1 Thursday, 18 May 2006

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.35 a.m.

5 JUDGE PARKER: Good morning.

6 Mr. Lukic.

7 MR. LUKIC: [Interpretation] Good morning, Your Honours. I wish to

8 address the court before we get on with evidence. At the very end of

9 trial yesterday, the last page, 132, I think there is an error in the

10 transcript. We didn't react in a timely manner. We must have been too

11 tired to do so. I'm just waiting for the updated version of the last

12 page, and the last of the transcript to be listened to. 132 of the draft

13 transcript, line 18, the interpretation says, "The order was loud and

14 clear, both for Vezmarevic and for Major Karanfilov." We in the courtroom

15 heard this, "The order was loud and clear, issued by both Vukosavljevic

16 and Karanfilov. That was what we heard and we believe this to be very

17 important. I advised Mr. Moore of this, and I think he even agreed with

18 me and confirmed that this was indeed what he heard too. That's one

19 thing.

20 And another thing, I'm speaking for all three teams. We received

21 a letter from the OTP yesterday about their obligation to inform us of any

22 future witnesses. This has been a relatively smooth exercise so far, and

23 we would normally be given a schedule for the next 15 days. But the OTP

24 informed us that they were in no position to tell us which witnesses would

25 be coming over the next two weeks except for next Monday. After that we

1 would probably be hearing witness Strinovic. They have lists of witnesses

2 to come over the next weeks, but they can't say for certain. I'm sorry

3 that Mr. Moore is not around. Mr. Weiner, whom I would like to wish a

4 warm welcome could the courtroom is probably not in a position to provide

5 these answers.

6 What we really want to know as we've already pointed out, when OTP

7 military experts are here to testify, we need at least a 15-day advance

8 notice. We would like to have our experts present during those hearings

9 and, as you know, we need to provide visas for them and there is a special

10 procedure that we need to follow. It is for this reason that we would

11 like the OTP to please give us advance notice of any experts coming here

12 to testify. That's all I wish to say. Thank you very much.

13 JUDGE PARKER: Mr. Weiner, indeed, welcome. Are you in a position

14 to deal, first, with the matter of the transcript? I would expect not.

15 MR. WEINER: No, I think I will have to look into both matters at

16 the break, Your Honour, or sometime during the day.

17 JUDGE PARKER: Thank you. Now, with the matter, the second

18 matter, the arrival of expert witnesses, it will indeed be important that

19 some better indication is possible than merely an identification -- here

20 is the answer to your need.

21 Mr. Moore, welcome. Two matters have been raised by Mr. Lukic.

22 The first is an error in the transcript, which he believes you recognised

23 when it was discussed late yesterday, the naming of a person who gave an

24 order. Vezmarevic appears in the transcript; Vukosavljevic, it is said,

25 was said in court. I don't know whether you are in a position to agree

1 with that.

2 MR. MOORE: Dealing with the first point, I do agree with my

3 learned friend that it was not Vezmarevic. From memory, it was

4 Vukosavljevic and Karanfilov.

5 JUDGE PARKER: Thank you.

6 MR. MOORE: That's certainly my recollection, but obviously it's

7 subject to checking the accurate transcript.

8 JUDGE PARKER: The second point is the forthcoming Prosecution

9 witnesses.

10 MR. MOORE: Yes, I know about that problem as well.

11 JUDGE PARKER: And a concern that there needs to be time to enable

12 the Defence to get their experts here to hear the evidence of yours.

13 MR. MOORE: Yes.

14 JUDGE PARKER: Now, they say at the moment you are not in the

15 position to give an indication when yours are arriving. Can you assist

16 us?

17 MR. MOORE: Yes, I can. Clearly it depends on the length of time

18 that what I will call lay witnesses will take. The two military experts

19 that we will be calling will be Theunens, who is what I will call in-house

20 and readily available, and Major General Pringle. Major General Pringle

21 was, from memory, targeted for the 5th to the 9th of June, inclusive. He

22 has got professional difficulties in relation to that. So -- and I wanted

23 to finish the case with him, for various reasons. He would be able to do

24 the week after that. So the way that the matters stand, we had hoped that

25 we would be finished, as I said, within the first week of June, with our

1 timetable. We have some outstanding witness difficulties. They should be

2 resolved, I hope.

3 Next week will be Strinovic and Grujic [Realtime transcript read

4 in error, "Vujic"] after the video testimony on the Monday. That has --

5 that date has been broken, I think, three or four time, through no fault

6 of OTP. So next week, should -- well, certainly Strinovic next week and

7 that will take, I hope, for three days.

8 May I just clarify one small matter? I've just had a message

9 passed to me and I just would like to clarify one point.

10 [Prosecution counsel confer]

11 MR. MOORE: It will be Strinovic next week, Grujic has got

12 certainly difficulties. It may well be that there can be element of

13 accommodation in relation to that.

14 JUDGE PARKER: Sorry, the -- is it Grujic or Vujic.

15 MR. MOORE: It's Grujic.

16 JUDGE PARKER: Each appear in the transcript.

17 MR. MOORE: It's Grujic.

18 JUDGE PARKER: Thank you.

19 MR. MOORE: So it will be -- the witness giving video evidence

20 next Monday, Monday, part of Tuesday, it should then be Mr. Strinovic --

21 Mr. Smith is dealing with this area. That will be Tuesday, and part of

22 Wednesday morning, I would have thought. And the, I would hope conclusion

23 of cross-examination by Thursday, Friday. I don't know the extent of the

24 cross-examination on that.

25 May I just set Grujic to the side for a moment, because one is

1 trying to fit him in, because of his professional obligations. We had

2 hoped for the two of them to come together. There is an application for

3 two witnesses whose names escape me. They relate to the blue folder.

4 That is the material that was sent to Zagreb from the Vukovar Hospital, as

5 we submit, and that was to do with the creation of the documentation. My

6 learned friends wanted, and indeed I think the Court and all wanted to

7 find out the source material on that. There are two witnesses on that.

8 We don't know if my learned friends require those witnesses, or if they

9 now accept the content of those statements as being accurate and

10 justifying the document. So we don't know what the situation is on that.

11 They've only received the statement, and I don't expect that they will

12 have an answer immediately for that. Those two witnesses are a variable

13 on time that I am not able to assist the Court on. If we were calling

14 them in chief, I would like to think we could do it almost in a quasi-89

15 (F) format to target them on specific topics but there must be, I would

16 have thought, three days' evidence there. But as I say, it may well be

17 now that the Defence, having seen the documentation, will agree to the

18 document going in.

19 JUDGE PARKER: Next week then, if I understand you, there's the

20 videolink for two and a bit days.

21 MR. MOORE: Yes. Perhaps not quite as much as that, but

22 approximately two days.

23 JUDGE PARKER: Okay. And then?

24 MR. MOORE: Strinovic.

25 JUDGE PARKER: Will continue and clearly finish the week.

1 MR. MOORE: I would have thought, yes.

2 JUDGE PARKER: The week following that, the 22nd. Sorry, the week

3 following that. Yes.

4 MR. MOORE: I had a heart attack, almost. The week following that

5 there are civilian witnesses. There is Hartman, who has to give evidence,

6 and there are two other witnesses to deal with other matters and I don't

7 wish to go into the details of that. I can't honestly put hand on heart

8 and say exactly who they are and what they deal with, but I certainly had

9 discussions about it. That should see that week out.

10 And then you go into the military witnesses and the difficulty

11 with Pringle.

12 JUDGE PARKER: Theunens, how long are you seeing there?

13 MR. MOORE: I will be dealing with Theunens, and that would be --

14 I want to deal with it in the following way, if there is no objection,

15 that I will put in the report, the expert's report, I will use the e-court

16 to deal with the documentation. I would have thought, in chief, I would

17 hope I would finish Theunens within a day, but can I please not be held to

18 that, because when it comes to documentation and military language it's

19 not always easy to estimate. But Theunens is a fairly substantial witness

20 and goes in, in significant detail. I would have thought myself that

21 Theunens will be, if there is military experts for the Defence, I would

22 have thought myself that you must be looking at three days'

23 cross-examination. Perhaps two, three, something like that.

24 And Pringle, again, I will deal with Pringle. Again, in chief I

25 would anticipate that a day in chief will not be far away on the estimate.

1 Again, cross-examination with experts advising, I'm not able to assist,

2 but again, I would have thought it will be analogous in time to the

3 Theunens situation.

4 JUDGE PARKER: So we would either lose two to three days in the

5 week of the 5th and the 9th, or there will be the two additional

6 witnesses, should you be granted leave and should the Defence wish them

7 called.

8 MR. MOORE: There are other witnesses, but they're small

9 witnesses, if I may use that phrase, where I'm trying to move them into

10 spaces so that I don't lose any time. I am trying to keep the military

11 witnesses to specific times so that we know exactly the timetable for the

12 Defence experts. I would have thought myself that if one is looking the

13 week commencing the 5th, if it is the week commencing the 5th, that will

14 be when the military witnesses will commence.

15 JUDGE PARKER: And Pringle, you're suggesting, the week following.

16 MR. MOORE: Yes, I'm afraid so.

17 JUDGE PARKER: Which may be commencing the 12th.

18 MR. MOORE: Yes.

19 JUDGE PARKER: Each of us is without calendar.

20 MR. MOORE: Yes. So those are the time estimates.

21 JUDGE PARKER: And that would be then the last witness of your

22 case.

23 MR. MOORE: If there is one other -- there may be one other

24 witness, but it is a very short witness, but it will be finishing very,

25 very soon, within one or two days after Pringle. I'm not saying

1 definitively.

2 JUDGE PARKER: Both Defence counsel and the Chamber would

3 appreciate greater clarity, as some of these imponderables become clearer.

4 MR. MOORE: Yes. No, it is our intention to do that. But we are

5 waiting for phone calls, trying to get people in on timetables, and it's

6 not always easy to get definite answers from people.

7 JUDGE PARKER: Thank you.

8 Mr. Lukic, that has given you more to go on for your experts, if

9 it is Monday the 5th or whichever the date is, of June. That week and the

10 week following seems to be the dates for your experts.

11 Now, Mr. Moore mentioned a motion which has arrived for two

12 additional witnesses. Could we indicate that we would want the Defence

13 response by next Monday on that. That's a shortened time to respond, but

14 it's a relatively straightforward issue.

15 Thank you very much for your assistance.

16 Is it time for your debut, Mr. Weiner?

17 MR. WEINER: I believe so.

18 JUDGE PARKER: We will get you a witness, with any luck.

19 MR. WEINER: While the witness is on the way, Your Honour, this

20 expert witness, Mark Wheeler, his testimony was accepted or admitted

21 pursuant to your decision of 21 October 2005. This is a 92 bis of a 94

22 bis expert testimony. His expert report. So it will be a very short or

23 brief examination-in-chief, since his testimony is in and his report is

24 admissable, approximately 15 to 20 minutes.

25 JUDGE PARKER: Exhibit 391; is that correct?

1 MR. WEINER: Yes.

2 JUDGE PARKER: Thank you.

3 MR. WEINER: The report and CV, however, are not in, Your Honour.

4 His report and CV have not been admitted. His prior testimony has.

5 JUDGE PARKER: Thank you.

6 MR. WEINER: Thank you.

7 [The witness entered court]

8 JUDGE PARKER: Good morning. Would you please read aloud the

9 affirmation.

10 THE WITNESS: I solemnly declare that I will speak the truth, the

11 whole truth and nothing but the truth.

12 JUDGE PARKER: Thank you very much. Please sit down.

13 Yes, Mr. Weiner.

14 WITNESS: MARK CRAWFORD WHEELER

15 Examination by Mr. Weiner:

16 MR. WEINER:

17 Q. Good morning, doctor, could you state your name for the record?

18 A. My name is Mark Crawford Wheeler.

19 Q. And could you tell us where you live?

20 A. I live in Sarajevo, Bosnia-Herzegovina.

21 Q. And where do you work?

22 A. I work in the office of the High Representative as a political

23 adviser although actually paid by the Organisation for Security and

24 Cooperation in Europe.

25 Q. And how long have you been living in Bosnia?

1 A. I've been living in Bosnia on this occasion since April 2001. I

2 was there in the tail -- at the tail-end of the war as well.

3 Q. Could you tell us what years you lived in Bosnia prior to this

4 period of 2001?

5 A. Well, during the war I lived in Croatia in the latter part of

6 1994, in Central Bosnia in late 1995, in Sarajevo in 1996 and early 1997,

7 and then again in Croatia, Vukovar, in fact, in spring of 1997.

8 Q. Now, sir, or doctor, did you ever serve as an academic historian?

9 A. Yes, I worked as a historian of Southeastern Europe and Eastern

10 Europe generally, modern history of that part of the world in the

11 universities of Lancaster, London, and Derby between 1994 -- excuse me,

12 1975 and 1994, and then again, 1997, 2001.

13 Q. Now, could you tell us what your highest degree is?

14 A. I hold a Ph.D. in history from the university of Cambridge.

15 Q. And what was the subject of your thesis?

16 A. It was on British foreign policy towards in Yugoslavia in the

17 Second World War and particularly the British decision to abandon Draza

18 Mihajlovic and support Josip Broz Tito and his Partisans.

19 Q. Now, sir, have you ever published any books, papers, or articles

20 on the former Yugoslavia?

21 A. Yes, quite a few and they are in my CV, I believe.

22 MR. WEINER: Could the witness be shown ERN number

23 0600-1130-0600-1136? Which is also tab number 1.

24 JUDGE PARKER: There is an alert on the transcript, doctor, that

25 your speech tends to be a little fast.

1 THE WITNESS: I see that now.

2 JUDGE PARKER: Thank you.

3 THE WITNESS: My students always complained of that as well.

4 JUDGE PARKER: If you could just slow it down to the pace of my

5 mind, that would be very good. Thank you.

6 THE WITNESS: I don't think I can comment on that without risking

7 insult.

8 MR. WEINER:

9 Q. Doctor, do you recognise the document on the screen?

10 A. I certainly do.

11 Q. Could the registrar just move through the pages? Thank you,

12 Mr. Registrar.

13 Doctor, what is that document?

14 A. That is my curriculum vitae.

15 Q. And who prepared that?

16 A. I did.

17 Q. And is that the most recent version?

18 A. It is the most recent version that I sent to this court, yes.

19 Q. Thank you.

20 MR. WEINER: We would like to offer that, Your Honour.

21 JUDGE PARKER: It will be received.

22 THE REGISTRAR: Your Honour, this CV will become Exhibit Number

23 446.

24 MR. WEINER:

25 Q. Now, Doctor, have you testified previous live before the ICTY?

1 A. Yes, I testified in the case against Slavko Dokmanovic as an

2 expert witness in January, 1998.

3 Q. And did you prepare a report for that testimony?

4 A. I did, indeed.

5 Q. And when was that prepared?

6 A. I wrote it at the end of December 1997, early January 1998.

7 MR. WEINER: Can the witness be shown tab 2, which is English

8 0210-9652- 0210-9682, please.

9 Q. Doctor, are you able to recognise the document on the screen?

10 A. I can, indeed, yes. It is the report I prepared.

11 Q. Now, it's approximately eight years since you prepared the report.

12 Do you still stand by the opinions and informations contained in that

13 report?

14 A. By and large, yes. I don't see any reason to have too many second

15 thoughts about the contents of the report. Certainly I would stand by the

16 major argument. We can -- of course, now with the benefit of both

17 hindsight and the huge amount of research that has been done on the wars

18 in the former Yugoslavia, there are many things that could be amended,

19 updated, more nuanced approaches introduced, but by and large I think the

20 report stands the test of time.

21 Q. Now, Doctor, there are no footnotes in that report. Could you

22 tell us what the source of the information was that you used to develop

23 that?

24 A. Well, much of the historical background simply reflects the fact

25 that I had been active in researching and teaching the history of the

1 former Yugoslavia since the early 1970s. The specifics regarding the

2 coming of the war of the 1990s and the specifics regarding events in

3 Eastern Slavonia came from journalistic accounts that had been published

4 at time. The secondary literature that was already available that

5 incorporated an awful lot of memoir literature, and in some cases that had

6 been provided to me by the Prosecution to help me prepare that report.

7 But the bulk of it of course, relates to historical background which was

8 well-known to me.

9 Q. The Prosecution would like to offer that document at this time.

10 JUDGE PARKER: It will be received.

11 THE REGISTRAR: As Exhibit 447 Your Honours.

12 MR. WEINER:

13 Q. Doctor, would I like to discuss with you just one issue, and then

14 we'll turn you over to the Defence for cross-examination. Just spend a

15 few minutes on one issue. In your report, and in your previous testimony

16 which has been admitted, there is discussion concerning military activity

17 which occurred in Eastern Slavonia. We'll start off with Eastern

18 Slavonia, between August 1st, actually from mid-July 1991 through November

19 21st, 1991. Could you tell us about that, please?

20 A. Well, I tried in my report to put the coming of the war to Eastern

21 Slavonia in the context of how it had spread in Croatia generally.

22 Particularly of course after the short, sharp war in Slovenia. So the

23 major -- the major fighting in Eastern Slavonia comes after the 27th of

24 June, 1991. Although it has to be said there were provocation and

25 incidents and even some killings going on in the region of Eastern

1 Slavonia from May, 1991. But the real escalation of the war starts after

2 the end of the war in Slovenia, so we're talking about from July 1991.

3 And at that point of course we get major engagement by the Yugoslav

4 People's Army, the JNA, not just as had been in the early stages in much

5 of Croatia where it sought to interpose itself between alarmed and

6 rebelling Serbs and the authorities, the police authorities of the new

7 Tudjman government. But it also started now taking an active hand in

8 conquering territory from July.

9 Q. And could you just tell us about the engagement in certain

10 villages of the military actions in certain villages between that time

11 period, mid-July through November 21st?

12 A. Well, as I already indicate you had, the JNA was seeking to occupy

13 territory, and that meant of course investing and taking villages. It was

14 doing so of course in alliance with the remnants of the old Territorial

15 Defence structure that had gone over to the Serb side, as well as various

16 paramilitary formations, both locally generated, but the most notorious of

17 which of course were sent in from Serbia itself, with a connivance of one

18 or another political party or security structure or the Serbian Interior

19 Ministry of the MUP to do this kind of activity. And what was notable

20 about what last happening in Eastern Slavonia was the intermingling, the

21 commingling, the joint effort on the part of both these paramilitary

22 forces on the one hand and the JNA on the other.

23 Q. Now, you mentioned Eastern Slavonia. It's neighbour, Western

24 Slavonia, was there any military activity occurring during that same time

25 period; mid-July through November 21st, 1991?

1 A. Yes, indeed. The -- it was in August I believe of 1991 that the

2 local Serb rebels, the militia, I guess it would be fair to call them,

3 helped by the Banja Luka Corps of the JNA, seized the crucial

4 communications centre of Okucani in Western Slavonia which had the effect

5 of breaking the road, motorway, and rail -- main-line rail links between

6 the capital, Zagreb, and Eastern Slavonia. And as a consequence the --

7 the stage appeared to be being set for a larger Serb-led conquest of

8 Croatia. But the interesting thing that happened in, in Eastern

9 Slavonia -- excuse me, in Western Slavonia, is that by the end of November

10 the territory that the Serbs had been carving out for themselves was

11 significantly reduced. In fact the territory all the way from the border

12 with Bosnia-Herzegovina up to Veravidica [phoen] was halved in size as the

13 Serbs withdrew under some Croatian pressure from the area between

14 Veraidica down to Daruvar and then to Pakrac. And Pakrac became

15 effectively the northern limit of Serb-controlled territory in Western

16 Slavonia. And this is historically significant, I think, in retrospect,

17 because it marked the end of wider Serb ambitions for carving out even

18 more territory in Croatia.

19 Q. And we've talked about two areas in Croatia. Was there any other

20 military activity in Croatia, outside of western and Eastern Slavonia

21 during that period, mid-July, 1991 through November 21st, 1991?

22 A. Yes, of course there was. And the most notorious as far as the

23 international public was concerned was the artillery offensive, naval

24 offensive directed against Dubrovnik in the southern Adriatic, and that of

25 course occupied the world's television screens at that time. Foreigners,

1 of course, all knew about Dubrovnik. Many hundreds and hundreds of

2 thousands of them thousands, perhaps millions had been tourists there. So

3 this brought the war home to people abroad in a way that hadn't been the

4 case during the previous couple of months of the siege of Vukovar, for

5 example. Dubrovnik became an international scandal and there was much

6 breast-beating. The military significance of the shelling of Dubrovnik

7 was really pretty marginal. One would have thought it was much more

8 politically significant. It was meant to do two things. It was meant to

9 punish the Zagreb regime, but it was also meant to implicate the

10 Montenegrins who had previously held aloof from the war in the struggle by

11 giving them something to do. But at the same time, of courses, the

12 campaign was going on from the bases of Serb control in Northern Dalmatia,

13 Dalmatinska Zagora, through Lika, and Kordun into Baranja. So more

14 territory was also being taken at that time, across the southern flank of

15 Croatia, you know, the-- south of Zagreb.

16 Q. May the witness be shown Exhibit 312, please?

17 A. If I might correct myself, I said "Baranja." I meant Banja,

18 through Lika and Kordun into Banja. Baranja had, of course, itself been

19 an area which the JNA had seized in August, I think it was, 1991. Baranja

20 being the Croatian part of Baranja, since the district is split with

21 Hungary.

22 MR. WEINER: We have copies of the exhibit for the judges and

23 counsel, if they would like.

24 Q. Doctor, did you have any knowledge as to the information contained

25 in this exhibit?

1 A. Not specifically. It's not a document that I saw before

2 yesterday. But it strikes me as an accurate summary of the way in which

3 the JNA and the paramilitaries worked together in order to intimidate

4 villagers, make as many as possible flee, to then occupy the territory,

5 and generally carry out what would later become known as ethnic cleansing.

6 Q. And finally, Doctor, is this consistent with your opinion and your

7 report that you filed?

8 A. Yes, it is. If I might just add. The exact scenario might vary

9 occasionally from place to place, but this is an accurate summary in which

10 the way in which region by region, village by village, town by town

11 conquests took place.

12 Q. Thank you, Doctor.

13 MR. WEINER: No further questions, Your Honour.

14 JUDGE PARKER: Thank you, Mr. Weiner.

15 Mr. Domazet.

16 MR. DOMAZET: [Interpretation] Good morning, Your Honours.

17 Cross-examination by Mr. Domazet:

18 Q. Good morning, professor. My name is Vladimir Domazet, I am one of

19 the counsel appearing for Mr. Mrksic, and on behalf of Mr. Mrksic's

20 defence I will put some questions to you.

21 MR. DOMAZET: [Interpretation] Your Honours, the defence teams have

22 attempted to expedite and facilitate these proceedings by dividing among

23 themselves the topics for cross-examination. I hope that the Defence

24 teams will not overlap in their questions or that they will do so very

25 little. I will put questions about one segment of what Mr. Wheeler

1 presented in his oral testimony and his written report dated January 1998,

2 and used in the Dokmanovic case.

3 Q. Professor, from your CV and your previous experience and current

4 work, it's evident that your experience is truly impressive, as is your

5 persistence, because, as I see, you have mastered the language, which is

6 not easy, but which is certainly of assistance to you and has been in your

7 work to date. I assume that you are able to use your knowledge of the

8 language to contact and interview not only your colleagues and statesmen,

9 but, so to say, the common people, the local population throughout this

10 period, and that this is one of your sources of knowledge on the basis of

11 which you wrote your report. Am I right in thinking this?

12 A. In part, yes, Mr. Domazet. The mere fact that I lived in Vukovar

13 for admittedly a short period in the spring of 1997 and was able to talk

14 to quite a lot of people, including, it has to be said, one of my

15 colleagues at the time, Drago Hedl who has subsequently of course revealed

16 receive through Feral tribune and international publications about what

17 happened in Eastern Slavonia in 1991 and 1992. I did learn quite a bit

18 from both -- with people whom I lived in Vukovar, for example, as well as

19 some of my UN colleagues at the time.

20 Q. Thank you, Professor. This certainly refers to the period you

21 spent in Vukovar. It seems, however, that you spent most of your time on

22 the territory of the countries of the former Yugoslavia in

23 Bosnia-Herzegovina, or rather the Federation; is that correct?

24 A. Well, given the fact that I've now lived consistently in Sarajevo

25 since 2001, in chronological terms you're right. But my earlier academic

1 existence, I was -- actually spent much more time in Belgrade where I was

2 a post-graduate student back in 1972 and 1973. During the latter stages

3 of the war I was actually -- the latter stage of the war of 1990s, I was

4 actually based in -- in Western Slavonia, Nova Gradiska, so I actually saw

5 the fall of Western Slavonia on the 1st of May, 1995, during operation

6 Blesak. So I have some experience other than just in Bosnia-Herzegovina.

7 Q. Yes, certainly this is what I wanted to ask, because this is not

8 evident from your CV, that you spent time in Serbia.

9 My question is, how much time did you spend in Serbia and how

10 useful was this in your research and in your reaching the conclusions that

11 you did in your reports?

12 A. Well, it was in Serbia where I lived in the summer of 1970 and

13 then again during 1972 and 1973 when I was doing research for my doctoral

14 thesis that I actually learned the language, the language that we used to

15 call Srpsko-Hrvatski. For the purposes, however, of the report I prepared

16 in the case of Slavko Dokmanovic, other than the fact that living there,

17 living in the former Yugoslavia previously helps one understand the basic

18 set of circumstances, this residence in Serbia long before had not any

19 particular relevance to my report in the Dokmanovic case. In fact, during

20 a large part of the war I was persona non grata and unable to get a visa

21 to go to the Federal Republic of Yugoslavia, although I did actually visit

22 Belgrade for a couple of weeks in the summer of 1997, when I could get a

23 visa.

24 Q. If I understand you correctly, Professor, your visit to Serbia was

25 almost 20 years before the relevant events. At the relevant time,

1 unfortunately for the reasons you have adduced, you did not have an

2 opportunity to see that side at close range. You mentioned that you were

3 persona non-grata at the time. Was this an official evaluation, and can

4 you tell us at least in your opinion why this happened? I think it might

5 be important for us to find out.

6 A. I'm not sure that anyone knows very often whether such a status is

7 official or not. I was simply told on many occasions in 1992, 1993, by

8 the then Yugoslav embassy in London that I would not receive a visa. But

9 when you say, of course, that I -- my actual long period of residence in

10 Serbia was, you know, long before the events of the early 1990s, you are,

11 of course, correct. But as an academic interested in the history of

12 Southeastern Europe and Yugoslavia in particular, I suspect not a single

13 year went by between the early 1970s and the early 1990s that I was not at

14 least once in that year in Belgrade, or someplace else in Serbia.

15 Q. Thank you, sir. Now I will go into your report as it relates to

16 the beginning of 1998. And I will deal more with the historical part, the

17 constitution will be dealt with by my colleague.

18 So I will ask you first of all about some statistical data you

19 dealt with, which is available to everyone. If I'm correct, according to

20 you, in 1991 when you speak of the ethnic breakdown about 60.000 --

21 THE INTERPRETER: 600.000, interpreter's correction --

22 MR. DOMAZET: [Interpretation] -- Serbs lived in Croatian. But in

23 your view most of these did not live in the rural areas, and you go on to

24 list areas of Northern Dalmatia, Lika, Kordun, Banja, which, if you agree,

25 are geographically contiguous, and you mention east and west Slavonia,

1 Baranja and western Srem, which are at the far east end of Croatia and are

2 also contiguous areas. Have I interpreted your report correctly in this

3 area?

4 A. Yes, you have indeed.

5 Q. When you deal with northern Dalmatia, Lika, Kordun, and Banja, you

6 did not include these rural areas by chance, I mean you did not say that

7 they were rural areas by chance. These were predominantly rural areas

8 inhabited by Serbs, in some cases a majority of Serbs. I think we can

9 agree with that.

10 A. Yes, and I called them rural areas because of course they are very

11 sparsely populated and they are indeed rural, mountainous, extremely

12 beautiful parts of the world.

13 Q. Yes, I agree. And as regards the territory, it was not

14 insignificant territory, it was a considerable amount of territory, but

15 sparsely populated; is that correct?

16 A. That is indeed correct.

17 Q. Although you say, and this is quite correct, that it was a smaller

18 number of the population who inhabited those areas, and they really are

19 beautiful areas, all the same we used to refer to these as passive areas,

20 meaning poor areas. Is this, in your view, one of the reasons why people,

21 especially younger people, left to go to larger towns all over Yugoslavia

22 and also Croatia, which is why many Serbs lived in the larger towns in

23 Croatia?

24 A. Of course it is. The people from the so-called passive areas or

25 the so-called dinaric regions after the Second World War when

1 industrialisation and urbanisation took place on a large scale, were

2 notable for their movements into the cities or into richer agricultural

3 areas, for example Eastern Slavonia or Vojvodina. So-called colonists.

4 Q. Thank you. It is probably for this reason that the information

5 you give, i.e., that over 50.000 Serbs lived in Zagreb at the time, and

6 I'm referring to the census of 1991, while at the same time in the

7 territories you call the rebel republic of Srpska Krajina, there were

8 about 200.000. This is not a lot in territorial terms, but it is a

9 significant number of Serbs in that area, would you agree? And did you

10 get this figure by looking at the territory or in some other way?

11 A. Mr. Domazet, given the lapse of time, I don't actually now

12 remember where I got that figure. What I do remember, however, because I

13 then worked for a non-governmental organisation, which had many projects

14 for which I was responsible in Western Slavonia, in Daruvar, Pakrac,

15 Okucani, that I formed the very definite opinion that there were far fewer

16 people living, at that point, this is in 1994, 1995, in Republika Srpska

17 Krajina than the authorities of that rebel republic actually alleged. One

18 of the effects of the wartime privations, one of the kind of would-be

19 state that Republika Srpska Krajina was, was to encourage a continuing

20 outflow of the populous, and so my own suspicion is that the population of

21 Republika Srpska Krajina, apart from Eastern Slavonia, was very much less

22 than we thought at the time. And the estimate of 200.000, I'm not

23 terribly sure, as I said, where I got that. But that may even be an

24 exaggeration. During the war, Republika Srpska Krajina was haemorrhaging

25 people, most of whom were heading for Serb-controlled parts of Bosnia or,

1 more especially, for Serbia itself. On the other hand, of course, a good

2 many Serbs remained in big cities in Croatia; Zagreb, Pula, Rijeka.

3 Q. Thank you, sir. Based on what you indicate, and I'm referring to

4 the status it cans, and of course we're talking about 1991. It appears

5 that about one-third of all the Serbs lived outside the borders of the

6 Republic of Serbia. Would that seem to be an accurate assessment, sir?

7 A. Oh, yes.

8 Q. In your report, you say that this is an oft-stated fact to explain

9 why they, the Serbs, I presume, more than all the others were never

10 willing to give up Yugoslavia. Do you remember that particular

11 explanation? Can you please comment on that?

12 A. Yes, indeed. You're right. The standard supposition, both among

13 foreigners who studied Southeastern Europe and of course among many

14 Yugoslavs themselves, was that the Serbs needed Yugoslavia vastly more

15 than any other of the south Slav peoples. They needed it because only by

16 having a Yugoslavia, could all Serbs live in the same state. And the

17 supposition, therefore, was that any regime in Belgrade would work very

18 hard to maintain Yugoslavia. The point of my argument in the report, of

19 course, is that when Milosevic comes along, that old historical wisdom is

20 no longer valid.

21 Q. Thank you. I would leave Milosevic aside, at least for the time

22 being. In your report you talk about what could have been problems,

23 potential problems, or what could have drawn this community closer

24 together, or what could have led it to a crisis instead. You spoke about

25 language, you spoke about religion. As far as language was concerned, I

1 think I entirely agree with what you state in your report. Your

2 assessment of what went on in those years particularly, and bearing in

3 mind your explanation today that in the 1970s you spent a great deal of

4 time in Yugoslavia, particularly in Serbia. I am sure you do remember the

5 language problems that occurred at the time. It was raised at first as a

6 scientific issue and constituted a new battle-ground, as it were, between

7 linguists in Croatia on the one hand and Serbia on the other. Would I be

8 right in saying that, sir? Do you agree that this language issue,

9 although you don't necessarily view that as anything crucial, was no major

10 issue? If we forget about Slovenia and Macedonia for a moment, that was

11 not a major problem because the languages were similar and could be used

12 in communication smoothly, but do you agree that this constituted a point

13 of departure for this sort of crisis, especially in the 1970s and onwards?

14 A. Yes, indeed. You're correct. Fighting over language, or I should

15 say arguing over language was one of the ways in which the re-emergeance

16 of the national question in socialist Yugoslavia was given, quite

17 literally, expression. The breakdown of the so-called Novi Sad agreement

18 of 1954, for example, which the Croats renounced, I think it was, at

19 beginning of 1970s, as you suggest.

20 Q. Thank you. Thank you, Professor. Furthermore, it is a fact that

21 two different scripts were used, the Latin script and the Cyrillic script,

22 which only proved to be an additional source of trouble in purely ethnic

23 terms, since one or the other was predominantly used by the different

24 groups. Would you agree with me that the two different scripts, although

25 they were defined as equal in some of the republican constitutions,

1 particularly the Croatian constitutions, were not quite equal after all

2 and that this may have proved to be an additional source of inter-ethnic

3 strife or conflict. Would you agree with me?

4 A. Yes, I would. Particularly because, as far as Serbs were

5 concerned, not just in Croatia, or just in Bosnia-Herzegovina, but also in

6 Serbia itself, there was concern that the Latin alphabet was achieving

7 primacy over the Cyrillic in too many popular publications, and scientific

8 publications as well.

9 Q. The Latin alphabet was officially used in the JNA throughout its

10 existence; do you agree with me?

11 A. Yes.

12 Q. Thank you. As for religion, which is another topic that you

13 tackled, I think your assessments are quite fair. You may, although, have

14 omitted to consider this: A significant portion of the population at the

15 time were atheists, people who wanted nothing to do with religion, for the

16 most part, no doubt, on account of their commitment to communism, the

17 official ideology at the time. You must be familiar with this phenomenon,

18 right?

19 A. You are correct to suggest that an awfully large portion of the

20 population all over the former Yugoslavia were not practicing, whether it

21 be practicing Roman Catholics, Muslims, or Orthodox. But they were all

22 conscious in virtually every case of what their religious heritage was. I

23 don't think it would therefore be fair to say that there was a large body

24 of atheists, there were a large bodies of people who were entirely

25 secular, but they knew what their religious origins were and saw the

1 connection between their religious heritage and national identity, even if

2 they were not practicing. And people who were not practicing formally

3 nonetheless would take part in the principal festivals, you know

4 non-practicing Muslims always celebrated Bajram. Non-practicing Serbs

5 celebrated their family slava, non-practicing Catholics, Croats, certainly

6 celebrated Christmas. But, of course, everybody celebrated Christmas.

7 Q. Yes. I tend to agree with you. I particularly agree that some

8 areas to a larger extent, perhaps, than some others areas to a lesser

9 extent did celebrate religious holidays, but you probably know that some

10 were trying to keep their religious convictions well concealed, or

11 celebrated in secrecy, since religious holidays at the time did not

12 coincide with state or official bank holidays, if you like.

13 A. You're right. There -- but of course this need to dissemble about

14 one's religious belief lessened over time. It was no longer a big problem

15 after the early 1960s, certainly. And in any case the problem only arose

16 only for card-carrying members of the League of Communists. They were the

17 ones who might have felt it necessary to pretend that they were not

18 religious believers. Ordinary people had no such problem.

19 Q. Yes, perhaps, Mr. Wheeler, perhaps. But there were a lot of those

20 extraordinary people, if I may call them that, who weren't ordinary

21 people, those people were afraid, they didn't dare go to church or

22 anything because of the official positions that they held at the time.

23 I would like to wrap this up though, there's something else you

24 say in your report, something that you obviously studied. Do you believe

25 this to be typical? Do you perhaps believe this to be unique? What am I

1 talking? At the time when you spent time in Yugoslavia, the Muslims, and

2 this was a religious descriptor at the time, at one point became a nation,

3 if you like. An individual nation and the descriptor used was still the

4 same. I suppose you would agree with me that this was not entirely usual

5 or habitual to combine national identity with religious identity to quite

6 this extent. Would that strike a chord with you, sir?

7 A. You're correct, Mr. Domazet that this was a strange phenomenon as

8 using a religious designation as a -- simultaneously as a national

9 designation. And it's one of the reasons why I think Muslims by 1993

10 decided that they must revive the term Bosnjak from Habsburg times to

11 describe themselves, so that they had a national designation which was not

12 exclusively religious.

13 Q. Yes. That is perfectly accurate, Professor. But a lot of time

14 went by before this term, the term Bosniak, really started being used, and

15 it began to be used in Serbia around Novi Pazar and this had nothing do

16 with Bosnia itself because some people actually believed the term Bosniak

17 to be related to Bosnia, exclusively, which of course is erroneous.

18 Thank you, Professor, I would now like to move on to the

19 historical framework or context which I believe to have a great bearing on

20 the events in the former Yugoslavia. I will first try to deal with what

21 you called yourself have called the first Yugoslavia, the state that was

22 established after World War II.

23 THE INTERPRETER: Interpreter's correction, after World War I.

24 Q. I would like to go through some facts -- I said World War I, there

25 may have been an error in the interpretation.

1 Is it true that Serbia or the Kingdom of Serbia at the time in

2 World War I sided with the allies, Great Britain, France and all the other

3 countries fighting against Germany and the Austro-Hungarian Empire.

4 A. Yes, indeed, the Kingdom of Serbia was the original allied power.

5 Q. Of course we should not forget Montenegro. I do not want to lead

6 to other rifts, especially not between our own Defence teams, since some

7 us are actually Montenegrins. They also sided with the allied powers, and

8 I suppose we can agree that the cause that led to the outbreak of war was

9 the assassination in Sarajevo, right?

10 A. Yes, the assassination in Sarajevo in 20th of June 1914 provided

11 the occasion for the war indeed.

12 Q. And this was the reason that the war broke out in purely practical

13 terms in Serbian territory, the Austro-Hungarian army attacked Serbia

14 sometime in the summer of 1914. Is that right, sir?

15 A. That's right.

16 Q. I hope we agree that at the time the present territory of

17 Slovenia, Croatia and even Bosnia and Herzegovina to a large extent

18 belonged to the Austro-Hungarian Empire. I am sure you are aware of the

19 fact that soldiers mobilised from those areas were always members of the

20 Austro-Hungarian army at the time, Slovenes, Croats, perhaps I should not

21 use the term Bosniaks, but anyway people who lived in the area. Would

22 that be a fair assessment, sir?

23 A. Yes, that's a perfectly fair assessment. And it's why, of course,

24 the First World War was also, as far as the south Slav peoples were

25 concerned, a form of civil war. Because, given the large volunteer

1 regiments of Croats and Slovenes that joined the Serbian forces after the

2 period on Corfu and fought on the Salonika front, you therefore had Serbs,

3 Croats, and Slovenes fighting for a Serbia, a future south Slav state, as

4 well as Serbs, Croats, Slovenes, and Bosnjaks fighting in the ranks of the

5 Habsburg armed forces.

6 Q. By all means, sir. I'm not trying to say that those who fought

7 with the allied powers most of them at least wanted to achieve that, but

8 they were citizens of that state, they were military conscripts. It was

9 their duty to sign up. A lot of those people surrendered or changed sides

10 and sided after a while with the Serbian army; I'm sure you are aware of

11 that group as well. What you have referred to, the volunteers, yes, that

12 may well be an historical fact, but this also includes families who lived

13 on other continents outside of Slovenia or Croatia. There were people who

14 lived in other continents who arrived at this point in time in Europe to

15 join the army. Would I be correct in stating that?

16 A. You are correct.

17 Q. Thank you. Thank you, Professor. Are you familiar with the fact

18 that much later, the great Yugoslav leader Josip Broz Tito also fought as

19 a non-commissioned officer with the Austro-Hungarian army along the Serb

20 front. He was later moved to the Russian front where he was eventually

21 wounded and captured. Are you familiar with this information, sir?

22 A. Yes.

23 Q. Finally, this war that broke out midway through 1914, is it true

24 that this small state of Serbia, together with Montenegro, put up

25 resistance almost up until the end of 1915, when it was forced to withdraw

1 to leave these areas and across Albania to withdraw to Corfu and Greece

2 since Bulgaria had by this time entered the war from the right flank which

3 had, up to this point in time, been neutral, which further aggravated

4 Serbia's position. Is that right, sir?

5 A. You are correct, yes.

6 Q. You will probably agree that, following this, Greece and Corfu

7 were places that not only the soldiers, but also the leaders in exile

8 started to gather and the same thing applied to many Croats and Slovenes

9 who shared this Slavic idea of unification. Even before the war was over

10 and negotiations had started to promote this idea. Would that seem to be

11 a correct assessment, sir?

12 A. That is indeed the case, yes. And, in fact, the defeat of Serbia

13 and the exile of the Serbian government to Corfu facilitated this process

14 of the Serbs, Croats, and Slovenes from the Habsburg monarchy, the

15 so-called south Slav committee, getting together with the Pasic government

16 in Serbia at the time and coming up with, ultimately in 1917, the Corfu

17 declaration looking for the creation of a common south Slav state.

18 Q. Certainly, Professor. You're talking about the Corfu declaration,

19 no doubt, that is how we refer to it, which provided foundation for the

20 so-called first Yugoslavia.

21 You are an historian who dealt with all these things, and this is

22 something that in Serbia, of all places, perhaps you had occasion to hear

23 during your time there. I am talking about the misgivings about many of

24 the Croatian and Slovene leaders who advocated that sort of state. They

25 may have done this for purely tactical reasons, since up to this point in

1 time they had never had a state of their own. They were, in fact, on the

2 losing side in that war because they had sided with the Austro-Hungarian

3 Empire and refused to side with Serbia and Montenegro in order it create a

4 state. This also applies to the territorial aspect of the situation. We

5 have Italy, who decided at one point to side with the allies and asked for

6 Dalmatia in return. Perhaps you could comment on that, sir.

7 A. Well, before the First World War, there were many more Croats who

8 were vastly more interested or very interested in creating a common south

9 Slav state than there were Serbs, and as the war proceeded it became an

10 urgent necessity for both Croats and Slovenes because the integrity of

11 their national territory was threatened by the secret treaty of London and

12 the promises that had been made to the Italians, and so they indeed needed

13 very quickly to get in bed with Serbia, to get -- to be able to switch

14 from the losing side of the war to the winning side of the war, as you

15 indicated. But, of course, as you have also -- as we've -- as we have

16 already mentioned this morning, there were large numbers of Serbs in these

17 Habsburg territories that were desperately looking for a national solution

18 for themselves, given the fact that in October of 1918 the Habsburg

19 monarchy fell apart. There was revolutionary threats in Hungary,

20 virtually everybody's territory west of the river Drina was under

21 tremendous threat under some rapacious neighbour. So Yugoslavia, the

22 creation of the Yugoslav state became an urgent necessity for those people

23 who had formerly lived under the Habsburg monarchy, yes.

24 THE INTERPRETER: Could the witness kindly slow down for the

25 benefit of the record. Thank you.

1 THE WITNESS: I will try.

2 MR. DOMAZET: [Interpretation]

3 Q. Thank you. We have some minutes to go before the break. I will

4 try to finish this set of questions. But most of all I would like to

5 thank you for your comment and your elucidations, Professor.

6 Can we agree that even at the time there were those in Serbia who

7 advocated the creation of a Serbian state. At the time, since Serbia was

8 on the winning side, this state would have included areas with Serbian

9 population from the former Austro-Hungarian Empire which would have

10 roughly corresponded with the borders what is now termed Greater Serbia.

11 Greater or smaller, at any rate, it certainly would have been greater than

12 it ended up in 1918, would it not?

13 A. Yes indeed. There is no doubt there were very many people in the

14 Serbian government, including Nikola Pasic himself, who were interested in

15 incorporating largely Serb-inhabited territories in southern Hungary, in

16 Eastern Slavonia, in Bosnia-Herzegovina, and, of course, in Montenegro as

17 well, than they were interested in the idea that Croatian intellectuals

18 had propagated since the 1830s about a common south Slav home.

19 Q. Thank you. Do you believe that in view of the circumstances that

20 prevailed at the time it would have been possible not to create this

21 greater state of Serbs, Slovenes, and Croats but a somewhat smaller state

22 that would have nonetheless been bigger in terms of size than the previous

23 Kingdom, the Serbian Kingdom, including Eastern Slavonia, the parts of

24 Bosnia-Herzegovina, and probably some other areas too?

25 A. It would have been possible, but it would have flown in the face

1 of the trends, of course, taking place at the end of the war. Because

2 after all, the Kingdom of the Serbs, Croats, and Slovenes is formed after

3 a series of genuine acts of self-determination on the part of the peoples

4 of the Habsburg monarchy. Their conventions held in Ljubljana, Zagreb,

5 Sarajevo where people voted, actually, to join with Serbia. It would have

6 been very strange for Serbia to have said no. And, of course, Prince

7 Aleksandar, later King Aleksandar, did indeed say yes. It was of a piece,

8 of course, of what was going on throughout the former Habsburg monarchy.

9 This was -- after all, think of the way in which the Czechoslovak state

10 has been formed at the same time, or for that matter the very large

11 republic of Poland.

12 Q. I agree entirely with you, sir. I agree there was a majority in

13 Serbia advocating this idea of a union. The same probably applied to

14 Croatia and the Corfu declaration was eventually implemented.

15 MR. DOMAZET: [Interpretation] I have just finished one set of my

16 questions, and Your Honours, I believe this is a convenient time for us to

17 take our first break.

18 JUDGE PARKER: We will resume at 20 past.

19 --- Recess taken at 11.00

20 --- On resuming at 11.23 a.m.

21 JUDGE PARKER: Mr. Domazet.

22 MR. DOMAZET: Thank you, Your Honour.

23 Q. [Interpretation] Mr. Wheeler, we'll take this up where we left

24 off. When answering my last question as to whether, regardless of the

25 general tendency and desire on the part of the Serbs, and most Serb

1 statesmen, to create a common state encompassing the Croats, Slovenes, and

2 other south Slavs in this territory, we agreed that Serbia as the country

3 on the winning side of this war, could have resolved this issue in a

4 different way by including those Serbs who had lived beyond its borders up

5 to that point, but, in fact, what they did was to create a common state.

6 However, as you yourself observed, from the very beginning of the

7 functioning of the state then called the Kingdom of the Serbs, Croats and

8 Slovenes, problems began to arise, there was obstruction, and in

9 particular this was done by Croatian representatives. In your report I

10 think you adduced us some of the reasons; centralism, the dynasty, and the

11 capital.

12 My question is the following: You probably meant that the

13 Karadjordjevic dynasty, the Serb dynasty was at the head of the state, the

14 capital was in Belgrade, but my question is: Wasn't that something that

15 had been agreed on, on Corfu, and later on, and that this was never

16 actually an issue that was not agreed upon until the point of unification?

17 A. Mr. Domazet, you are again correct. The trouble was that once

18 there were democratic elections in the new Yugoslav Kingdom in 1920 the

19 people who had agreed the basis of unification were no longer the people

20 who had the confidence of the masses. And we saw the rise of the Croatian

21 Peasant Party in particular, which wanted effectively a renegotiation of

22 the terms on which the peoples of the new Yugoslav state were coming

23 together. There was also, of course, a radicalisation in the new country

24 generally when lots of people voted for the communists.

25 So the pact made in the extraordinary circumstances of war was

1 something that a good many people in the new Kingdom of the Serbs, Croats,

2 and Slovenes waned to renegotiate, revisit. And certainly Stjepan Radic,

3 the founder and leader of the Croatian Peasant Party, or Croatian People's

4 Republican Peasant Party, as it styled itself occasionally at the time,

5 certainly took the position that the basis for the unification should be

6 reconsidered and they certainly also dissented from the so-called Vidovdan

7 1921 constitution which provided for a highly centralised state. This was

8 a problem for Croats in particular, because they did not feel that they

9 would be protected in the same way that Slovenes would, for example, by

10 having a separate language. They would be much more under the thumb of a

11 centralising minded government in Belgrade than Slovenia would, for

12 example. It has to be said also that the Serbs of Croatia and of

13 Bosnia-Herzegovina very much wanted a highly-centralised state. They

14 thought that would be something that would protect them. They also tended

15 to be in the form of people like Svetozar Pribicevic, ardent believers ion

16 the idea of almost forcefully making Yugoslavs out of Serbs, Croats, and

17 Slovenes. Of course at the time nobody considered Montenegrin or

18 Macedonians or, for that matter, Bosnian Muslims to be anything than

19 either Serbs or Croats.

20 Q. Thank you. Mr. Wheeler, in your report you put forward the idea

21 that this was an attempt to find a viable political formula which would

22 make it possible to express, recognise, adapt, and accept the situation

23 that several closely-connected south Slav nations inhabited the same or

24 adjacent territories. Do you recall that sentence from your statement?

25 And, as you said, many of the proponents and protagonists of Yugoslav

1 union in 1918 believed they were forging a nation as well as a state, and

2 that a common Yugoslav identity would, with careful nurturing, emerge to

3 subsume the separate, tribal, as you say, identities. Do you have any

4 comment on this?

5 A. No, I think that I certainly recall what I wrote, and I continue

6 to agree with what I wrote then.

7 If you want me to expand on it, I could simply say that this was a

8 very common notion at time in east central Europe. Tomas Masaryk, the

9 founder president of Czechoslovakia believed too that he was creating a

10 new Czechoslovakia nation. The winners in the First World War all

11 believed, if we're talking about Romania, Poland, Czechoslovakia, they

12 were in the position to -- on what they saw as the west European model of

13 the 19th century, to create a common nation. After all, France was the

14 example they usually had in mind, whereby France, at the beginning of 19th

15 century was itself a highly multi-national state with people speaking a

16 variety of different languages but France had become a highly centralised

17 state, a progressive state, and people in east central Europe wished to

18 imitate the French example and make national and state boundaries

19 coincide. For those countries which inherited very large national

20 minorities, this was always going to be a very big problem, but in the

21 case of countries like Yugoslavia and Czechoslovakia, the close affinity

22 of the individual nations meant that it didn't really seem impossible in

23 the circumstances of 1918, that the 19th century West European experience

24 could be replicated and a state could also become a single nation.

25 Q. Thank you. From your CV I see that you are a citizen of the U.S.,

1 and you yourself know what happened in the U.S., where there were many

2 nations but a single national identity emerged. Unfortunately in this

3 case it did not happen.

4 My question is as follows: This idea of a Yugoslav identity,

5 would you agree with me that it was not an idea that aimed at creating

6 Serbs out of all the other Slavs, but an effort to create a new Yugoslav

7 nation out of all -- all the nations there, including the Serbs, Croats,

8 and Slovenes?

9 A. Certainly those Serbs, Croats and Slovenes who believed

10 passionately in a Yugoslav state also tended in the early 20th century to

11 believe passionately in creating a new Yugoslav national identity which

12 would take the best from the pre-existing nations or tribes. The trouble

13 was that far too many Serbs believed that a Yugoslav national identity

14 should effectively be a Serb national identity and wished to Serbianise,

15 if I can put it that way, their new fellow citizens in the new Yugoslav

16 state, which of course then gave rise to the national question, which as

17 far as most Serbs were concerned, was simply the Croat question in the

18 inter-war years. Because the Croats, having invented the idea of a

19 Yugoslav state, were the ones who believed that a Yugoslav state could

20 only endure and prosper if it were a genuinely collective enterprise and

21 not some form of Serbian domination.

22 Q. I don't know if I understood you properly. At that time do you

23 feel that the Croats were more in favour of this idea than the Serbs,

24 whereas I think it was just the opposite. Perhaps it was a romantic idea

25 at the time, this idea of creating Yugoslavs rather than an attempt to

1 Serbianise all others.

2 A. You are right. It certainly was a romantic idea, it was an idea

3 of romantic intellectuals. But there was more of those romantic

4 intellectuals amongst the Croats. The trouble, of course, as I indicated

5 in the previous reply was that the -- the Yugoslav idea was something

6 which many intellectuals amongst all of the south Slav peoples had in

7 common. Unfortunately when democracy was let lose in 1920s with elections

8 which saw vastly more people with the right to vote than had ever been the

9 case before, the big political parties that emerged from this first free

10 elections tended to have different ideas. In other words, the masses,

11 whether we're talk about the mass of Croat peasants or the mass of Serbian

12 peasants or the mass of Slovene peasants, hadn't been consulted. And

13 that's when the trouble arose, when they started getting the vote and

14 started wanting parties to advocate their interests.

15 Q. I can agree with you there. It's well known how people can be

16 manipulated, especially people desirous of prosperity who had just emerged

17 from a very difficult war. However, let me ask you what you meant when,

18 in your report, you said that you thought this did not happen because of

19 numerous national dissatisfactions, as you say, which had existed in the

20 Habsburg and Ottoman Empires. That is national discontents which troubled

21 the Habsburg and Ottoman predecessors. Why do you mention the Ottoman

22 predecessors in light of the fact that Serbia had long since liberated

23 itself from its Ottoman rulers and had been independent quite a long time

24 before the First World War? That's why I fail to understand why you

25 mention Ottoman predecessors when referring to national discontents.

1 A. Oh, very simple because, of course, technically the Ottoman Empire

2 up until 1908 had been the owner of Bosnia-Herzegovina, up until the

3 Balkan Wars it had also held all of Macedonia and Kosovo, Kosovo-Metohija.

4 So in other words the Ottoman inheritance was one that might have been

5 fairly distance for narrow Serbia, but it was highly relevant in

6 Bosnia-Herzegovina, Macedonia, and Kosovo.

7 The Habsburg inheritance of course, was more recent. But what I

8 was trying to explain in that passage was that Yugoslavia became a form of

9 multi-national empire, just as the Ottoman Empire had been a vast

10 multi-national empire, and the Habsburg monarchy had been a vast

11 multi-national empire. It's simply that states like the Kingdom of the

12 Serbs, Croats, and Slovenes, and the vastly expanded Romania, and the new

13 Czechoslovak state, they all inherited the fundamental multi-national

14 problems or problems of having a multi-national population that their

15 predecessors had had. They were only slightly smaller multi-national

16 Empires than the Habsburgs or the Ottomans had ruled.

17 Q. Thank you. And when the Kingdom was created, I mentioned before

18 the break, and I hope you will agree, that there were huge problems with

19 establishing the borders of the Kingdom of Serbs, Croats and Slovenes,

20 especially the western border, primarily with respect to Dalmatia, which

21 was claimed by Italy, you mentioned the secret treaty, also parts of

22 Koruska [phoen] and Slovene territory around lakes Bled and Bohinj, which

23 ultimately was included in the Kingdom of Serbs, Croats, and Slovenes.

24 Would you agree?

25 A. Yes. And as we've already discussed, the chaotic wartime

1 situation in 1918 meant that the new Kingdom proclaimed on the 1st of

2 December, didn't indeed have formal borders. There was still a communist

3 revolution going on in Hungary, so there could be no borders established

4 with Hungary until 1921. It took plebiscites in southern Corinthia and

5 southern Stiria [phoen] to establish the borders with the new Republic of

6 Austria, plebiscites which were managed by the new League of Nations, and

7 of course, the western frontiers with Italy around Trieste and Istria, the

8 loss of Istria, in fact, Italy, and Dalmatia, these were not settled until

9 the treaty of Rapallo in 1924. So the state had these border problems

10 which was one of the principal reasons why Slovenes and Croats in

11 particular were in the circumstances of 1918, as I said before, desperate

12 to cling to the victorious Serbian Kingdom and to get the victorious

13 Serbian army into the territories as quickly as possible to save them from

14 either the Hungarian Bolshevik revolution or from the Italian

15 imperialists.

16 Q. Thank you for these explanations. I fully agree. Now, I would

17 like your opinion as to whether had the Kingdom of Croats, Slovenes and

18 Serbs not been established, would Dalmatia have become Italian territory

19 rather than Croatian territory, if you research this issue, but I believe

20 you have because the issue of Dalmatia was a very important one after

21 World War I.

22 A. It's highly unlikely that Italy would have acquired very much of

23 Dalmatia, largely because the so-called big three, that is Lloyd George,

24 Woodrow Wilson, and Clemenceau -- Georges Clemenceau were determined not

25 to give Italy as much as it was demanding. So, in fact, the new Yugoslav

1 state had some friends at the Paris peace conference. The fact that the

2 Italians ended up getting as much as they did, in other words a saliert

3 [phoen] around Zadar and kept all of Istria was a result that Woodrow

4 Wilson felt compelled to give some concessions to the Italians, but there

5 was no readiness not to give the Italians everything they demanded.

6 Q. Yes. But my question was, had the Yugoslav state not been

7 created, and it was formed by Serbia as the victorious country which asked

8 for Croatia and Slovenia, parts of Slovenia, had not this been done, would

9 not Italy have found it much easier to achieve its goals and get Dalmatia,

10 and I believe that they did manage that in 1941.?

11 A. You are completely correct, Mr. Domazet, had there been no

12 Yugoslav state, had the Slovenes and Croats not allied themselves with the

13 Serbian army and of course, had not the Habsburg monarchy fell away and

14 fall apart in the chaotic way it did, then the Italians would indeed have

15 scored much larger gains.

16 Q. Thank you, Mr. Wheeler. We will now move on to another topic.

17 You discussed the first Yugoslavia, which actually received its name a

18 little later, but when speaking about centralism, I wish to ask you about

19 decentralization. How was that state decentralized. I'm referring to the

20 banovinas.

21 A. The banovinas were created as a result of King Aleksandar's

22 proclamation of a dictatorship in January of 1929, the Sestojanuarska

23 Diktatura. He then went on to rearrange, during the year of 1929, the

24 territorial structure of the Kingdom of Serbs, Croats and Slovenes,

25 creating a series of provinces or banovina, which were meant to be shorn

1 or have their historical national -- historical national territorial

2 arrangements got rid of. The banovina were intended in other words to

3 make people forget that they lived in a historic region called Slavonia or

4 Central Croatia or Dalmatia or Montenegro or Bosnia-Herzegovina. The

5 banovina were arranged in the interests of administrative efficiency, but

6 also in the interests of getting rid of the loyalties that people might

7 have had to particular historical territories. And finally at the end of

8 1929 Aleksandar moved -- King Aleksandar took the final step and changed

9 the name of the country to the Kingdom of Yugoslavia.

10 Q. Was it precisely for this reason that the names of the banovinas

11 were for the most part, if I'm correct, the names of rivers. The Sava,

12 Danube, Moravska, Vrbaska banovina, and so on? Is that correct?

13 A. That is indeed the case, yes, as well as in the case of -- there

14 was a Primorska as well. And the idea was to create provinces which would

15 be efficient for administration, which would, as I said, get rid of the

16 notion that these Yugoslav tribes were still terribly important, and would

17 make it easier for a highly centralised regime to govern the country.

18 Q. Yes. Maybe this was the beginning of regionalism, which is still

19 topical in present-day Europe, but apparently it was an unsuccessful

20 attempt, because according to you, the banovinas were a failure, or am I

21 wrong? Would you please comment on this?

22 A. The banovinas were certainly a failure. And they were -- they

23 were transparently designed in the way in which the borders were drawn, to

24 create as many banovina as possible in which Serbs would form the

25 majority, and as few as possible in which Croats in particular or Bosnian

1 Muslims would form the majority. And that's why I refer to them as being

2 an attempt to make centralism more efficient, rather than any real sort of

3 regionalisation. The original territorial structure of the Kingdom of

4 Serbs, Croats, and Slovenes had indeed recognised these traditional

5 historical units in terms of the way in which the country was set up,

6 where the introduction of the banovina in 1929 was meant to get rid of the

7 salience or the importance of these old historical territorial units.

8 Q. Can we agree that for example the Drina banovina encompassed

9 inhabitants from both banks of the river Drina, from present day Serbia

10 and present day Bosnia and Herzegovina to a more or less equal extent?

11 A. Yes, indeed. And of course very many banovina also

12 incorporated -- many banovina which had Croatian majorities also

13 incorporated large parts of Bosnia-Herzegovina, or for that matter large

14 parts of Srem or Srijem. But the general effect of the borders of the

15 banovina was to create more territorial units in which Serbs would be the

16 majority.

17 Q. Well, as you believe this, my question is, what kind of real

18 authority did the banovinas have, how important was it who would be living

19 on a certain territory and who important was it for the authorities in

20 that area, did the banovinas have any legislative powers, can you clarify?

21 A. You make a very valid point, Mr. Domazet. The banovinas were for

22 administrative efficiency only, they were not possessed with any

23 legislative powers. They had really very little significance until such

24 time as, after King Aleksandar's assassination, there were negotiations on

25 what became known as the Cvetkovic-Macek Sporazum, the Cvetkovic-Macek

1 agreement which led to a merger of Croatian banovinas and created a very

2 large Croatian-occupied area, which would have power devolved to it from

3 the centre, it would have home rule. At that point the banovinas became

4 crucially important because they were actually going to have some real

5 authority that mattered to one of the principal nations living in

6 Yugoslavia, in this case the Croats. Many Serbs, of course, at the time

7 after the 1939 Sporazum wanted their own sort of banovina. Everybody

8 wanted to have a banovina at that point, but of course the Second World

9 War intervened.

10 Q. We'll come to this issue which is of great interest to me, your

11 standpoint on the creation of the Croatian banovina, but as we're now

12 talking about the organisation of the state, at the local level were there

13 municipalities, Opstina and Srezeri [phoen] as a higher level territorial

14 unit encompassing more than one municipality?

15 A. Yes.

16 Q. Thank you. The parliamentary crisis we mentioned, and the

17 pressure of Croatian parties in particular led just before the outbreak of

18 World War II to the creation of a large banovina, much larger than

19 previously, which was even named the Croatian banovina, unlike the

20 previous banovina names which were named after rivers or the sea. Now a

21 Croatian banovina was established with borders going all the way up to

22 Belgrade itself, if I'm not wrong. Could you explain under what

23 circumstances this occurred, and how it affected relations at the time and

24 later on?

25 A. This was an -- the creation of the large Croatian banovina in 1939

1 was an attempt on the part of Prince Regent Paul Karadjordjevic to get rid

2 of, to pacify, the greatest domestic Yugoslav problem of the day which was

3 the Croat question. And he decided to make a separate piece with the

4 largest Croatian party, the Croatian peasant party, in order to -- I don't

5 want to put it -- maybe I will. I'll put it very cynically. He wanted to

6 buy Croatian loyalty in view of the very, very stormy weather ahead, with

7 Hitler obviously making demands all over the place. He wanted to put

8 Yugoslavia on very much firmer foundations by ensuring the loyalty of the

9 bulk of Croats to the Yugoslav state, as the Second World War drew near.

10 What was also said at the time, of course, was that the Croatian banovina

11 was only going to be the first of a series of such devolutions of powers

12 to national historical units inside Yugoslavia, but of course it didn't

13 happen, the war came first.

14 Q. Yes. But can we agree that this was a considerable concession to

15 Croatia, or to the Croatian parties, advocating the creation of the

16 Croatian banovina under that very name, and including the territory that

17 was created?

18 A. Indeed, it was a considerable concession. And one that Franjo

19 Tudjman later on would talk about endlessly, whenever he wanted to talk

20 about the territory in Bosnia-Herzegovina that he thought should belong to

21 Croatia, or, for that matter, Srijem.

22 Q. Yes. That's what some of my questions are about. The creation of

23 the Croatian banovina, did after all cause a lot of problems later on.

24 Another question about this, since first and foremost we are focusing on

25 Vukovar and the surrounding area. The banovina before the creation of the

1 Croatian banovina, Vukovar and its surroundings, which banovina did that

2 area belong to?

3 A. Oh, gosh. This is the kind of question that not any longer being

4 a professional teaching historian makes it difficult for me. I think it

5 was dravska [phoen], but I could be wrong.

6 Q. Very well. Let's not dwell on that. I'll move on to a different

7 topic, the beginning of World War II. In Yugoslavia the war broke out in

8 1941, later than in some other parts of Europe, in fact. I think you have

9 spent a lot of time studying these subjects and you are perfectly familiar

10 with the circumstances under which back in 1941 the government that you

11 yourself described as the Cvetkovic-Marcek government made a pact on the

12 25th of March. In Yugoslavia's later history there were many different

13 interpretations, some of them quite one-sided, I believe. Your

14 assessment, as an historian, the Yugoslav government, the Cvetkovic-Marcek

15 government and the Count Pavle who in some way replaced King Aleksandar as

16 the head of state, were they pro-German, of a pro-German orientation?

17 Were they indeed in favour of a pact like that, or did they have different

18 views, but were simply left without a choice at the time? Left without a

19 better alternative. What is your assessment of March 1941?

20 A. My personal view is that Prince Paul and his government had no

21 alternative but to sign the tripartite fact. They had negotiated

22 strenuously to make that pact as inoffensive as possible. But they, of

23 course, offended Serb national feeling in particular by doing so, and

24 found themselves two days later, turned out of office when the March 27th

25 coup d'etat took place and the young King Peter was proclaimed to be of

1 change and a military-led government under Dusan Simic was set up. Of

2 course, the immediate effect of the Martski Prevat [phoen] was, in fact,

3 to cause Hitler to repent that he had given a good deal, of course no deal

4 with Hitler was ever a deal you could believe would stay valid, but caused

5 him in his fury immediately to invade and destroy Yugoslavia. Prince Paul

6 and the Cvetkovic government had thought they could at least purchase some

7 time but signing the tripartite pact. They knew in their heart of hearts

8 they would be on the allied side, but those who disagreed with them,

9 especially in the Yugoslav army and air force, were subjected to

10 considerable British secret service pressure, they were impressed by the

11 heroic resistance which the Greeks were putting up at the time and felt

12 that they knew better. But my own view is that it might have indeed been

13 better for all of the peoples of Yugoslavia had the war not come as

14 immediately as it did to Yugoslavia.

15 Q. I believe I entirely agree with you on this. About this pact, can

16 we agree that although I entirely agree, that it violated the Serbs'

17 national pride, and this applied to others in what was then Yugoslavia, I

18 suppose, since this was after all a pact made with a power that was hard

19 to resist. But this did not constitute an act of occupation of the

20 country as it was. This would have been something different. Troops

21 would have been passing through, but the neutrality would have been

22 preserved. Would I be right in claiming that, sir?

23 A. No. And the reason is that one of the concessions which the then

24 Yugoslav foreign minister Cinkar Markovic got from Ribbentrop was a pledge

25 in the pact -- well, rather it was a secret side agreement to the pact by

1 which the Germans and the Italians guaranteed that there would be no

2 requests for troop transports through Yugoslavia. And the problem here

3 was that the Yugoslav government was fearful that the Germans, the

4 Italians, would use Yugoslav territory to launch a new offensive on

5 Greece. Now, the trouble with this pledge not to demand troop transports

6 was that nobody believed it, and certainly the people who carried out the

7 coup d'etat didn't believe it. The British didn't believe, the Greeks

8 didn't believe, and so therefore, although formally there was a pledge,

9 there was some reason to believe it would be only a matter of time,

10 indeed, before Hitler demanded to send his armies through Yugoslav

11 territory to attack the British who, of course, had set themselves up at

12 the time in Greece to help Greece. This was all terribly important to the

13 Germans because the British were in Greece, and that's why Yugoslavia ran

14 out of time in maintaining its neutrality, because Mussolini was losing

15 the war to the Greeks and Hitler had to come to Mussolini's rescue in

16 Greece, and that meant that countries like Yugoslavia simply had no time.

17 They were going to be forced to abandon their neutrality one way or the

18 other, either because they decided to side with the British and

19 precipitate an immediate German-Italian attack, or because they decided to

20 try to propitiate or make concessions to the Germans and would cause the

21 British to wish -- to force them into the war, which is of course what

22 happened.

23 Q. Very well. All the more so if you what you say is indeed true.

24 If we look at pact again or the agreement, what was it that was so

25 humiliating for the country, what was it that caused all the unrest and

1 eventually the coup d'etat that you have referred to?

2 A. What was so humiliating and so infuriating was that there was a

3 pact at all. A very large portion of the especially Serb officer corps

4 and various Serb nationalist sources and various Serb intellectuals and

5 lots of people that the British were supporting not just in Serbia, but

6 also, it has to be said, in Slovenia where there was tremendous opposition

7 to the pact, these people were simply kind of having any kind of alliance

8 with Germany.

9 Q. Thank you. Your explanation is crystal clear. As an historian,

10 do you know that prior to the signing of the pact, and you yourself said

11 that you believed that the government did not do this willingly, had they

12 previously tried to secure help from the allied powers, just in case they

13 were made to sign the pact and just in case they were forced to go to war

14 with Germany? And wasn't it, in fact, the case that despite their best

15 intentions they said there was nothing that they could do for Yugoslavia,

16 even if an attack was launched?

17 A. You are right. Correct. The British offered lots of

18 encouragement, but they couldn't offer anything else.

19 THE INTERPRETER: Interpreters note, could Mr. Domazet be asked to

20 speak into the microphone. Thank you.

21 MR. DOMAZET: [Interpretation] Yes.

22 Q. If I'm not mistaken, there were some official statements made by

23 the British leaders and statesmen encouraging the Serbs, invoking their

24 history, and their former alliance, encouraging them to resist Germany and

25 resist the pact itself. However, two days later, as you have just said,

1 there was a coup d'etat. Their coup d'etat was preceded by rallies

2 organised by people who didn't like the pact, to put it in quite simple

3 terms. But much in history as we know it indicates that the British

4 intelligence services and the British secret services had a significant

5 role to play in this situation. They wooed those officers who were

6 willing to resist Germany, who believed this to have constituted a

7 humiliation for an act like that to be made and that this led to the coup

8 that eventually occurred on the 27th of March. Would I be right in

9 stating that, sir?

10 A. You are indeed. Although of course historians still debate the

11 exact degree to which the British were deeply involved in the coup, my own

12 view, having researched these matters, is the British desperately wanted

13 to produce a coup, were trying very hard to produce a coup, but didn't

14 actually know the right people who could do the coup. And so they were

15 very happy when the coup take place, but their contacts were rather

16 peripheral. They were not deeply involved with Brigadier Boro Mirkovic,

17 for examples, the man who actually carried it out. That was a surprise to

18 them. But they did certainly help create an atmosphere in which army and

19 air force officers moved to overthrow Prince Paul.

20 JUDGE PARKER: Mr. Domazet, could you move the microphone closer

21 to you?

22 MR. DOMAZET: Thank you, Your Honour.

23 JUDGE PARKER: Thank you.

24 MR. DOMAZET: [Interpretation].

25 Q. You mentioned Mirkovic. I have studied this, and there is much to

1 indicate that he was one of the officers courted and eventually won over,

2 so to speak, by the English, the British services, in order to achieve

3 what all of the allies at the time were really interested in, not just the

4 British. You don't seem to have that information, or perhaps for some

5 reason this information has remained secret.

6 A. Well, actually, in this case the -- nothing remains secret

7 anymore, but that doesn't mean that there aren't still puzzles. The

8 British air attache, or really only the deputy air attache in Belgrade in

9 1941 claimed that he had been in close contact with Mirkovic and knew all

10 about the plot. But the air attache was not himself part of the British

11 intelligence services. It was called at that time section D, which was a

12 part of the secret intelligence service. So there is still some

13 ambiguity.

14 Because the coup was seen not just by anti-axis Yugoslavs as a

15 great heroic event, but it also was between by the British secret services

16 as something that they could do amazingly effective things. Everyone

17 wanted to believe that the British had been more deeply involved than was

18 probably the case. I mean, they did help, there is no doubt about that,

19 they helped as I said, encourage this to happen. But I think it would be

20 a mistake nowadays to say that they pulled the strings. I think we now

21 know, thanks to the researches of people like Jozo Tomasevic, that it

22 was -- Mirkovic did it himself.

23 Q. Yes. I entirely agree that this would never have been possible

24 had the mood that prevailed among the top-level officers in the army at

25 the time been such that it was possible for a foreign service to bring

1 this sort of thing about. The pact was declared null and void, and as

2 early as the 6th of April Yugoslavia was subjected to air strikes and it

3 was also attacked on the ground with no declarations of war preceding

4 these acts. Would that seem to be a fair assessment, sir?

5 A. Yes, it certainly is. But the pact was declared null and void by

6 Hitler, and not by the new Simovic government, because once Simovic put

7 his government together, he appreciated the enormity of the danger that

8 faced Yugoslavia, in the same way that Prince Paul and Cinkar Markovic and

9 Cvetkovic had seen it and desperately tried to reassure Berlin or to use

10 Mussolini to reassure Berlin that even the new revolutionary government

11 would respect the pact. Because they realised that the country's military

12 situation would be utterly and totally hopeless, as indeed it proved when

13 the Luftwaffe bombed Belgrade on the 6th of April and German troops

14 streamed in from Bulgaria which was where the war was lost.

15 Q. Yes. I entirely agree. My question may have been a little

16 imprecise. It is true that the new government tried to drag things out

17 and to appease, as it were, the axis powers, Hitler specifically. It

18 failed, however, and Yugoslavia was attacked on the 6th of April. You

19 said this yourself, I wanted to ask the same thing about Bulgaria The

20 Germans had some of their troops in Bulgaria at the time already, although

21 as you have suggested, they were interested in a corridor through

22 Yugoslavia as well, but it's true that they had troops on that side, at

23 that end, as it were, and much as was the case previously, during World

24 War I, Yugoslavia was yet again attacked from Bulgaria, as it were, from

25 that side, that's where the attack eventually came from. Isn't that

1 right, sir?

2 A. That is indeed right, yes.

3 Q. Would you agree, sir, you've probably studied this too, what were

4 the slogans, the most important slogans used in Belgrade and the other

5 cities at the time, this is in reference to Serbia first and foremost, I'm

6 not sure about other parts of Yugoslavia, but you may know something about

7 that. The two rallying cries, if you like, were, "a war is better than a

8 pact," "better a grave than being a slave." These were the two prevailing

9 slogans at the time, the battle cries, if you like. Do you remember that?

10 A. Yes, indeed. They were.

11 Q. Yugoslavia won the war eventually. Even historians seem to

12 believe that even Germany, and they were obviously entertaining secret

13 plans to attack Russia, would not have attacked Yugoslavia at the time if

14 Hitler had not been particularly enraged by what had occurred. It was on

15 the 6th of April, much earlier than the -- [indiscernible] than Russia

16 that Yugoslavia was attacked is that correct, sirs?

17 A. Yes, and the two are completely linked. Hitler had to eliminate

18 the trouble he had on his southeastern flank because of the coup in

19 Yugoslavia and the presence of British forces in Greece. He had to get

20 rid of that problem in Greece and Yugoslavia before he could safely attack

21 Russian, which he had already planned to do the. And the fact that there

22 were British forces based in Greece was the -- was a real threat to

23 Hitler, because they could use their air power to attack the Romanian

24 airfields -- the Romanian oil fields, and Romanian oil was absolutely

25 central to the German war machine. So it would not have been safe for the

1 Germans to attack the Soviet Union in June 1941, if they didn't eliminate

2 the problem represented by an uncertain Yugoslavia and a defiant Greece

3 beforehand.

4 Q. Just to remind ourselves, I believe we can agree on this, there

5 was an agreement at the time, a pact between the Axis powers and the

6 Soviet Union that there would be no mutual attacks. This was an

7 unofficial plan. Officially, what was there was an agreement to avoid any

8 mutual attacks. There was some sort of a formal agreement between these

9 countries right?

10 A. Indeed. It was the Molotov-Ribbentrop pact that made the Second

11 World War possible, and the German invasion of Poland.

12 Q. Thank you. The war itself lasted only a brief while. The

13 Yugoslav army capitulated in no time at all. My question: Is it true

14 that even then there had been ethnic divisions leading to a break-up that

15 some of the territory was not even being properly defended, that the real

16 fighting was conducted in some parts of Serbia, the Yugoslav army made

17 headway into the Albanian territory, they had even entered territory,

18 territory belonging to another country, but because of the odds they were

19 facing they were soon forced to capitulate. Would that be a fair

20 assessment?

21 A. By and large, yes. The reason why the Yugoslav army sought to

22 penetrate Albanian territory was to secure there, as Churchill was

23 encouraging them to do, the supposedly vast stores of armourments that the

24 Italians had. Since the British couldn't offer the Yugoslavs anything and

25 the Americans could only offer money, in the short term, the question of

1 armourments was crucial. But also of course there was the notion of

2 repeating what had happened in 1915, with the government going into exile

3 from some place like Albania or Corfu off the coast of Albania. So, yes.

4 And you're also right to suggest that there was a massive disaffection in

5 certain parts of Yugoslavia when the Germans arrived. This, however was

6 not militarily significant because the battle had already been lost by the

7 initial German incursion across the border from Bulgaria, which had

8 destroyed any possibility of the Yugoslav army retreating any large

9 numbers into Greece and joining with the British and the Greeks there. So

10 the war was lost and, knowing that the war was lost, it happens to be the

11 case that, you know, the Germans were rather welcomed when they paraded

12 into Zagreb several days later. The war was lost even before it began, of

13 course, in any sort of real historical terms. It was a contest of

14 completely and utterly unequal forces.

15 Q. By all means. That is precisely what I think too. It wasn't an

16 equal contest. But we have seen footage of the German army's entry, both

17 into Zagreb and Belgrade, and I think those were two contrasting images

18 and the contrast seemed pretty stark. Therefore, my question, is it true

19 that the German army, the occupying army, was met with a great deal of

20 enthusiasm in Zagreb according to the accounts of some historians, the

21 only place they received a warmer welcome was, in fact, in Linz, Austria?

22 A. I don't know about the comparison with Linz but the German forces

23 were received well in Zagreb. The reason being of course is that the --

24 Hitler it taken the calculated decision that the Croats would be rewarded

25 and Serbs would be punished and the Croat's reward would be the creation

1 of the Independent State of Croatia, and therefore winning Croatian

2 support, making the Croats into an ally was something that Hitler was

3 determined to do, because he was equally determined that, as an Austrian,

4 and an Austrian who supposedly blamed Serbs for the break up of the

5 Habsburg monarchy, had never forgiven them for 1914, that whether

6 Yugoslavia would be destroyed as an idea utterly and totally. And so

7 therefore the principal beneficiary of the Third Reich on the territory of

8 the former Yugoslavia was meant to be the Croats, who were rewarded with

9 this very large Croatian state, including all of Bosnia and Herzegovina,

10 but, of course, as you will recall from my report this Croatian state

11 supposedly independent Croatian state, was compromised at the outset by

12 virtue of the fact that Hitler's Italian allies insisted on incorporating

13 Dalmatia, which was really rather more dear to most Croats, something that

14 was more important to them, than were bits and pieces of Central Bosnia.

15 I don't think a lot of Croats were terribly excited by incorporating Foca,

16 for example, Eastern Bosnia, Visegrad in the new Croatian state.

17 So Hitler's attempt to appeal to the Croats was rather disabled at

18 the very beginning by virtue of the territorial arrangements that he

19 insisted upon, but even more of course by the fact that he had trusted the

20 government of Croatia to an out and out gangster and criminal, Ante

21 Pavlic.

22 Q. Can we agree that what happened marked the death of the Yugoslav

23 idea, at least as far as the Slovenes and Croats were concerned, it spelt

24 a defeat for Yugoslavia and the ideas promoted back in 1918, jointly

25 promoted by the statesmen at that time?

1 A. That is exactly what Hitler intended, that the Yugoslav idea

2 should be destroyed for all time. But in that respect, as in so many

3 others, Hitler proved utterly and totally wrong. The Yugoslav idea was

4 reborn in the course of the resistance struggle led by the communists.

5 And it was reborn in a new way whereby the Communists fought both for the

6 recreation of Yugoslavia, but also for the recognition of the individual

7 south Slav nations' proper place in that new Yugoslavia. At least that

8 is, of course, the theory. What they were fighting for, of course, was

9 total Communist power. But they made a very, very good use of the

10 Yugoslav idea and caused the Yugoslav idea to have another 50-some years

11 of life, and of course it's not impossible that it will come alive again,

12 although utterly dead now.

13 Q. Can we agree when you refer to the Communists at the time, that

14 they raised their voice only after the attack on the Soviet Union. This

15 was in June, I think.

16 A. By and large, yes.

17 Q. And another thing, would I be right in saying that after the

18 capitulation of the Yugoslav army, the officers of that army and the men

19 were taken to imprisonment, mostly in Germany, but only those who were of

20 Serb nationality, not officers and soldiers from Croatia, Slovenia, and

21 some other areas?

22 A. You are correct, Mr. Domazet, it was Serb officers who in

23 particular who were sent to prisoner of war camps, at least those Serb

24 officers who hadn't managed to escape surrender or capture.

25 Q. You have already mentioned this, but let's remember that Serbia

1 had the status of an occupied country, fully under German command. The

2 Independent State of Croatia was established, which encompassed Bosnia and

3 Herzegovina but not Dalmatia which was occupied by Italy, and the

4 Independent State of Croatia stretched as far as Zemun in the east. Am I

5 right?

6 A. You are indeed.

7 Q. Did this circumstance cause a migration of the population or what

8 is called ethnic cleansing in territories where Serbs had lived, did they

9 move towards Serbia, even though it was occupied from the territories of

10 the Independent State of Croatia?

11 A. They did indeed. They did not only move, many were killed and

12 others forcibly converted to Roman Catholicism. The ideology of the

13 Ustasha state was that Croats had to become a convincing majority in this

14 expanded Croatian state, and that could only happen if roughly one-third

15 of the Serbs were got rid of by forcing them out, one-third were got rid

16 of by murder, mass murder, and one-third were got rid of by forcibly

17 conversions to Roman Catholicism that is that they would be made Croats,

18 made into Croats, that the Bosnian -- excuse me, the Croatian Ustasha

19 state could also only have a majority if it changed the national ideology

20 of Bosnian Muslims. They had to be convinced that they were in fact

21 Croats of Islamic faith, this was a huge effort which, of course,

22 thankfully, the Ustasha regime was not capable of implementing in full,

23 although, of course, the extent to which it did implement it was ghastly

24 as it was.

25 Q. Thank you for your replies, Dr. Wheeler.

1 MR. DOMAZET: [Interpretation] Your Honours, I believe it is time

2 for our break.

3 JUDGE PARKER: Thank you, Mr. Domazet. May the Chamber point out

4 that we have gone for a session and a half now, and have reached roughly

5 1942. We would be very grateful if we could reach 1991 much more quickly.

6 --- Luncheon recess taken at 12.31 p.m.

7 --- On resuming at 1.34 p.m.

8 JUDGE PARKER: Mr. Domazet.

9 MR. DOMAZET: Thank you, Your Honour.

10 Q. [Interpretation] Mr. Wheeler, you probably remember, we last

11 discussed your explanations about what happened after the creation of the

12 Independent State of Croatia, and its policies as far as Serbs were

13 concerned, you defined it by referring to one-third, the second-third and

14 the third-third. One-third were supposed to be murdered, another third

15 were supposed to be expelled, and the third-third were supposed to be

16 converted. Did that plan come to anything in the end, or was it for the

17 most part implemented eventually?

18 A. It was implemented to a horrifying degree, but that doesn't mean

19 that it was implemented in full, in part because the Germans, aghast and I

20 should say the Germans and the Italians, aghast at the chaos which it

21 proposed, the way in which it served to stimulate armed resistance, and

22 thereby to remove any benefit to the Axis occupying regime from actually

23 possessing this territory, the Germans and the Italians by and large

24 started putting a stop to it in 1942. A stop to it in 1942, I said.

25 Q. Yes. But based also on information which you discuss in your

1 report, your findings seem to indicate that about 344.000 Serbs were

2 killed in the Independent State of Croatia during the war. Would that

3 seem to be correct, because that follows from your report, sir?

4 A. Yes, I was -- I was citing the historical research in the 1980s of

5 Bogoljub Kocovic. In the 1980s, as I indicated in the report, both a

6 Croatian statistician and a Serbian statistician came up with roughly the

7 same figures which I think are extremely well grounded and had the effect

8 of course of contradicting what an awful lot of the post-Second World War

9 mythology about absolute and relative losses amongst the various south

10 Slav and non-south Slav citizens of the Yugoslav state had been. The

11 figure of 340-some thousand Serbs who were killed or lost their lives in

12 the Ustasha state, however, can't necessarily be put down to Ustasha

13 policies. It would have been for a variety of reasons, and of course some

14 of those deaths might have occurred -- I was going to say outside the

15 bounds of the Croatian state, in the sense that that was territory not

16 necessarily under Croatian control.

17 Q. Indeed. At any rate though, these figures are impressive. They

18 are large-scale figures. When discussing the estimated total of victims

19 throughout Yugoslavia, you probably refer to that figure of about 700.000

20 [as interpreted], which would roughly amount to 10 per cent of the pre-war

21 population of Yugoslavia. I suppose that was what you had in mind. A

22 correction for the transcript. I said 1.700.000.

23 A. The figure of 1.700.000 which was the conventional figure for the

24 wartime death toll was a figure that the new Communist regime put together

25 in 1946 in order to justify their reparations claims on the defeated Axis

1 states. It was not an exercise in serious statistical or demographic or

2 historic research. It was a guess based on a need to come up with a

3 figure immediately. The subsequent serious research, which I cited in my

4 report, pushed that figure down to just over one million persons. We are,

5 of course, seeing ago similar phenomenon going on today in relation to the

6 death toll in the wars of the 1990s. Vastly inflated figures were cited

7 immediately after the 1991, 1995 wars, which for example said that the

8 death toll in Bosnia and Herzegovina was something like 250.000 or at

9 least 200.000. We now know because of serious research which has been

10 done, that the death toll is probably more like 100.000. Now, these are

11 still huge and scarifying figures but they put the previous guesses and

12 estimates into some sort of perspective.

13 Q. Indeed. You describe this in report too. That's a fact, but it's

14 also a fact that you agree with the assessments that the Serbs who lost

15 their lives in the Independent State of Croatia, that their numbers

16 roughly amounted to this figure. As far as the total was concerned, the

17 total of the Serbs who lost their lives according to Kocovic, which is

18 also the figure you cite, 487.000. Most of the Serbs did come to grief in

19 the territory of the Independent State of Croatia, that seems to follow

20 from these facts which would roughly amount to almost two-thirds [as

21 interpreted].

22 A. Indeed. Yes, indeed.

23 Q. For the transcript, I said about three-fourths, not two-thirds.

24 At any rate, it's easy to do one's own math, if you use the one and the

25 other figure, 487.000, and 334.000. When we talk about the Serbs killed

1 in the Independent State of Croatia, would I be right in stating this. If

2 one of the ways to do this was to kill civilians and throw them into pits

3 and we all know that there were lots of those in those areas, pits,

4 grottos, and these traces remained in a way. Another method was to use

5 camps such as those at Jasenovac, Gradiska, and others. Does your

6 information seem to corroborate this, sir?

7 A. Yes, indeed. There was of course also in the early days even much

8 more horrifically brutal killings of Serb villagers herded into churches

9 and burned alive. The same sorts of things, of course, that happened in

10 the war in Bosnia and Herzegovina in the 1990s, although not to Serbs.

11 Q. Thank you. We have just mentioned Jasenovac. It was the briefest

12 possible reference. As you have indicated, this caused a lot of debate in

13 post-war Yugoslavia in terms of how many people were killed there. I

14 would not like to go further into this, but you did say yourself that

15 there were attempts on the Croatian side to reduce this figure, they were

16 talking about 40.000 people killed in Jasenovac. On the other hand, a

17 figure that was ascertained was 400.000, I think you yourself referred to

18 between 60.000 and 80.000 people killed in Jasenovac. Isn't that what

19 your report states, sir?

20 A. I believe so. I can't remember exactly. Certainly some estimates

21 were way too low and other estimates were way too high. I think we could

22 take it for granted that the number is between 60 and 100.000. We will,

23 of course, never know completely. The trouble of course with these

24 figures is that they achieve a life of their own. This is -- this is the

25 case in regard to the Second World War and of course it is still the case

1 in regard to the wars of the 1990s. Every year in the spring Republika

2 Srpska in Bosnia-Herzegovina continues to have a commemoration on that

3 part of the Jasenovac complex which nowadays lies in Republika Srpska, and

4 on each and every one of these years despite historical research, the

5 number that is cited is always 700.000 dead at Jasenovac. Now, serious

6 historians do not believe that it's 700.000 for nearly 20 years but that

7 doesn't mean that an awful lot of people continue to believe these

8 hideously inflated figures.

9 Q. Thank you. You will probably agree though that 100.000 or between

10 60.000 and 100.000 is very high, an astonishingly high figure for a single

11 camp during the war?

12 A. In Southeastern Europe, yes, indeed it is, because camps whether

13 we're talking about the former Yugoslavia or Greece, were not industrial

14 death facilities such as prevailed in other parts of the Third Reich, for

15 example in Poland or Bohemia.

16 Q. Thank you. I asked you about the expulsion or the exodus of Serbs

17 from territory under the Independent State of Croatia, we agreed that this

18 was, in fact, the case and this was part of the state's plan. However,

19 what I want to ask you is this: Are you aware of the fact that there were

20 mass expulsions of Slovenes from Slovenia done by Germans, that these

21 Slovenes were driven to Serbia and that Serbia took in a large number of

22 Slovenes during the war. Some of them later remained in Serbia, most

23 however returned to their home country. Is this a phenomenon that you're

24 familiar are?

25 A. It is indeed. Because that portion of Slovenia, or we could now

1 call Slovenia which was incorporated in the Reich, the Germans had the

2 same plans there for the Slovenes as the Ustasha regime had for most

3 Croats in -- excuse me, Ustasha regime had for Serbs in the Independent

4 State of Croatia. That is, they intended to denationalise them, they

5 intended to get rid of as many as they could and the remainder would be

6 Germanised. But of course the bulk of Slovenia was under Italian

7 occupation, it wasn't actually incorporated into the Third Reich.

8 Q. Yes. We're talking about the area around Maribor, I'm referring

9 to that particular part of Slovenia.

10 A. Yes.

11 Q. Needless to say, you followed statistical indicators about the

12 population in various areas of Yugoslavia. In particular, you used the

13 1991 census. In this document a parallel is drawn to several earlier

14 census, the first being from 1948 and then all the way up to 1991, which I

15 believe to have been the last census, population census in the former

16 Yugoslavia. This is the situation established after the foundation of the

17 second Yugoslavia or Tito's Yugoslavia for easier reference. Did that in

18 itself change the demographic make-up in relation to what it used to be

19 prior to World War II in areas where there were a lot of Serbs on account

20 of the expulsion and murder of a great number of Serbs, did that

21 contribute to reducing the Serbian population in those particular areas?

22 A. Yes, it did, also of course what contributed was the post-war

23 industrialisation and urbanisation of what I mentioned before. That had

24 the effect also of reducing absolute number, if not the relative number,

25 of Serbs in certain so-called, as you referred to them, passive regions.

1 So yes. And there also was, of course, simply the fact that birth rates

2 developed differently. For a long time after the Second World War, the

3 Bosnian Muslim birth rate was much higher than the Croat or Serb birthrate

4 in Bosnia-Herzegovina, so the Bosnian Muslim share of the population

5 grew. But of course as prosperity became greater in the late 1970s, well

6 then those birth rates pretty much equalled out in Bosnia-Herzegovina and

7 the Muslims were no longer growing faster than Serbs or Croats. Of

8 course, where the -- the one part of the country where the changing

9 demography, the relative demography was most notable were in those parts

10 of Yugoslavia which were inhabited by large numbers of Albanians whose

11 natural increase far outstripped those of the Slavs among whom they lived.

12 Q. Thank you. I am not inclined to dwell on Albanian populated

13 areas. This is a special situation including the prohibitional [as

14 interpreted] then-government from returning to Kosovo. I would now like

15 to shift to Vukovar, which is what we are really interested in. According

16 to post-war statistics which is what you, too, have established, there

17 were large numbers of Serbs living in the area, almost equal to the number

18 of Croats living in the area. My question is: Do you know that up to

19 World War II, the ethnic situation was more or less the same and that the

20 Serbs may even have prevailed, had been the predominant group prior to

21 World War II as opposed to post-World War II. Is this something that

22 you're familiar with?

23 A. I have to admit that I am not.

24 Q. Fine. Secondly, we discussed passive areas. Can we agree that

25 the Vukovar area is among the richest areas, both in terms of the land and

1 in terms of general infrastructure. It always belonged to the richest

2 parts of Yugoslavia, including the town of Vukovar itself. This was not

3 the same situation as that faced by the so-called passive areas, including

4 economic migration. I do not think that that sort of phenomenon could

5 possibly be applied to Vukovar?

6 A. I agree with you. Vukovar was a huge net importer or recipient of

7 people after the Second World War. There were vast tracts of land that

8 had been abandoned by the Germans who used to be a very significant

9 national minority in that part of the world. These Germans left with the

10 Wehrmacht or were expelled afterwards by Tito's regime, and there were

11 therefore large numbers of people from other parts of Yugoslavia, Serbs

12 and Croats, who came in to occupy this land. But there was also large

13 migration from other parts of Yugoslavia because Vukovar, particularly

14 Borovo Selo, became a booming industrial complex after the Second World

15 War. You know, I can't remember the exact figure, but something like

16 30.000 people worked in the Borovo factory itself, the footwear and rubber

17 goods factory. So the demographic composition of Vukovar certainly

18 altered because of its -- because of the -- because of the departure of

19 Germans and the availability of jobs as industrialisation took hold. But

20 as I told you before, I'm not aware of the -- how over the decades the

21 relative proportion of Serbs vis-a-vis Croats changed. I'm afraid I just

22 don't have those figures in my head at the moment.

23 Q. Thank you. Since you don't seem to have those at your fingertips,

24 we won't dwell on that. But the situation was similar, there were even

25 more Serbs than in the period under discussion. However, when you talk

1 about these things, it's true that the Germans were leaving these areas,

2 not only this particular area, but especially Banat. Both Serbs and

3 Croats were brought in from other more passive areas. Do you know that

4 particularly in Eastern Slavonia Croats were brought in from western

5 Herzegovina, which, unlike eastern Herzegovina, is populated by Croats. A

6 lot of people were brought in, even later on a lot of people were brought

7 into Eastern Slavonia. Do you know about that, sir?

8 A. Yes, indeed and one of the things that one would always here in

9 the Vukovar area when I was living there were complaints by the people who

10 had been there a long time about these Iseljenici, these people, these

11 Iseljenici, these new-comers, both old-time Croat and Serb settler --

12 inhabitants complained about the alien attitudes of these people that came

13 from the mountains or from the, you know, snake-infested rock-strewn

14 landscape of Western Herzegovina or Lika or wherever.

15 Q. Yes. I agree. That seems to have been a problem anywhere, where

16 there was a large-scale migration. A lot of time went by though, the

17 second Yugoslavia lasted for a longer time than the first. In the first

18 case it was only 23 years. We have heard a lot of evidence, especially

19 from Croats, natives of the Vukovar area, who told us about relations

20 between Croats and Serbs all the way up until 1989 and 1990 being very

21 good, very fair, very respectful. Is this a conclusion that your research

22 has corroborated?

23 A. Indeed. Whether we're talking about Eastern Slavonia or Western

24 Slavonia, relations amongst Serbs and Croats in both those parts of

25 Croatia were traditionally extremely good.

1 Q. Those were areas, as we agreed a while ago, that were

2 economically more developed than some other parts of Yugoslavia. When

3 you speak about Borovo, would I be right to say that the factory that you

4 have referred to existed before the war? It was the well-known Bata

5 factory, and after the war the existing factory just resumed work as

6 usual, it was a well-known factory in European terms, the Bata factory?

7 A. Yes, indeed, it was, but it grew hugely after the Second World War

8 and became a real kumbanat [phoen] in its own right, instead of just

9 making shoes for the Czech parent company.

10 Q. Thank you. We're still talking about statistics, and the

11 overview you gave us about the number of Serbs. You found that based on

12 the census of 1991 the total population of Serbs on the territory of

13 Croatia amounted to about 12 per cent. Is that correct?

14 A. That's, of course, what the 1991 census says.

15 Q. Yes. In the same report, however, there are other censuses, 1948,

16 1953 and 1961, and also 1971, where this percentage was between 14 and 15

17 per cent, and this was a constant throughout those years. Have you any

18 explanation for this quite significant fall in the percentage of the Serb

19 population in Croatia in 1991 as opposed to the percentage in the other

20 years after the war?

21 A. Well, the easiest explanation for that is that since national

22 identity is matter of choice, each and every one of us can decide that we

23 are French or Russian or Serb or Croat, and no one can say otherwise.

24 Especially, of course, amongst the south Slavs who were ethnically

25 identical, all of them, in other words racially identical, I can only

1 conclude that the -- aside from a long-term economically-induced changes

2 in patterns of residence, which might reduce the number of Serbs in

3 Croatia, the number of people who chose to call themselves Serbs in a

4 census in 1991 could have reflected the rising tension at that time,

5 especially, say, amongst Serbs who had long lived in big Croatian cities

6 and found that it might be safer, more convenient, a good idea,

7 especially, for example, if they were in mixed marriages, to claim to be

8 something other than Serbs. The atmosphere was such, I mean this is why

9 we saw of course the large reduction in the number of people who claimed

10 to be Yugoslavs in 1991, throughout Yugoslavia. It was not a good year in

11 which to be a Yugoslav. In some places it was not a good year to be a

12 Serb, in other places it would have not been a good year to be a Croat.

13 Q. Thank you. I fully agree with your explanation. I would like to

14 go back to something I omitted to ask, so I will go back to that part.

15 And it concerns your expert knowledge about when the new Yugoslavia was

16 formed after 1945 in the then borders it had were the republican borders

17 drawn up according to any special agreement? In other words, how are the

18 so-called republican borders drawn up and did they have any practical

19 significance up to the point when Yugoslavia dissolved?

20 A. In most cases the borders of the new republics of the socialist

21 federation were the historical borders. They were the historical borders

22 of the previous provinces or regions or Kingdoms, whatever they might have

23 been. There were, however, some exceptions and there were of course some

24 big arguments about this. The area that the trial is concerned with was

25 one of those areas where some violations of history were -- the historical

1 borders were agreed, as you well know, I'm sure, the party set up a

2 commission to investigate the area around -- the border of what was going

3 to become the Autonomous Province of Vojvodina and the Croatian state. So

4 there were some places where territorial changes were made, sometimes for

5 economic reason, sometimes because of the way in which roads and railways

6 went, more often because of national minorities or actually demography of

7 the area. But by and large the borders were the historical borders of the

8 pre-existing parts of the Yugoslav state.

9 That was the case even where one might have thought it was rather

10 strange, for example Bosnia-Herzegovina retained its tiny little stretch

11 of Adriatic coastline at Neum which was a tribute to the former

12 relationship between the Ottoman Empire and the republic of Dubrovnik,

13 that was the border there, to separate Dubrovnik as an Ottoman satellite

14 state from Venice to the north. On the other hand, Bosnia-Herzegovina

15 also lost its tiny little exit to the Bay of Kotor and Herceg Novi. But

16 by and large the borders were the historical border.

17 Q. Yes, you mentioned the example of Bosnia in your report. But

18 referring to this historical circumstances, we agree that in the previous

19 Yugoslavia there were no borders and the banovinas were arranged on a

20 quite different basis and it was not possible then to conclude which parts

21 of the territory belonged to Serbia, Croatia or Bosnia-Herzegovina, so can

22 we agree that there were no such borders and that they were first

23 established in Tito's Yugoslavia?

24 A. No. What Tito's Yugoslavia did is it reinstituted the historical

25 borders that King Aleksandar had sought to get rid of. The -- the -- in

1 its first ten years of existence, the Kingdom of Serbs, Croats, and

2 Slovenes had maintained its recognition of the pre-existing historical

3 borders. Aleksandar tried to get rid of them. Effectively, to put it

4 crudely, Tito put them back.

5 Q. Well, I can partly agree with you when talking about some borders

6 of Serbia before the war, and even Bosnia-Herzegovina, which had been

7 annexed by Austria-Hungary within certain borders, but what were the

8 historical borders of Croatia and when they were they established,

9 especially toward the east. For example, was Baranja ever a part of

10 Croatia?

11 A. You're right. Baranja was never a part of Croatia. Baranja was

12 simply a southern province of Hungary. But that doesn't mean that Croatia

13 didn't have otherwise, in terms of the borders of Dalmatia, civil Croatia,

14 and much of Slavonia, there were historical borders. But of course as you

15 well know in much of central and eastern Europe, even historical borders

16 are often argued about.

17 Q. In view of the fact that Croatia had, for many years, first been

18 part of the Hungarian Kingdom and then part of the Austro-Hungarian

19 monarchy, when did it have any historical borders as Croatia, rather than

20 as a province of other countries?

21 A. We could play games about this. Obviously there was once, in the

22 10th and 11th century an independent Kingdom of Croatia. It had borders.

23 But the Croatia that we are nowadays thinking about, a modern Croatia, is

24 really the borders that existed for Croatia inside the Habsburg monarchy.

25 Now, of course Croatia's unique -- I shouldn't say unique. Croatia's

1 unfortunate status of course was to have its -- what most Croats and

2 certainly what most Croat legal scholars consider to be its historic

3 borders violated by the way in which the Habsburg monarchy was set up.

4 With Dalmatia belonging to Vienna, to put it crudely, and Istria belonging

5 to various Italian provinces, and Slavonia and civil Croatia belonging of

6 course to Hungary. But that didn't mean that there was not some

7 recognition that there was a historic Croatian state, even if it was

8 subdivided amongst the various parts of the Habsburg monarchy.

9 One of the reasons why Croats were so completely frustrated in the

10 19th century and one of the reasons why their intellectuals gave birth to

11 the Yugoslav idea was precisely this fragmentation of historical Croatia,

12 as they regard it, the historical triune Kingdom of Dalmatia, Croatia, and

13 Slavonia, by virtue of the vicissitudes of history and the gradual way in

14 which the territory had been -- first of all, lost to the Hungarians and

15 absorbed by the Habsburgs, and then of course conquered in large part by

16 the Turks and then the way in which the tide was pushed back as the

17 Habsburgs pushed the Turks back. So there is this sense of inhabiting a

18 historic part -- historical kingdom in Europe that had been unfairly

19 divided and subdivided and subdivided helped produce both the Yugoslav

20 idea, but it also has to be said, the Croatian variant to fascism.

21 Q. Thank you. You yourself spoke about the fact that the borders of

22 the Croatian Banovina were misused for the purposes of acquiring

23 territory, which objectively did not belong to Croatia. The banovina and

24 the Independent State of Croatia extended as far as Belgrade almost, it

25 extended as far as Zemun, it reached the Sava and Danube rivers. I just

1 wanted us to try to agree that these borders were not evident and fixed

2 and the population of course in those areas was mixed, it was both

3 Croatian and Serbian. Looking at the statistics quoted in your report, we

4 can see, and I hope you will agree, that there are even towns or villages,

5 the population of which was almost 100 per cent Serb, such as Borovo and

6 Trpinje for example. According to the last census, in Borovo there were

7 5.100-and-something Serbs compared to 604 Croats, or for example in

8 Trpinje 1.953 Serbs as opposed to 73 Croats, and of course there were also

9 Croatian places with similar percentages only a few kilometres away.

10 So can we agree that this area was completely mixed and there were

11 other ethnicities there, other nationalities such as Slovaks and

12 Hungarians. But according to what we heard they lived quite well together

13 until these events?

14 A. I agree.

15 Q. I will now move on to the last part of my part of the

16 cross-examination. As I said, my colleagues will deal with other aspects,

17 but they might touch on this because we feel that the situation in Vukovar

18 in 1990 is extremely important, as were the events that occurred there.

19 You mentioned the tensions, the fear that prevailed. Can you

20 expand on this after all these various historical problems we have

21 discussed, was the fear of the Serb population justified as a response to

22 some moves made by the HDZ, Tudjman's party at the time, and I am

23 referring in particular to some things that may not seem so important,

24 such as changes police uniforms, introducing the chequer-board coat of

25 arms which reminded many Serbs of Pavlic's insignia, and some other

1 matters. Can you tell us if the Serb population was afraid? According to

2 you, was that fear justified, whether it justified in being afraid that

3 1941 and the events of that year might be repeated again?

4 A. Fears on the part of Serbs in Tudjman's Croatia were justified.

5 On the one hand they why justified because of the policies which Tudjman

6 had promoted during his election campaign, the changes he made to the

7 Croatian constitution after he won power. These fears were real. And

8 Tudjman incited them. But it also has to be said that in large part these

9 fears were incited by Belgrade. Ever since 1989 the Serbian-controlled

10 media had been working to create fear on the part of Serbs who lived

11 outside Serbia. So we had a wonderfully appropriate kind of synergy, in

12 effect where, as the fears being incited from Belgrade were then further

13 incited by the policies being adopted in Zagreb, and I -- the only thing I

14 say in regard to Eastern Slavonia, is that it took greater effort in that

15 traditionally peaceable part of the world for these fears to come to the

16 surface. It had been much easier in Kninska Krajina and Lika and so forth

17 to inflame Serb fears far earlier. It took a year longer to make Serbs in

18 Eastern Slavonia, Baranja, and Srem as fearful as their brethren in these

19 so-called passive regions had become by the spring of 1990, for example.

20 So it took a year longer in Eastern Slavonia for the same fear to take

21 hold and for then for the fear to be reciprocated on the part of Croats.

22 There was simply a general rising sense of fear and tension amongst both

23 Serbs and Croats. And if I had been writing this report now, as opposed

24 to at the end of 1997, beginning of 1998, I might have paid more

25 attention, because we now know much more, about for example the activities

1 of Tomislav Mercep in the spring of 1991 in the Vukovar area. And we're

2 about of course to learn more about the activities of Branimir Glavas who

3 is about to be indicted. So we now have with the benefit of hindsight,

4 given what this Court has produced in the intervening years, we can now

5 see more exactly about how these fears in both communities were created

6 intentionally by policy-makers or by in the case of Mercep, a freeboater,

7 what I mean by that is an independent operator. So it's easier now to

8 understand how there could have been a breakdown in trust and zajednicki

9 or neighbourly relations.

10 Q. We have had occasion here to hear some explanations of certain

11 incidents, explosions, fires and such like that took place. But less

12 about killings which sowed additional fear. Do you have any information,

13 any new information concerning the activities of Tomislav Mercep, he was

14 active in Vukovar, and Glavas was active in Osijek, which was nearby. Can

15 you give us any new informing about this now, about their activities and

16 to what extent they could have imperilled the previous good relations

17 between Serbs and Croats in that area?

18 A. I cannot give you any authoritative information because what I

19 know is simply based on reading the press. I referred this morning to the

20 heroic journalistic activity of the Feral Tribune, co-editor and

21 correspondent in Osijek, Drago Hedl. Thanks to Drago I think we now know

22 an awful lot more about the Croatian paramilitary or quasi-governmental

23 forces. Similarly a lot of rather heroic journalists in Belgrade writing

24 for Vranje over the years have investigated things as well. So I think it

25 can certainly be said that we now have a broader understanding or the

1 potential for having a broader understanding about the way in which the

2 war came to Eastern Slavonia.

3 But that doesn't alter the fact that there was a great Serbian

4 project at the heart of the government in Belgrade which used such tactics

5 for its own purposes. That's why I -- early this morning I said that I by

6 and large stood by the thrust of my report, even though there were details

7 that, if I were writing it today, I would write differently.

8 Q. Thank you. Yes, I have heard what you said this morning. My

9 colleague will go further into this area. To avoid repetition we have

10 divided the topics among ourselves. I think you will have an opportunity

11 to explain this further. But now, to conclude my part, you are certainly

12 familiar with what the president of Croatia, Tudjman, was doing at the

13 time to get Croatia internationally recognised. Can you confirm that one

14 of the problems he had just before Vukovar was Gospic and the events that

15 had taken place there in 1991. That is, the murders of Serbian civilians

16 for which the Croatian army or paramilitary had been accused of. There

17 wasn't a real Croatian army at the time. Do you remember what problems he

18 had due to that with the international community?

19 A. Yes. He had the same problems that he had had from the very

20 beginning of the Serb village and town rebellion, you know from the Balvan

21 Revolution on, and that is that the Croats were seen by the international

22 media and therefore foreign government as being very, very ham-fisted and

23 brutal in some of the activities they took. And as a consequence

24 something like Gospic renowned very much to the new Tudjman regime

25 although it must be mentioned now that there have been trials of these

1 people. That is, the Croatian government has since been able to come to

2 terms with some of the crimes that were committed at the time.

3 [Defence counsel confer]

4 MR. DOMAZET: [Interpretation].

5 Q. Yes, if I understood you correctly, the international community

6 was aware of this and this was one of the obstacles perhaps at the time

7 for the recognition of Croatia.

8 My next question, and my last question, is would you agree with me

9 that what happened in Vukovar, especially the problem that arose because

10 of the tragedy at Ovcara, had a decisive influence on the international

11 recognition of Croatia and that it actually helped Tudjman?

12 A. That is indeed the concluding point I made in my report. And that

13 was that the combination of the brutality of the siege and fall of

14 Vukovar, and the simultaneous omnipresence of pictures, the bombardment of

15 Dubrovnik, had the effect internationally of making Franjo Tudjman and his

16 regime look very good in comparison to the regime in Belgrade and that

17 from the Croatian international -- from the point of view of the Croatian

18 government's international position, the atrocities that attended the fall

19 of Vukovar as well as the crimes against the world, architectural,

20 historical, environment in Dubrovnik were a propaganda God-send, or a

21 God-send in propaganda terms.

22 Q. Thank you. This also refers to the crime at Ovcara, which is the

23 subject of our interest here, isn't it.

24 A. [No audible response]

25 Thank you, Professor. Thank you for your answers.

1 MR. DOMAZET: [Interpretation] I have completed my part of the

2 cross-examination, Your Honours.

3 JUDGE PARKER: Thank you very much.

4 Mrs. Tapuskovic.

5 MR. DOMAZET: [Interpretation] I apologise, the reply to my last

6 yes, indeed, has not entered the transcript. It's missing from the

7 record. Thank you.

8 MS. TAPUSKOVIC: [Interpretation] Good afternoon, Your Honours.

9 Good afternoon, all.

10 Cross-examination by Ms. Tapuskovic:

11 Q. Mr. Wheeler, I am Mira Tapuskovic I am one of the Defence counsel

12 appearing for Mr. Miroslav Radic.

13 In 1998 you testified before this Tribunal in the Dokmanovic case,

14 and the topic of your testimony was the same report we have before us

15 today; is that correct?

16 A. That is indeed correct.

17 Q. In your report, and during your testimony in the Dokmanovic case,

18 you spoke about constitutional issues and the problems faced by Yugoslavia

19 from 1974 until 1991; is that correct?

20 A. Yes, it is.

21 Q. We will deal with these issues today as you touched on it in the

22 Dokmanovic case, but we shall try to avoid repeating what was said in that

23 case. We will only try to expand a little to encompass issues that are of

24 interest to the Defence teams and could be of interest to Their Honours,

25 especially as we have not had constitutional experts testifying in this

1 case.

2 Would you agree with me that from the time when Yugoslavia was

3 established under this name it had a relatively turbulent constitutional

4 history throughout its existence?

5 A. Yes, it certainly did. As Mr. Domazet said earlier, in citing my

6 views, Yugoslavia needed to make many, many attempts to find a

7 satisfactory constitutional set-up for the multi-national state that it

8 was. And, in fact, from 1921 onwards, there were six constitutions.

9 Q. Thank you. We won't go that far back, so we'll only deal with the

10 constitutional history after World War II. First there was the 1946

11 constitution when the country was called the democratic federative

12 Yugoslavia, is that correct? Please state your reply audibly so that it

13 enters the transcript.

14 A. Yes, indeed of the first constitution, 1946 constitution is a

15 Yugoslav copy of Stalin's 1936 Soviet constitution. The next constitution

16 in 1953 represents the break with Stalin and the beginning of the real

17 Yugoslav experiment in creating a new kind of socialism.

18 Q. At that time the change was changed to Federal People's Republic

19 of Yugoslavia and self-management was introduced?

20 A. It was the beginnings of the experiment of self-management, that

21 didn't come properly until 1963 when the name of course was changed again

22 to the Socijalisticka Federativna Republika Jugoslavija.

23 Q. Would you agree with me that the experiment of introducing

24 self-management on the territory of the former Yugoslavia remained just

25 that, an experiment which did not yield any significant results,

1 especially in the field of the economy?

2 A. In retrospect, we can say that self-management was a delusion. At

3 the time a great many of people found it exciting, potentially full of

4 promise, and a wonderful way of somehow squaring the circle between

5 Soviet-style socialism and western-style capitalism. It -- it in

6 Kardelj's thinking, that's Edvard Kardelj. In his thinking it was a way

7 of reuniting Marxism with Libertarianism. Again, in retrospect, a

8 disaster economically. But it was a rather exciting disaster when people

9 still believed in it. Excuse me, it was a rather exciting experiment when

10 people still believed in it. And a lot of people did, and not just in

11 Yugoslavia. It's very difficult now throughout the former Yugoslavia to

12 cause people to recall how much they used to believe in the old system.

13 Well, there were an awful lot of people in western Europe and the United

14 States who also thought that self-management socialism was potentially a

15 very great thing. It's easy to make fun of it now. In the 1960s and

16 early 1970s, it looked pretty good.

17 Q. I was going to be kinder than you, I was going to call it just an

18 experiment. You have described it in more pejorative terms. After 1963,

19 when a new constitution was passed, and the country was renamed the

20 Socialist Federative Republic of Yugoslavia, until the next constitution

21 of 1974, there was a period with much constitutional activity. There were

22 about 40 amendments made to the constitution. Is that correct?

23 A. You're right.

24 Q. The amendments of 1971 were especially significant. Would you

25 agree with me on that?

1 A. Remind me what the amendments of 1971 were.

2 Q. The amendments of 1971 gave rise to much outrage among professors

3 at the university in Belgrade who spoke about the status of Serbia within

4 the community and as a response to the protest of the professors at the

5 faculty of law in Belgrade, they were stricken off the list of professors,

6 Vojislav Kostunica was one of them, the present day prime minister. Do

7 you remember that?

8 A. Yes, indeed, ma'am.

9 Q. What about those constitutional amendments, do they coincide in

10 terms of chronology with the emergence of the so-called maspok in Croatia

11 in 1971.

12 A. Yes, they coincide with the emergence of the so-called maspok as

13 well as so-called wanton liberalism. In Marko Nikezic, in the Serbian

14 communist party, and in the Slovene Communist party at the same time.

15 These were years of tremendous ferment, excitement, liberalisation,

16 argument, in very, very many spheres. It's not for nothing either that

17 they were highly, highly creative period in terms of literature and cinema

18 in Yugoslavia. This was an exciting period, and lots of things were being

19 argued about all the time. It was a period in which you could argue about

20 things out in public all the time. And people didn't exactly know where

21 the limits were. What would happen if you said, you know, something too

22 extreme. It was -- it was a time of great ferment and eventually of

23 course would give rise to what you're going to come to next, which is the

24 amalgamation of all these amendments that you talked about in the 1974

25 constitution which was meant to somehow, for all time, sum up this long

1 period of social, political argument, cultural effusion and it has to be

2 said also, the complete rebirth of the national question in Yugoslavia.

3 Q. I don't know if you can agree with me on this, there was a period

4 of rest and peace along the ethnic lines, but then when the maspok

5 movement emerged in Croatia in 1971 there was a reawakening so to speak, a

6 re-opening of the national question throughout the former Yugoslavia?

7 A. Yes, I agree. Although it -- it actually hadn't started in

8 Croatia, it really started with Serb alarm already in 1968 over what was

9 happening in Kosovo. Or even before that, you could say that it started

10 in Slovenia, with great arguments over road-building. From -- from 1963

11 onwards more and more of the republican governments started playing the

12 nationalist card. They started trying to enlist popular support when they

13 wanted to fight their battles in Belgrade over who got what in terms of

14 national expenditure, how investment decisions were made, and so playing

15 to the national constituency, playing to the gallery became more and more

16 of a habit of Yugoslav politicians of all national persuasions. But

17 certainly the maspok was the first instance where a republican communist

18 party itself gave way tremendously to an intellectual and popular

19 sentiment, in this case that Croatia had been unfairly treated for many

20 years.

21 Q. You will agree with me, won't you, that Croatia's position at the

22 time was that all of Yugoslavia's financial means were flowing down the

23 Danube on to Belgrade, as it were, and after quite a long time this was a

24 renewed attempt to have the state itself decentralised in a way, wasn't

25 it?

1 A. Yes, indeed.

2 Q. Thank you, sir. Would you agree with me that if we look at all

3 these names, let alone all the later name changes, I mean the names of the

4 country itself, it became Federal Republic of Yugoslavia as of 1992 and

5 now we have the Union of Serbia and Montenegro. Would you agree with me

6 that each of these different names preserved or in some way reflected the

7 socio-political form or structure of the country itself, the Federative

8 Republic of Yugoslavia, the Federative National Republic of Yugoslavia,

9 and the Socialist Republic of Yugoslavia, all these names in some way

10 reflected the make-up of the country itself, didn't they?

11 A. Yes, up until, of course, now. And there will be another change

12 after Sunday.

13 Q. I would not like to venture into that territory now.

14 Let us please go back to the 1974 constitution. That is what the

15 Defence teams here are really interested in. We believe that this

16 constitution provided a framework for what happened later in the former

17 Yugoslavia. The shape of things that were to come as it were. In the

18 Dokmanovic trial you gave evidence, sir, and you said that you had read

19 the 1974 constitution. Do you remember saying that, don't you?

20 A. I certainly remember saying it, but I -- it's not one of my

21 favourite pieces of bedside reading and I have not gone back to read it

22 since. I think the only time I ever did read it was when it was brand new

23 and exciting and we all thought that it was the way ahead. So sometime

24 after 1974.

25 Q. At any rate, you are an expert in Slavic studies, if I may call

1 you that and you follow closely whatever is going on in the former

2 Yugoslavia I'm sure that you will be perfectly able to provide all the

3 answers that we want. You will agree with me that the 1974 constitution

4 was the longest, the most comprehensive or extensive constitution in the

5 world at the time, probably, and it was marked by lousy legalese, to say

6 the least. It was also described as a constitution that introduced a

7 number of new legal institutes and concepts hitherto unknown in the legal

8 practice of any existing countries or systems. Would you agree with me,

9 sir?

10 A. I agree with you wholeheartedly. Not only did it introduce

11 amazing, crazy terminology, but in the post-socialist Yugoslav republics,

12 we are still having to cope with it. Concepts like social property.

13 Created a legal mess we still live with.

14 Q. Would you agree with me that this constitution, which was passed

15 after a series of amendments, its pre-history, so to speak, was quite

16 stormy, in essence reflected a growing discontent among the peoples and

17 ethnic groups and in the republics of the former Yugoslavia. Furthermore,

18 it reflected their desire to have their relations arranged in a more

19 decentralised way than had up to that point been the case. Would you

20 agree with that assessment, sir?

21 A. Yes, indeed.

22 Q. Regardless of the fact, however, that the constitution had a

23 certain objective, and was meant to lead to decentralisation and as a

24 consequence a greater level of democracy throughout Yugoslavia's society,

25 what it did was bring about a much higher degree of separatism throughout

1 the former Yugoslavia. Would you agree with my assessment that at the

2 time the republics in a way became autarkic economic systems that existed

3 side by side within the country.

4 A. That was certainly the trend at the time but the full extent of

5 that, of course, was only going to become apparent after Tito's death.

6 And it wasn't the 1974 constitution itself, the 1974 constitution gave a

7 legal basis for what had already, from the mid-1960s, been a developing

8 trend of the republics regarding themselves in ever more autarkic terms

9 and battles with one another over investment decisions and effectively a

10 share of the federal budget. So the 1974 constitution didn't stop an

11 already apparent trend, and, in fact, it gave it ever greater weight once

12 Tito was no longer on the scene to settle these battles, to make the

13 decisions. What the 1974 constitution was also supposed to do was to

14 recognise the reality, the reality that had developed since the early

15 1960s of the republics becoming evermore independent-minded, evermore

16 selfish, too, it has to be said. But it was supposed to reconcile this

17 reality with the counter-veiling force of a supposedly forever united

18 League of Communists. So the republics would be more a more autonomous,

19 but Tito hoped, after defeating the maspok and getting rid of

20 Nikezic and purging the Slovene party, Tito hoped that the party would

21 always be united and, of course, that the JNA would always be united. So

22 it would be a balance of forces. That, in any case, was Edvard Kardelj's

23 idea.

24 Q. You say that essentially the constitution merely reflected the

25 reality that had been in existence for some time that carried over as it

1 were from the previous system. Would you agree with me that all the new

2 constitution did was provide a legal framework for something that was

3 already there, objectively speaking. The republics were drifting further

4 and further apart and becoming, to all practical intents, self-governing

5 or autarkic republican economies?

6 A. I agree with you essentially, but what the 1974 constitution also

7 did and I'm surprised you haven't mentioned this already, is it gave

8 effectively gave both Vojvodina and Kosovo republican status. Not

9 formally, but factually. Which of course part of Serbian grievances

10 against the 1974 constitution.

11 Q. That is quite correct, I was about to ask you some questions about

12 that at a later stage. But my idea of this cross-examination was go

13 through the economic background first, since I believe this to have been

14 the source of many other phenomena, and this is normally the case in any

15 country or any state. Not just the former Yugoslavia. I will now pursue

16 a number of questions about the economic situation that was created, a

17 situation that created conditions for economic development in what was

18 then Yugoslavia. We seem to have agreed on the fact that the republican

19 economies became autarkic or self-satisfied, if you like. Can we then

20 agree on this: There was a duplication, perhaps a triplication and their

21 industrial and production capacities. The use that these were put to were

22 miserably negligent, the production was negligent. As a final

23 consequence, this led to a sharp rise in poor development of the

24 republican economies which ultimately contributed to impoverishing the

25 country as a whole?

1 A. Yes. And that fact of course was obscured for a good many years

2 by the results of the first oil crisis which meant that money was washing

3 around the international system and every bank in the world was falling

4 over each other, falling over its other -- every bank was falling over

5 other banks to throw money at the -- at Yugoslavia. In other words,

6 loans. The inefficiencies of the system, the duplication of the

7 competition you talked about, the fact that going back -- there was a -- a

8 strange combination of the way in which the socialist mentality that

9 progress is only mentioned in -- is only -- is only -- excuse me, that

10 progress can only be measured in terms of belching smokestacks, there was

11 a unification of that socialist idea with increasing republican patriotism

12 or republican self-interest which meant that every republic felt it had to

13 have its own steel mill, for example. And this was made possible by

14 virtue of the fact that there was lots and lots of money slashing around

15 in the international system which international bankers were very keen to

16 loan to Yugoslavia, creating of course the basis for the financial crisis

17 in the 1980s. In the 1980s, I said.

18 Q. Very well. Let's not go too far in that direction, and go on

19 talking about economics. Let's go back to the constitution. Do you agree

20 with me that the 1974 constitution regulated that the entire judiciary,

21 the entire legislative power in the country should be devolved to the

22 republics and that only vital legislation, vital for the whole country,

23 should be kept at the state level, the army, the banks system, diplomacy,

24 that sort of thing?

25 A. By and large, yes. The federation legislature, the federation

1 parliament, of course, still had effectively the power to enact what one

2 might call framework legislation, to set the standards that the republics

3 were supposed to obey. But by and large what the 1974 constitution did in

4 practical terms if not in theoretical legal terms was to change the

5 federation of Yugoslavia into a Confederation. There is to be no doubt

6 about that.

7 Q. Thank you. I will now move on to a question that you broached a

8 while ago, the question regarding the status of the autonomous provinces

9 within Serbia itself. When did Serbia for the first time in its modern

10 history come to have, as it were, these autonomous provinces? In 1946 in

11 the aftermath of World War II, the autonomous provinces did not exist?

12 A. Their emergence was gradual. In the immediate aftermath of the

13 Second World War, Vojvodina was an autonomous -- I can't -- was it

14 "pokrajina"? I can't remember the term, but immediately after the war

15 Kosovo had a lesser status, it was an autonomous something, and Vojvodina

16 was a higher status. Later on in the 1960s, both Vojvodina and Kosovo

17 acquired the status of autonomous region. Autonomous province, pokrajina.

18 I think Vojvodina was a pokrajina from the start in 1946. It took longer

19 for that same dignity - I can't remember now the exact year - to be

20 awarded to Kosovo-Metohija which originally had a lesser standing than

21 Vojvodina, if only because, of course, there was a rebellion going there,

22 going on there after the Second World War.

23 Q. We've already concluded that the names were changed quite often,

24 the name of the country, the name of its various institution, ministries,

25 secretariats, it wouldn't be a wise idea to foist too many of these upon

1 the Trial Chamber. Vojvodina was a province, but it was no autonomous

2 province, and that's why I asked my question about when these eventually

3 emerged. Can you either confirm for us, sir, that Serbia only, in the

4 former Yugoslavia, had such administrative units as these autonomous

5 provinces, the autonomous province of Vojvodina and the autonomous

6 province of Kosovo and Metohija. Would you agree with me?

7 A. [Previous translation continues] ... only Serbia was further

8 subdivided along these lines. Although of course there had been plenty of

9 ideas that a similar thing should be done to Croatia. During the war

10 itself and immediately afterward there was talk of an autonomous Serbian

11 province in Croatia. And, of course, the final map of the republics was

12 something that was uncertain of until after the war. The fact that there

13 would be republics, if the country would have a republican -- would --

14 Q. Thank you, sir.

15 MS. TAPUSKOVIC: [Interpretation] Just to have this on the record,

16 I asked you about Serbia being the only republic within Yugoslavia that

17 had autonomous provinces. You -- you said that you agreed. Can you just

18 repeat that for me for the sake of the record, please.

19 A. Yes, I agree. Only Serbia had autonomous provinces within its

20 frontiers.

21 Q. Thank you. Let us now please try to explain this phenomenon. You

22 said this yourself a while ago before I actually asked my question. The

23 status of these autonomous provinces that were part of Serbia, and this is

24 something that enemies of the constitution later characterised in the

25 following way: In essence the autonomous provinces, as you yourself

1 stated in the Dokmanovic trial, had nearly all the attributes of a

2 republic. Which means that to all practical intents and purposes, what we

3 had in Yugoslavia were eight separate republics. I'll try to illustrate

4 this by using the example of constitutional amendments. This is probably

5 the best illustration and will be easily comprehended by everyone here,

6 how these amendments were applied in Serbia at the time. You do agree

7 with me that all the republican and provincial constitutions had to be in

8 keeping with the federal constitution of the Socialist Federal Republic

9 of Yugoslavia, right?

10 A. Correct.

11 Q. Under the federal constitution amendments could only be introduced

12 having previously obtained consent from the republican assemblies, in

13 exceptional circumstances also that of the province -- provincial

14 assemblies, the assemblies of the autonomous provinces. Do you remember

15 that provision, sir?

16 A. I'm reading the transcript here, because I lost track of the

17 question.

18 Q. I will repeat my question for you, that's no problem. From my

19 present angle it's very difficult to look at the screen and I should keep

20 pressing away at this button here, to have it on my screen. Not

21 practical, I'm sure you would agree. You say that you have not looked at

22 this constitution for a great many years. Something about the 1974

23 constitution, the federal constitution, do you remember that it envisages

24 amendments to the SFRY constitution only with the previous consent of the

25 republics and [Realtime transcript read in error "in"] autonomous

1 provinces?

2 A. Yes, indeed.

3 Q. Do you remember that the Serbian constitution contains provisions

4 that describe the conditions required for any amendments to the

5 constitution, the constitution can only be changed if changes apply to the

6 whole territory of the republic in question, including the autonomous

7 provinces, and amendments can only be made having previously obtained the

8 consent of the assemblies of the autonomous provinces?

9 A. I can't say that I remember this, but I am sure you are absolutely

10 right. I don't remember it from my reading, I've never read the Serbian

11 constitution, but I'm sure you're right.

12 MS. TAPUSKOVIC: [Interpretation] Your Honours, it's 2.00 -- 3.00,

13 rather. I have just been warned by my colleagues this might be a good

14 time for us to have our afternoon break and then I can resume with my

15 questions after the break.

16 JUDGE PARKER: [Microphone not activated]

17 --- Recess taken at 3.03 p.m.

18 --- On resuming at 3.27 p.m.

19 JUDGE PARKER: Mrs. Tapuskovic.

20 MS. TAPUSKOVIC: [Interpretation] Thank you, Your Honour. I would

21 like to say that on page 88 of the transcript, line 16, when republics and

22 autonomous provinces are mentioned, it should say not "in," but "and."

23 Republics and autonomous provinces. Not "in."

24 Q. Mr. Wheeler, let's go back to where we left off before this short

25 break. If I tell you that according to the republican constitution of the

1 then Socialist Republic of Serbia for its constitution to be amended the

2 consent first had to be gained of the assemblies of the autonomous

3 provinces, would you accept this as correct?

4 A. Of course I would. And that's of course why, in 1999 Milosevic

5 had to get the assemblies of Kosovo and Vojvodina to effectively abolish

6 themselves. To accept, in other words, the unification of Serbia.

7 Q. We will come back to 1999 -- or 1989.

8 A. [Previous translation continues] ... yeah.

9 Q. Now, let's talk about the provincial constitutions. According to

10 the provincial constitution of Vojvodina, and that of Kosovo and Metohija,

11 in order for the constitution to be changed there had to be the consent of

12 two-thirds of the deputies in the assembly. Does this mean, Mr. Wheeler,

13 that if the provincial assemblies decided on constitutional amendments the

14 republican assembly did not even have to be informed, let alone ask for

15 its consent, and if the republican assembly wanted to change the

16 constitution, the provincial assemblies could use their veto power and

17 block the constitutional amendments?

18 A. You're correct.

19 Q. Thank you. As a historian, can you now tell me who could find

20 this kind of constitutional situation congenial, who or what forces could

21 find these kind of relations in the Socialist Federative Republic of

22 Yugoslavia to suit their interests?

23 A. Are you referring exclusively to the anomalies of the

24 constitutional situation in Serbia?

25 Q. Well, let's start from Serbia. I will reformulate my question.

1 This kind of constitutional set-up, could it have suited Serbia's

2 interests?

3 A. That is a complicated question. The reason being is that

4 sometimes states or in this case a republic of a federal state, find it

5 useful or necessary to limit their own powers in order to meet the needs

6 of various minorities of one sort or another. In other words, they

7 self-limit their own sovereignty or the portion of sovereignty that they

8 dispose of. The European Union would, of course, be a very good example

9 of this same phenomenon whereby effectively small minorities in the form

10 of small states can say no, and that can limit the ability of a huge

11 majority of, say, big states to do what they want. So in complicated

12 constitutional set-ups, sometimes a small minority can enjoy a hugely

13 disproportionate amount of effective or legal constitutional power. And

14 sometimes those big states or those big complicated constitutional

15 arrangements find it necessary for their own health and potential

16 longevity to limit their powers in that way by making sure that small

17 parts of the state or small parts of the multi-state system have such

18 extraordinary rights.

19 Q. But regardless of whether incorporating such provisions in the

20 highest law of a country is democratic or non-democratic, in any case it

21 leads to paralysis of the constitutional system. Would you agree with me?

22 A. I would. It is an inherently inefficient way of running a

23 government, in any state system. However, of course, as I said, sometimes

24 it's thought to be a price that has to be paid. Just next door to the

25 south of this country we have another complicated state in the form of

1 Belgium, which pays a high price in terms of the need to constantly

2 renegotiate the basis on which its people's co-exist. Today, of course,

3 under the Dayton constitution in Bosnia-Herzegovina we have a similarly

4 complicated and thereby restrictive and often hugely inefficient system of

5 constitutional order. Inefficient constitutional order.

6 Q. I agree with you. Would you agree with the following: Such

7 phenomena in normal stable constitutional systems, where a constitution is

8 amended once every dozen years or once in a century, but in a country that

9 has gone through so many constitutional changes, and where one of the

10 mottos of further development was that development continues, could such a

11 constitutional provision in that situation have been an obstacle to

12 further progress? Would you agree with that?

13 A. A -- complicated constitutional settlements are very often

14 obstacles to progress, but as I said before, they are sometimes the price

15 you pay for maintaining a complicated and especially multi-national state

16 community. Another good example, of course, would be Switzerland which is

17 changing its constitution all the time through popular referenda. Again,

18 different kinds of state communities find different solutions, some of

19 which are not from the outsider's point of view, efficient, but they can

20 on the other hand be considered to be necessary in order it maintain the

21 essential consensus among the people of a -- of a state or in a

22 multi-state system, among the various individual components of that

23 multi-state system they are necessary to maintain the consensus that keeps

24 the system going. And so, yes, Yugoslavia, the federal Yugoslavia paid a

25 very high price, and Serbia as a devolved unit of that federation, which

1 had devolved provinces, also of course pay the price in terms of

2 efficiency.

3 Q. In any case, none of the other republics within the former

4 Yugoslavia had that problem. Serbia alone had that problem, and it was

5 the most populous republic?

6 A. You are completely correct in formal terms. Although

7 Bosnia-Herzegovina as a multi-national -- you know, completely

8 multi-national republic in the structure of the former Yugoslavia, of

9 course, also had to engage in informal negotiation over changes. In other

10 words, the national complexity of any country, whether it's -- whether it

11 is accommodated by formal arrangements or informal arrangements still has

12 to be accommodated.

13 Q. But you will agree that regardless of its multi-ethnicity, Bosnia

14 and Herzegovina was sovereign on all of its territory, whereas Serbia was

15 sovereign only over a narrow part of Serbia, leaving out the autonomous

16 provinces?

17 A. Correct.

18 Q. Thank you, let's move on. This situation lasted for 15 years in

19 Serbia until March 1989 when constitutional amendments were introduced.

20 Do you agree with that?

21 A. Yes, indeed.

22 Q. At that time this step taken by Serbia where you say that it

23 abolished the autonomous provinces, was commented upon, both

24 internationally and by public opinion within the former Yugoslavia, and

25 you termed it an attack on the 1974 constitution when you testified in the

1 Dokmanovic case. It was seen as Serbian hegemony and restoration of a

2 sort of centralism?

3 A. It was seen in retrospect as potentially having that effect. As

4 it happened, the other republics were, in 1989, perfectly happy to allow

5 for Serbia to re-unify itself and not formally, but in effect abolish the

6 autonomy of the autonomous provinces. But afterwards, as I said in both

7 my testimony in the Dokmanovic case and in my report, the League of

8 Communists of both Slovenia and Croatia and later Bosnia and Macedonia,

9 had cause to regret that they had given way, because they began to fear

10 that what had happened to Kosovo and Metohija on the one hand and

11 Vojvodina on the other could happen one day to them, especially after the

12 change of government in Titograd, in Montenegro.

13 Q. If Serbia enacted its constitutional amendments in 1989, and

14 established sovereignty on the entire territory of Serbia, and in

15 practically the same year Slovenia enacted its own amendments to the

16 Slovenian constitution and then issued -- or rather, Croatia issued a

17 declaration with almost the same legal consequences, would you agree with

18 me that this was a trend among the Yugoslav peoples to establish full

19 control over the territory of their own states as far removed as possible

20 from the central government?

21 A. Yes indeed. Both Slovenia and then later Croatia followed the

22 Serbian example and, in fact, in some ways even want farther by declaring

23 the superiority of their own constitutions to that of the federal

24 constitution. But Serbia had led the way.

25 Q. Yes. Someone had to be the first, and the other republics went

1 down the same road almost at the same time. You will, however, agree with

2 me that Serbia established its authority only on its own territory without

3 nulling the federal constitutional provisions, whereas Slovenia enacted

4 legislation to the effect that the federal constitution and laws could

5 apply on the territory of Slovenia only if they did not run counter to the

6 Slovenian constitution and laws. Is that correct?

7 A. That is correct. Although something like a year and a half had

8 elapsed between the reunification of Serbia in early 1989 and the passage

9 of constitutional amendments in Slovenia, which gave the Slovene

10 constitution primacy over the federal constitution. And, of course, in

11 the meantime the republican government in Titograd had been overthrown by

12 people in favour of Milosevic and that meant that effectively Milosevic

13 had four votes in the federation Presidency and the four votes in the

14 federation Presidency, the effect of that had a profound effect in both

15 Zagreb and Ljubljana, as far as alerting them to this supposed new Serbian

16 threat, this hegemonism that you referred to before.

17 Q. Yes, I mentioned [indiscernible] hegemony because the introduction

18 of amendments to the Serbian constitution was characterised as such. Can

19 you tell me whether you recall how the international public and public

20 opinion within the -- within the then Socialist Federative Republic of

21 Yugoslavia described the Slovenian declaration and the practical annulling

22 of the federal constitution? What was said about this move by the

23 Slovenian authorities? Serbia was termed a hegemonistic country.

24 A. Well, we -- we need to make a distinction between how people

25 abroad regarded this and how it was regarded at home in Yugoslavia. There

1 was a considerable degree of informed opinion abroad as there was amongst

2 those people in Yugoslavia who still believed in Yugoslavia to regard what

3 was going on as a -- and what Milosevic in particular was promoting, a

4 degree of recentralisation. There was a tendency both abroad and in

5 Yugoslavia initially to regard this as a necessary thing. As you were

6 implying before in your questions about the complexity of the

7 constitutional arrangements. It was widely believed as the economy

8 deteriorated after Tito's death, and as the -- and as his successors

9 proved completely and utterly incapable of coping with the rampant

10 inflation and economic decline, it was believed that the constitutional

11 structure was unnecessarily, in fact dysfunctionally standing in the way

12 of any sort of improvement. And this -- this inclination to regard a

13 certain measure of recentralisation in Yugoslavia as a good thing was very

14 wide-spread, especially in western capitals. It was also something that

15 quite a lot of people believed in, in Yugoslavia itself, who threw up

16 their hands often and said, This system is crazy. Won't work. We have to

17 have something new. And there was then a period when there was more

18 wide-spread approval for the -- for the changes which Milosevic was

19 believed to stand for when we think back to the anti-bureaucratic

20 revolution and all that, there was a great deal of indulgence shown to

21 that idea, both abroad and in educated circles throughout Yugoslavia.

22 By the time the Slovenes on the other hand declared the

23 superiority of their constitution over that of the federation, the mood

24 had rather changed, I think, abroad, as well as certainly in the Slovene

25 and -- and Croatian communist parties. Because, remember, they walked out

1 of the last federal party congress in January 1990, and it's -- that's

2 kind of the turning point, it seems to me, where people both inside

3 Yugoslavia, who believed that there was some recentralisation necessary

4 and people outside of Yugoslavia who certainly thought that

5 recentralisation would be a good idea to a certain extent, I think that's

6 the point at which they began to have doubts about whether or not

7 Milosevic was a good thing and whether or not he was the potential agent

8 for positive change that had seemed in some places -- at least an idea you

9 could argue in favour of, say in 1988, 1989. But after January 1990, I

10 think that were there was not any particular inclination to condemn the

11 Slovenes for doing what they did, although an awful lot of the

12 international media shared the view coming out of Belgrade that the

13 Slovenes were being typically and totally self-interested, selfish, and

14 you know, looking after themselves.

15 Q. We'll come back to that later. Let's go back now to the 1974

16 constitution, both the federal and the republican constitution. I assume

17 you recall that in the preamble the 1974 constitution gave the peoples of

18 Yugoslavia, not the republics, but the peoples guarantees for their right

19 to self-determination, including the right to secession. Is that correct?

20 A. That is indeed the case.

21 Q. Was it a rule that those nations which were of south Slav origin

22 were elevated to the status of nations, whereas those who were not of

23 south Slav origin were not constituent nations under the constitution,

24 which was valid. Would you agree with that?

25 A. Yes, I -- I agree fully. The distinction between "narod" and

1 "narodnosti" was a very important one in Yugoslav constitutional practice

2 and it had also profound effects.

3 Q. Can we agree then that the right to secession, that is to

4 self-determination, including secession, was also guaranteed in the

5 republican constitutions of all the republics within the socialist

6 federative republic of Yugoslavia?

7 A. Yes.

8 Q. Thank you. Can you perhaps explain, in scholarly terms, why when

9 Croatia and Slovenia seceded, they used the term "dissociation", rather

10 than using the constitutional terms that is it self-determination,

11 including the right to secession?

12 A. In practical terms the reason why dissociation was used was

13 because even as they declared their independence they weren't necessarily

14 certain, that is the Tudjman or the Kucan regimes, they weren't

15 necessarily certain that it was going to work, that they would be

16 successful. In a sense they were still making a bid for a -- continuing

17 negotiations on a new form of Yugoslavia as an alliance of sovereign

18 republics.

19 To put it in colloquial English terms, they were hedging their

20 bets, they were seeking not to go so far that they would not be able to

21 come back, if somehow they would get a better offer for a new kind of

22 Yugoslavia. And it's for this reason that I put such emphasis in my

23 report that the fact that really marks the final break-up of Yugoslavia is

24 when the fighting starts, when the army moves into Slovenia. Because even

25 those declarations of independence which had been much heralded in the

1 case of Slovenia, rather rushed through in the case of Croatia, were not

2 seen as necessarily final acts, because the -- the endless meetings of the

3 republican leaders had been going on. People found it very difficult to

4 believe that there was life after Yugoslavia, in other words, they --

5 there was profound public scepticism in the early months of 1991 about

6 whether or not this state which had endured for 74 years, would finally

7 break apart. There was a feeling that maybe some last-minute solution

8 would be found. And I think that's why they used the term "dissociation."

9 However, it could be that there was a constitutional legal reason that I

10 haven't thought of.

11 Q. Let's see whether we can unearth that reason. You agreed with me

12 that the constitution of the SFRY envisaged the right to

13 self-determination, including secession and that it guaranteed that right

14 to the nations of Yugoslavia, that this was not a right reserved for the

15 republics.

16 A. Yes, but that's also complicated, as so many things were in

17 Yugoslavia. By virtue of the fact that the republics had come to embody

18 the sovereign rights of the peoples who lived in them. So that meant that

19 Serbia was the sovereign republic of the Serbs, Croatia of the Croats,

20 Slovenia of the Slovenes, Macedonia of the Macedonians, Montenegro of the

21 Montenegrins. It was only in Bosnia-Herzegovina that there was no

22 constituent people. No people of state. Although, of course, in the case

23 of Croatia Serbs and other south Slavs were also constituent peoples

24 before Tudjman changed the constitution. But that didn't alter the fact

25 that in practical terms the Croats were the people of state.

1 Q. You will agree with me that when referenda were held in both

2 Slovenia and Croatia a referendum was held within a republic, and that the

3 right to vote in a referendum belonged to the electorate of that

4 particular republic. Would you agree with me there?

5 A. Of course.

6 Q. At the referenda, both in Croatia and in Slovenia, the population

7 or the electorate voted, and they could be members of different nations or

8 nationalities, but it was not the entire nation that was voting as

9 envisaged by the constitution of the Socialist Federative Republic of

10 Yugoslavia?

11 A. No, but the republics had become -- the republics had become each

12 of them, other than Bosnia-Herzegovina, associated with one particular

13 nation. So obviously in the referendum regarding Croatian independence,

14 Croats in Serbia or Croats in Bosnia and Herzegovina did not vote in that

15 referendum. Similarly -- but on the other hand, everybody in Croatia,

16 whatever their national identity might be, was entitled to vote. The

17 political problem, of course, arose because of Serbs, having had their own

18 referendum prior to the official Croatian referendum in the spring of

19 1991, did not vote. And of course then the same thing would happen in the

20 case of Bosnia-Herzegovina.

21 The fact that there were -- that nations, individual south Slav

22 nations were spread across many republics was a complicating factor to

23 this notion that only nations had the right to national

24 self-determination. But another complicating factor, of course, was that

25 the right to national self-determination was a notional right in any case,

1 because communist legal theory held that that right had been exercised for

2 all time in 1943. Or whenever each -- whenever any one of the avnoj

3 [phoen] bodies, zavnobik [phoen] and its Croatian and Serbian, whatever,

4 whenever those bodies had met in 1943 in the case of Croatia and Bosnia,

5 in 1944 in the case of Macedonia, I can't remember about Montenegro, and,

6 in fact, not until 1946, I think, in the case of Serbia. When that --

7 that had been the one -- once and for all time exercise of national

8 self-determination. So we shouldn't get too hung up or pay too much

9 attention to the language in the 1974 constitution because it was in some

10 ways simply paying tribute to the ancestry of an act of

11 self-determination, which, as far as Communists were concerned, had taken

12 place in the past and would never take place again in future.

13 Q. I accept your explanation. Provided that someone from the

14 remaining republics wishes to exercise their rights, then they would try

15 to find a possibility to have the constitution interpreted in a more

16 liberal way. But when Serbia tried to interpret in a more liberal way its

17 own sovereignty in its territory, this was, in fact, disallowed.

18 I read to you the preamble to the SFRY constitution where it

19 states that the nations of the SFRY enjoy the right of self-determination

20 and secession. What I meant is that Croats or Slovenes residing anywhere

21 in the SFRY territory had the right to vote. However, they didn't have

22 the right to vote. Although, in Croatia, as you rightly pointed out, the

23 Serbs did not take part in the referendum. Do you not believe that this

24 application of the constitutional provision envisages the right to

25 self-determination and secession, or rather the terming of any actions

1 taken as disassociation constituted a violation of the then-existing

2 constitution of the SFRY?

3 A. I'm sure that a very sound constitutional legal argument can be

4 made to the effect that it was a violation of the constitution. But an

5 apologist for what the Croats and the Slovenes did, would equally point

6 out, an apologist would say we'll just following in the tracks of out, an

7 apologist would say we'll just following in the tracks of what Milosevic

8 has already done. But these constitutional arguments are in some senses

9 irrelevant because of course the daily development of political life goes

10 its own way regardless of constitutional niceties and in any case the

11 intervention of foreign states made it necessary to hold these referenda

12 in any case. You know of course I'm referring to Badinter Commission and

13 so forth. So real life sometimes gets in the way of constitutional law.

14 And real life always wins.

15 Q. What you have just stated is the position declared by the European

16 Union at the time. They claimed that the real situation, the situation on

17 the ground, was something that had to be accepted, regardless of the fact

18 that in the formal sense of the word, at least, not all the conditions had

19 been met for international recognition. The standards required at the

20 time by international practice, control of territory, effective

21 authorities, and contact or interaction with other countries and states.

22 Do you agree with me?

23 A. I -- I agree with you, yes. They were making it up as they went

24 along.

25 Q. Thank you.

1 MS. TAPUSKOVIC: [Interpretation] Your Honours, I'll try to finish

2 my cross-examination of the witness by the end of today.

3 Q. I would like to ask you now a couple of questions about certain

4 legal documents that were created in the republics of the SFRY causing

5 commotion, both domestically and internationally. You referred to some of

6 these in the Dokmanovic trial. What I would like to discuss with you is

7 the issue of the memorandum in Serbia back in 1986, sometimes erroneously

8 referred to as the memorandum of the Serbian Academy of Arts and Sciences.

9 You will agree with plea that the Serbian Academy of Arts and Sciences

10 never acknowledged this document as their own, won't you?

11 A. I will indeed agree with you, yes.

12 Q. You will agree with me that this is -- this is a document which

13 saw the light of day in one way or another, it was stolen at one point and

14 subsequently published. You will agree, won't you?

15 A. Yes, I will.

16 Q. Would you agree with me if I said that a certain number of members

17 of the Serbian Academy of Arts and Sciences, if indeed they had authored

18 this document, are not an accurate reflection of Serbia's intelligentsia

19 at the time, as it were?

20 A. The strand of thought represented by the draft memorandum that was

21 stolen and published turned out to be electrifying for many Serbs wherever

22 they were in Yugoslavia. It turned out to be terrifying for many

23 non-Serbs wherever they were in Yugoslavia, and, of course, it was also a

24 matter of considerable shame and regret and disagreement on the part of

25 many Serbs as well. So, yes, the SANU -- the draft SANU -- what's

1 referred to as the SANU memorandum split opinion. A considerable number

2 of people approved of it and found it extremely exciting that the truth

3 was finally will be told about Serbia's diminished position. Other Serb,

4 other Serbs and including intellectuals were alarmed by it. The party, of

5 course, officially, was alarmed by it and denounced it. But it's one of

6 these documents which in retrospect, despite being unofficial, had a

7 profound effect on changing the nature of the political climate and the

8 nature of political debate throughout Yugoslavia.

9 Q. That's all right. Now, I'd like to share with all the other

10 players in this trial what the document was about. Would you agree with

11 me that the author or a group of authors used this document, usually

12 referred to as a memorandum, to present a number of problems and

13 difficulties faced by Serbia at the time or in the immediate past, as well

14 as to predict certain problems that Serbia was likely to be facing in

15 future.

16 A. Yes, they did.

17 Q. Would you agree with me if I put it to you that this document,

18 despite everything, in no way suggested that the break-up of Yugoslavia

19 was Serbia's only solution?

20 A. No, of course it not -- of course it didn't. The most profound

21 effect it had, however, was in alarming non-Serbs about the way in which a

22 significant portion of Serbian intellectual thought was moving and the

23 extent to which these Serbs were profoundly dissatisfied with the sort of

24 Yugoslavia that had been formally ratified in the 1974 constitution, if

25 not well before.

1 The -- the basic thesis which the memorandum attacked, that a weak

2 Serbia was necessary for a strong Yugoslavia, was revealed, of course, by

3 the reactions, both among Serbs and by non-Serbs, to unfortunately be

4 correct.

5 Q. I don't know if you remember these events from personal experience

6 or based on your research, your research in the history of the Balkans. I

7 do hope that you remember even before the memorandum a Slovene magazine

8 called Nova Revija, a Ljubljana-based magazine, published a platform for

9 an independent Slovenia calling for Slovenia's secession from Yugoslavia

10 in no uncertain terms.

11 A. Yes, indeed, I certainly remember that.

12 Q. Do you agree that this document published by this magazine, the

13 independent Slovenia platform, was not branded as an act of outrageous

14 nationalism or being the Bible of Slovene nationalism, whereas on the

15 other hand the memorandum was certainly branded as a mark of Serbian

16 nationalism and as something showing the way for Serbia's future?

17 A. I disagree with you there. The -- the platform in Nova Revija was

18 certainly characterised both in Yugoslavia and abroad as an exercise in

19 Slovene nationalism. The difference between the reactions, mostly

20 critical at the time -- in retrospect, of course, Slovenes in particular

21 would say that it was a heroic start to an ultimately victorious effort to

22 create an independent Slovene republic, the difference of course is that

23 the Slovenes whether decided to stay in or leave Yugoslavia were not in a

24 position to destroy Yugoslavia, that was a privilege reserved to the Serbs

25 as the largest and most wide-spread of the south Slav peoples. So when

1 the Serbs, whose nationalism is always a particularly sensitive matter for

2 non-Serbs, start evidencing the kinds of grievances and discontents and

3 anger that were given evidence of in the so-called SANU memorandum, it's a

4 more serious matter. It's a more serious matter for the future of

5 Yugoslavia. Because the Serbs are the people at the heart of the state,

6 the idea, the people who have the idea that they've built the state, who

7 can most easily and expeditiously destroy the state.

8 Q. I see, and I'm talking about page 105, line 7, that you stated to

9 get today -- restated something that you wrote in your report already,

10 that the Serbian people had the privilege of destroying the common state,

11 of destroying Yugoslavia. This is page 16 -- or rather page 14 of your

12 report. That is the B/C/S reference. I think the English reference is

13 page 16. You, I believe, use these very words?

14 A. Yes.

15 Q. Since this is something you've mentioned already, this is the

16 second last sentence of that paragraph. You say, "That privilege was

17 reserved for the Serbs." Both in your report and in your testimony you

18 have confirmed for us that the Serbian people were the most committed of

19 all to a Yugoslav orientation, that they were the most numerous among

20 those advocating the Yugoslav idea, if you like, because they very keenly

21 felt the need to preserve Yugoslavia. Can you then explain, sir, if Serbs

22 had so much at stake in preserving Yugoslavia, and if all these people

23 declaring themselves as Yugoslavs, having so much at stake in preserving

24 Yugoslavia -- or, rather, could we draw a parallel there? You seem to

25 suggest both in your report and on the record today that the privilege was

1 reserved for the Serbs to destroy Yugoslavia. Can you please elaborate on

2 that a little? For me, this appears to be a contradiction in terms. If

3 on the one hand the Serbs were the ethnic group present in all the other

4 territories of the SFRY of the former Yugoslavia, the most spread out, if

5 you like. In essence Serbs were the most numerous group, the most

6 numerous single group, how then can one possibly arrive at this

7 conclusion, the privilege to destroy Yugoslavia was reserved for the

8 Serbs?

9 A. Well, perhaps I should apologise for quoting myself, but it's a

10 rather good turn of phrase, and by using it I was trying to indicate not

11 something that's a contradiction in terms as you suggested, but rather a

12 paradox. A paradox whereby something that by and large most Serbs for

13 most of the time, and certainly most foreign friends of Yugoslavia had

14 regarded as one of the principal arguments in favour of maintaining a

15 Yugoslav state, and that is that it was a state that allowed all Serbs to

16 live together in one country, that it was paradoxical that those same

17 people who got the most in some ways out of living in Yugoslavia should

18 have been the -- should have been the people who turned on it and

19 initiated a process which led to its violent dissolution. It's a paradox.

20 And a tragic, tragic one.

21 Q. Let us say that we accept this explanation. We don't have that

22 much time left. I would like to deal with something that we have called

23 disassociation or secession in relation to two Yugoslav republics in

24 particular, first Slovenia and then Croatia. This triggered a conflict

25 throughout the former Yugoslavia. You're familiar with the fact that

1 between January 1991 and throughout the summer of 1991, there were all

2 kinds of paramilitary units operating throughout the former Yugoslavia?

3 A. Yes. There certainly were ever more paramilitary units. However,

4 I would take you up on one of the point you made. And that is there was

5 some low-level conflict going on well before Slovenia and Croatia declared

6 their independence. In other words, from the summer of 1990 in Croatia

7 itself there was a localised Serb revolt frequently referred to as the

8 Balvan revolution, the log revolution. So it -- you know before the --

9 Milosevic's -- excuse me. Tudjman's election in itself in April and May

10 1990 was enough to start a process that indeed, as you suggested, became

11 unstoppable after the 25th of June, 1991. But it took it nearly a year

12 for it to happen.

13 Q. I would like to go back to my previous question and we'll come to

14 this eventually as well. I'm sure you know that there were attempts by

15 the federal bodies while the Presidency was still functioning properly and

16 I'm talking about July, 1991, proposals were made to bestow certain powers

17 on the federal bodies to have all the paramilitary units disarmed within a

18 two-week period. This decision was to be signed by the then federal

19 president. This happened to be President Mesic at the time. Are you

20 familiar with the fact that he actually refused to sign that decision, the

21 decision to disarm paramilitary units throughout Yugoslav territory?

22 A. I am aware that that is what has been written. Yes, I am aware of

23 it.

24 Q. Thank you. Can you explain, sir, how it was that paramilitary

25 units in Croatia got their weapons?

1 A. Are we talking about Croatian paramilitary units or Serbian --

2 Q. The Croatian ones.

3 A. Well, they would have achieved -- they would have acquired weapons

4 via a variety of means. Some weapons from the former teritorijalna

5 odbrana, from the Territorial Defence units fell into their arms, although

6 no where near as much as had been the case in Slovenia. Other arms were

7 being bought on a massive scale insofar as they could be smuggled across

8 the borders, especially from Hungary and of course it was also the case

9 throughout Yugoslavia that people who lived in the countryside tended to

10 have arms. There were an awful lot of arms around, hunting rifles in any

11 case. But prodigious efforts were made after the summer of 1990 in

12 Croatia to set up armed militias and then private entrepreneurs, we

13 mentioned Mercep before, were also setting up their own militias. There

14 was on the other hand, no particular problem in acquiring arms for Serbian

15 paramilitary or Territorial Defence unit organisations because, of course,

16 they had easy access to the Territorial Defence armouries and of course

17 were also armed by the Yugoslav People's Army. The Croats had to struggle

18 very hard and -- to get armourments.

19 Q. I deliberately asked you about the Croatian paramilitary units,

20 because I think you will probably agree with me that up to August, 1991,

21 Croatia did not have its own armed forces with the exception of the

22 police, who also somehow had been successful in obtaining weapons. But

23 there were no official armed forces, to put it that way?

24 A. You're right. In the absence of an army, Tudjman had sought very

25 hard to form what one might call sort of Carabinieri-style of police

1 forces, in other words he would try to use certain units of the police --

2 special police units which had a military style to them and of course the

3 police didn't have any shortage of arms. It's just they didn't have the

4 kind of arms that might be necessary to do serious fighting. They

5 obviously had kind of weaponry that policemen have. And that's why the

6 smuggling operation from Hungary, the various efforts to buy weapons in

7 other countries was so important.

8 Q. While answering the questions put to you by my colleague,

9 Mr. Domazet, my learned friend, you talked about the fear that arose. I'm

10 tying to keep my questions short I only have a couple of minutes to

11 complete my cross-examination. The fear felt by the different ethnic

12 groups because of the developments around them that were felt to be out of

13 control. Would you agree with me that in a situation in which the Serbian

14 people in Croatia are -- were seeing memories of Jasenovac being conjured

15 up, they are seeing Croats arm themselves all around them on a massive

16 scale. As you have just pointed out, they are seeing the status of their

17 own people being reduced from that of a constituent group to that of a

18 national minority, they were seeing their own Cyrillic alphabet being

19 abolished and this was always a hallmark of the Serbs as a nation. Would

20 you agree with me that there is a collective memory of the Serbian people

21 dating back to the aftermath of World War II, this collective memory is

22 now slowly being transformed into collective fear. Fear. Fear of history

23 repeating itself?

24 A. I can agree with you almost completely on that. With the one

25 reservation that a tremendous amount of effort was made by the Belgrade

1 media and latterly by the Zagreb media to create just that sort of fear.

2 That fear was there to be awakened, but it was stimulated artificially.

3 Radio-Television Belgrade broadcast, it seemed, pictures from Jasenovac

4 virtually every day in those months. It was a fear which was stoked, but

5 truly there was an awful lot of material there from the past which

6 justified such fear, as well as, of course, the way in which developments

7 were proceeding at the time.

8 As far as the Cyrillic alphabet is concerned, if I might mention

9 parenthetically, one of the amusing things for me during the time of

10 Republika Srpska Krajina was to visit officials in Knin and Okucani and

11 discover what difficulty they were having using the Cyrillic alphabet on

12 their Cyrillic typewriters, having never before thought that that was

13 necessary to do to be a Serb.

14 Q. My last question for you, sir. In June 1991 Slovenia and Croatia

15 declared independence. Their international recognition was delayed for a

16 variety of reasons. It wasn't before the 15th of January that these two

17 states were recognised by the European Union and it wasn't before June

18 1992 that they became members of the UN. Would you agree with me that

19 regardless of the warnings issued by the Secretary General of the UN not

20 to rush the international recognition of Slovenia and Croatia, Germany

21 decided to grant recognition to both Slovenia and Croatia as early as

22 December.

23 A. Yes, that's true. The Germans were the most enthusiastic, or

24 along with the Austrians, the most enthusiastic of those people who

25 thought in Europe at the time that early recognition of Croatia would -

1 Slovenia, of course, was already out of the picture - early recognition of

2 Croatia would somehow help to stop the war. Stop the war in Croatia, but

3 stop the war also from spreading to Bosnia-Herzegovina, that Belgrade

4 would take the recognition as a profoundly important development and be

5 frightened off. I mean, the Germans were wrong, but nonetheless the --

6 that was their -- that was their rationale. And the normal way of

7 negotiating inside the European Community, as it still was about to become

8 union, was this if any one country wanted something badly enough, if

9 something was crucial for its own domestic politics, then by and large you

10 could usually get it. And that's why the Germans were able to convince

11 the other European powers to go along with them although, of course, the

12 Germans announced their recognition a month before the other European

13 Union [sic] countries did it.

14 MS. TAPUSKOVIC: [Interpretation] Your Honours, may I have a go at

15 one last question, and this time I mean it. Thank you very much.

16 Q. Do you agree with me, sir, that by granting international

17 recognition to Slovenia and Croatia that this constituted a violation of

18 the 1975 Helsinki Convention guaranteeing the non-viability in Europe, and

19 that this was, in fact, done to legalise the situation on the ground?

20 MR. WEINER: Objection, Your Honour.

21 JUDGE PARKER: Mr. Weiner.

22 MR. WEINER: This witness is a historian. He is here to testify

23 as to the facts, as to the constitution, basically the existence of a

24 constitution and what was in it, as to the actions or the -- the

25 circumstances which arose as a result of a constitution or a law, or a law

1 that was enacted. This, however, goes to the issue of being a

2 constitutional scholar. This is a legal question, and it is outside his

3 level of expertise.

4 [Trial Chamber confers]

5 JUDGE PARKER: We think, Mr. Weiner, your one objection for the

6 day must succeed.

7 MS. TAPUSKOVIC: [Interpretation] Your Honour, I thank you very

8 much. I have no further questions.

9 JUDGE PARKER: Thank you very much, Ms. Tapuskovic.

10 We will now adjourn and look forward to tomorrow at 9.00 a.m.

11 --- Whereupon the hearing adjourned at 4.35 p.m.,

12 to be reconvened on Friday, the 19th day of May,

13 2006, at 9.00 a.m.

14

15

16

17

18

19

20

21

22

23

24

25