1 Tuesday, 18 January 2005
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 9.02 a.m.
6 JUDGE ROBINSON: Mr. Milosevic, just two matters before you begin.
7 We will deal with the admission of documents as exhibits individually, and
8 use must be made of the documents through the witness if the documents are
9 to be considered for admission as exhibits. Let us proceed.
10 THE ACCUSED: [No interpretation]
11 JUDGE ROBINSON: I'm not hearing you.
12 THE INTERPRETER: Can you hear the English?
13 THE ACCUSED: [Interpretation] Can you hear the English?
14 JUDGE ROBINSON: Yes.
15 THE ACCUSED: [Interpretation] As I was saying with respect to the
16 tendering of documents, I went through a series of decisions by the
17 Constitutional Court of Yugoslavia with this decision. I took them one by
18 one. And as far as I remember, on the last working day last week, you
19 said that they should be marked for identification. Do I have to go
20 through those documents again or can it be taken that I tendered them?
21 [Trial Chamber confers]
22 JUDGE ROBINSON: Yes. You don't need to go through them again.
23 Those are marked for identification because of translation.
24 THE ACCUSED: [Interpretation] Very well. So we can continue.
1 WITNESS: RATKO MARKOVIC [Resumed]
2 [Witness answered through interpreter]
3 Examined by Mr. Milosevic: [Continued]
4 Q. [Interpretation] Professor Markovic, at the end of our working day
5 last week, we left off by your observing that setting apart a part of the
6 federation or a part of the federation separating was possible in a legal
7 and lawful manner on the basis of consensus and agreement by the other
8 constituent elements. Was that, in a nutshell, what you were saying?
9 A. Well, that wasn't my opinion. That was the position taken by the
10 1974 SFRY constitution; the federal structure could change. You could
11 change the character of the country but only by changing and amending the
12 constitution. And how the constitution is amended is written down in the
13 constitution itself, the method by which this should be done.
14 Q. Tell me, please, were there any attempts to separate -- effect
15 separation of this kind in a constitutional manner on the basis consensus
16 and agreement, was it possible to regulate that, and where did the
17 initiative for that come from in the first place?
18 A. Yes, there were indeed attempts to do that sometime towards the
19 end of December, 1991. On the 21st of December, 1991 to be exact. The
20 federal council condemned the unilateral secession of the republics and
21 decided that its board, which was an auxiliary body for the social and
22 political system, should draft a bill for a law for the realisation of the
23 rights of peoples to self-determination. So it came from the lower house
24 of the federal parliament because it was in charge of bringing in laws of
25 that kind. And after it, that task was assigned to its board, that is to
1 say its auxiliary body.
2 Q. Tell me, were you yourself included in any of these activities in
3 any way?
4 A. I was not a member of the working body myself or, rather, the
5 working group that was set up to draw up the draft law. I think Gavro
6 Perazic. Gavro Perazic was president of the working group, and he would
7 consult me on a number of occasions. He would ask me for my opinion and
8 would give me the texts already drafted to review, to look through and to
9 give him my comments. So that I didn't take part in the actual writing of
10 the draft law, but I am fully aware of its contents and the basic idea.
11 Q. All right. Can we say, then, that you are indirectly involved as
12 a consultant of the head of that working group?
13 A. Yes, that's right, I was involved in that way.
14 JUDGE ROBINSON: At that time, what was your substantive position?
15 THE WITNESS: [Interpretation] In 1991, I had no substantive
16 position. I was just a professor at the faculty of law in Belgrade. It
17 was only in 1992 that I was given my first political position or, rather,
18 I was elected as deputy to the federal parliament. Up until then, I was
19 professor of constitutional law at the faculty of law in Belgrade and in
20 that capacity my senior colleague, Professor Gavro Perisic, who otherwise
21 teaches international public law, and he engaged me as a consultant.
22 JUDGE ROBINSON: Thank you.
23 MR. MILOSEVIC: [Interpretation]
24 Q. Professor Markovic, may we take a look at tab 40 now, please. It
25 has been translated into English, and it is a proposal for a law on the
1 realisation of nations to self-determination. And it says with the
2 proposal that the law be enacted through urgent measures, and we have the
3 integral text of that law.
4 Could you take a look at some of the articles of that draft law.
5 We'll go through them fairly rapidly, in rapid succession, but let me draw
6 your attention to the articles that I would like to highlight and discuss
7 with you. They are Article 3, 6, 7, 9, 10, 11, 12, 14, 15, and 17.
8 So could you please explain to me first, just to be quite clear
9 what this is all about this: You have certain portions of the text that
10 are crossed out and -- in the typing, and then you have the integral text
11 which has been prepared for the Assembly. What are the sections that have
12 been crossed out?
13 A. The crossed out sections were not adopted at the board in charge
14 of the social political system, or socio-political relations as that
15 working body was called. So in the course of their work, something was
16 added to the draft and something was taken away, subtracted from it, not
17 adopted. But what was in the draft remains crossed out like this so that
18 we can see what was actually proposed and then what was adopted.
19 A. Yes. The sequence of the idea put forward and how the actual
20 draft text was arrived at, so that's why we have it in this form with the
21 crossings out as well.
22 JUDGE ROBINSON: There is no crossing out in the English text, so
23 we're unable to appreciate the significance of the -- what was crossed out
24 and what was included.
25 MR. KAY: It's in the B/C/S version.
1 JUDGE BONOMY: Yes. I take it, Mr. Kay, from that, that it's the
2 part in block capitals in the English version, which remains, and the part
3 which is simply an ordinary script or typed script is the part which was
4 not endorsed.
5 MR. KAY: Well, Article 2, for instance, is untouched, not crossed
6 out, and that's not in block capitals. I think the typist was probably
7 reluctant to deal with it in the way that it was originally done, probably
8 not knowing the significance of it. That's my guess.
9 THE ACCUSED: [Interpretation] Very well.
10 MR. MILOSEVIC: [Interpretation]
11 Q. We're going to comment on the sections that remain in the final
12 text and were not crossed out, and my question was to clear up any
13 misunderstandings in that regard as to the crossed out parts and the parts
14 that weren't crossed out.
15 Professor Markovic, would you please read out Article 3 and
16 explain it to us, or quote it.
17 A. Let me say once again that the meaning of this -- the purpose of
18 this draft was in a peaceful democratic legal way to have the nations able
19 to realise their rights to self-determination, because without doubt that
20 was indeed a constitutional right.
21 Article 3 gives us the modalities for doing that, or the options
22 for realising -- for people realising their right to self-determination.
23 There were four modalities, the right of people to self-determination
24 defined as the right to decide on the form of social and state system, and
25 in that way to freely realise their economic, social, and cultural
2 Second, it is also the right to continue to live together with
3 other peoples in the Yugoslav state.
4 Then third, the right to peoples to unite with other peoples and
5 enter into other forms of integration, association, cooperation.
6 And finally, fourthly, the right of peoples to create independent,
7 sovereign and autonomous states, hereinafter referred to as independent
9 So those were the four options which would give peoples the right
10 to self-determination, three methods.
11 Q. Now, the right to create independent sovereign and autonomous
12 states, the right you just quoted, is defined in this law, is it?
13 A. Yes, in the draft law. That is one of the options, one of the
14 modalities, just like each of the other ones, to be realised according to
15 condition and procedure defined in the following articles of this draft
17 Q. Let's take a look at Article 6 now, Professor. It says here:
18 "The right of people to create an independent, sovereign and autonomous
19 state is realised on the basis of people's voting results in a
20 referendum." And that is the entire text of Article 6.
21 A. Yes, but the right of peoples at referendum -- and here when it
22 says "people," it means nation. Not people but peoples, in fact, nation.
23 It is the nation which realises that right on the basis of their views
24 stated at a referendum or plebiscite.
25 Q. Well, let's be clear on this because the terms seem to be used
1 differently in the Serbian language and in English. Here what is referred
2 to is the Yugoslav nations; the Serbs, Croats, Macedonians, Muslims, and
3 so on. Is that right?
4 A. Yes, absolutely.
5 Q. Now, in Article 7, since Article 6 explains that it is the peoples
6 or nations Croats, Muslims, Serbs, et cetera --
7 JUDGE BONOMY: Before you go on, Mr. Milosevic, in Article 6 there
8 are certain words deleted. Can you tell me what these words are in
10 THE ACCUSED: [Interpretation] Yes. "Sovereign and --"
11 "independent, sovereign and autonomous," or rather, "sovereign and
12 autonomous." "The rights of nations to create independent states." That
13 has remained, whereas the other attributes of sovereign and autonomous
14 were thrown out because "independent" implies that they are already
15 sovereign and autonomous.
16 JUDGE BONOMY: The way the evidence has just been given was on the
17 basis that all three remain, so it is very important to specify exactly
18 what the terms of the constitution -- the constitutional amendment were.
19 THE ACCUSED: [Interpretation] I'm not sure I followed you,
20 Mr. Bonomy. Are you referring to Article 6?
21 JUDGE BONOMY: Yes. I'm referring to Article 6 where your
22 question was: "It says here, 'The right of people to create an
23 independent, sovereign and autonomous state is realised on the basis of
24 people's voting results in a referendum.' And that is the entire text of
25 Article 6." But we now discover, in fact, that the text of Article 6
1 actually omits the words "sovereign and autonomous," and that may be
2 important. I just wanted to be clear exactly what the exact text in
3 Serbian was, and I think you've now clarified that.
4 THE WITNESS: [Interpretation] May I be allowed to clarify? In
5 Article 3 where the options are stated, the last one, the "right to create
6 independent ... state," and then, "(hereinafter referred to as:
7 Independent state)." So the draft will no longer stipulate "independent,
8 sovereign and autonomous"; hereinafter, as it says, they will be referred
9 to as just independent states.
10 JUDGE BONOMY: Thank you.
11 JUDGE ROBINSON: Mr. Milosevic, just a minute, please.
12 [Trial Chamber confers]
13 JUDGE ROBINSON: Continue, Mr. Milosevic.
14 THE ACCUSED: [Interpretation] I hope that this is clear now in
15 view of the fact that Article 3 says the right of nations to create
16 independent, et cetera, et cetera ... "... independent, sovereign and
17 autonomous states," and then in brackets, "(hereinafter referred to as
18 independent states)." Just like any legal text, we see this term
19 "hereinafter" to make the text lighter and not to have to repeat all the
20 individual elements that have already been stated at the beginning.
21 JUDGE ROBINSON: We perfectly understand the reason. The question
22 is what else is there in the English text which should not [Realtime
23 transcript read in error "should"] be there in other articles as we go
24 along? But proceed.
25 MR. MILOSEVIC: [Interpretation]
1 Q. In the English text, we will now turn to Article 7. The first two
2 paragraphs of Article 7 have been crossed out, and the portion which is in
3 capital letters remains. In Serbian text the first two paragraphs have
4 been crossed out. I assume that the translator believed that there was no
5 need to cross this out because it was obvious.
6 Professor Markovic, since the previous article sets forth that the
7 right is realised on the basis of a referendum --
8 JUDGE ROBINSON: I'm sorry to interrupt you. Just to correct what
9 I said. I said the question is what else is there in the English text
10 which should not be there in the other articles as we go along. "Not" has
11 been omitted. Please continue.
12 THE ACCUSED: [Interpretation] Mr. Robinson, I presume that the
13 English text contains every word that is contained in the Serbian text
14 except that no text has been crossed out, but we can certainly compare.
15 MR. MILOSEVIC: [Interpretation]
16 Q. Professor Markovic, since Article 6 specifies that the right is
17 realised on the basis of a referendum, please explain to us and read out
18 Article 7.
19 A. Well, as you can see, the first two paragraphs of Article 7 have
20 been crossed out. Therefore, they're invalid. The following two
21 paragraphs are valid, the ones in capital letters. These two paragraphs
22 regulate the exercising of the right to self-determination in the
23 republics where two or more nations are considered constituent nations.
24 That means that in the same republic, one constituent nation can vote in
25 favour of an independent state, whereas the other constituent nation can
1 opt for a common state with other Yugoslav nations if these other Yugoslav
2 nations desire so. The Assembly of the SFRY is informed about the results
3 of a referendum, which is specified in Article 8. The text of Article 8
4 is not in capital letters.
5 Q. Well, these are technical differences, not essential ones, as far
6 as I understand it.
7 Now, please take a look at Article 9. It mentions an objection
8 that can be sent to the SFRY Assembly. Can you tell us something about
10 A. Yes. The SFRY Assembly is informed about the results of a
11 referendum, and should the Assembly be sent an objection complaining that
12 the referendum was not carried out in accordance with the provisions of
13 this law, then the Assembly can establish an Arbitration Commission which
14 should provide its opinion with respect to the objection within 30 days.
15 Q. Thank you, Professor Markovic. Now let us turn to Article 10. Is
16 this what would ensue after the referendum if everything is conducted in
17 accordance with the law? What happens after that?
18 A. You mean Article 10?
19 Q. Yes.
20 A. Well, should the Assembly establish that the referendum was valid,
21 was carried out in accordance with the provisions of this law, then the
22 Assembly of the SFRY would commence procedure for territorial and material
23 delimitation and would undertake necessary measures and actions needed for
24 continual functions of the state community with the peoples who continue
25 to live together in the Yugoslav state.
1 Q. Very well. What is Article 11 about?
2 A. Article 11 speaks of territorial delimitation which encompasses
3 the establishment of borders of Yugoslavia and the parts that have
4 seceded, which should be done on the basis of ethnic, historical,
5 geopolitical and strategic criteria as well as generally accepted rules of
6 international law.
7 Q. What does Article 12 discuss?
8 A. Article 12 discusses material delimitation which is done on the
9 basis of the partition balance of the jointly created values, property,
10 and debts of the Yugoslav state. I don't think there is any need to go
11 into further details concerning paragraph 2, which mentions all the
12 specifics of the partition balance.
13 Q. All right. Article 14. I have selected only those articles that
14 I believe to be relevant.
15 A. Well, Article 14 says that in order to carry out territorial and
16 material delimitation, the Assembly of the SFRY shall establish a special
17 commission. And should there be a dispute, then that dispute would be
18 reviewed by an arbitration, whereas the parties to the dispute would
19 decide on their own whether they would establish their own ad hoc
20 arbitration or whether they would address themselves to an international
21 arbitration. This is what Articles 14 and 15 discuss. They speak about a
22 subject matter that is linked.
23 Q. What about Article 17?
24 A. Article 17 specifies the conditions under which Yugoslavia may
25 recognise as an independent state a state where such a decision was taken
1 at a referendum. There are four conditions. The first one is that the
2 territorial and material delimitation was carried out in accordance with
3 the provisions of this law. The second one is that that republic needs to
4 give a guarantee that it shall respect all basic rights and freedoms of
5 the citizens of SFRY, protect the property and rights of peoples, national
6 minorities, and ethnic groups in accordance with the rules of
7 international law. The third one is that the republic needs to give a
8 guarantee that it shall respect the assumed international legal
9 obligations. And final one is that the republic needs to give a guarantee
10 that it shall respect the assumed obligations regarding prohibition of
11 construction of nuclear power stations and other nuclear structures which
12 may be harmful to people's health and environment, and prohibition of
13 importation and storage of dangerous -- hazardous material.
14 Q. All right. So these are some of the most important provisions of
15 this law, rather this draft law, which was drafted at the initiative of
16 the federal Chamber of Yugoslavia.
17 A. Yes. The federal Chamber was in charge of that. The Federal
18 Assembly at the time had two houses; a federal Chamber, which is the
19 citizens Chamber, which was the lower house, and the upper house, the
20 house of republics and provinces. The decision-making was unicameral, not
21 bicameral, because there was a list of laws that was adopted or could be
22 adopted by the two Chambers. The Chamber of the republics mostly adopted
23 law from the field of economy, whereas the federal Chamber was in charge
24 of the laws in the field of politics. Therefore, this law was -- fell
25 within the responsibility of the federal Chamber. This is why the federal
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 Chamber initiated the adoption procedure of this bill, and this is why it
2 was in charge of its drafting.
3 Q. And what was the fate of this draft?
4 A. This draft never became a bill, nor was it ever presented to the
5 Chamber. In a sense, it arrived post festum, after the fact, after the
6 secession had been carried out of certain republics, and naturally those
7 republics that had seceded from Yugoslavia did not wish to subsequently
8 legalise their secession in accordance with the provisions of this law.
9 They simply based their independence and later on sovereignty on an
10 unconstitutional act.
11 Q. In relation to the views taken by the Constitutional Court of
12 Yugoslavia, we saw a number of decisions of that Court, and if you
13 remember, Lord Carrington put a question to the Constitutional Court of
14 Yugoslavia. And let me formulate my question in more specific terms.
15 Regardless -- or outside, beyond these decisions that we quoted
16 last time, did the Constitutional Court of Yugoslavia take a position with
17 respect to whether what happened in Yugoslavia was a disintegration or a
19 A. Yes. The Constitutional Court of Yugoslavia, as an organ
20 responsible for watching over the constitution, did give an answer to a
21 question which is eminently a constitutional question, namely, what
22 happened in Yugoslavia. Was there a secession that was carried out in
23 Yugoslavia or a disintegration? And Lord Carrington, in his capacity as
24 the chairman of the Conference of the former Yugoslavia, put this question
25 to the arbitral commission, which was an auxiliary body of the conference,
1 and the arbitral commission requested from certain organs in various
2 republics to provide their view on that question, what they believed was
3 the proper answer, so that the arbitral commission could take a final
5 Q. Please take a look at tab 2. There we have an answer to Lord
6 Carrington's question as to whether what happened in Yugoslavia was a
7 disintegration or a secession, and here we can see that this document was
8 sent to the arbitral commission by the Ministry of Foreign Affairs, to the
9 Conference of European Community on the former Yugoslavia, and we also
10 have a number here.
11 I will only quote two paragraphs at the end of this document.
12 Second and third from bottom. This is the answer provided to Lord
13 Carrington's question.
14 "Yugoslavia is not a contractual community of states. Therefore,
15 one cannot say that Yugoslavia broke up due to the cancellation of the
16 contract on which it was based. Yugoslavia was not created as a
17 federation of sovereign and independent states in the form of the
18 republics of the Yugoslav state community but as a federal state of the
19 peoples of Yugoslavia and their republics. Therefore, every republican
20 document in which a republic declares itself a sovereign and independent
21 state is an unconstitutional change against the constitutional system of
22 Yugoslavia, or rather, a secession document that, pursuant to the decision
23 of the Constitutional Court of Yugoslavia, cannot have legal effects."
24 And then the following paragraph: "The break-up or the
25 disintegration of Yugoslavia can only be viewed as a consequence of
1 unconstitutional documents of individual republics on declaring their
2 sovereignty and independence. Such unconstitutional documents cannot
3 legally call into question the survival of Yugoslavia as a federal state
4 and a subject of international law as long as at least two republics
5 remain in that community."
6 Is that the essence of the answer provided to Lord Carrington's
8 A. Yes. That's precisely the substance of all of those decisions of
9 the Constitutional Court that we reviewed on Thursday last week.
10 Therefore, starting from -- basing its answer on the constitution, the
11 Constitutional Court took view that Yugoslavia was not a contractual
12 community. It was not a mechanical sum of individual parts but was one
13 whole uniting all those parts, that it was a sovereign federal state. So
14 that any act of secession from Yugoslavia taken against the constitution
15 meant an unconstitutional change of a federal state. From a legal point
16 of view, such an act, enactment, was invalid, was null and void.
17 Therefore, there could be no question of disintegration of Yugoslavia.
18 This was an act that constituted an unconstitutional disintegration of a
19 federal state, but Yugoslavia, even after the secession, would
20 mathematically continue to exist as long as it had at least two federal
21 units because those two federal units taken together constituted more than
22 half of the territory of republics that had seceded and more than half of
23 the population of the -- living in those seceded republics. That was the
24 position taken by the commission and the Constitutional Court. And this
25 view of the commission was simply extracted from the decisions that had
1 already been passed by the Constitutional Court. We reviewed all of those
2 decisions of the Constitutional Court last Thursday.
3 Q. Based on your experience as judge of the Constitutional Court of
4 Yugoslavia, based on the arguments you heard that were used in those
5 discussions, could you tell us briefly why administrative borders cannot
6 be state borders as well.
7 MR. NICE: I simply observe that this is -- this is completely
8 contrary to the principle that excluded Professor Kristan's evidence. He
9 was a participating member of the court, and for the preparation of an
10 opinion, which got no further, I think, than the preparation of an
11 opinion, he was excluded from giving of evidence.
12 It may be better simply to allow this witness to say whatever he's
13 going to say, recognising that it frankly is expert evidence. I'll do my
14 best to deal with it, but the consequences of there having been no expert
15 evidence served in advance will have to be faced at a later stage.
16 JUDGE ROBINSON: Unless he's giving evidence as a matter of fact,
17 as a participant in this particular case, not giving evidence as an
19 MR. NICE: The question reads: Based on your experience, based on
20 the arguments would you tell us briefly why there cannot be state borders.
21 That would seem to me almost inevitably to bring in expert answers. And
22 indeed I think - I can't recall precisely the ways in which we advanced
23 the problem of Kristan's evidence on Kosovo, but I think one of the things
24 was that we suggested he could give evidence limited in some way to the
25 factual, and that was excluded. But I don't want to retrace all that. I
1 will simply observe this is plainly a form or species of expert evidence.
2 I'll deal with it as best as I can.
3 [Trial Chamber confers]
4 JUDGE ROBINSON: We have interchanged positions, Mr. Nice. You
5 have been referred to as Judge Robinson.
6 MR. NICE: I'm so sorry.
7 JUDGE ROBINSON: I hope not to your disadvantage.
8 THE INTERPRETER: Microphone, please, for Mr. Nice.
9 MR. NICE: I'm deeply honoured, and for this error many thanks.
10 MR. KAY: The witness can give evidence of the decision that was
11 made, and that's his experience. That's what happened, and that's what
12 he's doing. It's a matter of fact as to what the decision was, and this
13 is part of the evidence that's being given.
14 JUDGE ROBINSON: That's the view that I have, that he can give the
15 evidence as a matter of fact. Kristan was proposed as an expert witness.
16 Continue, Mr. Milosevic.
17 MR. MILOSEVIC: [Interpretation]
18 Q. So Professor Markovic, can you tell us on the basis of your
19 experience in the Constitutional Court and your practice in the
20 Constitutional Court, what were the arguments that were resorted to and to
21 what extent were they based on the constitution? Why can administrative
22 borders not be state borders?
23 A. You have already mentioned these reasons, that is to say last
24 Thursday when you invoked these decisions. All of that is written in the
25 decisions themselves. It says why internal borders cannot be considered
1 state borders. International law applies to state borders whereas
2 internal law applies to internal borders. This is based on the system of
3 Yugoslavia. Yugoslavia was a federal country, and this has to do with the
4 fact that there was a federal system. The regimen of state borders was
5 regulated in Article 5 just like the regimen of internal borders. So
6 internal borders are an internal matter of the state concerned. That was
7 the ruling of the Constitutional Court, whereas international borders,
8 state borders, are subject to international law and they are based on
9 international law in its universally recognised principles.
10 JUDGE ROBINSON: Mr. Nice, we may be minded to allow you to call
11 Dr. Kristan as a fact witness.
12 MR. NICE: I'm obliged.
13 [Trial Chamber confers]
14 JUDGE ROBINSON: Mr. Milosevic, we should deal with the admission
15 of these two tabs, in line with the procedure that I outlined at the
16 commencement. We'll admit both of them.
17 What's the number?
18 THE REGISTRAR: Tab 14 and tab 2.
19 JUDGE KWON: It should be tab 40.
20 THE ACCUSED: [Interpretation] Thank you.
21 MR. MILOSEVIC: [Interpretation]
22 Q. Let us go back to the answer to Lord Carrington. After giving an
23 answer to Lord Carrington's question, the Arbitration Commission on
24 Yugoslavia, did it take decisions of its own with regard to this matter
25 or, rather, did it take positions?
1 A. The Arbitration Commission precisely sought the opinion of all the
2 relevant organs in each and every one of the republics of the Yugoslav
3 federation in order to be able to take a position of its own. There was a
4 series of such opinions. However, this is opinion number one of the
5 Arbitration Commission. It took its own view.
6 Q. All right. The view of the Constitutional Court, as expressed in
7 this answer to Lord Carrington which we've quoted, was it taken into
8 account when the Arbitration Commission took its position?
9 A. It was not taken into account, the position of the Constitutional
10 Court of Yugoslavia when the Arbitration Commission took its view. The
11 Arbitration Commission ruled quite the opposite, totally ignoring the
12 constitution of the federation and the fact that secession was an
13 anti-constitutional act.
14 Q. Tell me, Professor Markovic, where is the difference between the
15 position of the Constitutional Court and the position of the Arbitration
17 A. There are three differences. First of all in relation to the
18 status of Yugoslavia; then in relation to who the protagonist is of the
19 right to self-determination; and finally, there is a difference in terms
20 of how state territory is treated.
21 Q. All right. In relation to these three main points, first of all
22 you said that there is a difference in terms of the status of Yugoslavia.
23 Could you please be so kind as to spell this out more specifically.
24 A. In relation to the rulings of the Constitutional Court and in
25 relation to the letter to Lord Carrington, the position of the court --
1 Constitutional Court is quite clear. The Constitutional Court believes
2 that it is the people who have the right to self-determination. It is a
3 universal right. It is a general right. There are two equal options, one
4 to leave the federal Yugoslavia, and the other one to remain in
5 Yugoslavia. One cannot supersede the other. Both have equal value, both
6 options. And for as long as there are at least two constituent elements
7 left in the federal Yugoslavia, at least two federal units, Yugoslavia as
8 a state continues to exist, particularly because secession is an
9 anti-constitutional act.
10 The commission, on the other hand, believed that Yugoslavia was in
11 a state of dissolution, that is to say disintegration, and that it was
12 disintegrating into its integral parts, although that did not correspond
13 to the actual fact. Two federal units did decide to remain in Yugoslavia,
14 and they reconstructed the federal system through their own constitution
15 adopted in April 1992. Therefore, the constitution believes that the
16 right to self-determination, that is to say to leave the federation,
17 cannot supersede the right to self-determination in the sense of remaining
18 in the federation.
19 Q. All right. In relation to the other element that you mentioned,
20 in terms of who the protagonist is of the right to self-determination,
21 what is the core of the matter?
22 A. The Constitutional Court believed, proceeding from the
23 constitution, that is to say section 1, basic principles, that the nation
24 is the right -- is the protagonist of the right to self-determination.
25 I'm just going to look at the ... "[In English] Proceeding from the
1 right of every nation to self-determination." [Interpretation] Not to
2 quote the entire text. It's a bit of a blah, blah. "[In English] Federal
3 republic of free and equal nations."
4 [Interpretation] So free and equal nations created Yugoslavia.
5 Therefore, they are the only ones that can be the protagonists of the
6 right to self-determination.
7 The federal state, and that is an anomaly in the Yugoslav
8 federation, preceded the republics. First the federal state was created
9 at the second session of AVNOJ, which in a way was the Philadelphia
10 convention from the point of view of the Yugoslav situation, and the
11 participants in the session of AVNOJ were in a way the founding fathers of
12 the federal Yugoslavia. So it was the Federal Republic of Yugoslavia that
13 was first established and then the territories of the republics were set
14 up. They were not established at the second session of AVNOJ.
15 Q. Stop there, please, Mr. Markovic. Could you tell us which legal
16 document regulated the borders among the republics.
17 A. There was no legal document that ever regulated those borders.
18 Those borders were never legalised. That is one matter.
19 And secondly, it was never established by democratic means, that
20 is to say by a referendum. There is not a single legal document which
21 established the borders among the federal units. The only trace of such
22 borders can be found in the stenographic notes of the Presidency of AVNOJ,
23 dated January 1945, when the ASNOS, the Anti-fascist Council of National
24 Liberation of Macedonia, so there should be an M at the end, that was the
25 national parliament of Macedonia, and ZAVNOH, that is to say the
1 country-wide Anti-fascist Council of National Liberation of Croatia, asked
2 for a larger number of their representatives in AVNOJ. Then in these
3 stenographic notes, we can see what was the territory of the republic that
4 was taken as relevant for the election of delegates to AVNOJ.
5 Then it says that Slovenia is considered to be the border --
6 within the borders of Dravska Banovina, as it was formally known. Then
7 the Savska Banovina was Croatia, plus 13 districts of Primorska Banovina
8 plus the Dubrovnik district and the Zetska Banovina. Bosnia-Herzegovina
9 was within the borders established at the Congress of Berlin, the Republic
10 of Macedonia was within the borders south of Kacanik and Risovac all the
11 way to the state border of the Kingdom of Yugoslavia, that Montenegro was
12 considered to be within its borders before the Balkan wars plus the Bereni
13 [phoen] and Kotor districts. As well as Plav and Gusinje [phoen].
14 Whereas Serbia was considered to be within its borders before the Balkan
15 wars, but extended by two districts on the basis of the Versailles peace
16 treaty, that is Bosiligrad [phoen] and Dimitrovgrad. But that is the only
17 written trace of all of this.
18 MR. NICE: [Previous translation continues] ... answer to the
19 Court. It's not an answer to the question, which simply said can you
20 identify a document. Is it relevant? Is it going to help us? Those are
21 my observations.
22 JUDGE ROBINSON: In fact, Mr. Nice, your intervention allows me to
23 raise a question that I wanted to raise about this evidence.
24 Mr. Milosevic and Mr. Kay and Mr. Nice, tell me if you agree with
25 this: The Chamber is not called upon to pass upon the correctness of any
1 of these decisions, say the decision of the Constitutional Court. The
2 Chamber doesn't have to evaluate the lawfulness of the secession of any
3 particular republic. The Chamber is concerned that these things happened
4 as a matter of fact, and the Chamber is concerned to note the consequences
5 that they had for events which form the basis of the indictment.
6 What I'm trying to ascertain is to what extent the evidence is --
7 how it becomes relevant for the case. I don't think the Chamber has to
8 pass upon, has to concern itself with whether the decision of the
9 Constitutional Court was right or whether the secession followed
10 particular procedures. It is the fact of these happenings which is
11 important and the effect which those happenings had on particular acts
12 which are the basis of the indictment.
13 Mr. Milosevic, can I just hear from you on that matter first?
14 THE ACCUSED: [Interpretation] This part of the testimony of
15 Professor Markovic that pertains to the rulings of the Constitutional
16 Court of Yugoslavia and the review of the constitutionality and legality
17 of the documents adopted by the republics that seceded shows that
18 secession was illegal and violent and that it caused armed conflicts.
19 Therefore, I assume that that is very important to establish. Since this
20 entire approach says that Serbia or I personally had some kind of plan to
21 do something against others, whereas it stems from all of this that the
22 conflicts were a consequence of the illegal and violent secession that
23 took place.
24 So if there was any kind of plan, I mean how can you plan what
25 somebody else is going to do or has done, especially if it is done in a
1 violent manner?
2 JUDGE ROBINSON: Yes. I think you're right. The Chamber is
3 concerned that the secession led to violence, but is the Chamber unduly
4 concerned with the lawfulness of the secession?
5 Mr. Kay.
6 MR. KAY: So far as context is concerned, it's obviously important
7 as we're dealing here with an accused who was a head of state and all that
8 responsibility and all that he had to consider at the time and was aware
9 of at the time that was happening within Yugoslavia. Perhaps the detail
10 of it or excessive detail of it can be too much, but the fact of what the
11 witness is dealing with is important in relation to the accused's own
12 position, and when one -- and he -- or has his state of mind considered as
13 to what he did or said and how he conducted himself as the President of
15 So in that context important, but perhaps overly detailed, may be
16 drawing the Court to the position where it considers, "Well, do we have to
17 decide on this as a matter of law, as a matter of law in relation to this
18 indictment?" Probably not, and it wouldn't be the function of this Court.
19 But in the context of how the accused conducted himself, then important.
20 JUDGE ROBINSON: The part of the Prosecution's case, the secession
21 was -- was lawful --
22 MR. NICE: It's not part of our case one way or the other. The
23 question of the legality of secession is not for this Court, and as I was
24 indicating in the reservations I was expressing on a couple of occasions
25 last Thursday, not something necessarily into which we should even be
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 inquiring. I am aware of no statute of the former Yugoslavia or any other
2 international legal instrument or principle of law that says the
3 illegality of an earlier secession or even the belief in the illegality of
4 an earlier secession justifies involvement in war crimes that happened
5 later. It seems to me the two are wholly unconnected.
6 That individuals in one state or another might have believed or
7 been led to believe that secession was unlawful is part of the fabric of
8 the case. Whether it has any effect on the legal liability of this
9 accused is, in our submission, doubtful in the extreme, but we don't
10 object to that being laid before you as part of the context. It would be
11 not only wrong, it would be perilous for this Chamber to venture into some
12 kind of definitive decision on the legality of action of, for example,
13 Slovenia or Croatia in their secessions from the former Yugoslavia. It's
14 not for this Court.
15 JUDGE ROBINSON: Thank you.
16 Mr. Milosevic, I hope you followed the discussion. The matter is
17 relevant, of course, but as Mr. Kay said, too much detail will derail us.
18 We don't want to be too far from the central issues in this case. So we
19 don't need to have as much detail.
20 Professor, Professor Markovic, I'm saying we don't need to have as
21 much detail as you were just giving in answer to the last question. We
22 are more concerned with the -- that matters happened as matters of fact.
23 We'll draw the appropriate inferences.
24 MR. NICE: I'm reminded and am grateful for that and should have
25 mentioned earlier that of course there is one associated legal issue which
1 does concern the Court and that is the date or a date of independence of
2 Croatia for purposes of international armed conflict. That has been dealt
3 with elsewhere in our filings, but that's a different but nevertheless
4 connected or marginally connected issue.
5 JUDGE ROBINSON: Thank you. Mr. Milosevic, please proceed.
6 THE ACCUSED: [Interpretation] Just to link up certain matters with
7 this, Mr. Robinson. Take a look at points 89 and 90 of the Kosovo
8 indictment, for instance. In 89 - I haven't got the Serbian text so I'll
9 read it out. 89 says this: " On 25 June 1991, Slovenia declared its
10 independence from the SFRY, [In English] which led to the outbreak of
12 [Interpretation] And the next sentence: "Croatia declared its
13 independence [In English] on 25 June 1991, leading to fighting between
14 Croatian military forces on the one side and the JNA, paramilitary units
15 and the 'army of Republic of Srpska Krajina' on the other."
16 [Interpretation] And then in 90: "[In English] On 6 March 1992,
17 Bosnia and Herzegovina declared its independence, resulting in wide-scale
18 war after 6 April 1992."
19 [Interpretation] Therefore, the correct observations were made
20 here as to the outbreak of war.
21 Now compare that to point 6 of the Croatian indictment, where it
22 says the following: "The purpose of this joint criminal enterprise [In
23 English] was the forcible removal of the majority of the Croat and other
24 non-Serb population from the approximately one-third of the territory of
25 the Republic of Croatia ..."
1 [Interpretation] And I'd like to emphasise this: "... that he
2 planned to become part of [In English] the new Serb-dominated State
3 through the commission of crimes ..."
4 [Interpretation] This entire approach about some criminal
5 enterprise which was planned, which was planned in order to expel somebody
6 from some territory is quite absurd if we bear in mind the fact that
7 nobody could have planned other people's acts and that the entire conflict
8 came about through the secession and armed attacks on federal organs, not
9 even on Serbia or I don't know what else, but it was an attack on federal
10 organs in those territories. Therefore, we see the extent here to which
11 elementary logic is not being pursued here in these papers and these
12 paragraphs. Absolutely illogical and unfounded, and that is quite
14 JUDGE ROBINSON: Mr. Milosevic, let me see if I understand you.
15 What you're saying is that it is the secession which led to the commission
16 of the acts which are the subject of the indictment and not any joint
17 criminal enterprise of which you were a part. Is that the case?
18 THE ACCUSED: [Interpretation] Well, there is no joint criminal
19 enterprise. How can somebody plan something that somebody else is going
20 to do in the future?
21 JUDGE ROBINSON: Let me stop you. I'm trying to understand your
22 case, and I think I'm getting it clear, the relevance of the secession.
23 You're saying it is the secession and these, what you call unlawful acts
24 on the part of the republics, that explain the acts with which you have
25 been charged, you say wrongly charged. The explanation of the acts is not
1 any criminal enterprise of which you were a part. I understand that is
2 what you are saying.
3 That's an important part of the function of the Chamber,
4 Mr. Milosevic, to try to understand the case that an accused is putting
5 forward, and what I have just said seems to be the -- the explanation of
6 the case that I understand you to be putting forward, and that is why you
7 place so much emphasis on the secession and the lawfulness of the
8 secession which led to the violence.
9 THE ACCUSED: [Interpretation] With an addition, with one proviso.
10 It's not any of my acts, no acts on my part. The conflict was between the
11 paramilitary formations of the illegally seceded republics and the
12 Yugoslav organs, which is to say the Yugoslav People's Army and not the
13 Republic of Serbia whose president I was. So there is a reversal of
14 thesis here. Everything has been placed topsy-turvy. The whole idea has
15 been based completely erroneously. They were not my acts or the acts of
16 the Republic of Serbia. They were violent acts which produced conflicts
17 in which, of course, there were crimes and victims on all sides, et
18 cetera, et cetera, everything else that ensued. But they were not the
19 acts of the Republic of Serbia or my acts.
20 How can you say that they were the acts of the Republic of Serbia
21 if paramilitary Croatian troops block JNA barracks that have been there
22 for 70 years, and then a conflict arises? What does the Republic of
23 Serbia have to do with that? Or, for example, the military expert on the
24 part of the Prosecution, did he produce a single document by the Republic
25 of Serbia or document of mine connected with this? Everything has been
1 placed upside down, on its head.
2 I'm not saying that crimes weren't committed. The fact is who
3 perpetrated the crimes and where the link is, the cause and effect.
4 JUDGE ROBINSON: Yes. Well, the question of responsibility for
5 paramilitary acts is both a legal and a factual issue which will have to
6 be addressed in some detail, no doubt in the closing arguments.
7 Please continue.
8 THE ACCUSED: [Interpretation] Fine, Mr. Robinson, I will.
9 MR. MILOSEVIC: [Interpretation]
10 Q. Now, Witness, in explaining the differences, you mentioned the
11 borders, too, but I think we dealt with that issue and there's no need to
12 dwell on that. We can move on.
13 A. But I'd like to say something else with respect to borders and
14 frontiers, and it's this: When the Arbitration Commission assumed its
15 position with respect to the frontiers, or to put it depo iuris, that is
16 to say relying on the decision of the International Court in the Burkina
17 Faso and Republic of Mali lawsuit, it left out part of the judgement from
18 which we can see that that particular law and rule --
19 JUDGE ROBINSON: Mr. Milosevic, that's the kind of detail we -- I
20 don't think we need. Just move on.
21 THE ACCUSED: [Interpretation] Mr. Robinson, I cannot agree with
22 you on that point because we're not dealing with details. In tab 54, for
23 example, you have quotations by the Badinter Arbitration Commission, and
24 the decision of the Badinter Arbitration Commission was a sort of legal
25 alchemy, if I can put it that way, and a forgery or falsification, because
1 he explains - and you have that in tab 54 and it is in English -
2 "Nevertheless, the principle is not a special rule which pertains solely
3 to one specific system of international law. [In English] It is a general
4 principle, which is logically connected with the phenomenon of the
5 obtaining of independence, wherever it occurs. Its obvious purpose is to
6 prevent the independence and stability of new States being endangered by
7 fratricidal struggles ..."
8 [Interpretation] And then, when you have the Mali-Burkina Faso
9 example and how it referred to something that it could not have referred
10 itself to. So this is a question of fact. And it is not a matter of
11 legal finesse and nuance but it is much more flagrant consequences.
12 MR. MILOSEVIC: [Interpretation]
13 Q. Professor, could you explain this to us, please. Do you consider
14 and in the Constitutional Court did you consider --
15 JUDGE ROBINSON: Mr. Milosevic. Mr. Milosevic, I have made a
16 ruling. If I wish to reconsider it in the light of the comments that you
17 have made, that's a matter for me. It is entirely inappropriate for you
18 to instruct the witness to proceed to answer the question.
19 I'll allow you to deal with it very briefly.
20 THE ACCUSED: [Interpretation] Very well, Mr. Robinson. I'd like
21 to draw the witness's attention to tab 54 now, please.
22 MR. MILOSEVIC: [Interpretation]
23 Q. Just briefly explain to us, not to take up too much time, what is
24 this about?
25 A. What is tab 54?
1 Q. It is the Badinter Arbitration Commission and Mali-Burkina Faso
2 that we mentioned.
3 A. It explains the right of uti possidetis iuris, but it omits from
4 the decision of the International Court this portion: "... provoked by
5 the challenging of frontiers following the withdrawal of the
6 administrating power."
7 So this rule relates to countries in which the colonial power is
8 being revoked. The federal state was not colonial power over federal
9 units nor were the federal units colonial provinces. The federal state
10 had its constitution, so there was no need to look back at Burkina Faso in
11 order to resolve the border problem but just to look at the constitution
12 and Article 5 of that constitution that was in force. And then the
13 decision referred to Article 5 but the wrong provisions, provisions 2 and
14 4, and they intentionally left out provisions 1 and 3 which speak
15 differently from the view presented by the Arbitration Commission.
16 I don't want to read them out to you because you have in the tab
17 in English, not to waste any time.
18 Q. Thank you, Professor Markovic. I believe that this is crystal
19 clear now.
20 Tell me, please, among the documents and acts that were assessed
21 by the Constitutional Court of Yugoslavia and considered by the Court,
22 were there such documents as indicated the violent nature of the secession
23 that took place? And I'm linking this up to the observation made a moment
24 ago by Mr. Robinson with respect to the question about the paramilitary
25 formations, et cetera, in view of the fact that certain explanations are
1 needed there to. But to save time, would you look at tabs 3, 4, and 5, as
2 well, please, and answer my question.
3 A. The assessment of constitutionality is the subject, and it was the
4 decision that was referred to, the decision on assessment and the law on
5 the amendments of the law on internal affairs, and the proceedings to
6 determine constitutionality were launched by the federal government, the
7 Federal Executive Council, in fact. And in the decision of the
8 Constitutional Court of Yugoslavia, it says that the ZNG, established
9 according to this law, is a professional armed military formation for
10 defence duties. That's what it says in this law.
11 Now, what did the Constitutional Court of Yugoslavia consider?
12 They considered this decision to be unlawful because according to the
13 constitution of the federations, the command of the armed forces of
14 Yugoslavia is determined, which make up one entity, and they comprise the
15 Yugoslav national defence and territorial defence. Furthermore, the
16 Constitutional Court of Yugoslavia ruled that outside the system of armed
17 forces you cannot have the founding and establishment of other armed
18 formations. Therefore, the Constitutional Court considered that the
19 Croatian National Guards Corps, or the ZNG, which was established
20 according to the law on the amendments to the law on internal affairs of
21 the Republic of Croatia, is an example of a paramilitary formation which
22 steps outside the system of the armed forces of the federal state.
23 THE INTERPRETER: Microphone, please. Microphone for the accused.
24 THE ACCUSED: [Interpretation] Well, my microphone's on.
25 Mr. Robinson, I should like this decision of the Constitutional
1 Court in tab 3 be tendered into evidence and be admitted, by which the
2 Constitutional Court states its views loud and clear on the illegality and
3 unlawfulness of the armed formations or, rather, the armed formation that
4 was called the Croatian National Guards Corps, the ZNG of Croatia.
5 JUDGE ROBINSON: And do you want the earlier reference to tab 54?
6 MR. NICE: Tab 54, can I just offer the following: I have and I
7 think the Chamber has simply one page, no doubt extracted from a Badinter
8 document. The history of Badinter material before the Chamber is that the
9 Chamber at some stage asked for the Badinter Commission documents, and
10 they were provided other than through a witness, if my recollection is
11 correct. There were then several Badinter documents produced through the
12 witness Sarinic under Exhibit 641 tab 32, but I don't think that was a
13 complete Badinter set of documents. It may be helpful at some stage if
14 the accused or perhaps Mr. Kay can connect this extract with one of the
15 documents that will be more clearly authoritative so we know where it
16 comes from.
17 JUDGE ROBINSON: Extensive use was made by the Chamber of the
18 Badinter Commission's report, Rule 98 bis proceedings.
19 What do we do with this document, then?
20 THE ACCUSED: [Interpretation] Mr. Robinson.
21 JUDGE ROBINSON: Mr. Nice, are you saying then we already have
22 this Badinter Commission's report?
23 MR. NICE: I'm not sure exactly where tab 54 comes from and it
24 will probably be sensible to connect it and find out where it comes from
25 so that we can -- I'm not challenging it, it can be admitted providing it
1 is an extract, but it's better really to connect it.
2 [Trial Chamber confers]
3 JUDGE ROBINSON: We will admit the extract from the Badinter
4 Arbitration Commission as a Defence exhibit, and later, if we are able to
5 identify the connection with the Prosecution Exhibit, then we'll deal with
6 it in that way as well. And we'll also admit tab 3.
7 THE ACCUSED: [Interpretation] Thank you, Mr. Robinson. For the
8 record, for the transcript, I should like to emphasise that the point of
9 admitting this tab lies in the fact that Badinter improperly quoted the
10 suit between Mali and Burkina Faso and finishes his quotation with the
11 word "struggles," whereas the quotation continues by saying "... provoked
12 by challenging of frontiers following the withdrawal of the administering
13 power," which means after the withdrawal of the colonial powers, which was
14 inapplicable and improper both from the intellectual and legal standpoint.
15 It was incorrect to quote that legal basis and gives rise to the idea of
16 ill intention, that it was ill-intentioned.
17 JUDGE ROBINSON: [Previous translation continues] ...
18 Mr. Milosevic, yes.
19 THE ACCUSED: [Interpretation] Show him where the quotation comes
21 THE WITNESS: [Interpretation] Can someone assist me? I wish to
22 place this on the ELMO, on the overhead projector, so that I can show you
23 this piece of paper, and it may be of assistance.
24 JUDGE ROBINSON: Is it in relation to Badinter or in relation
25 to --
1 THE WITNESS: [Interpretation] Yes, in relation to the opinions
2 stated by the Arbitration Commission.
3 JUDGE ROBINSON: We already have the point made by Mr. Milosevic.
4 There is no need to show us.
5 MR. NICE: I think I've misunderstood it. They're trying to
6 explain that Badinter is misquoting something and this is a correction.
7 Now I understand the point. It will have to be dealt with differently,
8 but I take no objection.
9 [Trial Chamber confers]
10 JUDGE ROBINSON: There is no need to show us. We take the point
11 that you made, Mr. Milosevic. Let us --
12 THE WITNESS: [Interpretation] I just wanted to show the
13 constitution, to show how the provisions were not quoted which speak
14 differently. The constitution of the SFRY, Article 5 of the constitution.
15 JUDGE ROBINSON: Professor Markovic, I've already ruled on it.
16 Let us move on.
17 THE ACCUSED: [Interpretation] Very well.
18 MR. MILOSEVIC: [Interpretation]
19 Q. Professor, now let's us take a look at tab 5. No, I apologise,
20 tab 4, because we've only covered up to tab 3. And now tab 4, which is
21 the decision of the Constitutional Court assessing the constitutionality
22 of the decision of non-application of provisions of the federal law on
23 conscription on the territory of the Republic of Croatia. And at the end
24 of item 3, it says that in view of the Constitutional Court of Yugoslavia,
25 the republican -- republican law cannot discontinue the application of a
1 federal law on the territory of one of the republics of the federation,
2 and then this provision of Croatia was annulled. This was one of the
3 decisions taken by the Constitutional Court.
4 Does this decision also point to the violent nature of the
6 A. This decision, as well as the decision on non-application of the
7 provisions of the law on national defence, declared unconstitutional the
8 act of suspending these two laws on the territory of Croatia. Why were
9 these two laws suspended? They were suspended because these two laws
10 determined constitutional armed forces which were at the time the JNA and
11 Territorial Defence. The Republic of Croatia wanted to annul the validity
12 of these two formations and establish its own formation, which was the
13 ZNG, as a professional armed formation for defence and police functions.
14 Therefore, they wanted to limit the application of the federal laws on
15 conscription and on national defence in the territory of the Republic of
16 Croatia because the Republic of Croatia has created its own armed forces,
17 and it wanted to prevent the forces of the federal state from acting in
18 its territory.
19 JUDGE ROBINSON: Professor, the specific question at the end was:
20 Does this decision also point to the violent nature of the secession?
21 Are you in a position to answer that?
22 THE WITNESS: [Interpretation] Yes, I can answer. It does point to
23 the violent nature of secession, because Croatia refused to apply legal
24 constitutional armed forces and established its own armed forces because
25 its own armed forces had to carry out the secession. On the other hand,
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 the constitutional legal forces would be against the secession, would try
2 to protect the constitutional order, whereas the ZNG was the force that
3 was supposed to carry out secession by violent means.
4 Yugoslav People's Army is a constitutional formation of the
5 federal state, and one of its functions is to protect the constitutionally
6 established order. The constitutionally established order is being
7 destroyed if one of the federal units wishes to leave the federation.
8 This is one of the reasons why these federal laws were suspended in the
9 territory of Croatia, which, in the view of the Constitutional Court, was
11 JUDGE ROBINSON: Does that necessarily lead to violence?
12 THE WITNESS: [Interpretation] It does necessarily lead to
13 violence, and I'll tell you why. Because the Serb nation in Croatia in a
14 referendum decided that they did not wish to leave Yugoslavia. They did
15 not wish to go and live in another state because they had their own state,
16 Yugoslavia, where they were together with the rest of their nation.
17 Therefore, the Serb people did not want to secede and live in an
18 independent Croatia, and this is where the conflict arose. One of the
19 parties in the conflict was the ZNG, National Guard Corps.
20 JUDGE KWON: Mr. Milosevic, if you could clarify whether it is tab
21 4 or tab 5 we are now looking at. I guess it's the latter.
22 THE ACCUSED: [Interpretation] Mr. Kwon, there are two decisions
23 which were annulled and mentioned in tab 4. One applies to the
24 non-application of the federal law on conscription, whereas the other one
25 applies to the law on non-application of the law on national defence. So
1 both tab 4 and 5 pertain to similar issues. This is why I ask that they
2 both be admitted as exhibits.
3 Tab 5, towards the end of item 3 of the decision on the assessment
4 of the constitutionality of the decision on non-application of provisions
5 of the law on Civil Defence, it says that all federal legislation is to be
6 applied on the whole territory of the SFRY unless those laws and acts
7 provide for their applicability in a more narrow territory.
8 And then at the end it says that the decision not to apply
9 provisions of the law on Civil Defence on the territory of the Republic of
10 Croatia is being annulled.
11 JUDGE ROBINSON: Please give us the numbers. Oh, yes, they are
13 MR. KAY: To clear up the outstanding matter on tab 54, I'm
14 grateful for Ms. Anoya's assistance. It was in Prosecution Exhibit 641,
15 tab 32.2, in opinion number 3 of Badinter.
16 JUDGE ROBINSON: Thank you very much, Mr. Kay.
17 MR. MILOSEVIC: [Interpretation]
18 Q. Professor Markovic, since you as member of the Constitutional
19 Court reacted to all of these enactments which you qualified as unlawful,
20 I will now read out to you in parallel two items, two charges from
21 Croatian indictment, 85 and 110.
22 85 reads as follows: "[In English] Between at least 1 August,
23 1991, and at least June 1992, a state of armed conflict existed in
24 Croatia. Until 7 October 1991, this armed conflict was internal in
25 nature. From 8 October 1991, an international armed conflict and partial
1 occupation existed in the Republic of Croatia." [Interpretation]
2 Therefore, this is what is stated in paragraph 85.
3 And then in 110 it says as follows: "[In English] The SFRY,
4 Socialist Federal Republic of Yugoslavia, existed as a sovereign state
5 until 27 April 1992, when the constitution of the Federal Republic of
6 Yugoslavia was adopted, replacing the Constitution of the Socialist
7 Federal Republic of Yugoslavia of 1974."
8 [Interpretation] From the point of view of what you assessed,
9 these enactments on secession that were passed during the Yugoslav crisis,
10 what can you conclude if you were to compare counts 85 and 110?
11 MR. NICE: It sounds to me as though this is expert opinion and/or
12 it's the job of the Court.
13 [Trial Chamber confers]
14 JUDGE ROBINSON: This is a matter which we will have to decide,
15 Mr. Milosevic.
16 THE ACCUSED: [Interpretation] Mr. Robinson, I asked this of
17 Professor Markovic based on the experience he had as member of the
18 Constitutional Court and the facts that were before them at the time. It
19 states there that starting on the 8th of October, 1991, there was an
20 international armed conflict, whereas count 110 specifies that Yugoslavia,
21 the SFRY as a sovereign state, existed until the 27th of April, 1992, when
22 the constitution of the -- of FRY was passed. So how can there be an
23 international armed conflict in a state that existed until the April of
24 1992? So these were precisely the matters that were discussed at the
25 Constitutional Court, and these are obvious facts.
1 JUDGE ROBINSON: But you're asking him to pass on a legal matter
2 that is ultimately a matter for the Chamber. It would be permissible for
3 you to ask him questions relating to the factual situation that would give
4 rise to the legal conclusion, but the legal conclusion is ultimately a
5 matter that the Chamber will have to address.
6 THE ACCUSED: [Interpretation] I'm not asking him just to draw a
7 legal conclusion. What I'm saying is that they reviewed these enactments
8 as members of the Constitutional Court, Mr. Robinson. That's what they
10 MR. MILOSEVIC: [Interpretation]
11 Q. So is it beyond dispute that the SFRY as such, as stated in count
12 110, existed as a sovereign state until the 27th of April, 1992, when the
13 constitution of the Federal Republic of Yugoslavia was adopted?
14 A. If you allow me, my opinion would be that this is a purely factual
15 issue. What fact is important to determine the dissolution of SFRY as a
16 federal state. In count 85, this is linked to the 8th of October, when
17 independent Croatia was declared. In count 110, it is linked to the fact
18 of the adoption of the federal republic of Yugoslavia, which was the 27th
19 of April 1992. So the same phenomenon is being linked to two different
20 facts. I'm not passing any legal judgement here. All I'm doing is
21 concluding that the dissolution of Yugoslavia is being linked to two
22 different dates.
23 THE ACCUSED: [Interpretation] My mike is off.
24 JUDGE ROBINSON: Mr. Milosevic, it's past the time for the
1 THE ACCUSED: [Interpretation] Let me please conclude with this
2 question so as not to cut it in half.
3 MR. MILOSEVIC: [Interpretation]
4 Q. So the 8th of October is obviously being linked to the Brioni
5 declaration or the expiration of the deadline provided by the Brioni
6 declaration, the three-months deadline. In view of the fact that you were
7 kept abreast of the developments at the time, please ask me [as
8 interpreted], could the Brioni declaration have given legal force to the
9 enactments on illegal secession?
10 A. Brioni declaration could not have given constitutional validity to
11 unconstitutional enactments, because the Constitutional Court had already
12 declared them unconstitutional. And they could not become constitutional
13 after the expiration of the three months deadline. In addition to that,
14 the Brioni declaration also did not have any constitutional
15 responsibilities or authorisations, especially not in contravention of the
16 then-valid constitution which was the 1974 constitution. The passage of
17 time does not make something that was unconstitutional constitutional.
18 THE ACCUSED: [Interpretation] Thank you.
19 JUDGE ROBINSON: We will take an adjournment now for 20 minutes.
20 --- Recess taken at 10.35 a.m.
21 --- On resuming at 10.58 a.m.
22 JUDGE ROBINSON: Please continue, Mr. Milosevic.
23 MR. MILOSEVIC: [Interpretation]
24 Q. Professor Markovic, we will now turn to another topic of your
25 evidence. As I've mentioned in the beginning, it has to do with
1 constitutional changes or, rather, the adoption of amendments to the
2 constitution of Serbia from 1989 and also the activities linked to the
3 constitution in 1990 and the constitution of Yugoslavia from 1992.
4 You were a member of the Constitutional Commission for drafting
5 constitutional amendments to the constitution of Serbia from 1974,
6 adopting on the -- adopted on the 28th of March, 1989. Please tell us
7 something about the composition of that commission and what was your
8 capacity in that commission.
9 A. The Constitutional Commission consisted of deputies to the
10 Assembly, the greatest number of the members of the commission were
11 deputies to the Assembly. At the time, the Assembly had three Chambers.
12 All three Chambers were represented, but in addition to that, also
13 sciences and professions were represented as well, because there wasn't
14 just one working group. There were several working groups. That means
15 that the professions and sciences were represented as well, and I was a
16 member of that commission in that capacity, representing professions and
18 Q. Please tell us, why were those amendments adopted?
19 A. Those amendments were adopted as a result of the constitutional
20 status of the Republic of Serbia as a federal unit within a federal state.
21 In November, federal Yugoslavia adopted 40 amendments to the constitution
22 of the Federal Republic of Yugoslavia -- Socialist Federal Republic of
23 Yugoslavia, and all republics had to adopt appropriate amendments to their
24 own constitution. So that was a joint change of both federal
25 constitution, six republican constitutions, and two constitutions of
1 provinces. That was the first joint state to the constitution of 1974,
2 and second one was in 1981.
3 Q. And who gave the initiative for constitutional amendments?
4 A. The initiative was given by the authorised organ, which was the
5 Presidency of the Republic of Serbia. In addition to the Presidency,
6 other authorised proponents could be any of the three Chambers of the
7 Assembly and at least 30 deputies had to be in favour of it, of that. The
8 government of Serbia also was authorised to commence this procedure.
9 Q. Please tell us something about the procedure and whether it was
10 carried out in accordance with the provisions of the constitution of
12 A. Well, the procedure was naturally constitutional. It was in
13 accordance with the provisions of the constitution of Serbia, chapter 17,
14 Articles 427 to 431. So these articles, a total of five articles,
15 specified the procedure for amending the constitution of Serbia, or as it
16 is called, lege artis. This is the revisionist procedure.
17 Q. How many amendments were passed?
18 A. Forty-one amendments to the constitution of the Republic of
19 Serbia. That was in 1989.
20 Q. In tab 17, we have here the Official Gazette of Serbia, which
21 brings the text of the amendments 9 through 49, amendments to the
22 constitution of Serbia.
23 [No interpretation]
24 THE INTERPRETER: The interpreters cannot hear anything from the
1 JUDGE ROBINSON: Professor. There is some difficulty with the
2 interpreters hearing what Mr. Milosevic just said. Would you please
3 repeat the question, Mr. Milosevic.
4 MR. MILOSEVIC: [Interpretation]
5 Q. Could you please say briefly what the underlying idea and content
6 of these amendments is.
7 A. The underlying idea of these amendments was to follow up on the
8 constitutional changes that had been carried out in those 40 amendments at
9 the level of the federal state, to follow this up in the Republic of
10 Serbia. That is to say to bring the constitution of Serbia into
11 accordance with the amendments to the federal constitution, because as is
12 well known, in a federal state, the federal state supersedes the
13 republics, therefore, the republican constitution has to be in line with
14 the federal constitution.
15 As for the content, if I can put it that way, it developed in
16 three areas. The first area was the economic system where market laws
17 were being introduced and where future reforms of the economic system were
18 heralded. The second area is the rationalisation of the delegate system.
19 And the third area has to do with republican agencies and organs. That is
20 to say, different solutions were provided for the work of some of the
21 republican organs, not all.
22 As I said, this was due to the changes made in the federal
24 Q. Tell me now, please, how many amendments out of those that were
25 adopted then pertain to the status of provinces? Which ones are those?
1 A. Out of a total of 41 amendments, five pertain to the status of
2 provinces. That is amendment 29, amendment 31, amendment 33, amendment
3 43, and amendment 47.
4 Q. What was amended? Let us do it in the right order. Amendment 29
5 in relation to the previous provisions that were in force, what were the
6 changes introduced?
7 A. Amendment 29 regulates the relationship between the republican
8 constitution and the provincial constitution. As is well known, the
9 provinces are within the Republic of Serbia. Therefore, the provisional
10 -- the provincial constitution cannot be contrary to the republican
11 constitution. And then it says that the Constitutional Court of Serbia
12 shall give its opinion to the Assembly of the Republic of Serbia on
13 whether the provincial constitution is in contravention of the
14 constitution of the Republic of Serbia.
15 When the Assembly of Serbia establishes on the basis of the
16 opinion of the Constitutional Court of Serbia that some provisions of the
17 constitution of the autonomous province are in contravention of the
18 constitution of the Republic of Serbia, it shall inform the Assembly of
19 the autonomous province about it. Unless the Assembly of the autonomous
20 province removes this contravention within one year, these provisions of
21 the constitution of the autonomous province may not be applied.
22 This regulated a natural legal rule that in a legal system one
23 cannot have something that does not exist in the constitution. It is
24 quite comprehensible from a legal point of view that there is a one-year
25 tolerance of an unconstitutional law or, rather, sorry, constitution of
1 the autonomous province. So the province is being given a grace period of
2 one year to redress that. If it fails to comply, then the rule of force
3 -- the force of primacy will come into being. So then the regulations of
4 the province that are not in accordance with the republican constitution
5 can no longer be applied. That was amendment 29.
6 JUDGE BONOMY: Professor, what was the rule before this, before
7 this change was made?
8 THE WITNESS: [Interpretation] Before the amendment was made,
9 Article 402 dealt with it, of the constitution of Serbia, that is. It was
10 for the provincial Assembly itself to decide whether they are going to
11 eliminate anything that is anti-constitutional or not. The -- Article 402
12 says that the Constitutional Court shall give its opinion to the Assembly
13 of Serbia as to whether the constitution is not in accordance with the
14 constitution of Serbia. This is lex imperfecta. There is nothing that
15 says what happens if the Constitutional Court says that the provincial
16 constitution is not in accordance with the republican constitution. So
17 this is not fully set out. There is republican arbitration. The
18 republican Assembly addresses the provincial Assembly and probably resorts
19 to political means in order to redress the differences. However, that
20 cannot be seen from the actual wording of this norm, and those were the
21 shortcomings of the republican constitution from 1974 and the federal
22 constitution from 1974. Many norms are not specific enough and not
24 JUDGE BONOMY: That was the amendment to the federal constitution
25 which required Serbia to make this amendment?
1 THE WITNESS: [Interpretation] There was no such amendment to the
2 federal constitution, because the federal constitution regulates the
4 JUDGE BONOMY: I -- sorry. I understood you to say that all of
5 these amendments were necessary because of other amendments that had been
6 made to the federal constitution.
7 THE WITNESS: [Interpretation] That is correct. That is correct.
8 But this change was taken advantage of in order to carry out some other
9 changes, too, that were within the constitutional competencies of the
10 Republic of Serbia and that were not linked to the federal constitution.
11 MR. MILOSEVIC: [Interpretation]
12 Q. What was changed in amendment 31? I'm just going to go through
13 the amendments that have to do with the provinces, not the others.
14 Amendment 31, paragraph 1 says: "The republic organs shall be responsible
15 for the execution of republic laws and other republic regulations which
16 apply on the entire territory of the Republic; on the territory of an
17 autonomous province, provincial organs shall also be responsible for this,
18 in accordance with this constitution..." and so on and so forth. What was
19 the change involved in amendment 31?
20 A. This is a very voluminous and very substantive amendment, but the
21 point of all these 12 paragraphs, to summarise them, is that the republic
22 should have enhanced responsibility in terms of carrying out republican
23 laws that are uniformly applied throughout the territory of the republic,
24 not subdivided into autonomous provinces.
25 There was sabotage in the implementation of these laws in the
1 territory of the provinces. Therefore, in order to give the republic
2 instruments on the basis of these laws that were passed on the basis of
3 the constitution of Serbia, the republic received certain authority in the
4 provinces, too, only for those laws that are uniformly applied throughout
5 the territory of the republic.
6 As for the laws that are passed by the province itself, it has
7 full capacity, full authority to carry out its own laws that it passed on
8 its own.
9 Q. According to the previous constitution, were there laws that were
10 applied throughout the territory of the republic?
11 A. There were. They were established in Article 300 of the
12 constitution of the Republic of Serbia.
13 Q. From 1974?
14 A. From 1974, yes. There were various shortcomings involved in the
15 implementation of this provision in practice. That is to say, the
16 republic was -- resorted to general standards, general norms in order to
17 regulate the system throughout the republican territory, basic rights.
18 All of this is something that was not very specific, and in practice there
19 were major disputes between the republic on the one hand and on the other
20 hand the provinces.
21 What do these basic things mean, these fundamental principles
22 mean? How far can one go? So these are these rubber terms that can be
23 applied elastically. And they caused major disputes in implementation.
24 I even read a paper that over the two years that this article was
25 applied, only 13 laws were passed that were applied uniformly throughout
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 the territory of the Republic of Serbia.
2 JUDGE KWON: Excuse me, Mr. Milosevic. I wonder if the parties,
3 either Mr. Nice or Mr. Milosevic or Mr. Kay, could tell us whether we have
4 the previous version of Serbian constitution before it was amended like
6 MR. NICE: I've been working in the last few days on an extract
7 from the 1974 constitution, and I haven't checked whether we have the full
8 1974 Serbian constitution. We will make that inquiry now. One way or
9 another, I'll have either the full document or the extract for you in the
10 course of cross-examination if not before.
11 JUDGE KWON: Tab 15 is the constitution of FRY, not Serbia.
12 MR. NICE: Yes.
13 JUDGE KWON: I'm not sure we've got -- well, Ms. Dicklich --
14 MR. KAY: Tab 526, we think -- Exhibit 526, sorry, tab 1, we think
15 has got it, but I had it on a list earlier. Dr. Kristan produced.
16 JUDGE KWON: Thank you.
17 MR. NICE: Ms. Dicklich was, as ever, ahead of us in knowing what
18 you want, and I understand that 526, tab 1, may have the entire
19 constitution in Serbian but only certain articles translated into English,
20 and the articles to which the witness is now referring are not included in
21 those that are in English.
22 I'll just check on my extract whether the extract contains them in
24 JUDGE KWON: In fact --
25 MR. KAY: Also try 132. That's a reference I've got as well. It
1 might -- that's 1990 constitution.
2 JUDGE KWON: Yes. So the fact is that we don't have the earlier
3 Serbian constitution.
4 THE INTERPRETER: Microphone for Mr. Kay, please.
5 MR. KAY: It's not fully translated. It's -- Dr. Kristan's is the
6 nearest we've got.
7 JUDGE KWON: Thank you. Go on, Mr. Milosevic.
8 MR. MILOSEVIC: [Interpretation]
9 Q. Professor Markovic, please look at amendment 33. Where does it
10 explain what is it that is uniform throughout the territory of the
11 republics? What is regulated uniformly for the territory of the entire
12 republic? There are several paragraphs here, but perhaps they should all
13 be looked at.
14 "Regulates and ensures: The use and protection of the coat of
15 arms, flag, and the national anthem of the Socialist Republic of Serbia
16 and the basic content and protection of public documents; the official use
17 of the Serbo-Croatian language and its alphabets - Cyrillic and Latin, as
18 well as the way and conditions of the application of that language and the
19 equality of the alphabets in public use; equal official and public use of
20 the Serbo-Croatian language and the languages and alphabets of
21 nationalities --" "nationalities" is the word that is used for national
22 minorities -- "in areas where some nationalities live; protection against
23 the pollution of land which is of interest for the entire Republic and
24 supervises the implementation of these regulations."
25 So this is quite civil and logical, isn't it, as far as I can
2 And then it regulates: "The notion of marriage and the basic
3 conditions for entering into a marriage, grounds for dissolving a marriage
4 and the fundamental rights and duties of spouses; the subject and the
5 basic principles of inheritance, the basis of claiming inheritance and
6 other basic conditions for the passing of inheritance to heirs; the basic
7 rights, duties and relations between parents and children and relations
8 between adoptive parents and adopted children."
9 Then further on: "The contents of property and the boundaries of
10 property rights," and so on and so on, and the other rights.
11 Then: "Types and basic conditions for issuing and implementing
12 public loans; the regime and balance of waters which are of interest to
13 the whole of the Republic; protection of people's health against
14 contagious diseases ..." It's a pretty long amendment.
15 Is there anything that is specific here -- how should I put this?
16 Was there anything here that jeopardised anyone's rights as far as the
17 entirety of the Republic of Serbia is concerned? Because this does apply
18 to the entirety of the republic.
19 THE INTERPRETER: Microphone for the witness, please.
20 THE WITNESS: [Interpretation] The subject matter involved in this
21 amendment is exactly to specify these general terms, these rubber terms
22 from Article 300 from the republican constitution of 1974, and it can be
23 seen in the very last sentence of paragraph 33. It says: "This amendment
24 shall replace the appropriate parts and supplement the provisions of
25 Article 300 and shall replace Article 423 of the Constitution of the
1 Republic of Serbia."
2 So uniform principles, single principles, fundamental principles,
3 basics, the system, all of these notions were defined specifically. Their
4 meaning was defined. An attempt was made for the jurisdiction of the
5 republic in that area spelled out as precisely as possible and to
6 eliminate the use of these very general terms, these rubber terms in terms
7 of establishing the authority of the republic.
8 At that time, there were three types of republican laws. The
9 majority of the laws of the Republic of Serbia were applied only in the
10 territory of Serbia outside the territory of the provinces. These were
11 laws from this group. Then there were other laws that were applied
12 uniformly throughout the territory of the republic, and also there were
13 these laws based on social compact. They were envisaged in Article 301,
14 where it says: "On the basis of agreement, a social compact between a
15 province and the republic, the law can regulate things throughout the
16 territory of the republic but in different fields." However, the
17 provinces have to agree to that, that they have to put forth a proposal
18 and previously their Assembly should pass the said law with the required
19 majority. So there were three categories of republican laws.
20 MR. MILOSEVIC: [Interpretation]
21 Q. Thank you, Professor Markovic. We have only two more amendments
22 that have to do with the provinces as well. One is amendment 43, which
23 speaks of the jurisdiction of the Presidency of Serbia, and the last one
24 is amendment 47, which speaks of the changes to the constitution of the
25 Republic of Serbia.
1 Please, in the briefest possible terms, does this jeopardise
2 anybody's rights in any way? Is there anything special involved here that
3 might seem strange to anyone or unusual in terms of legal subject matter?
4 A. In this amendment 43, what is spelled out are the powers of the
5 Presidency of the Republic of Serbia. I draw your attention to paragraph
6 3 where these innovations are, especially in the second subparagraph of
7 paragraph 3. It says specifically what the Presidency can do in terms of
8 protecting the state order, that is to say the state security. State
9 security is a par excellence state function. According to the
10 constitution of Serbia, provinces are not states and they could not
11 perform a state function. That function was now entrusted to the
12 Presidency of Serbia.
13 And in paragraph 3, authority was given to the Presidency of
15 JUDGE ROBINSON: Mr. Milosevic. Mr. Milosevic, we don't have in
16 English amendment 43 or, in fact -- yes, we have 47 but not 43. We have
18 THE ACCUSED: [Interpretation] Well, I don't know how come you
19 haven't got this, because it was provided early on and these articles
20 pinpointed or, rather, the amendments which in any way mention the
21 provinces, which is the reason I'm quoting them in the first place.
22 JUDGE ROBINSON: Proceed and then we'll decide what to do with the
23 question of the document as an exhibit.
24 THE ACCUSED: [Interpretation] Well, I assume you have all the
25 other amendments in translation, do you?
1 JUDGE ROBINSON: Yes. Yes, we do.
2 THE ACCUSED: [Interpretation] It's easy to add that one, then.
3 MR. MILOSEVIC: [Interpretation]
4 Q. Professor Markovic, what is the basic characteristic of this
5 amendment number 47? Point 1 says the changes to the amendment of Serbia
6 should be decided by the Assembly of Serbia or, rather, "The Assembly of
7 the SR of Serbia shall render decisions on changes to the constitution of
9 JUDGE ROBINSON: In his last question, Mr. Milosevic invited you
10 to be brief, and I wish to reiterate that invitation. In fact, it's an
11 instruction, for you to be brief in your reply.
12 THE WITNESS: [Interpretation] In the briefest terms. The
13 provinces are -- do not have the right to veto amendments to the
14 constitution of Serbia. That's my answer.
15 MR. MILOSEVIC: [Interpretation]
16 Q. In point 2, it says: "Changes to the constitution of Serbia
17 cannot alter the position, rights, and duties of the autonomous provinces
18 established by the constitution of the SFRY."
19 A. Well, that's precisely it. That's where the subservient position
20 of the republican constitution lies in relation to the federal
21 constitution. Everything established by the SFRY for a province as a
22 constituent element of the federation you can't have the constitution of
23 the republic intervening because it comes under the jurisdiction of the
24 federal constitution. So everything relating to the rights, duties, and
25 position of the provinces as determined by the federal constitution is in
1 force, because an act with lower legal force cannot intervene the primacy
2 act, which is the federal constitution.
3 Q. While we're on the subject of the federal constitution, I have a
4 specific question for you. These amendments, were they adopted in keeping
5 with the authorisations of the Republic of Serbia from -- as derived from
6 the constitution of the SFRY?
7 A. Yes. These amendments are absolutely in conformity with the
8 constitution of the Federal Republic of Yugoslavia. And if you have
9 Article 4 before you of that constitution or, rather, the Federal Republic
10 of Yugoslavia, you will see a definition there of the autonomous provinces
11 in which the following is stated: That the socialist autonomous province
12 is an autonomous socialist socio-political community based upon the rights
13 of self-management by the working people and all working citizens in which
14 the working people and citizens, nations and nationalities realise their
15 sovereign rights, and when so specified by the constitution of the
16 Republic of Serbia in common interest of the working people, nations and
17 nationalities of that republic as a whole, they do so also within the
19 So the extent to which the rights and duties that will be accorded
20 to the provinces will be will be determined by the constitution of the
21 Republic of Serbia. And it emanates from Article 4 of the constitution of
22 the Federal Republic of Yugoslavia.
23 Therefore, the subject of the republic -- it is up to the
24 republican constitution to determine the quantity of the powers that the
25 autonomous provinces will be vested with.
1 JUDGE BONOMY: Professor, can I in relation to this amendment, 47,
2 ask you the same questions as I asked before in relation to, I think it
3 was 29. What was the position before this amendment was made? That's the
4 first question.
5 THE WITNESS: [Interpretation] Before this amendment was passed, a
6 province could quite simply veto a matter. That means change any
7 amendments to the -- that means not allow any changes to be made to the
8 constitution of the Republic of Serbia, ban them in fact.
9 JUDGE BONOMY: Thank you. And my second question is: What
10 amendment was made to the federal constitution which required this
11 amendment to be made in the Serbian constitution?
12 THE WITNESS: [Interpretation] No amendment was made to the federal
13 constitution, because we're dealing with a matter which comes under the
14 sphere of interest of the self-organisation of the republics. Now, how
15 the republican constitution was to be changed is determined by the
16 republic, whereas the federal state determines how the federal
17 constitution is to be changed or amended. So there were no changes in
18 that sense at federal level. And I've already stated that the majority of
19 these provisions, and we have seen a total of 36, was caused by changes in
20 the federal constitution, whereas the five articles were within the
21 framework of the constitutional powers of the republic which regulated
22 this differently than existed in the 1974 text of the Serbian
24 MR. MILOSEVIC: [Interpretation]
25 Q. Professor Markovic, doing what you explained to us just now, did
1 the republic step outside the frameworks of its authorisation as vested in
2 it by the constitution?
3 A. No. The republic acted upon the constitution, the letter of the
4 constitution. It is up to the republic to determine the amount of
5 authority that an autonomous province is going to have. Now, the
6 difference between a republic and autonomous province is based on Article
7 3 and 4 of the constitution of the SFRY. Article 3 of the constitution
8 states that a republic is a state. Therefore, Serbia is a state by the
9 same token. And an autonomous province is an autonomous socialist
10 self-management community. That is to say it is not a state. It is not a
11 state, let me repeat, and cannot realise the same functions realised by a
12 state, otherwise autonomy would be a status within a state -- a state
13 within a state. That's the status it would have.
14 Q. Thank you, Professor.
15 THE ACCUSED: [Interpretation] Mr. Robinson, I would like tab 17,
16 which contains the amendments, to be tendered into evidence. You said
17 that one of the amendments was not translated but you do have all the
18 others, so I would like to tender it into evidence as an exhibit, and if
19 this other document hasn't been tendered yet, I don't have the records on
20 that -- I'm referring to tab 15. I'd like to tender tab 15 unless it has
21 already been admitted. And Professor Markovic quoted from the
22 constitution of Yugoslavia, which is what that document is and what
23 Professor Markovic just quoted from. You have it translated in English in
24 its entirety.
25 JUDGE ROBINSON: Yes. We'll admit 17. 15 is already admitted..
1 MR. MILOSEVIC: [Interpretation]
2 Q. Your answer was that it was done in keeping with the Yugoslav
3 constitution. Tell me now, the Constitutional Court of Yugoslavia, did it
4 make a ruling as to whether these amendments were in conformity with the
5 constitution of Yugoslavia? Did it have anything to say about that? And
6 let me draw your attention to tab 18, in which we see the ruling and
7 opinion of the Constitutional Court of Yugoslavia. So my question to you,
8 Professor, is this: Did the Constitutional Court of Yugoslavia state
9 whether it felt that these amendments were in conformity with the SFRY
10 constitution? Did it give a ruling?
11 A. The Constitutional Court of Yugoslavia, at the proposal of the
12 federal Chamber of the Yugoslav Assembly did make a ruling on the
13 constitutionality of all the amendments to the republican constitutions,
14 which includes the constitutionality of the amendments to the constitution
15 of the Republic of Serbia as well. It stated its opinions to the Yugoslav
16 Assembly and said whether the amendments were in keeping or not with the
17 federal constitution. And the Constitutional Court in only three points
18 found that out of a total of 41 amendments, only three stipulations
19 therein were not in conformity or, rather, were in contravention to the
20 federal constitution.
21 Q. And which were they? What three stipulations?
22 A. First of all, with regards to real estate and limiting real estate
23 transactions and trade. And they said that this was in contravention to
24 the federal constitution.
25 The second matter in which the Constitutional Court ruled was in
1 contravention to the federal constitution was the use of the alphabet and
2 the Cyrillic script was favourised. And the Constitutional Court ruled
3 that both scripts were legal, both the Cyrillic and the Latin script.
4 And the third question had to do with the delegate system, the
5 formation of the so-called delegate electoral unit for electing the
6 councils of the municipalities and the Assembly, and the republican
7 Assembly had three Chambers: The Chamber of associated labour, which was
8 the largest one with 160 deputies; the Assembly of the municipalities, 90
9 deputies; and the Socio-Political Chamber, which had 90 deputies as well.
10 So none of the amendments of the ones that we mentioned, 29, 31,
11 33, 43, and 47, none of those amendments from the aspects of the
12 Constitutional Court of Yugoslavia were in contravention to the
13 constitution of the Socialist Federal Republic of Yugoslavia.
14 JUDGE ROBINSON: Professor, were you a member of the court that
15 made this decision?
16 THE WITNESS: [Interpretation] Well, you can see that and not see
17 that from this. No, I was not a member of the Constitutional Court at the
18 time, but I was invited to attend the meeting and the public debate as a
19 representative of the scholarly circles, and it is the proponents of the
20 acts that were there and those who were the proponents of the whole matter
21 of constitutionality and on the basis of a report tabled by the judge.
22 MR. MILOSEVIC: [Interpretation]
23 Q. So you were not a judge on the Constitutional Court, but you did
24 take part in its sessions and the public debate waged within the
25 Constitutional Court?
1 A. Yes. I asked to take the floor and expounded my views. And
2 Judge Kristan was a Judge of the Constitutional Court during that period
3 of time.
4 Q. Now, in light of that ruling made by the Constitutional Court, I
5 should like to ask you to comment on the points that I'm going to read out
6 to you, which are the following: From the Kosovo section of the
7 indictment, points 79 and 81, paragraphs 79 and 81.
8 Para 79 reads as follows: "[In English] Simultaneously, within
9 Serbia, calls for bringing Kosovo under stronger Serbian rule intensified
10 and numerous demonstrations addressing this issue were held. On 17
11 November 1988, high-ranking Kosovo Albanian political figures were
12 dismissed from their positions within the provincial leadership and were
13 replaced by appointees loyal to Slobodan Milosevic. In early 1989, the
14 Serbian Assembly proposed amendments to the Constitution of Serbia which
15 would strip Kosovo of most of its autonomous powers, including control of
16 the police, educational and economic policy, and choice of official
17 language, as well as its veto powers over further changes to the
18 Constitution of Serbia. Kosovo Albanians demonstrated in large numbers
19 against the proposed changes. Beginning February 1988 -- 1989 a strike by
20 Kosovo Albanian miners further increased tensions."
21 [Interpretation] And then you have paragraph 81, which states:
22 "[In English] On 23 March 1989, the Assembly of Kosovo met in Pristina
23 and, with the majority of Kosovo Albanian delegates abstaining, voted to
24 accept the proposed amendments to the Constitution. Although lacking the
25 required two-thirds majority in the Assembly, the President of the
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 Assembly nonetheless declared that the amendments had passed. On 28 of
2 March 1989, the Assembly of Serbia voted to approve the constitutional
3 changes, effectively revoking [Realtime transcript read in error
4 "granting"] the autonomy granted in the 1974 constitution."
5 JUDGE ROBINSON: Professor, I'd like you to answer them
6 individually, and the allegation -- first allegation, in 79, is that,
7 "Simultaneously within Serbia calls for bringing Kosovo under stronger
8 Serbian rule intensified and numerous demonstrations addressing this
9 issue ..."
10 THE INTERPRETER: Interpreter's note: It was "... effectively
11 revoking the autonomy granted ..."
12 JUDGE ROBINSON: I'm sorry. I just heard what the interpreter
13 said, but I don't see that in paragraph 79.
14 Do you agree with that allegation? Just very briefly.
15 THE WITNESS: [Interpretation] No, I do not agree, because Kosovo
16 was not placed under Serb authority, Serbian authority. Quite simply, the
17 autonomous province was incorporated into the constitutional order of the
18 Republic of Serbia in view of the fact that in Article 2 of the
19 constitution of the Federal Republic of Yugoslavia said that the provinces
20 were within the frameworks of the Republic of Serbia. So the term
21 "Serbian rule" is much too strong and should not be there.
22 JUDGE ROBINSON: Thank you. I'm proceeding. "On the 17th
23 November, high-ranking Kosovo Albanian political figures were dismissed
24 from their positions within the provincial leadership and were replaced by
25 appointees loyal to Slobodan Milosevic." Can you comment on that? Are
1 you in a position to comment on that as a matter of fact?
2 THE WITNESS: [Interpretation] No, I'm not in a position because I
3 was not involved in politics at the time, and no single name is mentioned
4 here that would enable me to answer.
5 JUDGE ROBINSON: Next allegation is that, "In early 1989, the
6 Serbian Assembly proposed amendments to the constitution of Serbia which
7 would strip Kosovo of most of its autonomous powers, including control of
8 the police, educational and economic policy, choice of official language,
9 as well as its veto powers over further changes to the constitution of
11 What is your comment on that?
12 THE WITNESS: [Interpretation] The only thing that is true in that
13 allegation is that the provinces were deprived of their right to veto.
14 Everything else does not correspond to the actual state, to the truth.
15 JUDGE ROBINSON: Next question is that -- is a question of fact,
16 that "Beginning in February 1989, a strike by Kosovo Albanian miners
17 further increased tensions." Are you in a position to comment on that as
18 a matter of fact?
19 THE WITNESS: [Interpretation] No. For the same reasons, because I
20 was not involved in politics at the time. I simply was a university
21 professor then.
22 JUDGE ROBINSON: And in paragraph 81, the first allegation is
23 that, "On the 23rd of March, 1989, the Assembly of Kosovo met in Pristina,
24 and with the majority of Kosovo Albanian delegates abstaining, voted to
25 accept the proposed amendments to the constitution." Are you in a
1 position to comment on that?
2 THE WITNESS: [Interpretation] Once again, that does not correspond
3 to the truth, because in the decision declaring or proclaiming these
4 amendments, if you happen to have the text of the amendments, you can see
5 that in front of the text of each amendment there is a decision
6 proclaiming amendments 9 to 49 to the constitution of the Serbian
7 constitution. This is the so-called promulgation of the amendments. And
8 in the text it is stated that the amendments are hereby promulgated, and
9 that on the 10th of March, 1989, the Assemblies of provinces in a -- or,
10 rather, the Assembly of Kosovo, in a joint session of all Chambers on the
11 23rd of March 1989 confirmed all of these amendments. Therefore, I cannot
12 conceive a situation in which in one of official Gazettes a lie of this
13 nature would be published.
14 THE ACCUSED: [Interpretation] Mr. Robinson, I just wanted to
15 remind you that we had a witness here, Mr. Vukasin Jokanovic, who was
16 present there, and we played the tape from that session indicating how
17 many delegates voted and so on. Therefore, this is a flagrant or blatant
19 MR. NICE: [Previous translation continues] ... indictment, if I
20 may so say.
21 JUDGE ROBINSON: That's a comment, Mr. Milosevic, which is not
22 appropriate, neither now nor at any other time.
23 THE ACCUSED: [Interpretation] Very well.
24 MR. MILOSEVIC: [Interpretation]
25 Q. Professor Markovic, did the majority of Albanian delegates really
1 abstain in that session? You probably remember that because you followed
2 the developments.
3 A. Had the majority of them abstained, the amendments could not have
4 been declared because the two-third majority is needed. Therefore, the
5 majority could not have abstained. The majority had to vote in favour,
6 because that was the only mechanism by which the draft amendments could
7 become amendments.
8 Q. Thank you, Professor Markovic. Let us continue. Please tell us
9 in most general terms -- perhaps I should have asked this earlier, because
10 it's a very important question. Therefore, what arguments were used by
11 the Constitutional Commission, in whose work you participated, to propose
12 these amendments, the amendments that we've mentioned, discussed, the ones
13 pertaining to provinces and so on? What were the arguments that guided
14 the commission in making these proposals?
15 A. When it comes to the implementation of the constitution between
16 1974 and 1989, a lot of experience accumulated, and this experience was
17 contained in various papers written by various bodies. Professionals
18 reacted to these papers as did the general public. Therefore, these
19 changes were made on the basis of taking into account all these three
20 sources. Back in 1987, the Presidency of the Republic of Serbia published
21 a paper on the legal position of the Republic of Serbia and autonomous
22 provinces within Serbia. This was the so-called blue paper. This blue
23 paper was never published.
24 I myself received it just prior to this trial. I received the
25 text of that paper thanks to academician Kosta Mihailovic.
1 In addition to that, there were various scholarly gatherings. One
2 of them was in its nature of Yugoslav orientation, and there were
3 representatives of Albanians there, Croatia, Macedonia. So there were
4 Croatians and Macedonians there. And only Slovenes did not attend. So
5 except for Slovenes, the entire ethnic composition of Yugoslavia was
6 represented there.
7 I have attached this book. There is no need to translate it. It
8 is clear that this entire book is devoted to this issue, and it shows that
9 the position of scholars was unanimous, namely, that the then-position of
10 Serbia was unbearable because it was a constitutional nonsense. Serbia
11 had a rival within its frame work. There was rivalry relations between
12 the republic and the provinces. In addition to that, there was also the
13 public which carried on its soldiers these changes, especially amendment
14 47, which was a consequence of this spontaneous, spontaneous national
15 dissatisfaction with this absurd situation in which the republic could not
16 change its constitution without prior approval from the provinces within
17 its framework. So this is what inspired the Constitutional Commission
18 when it regulated this situation through amendments.
19 Q. Professor, please tell us, this consent of the provinces, was it
20 regulated by the federal constitution?
21 A. By no means. The federal constitution never required Serbia to
22 obtain this prior consent of provinces, this 1974 constitution. And such
23 a provision is not contained in any other constitutions throughout the
25 Q. You mentioned this blue paper earlier.
1 THE ACCUSED: [Interpretation] Gentlemen, you can find it in tab 6.
2 MR. MILOSEVIC: [Interpretation]
3 Q. I'll not continue -- I will not quote from this, but this is a
4 paper that was written by the leadership of Serbia.
5 Professor, I will read a small passage from page 172, which
6 states: "In view of the express tendencies --"
7 JUDGE ROBINSON: Mr. Milosevic, this is not translated.
8 MR. NICE: It's also I think a duplicate for D266, tab 3. And
9 that, I think, is now translated into English, so that there's a problem
10 of --
11 JUDGE ROBINSON: We have it, yes. Yes, we have D266, tab 3,
12 translated, the blue book, yes.
13 MR. MILOSEVIC: [Interpretation]
14 Q. I will quote just a brief passage from page 172, if you have it in
15 front of you.
16 THE INTERPRETER: Interpreter's note: Could Mr. Milosevic specify
17 whether this is tab 6 or the blue book.
18 JUDGE ROBINSON: Mr. Milosevic, you must manage your case in the
19 interest of an efficient proceeding. What you're quoting from, is it the
20 same thing as the blue book which we now have in tab 266?
21 MR. NICE: I think probably it is -- sorry to cut across, Your
22 Honour -- and I suspect if the accused wants to quote from page 172, of
23 tab 6 in the English version document which you've just found, that's
24 likely to be at page 41, because it's the end of the document and I can
25 see on page 172 a figure 5 and figure 5 kicks off page 41 in the version
1 we've got.
2 JUDGE ROBINSON: Yes. Mr. Milosevic, it is not only discourteous
3 but it is a waste of time to conduct the proceedings in this way. It is
4 not a private dialogue between yourself and the witness. Before you
5 proceed, you must ensure that the Chamber has before it the evidence to
6 which you are referring. That's how it was done in the courts in which I
7 appeared in
8 Jamaica, otherwise you cannot proceed.
9 You must ensure that we have in front of us the specific document
10 that you're referring to. It's not for the Prosecutor to do your work.
11 Now, what are you referring to?
12 THE ACCUSED: [Interpretation] Mr. Robinson, I have to say to you
13 that I don't have the English translation at all. I expected that it
14 would be given to you, but I did not receive it because the Court recess
15 lasted too long, the recess for those officials of the court which are
16 supposed to do the translation. I assumed, in fact, that there was no
17 English translation at all, so I planned to read out a small portion in
18 Serbian so that the interpreters could interpret that. I'm not reading
19 the entire book, just a small passage, a short passage. And as far as I
20 understood it, you frequently tolerated that practice by which a small
21 passage was being read out, not previously translated, but it was accepted
22 providing that the text was put on the ELMO.
23 JUDGE ROBINSON: Yes. Let it be put on the ELMO.
24 THE INTERPRETER: Interpreters have found the passage.
25 MR. MILOSEVIC: [Interpretation]
1 Q. Professor, would you please put page 172 on the ELMO.
2 A. The English text?
3 Q. No, the Serbian version, page 172. It is stated here: "In view
4 of the strong tendencies to weaken the integrity of the republic as a
5 whole and an increasing differentiation of the three separate areas badly
6 interconnected or linked only for form sake, the question begins to arise
7 as to whether the Serbian people on an equal footing with the other
8 peoples of Yugoslavia are exercising their historical right to a national
9 state within the Yugoslav federation which is based on the principle of
10 national self-determination. In addition, the problem of a lack of
11 definition of the so-called central area in this socio-political and other
12 sense is increasingly present, which, given the existing institutional
13 solutions, leads to politically -- political inequality of working people
14 and citizens from the central area of the republic and those from the
15 territory of the socialist autonomous provinces."
16 Therefore, this is what was being stated in the 1970s in this
17 voluminous material, and I selected only one quotation from that material.
18 Professor, I selected this particular passage in order to compare
19 it, this tab from tab 6, with the passage from tab 35, which, gentlemen,
20 is in English. You have it in front of you under tab 35. It's the Basic
21 Positions Concerning the Reform of the Political System. Belgrade, July
22 22, 1989. The author of this document is the Commission of the Presidency
23 of the Republic of Serbia for the Question on the Political Reform.
24 I will now quote only item 6 from the English text, which
25 corresponds to the passage that I just read out, the one dating back to
1 the 1970s. I hope you can find it, Professor.
2 "[In English] The Autonomous Provinces."
3 JUDGE ROBINSON: Just a second. Item 6?
4 THE ACCUSED: [Interpretation] Page 14. Page 14.
5 JUDGE ROBINSON: Yes. Yes, we have found it.
6 THE ACCUSED: [Interpretation] Page 14, item 6: "[In English] The
7 position and functions of autonomous provinces, as particular
8 socio-political communities and forms of political-territorial autonomy,
9 should be based on their specific -- on their specific features concerning
10 their national structures and other socio-economic, historical and
11 cultural characteristics. They cannot have the features which are
12 appropriate for republics as state communities. Their rights in the field
13 of the way of incorporation and representation in the organs of the
14 federation should be determined by the Constitution of SFRY."
15 [Interpretation] Constitution of the SFRY.
16 MR. MILOSEVIC: [Interpretation]
17 Q. Therefore, Professor, you have the quotation that I just read out
18 to you from the 1970s. And then we have item 6 written in 1989. Are
19 these conclusions similar or is the later one drafted in stronger terms or
20 is more moderate? What can you say upon comparing this? Are you familiar
21 with both of these texts?
22 A. Yes, I'm familiar with both of them. And even if I were not, you
23 just read out to me, so I would be.
24 The qualification given in the blue paper is much stronger, and
25 that qualification was printed in 1977, because this in its draft form was
1 completed in 1977.
2 The blue book specifies that this weakening of unity in Serbia and
3 differentiation of Serbia into three separate territories is what opened
4 the issue of exercising the right of the Serbian people to
5 self-determination within the Yugoslav federation, which was envisaged as
6 a right to self-determination of people on -- who have an equal footing,
7 whereas this other document claims that provinces cannot be equal to the
8 states. They cannot have the attributes of the states. So therefore,
9 they are deprived of these statehood attributes.
10 JUDGE KWON: Professor Markovic, I wonder whether you are in the
11 position to tell us what this document, later document, is about, or tab
12 35. It is written in English. It is the -- whether it is the original
13 document, whether it is prepared in English, and for what.
14 THE WITNESS: [Interpretation] I'm sorry. What is tab 35? What is
15 this document exactly?
16 MR. MILOSEVIC: [Interpretation]
17 Q. The other document I quoted from page 14.
18 A. Thank you. Thank you. Now I have it. This is an official
19 document which was prepared by the Commission for the Reform of the
20 Political System, which was established yet again by the Presidency of the
21 Socialist Republic of Serbia. The chairman of that commission was the
22 present-day president of the Constitutional Court of Serbia, Mr. Slobodan
23 Vucetic, and I was a member of that commission, one of the members of that
25 JUDGE KWON: My question was whether it was written in English in
1 its original form or whether this is a translation of the commission's
3 THE WITNESS: [Interpretation] I beg your pardon. This is a
4 translation from the Serbian language into the English language. So it is
5 a translation.
6 JUDGE KWON: Thank you.
7 MR. MILOSEVIC: [Interpretation]
8 Q. Tell me, Professor, what was the point and the motive, and what
9 were the goals of all these amendments that you were explaining until now?
10 What was the commission guided by when drafting the amendments that had to
11 do with the position of the autonomous provinces?
12 A. Well, the commission was guided by constitutional practice first
13 and foremost. In constitutional practice, there were certain deformities.
14 Constitutional principles were deformed in the following way: The
15 Republic of Serbia as a state was reduced only to Serbia proper, that is
16 to say the area outside the areas of the autonomous provinces, and the
17 provinces were gradually growing into states.
18 In the constitution of Serbia and, generally speaking, in the
19 world, the point of an autonomy is to express specific characteristics
20 where the population of a certain territory is different from the
21 majority. Then they can express that difference in that way. The point
22 of an autonomy is not to establish statehood.
23 In practice, both autonomous provinces, not only Kosovo but
24 Vojvodina, too -- as a matter of fact, Vojvodina was even more prominent
25 in this kind of practice. They behaved like quasi-states, and they were
1 building their statehood. For example, they passed laws that were
2 completely identical to those passed by the Republic of Serbia. So in
3 order to have the status of a state, the province simply copied the laws
4 of the republic and thereby gained statehood.
5 The Republic of Serbia was reduced to a secondary role as a state,
6 but the provinces in their own territories were real state and rival
7 states to the Republic of Serbia.
8 Proceeding from this knowledge and this kind of practice which I
9 believe was most studiously analysed in this blue book, it is very well
10 documented. It's a pity that the analysis stopped at 1977. Had this
11 analysis had gone on until 1989, I think it would have been even more
12 clear and evident that the amendments to the constitution of Serbia in
13 1989 were an inevitability, that not a single federal organ said that they
14 were in contravention of the constitution of the Republic of Yugoslavia.
15 I quoted the ruling of the Constitutional Court, but then also there is an
16 explicit conclusion passed by the Assembly of the SFRY that it passed at a
17 joint session of the federal Chamber and the Chamber of republics and
18 provinces on the 1st of March, 1989, and this is included in the exhibits,
19 I just don't know the exact number.
20 Q. Yes, yes. That is not being challenged. That is tab 38. Just
21 one moment, please. Unfortunately, I haven't got a translation here. I
22 hope you do have it. This was given over a month ago.
23 A. Does it exist in English?
24 JUDGE ROBINSON: In English, yes.
25 THE WITNESS: [Interpretation] Then point 10 says: "The Assembly
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 of the SFRY points out that the amendments to the constitution of the SFRY
2 were introduced with the aim of enabling reforms of the economic and
3 political system, and in this way the basic principles of the constitution
4 of the SFRY of 1974 have not been changed."
5 But further on: "The Assembly of the SFRY considers that the
6 adopted amendments on the constitution of the Republic of Serbia by the
7 Serbian Assembly secures the necessary unity of all socialist
8 self-management forces in the Republic of Serbia and are in line with the
9 positions of the 13th Congress of the League of Communists of Yugoslavia."
10 These amendments are of significance not only for the Republic of
11 Serbia and the socialist autonomous provinces but also for the realisation
12 of the constitutional conception of the Yugoslav federation. They are
13 also significant for the stability of the whole country and they do not
14 change the constitutional order established by the constitution of the
15 SFRY of 1974.
16 So this was established by the federal parliament at the joint
17 session of both Chambers, both houses, that is to say the federal Chamber
18 and the Chamber of Republics and provinces.
19 MR. MILOSEVIC: [Interpretation]
20 Q. Professor Markovic, you did not quote the last sentence.
21 JUDGE BONOMY: One moment, please. We are looking at the same
22 document, I think. This is the one that starts off with the words, "In
23 order to preserve the constitutional and public order, personal and social
24 security and property rights and to secure the quickest possible
25 normalisation of the worsening state of affairs in the autonomous province
1 of Kosovo..." is that right? Is that the same document?
2 THE WITNESS: [Interpretation] Yes, yes, yes. That's the document
3 that is being discussed. Yes, yes, you're right.
4 MR. MILOSEVIC: [Interpretation]
5 Q. And then it says further on that the Assembly of the SFRY, and so
6 on and so forth, on the 1st of March, 1989, adopted the following
7 conclusions, so these are the conclusions of the Assembly of the SFRY, and
8 then there is this paragraph 10 that you quoted a moment ago. It has yet
9 another sentence that says in order to have unity within the Republic of
10 Serbia, this procedure should be completed as soon as possible in the
11 Republic of Serbia. So this is the 3rd of March, 1989.
12 On the 23rd, the Assembly of Kosovo was in session, and it agreed
13 to the amendments of the Republic of Serbia, and on the 28th, the
14 republican Assembly of Serbia had its session.
15 Was that the chronology involved?
16 A. Yes, that is the chronology involved, yes.
17 Q. You mentioned the blue book. You told us how this was regulated,
18 and we saw it. Later on, you became a professor, but do you remember or
19 did you have in your hands the annals of the faculty of law of the
20 University of Belgrade that dealt with these constitutional issues in
21 Serbia and in Yugoslavia?
22 A. Yes. At the time, I was not teaching at the faculty of law. This
23 is 1971. At that time, I worked in the institute for comparative law.
24 This entire issue of the annals of the faculty of law at Belgrade,
25 which is the newsletter of the faculty of law in Belgrade was dedicated to
1 the constitutional amendments of 1971 in relation to the constitution of
2 the SFRY in 1963.
3 This strongly criticised the position of the autonomous provinces
4 at the time. And also Josip Broz Tito was harshly criticised. That is
5 why these amendments were banned.
6 Q. Not amendments, annals.
7 A. Yes, sorry. Annals were banned.
8 Professor Mihailo Djuric, one of the participants in all of this,
9 was sentenced to a term in prison and he actually served this term. And
10 about five professors from this list who took part in this --
11 Q. That will do. That will do.
12 A. They were expelled from the university and they were no longer
13 allowed to teach.
14 Q. Professor Markovic, now when we go back to this -- to these
15 constitutional amendments that have to do with the provinces, did these
16 amendments abolish the autonomy of the province?
17 A. I think there is no point of putting that kind of question,
18 because on the basis of everything I've said so far, the province simply
19 returned to its normal constitutional framework, and this framework was
20 provided in Article 4 of the constitution of the SFRY. So it decides on
21 its own on questions that are within its jurisdiction, but it cannot
22 decide on questions that are characteristic for the Republic of Serbia.
23 That is not autonomy then. Then it's hegemony. An autonomous province
24 has to be an autonomous unit, not to exercise power over a state to which
25 it belongs.
1 Q. Thank you. Did these amendments reduce the rights of Albanians in
2 any way?
3 A. I could never put it that way. There is just one thing I note,
4 and that is that the question of Kosovo and Metohija -- rather, Kosovo as
5 it was called at the time, is being equated to the Albanian question.
6 Kosovo and Metohija is not an autonomous province because the majority
7 population in this territory is Albanian, but because there are
8 historical, economic, and geographic and ethnic specificities involved.
9 So that is -- it is not right to equate the two, the position of Albanians
10 and the status of the autonomous province of Kosovo.
11 JUDGE ROBINSON: Mr. Milosevic, it's time for the break. Can you
12 tell us how much longer you will be in chief with the professor?
13 THE ACCUSED: [Interpretation] Well, I expected to be able to move
14 faster, but I will need more time. I have a large group of questions that
15 I've heralded. That's the third group. I'll try to deal with this as
16 soon as possible, but at any rate, I will not be able to finish the
17 examination-in-chief today. That is quite impossible.
18 JUDGE ROBINSON: We will rise for 20 minutes.
19 --- Recess taken at 12.18 p.m.
20 --- On resuming at 12.41 p.m.
21 JUDGE ROBINSON: Please continue, Mr. Milosevic.
22 MR. MILOSEVIC: [Interpretation]
23 Q. Professor Markovic, what you said just now in relation to
24 autonomy, does it express what we quoted from tab 35, from paragraph
25 6: "[In English] ... autonomous provinces as socio-political communities
1 and forms of political-territorial autonomy, should be based on their
2 specific features concerning their national structures and other
3 socio-economic, historical and cultural characteristics"?
4 So wasn't it clear that it was not the autonomy of Albanians that
5 was involved but in view of the special characteristics of the cultural
6 and historical heritage of the province?
7 MR. NICE: Leading question and it appears to be a matter in
8 issue. It shouldn't be asked in that form.
9 JUDGE ROBINSON: Yes, Mr. Milosevic. I have already indicated
10 that most frequently when you begin your question "Isn't it clear that..."
11 you're going to lead.
12 THE ACCUSED: [Interpretation] All right. I'll rephrase my
14 MR. MILOSEVIC: [Interpretation]
15 Q. What was the feeling among the Albanians in relation to the
16 autonomy of Kosovo and Metohija?
17 A. Well, not all Albanians but part of the Albanians felt that the
18 constitutional amendments were a kind of deprivation, if I can put it that
19 way, of some of their autonomous rights. Later on, it became obvious that
20 the ambition of the Albanians was to have the province as an equal to a
21 state so that a province could also realise its right to secession. Had
22 it not been from -- for the amendments of 1989, it is quite certain that
23 nowadays both Vojvodina and Kosovo would have seceded and Serbia would
24 have been reduced to its territory without the provinces.
25 So that was the point of these amendments. They prevented the
1 secession of these two autonomous provinces, because certainly Vojvodina,
2 as the most developed region in Yugoslavia after Slovenia, would have
3 certainly seceded from Yugoslavia just like Slovenia did had it had the
4 status -- had it had a status that was equal to that of a republic.
5 The ambition of part of the Albanians - I emphasise part of the
6 Albanians, not all the Albanians - was to have a republic of their own,
7 not a province.
8 Q. Tell me, the Constitutional Commission on which you worked, did it
9 also rely on comparative law and models?
10 A. Yes. The Constitutional Commission was guided first and foremost
11 by a theoretical principle of territorial autonomy. One knows what that
12 is in theory. But then also the experience of Italy, the so-called
13 regions of Italy, and also in Spain, the autonomous communities in Spain.
14 It also had some experience from the countries where there are
15 asymmetrical systems, for example, Northern Ireland, then the Faroe
16 Islands, Greenland, the Azores Islands and Madeira, but this was marginal.
17 The main experience was that of Italy and Spain.
18 Q. What about -- or, rather, did the Constitutional Commission bear
19 in mind the reasons why, after the Second World War, the provinces were
20 granted autonomy?
21 A. Yes, the Constitutional Commission did bear those reasons in mind,
22 too. The autonomous provinces came into being in 1945. There was no
23 mention of them in AVNOJ, the Anti-fascist Council of the National
24 Liberation of Yugoslavia, this wartime parliament, this highest authority
25 that was established during the war, and they came into being subsequently
1 as a supplement to the state system of the Republic of Serbia precisely
2 bearing in mind these complex reasons; historical, geographical, economic,
3 and also the fact that the population was multi-ethnic in Kosmet or,
4 rather, Kosovo and Metohija, and in Vojvodina, too. Except that what is
5 characteristic for Vojvodina is that there is a multitude of different
6 ethnic communities as opposed to Kosovo. In Vojvodina, I believe there
7 are about 26 different ethnic communities, whereas in Kosovo the number of
8 these ethnic communities is less than 10.
9 Q. As far as you know, what was the reaction in Kosovo and Vojvodina
10 to the constitutional amendments? Were there any different reactions in
11 these two provinces, and what is your interpretation of that?
12 A. There were different reactions. In Vojvodina, these amendments
13 were received well, because in Vojvodina there had already been a settling
14 of political accounts with a political stream that was more vociferous - I
15 repeat that - than the Kosovo and Metohija Albanians. They were far more
16 vociferous and persistent and louder in asking for greater rights. That
17 is to say, the political establishment in Vojvodina was more vociferous
18 than the political establishment of Kosovo.
19 In Vojvodina, these amendments were received well, but of course
20 as far as the separatists in Kosovo and Metohija are concerned, those who
21 wanted more than autonomous provinces, they were not happy with the
23 I keep repeating this, but it was becoming increasingly obvious
24 that the Albanians of Kosovo and Metohija almost wanted Kosovo and
25 Metohija to be a state.
1 Q. And are you aware of the constitutional declaration which the
2 Albanian delegates or, rather, part of the Albanian delegates in the
3 parliament of Kosovo proclaimed a Republic of Kosovo?
4 A. Yes. This was also debated by the Constitutional Court of
5 Yugoslavia. This was a constitutional declaration which precisely
6 realises this aspiration of the Albanians to become -- to have Kosovo
7 become a republic. That is what it's called, a constitutional declaration
8 on Kosovo as an autonomous and independent part of the federation equal to
9 others in the federation or confederation.
10 So this is this old dream of the Albanians from Kosovo and
11 Metohija that Kosovo and Metohija should be the same as any other federal
12 unit rather than being less than a republic.
13 Q. What was the reaction of the Constitutional Court of this
14 declaration promulgating Kosovo as a republic? That is tab 32. There is
15 a decision on the constitutionality of the constitutional declaration on
16 Kosovo as an independent and equal unit within the federation,
17 confederation of Yugoslavia as an equitable entity with all other units in
18 the federation, confederation.
19 The text shows that it was the Constitutional Court itself that
20 started the proceedings.
21 A. Yes, ex officio. This is one of the possibilities provided for by
22 the constitution for starting proceedings before the Constitutional Court.
23 The finding of the Constitutional Court was that the entire declaration
24 was anti-constitutional. The Constitutional Court resorted to the
25 following arguments: The first argument is that on the basis of the
1 declaration, there is self-determination on the part of someone who does
2 not have the right.
3 MR. NICE: [Previous translation continues] ... English
4 translation of this one yet available. I've just been checking. And the
5 Court has allowed a number of exhibits to be dealt with without formally
6 producing them. I have no objection to their production, but it may be
7 prudent to mark the ones that the accused has dealt with over the last few
8 minutes of testimony. I think there are about three or four. But this
9 one, if there is no translation, perhaps should be --
10 Before I sit down, it may be that we can help with this one,
11 because it may be that Exhibit -- Prosecution Exhibit 526, tab 22, is the
12 same document. We need to dig it out.
13 MR. KAY: That's the decision, is 526, tab 22.
14 MR. NICE: Thank you.
15 THE ACCUSED: [Interpretation] That's precisely what I wanted to
16 tell you. That is tab 22, 526, which was just mentioned by Mr. Nice, and
17 you have the translation of it there.
18 JUDGE ROBINSON: Mr. Milosevic, you should have brought that to
19 our attention before leading evidence on it.
20 Okay. Proceed, Mr. Milosevic.
21 THE ACCUSED: [Interpretation] Very well.
22 MR. NICE: English one for the overhead projector, which we
23 managed to dig out.
24 JUDGE ROBINSON: Mr. Milosevic, perhaps we should just deal with
25 three exhibits now, three documents. Tab -- tab 6, tab 35, and tab 38.
1 THE ACCUSED: [Interpretation] Tab 34.
2 JUDGE ROBINSON: It's not 35?
3 MR. KAY: It's 35.
4 JUDGE ROBINSON: 35, 35. That's tab 6 --
5 THE ACCUSED: [Interpretation] 6, 35 -- yes, you had them all, all
6 the translations. And I quoted those three tabs, so I'd like to tender
7 them into evidence.
8 JUDGE ROBINSON: Tab 6 is actually Defence Exhibit 266, tab 3,
10 So we have the English translation on the ELMO. Proceed,
11 Mr. Milosevic.
12 THE ACCUSED: [Interpretation] It's 526, tab 22, the decision on
13 assessing the constitutionality of the constitutional declaration
14 proclaiming Kosovo a federal unit.
15 MR. MILOSEVIC: [Interpretation]
16 Q. Paragraph 4 of point 3 I'd like to refer to now, please. "The
17 Constitutional Court of Yugoslavia, stemming from the above-mentioned..."
18 and it goes on to stipulate the provisions. Says that the declaration is
19 not in conformity with the SFRY constitution. This decision by the
20 Constitutional Court is based on the fact that according to the provisions
21 mentioned, the socialist republics are states based on the sovereignty of
22 nations, whereas the autonomous provinces of Vojvodina and Kosovo are
23 autonomous socio-political communities within the composition of the
24 Socialist Republic of Serbia. That means that pursuant to the SFRY
25 constitution, the autonomous provinces of Vojvodina and Kosovo are not
1 federal units as are the republics but they are autonomous socio-political
2 communities within the composition of the Republic of Serbia. The
3 position of the autonomous provinces is determined by the SFRY
4 constitution and the Serbian constitution with -- and people within their
5 composition and cannot be amended without changes to the constitution of
6 the SFRY and the Serbian constitution. A change in the character of the
7 autonomous provinces or, rather, the proclamation of the autonomous
8 province of Kosovo as an autonomous and independent unit with other
9 republics within the frameworks of the SFRY would mean an amendment to the
10 composition of the SFRY as a federation made up of the socialist republics
11 as states and federal units and the autonomous provinces of Vojvodina and
12 Kosovo as autonomous provinces, socio-political provinces within Serbia.
13 That is why it is the opinion of the Constitutional Court of Yugoslavia
14 that the Assembly of Kosovo could not be changed in character.
15 MR. NICE: This is going too fast for the interpreters.
16 THE INTERPRETER: Yes, indeed. Thank you.
17 MR. NICE: It's certainly going too fast for me. And having
18 managed to find the English translation of the document for the accused he
19 then started reading at a fast rate and I'm not sure it is the passage on
20 the screen. If it is, I haven't managed to track it down.
21 JUDGE ROBINSON: It does not appear to be the same passage.
22 MR. NICE: So the whole exercise is, despite our assisting him
23 where we can, rendered pretty well valueless because although there may be
24 those who can consume information at the speed that the accused was
25 reading, I'm not one of them. He might as well get used to that.
1 And as a matter of court etiquette, and I know that the accused is
2 anxious to acquire that, if a document is being displayed, it's as well to
3 check that those who have an interest in reading it are able to follow it
4 before you start reading it out.
5 Perhaps we can -- I think it's probably on the following page, but
6 the accused will have to identify the passage again.
7 JUDGE ROBINSON: Thank you, Mr. Nice. Place the following page on
8 the ELMO and let us see whether we can have a correspondence between what
9 Mr. Milosevic is reading and what is on the ELMO.
10 THE ACCUSED: [Interpretation] Mr. Robinson, I said it was
11 paragraph 4 of point 3. So it's point 3, paragraph 4 that I was quoting
13 JUDGE ROBINSON: Yes. I think we might have been shown
14 paragraph 3.
15 THE ACCUSED: [Interpretation] No, point 3 has four paragraphs.
16 The fourth paragraph starts with the following words: "The Constitutional
17 Court of Yugoslavia, stemming from the..." et cetera, et cetera, "states
18 that the declaration is not in conformity with the SFRY constitution."
19 Proceeding from the above provisions of the constitution of the SFRY.
20 JUDGE ROBINSON: Yes, we have it now.
21 THE INTERPRETER: Could the usher raise the piece of paper,
23 MR. MILOSEVIC: [Interpretation]
24 Q. "The Constitutional Court of Yugoslavia bases this assessment on
25 the fact that according to the above provisions of the constitution of the
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 SFRY, the socialist republics of the state are founded on the sovereignty
2 of the peoples while the SAP of Vojvodina and the SAP of Kosovo are
3 autonomous socio-political communities within the composition of the SR of
4 Serbia. This means that according to the constitution of the SFRY, the
5 SAP of Vojvodina and of Kosovo are not federal units like the republics,
6 but are autonomous --"
7 THE INTERPRETER: It's gone off the page.
8 MR. MILOSEVIC: [Interpretation]
9 Q. "The position of the autonomous provinces established under the
10 constitution of the SFRY and the constitution of the Socialist Republic of
11 Serbia of which they are a part and so their position cannot be altered
12 without amending the constitution of the SFRY and the constitution of the
13 SR of Serbia. Altering the character of the autonomous provinces, that is
14 proclaiming the SAP of Kosovo an independent unit equal to the other
15 republics in the framework of the SFRY, would mean altering the
16 composition of the SFRY as a federation, which is comprised of the
17 socialist republics as states and federal units ..."
18 JUDGE ROBINSON: You have to move it up, please. That's as far as
19 it goes? Oh, I see.
20 MR. MILOSEVIC: [Interpretation]
21 Q. "And Vojvodina and Kosovo as autonomous political communities
22 within the framework of Serbia. For this reason, the Constitutional Court
23 of Yugoslavia considers that the Assembly of SAO Kosovo could not
24 change --"
25 THE INTERPRETER: I'm sorry, it's not the portion on the screen.
1 MR. MILOSEVIC: [Interpretation]
2 Q. And now two paragraphs lower down: "The Constitutional Court
3 considers that it is not in accordance --"
4 MR. NICE: It's the lower half of the previous page, I think, and
5 I simply have to observe still that for consumption of this on a way
6 that's going to be able to make sense, the reading speed is very fast and
7 may be for the interpreters.
8 JUDGE ROBINSON: Mr. Milosevic, are you in a position simply to
9 summarise what the decision says rather than to read it? We have most of
10 it anyhow. What is the question that you want to put to the witness in
11 relation to these passages?
12 MR. MILOSEVIC: [Interpretation]
13 Q. It is this: How and on what basis, on what grounds did the
14 Constitutional Court of Yugoslavia react to this declaration on the
15 independence of Kosovo?
16 A. The Constitutional Court considered that there were four reasons
17 for the unconstitutionality of this declaration. The first reason was
18 that there was self-determination on the part of somebody who does not
19 enjoy that right pursuant to the constitution, who himself has given him
20 that right and the properties that it does not have under the 1974
21 Yugoslav constitution. And that is something that is mentioned in points
22 1 and 2 of this constitutional declaration.
23 The second reason is that the Albanians, in point 3 of this
24 declaration, themselves attribute to themselves an ethnical property they
25 do not possess. From a national minority, they are promoting themselves
1 into a nation, although the 1974 constitution does not enumerate national
2 minorities in Yugoslavia, nevertheless Article 269 of that same
3 constitution, para 2, states the following: It says that the Albanians
4 are a national minority, or narodnost, and this is what it says: "[In
5 English] And the enactments shall be promulgated in the Official Gazette
6 of the Socialist Republic of Yugoslavia as authentic text in the languages
7 of the Albanian and Hungarian nationalities also."
8 [Interpretation] From that we can see that the Albanians were a
9 nationality, and the term "nationality" is synonymous for national
10 minority pursuant to this constitution.
11 The third reason is as follows. In point 4 of this constitutional
12 declaration, lack of recognition of the constitution of the Republic of
13 Serbia is expressed because the amendments in 1989 are a component part of
14 the constitution of the Republic of Serbia, and it is stated there that
15 Albanian minority is not recognised.
16 And point 5 is that the status of the autonomous province is being
17 changed. From an autonomous unit it is becoming a federal unit. And
18 the name "autonomous province" is even being amended. It will no longer
19 be referred to as the SAP of Kosovo, that is to say the socialist
20 autonomous province of Kosovo, but will quite simply be referred to as
21 Kosovo, its geographic name, thereby changing the constitutional name of
22 that autonomous unit.
23 Those are four reasons for which the Constitutional Court
24 considered that this declaration was contrary to the constitution and it
25 was declared null and void. The Constitutional Court annulled the
2 Q. Do you know anything about the Kacanik constitution, as it was
3 called, and how it came about, who enacted it? You have the text in tab
4 33 in English.
5 A. The Kacanik constitution is a constitution enacted by an illegal
6 Assembly, if it was an Assembly at all, and it was a forerunner to the
7 constitution of the Republic of Serbia. It came before. And it was just
8 passed by the Albanian delegates or deputies. And you can see this from
9 the constitutional declaration, because underneath the constitutional
10 declaration, if you have it before you, there are 111 signatories. All
11 111 signatories were Albanians. There is not a single representative of
12 any other national community. So they were exclusively Albanians who
13 signed this constitutional declaration, and nobody else, as if Kosovo was
14 just populated by Albanians and no other ethnic group at all in Kosovo.
15 And the same thing applies to the Kacanik constitution, which was
16 passed only by the Albanians. That that is so you can see in the preamble
17 to the Kacanik constitution. In the preamble, if you have the preamble
18 before you, you will be able to see the following. It is paragraph 8 of
19 the preamble of the Kacanik constitution.
20 THE INTERPRETER: Microphone for the speaker, please.
21 MR. MILOSEVIC: [Interpretation]
22 Q. In the middle of paragraph 8, it says, "The Albanian people of the
23 Republic of Kosovo."
24 A. Yes. The Albanian people of the Republic of Kosovo were the
25 enactors of the Kacanik constitution. So they were a people and not a
1 representative body of the -- all the national communities living in
2 Kosovo. So this constitution came in before the 28th of September, 1990
3 constitution of Serbia was enacted.
4 Q. Very well. Thank you.
5 THE ACCUSED: [Interpretation] Now, Mr. Robinson, in tab 32 we have
6 the decision by the Constitutional Court that we quoted a moment ago, and
7 I would like to tender it into evidence as an exhibit, please.
8 JUDGE KWON: It's admitted already, so it's of no use to admit it
10 THE ACCUSED: [Interpretation] Very well. Very well.
11 MR. MILOSEVIC: [Interpretation]
12 Q. Professor Markovic, the autonomous provinces, did they ever enjoy
13 the status of a federal unit, including in the 1974 constitution itself,
14 ever? So I'm drawing your attention now to tab 15 where you have the
15 constitution of Yugoslavia, the 1974 constitution. Did the autonomous
16 provinces ever have the status of federal unit, even under the 1974
17 constitution? And you have Articles 2, 3 and 4 to refer to.
18 A. The provinces never in the constitutional development of federal
19 Yugoslavia enjoyed the status of a federal unit, beginning with 1945 when
20 they came into being, when they were established, right up until the
21 present day, they had the status of autonomous units within the
22 composition of the federal unit, which was Serbia. And that the
23 autonomous provinces do not have the status of a federal unit you were
24 able to see from a moment ago from what you read from the decision of the
25 Constitutional Court of Yugoslavia.
1 Let me just mention the relevant sentence. The Constitutional
2 Court of Yugoslavia states that pursuant to the constitution of the SFRY,
3 the SAP of Vojvodina and Kosovo were not federal units like the republics
4 are but they are autonomous socio-political communities within the
5 framework of the Socialist Republic of Serbia. That is spelt out. So the
6 Constitutional Court has there explained the constitution.
7 JUDGE ROBINSON: On this point, the question that you asked about
8 whether they had the status of a federal unit, does the indictment
9 actually aver that they had such a status?
10 Perhaps Mr. Nice can --
11 MR. NICE: Perhaps he can, perhaps he can't put his finger on it.
12 I don't think it's a material issue for the moment, but I'll check the
13 indictments and look more carefully.
14 JUDGE ROBINSON: I just wondered if the question and the answer --
15 MR. NICE: The question is whether the whole issue is really that
16 relevant, but it seems in the setting of the general discussion the
17 witness is advancing about the withdrawal of autonomy, it may be material
18 for us to look at and I shall intend to look at what the 1974 constitution
19 says about the status of these autonomous provinces. Indeed, I notice
20 that the last answer of the witness may not in fact have been responsive
21 to the question. We will have to wait and see.
22 JUDGE ROBINSON: Mr. Nice, since you are on your feet, I'll just
23 address this question. I don't intend to prompt a procedural debate. I
24 mentioned to you earlier, Mr. Nice, that the Chamber was minded to allow
25 you to call Dr. Kristan as a fact witness, and it was occurring to us that
1 it would be useful for his evidence to be presented now, while the whole
2 matter is fresh in the minds of the Chamber.
3 A few questions would arise from that. One is whether you would
4 wish to do that; and secondly, whether the accused would agree to that
5 sort of interposition in the middle of his case.
6 MR. NICE: Your Honour, I think I can say that I would favour
7 calling Dr. Kristan immediately, if he's available, and I have been in
8 contact with him in writing over the last day or so, so he may be
9 available. I think it unlikely that the accused would venture any
10 complaint, because as I recall, in the course of his questioning of
11 Dr. Kristan, when the rulings were made about the scope of the witness's
12 evidence, the accused said something then about being anxious to ask him
13 all the questions he could about all topics. So speaking from memory, but
14 something to that effect.
15 I'll check the indictments, by the way.
16 JUDGE ROBINSON: Let me hear from Mr. Milosevic and then from
17 Mr. Kay whether you would be disposed, Mr. Milosevic, to having the Court
18 hear Dr. Kristan. This will, of course, be an interruption of the flow of
19 your evidence.
20 THE ACCUSED: [Interpretation] I did not quite understand. In what
21 capacity, as he already has testified. So is he supposed now to come and
22 give evidence about matters that he did not give evidence the last time he
23 was here?
24 JUDGE ROBINSON: As a fact witness. As a fact witness, in the
25 same way that the professor is testifying as a fact witness, even though
1 he was a member of the Court. And the Court considers it would be
2 convenient to hear his testimony so that we will have the whole issue
3 presented before us. So the question I'm asking is whether you would --
4 whether you would be disposed to having him interposed at this stage in
5 the middle of your case.
6 I should say that under Rule 85, which sets out the sequence for
7 the presentation of evidence, the Chamber does have a residual power to
8 vary the sequence, but we wouldn't do that unless the accused,
9 Mr. Milosevic, was in agreement with it.
10 THE ACCUSED: [Interpretation] You can do whatever you please, but
11 I'm drawing your attention to the fact that Professor Markovic testified
12 and that we admitted into evidence the decisions of the Constitutional
13 Court. So therefore, I don't understand what is Kristan supposed to
14 testify about? To say that these decisions had never in fact been passed?
15 I mean, what's the point of his testimony? The decisions of the
16 Constitutional Court are official documents.
17 JUDGE ROBINSON: You remember that there was a range of issues in
18 relation to which the Chamber did not allow Dr. Kristan to testify on the
19 basis that he was a member of the court, and I think it is in relation to
20 those matters that the Prosecution would wish to hear him as a witness of
21 fact, not as an expert.
22 But, Mr. Kay, let me hear from you very quickly on it.
23 MR. KAY: It was the amicus curiae who took the objection to him
24 being used as an expert witness when he had been a participant in the
25 court decisions, but it was always left open by the Trial Chamber to the
1 Prosecutor to call him as a witness of fact on those matters that he had
2 sat in judgement upon, to give direct evidence, but it was the Prosecution
3 who wanted to call him as expert rather than witness of fact, and they
4 were unable to find any other experts to call before the Court other than
5 him in relation to the evidence that they wished to present. So it was
6 always left open that he could be a witness of fact on these particular
8 If the Court would like to hear his evidence at this stage or at a
9 stage proximate to the evidence of this witness, then the Court has the
10 power to order that. But we would ask that any witness arrangements that
11 the Defence have set up in the interim - I know that there is one
12 particular witness who had a pressing need to be called at a certain
13 period of time - that those needs be accommodated because matters have
14 obviously been set in train.
15 JUDGE ROBINSON: Yes, I'm very sensitive that. That's why I'm
16 putting it to Mr. Milosevic. Let's not spend any more time on this. We
17 can come back to this issue. Mr. Nice?
18 MR. NICE: On another issue, I think the only reference to the
19 status of Kosovo relevant to Your Honour's recent inquiries is probably at
20 paragraph 73 and onwards in the Kosovo indictment, where the general
21 effect of the 1974 constitution is set out in terms Kosovo and Vojvodina
22 were given considerable autonomy, including control of their education
23 systems, judiciary, and police. It goes on to deal with provincial
24 Assemblies and representation elsewhere.
25 The matter is then returned to a little later in reference to the
1 withdrawal, and I've lost it, of that autonomy, but there is no assertion,
2 as far as I can recall and now find of their having any status above that
3 of an autonomous region in the way described in the 1974 constitution.
4 JUDGE ROBINSON: Thank you.
5 MR. KAY: Effective revocation, at paragraph 87, which is probably
6 the issue.
7 THE ACCUSED: [Interpretation] Mr. Robinson.
8 JUDGE ROBINSON: Yes.
9 THE ACCUSED: [Interpretation] I would like to remind you that in
10 count 89, that we -- correction, 79, that we read out just a little ago,
11 it says: "In early 1989 [In English] amendments to the constitution of
12 Serbia which would strip Kosovo of most of its autonomous powers."
13 JUDGE ROBINSON: Yes, but I don't think there is an issue about
15 THE ACCUSED: [Interpretation] I read it out precisely because it
16 is incorrect. It is not disputable that it is mentioned here.
17 May I continue, Mr. Robinson?
18 JUDGE ROBINSON: Yes. Yes.
19 MR. MILOSEVIC: [Interpretation]
20 Q. Professor Markovic, I think that we covered the amendment
21 sufficiently. And very briefly now, what was your role in drafting the
22 1990 Serbian constitution?
23 A. At the time I was a member of the Constitutional Commission, which
24 had many members, and within a coordination group within the
25 Constitutional Commission, which was led by Mr. Vucetic, the current
1 president on the Constitutional Court of Serbia. Therefore, I was one of
2 the members of that smaller body which took part in drafting the
3 constitution, and the smaller body was part of this larger body.
4 Q. So this smaller body drafted the text of the constitution?
5 A. Yes, that's right.
6 Q. What were the main characteristics of this 1990 constitution?
7 A. The main characteristics of this constitution was that it
8 represented a break away from the socialist system and that it inaugurated
9 all the achievement of the democratic constitutionality, the first one
10 among them being the rights of civic rights. The previous constitution,
11 1974, put in the forefront nation, whereas this other constitution put in
12 the forefront citizens, and citizens exercised their rights both directly
13 and through representatives.
14 The other characteristic was the introduction of the civic system
15 and the introduction of the rule of law system. The fourth characteristic
16 was introduction of the division of powers. Up until that time, all the
17 power was concentrated in the hands of the Assembly, whereas now we had
18 three branches of power; the executive, the legislative, and the judicial
20 We also had differentiated types of property in this new
21 constitution, and the state property did not give special protection --
22 did not receive special protection in this constitution as it did in the
23 1974 constitution.
24 The next principle introduced was the principle of local
25 self-government. And in addition, a number of civil and basic rights was
1 introduced. It wasn't an exhaustive list of those rights, because as we
2 know, human rights and freedoms are not a category of constitutional law
3 but of international agreement. So everything that is contained in
4 international agreements are -- was considered to be among the human
5 rights and freedoms included in this constitution.
6 So these would be briefly the characteristics of this 1990
7 constitution, which established a classical system of liberal democracy.
8 They took out the term "socialist" from the name of the state because it
9 showed ideological orientation, and the state was now called the Republic
10 of Serbia. The provinces were also called autonomous provinces, not
11 socialist autonomous provinces. So in an ideological sense, this
12 constitution was completely pure.
13 And this is a very specific legal act which can also be seen on
14 the basis of the fact that, as compared to the previous constitution of
15 Serbia which had over 400 articles - it had precisely 431 articles - this
16 new constitution had only 136 articles. So you can see that it is
17 significantly shorter, and as opposed to the articles in the previous
18 constitution, which were very long and unclear, this new constitution was
19 very concise and legally specific.
20 Q. And what was the position of provinces according to the new
21 constitution? And to expand my question, did this constitution abolish
22 the autonomy of the provinces?
23 A. No, this constitution did not abolish the autonomy of the
24 provinces. However, the autonomous provinces in this constitution
25 represent classical units of territorial autonomy. So they are not a
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 quasi-state as they were in the constitution of 1974, which gave them a
2 status higher than a status of autonomous provinces and reduced the status
3 of Serbia. This new constitution makes them classical units of
4 territorial autonomy, similar to the status given in provinces in Italy
5 and in Spain.
6 Q. And how was the Republic of Serbia defined in that constitution?
7 A. The Republic of Serbia was defined as a civic state, and I will
8 read out the definition of the republic which is given in Article 1. It
9 says: "[In English] A democratic state of all citizens living within it
10 founded upon the freedoms and rights of man and citizen, the rule of law
11 and social justice."
12 [Interpretation] Therefore all class elements are taken out, all
13 national elements --
14 Q. Yes. We don't need to go into details, I just wanted to know how
15 Serbia was defined in that constitution.
16 Professor Markovic, you're also one of the authors of the
17 constitution of the Federal Republic of Yugoslavia from 1992; is that
19 A. Yes, I was a member of the commission which drafted this draft
21 Q. And what was the point of adopting the 1992 constitution? Very
22 briefly, please.
23 A. Just one sentence. The point was to give constitutional and legal
24 framework to what remained of the SFRY. Now we had two republics, Serbia
25 and Montenegro, and another goal was to continue the position of a legal
1 subject of the former SFRY. This is what is stated in the preamble of
2 this constitution. I have the text here, the text of the preamble. In
3 the preamble, it is clearly stated that the Federal Republic of Yugoslavia
4 continues the -- or goes on with the continuity of the SFRY. "[In English]
5 [Previous translation continues] ... of Yugoslavia and association between
6 Serbia and Montenegro." [Interpretation] So based on that, the Assembly
7 adopted this constitution.
8 Q. Very well. In view of these constitutional prerogatives, let us
9 mention that in a number of counts in this so-called indictment - I don't
10 have time to mention all of them - but 22, 23 in the Kosovo section --
11 JUDGE ROBINSON: You erred again.
12 THE ACCUSED: [Interpretation] What's the problem?
13 JUDGE ROBINSON: Reference to the indictment as the "so-called
14 indictment." We've been through that already. It's becoming another
15 tired refrain.
16 THE ACCUSED: [Interpretation] Mr. Robinson, I suppose I have a
17 right to believe that this indictment is a false one.
18 JUDGE ROBINSON: You have already challenged the indictment, and
19 that challenge was not successful. What you are doing now is putting your
20 case, and of course it is up to you to put a case which challenges the
21 facts in the indictment, but that does not mean that the indictment does
22 not exist, and it certainly does not warrant the characterisation
23 "so-called indictment." So please continue.
24 MR. NICE: Your Honour, exhibits. We've been taken at something
25 of speed through references to the 1990 constitution. I think - the
1 accused will correct me if I'm wrong - that there's part of that, I think,
2 at tab 19. For cross-referencing purposes, I think the whole of that
3 constitution, the 1990 Serbian constitution, can be found at Exhibit 319,
4 tab 1, or Exhibit 132.
5 As to the 1992 constitution for the SRY, I'm not sure that's
6 contained in the accused's documents although the witness has just
7 apparently read from the preface or preamble to it. We haven't yet
8 tracked it down in another exhibit list, but it's clearly a document if
9 this debate or discussion is of value to the Chamber, the Chamber will
10 need to identify and we'll try to find out where it is.
11 Judge Kwon shakes his head as an indicator that it hasn't yet been
13 JUDGE KWON: No.
14 MR. NICE: If it hasn't, it probably ought to be at some stage
15 because it's a document of some materiality, as we'll see in due course.
16 JUDGE KWON: And 1990 constitution is in tab 39, which is
17 identical with Exhibit 132.
18 JUDGE ROBINSON: Thank you, Mr. Nice.
19 MR. NICE: Thank you very much.
20 THE ACCUSED: [Interpretation] All right.
21 MR. MILOSEVIC: [Interpretation]
22 Q. In tab 39, there is a copy of the constitution of Yugoslavia. I
23 think there is even a copy in English. My question has to do with all the
24 explanations you gave in relation to the constitution. I already
25 mentioned 23, 24, 25. And also it appears elsewhere. I'm just going to
1 quote 23, and then you're going to recognise this, gentleman.
2 "[In English] The de jure power at all times relevant to this
3 indictment Slobodan Milosevic exercised extensive de facto control over
4 numerous institutions essential to or involved in the conduct of offences
5 alleged herein."
6 So tell me, what kind of de facto control is this in relation to
7 these constitutions that you speak of? What kind of de facto control can
8 one speak of?
9 A. First and foremost, the word you used is oblesenje [phoen], and
10 that is a legal category in the terms of authority and powers. So it's
11 contradictio in adjecto to translate control with that word. You cannot
12 have authority and powers de facto. You can have it only on the basis of
13 law, some legal foundation. You can have influence, you can have a
15 For example, at the school of law where I work, in addition to the
16 Dean there can be professors who enjoy great -- a great reputation at the
18 MR. NICE: [Previous translation continues] ... tempted to dignify
19 it by the term "philosophical debate," but whatever it is, it's of no
20 value to the Chamber, and it of course arises from an unfortunate question
21 where the accused said, What kind of de facto control is this? Maybe the
22 accused should sharpen his question if we are to have a valuable answer.
23 JUDGE ROBINSON: Mr. Milosevic, I think you should ask the witness
24 whether, on the basis of his knowledge and experience, you could be said
25 to have exercised control over numerous institutions.
1 Professor, I'm asking you that question.
2 THE WITNESS: [Interpretation] I don't know how it can be proven
3 that somebody has de facto control. Control can only be had if it is
4 given on the basis of law, because "control" is a legal term, not a term
5 of fact. It has to do with powers, jurisdiction. Somebody cannot have
6 powers that he or she does not have. Otherwise, it is usurpation.
7 JUDGE ROBINSON: I understand what you're saying, but if you're
8 going to assist Mr. Milosevic, I think you should separate yourself from
9 -- from philosophy and look at the actual indictment.
10 The term "de jure powers" is used to refer to powers arising as a
11 matter of law, and "de facto control" is used in relation to control and
12 authority which an individual has not as a matter of law but as a matter
13 of fact. And I think if you want to assist Mr. Milosevic, it is that
14 latter issue that you should address. The indictment does allege that he
15 exercised de facto control. So it doesn't answer that question for you to
16 say that in your understanding de facto control does not exist. The
17 indictment makes that allegation.
18 If you can't assist in answering the question, then we can move
19 on. And perhaps we should move on, because the professor has a certain
20 doctrinaire and philosophical approach to this, Mr. Milosevic.
21 MR. NICE: Sorry to rise again. Two points. I think that His
22 Honour Judge Kwon's observation about tab 39 was a misunderstanding that
23 the accused did in fact correct. 19 -- tab 39 is the 1990 constitution of
24 the Federal Republic of Yugoslavia itself, not of Serbia.
25 JUDGE BONOMY: It's 1992, is it not?
1 MR. NICE: No. This one is in fact a 1990 version, it appears.
2 That's the way it's described. It is 1992 --
3 JUDGE BONOMY: Where do we see that description?
4 MR. NICE: Quite right, Your Honour. That's 1992. That's
5 absolutely right. And that may be, therefore, the same as our exhibit,
6 our earlier Exhibit 319, tab 2, I think.
7 We are trying to draw the connections between indices as we go
8 along, but it's not easy. It doesn't help when I get the date wrong.
9 Your Honour is quite right. This is 1992, FRY, and it matches 319, tab 2,
10 so that my earlier listings under 319, tab 1, and numbers -- Exhibit 132
11 for the complete 1990 constitution of Serbia are I think accurate. Sorry
12 to have interrupted you.
13 JUDGE ROBINSON: Mr. Milosevic, I hope you appreciate that you are
14 creating within the Tribunal a special discipline and labour in relation
15 to your exhibits.
16 To go back to the question that you asked, do you wish to follow
17 on that question in the light of the answer given by the Professor?
18 THE ACCUSED: [Interpretation] I think there is no need for that.
19 He provided a sufficient explanation for the things I asked him about.
20 MR. MILOSEVIC: [Interpretation]
21 Q. Professor Markovic, now we're going to move on to the third set of
22 questions that I announced at the beginning. They have to do with your
23 participation in negotiations with the Albanian ethnic community, with all
24 ethnic communities, and Rambouillet, and all the questions deriving from
1 You were head of the delegation of the government of Serbia that
2 was trying to embark upon talks first with the representatives of the
3 political parties of the Kosovo Albanians and then with the
4 representatives of other ethnic communities in Kosovo and Metohija. So
5 first you started with the representatives of the Albanian ethnic parties,
6 and then the representatives of all ethnic communities in Kosovo. How did
7 this expansion of your activities actually evolve?
8 A. Well, the government of the Republic of Serbia, and at that time I
9 was one of the vice-premiers in that government - I emphasise that once
10 again - passed a decision in terms of the escalating conflicts in Kosovo
11 and Metohija, namely that they have to be resolved by political means.
12 And for that purpose, a delegation was selected from the ranks.
13 Minister Andrea Milosanjevic, Minister Ratomir Vico, Minister Ivan
14 Sedmak, and I comprised that delegation. I was the leader of the
15 delegation. Our task was to negotiate directly with the Kosovo Albanians
16 and to find a way out of the situation in which the Republic of Serbia was
17 at the time, as well as the province of Kosovo and Metohija. However, the
18 other ethnic communities in Kosovo and Metohija felt discriminated
19 against. Why only talk to the Kosovo Albanians? Why not, for example,
20 with the Roma, with the Turks, the Askali [phoen], or, rather, the
21 Egyptians, and the Gorani? They addressed this objection to the
22 government of Serbia, stating that they wanted to take part in these
23 talks, too, because they were also inhabitants of Kosovo and Metohija and
24 the results of these talks would affect their fate as well. So the
25 original idea was to have talks between the delegation of the government
1 of the Republic of Serbia and the representatives of the Albanian
2 political parties was expanded and became the talks between the delegation
3 of the Republic of -- government of the Republic of Serbia on the one hand
4 and on the other hand the representatives of all ethnic communities in
6 Q. Did you bear in mind Security Council Resolutions? I would like
7 to draw your attention to the fact that this is in tab 49. This is
8 Resolutions 1160, 1199, and 1203. I'm going to quote a portion of 1160.
9 Only points 3 and 4. I hope you can find that. The Resolutions are in
10 English. So paragraph 3: "[In English] to defeat violence and terrorism
11 in Kosovo is for the authorities in Belgrade to offer the Kosovo Albanian
12 community a genuine political process.
13 "4: Authorities in Belgrade and the leadership of the Kosovo
14 Albanian community urgently to enter without preconditions into a
15 meaningful dialogue on political status issues and notes the readiness of
16 Contact Group to facilitate such a dialogue."
17 [Interpretation] So the Kosovo Albanians are referred to here.
18 Resolution 1199, paragraph 3 states: "[In English] Calls upon the
19 authorities in Federal Republic of Yugoslavia and the Kosovo Albanian
20 leadership to enter immediately into meaningful dialogue without
21 preconditions and with international involvement, and to clear a
22 timetable, leading to an end of the crisis and to negotiated political
23 solution to the issue of Kosovo, and welcomes the current efforts aimed at
24 facilitating such a dialogue."
25 [Interpretation] And then in Resolution 1203, paragraph 5: "[In
1 English] Stresses the urgent need for the authorities in the Federal
2 Republic of Yugoslavia and the Kosovo Albanian leadership to enter
3 immediately into a meaningful dialogue..." [Interpretation] And so on, et
5 You explained that you were appointed by the government of Serbia
6 to head this delegation and that you went there. What was supposed to be
7 the subject of these talks?
8 A. As far as I can see, this Resolution dated the 31st of March --
9 this Resolution is dated the 31st of March, and the government passed its
10 decision considerably before that, and the first talks were scheduled to
11 take place in Pristina on the 12th of March, 1998.
12 As for the subject of the talks, I already said what that was: To
13 find a political solution to the situation in Kosovo and Metohija. That
14 is to say, to halt fighting and to find a peaceful political solution.
15 Namely, what is referred to in the Security Council documents. However,
16 the government of Serbia decided upon that and operationalised it before
17 that. It was on the 10th of March, I repeat once again.
18 Q. On the one hand, the Security Council insists on something which
19 is activity that the government of Serbia had already embarked upon.
20 A. That's right.
21 Q. At the same time, the government of Serbia equally treats all the
22 ethnic communities in Kosovo.
23 A. It was based on the demands of these ethnic communities. They
24 sent a letter.
25 Q. All right. But wasn't that a consequence of the position taken by
1 the government of Serbia that all ethnic communities in Kosovo were equal?
2 A. Precisely. That was the position of the government of Serbia and
3 later on it was elaborated in different documents that were adopted by the
4 government of Serbia, namely that a political solution in Kosovo and
5 Metohija has to be sought by striking a balance and ensuring the equality
6 of all ethnic communities, not to have one overpower the other. Each and
7 every one should be equal. And that was the way solutions were to be
9 Q. All right. The delegation was established on the basis of a
10 government decision taken on the 10th of March, 1998.
11 A. Yes.
12 Q. How was this decision taken to set up the delegation?
13 A. Well, the situation in Kosovo and Metohija made it incumbent to
14 pass a decision like that. Quite simply, the conflict had gone beyond a
15 certain limit and a political solution had to be sought. That was the
16 main motive of the government in setting up such a working group and
17 giving it such terms of reference.
18 Q. So how did the talks proceed?
19 A. These were talks only between the representatives of the
20 non-Albanian ethnic communities and the representatives of minority
21 political parties in the Albanian community. For example, Faik Jashari
22 took part in them. He was an Albanian. He was the president of the
23 Kosovo Democratic Initiative, a party that did not enjoy any kind of
24 majority, and there was Sokol Qusha, also an Albanian, who was president
25 of the Democratic Reformist Party. The Albanian Reformist Democratic
1 Party. He was also an Albanian. As for the other ethnic communities,
2 they were also represented by two or more representatives respectively.
3 Fifteen times we met or tried to meet in order to talk. Fifteen
4 times, according to my records, the delegation went to Pristina. I
5 managed to reconstruct this on the basis of my diary. I have the exact
6 date. However, since the situation at the time was not very orderly,
7 people from the Kosovo and Metohija district claimed that there were even
8 more attempts that were made, that there were 17. I am certain of 15
9 attempts, and I have the exact dates when we went to Pristina for these
11 Q. All right. These Resolutions that I quoted, as you've heard, call
12 upon the leadership of the Kosovo Albanians, too, to accede to these
13 talks. So you headed the government delegation that went there 15 times.
14 How many times did you meet with the representatives of the majority
15 parties of the ethnic Albanians? You went there to meet with them, too.
16 A. The representatives of the majority parties of the Albanians
17 boycotted these talks, and the reasons why they did that was quite clear.
18 First of all, if they were to participate in these talks, they would
19 acknowledge that they were part of Serbia, but their thesis was that they
20 were a separate body, separate from Serbia, outside Serbia.
21 Secondly, it would mean that they recognised the state of Serbia,
22 which they didn't want to do by any means. And thirdly, their basic
23 demand, the demand to constitute Kosovo and Metohija, or rather, Kosovo as
24 a special state is something that they could not present to a delegation
25 of the government of Serbia.
1 Also, they insisted on the internationalisation of these talks.
2 They did not agree to these mutual talks but only talks in the presence of
3 the representatives of the international community. Only one such
4 discussion took place, and I have this noted down. This was on the 22nd
5 of May, 1998, in the building of the Association of Writers of Kosovo,
6 which at the same time was the building where the headquarters of the
7 Democratic Alliance of Kosovo were. This is the party headed by
8 Mr. Ibrahim Rugova.
9 Only one such meeting was held and at the meeting in very general
10 terms reference was made to the necessity of seeking a peaceful solution
11 to the situation in Kosovo and Metohija.
12 After that, although the delegation of the government of Serbia
13 went to Kosovo, not a single other meeting was held.
14 JUDGE ROBINSON: We are now beyond the time for the adjournment,
15 and we will adjourn now. Mr. Nice?
16 MR. NICE: Exhibits. The last three, 49A, B and C, no objection,
17 of course, to their production. They have already all been produced,
18 respectively as: 49A is 795, tab 6; 49B is 790; 49C is 795, tab 19.
19 JUDGE KWON: They are already part of Chamber Exhibit 25.
20 MR. NICE: So it is.
21 JUDGE ROBINSON: I would just clarify that we did admit tab --
22 tabs 35 and 38. There was no necessity to admit tab 6 since it was
23 already part of a Defence exhibit.
24 We are adjourned until 9.00 a.m. tomorrow.
25 --- Whereupon the hearing adjourned at 1.51 p.m.,
1 to be reconvened on Wednesday, the 19th day
2 of January, 2005, at 9.00 a.m.