Tribunal Criminal Tribunal for the Former Yugoslavia

Page 26202

1 Thursday, 15 May 2008

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.03 a.m.

5 JUDGE BONOMY: Good morning, everyone. We shall now take the

6 final stages of the evidence of the professor, Stankovic.

7 [The witness entered court]

8 JUDGE BONOMY: Good morning, Professor.

9 THE WITNESS: [Interpretation] Good morning.

10 JUDGE BONOMY: We'll continue your evidence, but I don't think

11 we'll be detaining you for long.

12 Mr. Ivetic.

13 MR. IVETIC: Thank you, Your Honours.


15 [Witness answered through interpreter]

16 Re-examination by Mr. Ivetic: [Continued]

17 Q. Good morning, Dr. Stankovic, Dr. Professor Stankovic. I have

18 essentially the one question that I had started yesterday with you, and

19 that is, within your legal jurisdiction is it the custom -- is there a

20 custom for experts on opposite sides in a pending legal proceeding to

21 have contact with one another outside of court during the penance of that

22 legal proceeding, or is that something that is not done either by law or

23 by custom in the legal jurisdiction wherein you come from?

24 A. In my country, to consult an expert before the trial begins is

25 not permissible. The expert is consulted in front of the Trial Chamber

Page 26203

1 that called for the expertise.

2 Q. Professor Dr. Stankovic, I thank you for answering my questions.

3 MR. FILA: [Interpretation] Just to be useful for the Court,

4 that's Exhibit P1824, and we're talking about Articles 250 and 251.

5 Thank you.

6 JUDGE BONOMY: Thank you, Mr. Fila.

7 Questioned by the Court:

8 JUDGE BONOMY: Professor, let me pose a situation to you which

9 may not arise in practice in your jurisdiction, but if it does I would be

10 interested in the answer. Certainly in an adversarial system, it is

11 often the case that when someone is killed, a post mortem is carried out

12 at the time, and then the body is cremated or, indeed, buried but at

13 least when cremated there is absolutely no possibility of access to the

14 body. Subsequently, there is a trial of a person who's discovered to be

15 the culprit, and he wants his own pathologist to advise him as an expert.

16 Are you saying that before the trial that pathologist would not be

17 allowed to speak to the original investigating pathologist for

18 information to enable him to prepare a critique or report of the work

19 done for the court, that he would have to come to court without that

20 possibility?

21 A. If an autopsy carried out in accordance with all the standards

22 and the methodology envisaged for the performance of the autopsy and if

23 this report is decisive, accurate, and clear, and if attached to it there

24 are proper photo files and video recordings, then there is no need for

25 anyone to communicate to anyone. If there is any need or if a new expert

Page 26204

1 in this trial has any objections to the work done or to the autopsy

2 report, then the competent Trial Chamber summons the person who actually

3 conducted the autopsy and calls the witness -- the expert witness who

4 made the objections, and then there is a debate that is moderated by the

5 Trial Chamber, and questions are asked and answers are given to elucidate

6 those doubts, if any. These are the rules that are in place in my

7 country.

8 JUDGE BONOMY: That's very helpful. Just one other question. Do

9 you know what the reason is for a rule obliging experts not to

10 communicate with one another prior to a trial?

11 A. Well, in the systems where there are rules in place to govern the

12 methodology and the procedure, this is legislated, simply -- to put it

13 simply. This is the case in our system, and the fact that the experts

14 cannot communicate is the consequence of the doubt that exists -- that is

15 built into the system in my country into the bias, possible bias of the

16 witness -- of the experts, and that is why they are called to explain any

17 doubts arising from the autopsy report before the Trial Chamber.

18 Because, as you know, in our country, in our legal system, every party --

19 the parties to the proceedings do not have their experts. The

20 Trial Chamber appoints experts, and they then evaluate the expertise.

21 The parties, the defence counsel of the injured party or of the accused,

22 have the right to seek opinion. They can ask me to provide an opinion,

23 but that is not considered expert testimony. This is my opinion, and the

24 court then evaluates its validity. They can either accept or reject my

25 opinion, or they can summon me to testify. That's up to the

Page 26205

1 Trial Chamber to decide.

2 JUDGE BONOMY: Yes. We are constantly reminding ourselves of the

3 difference between the system here and the system you have in relation to

4 experts. Indeed, I think it was Dr. Tomasevic who actually refused to

5 answer questions here on the basis that they were for an expert only and

6 she wasn't in the context an expert. So it's an issue that poses or

7 presents differences, and differences that it's important that we

8 understand.

9 A. If you allow me to say a few words. When the Hague Tribunal was

10 established, I was one of the representatives that talked to the

11 representatives of the United Nations, and then a discussion was made

12 whether to apply our system, criminal law system, or the Anglo-Saxon

13 system. I argued that we should apply our legal system because our

14 people who would be indicted are much more familiar with this legal

15 system than with common law system. Perhaps some of the answers that I

16 provided yesterday that were too lengthy, as you indicated, were -- that

17 was the consequence of my desire to familiarize you with my findings to a

18 much greater extent than I would usually do. That's what I wanted to

19 say.

20 JUDGE BONOMY: So are you saying that you were involved in 1993

21 in these discussions?

22 A. No. That was right at the beginning when the delegations visited

23 the country. On the eve of the establishment of the Tribunal in The

24 Hague, then some delegations from the United Nations came, and then some

25 discussions were held.

Page 26206

1 JUDGE BONOMY: What year was that?

2 A. I think it was in 1992, if I'm not mistaken. Charif Bassiouni

3 and Kalshoven were there. I think it was 1992.

4 JUDGE BONOMY: Still, we have to make do with what we have, I'm

5 afraid.

6 A. Well, I hope so.

7 JUDGE BONOMY: I think that completes your evidence, Professor.

8 Thank you for coming here to give evidence and to assist us. You're now

9 free to leave the courtroom with the usher.

10 MR. FILA: [Interpretation] If you need, we can explain --

11 JUDGE BONOMY: [Previous translation continues]...

12 MR. FILA: [Interpretation] No, no, no --

13 JUDGE BONOMY: Well, let's wait until he leaves, please.

14 [The witness withdrew]


16 MR. FILA: [Interpretation] We have to go back to the issue of

17 communism. In order to avoid any possibility that the Defence counsel

18 should be able to retain better experts because they have more money than

19 the Prosecutors do - that is why the Prosecution is now laughing now that

20 I'm saying that, and that's why Judge Kamenova is laughing - that's why

21 we had an institute for expertise. Professor Aleksic, Professor

22 Stankovic, all of them were there for all areas of expertise, and then

23 only the Trial Chamber was in contact with the institute, not the Defence

24 counsel, not the Prosecution, and that's why those people were called

25 Court-appointed experts, and Mr. Stankovic is on the list of

Page 26207

1 Court-appointed experts. Now, if I don't trust Mr. Stankovic, I can find

2 somebody else, and I can pay that person to provide an opinion, and then

3 I sell that opinion as if it was mine, and that's how I tried to

4 challenge the findings of the Court-appointed expert. That is the system

5 in which we lived and in which we still live, but we are trying to change

6 it. Thank you very much for listening to me.

7 JUDGE BONOMY: Yeah, that's a rather different topic from the one

8 that the question relates to. The question relates to communication

9 between experts, and there are domestic systems, too, which have odd

10 rules about not allowing one expert to listen to the evidence of another

11 expert, which has always seemed crazy to me. So it's a matter that is

12 the ongoing subject -- well, the subject of ongoing debate, which is

13 rather different from the question of who's got deeper pockets. But it's

14 helpful to hear your comments, Mr. Fila.

15 Now, you are presumably warming up for your next performance, or

16 are you delegating that?

17 MR. PETROVIC: [Interpretation] Your Honour, well, I have this

18 pleasant duty. Our last witness is Professor Radomir Lukic.

19 [The witness entered court]

20 JUDGE BONOMY: Good morning, Professor Lukic.

21 THE WITNESS: [Interpretation] Good morning.

22 JUDGE BONOMY: Would you please make the solemn declaration to

23 speak the truth by reading aloud the document which will now be shown to

24 you.

25 THE WITNESS: [Interpretation] I solemnly declare that I will

Page 26208

1 speak the truth, the whole truth, and nothing but the truth.

2 JUDGE BONOMY: Thank you. Please be seated.

3 You'll now be examined by Mr. Petrovic.

4 Mr. Petrovic.

5 MR. PETROVIC: [Interpretation] Thank you, Your Honour.


7 [Witness answered through interpreter]

8 Examination by Mr. Petrovic:

9 Q. [Interpretation] Good morning, Professor Lukic. Could you please

10 state your full name for the record, please.

11 A. My name is Radomir Lukic.

12 Q. Professor Lukic, were you asked by Nikola Sainovic's Defence to

13 draft an expert report that contains three parts: The first part is

14 Kosovo and Metohija and the constitutional system of Yugoslavia and

15 Serbia; the second one is the federal government in the Federal Republic

16 of Yugoslavia; and the third part, which is an attachment to the first

17 part, relates to the issue of the two-thirds majority needed to adopt the

18 amendments to the 1974 constitution that were passed in 1989.

19 A. Yes, that's true.

20 Q. Do you have this report in front of you?

21 A. Yes.

22 Q. Did you have an opportunity to go through this report in recent

23 times, and were you able to find some errors in the text itself?

24 A. If you would allow me, I would like to say that there is an

25 amendment, and actually, there is an error. The amendment pertains to

Page 26209

1 the second part of the expert report about the position of the federal

2 government in the Federal Republic of Yugoslavia because at page 24 of

3 this part of the expert report, in the second whole paragraph which

4 begins with the words: "The tasks of the deputy prime minister ..." and

5 so on, right at the very end it is listed that this is regulated by

6 Articles 11 and 12 of the Rules of Procedure of the federal government,

7 whereas in fact it is regulated in Articles 9 and 10 of the Rules of

8 Procedure.

9 And there was also a technical error whereby the appendix 3 to

10 this report was actually the Rules of Procedure of the federal government

11 from 1994 instead of 1997. And, Your Honours, I would like to ask you to

12 allow us to tender the rules from 1997 instead of the rules that are

13 appended to this report. The Defence will provide the appropriate

14 document.

15 I would also like to say that at page 29 of the expert report, in

16 line 1, after the comma, there are words "the federal government has so

17 far in actual fact not ..." and so on. What I would like to say is the

18 following: This part of the expert report was drafted before the Federal

19 Republic of Yugoslavia ceased to exist, so you have to take that into

20 account. The first part of the expert report that relates to Kosovo and

21 Metohija at page 9, in the first line, it says: "Northern Ireland in

22 Great Britain has judicial autonomy." In the meantime, the status of

23 Northern Ireland has changed in this respect, and I would like that to be

24 taken into account.

25 In the last part of the report, which is probably appended to it,

Page 26210

1 the one that is entitled: "The issue of two-thirds majority in the

2 adoption," and so on, the first full paragraph at page 29 that begins

3 with the words: "On this basis and with this purpose," that is the

4 amendment to that.

5 Q. Thank you.

6 JUDGE BONOMY: Let's clarify some of that because all of these

7 page references are B/C/S page references, I think. Can you assist us,

8 Mr. Petrovic, with the English pages?

9 MR. PETROVIC: [Interpretation] Yes, Your Honour.

10 JUDGE BONOMY: Page 24, first of all, what page is that in

11 English?

12 MR. PETROVIC: [Interpretation] Your Honour, at page 24, that was

13 the first reference made by Professor, that would be page 93 in e-court

14 or 83 in English in e-court. And --

15 JUDGE BONOMY: In the report I -- copy I'm working from, can you

16 give me a page number --

17 MR. PETROVIC: [Interpretation] In that part, if you have the

18 version that was not uploaded into the e-court but the hard copy, that's

19 at page 16 of the English version.

20 THE WITNESS: [Interpretation] That's page 16 in the English

21 version. It's, again, the second paragraph on this page. [In English]

22 "The duties of a deputy federal prime minister ..." [Interpretation]

23 That's in this paragraph.

24 MR. HANNIS: Your Honour, if you're working from the same hard

25 copy as I am, I think it's page 16 of annex 2.

Page 26211


2 MR. PETROVIC: [Interpretation] Yes, it's in the second part, the

3 one about the federal government.

4 JUDGE BONOMY: Thank you. Now, that clears that one. Now,

5 there's a -- I think a mistake in the English transcript in relation to

6 what's being said about appendix 3. The one that we have is -- at the

7 moment is 1994; is that correct? And you want to --

8 MR. PETROVIC: [Interpretation] Yes.

9 JUDGE BONOMY: -- replace it with 1997?

10 MR. PETROVIC: [Interpretation] Yes, that's correct, Your Honour.

11 The Rules of Procedure from 1997 have been uploaded in the e-court as

12 2D346. It's already been admitted into evidence.

13 JUDGE BONOMY: So in that case, we should simply ignore appendix

14 3 -- or I think it's -- is it annex 3 to the report, which at the moment

15 is the 1994 version; is that correct?

16 MR. PETROVIC: [Interpretation] That's correct, Your Honour. To

17 avoid confusion, the annex that is currently in the record is Exhibit

18 1D223. That's the 1994 Rules of Procedure, but for the purposes of our

19 expert findings, we are relying on 2D346. That's the 1997 Rules of

20 Procedure.

21 JUDGE BONOMY: Well, we will allow you to substitute these for

22 the existing version in the report. You should probably as a result of

23 that upload an amended version of the report, and if any of these other

24 amendments are capable of being incorporated, then they could be. But

25 the only one I think is the one we've looked at where the wrong

Page 26212

1 paragraphs are referred to and the changes made to the -- the point about

2 Northern Ireland and the point about the federal government references.

3 We simply note the position from what's been said. There's no point in

4 amending the report to try to bring it up to date in that respect.

5 Incorporate the amendments to page -- was it 2 -- page 24, and

6 incorporate 1997 Rules of Procedure, and tender that revised version, and

7 it will be substituted for the existing version of the report, which is

8 2D393.

9 MR. PETROVIC: [Interpretation] We'll do that, Your Honours.

10 JUDGE BONOMY: Thank you.

11 MR. PETROVIC: [Interpretation]

12 Q. Professor Lukic, bearing in mind the amendments that you've just

13 noted for us, could you please confirm that this report is -- presents

14 your views on the issues that the Defence has asked you to deal with?

15 A. Yes. All parts of this expert report present my views on the

16 issues that the Defence has asked me to look at.

17 THE INTERPRETER: The counsel and the witness are kindly asked to

18 make pauses between questions and answers.

19 MR. PETROVIC: [Interpretation] Could we please have documents

20 2D239 and document 2D394 - that's Professor Lukic's CV - into evidence,

21 and I would have just a couple of questions for the witness that I feel

22 are really necessary for our Defence.

23 THE INTERPRETER: Interpreter's correction: The first document

24 reference is 2D393.

25 JUDGE BONOMY: Sorry, that's answered my concern. The report and

Page 26213

1 the CV will be admitted into evidence.

2 MR. PETROVIC: [Interpretation] Thank you, Your Honour.

3 Q. Professor Lukic, I'd like to attempt to clarify some points in

4 your expert report. The first question or the first issue I would like

5 you to explain to us is the position and role of the president of the

6 federal government according to the legislation in force from 1994 until

7 the constitutional changes.

8 THE INTERPRETER: Could the speakers please slow down.

9 JUDGE BONOMY: Mr. Petrovic, your speed is -- has already become

10 an issue, and there's already been a yellow card for talking over the

11 interpretation of the witness's answer, so you're on thin ice already.

12 So you'll need to --

13 MR. PETROVIC: [Interpretation] I hope I won't turn another yellow

14 card, and I'll try to slow down. I hope my question has been

15 interpreted -- no, it hasn't.

16 JUDGE BONOMY: You'll need to deal with the question again.

17 MR. PETROVIC: [Interpretation] Yes.

18 Q. The position of the president of the federal government under the

19 constitutional system of 1992 until the constitutional changes in the

20 year 2000, the influence or effect of the position of the president of

21 the federal government on the way that government made decisions and on

22 its manner of working.

23 A. The constitution of the Federal Republic of Yugoslavia of 1992

24 opted for a system of government based on the principle of the division

25 of power, and this follows from the fundamental provisions of this

Page 26214

1 constitution. As it's not usual for a constitution to deal with

2 scholarly and other issues of state organization, this constitution did

3 not go any further in explaining, nor was it its task, what -- in

4 explaining what kind of government authority this was. In order to save

5 time, I won't go into this matter, but I will simply conclude that the

6 legislators who enacted the constitution opted for a well-known type of

7 horizontal organization of central government authority called a

8 chancellor type of government, that is, a government that rests on the

9 so-called chancellor principle. This means that it is a government in

10 which the decisive, the key, role from the moment it is formed until the

11 end is played by its president. In spite of the fact that the federal

12 government consists of the president, the vice-presidents, the federal

13 ministers who are in charge of the ministries, and the federal ministers

14 who are not in charge of federal ministers, in spite of that, in spite of

15 the fact that one might say that the government consisted of several

16 members, the crucial role was played by its president because the only

17 important -- the only thing that was important was that the candidate who

18 was nominated to be the president of the government or the prime minister

19 was elected. Before the candidate came up for election, he was

20 duty-bound to present the programme of his government to the Federal

21 Assembly, and once he was elected, it was considered that the entire

22 cabinet was elected or the entire federal government, and with reference

23 to the aspect I am referring to this was not all that important. If in

24 the course of the life of a government or a cabinet the prime minister

25 decided that changes had to be made in the composition of the cabinet, he

Page 26215

1 would do this of -- on his own initiative, of his own volition, bearing

2 in mind all relevant elements, including his relations with the Federal

3 Assembly, and he would simply inform the Federal Assembly of this, but

4 the Federal Assembly would not issue any decisions concerning this.

5 In addition to this, the prime minister has the right to resign

6 of his own volition when he concludes that this is necessary and no

7 decision is reached in the government, in the cabinet, but only the

8 Federal Assembly -- the Federal Assembly is simply informed of this. The

9 predominant role of the federal prime minister in relation to all the

10 other members of the federal cabinet is also seen from the fact that the

11 constitution expressly provides - and this is shown in my expert

12 report - that the federal prime minister is responsible to the Federal

13 Assembly for his own work and for the work of the federal government. So

14 all this shows that the federal prime minister had a predominant role, so

15 one might conclude that the ministers in the federal cabinet, regardless

16 of their rank or the type of ministers they are, are in a manner of

17 speaking the prime minister's associates.

18 JUDGE BONOMY: Just a moment, Mr. Petrovic. It may be my

19 misunderstanding of this, but the transcript says, page 13, line 7: "In

20 spite of the fact that the federal government consists of the president,

21 the vice-presidents, the federal ministers who are in charge of the

22 ministries and the federal ministers who are not in charge of federal

23 ministries, in spite of that, in spite of the fact that one might say the

24 government consisted of several members, the crucial role was played by

25 its president."

Page 26216

1 Now, is that what the witness actually said?

2 MR. PETROVIC: [Interpretation] Yes, Your Honour.

3 JUDGE BONOMY: Because it's now gone on to talk about the

4 predominant role of the prime minister.

5 THE INTERPRETER: Interpreter notes that the president of the

6 government is a synonym for the prime minister.

7 MR. PETROVIC: [Interpretation] My understanding is that from

8 lines 7 to line 11 refers to the prime minister of the federal

9 government --

10 JUDGE BONOMY: I would not read it that way in English, I'm

11 afraid, Mr. Petrovic. There's a very important distinction to be made in

12 this between the president of the FRY and the prime minister.

13 MR. IVETIC: If I can -- if I can intervene, perhaps I can

14 assist, it's -- the president of the government is, in fact, the prime

15 minister. It's a nuance of translation. It can be translated one way or

16 the other. The president of the government is I believe the prime

17 minister. I think that CLSS is help us out on that. The president of

18 the FR would be the president of the republic --

19 JUDGE BONOMY: So the answer to this is that the president is not

20 a member of the government, and that clarifies it, I think.

21 MR. IVETIC: The president of the republic is not a member of the

22 government, correct.

23 JUDGE BONOMY: Thank you.

24 MR. PETROVIC: [Interpretation] Your Honour, he is referring to

25 the president of the government. That is the prime minister and not the

Page 26217

1 president of the republic.

2 JUDGE BONOMY: Thank you.

3 MR. PETROVIC: [Interpretation] So everything that has been said

4 refers exclusively to the prime minister.

5 JUDGE BONOMY: Well, it was my mistake, Mr. Petrovic. It's now

6 clear. Please continue.

7 MR. PETROVIC: [Interpretation] Thank you, Your Honour.

8 Q. His Honour Judge Bonomy mentioned the president of the republic.

9 What was the role of the president of the Federal Republic of Yugoslavia

10 in the process of the election of the federal government, and what was

11 his relation to the federal government and its members?

12 A. Before I answer this, I should say that the main constitutional

13 organs are the Federal Assembly, the president of the republic, the prime

14 minister - as far as I know, prime minister is the only proper

15 translation - and two courts. One of the main constitutional organs is

16 the president of the republic, who according to this constitution has

17 very weak powers, very weak authority, except for his relation to the

18 army. The constitutional relation between the president of the Federal

19 Republic of Yugoslavia and the federal prime minister refers to only two

20 situations according to the constitution. The first is nominating the

21 candidates for the prime minister, and this is a power that belongs to

22 the president of the republic. However, it should be mentioned that in

23 Yugoslavia at the time there was a multi-party system. The parties

24 competed in the elections, and this power of the president of the FRY was

25 such that he could not act of his own volition. When nominated the

Page 26218

1 candidate for prime minister, he always had to bear in mind the number of

2 seats won by each party in the Federal Assembly because bearing in mind

3 what the majority was in the Federal Assembly, that was the only way he

4 could nominate a candidate for prime minister. Apart from this power of

5 his, the president of the FRY under the constitution of this country had

6 no other legally prescribed powers over the federal government. On the

7 other hand, there was only one power of the federal government in

8 relation to the president of the FRY, and that was that the federal

9 government had expressis verbis, an express authority to propose to the

10 president of the FRY candidates for the post of ambassador. So they

11 could propose what ambassadors would be accredited with other governments

12 or, if need be, with other international organizations, and in this case,

13 also, the president of the republic did not have any powers because the

14 foreign policy fell within the competence of the federal government. So

15 the ambassadors who were nominated were actually implementing the policy

16 of the federal government, and this was prescribed by the constitution.

17 Q. Thank you, Professor. Can you tell us what was -- whether there

18 was any relation between the federal government and the Army of

19 Yugoslavia, and if so, what it was?

20 A. The Army of Yugoslavia was another constitutional organ in the

21 then-FRY, and its legal position was expressly regulated in part 8 of the

22 constitution bearing the title: "The Army of Yugoslavia." The relations

23 between the federal government and the Army of Yugoslavia is something we

24 can draw conclusions about only on the basis of the text of the

25 constitution. If we look at the powers that the federal government has

Page 26219

1 in relation to the army, we may conclude that these were not powers to

2 decide on the use of the Army of Yugoslavia except in one exceptional

3 case, a minor case, and that was that the conduct of foreign policy fell

4 within the remit of the federal government. So the legislator who

5 enacted the constitution empowered the federal government to decide on

6 whether the army would be used for the needs of international

7 organizations, i.e., on peacekeeping missions in other countries.

8 Apart from this power, the federal government had no other powers

9 in relation to the army, especially not as regards command, the internal

10 organization of the Army of Yugoslavia, and so on and so forth.

11 The other powers of the federal government which are prescribed

12 by the constitution are legal powers having to do with the army in the

13 context of preparation for the defence of the country because the federal

14 administration of the federal government prepared a defence plan, but it

15 only had authority over civilian structures in wartime or in the period

16 regulated by norms before a war, and we might say that these were

17 administrative powers in logistical matters. There were no other

18 relations. On the other hand, the Army of Yugoslavia, as is quite normal

19 in democratic countries, has no powers over the federal government.

20 Q. Does the federal government have any powers regarding civilian

21 control of the Army of Yugoslavia?

22 A. This is not performed by the government, but rather by the

23 Federal Assembly. The Federal Assembly decides when necessary on the

24 responsibility of the president of the FRY or enacts other legislation

25 having to do with control over the Army of Yugoslavia. So the federal

Page 26220

1 government has no powers falling within the scope of civilian control

2 over the work and activities of the Army of Yugoslavia.

3 Q. Professor, can you please tell us something about the relations

4 of the federal government and the republican organs in the republics who

5 were members of the federal state? I'm especially interested in the

6 relations between the federal government and the MUP of the Republic of

7 Serbia. Was there any relation between these two organs, and if so, what

8 was it?

9 A. The legislator who enacted the constitution probably had reasons

10 to decide on a type of federation, the type that is prescribed by this

11 constitution. It is characterized by several principles and several

12 fundamental relations. The main principle is that the federal state

13 carries out only those tasks of state government which are linguistically

14 and logically unambiguously assigned to it in the constitution, and this

15 is done by enumerating the powers, and this is a closed list. Apart from

16 the tasks enumerated in the constitution, the federal government cannot

17 undertake any other tasks unless the member republics agree on this, and

18 they did not agree on it while this state lasted. So the fundamental

19 tenet is that the member states are sovereign states, and this is

20 provided for in Article 6 of this constitution; they are sovereign

21 states, and they are sovereign in all issues not expressly put under

22 the -- not expressly assigned to the federal government.

23 There is double track in implementing legislation laws, bylaws,

24 and other legal documents. This constitution provides that the federal

25 state shall implement the federal laws it enacts, and it cannot implement

Page 26221

1 only those federal laws which cannot be implemented directly because, for

2 example, they regulate only the bases of some legal relations, and there

3 were few of these in this constitutional system. This falls to the --

4 under the so-called mixed or parallel competence, and this has to do with

5 the tax system, the labour system, the social welfare system, and so on

6 and so forth. I won't list them all.

7 On the other hand, the republic in everything that was the task

8 of the government which was not expressly assigned to the federal

9 government was independent, and there were no control mechanisms for the

10 federal government to control this, so these were two separate tracks.

11 Of course, the legislation of the member republics had to comply with the

12 federal constitution, but there were very few principles and very few

13 norms that were binding on the republics.

14 In view of all this, my answer to your question is that the

15 member republics were really independent in carrying out the work falling

16 within its judicial administrative and other competence, and the federal

17 government had no powers of control except for control over legislation

18 and documents, not control over behaviour and activities, and everything

19 else was done by the republics independently. This general rule also

20 applies to the Ministries of the Interior of the member republics, as no

21 organ of the federal government had any legal power over them. The

22 member republics had the right of so-called self-organization, and in

23 this they were bound only by two principles of the federal constitution,

24 that of a civil sovereignty and that of the division of power.

25 Q. Thank you. And the last subject that I would like us to deal

Page 26222

1 with has to do with Article 99 of the Constitution of the Federal

2 Republic of Yugoslavia, dealing with all the competencies or the powers

3 of the federal government, or rather, Article 77 dealing with the federal

4 organs. In Article 77(1) of the powers of the federal organs is the

5 security of the Federal Republic of Yugoslavia, whereas in item 6 there

6 is the power of exercising control over crossing the state border. This

7 was envisaged in the constitution, but was it specified in concrete norms

8 more specifically?

9 A. The constitutional legislator practically said what the purview

10 was of the federal state and its organs, and this was done through two

11 procedures. First, in Article 77, the issues and relevant fields were

12 specified that the federal state was in charge of, regulating every one

13 of the powers of each federal organ. Of course, it should be stated that

14 the Federal Republic of Yugoslavia was -- did not have very long life,

15 historically speaking, and from the point of view of a well-organized or

16 a perfectly organized state, it had not been completed, or rather, it had

17 not been rounded off from a legal point of view. This particularly holds

18 true with regard to two of the questions that you asked me about because

19 Article 77 says that "The Federal Republic of Yugoslavia, through its

20 organs, establishes or formulates policy, enacts and enforces federal

21 legislation, other laws and general enactments, and ensures judicial

22 protection in various fields."

23 And then it says in item 6: "Border crossing and control of the

24 circulation of goods, services, and passengers across the border."

25 And in item 7, it says that this pertains to the fields of

Page 26223

1 defence and security of the Federal Republic of Yugoslavia as well.

2 Perhaps this would be the right place to point out that the area

3 of defence was regulated, both by laws and bylaws, and that that is where

4 the judiciary, executive, and legislative branches of government

5 function. However, in the Federal Republic of Yugoslavia, as we can see,

6 the federal state did not exercise judicial legislative authority,

7 rather, and therefore executive authority wasn't there either. And since

8 both were lacking, then judicial authority could not be exercised in the

9 field of security of the Federal Republic of Yugoslavia throughout its

10 existence, until it ceased to exist, that is.

11 With regard to all three branches of government, border crossings

12 and the control of circulation of goods, et cetera, everything that is

13 mentioned in this item, was regulated as it was. So that was the destiny

14 of this one particular issue falling under the jurisdiction of the

15 federal state throughout the existence of the Federal Republic of

16 Yugoslavia.

17 Q. Thank you, Professor. Those were all of our questions.

18 JUDGE BONOMY: Professor, I'm afraid I've lost you a little in

19 your last answer where you're dealing with item 7, and you talked about

20 the federal state did not exercise judicial legislative authority, at

21 least that's the English translation. What is that?

22 THE WITNESS: [Interpretation] I think that I will be in a

23 position to clarify this very quickly. As for Article 77 of the

24 constitution, it states that the federal state carries out judicial --

25 JUDGE BONOMY: I've got Article 77. It's what you're telling us

Page 26224

1 about that part 7, item 7, in that.

2 THE WITNESS: [Interpretation] Yes, yes. Item 7 envisages that

3 the federal state has judicial, executive, and legislative authority in

4 the field of security of the Federal Republic of Yugoslavia; however,

5 throughout its existence, the Federal Republic of Yugoslavia did not pass

6 a law on security. Since such a law was not passed, it could not be

7 carried out by the executive, and since it was not being implemented,

8 then there could be no judicial disputes in that area. There was just a

9 single court that existed in this state: The federal court of the

10 Federal Republic of Yugoslavia. That was the only one in existence. In

11 other words, the federal state did not exercise its powers in the field

12 of security at all because, in fact, this was carried out by the member

13 republics. I would be very pleased if I managed to explain the essence

14 of this question and the situation in the Federal Republic of Yugoslavia

15 in the field of security.

16 JUDGE BONOMY: Trying to put it into simple layman's language,

17 are you saying that the secret service of Yugoslavia was operated by the

18 various republics?

19 THE WITNESS: [Interpretation] Yugoslavia didn't have a secret

20 service at all as its own service, as a service of the federal state, as

21 unusual as this may seem to you, but that's the way it was.

22 JUDGE BONOMY: But are you saying that each republic had one?

23 THE WITNESS: [Interpretation] Then every one of the republics

24 carried out this work in relation to its territory, and that is as far as

25 my constitutional law knowledge goes because I am well-versed in

Page 26225

1 constitutional law matters.

2 JUDGE BONOMY: Was there a Federal Ministry of the Interior?

3 THE WITNESS: [Interpretation] No, no. There was never a Federal

4 Ministry of the Interior because, you see, when a prime minister

5 designate would be appointed, then he would decide what the composition

6 of his government would be or his cabinet, to put it in your own

7 linguistic and legal terms. Every prime minister designate did that, but

8 in all the cabinets that were established from 1992 up until the end of

9 the existence of the state union, there was no Federal Ministry of the

10 Interior.

11 JUDGE BONOMY: I'll be corrected if I'm wrong, no doubt, but I

12 have a recollection that Mr. Bulatovic, when here, told us that there was

13 a Ministry of the Interior of sorts in the federal government, but that's

14 not your understanding?

15 THE WITNESS: [Interpretation] If it did exist -- well, you really

16 caught me by surprise now. I cannot remember because at that time I did

17 not live in Serbia. At any rate, it was not involved in carrying out

18 security work.

19 JUDGE BONOMY: So throughout the Federation, how were the

20 activities of the security services coordinated?

21 THE WITNESS: [Interpretation] I don't think that I would be best

22 placed to answer that question because as for police coordination and

23 police work, indeed, I never dealt with such matters.

24 JUDGE BONOMY: All right. Thank you.

25 You'll now be cross-examined by the Prosecutor, Mr. Hannis.

Page 26226

1 Mr. Hannis.

2 MR. HANNIS: Thank you, Your Honour.

3 Cross-examination by Mr. Hannis:

4 Q. Good morning, Professor.

5 A. Good morning.

6 Q. I wanted to start with a couple of questions about your CV, which

7 I understand is annex 4 to your report, and it's our Exhibit Number

8 2D394. In looking at your work history, I seem to have a gap between 25

9 May 1992 and 25 October 1993. Can you tell us what you were doing during

10 that time-period?

11 A. During that period of time, unfortunately, I was not in a

12 position to pursue my academic or research career because due to the war

13 operations in Sarajevo where I lived and worked at the law school of the

14 University of Sarajevo, my university career was interrupted. From May

15 1992 until October 1993 I was unemployed, but during that period of time

16 at the request of people that I had cooperated with before the war, I was

17 legal advisor but without having established formal employment with

18 Professor Dr. Aleksa Buha, who was then foreign minister of Republika

19 Srpska. In that period of time I was also legal advisor, upon

20 invitation, of the delegation of Republika Srpska that negotiated in

21 Geneva under the auspices of the International Conference on the former

22 Yugoslavia. All of this, due to the fact that from 1991 I took part as a

23 representative of the Serb side from Bosnia-Herzegovina in the work of

24 the International Conference on the former Yugoslavia that started

25 working precisely here, in The Hague, and later on continued working in

Page 26227

1 Brussels and ultimately in Geneva. So that is the void, as it were, that

2 you referred to, whereas the CV states only matters of relevance to my

3 academic and researcher status, not only to -- it was not done to avoid

4 things, but I thought that I should only give references that qualified

5 me as an expert in constitutional law.

6 Q. I understand that, and I trust you'll understand that I'm asking

7 these questions to determine if there's anything that may bear on

8 credibility or bias or some motive to testify a particular way. I had a

9 note somewhere that listed you as a deputy minister for foreign affairs

10 for the Republika Srpska in 1994. Would that be accurate?

11 A. Yes, yes, indeed. First, you asked me about the period from 1992

12 and 1994, and I responded; now you're asking me about the period from

13 1994. Yes, from October - I don't know exactly when, October

14 20-something - I was deputy foreign minister of Republika Srpska all the

15 way up to 1998.

16 Q. And you say from October. Is that October 1993 or October 1994

17 that you achieved that position?

18 A. 1994 at any rate.

19 Q. And was that a paid position?

20 A. It was so well paid that I had to work in Belgrade in order to

21 feed my family, so that I could work for free in Pale. Even if it had

22 been paid -- I mean, people who were paid for work there could not live

23 off that money. Just as a matter of curiosity, people who worked as

24 deputy ministers had a salary of 10 euro in present-day terms.

25 Q. Is that per month or per year?

Page 26228

1 A. Per month. I, in order to feed my family and myself, worked at

2 the Institute for Comparative Law in Belgrade, which is a research

3 institution.

4 Q. Are you a member of any political party?

5 A. During a certain period of time, six or seven years, I'm not

6 sure, I was a member of the Serb Democratic Party. I left the party in

7 1992. I can't remember the exact date, but let's say it was the month of

8 April because that year I competed in order to become a judge of the

9 constitutional court of Bosnia-Herzegovina, and one of the requirements

10 for that job was that the candidate involved was not a member of a single

11 political party. So for five or six or seven years - I can't tell you

12 exactly - I was a member of this party. If I give it some more thought,

13 I may be able to tell you. I think it was from 1996 -- now, was it

14 1996 -- until April 1992 [as interpreted]. That is when I resigned from

15 the main committee of the Serb Democratic Party for the reasons that I've

16 just explained to you.

17 Q. And did you not again after --

18 MR. PETROVIC: [Interpretation] Your Honour.

19 JUDGE BONOMY: Mr. Petrovic.

20 MR. PETROVIC: [Interpretation] I do apologise. Could my learned

21 friend Mr. Hannis put the question regarding the duration of his

22 membership in the Serb Democratic Party. I think that the answer is a

23 bit confusing. The transcript is not [as interpreted] confusing. From

24 1996 until when?

25 THE WITNESS: [Interpretation] Until April 2002.

Page 26229


2 Q. Thank you. And during that time-period from 1996 to 2002, did

3 you hold any positions within the SDS?

4 A. From 1996 until 2002, I think that it was only from 1998 that I

5 was a member of the Main Board, as I said to you, and then I left it in

6 April 2002.

7 Q. That was the party that was founded by Radovan Karadzic, correct?

8 A. That is a party that was founded at its founding assembly in

9 Sarajevo. I did not attend. Many people founded it. Radovan Karadzic

10 was not the only man who founded it. The founding meeting was held, as

11 far as I know, in a big sports hall of the biggest sports centre of

12 Sarajevo, Skenderija, that could take 6 or 7.000 people at a time. This

13 is what people told me about. The hall was full, so there were many

14 people who founded that party.

15 Q. My point is, though, that that's the party that is primarily

16 associated with Radovan Karadzic and generally viewed or termed a Serb

17 nationalist party, correct?

18 A. I really cannot state any views on that, and I did not look at

19 how people were characterizing it. Some people characterize it this way;

20 some people characterize it that way. At any rate, this is not a

21 question that I would need to answer. This is a statement made by the

22 person who was actually putting that by way of a question in terms of

23 what he believes.

24 Q. Well, you're not aware that the SDS in Bosnia and Herzegovina

25 during President Karadzic's time in that position was viewed as a

Page 26230

1 nationalist Serb party? You must have been aware of that?

2 A. Let me make one thing clear. I understand English quite well,

3 but I am listening to my language because one feels the best in one's own

4 language. I don't know whether the interpretation I received was

5 correct, but it said that the Serbian Democratic Party was a nationalist

6 party and was viewed as a nationalist Serb party. I can tell you only

7 this. You can talk about various qualifications. You asked me whether I

8 was aware of that, but I can tell you this. At that time, I paid very

9 little attention to labels, to how things were called, because one had to

10 make a living and survive.

11 Now, as to the second part of your question, whether I was aware

12 of the fact that it was a nationalist party, it of course gathered around

13 it mostly Serbs, but it was not by any means the only party in Bosnia and

14 Herzegovina that had Serb membership, that attracted Serbs, if by that

15 you mean that most of its members were of the Serbian ethnic background.

16 Q. Well, what would you describe as its primary platform in Bosnia

17 and Herzegovina in 1992?

18 A. How would I describe its platform, its primary platform? As far

19 as I know, I share those views, I and the party, although I was not a

20 member, supported it because it expressed the interests of the great

21 majority of the Serb people in Bosnia and Herzegovina. They wanted to

22 retain the joint state, to restructure it to the degree that it was

23 possible, and to do that in -- by peaceful means and without any blood.

24 This is what I knew about the Serbian Democratic Party at that time.

25 Q. And I take it, then, that you wouldn't know whether the HDZ was

Page 26231

1 viewed as a Croatian nationalist party or the SDA was viewed as a Muslim

2 nationalist party?

3 A. Well, I can give you the same answer as I did about the Serbian

4 Democratic Party. What is clear and evident and -- both to me and to

5 everybody else in that area was that the Croatian Democratic Union

6 gathered in the overwhelming majority Croats, people of Croat ethnic

7 background in Bosnia and Herzegovina, and the same went for the Party of

8 Democratic Action, which gathered around it Muslims, or as they are now

9 defined in the constitution of Bosnia and Herzegovina, Bosniaks. This is

10 a fact that cannot be denied.

11 Q. Okay. You say that you were a professor at the Serb Sarajevo law

12 faculty from 1 November 1999. Are you still a member of that law

13 faculty?

14 A. I continued my university career. I resumed it in November 1999.

15 I no longer work there. Throughout this period, I was the dean and the

16 professor. I taught constitutional law and political system, and I was

17 fired on the 16th of January, 2006, so it's been two years and a half -

18 how time flies - because the decision of the High Representative for

19 Bosnia and Herzegovina of the 30th of June, 2004, was being implemented,

20 removing me from the position of the member of the Main Board of the

21 Serbian Democratic Party. I was not a member of that board at all at

22 that time, but this imprecision does not really concern me because many

23 other people were also fired, and some of them were characterized or

24 mistaken for some other people who simply shared the same name, and the

25 Office of the High Representative then made this mistake. They said I

Page 26232

1 was a member of the Main Board of the SDS, although I was not, and they

2 also prohibited me from taking any public office. I was prohibited from

3 being a member of any political party. I was prohibited from

4 participating in any elections as a candidate. So I was prohibited from

5 taking any public office that would be funded by the budget. So as the

6 university professor, I could not work in any service that was financed

7 from the budget of Bosnia and Herzegovina, I could not get a job as a

8 cleaner, as a driver, anything. Of course, all this was the consequence

9 of the enforcement of this decision, and I was not even informed that

10 proceedings had been instituted against me. I was not aware of any

11 accusations levied against me. I think that you will find this decision,

12 and you will not be able to find any act that would constitute a criminal

13 offence on my part, and what was done to me actually amounted to a

14 criminal sanction. I think that now I've given you my answer to this

15 question.

16 Q. Yes, and it raises a few more questions for me. There is a

17 decision from 30 June 2004 by Paddy Ashdown as the High Commissioner to

18 remove you from your position as a member of the Main Board of the SDS.

19 You're telling us you were no longer a member of the Main Board at that

20 time; is that right?

21 A. Yes. At that time, I was not a member of the Main Board. Had

22 any proceedings been instituted against me by the Office of the High

23 Representative, they would have been able to determine that fact very

24 easily because in the Serbian Democratic Party archives, there is a

25 letter in which I informed the president of the party that I resign from

Page 26233

1 my position in the board and that I no longer want to be a member because

2 I wanted to apply for the post at the constitutional court and -- but no

3 proceedings had been instituted, and this was not done.

4 Q. What was not done? Your resignation was not accepted?

5 A. My resignation was accepted, and after that I did not participate

6 in the work of the Serbian Democratic Party and its Main Board because

7 first I was appointed a judge of the constitutional court in Bosnia and

8 Herzegovina, and then the High Representative cancelled this appointment

9 on the basis of a request by the Bosniak representatives in the

10 Constitutional Commission of Bosnia and Herzegovina, and I was a member

11 of that commission too. But I was not a member of the Serbian Democratic

12 Party Main Board at that time, so there could be no debate about any

13 acceptance or not acceptance because it -- this was my personal action.

14 But if any proceedings had been instituted against me or if any procedure

15 was done to check these facts, then they would have found that out, but

16 this was simply not done. They did not check the facts.

17 Q. And did you try to seek any relief from that decision through

18 some legal proceeding?

19 A. Of course. I did not appeal against this decision with the High

20 Representative because no proceedings in which I participated were

21 actually conducted, and if there were no proceedings then I could not

22 appeal with any other body, external body. These are the basic tenets of

23 legal procedure that I taught my students. Out of the 59, 26 of us filed

24 a complaint before the European Court of Human Rights because the rest of

25 the people from that group of 59 were very much afraid that they might

Page 26234

1 face harsher sanctions than the ones that they got, and these sanctions

2 were imposed without any legal norms and without any legal proceedings.

3 The 26 were brave enough. We were brave enough to do that, if you can

4 call that bravery, of course, because this is a basic expression of your

5 self-esteem. And European Court of Human Rights recently issued a

6 decision rejecting our complaint. We, of course, filed suit against

7 Bosnia and Herzegovina for failing to fulfil its obligations under

8 Article 1 related to Article 6 of the European Charter -- I'm sorry, not

9 6 but 7 of the European Charter of Human Rights, and the European Court

10 of Human Rights decided that it lacked jurisdiction because this action

11 could not be attributed to Bosnia and Herzegovina but to the High

12 Representative, and the High Representative in making this decision did

13 not perform any of the tasks of the sovereign government of the Republic

14 of Bosnia and Herzegovina; but, as is indicated explicitly in the

15 decision of the court, it had the authority of the UN Security Council.

16 On the other hand, I filed three suits before national courts in

17 Bosnia and Herzegovina; one is the legal suit about the fact that I was

18 fired.

19 Q. And none of those have been resolved yet; is that correct?

20 A. In one of them I have the first-instance judgement, and the

21 first-instance court ruled in my favour, ordering the faculty to give me

22 back my job and to pay both the damages, but the faculty appealed against

23 this judgement. And there were also two administrative proceedings

24 before the district court in Banja Luka. In the first case, the court

25 decided it was not an administrative case and that there could be no

Page 26235

1 administrative proceedings. In the second one, it ruled in my favour

2 because it decided that the Government of Republika Srpska did not have

3 the authority to remove from office a dean of a faculty and to appoint

4 somebody else to that post. These were legal suits that I filed in order

5 to protect my rights. Of course, now we're talking about filing suit

6 before appropriate bodies of the United Nations because we cannot see how

7 it is that the bodies of the United Nations can violate their own basic

8 documents such as the Declaration of Human Rights, which has become part

9 of international law, and how two covenants on human rights.

10 Q. My question was, are any of those finally resolved, or are they

11 still pending on appeal or at some other stage of the proceedings?

12 A. Appellate proceedings are now underway in the administrative

13 proceedings and in the proceedings before the court. Well, when we're

14 talking about administrative proceedings, we're talking about different

15 kind of relief, but that's basically it.

16 Q. Okay. I have one other question dealing with this general topic

17 before I go to ask you about your report. I furnished to the Defence

18 counsel yesterday some open-source news articles about you that I might

19 ask a question about. I don't know if you were shown that or you're

20 aware of it, but one is a story from the Pale Javnost publication on the

21 13th of July, 1996, which purports to be an interview with you where you

22 are described as the deputy foreign affairs minister of the Serb

23 Republic, and you're being interviewed by someone named Jovan Janjic. Do

24 you recall that interview?

25 A. I know Jovan Janjic. He's a journalist. He used to be an editor

Page 26236

1 in Javnost magazine, and if you remind me, I will be able to recall.

2 Q. Well, in English, the title of the article: "Serb Official On

3 Achieving Strategic Balance," and he's asking -- he's describing or

4 talking about a conference on arms control and Vienna among other things.

5 Do you remember being interviewed about that?

6 A. Yes, yes. I was the head of the delegation of the Republika

7 Srpska at the talks about the implementation of the annex 1, I think, to

8 the Dayton Peace Accords.

9 Q. Okay.

10 A. That's arms control, regional stabilization, and so on.

11 Q. Okay. And in the article, he mentions that you've also been to

12 Brussels, The Hague, London, and Geneva, and taking part in various

13 negotiations, including the final negotiations in Dayton, correct?

14 A. Yes, yes. I was a member of the delegation of Republika Srpska

15 during proximity talks in Dayton.

16 Q. Did you read this article at the time it came out, do you recall?

17 A. Well, try and jog my memory, and if I'm able to recall I will

18 talk about that because I don't have any details in my life that I would

19 like to keep secret. I didn't give many interviews. I didn't write a

20 lot, but a long time has passed, so I can't really recall that.

21 Q. Okay. Just two parts I want to ask you about. In the first

22 paragraph, he describes you as the deputy foreign affairs minister, and

23 he says that you have "been a part of the Serb nationalist movement from

24 the very beginning."

25 That's correct, isn't it?

Page 26237

1 A. Well, the Serb nationalist movement or national movement -- yes,

2 you can say that in a way because as an expert for constitutional law, I

3 took part in the talks under the auspices of the International Conference

4 for the former Yugoslavia, the International Conference for Yugoslavia

5 first and then for the former Yugoslavia, so that's the time-period

6 1991/1992; and these were my duties mostly until 1998, which was the time

7 until which I worked as the deputy foreign minister of Republika Srpska.

8 So you could say that I was a member of that movement. I think in 1996,

9 I became a member of the Serbian Democratic Party. Now, I cannot really

10 interpret the journalist's thoughts or ideas because these are not my

11 words. These are his words.

12 Q. Okay. Then let me ask you one last thing before the break, if I

13 may, which reflects your words. The question from Mr. Janjic was: "What

14 do you as a legal specialist think about The Hague trial of Serb

15 leaders?"

16 You said, according to him: "It is completely clear that this is

17 an attempt to break the morale and ethics of the Serb nation and place it

18 at the very bottom of the historical and civilizational pit; an attempt

19 to drive the Serb nation to self-hatred and create in it a feeling of the

20 absurdity of its own existence and the futility of any struggle. Also,

21 it is an attempt to decapitate the Serb nation in the Serb republic by

22 destroying its leaders. It seems that someone has to replace Germany and

23 the German people in that historic role. Numerous legal and political

24 problems of that Tribunal and the trial itself have still not been

25 resolved. It's impossible to make the Serb nation guilty of genocide

Page 26238

1 because it was defending itself there and had no intention of destroying

2 other nations; it never did. This holds true for its political and

3 military leaders. I think that this completely senseless and pale

4 attempt at a rerun of Nuremberg will not succeed."

5 That's what you said, isn't it?

6 A. If you allow me, this sounds like some of the views that I

7 expressed, and I don't want to keep it a secret. Now, whether I phrased

8 it quite exactly in those terms I can't tell you, but for the most part

9 this corresponds to my views of some elements of the pre-war, war, and

10 post-war developments in these areas. And of course, I'm doing this as a

11 free man because freedom of thought for me and even in areas where there

12 is none is the basic prerequisite for any other freedom and for a free

13 society, so this does sound like my views. Now, whether this is really

14 what I said or whether he really transposed my words the way that I said

15 them, I don't know that. You may know that unfortunately newspaper

16 articles and interviews are rarely authenticated or reviewed before

17 publishing.

18 Q. I do. Thank you.

19 MR. HANNIS: This is a good time for the break, Your Honour.


21 Professor, we need to have a break at this stage. It's routine.

22 It's for 20 minutes. Could you leave the courtroom, please, with the

23 usher while we have this break, and we'll resume at five to 11.00.

24 [The witness stands down]

25 --- Recess taken at 10.33 a.m.

Page 26239

1 --- On resuming at 10.58 a.m.

2 [The witness takes the stand]

3 JUDGE BONOMY: Mr. Hannis.

4 MR. HANNIS: Thank you, Your Honour.

5 Q. Professor, now I want to turn to your report, which is our

6 Exhibit 2D239, I believe, and I want to talk first about annex 1, which

7 has to do with territorial autonomy. This is kind of complex and

8 difficult for me to follow, so I'll try to ask you just a few questions

9 in layman's terms. Would it be fair to say that between 1968 and prior

10 to 1988 that the autonomous provinces of Kosovo and Vojvodina enjoyed a

11 very high level of autonomy, so high, in fact, that they were pretty much

12 on an equal footing with the republics in the former Yugoslavia? Or is

13 that too simplistic?

14 A. Well, as usual, if it's simple, it's bound to be complicated.

15 Let me try and sum up in the briefest possible terms as follows: Perhaps

16 we should first address the issue of what autonomy is, whether there is a

17 universal type of autonomy, whether there is one measure, one content

18 that would allow us to measure all the other phenomena that could be

19 termed autonomy. But it would be pointless in this case. All I'm trying

20 to stress here is that there is a problem of how one understands it, even

21 if we use the same terms. If you allow me, I will answer. A famous

22 professor, we share the same name, he was famous and very prominent in

23 the former Yugoslavia. He said always whenever there was a debate, Our

24 first task is to define the terms lest we should use the same words to

25 talk about different things or different words to talk about the same

Page 26240

1 things. And you could say that the autonomous province of Vojvodina and

2 the autonomous province of Kosovo and Metohija and then later on Kosovo

3 in the period that you referred to - well, that period could further be

4 divided into subperiods - did have the constitutional position that in

5 some respects was similar to those of other units, similar but not the

6 same. I say that advisedly because although there were similarities,

7 there were also some differences. Only federal units under the

8 constitutions that were in force in Yugoslavia at that time were entitled

9 to self-determination. Of course, the issue was what the right to

10 self-determination entails, whether it entails the right to secession.

11 Similar to that was the constitutional position of peoples and ethnic

12 minorities. Of course, we could talk about the relationship between the

13 Socialist Republic of Serbia, as the federal was called at that time, and

14 the socialist autonomous provinces that were part of it, and we could

15 also conclude that there was a high degree of similarity with some

16 differences. So there was a high degree of similarity but there were

17 some fundamental differences, the key being the fact that the territorial

18 and political autonomies, the two that existed in Serbia, did not have

19 the right to self-determination.

20 Q. But during that period, the autonomous provinces each had their

21 own constitution?

22 A. Not from the beginning, only at a later stage. First, they had

23 the constitutional laws when the 1968 constitution was amended, and then

24 they were given right to their own constitutions. I do apologise for

25 this correction.

Page 26241

1 Q. And during this time-period they also -- and I'm primarily

2 interested in Kosovo, obviously. They primarily got the right to have

3 their own Supreme Court, correct?

4 A. Yes, under the 1974 constitution, that is correct. They had the

5 right to set up their own courts as part of their judiciary government in

6 the territory of their province, which was in accordance with the way in

7 which the state then was organized.

8 Q. And during this time-period, Kosovo had its own assembly and own

9 Executive Council, which had the right to initiate proceedings before the

10 Constitutional Court of Yugoslavia?

11 A. Yes, they did have the right to initiate proceedings in certain

12 cases before the Constitutional Court of Yugoslavia and the

13 Constitutional Court of Serbia.

14 Q. And at page 14 of your report in English, you talk about the

15 province got basically the right of veto regarding changes or amendments

16 to the federal constitution; is that correct?

17 A. Yes, yes. In this aspect their position was the same as the

18 position of the federal units because the SFRY constitution could only be

19 amended with the approval of the assemblies of the republics and of the

20 autonomous provinces.

21 Q. And on page 16 in the English of your report, you talk about

22 "Since they now were able to participate in changing the SFRY

23 constitution on the principle of unanimity, the provinces like the

24 republics have ultimate responsibility, which is the most important

25 component of the right to self-organizing."

Page 26242

1 Correct?

2 A. Let me just read it first. I do apologise. I'm just checking to

3 verify. What do you mean the responsibility? The responsibility of

4 which the most important component was the right -- which responsibility

5 are you referring to, the ultimate responsibility?

6 Q. I don't know. I'm just reading the English translation. It

7 says: "And since they participate in changing" -- and I don't know what

8 the B/C/S page is. Maybe Mr. Petrovic --

9 A. No, no, you can say it in English. Please, do say it in English.

10 Q. In English, it says: "And since they participate in changing" --

11 A. Could you please give me the paragraph and the line.

12 Q. Okay. On page 16 of the English. It's the second paragraph, and

13 it's the last sentence in that paragraph. Do you find it?

14 A. [In English] "And since they participated ..." [Interpretation]

15 Is it that one you mean?

16 Q. Yeah. And there's a reference to "ultimate responsibility"

17 there.

18 A. Just a moment. Let me compare it to see whether the translation

19 is correct because there are usually problems.

20 MR. PETROVIC: [Interpretation] That's page 22, first paragraph in

21 the Serbian version.

22 MR. HANNIS: Thank you.

23 THE WITNESS: [Interpretation] No, the translation is not correct.

24 The translation is not correct, the English translation. In fact, I used

25 the term "kompetenz" from the German legal theory. I think that there is

Page 26243

1 a similar legal term in the English language. So they have the

2 jurisdiction to have jurisdiction. Under the German theory of

3 federalism, that would pertain only to the federal state. Here, it went

4 one level down to the federal unit and the autonomous province. It's a

5 mistake in translation, but you can't really blame the translators

6 because these are technical terms.

7 JUDGE BONOMY: Professor, would you now read the sentence in

8 B/C/S slowly, and we'll have it clarified by the interpreter.

9 THE WITNESS: [Interpretation] "And since they participate in

10 amending the SFRY constitution on the principle of unanimity, the

11 provinces have, as do the republics, the competence of the competence,

12 "nadleznost nadleznosti," which is the most important component of the

13 right to self-organizing.

14 "So the autonomous province has the competence of the competence

15 over itself, which is atypical. If you do a comparative study of various

16 forms of autonomy, there is no historical precedent in which an autonomy

17 has this "kompetenz kompetenz" kind of competence to decide on how it

18 would organize itself. Everywhere, it is connected to the state, and it

19 is the state that prescribes how the political and territorial autonomy

20 will be organized. It is the competence of the state. It does so in its

21 constitution or by its constitution and laws. Unlike this solution,

22 which is quite usual, there are some" --

23 JUDGE BONOMY: I just wanted a translation. Thank you very much.

24 Mr. Hannis.

25 MR. HANNIS: Thank you.

Page 26244

1 Q. Okay, Professor. The point I'm trying to get to is that from

2 this position that existed in Kosovo and Metohija prior to 1989, this

3 high level of -- what I call this high level of autonomy, there were

4 changes made in the constitution of Serbia, and then there were the

5 events on the 23rd of March, 1989, in the Assembly in Kosovo. And after

6 that, Kosovo had what I would call a much reduced level of autonomy.

7 Would you agree with that general statement?

8 A. Well, again, I can say that sometimes we're using the same words

9 to refer to different things. In 1988, changes were made -- or rather,

10 amendments were made to the SFRY constitution, and some of these

11 amendments concerned the position of the provinces in the Republic of

12 Serbia. These amendments to the federal constitution were made precisely

13 for the reason -- or rather, precisely in order to eliminate elements

14 blocking the legislative and executive power in the Republic of Serbia in

15 relation to Article 301 of the constitution referring to laws enacted by

16 Serbia for the territory of the entire republic. The goal of these

17 amendments - and this was beyond dispute - was to remove impermissible

18 blockades in the functioning of the republics so that amendments were

19 made to the Serbian constitution, and there were many amendments, but

20 only four or five related to the status of the autonomous provinces

21 within Serbia. And it was stated there that the position of the province

22 in the Federation cannot be changed by that constitution, but the

23 position of the province within Serbia was changed, which actually got

24 Serbia out of this situation where its work was being blocked so that

25 judicial control of laws and bylaws on the territory of all of Serbia was

Page 26245

1 put in place. Nowhere is it written down that this part of the position

2 of the autonomous provinces within Serbia is inalterable, nor is it

3 guaranteed as a right, and it was Serbia that had the "kompetenz

4 kompetenz" power in relation to the organization of its state government.

5 Q. No, I understand that. But would you not agree with me that a

6 reasonable outside observer would look at the difference between 1998 and

7 1990 and say that Kosovo, the province, does not have the same level of

8 autonomy that it had earlier, that it has been reduced. Can you agree

9 with that general proposition?

10 A. Even an unreasonable observer could notice that there had been a

11 change, but anyone versed in the problems of constitutional law could not

12 say that autonomy had been reduced because the kind of autonomy - and let

13 me use your expression rather than mine - the kind of autonomy that

14 existed in constitutional and legal terms was atypical for both

15 provinces. There were not many such experiences with federalism and

16 regionalism, so serious evaluation would be that the contents of the

17 political territorial autonomy under the amendments of 1988 and 1989 and

18 the federal and republican constitution were reduced within -- to within

19 the reasonable limits of what was known and what had already been seen in

20 constitutional law [as interpreted]. In any case, it's correct that the

21 provinces did not have some of the powers they had had before, but I

22 would not agree with you that their autonomy had been reduced. It was

23 only that something that in comparative legal terms had been warped or

24 overemphasized in that autonomy was withdrawn.

25 JUDGE BONOMY: Mr. Petrovic.

Page 26246

1 MR. PETROVIC: [Interpretation] Your Honour, by your leave, page

2 44, line 13, the professor said what was already seen in comparative

3 constitutional law.

4 JUDGE BONOMY: Thank you.


6 Q. Well, Professor, maybe it's a matter of semantics, but if money

7 is withdrawn from my bank account, I view my bank account as being

8 reduced. Do you agree with me?

9 A. Yes, but it's not the same situation.

10 Q. Okay.

11 A. This was not a provincial bank account that could be reduced.

12 They had more -- they had been given more, actually, than they should

13 have had. So these are two different situations, and we can't view them

14 in the same terms.

15 Q. Okay. Let me ask you this way. After 1990, was Kosovo permitted

16 to have a constitution of its own? Yes or no?

17 A. Was Kosovo permitted to have its constitution? Well, Kosovo had

18 its statute, which was the legal document pertaining to its organization.

19 Likewise, Vojvodina, as you view it, did not have the right to its own

20 constitution, and it enacted a statute, and it was quite peaceful

21 until -- well, it has been peaceful up to now.

22 Q. Right. But before 1988, Kosovo was permitted to have a

23 constitution; after 1990, they only had a statute, not a constitution,

24 right?

25 A. Yes, but you have to bear in mind when drawing this comparison

Page 26247

1 that Kosovo had had a statute before that also.

2 Q. No. Please, just try to answer my questions. I'll try to keep

3 them simple. Before 1989, during that time-period between 1974 and 1989,

4 Kosovo was permitted to have a Supreme Court, but after 1990, they were

5 not, right?

6 A. Of course, but Kosovo hadn't had the Supreme Court before that.

7 Q. You answered my question when you said "of course." I'm talking

8 about what level of autonomy they had, what things they had prior to 1990

9 that they no longer had after 1990. After 1990, they no longer -- Kosovo

10 no longer had the right of veto of the federal constitution, correct?

11 A. After 1990, after 1990, Kosovo did have the right of veto to the

12 federal constitution for as long as the federal constitution applied.

13 But the problems were of a different nature then because the federal

14 state was not functioning at the time for reasons which are probably not

15 of interest in these proceedings.

16 Q. Okay. You then talk about the period in the autonomous provinces

17 in 1998 [sic] to 1990 at page 20 of the English, and the first paragraph,

18 you say: "The position, organization, and role of territorial autonomies

19 in the constitutional order of Yugoslavia and Serbia, the Constitution of

20 the Republic of Serbia, the Constitution of Vojvodina and Kosovo, which

21 were adopted in 1974, elicited numerous and various debates and demands

22 for change."

23 And based on what you described earlier in your report and what

24 you told us, I can well imagine that that did happen, and that's what led

25 to the events that led to what you talk about, the withdrawal of

Page 26248

1 autonomy, correct?

2 A. What do you mean withdrawal of autonomy? What point of time are

3 you referring to, and what do you mean exactly?

4 Q. The changes that occurred as a result of the changes to the

5 Constitution of Serbia.

6 A. What year are you referring to?

7 Q. I'm talking about the 1989 amendments and the vote that took

8 place in the Kosovo Assembly on March 23rd.

9 A. The amendments of 1989 did not withdraw autonomy. Kosovo

10 continued to have the status of a political and territorial autonomy,

11 just as Vojvodina did, but with reduced competencies corresponding to the

12 actual position of these two provinces, which with some small differences

13 corresponded to what they had had prior to 1968. One could [as

14 interpreted] say that the autonomy of Kosovo and Metohija had been

15 withdrawn if Kosovo and Metohija had ceased to exist or if it ceased to

16 have the kind of rights that belonged to autonomous provinces generally.

17 So I cannot agree with you when you say that territorial autonomy was

18 withdrawn by the amendments of 1989 because it simply does not correspond

19 to the truth when one looks at the theoretical thought about the position

20 of autonomy.

21 Q. Stop. I don't think --

22 JUDGE BONOMY: Just a moment, Mr. Hannis.

23 Mr. Zecevic.

24 MR. ZECEVIC: I'm sorry, Your Honours. 47, 5, 6, it is obvious

25 that from the context of the answer this doesn't make sense: One can say

Page 26249

1 that the autonomy of Kosovo and Metohija had been withdrawn. I believe

2 witness said quite contrary.

3 THE INTERPRETER: Interpreter's correction: One cannot say.

4 MR. ZECEVIC: Maybe the witness should be instructed to talk

5 slower so the interpreters can --

6 JUDGE BONOMY: The interpreter has corrected it. Thank you.

7 MR. ZECEVIC: Oh. Thank you.

8 MR. HANNIS: Thank you.

9 Q. Thank Professor, I stopped you because I don't believe in my

10 question I used the term "territorial autonomy." Let me ask you, though,

11 in your report on page 22 where you're talking about the autonomous

12 provinces in the constitutional order of the Republic of Serbia since

13 1990, the last sentence in that first paragraph says: "According to the

14 Constitution of Serbia, Article 6, in the Republic of Serbia there exists

15 the autonomous province of Vojvodina and the autonomous province of

16 Kosovo and Metohija as forms of territorial autonomy."

17 Can you give me a brief description of what territorial autonomy

18 means. Does that just mean you have a border that can't be changed, or

19 is it something more?

20 A. There's an express provision in article 6 of the constitution,

21 which says that: "In the Republic of Serbia, there is the autonomous

22 province of Vojvodina and the autonomous province of Kosovo and Metohija

23 as forms of territorial autonomy."

24 In comparative constitutional law, it's usual for the very

25 existence of autonomy to be established by the constitution because,

Page 26250

1 thereby, the highest legal guarantee is provided of its existence because

2 there is no law higher than the constitution. And, likewise, there is no

3 greater guarantee than the one provided by the constitution.

4 Q. And the guarantee is for territorial autonomy. My question was:

5 What is territorial autonomy? Does that just mean you have a nonviolable

6 border that can't be changed?

7 A. Territorial autonomy rarely in the world means that there are

8 borders which cannot be violated or changed. The unchangeable borders of

9 territorial autonomy do not exist anywhere. There can only be a

10 provision stating that the territory of a political territorial autonomy

11 can be changed only with the agreement of the autonomy itself. But in

12 constitutional history, there is no example of an autonomy, with one

13 exception up north in history, which had certain elements, but there is

14 no example of a territory being unalterable as regards its existence.

15 Q. Well, can you tell me what the term "territorial autonomy" means

16 in Article 6 of the Constitution of the Republic of Serbia? What does

17 that mean for Kosovo?

18 A. For Kosovo, it means what is in norms 108, 109, 110, 111, and 112

19 of this constitution because the norm in Article 6, the provision in

20 Article 6, has a principled nature. It's a general nature, so the

21 initial provisions are general provisions, and then after that in section

22 6 entitled "Territorial Organization," the first part, the first

23 subsection is entitled: "The Autonomous Province of Vojvodina and The

24 Autonomous Province of Kosovo and Metohija," and that is what is meant by

25 a legislator when he guaranteed the existence of the autonomy in Article

Page 26251

1 6.

2 Q. Let me move on to another --

3 JUDGE BONOMY: Wait. You understand the answer, do you?


5 JUDGE BONOMY: Does it not just mean that there's autonomy on a

6 certain territory?

7 I'm reluctant to put words in the witness's mouth when he's been

8 asked the question a number of times.

9 Can you not help Mr. Hannis by just telling him what territorial

10 autonomy means as a concept?

11 THE WITNESS: [Interpretation] Everything that is listed in these

12 provisions, Articles 108 to 112, the concept of a political territorial

13 autonomy, is reached in the following way: The position of certain

14 territories in a certain state is compared on the one hand with the

15 position of the federal units in the state, if they exist, or if they

16 exist in the world comparatively --

17 JUDGE BONOMY: I think you've now answered it, and it does say on

18 page 16 in the English, Mr. Hannis: "On its territory, the province is

19 the alter-ego of the republic ..."

20 So it does appear that territorial is simply an indicator of the

21 territory over which autonomy is exercised.

22 MR. HANNIS: Thank you.

23 Q. I would like to move on, Professor, to what's annex 2 of your

24 report. This is the portion dealing with the federal cabinet in the

25 Federal Republic of Yugoslavia, and in your introductory paragraph you

Page 26252

1 explain that your analysis in paragraph 4 -- you explain your analysis

2 will be carried out using the legal dogmatic method, and in the last

3 paragraph under that introduction section, you say: "Other methods of

4 analysis can only be second rate and supplemental."

5 You mention the Anglo-American legal system where the necessary

6 reliability and precision of conclusions is achieved by the primary use

7 of non-legal methods requiring the method of analysis to be absolutely

8 adapted to the subject of analysis."

9 Maybe I'm biassed. That sounds like a good approach to me.

10 What's wrong with that approach?

11 A. Well, it's not just that. In European continental law when such

12 matters are analysed, the primary thing is the legal source or the legal

13 regulation. It is studied by the dogmatic legal method. So first, its

14 meaning is studied, possible meanings are sought, and one meaning is

15 selected. In European continental law and its system of education, for

16 example, you will find that constitutional law is studied much more using

17 the text of the constitution and so-called organic laws, whereas in the

18 USA, if you are from the USA you will know that it is studied more from

19 the decisions of the constitutional court.

20 Also, you will find there that the court in the USA, especially

21 the courts when they are carrying out constitutional control, they say

22 that there are political questions that the court will not deal with.

23 You will not find such a situation before the constitutional courts in

24 continental Europe because the legal dogmatic or legal normative method

25 is primarily applied. So these are different legal civilizations or

Page 26253

1 legal cultures. It's not a matter of one being superior to the other.

2 It's like the old discussion as to whether it's better to create law by

3 legislation or by precedent. That is a discussion which I think is out

4 of place here.

5 Q. Okay. Let me move, then, to section 2 where you talk about the

6 position and the federal cabinet in the organization of the government in

7 the federal republic. In the first paragraph, you mention eight -- in

8 addition to the federal cabinet eight explicitly named state organs

9 starting with the Federal Assembly and so on. You say that "In addition

10 to these nine in total explicitly named and established state organs, the

11 constitution also establishes several generic and functionally defined

12 state organs called ministries, whose exact number and exact competence

13 are not established in advanced and permanently, but rather depend on the

14 federal cabinet."

15 So, for example, we know that at various times in Yugoslavia

16 there was a Ministry of Foreign Affairs, a Ministry of Justice, a

17 Ministry of Defence. Are those not permanent ministries and they only

18 appear depending on the particular federal cabinet that's in power?

19 A. The answer to your question lies in the following explanation.

20 Tradition, or rather, the tradition of constitutional legal regulation in

21 the second Yugoslavia from 1945 to 1992 was in one period that the

22 constitution expressly prescribes the number and kind of federal

23 ministries, and later on this was abandoned, and then the number and kind

24 of federal ministries was regulated by law. Therefore, in establishing

25 the organization of executive -- of the executive government, the

Page 26254

1 fundamental role was played by the legislative government [as

2 interpreted]. Why? Because in that period in Yugoslavia, state

3 authority was founded on the principle of the unity of government in the

4 hands of the legislative body, the representative body. The constitution

5 of 1992 rests on the principle of the division of power and on the

6 chancellor principle. The influence of the legislative government on the

7 forming and establishing of the executive government should not have been

8 large. Any federal prime minister could -- I'll answer your question --

9 Q. [Previous translation continues]... well, I'm not sure you are.

10 I just asked are those not permanent ministries, and do they only appear

11 depending on the particular federal cabinet that's in power? Maybe I

12 should break it in two parts. Are those not permanent ministries?

13 A. That's not what it's about. Every federal minister could

14 introduce a new ministry or abolish an existing ministry.

15 Q. Even -- wait, wait --

16 A. -- that --

17 Q. Even one of the eight or nine explicitly named bodies, or are

18 those not ministries?

19 A. What are you referring to? What bodies?

20 Q. What you referred to as explicitly named state organs. So I

21 guess the federal state prosecutor is not a ministry, right?

22 A. That's right, yes.

23 Q. Okay. So those could not be --

24 A. Of course.

25 Q. Those specifically named constitutional bodies could not be

Page 26255

1 abolished by the cabinet or the prime minister, right?

2 A. No, because there's the division of power. When you say division

3 of power or the branches of government, this cannot influence the

4 judicial, executive, and legislative branch of government. So the state

5 organs that are named are constitutional organs, and the executive

6 authority was in the hands of the federal government. The ministries and

7 other federal organs and organizations, what it says here is the federal

8 ministries, the federal organs and organizations. It doesn't say that by

9 chance because in Serbia - and that's how it was in Montenegro and still

10 is - there are three kinds of administrative organs who are not

11 exercising executive power. They have an administrative function, and

12 these are ministries, independent and non-independent federal organs, and

13 the so-called independent administrative organizations. They are there

14 to implement the laws, to implement legislation. Their number and kind

15 depends on the acts of the federal government. The federal government

16 has the right to organize itself as the executive branch of government.

17 It can say how many ministries and how many administrative bodies and

18 independent administrative organizations there will be.

19 Q. Okay. You list --

20 MR. HANNIS: Sorry, Mr. Zecevic.

21 MR. ZECEVIC: I just have an intervention in the transcript

22 before we move on. It's 52, lines 14 and 19. Instead of legislative

23 government, it should be legislative body, because that is what the

24 witness has said.

25 JUDGE BONOMY: Thank you.

Page 26256


2 Q. Now, in that Article 2, you list the eight other explicitly named

3 state organs, and on page 5 of the English in this report, you say:

4 "Based on the aforementioned constitutional provision, it can be

5 concluded that no federal organ has a dominant role over another."

6 And I take it you mean based on what it says on paper, but in

7 real life in 1998 and in 1999 that was not the case in the FRY, was it?

8 Did not the president of the republic, Mr. Milosevic, have a dominant

9 role over some of those other state organs, like the Yugoslav Army, the

10 Supreme Defence Council, the national bank? I'm talking about de facto

11 power.

12 A. Legal norms were the subject of my expertise, regulating

13 questions pertaining to political territorial autonomy and questions

14 related to the position of the federal government and also its relations

15 with other constitutional and legal organs. So in terms of factual

16 questions, in terms of how power was exercised, I did not deal with that,

17 I did not prepare to speak about that, and after all, I'm not

18 methodologically equipped to deal with it here and now, this particular

19 question. So even though I have the best of intentions, I cannot give

20 you an answer to that question because it goes beyond my expertise.

21 Q. Well, I'm asking you as a non-expert and as a citizen who lived

22 in the territory or in the area at the time. Can you answer it that way?

23 A. First of all, I did not live in that area at the time. I lived

24 in Pale, near Sarajevo, and I worked there. Secondly, I am giving

25 answers here as an expert, not as a citizen. I hope that you understand

Page 26257

1 my position.

2 Q. Well, are you -- if the Judge asked you to answer the question,

3 would you provide the answer, then, as a non-expert, or are you refusing

4 to?

5 A. If the honourable Judge asked me, I would give the same answer

6 because this is the subject of my testimony. I did not come here as a

7 fact witness; I came here to testify about facts pertaining to law, legal

8 facts based on legal norms, I could say, conditionally speaking.

9 Q. Okay. Then.

10 JUDGE BONOMY: Well, there's no point in my remaining silent on

11 this at the moment because I have a list of questions which will tread

12 into actuality rather than theory, and you're telling us now that you

13 won't be prepared to answer these questions. For example, I'll be

14 interested to look at what appears to be the position in theory as

15 contrasted with what might appear to have been the position in practice,

16 and you say you would not deal with that sort of question.

17 THE WITNESS: [Interpretation] As far as I understand my testimony

18 and the invitation addressed to me by the Defence, I am dealing with

19 these major constitutional law issues. I really did not study those

20 questions and those relations that the honoured Prosecutor is talking

21 about, so that is the truth. If I was called here as an expert on norms

22 and the system, it would be proper for me to give answers to that. I was

23 not called here, and that wasn't the subject of my expertise, either, to

24 compare the normative and the actual. After all, that would be a major

25 expertise that could not be carried out by one person, but rather an

Page 26258

1 entire team of people, and this expertise would take a rather long time

2 if one wanted to be serious about it and close to the truth.


4 MR. FILA: [Interpretation] Well, let me take the blame --

5 MR. HANNIS: Do we need to have the witness leave the room?

6 MR. FILA: [Interpretation] No, no. So let me take the blame for

7 this. I intentionally asked for an expert outside the territory of

8 Serbia, or rather, Yugoslavia who knows about constitutional matters so

9 that he could tell us what it should have been like. According to the

10 system that I work in, you will establish what things actually were.

11 Now, if my thinking was erroneous, then I'm to be blamed because there

12 are so many professors in five or six law schools at universities in

13 Serbia, and they could have all come here as expert witnesses; however, I

14 chose, an expert witness so that we would have a clear-cut situation as

15 to what it is supposed to be like. Unfortunately, we are all aware of

16 what it was like. So that is for you to establish. That is what I

17 thought. So mea culpa, the witness did not live in Serbia at the time or

18 in Montenegro, for that matter. Mea culpa, as we say.

19 JUDGE BONOMY: Thank you, Mr. Fila.

20 Let me give you an example, Professor. You've told us that under

21 the FRY constitution, the president of the FRY had very few powers. Now,

22 as a matter of fact in the period from 1997 onwards, do you accept that

23 the most powerful person in Yugoslavia was Slobodan Milosevic?

24 THE WITNESS: [Interpretation] You see, as a researcher, as a

25 university professor, I was taught to utter my judgements very cautiously

Page 26259

1 when I'm trying to deal with research and when I'm involved in scholarly

2 matters. Of course that I can give you an answer straight away, this or

3 that kind of answer, but that would be mere speculation. In order to

4 give an answer to that question, I would have to look at a series of

5 documents from these or other archives. I would have to look at

6 correspondence, programmes, documents, and it is only then that I could

7 answer that question --

8 JUDGE BONOMY: Well, let me put it to you another way just as a

9 citizen of the world. Do you accept that world leaders at that time

10 regarded Slobodan Milosevic as the most powerful person in Yugoslavia,

11 rightly or wrongly?

12 THE WITNESS: [Interpretation] I read in the newspapers something

13 along those lines, but I did not talk to any one of them. I did not talk

14 to foreign diplomats about that question, so I did not participate in

15 that kind of international politics. So at this point in time I'm not

16 qualified to discuss the matter in that way.

17 JUDGE BONOMY: Well, there is an issue that does concern this

18 Tribunal, which doesn't live in the theoretical world but tries to live

19 in the real world. And if there is a perception in the world in general

20 that he is Mr. Yugoslavia and you are a constitutional law expert that

21 considers that the terms of the constitution give him limited powers, do

22 you not think it is a legitimate question to be put to you as an expert:

23 How could it be that he could wield power way beyond that provided in the

24 constitution?

25 THE WITNESS: [Interpretation] I can discuss that with you only in

Page 26260

1 the domain of norms and examples. Now, whether I am good-looking and

2 strong, well, somebody may say that I am, and others may say I'm not. If

3 you're talking about the powers that Mr. Milosevic exercised when he was

4 president of the republic, I do beg your pardon, Your Honour, but then

5 you have to tell me what this is exactly about, whether this does fall

6 under a norm, and then I will tell you whether that is in accordance with

7 the constitution. However, that is only the language and the terrain of

8 legal documents. However, as for this kind of analysis and expertise, I

9 did not prepare for that because the Defence did not ask me to do that.

10 JUDGE BONOMY: Well, you haven't answered my question, but

11 insofar as your answer may have a bearing on the question, are you saying

12 that my -- that to pose the question I posed would not be legitimate?

13 THE WITNESS: [Interpretation] You mean to me as an expert

14 witness --


16 THE WITNESS: [Interpretation] -- regarding these two questions

17 and the norms related to that? I hope that you will understand that what

18 my belief is exactly what you said, precisely due to the subject matter

19 that I'm providing expertise on. By your leave, it would be legitimate

20 to put the question to me in the following way: A document is shown to

21 me, and then I try to give my estimate and say whether that is within the

22 constitution or not. All the rest is really speculation. Sometimes it

23 seemed to me that some of my professors were very wise, and later on when

24 I matured myself, I realized that they were not as smart as I thought

25 they were although they were smart. Now, it's a question of moment; it's

Page 26261

1 a question of impression. However, we are trying to go into serious

2 analysis here. If you tell me Slobodan Milosevic passed a law and said

3 that was the law and then you asked me whether that was in accordance

4 with the constitution, I will say straight away no because the president

5 of the republic is not entitled to exercise judicial authority. That's

6 the kind of analysis I'm prepared to go into because that is why I am

7 here. As for beyond that, I cannot answer questions like that.

8 [Trial Chamber confers]

9 JUDGE BONOMY: Does it follow from what you've said so far that

10 you cannot say that the conduct of President Milosevic throughout his

11 period in power fell within the terms of the constitution?

12 THE WITNESS: [Interpretation] Your Honour, you will have to tell

13 me what you mean exactly, what legal document. I can only talk about

14 documents. Lawyers deal with power, and political sociologists deal with

15 might. I'm a lawyer. Power or might can be exercised in different ways,

16 as influence, but I did not go into that kind of analysis. I only deal

17 with analysis through law and through the language of law.

18 JUDGE CHOWHAN: Well, I'm going to, Professor, ask you a question

19 in a more simpler way to understand and appreciate what may be your

20 information. Now, you're telling us about those limitations which are

21 enshrined in the constitution with respect to the powers of the

22 president. Okay. These are now laid, enshrined in the constitution.

23 Well, there is another issue, whether the president kept himself within

24 the periphery of those limitations or did he transcend and overstep.

25 Have you any information on that? Did he keep himself within those

Page 26262

1 limitations or he did not; he overstepped, circumvented, cut corners here

2 and there. Can you speak on that subject, or you cannot? I mean, this

3 may help us in appreciating the realism of the constitution and not what

4 is just the black-lettered words. Thank you.

5 THE WITNESS: [Interpretation] Except for legal sources, or

6 rather, the constitution that is attached to certain laws and some

7 bylaws, I did not study documentation or archives about the work of these

8 organs. I did not study any documents of any kind pertaining to the

9 mutual relations among these organs. So, quite simply, I do not have

10 that kind of information in my hands.

11 Finally, the Defence told me that I was not called for that kind

12 of expertise. No documents of that kind were placed before me, and there

13 was no agreement to that effect, that I would be providing expertise on

14 that. So, quite simply, I don't have that. As for my own impressions

15 about this or that person, I really wouldn't go into that. That's not

16 what I do as an individual let alone as a researcher. This is the way I

17 act.

18 JUDGE CHOWHAN: I'm sorry. Anybody who claims himself to be an

19 expert on the constitution shall also speak about whether the

20 constitution was being followed or it was not being followed because

21 obviously when he's reading the constitution he's also reading the areas

22 where it was followed or where it was not followed. That was the simple

23 question because anybody -- all the constitutional experts you would see

24 who have written books on constitution would say, Well, this was being

25 followed or this was not being followed. This is the law whether they

Page 26263

1 adhered to it or didn't adhere to it. General way. It's nothing to be

2 specific about nor to place you in any difficulty. If you have a view,

3 good enough; if you say, well, you are oblivious to all that unless you

4 see that, then what have you been reading to be an expert to tell us

5 whether this in reality was something followed that way? I mean, this is

6 something which bothers me a little, if you can speak on that. Thank

7 you.

8 THE WITNESS: [Interpretation] I can repeat what I have already

9 said, but I'm not going to do that because that is pointless, isn't it?

10 I repeat, I did not have this kind of documentation before me. I was not

11 looking at the documents that Mr. Milosevic had signed. If somebody

12 claims that there is a document through which he overstepped his

13 authority, then I'd have to have this document shown to me. I'm not the

14 Prosecutor here, you see. I can provide expertise only on matters that

15 are contentious and where people tell me, Yes, it seems to us that this

16 document was adopted as authority was overstepped. I'm an expert in

17 that. I can provide my expert opinion on that, but if you're asking me

18 whether Mr. Milosevic or somebody else had the power or might to resolve

19 things by simple glances, that is terra nostra to me. I have no

20 knowledge about that. If you're asking me whether he had a Praetorian

21 Guard or not, I cannot judge a man that way even in a restaurant or in

22 the street let alone in this kind of a situation. I hope that you

23 understand my position. As for -- well, we could talk now about what

24 different authors in the field of constitutional law have written, but,

25 you know, we scholars are used to looking at all this stuff until our

Page 26264

1 eyes pop out, but we just have to see things in order to be able to

2 discuss matters. Whoever speaks in the field of law a priori has missed

3 his calling, I believe.

4 Your Honour, Judge Bonomy, if I may address you. May I correct

5 myself in respect of an answer I gave you to one of your questions in the

6 first part?


8 THE WITNESS: [Interpretation] As a teacher of young students,

9 when I was conducting examinations, I was not really inclined to accept

10 self-corrections, but ultimately I would accept them. In the Federal

11 Republic of Yugoslavia - I've been thinking about this during the break -

12 there was a Federal Ministry of the Interior, but it was reduced only to

13 international police cooperation or the appearance of the federal state

14 in international police cooperation when only the federal state could act

15 rather than the federal units and the like. I kindly ask you to take

16 into account this self-correction of mine.

17 JUDGE CHOWHAN: Professor, what do you kindly understand -- how

18 do you distinguish between constitution and constitutionalism?

19 THE WITNESS: [Interpretation] Well, now we are going into

20 theoretical debates and differences in legal civilizations. The country

21 that you come from, Your Honour - it's Pakistan, I believe - in part it

22 is inclined towards Anglo-Saxon tradition due to historical

23 circumstances. Then I can understand the distinction that you're making

24 between a written constitution and a live constitution, as people say in

25 my legal culture.

Page 26265

1 After all, a great deal was written about that in the 1950s and

2 the 1960s when constitutions were discussed, those that were alive and

3 those that were not in part. However, regrettably that debate was

4 coloured by ideological hues, regrettably. At that time, there was a

5 free world and an enslaved world, so this debate could not yield full

6 results. One knows how a constitution is defined in European continental

7 theory and everywhere where it appears in a written form.

8 On the other hand, one knows what constitutionality is in

9 constitutionalism in countries that do not have a written constitution.

10 In the country where I was born and where I lived until the age of 35,

11 what prevailed was the tradition of written constitutions, and

12 constitutional law was studied by studying the constitution and

13 regulations dealing with the way in which the state and government

14 function. Of course, there are human rights and freedoms, too, but that

15 is something that is unavoidable. It is precisely for that reason that

16 my analysis is the way it is, and it has to do with norms, legal sources,

17 that is.

18 JUDGE BONOMY: One of the things I've learned this morning is

19 that you were a deputy foreign minister of the Republika Srpska during

20 part of the period when Milosevic was the president of the federal

21 republic. During the break, I'll consider the extent to which I wish to

22 press you on matters beyond your expertise.

23 Meanwhile, we'll continue with the cross-examination by

24 Mr. Hannis, and if the issue arises again and has to be adjudicated on,

25 then we'll take the break early to consider it.

Page 26266

1 MR. HANNIS: Thank you, Your Honour.

2 Q. Professor, did you ever hear of a body called the Joint Command

3 for Kosovo and Metohija that existed in 1998 or 1999?

4 A. I really have to admit that I have not heard of it. Also, an

5 organ under that name is not mentioned in the relevant legal sources

6 regulating the field of defence and the Army of Yugoslavia.

7 Q. Based on your expertise and your study, there's nothing in the

8 constitution that would provide for such a body; is that correct?

9 A. I can say to you that there is no such organ. There is no such

10 organ in the constitution, in the Law on Defence, or in the Law on the

11 Army.

12 Q. Okay. How about a body called the operations inter-departmental

13 staff for suppressing terrorism or combatting terrorism?

14 A. Again, I really haven't heard of that body, and that body is not

15 mentioned in the kind of legal sources that I was telling you about.

16 Q. Okay. Prior to coming to testify here, did you follow any of

17 this trial or the Slobodan Milosevic trial by watching on TV or reading

18 newspaper accounts?

19 A. I really did not follow trials on television because for years

20 I've been watching sports only on TV and a film or two. I read some

21 things in the newspaper, but you know what it's like. Newspaper articles

22 can be very sparse, and the journalists writing about these things

23 usually only have a general education, at university level, of course.

24 So one cannot rely on everything they write, let alone the precision in

25 the use of words.

Page 26267

1 Q. When did you first become aware that you were likely to come and

2 testify as a witness at this Tribunal?

3 A. I think that it's been a couple of years now. I think -- I think

4 it's been two years now, a year and a half perhaps. I really haven't

5 kept any records on this precisely because this was a difficult period in

6 my life, you remember from the questions you put to me about that, so

7 time seemed to fly.

8 Q. And during that approximate two years, you didn't have any

9 curiosity about the proceedings or the personalities here? You never

10 bothered to see what was happening in this trial, knowing that you were

11 going to be a witness?

12 A. Well, in the broadest possible terms, from the newspapers, if

13 that's of any interest to you. I read Politika daily, regularly, but not

14 all of it, but I have had no interest in that because I have other things

15 that I do in my life.

16 Q. And in dealing with your expert report about the federal cabinet

17 and its relationship with other components of the government and the

18 president of the republic, et cetera, did you have occasion to speak with

19 anybody, such as Mr. Sainovic or Mr. Bulatovic, who had a role to play

20 during 1998 and 1999? Did you talk to any of those people about their

21 jobs or their experiences?

22 A. I'm sorry. Could you please specify. When do you mean? When

23 was I supposed to have talked to them? 1998, 1999, 2002, while they were

24 at large, while they were in Scheveningen? I'm asking you this. It's a

25 bona fide question. I just want to -- want you to help me.

Page 26268

1 Q. Right now I'm limiting my question to since the time you became

2 aware that you might be called as a witness here and in preparing your

3 expert report, did you speak to Nikola Sainovic?

4 A. No, no. This might sound in bad taste, but I agreed with the

5 Defence as to what the topic of my expert report would be.

6 Q. Okay.

7 A. Given the limited topic, I had no call to talk to Mr. Sainovic.

8 Q. You have answered my question. Was it the same answer for

9 Mr. Bulatovic, who was the prime minister back in 1998?

10 A. Yes, the same.

11 Q. And in your -- well, let me ask you one more question before I

12 get to that last one. You may not be aware, we have an exhibit in this

13 case which is P2166. If we could put that up on the screen with the

14 English and B/C/S side by side. I want to ask you a question related to

15 the constitutional authority of the president vis-a-vis other personnel.

16 Professor, this is a document that purports to be the minutes of a

17 meeting on the 29th of October, 1998, at the Beli Dvor palace in

18 Belgrade. It's described as a minutes of the meeting of the operations

19 inter-departmental staff for the suppression of terrorism in Kosovo. The

20 meeting was chaired by the president, Mr. Milosevic, and you'll see among

21 those attending are the president of the Republic of Serbia,

22 Mr. Milutinovic; we have the president of the chamber of citizens of the

23 Federal Assembly, Mr. Minic; we have the deputy prime minister,

24 Mr. Sainovic; we have the minister of interior for the Republic of

25 Serbia, Mr. Stojiljkovic; we have General Perisic as the Chief of Staff;

Page 26269

1 some other military guys; some other police generals. So we have the

2 president of the republic of the FRY, the president of the Republic of

3 Serbia, somebody -- the chairman or the president of the Chambers of

4 Citizens from the Federal Assembly, a deputy prime minister, the minister

5 of the interior for Serbia, these are people from both the federal

6 government and the republic government, from the army and the police;

7 this meeting is chaired by the president. Was there a constitutional

8 provision allowing for Mr. Milosevic to create this kind of body and

9 chair this kind of body? There wasn't, was there?

10 MR. PETROVIC: [Interpretation] Your Honour.

11 JUDGE BONOMY: Mr. Petrovic.

12 MR. PETROVIC: [Interpretation] I think that it would make our

13 work more efficient if the expert would be allowed to look at this

14 document, not just a heading on page 1, but to look at it in its entirety

15 and then perhaps to answer some questions in relation to this document.

16 THE WITNESS: [Interpretation] I've never seen this document

17 before, and I haven't seen any of the documents of this kind, indeed, not

18 a single one.

19 JUDGE BONOMY: Just a moment.

20 Mr. Hannis, what do you say to what Mr. Petrovic says?

21 MR. HANNIS: Your Honour, I'm happy if we can make a copy and

22 take a break now and let him come back and answer our question then.

23 JUDGE BONOMY: Very well. We can do that. We need to have a

24 break around this time, anyway. You'll be given a copy of the document

25 to have a look at during the break, this time for half an hour, and we'll

Page 26270

1 resume at quarter to 1.00.

2 [The witness stands down]

3 --- Recess taken at 12.16 p.m.

4 --- On resuming at 12.53 p.m.

5 [The Accused Lazarevic not present]

6 [The witness takes the stand]

7 JUDGE BONOMY: Mr. Hannis.

8 MR. HANNIS: Thank you, Your Honour.

9 Q. Professor, did you have adequate time during the break to look at

10 that exhibit, P2166?

11 A. Not enough time, but enough to get an impression -- well, I can't

12 go any further than that in this context, but it should be sufficient.

13 Q. And can you make any comment on what you can say based on this

14 document regarding President Milosevic's role in interrelationship with

15 the federal government and these other organs represented by the people

16 attending this meeting on the 29th of October, 1998?

17 A. About the relationship of President Milosevic and the federal

18 government and the people who were present there, I can't tell you

19 anything about that, but I can tell you what my personal opinion is about

20 what I've read with a lot of caveats because there is a lot of other

21 material that is missing, and it would be as follows: So I'm not giving

22 you an answer to the question about the relationship between President

23 Milosevic and the federal government and the people, the officials of the

24 state government who were present there because I don't know anything

25 about that. The document that you gave me - and this is the first time

Page 26271

1 that I see it - I tried to put it in the context of legal norms about the

2 competence of state organs and in the context of legal norms about the

3 documents -- or legal documents enacted by those state authorities. I

4 was able to ascertain, and this is not difficult. If we look at the

5 constitution, the Law on Defence, and the Law on the Army, since the

6 Rules of Service in the Yugoslav Army were not consulted by me and I

7 didn't have an opportunity to look at them before, I ascertained that I

8 am missing the document establishing the operations inter-departmental

9 staff if such a document exists. I was also able to ascertain that

10 within the Law on the Army of Yugoslavia, this organ, if it is an organ

11 indeed - I cannot say that because I don't have the act on its

12 establishment - if such a document exists, this group of people, this set

13 of people, at page 16 in relation to everything that is said here - and

14 let me tell you right in advance that I did not have an opportunity to

15 read everything in detail - did not issue any acts or orders. Under our

16 system, conclusions are not individual legal acts or separate legal acts

17 or orders. This is uncontroversial. In our system, conclusions are made

18 by some administrative organs in some secondary issues. In Article 4 of

19 the Law on the Army of Yugoslavia, it is stipulated - that's paragraph 2

20 - that the president of the republic in performing tasks from paragraph 2

21 of this article shall issue orders, commands, and decisions. The General

22 Staff implementing the --

23 THE INTERPRETER: The witness is kindly asked to read a little

24 bit slower when reading legal documents.

25 JUDGE BONOMY: Professor, could you speak a bit more slowly,

Page 26272

1 please, when you're reading. There's a temptation for all of us to speak

2 much too quickly, then.

3 THE WITNESS: [Interpretation] Yes, you are right, indeed.

4 So the Chief of the General Staff in implementing the statutory

5 documents or legal documents enacted by the president of the republic

6 shall issue rules, orders, commands, instructions, and other legal acts.

7 On the other hand, it is also stipulated in the Law on Defence - please

8 bear with me as I'm trying to find my way in this heap of papers - it is

9 stipulated that the Supreme Defence Council shall issue documents that

10 shall be entitled the defence plan of the country, the decisions in

11 accordance with which the president of the republic shall command the

12 army, shall exercise command over the army, shall establish the strategy

13 for armed struggle, and so on, so that you cannot really find any order

14 or any legal document that would be called a conclusion. On the other

15 hand, it is quite clear that in the Federal Republic of Yugoslavia, as it

16 was at the time, despite the fact that the federalist principle was in

17 force, the federal organs had to eo ipso cooperate with the organs of the

18 member republics, to cooperate with them. The member states had to

19 cooperate with each other, and despite the fact that the government in

20 the Republic of Yugoslavia was set up on the principle of the separation

21 of powers, the organs of the federal state did not operate in isolation,

22 but they also had to cooperate, to consult each other, and so on. On the

23 basis of this document, the document that you've given me, I say it

24 again, on the basis of this document and without having access to any

25 other evidence that pertains to this document, I can only conclude on the

Page 26273

1 basis of what we can read at page 16 and on the basis of the exchange of

2 information that is done here relating to certain military and police

3 actions, this is some kind of a consultative meeting of various people

4 because I really don't have anything on which to base any other

5 conclusion. Of course, I fully take into account the fact that it says

6 here that this was issued by the military cabinet of the president of the

7 republic, but this fact is not enough. Since I don't have a document

8 establishing this body within the system of command or as a state organ

9 of this particular body, either as a permanent body or as an ad hoc body,

10 so I cannot reach any other conclusions here.

11 Q. And can you reach a conclusion as to whether or not President

12 Milosevic was acting within or beyond his constitutional powers in

13 setting up such a body and chairing such a body?

14 A. Well, I cannot say that because I don't have the act on its --

15 MR. PETROVIC: [Interpretation] Your Honour --

16 JUDGE BONOMY: Mr. Petrovic.

17 MR. PETROVIC: [Interpretation] -- if you allow me. The

18 interpretation by my learned colleague Mr. Hannis I think does not

19 correspond to the facts, especially the facts of this case, and in

20 particular of -- with what this witness has in front of him. So we want

21 him to establish a foundation for his claim as to why this body was set

22 up, and then we can ask the witness to give us his answer about the merit

23 of the question.

24 JUDGE BONOMY: Mr. Hannis.

25 MR. HANNIS: Your Honour, I'll move on to another question.

Page 26274

1 Q. You see the reference -- the main subjects of this meeting

2 appears to be a report or reports about the work of a body called the

3 Joint Command for Kosovo and Metohija. Would you agree with me?

4 A. No, no. Mention is made of the Joint Command, but apart from

5 page 1 and in several other places, that's the only places where I found

6 this Joint Command being mentioned. So I can't tell you anything about

7 its functioning, its existence, because I don't have any legal document

8 establishing that body.

9 Q. But my question was: Would you agree with me that most of this

10 document, most of the meeting, dealt with discussing the work of the

11 Joint Command between July 25th and 29 October 1998? That's the bulk of

12 what this document is about, right?

13 A. Well, most of this document, as far as I was able to see in the

14 brief period of time, concerns the exchange of information between

15 Lieutenant-General Nebojsa Pavkovic, the commander of the Pristina Corps,

16 and -- well, I don't want to now enumerate all the officials, state

17 officials that attended this meeting. The Joint Command is mentioned at

18 one point here, and I actually didn't find it mentioned so many times to

19 be able to say that this document deals with the Joint Command. I read

20 the reports presented by all those officials about what was done in

21 their -- within their purview. Well, you can go through -- but you have

22 to bear in mind that you have had this document for years, and I only had

23 25 minutes to look at it. You have to bear that at mind. At page 7

24 there is mention of it, maybe three or four other places -- well, I can't

25 tell you now whether this is really focused on the Joint Command. I read

Page 26275

1 this as a series of reports by people who were all in charge of

2 implementing certain military or police measures in Kosovo or perhaps as

3 part of some other task that is not of a military or a police nature

4 because, after all, there are people here who are not state officials at

5 all. For instance, I was able to see that the deputy president of the

6 Serbian Socialist Party, Dusan Matkovic, so I really can't say that I

7 agree with you when you say this.

8 Q. Well, in fairness to you because you had such a short time, I

9 won't press you on that. But do you find -- is there any provision in

10 the constitution for a body such as a Joint Command based on what you're

11 able to understand about what the Joint Command was from reading -- from

12 your brief review of this document?

13 MR. PETROVIC: [Interpretation] Your Honour.

14 JUDGE BONOMY: Mr. Petrovic.

15 MR. PETROVIC: [Interpretation] It appears to me that this has

16 been asked and answered in the first part of the cross-examination by my

17 learned colleague Mr. Hannis.

18 JUDGE BONOMY: It has actually, Mr. Hannis.

19 MR. HANNIS: Your Honour, I have no further questions.

20 JUDGE BONOMY: Thank you.

21 Questioned by the Court:

22 JUDGE BONOMY: While this document is before us, can you from

23 your experience think of any other similar example of a body that existed

24 in some form within the federal republic headed up by the president

25 comprising representatives from the army -- senior representatives from

Page 26276

1 the army and the police from the federal government and the republican

2 government, that's the Republic of Serbia, and there was no order,

3 decision, conclusion, or any other formal process or document

4 establishing it?

5 A. Well, to be quite frank, based on what I know I did not have any

6 encounter with such bodies, not in the literature, not through any

7 documents, and least of all through any -- my personal contacts or

8 personal knowledge. We have the concept of consultation, the

9 consultation by the president of the Federal Republic of Yugoslavia as

10 the president or the head of state, head of any other state. This is

11 done when it is necessary to designate the prime minister-elect, the

12 federal prime minister-elect. For instance, the president of the

13 republic also presents --

14 JUDGE BONOMY: Please confine yourself to my questions. If it's

15 something you really think needs to be added to make sure the full

16 picture is understood, then you should give that information, but I think

17 you're going on to a different area now. I really would like to know

18 whether you as a constitutional expert would expect that a body such as

19 this would have been constituted in a formal way, there would be some

20 formal document recording its establishment?

21 A. If such a body makes decisions, legal documents or acts of

22 command, then yes; but if not, in every state, a head of -- the head of

23 state can have this kind of consultations because how would he gain

24 knowledge in light of the fact that the president of the Federal Republic

25 of Yugoslavia represents the state in the country and abroad? I'm just

Page 26277

1 giving you this as an example. So if it issues legally binding documents

2 and acts of command, then there has to be a legal basis for its

3 establishment; if not, then this is an acceptable form of -- forum for

4 meeting, consultations, exchange of information, and so on, among those

5 various organs.

6 JUDGE BONOMY: Now, following on from that, is it the case that

7 the president of the FRY had no formal relationship with the MUP of the

8 Republic of Serbia?

9 A. He did not have powers over the Serbian MUP, but you have to bear

10 in mind the fact that something that was -- that no federal police

11 existed. There was no police at the federal level. You have to bear in

12 mind that this was a federal state and that in part of its territory

13 there was a disturbance of the peace, whichever term you want to use.

14 And at that time, in a way, the Federal Republic of Yugoslavia joined

15 with one of its republic -- member republics in an effort to settle the

16 situation. So this form of cooperation is permissible because the laws

17 stipulate when units of the Ministry of the Interior - we're talking

18 about laws on police - when they can participate in certain police

19 actions.

20 JUDGE BONOMY: Now, you use the expression "... this form of

21 cooperation is permissible ..." and in that context you're talking about

22 the federal authorities cooperating with the Serbian MUP. What do you

23 mean by "this form of cooperation"? Could you be more precise about

24 that? What is the form of cooperation you see occurring from these

25 minutes?

Page 26278

1 A. What form of cooperation?

2 JUDGE BONOMY: Yes. You have used the expression "... this form

3 of cooperation is permissible ..." so you as an expert think that

4 something in here is permissible, and I would like you to define what

5 that form of cooperation is that you have in mind.

6 A. In view of the fact that this gathering did not issue any kind of

7 legal decision or document of command, of course it's permissible to

8 cooperate by exchanging information concerning the situation in Kosovo in

9 this case, but basically information about anything. How, otherwise,

10 could the president of the state command the Army of Yugoslavia, for

11 example? Everywhere in the world where there are federal units and

12 federal officials, they meet; they exchange information so that each one

13 can later on arrive at the appropriate legal decisions within his own

14 sphere of competence.

15 JUDGE BONOMY: But in relation to the MUP of Serbia, what is it

16 that you say you can draw from this -- these minutes about the

17 cooperation that was occurring between the federal authorities and the

18 Serbian MUP?

19 A. Well, you see here that General -- or rather, Major Sreten Lukic

20 informed this gathering about the police actions which the police forces

21 engaged there in Kosovo had gathered out. Exchange of information

22 amounts to cooperation. Noncooperation is when there is no exchange of

23 information and no mutual contact. So I'm referring to the form of

24 cooperation that I see here, and this is exchange of information. Let me

25 repeat, there's no command document or any other legal document that

Page 26279

1 would enable me to draw any other legal conclusion.

2 JUDGE BONOMY: Now, if we're looking at the same part of this

3 document when you say that, Major-General Sreten Lukic reported or

4 submitted a report on the work of what's called the Joint Command for

5 Kosovo and Metohija.

6 A. I don't know what this is. What's it called: The Joint Command

7 for Kosovo and Metohija. I have no documents concerning all this --

8 JUDGE BONOMY: Yes, I understand, but that's the cooperation

9 that's taking place. The cooperation, if it's Lukic you're thinking

10 about, it's the cooperation between the Joint Command and the federal

11 authorities, apparently. You see, that's why I want to understand what

12 it is you mean by "this form of cooperation that is permissible."

13 A. I'm speaking of cooperation from this, through exchange of

14 information, based on this, because as for other forms of cooperation,

15 strategic, tactical, and so on, I don't know anything about that. I'm

16 not a military expert. I didn't get very far in the army. I was just a

17 corporal.

18 JUDGE BONOMY: One of the things that General Lukic reported to

19 this meeting was about an agreement reached between President Milosevic

20 and a US envoy called Holbrooke about the reduction in the number of MUP

21 forces in Kosovo. What authority would Milosevic have to agree to a

22 reduction in MUP forces in Kosovo?

23 A. According to the Constitution of the FRY, in international and

24 internal relations it is represented by the president of the republic.

25 In paragraph 1 of Article 96, it says that the president of the republic

Page 26280

1 represents the Federal Republic of Yugoslavia at home and abroad. On the

2 other hand, I didn't look at this Law on Foreign Affairs here, but it's

3 well known in international law that there are three organs which are

4 authorised without any additional authorisation to sign international

5 treaties, agreements, and so on. That's the head of state, the prime

6 minister, and the minister of foreign affairs. As a lawyer, this is

7 where I see the connection because it should not be forgotten that the

8 FRY at that time was a unique and unified international legal subject,

9 whereas its -- it was a single subject, in other words, and its member

10 states were not.

11 JUDGE BONOMY: This is a matter of some importance to us, and

12 your opinion would assist us. You're saying that somehow or other the

13 president of the FRY has authority to agree to a reduction in the numbers

14 of MUP forces present in Kosovo, which is a part of the Republic of

15 Serbia, just because he's talking about it to some foreign representative

16 who wants to poke his nose in?

17 A. I don't know many details, but I can recall that Mr. Holbrooke

18 arrived here as a representative probably of the president or the State

19 Department of the USA.

20 JUDGE BONOMY: Well, according to General Lukic he was a

21 representative of the international community, even wider than that. But

22 what I'm trying to understand from --

23 A. All the more so, all the more so.

24 JUDGE BONOMY: Indeed. But what I'm trying to understand is how

25 does that give rise to a situation where President Milosevic can reach

Page 26281

1 agreement about the reduction of MUP forces within Serbia? What is the

2 constitutional provision that gives him that power?

3 A. The Federal Republic of Yugoslavia, as is stated in Article 1 of

4 its constitution, is a sovereign federal state founded on the equality of

5 citizens and the equality of its member republics. Just a moment. In

6 Article 16 [as interpreted], it says that: "The Federal Republic of

7 Yugoslavia shall fulfil in good faith" -- oh, yes.

8 "The Federal Republic of Yugoslavia shall fulfil in good faith

9 the obligations contained in international treaties to which it is a

10 contracting party."

11 JUDGE BONOMY: Perhaps we can --

12 A. In Article 7, it says that: "A member republic within its

13 competences may maintain relations with foreign states but not to the

14 detriment of the Federal Republic of Yugoslavia or any of its other

15 member republics."

16 In Article 77 of the constitution, it says -- just a moment,

17 please, that: "The Federal Republic of Yugoslavia shall through its

18 organs formulate policy, enact and enforce federal legislation, and ...

19 in matters concerning," and then, 6, international relations. That's

20 item 6. And Article 96, paragraph 1, which I have already quoted, all of

21 this taken together can give the answer to the question as to who can

22 conclude international treaties or agreements on behalf of Yugoslavia.

23 It can be done by the president of the FRY, the prime minister, or the

24 minister of foreign affairs. How this agreement was reached, I don't

25 know, but I am trying to see whether it can be brought into line with

Page 26282

1 constitutional norms. Of course --

2 JUDGE BONOMY: Well, we can return to this tomorrow because your

3 evidence will continue tomorrow, and you can think about that and

4 possibly expand upon your answer then, and I will turn to something else.

5 One of the articles you referred to in the constitution today was

6 Article 77, and you referred in particular to two parts of it, part 6 and

7 7. Can I ask you a little more about 6, which says that the -- and

8 you've just referred to it again a moment ago, the general part. But it

9 goes further than that. It talks, also, of "border crossing and control

10 of the circulation of goods, services, and passengers across the border,

11 the status of aliens and foreign artificial persons."

12 Now, the evidence in this case suggests that all of these

13 functions were carried out by the republican MUP. Can you explain how

14 that fits into the constitution?

15 A. Of course. It is usual to have a constitutional law alongside

16 the constitution regulating issues which are sometimes complex dealing

17 with the transition from one constitutional regimen to another which is

18 partially changed. With respect to your question, a constitutional law

19 was passed, and the enactment of that law is envisaged in Article 143 of

20 the Constitution of the FRY, and a dead-line is set for its enactment,

21 and this law was amended more than once because the FRY, as we say, based

22 on certain material, sources of legal norms, was not in a position to

23 undertake it so that the dead-line was constantly pushed back by the

24 constitutional law, and that's why there was a delay in regulating these

25 issues, and unfortunately the state lasted -- did not last for long

Page 26283

1 enough for us to see how it would have been regulated in its entirety.

2 JUDGE BONOMY: I don't think I fully understand that. I

3 understand that there may be difficulties in transition, but is there

4 some provision of a constitutional nature that says that these jobs

5 should meanwhile be done by the MUP of the Republic of Serbia?

6 A. Well, yes, that's understood. It goes without saying. Because

7 the time-limit, the dead-line by which the laws regulating these issues

8 kept being pushed back in a legally permitted manner, that is, the

9 constitutional law.


11 A. Where it says which laws shall cease to be in force, when, and so

12 on.

13 JUDGE BONOMY: Are you saying that the SFRY did not control the

14 borders?

15 A. Well, you know, control of the borders, that's a detail I did not

16 deal with here, but I know that there was dual control of the border at

17 the time. It was controlled partly by the army and partly by the police

18 in various areas, and that's as far as my knowledge of this matter goes.

19 Recently, the system of control of the border was changed, and civil

20 control of border crossings and of the border in general is now

21 implemented, as is usual in Europe.

22 JUDGE BONOMY: Do you know if there's a provision in the

23 Constitution of the Republic of Serbia dealing with their role in

24 controlling the border?

25 A. With the best will in the world, at this point in time I really

Page 26284

1 can't answer that question.

2 JUDGE BONOMY: Perhaps we also can return to that one tomorrow.

3 You've indicated that you worked in the Institute of Comparative

4 Law Studies in Belgrade?

5 A. Yes, yes.

6 JUDGE BONOMY: During what period?

7 A. In the period from November 2003 -- no, 2003 -- 1993 --

8 THE INTERPRETER: Interpreter's correction.

9 THE WITNESS: [Interpretation] -- to April 2000. First I worked

10 full time, and as of November, one-third of work time, part time, in

11 fact.

12 JUDGE BONOMY: And what was your specialist subject then?

13 A. We worked on several projects at the time funded by the federal

14 government, and each one of us had to write a certain number of papers in

15 the area of comparative law, either comparing legal institutes or

16 describing certain legal institutes in the world or in Yugoslavia.

17 JUDGE BONOMY: Well, to what extent, then, were you dealing with

18 issues of constitutional law or issues that can be said to relate to

19 constitutional law?

20 A. At the time, I dealt mainly with issues concerning constitutional

21 law.


23 A. For example, the new constitutional order of Russia, of the

24 Baltic states, the position of the government in the UK or Great Britain

25 and Northern Ireland and so on. Those were the issues I dealt with at

Page 26285

1 the time.

2 JUDGE BONOMY: And my understanding is that this is an institute

3 with a high reputation; is that correct?

4 A. I would be glad to have worked in such an institute. Yes, at

5 that time it was held in high esteem, especially when it was headed by a

6 professor, Professor Slobodan Blagojevic. That was up to the 1980s. At

7 that time, it was held in very high esteem. He was a professor of the

8 faculty of law in Belgrade.

9 JUDGE BONOMY: And your period there was 1993 to 2000; is that

10 correct?

11 A. Yes, yes.

12 JUDGE BONOMY: So how much of your time, then, was spent living

13 in Belgrade?

14 A. Two days. On Mondays and Thursdays, that's when I was at work in

15 the institute, and the rest -- for the rest of the time we worked where

16 we could because at that time there was a shortage of space in the

17 institute.

18 JUDGE BONOMY: I don't know if my question was perhaps fully

19 interpreted to you. I'm anxious to know how much of your time you lived

20 in Belgrade.

21 A. Two days a week.

22 JUDGE BONOMY: So you travelled back to Bosnia twice a week?

23 A. Yes.

24 JUDGE BONOMY: Now, in your comparative constitutional law

25 studies or any other constitutional law studies, have you ever come

Page 26286

1 across a book or an article suggesting that President Milosevic acted

2 beyond his legal powers, in either Serbia when he was president there or

3 Yugoslavia when he was president there?

4 A. Not in the constitutional legal scholarly literature, but I

5 didn't read many articles of that type because my professional curiosity

6 went in a different direction.

7 JUDGE BONOMY: Now, you told us that you had a role in the Dayton

8 peace negotiations. What exactly was your role there?

9 A. Throughout the time of my participation in all peace negotiations

10 from 1991 onwards, I was a member of a delegation going to Dayton dealing

11 with legal and constitutional issues. I was there as a legal expert. I

12 took my Ph.D. at the chair of constitutional law at the faculty in

13 Belgrade, and my Ph.D. thesis had to do with the constitutional order of

14 the Soviet Union.

15 JUDGE BONOMY: And were you involved in -- at the end of the day

16 when these negotiations achieved a result?

17 A. Yes, I was in Dayton all the time, until the agreement was

18 initialled, until the very last day.

19 JUDGE BONOMY: And was Milosevic involved in these negotiations?

20 A. Yes, Mr. Milosevic was in Dayton also.

21 JUDGE BONOMY: What was his role in these negotiations?

22 A. He was the chief of some preliminary agreements. He was the

23 president -- or rather, the head of the joint delegation of Serbia and

24 Republika Srpska, if I recall correctly, and this happened after numerous

25 negotiations between the -- with the representatives of the contact group

Page 26287

1 and especially the USA, just as the agreement concerning Northern Ireland

2 was reached through the activity of the USA and the secessionist side

3 lost and the other side and advocating different solutions achieved its

4 goals.

5 JUDGE BONOMY: What was it within the Constitution of the

6 Republic of Serbia at that time that gave him the power to head a joint

7 delegation in negotiations such as this?

8 A. It was an agreement achieved under the auspices of Mr. Holbrooke

9 in a situation which - how shall I put it -- cannot easily be made to fit

10 a regular situation. There was pressure from the members of the contact

11 group, and this was an agreement between the organs of Republika Srpska

12 and the organs of Serbia.

13 JUDGE BONOMY: I have a number of matters still to deal with, and

14 there may be questions also from Mr. Petrovic when I am finished, so you

15 will require to return tomorrow to continue and complete your evidence.

16 That will be -- yeah, that's at 9.00 tomorrow in this court. So all I

17 need to say to you at the moment is be back here at 9.00 tomorrow.

18 I have another administrative matter to deal with, so if you

19 could please leave the courtroom. We'll see you at 9.00 tomorrow.

20 [The witness stands down]

21 JUDGE BONOMY: It's unlikely that the evidence of Professor Lukic

22 will take a great deal of time tomorrow. The next witness will be a

23 Chamber witness, General Djakovic, but there will be one or two other

24 issues to be addressed when we get to the end of the professor's

25 evidence. It seems to us that the best plan is to postpone the evidence

Page 26288

1 of General Djakovic until Monday and to deal with anything that's

2 outstanding tomorrow. I hope that that does not inconvenience anyone,

3 but although time was booked to sit until 3.30 tomorrow, it's not very

4 likely that we will occupy any part of the afternoon session, and,

5 indeed, we'll probably be finished fairly quickly.

6 Mr. Fila, you've raised informally an issue over the order of the

7 examination of Chamber witnesses, and we can address that at some time

8 tomorrow. We'll -- and if there are any other administrative issues that

9 parties are concerned about, they can be raised tomorrow and - just a

10 second - counsel for each accused should be in a position to state

11 clearly what, if anything, remains outstanding in respect of the

12 presentation of their cases.

13 So we can adjourn now, can we, Mr. Fila, until 9.00 tomorrow

14 morning. Thank you.

15 --- Whereupon the hearing adjourned at 1.46 p.m.,

16 to be reconvened on Friday, the 16th day of

17 May, 2008, at 9.00 a.m.