisions. As for the current provisions, in peacetime the
14 Constitutional Court of Bosnia-Herzegovina passed a decision that was
15 voted for only by Bosniaks, Bosniak judges, and those judges who were
16 appointed by the international community. I actually was very critical of
17 this practice in an article, in a paper that I wrote. This pertained to
18 issues that were very important for all three constituent peoples in
19 Bosnia-Herzegovina.
20 Q. I'm sorry, I'm sorry, I'm sure that you know so much about that
21 but now we have veered off from our topic, the topic of our
22 cross-examination. I would be delighted to hear all that you could tell
23 us about it but we are running short of time.
24 A. If you will just allow me --
25 Q. Please go ahead.
Page 25531
1 A. I would say that in peacetime it can happen that all the Judges
2 representing one nation vote against this decision, yet the decision of
3 the Constitutional Court remains valid and legally binding. That's what I
4 wanted to say.
5 Q. Yes. Definitely. Because the required number of judges voted for
6 that decision to be passed in accordance with the rules of procedure?
7 A. Yes, the minimum of five votes.
8 Q. Yes. You're quite right. In this case file, 46/92, there is a
9 handwritten record of this session so could we please look at 2D 00593?
10 This is the third document in my binder. Have you found it?
11 A. Yes.
12 Q. We can see the date is the 9th of July 1992, again we can see that
13 Ms. Nikolja is again mentioned here as a clerk. She signed the
14 typewritten minutes. What I want to point your attention to is the names.
15 JUDGE ANTONETTI: [Interpretation] Ms. Nozica, this document
16 astonishes me. How were you able to get ahold of this document? In all
17 jurisdictions, deliberations are secret. This is a deliberation, in fact.
18 How were you able to get this document?
19 MS. NOZICA: [Interpretation] Your Honour, this is not the record
20 of the debate. I obtained it when I examined the case file of the
21 Constitutional Court. The case file that I referred to. And this is the
22 record that was typewritten later. This is supposed to be the same record
23 as the one that we have seen a minute ago, that would be Exhibit 2D 00592.
24 It is interesting to note here that we have two records.
25 JUDGE ANTONETTI: [Interpretation] You are not answering my
Page 25532
1 question. You are a lawyer. You are bound by the deontology of lawyers.
2 My question is very simple: How were you able to get hold of this
3 document. It is a handwritten document of the 9th of July 1992.
4 MS. NOZICA: [Interpretation] Your Honour, I asked that this case
5 file be examined for the purpose of the Defence and I received a photocopy
6 of the record. Now, as to --
7 JUDGE ANTONETTI: [Interpretation] Who gave it to you? Who sent it
8 to you?
9 MS. NOZICA: [Interpretation] The secretary of the Constitutional
10 Court for the purpose of the Defence, and if necessary, witnesses may be
11 called to confirm not only this record but other records that I will be
12 showing.
13 Q. So Mr. Ribicic, we see a handwritten record here that was typed up
14 later but the difference between this one and the previous one --
15 JUDGE ANTONETTI: [Interpretation] Excuse me just a second, please,
16 you are a member of a constitutional council. Is it usual that what
17 constitutional judges say during their deliberations be communicated to
18 the outside world?
19 THE WITNESS: [Interpretation] No, this is not the practice. This
20 is the custom, and sometimes there is even regulation or a provision
21 preventing this from being disclosed, and the deliberations are secret
22 before the Constitutional Court, many other courts and international
23 courts and if anyone were to ask for such a record at the Constitutional
24 Court of Slovenia, that person would not be able to obtain that even if
25 there were an interest an intrinsic interest in reading this document.
Page 25533
1 MS. NOZICA: [Interpretation]
2 Q. Mr. Ribicic, I think it is not controversial that we have a legal
3 interest in that but this is not the record of the deliberations. This is
4 the record of the procedure to -- whereby a decision was taken to
5 re-examine the legality and constitutionality of the decision. It is
6 obvious from this that only four judges took part in the debate. If you
7 go through the record, you will see that there is nothing about what
8 Mr. Kasim Trnka contributed. Can we agree?
9 A. Yes.
10 Q. Could we please look at the intervention by Mr. Latic, that's on
11 page 1 in the Croatian version, and the first page in the English version,
12 let me just read a part of it where he says, "Do they have decisions that
13 we learned of from the press?" And this proves what you've just told us,
14 that the Constitutional Court instituted proceedings to evaluate the
15 constitutionality on the basis of press articles and reports. Could we
16 agree on that?
17 A. Your Honours, it is very difficult for me to participate in this
18 debate because I have to agree with what you've just said, that this is
19 the part of the deliberations of the Court which should remain secret. So
20 confidential. So I would not like to say anything about what we are not
21 supposed to know at all. Especially not about views taken by particular
22 judges. We have to limit ourselves to what was actually made public, and
23 I personally cannot, and I don't think that we can, discuss this in this
24 manner. It would be unprofessional, I posit. It would be unprofessional
25 to discuss what the Judges said during their internal debate, particularly
Page 25534
1 not on the basis of a handwritten document written by a third party. I
2 think that I will have to recuse myself from this debate because I think
3 that I would engage in unprofessional practice.
4 Q. Mr. Ribicic, let us set aside the minutes. Let me ask you a
5 hypothetical question. So here comes the hypothetical question. If in
6 this debate [French interpretation] participation of only four out of nine
7 elected judges to the Constitutional Court of Bosnia-Herzegovina [French
8 interpretation] accordance with the rules of procedure?
9 JUDGE ANTONETTI: [Interpretation] Once again the French booth has
10 a problem. I'm not getting a translation.
11 MS. NOZICA: [Interpretation] Can I begin and then we can see?
12 Q. So let me repeat, because some things were not interpreted. My
13 question to you is: If really only four of the Judges took part in taking
14 this decision, if, and we concluded that the Constitutional Court had nine
15 judges, would then this decision be contrary to the rules of procedure?
16 A. Yes, definitely. The Constitutional Court cannot take any
17 decisions if less than five judges are present.
18 Q. Likewise --
19 JUDGE TRECHSEL: Ms. Nozica, you were assuming that only four
20 judges were present at that meeting because the desk officers or whoever
21 wrote this does not -- does only refer to pronunciations by four. If you
22 look at the excerpt from minutes you have five there. The fact that one
23 judge does not take the floor in deliberations does not mean that he does
24 not participate. On what do you base the assumption that only four judges
25 participated?
Page 25535
1 MS. NOZICA: [Interpretation] Your Honour, I am assuming on this on
2 the difference between the two documents and now, as to whether there were
3 four of them or five of them, that is why I asked the expert witness to
4 give me an answer to a hypothetical question about whether a decision
5 would be valid if only four of the Judges were present. Now, as to
6 whether four or five of the Judges were present or not, we will deal that
7 in our Defence case. In the 30 minutes that I have allotted for my
8 cross-examination, I cannot explain to the Judges which judges were
9 present there, the documents appointing them and so on, to confirm the
10 arguments in my cross-examination. That is why I'm only asking the expert
11 witness to confirm how decisions are made on the basis of this
12 hypothetical question.
13 Q. Professor Ribicic, do you agree also that if the Constitutional
14 Court took its decision on the basis of a press article without having
15 access to the full text of the decision, that this would constitute a
16 violation of the rules of procedure of the Constitutional Court?
17 A. Well, in peacetime, in normal circumstances, there would be nine
18 judges there. That's for sure. And they would all have participated and
19 they would have made the decision to launch the proceedings.
20 Q. Mr. Ribicic, can the constitution be violated in this manner in
21 wartime by saying, no, we don't need nine judges any more, five is enough,
22 or is the constitution which stipulates that nine members of the
23 Constitutional Court should be there and that decisions should be passed
24 by a majority of votes, so is there a time, and is there a decision that
25 is taken contrary to the provisions of the constitution, is it an illegal
Page 25536
1 decision particularly if we are talking about these two questions?
2 JUDGE ANTONETTI: [Interpretation] Ms. Nozica, we see very well
3 what you're getting at but your strategy would have been better received
4 if you had given the Judges in the English version the translation of the
5 Statute of the Constitutional Court of Bosnia and Herzegovina which is now
6 in B/C/S and I don't have it in English. If I had had it in English, I
7 would have looked at the Articles very quickly but I cannot make that
8 verification so I am handicapped in a certain way but independently of
9 that, you may put your question. We understood you; we are judges. We
10 don't need hours and hours to understand what you're getting at so please
11 go ahead and ask the most important question.
12 MS. NOZICA: [Interpretation] I have asked my question. Let me
13 repeat it for the third time.
14 Q. Is the decision to institute the proceedings taken by four of the
15 nine judges that were elected to the Court and on the basis of a press
16 article, so not even a copy of the document that is being evaluated, would
17 such a decision be contrary to the Constitution and the rules of procedure
18 binding the Court?
19 A. If we are talking about --
20 MR. SCOTT: Excuse me, I apologise for interrupting. I'm not sure
21 if we changed gears or not. The question that was just put to the witness
22 was if the decision would institutes the proceedings, not the decision on
23 the merits, I do believe if I'm not mistaken even in the United States
24 Supreme Court, a minority of the Judges can decide which cases to hear and
25 this is what says here if the decision to institute the proceedings taken
Page 25537
1 by four of the nine judges, so that's not the same thing as a decision on
2 the merits by how many judges, so I don't know if counsel meant to say
3 that or -- that's why I stand up for perhaps some clarification would be
4 appropriate.
5 MS. NOZICA: [Interpretation] No, no. It is not necessary. I said
6 quite clearly that all the decisions taken by the Constitutional Court and
7 we can look at Article 46 of the rules of procedure, where it says that
8 the meetings of the constitutional -- the Constitutional Court shall meet
9 as necessary and a session of the Constitutional Court can take place if
10 attended by the majority of the Constitutional Court. So regardless of
11 what the decision is going to be about, a majority of the Judges must be
12 present.
13 Q. Am I right, Mr. Ribicic?
14 JUDGE TRECHSEL: I'm sorry, you do not address the point made by
15 Mr. Scott. Your first question was whether the majority voted for the
16 decision. Now you are talking about whether the Court can sit when the
17 majority are present. And those are two different things, and the
18 difference may -- may, be of a decisive importance.
19 MS. NOZICA: [Interpretation] Your Honour, Judge Trechsel, I'm
20 talking about the decision to institute proceedings and not decision on
21 the merits. We haven't touched upon the decision on the merits. And let
22 me add one more remark for the witness, or just read one more article of
23 the rules of procedure, Article 52 for the transcript where it says in
24 paragraph 2 decisions are made by a majority of the votes of all the
25 members of the Constitutional Court.
Page 25538
1 Q. So this is the only provision on how the vote is to be taken and
2 there is no distinction between decisions to institute proceedings and
3 decisions on the merits. Mr. Ribicic could you please give us your
4 opinion?
5 A. When I got this decision of the Constitutional Court I asked
6 myself what the situation was like regarding the vote, who was present,
7 who voted for, who voted against, but I couldn't find the answer to those
8 questions. I would like to note that the decision of the Constitutional
9 Court published in the Official Gazette of the Republic of
10 Bosnia-Herzegovina, that this Tribunal cannot decide whether it was legal
11 or constitutional or not. We can all have our opinions. They may be
12 different. But there is no procedure whereby we could alter the fact that
13 the Constitutional Court reached its decision, this decision was made
14 public and it entered into force. At least I am not aware of any option
15 that would be available in any European country to declare null and void
16 such a decision in any way by proffering arguments that the Constitutional
17 Court violated its own internal procedure, the rules of procedure.
18 Q. Mr. Ribicic, I'm perfectly aware of that. I'm an attorney too.
19 We cannot do that but we can ask ourselves whether at the time the
20 decision was made in a legal manner or not. We are not now filing a
21 motion to assess the legality. We just want to find out how this decision
22 was taken, who took it and so on. So could we please move on? You didn't
23 give me your answer to my question, but from what you've just told us, I
24 can conclude that you don't want to enter into debate whether this was --
25 this decision was made illegally or not.
Page 25539
1 A. I have to agree with you that it is not illegal to take decisions
2 but five judges must be present and that the majority of the votes is
3 required for the decision to be taken. I think that this decision was not
4 procedural; it was a substantive decision, so a majority of the votes on
5 the whole panel is required, five votes, in other words.
6 JUDGE ANTONETTI: [Interpretation] Ms. Nozica, you already used up
7 approximately 30 minutes. Did you get some extra time from your
8 colleagues?
9 MS. NOZICA: [Interpretation] Yes, Mrs. Alaburic has given me five
10 minutes and I will be able to finish within the next five minutes.
11 JUDGE ANTONETTI: [Interpretation] Very well, please proceed.
12 MS. NOZICA: [Interpretation]
13 Q. Yesterday, you spoke, when Mr. Scott asked you about the
14 government of Bosnia-Herzegovina and its opinion about this issue in
15 Article on page 8 of this -- of your analysis which is document P 08060,
16 in the Prosecutor's binder, I'm going to read that paragraph very briefly,
17 you said that much before, immediately after the establishment of the HZ
18 HB, the government of Bosnia and Herzegovina, pursuant to an opinion
19 provided by the Ministry of Justice and Administration, concluded that
20 these decisions of the HZ HB were illegitimate and against the law,
21 contrary to the constitution and you quote probably from the newspaper
22 Oslobodjenje and the interests of the state of Bosnia and Herzegovina and
23 all of its people and citizens including obviously the Croatian people in
24 the republic.
25 Can we please look at that conclusion? I don't know whether you
Page 25540
1 had ever seen it before. Let's look at that document which is 2D 00594.
2 For that, let me ask you this. Your quote is based on a newspaper
3 article; am I right?
4 A. Yes, you are, and I said it yesterday.
5 Q. Thank you very much. Have you found the document, 2D 00594? It
6 is in the Cyrillic but that shouldn't be a problem because you are very
7 well-versed in both of the alphabets. This is a record from the 104th
8 session of the government which was held on 21 November 1991 which is in
9 keeping with the first sentence of your conclusion in which you say that
10 the government passed the decision far before the constitutional order
11 Constitutional Court confirmed it?
12 JUDGE ANTONETTI: [Interpretation] Please slow down. The
13 interpreters cannot follow you.
14 MS. NOZICA: [Interpretation]
15 Q. Could you please look at page 3, which is item 2 of all the things
16 that the government discussed and since there is no need for me to waste
17 any more time on this, I don't want to go on reading the whole text. I'm
18 just going to say that in the second paragraph, it says, as follows:
19 "Starting from the aforementioned opinions as well as of the
20 proposals and opinions put forth during the debate, the government has
21 established that the decision on the establishment of Croatian Union of
22 Herceg-Bosna, and the conclusion of the regional committee of the HDZ of
23 Bosnian Posavina were not passed as part of the procedure which is
24 envisaged for the establishment of any social or political association,
25 nor do they contain provisions that might have any legal effect as
Page 25541
1 institutions of the bodies of authorities because they don't contain the
2 necessary elements."
3 And finally the last sentence reads as this:
4 "At the same time the government is of the opinion that these
5 decisions were not even something that should have been a subject of
6 discussion or should have been put on the agenda of a session of the
7 government because this is a political organisation and political action."
8 This was signed by the president of the government, Mr. Jure
9 Pelivan.
10 Can we conclude that this part in your expert analysis, when we
11 compare it with the record of the government session is not correct
12 because what you are saying here does not arise from the minutes of the
13 session of the government?
14 A. In my evaluation, I relied on what I could read in the newspaper
15 Oslobodjenje and if you are trying to prove that this was incorrect we
16 will then have to look at Oslobodjenje. I have to start by saying that
17 something that was published in the Official Gazette or published
18 elsewhere is true unless proven differently. The fact is that the
19 government according to this minutes did not discuss this issue but before
20 that they adopted a position which was very clear and clearly warned to
21 the fact that the conclusions on the establishment of the Croatian Union
22 of Herceg-Bosna could not be binding because they were not passed pursuant
23 to the constitution that speaks about the establishment of the Association
24 of Municipalities as a political association.
25 Q. Mr. Ribicic, please, but the government did not say what you
Page 25542
1 quoted in your analysis. I am not trying to prove you incorrect. I am
2 just trying to prove that the source was incorrect. I'm not saying that
3 your analysis was incorrect. I'm just saying that you relied on
4 Oslobodjenje which did not convey the message from the government session.
5 Can you agree with that?
6 A. Yes, I can. With the caveat that at the session of the
7 government, a position was taken towards that. Now, as to why this was
8 not put on the agenda for debate is an explanation that points to the
9 inconstitutionality of the establishment of the HZ HB.
10 Q. I have read that and the Trial Chamber will certainly be able to
11 assess the difference between your analysis and the source that you
12 quoted.
13 MS. NOZICA: [Interpretation] Thank you very much. I have no
14 further questions because I don't have more time.
15 MR. SCOTT: Your Honour, if I might before counsel finishes --
16 THE INTERPRETER: Mr. Scott, microphone, please.
17 MR. SCOTT: Your Honour, again I have to ask for clarification and
18 counsel could still assist, be allowed enough time to assist all of us,
19 it's not clear to me in looking at this document in comparison to footnote
20 30 of Dr. Ribicic's report, and the doctor may want to refer to that
21 specifically himself, to footnote 30, in which this is described as a
22 decision, an opinion of the Ministry of Justice and Administration on the
23 20th of November, not a decision of the government and not on the 21st of
24 November. I'm wondering if we are actually talking about the same
25 document or not. Perhaps counsel can assist us.
Page 25543
1 JUDGE ANTONETTI: [Interpretation] Yes, Mrs. Nozica?
2 MS. NOZICA: [Interpretation] [Previous translation continues] ...
3 don't wish to use Mr. Karnavas's time. Could you please look page 8 in
4 Croatian, 10 in English, of the professor's analysis where it says that
5 before that -- immediately after the establishment of the HZ HB, the
6 government of the Republic of Bosnia-Herzegovina made a conclusion
7 pursuant to an opinion. I was only dealing with the government. I was
8 not dealing with any opinions provided or put forth by any of the
9 ministries. And the rest I believe my learned friend can do later on in
10 his re-examination.
11 MR. SCOTT: Well, I think we just clarified we in fact were not
12 talking about the same document. One was talking about an opinion issued
13 by the government, apparently by the following day by Mr. Jure Pelivan who
14 was I think the Croat Prime Minister at the time as opposed to the opinion
15 of the Ministry of Justice and Administration which was issued the day
16 before. Therein lies --
17 MR. KARNAVAS: I --
18 MR. SCOTT: Excuse me -- therein lies the importance of my
19 question and I'm glad I did stand up and clarify it because we are not
20 talking about -- they were not talking about the same two things, two
21 separate documents, two separate [indiscernible], two different
22 authorities.
23 MR. KARNAVAS: This is redirect, Your Honour and it's eating up
24 into my cross-examination.
25 JUDGE ANTONETTI: [Interpretation] Go ahead.
Page 25544
1 MR. KARNAVAS:
2 Cross-examination by Mr. Karnavas:
3 Q. It sounds to me, Professor that you relied on a newspaper as an
4 original source in trying to draw a conclusion. Would that be correct,
5 just pick up where we just left off?
6 A. That is correct but only I would like to add --
7 Q. Professor --
8 A. No, no, no, no. I do not --
9 Q. You're now in a courtroom. You will answer my questions yes or
10 no. I asked you very specifically, you relied on a newspaper as an
11 original source. The answer is yes. Thank you. Now, you and I know the
12 newspapers cannot be relied upon.
13 JUDGE ANTONETTI: [Interpretation] Witness, we are here in a
14 proceeding that is quite different from that applies in your country.
15 Now, when there is cross-examination, the lawyer can sometimes ask a
16 fairly long question and the witness must answer by yes or no. That is
17 the rule. Go ahead, Mr. Karnavas.
18 MR. KARNAVAS: Thank you, Mr. President. I should note that he
19 was cautioned by Judge May when he testified in Kordic because he tried to
20 do the same thing.
21 Q. Now, sir, going back to what I said, you and I know that you can't
22 trust what you reed in the newspapers. Isn't that a fact, because if we
23 look at the newspapers, and we believe the newspapers, your only father
24 has been characterised in many ways, including committing war crimes.
25 Isn't that a fact? And the point is the newspapers are not reliable as
Page 25545
1 original sources; isn't that a fact, sir?
2 A. Yes, that is a fact and I must say that what I had before me were
3 the materials from the ministry and what I quoted in my analysis were
4 materials of the Ministry of Justice which means that I relied on
5 Oslobodjenje only when it came to --
6 Q. The answer is yes. Your father was accused of slaughtering Croats
7 after World War II, that's an undisputed fact, that he was accused of that
8 in the newspapers. I'm not suggesting that it's true or not. I don't
9 know. But that's my whole point. That newspapers are not original
10 sources. Especially if you're trying to do an academic analysis as you
11 were requested by the Prosecution. Isn't that a fact?
12 A. That is fact and that's why I emphasised in the footnote that I
13 have been quoting a newspaper.
14 Q. And nothing prevented you from going to the original sources.
15 Nothing prevented you from going to the original sources. And let me give
16 you a suggestion. For instance, calling or getting in a car and driving
17 to Sarajevo and looking at those sources; correct?
18 A. That is correct.
19 Q. Okay. In fact, if we are going to look -- and I'm going to get
20 ahead of myself a little bit, if we look at your analysis and if we look
21 at the introduction to your book which we'll get to, you even discuss in
22 there that in preparation of your analysis, you, in fact, met with certain
23 individuals whom you thought might be helpful in assisting you in
24 providing a constitutional analysis, correct?
25 A. Correct.
Page 25546
1 Q. Okay. Now, we are going to get there but first I want to clarify
2 one point with Dr. Prlic. Let me introduce myself first of all. I'm
3 Michael Karnavas and together with is Suzana Tomanovic. Together we
4 represent Dr. Jadranko Prlic, in case you haven't noticed by now. Now,
5 yesterday, there was a question posed to you by the President with respect
6 to a reference that you had made in a previous case that -- where my
7 client's name, Dr. Jadranko Prlic was mentioned and you were asked
8 concretely yesterday whether you had consulted him as one of the people or
9 whether he had contacted you in preparation for your report, and you
10 indicated that you could not be certain because after all, seven years had
11 gone by.
12 Since then I spoke with Dr. Jadranko Prlic and this is what he
13 tells me - and perhaps you can assist, if this refreshes your memory -
14 that approximately on August 2005, there was a conference -- in August
15 2000 there was a five-day conference organised by the Open Society Fund
16 for Croatia, it was in apparently you were there and Dr. Prlic was there
17 and you ran into each other.
18 Might that be the encounter that you were thinking of when the
19 question was posed to you by the President?
20 A. Where was that?
21 Q. Dubrovnik.
22 A. Yes. I believe that what you're saying is correct, that Dr. Tomac
23 organised the meeting which lasted maybe 60 minutes or so, and that at
24 that meeting we discussed my questions that I had put about the
25 preparations of this constitutional legal analysis.
Page 25547
1 Q. The point that I'm trying to drive home is that this was in August
2 2000, you prepared your report in 1999, isn't that a fact?
3 A. Yes.
4 Q. So you ran into Dr. Prlic after you had prepared your report after
5 you had consulted those individuals who you thought, who you thought,
6 might be important, might have vital and objective information to assist
7 you in your analysis, your constitutional analysis as opposed to a
8 political or historical analysis, correct?
9 A. Yes.
10 Q. Okay. Now, and that was after you testified as well?
11 A. No. I believe that this is an error in the dates. This must have
12 been before my -- what I'm saying is that my meeting with Dr. Prlic
13 certainly did not take place after my first appearance here in The Hague.
14 Q. Okay. Well, we have a transcript of your appearance, it was on
15 the 15th and 16th of February 2005. Assuming and we can check this out --
16 2000, I'm sorry, 2000, and assuming the conference took place in August
17 2000, logic would have it that the conference was after your testimony and
18 after, as you indicated, seven years passed so...
19 But in any event I don't want to dwell on this point.
20 All right. Well, okay. Very well?
21 A. Can I insist on my answer?
22 Q. I was hoping to get one but that's fine, Your Honour, I'll move
23 on. I don't have time. Yesterday you were asked a question at the end
24 concerning the book that you wrote and as I understand it the book
25 essentially is nothing more than your expertise that you prepared for the
Page 25548
1 Kordic case. Am I correct on that?
2 A. No, no. The book contains other things also.
3 Q. Well --
4 A. In addition to the testimony, the book also contains some other
5 documents, also the transcript, there is also an introduction and the
6 preface of the then-president of the Republic of Bosnia-Herzegovina and
7 Croatia.
8 Q. [Previous translation continues] ... title "Genesis of a Fallacy"
9 and you made a point of telling us that that was a title chosen by the
10 editors and then you supplemented that by also saying that the cover page
11 was also supplemented and I thought that that was rather odd because and
12 it was almost as if you were reading my mind, because the cover page and
13 I'm showing it to the Court here, it has a cevapi on it and one would
14 think, at least, if they came from Bosnia-Herzegovina, that this was sort
15 of a pejorative way of representing those from Bosnia-Herzegovina, someone
16 coming from say a more sophisticated climate such as you coming from
17 Slovenia. Might that be perceived as that, as I'm characterising it and
18 might that be the reason why yesterday you volunteered that this was
19 something that was chosen by someone else and not you?
20 A. Correct.
21 Q. Okay.
22 A. You can see from the book who was it who chose that. The name of
23 the agency is Boze Sacove [phoen]. That's the page that they choose but
24 cevapcici is not the important part of the cover page. The important part
25 is the way the division of Bosnia-Herzegovina is represented in the centre
Page 25549
1 of that cover page.
2 JUDGE TRECHSEL: I'm sorry, there is a word that you and the
3 witness have used to describe the cover which apparently was not
4 understood because you do not find it in the transcript. Perhaps you
5 could be so kind as Mr. Karnavas and let us have a close look at the
6 cover.
7 MR. KARNAVAS: I will, I will.
8 JUDGE TRECHSEL: Thank you.
9 MR. KARNAVAS: I will, Your Honour, and I will assist later.
10 JUDGE TRECHSEL: Thank you.
11 MR. KARNAVAS: I assume that everybody in this courtroom had had a
12 cevapi at one time or another. I highly recommend it.
13 Q. In any event, I want to look at now at 1D 02036, 2036. And this
14 is an unofficial translation of the introduction to your book, "Genesis of
15 a Fallacy." I just wanted to cover some quick points. You could call
16 this sort of a housekeeping matters for the next -- for the rest of the
17 session before we go into the documents. Now, if you have it, I just want
18 to point out a couple of things. On page 3, you talk about how you were
19 asked to do this analysis and then towards the middle of the second
20 paragraph, you say:
21 "I thought that a critique of activities of Herceg-Bosna should be
22 written (in Croatian) by someone who has always been a firm opponent of
23 Greater Serbia unitary aspirations and to whom much credit goes for the
24 independence of his state and development of its amicable relations with
25 neighbouring Croatia."
Page 25550
1 And then you talk about your reasons for testifying. My question
2 is what does being critical or being a firm opponent of Greater Serbia and
3 its unitary aspirations have anything to do with providing an objective
4 analysis on a constitutional issue? Would you agree with me one has
5 nothing to do with the other?
6 MR. SCOTT: Apologies to counsel, Your Honour, we don't have a
7 copy of the exhibits.
8 MR. KARNAVAS: I apologise. You should have copies of all the
9 exhibits. We provided them well in advance. I apologise to the
10 Prosecution, and I'm glad that -- next time I invite Mr. Scott to
11 interrupt earlier.
12 MR. SCOTT: Sorry, thank you very much.
13 MR. KARNAVAS: That's okay. It's on page 3, counsel, it's on the
14 middle of the page.
15 Q. On your page it would be 19, sir, this is the original version.
16 But in any event, going back, would you agree with me that being a firm
17 opponent of Greater Serbia, Greater Serbia's unitary aspirations, I
18 suspect what you mean unitary aspiration is one person-one vote, I think
19 that's what you're driving at, but what does that have to do with you as a
20 constitutional expert being -- providing an objective analysis? Would you
21 agree that one has nothing to do with the other? It calls for a yes or
22 no.
23 A. No.
24 Q. Okay. Now, if we go on to page 4, page 4 of this document, again,
25 staying with the same document, this is your introduction, you say in the
Page 25551
1 first paragraph:
2 "Due to the sensitivity of the matter, I decided that I would not
3 write a single sentence in my report based merely on a priori viewpoint or
4 even prejudice and preconception about Herceg-Bosna, but only based on
5 reliable documents and information gained from authentic witnesses and
6 experts."
7 This would be on page 20 of your document, but I'm sure since you
8 read English -- so it seems to me that at least here, it somewhat
9 contradicts what we just covered earlier that you were relying on a
10 newspaper and not on an authentic -- or reliable documents. Would that be
11 true?
12 A. What I wanted to say was that I took hold of all the legal
13 documents that were passed by the bodies of the Croatian Community of
14 Herceg-Bosna, which means I did not base my analysis on any other --
15 Q. Okay.
16 A. -- basis, but I first read everything I could find in those
17 documents and this is exactly the explanation that I provide in my book.
18 Q. Okay. Thank you. And then you go on to say in the very same
19 paragraph that you took a look at, and this is what I found to be rather
20 shocking, the -- though perhaps not as surprising as it should have
21 been -- that as part of your analysis you also looked at the expert report
22 prepared by another OTP expert; correct?
23 A. Yes, yes.
24 Q. Dr. Zoran Pajic; correct?
25 A. Yes.
Page 25552
1 Q. Okay. I take it you read that before you wrote your own
2 analysis. In other words, you didn't write your analysis and then say,
3 okay, now I can look at somebody else's, perhaps compare and contrast.
4 This was part of what you read and at least it was in your subconscious as
5 you were analysing the other documents and writing your reports in
6 preparation to present your report and testify on behalf of the Office of
7 the Prosecution?
8 A. After such a long time, it is very difficult to answer that, but
9 I'm sure that if I had thought that his analysis took in account
10 everything that should have been taken into account, I would not have made
11 my own analysis, I would have rather told the Prosecutor to use that. I
12 would not have suggested them to commission a new one.
13 Q. Sir I'm just merely trying to get you to verify what you've
14 stated. You can explain on redirect if there is such a -- if we get to
15 that stage. Now, if we get to the next -- further down, the third
16 paragraph, you say:
17 "I soon found out that the opinion one makes based on the
18 normative material contradicted the testimonies on the activities of
19 Herceg-Bosna. That is why I decided to consult experts and some
20 politicians with whom I -- with whom -- I spoke based on 18 previous
21 prepared questions."
22 And then go on a little bit. My first question is those 18
23 prepared questions, we don't have, I assume and the explanation might be
24 because when you moved offices or moved houses, somehow they got lost in
25 the shuffle, correct?
Page 25553
1 A. I actually destroyed them. I actually had them destroyed.
2 Q. You had them destroyed?
3 A. Yes.
4 Q. Okay.
5 A. Like everything else that I had and I thought I would never have
6 to use again.
7 Q. Did you destroy them before or after you testified in Kordic?
8 A. No, no, that was a year ago, approximately a year ago.
9 Q. A year ago, okay. Now, sir, I don't have it with me and I'm
10 really shocked to hear this because when I got into this case in 2005, I
11 wrote you a letter in English. You responded in Slovenian. I asked to
12 you kindly use Croatian which I knew that you knew and I asked you for
13 your notes and back then, you wrote to me - I can dig it up, we'll find
14 it - you told me that the notes got lost during the move. So if you
15 destroyed the notes as you're telling us now in 2006, which precedes 2007
16 by a year, it stands to follow that at the time that I was asking for the
17 notes, you had the notes and you deliberately destroyed them thereafter,
18 even though you knew by then that you were on the Prosecution list to
19 testify in this particular court, in this particular case.
20 A. No. This is far from the truth. You asked me whether this was
21 after my testimony seven years ago and my answer was yes, that was much
22 later, because of the relocation. At that time when you wrote to me, I
23 never intended to come here. You know very well that I allowed the
24 Prosecutor's Office to use my analysis but that I asked them and my
25 condition was that I wouldn't have to come here, and that was a proposal
Page 25554
1 to the Trial Chamber from the Prosecutor's Office and I was convinced that
2 that would never happen.
3 Q. You answered the question?
4 MR. KARNAVAS: And at some point, Your Honour, I will be tendering
5 that letter just to make sure that there is no confabulation on my part
6 that I had made the request.
7 Q. Now, going to, page 5, you say that -- you go on and then you talk
8 about:
9 "Unfortunately," this is on the first paragraph, "some of my
10 legal analysis proved to be more or less suscipient labour when I ran into
11 the secret decisions of a meeting of the HDZ high officials to say one
12 thing publicly and to write in documents and then (that HDZ supports
13 sovereign Bosnia and Herzegovina) and to do a different thing in the
14 secret annexing of Bosnia-Herzegovina to Croatia."
15 And then you said: "As I found out about such arrangements after
16 I had finished the basic analysis of Herceg-Bosna legislation, it seemed
17 to be at least partially too detailed, limited by normative approach,
18 sometimes even naive."
19 I don't know what that means, but then you go on to say on page 7,
20 on page 7, at the -- first paragraph, middle of the paragraph, you say:
21 "That transcript considerably influenced my final opinion on
22 Herceg-Bosna and its mistakes although I did not forget to say in my
23 expert report that such HDZ policy was never officially accepted as the
24 policy of the Croatian state especially not of the Croatian parliament
25 which assisted on the integrity of Bosnia-Herzegovina, adopted a decision
Page 25555
1 to recognise it, et cetera."
2 Now, it would seem to me, sir, that at least in your introduction,
3 that you placed high premium on that particular transcript and the
4 transcript that we are referring to is the one of 27 December 1991; is
5 that correct?
6 A. Yes.
7 Q. All right. Now, I take it -- and I should have asked you this
8 earlier -- yesterday were you asked a question by the Prosecutor about
9 your testimony in the Kordic case, he asked you whether the -- the
10 transcript seemed to be accurate and you indicated yes. But I wasn't
11 clear whether you were actually adopting the answers that you had given at
12 that time, both during direct examination and cross-examination. I
13 suspect the answer to my question is yes, indeed, those answers remain as
14 they were back then, true, accurate and complete; correct?
15 A. Yes.
16 Q. And of course, I am sure in coming here you looked at your
17 transcript, read it, to see what you had said, to make sure at least
18 whatever you say here was consistent with what you said back then and also
19 to refresh your memory?
20 A. Correct.
21 Q. And I'm sure it must have -- you must have noticed as I had
22 noticed that on the very first question during cross-examination, it was
23 pointed out to you - and I believe that was on the 15th of February 2000,
24 it was pointed out to you that about the chronology of the events and that
25 this particular meeting had occurred as I understand it three -- three
Page 25556
1 months prior to the referendum question, correct?
2 A. Yes.
3 Q. Okay. And for the Court's convenience lest there be any -- any
4 confusion on that, this can be found on pages -- on page 2.000 -- 14.224
5 and the exhibit number is 103555 [sic], the exchange actually starts a
6 little bit earlier but the answer is on -- on line 25 of this particular
7 page where it says, "You could put it that way."
8 Now, I'm told that the number should be 10355. That's the exhibit
9 number.
10 Now, moving on, I want to go now very quickly to your report and
11 just cover a couple of points quickly before we actually get into the
12 documents. If we look at the very first page, we look at the footnote at
13 the bottom, you have the -- footnote 1 is an extensive biography, and at
14 the end you talk about in drafting of this -- the very last two
15 paragraphs -- two sentences or maybe it's the last sentence:
16 "In the drafting of his expert opinion on the issue in dispute,
17 he, Ribicic, consulted with several professors from Ljubljana, Zagreb,
18 Sarajevo. In the preparation of his expert opinion he relied on Narodni
19 List, HZ RHB, 1992 to 1994," that's the Official Gazette, of course, "the
20 testimony of Dr. Pajic, in the proceedings against Blaskic in The Hague,
21 works on the theory of the state and constitutional law primarily from
22 Slovenia, Croatia and Bosnia-Herzegovina and other materials which are
23 cited in the expert opinion.
24 My question now, I guess we'll park here for a second, do you have
25 a list of all the people that you actually consulted with, that you could
Page 25557
1 provide us at this point in time, or has -- is memory fading with time?
2 A. Yes. Memories fade, so I don't have the list but I mentioned some
3 of their names in my analysis.
4 Q. All right. I take it did you meet with Mesic, now
5 President Mesic? Did you discuss this with him?
6 A. No.
7 Q. Did you look at his testimony by any chance in the Blaskic case?
8 A. No.
9 Q. Now, obviously, you talk about at one point because I found this
10 rather interesting I'm going to move ahead a little bit on page -- on page
11 41 of your report, on the first -- the second paragraph, you say:
12 "With respect to its relationship with the Republic of Croatia,
13 the legal enactments of HZ HB do not provide sufficient evidence which
14 would indicate its legal subordination to its neighbouring state.
15 However, a constitutional analysis cannot confine itself to normative
16 regulations but rather it must study the actual state of affairs, the
17 implementation of the normative regulations and the actual relationships
18 in real life."
19 Now help me out here, Professor. In reading this, this last part
20 especially, it seems to me what you're saying that we cannot just look at
21 the laws and at least do a de jure analysis but you're saying we also need
22 to do a de facto application and in order to do that de facto application
23 we must look at a number of things in order to make sure that we have the
24 application in context. Would that be correct? And this would be on page
25 32 of your version, page 41 in the English version. But am I correct,
Page 25558
1 sir?
2 A. Yes, you are correct, but I have to say that I meant not only the
3 testimony and so on but also to the documents that I obtained here in
4 The Hague, in particular the transcript of the HDZ leadership meeting in
5 Zagreb.
6 Q. Okay. We are going to get to that but I just first before we
7 break I just want you to help me out here. Since you were embarking on
8 not just a de jure but de facto analysis, and forgive me if I say that
9 this is more of a political, historical analysis than a pure legal expert
10 analysis, that's my opinion, but did you consult with some of the players,
11 as it were? For instance, did you meet with Mr. Akmadzic? And that calls
12 for a yes or no.
13 A. No.
14 Q. Do you know who Mr. Akmadzic is and what his position is?
15 A. No.
16 Q. Okay. Am I to understand from that that did you not hear of
17 Mr. Akmadzic, you did not hear what his role was?
18 A. That's correct.
19 Q. Okay. All right. What about Franjo Boras? Do you know that
20 name? Did you meet with him, do you know in what capacity he was involved
21 in this process?
22 A. No.
23 Q. What about -- [overlapping speakers]
24 A. Never met with him.
25 Q. [Previous translation continues] ... I think his name is -- do you
Page 25559
1 know his name off the top of you head?
2 A. No.
3 Q. [Previous translation continues] ... So you don't know him
4 either?
5 A. No.
6 Q. Okay. All right. What about Andrijic who was with --
7 JUDGE TRECHSEL: Excuse me, Mr. Karnavas, who was this, the name
8 was not recorded?
9 MR. KARNAVAS: Jure Pelivan.
10 JUDGE TRECHSEL: Thank you.
11 MR. KARNAVAS: These are all prominent figures that are in
12 documents that are already before the Trial Chamber and more will be heard
13 throughout the course of this trial.
14 Q. Now about what Mr. Andrijic, I believe his first name was Stjepo,
15 and he was with the Central Bank -- a governor of the Central Bank and the
16 reason I mention this, the reason I mention this is because you make, at
17 some point, some sort of an analysis or some sort of -- you venture an
18 opinion concerning the Croatian dinar and I'm wondering whether you ever
19 went to Sarajevo or found out who the governor of the Central Bank was and
20 to what extent the Central Bank was functioning if it was functioning at
21 all, and what currency was being issued and circulated in
22 Bosnia-Herzegovina in the various places, during the relevant period that
23 were you asked to analyse the constitutionality of these documents?
24 A. No. When I said that I consulted people, I referred primarily to
25 professors of constitutional law, experts dealing with issues in
Page 25560
1 constitutional law.
2 Q. Okay. Well, you wrote to Kljuic, right?
3 A. Yes, yes.
4 Q. Now, Kljuic --
5 A. I wrote to him and he wrote back to me. I met him for the first
6 time after my testimony.
7 Q. All right. But you wrote to him, he gave you some answers, you
8 incorporated his thoughts into your analysis; right?
9 A. Well, I thanked all of them for the information they gave me, but
10 I told them that I would decide myself whether I would include any of that
11 in my analysis and that I will not be referring --
12 Q. [Previous translation continues] ... what I'm trying to show here
13 is not what you relied on. What I'm trying to show here is that you as an
14 expert supposedly trying to do an objective analysis, given your own
15 admission that you want to look at the de facto situation, it would seem
16 to me that if you wanted to be fair and helpful to the Trial Chamber, as
17 opposed to perhaps assisting one party or the other, you should have
18 looked at or consulted with all these people who were involved. So let me
19 move on. Did you meet with anybody, for instance, with the -- within the
20 executive authority that we -- that -- of the documents for instance that
21 you've been referring to and I'll start off with Dr. Jadranko Prlic? Did
22 you meet with him to ask him any questions or did you send him the 18
23 questions to get his take on what was going on? Yes or no.
24 A. Yes.
25 Q. You did?
Page 25561
1 A. Yes.
2 Q. And where is the proof of that?
3 A. Well, it will be a bit more difficult to find proof but we could
4 call witnesses, but I did not talk to any people about that after my
5 testimony here in The Hague. It was before.
6 Q. [Previous translation continues] ... did you -- did you -- did you
7 speak with, for instance, Mr. Zubak, Kresimir?
8 A. No. I'm not sure.
9 Q. Okay. Do you know what positions he held at the time?
10 A. Yes. He held a high position. I saw that from the documents.
11 That's why I know his name but now I cannot --
12 Q. [Previous translation continues] ... okay. What about -- do you
13 know which positions he held at this point in time? Can you recall which
14 positions he held?
15 A. No, no, I wouldn't like to guess.
16 Q. Okay. What about Zoran Buntic? Do you know him? Do you know
17 that name?
18 A. No.
19 Q. [Previous translation continues] ... did you ever run across his
20 name?
21 A. I cannot say whether I did or did not. I cannot recall what his
22 function may have been.
23 Q. [Previous translation continues] ...
24 A. I really didn't think that it was my task to do so.
25 Q. Okay. Did you contact anybody say from the Muslim government in
Page 25562
1 Sarajevo, Silajdzic, Ganic, any of those folks?
2 A. No. I did not.
3 Q. Did you consult, for instance, any of the texts or seek out any of
4 the international players that were involved in the Vance-Owen Peace Plan
5 or the Owen-Stoltenberg plan or even those who were -- Cutileiro,
6 Badinter, any of those, did you consult with them at all to get a flavour
7 of what was happening at the international level?
8 A. Well, this can take a long time. You can ask me another thousand
9 questions of this kind but I have to say that I quote sources that I used.
10 In this specific case, the answer is no, but let me cut this short by
11 saying that in the footnotes and there are quite a few of them, I list my
12 sources, the sources that I used and those that I didn't use.
13 Q. Very well. Now, would you agree with me -- and we will be taking
14 a break and I think we will keep this as the last question for now --
15 would you agree with me that when reading your report, sir, it does not
16 read like a legal expert analysis because if we look at the title of it,
17 it says, "Constitutional legal analysis of the establishment and
18 functioning of the Croatian community Republic of Herceg-Bosna" and where
19 is the book with the cevapi on it? I don't have it here but -- well, I
20 don't -- I can't read the -- I think it's -- you have a colourful name for
21 that, but again you note that it's -- you say, "Constitutional legal
22 analysis of the establishment and functioning of the Croatian
23 community" -- so would you agree with me that when reading your particular
24 analysis, sir, it does not read like a legal analysis but rather it has a
25 great deal of political analysis and perhaps even historical analysis?
Page 25563
1 Would you agree with me on that? And it's a yes or no.
2 A. I would like to ask to you be fair to me and my book. You should
3 not really speak about it in the way that you have now spoken about it.
4 And I would like you to allow me to answer. Anyone who dealt with
5 constitutional law knows that this is a special branch of the legal
6 science where it is stressed that in addition to the normative aspects
7 which are of course the most important for any legal analysis, that
8 sociological political science and others aspects have to be take into
9 account.
10 In constitutional law itself, in its very notion, there is an
11 element that makes it different from criminal law, civil law, so I would
12 like to warn you that in the title of my analysis, it says "constitutional
13 legal analysis," not "legal analysis," so you're completely wrong when you
14 say that this is not a constitutional legal analysis.
15 Q. Well, this begs one last question before we take that break. If
16 we go to page 44 of your constitutional/legal analysis, and this is what
17 caught me a little bit, you say in the bottom part of the first paragraph,
18 I might have to read a little bit above it, you say, in this paragraph,.
19 "Viewed in the light, the establishment of the HZ HB was no doubt
20 to serve as a defence against aggression, but at the same time, it was an
21 obvious signal that the Croats in Bosnia-Herzegovina would rely on the
22 Republic of Croatia in the agreement with the SDS for that and not for the
23 government -- and not on the government of Bosnia-Herzegovina, Muslims or
24 other proponents of a sovereign and independent Bosnia-Herzegovina."
25 Then you go on to say, this is what caught my attention, "This was
Page 25564
1 boosted in part by a political segment of the international community
2 which was fueled by a desire to prevent the emergence of a strong Muslim
3 state as well as numerous demarcation plans of the international community
4 which were (erroneously?) interrupted to mean acceptance of the
5 partitioning of Bosnia-Herzegovina, that, is as the nation envisaging
6 grouping in its ethnically homogeneous parts."
7 So my question -- I asked myself how is this a constitutional
8 legal analysis? And where do you base this - and it may be true, I know
9 that there are all sorts of issues out there talking about the clash of
10 civilisations and how we cannot have in Europe a Muslim state, even if
11 it's within a state, and I'm sure you would agree that these were
12 discussions, but how does this fit in and where is the basis and how --
13 what does this have to do with making a pure constitutional legal analysis
14 of the documents?
15 Because the Prosecution has asked you to do -- do that, at least
16 in part, hoping that it would support their thesis of what the HZ HB or HR
17 HB was all about. Could we have your comment on that because I want to be
18 fair to you. Then we can take our break. Please keep it short. We'll
19 have three minutes before the break.
20 A. I absolutely can do so. I first analysed the acts of
21 Herceg-Bosna, and this analysis showed that this was a community that
22 wanted to become an independent body politic or state, but other documents
23 that you quoted and that I used, in particular the minutes, the transcript
24 of the meeting of the HDZ leadership, showed that to a large extent, a
25 political decision was made in advance and that the establishment of
Page 25565
1 Herceg-Bosna was used in order to create a foundation for the annexation
2 of that part of Bosnia-Herzegovina to the neighbouring Croatia. This is
3 what I meant, and this is what Franjo Tudjman says quite explicitly in
4 this transcript when he says that if this road is not taken, the
5 international community will, through Milosevic and Serbia, prevent the
6 creation of a new Muslim state in that territory.
7 Q. Okay. So it was Tudjman who didn't want the Muslim state. Is
8 that what you're trying to tell us? Or was it the international community
9 that doesn't want the Muslim state? Who doesn't want the emergence of a
10 Muslim state in Western Europe? That's what I'm concerned about.
11 A. Dr. Tudjman invokes that and he says that the international
12 community, in particular the United States of America, do not want such a
13 state, and that they would try and prevent that through Milosevic, unless
14 Bosnia-Herzegovina were to be divided.
15 Q. If I may, just one last question, you say Tudjman but here you
16 say, "This was boosted in part by the political segment of the
17 international community which was fueled by a desire to prevent the
18 emergence of a state -- of a strong Muslim state."
19 I don't see a footnote to Tudjman. What I see here is some
20 speculative analysis or some political analysis, maybe from other texts,
21 but this is the international community, not based on what Tudjman's
22 belief is of the international community but what you believe the
23 international community is trying to prevent. Isn't that correct? And
24 it's a yes or no and then we'll take the break.
25 A. Yes.
Page 25566
1 Q. Okay, so that's your analysis, not anybody else's analysis.
2 A. Absolutely. Yes, but it is based --
3 Q. Well, I don't see a footnote anywhere. As an academic, as a
4 professor you know you have to footnote your sources. Thank you, we'll
5 take the break, Your Honour, if that's okay.
6 JUDGE ANTONETTI: [Interpretation] Very well. Let's take a
7 20-minute break.
8 --- Recess taken at 3.51 p.m.
9 --- On resuming at 4.12 p.m.
10 JUDGE ANTONETTI: [Interpretation] The hearing is resumed. With
11 regard to the time, I was told that you used up 47 minutes so I imagine
12 that other counsels must have given you time.
13 MR. KARNAVAS: Well, Mr. President, you did indicate it would be
14 the smart thing for the rest of them to give the time to one person and
15 although we already prearranged that, so I have the remainder of the time
16 and I'm very grateful to my colleagues for providing time to us so we
17 could do sort of a unified cross-examination. I hope I don't fail them in
18 my attempts to do so.
19 JUDGE ANTONETTI: [Interpretation] Are you talking about all of
20 your colleagues?
21 MR. KARNAVAS: That's my understanding.
22 JUDGE ANTONETTI: [Interpretation] Very well. This is a good
23 thing. You may proceed.
24 MR. KARNAVAS: I hope my colleagues agree.
25 Q. Now, sir, if we go -- yesterday, I listened to a question that was
Page 25567
1 posed by the President, Judge Antonetti, it's on page 32 of yesterday's
2 transcript when he asked you the following question:
3 "When the republic of Herceg-Bosna declared its independence and
4 when it was not recognised as an independent state, since you are an
5 expert in constitutional matters, can we make it -- can we make a parallel
6 here with Taiwan, for instance? And then you indicated, as regards
7 Herceg-Bosna, once it became a republic of Herceg-Bosna, it defined
8 itself - Bozidar, please - it defined itself as a state community, not a
9 state. It was done at a time when it seemed realistically to expect that
10 it would be a member state or constituent state of some kind of federal or
11 confederal Bosnia-Herzegovina.
12 Now, first of all, I just want to make sure that we are clear on
13 one thing: The Republic of Herceg-Bosna never declared its independence;
14 isn't that a fact?
15 A. Yes.
16 Q. I was struck by that because I assumed Judge Antonetti was baiting
17 you, you know, and you didn't respond. And isn't it a fact also that it
18 never asked to be recognised internationally as such?
19 A. That was never requested.
20 Q. Okay. All right. Now, it seemed to me, going back to the -- your
21 analysis, that you said that you placed a great deal of premium on that
22 one particular presidential transcript, and that was of 27 December 1991
23 and at some point you opine that the 30 municipalities that made up of
24 the -- Croatian Community of Herceg-Bosna, this is on page 33 and onwards,
25 you say that they had some sort of aspiration or was based on their
Page 25568
1 aspiration to reenact or recreate or re-establish the Banovina. I'm
2 paraphrasing but is that more or less part of your thesis? And you ground
3 that in the fact that the Banovina is mentioned in the preamble of the
4 constitution of the Republic of Croatia.
5 A. No. I don't think so. The 30 municipalities covered the
6 territory that was within the territory of the Banovina Hrvatska, of
7 course together with the rest of Croatia.
8 Q. All right. But you seem to indicate, and this is on page 35, line
9 2, this was from your testimony yesterday, Banovina Hrvatska, as it was
10 styled, covered the very same territory of the 30 municipalities that were
11 included in Croatian Community of Herceg-Bosna. And then when you go
12 back, you go down to lines 9 and 10 of yesterday's -- on the very same
13 page on page 35 you say, "The selection of these 30 municipalities were
14 obviously governed by a certain historical and programmatic
15 considerations." That's what it says. I'm just reading from the
16 transcript. You stand by that, do you not? Because then you go on, on
17 lines 21, you say, "This is quite important. I posit because we can see
18 that Banovina Hrvatska is mentioned in the preamble to the Constitution of
19 the Republic of Croatia." And that you make some allusions to that as
20 well in your analysis but this is from your testimony yesterday and when I
21 look at that it seems to me that what you're saying is that there is some
22 sort of a connection between the 30 municipalities and the Banovina
23 Hrvatska and part of that is in light of the fact that we can find a
24 reference to Banovina Hrvatska in the Croatian -- in the Constitution of
25 the Republic of Croatia. Would that be correct?
Page 25569
1 A. No. What I said actually, the territory of Banovina Hrvatska is
2 mentioned but it was much larger than the Croatian Community of
3 Herceg-Bosna. So Banovina Hvratska included that territory, the territory
4 of the 30 municipalities that went on to establish the Croatian Community
5 of Herceg-Bosna. So when I asked myself why those 30 municipalities, the
6 answer could not be that Croats were in the majority there because we know
7 that they were in some but were not in others, so I tried to find out what
8 it was, and I came to realise that it corresponded quite closely to the
9 territory that had been part of Banovina Hvratska in 1939.
10 Q. Okay. Very well. And I'll leave it to the Trial Chamber to
11 decide but it seems to me that this is speculative on your part because
12 you say, "This is quite important, I posit." It seems to me that you are
13 speculating, drawing some sort of a conclusion, as it were. Can we go --
14 can I -- do we agree on that?
15 A. I know that the Prosecution did draw some maps that show that. I
16 saw those maps. And there is a high degree of correspondence in terms of
17 territory between the 30 municipalities and the territory that was made
18 part of Banovina Hrvatska.
19 Q. That's fine but what I'm trying to get you, sir, to confirm or
20 deny is the fact that you look at the reference to the constitution of the
21 Republic of Croatia and you say, Ha, it's in the preamble, therefore,
22 those Herzegovinian Croats and from Central Bosnia, wherever they may be,
23 from Bosnia-Herzegovina, they must have the Banovina in mind, hence the
24 selection of these 30 municipalities.
25 A. Well, I don't really know -- no, no, please, I want to draw your
Page 25570
1 attention to the fact that Dr. Tudjman spoke about that quite explicitly
2 in -- at that meeting. It is written down in the transcript --
3 Q. Very well.
4 A. -- why it would be useful for that part to be joined to Croatia.
5 Q. All right. Very well. Just for the record, Your Honours, we have
6 1D 02039. This is the document, unofficial translation of the
7 Constitution of the Republic of Croatia. I don't know if it's -- it's the
8 preamble, I'm sorry, the preamble to the Constitution of the Republic of
9 Croatia and it does indeed make reference to -- at the very -- if you look
10 at the page 1, if you look at the page -- if you look at page 1, and you
11 see that there are these bullet points, the second-to-last, it says, "In
12 the establishment of the Banovina Croatia in 1939, by which Croatian state
13 identify [sic] was restored in the Kingdom of Yugoslavia," and then it
14 goes on and talks about the next phase because if we look from the
15 beginning and start from the 7th century onwards. And would it be fair to
16 say, sir, that this preamble, the way it's at least laid out, lays out the
17 sort of historical progression of the Republic of Croatia in its various
18 phases throughout the centuries?
19 A. Yes, that is my opinion.
20 Q. Very well. Now, I want to -- since we are talking about the
21 Banovina perhaps we can look at a map and go through some documents
22 because then -- and please tell us whether this confirms or denies what
23 you were able to see from the Prosecution. And incidentally before I ask
24 you a single question, may I ask do you have a list of the documents that
25 were provided to you by the Prosecution? And I assumed when they did
Page 25571
1 provide the documents to you, along with the six or seven questions, as
2 you've indicated yesterday that you were asked to sort of answer, did you
3 also ask for any other documents in the process? So, number 1, do you
4 have the list of documents that were provided to you? 2, did you in
5 addition ask for any other documents?
6 A. I don't have that list in front of me. I did see it at one point.
7 And I did ask for some other documents to be sought, documents that
8 pertained to the decisions of the Constitutional Court.
9 Q. Now since were you also interested in context and you wanted to
10 see how things were done in practice, I assumed you also looked at other
11 places as well to see perhaps what was happening in Tuzla, Jablanica,
12 other places in Bosnia-Herzegovina, to see what was going on, perhaps make
13 a compare and contrast. And it's a yes or no.
14 A. Yes.
15 Q. All right. All right. Now if we can go through --?
16 MR. KARNAVAS: The first document, Your Honours, is 1D 01736. We
17 have a map -- we have a map. It's on the ELMO, Your Honours, and you
18 might see on the -- on the -- I guess it would be the left side, you'll
19 see the colours and it's sort of a -- it's -- it's low-budget, but I think
20 it serves the purpose and I'm going to go chronologically. If we look at
21 1D 01736, this particular document, this is a decision and we don't
22 have -- I must confess to the Trial Chamber, we don't have an original
23 decision that establishes the Bosanska Posavina as it relates over here,
24 but here we see that Orasje municipality shall join the Croatian Community
25 in Bosanska Posavina in addition to Orasje Municipality which includes
Page 25572
1 seven other municipalities, Bosanski Brod, Deventa, Odzak, Modrica,
2 Bosanski Samac, Gradacac, whatever -- and Brcko. We can all see it. I
3 apologise to the interpreters and everyone about my pronunciation.
4 Now, were you aware of this particular decision and were you aware
5 that at least the Bosanska Posavina was established prior to the Croatian
6 Community of Herceg-Bosna?
7 A. Yes. But I did not focus on the position and the creation and the
8 operation of that community.
9 Q. Would it surprise you that this was -- this was formed in June
10 1991? The Bosanska Posavina? Were you aware of that?
11 A. I say that I did not really deal with that so I don't know about
12 the dates.
13 Q. Okay. Well, did you -- were you aware that there was such a thing
14 as a Bosanska Posavina?
15 A. Yes.
16 Q. All right. And were you aware that these municipalities -- were
17 you aware of this particular decision? Was that provided to you by the
18 Office of the Prosecution?
19 A. You think the decision on the expansion to include some other
20 municipalities?
21 Q. Well, yes. Yes. This one.
22 A. Yes, I was not aware of that.
23 Q. Okay. Look at the next document. This is 81, I guess it's --
24 P 00081. This is dated 18 November 1991. This is the first decision --
25 if we could leave -- if we could just leave it on the ELMO, please, the
Page 25573
1 gentleman does have the document and if we could look at this document and
2 also in conjunction with this, we look at P 0078, these are the two
3 decisions in chronological order but essentially if we look at the map
4 that's on the ELMO, we see this light green area or yellow that covers
5 those particular municipalities that are mentioned in Articles -- Article
6 2 of document 81, and 78, correct?
7 A. Yes.
8 Q. Then if we look at document 1D 01924, if you have it, and if we
9 look on a map, you see there is sort of an orange colour, it covers -- it
10 says here in the decision, dated 1 June 1992, "The HVO, Croatian Defence
11 Council of the municipalities of Zepce, Zavidovici, Maglaj and Teslic
12 based in Zepce are hereby entrusted -- are hereby entrusted with the
13 defence of Maglaj municipality."
14 Now, Maglaj municipality was I understand it was a predominantly
15 Muslim municipality. Am I right on that? Or don't you know?
16 A. Yes. I think it is sure that there was no Croatian majority
17 there, in light of the location of this municipality.
18 Q. Right. And we can see that on the map. We can see those areas.
19 And if we were to go on for instance if we could now go off the ELMO and
20 on to e-court perhaps we can look and just focus just for a second on the
21 presidents of the municipal Crisis Staff, perhaps you could tell us if you
22 notice whether the names may reveal the national origin of these
23 individuals, recognising that one cannot always rely on the names.
24 A. Yes.
25 Q. Would you agree with me that we see some Muslim names on this, now
Page 25574
1 Bosniak?
2 A. Yes, that's correct.
3 Q. All right. If we go on to the next document, it's 1D 01261, and
4 go back to the map, and go back to the map, this is from the municipality
5 of Olovo. It's dated September 14, 1992 and it's a -- it's a green, as
6 opposed to the yellow, I trust everybody can see it. I apologise for not
7 having one for the Bench. But we can see that. And it says here that
8 these are excerpts from the minutes on September 14, 1992, the Croatian
9 Defence Council of the municipality of Olovo was constituted by Croats
10 living in this municipality and so we can move on to the next document.
11 Were you aware of this document by the way, the document that I showed you
12 before?
13 A. No.
14 Q. Okay. Next document is P 00741, and this deals with - you will
15 notice, Your Honours, that we I guess we are running out of colours at
16 this point and we tried to you'll see some lines on it, it's red with some
17 lines on it - excerpts from the record of the Second General Assembly of
18 the BH HDZ held on November 14, 1992 in Mostar, and I draw everyone's
19 attention, including yours, sir, to page 5 at least in the English
20 version, page 5 in the English version. Oh, I'm sorry, I misspoke as far
21 as the colours go, it's the green or the yellow, it's the yellow with the
22 lines on it. We can see because we are going to cover various aspects in
23 this document, on page 5, at the very last paragraph, number 7:
24 "Jozo Ilic, Zavidovici, supported the initiative to form Croatian
25 municipalities outside the HZ Herceg-Bosna as he currently lives and works
Page 25575
1 in Zenica. He suggested that the Croats of Zenica form a Croatian
2 municipality which would join the HZ Herceg-Bosna."
3 Then if we go on to the following page, number 6, and we look at
4 paragraph 10, Your Honours, and sir, "Tomislav" - I need some help -
5 "Oberdan [phoen], Sarajevo," and at the very last line it says Sarajevo --
6 "HVO in Sarajevo be officially empowered to work and operate." And from
7 this document it would appear that you have HVO in Sarajevo; correct?
8 A. Yes.
9 Q. Okay. Now, if you look at number -- number 14, but before we go
10 to number 14, we can look at number 13 just to -- because we mentioned
11 this name earlier, we see Mile Akmadzic, the Prime Minister of BH, Prime
12 Minister -- I'm sorry, the -- so he would be the president of the
13 government I'm told in the original language, they have it here as Prime
14 Minister of Bosnia-Herzegovina. This is -- do you recognise this name now
15 that you see it in writing, Mile Akmadzic?
16 A. Yes.
17 Q. Okay. That's why I asked you whether you had contacted him
18 because he had been in -- involved in the activities.
19 Now if we look at paragraph number 14: "Franjo Bratic, Usora,
20 promised to unite Usora, a new Croatian municipality with the HZ
21 Herceg-Bosna."
22 And if we look at the -- at the map, you can see that it's again
23 it's -- it's Usora. Do you know where that is, sir? I'm told that it's
24 right by Doboj. You've heard of Doboj?
25 A. Yes.
Page 25576
1 Q. Okay. And we can see it over there and we have pencilled it in I
2 should note for the Trial Chamber that this is a rough approximation based
3 on Ms. Tomanovic's understanding of the area since she hails from there.
4 Okay, I think --
5 JUDGE TRECHSEL: Mr. Karnavas, excuse me, I'm a bit lost, are you
6 quoting and referring to P 00741?
7 MR. KARNAVAS: Yes, yes.
8 JUDGE TRECHSEL: Because the document here.
9 MR. KARNAVAS: It has several paragraphs, I was on page 6.
10 JUDGE TRECHSEL: Because we are a bit switching from pages to
11 numbers. I'm sorry.
12 MR. KARNAVAS: I'm terribly -- I apologise. If I could just recap
13 very quickly I first referred to paragraph number 7 on page 5.
14 JUDGE TRECHSEL: It's okay. I've got it.
15 MR. KARNAVAS: Page 6, it was 10 and 14. Okay, again my
16 apologies.
17 Q. If we could go on -- were you aware of this particular -- this
18 particular document, was this shown to you by any chance --
19 A. No, no.
20 Q. Okay. All right. I trust the fact that it's a P number has not
21 been lost on the Trial Chamber's attention.
22 Now, the next document is 1D 01981, these are minutes from a joint
23 meeting of the HVO --
24 JUDGE ANTONETTI: [Interpretation] One quick question to the
25 witness. The document that Mr. Karnavas just evoked with the various
Page 25577
1 names and dates, 13th, 8th, 10th, it's an important document, right? Had
2 you not seen it when you were preparing yourself?
3 THE WITNESS: [Interpretation] Is this the document that I have on
4 the screen before me?
5 JUDGE ANTONETTI: [Interpretation] 741. Did you not read it
6 before?
7 THE WITNESS: [Interpretation] No.
8 JUDGE ANTONETTI: [Interpretation] Very well.
9 MR. SCOTT: Since the comment was directed at the Prosecution by
10 Mr. Karnavas which I don't think is necessary. I don't think we need
11 counsel's comment during the questioning of witnesses, but since it was
12 done, and since the question has been asked, there would be no reason to
13 show these documents to the witness because none of these other areas are
14 part of the Croatian Community of Herceg-Bosna. They are completely
15 separate items, have nothing to do with the Croatian Community of
16 Herceg-Bosna which is the question that this expert was asked to address,
17 specifically the operation of the Croatian Community of Herceg-Bosna. So
18 while this is an interesting geography lesson this afternoon, it has
19 nothing to do with the Croatian Community of Herceg-Bosna.
20 MR. KARNAVAS: Your Honour, it specifically goes to what the
21 gentleman has opined and I don't want to get into a lengthy debate. In
22 any event my reference to the Prosecution, I understand I touched a nerve
23 but the point was this, if you're asking -- if you're asking an expert to
24 do an analysis and you have all sorts of documents that might assist the
25 expert - since he is the expert; otherwise you would do it yourself - why
Page 25578
1 not give him what documents you have and let the expert figure it out, as
2 opposed to having the expert referred to newspaper articles to try to
3 figure out what a Constitutional Court might have said. That's my point.
4 MR. SCOTT: Well, Mr. Karnavas wants to continue arguing, Your
5 Honour, then the Prosecution will once again respond. They weren't --
6 number one they weren't provided to the witness because they were, 1,
7 irrelevant, completely irrelevant. Number 2, excuse me, I'm going to --
8 the argument was made, I'm going to respond, Your Honour. Number 2, the
9 point should be made, this expert could look at any documents he wanted
10 to. He's an expert in constitutional law. He comes from the former
11 Yugoslavia. And I want to make it very clear that nothing he said or did
12 was restricted to materials provided by the Prosecution. Dr. Ribicic
13 could look at any materials that he chose to look at.
14 MR. KARNAVAS: I agree, Your Honour. I agree totally. If the
15 prosecutor didn't provide it to him, because maybe they didn't think it
16 was necessary, the gentleman who was the expert should have sought them
17 out. He makes my point. Let's move on.
18 Q. 1D 0191.
19 MR. SCOTT: Irrelevant.
20 MR. KARNAVAS: Calm down, Mr. Scott, calm down.
21 MR. SCOTT: I object to those comments. Now, stop it. Your
22 Honour, take control of these proceedings and stop this running commentary
23 by counsel.
24 MR. KARNAVAS: Had I known --
25 MR. SCOTT: Ask questions of the witness -- I have a thick skin
Page 25579
1 but if counsel is going to stand up and continually make comments on the
2 Prosecution, then I'm going to respond to it.
3 JUDGE ANTONETTI: [Interpretation] All right. Very, well. I
4 raised this question. I was astonished myself that the witness had not
5 looked at this document. The Prosecution explained that they did not deem
6 it important to show it to him so let's move on, please. Let's not waste
7 100 years on this document, please.
8 MR. KARNAVAS: 1D 019 -- 1981. This is a minute -- minutes from a
9 joint meeting of the HVO of Banovici, Lukavac, Tuzla, Lukavac, Tuzla and
10 Zivinice held on 15 December 1992, and this is a draft decision to
11 establish the Croatian Community of Soli. And if we look at --
12 Q. Were you aware of this document? Was this provided to you or were
13 you aware of this document, sir?
14 A. No.
15 Q. Okay. And then if we look at very quickly the next two documents,
16 is 1D 0212013 [sic], this is a statutory decision on the temporary
17 organisation of executive government and administration in the area of the
18 Croatian community in Soli?
19 JUDGE TRECHSEL: Mr. Karnavas, if you look at the transcript you
20 see that the number must be wrong somehow here, it says 1D 0212013.
21 MR. KARNAVAS: It's 1D 02013.
22 JUDGE TRECHSEL: Thank you.
23 MR. KARNAVAS: 2013.
24 Q. Okay. So we have a statutory decision. I assume that you didn't
25 see this document either.
Page 25580
1 A. No.
2 Q. Okay. And if we just -- just for the Court's convenience if we
3 look at the very last page, on Article 19, the last page of this document,
4 it says the seat of the HVO HZ Soli shall be in Tuzla. I thought this
5 might be of some interest. And then of course we have the rules of
6 procedure which in document 1D 02012 and I suspect that since the answers
7 to my previous two questions with respect to whether you had seen these
8 documents was no, the same would go for this particular document. Is that
9 correct?
10 A. I did not see them.
11 Q. [Previous translation continues] ... again because the issue was
12 raised yesterday with respect to Official Gazettes and you indicated that
13 municipalities did not have their own Official Gazettes but rather they
14 would have to be published within the republican Official Gazette.
15 If we could look at Article 4, just for the Court's convenience,
16 "The custody and use of stamps shall be the responsibility of the
17 secretary of the HVO HZ Soli in accordance with the decree on stamps." And
18 then it says, "Official Gazette of the HZ HB," and it has the number.
19 Do you see that, sir?
20 A. I'm not able to follow you that quickly. I have not found the
21 document.
22 Q. All right. Well, we'll move on just to -- for the sake of saving
23 time.
24 Now, you talked about looking at that one particular transcript
25 which obviously had made an impression on you. Did you look at all -- did
Page 25581
1 you read all of the available presidential transcripts back in 1999 when
2 you were preparing your report or did you focus on that one and I dare say
3 or suspect that it was probably brought to your attention by the
4 Prosecution.
5 A. The Prosecutor pointed those to me and I looked at everything that
6 was available.
7 Q. Okay. Now, did you look at all the presidential transcripts or
8 did you look at some that were made available to you in 1999?
9 MR. SCOTT: They weren't -- they weren't available to the
10 Prosecution in 1999, Your Honour, or to anyone I know outside the
11 President of Croatia's office.
12 MR. KARNAVAS: Okay. Thank you [Microphone not activated].
13 THE INTERPRETER: Microphone for Mr. Karnavas. Microphone for
14 Defence counsel.
15 MR. KARNAVAS:
16 Q. If they were not available to anyone in 1999, not even to the
17 Office of the Prosecution, how was it that you were able to get ahold of
18 this particular document which belonged to the Republic of Croatia? How
19 was it able -- how were you able to get your hands on it back in 1999?
20 Because you seem to have been impeached by the Prosecutor here.
21 A. I said that I was provided this document by the Prosecutor.
22 Q. Okay. So I guess the Prosecution may be incorrect when he states
23 that he didn't have those documents back in 1999?
24 MR. SCOTT: Well, Your Honour, again do you want -- is the
25 question directed at me or directed at the witness? I'm happy to answer.
Page 25582
1 The document was provided by Stjepan Kljuic who was a participant in that
2 meeting and had asked for a transcript of the meeting afterwards. And in
3 the course of testifying in previous cases, Mr. Kljuic provided that one
4 particular 27 December 1991 transcript to the Office of the Prosecutor.
5 No other presidential transcripts were available, as far as I know, to
6 anyone outside the Office of the President of the Republic of Croatia
7 until sometime after January 2000. And I'm happy to provide that
8 information to counsel, but whether this witness knows the history of the
9 presidential transcripts and how the OTP came to have them, I doubt it.
10 MR. KARNAVAS: Well, I appreciate and I'm very grateful to that
11 particular answer.
12 Q. There has been -- for sometime you've known that you were going to
13 have to come here and testify, since at least 2000, the Prosecution has
14 had numerous presidential transcripts at its disposal. It even has
15 permission to use them. My question now is: Did the Prosecution ever
16 provide to you after 2000 --
17 JUDGE ANTONETTI: [No interpretation]
18 MR. KARNAVAS: I need to make my question. He just can't stand
19 up -- I know he's sitting there. I can see him.
20 Q. Now, my question is: Did the Prosecution provide you with all the
21 other documents and say, "You know, Professor Ribicic, take a look at
22 these other transcripts? Maybe or maybe not, you know, you will come to a
23 different conclusion but at least since you're testifying IN this case,
24 and this information was not available back then, now you should look at
25 it to be fair to everyone, especially to the Trial Chamber who has to make
Page 25583
1 a monumental decision at the end of trial."
2 MR. SCOTT: Now I will intervene, Your Honour. Your Honour, the
3 Court may recall, the witness is here as a 92 bis witness based on a
4 report that was prepared in 1999. The Prosecution in this case never
5 asked him to prepare a new report, but he was tendered on the basis that
6 his prior evidence in the Kordic case, both his transcript and his report,
7 were tendered to the Court under 92 bis, that evidence specifically. And
8 it was on that basis that the Chamber asked him to come and appear for
9 cross-examination. At no time was a new report prepared or new
10 information requested or given. He is testifying about a document
11 prepared in 1999.
12 MR. KARNAVAS: Very well. Your Honour, I don't want to debate the
13 point. I think if you're going to bring a witness here, especially an
14 expert witness, they are going to present an expert report, it is fair
15 that if new available information comes into play, that might assist the
16 expert, in perhaps revising their report, that it should be made
17 available.
18 JUDGE ANTONETTI: [No interpretation].
19 MR. KARNAVAS: I hope you got the points, Mr. President.
20 JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, the problem you're
21 raising as to whether the witness was -- was cognizant with presidential
22 transcripts when he drafted his report in 1999, isn't that the issue here?
23 MR. KARNAVAS: Well, there is a double issue. One I'm trying to
24 show that there is a sense of unfairness. They want to bring in somebody
25 from 2000 with an incomplete report. They know that they have more
Page 25584
1 information. And they can't say, well, gee. We didn't give this
2 information to this gentleman and now it's unfair for us to confront him,
3 In fact, I think it's unfair to their own witness to have him subjected to
4 this line of questioning when they had information. I think they are duty
5 bound, they are duty-bound to provide all of the information to the Trial
6 Chamber and they could have done that through this gentleman and perhaps
7 ask him to re-evaluate. I mean that's why on appeal, for instance, we
8 have Rule I believe it's 115 that allows the Appeal Chamber to re-evaluate
9 newly discovered evidence that wasn't available. What about due
10 diligence? I mean, I can go on but I don't, I don't want to.
11 JUDGE ANTONETTI: [Interpretation] Well, when listening to you all
12 here is the problem: You draft a report in 1999. Apparently you were not
13 familiar with all the presidential transcripts because Croatia provided
14 the contents therefore only afterwards to the OTP but apparently there was
15 one document with which you were familiar because Mr. Kljuic had handed it
16 over to the Prosecutor, that is one presidential transcript in 1999. You
17 draft your report, then you testify in the Kordic case. Subsequently,
18 after that testimony in the Kordic case, did OTP give you the presidential
19 transcriptions that it had gotten in the meantime?
20 MR. SCOTT: Again, Your Honour, in response to further arguments
21 by Mr. Karnavas, the Chamber will recall I hope that there are other
22 witnesses and other experts in this case besides this one and all that
23 material, all of this material, has been put before the Chamber. So for
24 Mr. Karnavas to stand up and criticise the Prosecution for not providing
25 this information to the Chamber is not only false but completely unfair.
Page 25585
1 MR. KARNAVAS: Well, Your Honour -- I will move on, I just want to
2 make sure that at the end.
3 JUDGE ANTONETTI: [Interpretation] Continue.
4 MR. KARNAVAS: [Microphone not activated] I will be moving that the
5 report be excluded on the basis that it's incomplete. It's not dated. I
6 mean, this is -- this is important to understand because he has anchored,
7 he has anchored that report on that one transcript that we now know was
8 surreptitiously brought in.
9 MR. SCOTT: I'm sorry, Your Honour, that's just not true. Don't
10 make false statements, Mr. Karnavas. It's not based on one transcript.
11 My gosh, there's over 100 footnotes, the Narodni List, the de jure,
12 decrees, letters, communications, the decisions of the Constitutional
13 Court. To stand up and say this is based on one presidential transcript
14 is just false.
15 JUDGE TRECHSEL: I'm sorry, Mr. Karnavas. I think we ought to put
16 an end to this battle which loses your time.
17 MR. KARNAVAS: I understand.
18 JUDGE TRECHSEL: You seem to complain that the Prosecution brings
19 a piece of evidence rather than another one, namely an old report rather
20 than a new report, but now we have an old report and you will have the
21 opportunity to cross-examine the witness on the basis of that, and there
22 will be all the possibilities to bring other evidence and to show -- it
23 doesn't help to complain because obviously this witness will not now say,
24 I've read all the rest of it and it's all wrong and I'll change
25 completely. We must perhaps also realistically take into account that to
Page 25586
1 prepare such a report is a huge amount of work and I could imagine that
2 the witness is not sitting at home just waiting for the next hearing and
3 working on putting out reports.
4 MR. KARNAVAS: You're absolutely right.
5 JUDGE TRECHSEL: We have to go brick by brick and step by step to
6 quote a very eloquent advocate of this Court.
7 MR. KARNAVAS: You're very right, Judge Trechsel. The only
8 problem is my client is looking at a life sentence; that's my problem.
9 That's a problem that eats at me every night and I need to point this out
10 to the Trial Chamber that there is a sense of unfairness. That's what I'm
11 trying to point out. It's not a matter of complaining.
12 JUDGE TRECHSEL: That's okay, but you have made the point.
13 MR. KARNAVAS: Okay, now we didn't get his answer. He indicated
14 at one point -- it's on page 63, he had said but it wasn't recorded.
15 JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, 15 seconds. If I
16 was doing the examination, this is what I'd say to the witness: You wrote
17 in your report on page X such and such a thing. Let me now show you
18 another document, the presidential transcript, that says something
19 different. What do you say about that? That's all.
20 MR. KARNAVAS: I'm trying to get there. I'm getting these
21 interruptions from Mr. Scott.
22 MR. SCOTT: It's my fault, Your Honour, I'm sorry.
23 MR. KARNAVAS: Okay.
24 Q. If we could look at one document now just very quickly, it's
25 P 00498. It's a presidential transcript that's dated 17 September 1992.
Page 25587
1 We already know the answer, that is that you haven't looked at it but if
2 we focus on page 28, I just want to show you something. Actually it
3 starts on page 27 and we'll see that it is a -- the -- okay, for you, sir,
4 you will need to look at first the document, P 00498, and then -- and then
5 at the upper right corner, you'll see some numbers, and you need to look
6 for the numbers 01508797. It's on page 27 and we are going to be going to
7 28 in this particular document. This is where Jadranko Prlic is speaking
8 and I just want to focus the Court's attention and the gentleman's
9 attention on page 28 when he says:
10 "The Croats, at least the soldiers in the Croatian Defence Council
11 and the people who are involved, the organs of authority, have a clear
12 political aim. It has been clear to me ever since I became involved in
13 this and since I have been in this post. This aim is the forming and
14 ordering of Bosnia-Herzegovina in accordance with the principles of the
15 European Community, that is the constituting of Bosnia-Herzegovina through
16 three national units."
17 Were you aware that these were the words of Dr. Jadranko Prlic on
18 17 September 1992 at one of the meetings with -- were you aware of that?
19 A. No.
20 Q. Okay. Thank you. Now we'll go to -- we are going to go through a
21 series of documents, the title of this --
22 JUDGE ANTONETTI: [Interpretation] A question that Mr. Karnavas
23 should have asked you, if you had known this, that Prlic had officially
24 said that he was in favour of a Bosnia-Herzegovina pursuant to the
25 principles of the European Union and that Bosnia-Herzegovina could be made
Page 25588
1 up through three national -- of three national entities, if you had known
2 that, would that have changed anything to the way in which you drafted
3 your report?
4 THE WITNESS: [Interpretation] I don't think so. I did not write
5 this report with regard to this case and Dr. Prlic's responsibility. It
6 was written much earlier in 1999 and the transcript that I mentioned was
7 taken by me as the basis to answer the question as to what was the
8 motivation behind the establishment of the Croatian Community of
9 Herceg-Bosna, and at that meeting that I am talking about, Dr. Prlic was
10 not there. He did not attend the meeting. But the position that was very
11 clearly expressed there was about the motives for the creation of the
12 Croatian Community of Herceg-Bosna. There were people there who were in
13 favour of a different option but they were in a minority. As for the
14 subsequent transcript and my knowledge of them, they would not have any
15 bearing on my opinion as to why the Croatian Community of Herceg-Bosna was
16 established in the first place, something that I stated in my report.
17 JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, you can go ahead.
18 MR. KARNAVAS: [Previous translation continues] ... Mr. President
19 because we have a witness here who no matter what he sees, and I suspect
20 that's going to be throughout the case, is not going to change his
21 opinion, incomplete report as it may be.
22 Q. I'm going to go through a series of documents, sir, and this has
23 to do with context because you seem to have indicated you wanted to be
24 fair, you wanted to make sure that your analysis was not only de jure but
25 de facto as well. So let's look at a variety of documents and hopefully
Page 25589
1 you might be able to assist us. First document is 1D 00894. This is from
2 a text that has been used widely in this case and we will continue to use
3 it --
4 JUDGE ANTONETTI: [No interpretation]
5 MR. KARNAVAS:
6 Q. Okay. This is a book by David Owen, "Balkan Odyssey," this is
7 excerpts we are going to go through some of these. Did you ever meet with
8 Mr. Owen who was part of the Vance-Owen, Owen-Stoltenberg negotiations.
9 Did you ever meet with him?
10 A. No.
11 Q. Now I know that his book is in Croatian; I don't know whether it's
12 in Slovenian, but did you read it by any chance?
13 A. No.
14 Q. Okay. All right.
15 A. I have not read it, I just read the excerpts that I found in the
16 press or whatever was written in the press.
17 Q. Okay. So you tend to rely on the press more than, say, these
18 sorts of sources?
19 A. No. That's not what I said.
20 Q. All right. Very well. If you look at the very first page or
21 second page where it says chapter 2, "Establishing the conference," at the
22 bottom of the -- of the first part of the paragraph -- page, it says, "The
23 Netherlands had held the EC Presidency from the outbreak of the war in
24 July until December 1991. And in consequence of my visit to The Hague, I
25 discovered that on 13 July 1991, when the Slovenian and Croatian
Page 25590
1 declarations of independence were just 18 days old, the Dutch government
2 had suggested to the other EC member states that the option of agreed
3 changes of some of the internal borders between the Yugoslav republics
4 might be explored."
5 Were you aware, sir, that the changing of the borders or the, at
6 least, the thinking of that perhaps that might be one of the options,
7 changing of the borders, was in the minds of the international
8 negotiators? Were you aware of that at any point during this period of
9 time or while you were doing your expertise?
10 A. Yes. I knew that.
11 Q. Okay. So this was an option that at least those who were not
12 home-grown, as it were, were looking at. These were independent
13 internationalists that were trying to find a solution that would
14 accommodate, perhaps appease, all the parties involved, right?
15 A. If I understand you correctly, you believe that the position that
16 borders might be changed would serve to calm down the situation in this
17 area, and that of course is not the case.
18 Q. Maybe -- I don't wish to do this to the translators but maybe I've
19 been mistranslated. It's not what I think. What I'm trying to show you,
20 sir, is that the changing of the borders was on the minds of the
21 international negotiators as a potential option?
22 JUDGE TRECHSEL: Sorry, Mr. Karnavas, I think you are overstating
23 a little. The foundation is a bit weak. What we have here is the
24 Netherlands government suggests, full stop.
25 MR. KARNAVAS: I understand that.
Page 25591
1 JUDGE TRECHSEL: That's not the negotiators, that's not the
2 international community, especially.
3 MR. KARNAVAS: Okay. Judge Trechsel, I understand that. I posed
4 a question in a general sense, and you will see through --
5 JUDGE TRECHSEL: No, no, Mr. Karnavas, you make a factual
6 assumption. You state, Did you know that the negotiators did discuss.
7 And we have no basis for the negotiators discussing. What we have here is
8 one suggestion by one government.
9 MR. KARNAVAS: I understand that, Judge Trechsel, but my whole
10 point of the cross-examination, I don't wish to do a lecture on this, but
11 I use that as a basis. We will see other documents. I wanted to know in
12 general was he aware that this was something that was talked about because
13 this is not the first instance, the only instance. I just want to know in
14 general, perhaps it didn't come across that way, but I take the point. I
15 don't want to be unfair to the gentleman.
16 Q. We go to the next -- now, if we go -- if we go -- stick with the--
17 stick with the -- further on it says: "The Presidency continues to feel
18 that it is necessary to reconcile the various principles of the Helsinki
19 Final Act and the Charter of Paris which may apply to the situation in
20 Yugoslavia. It considers it especially important that selected
21 applications of the principles be avoided. The principle of
22 self-determination, example, cannot exclusively apply to the existing
23 republics while being deemed inapplicable to national minorities within
24 those republics."
25 And then you -- then we have: "The following should be seen as a
Page 25592
1 very tentative attempt on the part of the Presidency at structuring our
2 discussion on the future of Yugoslavia with a view to developing a common
3 position which may serve as guidance for possible troika involvement in
4 the Yugoslav negotiating process."
5 And then it lists four different approaches.
6 "We seem to agree that it is not possible for Yugoslavia to
7 continue to exist with its present constitutional structure intact. The
8 joint declaration of the Brioni clearly states that a new situation has
9 arisen in Yugoslavia.
10 "2: It is equally difficult to imagine that Yugoslavia could
11 peacefully dissolve into six independent republics within their present
12 borders. Both Serbia and Serbian elements in the federal administration,
13 not least the JNA, have made it plain that they will never tolerate the
14 emergence of an independent Croatia with 11 per cent Serbs within its
15 borders.
16 "3: The loosely structured Yugoslavia constituting of six
17 sovereign republics is not likely to assuage the Serbian concerns either.
18 The higher the degree of sovereignty for Croatia, the greater the need for
19 solid guarantees for the Serbian minority in Croatia. The looser the
20 federal structure, the more difficult it will be to supply such
21 guarantees. The foregoing seems to point in a direction of a voluntary
22 redrawing of internal borders as a possible solution."
23 So this is the Presidency. So, it's not just the Netherlands.
24 And of course, there are other points that might be of interest, for
25 instance if we go to the next page, he notes, in the first paragraph:
Page 25593
1 "Incomprehensibly the proposal to redraw the republic's
2 boundaries have been rejected by all 11 other EC countries."
3 Then further down in that very same paragraph, he notes: "The
4 refusal to make these borders negotiable greatly hampered the EC's attempt
5 at crisis management."
6 Then if we go to the next page, in the third paragraph, it says,
7 at the sort of in the middle of the paragraph says:
8 "There are indications that the Slovenian leadership passed on to
9 President Milosevic an offer to deal, an offer for a deal under which
10 Slovenia would stay neutral in the dispute between Serbs and Croats if it
11 were allowed to secede from Yugoslavia."
12 In any event, my point is -- and then if we go on to the next
13 point, next -- next page, that will be page 36 at the very top of the page
14 in English, this might be of interest. He says: "Milovan Djilas, who
15 during the Partizan war was given by Tito the main responsibility for
16 designing the administrative boundaries of the republics in autonomous
17 provinces within post-war Yugoslavia, never made any secret of the fact
18 that sometimes they were made quickly 'during a march' without the fullest
19 consideration and were often arbitrary and driven by political expediency,
20 and he confirmed to me personally that they were never intended to be
21 international boundaries."
22 Now, I just merely wish to point this out to -- and ask you the
23 following question. Were you aware, at least, the internationals were
24 thinking in those directions? That's all I want to ask.
25 A. Yes. It is clear to me that there were such ideas in the
Page 25594
1 international community, as you say, either independent from all that or
2 linked to what was happening on the ground, but you probably don't want to
3 hear my opinion why those views were not accepted. It is clear to me that
4 as far as the break-up or the division of Yugoslavia is concerned, that
5 Milosevic asked that in that case, the borders should be redrawn and that
6 wherever there are Serbs, that all those territories should be annexed to
7 Serbia.
8 Q. I understand that. Unfortunately, we are not here to discuss all
9 those issues. I just merely wish to point out that this is a topic that
10 is discussed because we will see through other documents and throughout
11 the course of this trial that these issues are being discussed by the
12 internationals. Now, we go down to the next document.
13 MR. SCOTT: Excuse me, Your Honour, before we leave the document
14 and I didn't want to interrupt counsel's question or the witness's answer
15 but I don't know how many times in the course of this trial the
16 Prosecution has been criticised for taking something out of context, but
17 since Mr. Karnavas has pointed our attention to page 36 and that line the
18 Chamber might want to read the very next sentence, that in 1939 --
19 MR. KARNAVAS: Your Honour, he's got redirect.
20 MR. SCOTT: -- had given the Croatian nation control over the
21 substantial parts --
22 MR. KARNAVAS: Your Honour, I --
23 MR. SCOTT: -- Franjo Tudjman, never in their hearts accept the
24 19 -- I mean why couldn't we just read the next sentence?
25 MR. KARNAVAS: Because, first of all, it's in the evidence.
Page 25595
1 Second of all, unlike re-cross, which I usually get in my own
2 jurisdiction, I don't get it here. He gets redirect. He's perfectly
3 entitled to do that. The evidence is there for the Trial Chamber and now
4 all he's doing is trying to obstruct. And do I object to these tactics.
5 JUDGE ANTONETTI: [Interpretation] Well, you can go on.
6 MR. KARNAVAS: Thank you.
7 Q. The next document is 3D 00281. This source is from a newspaper,
8 Oslobodjenje. We can see it from footnote 1. 2 August 1991. And this is
9 a text of a Serbian-Muslim agreement. Mohamed Filipovic,
10 Radovan Karadzic. Do you know those gentlemen?
11 A. No. I never met them but I do know who they are.
12 Q. Okay. Were you aware of this particular agreement being published
13 in the newspaper, since you seem to find newspapers as a source of
14 information? Were you aware of this text of the Serbian-Muslim agreement?
15 A. I objected once already when you claimed that I base my views on
16 what is published in the press, because in more than 200 footnotes, just a
17 couple contained quotes to the press. So this is not true.
18 Q. Were you aware of this particular text of the Serbian-Muslim
19 agreement --
20 A. No, I was not.
21 Q. Okay. Thank you. Next document, 1D 01538. Okay. This is a
22 text, "Dividing Bosnia and struggling for its integrity." Were you aware
23 of this particular text and in particular of the maps that are involved
24 and are used in this particular text which seems to be -- the sources of
25 which seem to be Muslim? And in particular if you look at endnote 35,
Page 25596
1 covering maps number 15, 16 and 17 from Bosanski Pogledi, Sarajevo 25 June
2 1991? Were you aware of the existence of these particular maps referenced
3 in endnote 35 --
4 A. I think not those particular maps but I did see quite a lot of
5 those maps and proposals. As far as those particular maps are concerned,
6 I don't think so.
7 Q. Okay. And did you look -- would it surprise you -- well, do you
8 know a gentleman by the name of Zulfikar Pasic. He's rather
9 distinguished, lives in Sarajevo, has a foundation?
10 A. Yes.
11 Q. Would it surprise you that these maps belonged to this particular
12 gentleman? And again I want to stress the timing. I'm told he was the
13 owner of the paper where these maps were published, and again, it's
14 referenced in footnote 35. Was that brought to your attention during your
15 research for this particular analysis?
16 A. No.
17 Q. 1D 00893. We've seen this document before in this Court. This
18 deals with the European Community conference, it's 893, that's the number
19 of the document. And if we look at the very top it says:
20 "Editor's Note, the efforts of the European Community conference
21 chaired by Lord Carrington were focused on a draft convention containing
22 Articles dealing with," and then states, "general provisions, human rights
23 and so on."
24 And then at the very last sentence of the preamble it says -- of
25 that section, it says, "The text of the draft convention as of November
Page 25597
1 1991 is reproduced below."
2 Did you by any chance look at this particular document dealing
3 with the treaty provisions of the convention of 4 November 1991? Were you
4 aware of it?
5 A. No. I did not focus on that specifically.
6 Q. Okay. If you look at -- if I could focus everyone's attention --
7 on -- it would be 4(C), I believe, and that would be on page 16 on the
8 English version, if you look at the upper left-hand corner, or if the ERN
9 number for you, sir, I don't see there is an ERN number here. You don't
10 have it. It says here:
11 "In addition, areas in which persons belonging to a national or
12 ethnic group form a majority shall enjoy a special status of autonomy,
13 such a status will provide for, (A), the right to have and show the
14 national emblems of that area," (B) is deleted, "(C), an educational
15 system which respects the values and needs of that group; (D)(1), a
16 legislative body; (2), an administrative structure including a regional
17 police, police force, and; (3), a judiciary responsible for matters
18 concerning the area which reflect the composition of the population of the
19 area; (E), provisions for appropriate international monitoring."
20 And I'll stop there. Were you aware of this particular treaty --
21 this particular draft?
22 A. No. I studied things that I quoted in my analysis.
23 Q. I understand. I understand what you studied. I'm just asking you
24 whether you looked at these documents because this is what some of the
25 documents -- some of the negotiators were looking at. If we look at the
Page 25598
1 next document, it's 1D 00394, and if we -- on the right-hand side of the
2 top you'll see page 1265. We see this is a Conference of Yugoslavia
3 Arbitration Commission, opinion number 4 on International Recognition of
4 the Socialist Republic of Bosnia-Herzegovina by the European Community and
5 its member states. And there is an asterisk and it says, "Paris 11
6 January 1992," signed by R Badinter. Now I -- did you look at any of the
7 documents that were generated by this particular gentleman, who was the
8 head of a commission, Mr. Badinter?
9 A. Yes. I did look at several documents, not only those that
10 pertained to Bosnia-Herzegovina.
11 Q. If we look at the very last page under paragraph 4, just -- I'm
12 just skipping through this because we have seen some of these documents in
13 the past, it says:
14 "In these circumstances, the arbitration committee is of the
15 opinion that the will of the people of Bosnia and Herzegovina to continue
16 in SRBH as a sovereign and independent state cannot be held to have been
17 fully established. This assessment could be reviewed if appropriate
18 guarantees were provided by the republic applying for recognition possibly
19 by means of a referendum of all the citizens of SRBH without distinction
20 carried out under international supervision."
21 Were you aware that as of this particular date, with respect to
22 Bosnia-Herzegovina or the Socialist Republic of Bosnia-Herzegovina as it
23 was then titled, the commission did not deem it ready or appropriate to be
24 declared an independent state? Were you aware of that?
25 A. Yes. I was aware of the reservations on the part of the
Page 25599
1 international community vis-a-vis the recognition of Bosnia-Herzegovina.
2 Q. And I take it that you know that subsequent to that, there was a
3 referendum in Bosnia-Herzegovina?
4 A. Yes.
5 Q. Okay. Now, since you met with or communicated with Mr. Kljuic,
6 because now we know that he provided you with that one particular
7 document -- and he at least responded to your 18 questions of which we
8 don't have the questions of so we don't know exactly what you asked and
9 what he said, but nonetheless, did Mr. Kljuic by any chance discuss with
10 you the issues concerning the question itself, the referendum question?
11 A. No.
12 Q. Okay. Now, if we look at document P 00132, and this seems to be--
13 this is the original referendum question, at the bottom it says:
14 "In favour of a sovereign and independent Bosnia-Herzegovina, a
15 state of equal citizens nationalities of Bosnia-Herzegovina, Muslims,
16 Serbs, Croats and members of other nationalities living in it."
17 That was the original question. Now I want to focus before asking
18 a question to the next document, if we could look at the next document
19 which is P 09542, this is often referred to as the Livno question, and we
20 see that it states:
21 "Are you for a sovereign Bosnia-Herzegovina state union of
22 constitutive and sovereign nations, Croatian, Muslim and Serbian in their
23 national areas [cantons]?"
24 Were you aware, sir, that this was an alternative question that
25 Mr. -- that the Croats in Bosnia-Herzegovina wished to have at the
Page 25600
1 referendum? Particularly because they, like the Slovenes in Yugoslavia,
2 did not want to be under the yoke of a unitary state?
3 A. Yes.
4 Q. And a unitary state we understand it to be one person, one vote,
5 and he who has the majority of the population would be in a position to at
6 least suppress the vital national interests of the minorities, correct?
7 A. Yes. That is correct. But it was never mooted by Milosevic at
8 all. His idea was a modern federation which would have been a step back
9 to --
10 Q. I understand that but my whole point is I'm trying to make sure
11 since we have a constitutional expert that we get the right answers, which
12 is what the concept of a unitary state is and why some wanted it, that is,
13 those who were in the majority and those in the minority were not
14 interested in that kind of a government.
15 If we look at the next document P 00118.
16 Now we see this is February -- 12 February 1992 and we have here:
17 "We have noticed that the reformulated referendum question is
18 causing a fair amount of confusion among Croats in this area. Even we
19 have difficulty in answering some frequently asked questions. We
20 therefore request to urgently see somebody from the central committee who
21 can provide additional explanations so that we can inform the public."
22 Were you aware that at this point in time, there was this -- this
23 issue prior to the -- to the referendum, that is, that there was
24 confusion, and that there was concern on the part of the Croats, concern
25 that the Muslim government or the SDA was pursuing a unitary government
Page 25601
1 model?
2 MR. SCOTT: Excuse me, Your Honour, but in the interests of
3 accuracy, Mr. Karnavas keeps referring to the Croats as if they were a
4 monolithic group. A part-- the Chamber, of course, has heard evidence that
5 there was a split among the Croats in various parts of the country, there
6 was the Kljuic faction at one time, there was the Boban faction.
7 MR. KARNAVAS: Your Honour --
8 MR. SCOTT: It's fair enough for Mr. Karnavas --
9 MR. KARNAVAS: This is --
10 MR. SCOTT: -- to say this is the HD -- well, it's not a fair --
11 it's not fair, the question that was just put that the Croats, as if there
12 was only one Croat view in Bosnia-Herzegovina and he can say it was the
13 HDZ view, I won't object, if he says it was the -- it was the position --
14 MR. KARNAVAS: The document speaks for itself.
15 MR. SCOTT: -- it was the position of the Boban faction of the
16 HDZ, that would be an accurate statement but to say that all Croats in
17 Bosnia-Herzegovina took the same position is not true.
18 JUDGE ANTONETTI: [No interpretation]
19 MR. KARNAVAS: Your Honour, the document talks about the municipal
20 board of the BH HDZ. It doesn't say anything about Boban, it doesn't say
21 anything about Kljuic. That's what it says. It speaks for itself.
22 Q. If we go on to the next document P 09616, and this is an excerpt
23 from the minutes. If we look at page 2. And it says here, under
24 paragraph number 1:
25 "Announcement of the Presidency of the HDZ BH, the text of the
Page 25602
1 public announcement was adopted as follows: The assurances of the
2 European Union expressed on previous occasions as well as during
3 yesterday's talk at the conference of the European Union on
4 Bosnia-Herzegovina indicate that the result of the forthcoming referendum
5 will not prejudice the future constitutional system of Bosnia-Herzegovina.
6 Likewise, fundamental principles ensuring the sovereignty of the Croatian
7 people in Bosnia-Herzegovina in their national regions as well as in whole
8 of Bosnia-Herzegovina contained in the decisions of the central board of
9 HDZ of BH in Livno are not disputed. On the basis of the above, we call
10 on the members of the Croatian Democratic Union of Bosnia-Herzegovina, and
11 all Croats in Bosnia-Herzegovina, to fulfil their duty and votes in the
12 referendum.
13 Now, were you aware that at least it took some assurances of the
14 European Union to appease at least those within HDZ who were concerned
15 about the question and were concerned about being in a unitary state?
16 That it took the European Union to express, to calm them and to give them
17 assurances that their national -- vital national interests would not be
18 jeopardised if they voted yes for the -- in the referendum? Were you
19 aware of that?
20 A. No.
21 Q. All right. And incidentally, this date is 27 February 1992. This
22 is one day before the referendum. Now, let's look at the next document,
23 1D 00398. If we flip to a few pages we'll see that this is a statement of
24 principles of 18 March 1992 for new constitutional arrangements for Bosnia
25 and Herzegovina. Now, before we get to that, if we look at the editor's
Page 25603
1 note, it says:
2 "The following statement of principles were agreed upon by the
3 leadership of the three sides of the conflict in Bosnia-Herzegovina in
4 March 1992. However, it was subsequently repudiated by the Bosnian
5 Presidency."
6 Now, sir, during your analysis, did you by any chance look at this
7 particular document? And I mentioning this and I'm raising my voice to
8 highlight the fact that you have grounded, it would appear and stubbornly
9 maintained that there was this particular vision or course of action based
10 on one particular transcript and now here we are 18 March 1992 and were
11 you aware of these negotiations and this statement of principles? Were
12 you aware of it, yes or no?
13 A. I knew of the contents. I knew of the discussions. But I have
14 never seen this particular document.
15 Q. Okay. So I take it when you were writing your report, you knew
16 that, the Croats in Bosnia-Herzegovina, or those representing them, among
17 with those representing the Serbs and the Muslims, at one point in time,
18 had signed on or had agreed to this statement of principles which called
19 the three constituent units based on national principles and taking into
20 account economic, geographic, geographic, and other criteria? It goes on
21 to say, "Bosnia-Herzegovina would continue to have its existing borders."
22 No dilemma. "And neither the government of Bosnia-Herzegovina nor the
23 governments of the constituent units will encourage or support claims to
24 any part of its territory by neighbouring states. Number 3, sovereignty
25 resides in the citizens of the Muslims, Serbs, Croat nations. And other
Page 25604
1 nations and nationalities, who realise it through their civic
2 participation in the constituent units and the central organ of the
3 republic."
4 And then it goes on to talk about the very -- how it would be
5 governed and then talks about human rights, and you have the definition of
6 the constituent units under (E):
7 "A working group will be established in order to define the
8 territory of the constituent units based on national principles and taking
9 into account economic, geographic and other criteria."
10 Defining the territory, geographical, other criteria. This is
11 what is being written up as a statement of principles, and my question is:
12 Did you take this into account when you were drafting your report,
13 to say at least, yes, we had the presidential transcript, however, at
14 least on March 18, 1992, these statement of principles was signed on and
15 it talks about a new constitution? Did you factor this into your report?
16 A. Yes. I took into account as much as I knew about the discussions,
17 but I did not have the document before me.
18 Q. Okay. Well, would it be safe to say since you didn't have the
19 document before you, it's not cited anywhere in your report? I mean, I
20 didn't find it.
21 A. Well, listen, when, yes, I --
22 Q. [Previous translation continues] ... answer my question, sir?
23 A. I am trying to answer, if you will allow me.
24 Q. Is it in your report? I don't see -- you say -- you say that you
25 knew of it. You say you didn't look at it. Where is it in your report
Page 25605
1 that you make reference to this particular conference, this particular
2 one? Show me the footnote. You're an academic. You are a law professor
3 for 35 years. Frankly, you are a politician by occupation and by
4 vocation, maybe, an academic and now a judge. But you've been a
5 politician. But you, if you have been teaching for 35 years you should
6 know that you need to cite. Where is it in your report? It's no where.
7 Isn't that a fact? And I don't mean to be aggressive. I just want to
8 move on.
9 A. May I answer? If I may, I will.
10 Q. Very well. We'll move on to the next document, P00 --
11 A. I asked you whether you wanted me to answer.
12 JUDGE ANTONETTI: [Interpretation] Please answer the question put
13 by Mr. Karnavas.
14 MR. KARNAVAS: [Previous translation continues] ...
15 Q. Is it in your report, yes or no? If so, where?
16 A. That's not the way I can answer. I have to provide some more
17 detail to my answer, if you will allow me I will answer, if not, I won't.
18 JUDGE ANTONETTI: [Interpretation] Please answer therefore by using
19 a sentence.
20 THE WITNESS: [Interpretation] I used a lot of things, I read a lot
21 of things, and if I thought that I needed to quote something, I did that,
22 and that is what you will find in over 200 of my footnotes. I did not
23 quote anything else, and in addition to that, I also read other things, a
24 lot of things that I referred to directly which allowed me to embark on
25 the analysis. If I hadn't read all those things I would not have been
Page 25606
1 able to do my analysis.
2 JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, you may continue.
3 MR. KARNAVAS: [Previous translation continues] ... Mr. President.
4 Q. P 00339. I'm told that we might need a break. I don't know. If
5 we need a break, we'll take a break. If not --
6 JUDGE ANTONETTI: [Interpretation] Very well. We will take a
7 break, but I am looking at the clock. Mr. Scott, for the additional
8 questions, how much time would you need for redirect.
9 MR. KARNAVAS: I object to any additional questions. We were
10 truncated, our cross-examinations. And this is outrageous if you can
11 allow this gentleman to do redirect examination on top of giving him
12 everything that he's wanted. We have Thursday, that's available. I
13 strongly object. I have a lot of material. I don't see the basis. He
14 wanted to bring him in statement only, statement and prior testimony, and
15 his incomplete and outdated report. He's been allowed to do that. He's
16 been given additional time to cross-examine. He's been jumping up and
17 down like a jack in the box, sniping at my heels, and he's been making his
18 redirect examination. He's been doing that.
19 JUDGE ANTONETTI: [Interpretation] Yes. We understand your
20 position but Mr. Scott may not require any redirect. Mr. Scott?
21 MR. SCOTT: I have to say, Your Honour, I had been assuming that I
22 wouldn't get any but I suppose if I could have five minutes it would be
23 helpful.
24 JUDGE ANTONETTI: [Interpretation] Very well. So if you need five
25 minutes, it is 20 to 6, we will resume at 6.00 p.m. Mr. Karnavas if you
Page 25607
1 can finish approximately around 10 to 7.00, Mr. Scott will have five
2 minutes and then we can end our day that way. So you have approximately
3 50 minutes after the break.
4 --- Recess taken at 5.42 p.m.
5 --- On resuming at 6.01 p.m.
6 JUDGE ANTONETTI: [Interpretation] Mr. Karnavas.
7 MR. KARNAVAS: Thank you, Mr. President. If we to look at
8 P 00339? 339. This is a Prosecution document dated July 21, 1992,
9 "Agreement on friendship and cooperation between the Republic of
10 Bosnia-Herzegovina and the Republic of Croatia."
11 Q. Sir, were you aware of this particular agreement?
12 A. Yes.
13 Q. Okay. And I take it you were aware of this agreement while you
14 were writing your report?
15 A. Yes.
16 Q. Okay. Now, if we just look at --
17 A. Let me just correct myself. I'm not sure that I had it when I was
18 writing my report.
19 Q. Okay. If we look at paragraph number 6, paragraph number 6, it
20 says here:
21 "The armed component of the Croatian Defence Council is an
22 integral part of the united armed forces of the Republic of
23 Bosnia-Herzegovina. The Croatian Defence Council will have its
24 representatives in the joint command of the armed forces of
25 Bosnia-Herzegovina."
Page 25608
1 Were you aware, sir, that the HVO were an integral or was an
2 integral part of the armed forces of BiH?
3 A. I knew that that was how the agreement was written, but I believe
4 that there was a desire for the situation to continue being like that if
5 the agreement was to be implemented.
6 Q. All right. Very well. If we look at the next document -- okay,
7 if we look at the civilian authorities, continuing on, that is, with the
8 next paragraph:
9 "Provisional civilian authorities established in wartime
10 conditions, within the scope of the Croatian Defence Council will be made
11 to conform as soon as possible with the constitutional-judicial system of
12 the Republic of Bosnia-Herzegovina and talks pertaining to this matter
13 will be initiated immediately in the spirit of the principle stated at
14 point 1 of this agreement."
15 I take it you were also aware of this part of the agreement?
16 A. Yes.
17 Q. 1D 01543. This is an annex and we see on the next page, on page
18 2, it's a joint communique issued on 1 November 1992, 1 November 1992, in
19 talks between the President of the Republic of Croatia and the President
20 of the Presidency of the Republic of Bosnia-Herzegovina and it states that
21 the Croatian president, Dr. Franjo Tudjman, and the president of the
22 Presidency of Bosnia-Herzegovina, Mr. Alija Izetbegovic, met at Zagreb on
23 Sunday, 1 November 1992. They reviewed the implementation of the
24 friendship and cooperation agreement between the two countries, that's the
25 one we just looked at, and if we go towards the bottom the last two
Page 25609
1 paragraphs, it says:
2 "The two parties have appointed their representatives in a joint
3 committee for interstate and military cooperation which will start its
4 work immediately."
5 And then it says:
6 "The two presidents support in principle the draft constitution of
7 BH proposed by the Geneva conference on former Yugoslavia provided that it
8 is -- that its final wording should safeguard legitimate interests and
9 equality of Muslim and Croatian peoples in BH."
10 Now, were you aware of this joint communique issued on 1 November
11 1992, where it would appear that the President of the Republic of Croatia
12 and the President of the Presidency of BiH, one, are reviewing their
13 friendship cooperation agreement, and two, in principle, are in agreement
14 to the draft constitution of BH proposed by the Geneva conference? Were
15 you aware of that at the time that you were drafting your report?
16 A. I was aware of that but I don't think I used the document but I'm
17 aware of several attempts to re-establish friendship between Croatia and
18 Bosnia and Herzegovina.
19 Q. Right. This is Tudjman himself now sitting down with
20 Alija Izetbegovic, right?
21 A. Yes.
22 Q. Okay. Now, if we look at the next document very quickly, it's 1D
23 00814, this is a speech by Lord Owen. If we look at the bottom of the
24 page it states that it was delivered in Geneva 16 December 1992. I want
25 to focus your attention on paragraph 2:
Page 25610
1 "One of our concerns is that the Bosnian and Herzegovinian
2 government is sadly increasingly becoming representative only of the
3 Muslim population. We are travelling tomorrow to Zagreb to meet with
4 President Tudjman and President Izetbegovic in an attempt to bring
5 together the Bosnian Muslims and Bosnian Croats into a more representative
6 Presidency."
7 Were you aware, sir, that as of December 16, 1992 -- well, let me
8 rephrase it. Do you know whether Lord Owen in his speech -- okay -- and
9 this is at a ministerial-level meeting of the steering committee of the
10 international conference on the former Yugoslavia, would you agree with
11 his assessment that the Bosnian-Herzegovinian government was increasingly
12 becoming representative only of one of the constituent nations and that is
13 the Muslim population?
14 A. Yes. I can note with pleasure that you asked me about contents.
15 I agree with that and I agree with the attempts of the international
16 community to re-establish normalcy in the relationship so that the
17 representatives of both peoples would be able to act on friendly bases and
18 allow for the Croats to be represented in the bodies of Bosnia and
19 Herzegovina, so as to be able to have a factual say in the decision-making
20 process.
21 Q. Okay. Thank you. If we go on to the next document, 1D 00892,
22 this is the Vance-Owen Peace Plan. If you look at the bottom of the page
23 it says signed in Geneva 30 January 1993 by Alija Izetbegovic, or
24 A. Izetbegovic, R. Karadzic, M. Boban and as witnessed by C.R. Vance and
25 D. Owen. First and foremost, were you, in preparing your report, did you
Page 25611
1 consult, review, analyse and synthesise into your report aspects of the
2 Vance-Owen Peace Plan?
3 A. Now I just reviewed all that and I noted that one point when I
4 noticed a link between the attempts on the part of the international
5 community and the events in Herceg-Bosna. Otherwise, I restricted myself
6 to my task at hand which was the constitutional and legal analysis. As
7 for the international and military analysis, I left those to the others.
8 I could not incorporate those into my analysis.
9 Q. Very well. I go back to what you stated in your report, though,
10 that one cannot do an analysis by looking merely de jure but also at de
11 facto and would you agree with me at least, and I don't want to get into
12 polemics, that if you have international negotiations and you have these
13 three constituent nations, the parties, sitting around engaged in the
14 negotiating process, would you agree with me that at least their efforts
15 or lack thereof in engaging with the internationals in trying to find
16 solutions, that that might be something that might be relevant in at least
17 looking at the de facto part of your analysis, particularly since the
18 issues are dealing with the drafting of a new constitution? Do you think
19 that might be -- that would have been relevant? And it's a yes or no.
20 And then we'll move on.
21 A. Yes.
22 Q. All right. Okay. Thank you. Now, if we look at this -- let's
23 look at this document very briefly and see what the parties actually
24 signed. If we look at page 250 on the right-hand side it's 250, it's it
25 says, "Constitutional framework for Bosnia-Herzegovina." The Trial
Page 25612
1 Chamber is familiar with this document but just very briefly under 1, it
2 says:
3 "Bosnia-Herzegovina shall be a decentralised state, the
4 constitution shall recognise three constituent peoples, as well as a group
5 of others with most governmental functions carried out by its provinces."
6 And then it goes on. I don't want to read this. But were you
7 aware that that's what the parties had signed on to as envisaged by the
8 Vance-Owen Peace Plan? Were you aware of that?
9 A. Yes. I knew that. I took that into account. But I also believed
10 that there would be a special analysis dealing with international legal
11 aspects of the situation.
12 Q. Okay. Well, let's -- I don't want to debate the point but let's
13 forget about the fact that we have internationals engaged in the
14 negotiations. The legal instruments that are being drafted here, such as
15 the constitutional framework for Bosnia-Herzegovina, those legal
16 instruments deal actually with the very same topic of your remit. That's
17 part and parcel of your remit, and might I say also, you are, by nature of
18 your profession and experience, eminently qualified to opine on, analyse,
19 discuss, synthesise, right? And don't be modest.
20 A. Yes. I discussed the different options that were available at the
21 time, as possible solutions.
22 Q. So, for instance, if I could draw everyone's attention to page 266
23 where it talks about the internal central government, and I'm not going to
24 read it but it talks about, number 1, "Three representatives will be
25 nominated by each of the parties, these nominations will then be -- will
Page 25613
1 then be conformed by the co-chairman" and it goes on. "The interim
2 central government will take decisions by consent in the event that a
3 decision will be referred to the co-chairman for their urgent
4 considerations ..." and then it goes on and so on and so forth. Let me
5 just make sure that I clearly understand, this -- in trying to interpret
6 what this means, this document, albeit it is a -- it is being negotiated
7 with-- perhaps by -- internationals, you, having had the experience of
8 redrafting the Constitution of Slovenia when it breaks away from
9 Yugoslavia, and it creates its own independent legal and sovereign system,
10 this is a sort of document that you would be capable of reading, analysing
11 synthesising; correct?
12 A. Yes, yes.
13 Q. And of course if we go on to the next page it talks about the
14 interim provincial governments. So I would suspect that given your
15 previous answer, had you wished, for instance, to include this as part of
16 your analysis, you could have looked at this and have been able to quite
17 capably to interpret exactly what the three gentlemen, Izetbegovic,
18 Karadzic, Boban, had signed on to with respect to the interim provisional
19 governments; correct? Provincial, I'm sorry, interim provincial
20 governments; right? You would have been able to do that.
21 A. Yes, I thought that it -- it wasn't my task to analyse that as an
22 international legal document but I did take it into account when I spoke
23 about the Croatian Republic of Herceg-Bosna in the last part of my
24 analysis.
25 Q. All right. You talking about a Croatian republic. We are not
Page 25614
1 talking about the Croatian republic. We are talking about the Vance-Owen
2 Peace Plan, correct? We are talking about provinces, not a republic at
3 this point. The republic comes with the Owen-Stoltenberg?
4 A. In my analysis I did mention the influence of this agreement on
5 the establishment of the Croatian republic.
6 Q. And of course had you read this document quite carefully, you
7 would have noted that the three gentlemen, Izetbegovic, Karadzic and
8 Boban, had signed on to it, if we look at page 273, again something that
9 is quite familiar with the Trial Chamber, that under province number 8, it
10 says province capital Mostar. So it seems that the internationals had
11 negotiated, and the nationals, the representatives of the three
12 constituent nations, had agreed to that Bosnia-Herzegovina would be --
13 would have -- remain intact, it would have various provinces, one of the
14 provinces -- ten provinces in fact. One of the provinces would be
15 province number 8, the capital of which would be Mostar; correct?
16 A. Yes.
17 Q. Okay. Now, if we go on to the next document 1D 01822, all right.
18 Now, if we look at this document, it's dated March 25, 1993, it's a press
19 release, United States mission of the United Nations, and it says here in
20 the very -- in the second paragraph:
21 "The United States government welcomes the difficult and
22 courageous decision plead by the Bosnian government. President
23 Izetbegovic has shown commendable statesmanship. We also commend the
24 efforts made by the Bosnian Croatian delegation in reaching this
25 conclusion."
Page 25615
1 Now, was -- were you aware of this particular document, by the
2 way, and you might want to look at the very first paragraph where it
3 says:
4 "The signature today by the government of Bosnia-Herzegovina and
5 the Bosnian Croatian delegation of the principal documents of the Bosnian
6 peace plan developed in the process of negotiations conducted by
7 co-chairmen Vance and Owen mark a vital step toward settlement of the
8 conflict in Bosnia."
9 Were you aware of this?
10 A. Not of the document, but, yes, I'm aware of the attempts of the
11 international community in that sense.
12 Q. Okay. But I guess the reason I'm pointing this out, sir, is the
13 fact that we have a date; the date is March 25, 1993. And it seems that
14 here is Boban and Izetbegovic with the assistance of the international
15 community, they seem to be moving towards a peace agreement, at least
16 between those two particular nations within Bosnia-Herzegovina; is that
17 correct?
18 A. Yes. That is correct. And that is what should have been done at
19 the beginning.
20 Q. All right. Well, one could say also that had they adopted
21 Cutileiro plan way back in, I believe it was 1992, there would not have
22 been any fighting but it was Izetbegovic that with drew his signature but
23 that's neither here nor there, so P 01988, 20 April 1993, 20 April 1993 it
24 says:
25 "During the common meetings, the meeting held in Zenica and
Page 25616
1 co-chaired by General Morillon, commander of the UNBH command and by
2 Mr. Thebault, ECMM headquarters, Zenica following high level
3 representatives have agreed on, 1, BiH army and HVO are both" - I
4 underscore that both - "legal military forces of the Republic of
5 Bosnia-Herzegovina and are treated equally."
6 Were you aware that as of 20 April, we saw the earlier agreement,
7 we already know that prior to that, HVO was considered an integral part of
8 the armed forces but now here we have -- here we have 20 April 1993. Were
9 you aware of that? And if we go back and if we go, just for curiosity's
10 sake, to the next page we see signatures. But were you aware of this when
11 you were drafting your report, sir? It's a yes or no, please.
12 A. Yes.
13 Q. All right. All right. So this document actually passed through
14 your hands when you were writing your report?
15 A. Yes.
16 Q. Okay.
17 A. Well, or maybe I got it later but I'm familiar with and I
18 interpret it as an attempt to arrange the relationship so as to enable
19 both the Bosniaks and the Croats to cooperate even in the area of the
20 armed forces and defend Bosnia-Herzegovina together.
21 Q. But let me go back because this is a matter of precision, forgive
22 me for being punctilious, if that's the word that comes to mind. On this
23 particular issue, did you or did you not look at this document prior to
24 drafting your report? In other words, were you cognizant of the fact that
25 the HVO was a legal military force on 20 April 1993? And I mention this
Page 25617
1 date and I highlight this point because it goes back to the legitimacy of
2 the effort being made by the -- by one of the nations in
3 Bosnia-Herzegovina because you seem to have drawn certain conclusions
4 based on one particular presidential transcript, and that's why I'm
5 mentioning this. So, question: Did you or did you not look at this
6 document and factor it in when you wrote your report? Yes, no, I can't
7 recall.
8 A. Yes. After that, when I wrote the analysis, I believe that during
9 the cross-examination in the Kordic case, the Defence brought this
10 document and that's when I saw it the first time.
11 Q. Okay. So in other words, in other words, forgive me for just
12 cutting to the quick, you did not know of the existence of this document
13 and the contents of it that is the fact that the HVO was the legitimate
14 armed force in April 20th, 1993, when you were writing your report. It
15 was brought to your attention by the Defence counsel on cross-examination
16 a year later; right? It's in the document -- it's in the transcript, I
17 can get it if you want, but that's when it was brought to your attention.
18 Isn't that a fact?
19 A. Yes.
20 Q. Okay. Now, P 02078. P 02078. This is dated April 24, 1993. It
21 says Mr. Izetbegovic, Mr. Alija Izetbegovic and Mr. Mate Boban at the
22 meeting convoked in Zagreb on 24 April 1993 and it says here is a joint
23 statement, I don't want to go through it all but again we see
24 Alija Izetbegovic, Silajdzic, Boban, Akmadzic - the same name you didn't
25 know, you didn't know this gentleman, still don't know who he is, who he
Page 25618
1 was, what he did - it says here and we see Ganic is there, Abdic, Boras,
2 another individual you claim not to have ever heard of it says:
3 "The coordination body will work on the implementation of the
4 Vance-Owen Plan to the extent possible considering the character of the
5 provisions and present circumstances."
6 Question -- Then if we flip through the last page we see the
7 signatures of Mr. Izetbegovic, Mr. Boban and of course it was witnessed by
8 Mr. Franjo Tudjman.
9 Question: Were you aware of this joint statement that the
10 Vance-Owen Peace Plan they had agreed to go forward at least in part with
11 the implementation of it to the extent it was possible under the
12 circumstances? Were you aware of that when you drafted your report? Yes,
13 no, I don't recall?
14 A. Yes.
15 Q. Okay. Did you factor that into your report to state anywhere that
16 efforts were -- that this agreement had been made and as a result, it
17 would have been at least de facto in part of your analysis of the
18 constitutionality of the HDZ, of the HZ HB, later on the HR HB, that is
19 the Croatian community later on the Croatian republic, did you factor that
20 in to demonstrate that at least irrespective of that particular transcript
21 back in 1991, in December, here we are, the parties agreeing, in part, to
22 implement a peace agreement which had been lengthily negotiated among the
23 parties? Did you put that in your report? So that at least the fact that
24 we know that steps that have been taken by the Croats in
25 Bosnia-Herzegovina may at least on its -- on face, be consistent with and
Page 25619
1 pursuant to agreements reached by the parties?
2 A. I did not particularly quote this document. If I'd had it when I
3 was drafting this analysis, I am still taking as a positive attempt to
4 arrange the relationship between the two peoples. There were several such
5 attempts and it is more than obvious that a lot of the things that had
6 been arranged were never implemented and that's why new negotiations had
7 to be staged, new attempts had to be arranged, to achieve what would have
8 certainly been in the mutual interests of both the people.
9 Q. All right. Before we go on to the next peace plan which was the
10 Owen-Stoltenberg - and due to the time constraints I'm foregoing a lengthy
11 part of my cross-examination, demonstrating at least what was happening on
12 that angle, has been covered elsewhere - let's look and see what was
13 happening with respect to this implementation of the Vance-Owen Plan.
14 1D 01595. We have minutes dated May 18, 1993, and it says here:
15 "At the meeting in Medjugorje held on May 18, 1993, the following
16 was agreed, 1, a coordinative body composed of six members to commence
17 with its activities as soon as possible. Members are: Boban, Akmadzic,
18 Boras" - those two names keep popping up - "Alija Izetbegovic, Ganic,
19 Abdic."
20 And then it says: "Before accepting the peace plan in its
21 entirety, the coordinating body shall take over the functions previously
22 held by the Presidency of BiH."
23 Talks about a military council, if we go on to number 3: "The
24 president of the transitional governments of the RBiH shall be
25 Jadranko Prlic, in agreement with the Muslim side we shall recommend -- he
Page 25620
1 shall recommend a balanced government of eight ministerial portfolios of
2 which three shall remain without appointment.
3 Now, my question is -- and then there is a -- if we go down to
4 page -- to number 4, we see the breakdown of the provinces, Mostar,
5 Travnik, Zenica on the next page. First question is: Will you agree --
6 were you aware of this particular arrangement that an agreement had been
7 reached as of May 18, 1993, which if we go back to the Vance-Owen Peace
8 Plan, it would seem at least for the two nations of the three, we have
9 this interim arrangement? Were you aware of that? Yes, no, I don't
10 recall?
11 A. I knew of this coordination body, just as of the other one that we
12 already looked at, but I have never seen this note, this specific note I
13 have never seen.
14 Q. Okay. So you knew of it. How is it that you knew of it if you
15 haven't seen it? These are minutes of a meeting where an agreement was
16 reached. How was it and when it come to your attention that the
17 Vance-Owen Peace Plan, at least in partiality, is being implemented as a
18 result of this particular agreement? Is this something that you sort of
19 know from talking to people or is it -- did you actually see documents
20 which perhaps at least might be essential in a constitutional slash or
21 dash legal analysis?
22 A. Well, it is obvious that you didn't hear my answer which was that
23 I was aware of the coordination body mentioned in this note and the
24 statements that we saw but that I had not seen this note.
25 Q. All right. But were you aware, if we go on to the next document
Page 25621
1 1D 01596, 1596, were you aware that on May 21, 1993, we have a letter from
2 Dr. Jadranko Prlic addressed to Mate Boban and Alija Izetbegovic, subject,
3 consultations regarding the election of the transitional government of
4 RBiH stating pursuant to the agreement reached in Medjugorje on May 18,
5 1993, and it goes on and on. And then if we go, skip to the second
6 paragraph, it says: "I would request that you indicate the interest of
7 your people regarding the choice of relevant sectors in the government."
8 And so on and so forth. So were you aware, as a result of the meeting
9 that took place, which I showed you in document 1596, here we have the
10 first step, three days later, by the person who was designated the
11 president of this transitional government, Dr. Jadranko Prlic, were you
12 aware that efforts already are under way at least by the designated
13 interim president to begin the implementation process? Were you aware of
14 that? Yes, no, I don't recall.
15 A. No, no.
16 Q. Okay. Again, if we look at another document, 1D 015 -- 1587,
17 again dated May 21, 1993, it would appear that Dr. Jadranko Prlic is
18 taking his position rather seriously. Here he's talking about the visit
19 of the goodwill mission of Turkey and Croatia to BiH. He's addressing
20 this. At the very top we see: "Republic of Bosnia-Herzegovina Office of
21 the President of the government." This is at the top of it. And this is
22 to the representatives of the HVO and the army of BiH, and this is what
23 caught my attention today. Paragraph number 2:
24 "I would like to request," not order, not demand, "I would like
25 to request all representatives of the Croatian Defence Council and the
Page 25622
1 army of BiH, especially in the area of Mostar, Jablanica, Konjic and
2 Central Bosnia, to grant freedom of movement to all the members of the
3 mission to enable contacts with representatives of the Croatian and Muslim
4 people and to provide security during the visit."
5 And then it goes on, part of the next paragraph, it says:
6 "May your behaviour be an indicator of your willingness to
7 implement the agreement of Medjugorje dated May 18, 1993, in its entirety
8 since this is the only guarantee of the survival for the Croatian and
9 Muslim people of Bosnia-Herzegovina."
10 Were you aware of this effort by Dr. Jadranko Prlic?
11 A. No. I've never seen this document.
12 Q. All right. If we go two days later, May 23, 1993, document
13 1D 01597, 1597, here he is, again, it seems, Dr. Jadranko Prlic, is
14 sending a report on the undertaken activities of the president of the
15 transitional central government. This is to the co-chairmen, Owen and
16 Stoltenberg. So quite transparently, right here, first paragraph:
17 "Although I have only been verbally informed of the decision made
18 at the meeting in Medjugorje, among which is the decision on my
19 appointment as the president of the transitional government, I have
20 undertaken some measures that I would like to inform you."
21 And then he says, "I have written to Mr. Alija Izetbegovic and
22 Mr. Mate Boban, members of the coordinating body, i.e., the transitional
23 Presidency, asking them to send me suggestions on the sectors of which the
24 ministers would be -- would be Muslims and for which they would be Croats
25 as well as suggestions ..." and so on and so forth.
Page 25623
1 Now, obviously, I can conclude from your previous answers that you
2 weren't aware of this -- of this document as well and the efforts being
3 made by Dr. Jadranko Prlic as the interim president of the transitional
4 central government, correct?
5 A. I never dealt with the issue of what Dr. Jadranko Prlic did and
6 what he advocated. As for the efforts to arrange the relations among the
7 peoples in Bosnia-Herzegovina after the war, yes, I was aware of that.
8 Q. Well, forget about the personality, Dr. Jadranko Prlic, and focus
9 on the title itself, or the position. He's the president of the interim
10 government and that's what I'm trying to focus on that here we are an
11 agreement and here you have an individual trying to implement this
12 agreement and if we go to the next document 1598, again, May 23, 1993,
13 this is handing over the mandate to the new government. This is sent by
14 Dr. Jadranko Prlic to the government of the RBiH, and then I'm going to
15 move very quickly to the next document so I can handle all of these
16 documents at once, again on the same date, 1599, 1D 01599, here this is a
17 letter from Dr. Jadranko Prlic to Dr. Haris Silajdzic. I understand you
18 do know him. At the time he was the Foreign Minister of the Republic of
19 Bosnia-Herzegovina. He's informing him of his election and he's also
20 sending him a short bio. You do see that; correct?
21 A. Yes.
22 Q. All right. And also, it's mentioned that he, that is, Dr. Haris
23 Silajdzic has been elected as Minister of Foreign Affairs, so he's
24 informing him, of this interim government, that is. We go on to the next
25 document, 1D 01600 and here we have a response from Dr. -- From Mr. Alija
Page 25624
1 Izetbegovic, president of the Presidency of the RBiH, it's to Dr. Jadranko
2 Prlic, and it's dated May 27, it begins by regarding your letter dated May
3 21, we saw that earlier, and he talks about in order to propose, number
4 2: "In order to propose to you the candidates it is necessary for me to
5 know which portfolios," fair enough. And then if we go on to the three,
6 number 3, he says:
7 "I also think that right now taking into consideration the
8 circumstances which was part of the agreement it is more urgent to start
9 with the establishment of the provincial government in Mostar, Travnik and
10 Zenica and it's simpler since those governments do not exist yet. Of
11 course, the activities related to forming the provincial governments and
12 central government can run parallel with that."
13 And then he says, "I have ordered the regional committees of SDA,
14 of the mentioned regions, to prepare the candidates' list."
15 So here is Izetbegovic, president of the Presidency, he's ordering
16 his own party, that's the predominantly Muslim party, the SDA, he's asking
17 them to prepare a list of candidates. Were you aware of Izetbegovic's
18 response and his commitment at least on paper, in this particular
19 document, to the furthering of the agreement that had been reached
20 concerning the interim government? Were you aware of that?
21 A. No. I was not aware of this document.
22 Q. Okay. There is another document, 1601. This is dated June 1,
23 1993, again by Dr. Jadranko Prlic, and here he's just giving well wishes
24 again and I only point this out to show that he is exercising, he is
25 exercising or he's implementing the role that he has been given and
Page 25625
1 entrusted and it seems from the previous document that has been accepted
2 and understood by Mr. Izetbegovic. So here he is acting in his capacity
3 as president of the government and he's sending well wishes because of
4 Kurban Bajram. And then if we go to the last document 1D 01602, from Dr.
5 Prlic addressed to Izetbegovic and Boban, consultations for the
6 appointment of the government, and there we have the breakdown, Muslims,
7 Croats, Serbs, which particular ministries.
8 My question, sir, we've seen all of these documents, from looking
9 at these particular documents, would it not appear, at least de facto,
10 that efforts are being made to implement the Vance-Owen Peace Plan between
11 the Croats and the Muslims in Bosnia-Herzegovina? Would that not be a
12 conclusion that can be drawn at least from these documents, albeit limited
13 as they are?
14 A. Yes.
15 Q. All right. Now, I have very little time left. I just want to go
16 into the Owen-Stoltenberg plan just very briefly, hopefully we will be
17 able to cover everything and still allow Mr. Scott his five minutes. I
18 want to show that we are [indiscernible] on this side of the Bench. So if
19 we could look at 1D 01436, and this is a -- the constitutional law
20 consisting -- constituting the Republic of Bosnia. I'm getting a little
21 tired so -- so this is the constitutional law of the Republic of Bosnia,
22 not to be mistaken with Bosnia-Herzegovina.
23 And it says here, we see from the -- from the top, the preamble:
24 "28 September 1993, in Sarajevo, the assembly of the Republic of
25 Bosnia-Herzegovina passed the following constitutional law constituting
Page 25626
1 the Republic of Bosnia. Article 1, the Republic of Bosnia is a sovereign
2 and independent state of equal citizens living in, based on human rights
3 and civic freedoms, rule of law, and social justice. Alternatively," it
4 seems that this is a draft, "alternatively, the Republic of Bosnia is a
5 sovereign and independent state of equal citizens, the Muslim Bosniak
6 nation and members of the other nations living in it, based on human
7 rights and civic freedom, rule of law and social justice."
8 Then it goes on in Article 2, it says that:
9 "The Republic of Bosnia is hereby constituted as a constituent
10 republic of the union of republics of Bosnia-Herzegovina."
11 Then 3, and 4, deal with citizens.
12 5: "The Bosnian language shall be the language of the official
13 use in the Republic of Bosnia. The territory of the Republic of Bosnia is
14 integral and indivisible. The borders of the Republic of Bosnia are laid
15 down in the constitutional agreement on the union of the Republic of
16 Bosnia-Herzegovina.
17 Article 8: "The coats of arms, flag and anthem of the Republic of
18 Bosnia shall be defined by law."
19 Article 9: "Sarajevo is the capital of the Republic of Bosnia."
20 And of course we see at the very last page that it's -- that we have the
21 name, president of the BH assembly, Miro Lazovic. Now, may I ask you, did
22 you come across this particular document?
23 A. No. I analysed a document very much like it of the Croatian
24 Republic of Herceg-Bosna.
25 Q. Okay. Great. Thank you. Now it would appear if you put them
Page 25627
1 side by side and then if you compare them with, for instance, the
2 Owen-Stoltenberg plan, which was being negotiated by the -- both the UN
3 and the European Community, perhaps with the United States, perhaps not,
4 but nonetheless, is it not fair to say that this particular document, as
5 well as the document with respect to the Republic of Herceg-Bosna, mirror
6 in a sense the essence, both in spirit, you know, and in word, the
7 Owen-Stoltenberg plan?
8 A. Yes, that is correct. Both were created with this motive, as far
9 as I can see, to prepare, as well as possible, if possible, for the
10 establishment of a republic which would be based on federal or confederal
11 basis, as I indicate in my report. I think that these are actually
12 efforts on the part of the Bosniaks that are quite similar to each other.
13 Q. Exactly. And in fact, on July -- in July 1993, Boban,
14 Izetbegovic, Karadzic had signed the constitutional principles of the
15 union of republics which would have created essentially three republics
16 within Bosnia-Herzegovina. And if we want to skip ahead of ourselves a
17 little bit, in time, if you look at what was actually negotiated at the
18 end in Dayton, rather than have two entities, what was being proposed were
19 three entities at that time, correct?
20 A. Yes.
21 Q. Okay. And if we look at very quickly two last documents,
22 3D 00451, this is a joint declaration by Momir Bulatovic,
23 Alija Izetbegovic, Radovan Karadzic and Slobodan Milosevic accepting the
24 principles of the London Conference, and the date we have to go at the
25 very top, Your Honours, because I can't find a -- we have signature lines
Page 25628
1 but I can't find but you could see that it's been faxed, 16-9-1993, and I
2 would suspect that we are dealing with the -- it's either the 16th of
3 September 1993. That's the only way to read it actually. If we look at
4 under paragraph 5 on the second page, the last part of it, it says:
5 "After reaching a mutually acceptable resolution to the
6 territorial delimination of the three republics within the union and
7 during the initial two-year period of the union's existence, there shall
8 be a provision for referendum to be held on a mutually agreed date within
9 the three republics of the union on the question of whether citizens of
10 any particular republic to remain in the union or to leave the union --
11 agree to remain in the union or to leave the union."
12 Then we go to the next paragraph, it says:
13 "In the case of a dissolution of the union all the rights of the
14 union of the Republic of Bosnia-Herzegovina including membership of the UN
15 shall be automatically vested in the republic of a predominantly Muslim
16 majority."
17 And then if we go to the next page we see that Alija Izetbegovic
18 has appointed his trustee, as his trustee, Haris Silajdzic; Karadzic has
19 appointed Krajisnik. And then the last page, page 4, we see the
20 signatures, Izetbegovic, Karadzic, nothing from Milosevic. We do see
21 Stoltenberg and we see Owen's.
22 Question: Were you aware of this particular joint declaration,
23 sir, at the time that you were drafting your report and trying to divine,
24 at least de facto, the constitutionality or the constitutional efforts or
25 lack thereof being made by the Croats in Bosnia-Herzegovina?
Page 25629
1 A. Yes, I was aware of this document.
2 Q. Okay. And you were aware then at least when you were drafting the
3 report that not only had these parties -- these parties had agreed in
4 principle to the -- to forming three particular republics and so, as you
5 noted earlier, when we look at document 1D 01436, which is the
6 Constitution, the draft constitutional law constituting the Republic of
7 Bosnia as well as looking at what you looked at, which was the
8 constitutional -- the constitutional arrangements for the Republic of
9 Herceg-Bosna, these were attempts made by those two constituent nations to
10 implement an international agreement that had been forged over lengthy
11 negotiations between these parties; correct?
12 A. Yes.
13 Q. Okay. And finally, just lastly, 1D 00526, just very quickly, this
14 is the Stoltenberg-Owen plan. I just wish to point out, perhaps I don't
15 know whether you know or not but I wish to ask you a question, if we look
16 at page 286, it's an agreement relating to Bosnia-Herzegovina and it says
17 here: "The constitutional agreement of a Union of Republics of
18 Bosnia-Herzegovina," and we see under A: "The constitutional agreement of
19 the union of the republics of Bosnia-Herzegovina is set out in annex 1,
20 the three parties agree that it shall enter into force ..." and so on, I
21 don't want to read it and take up any of -- any more time but if you look
22 at the very bottom, the footnote, it says, "The undersigned are
23 A Izetbegovic, R Karadzic, M Boban, M Bulatovic, S Milosevic and
24 F Tudjman, and as witnesses T Stoltenberg and D Owen.
25 I take it when you were doing your constitutional analysis, you
Page 25630
1 must have been aware of this particular document which I don't have time
2 to go into, though I would love to, granted some additional time, which we
3 don't have, you must have been aware of this particular document and
4 surely, surely, you must have factored it in to your analysis.
5 A. Yes. At the end of my analysis, I briefly discuss the differences
6 between Herceg-Bosna, the community of Herceg-Bosna, and the Republic of
7 Herceg-Bosna and I noted in particular that there were numerous changes
8 that were in line with the efforts to adopt and implement certain
9 international treaties that might or agreements that might lead to the
10 kind of -- the establishment of a kind of a system in Bosnia-Herzegovina
11 where Croats would be accorded the status of a republic.
12 Q. Thank you for that but might I just add -- leave you with one last
13 question and that is: Setting aside that one presidential transcript,
14 which we noted, a discussion took place three months prior to the
15 referendum, the vote on the referendum, if we look at the documents that
16 we looked at this afternoon, and if we factor the activity that was going
17 on in these particular documents, can we not at least agree in part that
18 efforts were made to find a resolution that you would have a united
19 Bosnia-Herzegovina where the three constituent nations would find their
20 own space, as it were, protect their own constituent rights, as it were,
21 and not be living side by side in a unitary government? Can we not
22 make -- come to that conclusion if we look at all these documents, de
23 facto, that's what these documents show? Isn't that a fact, sir?
24 A. The fact is that these documents show those efforts but it is also
25 a fact that what happened first were large-scale military conflicts that
Page 25631
1 are linked with large-scale violations of human rights and I tried to
2 analyse why those conflicts broke out, and if we were to analyse just the
3 documents it would be impossible to find an answer to this question. So
4 without the transcript, and other documents that show the actual balance
5 of powers, in particular -- and the relationship particularly between the
6 Republic of Croatia and the Republic of Bosnia-Herzegovina, it would be
7 quite impossible to get the answer to the question why those hostilities
8 and other conflicts broke out.
9 Q. And I take it you do not allow for the possibility that if you
10 were to look at the other transcripts, that surely are available and have
11 been available for numerous years, and if you were to look at a lot of the
12 documents that I showed you that you looked at for the first time, I take
13 it you do not allow for the possibility that perhaps what occurred during
14 that afternoon or day in that particular discussion, the transcript that
15 you focused on, was just that, a discussion and nothing more, and that the
16 events too led -- that took place afterwards, the negotiations, the
17 efforts, the way Croatia took in the Muslim refugees, how it helped
18 finance both armies, the fact that both HVO and the ABiH were recognised,
19 all of that, can you not --
20 MR. SCOTT: Is this argument?
21 MR. KARNAVAS: Excuse me, did you want to say something?
22 JUDGE TRECHSEL: [Previous translation continues] ... After your
23 time is up. We have ordered that five minutes are given to the
24 Prosecution.
25 MR. KARNAVAS: There is a way of --
Page 25632
1 JUDGE TRECHSEL: -- that must be complied with, Mr. Karnavas.
2 MR. KARNAVAS: I get the sense --
3 JUDGE TRECHSEL: You were not asking a question you were asking a
4 long programmatic statement. That's not cross-examination, Mr. Karnavas.
5 I'm sorry.
6 MR. KARNAVAS: Well, Judge Trechsel, I don't wish to be
7 argumentative. There seems to be a great deal of animosity directed
8 towards me by you. I don't understand why.
9 JUDGE TRECHSEL: Well, you're wrong.
10 MR. KARNAVAS: It seems that way, Judge Trechsel. I'm merely
11 trying to summarise and give the gentleman an opportunity that now that we
12 have looked at all of this, does he allow for the possibility that perhaps
13 he would change his opinion. He could say yes or no. That was the
14 purpose of my question. It is proper cross-examination. I don't wish to
15 debate the point. I have been given a certain amount of time and I don't
16 believe I've eaten up all of my time.
17 JUDGE ANTONETTI: [Interpretation] You heard the question, Witness.
18 Is there any possibility for you possibly changing your mind?
19 THE WITNESS: [Interpretation] No. I would not want to change my
20 opinion because it pertains primarily to the time when it came into being,
21 and the first initial stages of the functioning of the Croatian Community
22 of Herceg-Bosna, but if I were to write my report now, I would definitely
23 expand the last part to include the efforts that we have been discussing
24 over the past hour and more. The efforts to fix things that could be
25 fixed and to find a solution that would be in the interests of all three
Page 25633
1 peoples, including the Croatian people in Bosnia and Herzegovina.
2 MR. KARNAVAS: Thank you, Professor. I have no more questions.
3 JUDGE ANTONETTI: [Interpretation] Mr. Scott.
4 Re-examination by Mr. Scott:
5 Q. Doctor, I just have just a very few minutes, so if could you
6 please listen to my questions and give short answers if you can. Going
7 all the way back to the first Constitutional Court decision and the
8 litigation related to that, can you provide the Judges any information as
9 to why the HDZ refused to provide the documents to the Constitutional
10 Court, after being repeatedly requested to provide them, as we saw in the
11 correspondence?
12 A. The HDZ invoked the independent position of the Croatian Community
13 of Herceg-Bosna and refused to put those documents at their disposal.
14 Q. In your report, you make a number of references to something that
15 in this courtroom has sometimes been called the two-track policy where
16 Croatia, Tudjman, others, might take one position publicly while at the
17 same time having a different agenda. Can you tell the Judges very briefly
18 how that entered into your analysis?
19 A. Well, this arises directly from the transcript of the 27 December
20 1991 in which Dr. Tudjman because of the objections of those who had
21 arrived at the meeting from Sarajevo and who had claimed that there would
22 be a conflict between the Croats and the Muslims, if the HDZ pursued its
23 policy of the division of Bosnia-Herzegovina, in that situation,
24 Dr. Tudjman said that it shouldn't be openly said that we were against
25 that. We could -- can continue supporting independence but we have to
Page 25634
1 prepare for the merger of that part of our neighbouring state,
2 Bosnia-Herzegovina, to the Republic of Croatia.
3 Q. The point was made to you or raised during cross-examination, the
4 assertion, that the what some might call the Sarajevo government or the
5 government of Bosnia-Herzegovina had become less representative over time.
6 Can you provide the Chamber any information as to whether one of the
7 reasons it might have become less representative?
8 MR. KARNAVAS: Objection, it's leading. He's trying to feed the
9 answer to the gentleman. And I don't see how he can possibly ask this
10 question on redirect examination without a foundation.
11 MR. SCOTT: I'm asking if he can assist the Chamber.
12 MR. KARNAVAS: He can ask him what does he know of that government
13 and he can get that answer. He's not allowed to feed the answer to the
14 gentleman because he's already admitted that he wasn't aware what was
15 happening.
16 JUDGE ANTONETTI: [Interpretation] Mr. Scott, please rephrase your
17 question and put a question that stems from a question that was posed
18 during the cross-examination. Try to make an open question without
19 bringing the -- without bringing the witness to automatically answer your
20 question the way you want him to do.
21 MR. SCOTT:
22 Q. What role, sir, if any, did the fact that many of the HDZ Croats
23 refused to participate in that government have --
24 MR. KARNAVAS: Objection, objection there is no evidence of that.
25 There is no evidence. He can bring it in. Now he's testifying --
Page 25635
1 MR. SCOTT: I'm asking the witness -- [Overlapping speakers]
2 JUDGE ANTONETTI: [Interpretation] Wait. One moment, please. One
3 moment, please. We don't have a transcript anymore.
4 [Trial Chamber and Registrar confer]
5 JUDGE ANTONETTI: [Interpretation] Mr. Scott, please think of what
6 was said during the cross-examination and put a question that stems
7 because now you are saying something else.
8 MR. SCOTT: Your Honour, you're just wrong on that. There were
9 many questions put to this witness and it was specifically represented,
10 asserted to him that one of the problems --.
11 JUDGE ANTONETTI: [Interpretation] No, I'm not saying that. I am
12 saying, remember that during the cross-examination the subject was raised
13 by Mr. Karnavas, remind the witness that it was said and then you can say,
14 Mr. Karnavas put this question to you, so on and so forth. This is what I
15 wanted to tell you.
16 MR. SCOTT: I just did that, Your Honour.
17 Q. It was put to you, sir, during cross-examination that the
18 governments of Bosnia-Herzegovina had become less representative. That
19 was specifically put to you. I think one of the references was to a book
20 by Lord Owen and I want to ask you and you've asked many questions about
21 what was in your report, not in your report, can you share the Judges any
22 information about the role in the government becoming less representative
23 and the fact that the HDZ Croats refused to participate in that?
24 MR. KARNAVAS: Again, this is the point that I'm trying to raise.
25 I will speak slowly. It is a fact that is not in evidence. Now he's
Page 25636
1 saying that the HDZ Croats refused to participate. Where has that come up
2 during the last two or three days, this is trial advocacy 101. 101.
3 MR. SCOTT: You can say -- excuse me.
4 THE INTERPRETER: Slow down.
5 MR. KARNAVAS: Why, Judge, Lord Owen made that remark. And we can
6 hear from the witness.
7 MR. SCOTT:
8 Q. Did you consider, sir, any factors in your analysis as to might
9 what would might support this alleged statements by Lord Owen about the
10 BiH government becoming less representative?
11 A. I agreed with the Defence that it became less representative but
12 the cause of that was clearly the fact that the Croatian Community of
13 Herceg-Bosna had been established, i.e., in the decision that certain
14 peoples including the Croatian people, tried to organise themselves in a
15 special way, in a separate way, and that idea and that manner of work was
16 also adopted by the Bosniaks.
17 Q. Can you tell us, please, in reference to the various documents
18 Mr. Karnavas put to you by joint communiques, cease-fire agreements, et
19 cetera, can you give the Judges any information as to the number of such
20 communiques, cease-fires, peace agreements, that essentially had no --
21 carried no weight at all that nothing ever came of them, they were not
22 even implemented the next day? About how many of those might you count?
23 A. I can't tell you exactly how many there were. But I can say that
24 a large number of these documents showed that these efforts, albeit
25 positive and good and the written positions were acceptable by all were
Page 25637
1 just not implemented. Rather, there were new conflicts that had been
2 renegotiated, reagreed, reinforced by new round table agreements.
3 Q. And that can be said, in fact, concerning the Vance Owen
4 agreements itself; is that correct? Never finalised, never signed,
5 never -- by all parties, never implemented?
6 MR. KARNAVAS: Again, that's leading. These are facts that are
7 not in evidence, Your Honour. If he can -- the gentleman, if he wants to
8 lay a foundation with respect to the Vance Owen, he could have done that
9 on direct examination.
10 MR. SCOTT: Mr. Karnavas.
11 MR. KARNAVAS: Excuse me. Now he's testifying that it wasn't
12 implemented, that it wasn't signed. Where is the evidence? I merely
13 showed documents. I showed him what he hasn't looked at. Now, whether
14 what Mr. Scott is saying is true or not is not relevant. These are not
15 facts in evidence with this particular witness.
16 MR. SCOTT: Well.
17 MR. KARNAVAS: No foundation has been laid.
18 MR. SCOTT:
19 Q. Dr. Ribicic, was the fact that --
20 JUDGE ANTONETTI: [Interpretation] Mr. Scott, Mr. Scott, you should
21 laid or could have laid a foundation, for instance, we saw a document that
22 was not signed by Milosevic, the signature, therefore was missing this
23 showed that there was a certain problem for instance so you may have shown
24 him this effort. Efforts were made, everybody sat around the same table,
25 there were some texts, but a person, a person did not sign. Why? What
Page 25638
1 were their reasons for this? So on and so forth.
2 So actually, sir, I'm going to ask you this question, I'll put
3 this question to you, you are a judge, you understand what I want to say:
4 Efforts were made, meetings were held, documents were put on the table.
5 Some documents bearing bear a signature, others no. Now, why? Why, for
6 instance in this case, there was no signature?
7 THE WITNESS: [Interpretation] I can't answer. I did not deal with
8 that. I only analysed those international efforts and how much they were
9 connected with the changes that happened within the framework of the
10 Croatian Community of Herceg-Bosna and its transformation into the
11 Croatian Republic of Herceg-Bosna. So I can't say why the -- an agreement
12 was never signed or implemented.
13 JUDGE TRECHSEL: Witness, I would like to ask a question which
14 follows a previous question, that of the decreasing representativeness of
15 the government of Bosnia and Herzegovina. You have asked for reasons
16 suggested that this might be because the Herceg-Bosna was founded. Could
17 it not be the other way around, that the Croats founded their own
18 community because the government became less representative?
19 THE WITNESS: [Interpretation] Well, the first thing that happened
20 was the establishment of the Serbian communities. Then the Croatian
21 communities were established. And finally, there were direct reserves --
22 reservations on the part of the Croats in discharging their duties in the
23 bodies of Bosnia-Herzegovina. And to a certain extent, this is how these
24 bodies became less representative, and the influence of the Croats within
25 those bodies diminished before the warning that this would happen if the
Page 25639
1 Croatian Community of Herceg-Bosna would be formed. Those warnings came
2 in advance and they only came through and I believe that this is the logic
3 that started with the establishment of the SAO Krajina and further on by
4 the establishment of the Croatian communities and that logic finally
5 resulted in the bodies of the republic being under a somewhat bigger
6 influence of the Bosniak representatives.
7 MR. SCOTT: Thank you, Dr. Ribicic. Your Honour, in light it's
8 quarter after 7.00. In light of everyone in the courtroom, I will not ask
9 any additional questions.
10 MR. KARNAVAS: I should note, in light of that last question from
11 Judge Trechsel, that the gentleman was asked about several individuals
12 that were in the government at the time. He indicated total ignorance of
13 their names, and I think that in light of the answer, Judge Trechsel, to
14 your question, take that into consideration and we will have others that
15 will come to verify what those individuals were doing. Lastly, I need an
16 IC number for this particular document.
17 MR. SCOTT: Your Honour, I'm sorry, it's late in the day. But,
18 you know, this is argument. I give up my time, I sat down and
19 Mr. Karnavas gets up and starts arguing the evidence. You'll note this,
20 you'll note that, that he didn't know anything. He's just arguing,
21 Your Honour and that shouldn't be allowed. You ask questions, you get
22 answers, you go to the next question. And I'm sorry, but this happens all
23 the time. And it's just argument after argument and the Court doesn't
24 stop it.
25 JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, I didn't
Page 25640
1 understand what you say. You said you wanted a number for that document.
2 What document are you talking about?
3 MR. KARNAVAS: My beautifully coloured map.
4 JUDGE ANTONETTI: [Interpretation] Fine. Yes. Good. Would the
5 registrar please do that.
6 THE REGISTRAR: The map shall be given exhibit number IC 746.
7 Thank you, Your Honour.
8 JUDGE ANTONETTI: [Interpretation] Thank you, registrar. Witness,
9 thank you. You spent two days here. You've answered hundreds of
10 questions. So I wish you a very good trip back to your own home countries
11 and with the -- your professional duties. Tomorrow we shall begin the
12 hearing at quarter past 3. I have indicated that the OTP will have 30
13 minutes for the procedure under Article 92 ter because there are six
14 documents, and then Defence, 30 minutes, for Praljak and 30 minutes for
15 the others and then 15 minutes for each of the other members of the
16 Defence, and they can of course share their time with Mr. Petkovic or
17 Mr. Praljak. So I must apologise to members of the Court that have had to
18 spend an additional 20 minutes, that there are some times when this has to
19 be done.
20 So I wish you a very nice evening, and as for you, we shall meet
21 again tomorrow at quarter past 3.00. And I should spell out that I will
22 be actually in this room at 9.00 tomorrow morning. Thank you and good
23 evening.
24 [The witness withdrew]
25 --- Whereupon the hearing adjourned at 7.18 p.m.,
Page 25641
1 to be reconvened on Wednesday, the 12th day of
2 December, 2007, at 2.15 p.m.
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