1 Friday, 16 January 2004
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.07 a.m.
5 JUDGE PARKER: Good morning. If you would call the case for
7 THE REGISTRAR: Case number IT-01-42-T, the Prosecutor versus
8 Pavle Strugar.
9 JUDGE PARKER: Is the witness available to be brought in?
10 [The witness entered court]
11 JUDGE PARKER: Good morning, Mrs. Alajbeg. May I just remind you
12 that you are still under the affirmation that you took.
13 Mr. Petrovic.
14 MR. PETROVIC: [Interpretation] Thank you, Your Honour.
15 WITNESS: LJERKA ALAJBEG [Resumed]
16 [Witness answered through interpreter]
17 Cross-examined by Mr. Petrovic: [Continued]
18 Q. [Interpretation] Good morning, Mrs. Alajbeg. Let's continue with
19 the questions that we started yesterday. Yesterday, to my question about
20 the constitution of the Federal Republic of Yugoslavia and whether it
21 consists provisions on secession, you answered in the following way: You
22 said that in the preamble of the constitution, there is - let me quote
23 you - in the preamble of both the federal and the republican
24 constitutions, it says that the republics joined voluntarily, based on the
25 right to self-determination, including the right to secession.
1 Am I right in quoting what you said yesterday?
2 A. Yes, you are correct. This is exactly what I said yesterday.
3 Q. Today I would like to read to you, very briefly, a part from the
4 preamble of the constitution of the Socialist Federative Republic of
5 Yugoslavia from the year 1974, in which it says:
6 THE INTERPRETER: May it be noted that the interpreters do not
7 have the constitution.
8 Q. "The peoples of Yugoslavia, starting from the right for every
9 people for self-determination, including the secession, based on their
10 free will."
11 So this is what it says in the preamble of the constitution.
12 Please tell me whether this is the right of the republics on
13 self-determination or the rights of peoples on self-determination. That's
14 the first question.
15 The second question: Do you make a difference between the rights
16 of people and the rights of republic to self-determination?
17 A. Yesterday I did not have the text of the constitution in front of
18 me. I just quoted it from memory. In any case, one should take a look at
19 the republican constitution, in which it says also that the people of the
20 Republic of Croatia are entitled to secession, which is very similar to
21 what you have just read.
22 So we have to look at both texts together.
23 MR. PETROVIC: [Interpretation] Can the Trial Chamber and my
24 learned friends, and Mrs. Alajbeg, be shown the document that I have in
25 front of me. So can I ask the usher to give a copy of this text to the
1 Trial Chamber and to my learned friends.
2 THE INTERPRETER: Interpreters would be grateful for a copy.
3 Thank you.
4 JUDGE PARKER: Mr. Petrovic, you heard that there is need for the
5 interpreters to have this, and as you'll appreciate, it is very much in
6 the interests of the smooth running of the Court, and in fairness to the
7 interpreters, if they have a copy of the written document before we
8 commence, so that they can become familiar with it.
9 [Trial Chamber and registrar confer]
10 JUDGE PARKER: I mention that for the future, Mr. Petrovic. We
11 will at the moment be able to bring this up on the screen, I'm told.
12 MR. PETROVIC: [Interpretation] Your Honour, I will bear this in
13 mind, and during the next break I'm going to make copies of all the future
14 documents for the interpreters.
15 Q. Mrs. Alajbeg, can you please look at the preamble, the first part
16 of the preamble of the constitution. I hope you can read the Cyrillic
17 script. If not, I understand that you're fluent in English, so I'm sure
18 you will be able to read it in English. So can you please read it, and we
19 would like to hear your comments in the light of what I have just said a
20 while ago.
21 A. Yes, I can read the beginning. "Peoples of Yugoslavia, starting
22 from the right of every people to self-determination, including the right
23 to secession ..."
24 Q. Thank you. Please tell me: Where do you see the right of
25 republics to self-determination and secession? Where do you see that in
2 A. I would like to see the text of the republican constitution as
3 well. I would like to be able to collate the two in order to get the full
4 picture of this institute of secession.
5 Q. Mrs. Alajbeg, according to the Rules, I'm the one who leads this
6 cross-examination under the control of the Trial Chamber. The
7 cross-examination should be fair and correct. I am the one who presents
8 the documents, and I would kindly ask you to voice the opinion on the
9 document that I'm presenting to you. If the Trial Chamber or my learned
10 friends want to do differently, they will present other documents to you.
11 So I'm kindly asking for your comment on the document that I'm presenting
12 to you.
13 Do you see the right of republics to self-determination in here,
14 like you said yesterday to the Trial Chamber, quoting the preamble of the
15 federal constitution that you have in front of you?
16 A. It says the rights of peoples. However, in the republican
17 constitution of the Republic of Croatia, it says that the Republic of
18 Croatia is a state of the Croatian people and other peoples in the
19 Republic of Croatia. Therefore, although here we don't see
20 the -- exclusively that peoples have the right to secession, only those
21 who have a state have the right to secession, and those were republics.
22 Although I'm not a constitutional expert, I know that the analysis of
23 these texts before Croatia was recognised was done very carefully by the
24 experts for constitutional rights, including Mr. Badinter, who was a
25 justice of the constitutional court, and this is how they interpreted the
1 right of the former republics to their independence.
2 Q. Mrs. Alajbeg, we are not going to get very far. We are not going
3 to get very far in today's cross-examination if you do not answer my
4 questions. My question was very simple. I understand the political
5 positions that you may have. I understand your desire to put forth your
6 political positions in this courtroom. However, I'm begging you to answer
7 my questions, and my question was: How was it that you said yesterday
8 that in the preamble it says that republics have the right to secession,
9 when it doesn't say so in the preamble? So it's a very simple thing.
10 A. I don't think that it can be interpreted in this way. It is not
11 either black or white. It is obvious from this text that the right to
12 secession may be interpreted with the caveat that I'm not a constitutional
13 expert, that it was constitutional experts who interpreted this in this
14 particular way.
15 Q. As far as I understand, you're an expert on international law, and
16 what we are talking about now, secession, establishment, and determination
17 of a state, is an international legal issue, and that's why I'm asking you
18 this. However, let's move on.
19 Do you make a difference between the right of people to
20 self-determination and the right of a republic or a federal unit to
21 self-determination, or do you maybe believe that there is no difference
22 there at all?
23 A. Self-determination is, first and foremost, the right of a people.
24 However, if a people has established a state unit, a state, then obviously
25 they have the right to adjust that state to their rights and interests.
1 Obviously, I do make a difference between a people and a republic. But
2 when we are talking about their right to secession, then it will be
3 constitutional experts who will know that. However, this issue of
4 secession, and other types of states stopping to exist, I am an expert on
5 that. But this particular area is not my forte. This is not what I have
6 been involved with.
7 Q. Please. Up to December 1990, which peoples were constituent
8 peoples in accordance with the constitution of the Socialist Republic of
10 A. According to the text of the constitution, which I don't have in
11 front of me, the Republic of Croatia was a national state of the Croatian
12 people and the Serbian people in Croatia, as well as of other
13 nationalities and ethnic groups which resided in it. That is, in a
14 nutshell, the sense of the constitution.
15 Q. How was it that in 1990 the Serbian people were thrown out of the
16 constitution as the constituent people in the Republic of Croatia? How
17 did that happen?
18 A. The wording that you are using, I'm not sure that it can be used
19 in that way. This is not the exact description of what happened.
20 However, I'm not authorised to answer these questions, and I'm also not
21 responsible for the wording of any of the texts that were drafted at that
23 Q. Could you please kindly interpret this from the point of view of
24 your general legal knowledge, bearing in mind that you are not a
25 constitutional expert. How would you, as an experienced lawyer, look at
1 that amendment of the constitution, dating back from 1990, according to
2 which the Serbian people was thrown out of the constitution?
3 A. As far as I know, it was not thrown out. It was not emphasised.
4 It was mentioned within the context of all the other ethnic groups that
5 resided on the territory of the Republic of Croatia at the time.
6 Q. The Serbian people in Croatia, according to the constitution that
7 was in effect in December 1990, was it treated as an ethnic minority or
8 national minority in the Republic of Croatia?
9 A. I believe that it was not treated as a national minority, because
10 none of the peoples who had their own republic in the former Yugoslavia
11 were considered a national minority. So Macedonians in Serbia were not a
12 national minority. However, Italians and Hungarians were considered
13 national minorities because they didn't have their own republics in the
14 former Yugoslavia.
15 Q. After the constitutional changes in the year 1990, which took
16 place in December 1990, did the Serbian people become a national minority
17 together with Italians and other national minorities in the Republic of
19 A. Yes, because of their number, I believe.
20 Q. The number of what?
21 A. Their number, the number of people of Serbian minority since the
22 largest majority of people residing in Croatia were Croats and all the
23 others were treated as national minorities who were all entitled to their
24 national minority rights, which far exceeded the national minority rights
25 in other European countries.
1 Q. Based on what you have just said, I understand that this number
2 changed before December 1990 and after December 1990. I don't know what
3 the need for that change was. The only explanation you have for that
4 change is the change in their numbers.
5 A. I did not mention the word "change." I didn't mention any
6 changes. I don't think that at the beginning of the 1990s there was any
7 change. If -- the change, if it did happen, happened later.
8 Q. Why did the Serbian people then change the status and become a
9 national minority after having been a constituent people in the Republic
10 of Croatia?
11 A. I don't believe I'm the person who should be addressed such a
12 question. I'm not authorised to give you any answer. I don't even know
13 what answer to give you.
14 Q. Does it seem to you that the fact that the Serbian people, from
15 having been reduced to the status of a national minority in the Republic
16 of Croatia, does it seem to you that this fact is one of the numerous
17 causes of the conflict which started in Croatia from about that time, from
18 about that thing that happened, and all the repressive measures that were
19 carried out from the moment the Croatian Democratic Union came into power
20 in the Republic of Croatia?
21 A. I don't think so. It doesn't -- and nobody else who is relevant
22 and who has a say in these events will think that. It is a well-known
23 fact that a year before that, in the areas which were inhabited by the
24 Serbs in Croatia, those people in cooperation with the then-Milosevic
25 regime had already started forming their armed units and they started
1 placing barricades on the roads blocking traffic in Croatia, and they
2 started organising themselves into their separate units. And this all
3 started long ago, before the constitution was amended.
4 Q. You said a year before the constitution.
5 A. I can't give you the exact year, but in any case, it was before
6 the constitution.
7 Q. So was the throwing out of the Serbs from the constitution a
8 reaction to these events that you've just mentioned?
9 A. I can't say that.
10 Q. Yesterday, to my question which referred to the way the
11 constitution of the SFRY dealt with the issue of borders, you answered
12 that in the constitution of the SFRY, there was a provision that dealt
13 exclusively with internal borders within the former Yugoslavia; am I
15 A. I didn't say exclusively. I said what I remembered.
16 Q. Would you find it useful if I remind you of the full content of
17 what the constitution has to say on this issue?
18 A. Maybe the Defence will find it useful.
19 MR. PETROVIC: [Interpretation] May I please ask the usher - I have
20 six copies of the relevant article of the constitution - can you please
21 distribute these copies to the Honourable Chamber and to the parties,
23 Q. Mrs. Alajbeg, would you please look at Article 5. This is also in
24 the Cyrillic script, and it's the last article on the page, on the first
25 page of the document before you. Would you please read the first
1 paragraph of Article 5.
2 A. "The territory of the Socialist Federative Republic of Yugoslavia
3 is unified and consists of the territories of the socialist republics."
4 Q. Please answer the following question: According to the
5 constitutional provisions of the constitution then in force, was there any
6 doubt about the fact that the territory was unified, and was there any way
7 in which that unity could be broken up, the unity of the state that
8 existed on the territory of the former Yugoslavia?
9 A. This article does not mention this. It does mention the unity of
10 the territory, "which consists of," but this has to be seen in the context
11 of the constitutional provisions and the republican constitutions,
12 including those provisions on the right of peoples to self-determination,
13 including secession. There is no prohibition of this in this article.
14 Q. We'll come to that. Just a moment.
15 Would you please read paragraph 3 of Article 5.
16 A. "The border of the Socialist Federative Republic of Yugoslavia
17 cannot be changed without the agreement of all the republics and
18 autonomous provinces."
19 Q. Would you please explain your understanding of this paragraph of
20 Article 5 of the constitution of the SFRY.
21 A. Well, precisely what it says: The republics and the provinces
22 have to agree, and attempts were made to achieve this in this period.
23 Q. Did the Republic of Croatia have the approval of the other
24 republics and autonomous provinces within the Republic of Serbia at the
25 time for the secession it was trying to achieve?
1 A. You are speaking of an attempt. I would not refer to it in this
2 way. Especially, I would not call what Croatia was doing secession. It
3 is generally known and acknowledged that in the then-Yugoslavia, this was
4 not secession of any republic. It was rather dissolution, the breaking
5 up, which was established in Opinion number 1 of the Badinter Commission,
6 which established, in November 1991, that Yugoslavia was in a state of
7 dissolution. Therefore, we cannot speak of secession at all.
8 Q. From the viewpoint of the constitution - and please listen to my
9 question carefully - from the viewpoint of the constitution of the SFRY,
10 were the actions of the Republic of Croatia anticonstitutional?
11 A. No, because there were negotiations going on, and the
12 then-leadership of the Republic of Croatia, and of all the other
13 republics, including Bosnia and Herzegovina, Macedonia, Slovenia, Croatia,
14 all these republics were trying to reach an agreement, because they all
15 held referenda in which their peoples expressed their will, wishing to set
16 themselves up as independent states. But also the wish to reach an
17 agreement and a possible alliance among the then-republics. Therefore,
18 one cannot speak of secession of any republic, especially not of just
20 Q. Was the ultimate result of the events on the territory of the
21 former Yugoslavia in 1991 that the change -- that the border of the SFRY
22 was changed in a way that is contrary to the provisions of paragraph 3 of
23 Article 5 of the constitution?
24 A. My interpretation was that it was not contrary, because what
25 happened does not relate to paragraph 3 of Article 5.
1 Q. Did events develop in a way provided for by paragraph 3, Article
3 A. Only in part, because there were attempts to reach an agreement
4 between the republics and the autonomous provinces. In fact, the
5 autonomous provinces no longer existed at the time, because Milosevic's
6 regime simply abolished the autonomy of the provinces, and this was one of
7 the reasons why the parliament of Croatia reacted with the conclusion that
8 we mentioned yesterday. Yugoslavia, therefore, was in a state of
9 dissolution, in a state of collapse. There was no secession, nor did
10 anyone ever mention secession.
11 Q. Tell me: In what period of time, what period of time, was it that
12 this dissolution took place in? What was the period of the dissolution
13 precisely, according to the evidence we saw yesterday? I'm referring to
14 the opinions of the Badinter Commission.
15 A. Badinter did not say what the period of dissolution was. He just
16 established the dates of succession for each particular republic. But in
17 November, the commission established that Yugoslavia was in a state of
18 dissolution. They did not say how long the dissolution had been going on.
19 This was a process which did not begin on the date of the opinion, and it
20 is unclear how long the process lasted. This is difficult to establish.
21 But at the time of the first Badinter opinion, Yugoslavia was already in a
22 very bad constitutional state, so to say.
23 Q. Just a moment, please.
24 MR. PETROVIC: [Interpretation] I would like to look at tab number
25 9, which is the first binder, tab number 9, and this is Opinion number 9
1 of the Badinter Commission.
2 Q. I apologise. My mistake. It's Opinion number 11.
3 Would you please look at page 1, point 2, where it says: "The
4 predecessor state ceased to exist, and because there was no agreement
5 between the parties, but from a process of disintegration that lasted some
6 time, starting in the commission's view, on 29th November 1991, when the
7 commission issued Opinion number 1, and ending on the 4th of July, 1992,
8 when it issued Opinion number 8."
9 A. Just a moment. I'm looking for the text. You said point 2.
10 Q. Yes. In the B/C/S version, it's on the first page of the
11 document, paragraph 2, at the bottom of the page. It's at the bottom of
12 the page in the B/C/S version. And the ERN number ends in 539.
13 A. Yes.
14 Q. Paragraph 2, the last three lines of paragraph 2.
15 A. "Second, the demise of the SFRY, unlike that of other recently
16 dissolved states, USSR, Czechoslovakia, resulted not from an agreement
17 between the parties but from a process of disintegration that lasted some
18 time, starting, in the commission's view, on the 29th of November, 1991,
19 when the commission issued --"
20 Q. Tell me, please: Did you say just a moment ago that the
21 commission did not establish a time for the beginning of the
22 disintegration? Was this because you were not fully familiar with this
23 text? Was it a mistake?
24 A. In Opinion number 1, and this is dated the 29th of November,
25 1991 - this was when it was established that Yugoslavia was undergoing a
1 process of disintegration. But the process did not begin on that date. I
2 think that this is an imprecise formulation, imprecise wording in this
4 Q. So in those parts of Badinter's opinions, which are in favour of
5 the views of the Republic of Croatia, there is no imprecision, but here
6 there is imprecision?
7 A. This is my personal opinion. I don't think that this formulation
8 is not in the interests of the Republic of Croatia. Croatia supports all
9 the opinions of Badinter's Commission, because we feel that they were
10 issued by a competent body. But if you are asking me for my own legal
11 interpretation of this, I think this is slightly imprecise if we compare
12 Opinions number 1 and number 11.
13 Q. Thank you. We no longer need this binder.
14 MR. PETROVIC: [Interpretation] I would now like to go back to
15 other topics, because this reply now leads me on to another topic, and we
16 shall come back to this later on.
17 Q. Tell me: According to your understanding, the constitution of the
18 republic of Croatia in December 1991, was it in line with the constitution
19 of SFRY of 1994 or not?
20 A. I think it was in accordance with the federal constitution,
21 because, of course, all the republican constitutions had to be in line
22 with the constitution of Yugoslavia. But I cannot give you a competent
23 reply because I have not analysed the provisions of this constitution in
24 the light of their constitutionality.
25 Q. The constitution of the Republic of Croatia, does it express a
1 wish, as you say, the wish of the Republic of Croatia to be independent,
2 and so on and so forth?
3 A. The constitution does not express a wish; it provides the
5 Q. How was this regulated in the constitution of December 1990?
6 A. I think that I have quoted this constitution from memory today.
7 Q. Does any provision of the constitution which sees Croatia outside
8 the SFRY fall in line with the constitution of the SFRY?
9 A. Well, this is hard to say now. When the republican constitution
10 was promulgated, we were not contemplating a Croatia outside Yugoslavia.
11 But first of all, we wanted to establish, first of all, how it came about
12 that Croatia was part of Yugoslavia, and this was voluntarily association;
13 and secondly, to preserve the rights of the people living in the republic.
14 And this was preserved in all the versions of the constitution, and there
15 have been several since world war -- since the war.
16 Q. Yes, but because the Serbian people were thrown out of the
17 constitution, their right was abolished in the Croatian constitution.
18 A. No. I think that this is a forced interpretation.
19 Q. Well, what is your interpretation?
20 A. We have already discussed this.
21 Q. Please answer my question. If I repeat myself, the Chamber will
22 stop me and I will move on. Now I am asking you about the right of the
23 Serbian people to self-determination within the Republic of Croatia.
24 A. Would you please repeat your question, to see exactly what it is I
25 have to respond to.
1 Q. Why was the right of the Serbian people to self-determination
2 within the Republic of Croatia abolished?
3 A. This is not correct. The right of the Serbian people to
4 self-determination was not abolished. This is simply incorrect.
5 Q. Does this mean that the Serbian people had the right to
6 self-determination in the Republic of Croatia?
7 A. I cannot tell you that. I only know that the right of peoples to
8 self-determination was a principle which existed, but to which people this
9 referred to, and in which republic, I cannot say.
10 Q. Did the Croatian people have a right to self-determination in the
11 Republic of Croatia?
12 A. Evidently. The Croatian people decided. But the question put at
13 the referendum, when the people voted for an independent state, it was not
14 only the Croatian people who voted. Everybody in Croatia voted, including
15 the Serbs in Croatia, many of whom did vote for an independent Croatia, as
16 can be seen from the number of votes. Because over 90 per cent of the
17 votes were in favour of independence, and this number included a large
18 part of the Serbian people.
19 Q. Mrs. Alajbeg, that was not my question. Did the Serbian -- did
20 the Croatian people in the Republic of Croatia have the right to
21 self-determination? Do you know this or not?
22 A. The citizens of Croatia certainly had that right.
23 Q. In your replies to my questions, you repeated several times that
24 peoples had a right to self-determination. Now you are saying that
25 citizens had the right to self-determination. Will you tell me which is
1 correct, and which of these do you abide by?
2 A. I think that in one of Badinter's opinions, the interpretation is
3 that this referred to the people living in the then-republics.
4 Q. Does that mean that the Serbian people, as a people who lived in
5 the Republic of Croatia, according to Badinter's interpretation, also had
6 the right to self-determination?
7 A. I think that Badinter, when the Republic of Serbia put that
8 question, answered in the way that I have just answered.
9 Q. Tell me: How, then, was this question solved in relation to
10 Bosnia and Herzegovina? Who had the right to self-determination there?
11 A. I am speaking only of the fact that all the people of Bosnia and
12 Herzegovina voted at the referendum, and the vast majority decided in
13 favour of independence. So it could not have been one group or two
14 groups; it was people from all the nations living there.
15 Q. If we are talking about the right of peoples to
16 self-determination, which peoples constitute the Republic of
17 Bosnia-Herzegovina; and if they are making use of their right to
18 self-determination, which of the peoples in Bosnia-Herzegovina have the
19 right to self-determination?
20 A. In Bosnia and Herzegovina, there was no mention of
21 self-determination. I'm not familiar with their republican constitution.
22 But this was not the question put at the referendum there. The vote was
23 simply about the independence of the republic, as a sovereign unit, a
24 sovereign entity.
25 Q. Tell me, then: From what right does the right of republics to
1 independence stem? From whose right? Who has the right from which the
2 right to independence stems, if not the people?
3 A. It's certainly the peoples who live there, and we know that there
4 were several there. And they all participated in the referendum.
5 Therefore, the peoples who lived there made this decision and opted for an
6 independent state.
7 Q. Does this mean that the peoples who lived in Bosnia had the right
8 to self-determination?
9 A. I cannot talk about Bosnia and Herzegovina. I am not familiar
10 with their constitution. I did not study it. But in any case, in the
11 former Yugoslavia, referenda were held in the four of the then-republics
12 as republics. There were no referenda of peoples, but of the peoples
13 living in those republics, and the vast majority of them opted for
15 Q. Mrs. Alajbeg, it's precisely that fact that led to the serious
16 conflicts that erupted on the territory of the former Yugoslavia,
17 primarily in the Republic of Croatia, starting in the spring. But we'll
18 come to that.
19 A. I have the right to answer this, because you have now made an
20 incorrect statement. Because the international community established long
21 ago that it was the Milosevic regime that started the problems in the
22 former Yugoslavia.
23 Q. Madam, will you tell us where this was established?
24 A. There is a number of documents, and in any case, the activities of
25 the paramilitary units from Serbia who were controlled by the Milosevic
1 regime and parts of the JNA, and this is already mentioned in the
2 declaration of the conference on the former Yugoslavia, and this was the
3 decision establishing the Badinter Commission. They explicitly mention
4 the activities of these units, Milosevic's units. They don't mention
5 Milosevic personally, but those who are under the influence of his regime,
6 and parts of the JNA, who put themselves at the disposal of the Milosevic
8 Q. I didn't hear where this was established, in what document.
9 A. For example, one of the documents I remember is the one I
10 mentioned. This is the Brussels Declaration. I think this was in August
12 Q. We'll come back to this a bit later.
13 Let me go back to the issue of the constitution of the Republic of
14 Croatia. You have said that the constitution of the Republic of
15 Croatia -- let's clarify one thing. Does the constitution of the Republic
16 of Croatia contain the desire for independence of the Republic of Croatia?
17 You said a little while ago no. Let's clarify that.
18 A. Constitution cannot express a wish. A constitution is not a
19 collection of wishes.
20 Q. Does it contain a provision on independence?
21 A. No, it does not contain a provision on independence. It contains
22 provisions according to which Croatia is considered a constitutive part of
23 a federation, but in a certain way it has its own republican statehood and
24 it has all the possibilities that we have already mentioned.
25 Q. Did you sign a statement for the representatives of the OTP? Did
1 you give a statement to them?
2 A. What are you referring to?
3 Q. Did you give a witness statement to the investigators of the OTP?
4 Did you give it or did you sign it?
5 A. Yes.
6 Q. Let me remind you what you said in your statement, in paragraph 11
7 of your statement. You said as follows: "The constitution of the Republic
8 of Croatia, dating from the 22nd December 1990 is an early illustration of
9 the wish of Croatia for independence, and one can consider it an
10 expression of the aspirations of Croatia now for sovereignty."
11 That's paragraph 11 of your statement.
12 A. I have to apologise, because I had the impression that we are
13 talking about the former constitution of the Republic of Croatia. Yes.
14 Now what you have just said is correct, and it refers to the new
15 constitution of the Republic of Croatia. Before that, we are talking
16 about the constitutions of the SFRY and the former Republic of Croatia,
17 and this is where the misunderstanding stems from.
18 Q. I'm sorry. I can't find it. However, in December 1990, Croatia
19 had already expressed this wish?
20 A. Yes, of course.
21 Q. And now, although you said differently a little while ago, I'm not
22 going to dwell upon that and I'm not going to try and find what you said a
23 little while ago. However, I would like to ask you now: This wish, this
24 desire, was this in conformity with the constitution of the SFRY, in
25 December 1990, that is?
1 A. I believe that it is very difficult to answer this question. I'm
2 not a constitutional expert, as I've already mentioned. I believe that it
3 was in conformity.
4 Q. If I understand you well, the desire for independence is in
5 conformity with the preamble and other provisions of the constitution, and
6 I primarily refer to the provisions of the constitution referring to the
7 unity of the territories. So you believe that these two things are not
8 mutually exclusive, that they're in conformity?
9 A. I believe that this document of the Republic of Croatia, the
10 constitution was in conformity with the then-regulations. In any case,
11 this constitution regulated, in a much more precise way, the sovereignty
12 of the Republic of Croatia, which had already existed within the former
14 Q. Are you then saying that the principle of the unity of the
15 territory contained in Article 5 of the constitution, and the desire for
16 independence, contained in the constitution of Croatia from 1992, that
17 these two things are compatible?
18 A. This constitution expressed a wish for sovereignty and
19 independence. However, it did not exclude the possibility of Croatia
20 staying within Yugoslavia.
21 Q. The unity of a territory, and independence, are these two things
23 A. Yes, they are, because even after then, the former Republic of
24 Croatia had its own territory, it had elements of sovereignty, and it was
25 in Yugoslavia. It could continue existing in that way, because that was
1 the intent, providing that there was an agreement, with the only exception
2 being that it would have been pushed to a higher confederative level.
3 Q. Was it then the intent of the Republic of Croatia to remain in
4 Yugoslavia from the moment the HDZ took power?
5 A. As far as I know, there are very serious negotiations, and
6 Slovenia and Croatia proposed a draft of a confederation, confederative
8 Q. Madam Alajbeg, I would like to go back to the elementary legal
9 categories. Did Croatia want to remain in the state? A confederation is
10 not a state. Did Croatia want to remain in the state of Yugoslavia,
11 according to your interpretation? Did it or did it not?
12 A. We could talk about the theory of confederation as a state. It is
13 a state unit, and in such a unit in which former republics would have had
14 a high degree of sovereignty, Croatia would have found its place, and it
15 did want to stay in such a confederation.
16 Q. Did Croatia want international recognition in December 1990?
17 A. Not in December 1990. It started looking for international
18 recognition in the course of 1991.
19 Q. Is it possible to reconcile the independence and sovereignty of a
20 state with the confederational principle?
21 A. Yes, it is possible to reconcile sovereignty and confederation and
22 its principles.
23 Q. Can you maybe draw a parallel or a constitutional parallel in
24 comparative law for such a statement of yours?
25 A. At this moment, there are debates whether confederations exist at
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 all in the world. All the people talk about the confederation of
2 Switzerland. Switzerland is not a confederation. Maybe we would be able
3 to find some historical examples rather than contemporary examples to
4 illustrate that.
5 Q. Does that mean that the Republic of Croatia proposed something
6 that didn't exist anywhere in the world?
7 A. That is not true. I've just said that history knows such a form,
8 and it doesn't mean that the present time and the future will not know it
10 Q. At the moment, when Croatia worded and drafted its proposals, did
11 it have a legal example for such a proposal, or, alternatively, whether
12 that proposal was worded in such a way that it would be found impossible
13 to accept by any other participant in the negotiations?
14 A. Since I did not personally participate in this, I don't know what
15 models were used, but I'm sure models were used and the relationships that
16 existed at the time between the republics and which should have existed in
17 the future were the foundation for the drafting of these proposals. Let's
18 please not mention exclusively Croatia, because Slovenia was also in that.
19 Croatia and Slovenia were the ones who declared their independence
20 together, and they were the ones that, together, proposed this concept.
21 Q. Yesterday, in your answer to some of my questions, you said that
22 sometime in spring - I can't remember exactly - but in spring 1991 you
23 attended a meeting with President Tudjman, and you also said that
24 President Tudjman briefed you and instructed you and ordered you how you
25 would be acting in the federal institutions of the Socialist Federative
1 Republic of Yugoslavia at the time. Am I quoting you well? Do I remember
2 this well?
3 A. More or less. You are not too precise. In late spring - I don't
4 know exactly when - we were invited by him -- he invited us and told us to
5 stay where we were, to continue doing our job. However, in the former
6 Yugoslavia, we came from our respective republics and we were supposed to
7 represent their interests. And he told us to continue to do so. We were
8 instructed to continue working in federal bodies, which illustrates that
9 Croatia still believed that there would be an agreement, that there would
10 be some confederative solutions to the problem.
11 Q. And in keeping with that instruction, you remained in this federal
12 secretariat for foreign affairs in Belgrade until mid-December?
13 A. Yes. Some colleagues stayed shorter, some stayed longer, which
14 depended on their own personal circumstances.
15 Q. So up to the 15th of December, in keeping with what the president
16 told you earlier that year, in spring, you remained in Belgrade as
17 somebody who represented the positions and interests of the Republic of
18 Croatia in the Federal Ministry for Foreign Affairs in Belgrade?
19 A. Yes, but this was not incompatible. Being somebody who came from
20 a republic and working with the federal ministry was not incompatible. My
21 position was a professional position, an expert position, rather than a
22 political position.
23 Q. And you remained in that job even after the first decision on the
24 interruption of all legal and state ties between Croatia and Yugoslavia,
25 and after the second decision, you remained in your position after the 15
1 December, in the federal institution, in the centre of Belgrade?
2 A. Yesterday I said that in factual terms I left earlier. But in
3 formal terms, I remained with the ministry up to the 15th of December,
4 because that was the day when my employment was terminated there,
6 Q. Were there any other colleagues of yours there?
7 A. Yes. Some remained even longer. Some were abroad, some were in
8 Belgrade. And the process, just like the process of the dissolution of
9 Yugoslavia, our transitional process lasted quite a long time before we
10 moved back to our own republics. I wanted to say something else. At that
11 time, it was absolutely clear that this was no longer the representation
12 of all peoples in federal bodies, because in early autumn, all Slovenians
13 went back to Slovenia, and our Slovenian representatives left and stopped
14 representing their state. So federal bodies stopped functioning already
15 at that time. This was established in one of the documents; at the moment
16 I can't remember which document it is. But it was established that the
17 presidency had stopped functioning, that the federal council had stopped
18 functioning, as well as other organs.
19 Q. Did the minister remain at his post in the Federal Ministry of
20 Foreign Affairs until the end of 1991?
21 A. He was still there in formal terms, but in fact, he was no longer
22 invited to meetings, and people talked about this in the ministry. And he
23 no longer had any influence.
24 Q. Where did the minister come from? Whose civil servant was the
25 minister? Who was the current minister of foreign affairs of the SFRY and
1 remained at his post until the end of 1991 in Belgrade?
2 A. As far as I know, this was Mr. Budimir Loncar, who, from the end
3 of World War II, was a diplomat in Belgrade. He had a family in Belgrade
4 and lived there, but he originated from Croatia.
5 Q. Was Budimir Loncar a candidate of the Republic of Croatia for the
6 post of foreign minister in the last government of the SFRY?
7 A. Yes, he was considered to be a Croatian civil servant.
8 Q. And as a Croatian civil servant, did he remain at his post until
9 the end of 1991?
10 A. Yes, he did. He did not put himself at the disposal of the
11 Republic of Croatia at all, and he evidently lost all possibility of
12 working in Belgrade, because they didn't want him there.
13 Q. That is irrelevant.
14 Did the president of the federal government remain at his post
15 until the end of 1991, also in Belgrade?
16 A. I wouldn't say until the end. I know that a decision was reached
17 by the parliament of the Republic of Croatia that the activities of the
18 president of the then-government were no longer considered relevant for
19 the Republic of Croatia.
20 Q. Did Ante Markovic, as the Prime Minister of the last government of
21 the SFRY, also come from Croatia, and was he nominated by Croatia for this
23 A. Yes. He came from Croatia too.
24 Q. Did he continue performing his job as prime minister until the end
25 of 1991?
1 A. I don't think he did, because this was not possible for him. He
2 no longer had any influence.
3 Q. Until when did he remain in Belgrade carrying out the job of
4 prime minister of the federal government?
5 A. I can't tell you precisely, because I don't remember, but I do
6 know that in the course of 1991, Mr. Markovic was not able to do his job
7 as the president of the then-federal Executive Council.
8 Q. Do you agree that he was in Belgrade until the end of 1991, or
9 don't you know?
10 A. I think he left earlier. I don't think he remained there until
11 the end of 1991.
12 Q. And when did the Republic of Croatia distance itself from the
13 activities of its own civil servant, who remained prime minister of the
14 federal government, Ante Markovic, in Belgrade?
15 A. I don't know the date, but certainly it was in the last months of
17 Q. We'll come to that later, and I will remind you of the exact date.
18 I would now like to go back to a topic I started a little while
19 ago, and that is the instructions you were given by President Tudjman in
20 the spring of 1991.
21 MR. PETROVIC: [Interpretation] Would the usher -- oh, I see. He's
22 not in the courtroom at the moment. I will then read what I want to refer
23 to, and I will ask for it to be distributed afterwards.
24 Q. This is Article 362 of the constitution of the SFRY.
25 MR. PETROVIC: [Interpretation] Would you please distribute these
1 documents to the parties, and could the document be placed on the ELMO for
2 the interpreters, please. [In English] There is B/C/S version and
3 English, six copies.
4 THE INTERPRETER: And could the English version be put on the
5 ELMO, please.
6 MR. PETROVIC: [Interpretation]
7 Q. Please look at Article 362 and read it.
8 A. "The members of the federal Executive Council, and functionaries
9 in the federal administration organs and in federal organisations are
10 responsible for carrying out the policy and putting in practice the
11 legislation exclusively of the organs of the federation, and in carrying
12 out their jobs, they cannot receive guidelines and instructions from
13 organs and functionaries of other social and political organisation, nor
14 may they act in accordance with their guidance and instructions."
15 Q. I will now put my question. The instructions you received then,
16 were they contrary to the constitution?
17 A. No. Well, first of all, we who were in the diplomatic service
18 were not functionaries. We were not members of the federal Executive
19 Council, nor were we functionaries. We know who functionaries were. I
20 was not in such a position, nor were my other colleagues who were in the
21 diplomatic service together with me.
22 Q. But other people who were elected officials or functionaries, when
23 they were delegated from the republics, according to this article, were
24 they responsible to the republic who sent them or to the federal
25 government and the federal parliament?
1 A. Functionaries were responsible to the body that appointed them,
2 and they were appointed by the federal Executive Council. So this applies
3 primarily to ministers, and then those appointed by the assembly of the
4 SFRY. And we were not appointed by any of these bodies.
5 Q. Were there persons who were elected? I'm not referring to
6 ministers but to people who were in leading positions in various federal
7 organs, people in the armed forces, people in the assembly. Did this
8 refer to them?
9 A. You mean were they at that meeting?
10 Q. No. Were they duty-bound to answer for their work and actions
11 exclusively to the federal government organs, and that they were not
12 allowed to act contrary to the constitution and advocate any other
13 interests, apart from the interests of those who appointed them?
14 A. If you are talking about lower-level civil servants, as opposed to
15 those who I explicitly mentioned in this provision, then what I can say is
16 that regardless of the instructions we had even before the dissolution of
17 the state, because we were sent from the various republics precisely
18 because we were familiar with what the interests of the republics were.
19 But this was not incompatible in any way with protecting the interests of
20 Yugoslavia as a whole.
21 Q. In the period in 1991, were you in parallel protecting the
22 interests of Yugoslavia as a whole, and of the Republic of Croatia?
23 A. In 1991, I was doing a job that you know about. I was the chief
24 of the department for international treaties and agreements. And there
25 was no doubt about the compatibility of the interests of Yugoslavia and
1 Croatia, and I was not protecting the interests of only Croatia. I simply
2 continued doing the job I had been doing previously.
3 Q. Were you working in the interest of the country whose civil
4 servant you were, or not? The state that paid your salary, were you
5 working in its best interests?
6 A. I feel that I was acting in the interest of my employer, and that
7 was the federal secretary for foreign affairs at the time, and that, at
8 the same time, I was protecting the interests of the Republic of Croatia,
9 which had sent me there. And this pertains to that year and all the
10 previous years.
11 Q. So on the 1st of December you were acting in the best interests of
12 your employer, the federal state - I'm talking about the 1st of December,
13 1991 - and in the interests of Croatia as well, if I understood you
15 A. Yes.
16 Q. I am surprised. I have to ask you how this is possible.
17 A. It is possible, because my position was not such, and my job was
18 not such, that these interests would be incompatible.
19 Q. Your other colleagues from Croatia, did they have the same
20 attitude to their job in the federal ministry and to all their obligations
21 toward the Republic of Croatia, the same as you?
22 A. I assume they had.
23 Q. And this was throughout the time they were in Belgrade?
24 A. I cannot speak for each particular individual and what they were
25 doing, nor can I speak for my colleagues from other republics, because we
1 all behaved in a similar way, in a situation where a state was collapsing.
2 MR. PETROVIC: [Interpretation] Your Honour, I have now rounded off
3 this topic, so it may be a convenient time now for a break.
4 JUDGE PARKER: Thank you, Mr. Petrovic. It certainly will, and
5 I'm sure that the interpreters will value a break at this moment. We will
6 have a 20-minute break.
7 --- Recess taken at 10.23 a.m.
8 --- On resuming at 10.50 a.m.
9 JUDGE PARKER: Mr. Petrovic.
10 MR. PETROVIC: [Interpretation] Thank you, Your Honour.
11 Q. I would now briefly like to introduce a few more documents. The
12 interpreters' booth has been given copies. And I would like to ask the
13 usher to distribute this document to the sides.
14 Mrs. Alajbeg, may we continue? Mrs. Alajbeg?
15 A. Yes, please go ahead.
16 Q. Thank you. Would you please look at Article 207, just the first
17 paragraph. Can you please read it out.
18 A. "All regulations and other enactments passed by federal agencies
19 must be in conformity with federal statute."
20 Q. Would you please read paragraph 2 of the same article.
21 A. "Republican and provincial statutes and other regulations and
22 enactments passed by agencies of the sociopolitical communities and
23 self-management" -- yes -- "self-management enactments may not be contrary
24 to federal statute."
25 Q. And paragraph 3.
1 A. "If a republican or provincial statute is contrary to federal
2 statute, it will be temporarily applied, pending a decision by the
3 constitutional court, and if federal agencies are responsible for their
4 enforcement. The federal statute concerned shall apply."
5 Q. Does this article speak of the supremacy of the federal law over
6 the law of the republics and autonomous provinces?
7 A. It speaks of the necessity to have all republican and federal laws
8 brought into line with each other, and all the other enactments in the
9 federal community.
10 Q. Do you read Cyrillic script? It might be easier for you to look
11 at the English version.
12 A. Yes, I have read this out in Cyrillic.
13 Q. If it's easier for you, you may look at the English version. You
14 heard my question. I won't repeat it again.
15 A. About the supremacy of the federal legislation?
16 Q. Yes, over the legislation of the republics and autonomous
18 A. Yes, although in paragraph 3 it says: "If a republican or
19 provincial statute is contrary to federal statute, it will be temporarily
20 applied, pending a decision by the constitutional court, and if federal
21 agencies are responsible for their enactment, the federal statute
22 concerned shall apply." Therefore, this is not an absolute supremacy of
23 federal legislation, as we can see from paragraph 3.
24 Q. That's precisely what I was about to ask you. In the areas of
25 defence, security, foreign affairs, customs duties, and other laws
1 pertaining to the economy, were these all federal laws?
2 A. Yes. Federal laws applied in these areas. I don't recall whether
3 there were any republican laws in these fields. We mentioned one
4 yesterday, and that pertained to All People's Defence. This was a
5 republican law, partially regulating defence at republican level.
6 Q. Does this mean that in the area of defence, federal law has
7 supremacy over republican law, and the federal law has to be -- or rather,
8 the republican law must be in compliance with the federal law in the field
9 of defence?
10 A. As a matter of fact, these two laws did not regulate the same
11 matter. They regulated different matters. In any case, they were
12 supposed to be, and I believe that they were, in conformity.
13 Q. Did the laws in the area of defence regulate the armed forces on
14 the territory of the former Yugoslavia?
15 A. I suppose so. However, I am not familiar with the issues of
16 defence at all.
17 Q. Yesterday you testified before this Trial Chamber, in great
18 detail - I'm talking about binder 2, Exhibit 13, if I am not mistaken.
19 This is defence act. You testified about the Defence act. How come you
20 didn't say yesterday that you did not know anything about it, when my
21 learned friend was questioning you?
22 A. I merely said I was not an expert on defence law. This was just
23 an example of the legislation which was being created in Croatia. I
24 mentioned another -- of other acts and laws in which I did not
25 participate. I'm not an expert. These were just examples of republican
2 Q. If the federal law prescribes the structure of the armed forces of
3 a state and then a republic introduces its own army, would that mean that
4 the republican law is absolutely contradictory to the federal law which
5 prescribes what armed forces may exist on its territory?
6 A. At that time, the federal army was no longer under the control of
7 the presidency, so there was no supreme commander. So the federal act was
8 at risk. Its implementation was jeopardised. For that reason, at that
9 time, there was no normal constitutional order.
10 Q. Mrs. Alajbeg, what time frame are we talking about? I'm not
11 asking you to give me the precise dates, but months and years.
12 A. It was 1991. Already at that time, there were military activities
13 on the territory of the Republic of Croatia, and between the declaration
14 of independence and the interruption of state and legal relations during
15 those three months, military activities were developing and no agreements
16 were honoured. I mentioned a very specific document, the Brussels
17 declaration, which stated that, and this was passed towards the end of
18 August of that year, 1991.
19 Q. Mrs. Alajbeg, my question was as follows: Conformity of the
20 republican law, which introduces the Croatian army, and the federal law,
21 which prescribes what the armed forces of the former Yugoslavia are.
22 Let's put aside the events on the ground. I'm talking about pieces of
23 legislation. You're not a fact witness; you are testifying about
25 A. Yes, I'm testifying about documents which pertain to my area.
1 There is a provision here which says that if these regulations are not in
2 conformity, then the republican regulations will apply pending the
3 decision of the constitutional court of Yugoslavia, which at the time had
4 already stopped functioning as well.
5 Q. Mrs. Alajbeg, let's not go into that. I am asking about the areas
6 which are regulated by the federal laws. We are talking about defence,
7 which is regulated by a federal act. We are talking about the situation
8 which pertains to Article 207, paragraph 3. If federal organs are
9 responsible for the implementation of laws, then is it the fact that the
10 republican law was introduced? Is it contrary to the federal law?
11 A. Your question is not good. We cannot talk about something being
12 contrary to the constitution of the then-Yugoslavia. We can just talk
13 about federal laws.
14 Q. Very well, then. Let's talk about the federal act on defence.
15 Does the federal act on defence provide for the existence of the Croatian
16 army, the regular Croatian army or paramilitary Croatian units?
17 A. As far as I know, no.
18 Q. Therefore, the laws and decisions passed by the Republic of
19 Croatia to the effect of establishing the Croatian army, are they contrary
20 to the federal law?
21 A. No, because the Croatian Republic had a constitution, and this
22 provision that you are pointing to, the provision of Article 207, does not
23 speak of the situation when the republican regulations are contrary or are
24 not in conformity with the constitution. Constitution is not mentioned
25 here. The only thing that is mentioned are laws and statute. I believe
1 that this law was constitutional, because it was in conformity with the
2 constitution of the Republic of Croatia, which was in force at the time in
3 the Republic of Croatia.
4 Q. Are you then denying the hierarchy of legal regulations at the
5 time? Are you denying the fact that a republican act within the area of
6 defence had to be in conformity with the federal law, and the federal law
7 had to be in conformity with the federal constitution?
8 A. At the time, the federal constitution was no longer valid on the
9 territory of Croatia. Croatia had its own constitution, and the law on
10 defence that the Republic of Croatia passed was completely in conformity
11 with the constitution of the Republic of Croatia.
12 Q. Did the Republic of Croatia have its own constitution in 1946,
13 1953, 1974? This is not a new situation, is it?
14 A. No, but the constitution is new. And this act was in conformity
15 with that constitution.
16 Q. Will you agree with me when I say that both the constitution of
17 the Republic of Croatia and act on defence were contrary to the federal
18 constitution and the federal law on defence?
19 A. There may have been some discrepancies. I don't know in which
20 provisions. However, these laws in Croatia were in conformity. And I
21 repeat: The provisions of Article 207 do not mention a situation of
22 conformity or lack of conformity with the constitution.
23 MR. PETROVIC: [Interpretation] May I ask the usher to distribute
24 this document to the parties.
25 Q. Please look at Article 375. This is on your right-hand side. And
1 can you please read the first two paragraphs.
2 A. "The constitutional court of Yugoslavia decides on the conformity
3 of laws with the constitution of the SFRY. Secondly, it decides whether a
4 republican or a provincial law is contrary to the respective federal laws.
5 And thirdly, it decides on the conformity of regulations and other general
6 enactments passed by the federal organs with the constitution of the SFRY
7 and federal laws."
8 Q. Thank you. I'm not asking you about your position as to whether
9 there was a constitutional court, whether it was functioning or not at the
10 time. My question is of a legislative nature. According to the
11 legislation that we have in front of us, was the constitutional court
12 authorised to decide on the conformity of the constitution, laws, and
13 other regulations, with the constitutional -- with the federal
14 constitution and federal laws?
15 A. According to these three paragraphs, the constitutional court was
16 not authorised to decide whether the republican constitution was in
17 conformity with the federal constitution. It was only authorised to
18 decide that on laws.
19 Q. So it was authorised to decide on laws?
20 A. Yes, on laws. But it was not authorised to decide on the
21 constitution of the Republic of Croatia, because at that time it was one
22 of the expressions of the sovereignty of the republics.
23 MR. PETROVIC: [Interpretation] I would like the usher to
24 distribute the following document.
25 THE INTERPRETER: May the English version be put on the ELMO if
1 the interpreters don't have it on hard copy, please.
2 MR. PETROVIC: [Interpretation]
3 Q. Can you please read for the Trial Chamber Article 241, paragraph
5 A. "The armed forces of the Federative Republic of Yugoslavia protect
6 the independent sovereignty and territorial integrity, and the
7 constitutional order of the Socialist Federative Republic of Yugoslavia.
8 The armed forces of the SFRY are a unified unit and comprise the Yugoslav
9 People's Army as the armed force of all the peoples and nationalities and
10 all the working people and citizens, and of the Territorial Defence, as
11 the broadest form of the organised armed resistance."
12 Q. What about the republican armies? Is that mentioned here?
13 A. No, it is not mentioned.
14 Q. Thank you.
15 MR. PETROVIC: [Interpretation] The next document, please.
16 Q. Mrs. Alajbeg, could you please read Article 281, paragraph 1.
17 A. "The Federation shall, through its agencies, one, ensure the
18 independence and territorial integrity of the Socialist Federal Republic
19 of Yugoslavia and protect its sovereignty in international relations;
20 decide on war and peace."
21 Q. Thank you.
22 MR. PETROVIC: [Interpretation] The next document, please.
23 Q. Article 327, would you please look at it. 327. This is in the
24 upper right corner.
25 A. What paragraph?
1 Q. Can you please read paragraph 1 and 2 of this article.
2 A. "The presidency of the SFRY shall elect president and
3 vice-president for a term of one year, according to an order established
4 by the book of rules on the work of the presidency. Presidency of SFRY
5 will promulgate the president and the vice-president of the SFRY."
6 Q. Thank you. Can you briefly tell me: In your view, what are the
7 indicators showing the effective beginning of the Republic of Croatia?
8 What are the elements that point to the beginning of the sovereignty and
9 independence of the Republic of Croatia?
10 A. What is the time reference?
11 Q. 1991.
12 A. First and foremost, we can talk about the declaration, that is,
13 the constitutional decision on the proclamation of independence. This
14 decision was at the constitutional level, has the utmost legal
15 significance in a state, in this case, in a republic. This is a document
16 which expresses the wish of the people after a referendum, the results of
17 the referendum, the constitutional decision, and we can also talk about
18 very strong elements of the expressions of independence.
19 Furthermore, we can talk about other documents, particularly the
20 decision which was passed on the 8th of October on the interruption of
21 legal and state relations with the former state, and other provisions
22 which ensue from that decision with regard to the assuming rights and
23 obligations in the international arena.
24 Q. In your view, when did the Republic of Croatia gain attributes of
25 an independent state? What date was that?
1 A. We are using the 8th of October as the date of independence in all
2 of our legal documents.
3 Q. When did Croatia meet all the factual requirements in order to
4 become an independent state in terms of international law?
5 A. What date?
6 Q. Yes.
7 A. It's not a matter of date; it's a matter of meeting certain
8 conditions, and --
9 Q. Let me clarify. On what date were all the conditions met. The
10 conditions are met one by one. When were they all met?
11 A. It is generally considered that all these conditions were
12 definitely met on the 8th of October, when that term expired. But even
13 before that, on the date of the declaration of independence in June.
14 Q. I will repeat my question. The conditions probably cannot be met
15 all at once. There has to be a time period in which they are met one
16 after the other. What was the moment? You mentioned now two dates. It
17 can't have happened on two dates. At what point in time was the last of
18 the conditions met? I'm referring to the conditions necessary for Croatia
19 to be considered an independent state. You said in June and in October.
20 A. Well, it's one and the same thing, but there was a delay. In my
21 view, it was already on the 25th of June, 1991.
22 Q. Was one of the conditions that the previous state had ceased to
24 A. Not necessarily.
25 Q. Can, then, two states exist in parallel on the same territory?
1 A. No. It was a process, and the Badinter Commission refers to the
2 process of dissolution, in which one republic after the other became
3 independent, thus reducing the size of the territory of the former state.
4 Q. Does this mean that the previous state was reduced in size but
5 continued to exist?
6 A. The former state did not exist any more in full. It no longer
7 comprised all its republics, so it was no longer the same state.
8 Q. You said just now that it was not necessary for the previous state
9 to cease to exist.
10 A. I'm speaking theoretically.
11 Q. Well, my question was theoretical. Did the SFRY, then, continue
12 to exist?
13 A. The SFRY no longer existed as the SFRY.
14 Q. What, then, did exist? Can you explain?
15 A. The rump SFRY continued to exist. It was the state of Serbia and
16 Montenegro, after the other republics disassociated themselves, after the
17 republics of Croatia and Slovenia became independent, what remained was
18 the rump SFRY, which continued to bear the name of SFRY but was no longer
19 the same state.
20 Q. In international law, did the SFRY continue to exist throughout
22 A. There is constant discussion on that point, and there is no
23 agreement on this issue.
24 Q. Well, what is your opinion?
25 A. My opinion was that a state did exist that was responsible for its
1 rights and obligations, but this was no longer the same state, the same
2 SFRY that had comprised all the republics and autonomous provinces.
3 Q. So in international law, the SFRY continued to exist until the end
4 of 1991?
5 A. Not in its entirety. The name remained, but the state was
6 something else. Because had it been the SFRY, it would have had to
7 include all its republics and autonomous provinces. In view of the fact
8 that it did not include all of these, it was a state that bore the same
9 name but did not have the same constitutional and legal meaning as the
10 former SFRY.
11 Q. As far as I can I understand you, you have studied the issues of
12 state recognition, recognition of states, very carefully, and you advised
13 the minister in your country, and your experience here is extensive. In
14 December 1991, did international law recognise the SFRY as an existing
15 state, a state with problems but a state that did exist and that had its
16 own life in international law?
17 A. The issue of continuity, because at that time we can talk about
18 the rump SFRY, they attempted to achieve continuity and to represent that
19 this was the same state. On the international level, the other republics
20 constantly challenged this. Ultimately, this fact was recognised by the
21 later admission of this rump state, that is, Serbia and Montenegro, to the
23 Q. Madam, would you please concentrate and focus on my question. In
24 December 1991, from the standpoint of international law, international
25 organisations, communications, the European Union, the USA, Russia, the
1 United Nations, was there an address belonging to the SFRY?
2 A. Yes, there was an address, but it was no longer the same state.
3 Q. Was there a president of the presidency of that state in December
5 A. In that year, there was no presidency at all, because everybody
6 had left it by then, those states, that is, that had become independent.
7 Therefore, in December 1991, the presidency of the SFRY no longer existed.
8 Q. Can you tell me whether there was a government of the SFRY at that
10 A. Not a government comprising representatives of all the republics
11 and autonomous provinces. There probably was some sort of government
12 there, but it consisted only of representatives that can remained in that
13 country, that is, Serbia and Montenegro.
14 Q. So you say there was no government but there was a prime minister
15 who was from Croatia, there was a foreign minister who was from Croatia,
16 there was a defence minister who was from Croatia, but you say there was
17 no government of the SFRY; is that what you're saying?
18 A. They existed there physically, but they were no longer able to
19 act, nor was anything they did recognised in any way.
20 Q. Throughout 1991 did the international community have contacts with
21 the president of that government, that is, the prime minister,
22 Ante Markovic, who was from Croatia, and is that why the Croatian
23 parliament disassociated itself from all the activities of Ante Markovic,
24 the prime minister, who was nominated by Croatia, who was a Croatian civil
1 A. Yes. The Croatian leadership did disassociate itself from him.
2 Q. Why, if he was not active?
3 A. Because, first of all, he was not fully able to act; and secondly,
4 evidently, he was one of those who were trying to negotiate new agreements
5 with the international community. But he was no longer authorised to do
6 this in the position he held.
7 Q. So in your understanding, the parliament disassociated itself from
8 the activities of Ante Markovic because he was not fully authorised or
9 because he was acting in ways that were not in accordance with the
10 Croatian state policy at the time? Which of these two is correct?
11 A. I assume that both are correct.
12 Q. How can two such opposite statements both be correct? On the one
13 hand, he is unable to act, but the things he is doing are against Croatia.
14 How can you reconcile the two?
15 A. Well, first of all, he was not able to act. He was obstructed.
16 And the main problem at the time was that Markovic, as the president of
17 the federal Executive Council, was in no way able to stop the war
18 operations in the Republic of Croatia or the aggression on the Republic of
19 Croatia, and I think that this was the main reason why Croatia
20 disassociated itself from him. His inability to protect the order and to
21 protect Croatia.
22 Q. Would you please tell me something else now. If there was
23 something he was unable to do, this is non-action. But the Croatian
24 parliament disassociated itself from his actions, not from what he was not
25 doing, not from what he was failing to do.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 A. Well, first of all, he himself said on several occasions, in
2 public, that he was being obstructed and that he was unable to stop the
3 activities of the then-JNA in their aggression; and secondly, probably
4 Mr. Markovic was probably seeking some new forms, which Croatia obviously
5 disassociated itself from.
6 Q. Was Croatia disassociating itself from what he was doing or what
7 he was unable to do?
8 A. I would have to look at the text of the conclusion to see what it
9 says exactly.
10 Q. I'll try to find it now. Just bear with me for a while.
11 MR. PETROVIC: [Interpretation] Maybe my learned friend, Ms. Lamb,
12 can help me. The conclusion on disavowing Ante Markovic and the others, I
13 can't find it at the moment.
14 Your Honour, please bear with me for a moment. I've found it now.
15 This is in the first binder, tab number 8, the document marked 1677. The
16 ERN number ends in 362 in the B/C/S version, 362.
17 Q. Would you please look at document 1677, dated the 5th December
18 1991, and would you please read out paragraph 8.
19 A. "In accordance with the decision of the assembly of the Republic
20 of Croatia of the 8th of October, 1991, by which the legitimacy and
21 legality of all bodies of the former Socialist Federal Republic of
22 Yugoslavia was revoked, the assembly of the Republic of Croatia does not
23 recognise and rejects all activities by Ante Markovic, prime minister of
24 the former federal government, and Budimir Loncar, a minister in that
25 government, that could have consequences of any kind for the Republic of
2 Q. Thank you. Is it clearer to you now? Is it easier for you now to
3 tell us what this is about?
4 A. Yes. It's clear to me. This sounds almost like a preventive
5 measure. The assembly is distancing itself from the activities of these
6 two civil servants, of these two people, which might have any kind of
7 consequences for the Republic of Croatia. So not from everything they do,
8 but from whatever they do that could have consequences for the Republic of
10 Q. Please read the text.
11 A. The text that have or could have consequences. Yes. So these are
12 consequences for the Republic of Croatia.
13 Q. Would you then, please, clarify what this is about. Why is the
14 parliament rejecting what the prime minister of the federal government is
15 doing and what the foreign minister in that government is doing? What
16 were their political standpoints and role at the time? What was the
17 attitude of the international community towards the prime minister and the
18 foreign minister in that government and their legitimacy?
19 A. Well, we know that as of the 8th of October, when all formal state
20 links were dissolved, there was no representative of Croatia in the
21 presidency, and these two who formally remained at their posts were
22 considered not to have done enough to protect the Republic of Croatia at
23 the time. And the Republic of Croatia was then suffering from aggression
24 and partial occupation.
25 Q. Is Croatia disassociating itself from their activities because
1 they are acting in accordance with the constitution and the laws of the
2 SFRY which were in force at the time?
3 A. No, that's not what is said here.
4 Q. How, in Croatia, was the fact that Ante Markovic retained his post
5 as prime minister of the federal government, how was this viewed in
7 A. Well, in Croatia, it was known that Mr. Markovic, the then-prime
8 minister, practically had no authority any more. Therefore, he was viewed
9 as a person without power and a person who had no possibility of doing
10 anything. That's how he was seen. He did come for consultations, as far
11 as I can remember, and at one point in October he came for consultations
12 when the presidential palace was bombed, where he and President Tudjman
13 and Mr. Mesic, the then-member of the presidency, were meeting. So he was
14 definitely a person who was not welcome in Belgrade. But unfortunately,
15 he did not do -- or was unable to do more for Croatia.
16 Q. Tell me, please: Why did the Croatian parliament reject only
17 those two, the prime minister and the foreign minister? Why did not they
18 reject the other ministers? Why was it these two whose activities they
20 A. Well, obviously, because they didn't want to interfere in the
21 business of other republics and civil servants from other republics.
22 These two were considered people from Croatia.
23 Q. Who kept their jobs and remained at their posts until the end of
24 December 1991?
25 A. Yes, but formally.
1 Q. I wouldn't agree that they remained formally, because had they
2 been there formally, there would have been no reason for the parliament to
3 reject their activities.
4 A. I cannot go into detail of how formal that was or not, but to a
5 greater part, it was formal, because they did not have any power or
6 authorities. I know that in the ministry where I worked, Mr. Loncar was
7 absolutely marginalised.
8 Q. But that was enough -- his activities were enough for the Republic
9 of Croatia to disassociate itself from him, regardless of what those
10 activities were?
11 A. Yes.
12 Q. Thank you.
13 JUDGE PARKER: Mr. Petrovic, before we leave that document at tab
14 8, in the English language translation, 3091154, the date is 5 November
15 1991. In the document 894362, the B/C/S, it appears to be -- is that 5
17 MR. PETROVIC: [Interpretation] Your Honour, I apologise for not
18 having noticed this myself. I should have. This must be a mistake in
19 translation. The Official Gazette was published on the 9th December 1991,
20 and in the B/C/S version, in the last line of the B/C/S version, it says
21 5th December 1991. So obviously there's a mistake in the translation,
22 just as you have noticed. This should read "Zagreb, 5 December 1991."
23 And I thank you for your intervention.
24 Q. We were talking about the dissolution of the SFRY, and we left it
25 off with your opinion, if I may quote or interpret it, that the existence
1 of one state does not necessarily mean that another state has stopped
2 existing. Am I right?
3 A. Yes, theoretically.
4 Q. When did the SFRY break down? When was it dissolved?
5 A. There was no single date. It was not based on any agreement or a
6 treaty. It was a process. We can only talk about a process which lasted
7 for a while. We can talk about dissolution.
8 Q. What does the Badinter Commission say about that?
9 A. The Opinion number 1 says that Yugoslavia is in the process of
10 dissolution. According to them, the process was on at the time.
11 Q. When did Yugoslavia break down, according to Badinter's
12 Commission? I want to be sure that you understand my question.
13 A. Badinter himself did not say Yugoslavia broke down on
14 such-and-such date. He only mentioned certain dates of succession for
15 particular states. The process was on, and as various republics became
16 independent and assumed their right to sovereignty and independence, the
17 dates of succession were established. Those are the dates when these
18 republics became international subjects, according to international law.
19 The process lasted until the moment when the last state became an
20 international subject, and you can read that in Opinion number 11.
21 Q. Madam, are you familiar with the opinions of the Badinter
22 Commission? Have you read them recently?
23 A. Yes, I've read those opinions. I cannot quote them off my head,
24 but I'm familiar with them.
25 Q. When was it that you read them last time?
1 A. I am reading them from time to time, depending on the matter that
2 I am studying at that moment.
3 Q. Do you consider yourself as a person who is familiar with the
4 Badinter Commission's opinion, who can testify about those opinions before
5 this Trial Chamber?
6 A. I cannot say that this is the only thing that I was dealing with.
7 This was our accessory material that we used in our everyday work.
8 MR. PETROVIC: [Interpretation] Can the Opinion number 8 be given
9 to the witness? This is binder 1, tab 9, Opinion number 8.
10 Q. Have you got this opinion?
11 A. Yes.
12 Q. Can you please look at the conclusion, paragraph 4 of Opinion
13 number 8. Can you please read it. You have it in B/C/S as well.
14 A. This is an opinion dated 4 July 1992. In paragraph 4, it says:
15 "The Arbitration Commission -- [In English] The process of dissolution of
16 the SFRY referred to in Opinion number 1 of 29 November 1991 is now
17 complete, and that the SFRY no longer exists."
18 Q. What is the date?
19 A. [Interpretation] I apologise. The opinion was issued on the 4th
20 of July, 1992.
21 Q. Do you still claim that there is nothing in Badinter's opinion on
22 the date when the dissolution was finalised, or does this refresh your
24 A. Yes, this does refresh my memory. He says that the process is now
25 complete. He also did not mention the date when this was complete. This
1 opinion was issued on the 4th of July. However, Badinter does not mention
2 the date when the process was complete. He just states that the process
3 is complete. We cannot say exactly that this or that date is the date
4 when Yugoslavia finally broke down.
5 Q. So you do not accept the opinion issued on the 4th of July, 1992,
6 which was given to Lord Carrington's question put on 18 May 1992, and the
7 answer was that the process was now complete?
8 A. I accept this opinion fully, and I accept the statement from this
9 opinion, according to which the process was complete. Because it was then
10 clear that even for the last republic, Serbia and Montenegro, the date of
11 succession was determined as the 27th of April, 1992. So this opinion
12 merely states that the process was complete, because the last republic had
13 been given its date of succession, that is, its date of independence.
14 Q. Why doesn't it say, then, 27 April 1992 as the last date of the
15 breakdown of the SFRY? Why does it clearly say - the linguistic
16 interpretation of this text is very clear - "it is now considered that the
17 process of dissolution is complete and that Yugoslavia no longer exists"?
18 A. Yes, but this opinion is not a constitutive paragraph and it does
19 not mean that this Badinter's opinion -- this Badinter's sentence
20 implicates that the process was complete on the day of the opinion. This
21 is a mere statement that the process is complete. It's just a
22 declaration. It is not a constitutional sentence.
23 Q. Does it mean that the SFRY, in the process of dissolution, still
24 existed in the first half of 1992, the process of dissolution was on,
25 however, the state existed?
1 A. Yes. Some elements did exist for as long as the elements of the
2 republic which was not independent existed. Some elements of the former
3 state existed with it.
4 Q. In your statement, you mention and you interpret the wish of the
5 people to become independent as one of the strong facts which contributed
6 to the factual independence of Yugoslavia. What has that to do with the
8 A. In the constitution of the Republic of Croatia, in its
9 introduction, it says that the sovereignty and territorial integrity and
10 independence were the expression of the wish of the Croatian people. Some
11 historical facts are mentioned there as well, explaining how the present
12 Croatia came about. Within that context, the strife of the Croatian
13 people is mentioned.
14 Q. What bearing does that have on the constitutional order and
16 A. This is not the only reason why Croatia became independent, but
17 this element is mentioned together with all the others.
18 Q. Does it happen frequently that some territories, some entities,
19 want independence and they don't gain it at that moment, or maybe even
20 ever? Is that something that happens often in today's world? Maybe there
21 are dozens of examples of that sort.
22 A. I would like to limit myself to our territory. It is a well-known
23 fact that Croats had this territory in the past, its state in the past,
24 and always wanted to have their own state again. However, in this
25 particular case, the independence was gained primarily after the
1 aggression against Croatia, once it was obvious that there were forces in
2 the former state that were capable of launching an aggression against our
3 territory, of committing crimes on our territory. In that case, the
4 Croatian people and the people who resided on the territory of Croatia no
5 longer wanted to stay in such a state.
6 Q. On several occasions you mentioned aggression, yesterday and
7 today. Tell me, please: Which international body established the fact
8 that there was aggression? Is there a document issued by any relevant
9 international body, starting with the United Nations, which would
10 characterise the events that you mentioned as aggression?
11 A. As far as I remember, there is a resolution by the United Nations
12 talking about occupied areas, which clearly shows that these are occupied
13 areas in the Republic of Croatia and that these areas were occupied by the
14 occupying force. The term "aggression" is not used often by the
15 international community, for the reasons of caution.
16 Q. Why caution? Where does this abundance of caution come from?
17 Does it come from the fact that this may not be true, that this may be a
18 fabricated thesis? Why does this thesis not meet approval by the
19 international community?
20 A. I'm not saying that there is no approval, that there's no support.
21 This term is simply not used a lot. I have mentioned a document. I
22 cannot quote it, because I don't know it off my head. That is the
23 resolution on the occupied territories in the Republic of Croatia. I
24 believe that this was aimed at the future, peaceful resolution of the
25 situation, instead of coming at a solution through a war, a peaceful
1 solution was sought, and that's why this vocabulary was avoided.
2 Q. Are you saying that the international community avoids calling a
3 spade a spade?
4 A. Yes, sometimes.
5 Q. From what you have just said, it seems that it is always the case.
6 A. No. I was only talking about aggression. I believe that the word
7 "aggression" should be mentioned more often than it is.
8 Q. You're also saying that the 8th October is taken as the date of
9 recognition, and further on you say that this was done by other states
10 because the recognition of the Republic of Croatia happened on or around
11 that date, or soon after that date. Please tell me -- this is what you
12 stated in paragraph 6 of your statement that you gave to the OTP. You
13 said "around that date." Who recognised Croatia before that date?
14 A. I apologise.
15 Q. Who recognised Croatia before the 8th of October?
16 A. I mentioned Slovenia, I mentioned Lithuania. These two states, as
17 far as I remember, and then there is a series of states --
18 Q. I'm asking prior to that date.
19 A. I'm sure about these two states.
20 Q. Let me finish, please. Are there any other states which recognise
21 Croatia before the 8th of October?
22 A. I don't remember whether it was done expressly by a written
23 document, but in any case, they came in contact with Croatia and tacitly
24 recognised it, because Croatia had contacts at that time with a number of
1 Q. Are you then saying that there was recognition in international
2 legal terms, or are you talking about contacts and conclusive actions?
3 A. The existence of a fact is questio facti.
4 Q. Madam, I am just asking: Who was it who recognised Croatia before
5 the 8th of October? I apologise, and I apologise to the interpreters. My
6 question was clear. Who recognised Croatia before the 8th of October?
7 And your answer was?
8 A. In writing, but by inconclusive manner, a number of states
9 recognised Croatia by coming into contacts with it. A written recognition
10 is not a condition for the recognition and the existence of a state.
11 Recognition may -- does not have to be in a written form; it can be a
12 conclusive act consisting of one state getting in contact with another
13 state. And there were a number of such states which did that.
14 Q. Are you saying that a state may be recognised by a conclusive act?
15 Are you saying that a relationship with an entity - please let me finish
16 my question - that a relationship, whether a political, economic, or some
17 other kind, with another entity, is a conclusive act from which the fact
18 of recognition may be drawn?
19 A. Yes, that's possible.
20 Q. If, in this period of time, from June to October, or later,
21 Croatia had contacts with the SFRY, let's say, is this also a conclusive
22 act, meaning that it recognised the SFRY, if it concluded a contract with
23 the SFRY or a treaty, does this mean that it recognises it?
24 A. Signing an international treaty with any state constitutes the
25 recognition of that state.
1 Q. If, for example, the Republic of Croatia and the SFRY entered into
2 a treaty in the period under discussion, does this mean that they
3 recognised each over?
4 A. If they did, that is, if they signed an international treaty, that
5 would, yes, include recognition.
6 Q. Did Croatia enter into any such treaty with the SFRY?
7 A. I don't remember any such treaty in this period of time. Up until
8 the 8th of October 1991. But we did enter into such treaties later on.
9 Q. What about November? Were Croatia and the SFRY -- had they
10 entered into a treaty in November? Would this mean that they conclusively
11 recognised each other?
12 A. Unless something else follows from the nature of such a treaty.
13 Q. Is signing a treaty one of these conclusive acts?
14 A. Yes, a real international treaty. But I can give you an example.
15 For example, in war situation, if states do not recognise each other yet,
16 they can enter into agreements, for example, on the exchange of prisoners,
17 or something like that. But this cannot be considered to be an
18 international treaty that would include recognition. These are
19 exceptional circumstances. However, international treaties in the normal
20 sphere of activity of a state are considered conclusive acts of
22 Q. Who recognised the Republic of Croatia in this conclusive way?
23 A. I cannot give you a complete list at this moment, because I know
24 that we had many activities internationally, that there were many visits
25 to Croatia, and that Croatian officials visited abroad, especially the
1 minister of foreign affairs.
2 Q. Was an embassy opened in Belgrade, or were diplomatic relations
3 established with another country on the basis of such conclusive acts?
4 A. No. That is a higher level of relationship, a higher level than
5 just recognition. But Croatian offices were opened. These were not real
6 embassies, but they were offices, and they were opened with permission
7 from those states.
8 Q. I didn't hear which states conclusively recognised Croatia.
9 A. I didn't tell you, because I don't have the list before me. What
10 I am saying is that there were numerous contacts with other countries, and
11 relations were entered into without written recognition, as such.
12 Q. Mrs. Alajbeg, please focus on my question. You said that
13 recognition can be formal or conclusive.
14 A. Yes.
15 Q. Then you said that some states recognised the Republic of Croatia
16 conclusively before the 8th of October, and generally in that period. I'm
17 asking you now very simply which states those were.
18 A. I cannot tell you that, because I have already said I don't know
19 exactly which ones they were, because the minister of foreign affairs had
20 numerous contacts with his counterparts in other countries. And I cannot
21 give you a comprehensive list of those countries now. I would need more
22 time and more information.
23 Q. Well, tell me just one. That's brief enough. It won't take too
24 much time.
25 A. Well, one -- another Baltic country recognised us before the 8th
1 of October.
2 Q. Which one?
3 A. Lithuania or Latvia or Estonia. I can't remember which one
4 exactly. But I know that we had numerous intensive contacts, and I think
5 that letters were exchanged before the date in question.
6 Q. So you don't know which country recognised you?
7 A. I can't tell you precisely which countries these were. It would
8 be very hard for me to speculate right now. I did not prepare for such a
9 question. But I repeat again: There was lively international activity
10 between other countries and the Republic of Croatia.
11 Q. For an emerging state, a state that is struggling to achieve
12 international recognition, any recognition would be so important that
13 everybody would know about it. They would remember it as a very important
14 event. And you can't remember.
15 A. I do remember which countries recognised us formally, in writing,
16 through an exchange of letters, or in writing in some other way. I do
17 know this because we kept records of this. But which country -- or which
18 countries entered into relationship with the Republic of Croatia and the
19 minister of foreign affairs, I cannot give you a list of those. There
20 were even some Asian and African countries.
21 Q. You probably can't enumerate those because you were working in the
22 Ministry of Foreign Affairs of the federal state in Belgrade.
23 A. Probably that's one of the reasons, yes.
24 Q. Can an unrecognised country recognise another country?
25 A. It can do that, but this has no weight in international law.
1 Q. Was Lithuania an internationally recognised state at the moment it
2 recognised Croatia?
3 A. I assume it was, but I can't assert that because I don't know the
4 date of their recognition.
5 Q. Well, if they were not an internationally recognised country, this
6 would not have any weight.
7 A. Well, they were a state, just as Croatia was a state, and so was
8 Slovenia. We recognised each other. So we therefore consider Slovenia to
9 be the first state that recognised Croatia. This is all a question of
10 facts. It's not a legal issue that involves the precise date of the
11 creation of a state in a formal way. This is a question of facts, of the
12 creation and recognition of a state, not necessarily only a question of
13 formal documents.
14 Q. I am not talking about facts now; I'm talking about recognition,
15 so please focus on my question. I'm asking about recognition. You said
16 that an unrecognised state cannot recognise anyone. That's what you said
17 just a minute or two ago.
18 A. How do you mean "unrecognised"?
19 Q. A country that does not exist as a subject of international law, a
20 country which is not a subject of international law. Can it recognise
21 anyone? Can Lithuania, or can Latvia, not being a state at the time it
22 recognised Croatia, can it recognise the state of Croatia with any legal
24 A. Any country can recognise another country, but what the effect of
25 this is is a matter of evaluation. Any state has the right to do that,
1 whether it is a subject of international law or not. But what the weight
2 and effect of such recognition is, that's a different issue.
3 Q. So what are the effects of recognition by an unrecognised state?
4 Are they significant, insignificant?
5 A. It depends on your viewpoint. For a state that is desirous of
6 recognition, the effect of any recognition is very great. But from the
7 viewpoint of somebody else, this is not the case. So it's hard to say. I
8 cannot say that recognition is non-existent, that it's not worth anything.
9 Q. What were the effects of Lithuania recognising Croatia?
10 A. I don't know what the status of Lithuania was at the moment.
11 Q. Well, let me help you. At that time, Lithuania was a state which
12 was a part of the USSR, which disintegrated only at the end of August
13 1991. So if we assume that Lithuania was not an internationally
14 recognised state, what were the effects of Lithuania recognising Croatia?
15 A. The Soviet Union did not --
16 Q. I have to interrupt you. Please, let's not waste the precious
17 time of this Tribunal, and our precious time. If Lithuania was not an
18 internationally recognised state, and it recognised Croatia, what was the
19 effect of this? Very simple. You said this was something that was open
20 to discussion.
21 A. Well, first of all, I want to know whether Lithuania was an
22 independent state at the time.
23 Q. Let us assume that it was not.
24 A. Well, that's just an assumption. I want to know the facts,
25 because the Baltic states became independent before the other republics of
1 the former Soviet Union, so the date is not the same for all of the former
2 Soviet states.
3 Q. Well, what about Northern Cyprus and its recognition of Croatia?
4 Explain this.
5 A. We don't talk about this because it is not an existing state.
6 Q. Mrs. Alajbeg, yesterday you said that the Republic of Northern
7 Cyprus recognised Croatia. I'm asking you what the effects of this
8 recognition were.
9 A. We did not include that state in the list of states that
10 recognised Croatia because it is generally known that this state is not
11 recognised by the international community. Lithuania at that time was
12 recognised in the international community.
13 Q. So the effects of recognition by a state that does not exist in
14 international law are null and void; they're insignificant; they mean
15 nothing. Do you agree with me?
16 A. First we have to clarify what you mean by "state" in international
17 law. What states exist according to international law. But the emergence
18 of a state is an issue of fact, and we can find this in the opinions of
19 the Badinter Commission. The creation of a state is not a purely legal
21 Q. Well, then let us discuss these questions of fact. Yesterday you
22 mentioned three conditions, and these conditions are found in the Badinter
23 opinions. The three conditions that have to be met, in fact, for a state
24 to be seen as a state in international law. You mentioned territory,
25 population, and a functioning government having authority over the
1 territory and the population.
2 A. Yes.
3 Q. Well, tell me now: Which of these elements does Northern Cyprus
4 lack, so as not to be a state in international law, and yet it's not a
5 recognised state?
6 A. I think that Northern Cyprus is not at issue here, and I wouldn't
7 like to enter into explanations of the political and legal situation in
8 Northern Cyprus. I don't think I have to answer this question.
9 MR. PETROVIC: [Interpretation] Your Honour, I think that the
10 reason for my asking this question is clear. I'm putting it because it's
11 possible for the criteria to be met and yet for a state not to be
12 recognised, or rather, not to have the character and status of a state.
13 I'm simply trying to draw a parallel, to point to a situation where we
14 have a state that has all the requirements, that meets all the
15 requirements, and yet will probably never be recognised as a state
16 internationally. And the witness mentioned this yesterday herself, in
17 answer to the Prosecutor's question. And she even said that she had
18 advised the minister as to whether the state of Northern Cyprus should be
19 recognised or not.
20 JUDGE PARKER: I think, Mr. Petrovic, your point has in fact been
21 made. You may, if you wish, put each one of the three stated requirements
22 one by one and see whether or not, in the view of the witness, they had
23 been met at the relevant time, and you could then leave the matter there
24 if you wished, or you could leave it as it is now.
25 MR. PETROVIC: [Interpretation] Thank you, Your Honour.
1 JUDGE PARKER: Is this a convenient time or are you going on?
2 MR. PETROVIC: Yes, Your Honour. Thank you.
3 JUDGE PARKER: I think it would be a useful time to have a break,
4 to freshen up. We will resume in 20 minutes.
5 --- Recess taken at 12.12 p.m.
6 --- On resuming at 12.40 p.m.
7 JUDGE PARKER: Mr. Petrovic.
8 MR. PETROVIC: [Interpretation] Thank you, Your Honour.
9 Q. Mrs. Alajbeg, please tell me: In the theory of international law,
10 is there a difference between succession and international recognition?
11 A. Yes, there is. Succession is a very distinct institute of
12 international law.
13 Q. Can you please explain the difference.
14 A. Succession is, in terms of the rights and obligations and
15 international treaties, and there is also succession in terms of material
16 obligations, if you're talking about that, succession in terms of
17 archives, assets, property, liabilities, and international treaties. That
18 is a matter which is regulated by two conventions within the United
19 Nations. Both are the so-called Vienna Conventions. A recognition, on
20 the other hand, is a different institute, a different -- pertaining to
21 international law. But these two terms are closely connected. There is a
22 link between them, if we're talking about dates.
23 Q. I'm happy with your answer. Thank you very much.
24 In the theory of international public law, is there a difference
25 between the international legal subject and succession?
1 A. Again, this is not an identical institute. However, when we talk
2 about succession, it is very important to establish whether a state is an
3 international subject, in order to be able -- the starting date of
4 succession. So this is a sine qua non for succession and dealing with
5 issues pertaining to succession.
6 Q. If an entity assumes the right and obligation in international
7 relations, will it also acquire a character of an independent state in
8 international law?
9 A. We have defined the assumptions preceding the creation of a state,
10 and if the state meets all these requirements, it should become a subject
11 under the international law. If a state believes that it has become an
12 international subject on a certain date, it can proclaim that date, and
13 then this date counts.
14 Q. Is the subjectivity acquired on the moment when the rights and
15 liabilities are taken over? Yes or no.
16 A. I would say that subjectivity is acquired when conditions are met,
17 the conditions for an entity to become a state, and one of these
18 conditions is taking over rights and obligations.
19 Q. Is it then the same moment, the same moment when the rights and
20 obligations are taken over, also the moment when independence is gained?
21 A. It is very difficult to speak about any moment when a state is
22 created, because meeting certain conditions is also a process. However,
23 if the state is of the opinion and if it declares that the conditions are
24 met and that it is ready to take over all its rights and obligations, then
25 this is when all the doubts stop existing.
1 Q. Is this just a declaration, or is this a constitutional act?
2 A. For a state to become a state, this should, as a matter of fact,
3 be an act of declaration, although a state may be able to meet all the
4 conditions of a statehood. However, if it does not wish to become an
5 independent state, and if it declares so, then it will not be a state. It
6 is important for all the conditions to be met, but it is also very
7 important for a state to declare its wish to become an independent state,
8 a state which is created for the first time.
9 Q. Since a declaration of independence, it is a declaration, in
10 theory, it is possible for somebody to issue a declaration without having
11 first met the conditions for a state to become independent? I am talking
12 theoretically; I'm not asking about any specific situation.
13 A. In theory, this is possible.
14 Q. If it is right to assume that the Republic of Croatia did not
15 factually meet all the conditions and it still declared its independence,
16 that would mean that although Croatia did declare its independence, it
17 still did not factually become independent.
18 A. When we're talking about Croatia, I believe that this is not the
19 case. If we're talking in general terms, then it is possible for a state
20 to proclaim its independence without first meeting all the necessary
22 Q. In paragraph 7 of your statement, you stated -- I will withdraw
23 this question. I'll come back to it later. I apologise.
24 You accord a lot of significance to the fact that there was a
25 referendum, and you mentioned that as a very important event on Croatia's
1 road to independence. Can you please tell me who participated in the
2 referendum which was held in the Republic of Croatia in May 1991, if I'm
3 not mistaken.
4 A. I believe that it was in April rather than in May. The results
5 were announced in May. The citizens of the Republic of Croatia
6 participated in this referendum. The turnout was over 80 per cent, and
7 the positive answer was given over 90 per cent of the voters. I wouldn't
8 be able to give you the exact figure, but in any case, over 90 per cent of
9 all the citizens gave the positive answer.
10 Q. Did Serbs residing in Croatia participate in this referendum?
11 A. Most of them did. That's what we can read in the reports.
12 Q. Are you aware of the fact that there are municipalities in Croatia
13 in which polling stations were not even open on the day when the
14 referendum was held?
15 A. No, I wouldn't know that. I don't know that there were such
17 Q. Are you aware of the fact that in one-third of the territory of
18 the Republic of Croatia the referendum was carried out sporadically in
19 some local communes inhabited by the Croat population?
20 A. I don't know. It's very difficult for me to give you an opinion
21 or a comment on that. But the fact is that over 80 per cent of all the
22 citizens of Croatia voted in the referendum, and this figure shows that it
23 is highly probable that Serbs and representatives of other peoples
24 participated in this referendum.
25 Q. How do you know that there were representatives of other people
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 who participated in the referendum?
2 A. I believe that the representatives of the Serbian people spoke of
3 that and that they said that a lot of Serbian population participated in
4 the referendum. For example, in Zagreb, there were 160.000 Serbs residing
5 at the time, and most of them participated in the referendum.
6 Q. With all due respect, how do you know whether a Serb did
7 participate or not?
8 A. Personally, I don't know. I'm just conveying the messages from
9 the reports, from the media. I'm just conveying the messages delivered by
10 the representatives of the Serbian people, who said that a lot of Serbs
11 did vote in the referendum, especially in larger towns.
12 Q. Did the Serbian representatives invite Serbs and ask them not to
13 vote in the referendum?
14 A. I don't know, but even if they did so, the fact is that a number
15 of people - I don't know how many - decided to vote in the referendum.
16 This referendum was not designed only for one people, and it was not
17 carried out with only one people voting.
18 Q. Tell me, please, with regard to your statement that you gave
19 yesterday: Do you know the percentage of Serbs that resided in Croatia
20 prior to 1991 and the percentage that reside in Croatia today?
21 A. In the media, I read -- it was 11.something, almost 12 per cent of
22 the Serbian population resided in the Republic of Croatia.
23 Q. And today, how many Serbs reside in Croatia today?
24 A. According to the last census, between 5.5 and 6 per cent,
25 approximately, between 5 and 6 per cent.
1 Q. What happened to 50 per cent of the Serbian population since then?
2 A. A lot of things happened to various peoples, including Croats.
3 During a war, a lot of residents left Croatia. This applies across the
4 board. Most of the Serbian population left Croatia upon the invitation of
5 the Serbian government in 1995. They abandoned the areas where Serbs
6 traditionally lived.
7 Q. Are you referring to the 300.000 Serbs who were expelled from
8 Croatia on the 4th of August, during the Storm Operation?
9 A. I wouldn't be able to give you the exact number; and secondly, it
10 is well known that they left together with the leaders of their
11 paramilitary state, Martic and the others, who, as a matter of fact,
12 despite the assurances of the government of the Republic of Croatia, that
13 in the military operation to liberate the occupied areas, they should stay
14 on the territory. They decided not to listen to that and leave for
15 Serbia, together with their leaders. Some also left for the
16 Srpska Republika in Bosnia-Herzegovina, but most of them left for Serbia.
17 Q. My last question about that topic: How many Serb civilians were
18 killed during the Storm, and how many indictments were raised by this
19 Tribunal for the crimes committed during that operation?
20 A. I wouldn't be able to give you a figure. I don't know how many
21 indictments have been raised.
22 MS. LAMB: Your Honours --
23 JUDGE PARKER: Ms. Lamb.
24 MS. LAMB: If I may, I would like to place on record an objection
25 at this point to the relevance of tendency in my learned friend's
1 cross-examination. Its irrelevant to the issue presently before the Trial
3 JUDGE PARKER: That's noted. Thank you. That is noted. Thank
5 MR. PETROVIC: [Interpretation] That was my last question on the
6 subject, so I will not go back to that.
7 Q. Please tell me this: If the independence of a state is a factual
8 matter, how can a factual matter be delayed? The thing does exist or it
9 doesn't. It cannot be delayed. If this really existed, how could it then
10 be delayed by two or three months?
11 A. This was possible because a state may meet all the requirements;
12 however, if it does not wish to be declared as an independent state, it
13 doesn't have to declare itself as a state. It doesn't have to be
14 constituted as a state.
15 Q. So Croatia gave up on the desire to be formed as an independent
16 state in July 1991?
17 A. No. Together with Slovenia, in agreement with the international
18 community, especially the European Community, accepted for the effect of
19 these decisions to be delayed by three months.
20 Q. Why was the effect of these decisions delayed by three months?
21 A. The reason was the fact that international community believed that
22 the problems that existed at the time could be resolved during that period
23 of time, and after that, they wanted to see what would happen next. In
24 any case, first and foremost, the goal was to prevent the escalation of
25 armed conflict.
1 MR. PETROVIC: [Interpretation] I would kindly ask the usher to
2 give the witness binder 1, tab 5, document in English, 576260 -- 57056261.
3 That's the joint declaration on Yugoslavia.
4 Q. Do you have the text of the joint declaration in front of you? You
5 have also a translation into B/C/S.
6 A. Yes. I'll read this, then.
7 Q. Have you found it?
8 A. Yes, I have.
9 Q. Are you familiar with this document?
10 A. Yes. We have already discussed the Brioni Declaration, as far as
11 I can remember.
12 Q. Is that the document?
13 A. Yes, it is.
14 Q. Can you please find the place in which the three-month moratorium
15 on the independence of the Republic of Croatia is mentioned in this
17 A. Just a moment. I have to go back to the original text, because I
18 can visualise it better when I'm looking at the original rather than at
19 the translation. I'm sure that there was this period of three months.
20 I'm trying to see whether it is in here, or maybe it's somewhere else. In
21 any event, this period was agreed upon.
22 JUDGE PARKER: Could I mention Article 2, the first of the
23 paragraphs - sorry - the second of the paragraphs. The monitor mission is
24 given three months.
25 MR. PETROVIC: [Interpretation] Your Honour, that is in the annex,
1 directions for the monitoring mission.
2 A. Yes, but that's an integral part, the annex.
3 MR. PETROVIC: [Interpretation].
4 Q. In the body of the text of the joint declaration, where has it
5 been established that there would be a three-month suspension, and whether
6 this is in this document at all?
7 A. Apart from what it says here concerning the mandate of the
8 monitoring mission, that is, this three-month period, I do not see it in
9 the declaration itself, but it is definitely something that was agreed
10 upon. I do not exclude the possibility that there is some other agreement
11 where this is set out, but it's a well-known fact, and all the
12 participants in the efforts to resolve the situation at that time,
13 including the European Community, are aware of the fact that a three-month
14 delay was asked of Slovenia and Croatia.
15 Q. Madam, I asked you whether in the joint declaration, the
16 Brioni Declaration of the 7th of July, 1991, there is a clause concerning
17 the moratorium. Is there or is there not?
18 A. In the text of the declaration itself, the expression "three-month
19 moratorium" is not found.
20 Q. Do you see anywhere any reference to the suspension of
22 A. No. The suspension of independence is not mentioned. But what
23 His Honour mentioned is the activities of the observer mission.
24 Q. The length of this mission, what has it to do with the suspension?
25 A. Well, it has, because the mission was established for the very
1 purpose that it should monitor the situation during this three-month
2 suspension and then report back to the council as to whether there had
3 been any positive or negative developments in the area.
4 Q. May we conclude, then, that a suspension existed in a conclusive
5 manner? Do you know in what document this can be found, or are you
6 drawing this conclusion on the basis of the monitoring mission's term?
7 A. I'm trying to remember what other document may have regulated
8 this. I do not exclude the possibility that there may be another document
9 of which I'm not aware at this moment.
10 Q. Mrs. Alajbeg, is the key document on which you base your entire
11 theory of a three-month suspension, and to which you link the 8th of
12 October, is it this one? Is it possible that you don't know what document
13 you're talking about?
14 A. I know definitely that this was agreed on. It's not only I who
15 know this; this is a well-known fact. But I do not know of any document
16 now which spells this out. I would have to consult the documents.
17 Q. Do you know that while you are under your solemn affirmation
18 before this Tribunal, you are not allowed to communicate with anyone about
19 your testimony?
20 A. Yes.
21 Q. Well, I understood you to say that you are going to contact
22 someone and ask what document this was.
23 A. Well, not during my testimony.
24 Q. Well, believe me, I'm interested only in what you will do or say
25 during your testimony. Do you know what document contains a reference to
1 this suspension?
2 A. I can't say that I know in what document the suspension is
3 explicitly mentioned.
4 JUDGE PARKER: Mr. Petrovic, could I interrupt, for two reasons.
5 Firstly, to draw your attention to the time and the need for the witness
6 to finish today, and there must be time allowed for re-examination. We
7 appreciate that you've covered a lot of important ground in the course of
8 the cross-examination, but I'm getting a little concerned now at the hour.
9 The second reason for my intervention, Judge Thelin has pointed to
10 the annex again, and the first page of it, and item 4 refers to "the
11 suspension period of three months," which may be of assistance to you and
12 the witness.
13 MR. PETROVIC: [Interpretation] Your Honour, allow me to say two
14 things. The first concerns the length of my cross-examination. When I
15 look at the time, and when I look at the amount of material, important and
16 interesting material, I'm absolutely not in a situation to conclude my
17 cross-examination today. I have a large number of extremely important
18 questions. I'm proceeding very slowly because the witness is being
19 evasive and is answering at great length. I have to repeat the same
20 question over and over again, although it is clear to all of us that it is
21 possible to answer briefly and concisely to each question.
22 Therefore, I ask that a way be found for Mrs. Alajbeg to come
23 back, at any time convenient to her, if, of course, the Trial Chamber
24 finds this appropriate. I have many pages in front of me, and documents
25 which I wish to adduce into evidence, and I cannot fail to examine on
1 these documents. You can see for yourselves the problems we come across
2 in this testimony in relation to a key document. That is why I ask you to
3 consider my request.
4 And as for your second remark, I do thank you. I was about to
5 draw the witness's attention to this myself. There are some indirect
6 indications, but this is obviously not the document that the witness was
7 relying on in her testimony. Thank you.
8 JUDGE PARKER: Ms. Somers.
9 MS. SOMERS: Thank you, Your Honour. Bearing in mind that under
10 Rule 90(H), the subject matter of cross is limited to the evidence in
11 chief, whereas some of this certainly has been falling within those
12 parameters, it is clear that counsel has chosen to go off on a number of
13 tangential issues. And bearing in mind the witness order and the ability
14 to move smoothly through a trial depends on, I would say, discipline by
15 counsel into the areas that are the most important, we would need some
16 guidance as to how to proceed in the future where, if it becomes apparent
17 that counsel chooses to conduct almost a second direct through the use of
18 cross, which I believe much of it is, we won't be able really to stick
19 with the schedule.
20 I'm reminded by my colleagues that we've got already a
21 rearrangement - thanks to the registry for reminding me - we already have
22 a rearrangement of witnesses, for similar reasons, that effectively my
23 learned friends' desire to perhaps explore areas that are interesting but
24 not necessarily within 90(H). And I just wondered if there would be some
25 guidance for us as to how we should try to plan the next scheduling. We
1 keep having to bring witnesses back, Mr. Davies, potentially,
2 Mrs. Alajbeg, where we've tried to limit our examination and would hope
3 that by the normal practices of this Tribunal, Defence counsel would have
4 similar limits imposed, where appropriate.
5 JUDGE PARKER: Thank you, Ms. Somers.
6 Mr. Petrovic.
7 MR. PETROVIC: [Interpretation] Your Honour, I am trying very
8 conscientiously to keep within the limits, and in future, if at any point
9 I should overstep the bounds of cross-examination, I am sure Your Honours
10 would intervene and would draw my attention to this. In future, I will
11 pay even more attention to this and even neglect some aspects where I
12 would have the right to cross-examine. But I assure you that, in the case
13 of the present witness, I cannot reduce my examination further than I have
14 already done. I simply cannot neglect the enormous importance of these
15 documents and put a set of very important questions. Therefore, I ask you
16 to reject the comments put forward by my learned friend and to grant my
17 request. Thank you.
18 JUDGE PARKER: We have entered into this trial, as I'm sure all
19 counsel will understand, but especially Defence counsel, with a concern to
20 try and allow every reasonable and proper opportunity to the Defence to
21 present its case, whilst at the same time trying to ensure that the
22 Prosecution is in a position to order its witnesses and its evidence.
23 At the beginning, we did indicate that we did not then propose to
24 impose strict time limits and restrictions on cross-examination, because
25 we were conscious that that could provide difficulty for the Defence,
1 which they would prefer to avoid. I regret to say that the experience so
2 far in the trial indicates that times reasonably anticipated are almost in
3 every case proving to be -- or have proved to be inadequate, and that
4 whatever time is reasonably assumed cross-examination will take, it takes
5 very much longer. I would say, Mr. Rodic and Mr. Petrovic, that the
6 position has to improve dramatically, or else we will be forced to do as
7 other Trial Chambers do, and that is to impose somewhat arbitrary time
8 limits. We've tried to avoid that, but it may become necessary, if there
9 is to be an orderly and fair conducting of this case.
10 This witness, we recognise, is very important, both to Prosecution
11 and Defence; however, it was very clearly indicated before Mrs. Alajbeg
12 came that she needed to leave by the end of today. The Prosecution
13 evidence was quite limited that was led, and you have had full
14 cross-examination, a very extended period, very much longer than was taken
15 by the Prosecution in evidence in chief. All together now, you've reached
16 some three hours, forty minutes of cross-examination. This simply means
17 that if we were to continue in this way, this case would become very
18 difficult to manage, with a lot of wasted witness time, and we could well
19 find this case continuing for a year or more, when there is absolutely no
20 reason for that, and it would be very much, it seems to me, to the
21 disadvantage of your client to have this case draw out for that sort of
22 length of time.
23 It seems to me at the moment that there remain matters of
24 importance which need to be explored with the witness. Regrettably, some
25 matters that have been dealt with already might well have been put aside
1 in favour of more important matters. But the course has now run. On this
2 occasion, I think, regrettably, we must ask the witness to come again at
3 another time. When that will be will depend upon her commitments, which
4 are important, and it will mean some further disruption to the conduct of
5 this case. When she does return, the further time allowed will, I fear,
6 be limited. There will be a set time allowed rather than an indefinite
7 period, and it will be necessary to limit within that.
8 For the future, the Chamber will now commence to take note of the
9 time taken for evidence in chief and the time taken on cross-examination,
10 and if the time in cross-examination is becoming excessive, we will have
11 to curtail cross-examination. So be aware of that as you look at matters
12 in the future.
13 I'm afraid, though, Ms. Somers, this does mean that, at the
14 moment, there will be some limited further disruption of the programme of
15 witnesses for the moment, and it seems inevitable that the, regrettably,
16 the evidence of Mrs. Alajbeg will not finish today and we must find a time
17 convenient for her to return in the future. I'm sure we all regret that,
18 including Mr. Petrovic and Mr. Rodic, but I think the evidence of this
19 witness too important to produce some arbitrary result and curtailment
20 today in cross-examination. That would be, in the circumstances, unfair.
21 I'm sorry I've taken that length of time, but we're reaching a
22 crossroad on this issue already, and I felt it important to spell out that
23 the concerns of the Chamber are growing and there will be a very grave
24 need for counsel, particularly Defence counsel, to be conscious of time in
25 the future.
1 Now, may I presume to speak direct to the witness, Mrs. Alajbeg.
2 May I apologise that it seems necessary that you must return. You may not
3 be in a position today to indicate when that will fit into your schedule.
4 If you are, we would appreciate that, but if you are not in a position to
5 indicate, you will be able to give that information to members of the
6 Prosecution team and arrangements will be made to accommodate you in the
8 The time that remains, then, Mr. Petrovic, is yours.
9 MR. PETROVIC: [Interpretation] Thank you, Your Honour. If you
10 will allow me, I would just briefly refer to what you have just said. It
11 is correct that we have been spending a lot of time with the past few
12 witnesses; however, I assure you that there may be witnesses in the future
13 for which we will not need so much time, and I believe that we will be
14 able to abide by your instructions and that there will be no need for any
15 formal limitation on the cross-examination by Defence counsel. I assure
16 you that this is the stance that we intend to adopt toward the witnesses
17 that are to come and testify in this case.
18 JUDGE PARKER: We are grateful for your assurance, Mr. Petrovic,
19 but we will be keeping the time under observation from now on.
20 MR. PETROVIC: [Interpretation] Thank you, Your Honour.
21 Q. Mrs. Alajbeg, are you claiming that after the 8th of October,
22 1991, the presidency of the SFRY was not functioning?
23 A. After the 8th of October, we know that there was already at that
24 time a decision for the representative of the Croatian people of the
25 Republic of Croatia in the presidency to be withdrawn from the presidency.
1 So this person no longer participated in the work of the presidency.
2 Q. Can you please look at binder 1, tab 8, Enactment 1681. Have you
3 found it?
4 A. Yes, I have.
5 Q. A conclusion according to which Stjepan Mesic was no longer a
6 member of the presidency of the SFRY as of the 8th of October. The
7 conclusion was passed on the 5th of December. Can you tell me what was
8 going on in the meantime? What was going on between the 8th of October
9 and the 5th of December?
10 A. Whether Mr. Mesic was physically there or not, I wouldn't be able
11 to tell you, because I don't know. Whether the presidency in any way
12 passed decisions, I also don't know. I don't know what decisions were
13 reached in the meantime. However, I know that he had major problems in
14 that presidency and that his -- he was disabled in this work.
15 Q. You are being evasive, and for that reason I was reprimanded by
16 the Trial Chamber. Just tell me whether you do know or whether you don't
17 know. Yes or no.
18 A. I don't know.
19 Q. Do you know whether he signed any enactments as the president of
20 the presidency?
21 A. I don't know.
22 Q. Do you know whether he represented the state as a president of the
23 presidency in any of the negotiations?
24 A. I wouldn't know.
25 Q. If he did anything, if he wrote anything in the meantime, what was
1 the status and what was the effect of the actions that he might have
2 taken? Did he do it wilfully? Was he authorised to do that or not?
3 A. Judging by this conclusion, that would have been the case.
4 Q. How can something be annulled retroactively if it existed in
5 effect for two months?
6 A. Obviously, this decision indeed is a retroactive one, but I
7 wouldn't be able to tell you what was going on in between.
8 Q. Can a decision annul the facts that took place in the meantime?
9 A. I don't know whether any such facts or doings by President Mesic
10 happened in the meantime.
11 MR. PETROVIC: [Interpretation] May I please ask the usher to
12 assist me and distribute this document to the parties.
13 Q. Are you familiar with this document, Mrs. Alajbeg?
14 MS. SOMERS: Excuse me, Your Honour. May I just briefly
15 interrupt. Inasmuch as there is no identification methodology for the
16 record of what is being presented, if there would be some way so when we
17 go back and try to figure out what the Defence referred to at any given
18 moment, it might be helpful. Again, just asking the witness about
19 familiarity without identifying it in some way is going to make it very
20 hard, as it is not the subject of any listing at this time.
21 JUDGE PARKER: Are you able to assist, Mr. Petrovic, with the
22 nature of the document?
23 MR. PETROVIC: [Interpretation] Of course, Your Honour. This is an
24 annex, an annex to the document which was signed in The Hague on the 18th
25 of October, 1991, and these are the conclusions reached at the session of
1 the presidency of the SFRY which was held in The Hague with regard to the
2 negotiations that were going on in The Hague at the time. This annex is
3 part of the conclusions of these negotiations, and it constitutes a
4 document by which the presidency of the Socialist Federative Republic of
5 Yugoslavia makes a decision on ceasefire in its full composition. The
6 document bears the signatures of all the members of the presidency, and
7 the first signature is the signature of Mr. Mesic, the president at the
8 time. So this is the source and the origin of this document. And I will
9 be able to provide you with the entire document, not today, but in the
10 future. If my learned friends are not familiar with the documents, I can
11 provide them with the entire document if there are any doubts about its
13 JUDGE PARKER: Thank you.
14 MR. PETROVIC: [Interpretation]
15 Q. Can you please answer the question?
16 A. If you're asking me whether I'm familiar with the document, my
17 answer is no. I've never seen it in its entirety.
18 Q. How would you interpret the document issued by the complete
19 presidency, headed by the president, who held the meeting on the 18th of
20 October, passed a decision, and signed the decision?
21 A. My only interpretation is as follows: It was necessary for the
22 JNA to withdraw from Croatia, and with that goal, the decision was made.
23 And it was in that capacity that President Mesic participated in the
24 presidency and made decisions, because it was of vital interest in Croatia
25 for the JNA to withdraw from Croatia. Obviously, this didn't happen.
1 Later on, it turned out that the decision was not honoured. And it seems
2 that none of the decisions that were made after the 8th of October, or
3 anything that Mr. Mesic did after that, was no longer relevant.
4 Q. Is this useful for the Republic of Croatia?
5 A. Yes, this is useful for the Republic of Croatia, but nothing came
7 Q. Did the decision passed on the 5th of December also annul this
9 A. Yes.
10 Q. As a legal expert, can you please tell us: How is it possible for
11 a legal enactment which was passed by a legal body, could be retroactively
12 annulled and made void?
13 MS. LAMB: Your Honours --
14 JUDGE PARKER: Yes, Ms. Lamb.
15 MS. LAMB: At this point, we would seek to put on record another
16 objection. We would like to remind the Trial Chamber that at the outset
17 of Mrs. Alajbeg's testimony, the Defence were at pains to stress the
18 concern they had that this witness would be called in an expert capacity.
19 And as a result, we have been cautious to confine the scope of our
20 examination-in-chief to events that she observed directly. Mrs. Alajbeg
21 herself at various points in her testimony has been careful to stress that
22 she is not an expert on constitutional matters, and it appears that the
23 tendency in my learned friend's cross-examination now would precisely
24 presuppose that she was such an expert.
25 MR. PETROVIC: [Interpretation] Your Honour --
1 JUDGE PARKER: Is that all, Ms. Lamb?
2 MS. LAMB: That is, Your Honours.
3 JUDGE PARKER: Thank you.
4 Mr. Petrovic.
5 MR. PETROVIC: [Interpretation] Your Honour, I will withdraw the
6 question and move on.
7 JUDGE PARKER: Thank you.
8 MR. PETROVIC: [Interpretation]
9 Q. When did the Republic of Croatia submit its request for joining
10 international organisations?
11 A. The date of these requests differ, depending on the international
13 Q. When did it request to become a member of the Council of Europe?
14 A. After having received the instruction from the parliament. I
15 can't give you the exact date. Yesterday we were talking about this
16 decision, about this conclusion, and soon after this conclusion, our
17 request was made.
18 Q. When was the Republic of Croatia admitted as a member of that
20 A. Again, I have to think hard to remember the date. In April we
21 were admitted in the United Nations. In 1992. I can't give you the exact
22 date. At this moment, I do not have the list of dates in front of me.
23 Q. When did Croatia express their wish to become a member of the
24 United Nations?
25 A. It was in 1992.
1 Q. When was the request made?
2 A. Yesterday we had this document. We had the letter as well. We
3 can look at that. In any case, it was admitted in April.
4 Q. How long did it take between the request and the admission?
5 A. I believe about a month.
6 MR. PETROVIC: [Interpretation] Your Honour, if you will allow me,
7 at this moment I would interrupt my cross-examination, for two reasons.
8 The first reason is the fact that I wish to tender the exhibits for
9 admission; and second reason is that I want to address the Trial Chamber
10 for five minutes in the absence of the witness. I only need five minutes,
11 and if we only work until a quarter to 2.00, I believe that I will have
12 enough time. If the witness may be excused at this moment.
13 JUDGE PARKER: Do you have any concern at that proposed procedure,
14 Ms. Somers.
15 MS. SOMERS: I do not have any concern.
16 JUDGE PARKER: Thank you.
17 Ms. Alajbeg, I'm afraid we've reached a point where it would be
18 possible for you to leave, but on the basis that at some future time you
19 should return. I've already expressed our regret at the need for that.
20 May we thank you for your attendance and assistance in the last two days,
21 and we look forward to seeing you again at some future time convenient can
22 be arranged. Thank you. If you would like to leave now, you will be
23 shown out.
24 THE WITNESS: [Interpretation] Thank you.
25 [The witness stands down]
1 JUDGE PARKER: Mr. Petrovic, a number of documents were presented
2 and put to the witness. None of them appear to be recorded yet as
4 MR. PETROVIC: [Interpretation] Your Honour, I would like to tender
5 D3 for admission. This is the preamble of the constitution of the SFRY
6 from 1974, with its English translation.
7 MS. SOMERS: Excuse me, Your Honour. May I just make one request
8 of the Chamber in this process? A number of the documents were presented
9 only in the Serbo-Croatian text, and we would ask perhaps deferring any
10 ruling on this until we've had a chance to have the translation, where
11 appropriate, and look at them as a batch, if the Chamber is so minded.
12 JUDGE PARKER: We received both English and Serbo-Croatian.
13 MS. SOMERS: Maybe I didn't see. Some of them just came to me in
14 B/C/S. I will revisit it, and if that's the case, I will retract it, but
15 I have some only in B/C/S.
16 JUDGE PARKER: Well, at the moment, I think we'll proceed to
17 receive the documents. Exhibit -- we'll receive, then, D3.
18 MR. PETROVIC: [Interpretation] D4, Article 5 of the constitution
19 of the SFRY from 1974, in B/C/S, with an English translation.
20 JUDGE PARKER: D4 will be received.
21 MR. PETROVIC: [Interpretation] My next exhibit, D5, Article 362 of
22 the constitution of the SFRY from 1974, with translation in English.
23 JUDGE PARKER: D5 will be received.
24 MR. PETROVIC: [Interpretation] Your Honour, I'm also duty-bound to
25 inform you that I have not enclosed the entire constitution, although that
1 might be logical, because this is a very extensive document that would
2 only burden the case, and that's why we opted for just those articles that
3 we deemed to be important, and these are the ones that we are tendering
4 for admission. My next exhibit is --
5 JUDGE PARKER: [Previous translation continues] ... on that basis,
6 Mr. Petrovic, but reserving to the Prosecution the opportunity to have the
7 whole document tendered if they think that is necessary at some future
9 MR. PETROVIC: [Interpretation] Your Honour, yes, we can do that,
10 if you think this would be necessary.
11 D6, Article 207 of the constitution of the SFRY from 1974.
12 JUDGE PARKER: D6 will be received.
13 MR. PETROVIC: [Interpretation] Exhibit D7, Article 375 of the same
14 document, the constitution of 1974.
15 JUDGE PARKER: D7 will be received.
16 MR. PETROVIC: [Interpretation] Exhibit D8, Article 240 of the same
18 JUDGE PARKER: D8 will be received.
19 MR. PETROVIC: [Interpretation] Exhibit D9, Article 281, paragraphs
20 1 and 2.
21 JUDGE PARKER: D9 will be received.
22 MR. PETROVIC: [Interpretation] Exhibit D10, Article 327 of the
24 JUDGE PARKER: Can I indicate that there's a problem there,
25 because the document I was handed did not include 327. It in fact
1 commenced in the B/C/S with Article -- it was 327, but the English
2 translation commenced at Article 334. There seems to have been a
3 misstapling of the wrong documents.
4 MR. PETROVIC: [Interpretation] Your Honour, I apologise for the
5 mistake. It is our mistake, and we will rectify it as soon as possible.
6 If only B/C/S version may be received, and we shall submit its English
7 translation on Monday. Once again, we apologise for the mistake.
8 JUDGE PARKER: That was Article 327, was it?
9 MR. PETROVIC: [Interpretation] Yes, Your Honour.
10 JUDGE PARKER: Well, that will be D10.
11 MR. PETROVIC: [Interpretation] Exhibit D11, decision by the
12 presidency of the SFRY, dated 18 October 1991. The original is in
13 English, and its translation is into B/C/S.
14 JUDGE PARKER: D11 is received.
15 Now, there was another matter you wished to raise, was there,
16 Mr. Petrovic?
17 MR. PETROVIC: [Interpretation] Yes, Your Honour, and thank you for
18 the opportunity to raise it.
19 Firstly, I would kindly ask if there is an opportunity in the
20 course of the next week to find some time for some words that we would
21 like to deliver orally with regard to the submission that was handed to
22 you by the OTP on the 24th December. This is Prosecution's motion [In
23 English] 15 December concerning the time for submission of expert reports.
24 [Interpretation] As far as I understand, your decision is still pending on
25 this motion. I would kindly ask for 10 or 15 minutes. The Defence would
1 like to present some arguments with regard to the request that has been
2 made, and our position in that respect may be different, in view of some
3 of the conversations that we have had with our learned friends from the
4 OTP. That is the first issue that I would like to raise.
5 The second issue that I would like to raise is the following: It
6 has to do with the health condition of my client. After the decision that
7 you made immediately prior to our session in December, the Defence,
8 bearing in mind your recommendation contained in that decision, the
9 Defence requested from the Registry to provide some medical examinations
10 which are of the importance for the health condition of our client and
11 which would have a bearing on the way our client is able to follow this
12 procedure. We have received approval by the secretariat for our doctor to
13 be appointed and to have an opportunity to examine our client. We
14 submitted this request immediately after having received the decision by
15 the Registry. We received this decision three days ago. And within the
16 shortest possible time, we would like to make the most of this
18 What this is all about: The analysis of what we deem to be
19 important, in view of the overall medical condition of our client, it is
20 necessary for a detailed medical examination and testing of our client to
21 be carried out in the Detention Unit. For that purpose, the expert whom
22 we have engaged, in keeping with the usual practice that is applied in the
23 medical field, it is necessary for the client to be available for two
24 consecutive days, for five to seven hours every day.
25 Our medical expert should arrive on Tuesday or on Wednesday. He
1 is actually arriving on Monday, and the testing should take place on
2 Tuesday and on Wednesday. Given the time frame that is necessary for all
3 the testing and examinations, since the testing has to be done correctly,
4 in keeping with the rules of the medical practice, the Defence counsel
5 kindly request the Trial Chamber to adjourn on Tuesday and on Wednesday,
6 in order to enable our medical experts to carry out all the necessary
7 medical testings of our client, in keeping with the rules of the medical
8 profession. This will enable us to receive the results, which will not be
9 distorted by any of the circumstances that may come into play, such as
10 tiredness and other factors.
11 So I would kindly ask the Trial Chamber to make a ruling not to
12 sit on Tuesday and Wednesday in this case.
13 JUDGE PARKER: That is in the coming week, you propose, is it?
14 MR. PETROVIC: [Interpretation] Yes, Your Honour.
15 JUDGE PARKER: Ms. Somers.
16 MS. SOMERS: First of all, Your Honour, this is the first that we
17 have been told of this, and I must express vehemently my objection to not
18 being told that there was such a consideration, given the very open,
19 transparent nature of the discussion about ordering of witnesses,
20 inconvenience to witnesses, and the need to have the trial move on. I
21 have seen Mr. Petrovic and Mr. Rodic daily this past week, and I was here
22 all of last week, and this is again, I think, perhaps a matter that
23 reflects a need for an improvement of relations and communication from the
24 Defence to the Prosecution.
25 Secondly, a day has 24 hours, 20 approximately of which my staff
1 is working, and I understand that it may be difficult to arrange around
2 the day, but this Chamber does not hold an eight-hour session, and I would
3 strongly advocate that if the expert has been brought here without
4 consultation with the Chamber, that the responsibility for arranging hours
5 is at the Defence's -- is in the Defence's court, as it were, and that it
6 should have no bearing upon the orderly progression of this trial.
7 Again, all things, I think, can be discussed frankly and openly,
8 and I'm very surprised and disappointed that that is dropped on all of us,
9 with the resulting potential mess that it can have, and the unfairness,
10 potentially, to the client. Again, Defence counsel have to drive their
11 own train on this issue, but it can't be done unilaterally, even if
12 invited by the Court to do so in its order.
13 Accordingly, I would ask that there be no deferral or other delay
14 in order to achieve this, but rather, weekends are also available if need
15 be, and after court session, or if it's an afternoon session, then the
16 morning. But again, this is a matter that has to be arranged so that all
17 parties have notice and that all interests are represented.
18 JUDGE PARKER: Mr. Petrovic.
19 MR. PETROVIC: [Interpretation] If you will allow me, Your Honour.
20 I appreciate some of what my friend has said. However, we only learned
21 this the way we did, and as soon as we learned that this would take place,
22 we informed the Trial Chamber. When we were in the position to find out
23 when this could be organised, we informed you. We could have done it
24 earlier today, that is true, but we didn't.
25 We know what conditions in the Detention Unit are, and I have to
1 remind you that this is impossible to be done on weekends. At least so
2 far it hasn't been possible. There may have been exceptions, but, as a
3 rule, this is impossible. I believe I am right. If I'm not, I believe
4 that the registrar will correct me.
5 As far as the schedule of the witnesses is concerned, which -- and
6 something that the Prosecution says was our unilateral move, there were
7 such changes without any influence on our part. The Trial Chamber has
8 pointed to that fact, and the Trial Chamber told us that such changes are
9 something that is not in keeping with the usual procedure. I understand
10 that this may cause some problems, but believe me, the problems that the
11 accused is facing are enormous, and I believe that they are even bigger
12 than the problems that any of the witnesses may be experiencing by having
13 to stay a day longer in The Hague waiting to be brought before this
14 Trial Chamber.
15 [Trial Chamber confers]
16 JUDGE PARKER: We are conscious that there are already reasons why
17 witnesses such as Mr. Brolund have to be away from The Hague by fixed
18 times next week. For that reason, we are disinclined to interfere with
19 the present programme during the coming week. I think that must mean,
20 Mr. Petrovic, that your client will be able to be examined each morning,
21 from Monday to Thursday of this coming week, when we are not listed to be
22 hearing the matter. If there was a particular reason why a particular
23 test or examination might take a little longer, we could entertain a
24 detailed submission for us to commence sitting a little later on one day.
25 But if the medical examinations that are thought necessary by the Defence
1 can be got under way, it would seem probable that they can be accommodated
2 over the mornings that are available during the coming week.
3 So, for the moment, we will not change the listing programme, and
4 we will -- if there is a particular difficulty, I have indicated there may
5 be a capacity, on Wednesday or Thursday, in particular, to look at a
6 slightly later start, if that will assist. And we must leave it to you to
7 bring forward that detailed proposal, if there's a need for it, and to
8 justify it. We are conscious in taking this view that there are quite a
9 number of hours in the day, and with the mornings available, as they are
10 next week, it would seem that it ought to be possible for proper and
11 adequate examinations to be undertaken.
12 [Trial Chamber confers]
13 JUDGE PARKER: Now, I've indicated Monday to Thursday. We are
14 told that it would be feasible for us to sit on Friday, in the morning
15 rather than the afternoon, and we are proposing to do that at the present
16 time. But that would leave you from Monday through until Thursday able to
17 give effect to examinations in the morning, and we would hope that it will
18 be possible to achieve all that is necessary in that time.
19 We will adjourn now until Monday.
20 --- Whereupon the hearing adjourned at 1.56 p.m.
21 to be reconvened on Monday, the 19th day of January
22 2004, at 2.15 p.m.