Tribunal Criminal Tribunal for the Former Yugoslavia

Page 25521

 1                          Tuesday, 11 December 2007

 2                          [Open session]

 3                          [The accused entered court]

 4                          [The witness entered court]

 5                          --- Upon commencing at 2.16 p.m.

 6            JUDGE ANTONETTI: [Interpretation] Mr. Registrar, please call the

 7    case.

 8            THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon

 9    everyone in and around the courtroom.  This is case number IT-04-74-T, the

10    Prosecutor versus Prlic et al.  Thank you, Your Honours.

11            JUDGE ANTONETTI: [Interpretation] Very well.  Today we are

12    Tuesday, 11th of December 2007.  I would like to greet all the members of

13    the Prosecution, the Defence teams.  I would like to greet the accused,

14    our witness as well, and all people who are assisting us in and around

15    this courtroom.

16            I will first hand the floor to the registrar for an IC number.

17            THE REGISTRAR:  Thank you, Your Honour.  One of the parties have

18    submitted list of documents to be tendered through Witness BB.  The list

19    submitted by 5D shall be given Exhibit number 745.

20            Thank you, Your Honours.

21            JUDGE ANTONETTI: [Interpretation] Very well.  Thank you.  Tomorrow

22    we will have a witness, we will not give his name because he is benefiting

23    from protective measures, and he will be heard under 92 ter, the

24    Prosecution will have 30 minutes to present the six documents which will

25    be shown to the witness, and the Defence will have, in turn, two hours and

Page 25522

 1    I have to say that the accused Petkovic as well as Praljak will have each

 2    30 minutes and the other Defence teams ten minutes, which brings us

 3    theoretically to a shorter hearing for that witness.  Furthermore, as you

 4    may know, I am sitting in another trial as well and since in this other

 5    trial we are slightly delayed or we were slightly delayed today,

 6    tomorrow's hearing will not begin at 2.15 for this witness as usual but it

 7    will begin at 3.15.

 8            So this is what I wanted to say to the parties so the

 9    cross-examination of this witness is starting immediately.  I do not know

10    what is the order -- oh, I see that Ms. Nozica is on her feet.  So I would

11    like to wish her good afternoon.

12                          WITNESS:  CIRIL RIBICIC [Resumed]

13                          [Witness answered through interpreter]

14            MS. NOZICA: [Interpretation] Good afternoon, Your Honours.  Good

15    afternoon to everybody in the courtroom.

16                          Cross-examination by Ms. Nozica:

17       Q.   Good afternoon, Professor Ribicic.

18            MS. NOZICA: [Interpretation] I have provided my set of documents

19    to everybody.  At this moment, the witness is also being provided with the

20    binder.

21       Q.   Professor Ribicic, I will advise you when to look at the

22    documents, but please focus on my questions.  I have noticed that you

23    don't speak too fast so that should not be a problem.  I just need to tell

24    you that we both speak the same language.  We have to make sure to make

25    short pauses between my questions and your answers.

Page 25523

 1            Professor Ribicic, in your analysis and in your testimony, you

 2    have referred to the decision of the Constitutional Court of

 3    Bosnia-Herzegovina of September 1993, which make null and void the

 4    decision on the establishment of the HZ HB dated 18/11/1991.  I'm talking

 5    about document P 00476.

 6            Mr. Ribicic, are you familiar with the constitutional provisions

 7    of Bosnia and Herzegovina that regulate the constitutional position of the

 8    Constitutional Court and I'm concretely referring to the composition of

 9    the court, the way the judges are appointed, their mandate, the

10    organisation of the court, the competency to start proceedings and the way

11    decisions are made?  We are talking about the Constitution dated 1974

12    based on which the decision in dispute was passed.

13            THE INTERPRETER:  The witness's microphone is not on.

14            THE WITNESS: [Interpretation] Yes.  When I was preparing for my

15    first appearance at the Tribunal, I had a look at the provisions of the

16    Constitution of the Republic of Bosnia and Herzegovina.

17            MS. NOZICA: [Interpretation]

18       Q.   Then you obviously know that at the time when the decision in

19    dispute was passed, the Constitutional Court of Bosnia and Herzegovina had

20    nine judges.  Do you remember that?

21       A.   Yes.

22       Q.   Did you have an occasion to read the book of rules of the

23    Constitutional Court of Bosnia and Herzegovina?

24       A.   At the moment I'm not sure whether at that time I read that.  I'm

25    sure that I have not read it recently.

Page 25524

 1       Q.   In my binder, among the documents, I have that book of rules.  I'm

 2    going to refer to some of its provisions.

 3            MS. NOZICA: [Interpretation] Just for my learned friend and the

 4    honourable Judges I would like to say that this book of rules and

 5    procedure have not been translated.  I'm just going to quote some very

 6    short provisions and before I ask for the admission of this document, I

 7    will provide the Trial Chamber with a translation.

 8       Q.   Mr. Ribicic, you will agree with me that it is absolutely

 9    necessary to establish whenever you examine a decision of the

10    Constitutional Court whether the Constitutional Court complied with the

11    composition of the court that is provided for by the Constitution in order

12    to be able to tell whether a decision, if it had been passed contrary to

13    the regulations, whether such decision may have legal effect, i.e.,

14    whether it can be then stated that this decision was passed contrary to

15    those documents.  Would that be only logical once -- at the moment when

16    you are examining a decision?

17       A.   Yes.  If it comes to the theoretical re-examination, then the

18    answer would be yes.

19       Q.   Did you have an occasion to look at the list [as interpreted] of

20    the Constitutional Court of Bosnia-Herzegovina, number U 46/92, which

21    shows the entire procedure which was followed when this decision was

22    passed?

23       A.   No, I did not have that opportunity.

24       Q.   It is then logical that you did not have an occasion to see the

25    record of the meeting of the Constitutional Court which took place on the

Page 25525

 1    9th of July 1992, at which it was decided to launch the constitutional

 2    procedure to examine the constitutionality and legality of the decision on

 3    the aforementioned general documents.  I have just been informed that

 4    there is a mistake in the transcript on page 4, line 14, it says a list

 5    instead of case.  Thank you.  So you did not have an occasion to see this

 6    record, did you?

 7       A.   No.

 8       Q.   It arises from the decision of the Constitutional Court of

 9    Bosnia-Herzegovina dated 14 September 1993 which makes null and void the

10    decisions on the establishment of the HZ HB dated 18 November 1991 and the

11    other eight decisions and decrees.  It arises from this decision that the

12    Constitutional Court started the procedures at their own initiative.  Do

13    you remember that?

14       A.   Yes, I do remember and I controlled it last night because

15    yesterday I made a mistake and to the Prosecutor's question, who insisted

16    on asking me whether the government had started the proceedings before the

17    Constitutional Court.  I said yes, and that answer was wrong.  The

18    Constitutional Court did not make this decision based on somebody else's

19    request.  It was their own initiative and I apologise for making that

20    mistake.  Only the second decision that referred to the documents of the

21    Republic of Bosnia-Herzegovina was passed after the procedure that was

22    launched at the request of the government of Bosnia and Herzegovina.

23       Q.   Yes, Professor Ribicic, that's why I'm asking you this.  Then we

24    can also confirm something else.  Yesterday you said that in the first

25    decision, we are talking about the decision that was passed on the 14th of

Page 25526

 1    September 1993, the Judges were evoking the opinion of the government

 2    which does not exist in the first decision.  You have made the same

 3    mistake; is that correct?

 4       A.   Yes.  But it was in 1992, not in 1993.

 5       Q.   Very well then.  I would now kindly ask you to look at the minutes

 6    of the meeting of the Constitutional Court which took place on 9 July

 7    1992, the document number is 2D 00592.  It is in my binder, the second

 8    document in my binder.

 9            Mr. Ribicic, here you see that this is an excerpt from the minutes

10    from the Constitutional Court session held on 9 July 1992.  At the end we

11    see who took minutes.  That was Nikolja Grbic [phoen], that may mean

12    nothing to you but this is the name that is stated herein and here is also

13    a list of the Judges who were present during the meeting.

14            JUDGE ANTONETTI: [Interpretation] Just a moment, please.  The

15    French booth was not on.  Are you sleeping?

16            MS. NOZICA: [Interpretation] Thank you.

17       Q.   Five judges attended the meeting and you will agree with me, I

18    believe, there were four Bosniaks, and one Serb.  And Judge Pero Krijan

19    sent his apologies according to this excerpt.  He was the only judge of

20    the Constitutional Court who hailed from the ranks of the Croatian people.

21    This may be pretentious, but can you agree judging by the names and I

22    believe you are also familiar with the names, that you know these people?

23       A.   I know personally just Dr. Kasim Trnka and Mr. Milicevic, but I

24    agree with you.

25       Q.   Thank you very much.  I would kindly ask you to look at the second

Page 25527

 1    page of the minutes, line 2, of this decision, where it says, "These are

 2    the conclusions.  It says that the decision on starting the procedure of

 3    this matter is sent to the government of the Republic of

 4    Bosnia-Herzegovina to the Croatian Democratic Union with a request to

 5    sends to the Court, and this is very important, if they have them the full

 6    texts of the disputed documents as well as their opinions should be sent

 7    immediately.

 8            Professor Ribicic, does it arise from the minutes of the meeting

 9    that the -- at the moment when the Constitutional Court passed this

10    decision to start the proceedings to re-examine the constitutionality of

11    the decision to establish the Croatian Community of Herceg-Bosna and the

12    other eight acts -- documents, did not have the text of the disputed

13    decisions?

14       A.   It may be concluded from this that it did not have at their

15    disposal the texts which were official documents and that it was only

16    familiar with the acts from other sources, from the press, maybe it was in

17    possession of some photocopies or something like that.  As much as I could

18    see today and from the documents that we discussed yesterday, that

19    Mr. Scott was referring to, it seems that the Constitutional Court

20    requested from the Croatian Democratic Union the official documents, the

21    body of those documents, so it's very hard for me to say at this moment

22    how many documents the Constitutional Court had at their disposal.

23       Q.   We will come to that what they actually had, but now I would ask

24    to you look at document 2D 00591 which is the book of rules and procedure

25    of the Constitutional Court --

Page 25528

 1            MR. SCOTT:  Excuse me, Your Honour, I'm sorry to interrupt, I know

 2    time is precious but perhaps it's happening to others as well.  The

 3    translation is going extremely quickly and I think it's difficult to

 4    follow and I assume that's because the speakers are also speaking very,

 5    very quickly.  I think it would assist everyone in the courtroom and

 6    certainly assist me if the translation would be a bit slower, please.

 7    Thanks.

 8            JUDGE TRECHSEL:  That would mean that the original speakers must

 9    be slower because the translation is normally not faster than the

10    translated speakers.

11            MR. SCOTT:  You're absolutely right, Judge Trechsel.  That was the

12    meaning of my request.

13            JUDGE ANTONETTI: [Interpretation] Go ahead, please.

14            MS. NOZICA: [Interpretation] Thank you.

15       Q.   I was convinced that Mr. Ciril Ribicic and myself both speak

16    slowly.  I apologise.  I only have 30 minutes or maybe a minute or so

17    more, and when it comes to such serious questions this is very short;

18    that's why I may be speaking fast.  Sir, you have been able to locate the

19    book of rules.  Can we now look at Article 23 and 33.  They are on the

20    same page.  I apologise, 23, 32 and 33.  Mr. Ribicic, these are the rules

21    that are almost identical to all the constitutional courts in the former

22    Yugoslavia.  It says in Article 23 that the Constitutional Court discusses

23    and decides pursuant to a written submission, and it says, a submission

24    has to contain the following.  Under number 4, the text of the provisions,

25    regulations or other general documents, the constitutionality or legality

Page 25529

 1    of which is being challenged.  Article 32 says as follows:  A proposal for

 2    the re-examination of constitutionality and legality has to contain the

 3    following:  The name of the document or a general document and the

 4    indication of the provision that is in dispute as well as the name and the

 5    number of the Official Gazette in which this document was first published.

 6            Article 33 says that if the document in dispute has never been

 7    published in the Official Gazette, then it has to be provided in a

 8    certified copy in order to be able to become a subject of re-examination.

 9            Mr. Ribicic, this is something that is logical, a decision cannot

10    be passed without a document or its copy?

11       A.   I agree.

12       Q.   Do we agree that there was a discussion about documents that were

13    of great interest for the Croatian people?

14       A.   Yes.  Definitely.  But not only of the Croatian people but all the

15    other peoples and ethnic minorities in Bosnia-Herzegovina.

16       Q.   I agree with you but you will see what my question is going to

17    develop into so I insisted on this point because of that but would you

18    agree with me that if the Constitutional Court discusses matters of

19    national interest of only one of the constituent peoples, as designated by

20    the Constitution, and if there is a judge elected to the Constitutional

21    Court from the ranks of that people, that making a decision in his absence

22    might constitute a violation of the national interests of that people?

23       A.   Well, this question is difficult for me to answer.  A violation or

24    prejudice to the national interests, this is a concept that we will not

25    find in the rules of procedure of the Constitutional Court, so this is not

Page 25530

 1    a violation of the procedure as it is stipulated by the constitution, the

 2    rules of procedure or in any other way so national interest is something

 3    that we could not find there among all the possible violations of the

 4    procedure.

 5       Q.   That's why I'm not referring to the constitution.  I'm not

 6    referring to the rules of procedure here but I'm asking you in the

 7    practice of the work of the Constitutional Court, would this be the usual

 8    practice?  In the Constitutional Court of Bosnia-Herzegovina, there are

 9    such provisions but is this something that should be taken into account

10    when issues of this nature are being discussed?

11       A.   Yes.  All nine judges should be present when any decision is

12    taken, particularly if we are talking about the merits, the substantive

13    provisions.  As for the current provisions, in peacetime the

14    Constitutional Court of Bosnia-Herzegovina passed a decision that was

15    voted for only by Bosniaks, Bosniak judges, and those judges who were

16    appointed by the international community.  I actually was very critical of

17    this practice in an article, in a paper that I wrote.  This pertained to

18    issues that were very important for all three constituent peoples in

19    Bosnia-Herzegovina.

20       Q.   I'm sorry, I'm sorry, I'm sure that you know so much about that

21    but now we have veered off from our topic, the topic of our

22    cross-examination.  I would be delighted to hear all that you could tell

23    us about it but we are running short of time.

24       A.   If you will just allow me --

25       Q.   Please go ahead.

Page 25531

 1       A.   I would say that in peacetime it can happen that all the Judges

 2    representing one nation vote against this decision, yet the decision of

 3    the Constitutional Court remains valid and legally binding.  That's what I

 4    wanted to say.

 5       Q.   Yes.  Definitely.  Because the required number of judges voted for

 6    that decision to be passed in accordance with the rules of procedure?

 7       A.   Yes, the minimum of five votes.

 8       Q.   Yes.  You're quite right.  In this case file, 46/92, there is a

 9    handwritten record of this session so could we please look at 2D 00593?

10    This is the third document in my binder.  Have you found it?

11       A.   Yes.

12       Q.   We can see the date is the 9th of July 1992, again we can see that

13    Ms. Nikolja is again mentioned here as a clerk.  She signed the

14    typewritten minutes.  What I want to point your attention to is the names.

15            JUDGE ANTONETTI: [Interpretation] Ms. Nozica, this document

16    astonishes me.  How were you able to get ahold of this document?  In all

17    jurisdictions, deliberations are secret.  This is a deliberation, in fact.

18    How were you able to get this document?

19            MS. NOZICA: [Interpretation] Your Honour, this is not the record

20    of the debate.  I obtained it when I examined the case file of the

21    Constitutional Court.  The case file that I referred to.  And this is the

22    record that was typewritten later.  This is supposed to be the same record

23    as the one that we have seen a minute ago, that would be Exhibit 2D 00592.

24    It is interesting to note here that we have two records.

25            JUDGE ANTONETTI: [Interpretation] You are not answering my

Page 25532

 1    question.  You are a lawyer.  You are bound by the deontology of lawyers.

 2    My question is very simple:  How were you able to get hold of this

 3    document.  It is a handwritten document of the 9th of July 1992.

 4            MS. NOZICA: [Interpretation] Your Honour, I asked that this case

 5    file be examined for the purpose of the Defence and I received a photocopy

 6    of the record.  Now, as to --

 7            JUDGE ANTONETTI: [Interpretation] Who gave it to you?  Who sent it

 8    to you?

 9            MS. NOZICA: [Interpretation] The secretary of the Constitutional

10    Court for the purpose of the Defence, and if necessary, witnesses may be

11    called to confirm not only this record but other records that I will be

12    showing.

13       Q.   So Mr. Ribicic, we see a handwritten record here that was typed up

14    later but the difference between this one and the previous one --

15            JUDGE ANTONETTI: [Interpretation] Excuse me just a second, please,

16    you are a member of a constitutional council.  Is it usual that what

17    constitutional judges say during their deliberations be communicated to

18    the outside world?

19            THE WITNESS: [Interpretation] No, this is not the practice.  This

20    is the custom, and sometimes there is even regulation or a provision

21    preventing this from being disclosed, and the deliberations are secret

22    before the Constitutional Court, many other courts and international

23    courts and if anyone were to ask for such a record at the Constitutional

24    Court of Slovenia, that person would not be able to obtain that even if

25    there were an interest an intrinsic interest in reading this document.

Page 25533

 1            MS. NOZICA: [Interpretation]

 2       Q.   Mr. Ribicic, I think it is not controversial that we have a legal

 3    interest in that but this is not the record of the deliberations.  This is

 4    the record of the procedure to -- whereby a decision was taken to

 5    re-examine the legality and constitutionality of the decision.  It is

 6    obvious from this that only four judges took part in the debate.  If you

 7    go through the record, you will see that there is nothing about what

 8    Mr. Kasim Trnka contributed.  Can we agree?

 9       A.   Yes.

10       Q.   Could we please look at the intervention by Mr. Latic, that's on

11    page 1 in the Croatian version, and the first page in the English version,

12    let me just read a part of it where he says, "Do they have decisions that

13    we learned of from the press?"  And this proves what you've just told us,

14    that the Constitutional Court instituted proceedings to evaluate the

15    constitutionality on the basis of press articles and reports.  Could we

16    agree on that?

17       A.   Your Honours, it is very difficult for me to participate in this

18    debate because I have to agree with what you've just said, that this is

19    the part of the deliberations of the Court which should remain secret.  So

20    confidential.  So I would not like to say anything about what we are not

21    supposed to know at all.  Especially not about views taken by particular

22    judges.  We have to limit ourselves to what was actually made public, and

23    I personally cannot, and I don't think that we can, discuss this in this

24    manner.  It would be unprofessional, I posit.  It would be unprofessional

25    to discuss what the Judges said during their internal debate, particularly

Page 25534

 1    not on the basis of a handwritten document written by a third party.  I

 2    think that I will have to recuse myself from this debate because I think

 3    that I would engage in unprofessional practice.

 4       Q.   Mr. Ribicic, let us set aside the minutes.  Let me ask you a

 5    hypothetical question.  So here comes the hypothetical question.  If in

 6    this debate [French interpretation] participation of only four out of nine

 7    elected judges to the Constitutional Court of Bosnia-Herzegovina [French

 8    interpretation] accordance with the rules of procedure?

 9            JUDGE ANTONETTI: [Interpretation] Once again the French booth has

10    a problem.  I'm not getting a translation.

11            MS. NOZICA: [Interpretation] Can I begin and then we can see?

12       Q.   So let me repeat, because some things were not interpreted.  My

13    question to you is:  If really only four of the Judges took part in taking

14    this decision, if, and we concluded that the Constitutional Court had nine

15    judges, would then this decision be contrary to the rules of procedure?

16       A.   Yes, definitely.  The Constitutional Court cannot take any

17    decisions if less than five judges are present.

18       Q.   Likewise --

19            JUDGE TRECHSEL:  Ms. Nozica, you were assuming that only four

20    judges were present at that meeting because the desk officers or whoever

21    wrote this does not -- does only refer to pronunciations by four.  If you

22    look at the excerpt from minutes you have five there.  The fact that one

23    judge does not take the floor in deliberations does not mean that he does

24    not participate.  On what do you base the assumption that only four judges

25    participated?

Page 25535

 1            MS. NOZICA: [Interpretation] Your Honour, I am assuming on this on

 2    the difference between the two documents and now, as to whether there were

 3    four of them or five of them, that is why I asked the expert witness to

 4    give me an answer to a hypothetical question about whether a decision

 5    would be valid if only four of the Judges were present.  Now, as to

 6    whether four or five of the Judges were present or not, we will deal that

 7    in our Defence case.  In the 30 minutes that I have allotted for my

 8    cross-examination, I cannot explain to the Judges which judges were

 9    present there, the documents appointing them and so on, to confirm the

10    arguments in my cross-examination.  That is why I'm only asking the expert

11    witness to confirm how decisions are made on the basis of this

12    hypothetical question.

13       Q.   Professor Ribicic, do you agree also that if the Constitutional

14    Court took its decision on the basis of a press article without having

15    access to the full text of the decision, that this would constitute a

16    violation of the rules of procedure of the Constitutional Court?

17       A.   Well, in peacetime, in normal circumstances, there would be nine

18    judges there.  That's for sure.  And they would all have participated and

19    they would have made the decision to launch the proceedings.

20       Q.   Mr. Ribicic, can the constitution be violated in this manner in

21    wartime by saying, no, we don't need nine judges any more, five is enough,

22    or is the constitution which stipulates that nine members of the

23    Constitutional Court should be there and that decisions should be passed

24    by a majority of votes, so is there a time, and is there a decision that

25    is taken contrary to the provisions of the constitution, is it an illegal

Page 25536

 1    decision particularly if we are talking about these two questions?

 2            JUDGE ANTONETTI: [Interpretation] Ms. Nozica, we see very well

 3    what you're getting at but your strategy would have been better received

 4    if you had given the Judges in the English version the translation of the

 5    Statute of the Constitutional Court of Bosnia and Herzegovina which is now

 6    in B/C/S and I don't have it in English.  If I had had it in English, I

 7    would have looked at the Articles very quickly but I cannot make that

 8    verification so I am handicapped in a certain way but independently of

 9    that, you may put your question.  We understood you; we are judges.  We

10    don't need hours and hours to understand what you're getting at so please

11    go ahead and ask the most important question.

12            MS. NOZICA: [Interpretation] I have asked my question.  Let me

13    repeat it for the third time.

14       Q.   Is the decision to institute the proceedings taken by four of the

15    nine judges that were elected to the Court and on the basis of a press

16    article, so not even a copy of the document that is being evaluated, would

17    such a decision be contrary to the Constitution and the rules of procedure

18    binding the Court?

19       A.   If we are talking about --

20            MR. SCOTT:  Excuse me, I apologise for interrupting.  I'm not sure

21    if we changed gears or not.  The question that was just put to the witness

22    was if the decision would institutes the proceedings, not the decision on

23    the merits, I do believe if I'm not mistaken even in the United States

24    Supreme Court, a minority of the Judges can decide which cases to hear and

25    this is what says here if the decision to institute the proceedings taken

Page 25537

 1    by four of the nine judges, so that's not the same thing as a decision on

 2    the merits by how many judges, so I don't know if counsel meant to say

 3    that or -- that's why I stand up for perhaps some clarification would be

 4    appropriate.

 5            MS. NOZICA: [Interpretation] No, no.  It is not necessary.  I said

 6    quite clearly that all the decisions taken by the Constitutional Court and

 7    we can look at Article 46 of the rules of procedure, where it says that

 8    the meetings of the constitutional -- the Constitutional Court shall meet

 9    as necessary and a session of the Constitutional Court can take place if

10    attended by the majority of the Constitutional Court.  So regardless of

11    what the decision is going to be about, a majority of the Judges must be

12    present.

13       Q.   Am I right, Mr. Ribicic?

14            JUDGE TRECHSEL:  I'm sorry, you do not address the point made by

15    Mr. Scott.  Your first question was whether the majority voted for the

16    decision.  Now you are talking about whether the Court can sit when the

17    majority are present.  And those are two different things, and the

18    difference may -- may, be of a decisive importance.

19            MS. NOZICA: [Interpretation] Your Honour, Judge Trechsel, I'm

20    talking about the decision to institute proceedings and not decision on

21    the merits.  We haven't touched upon the decision on the merits.  And let

22    me add one more remark for the witness, or just read one more article of

23    the rules of procedure, Article 52 for the transcript where it says in

24    paragraph 2 decisions are made by a majority of the votes of all the

25    members of the Constitutional Court.

Page 25538

 1       Q.   So this is the only provision on how the vote is to be taken and

 2    there is no distinction between decisions to institute proceedings and

 3    decisions on the merits.  Mr. Ribicic could you please give us your

 4    opinion?

 5       A.   When I got this decision of the Constitutional Court I asked

 6    myself what the situation was like regarding the vote, who was present,

 7    who voted for, who voted against, but I couldn't find the answer to those

 8    questions.  I would like to note that the decision of the Constitutional

 9    Court published in the Official Gazette of the Republic of

10    Bosnia-Herzegovina, that this Tribunal cannot decide whether it was legal

11    or constitutional or not.  We can all have our opinions.  They may be

12    different.  But there is no procedure whereby we could alter the fact that

13    the Constitutional Court reached its decision, this decision was made

14    public and it entered into force.  At least I am not aware of any option

15    that would be available in any European country to declare null and void

16    such a decision in any way by proffering arguments that the Constitutional

17    Court violated its own internal procedure, the rules of procedure.

18       Q.   Mr. Ribicic, I'm perfectly aware of that.  I'm an attorney too.

19    We cannot do that but we can ask ourselves whether at the time the

20    decision was made in a legal manner or not.  We are not now filing a

21    motion to assess the legality.  We just want to find out how this decision

22    was taken, who took it and so on.  So could we please move on?  You didn't

23    give me your answer to my question, but from what you've just told us, I

24    can conclude that you don't want to enter into debate whether this was --

25    this decision was made illegally or not.

Page 25539

 1       A.   I have to agree with you that it is not illegal to take decisions

 2    but five judges must be present and that the majority of the votes is

 3    required for the decision to be taken.  I think that this decision was not

 4    procedural; it was a substantive decision, so a majority of the votes on

 5    the whole panel is required, five votes, in other words.

 6            JUDGE ANTONETTI: [Interpretation] Ms. Nozica, you already used up

 7    approximately 30 minutes.  Did you get some extra time from your

 8    colleagues?

 9            MS. NOZICA: [Interpretation] Yes, Mrs. Alaburic has given me five

10    minutes and I will be able to finish within the next five minutes.

11            JUDGE ANTONETTI: [Interpretation] Very well, please proceed.

12            MS. NOZICA: [Interpretation]

13       Q.   Yesterday, you spoke, when Mr. Scott asked you about the

14    government of Bosnia-Herzegovina and its opinion about this issue in

15    Article on page 8 of this -- of your analysis which is document P 08060,

16    in the Prosecutor's binder, I'm going to read that paragraph very briefly,

17    you said that much before, immediately after the establishment of the HZ

18    HB, the government of Bosnia and Herzegovina, pursuant to an opinion

19    provided by the Ministry of Justice and Administration, concluded that

20    these decisions of the HZ HB were illegitimate and against the law,

21    contrary to the constitution and you quote probably from the newspaper

22    Oslobodjenje and the interests of the state of Bosnia and Herzegovina and

23    all of its people and citizens including obviously the Croatian people in

24    the republic.

25            Can we please look at that conclusion?  I don't know whether you

Page 25540

 1    had ever seen it before.  Let's look at that document which is 2D 00594.

 2    For that, let me ask you this.  Your quote is based on a newspaper

 3    article; am I right?

 4       A.   Yes, you are, and I said it yesterday.

 5       Q.   Thank you very much.  Have you found the document, 2D 00594?  It

 6    is in the Cyrillic but that shouldn't be a problem because you are very

 7    well-versed in both of the alphabets.  This is a record from the 104th

 8    session of the government which was held on 21 November 1991 which is in

 9    keeping with the first sentence of your conclusion in which you say that

10    the government passed the decision far before the constitutional order

11    Constitutional Court confirmed it?

12            JUDGE ANTONETTI: [Interpretation] Please slow down.  The

13    interpreters cannot follow you.

14            MS. NOZICA: [Interpretation]

15       Q.   Could you please look at page 3, which is item 2 of all the things

16    that the government discussed and since there is no need for me to waste

17    any more time on this, I don't want to go on reading the whole text.  I'm

18    just going to say that in the second paragraph, it says, as follows:

19            "Starting from the aforementioned opinions as well as of the

20    proposals and opinions put forth during the debate, the government has

21    established that the decision on the establishment of Croatian Union of

22    Herceg-Bosna, and the conclusion of the regional committee of the HDZ of

23    Bosnian Posavina were not passed as part of the procedure which is

24    envisaged for the establishment of any social or political association,

25    nor do they contain provisions that might have any legal effect as

Page 25541

 1    institutions of the bodies of authorities because they don't contain the

 2    necessary elements."

 3            And finally the last sentence reads as this:

 4            "At the same time the government is of the opinion that these

 5    decisions were not even something that should have been a subject of

 6    discussion or should have been put on the agenda of a session of the

 7    government because this is a political organisation and political action."

 8            This was signed by the president of the government, Mr. Jure

 9    Pelivan.

10            Can we conclude that this part in your expert analysis, when we

11    compare it with the record of the government session is not correct

12    because what you are saying here does not arise from the minutes of the

13    session of the government?

14       A.   In my evaluation, I relied on what I could read in the newspaper

15    Oslobodjenje and if you are trying to prove that this was incorrect we

16    will then have to look at Oslobodjenje.  I have to start by saying that

17    something that was published in the Official Gazette or published

18    elsewhere is true unless proven differently.  The fact is that the

19    government according to this minutes did not discuss this issue but before

20    that they adopted a position which was very clear and clearly warned to

21    the fact that the conclusions on the establishment of the Croatian Union

22    of Herceg-Bosna could not be binding because they were not passed pursuant

23    to the constitution that speaks about the establishment of the Association

24    of Municipalities as a political association.

25       Q.   Mr. Ribicic, please, but the government did not say what you

Page 25542

 1    quoted in your analysis.  I am not trying to prove you incorrect.  I am

 2    just trying to prove that the source was incorrect.  I'm not saying that

 3    your analysis was incorrect.  I'm just saying that you relied on

 4    Oslobodjenje which did not convey the message from the government session.

 5    Can you agree with that?

 6       A.   Yes, I can.  With the caveat that at the session of the

 7    government, a position was taken towards that.  Now, as to why this was

 8    not put on the agenda for debate is an explanation that points to the

 9    inconstitutionality of the establishment of the HZ HB.

10       Q.   I have read that and the Trial Chamber will certainly be able to

11    assess the difference between your analysis and the source that you

12    quoted.

13            MS. NOZICA: [Interpretation] Thank you very much.  I have no

14    further questions because I don't have more time.

15            MR. SCOTT:  Your Honour, if I might before counsel finishes --

16            THE INTERPRETER:  Mr. Scott, microphone, please.

17            MR. SCOTT:  Your Honour, again I have to ask for clarification and

18    counsel could still assist, be allowed enough time to assist all of us,

19    it's not clear to me in looking at this document in comparison to footnote

20    30 of Dr. Ribicic's report, and the doctor may want to refer to that

21    specifically himself, to footnote 30, in which this is described as a

22    decision, an opinion of the Ministry of Justice and Administration on the

23    20th of November, not a decision of the government and not on the 21st of

24    November.  I'm wondering if we are actually talking about the same

25    document or not.  Perhaps counsel can assist us.

Page 25543

 1            JUDGE ANTONETTI: [Interpretation] Yes, Mrs. Nozica?

 2            MS. NOZICA: [Interpretation] [Previous translation continues] ...

 3    don't wish to use Mr. Karnavas's time.  Could you please look page 8 in

 4    Croatian, 10 in English, of the professor's analysis where it says that

 5    before that -- immediately after the establishment of the HZ HB, the

 6    government of the Republic of Bosnia-Herzegovina made a conclusion

 7    pursuant to an opinion.  I was only dealing with the government.  I was

 8    not dealing with any opinions provided or put forth by any of the

 9    ministries.  And the rest I believe my learned friend can do later on in

10    his re-examination.

11            MR. SCOTT:  Well, I think we just clarified we in fact were not

12    talking about the same document.  One was talking about an opinion issued

13    by the government, apparently by the following day by Mr. Jure Pelivan who

14    was I think the Croat Prime Minister at the time as opposed to the opinion

15    of the Ministry of Justice and Administration which was issued the day

16    before.  Therein lies --

17            MR. KARNAVAS:  I --

18            MR. SCOTT:  Excuse me -- therein lies the importance of my

19    question and I'm glad I did stand up and clarify it because we are not

20    talking about -- they were not talking about the same two things, two

21    separate documents, two separate [indiscernible], two different

22    authorities.

23            MR. KARNAVAS:  This is redirect, Your Honour and it's eating up

24    into my cross-examination.

25            JUDGE ANTONETTI: [Interpretation] Go ahead.

Page 25544

 1            MR. KARNAVAS:

 2                          Cross-examination by Mr. Karnavas:

 3       Q.   It sounds to me, Professor that you relied on a newspaper as an

 4    original source in trying to draw a conclusion.  Would that be correct,

 5    just pick up where we just left off?

 6       A.   That is correct but only I would like to add --

 7       Q.   Professor --

 8       A.   No, no, no, no.  I do not --

 9       Q.   You're now in a courtroom.  You will answer my questions yes or

10    no.  I asked you very specifically, you relied on a newspaper as an

11    original source.  The answer is yes.  Thank you.  Now, you and I know the

12    newspapers cannot be relied upon.

13            JUDGE ANTONETTI: [Interpretation] Witness, we are here in a

14    proceeding that is quite different from that applies in your country.

15    Now, when there is cross-examination, the lawyer can sometimes ask a

16    fairly long question and the witness must answer by yes or no.  That is

17    the rule.  Go ahead, Mr. Karnavas.

18            MR. KARNAVAS:  Thank you, Mr. President.  I should note that he

19    was cautioned by Judge May when he testified in Kordic because he tried to

20    do the same thing.

21       Q.   Now, sir, going back to what I said, you and I know that you can't

22    trust what you reed in the newspapers.  Isn't that a fact, because if we

23    look at the newspapers, and we believe the newspapers, your only father

24    has been characterised in many ways, including committing war crimes.

25    Isn't that a fact?  And the point is the newspapers are not reliable as

Page 25545

 1    original sources; isn't that a fact, sir?

 2       A.   Yes, that is a fact and I must say that what I had before me were

 3    the materials from the ministry and what I quoted in my analysis were

 4    materials of the Ministry of Justice which means that I relied on

 5    Oslobodjenje only when it came to --

 6       Q.   The answer is yes.  Your father was accused of slaughtering Croats

 7    after World War II, that's an undisputed fact, that he was accused of that

 8    in the newspapers.  I'm not suggesting that it's true or not.  I don't

 9    know.  But that's my whole point.  That newspapers are not original

10    sources.  Especially if you're trying to do an academic analysis as you

11    were requested by the Prosecution.  Isn't that a fact?

12       A.   That is fact and that's why I emphasised in the footnote that I

13    have been quoting a newspaper.

14       Q.   And nothing prevented you from going to the original sources.

15    Nothing prevented you from going to the original sources.  And let me give

16    you a suggestion.  For instance, calling or getting in a car and driving

17    to Sarajevo and looking at those sources; correct?

18       A.   That is correct.

19       Q.   Okay.  In fact, if we are going to look -- and I'm going to get

20    ahead of myself a little bit, if we look at your analysis and if we look

21    at the introduction to your book which we'll get to, you even discuss in

22    there that in preparation of your analysis, you, in fact, met with certain

23    individuals whom you thought might be helpful in assisting you in

24    providing a constitutional analysis, correct?

25       A.   Correct.

Page 25546

 1       Q.   Okay.  Now, we are going to get there but first I want to clarify

 2    one point with Dr. Prlic.  Let me introduce myself first of all.  I'm

 3    Michael Karnavas and together with is Suzana Tomanovic.  Together we

 4    represent Dr. Jadranko Prlic, in case you haven't noticed by now.  Now,

 5    yesterday, there was a question posed to you by the President with respect

 6    to a reference that you had made in a previous case that -- where my

 7    client's name, Dr. Jadranko Prlic was mentioned and you were asked

 8    concretely yesterday whether you had consulted him as one of the people or

 9    whether he had contacted you in preparation for your report, and you

10    indicated that you could not be certain because after all, seven years had

11    gone by.

12            Since then I spoke with Dr. Jadranko Prlic and this is what he

13    tells me - and perhaps you can assist, if this refreshes your memory -

14    that approximately on August 2005, there was a conference -- in August

15    2000 there was a five-day conference organised by the Open Society Fund

16    for Croatia, it was in apparently you were there and Dr. Prlic was there

17    and you ran into each other.

18            Might that be the encounter that you were thinking of when the

19    question was posed to you by the President?

20       A.   Where was that?

21       Q.   Dubrovnik.

22       A.   Yes.  I believe that what you're saying is correct, that Dr. Tomac

23    organised the meeting which lasted maybe 60 minutes or so, and that at

24    that meeting we discussed my questions that I had put about the

25    preparations of this constitutional legal analysis.

Page 25547

 1       Q.   The point that I'm trying to drive home is that this was in August

 2    2000, you prepared your report in 1999, isn't that a fact?

 3       A.   Yes.

 4       Q.   So you ran into Dr. Prlic after you had prepared your report after

 5    you had consulted those individuals who you thought, who you thought,

 6    might be important, might have vital and objective information to assist

 7    you in your analysis, your constitutional analysis as opposed to a

 8    political or historical analysis, correct?

 9       A.   Yes.

10       Q.   Okay.  Now, and that was after you testified as well?

11       A.   No.  I believe that this is an error in the dates.  This must have

12    been before my -- what I'm saying is that my meeting with Dr. Prlic

13    certainly did not take place after my first appearance here in The Hague.

14       Q.   Okay.  Well, we have a transcript of your appearance, it was on

15    the 15th and 16th of February 2005.  Assuming and we can check this out --

16    2000, I'm sorry, 2000, and assuming the conference took place in August

17    2000, logic would have it that the conference was after your testimony and

18    after, as you indicated, seven years passed so...

19            But in any event I don't want to dwell on this point.

20            All right.  Well, okay.  Very well?

21       A.   Can I insist on my answer?

22       Q.   I was hoping to get one but that's fine, Your Honour, I'll move

23    on.  I don't have time.  Yesterday you were asked a question at the end

24    concerning the book that you wrote and as I understand it the book

25    essentially is nothing more than your expertise that you prepared for the

Page 25548

 1    Kordic case.  Am I correct on that?

 2       A.   No, no.  The book contains other things also.

 3       Q.   Well --

 4       A.   In addition to the testimony, the book also contains some other

 5    documents, also the transcript, there is also an introduction and the

 6    preface of the then-president of the Republic of Bosnia-Herzegovina and

 7    Croatia.

 8       Q.   [Previous translation continues] ... title "Genesis of a Fallacy"

 9    and you made a point of telling us that that was a title chosen by the

10    editors and then you supplemented that by also saying that the cover page

11    was also supplemented and I thought that that was rather odd because and

12    it was almost as if you were reading my mind, because the cover page and

13    I'm showing it to the Court here, it has a cevapi on it and one would

14    think, at least, if they came from Bosnia-Herzegovina, that this was sort

15    of a pejorative way of representing those from Bosnia-Herzegovina, someone

16    coming from say a more sophisticated climate such as you coming from

17    Slovenia.  Might that be perceived as that, as I'm characterising it and

18    might that be the reason why yesterday you volunteered that this was

19    something that was chosen by someone else and not you?

20       A.   Correct.

21       Q.   Okay.

22       A.   You can see from the book who was it who chose that.  The name of

23    the agency is Boze Sacove [phoen].  That's the page that they choose but

24    cevapcici is not the important part of the cover page.  The important part

25    is the way the division of Bosnia-Herzegovina is represented in the centre

Page 25549

 1    of that cover page.

 2            JUDGE TRECHSEL:  I'm sorry, there is a word that you and the

 3    witness have used to describe the cover which apparently was not

 4    understood because you do not find it in the transcript.  Perhaps you

 5    could be so kind as Mr. Karnavas and let us have a close look at the

 6    cover.

 7            MR. KARNAVAS:  I will, I will.

 8            JUDGE TRECHSEL:  Thank you.

 9            MR. KARNAVAS:  I will, Your Honour, and I will assist later.

10            JUDGE TRECHSEL:  Thank you.

11            MR. KARNAVAS:  I assume that everybody in this courtroom had had a

12    cevapi at one time or another.  I highly recommend it.

13       Q.   In any event, I want to look at now at 1D 02036, 2036.  And this

14    is an unofficial translation of the introduction to your book, "Genesis of

15    a Fallacy."  I just wanted to cover some quick points.  You could call

16    this sort of a housekeeping matters for the next -- for the rest of the

17    session before we go into the documents.  Now, if you have it, I just want

18    to point out a couple of things.  On page 3, you talk about how you were

19    asked to do this analysis and then towards the middle of the second

20    paragraph, you say:

21            "I thought that a critique of activities of Herceg-Bosna should be

22    written (in Croatian) by someone who has always been a firm opponent of

23    Greater Serbia unitary aspirations and to whom much credit goes for the

24    independence of his state and development of its amicable relations with

25    neighbouring Croatia."

Page 25550

 1            And then you talk about your reasons for testifying.  My question

 2    is what does being critical or being a firm opponent of Greater Serbia and

 3    its unitary aspirations have anything to do with providing an objective

 4    analysis on a constitutional issue?  Would you agree with me one has

 5    nothing to do with the other?

 6            MR. SCOTT:  Apologies to counsel, Your Honour, we don't have a

 7    copy of the exhibits.

 8            MR. KARNAVAS:  I apologise.  You should have copies of all the

 9    exhibits.  We provided them well in advance.  I apologise to the

10    Prosecution, and I'm glad that -- next time I invite Mr. Scott to

11    interrupt earlier.

12            MR. SCOTT:  Sorry, thank you very much.

13            MR. KARNAVAS:  That's okay.  It's on page 3, counsel, it's on the

14    middle of the page.

15       Q.   On your page it would be 19, sir, this is the original version.

16    But in any event, going back, would you agree with me that being a firm

17    opponent of Greater Serbia, Greater Serbia's unitary aspirations, I

18    suspect what you mean unitary aspiration is one person-one vote, I think

19    that's what you're driving at, but what does that have to do with you as a

20    constitutional expert being -- providing an objective analysis?  Would you

21    agree that one has nothing to do with the other?  It calls for a yes or

22    no.

23       A.   No.

24       Q.   Okay.  Now, if we go on to page 4, page 4 of this document, again,

25    staying with the same document, this is your introduction, you say in the

Page 25551

 1    first paragraph:

 2            "Due to the sensitivity of the matter, I decided that I would not

 3    write a single sentence in my report based merely on a priori viewpoint or

 4    even prejudice and preconception about Herceg-Bosna, but only based on

 5    reliable documents and information gained from authentic witnesses and

 6    experts."

 7            This would be on page 20 of your document, but I'm sure since you

 8    read English -- so it seems to me that at least here, it somewhat

 9    contradicts what we just covered earlier that you were relying on a

10    newspaper and not on an authentic -- or reliable documents.  Would that be

11    true?

12       A.   What I wanted to say was that I took hold of all the legal

13    documents that were passed by the bodies of the Croatian Community of

14    Herceg-Bosna, which means I did not base my analysis on any other --

15       Q.   Okay.

16       A.   -- basis, but I first read everything I could find in those

17    documents and this is exactly the explanation that I provide in my book.

18       Q.   Okay.  Thank you.  And then you go on to say in the very same

19    paragraph that you took a look at, and this is what I found to be rather

20    shocking, the -- though perhaps not as surprising as it should have

21    been -- that as part of your analysis you also looked at the expert report

22    prepared by another OTP expert; correct?

23       A.   Yes, yes.

24       Q.   Dr. Zoran Pajic; correct?

25       A.   Yes.

Page 25552

 1       Q.   Okay.  I take it you read that before you wrote your own

 2    analysis.  In other words, you didn't write your analysis and then say,

 3    okay, now I can look at somebody else's, perhaps compare and contrast.

 4    This was part of what you read and at least it was in your subconscious as

 5    you were analysing the other documents and writing your reports in

 6    preparation to present your report and testify on behalf of the Office of

 7    the Prosecution?

 8       A.   After such a long time, it is very difficult to answer that, but

 9    I'm sure that if I had thought that his analysis took in account

10    everything that should have been taken into account, I would not have made

11    my own analysis, I would have rather told the Prosecutor to use that.  I

12    would not have suggested them to commission a new one.

13       Q.   Sir I'm just merely trying to get you to verify what you've

14    stated.  You can explain on redirect if there is such a -- if we get to

15    that stage.  Now, if we get to the next -- further down, the third

16    paragraph, you say:

17            "I soon found out that the opinion one makes based on the

18    normative material contradicted the testimonies on the activities of

19    Herceg-Bosna.  That is why I decided to consult experts and some

20    politicians with whom I -- with whom -- I spoke based on 18 previous

21    prepared questions."

22            And then go on a little bit.  My first question is those 18

23    prepared questions, we don't have, I assume and the explanation might be

24    because when you moved offices or moved houses, somehow they got lost in

25    the shuffle, correct?

Page 25553

 1       A.   I actually destroyed them.  I actually had them destroyed.

 2       Q.   You had them destroyed?

 3       A.   Yes.

 4       Q.   Okay.

 5       A.   Like everything else that I had and I thought I would never have

 6    to use again.

 7       Q.   Did you destroy them before or after you testified in Kordic?

 8       A.   No, no, that was a year ago, approximately a year ago.

 9       Q.   A year ago, okay.  Now, sir, I don't have it with me and I'm

10    really shocked to hear this because when I got into this case in 2005, I

11    wrote you a letter in English.  You responded in Slovenian.  I asked to

12    you kindly use Croatian which I knew that you knew and I asked you for

13    your notes and back then, you wrote to me - I can dig it up, we'll find

14    it - you told me that the notes got lost during the move.  So if you

15    destroyed the notes as you're telling us now in 2006, which precedes 2007

16    by a year, it stands to follow that at the time that I was asking for the

17    notes, you had the notes and you deliberately destroyed them thereafter,

18    even though you knew by then that you were on the Prosecution list to

19    testify in this particular court, in this particular case.

20       A.   No.  This is far from the truth.  You asked me whether this was

21    after my testimony seven years ago and my answer was yes, that was much

22    later, because of the relocation.  At that time when you wrote to me, I

23    never intended to come here.  You know very well that I allowed the

24    Prosecutor's Office to use my analysis but that I asked them and my

25    condition was that I wouldn't have to come here, and that was a proposal

Page 25554

 1    to the Trial Chamber from the Prosecutor's Office and I was convinced that

 2    that would never happen.

 3       Q.   You answered the question?

 4            MR. KARNAVAS:  And at some point, Your Honour, I will be tendering

 5    that letter just to make sure that there is no confabulation on my part

 6    that I had made the request.

 7       Q.   Now, going to, page 5, you say that -- you go on and then you talk

 8    about:

 9            "Unfortunately," this is on the first paragraph, "some of my

10    legal analysis proved to be more or less suscipient labour when I ran into

11    the secret decisions of a meeting of the HDZ high officials to say one

12    thing publicly and to write in documents and then (that HDZ supports

13    sovereign Bosnia and Herzegovina) and to do a different thing in the

14    secret annexing of Bosnia-Herzegovina to Croatia."

15            And then you said:  "As I found out about such arrangements after

16    I had finished the basic analysis of Herceg-Bosna legislation, it seemed

17    to be at least partially too detailed, limited by normative approach,

18    sometimes even naive."

19            I don't know what that means, but then you go on to say on page 7,

20    on page 7, at the -- first paragraph, middle of the paragraph, you say:

21            "That transcript considerably influenced my final opinion on

22    Herceg-Bosna and its mistakes although I did not forget to say in my

23    expert report that such HDZ policy was never officially accepted as the

24    policy of the Croatian state especially not of the Croatian parliament

25    which assisted on the integrity of Bosnia-Herzegovina, adopted a decision

Page 25555

 1    to recognise it, et cetera."

 2            Now, it would seem to me, sir, that at least in your introduction,

 3    that you placed high premium on that particular transcript and the

 4    transcript that we are referring to is the one of 27 December 1991; is

 5    that correct?

 6       A.   Yes.

 7       Q.   All right.  Now, I take it -- and I should have asked you this

 8    earlier -- yesterday were you asked a question by the Prosecutor about

 9    your testimony in the Kordic case, he asked you whether the -- the

10    transcript seemed to be accurate and you indicated yes.  But I wasn't

11    clear whether you were actually adopting the answers that you had given at

12    that time, both during direct examination and cross-examination.  I

13    suspect the answer to my question is yes, indeed, those answers remain as

14    they were back then, true, accurate and complete; correct?

15       A.   Yes.

16       Q.   And of course, I am sure in coming here you looked at your

17    transcript, read it, to see what you had said, to make sure at least

18    whatever you say here was consistent with what you said back then and also

19    to refresh your memory?

20       A.   Correct.

21       Q.   And I'm sure it must have -- you must have noticed as I had

22    noticed that on the very first question during cross-examination, it was

23    pointed out to you - and I believe that was on the 15th of February 2000,

24    it was pointed out to you that about the chronology of the events and that

25    this particular meeting had occurred as I understand it three -- three

Page 25556

 1    months prior to the referendum question, correct?

 2       A.   Yes.

 3       Q.   Okay.  And for the Court's convenience lest there be any -- any

 4    confusion on that, this can be found on pages -- on page 2.000 -- 14.224

 5    and the exhibit number is 103555 [sic], the exchange actually starts a

 6    little bit earlier but the answer is on -- on line 25 of this particular

 7    page where it says, "You could put it that way."

 8            Now, I'm told that the number should be 10355.  That's the exhibit

 9    number.

10            Now, moving on, I want to go now very quickly to your report and

11    just cover a couple of points quickly before we actually get into the

12    documents.  If we look at the very first page, we look at the footnote at

13    the bottom, you have the -- footnote 1 is an extensive biography, and at

14    the end you talk about in drafting of this -- the very last two

15    paragraphs -- two sentences or maybe it's the last sentence:

16            "In the drafting of his expert opinion on the issue in dispute,

17    he, Ribicic, consulted with several professors from Ljubljana, Zagreb,

18    Sarajevo.  In the preparation of his expert opinion he relied on Narodni

19    List, HZ RHB, 1992 to 1994," that's the Official Gazette, of course, "the

20    testimony of Dr. Pajic, in the proceedings against Blaskic in The Hague,

21    works on the theory of the state and constitutional law primarily from

22    Slovenia, Croatia and Bosnia-Herzegovina and other materials which are

23    cited in the expert opinion.

24            My question now, I guess we'll park here for a second, do you have

25    a list of all the people that you actually consulted with, that you could

Page 25557

 1    provide us at this point in time, or has -- is memory fading with time?

 2       A.   Yes.  Memories fade, so I don't have the list but I mentioned some

 3    of their names in my analysis.

 4       Q.   All right.  I take it did you meet with Mesic, now

 5    President Mesic?  Did you discuss this with him?

 6       A.   No.

 7       Q.   Did you look at his testimony by any chance in the Blaskic case?

 8       A.   No.

 9       Q.   Now, obviously, you talk about at one point because I found this

10    rather interesting I'm going to move ahead a little bit on page -- on page

11    41 of your report, on the first -- the second paragraph, you say:

12            "With respect to its relationship with the Republic of Croatia,

13    the legal enactments of HZ HB do not provide sufficient evidence which

14    would indicate its legal subordination to its neighbouring state.

15    However, a constitutional analysis cannot confine itself to normative

16    regulations but rather it must study the actual state of affairs, the

17    implementation of the normative regulations and the actual relationships

18    in real life."

19            Now help me out here, Professor.  In reading this, this last part

20    especially, it seems to me what you're saying that we cannot just look at

21    the laws and at least do a de jure analysis but you're saying we also need

22    to do a de facto application and in order to do that de facto application

23    we must look at a number of things in order to make sure that we have the

24    application in context.  Would that be correct?  And this would be on page

25    32 of your version, page 41 in the English version.  But am I correct,

Page 25558

 1    sir?

 2       A.   Yes, you are correct, but I have to say that I meant not only the

 3    testimony and so on but also to the documents that I obtained here in

 4    The Hague, in particular the transcript of the HDZ leadership meeting in

 5    Zagreb.

 6       Q.   Okay.  We are going to get to that but I just first before we

 7    break I just want you to help me out here.  Since you were embarking on

 8    not just a de jure but de facto analysis, and forgive me if I say that

 9    this is more of a political, historical analysis than a pure legal expert

10    analysis, that's my opinion, but did you consult with some of the players,

11    as it were?  For instance, did you meet with Mr. Akmadzic?  And that calls

12    for a yes or no.

13       A.   No.

14       Q.   Do you know who Mr. Akmadzic is and what his position is?

15       A.   No.

16       Q.   Okay.  Am I to understand from that that did you not hear of

17    Mr. Akmadzic, you did not hear what his role was?

18       A.   That's correct.

19       Q.   Okay.  All right.  What about Franjo Boras?  Do you know that

20    name?  Did you meet with him, do you know in what capacity he was involved

21    in this process?

22       A.   No.

23       Q.   What about -- [overlapping speakers]

24       A.   Never met with him.

25       Q.   [Previous translation continues] ... I think his name is -- do you

Page 25559

 1    know his name off the top of you head?

 2       A.   No.

 3       Q.   [Previous translation continues]  ... So you don't know him

 4    either?

 5       A.   No.

 6       Q.   Okay.  All right.  What about Andrijic who was with --

 7            JUDGE TRECHSEL:  Excuse me, Mr. Karnavas, who was this, the name

 8    was not recorded?

 9            MR. KARNAVAS:  Jure Pelivan.

10            JUDGE TRECHSEL:  Thank you.

11            MR. KARNAVAS:  These are all prominent figures that are in

12    documents that are already before the Trial Chamber and more will be heard

13    throughout the course of this trial.

14       Q.   Now about what Mr.  Andrijic, I believe his first name was Stjepo,

15    and he was with the Central Bank -- a governor of the Central Bank and the

16    reason I mention this, the reason I mention this is because you make, at

17    some point, some sort of an analysis or some sort of -- you venture an

18    opinion concerning the Croatian dinar and I'm wondering whether you ever

19    went to Sarajevo or found out who the governor of the Central Bank was and

20    to what extent the Central Bank was functioning if it was functioning at

21    all, and what currency was being issued and circulated in

22    Bosnia-Herzegovina in the various places, during the relevant period that

23    were you asked to analyse the constitutionality of these documents?

24       A.   No.  When I said that I consulted people, I referred primarily to

25    professors of constitutional law, experts dealing with issues in

Page 25560

 1    constitutional law.

 2       Q.   Okay.  Well, you wrote to Kljuic, right?

 3       A.   Yes, yes.

 4       Q.   Now, Kljuic --

 5       A.   I wrote to him and he wrote back to me.  I met him for the first

 6    time after my testimony.

 7       Q.   All right.  But you wrote to him, he gave you some answers, you

 8    incorporated his thoughts into your analysis; right?

 9       A.   Well, I thanked all of them for the information they gave me, but

10    I told them that I would decide myself whether I would include any of that

11    in my analysis and that I will not be referring --

12       Q.   [Previous translation continues] ... what I'm trying to show here

13    is not what you relied on.  What I'm trying to show here is that you as an

14    expert supposedly trying to do an objective analysis, given your own

15    admission that you want to look at the de facto situation, it would seem

16    to me that if you wanted to be fair and helpful to the Trial Chamber, as

17    opposed to perhaps assisting one party or the other, you should have

18    looked at or consulted with all these people who were involved.  So let me

19    move on.  Did you meet with anybody, for instance, with the -- within the

20    executive authority that we -- that -- of the documents for instance that

21    you've been referring to and I'll start off with Dr. Jadranko Prlic?  Did

22    you meet with him to ask him any questions or did you send him the 18

23    questions to get his take on what was going on?  Yes or no.

24       A.   Yes.

25       Q.   You did?

Page 25561

 1       A.   Yes.

 2       Q.   And where is the proof of that?

 3       A.   Well, it will be a bit more difficult to find proof but we could

 4    call witnesses, but I did not talk to any people about that after my

 5    testimony here in The Hague.  It was before.

 6       Q.   [Previous translation continues] ... did you -- did you -- did you

 7    speak with, for instance, Mr. Zubak, Kresimir?

 8       A.   No.  I'm not sure.

 9       Q.   Okay.  Do you know what positions he held at the time?

10       A.   Yes.  He held a high position.  I saw that from the documents.

11    That's why I know his name but now I cannot --

12       Q.   [Previous translation continues] ... okay.  What about -- do you

13    know which positions he held at this point in time?  Can you recall which

14    positions he held?

15       A.   No, no, I wouldn't like to guess.

16       Q.   Okay.  What about Zoran Buntic?  Do you know him?  Do you know

17    that name?

18       A.   No.

19       Q.   [Previous translation continues] ... did you ever run across his

20    name?

21       A.   I cannot say whether I did or did not.  I cannot recall what his

22    function may have been.

23       Q.   [Previous translation continues] ...

24       A.   I really didn't think that it was my task to do so.

25       Q.   Okay.  Did you contact anybody say from the Muslim government in

Page 25562

 1    Sarajevo, Silajdzic, Ganic, any of those folks?

 2       A.   No.  I did not.

 3       Q.   Did you consult, for instance, any of the texts or seek out any of

 4    the international players that were involved in the Vance-Owen Peace Plan

 5    or the Owen-Stoltenberg plan or even those who were -- Cutileiro,

 6    Badinter, any of those, did you consult with them at all to get a flavour

 7    of what was happening at the international level?

 8       A.   Well, this can take a long time.  You can ask me another thousand

 9    questions of this kind but I have to say that I quote sources that I used.

10    In this specific case, the answer is no, but let me cut this short by

11    saying that in the footnotes and there are quite a few of them, I list my

12    sources, the sources that I used and those that I didn't use.

13       Q.   Very well.  Now, would you agree with me -- and we will be taking

14    a break and I think we will keep this as the last question for now --

15    would you agree with me that when reading your report, sir, it does not

16    read like a legal expert analysis because if we look at the title of it,

17    it says, "Constitutional legal analysis of the establishment and

18    functioning of the Croatian community Republic of Herceg-Bosna" and where

19    is the book with the cevapi on it?  I don't have it here but -- well, I

20    don't -- I can't read the -- I think it's -- you have a colourful name for

21    that, but again you note that it's -- you say, "Constitutional legal

22    analysis of the establishment and functioning of the Croatian

23    community" -- so would you agree with me that when reading your particular

24    analysis, sir, it does not read like a legal analysis but rather it has a

25    great deal of political analysis and perhaps even historical analysis?

Page 25563

 1    Would you agree with me on that?  And it's a yes or no.

 2       A.   I would like to ask to you be fair to me and my book.  You should

 3    not really speak about it in the way that you have now spoken about it.

 4    And I would like you to allow me to answer.  Anyone who dealt with

 5    constitutional law knows that this is a special branch of the legal

 6    science where it is stressed that in addition to the normative aspects

 7    which are of course the most important for any legal analysis, that

 8    sociological political science and others aspects have to be take into

 9    account.

10            In constitutional law itself, in its very notion, there is an

11    element that makes it different from criminal law, civil law, so I would

12    like to warn you that in the title of my analysis, it says "constitutional

13    legal analysis," not "legal analysis," so you're completely wrong when you

14    say that this is not a constitutional legal analysis.

15       Q.   Well, this begs one last question before we take that break.  If

16    we go to page 44 of your constitutional/legal analysis, and this is what

17    caught me a little bit, you say in the bottom part of the first paragraph,

18    I might have to read a little bit above it, you say, in this paragraph,.

19            "Viewed in the light, the establishment of the HZ HB was no doubt

20    to serve as a defence against aggression, but at the same time, it was an

21    obvious signal that the Croats in Bosnia-Herzegovina would rely on the

22    Republic of Croatia in the agreement with the SDS for that and not for the

23    government -- and not on the government of Bosnia-Herzegovina, Muslims or

24    other proponents of a sovereign and independent Bosnia-Herzegovina."

25            Then you go on to say, this is what caught my attention, "This was

Page 25564

 1    boosted in part by a political segment of the international community

 2    which was fueled by a desire to prevent the emergence of a strong Muslim

 3    state as well as numerous demarcation plans of the international community

 4    which were (erroneously?) interrupted to mean acceptance of the

 5    partitioning of Bosnia-Herzegovina, that, is as the nation envisaging

 6    grouping in its ethnically homogeneous parts."

 7            So my question -- I asked myself how is this a constitutional

 8    legal analysis?  And where do you base this - and it may be true, I know

 9    that there are all sorts of issues out there talking about the clash of

10    civilisations and how we cannot have in Europe a Muslim state, even if

11    it's within a state, and I'm sure you would agree that these were

12    discussions, but how does this fit in and where is the basis and how --

13    what does this have to do with making a pure constitutional legal analysis

14    of the documents?

15            Because the Prosecution has asked you to do -- do that, at least

16    in part, hoping that it would support their thesis of what the HZ HB or HR

17    HB was all about.  Could we have your comment on that because I want to be

18    fair to you.  Then we can take our break.  Please keep it short.  We'll

19    have three minutes before the break.

20       A.   I absolutely can do so.  I first analysed the acts of

21    Herceg-Bosna, and this analysis showed that this was a community that

22    wanted to become an independent body politic or state, but other documents

23    that you quoted and that I used, in particular the minutes, the transcript

24    of the meeting of the HDZ leadership, showed that to a large extent, a

25    political decision was made in advance and that the establishment of

Page 25565

 1    Herceg-Bosna was used in order to create a foundation for the annexation

 2    of that part of Bosnia-Herzegovina to the neighbouring Croatia.  This is

 3    what I meant, and this is what Franjo Tudjman says quite explicitly in

 4    this transcript when he says that if this road is not taken, the

 5    international community will, through Milosevic and Serbia, prevent the

 6    creation of a new Muslim state in that territory.

 7       Q.   Okay.  So it was Tudjman who didn't want the Muslim state.  Is

 8    that what you're trying to tell us?  Or was it the international community

 9    that doesn't want the Muslim state?  Who doesn't want the emergence of a

10    Muslim state in Western Europe?  That's what I'm concerned about.

11       A.   Dr. Tudjman invokes that and he says that the international

12    community, in particular the United States of America, do not want such a

13    state, and that they would try and prevent that through Milosevic, unless

14    Bosnia-Herzegovina were to be divided.

15       Q.   If I may, just one last question, you say Tudjman but here you

16    say, "This was boosted in part by the political segment of the

17    international community which was fueled by a desire to prevent the

18    emergence of a state -- of a strong Muslim state."

19            I don't see a footnote to Tudjman.  What I see here is some

20    speculative analysis or some political analysis, maybe from other texts,

21    but this is the international community, not based on what Tudjman's

22    belief is of the international community but what you believe the

23    international community is trying to prevent.  Isn't that correct?  And

24    it's a yes or no and then we'll take the break.

25       A.   Yes.

Page 25566

 1       Q.   Okay, so that's your analysis, not anybody else's analysis.

 2       A.   Absolutely.  Yes, but it is based --

 3       Q.   Well, I don't see a footnote anywhere.  As an academic, as a

 4    professor you know you have to footnote your sources.  Thank you, we'll

 5    take the break, Your Honour, if that's okay.

 6            JUDGE ANTONETTI: [Interpretation] Very well.  Let's take a

 7    20-minute break.

 8                          --- Recess taken at 3.51 p.m.

 9                          --- On resuming at 4.12 p.m.

10            JUDGE ANTONETTI: [Interpretation] The hearing is resumed.  With

11    regard to the time, I was told that you used up 47 minutes so I imagine

12    that other counsels must have given you time.

13            MR. KARNAVAS:  Well, Mr. President, you did indicate it would be

14    the smart thing for the rest of them to give the time to one person and

15    although we already prearranged that, so I have the remainder of the time

16    and I'm very grateful to my colleagues for providing time to us so we

17    could do sort of a unified cross-examination.  I hope I don't fail them in

18    my attempts to do so.

19            JUDGE ANTONETTI: [Interpretation] Are you talking about all of

20    your colleagues?

21            MR. KARNAVAS:  That's my understanding.

22            JUDGE ANTONETTI: [Interpretation] Very well.  This is a good

23    thing.  You may proceed.

24            MR. KARNAVAS:  I hope my colleagues agree.

25       Q.   Now, sir, if we go -- yesterday, I listened to a question that was

Page 25567

 1    posed by the President, Judge Antonetti, it's on page 32 of yesterday's

 2    transcript when he asked you the following question:

 3            "When the republic of Herceg-Bosna declared its independence and

 4    when it was not recognised as an independent state, since you are an

 5    expert in constitutional matters, can we make it -- can we make a parallel

 6    here with Taiwan, for instance?  And then you indicated, as regards

 7    Herceg-Bosna, once it became a republic of Herceg-Bosna, it defined

 8    itself - Bozidar, please - it defined itself as a state community, not a

 9    state.  It was done at a time when it seemed realistically to expect that

10    it would be a member state or constituent state of some kind of federal or

11    confederal Bosnia-Herzegovina.

12            Now, first of all, I just want to make sure that we are clear on

13    one thing:  The Republic of Herceg-Bosna never declared its independence;

14    isn't that a fact?

15       A.   Yes.

16       Q.   I was struck by that because I assumed Judge Antonetti was baiting

17    you, you know, and you didn't respond.  And isn't it a fact also that it

18    never asked to be recognised internationally as such?

19       A.   That was never requested.

20       Q.   Okay.  All right.  Now, it seemed to me, going back to the -- your

21    analysis, that you said that you placed a great deal of premium on that

22    one particular presidential transcript, and that was of 27 December 1991

23    and at some point you opine that the 30 municipalities that made up of

24    the -- Croatian Community of Herceg-Bosna, this is on page 33 and onwards,

25    you say that they had some sort of aspiration or was based on their

Page 25568

 1    aspiration to reenact or recreate or re-establish the Banovina.  I'm

 2    paraphrasing but is that more or less part of your thesis?  And you ground

 3    that in the fact that the Banovina is mentioned in the preamble of the

 4    constitution of the Republic of Croatia.

 5       A.   No.  I don't think so.  The 30 municipalities covered the

 6    territory that was within the territory of the Banovina Hrvatska, of

 7    course together with the rest of Croatia.

 8       Q.   All right.  But you seem to indicate, and this is on page 35, line

 9    2, this was from your testimony yesterday, Banovina Hrvatska, as it was

10    styled, covered the very same territory of the 30 municipalities that were

11    included in Croatian Community of Herceg-Bosna.  And then when you go

12    back, you go down to lines 9 and 10 of yesterday's -- on the very same

13    page on page 35 you say, "The selection of these 30 municipalities were

14    obviously governed by a certain historical and programmatic

15    considerations."  That's what it says.  I'm just reading from the

16    transcript.  You stand by that, do you not?  Because then you go on, on

17    lines 21, you say, "This is quite important.  I posit because we can see

18    that Banovina Hrvatska is mentioned in the preamble to the Constitution of

19    the Republic of Croatia."  And that you make some allusions to that as

20    well in your analysis but this is from your testimony yesterday and when I

21    look at that it seems to me that what you're saying is that there is some

22    sort of a connection between the 30 municipalities and the Banovina

23    Hrvatska and part of that is in light of the fact that we can find a

24    reference to Banovina Hrvatska in the Croatian -- in the Constitution of

25    the Republic of Croatia.  Would that be correct?

Page 25569

 1       A.   No.  What I said actually, the territory of Banovina Hrvatska is

 2    mentioned but it was much larger than the Croatian Community of

 3    Herceg-Bosna.  So Banovina Hvratska included that territory, the territory

 4    of the 30 municipalities that went on to establish the Croatian Community

 5    of Herceg-Bosna.  So when I asked myself why those 30 municipalities, the

 6    answer could not be that Croats were in the majority there because we know

 7    that they were in some but were not in others, so I tried to find out what

 8    it was, and I came to realise that it corresponded quite closely to the

 9    territory that had been part of Banovina Hvratska in 1939.

10       Q.   Okay.  Very well.  And I'll leave it to the Trial Chamber to

11    decide but it seems to me that this is speculative on your part because

12    you say, "This is quite important, I posit."  It seems to me that you are

13    speculating, drawing some sort of a conclusion, as it were.  Can we go --

14    can I -- do we agree on that?

15       A.   I know that the Prosecution did draw some maps that show that.  I

16    saw those maps.  And there is a high degree of correspondence in terms of

17    territory between the 30 municipalities and the territory that was made

18    part of Banovina Hrvatska.

19       Q.   That's fine but what I'm trying to get you, sir, to confirm or

20    deny is the fact that you look at the reference to the constitution of the

21    Republic of Croatia and you say, Ha, it's in the preamble, therefore,

22    those Herzegovinian Croats and from Central Bosnia, wherever they may be,

23    from Bosnia-Herzegovina, they must have the Banovina in mind, hence the

24    selection of these 30 municipalities.

25       A.   Well, I don't really know -- no, no, please, I want to draw your

Page 25570

 1    attention to the fact that Dr. Tudjman spoke about that quite explicitly

 2    in -- at that meeting.  It is written down in the transcript --

 3       Q.   Very well.

 4       A.   -- why it would be useful for that part to be joined to Croatia.

 5       Q.   All right.  Very well.  Just for the record, Your Honours, we have

 6    1D 02039.  This is the document, unofficial translation of the

 7    Constitution of the Republic of Croatia.  I don't know if it's -- it's the

 8    preamble, I'm sorry, the preamble to the Constitution of the Republic of

 9    Croatia and it does indeed make reference to -- at the very -- if you look

10    at the page 1, if you look at the page -- if you look at page 1, and you

11    see that there are these bullet points, the second-to-last, it says, "In

12    the establishment of the Banovina Croatia in 1939, by which Croatian state

13    identify [sic] was restored in the Kingdom of Yugoslavia," and then it

14    goes on and talks about the next phase because if we look from the

15    beginning and start from the 7th century onwards.  And would it be fair to

16    say, sir, that this preamble, the way it's at least laid out, lays out the

17    sort of historical progression of the Republic of Croatia in its various

18    phases throughout the centuries?

19       A.   Yes, that is my opinion.

20       Q.   Very well.  Now, I want to -- since we are talking about the

21    Banovina perhaps we can look at a map and go through some documents

22    because then -- and please tell us whether this confirms or denies what

23    you were able to see from the Prosecution.  And incidentally before I ask

24    you a single question, may I ask do you have a list of the documents that

25    were provided to you by the Prosecution?  And I assumed when they did

Page 25571

 1    provide the documents to you, along with the six or seven questions, as

 2    you've indicated yesterday that you were asked to sort of answer, did you

 3    also ask for any other documents in the process?  So, number 1, do you

 4    have the list of documents that were provided to you?  2, did you in

 5    addition ask for any other documents?

 6       A.   I don't have that list in front of me.  I did see it at one point.

 7    And I did ask for some other documents to be sought, documents that

 8    pertained to the decisions of the Constitutional Court.

 9       Q.   Now since were you also interested in context and you wanted to

10    see how things were done in practice, I assumed you also looked at other

11    places as well to see perhaps what was happening in Tuzla, Jablanica,

12    other places in Bosnia-Herzegovina, to see what was going on, perhaps make

13    a compare and contrast.  And it's a yes or no.

14       A.   Yes.

15       Q.   All right.  All right.  Now if we can go through --?

16            MR. KARNAVAS:  The first document, Your Honours, is 1D 01736.  We

17    have a map -- we have a map.  It's on the ELMO, Your Honours, and you

18    might see on the -- on the -- I guess it would be the left side, you'll

19    see the colours and it's sort of a -- it's -- it's low-budget, but I think

20    it serves the purpose and I'm going to go chronologically.  If we look at

21    1D 01736, this particular document, this is a decision and we don't

22    have -- I must confess to the Trial Chamber, we don't have an original

23    decision that establishes the Bosanska Posavina as it relates over here,

24    but here we see that Orasje municipality shall join the Croatian Community

25    in Bosanska Posavina in addition to Orasje Municipality which includes

Page 25572

 1    seven other municipalities, Bosanski Brod, Deventa, Odzak, Modrica,

 2    Bosanski Samac, Gradacac, whatever -- and Brcko.  We can all see it.  I

 3    apologise to the interpreters and everyone about my pronunciation.

 4            Now, were you aware of this particular decision and were you aware

 5    that at least the Bosanska Posavina was established prior to the Croatian

 6    Community of Herceg-Bosna?

 7       A.   Yes.  But I did not focus on the position and the creation and the

 8    operation of that community.

 9       Q.   Would it surprise you that this was -- this was formed in June

10    1991?  The Bosanska Posavina?  Were you aware of that?

11       A.   I say that I did not really deal with that so I don't know about

12    the dates.

13       Q.   Okay.  Well, did you -- were you aware that there was such a thing

14    as a Bosanska Posavina?

15       A.   Yes.

16       Q.   All right.  And were you aware that these municipalities -- were

17    you aware of this particular decision?  Was that provided to you by the

18    Office of the Prosecution?

19       A.   You think the decision on the expansion to include some other

20    municipalities?

21       Q.   Well, yes.  Yes.  This one.

22       A.   Yes, I was not aware of that.

23       Q.   Okay.  Look at the next document.  This is 81, I guess it's --

24    P 00081.  This is dated 18 November 1991.  This is the first decision --

25    if we could leave -- if we could just leave it on the ELMO, please, the

Page 25573

 1    gentleman does have the document and if we could look at this document and

 2    also in conjunction with this, we look at P 0078, these are the two

 3    decisions in chronological order but essentially if we look at the map

 4    that's on the ELMO, we see this light green area or yellow that covers

 5    those particular municipalities that are mentioned in Articles -- Article

 6    2 of document 81, and 78, correct?

 7       A.   Yes.

 8       Q.   Then if we look at document 1D 01924, if you have it, and if we

 9    look on a map, you see there is sort of an orange colour, it covers -- it

10    says here in the decision, dated 1 June 1992, "The HVO, Croatian Defence

11    Council of the municipalities of Zepce, Zavidovici, Maglaj and Teslic

12    based in Zepce are hereby entrusted -- are hereby entrusted with the

13    defence of Maglaj municipality."

14            Now, Maglaj municipality was I understand it was a predominantly

15    Muslim municipality.  Am I right on that?  Or don't you know?

16       A.   Yes.  I think it is sure that there was no Croatian majority

17    there, in light of the location of this municipality.

18       Q.   Right.  And we can see that on the map.  We can see those areas.

19    And if we were to go on for instance if we could now go off the ELMO and

20    on to e-court perhaps we can look and just focus just for a second on the

21    presidents of the municipal Crisis Staff, perhaps you could tell us if you

22    notice whether the names may reveal the national origin of these

23    individuals, recognising that one cannot always rely on the names.

24       A.   Yes.

25       Q.   Would you agree with me that we see some Muslim names on this, now

Page 25574

 1    Bosniak?

 2       A.   Yes, that's correct.

 3       Q.   All right.  If we go on to the next document, it's 1D 01261, and

 4    go back to the map, and go back to the map, this is from the municipality

 5    of Olovo.  It's dated September 14, 1992 and it's a -- it's a green, as

 6    opposed to the yellow, I trust everybody can see it.  I apologise for not

 7    having one for the Bench.  But we can see that.  And it says here that

 8    these are excerpts from the minutes on September 14, 1992, the Croatian

 9    Defence Council of the municipality of Olovo was constituted by Croats

10    living in this municipality and so we can move on to the next document.

11    Were you aware of this document by the way, the document that I showed you

12    before?

13       A.   No.

14       Q.   Okay.  Next document is P 00741, and this deals with - you will

15    notice, Your Honours, that we I guess we are running out of colours at

16    this point and we tried to you'll see some lines on it, it's red with some

17    lines on it - excerpts from the record of the Second General Assembly of

18    the BH HDZ held on November 14, 1992 in Mostar, and I draw everyone's

19    attention, including yours, sir, to page 5 at least in the English

20    version, page 5 in the English version.  Oh, I'm sorry, I misspoke as far

21    as the colours go, it's the green or the yellow, it's the yellow with the

22    lines on it.  We can see because we are going to cover various aspects in

23    this document, on page 5, at the very last paragraph, number 7:

24            "Jozo Ilic, Zavidovici, supported the initiative to form Croatian

25    municipalities outside the HZ Herceg-Bosna as he currently lives and works

Page 25575

 1    in Zenica.  He suggested that the Croats of Zenica form a Croatian

 2    municipality which would join the HZ Herceg-Bosna."

 3            Then if we go on to the following page, number 6, and we look at

 4    paragraph 10, Your Honours, and sir, "Tomislav" - I need some help -

 5    "Oberdan [phoen], Sarajevo," and at the very last line it says Sarajevo --

 6    "HVO in Sarajevo be officially empowered to work and operate."  And from

 7    this document it would appear that you have HVO in Sarajevo; correct?

 8       A.   Yes.

 9       Q.   Okay.  Now, if you look at number -- number 14, but before we go

10    to number 14, we can look at number 13 just to -- because we mentioned

11    this name earlier, we see Mile Akmadzic, the Prime Minister of BH, Prime

12    Minister -- I'm sorry, the -- so he would be the president of the

13    government I'm told in the original language, they have it here as Prime

14    Minister of Bosnia-Herzegovina.  This is -- do you recognise this name now

15    that you see it in writing, Mile Akmadzic?

16       A.   Yes.

17       Q.   Okay.  That's why I asked you whether you had contacted him

18    because he had been in -- involved in the activities.

19            Now if we look at paragraph number 14:  "Franjo Bratic, Usora,

20    promised to unite Usora, a new Croatian municipality with the HZ

21    Herceg-Bosna."

22            And if we look at the -- at the map, you can see that it's again

23    it's -- it's Usora.  Do you know where that is, sir?  I'm told that it's

24    right by Doboj.  You've heard of Doboj?

25       A.   Yes.

Page 25576

 1       Q.   Okay.  And we can see it over there and we have pencilled it in I

 2    should note for the Trial Chamber that this is a rough approximation based

 3    on Ms. Tomanovic's understanding of the area since she hails from there.

 4    Okay, I think --

 5            JUDGE TRECHSEL:  Mr. Karnavas, excuse me, I'm a bit lost, are you

 6    quoting and referring to P 00741?

 7            MR. KARNAVAS:  Yes, yes.

 8            JUDGE TRECHSEL:  Because the document here.

 9            MR. KARNAVAS:  It has several paragraphs, I was on page 6.

10            JUDGE TRECHSEL:  Because we are a bit switching from pages to

11    numbers.  I'm sorry.

12            MR. KARNAVAS:  I'm terribly -- I apologise.  If I could just recap

13    very quickly I first referred to paragraph number 7 on page 5.

14            JUDGE TRECHSEL:  It's okay.  I've got it.

15            MR. KARNAVAS:  Page 6, it was 10 and 14.  Okay, again my

16    apologies.

17       Q.   If we could go on -- were you aware of this particular -- this

18    particular document, was this shown to you by any chance --

19       A.   No, no.

20       Q.   Okay.  All right.  I trust the fact that it's a P number has not

21    been lost on the Trial Chamber's attention.

22            Now, the next document is 1D 01981, these are minutes from a joint

23    meeting of the HVO --

24            JUDGE ANTONETTI: [Interpretation] One quick question to the

25    witness.  The document that Mr. Karnavas just evoked with the various

Page 25577

 1    names and dates, 13th, 8th, 10th, it's an important document, right?  Had

 2    you not seen it when you were preparing yourself?

 3            THE WITNESS: [Interpretation] Is this the document that I have on

 4    the screen before me?

 5            JUDGE ANTONETTI: [Interpretation] 741.  Did you not read it

 6    before?

 7            THE WITNESS: [Interpretation] No.

 8            JUDGE ANTONETTI: [Interpretation] Very well.

 9            MR. SCOTT:  Since the comment was directed at the Prosecution by

10    Mr. Karnavas which I don't think is necessary.  I don't think we need

11    counsel's comment during the questioning of witnesses, but since it was

12    done, and since the question has been asked, there would be no reason to

13    show these documents to the witness because none of these other areas are

14    part of the Croatian Community of Herceg-Bosna.  They are completely

15    separate items, have nothing to do with the Croatian Community of

16    Herceg-Bosna which is the question that this expert was asked to address,

17    specifically the operation of the Croatian Community of Herceg-Bosna.  So

18    while this is an interesting geography lesson this afternoon, it has

19    nothing to do with the Croatian Community of Herceg-Bosna.

20            MR. KARNAVAS:  Your Honour, it specifically goes to what the

21    gentleman has opined and I don't want to get into a lengthy debate.  In

22    any event my reference to the Prosecution, I understand I touched a nerve

23    but the point was this, if you're asking -- if you're asking an expert to

24    do an analysis and you have all sorts of documents that might assist the

25    expert - since he is the expert; otherwise you would do it yourself - why

Page 25578

 1    not give him what documents you have and let the expert figure it out, as

 2    opposed to having the expert referred to newspaper articles to try to

 3    figure out what a Constitutional Court might have said.  That's my point.

 4            MR. SCOTT:  Well, Mr. Karnavas wants to continue arguing, Your

 5    Honour, then the Prosecution will once again respond.  They weren't --

 6    number one they weren't provided to the witness because they were, 1,

 7    irrelevant, completely irrelevant.  Number 2, excuse me, I'm going to --

 8    the argument was made, I'm going to respond, Your Honour.  Number 2, the

 9    point should be made, this expert could look at any documents he wanted

10    to.  He's an expert in constitutional law.  He comes from the former

11    Yugoslavia.  And I want to make it very clear that nothing he said or did

12    was restricted to materials provided by the Prosecution.  Dr. Ribicic

13    could look at any materials that he chose to look at.

14            MR. KARNAVAS:  I agree, Your Honour.  I agree totally.  If the

15    prosecutor didn't provide it to him, because maybe they didn't think it

16    was necessary, the gentleman who was the expert should have sought them

17    out.  He makes my point.  Let's move on.

18       Q.   1D 0191.

19            MR. SCOTT:  Irrelevant.

20            MR. KARNAVAS:  Calm down, Mr. Scott, calm down.

21            MR. SCOTT:  I object to those comments.  Now, stop it.  Your

22    Honour, take control of these proceedings and stop this running commentary

23    by counsel.

24            MR. KARNAVAS:  Had I known --

25            MR. SCOTT:  Ask questions of the witness -- I have a thick skin

Page 25579

 1    but if counsel is going to stand up and continually make comments on the

 2    Prosecution, then I'm going to respond to it.

 3            JUDGE ANTONETTI: [Interpretation] All right.  Very, well.  I

 4    raised this question.  I was astonished myself that the witness had not

 5    looked at this document.  The Prosecution explained that they did not deem

 6    it important to show it to him so let's move on, please.  Let's not waste

 7    100 years on this document, please.

 8            MR. KARNAVAS:  1D 019 -- 1981.  This is a minute -- minutes from a

 9    joint meeting of the HVO of Banovici, Lukavac, Tuzla, Lukavac, Tuzla and

10    Zivinice held on 15 December 1992, and this is a draft decision to

11    establish the Croatian Community of Soli.  And if we look at --

12       Q.   Were you aware of this document?  Was this provided to you or were

13    you aware of this document, sir?

14       A.   No.

15       Q.   Okay.  And then if we look at very quickly the next two documents,

16    is 1D 0212013 [sic], this is a statutory decision on the temporary

17    organisation of executive government and administration in the area of the

18    Croatian community in Soli?

19            JUDGE TRECHSEL:  Mr. Karnavas, if you look at the transcript you

20    see that the number must be wrong somehow here, it says 1D 0212013.

21            MR. KARNAVAS:  It's 1D 02013.

22            JUDGE TRECHSEL:  Thank you.

23            MR. KARNAVAS:  2013.

24       Q.   Okay.  So we have a statutory decision.  I assume that you didn't

25    see this document either.

Page 25580

 1       A.   No.

 2       Q.   Okay.  And if we just -- just for the Court's convenience if we

 3    look at the very last page, on Article 19, the last page of this document,

 4    it says the seat of the HVO HZ Soli shall be in Tuzla.  I thought this

 5    might be of some interest.  And then of course we have the rules of

 6    procedure which in document 1D 02012 and I suspect that since the answers

 7    to my previous two questions with respect to whether you had seen these

 8    documents was no, the same would go for this particular document.  Is that

 9    correct?

10       A.   I did not see them.

11       Q.   [Previous translation continues] ... again because the issue was

12    raised yesterday with respect to Official Gazettes and you indicated that

13    municipalities did not have their own Official Gazettes but rather they

14    would have to be published within the republican Official Gazette.

15            If we could look at Article 4, just for the Court's convenience,

16    "The custody and use of stamps shall be the responsibility of the

17    secretary of the HVO HZ Soli in accordance with the decree on stamps." And

18    then it says, "Official Gazette of the HZ HB," and it has the number.

19            Do you see that, sir?

20       A.   I'm not able to follow you that quickly.  I have not found the

21    document.

22       Q.   All right.  Well, we'll move on just to -- for the sake of saving

23    time.

24            Now, you talked about looking at that one particular transcript

25    which obviously had made an impression on you.  Did you look at all -- did

Page 25581

 1    you read all of the available presidential transcripts back in 1999 when

 2    you were preparing your report or did you focus on that one and I dare say

 3    or suspect that it was probably brought to your attention by the

 4    Prosecution.

 5       A.   The Prosecutor pointed those to me and I looked at everything that

 6    was available.

 7       Q.   Okay.  Now, did you look at all the presidential transcripts or

 8    did you look at some that were made available to you in 1999?

 9            MR. SCOTT:  They weren't -- they weren't available to the

10    Prosecution in 1999, Your Honour, or to anyone I know outside the

11    President of Croatia's office.

12            MR. KARNAVAS:  Okay.  Thank you [Microphone not activated].

13            THE INTERPRETER:  Microphone for Mr. Karnavas.  Microphone for

14    Defence counsel.

15            MR. KARNAVAS:

16       Q.   If they were not available to anyone in 1999, not even to the

17    Office of the Prosecution, how was it that you were able to get ahold of

18    this particular document which belonged to the Republic of Croatia?  How

19    was it able -- how were you able to get your hands on it back in 1999?

20    Because you seem to have been impeached by the Prosecutor here.

21       A.   I said that I was provided this document by the Prosecutor.

22       Q.   Okay.  So I guess the Prosecution may be incorrect when he states

23    that he didn't have those documents back in 1999?

24            MR. SCOTT:  Well, Your Honour, again do you want -- is the

25    question directed at me or directed at the witness?  I'm happy to answer.

Page 25582

 1    The document was provided by Stjepan Kljuic who was a participant in that

 2    meeting and had asked for a transcript of the meeting afterwards.  And in

 3    the course of testifying in previous cases, Mr. Kljuic provided that one

 4    particular 27 December 1991 transcript to the Office of the Prosecutor.

 5    No other presidential transcripts were available, as far as I know, to

 6    anyone outside the Office of the President of the Republic of Croatia

 7    until sometime after January 2000.  And I'm happy to provide that

 8    information to counsel, but whether this witness knows the history of the

 9    presidential transcripts and how the OTP came to have them, I doubt it.

10            MR. KARNAVAS:  Well, I appreciate and I'm very grateful to that

11    particular answer.

12       Q.   There has been -- for sometime you've known that you were going to

13    have to come here and testify, since at least 2000, the Prosecution has

14    had numerous presidential transcripts at its disposal.  It even has

15    permission to use them.  My question now is:  Did the Prosecution ever

16    provide to you after 2000 --

17            JUDGE ANTONETTI: [No interpretation]

18            MR. KARNAVAS:  I need to make my question.  He just can't stand

19    up -- I know he's sitting there.  I can see him.

20       Q.   Now, my question is:  Did the Prosecution provide you with all the

21    other documents and say, "You know, Professor Ribicic, take a look at

22    these other transcripts?  Maybe or maybe not, you know, you will come to a

23    different conclusion but at least since you're testifying IN this case,

24    and this information was not available back then, now you should look at

25    it to be fair to everyone, especially to the Trial Chamber who has to make

Page 25583

 1    a monumental decision at the end of trial."

 2            MR. SCOTT:  Now I will intervene, Your Honour.  Your Honour, the

 3    Court may recall, the witness is here as a 92 bis witness based on a

 4    report that was prepared in 1999.  The Prosecution in this case never

 5    asked him to prepare a new report, but he was tendered on the basis that

 6    his prior evidence in the Kordic case, both his transcript and his report,

 7    were tendered to the Court under 92 bis, that evidence specifically.  And

 8    it was on that basis that the Chamber asked him to come and appear for

 9    cross-examination.  At no time was a new report prepared or new

10    information requested or given.  He is testifying about a document

11    prepared in 1999.

12            MR. KARNAVAS:  Very well.  Your Honour, I don't want to debate the

13    point.  I think if you're going to bring a witness here, especially an

14    expert witness, they are going to present an expert report, it is fair

15    that if new available information comes into play, that might assist the

16    expert, in perhaps revising their report, that it should be made

17    available.

18            JUDGE ANTONETTI: [No interpretation].

19            MR. KARNAVAS:  I hope you got the points, Mr. President.

20            JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, the problem you're

21    raising as to whether the witness was -- was cognizant with presidential

22    transcripts when he drafted his report in 1999, isn't that the issue here?

23            MR. KARNAVAS:  Well, there is a double issue.  One I'm trying to

24    show that there is a sense of unfairness.  They want to bring in somebody

25    from 2000 with an incomplete report.  They know that they have more

Page 25584

 1    information.  And they can't say, well, gee.  We didn't give this

 2    information to this gentleman and now it's unfair for us to confront him,

 3    In fact, I think it's unfair to their own witness to have him subjected to

 4    this line of questioning when they had information.  I think they are duty

 5    bound, they are duty-bound to provide all of the information to the Trial

 6    Chamber and they could have done that through this gentleman and perhaps

 7    ask him to re-evaluate.  I mean that's why on appeal, for instance, we

 8    have Rule I believe it's 115 that allows the Appeal Chamber to re-evaluate

 9    newly discovered evidence that wasn't available.  What about due

10    diligence?  I mean, I can go on but I don't, I don't want to.

11            JUDGE ANTONETTI: [Interpretation] Well, when listening to you all

12    here is the problem:  You draft a report in 1999.  Apparently you were not

13    familiar with all the presidential transcripts because Croatia provided

14    the contents therefore only afterwards to the OTP but apparently there was

15    one document with which you were familiar because Mr. Kljuic had handed it

16    over to the Prosecutor, that is one presidential transcript in 1999.  You

17    draft your report, then you testify in the Kordic case.  Subsequently,

18    after that testimony in the Kordic case, did OTP give you the presidential

19    transcriptions that it had gotten in the meantime?

20            MR. SCOTT:  Again, Your Honour, in response to further arguments

21    by Mr. Karnavas, the Chamber will recall I hope that there are other

22    witnesses and other experts in this case besides this one and all that

23    material, all of this material, has been put before the Chamber.  So for

24    Mr. Karnavas to stand up and criticise the Prosecution for not providing

25    this information to the Chamber is not only false but completely unfair.

Page 25585

 1            MR. KARNAVAS:  Well, Your Honour -- I will move on, I just want to

 2    make sure that at the end.

 3            JUDGE ANTONETTI: [Interpretation] Continue.

 4            MR. KARNAVAS: [Microphone not activated] I will be moving that the

 5    report be excluded on the basis that it's incomplete.  It's not dated.  I

 6    mean, this is -- this is important to understand because he has anchored,

 7    he has anchored that report on that one transcript that we now know was

 8    surreptitiously brought in.

 9            MR. SCOTT:  I'm sorry, Your Honour, that's just not true.  Don't

10    make false statements, Mr. Karnavas.  It's not based on one transcript.

11    My gosh, there's over 100 footnotes, the Narodni List, the de jure,

12    decrees, letters, communications, the decisions of the Constitutional

13    Court.  To stand up and say this is based on one presidential transcript

14    is just false.

15            JUDGE TRECHSEL:  I'm sorry, Mr. Karnavas.  I think we ought to put

16    an end to this battle which loses your time.

17            MR. KARNAVAS:  I understand.

18            JUDGE TRECHSEL:  You seem to complain that the Prosecution brings

19    a piece of evidence rather than another one, namely an old report rather

20    than a new report, but now we have an old report and you will have the

21    opportunity to cross-examine the witness on the basis of that, and there

22    will be all the possibilities to bring other evidence and to show -- it

23    doesn't help to complain because obviously this witness will not now say,

24    I've read all the rest of it and it's all wrong and I'll change

25    completely.  We must perhaps also realistically take into account that to

Page 25586

 1    prepare such a report is a huge amount of work and I could imagine that

 2    the witness is not sitting at home just waiting for the next hearing and

 3    working on putting out reports.

 4            MR. KARNAVAS:  You're absolutely right.

 5            JUDGE TRECHSEL:  We have to go brick by brick and step by step to

 6    quote a very eloquent advocate of this Court.

 7            MR. KARNAVAS:  You're very right, Judge Trechsel.  The only

 8    problem is my client is looking at a life sentence; that's my problem.

 9    That's a problem that eats at me every night and I need to point this out

10    to the Trial Chamber that there is a sense of unfairness.  That's what I'm

11    trying to point out.  It's not a matter of complaining.

12            JUDGE TRECHSEL:  That's okay, but you have made the point.

13            MR. KARNAVAS:  Okay, now we didn't get his answer.  He indicated

14    at one point -- it's on page 63, he had said but it wasn't recorded.

15            JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, 15 seconds.  If I

16    was doing the examination, this is what I'd say to the witness:  You wrote

17    in your report on page X such and such a thing.  Let me now show you

18    another document, the presidential transcript, that says something

19    different.  What do you say about that?  That's all.

20            MR. KARNAVAS:  I'm trying to get there.  I'm getting these

21    interruptions from Mr. Scott.

22            MR. SCOTT:  It's my fault, Your Honour, I'm sorry.

23            MR. KARNAVAS:  Okay.

24       Q.   If we could look at one document now just very quickly, it's

25    P 00498.  It's a presidential transcript that's dated 17 September 1992.

Page 25587

 1    We already know the answer, that is that you haven't looked at it but if

 2    we focus on page 28, I just want to show you something.  Actually it

 3    starts on page 27 and we'll see that it is a -- the -- okay, for you, sir,

 4    you will need to look at first the document, P 00498, and then -- and then

 5    at the upper right corner, you'll see some numbers, and you need to look

 6    for the numbers 01508797.  It's on page 27 and we are going to be going to

 7    28 in this particular document.  This is where Jadranko Prlic is speaking

 8    and I just want to focus the Court's attention and the gentleman's

 9    attention on page 28 when he says:

10            "The Croats, at least the soldiers in the Croatian Defence Council

11    and the people who are involved, the organs of authority, have a clear

12    political aim.  It has been clear to me ever since I became involved in

13    this and since I have been in this post.  This aim is the forming and

14    ordering of Bosnia-Herzegovina in accordance with the principles of the

15    European Community, that is the constituting of Bosnia-Herzegovina through

16    three national units."

17            Were you aware that these were the words of Dr. Jadranko Prlic on

18    17 September 1992 at one of the meetings with -- were you aware of that?

19       A.   No.

20       Q.   Okay.  Thank you.  Now we'll go to -- we are going to go through a

21    series of documents, the title of this --

22            JUDGE ANTONETTI: [Interpretation] A question that Mr. Karnavas

23    should have asked you, if you had known this, that Prlic had officially

24    said that he was in favour of a Bosnia-Herzegovina pursuant to the

25    principles of the European Union and that Bosnia-Herzegovina could be made

Page 25588

 1    up through three national -- of three national entities, if you had known

 2    that, would that have changed anything to the way in which you drafted

 3    your report?

 4            THE WITNESS: [Interpretation] I don't think so.  I did not write

 5    this report with regard to this case and Dr. Prlic's responsibility.  It

 6    was written much earlier in 1999 and the transcript that I mentioned was

 7    taken by me as the basis to answer the question as to what was the

 8    motivation behind the establishment of the Croatian Community of

 9    Herceg-Bosna, and at that meeting that I am talking about, Dr. Prlic was

10    not there.  He did not attend the meeting.  But the position that was very

11    clearly expressed there was about the motives for the creation of the

12    Croatian Community of Herceg-Bosna.  There were people there who were in

13    favour of a different option but they were in a minority.  As for the

14    subsequent transcript and my knowledge of them, they would not have any

15    bearing on my opinion as to why the Croatian Community of Herceg-Bosna was

16    established in the first place, something that I stated in my report.

17            JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, you can go ahead.

18            MR. KARNAVAS: [Previous translation continues] ... Mr. President

19    because we have a witness here who no matter what he sees, and I suspect

20    that's going to be throughout the case, is not going to change his

21    opinion, incomplete report as it may be.

22       Q.   I'm going to go through a series of documents, sir, and this has

23    to do with context because you seem to have indicated you wanted to be

24    fair, you wanted to make sure that your analysis was not only de jure but

25    de facto as well.  So let's look at a variety of documents and hopefully

Page 25589

 1    you might be able to assist us.  First document is 1D 00894.  This is from

 2    a text that has been used widely in this case and we will continue to use

 3    it --

 4            JUDGE ANTONETTI: [No interpretation]

 5            MR. KARNAVAS:

 6       Q.   Okay.  This is a book by David Owen, "Balkan Odyssey," this is

 7    excerpts we are going to go through some of these.  Did you ever meet with

 8    Mr. Owen who was part of the Vance-Owen, Owen-Stoltenberg negotiations.

 9    Did you ever meet with him?

10       A.   No.

11       Q.   Now I know that his book is in Croatian; I don't know whether it's

12    in Slovenian, but did you read it by any chance?

13       A.   No.

14       Q.   Okay.  All right.

15       A.   I have not read it, I just read the excerpts that I found in the

16    press or whatever was written in the press.

17       Q.   Okay.  So you tend to rely on the press more than, say, these

18    sorts of sources?

19       A.   No.  That's not what I said.

20       Q.   All right.  Very well.  If you look at the very first page or

21    second page where it says chapter 2, "Establishing the conference," at the

22    bottom of the -- of the first part of the paragraph -- page, it says, "The

23    Netherlands had held the EC Presidency from the outbreak of the war in

24    July until December 1991.  And in consequence of my visit to The Hague, I

25    discovered that on 13 July 1991, when the Slovenian and Croatian

Page 25590

 1    declarations of independence were just 18 days old, the Dutch government

 2    had suggested to the other EC member states that the option of agreed

 3    changes of some of the internal borders between the Yugoslav republics

 4    might be explored."

 5            Were you aware, sir, that the changing of the borders or the, at

 6    least, the thinking of that perhaps that might be one of the options,

 7    changing of the borders, was in the minds of the international

 8    negotiators?  Were you aware of that at any point during this period of

 9    time or while you were doing your expertise?

10       A.   Yes.  I knew that.

11       Q.   Okay.  So this was an option that at least those who were not

12    home-grown, as it were, were looking at.  These were independent

13    internationalists that were trying to find a solution that would

14    accommodate, perhaps appease, all the parties involved, right?

15       A.   If I understand you correctly, you believe that the position that

16    borders might be changed would serve to calm down the situation in this

17    area, and that of course is not the case.

18       Q.   Maybe -- I don't wish to do this to the translators but maybe I've

19    been mistranslated.  It's not what I think.  What I'm trying to show you,

20    sir, is that the changing of the borders was on the minds of the

21    international negotiators as a potential option?

22            JUDGE TRECHSEL:  Sorry, Mr. Karnavas, I think you are overstating

23    a little.  The foundation is a bit weak.  What we have here is the

24    Netherlands government suggests, full stop.

25            MR. KARNAVAS:  I understand that.

Page 25591

 1            JUDGE TRECHSEL:  That's not the negotiators, that's not the

 2    international community, especially.

 3            MR. KARNAVAS:  Okay.  Judge Trechsel, I understand that.  I posed

 4    a question in a general sense, and you will see through --

 5            JUDGE TRECHSEL:  No, no, Mr. Karnavas, you make a factual

 6    assumption.  You state, Did you know that the negotiators did discuss.

 7    And we have no basis for the negotiators discussing.  What we have here is

 8    one suggestion by one government.

 9            MR. KARNAVAS:  I understand that, Judge Trechsel, but my whole

10    point of the cross-examination, I don't wish to do a lecture on this, but

11    I use that as a basis.  We will see other documents.  I wanted to know in

12    general was he aware that this was something that was talked about because

13    this is not the first instance, the only instance.  I just want to know in

14    general, perhaps it didn't come across that way, but I take the point.  I

15    don't want to be unfair to the gentleman.

16       Q.   We go to the next -- now, if we go -- if we go -- stick with the--

17    stick with the -- further on it says:  "The Presidency continues to feel

18    that it is necessary to reconcile the various principles of the Helsinki

19    Final Act and the Charter of Paris which may apply to the situation in

20    Yugoslavia.  It considers it especially important that selected

21    applications of the principles be avoided.  The principle of

22    self-determination, example, cannot exclusively apply to the existing

23    republics while being deemed inapplicable to national minorities within

24    those republics."

25            And then you -- then we have:  "The following should be seen as a

Page 25592

 1    very tentative attempt on the part of the Presidency at structuring our

 2    discussion on the future of Yugoslavia with a view to developing a common

 3    position which may serve as guidance for possible troika involvement in

 4    the Yugoslav negotiating process."

 5            And then it lists four different approaches.

 6            "We seem to agree that it is not possible for Yugoslavia to

 7    continue to exist with its present constitutional structure intact.  The

 8    joint declaration of the Brioni clearly states that a new situation has

 9    arisen in Yugoslavia.

10            "2:  It is equally difficult to imagine that Yugoslavia could

11    peacefully dissolve into six independent republics within their present

12    borders.  Both Serbia and Serbian elements in the federal administration,

13    not least the JNA, have made it plain that they will never tolerate the

14    emergence of an independent Croatia with 11 per cent Serbs within its

15    borders.

16            "3:  The loosely structured Yugoslavia constituting of six

17    sovereign republics is not likely to assuage the Serbian concerns either.

18    The higher the degree of sovereignty for Croatia, the greater the need for

19    solid guarantees for the Serbian minority in Croatia.  The looser the

20    federal structure, the more difficult it will be to supply such

21    guarantees.  The foregoing seems to point in a direction of a voluntary

22    redrawing of internal borders as a possible solution."

23            So this is the Presidency.  So, it's not just the Netherlands.

24    And of course, there are other points that might be of interest, for

25    instance if we go to the next page, he notes, in the first paragraph:

Page 25593

 1            "Incomprehensibly the proposal to redraw the republic's

 2    boundaries have been rejected by all 11 other EC countries."

 3            Then further down in that very same paragraph, he notes:  "The

 4    refusal to make these borders negotiable greatly hampered the EC's attempt

 5    at crisis management."

 6            Then if we go to the next page, in the third paragraph, it says,

 7    at the sort of in the middle of the paragraph says:

 8            "There are indications that the Slovenian leadership passed on to

 9    President Milosevic an offer to deal, an offer for a deal under which

10    Slovenia would stay neutral in the dispute between Serbs and Croats if it

11    were allowed to secede from Yugoslavia."

12            In any event, my point is -- and then if we go on to the next

13    point, next -- next page, that will be page 36 at the very top of the page

14    in English, this might be of interest.  He says:  "Milovan Djilas, who

15    during the Partizan war was given by Tito the main responsibility for

16    designing the administrative boundaries of the republics in autonomous

17    provinces within post-war Yugoslavia, never made any secret of the fact

18    that sometimes they were made quickly 'during a march' without the fullest

19    consideration and were often arbitrary and driven by political expediency,

20    and he confirmed to me personally that they were never intended to be

21    international boundaries."

22            Now, I just merely wish to point this out to -- and ask you the

23    following question.  Were you aware, at least, the internationals were

24    thinking in those directions?  That's all I want to ask.

25       A.   Yes.  It is clear to me that there were such ideas in the

Page 25594

 1    international community, as you say, either independent from all that or

 2    linked to what was happening on the ground, but you probably don't want to

 3    hear my opinion why those views were not accepted.  It is clear to me that

 4    as far as the break-up or the division of Yugoslavia is concerned, that

 5    Milosevic asked that in that case, the borders should be redrawn and that

 6    wherever there are Serbs, that all those territories should be annexed to

 7    Serbia.

 8       Q.   I understand that.  Unfortunately, we are not here to discuss all

 9    those issues.  I just merely wish to point out that this is a topic that

10    is discussed because we will see through other documents and throughout

11    the course of this trial that these issues are being discussed by the

12    internationals.  Now, we go down to the next document.

13            MR. SCOTT:  Excuse me, Your Honour, before we leave the document

14    and I didn't want to interrupt counsel's question or the witness's answer

15    but I don't know how many times in the course of this trial the

16    Prosecution has been criticised for taking something out of context, but

17    since Mr. Karnavas has pointed our attention to page 36 and that line the

18    Chamber might want to read the very next sentence, that in 1939 --

19            MR. KARNAVAS:  Your Honour, he's got redirect.

20            MR. SCOTT:  -- had given the Croatian nation control over the

21    substantial parts --

22            MR. KARNAVAS:  Your Honour, I --

23            MR. SCOTT:  -- Franjo Tudjman, never in their hearts accept the

24    19 -- I mean why couldn't we just read the next sentence?

25            MR. KARNAVAS:  Because, first of all, it's in the evidence.

Page 25595

 1    Second of all, unlike re-cross, which I usually get in my own

 2    jurisdiction, I don't get it here.  He gets redirect.  He's perfectly

 3    entitled to do that.  The evidence is there for the Trial Chamber and now

 4    all he's doing is trying to obstruct.  And do I object to these tactics.

 5            JUDGE ANTONETTI: [Interpretation] Well, you can go on.

 6            MR. KARNAVAS:  Thank you.

 7       Q.   The next document is 3D 00281.  This source is from a newspaper,

 8    Oslobodjenje.  We can see it from footnote 1.  2 August 1991.  And this is

 9    a text of a Serbian-Muslim agreement.  Mohamed Filipovic,

10    Radovan Karadzic.  Do you know those gentlemen?

11       A.   No.  I never met them but I do know who they are.

12       Q.   Okay.  Were you aware of this particular agreement being published

13    in the newspaper, since you seem to find newspapers as a source of

14    information?  Were you aware of this text of the Serbian-Muslim agreement?

15       A.   I objected once already when you claimed that I base my views on

16    what is published in the press, because in more than 200 footnotes, just a

17    couple contained quotes to the press.  So this is not true.

18       Q.   Were you aware of this particular text of the Serbian-Muslim

19    agreement --

20       A.   No, I was not.

21       Q.   Okay.  Thank you.  Next document, 1D 01538.  Okay.  This is a

22    text, "Dividing Bosnia and struggling for its integrity."  Were you aware

23    of this particular text and in particular of the maps that are involved

24    and are used in this particular text which seems to be -- the sources of

25    which seem to be Muslim?  And in particular if you look at endnote 35,

Page 25596

 1    covering maps number 15, 16 and 17 from Bosanski Pogledi, Sarajevo 25 June

 2    1991?  Were you aware of the existence of these particular maps referenced

 3    in endnote 35 --

 4       A.   I think not those particular maps but I did see quite a lot of

 5    those maps and proposals.  As far as those particular maps are concerned,

 6    I don't think so.

 7       Q.   Okay.  And did you look -- would it surprise you -- well, do you

 8    know a gentleman by the name of Zulfikar Pasic.  He's rather

 9    distinguished, lives in Sarajevo, has a foundation?

10       A.   Yes.

11       Q.   Would it surprise you that these maps belonged to this particular

12    gentleman?  And again I want to stress the timing.  I'm told he was the

13    owner of the paper where these maps were published, and again, it's

14    referenced in footnote 35.  Was that brought to your attention during your

15    research for this particular analysis?

16       A.   No.

17       Q.   1D 00893.  We've seen this document before in this Court.  This

18    deals with the European Community conference, it's 893, that's the number

19    of the document.  And if we look at the very top it says:

20            "Editor's Note, the efforts of the European Community conference

21    chaired by Lord Carrington were focused on a draft convention containing

22    Articles dealing with," and then states, "general provisions, human rights

23    and so on."

24            And then at the very last sentence of the preamble it says -- of

25    that section, it says, "The text of the draft convention as of November

Page 25597

 1    1991 is reproduced below."

 2            Did you by any chance look at this particular document dealing

 3    with the treaty provisions of the convention of 4 November 1991?  Were you

 4    aware of it?

 5       A.   No.  I did not focus on that specifically.

 6       Q.   Okay.  If you look at -- if I could focus everyone's attention --

 7    on -- it would be 4(C), I believe, and that would be on page 16 on the

 8    English version, if you look at the upper left-hand corner, or if the ERN

 9    number for you, sir, I don't see there is an ERN number here.  You don't

10    have it.  It says here:

11            "In addition, areas in which persons belonging to a national or

12    ethnic group form a majority shall enjoy a special status of autonomy,

13    such a status will provide for, (A), the right to have and show the

14    national emblems of that area," (B) is deleted, "(C), an educational

15    system which respects the values and needs of that group; (D)(1), a

16    legislative body; (2), an administrative structure including a regional

17    police, police force, and; (3), a judiciary responsible for matters

18    concerning the area which reflect the composition of the population of the

19    area; (E), provisions for appropriate international monitoring."

20            And I'll stop there. Were you aware of this particular treaty --

21    this particular draft?

22       A.   No.  I studied things that I quoted in my analysis.

23       Q.   I understand.  I understand what you studied.  I'm just asking you

24    whether you looked at these documents because this is what some of the

25    documents -- some of the negotiators were looking at.  If we look at the

Page 25598

 1    next document, it's 1D 00394, and if we -- on the right-hand side of the

 2    top you'll see page 1265.  We see this is a Conference of Yugoslavia

 3    Arbitration Commission, opinion number 4 on International Recognition of

 4    the Socialist Republic of Bosnia-Herzegovina by the European Community and

 5    its member states.  And there is an asterisk and it says, "Paris 11

 6    January 1992," signed by R Badinter.  Now I -- did you look at any of the

 7    documents that were generated by this particular gentleman, who was the

 8    head of a commission, Mr. Badinter?

 9       A.   Yes.  I did look at several documents, not only those that

10    pertained to Bosnia-Herzegovina.

11       Q.   If we look at the very last page under paragraph 4, just -- I'm

12    just skipping through this because we have seen some of these documents in

13    the past, it says:

14            "In these circumstances, the arbitration committee is of the

15    opinion that the will of the people of Bosnia and Herzegovina to continue

16    in SRBH as a sovereign and independent state cannot be held to have been

17    fully established.  This assessment could be reviewed if appropriate

18    guarantees were provided by the republic applying for recognition possibly

19    by means of a referendum of all the citizens of SRBH without distinction

20    carried out under international supervision."

21            Were you aware that as of this particular date, with respect to

22    Bosnia-Herzegovina or the Socialist Republic of Bosnia-Herzegovina as it

23    was then titled, the commission did not deem it ready or appropriate to be

24    declared an independent state?  Were you aware of that?

25       A.   Yes.  I was aware of the reservations on the part of the

Page 25599

 1    international community vis-a-vis the recognition of Bosnia-Herzegovina.

 2       Q.   And I take it that you know that subsequent to that, there was a

 3    referendum in Bosnia-Herzegovina?

 4       A.   Yes.

 5       Q.   Okay.  Now, since you met with or communicated with Mr. Kljuic,

 6    because now we know that he provided you with that one particular

 7    document -- and he at least responded to your 18 questions of which we

 8    don't have the questions of so we don't know exactly what you asked and

 9    what he said, but nonetheless, did Mr. Kljuic by any chance discuss with

10    you the issues concerning the question itself, the referendum question?

11       A.   No.

12       Q.   Okay.  Now, if we look at document P 00132, and this seems to be--

13    this is the original referendum question, at the bottom it says:

14            "In favour of a sovereign and independent Bosnia-Herzegovina, a

15    state of equal citizens nationalities of Bosnia-Herzegovina, Muslims,

16    Serbs, Croats and members of other nationalities living in it."

17            That was the original question.  Now I want to focus before asking

18    a question to the next document, if we could look at the next document

19    which is P 09542, this is often referred to as the Livno question, and we

20    see that it states:

21            "Are you for a sovereign Bosnia-Herzegovina state union of

22    constitutive and sovereign nations, Croatian, Muslim and Serbian in their

23    national areas [cantons]?"

24            Were you aware, sir, that this was an alternative question that

25    Mr. -- that the Croats in Bosnia-Herzegovina wished to have at the

Page 25600

 1    referendum?  Particularly because they, like the Slovenes in Yugoslavia,

 2    did not want to be under the yoke of a unitary state?

 3       A.   Yes.

 4       Q.   And a unitary state we understand it to be one person, one vote,

 5    and he who has the majority of the population would be in a position to at

 6    least suppress the vital national interests of the minorities, correct?

 7       A.   Yes.  That is correct.  But it was never mooted by Milosevic at

 8    all.  His idea was a modern federation which would have been a step back

 9    to --

10       Q.   I understand that but my whole point is I'm trying to make sure

11    since we have a constitutional expert that we get the right answers, which

12    is what the concept of a unitary state is and why some wanted it, that is,

13    those who were in the majority and those in the minority were not

14    interested in that kind of a government.

15            If we look at the next document P 00118.

16            Now we see this is February -- 12 February 1992 and we have here:

17            "We have noticed that the reformulated referendum question is

18    causing a fair amount of confusion among Croats in this area.  Even we

19    have difficulty in answering some frequently asked questions.  We

20    therefore request to urgently see somebody from the central committee who

21    can provide additional explanations so that we can inform the public."

22            Were you aware that at this point in time, there was this -- this

23    issue prior to the -- to the referendum, that is, that there was

24    confusion, and that there was concern on the part of the Croats, concern

25    that the Muslim government or the SDA was pursuing a unitary government

Page 25601

 1    model?

 2            MR. SCOTT:  Excuse me, Your Honour, but in the interests of

 3    accuracy, Mr. Karnavas keeps referring to the Croats as if they were a

 4    monolithic group. A part-- the Chamber, of course, has heard evidence that

 5    there was a split among the Croats in various parts of the country, there

 6    was the Kljuic faction at one time, there was the Boban faction.

 7            MR. KARNAVAS:  Your Honour --

 8            MR. SCOTT:  It's fair enough for Mr. Karnavas --

 9            MR. KARNAVAS:  This is --

10            MR. SCOTT:  -- to say this is the HD -- well, it's not a fair --

11    it's not fair, the question that was just put that the Croats, as if there

12    was only one Croat view in Bosnia-Herzegovina and he can say it was the

13    HDZ view, I won't object, if he says it was the -- it was the position --

14            MR. KARNAVAS:  The document speaks for itself.

15            MR. SCOTT:  -- it was the position of the Boban faction of the

16    HDZ, that would be an accurate statement but to say that all Croats in

17    Bosnia-Herzegovina took the same position is not true.

18            JUDGE ANTONETTI: [No interpretation]

19            MR. KARNAVAS:  Your Honour, the document talks about the municipal

20    board of the BH HDZ.  It doesn't say anything about Boban, it doesn't say

21    anything about Kljuic.  That's what it says.  It speaks for itself.

22       Q.   If we go on to the next document P 09616, and this is an excerpt

23    from the minutes.  If we look at page 2.  And it says here, under

24    paragraph number 1:

25            "Announcement of the Presidency of the HDZ BH, the text of the

Page 25602

 1    public announcement was adopted as follows:  The assurances of the

 2    European Union expressed on previous occasions as well as during

 3    yesterday's talk at the conference of the European Union on

 4    Bosnia-Herzegovina indicate that the result of the forthcoming referendum

 5    will not prejudice the future constitutional system of Bosnia-Herzegovina.

 6    Likewise, fundamental principles ensuring the sovereignty of the Croatian

 7    people in Bosnia-Herzegovina in their national regions as well as in whole

 8    of Bosnia-Herzegovina contained in the decisions of the central board of

 9    HDZ of BH in Livno are not disputed.  On the basis of the above, we call

10    on the members of the Croatian Democratic Union of Bosnia-Herzegovina, and

11    all Croats in Bosnia-Herzegovina, to fulfil their duty and votes in the

12    referendum.

13            Now, were you aware that at least it took some assurances of the

14    European Union to appease at least those within HDZ who were concerned

15    about the question and were concerned about being in a unitary state?

16    That it took the European Union to express, to calm them and to give them

17    assurances that their national -- vital national interests would not be

18    jeopardised if they voted yes for the -- in the referendum?  Were you

19    aware of that?

20       A.   No.

21       Q.   All right.  And incidentally, this date is 27 February 1992.  This

22    is one day before the referendum.  Now, let's look at the next document,

23    1D 00398.  If we flip to a few pages we'll see that this is a statement of

24    principles of 18 March 1992 for new constitutional arrangements for Bosnia

25    and Herzegovina.  Now, before we get to that, if we look at the editor's

Page 25603

 1    note, it says:

 2            "The following statement of principles were agreed upon by the

 3    leadership of the three sides of the conflict in Bosnia-Herzegovina in

 4    March 1992.  However, it was subsequently repudiated by the Bosnian

 5    Presidency."

 6            Now, sir, during your analysis, did you by any chance look at this

 7    particular document?  And I mentioning this and I'm raising my voice to

 8    highlight the fact that you have grounded, it would appear and stubbornly

 9    maintained that there was this particular vision or course of action based

10    on one particular transcript and now here we are 18 March 1992 and were

11    you aware of these negotiations and this statement of principles?  Were

12    you aware of it, yes or no?

13       A.   I knew of the contents.  I knew of the discussions.  But I have

14    never seen this particular document.

15       Q.   Okay.  So I take it when you were writing your report, you knew

16    that, the Croats in Bosnia-Herzegovina, or those representing them, among

17    with those representing the Serbs and the Muslims, at one point in time,

18    had signed on or had agreed to this statement of principles which called

19    the three constituent units based on national principles and taking into

20    account economic, geographic, geographic, and other criteria?  It goes on

21    to say, "Bosnia-Herzegovina would continue to have its existing borders."

22    No dilemma.  "And neither the government of Bosnia-Herzegovina nor the

23    governments of the constituent units will encourage or support claims to

24    any part of its territory by neighbouring states.  Number 3, sovereignty

25    resides in the citizens of the Muslims, Serbs, Croat nations.  And other

Page 25604

 1    nations and nationalities, who realise it through their civic

 2    participation in the constituent units and the central organ of the

 3    republic."

 4            And then it goes on to talk about the very -- how it would be

 5    governed and then talks about human rights, and you have the definition of

 6    the constituent units under (E):

 7            "A working group will be established in order to define the

 8    territory of the constituent units based on national principles and taking

 9    into account economic, geographic and other criteria."

10            Defining the territory, geographical, other criteria.  This is

11    what is being written up as a statement of principles, and my question is:

12            Did you take this into account when you were drafting your report,

13    to say at least, yes, we had the presidential transcript, however, at

14    least on March 18, 1992, these statement of principles was signed on and

15    it talks about a new constitution?  Did you factor this into your report?

16       A.   Yes.  I took into account as much as I knew about the discussions,

17    but I did not have the document before me.

18       Q.   Okay.  Well, would it be safe to say since you didn't have the

19    document before you, it's not cited anywhere in your report?  I mean, I

20    didn't find it.

21       A.   Well, listen, when, yes, I --

22       Q.   [Previous translation continues] ... answer my question, sir?

23       A.   I am trying to answer, if you will allow me.

24       Q.   Is it in your report?  I don't see -- you say -- you say that you

25    knew of it.  You say you didn't look at it.  Where is it in your report

Page 25605

 1    that you make reference to this particular conference, this particular

 2    one?  Show me the footnote.  You're an academic.  You are a law professor

 3    for 35 years.  Frankly, you are a politician by occupation and by

 4    vocation, maybe, an academic and now a judge.  But you've been a

 5    politician.  But you, if you have been teaching for 35 years you should

 6    know that you need to cite.  Where is it in your report?  It's no where.

 7    Isn't that a fact?  And I don't mean to be aggressive.  I just want to

 8    move on.

 9       A.   May I answer?  If I may, I will.

10       Q.   Very well.  We'll move on to the next document, P00 --

11       A.   I asked you whether you wanted me to answer.

12            JUDGE ANTONETTI: [Interpretation] Please answer the question put

13    by Mr. Karnavas.

14            MR. KARNAVAS: [Previous translation continues] ...

15       Q.   Is it in your report, yes or no?  If so, where?

16       A.   That's not the way I can answer.  I have to provide some more

17    detail to my answer, if you will allow me I will answer, if not, I won't.

18            JUDGE ANTONETTI: [Interpretation] Please answer therefore by using

19    a sentence.

20            THE WITNESS: [Interpretation] I used a lot of things, I read a lot

21    of things, and if I thought that I needed to quote something, I did that,

22    and that is what you will find in over 200 of my footnotes.  I did not

23    quote anything else, and in addition to that, I also read other things, a

24    lot of things that I referred to directly which allowed me to embark on

25    the analysis.  If I hadn't read all those things I would not have been

Page 25606

 1    able to do my analysis.

 2            JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, you may continue.

 3            MR. KARNAVAS: [Previous translation continues] ... Mr. President.

 4       Q.   P 00339.  I'm told that we might need a break.  I don't know.  If

 5    we need a break, we'll take a break.  If not --

 6            JUDGE ANTONETTI: [Interpretation] Very well.  We will take a

 7    break, but I am looking at the clock.  Mr. Scott, for the additional

 8    questions, how much time would you need for redirect.

 9            MR. KARNAVAS:  I object to any additional questions.  We were

10    truncated, our cross-examinations.  And this is outrageous if you can

11    allow this gentleman to do redirect examination on top of giving him

12    everything that he's wanted.  We have Thursday, that's available.  I

13    strongly object.  I have a lot of material.  I don't see the basis.  He

14    wanted to bring him in statement only, statement and prior testimony, and

15    his incomplete and outdated report.  He's been allowed to do that.  He's

16    been given additional time to cross-examine.  He's been jumping up and

17    down like a jack in the box, sniping at my heels, and he's been making his

18    redirect examination.  He's been doing that.

19            JUDGE ANTONETTI: [Interpretation] Yes.  We understand your

20    position but Mr. Scott may not require any redirect.  Mr. Scott?

21            MR. SCOTT:  I have to say, Your Honour, I had been assuming that I

22    wouldn't get any but I suppose if I could have five minutes it would be

23    helpful.

24            JUDGE ANTONETTI: [Interpretation] Very well.  So if you need five

25    minutes, it is 20 to 6, we will resume at 6.00 p.m.  Mr. Karnavas if you

Page 25607

 1    can finish approximately around 10 to 7.00, Mr. Scott will have five

 2    minutes and then we can end our day that way.  So you have approximately

 3    50 minutes after the break.

 4                          --- Recess taken at 5.42 p.m.

 5                          --- On resuming at 6.01 p.m.

 6            JUDGE ANTONETTI: [Interpretation] Mr. Karnavas.

 7            MR. KARNAVAS:  Thank you, Mr. President.  If we to look at

 8    P 00339?  339.  This is a Prosecution document dated July 21, 1992,

 9    "Agreement on friendship and cooperation between the Republic of

10    Bosnia-Herzegovina and the Republic of Croatia."

11       Q.   Sir, were you aware of this particular agreement?

12       A.   Yes.

13       Q.   Okay.  And I take it you were aware of this agreement while you

14    were writing your report?

15       A.   Yes.

16       Q.   Okay.  Now, if we just look at --

17       A.   Let me just correct myself.  I'm not sure that I had it when I was

18    writing my report.

19       Q.   Okay.  If we look at paragraph number 6, paragraph number 6, it

20    says here:

21            "The armed component of the Croatian Defence Council is an

22    integral part of the united armed forces of the Republic of

23    Bosnia-Herzegovina.  The Croatian Defence Council will have its

24    representatives in the joint command of the armed forces of

25    Bosnia-Herzegovina."

Page 25608

 1            Were you aware, sir, that the HVO were an integral or was an

 2    integral part of the armed forces of BiH?

 3       A.   I knew that that was how the agreement was written, but I believe

 4    that there was a desire for the situation to continue being like that if

 5    the agreement was to be implemented.

 6       Q.   All right.  Very well.  If we look at the next document -- okay,

 7    if we look at the civilian authorities, continuing on, that is, with the

 8    next paragraph:

 9            "Provisional civilian authorities established in wartime

10    conditions, within the scope of the Croatian Defence Council will be made

11    to conform as soon as possible with the constitutional-judicial system of

12    the Republic of Bosnia-Herzegovina and talks pertaining to this matter

13    will be initiated immediately in the spirit of the principle stated at

14    point 1 of this agreement."

15            I take it you were also aware of this part of the agreement?

16       A.   Yes.

17       Q.   1D 01543.  This is an annex and we see on the next page, on page

18    2, it's a joint communique issued on 1 November 1992, 1 November 1992, in

19    talks between the President of the Republic of Croatia and the President

20    of the Presidency of the Republic of Bosnia-Herzegovina and it states that

21    the Croatian president, Dr. Franjo Tudjman, and the president of the

22    Presidency of Bosnia-Herzegovina, Mr. Alija Izetbegovic, met at Zagreb on

23    Sunday, 1 November 1992.  They reviewed the implementation of the

24    friendship and cooperation agreement between the two countries, that's the

25    one we just looked at, and if we go towards the bottom the last two

Page 25609

 1    paragraphs, it says:

 2            "The two parties have appointed their representatives in a joint

 3    committee for interstate and military cooperation which will start its

 4    work immediately."

 5            And then it says:

 6            "The two presidents support in principle the draft constitution of

 7    BH proposed by the Geneva conference on former Yugoslavia provided that it

 8    is -- that its final wording should safeguard legitimate interests and

 9    equality of Muslim and Croatian peoples in BH."

10            Now, were you aware of this joint communique issued on 1 November

11    1992, where it would appear that the President of the Republic of Croatia

12    and the President of the Presidency of BiH, one, are reviewing their

13    friendship cooperation agreement, and two, in principle, are in agreement

14    to the draft constitution of BH proposed by the Geneva conference?  Were

15    you aware of that at the time that you were drafting your report?

16       A.   I was aware of that but I don't think I used the document but I'm

17    aware of several attempts to re-establish friendship between Croatia and

18    Bosnia and Herzegovina.

19       Q.   Right.  This is Tudjman himself now sitting down with

20    Alija Izetbegovic, right?

21       A.   Yes.

22       Q.   Okay.  Now, if we look at the next document very quickly, it's 1D

23    00814, this is a speech by Lord Owen.  If we look at the bottom of the

24    page it states that it was delivered in Geneva 16 December 1992.  I want

25    to focus your attention on paragraph 2:

Page 25610

 1            "One of our concerns is that the Bosnian and Herzegovinian

 2    government is sadly increasingly becoming representative only of the

 3    Muslim population.  We are travelling tomorrow to Zagreb to meet with

 4    President Tudjman and President Izetbegovic in an attempt to bring

 5    together the Bosnian Muslims and Bosnian Croats into a more representative

 6    Presidency."

 7            Were you aware, sir, that as of December 16, 1992 -- well, let me

 8    rephrase it.  Do you know whether Lord Owen in his speech -- okay -- and

 9    this is at a ministerial-level meeting of the steering committee of the

10    international conference on the former Yugoslavia, would you agree with

11    his assessment that the Bosnian-Herzegovinian government was increasingly

12    becoming representative only of one of the constituent nations and that is

13    the Muslim population?

14       A.   Yes.  I can note with pleasure that you asked me about contents.

15    I agree with that and I agree with the attempts of the international

16    community to re-establish normalcy in the relationship so that the

17    representatives of both peoples would be able to act on friendly bases and

18    allow for the Croats to be represented in the bodies of Bosnia and

19    Herzegovina, so as to be able to have a factual say in the decision-making

20    process.

21       Q.   Okay.  Thank you.  If we go on to the next document, 1D 00892,

22    this is the Vance-Owen Peace Plan.  If you look at the bottom of the page

23    it says signed in Geneva 30 January 1993 by Alija Izetbegovic, or

24    A. Izetbegovic, R. Karadzic, M. Boban and as witnessed by C.R. Vance and

25    D. Owen.  First and foremost, were you, in preparing your report, did you

Page 25611

 1    consult, review, analyse and synthesise into your report aspects of the

 2    Vance-Owen Peace Plan?

 3       A.   Now I just reviewed all that and I noted that one point when I

 4    noticed a link between the attempts on the part of the international

 5    community and the events in Herceg-Bosna.  Otherwise, I restricted myself

 6    to my task at hand which was the constitutional and legal analysis.  As

 7    for the international and military analysis, I left those to the others.

 8    I could not incorporate those into my analysis.

 9       Q.   Very well.  I go back to what you stated in your report, though,

10    that one cannot do an analysis by looking merely de jure but also at de

11    facto and would you agree with me at least, and I don't want to get into

12    polemics, that if you have international negotiations and you have these

13    three constituent nations, the parties, sitting around engaged in the

14    negotiating process, would you agree with me that at least their efforts

15    or lack thereof in engaging with the internationals in trying to find

16    solutions, that that might be something that might be relevant in at least

17    looking at the de facto part of your analysis, particularly since the

18    issues are dealing with the drafting of a new constitution?  Do you think

19    that might be -- that would have been relevant?  And it's a yes or no.

20    And then we'll move on.

21       A.   Yes.

22       Q.   All right.  Okay.  Thank you.  Now, if we look at this -- let's

23    look at this document very briefly and see what the parties actually

24    signed.  If we look at page 250 on the right-hand side it's 250, it's it

25    says, "Constitutional framework for Bosnia-Herzegovina."  The Trial

Page 25612

 1    Chamber is familiar with this document but just very briefly under 1, it

 2    says:

 3            "Bosnia-Herzegovina shall be a decentralised state, the

 4    constitution shall recognise three constituent peoples, as well as a group

 5    of others with most governmental functions carried out by its provinces."

 6            And then it goes on.  I don't want to read this.  But were you

 7    aware that that's what the parties had signed on to as envisaged by the

 8    Vance-Owen Peace Plan?  Were you aware of that?

 9       A.   Yes.  I knew that.  I took that into account.  But I also believed

10    that there would be a special analysis dealing with international legal

11    aspects of the situation.

12       Q.   Okay.  Well, let's -- I don't want to debate the point but let's

13    forget about the fact that we have internationals engaged in the

14    negotiations.  The legal instruments that are being drafted here, such as

15    the constitutional framework for Bosnia-Herzegovina, those legal

16    instruments deal actually with the very same topic of your remit.  That's

17    part and parcel of your remit, and might I say also, you are, by nature of

18    your profession and experience, eminently qualified to opine on, analyse,

19    discuss, synthesise, right?  And don't be modest.

20       A.   Yes.  I discussed the different options that were available at the

21    time, as possible solutions.

22       Q.   So, for instance, if I could draw everyone's attention to page 266

23    where it talks about the internal central government, and I'm not going to

24    read it but it talks about, number 1, "Three representatives will be

25    nominated by each of the parties, these nominations will then be -- will

Page 25613

 1    then be conformed by the co-chairman" and it goes on.  "The interim

 2    central government will take decisions by consent in the event that a

 3    decision will be referred to the co-chairman for their urgent

 4    considerations ..." and then it goes on and so on and so forth.  Let me

 5    just make sure that I clearly understand, this -- in trying to interpret

 6    what this means, this document, albeit it is a -- it is being negotiated

 7    with-- perhaps by -- internationals, you, having had the experience of

 8    redrafting the Constitution of Slovenia when it breaks away from

 9    Yugoslavia, and it creates its own independent legal and sovereign system,

10    this is a sort of document that you would be capable of reading, analysing

11    synthesising; correct?

12       A.   Yes, yes.

13       Q.   And of course if we go on to the next page it talks about the

14    interim provincial governments.  So I would suspect that given your

15    previous answer, had you wished, for instance, to include this as part of

16    your analysis, you could have looked at this and have been able to quite

17    capably to interpret exactly what the three gentlemen, Izetbegovic,

18    Karadzic, Boban, had signed on to with respect to the interim provisional

19    governments; correct?  Provincial, I'm sorry, interim provincial

20    governments; right?  You would have been able to do that.

21       A.   Yes, I thought that it -- it wasn't my task to analyse that as an

22    international legal document but I did take it into account when I spoke

23    about the Croatian Republic of Herceg-Bosna in the last part of my

24    analysis.

25       Q.   All right.  You talking about a Croatian republic.  We are not

Page 25614

 1    talking about the Croatian republic.  We are talking about the Vance-Owen

 2    Peace Plan, correct?  We are talking about provinces, not a republic at

 3    this point.  The republic comes with the Owen-Stoltenberg?

 4       A.   In my analysis I did mention the influence of this agreement on

 5    the establishment of the Croatian republic.

 6       Q.   And of course had you read this document quite carefully, you

 7    would have noted that the three gentlemen, Izetbegovic, Karadzic and

 8    Boban, had signed on to it, if we look at page 273, again something that

 9    is quite familiar with the Trial Chamber, that under province number 8, it

10    says province capital Mostar.  So it seems that the internationals had

11    negotiated, and the nationals, the representatives of the three

12    constituent nations, had agreed to that Bosnia-Herzegovina would be --

13    would have -- remain intact, it would have various provinces, one of the

14    provinces -- ten provinces in fact.  One of the provinces would be

15    province number 8, the capital of which would be Mostar; correct?

16       A.   Yes.

17       Q.   Okay.  Now, if we go on to the next document 1D 01822, all right.

18    Now, if we look at this document, it's dated March 25, 1993, it's a press

19    release, United States mission of the United Nations, and it says here in

20    the very -- in the second paragraph:

21            "The United States government welcomes the difficult and

22    courageous decision plead by the Bosnian government.  President

23    Izetbegovic has shown commendable statesmanship.  We also commend the

24    efforts made by the Bosnian Croatian delegation in reaching this

25    conclusion."

Page 25615

 1            Now, was -- were you aware of this particular document, by the

 2    way, and you might want to look at the very first paragraph where it

 3    says:

 4            "The signature today by the government of Bosnia-Herzegovina and

 5    the Bosnian Croatian delegation of the principal documents of the Bosnian

 6    peace plan developed in the process of negotiations conducted by

 7    co-chairmen Vance and Owen mark a vital step toward settlement of the

 8    conflict in Bosnia."

 9            Were you aware of this?

10       A.   Not of the document, but, yes, I'm aware of the attempts of the

11    international community in that sense.

12       Q.   Okay.  But I guess the reason I'm pointing this out, sir, is the

13    fact that we have a date; the date is March 25, 1993.  And it seems that

14    here is Boban and Izetbegovic with the assistance of the international

15    community, they seem to be moving towards a peace agreement, at least

16    between those two particular nations within Bosnia-Herzegovina; is that

17    correct?

18       A.   Yes.  That is correct.  And that is what should have been done at

19    the beginning.

20       Q.   All right.  Well, one could say also that had they adopted

21    Cutileiro plan way back in, I believe it was 1992, there would not have

22    been any fighting but it was Izetbegovic that with drew his signature but

23    that's neither here nor there, so P 01988, 20 April 1993, 20 April 1993 it

24    says:

25            "During the common meetings, the meeting held in Zenica and

Page 25616

 1    co-chaired by General Morillon, commander of the UNBH command and by

 2    Mr. Thebault, ECMM headquarters, Zenica following high level

 3    representatives have agreed on, 1, BiH army and HVO are both" - I

 4    underscore that both - "legal military forces of the Republic of

 5    Bosnia-Herzegovina and are treated equally."

 6            Were you aware that as of 20 April, we saw the earlier agreement,

 7    we already know that prior to that, HVO was considered an integral part of

 8    the armed forces but now here we have -- here we have 20 April 1993.  Were

 9    you aware of that?  And if we go back and if we go, just for curiosity's

10    sake, to the next page we see signatures.  But were you aware of this when

11    you were drafting your report, sir?  It's a yes or no, please.

12       A.   Yes.

13       Q.   All right.  All right.  So this document actually passed through

14    your hands when you were writing your report?

15       A.   Yes.

16       Q.   Okay.

17       A.   Well, or maybe I got it later but I'm familiar with and I

18    interpret it as an attempt to arrange the relationship so as to enable

19    both the Bosniaks and the Croats to cooperate even in the area of the

20    armed forces and defend Bosnia-Herzegovina together.

21       Q.   But let me go back because this is a matter of precision, forgive

22    me for being punctilious, if that's the word that comes to mind.  On this

23    particular issue, did you or did you not look at this document prior to

24    drafting your report?  In other words, were you cognizant of the fact that

25    the HVO was a legal military force on 20 April 1993?  And I mention this

Page 25617

 1    date and I highlight this point because it goes back to the legitimacy of

 2    the effort being made by the -- by one of the nations in

 3    Bosnia-Herzegovina because you seem to have drawn certain conclusions

 4    based on one particular presidential transcript, and that's why I'm

 5    mentioning this.  So, question:  Did you or did you not look at this

 6    document and factor it in when you wrote your report?  Yes, no, I can't

 7    recall.

 8       A.   Yes.  After that, when I wrote the analysis, I believe that during

 9    the cross-examination in the Kordic case, the Defence brought this

10    document and that's when I saw it the first time.

11       Q.   Okay.  So in other words, in other words, forgive me for just

12    cutting to the quick, you did not know of the existence of this document

13    and the contents of it that is the fact that the HVO was the legitimate

14    armed force in April 20th, 1993, when you were writing your report.  It

15    was brought to your attention by the Defence counsel on cross-examination

16    a year later; right?  It's in the document -- it's in the transcript, I

17    can get it if you want, but that's when it was brought to your attention.

18    Isn't that a fact?

19       A.   Yes.

20       Q.   Okay.  Now, P 02078.  P 02078.  This is dated April 24, 1993.  It

21    says Mr. Izetbegovic, Mr. Alija Izetbegovic and Mr. Mate Boban at the

22    meeting convoked in Zagreb on 24 April 1993 and it says here is a joint

23    statement, I don't want to go through it all but again we see

24    Alija Izetbegovic, Silajdzic, Boban, Akmadzic - the same name you didn't

25    know, you didn't know this gentleman, still don't know who he is, who he

Page 25618

 1    was, what he did - it says here and we see Ganic is there, Abdic, Boras,

 2    another individual you claim not to have ever heard of it says:

 3            "The coordination body will work on the implementation of the

 4    Vance-Owen Plan to the extent possible considering the character of the

 5    provisions and present circumstances."

 6            Question -- Then if we flip through the last page we see the

 7    signatures of Mr. Izetbegovic, Mr. Boban and of course it was witnessed by

 8    Mr. Franjo Tudjman.

 9            Question:  Were you aware of this joint statement that the

10    Vance-Owen Peace Plan they had agreed to go forward at least in part with

11    the implementation of it to the extent it was possible under the

12    circumstances?  Were you aware of that when you drafted your report?  Yes,

13    no, I don't recall?

14       A.   Yes.

15       Q.   Okay.  Did you factor that into your report to state anywhere that

16    efforts were -- that this agreement had been made and as a result, it

17    would have been at least de facto in part of your analysis of the

18    constitutionality of the HDZ, of the HZ HB, later on the HR HB, that is

19    the Croatian community later on the Croatian republic, did you factor that

20    in to demonstrate that at least irrespective of that particular transcript

21    back in 1991, in December, here we are, the parties agreeing, in part, to

22    implement a peace agreement which had been lengthily negotiated among the

23    parties?  Did you put that in your report?  So that at least the fact that

24    we know that steps that have been taken by the Croats in

25    Bosnia-Herzegovina may at least on its -- on face, be consistent with and

Page 25619

 1    pursuant to agreements reached by the parties?

 2       A.   I did not particularly quote this document.  If I'd had it when I

 3    was drafting this analysis, I am still taking as a positive attempt to

 4    arrange the relationship between the two peoples.  There were several such

 5    attempts and it is more than obvious that a lot of the things that had

 6    been arranged were never implemented and that's why new negotiations had

 7    to be staged, new attempts had to be arranged, to achieve what would have

 8    certainly been in the mutual interests of both the people.

 9       Q.   All right.  Before we go on to the next peace plan which was the

10    Owen-Stoltenberg - and due to the time constraints I'm foregoing a lengthy

11    part of my cross-examination, demonstrating at least what was happening on

12    that angle, has been covered elsewhere - let's look and see what was

13    happening with respect to this implementation of the Vance-Owen Plan.

14    1D 01595.  We have minutes dated May 18, 1993, and it says here:

15            "At the meeting in Medjugorje held on May 18, 1993, the following

16    was agreed, 1, a coordinative body composed of six members to commence

17    with its activities as soon as possible.  Members are:  Boban, Akmadzic,

18    Boras" - those two names keep popping up - "Alija Izetbegovic, Ganic,

19    Abdic."

20            And then it says:  "Before accepting the peace plan in its

21    entirety, the coordinating body shall take over the functions previously

22    held by the Presidency of BiH."

23            Talks about a military council, if we go on to number 3:  "The

24    president of the transitional governments of the RBiH shall be

25    Jadranko Prlic, in agreement with the Muslim side we shall recommend -- he

Page 25620

 1    shall recommend a balanced government of eight ministerial portfolios of

 2    which three shall remain without appointment.

 3            Now, my question is -- and then there is a -- if we go down to

 4    page -- to number 4, we see the breakdown of the provinces, Mostar,

 5    Travnik, Zenica on the next page.  First question is:  Will you agree --

 6    were you aware of this particular arrangement that an agreement had been

 7    reached as of May 18, 1993, which if we go back to the Vance-Owen Peace

 8    Plan, it would seem at least for the two nations of the three, we have

 9    this interim arrangement?  Were you aware of that?  Yes, no, I don't

10    recall?

11       A.   I knew of this coordination body, just as of the other one that we

12    already looked at, but I have never seen this note, this specific note I

13    have never seen.

14       Q.   Okay.  So you knew of it.  How is it that you knew of it if you

15    haven't seen it?  These are minutes of a meeting where an agreement was

16    reached.  How was it and when it come to your attention that the

17    Vance-Owen Peace Plan, at least in partiality, is being implemented as a

18    result of this particular agreement?  Is this something that you sort of

19    know from talking to people or is it -- did you actually see documents

20    which perhaps at least might be essential in a constitutional slash or

21    dash legal analysis?

22       A.   Well, it is obvious that you didn't hear my answer which was that

23    I was aware of the coordination body mentioned in this note and the

24    statements that we saw but that I had not seen this note.

25       Q.   All right.  But were you aware, if we go on to the next document

Page 25621

 1    1D 01596, 1596, were you aware that on May 21, 1993, we have a letter from

 2    Dr. Jadranko Prlic addressed to Mate Boban and Alija Izetbegovic, subject,

 3    consultations regarding the election of the transitional government of

 4    RBiH stating pursuant to the agreement reached in Medjugorje on May 18,

 5    1993, and it goes on and on.  And then if we go, skip to the second

 6    paragraph, it says:  "I would request that you indicate the interest of

 7    your people regarding the choice of relevant sectors in the government."

 8    And so on and so forth.  So were you aware, as a result of the meeting

 9    that took place, which I showed you in document 1596, here we have the

10    first step, three days later, by the person who was designated the

11    president of this transitional government, Dr. Jadranko Prlic, were you

12    aware that efforts already are under way at least by the designated

13    interim president to begin the implementation process?  Were you aware of

14    that?  Yes, no, I don't recall.

15       A.   No, no.

16       Q.   Okay.  Again, if we look at another document, 1D 015 -- 1587,

17    again dated May 21, 1993, it would appear that Dr. Jadranko Prlic is

18    taking his position rather seriously.  Here he's talking about the visit

19    of the goodwill mission of Turkey and Croatia to BiH.  He's addressing

20    this.  At the very top we see:  "Republic of Bosnia-Herzegovina Office of

21    the President of the government."  This is at the top of it.  And this is

22    to the representatives of the HVO and the army of BiH, and this is what

23    caught my attention today.  Paragraph number 2:

24            "I would like to request," not order, not demand, "I would like

25    to request all representatives of the Croatian Defence Council and the

Page 25622

 1    army of BiH, especially in the area of Mostar, Jablanica, Konjic and

 2    Central Bosnia, to grant freedom of movement to all the members of the

 3    mission to enable contacts with representatives of the Croatian and Muslim

 4    people and to provide security during the visit."

 5            And then it goes on, part of the next paragraph, it says:

 6            "May your behaviour be an indicator of your willingness to

 7    implement the agreement of Medjugorje dated May 18, 1993, in its entirety

 8    since this is the only guarantee of the survival for the Croatian and

 9    Muslim people of Bosnia-Herzegovina."

10            Were you aware of this effort by Dr. Jadranko Prlic?

11       A.   No.  I've never seen this document.

12       Q.   All right.  If we go two days later, May 23, 1993, document

13    1D 01597, 1597, here he is, again, it seems, Dr. Jadranko Prlic, is

14    sending a report on the undertaken activities of the president of the

15    transitional central government.  This is to the co-chairmen, Owen and

16    Stoltenberg.  So quite transparently, right here, first paragraph:

17            "Although I have only been verbally informed of the decision made

18    at the meeting in Medjugorje, among which is the decision on my

19    appointment as the president of the transitional government, I have

20    undertaken some measures that I would like to inform you."

21            And then he says, "I have written to Mr. Alija Izetbegovic and

22    Mr. Mate Boban, members of the coordinating body, i.e., the transitional

23    Presidency, asking them to send me suggestions on the sectors of which the

24    ministers would be -- would be Muslims and for which they would be Croats

25    as well as suggestions ..." and so on and so forth.

Page 25623

 1            Now, obviously, I can conclude from your previous answers that you

 2    weren't aware of this -- of this document as well and the efforts being

 3    made by Dr. Jadranko Prlic as the interim president of the transitional

 4    central government, correct?

 5       A.   I never dealt with the issue of what Dr. Jadranko Prlic did and

 6    what he advocated.  As for the efforts to arrange the relations among the

 7    peoples in Bosnia-Herzegovina after the war, yes, I was aware of that.

 8       Q.   Well, forget about the personality, Dr. Jadranko Prlic, and focus

 9    on the title itself, or the position.  He's the president of the interim

10    government and that's what I'm trying to focus on that here we are an

11    agreement and here you have an individual trying to implement this

12    agreement and if we go to the next document 1598, again, May 23, 1993,

13    this is handing over the mandate to the new government.  This is sent by

14    Dr. Jadranko Prlic to the government of the RBiH, and then I'm going to

15    move very quickly to the next document so I can handle all of these

16    documents at once, again on the same date, 1599, 1D 01599, here this is a

17    letter from Dr. Jadranko Prlic to Dr. Haris Silajdzic.  I understand you

18    do know him.  At the time he was the Foreign Minister of the Republic of

19    Bosnia-Herzegovina.  He's informing him of his election and he's also

20    sending him a short bio.  You do see that; correct?

21       A.   Yes.

22       Q.   All right.  And also, it's mentioned that he, that is, Dr. Haris

23    Silajdzic has been elected as Minister of Foreign Affairs, so he's

24    informing him, of this interim government, that is.  We go on to the next

25    document, 1D 01600 and here we have a response from Dr. -- From Mr. Alija

Page 25624

 1    Izetbegovic, president of the Presidency of the RBiH, it's to Dr. Jadranko

 2    Prlic, and it's dated May 27, it begins by regarding your letter dated May

 3    21, we saw that earlier, and he talks about in order to propose, number

 4    2:  "In order to propose to you the candidates it is necessary for me to

 5    know which portfolios," fair enough.  And then if we go on to the three,

 6    number 3, he says:

 7            "I also think that right now taking into consideration the

 8    circumstances which was part of the agreement it is more urgent to start

 9    with the establishment of the provincial government in Mostar, Travnik and

10    Zenica and it's simpler since those governments do not exist yet.  Of

11    course, the activities related to forming the provincial governments and

12    central government can run parallel with that."

13            And then he says, "I have ordered the regional committees of SDA,

14    of the mentioned regions, to prepare the candidates' list."

15            So here is Izetbegovic, president of the Presidency, he's ordering

16    his own party, that's the predominantly Muslim party, the SDA, he's asking

17    them to prepare a list of candidates.  Were you aware of Izetbegovic's

18    response and his commitment at least on paper, in this particular

19    document, to the furthering of the agreement that had been reached

20    concerning the interim government?  Were you aware of that?

21       A.   No.  I was not aware of this document.

22       Q.   Okay.  There is another document, 1601.  This is dated June 1,

23    1993, again by Dr. Jadranko Prlic, and here he's just giving well wishes

24    again and I only point this out to show that he is exercising, he is

25    exercising or he's implementing the role that he has been given and

Page 25625

 1    entrusted and it seems from the previous document that has been accepted

 2    and understood by Mr. Izetbegovic.  So here he is acting in his capacity

 3    as president of the government and he's sending well wishes because of

 4    Kurban Bajram.  And then if we go to the last document 1D 01602, from Dr.

 5    Prlic addressed to Izetbegovic and Boban, consultations for the

 6    appointment of the government, and there we have the breakdown, Muslims,

 7    Croats, Serbs, which particular ministries.

 8            My question, sir, we've seen all of these documents, from looking

 9    at these particular documents, would it not appear, at least de facto,

10    that efforts are being made to implement the Vance-Owen Peace Plan between

11    the Croats and the Muslims in Bosnia-Herzegovina?  Would that not be a

12    conclusion that can be drawn at least from these documents, albeit limited

13    as they are?

14       A.   Yes.

15       Q.   All right.  Now, I have very little time left.  I just want to go

16    into the Owen-Stoltenberg plan just very briefly, hopefully we will be

17    able to cover everything and still allow Mr. Scott his five minutes.  I

18    want to show that we are [indiscernible] on this side of the Bench.  So if

19    we could look at 1D 01436, and this is a -- the constitutional law

20    consisting -- constituting the Republic of Bosnia.  I'm getting a little

21    tired so -- so this is the constitutional law of the Republic of Bosnia,

22    not to be mistaken with Bosnia-Herzegovina.

23            And it says here, we see from the -- from the top, the preamble:

24            "28 September 1993, in Sarajevo, the assembly of the Republic of

25    Bosnia-Herzegovina passed the following constitutional law constituting

Page 25626

 1    the Republic of Bosnia.  Article 1, the Republic of Bosnia is a sovereign

 2    and independent state of equal citizens living in, based on human rights

 3    and civic freedoms, rule of law, and social justice.  Alternatively," it

 4    seems that this is a draft, "alternatively, the Republic of Bosnia is a

 5    sovereign and independent state of equal citizens, the Muslim Bosniak

 6    nation and members of the other nations living in it, based on human

 7    rights and civic freedom, rule of law and social justice."

 8            Then it goes on in Article 2, it says that:

 9            "The Republic of Bosnia is hereby constituted as a constituent

10    republic of the union of republics of Bosnia-Herzegovina."

11            Then 3, and 4, deal with citizens.

12            5:  "The Bosnian language shall be the language of the official

13    use in the Republic of Bosnia.  The territory of the Republic of Bosnia is

14    integral and indivisible.  The borders of the Republic of Bosnia are laid

15    down in the constitutional agreement on the union of the Republic of

16    Bosnia-Herzegovina.

17            Article 8:  "The coats of arms, flag and anthem of the Republic of

18    Bosnia shall be defined by law."

19            Article 9:  "Sarajevo is the capital of the Republic of Bosnia."

20    And of course we see at the very last page that it's -- that we have the

21    name, president of the BH assembly, Miro Lazovic.  Now, may I ask you, did

22    you come across this particular document?

23       A.   No.  I analysed a document very much like it of the Croatian

24    Republic of Herceg-Bosna.

25       Q.   Okay.  Great.  Thank you.  Now it would appear if you put them

Page 25627

 1    side by side and then if you compare them with, for instance, the

 2    Owen-Stoltenberg plan, which was being negotiated by the -- both the UN

 3    and the European Community, perhaps with the United States, perhaps not,

 4    but nonetheless, is it not fair to say that this particular document, as

 5    well as the document with respect to the Republic of Herceg-Bosna, mirror

 6    in a sense the essence, both in spirit, you know, and in word, the

 7    Owen-Stoltenberg plan?

 8       A.   Yes, that is correct.  Both were created with this motive, as far

 9    as I can see, to prepare, as well as possible, if possible, for the

10    establishment of a republic which would be based on federal or confederal

11    basis, as I indicate in my report.  I think that these are actually

12    efforts on the part of the Bosniaks that are quite similar to each other.

13       Q.   Exactly.  And in fact, on July -- in July 1993, Boban,

14    Izetbegovic, Karadzic had signed the constitutional principles of the

15    union of republics which would have created essentially three republics

16    within Bosnia-Herzegovina.  And if we want to skip ahead of ourselves a

17    little bit, in time, if you look at what was actually negotiated at the

18    end in Dayton, rather than have two entities, what was being proposed were

19    three entities at that time, correct?

20       A.   Yes.

21       Q.   Okay.  And if we look at very quickly two last documents,

22    3D 00451, this is a joint declaration by Momir Bulatovic,

23    Alija Izetbegovic, Radovan Karadzic and Slobodan Milosevic accepting the

24    principles of the London Conference, and the date we have to go at the

25    very top, Your Honours, because I can't find a -- we have signature lines

Page 25628

 1    but I can't find but you could see that it's been faxed, 16-9-1993, and I

 2    would suspect that we are dealing with the -- it's either the 16th of

 3    September 1993.  That's the only way to read it actually.  If we look at

 4    under paragraph 5 on the second page, the last part of it, it says:

 5            "After reaching a mutually acceptable resolution to the

 6    territorial delimination of the three republics within the union and

 7    during the initial two-year period of the union's existence, there shall

 8    be a provision for referendum to be held on a mutually agreed date within

 9    the three republics of the union on the question of whether citizens of

10    any particular republic to remain in the union or to leave the union --

11    agree to remain in the union or to leave the union."

12            Then we go to the next paragraph, it says:

13            "In the case of a dissolution of the union all the rights of the

14    union of the Republic of Bosnia-Herzegovina including membership of the UN

15    shall be automatically vested in the republic of a predominantly Muslim

16    majority."

17            And then if we go to the next page we see that Alija Izetbegovic

18    has appointed his trustee, as his trustee, Haris Silajdzic; Karadzic has

19    appointed Krajisnik.  And then the last page, page 4, we see the

20    signatures, Izetbegovic, Karadzic, nothing from Milosevic.  We do see

21    Stoltenberg and we see Owen's.

22            Question:  Were you aware of this particular joint declaration,

23    sir, at the time that you were drafting your report and trying to divine,

24    at least de facto, the constitutionality or the constitutional efforts or

25    lack thereof being made by the Croats in Bosnia-Herzegovina?

Page 25629

 1       A.   Yes, I was aware of this document.

 2       Q.   Okay.  And you were aware then at least when you were drafting the

 3    report that not only had these parties -- these parties had agreed in

 4    principle to the -- to forming three particular republics and so, as you

 5    noted earlier, when we look at document 1D 01436, which is the

 6    Constitution, the draft constitutional law constituting the Republic of

 7    Bosnia as well as looking at what you looked at, which was the

 8    constitutional -- the constitutional arrangements for the Republic of

 9    Herceg-Bosna, these were attempts made by those two constituent nations to

10    implement an international agreement that had been forged over lengthy

11    negotiations between these parties; correct?

12       A.   Yes.

13       Q.   Okay.  And finally, just lastly, 1D 00526, just very quickly, this

14    is the Stoltenberg-Owen plan.  I just wish to point out, perhaps I don't

15    know whether you know or not but I wish to ask you a question, if we look

16    at page 286, it's an agreement relating to Bosnia-Herzegovina and it says

17    here:  "The constitutional agreement of a Union of Republics of

18    Bosnia-Herzegovina," and we see under A:  "The constitutional agreement of

19    the union of the republics of Bosnia-Herzegovina is set out in annex 1,

20    the three parties agree that it shall enter into force ..." and so on, I

21    don't want to read it and take up any of -- any more time but if you look

22    at the very bottom, the footnote, it says, "The undersigned are

23    A Izetbegovic, R Karadzic, M Boban, M Bulatovic, S Milosevic and

24    F Tudjman, and as witnesses T Stoltenberg and D Owen.

25            I take it when you were doing your constitutional analysis, you

Page 25630

 1    must have been aware of this particular document which I don't have time

 2    to go into, though I would love to, granted some additional time, which we

 3    don't have, you must have been aware of this particular document and

 4    surely, surely, you must have factored it in to your analysis.

 5       A.   Yes.  At the end of my analysis, I briefly discuss the differences

 6    between Herceg-Bosna, the community of Herceg-Bosna, and the Republic of

 7    Herceg-Bosna and I noted in particular that there were numerous changes

 8    that were in line with the efforts to adopt and implement certain

 9    international treaties that might or agreements that might lead to the

10    kind of -- the establishment of a kind of a system in Bosnia-Herzegovina

11    where Croats would be accorded the status of a republic.

12       Q.   Thank you for that but might I just add -- leave you with one last

13    question and that is:  Setting aside that one presidential transcript,

14    which we noted, a discussion took place three months prior to the

15    referendum, the vote on the referendum, if we look at the documents that

16    we looked at this afternoon, and if we factor the activity that was going

17    on in these particular documents, can we not at least agree in part that

18    efforts were made to find a resolution that you would have a united

19    Bosnia-Herzegovina where the three constituent nations would find their

20    own space, as it were, protect their own constituent rights, as it were,

21    and not be living side by side in a unitary government?  Can we not

22    make -- come to that conclusion if we look at all these documents, de

23    facto, that's what these documents show?  Isn't that a fact, sir?

24       A.   The fact is that these documents show those efforts but it is also

25    a fact that what happened first were large-scale military conflicts that

Page 25631

 1    are linked with large-scale violations of human rights and I tried to

 2    analyse why those conflicts broke out, and if we were to analyse just the

 3    documents it would be impossible to find an answer to this question.  So

 4    without the transcript, and other documents that show the actual balance

 5    of powers, in particular -- and the relationship particularly between the

 6    Republic of Croatia and the Republic of Bosnia-Herzegovina, it would be

 7    quite impossible to get the answer to the question why those hostilities

 8    and other conflicts broke out.

 9       Q.   And I take it you do not allow for the possibility that if you

10    were to look at the other transcripts, that surely are available and have

11    been available for numerous years, and if you were to look at a lot of the

12    documents that I showed you that you looked at for the first time, I take

13    it you do not allow for the possibility that perhaps what occurred during

14    that afternoon or day in that particular discussion, the transcript that

15    you focused on, was just that, a discussion and nothing more, and that the

16    events too led -- that took place afterwards, the negotiations, the

17    efforts, the way Croatia took in the Muslim refugees, how it helped

18    finance both armies, the fact that both HVO and the ABiH were recognised,

19    all of that, can you not --

20            MR. SCOTT:  Is this argument?

21            MR. KARNAVAS:  Excuse me, did you want to say something?

22            JUDGE TRECHSEL:  [Previous translation continues] ... After your

23    time is up.  We have ordered that five minutes are given to the

24    Prosecution.

25            MR. KARNAVAS:  There is a way of --

Page 25632

 1            JUDGE TRECHSEL:  -- that must be complied with, Mr. Karnavas.

 2            MR. KARNAVAS:  I get the sense --

 3            JUDGE TRECHSEL:  You were not asking a question you were asking a

 4    long programmatic statement.  That's not cross-examination, Mr. Karnavas.

 5    I'm sorry.

 6            MR. KARNAVAS:  Well, Judge Trechsel, I don't wish to be

 7    argumentative.  There seems to be a great deal of animosity directed

 8    towards me by you.  I don't understand why.

 9            JUDGE TRECHSEL:  Well, you're wrong.

10            MR. KARNAVAS:  It seems that way, Judge Trechsel.  I'm merely

11    trying to summarise and give the gentleman an opportunity that now that we

12    have looked at all of this, does he allow for the possibility that perhaps

13    he would change his opinion.  He could say yes or no.  That was the

14    purpose of my question.  It is proper cross-examination.  I don't wish to

15    debate the point.  I have been given a certain amount of time and I don't

16    believe I've eaten up all of my time.

17            JUDGE ANTONETTI: [Interpretation] You heard the question, Witness.

18    Is there any possibility for you possibly changing your mind?

19            THE WITNESS: [Interpretation] No.  I would not want to change my

20    opinion because it pertains primarily to the time when it came into being,

21    and the first initial stages of the functioning of the Croatian Community

22    of Herceg-Bosna, but if I were to write my report now, I would definitely

23    expand the last part to include the efforts that we have been discussing

24    over the past hour and more.  The efforts to fix things that could be

25    fixed and to find a solution that would be in the interests of all three

Page 25633

 1    peoples, including the Croatian people in Bosnia and Herzegovina.

 2            MR. KARNAVAS:  Thank you, Professor.  I have no more questions.

 3            JUDGE ANTONETTI: [Interpretation] Mr. Scott.

 4                          Re-examination by Mr. Scott:

 5       Q.   Doctor, I just have just a very few minutes, so if could you

 6    please listen to my questions and give short answers if you can.  Going

 7    all the way back to the first Constitutional Court decision and the

 8    litigation related to that, can you provide the Judges any information as

 9    to why the HDZ refused to provide the documents to the Constitutional

10    Court, after being repeatedly requested to provide them, as we saw in the

11    correspondence?

12       A.   The HDZ invoked the independent position of the Croatian Community

13    of Herceg-Bosna and refused to put those documents at their disposal.

14       Q.   In your report, you make a number of references to something that

15    in this courtroom has sometimes been called the two-track policy where

16    Croatia, Tudjman, others, might take one position publicly while at the

17    same time having a different agenda.  Can you tell the Judges very briefly

18    how that entered into your analysis?

19       A.   Well, this arises directly from the transcript of the 27 December

20    1991 in which Dr. Tudjman because of the objections of those who had

21    arrived at the meeting from Sarajevo and who had claimed that there would

22    be a conflict between the Croats and the Muslims, if the HDZ pursued its

23    policy of the division of Bosnia-Herzegovina, in that situation,

24    Dr. Tudjman said that it shouldn't be openly said that we were against

25    that.  We could -- can continue supporting independence but we have to

Page 25634

 1    prepare for the merger of that part of our neighbouring state,

 2    Bosnia-Herzegovina, to the Republic of Croatia.

 3       Q.   The point was made to you or raised during cross-examination, the

 4    assertion, that the what some might call the Sarajevo government or the

 5    government of Bosnia-Herzegovina had become less representative over time.

 6    Can you provide the Chamber any information as to whether one of the

 7    reasons it might have become less representative?

 8            MR. KARNAVAS:  Objection, it's leading.  He's trying to feed the

 9    answer to the gentleman.  And I don't see how he can possibly ask this

10    question on redirect examination without a foundation.

11            MR. SCOTT:  I'm asking if he can assist the Chamber.

12            MR. KARNAVAS:  He can ask him what does he know of that government

13    and he can get that answer.  He's not allowed to feed the answer to the

14    gentleman because he's already admitted that he wasn't aware what was

15    happening.

16            JUDGE ANTONETTI: [Interpretation] Mr. Scott, please rephrase your

17    question and put a question that stems from a question that was posed

18    during the cross-examination.  Try to make an open question without

19    bringing the -- without bringing the witness to automatically answer your

20    question the way you want him to do.

21            MR. SCOTT:

22       Q.   What role, sir, if any, did the fact that many of the HDZ Croats

23    refused to participate in that government have --

24            MR. KARNAVAS:  Objection, objection there is no evidence of that.

25    There is no evidence.  He can bring it in.  Now he's testifying --

Page 25635

 1            MR. SCOTT:  I'm asking the witness -- [Overlapping speakers]

 2            JUDGE ANTONETTI: [Interpretation] Wait.  One moment, please.  One

 3    moment, please.  We don't have a transcript anymore.

 4                          [Trial Chamber and Registrar confer]

 5            JUDGE ANTONETTI: [Interpretation] Mr. Scott, please think of what

 6    was said during the cross-examination and put a question that stems

 7    because now you are saying something else.

 8            MR. SCOTT:  Your Honour, you're just wrong on that. There were

 9    many questions put to this witness and it was specifically represented,

10    asserted to him that one of the problems --.

11            JUDGE ANTONETTI: [Interpretation] No, I'm not saying that.  I am

12    saying, remember that during the cross-examination the subject was raised

13    by Mr. Karnavas, remind the witness that it was said and then you can say,

14    Mr. Karnavas put this question to you, so on and so forth.  This is what I

15    wanted to tell you.

16            MR. SCOTT:  I just did that, Your Honour.

17       Q.   It was put to you, sir, during cross-examination that the

18    governments of Bosnia-Herzegovina had become less representative.  That

19    was specifically put to you.  I think one of the references was to a book

20    by Lord Owen and I want to ask you and you've asked many questions about

21    what was in your report, not in your report, can you share the Judges any

22    information about the role in the government becoming less representative

23    and the fact that the HDZ Croats refused to participate in that?

24            MR. KARNAVAS:  Again, this is the point that I'm trying to raise.

25    I will speak slowly.  It is a fact that is not in evidence.  Now he's

Page 25636

 1    saying that the HDZ Croats refused to participate.  Where has that come up

 2    during the last two or three days, this is trial advocacy 101.  101.

 3            MR. SCOTT:  You can say -- excuse me.

 4            THE INTERPRETER:  Slow down.

 5            MR. KARNAVAS:  Why, Judge, Lord Owen made that remark.  And we can

 6    hear from the witness.

 7            MR. SCOTT:

 8       Q.   Did you consider, sir, any factors in your analysis as to might

 9    what would might support this alleged statements by Lord Owen about the

10    BiH government becoming less representative?

11       A.   I agreed with the Defence that it became less representative but

12    the cause of that was clearly the fact that the Croatian Community of

13    Herceg-Bosna had been established, i.e., in the decision that certain

14    peoples including the Croatian people, tried to organise themselves in a

15    special way, in a separate way, and that idea and that manner of work was

16    also adopted by the Bosniaks.

17       Q.   Can you tell us, please, in reference to the various documents

18    Mr. Karnavas put to you by joint communiques, cease-fire agreements, et

19    cetera, can you give the Judges any information as to the number of such

20    communiques, cease-fires, peace agreements, that essentially had no --

21    carried no weight at all that nothing ever came of them, they were not

22    even implemented the next day?  About how many of those might you count?

23       A.   I can't tell you exactly how many there were.  But I can say that

24    a large number of these documents showed that these efforts, albeit

25    positive and good and the written positions were acceptable by all were

Page 25637

 1    just not implemented.  Rather, there were new conflicts that had been

 2    renegotiated, reagreed, reinforced by new round table agreements.

 3       Q.   And that can be said, in fact, concerning the Vance Owen

 4    agreements itself; is that correct?  Never finalised, never signed,

 5    never -- by all parties, never implemented?

 6            MR. KARNAVAS:  Again, that's leading.  These are facts that are

 7    not in evidence, Your Honour.  If he can -- the gentleman, if he wants to

 8    lay a foundation with respect to the Vance Owen, he could have done that

 9    on direct examination.

10            MR. SCOTT:  Mr. Karnavas.

11            MR. KARNAVAS:  Excuse me.  Now he's testifying that it wasn't

12    implemented, that it wasn't signed.  Where is the evidence?  I merely

13    showed documents.  I showed him what he hasn't looked at.  Now, whether

14    what Mr. Scott is saying is true or not is not relevant.  These are not

15    facts in evidence with this particular witness.

16            MR. SCOTT:  Well.

17            MR. KARNAVAS:  No foundation has been laid.

18            MR. SCOTT:

19       Q.   Dr. Ribicic, was the fact that --

20            JUDGE ANTONETTI: [Interpretation] Mr. Scott, Mr. Scott, you should

21    laid or could have laid a foundation, for instance, we saw a document that

22    was not signed by Milosevic, the signature, therefore was missing this

23    showed that there was a certain problem for instance so you may have shown

24    him this effort.  Efforts were made, everybody sat around the same table,

25    there were some texts, but a person, a person did not sign.  Why?  What

Page 25638

 1    were their reasons for this?  So on and so forth.

 2            So actually, sir, I'm going to ask you this question, I'll put

 3    this question to you, you are a judge, you understand what I want to say:

 4    Efforts were made, meetings were held, documents were put on the table.

 5    Some documents bearing bear a signature, others no.  Now, why?  Why, for

 6    instance in this case, there was no signature?

 7            THE WITNESS: [Interpretation] I can't answer.  I did not deal with

 8    that.  I only analysed those international efforts and how much they were

 9    connected with the changes that happened within the framework of the

10    Croatian Community of Herceg-Bosna and its transformation into the

11    Croatian Republic of Herceg-Bosna.  So I can't say why the -- an agreement

12    was never signed or implemented.

13            JUDGE TRECHSEL:  Witness, I would like to ask a question which

14    follows a previous question, that of the decreasing representativeness of

15    the government of Bosnia and Herzegovina.  You have asked for reasons

16    suggested that this might be because the Herceg-Bosna was founded.  Could

17    it not be the other way around, that the Croats founded their own

18    community because the government became less representative?

19            THE WITNESS: [Interpretation] Well, the first thing that happened

20    was the establishment of the Serbian communities.  Then the Croatian

21    communities were established.  And finally, there were direct reserves --

22    reservations on the part of the Croats in discharging their duties in the

23    bodies of Bosnia-Herzegovina.  And to a certain extent, this is how these

24    bodies became less representative, and the influence of the Croats within

25    those bodies diminished before the warning that this would happen if the

Page 25639

 1    Croatian Community of Herceg-Bosna would be formed.  Those warnings came

 2    in advance and they only came through and I believe that this is the logic

 3    that started with the establishment of the SAO Krajina and further on by

 4    the establishment of the Croatian communities and that logic finally

 5    resulted in the bodies of the republic being under a somewhat bigger

 6    influence of the Bosniak representatives.

 7            MR. SCOTT:  Thank you, Dr. Ribicic.  Your Honour, in light it's

 8    quarter after 7.00.  In light of everyone in the courtroom, I will not ask

 9    any additional questions.

10            MR. KARNAVAS:  I should note, in light of that last question from

11    Judge Trechsel, that the gentleman was asked about several individuals

12    that were in the government at the time.  He indicated total ignorance of

13    their names, and I think that in light of the answer, Judge Trechsel, to

14    your question, take that into consideration and we will have others that

15    will come to verify what those individuals were doing.  Lastly, I need an

16    IC number for this particular document.

17            MR. SCOTT:  Your Honour, I'm sorry, it's late in the day.  But,

18    you know, this is argument.  I give up my time, I sat down and

19    Mr. Karnavas gets up and starts arguing the evidence.  You'll note this,

20    you'll note that, that he didn't know anything.  He's just arguing,

21    Your Honour and that shouldn't be allowed.  You ask questions, you get

22    answers, you go to the next question.  And I'm sorry, but this happens all

23    the time.  And it's just argument after argument and the Court doesn't

24    stop it.

25            JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, I didn't

Page 25640

 1    understand what you say.  You said you wanted a number for that document.

 2    What document are you talking about?

 3            MR. KARNAVAS:  My beautifully coloured map.

 4            JUDGE ANTONETTI: [Interpretation] Fine.  Yes.  Good.  Would the

 5    registrar please do that.

 6            THE REGISTRAR:  The map shall be given exhibit number IC 746.

 7    Thank you, Your Honour.

 8            JUDGE ANTONETTI: [Interpretation] Thank you, registrar.  Witness,

 9    thank you.  You spent two days here.  You've answered hundreds of

10    questions.  So I wish you a very good trip back to your own home countries

11    and with the -- your professional duties.  Tomorrow we shall begin the

12    hearing at quarter past 3.  I have indicated that the OTP will have 30

13    minutes for the procedure under Article 92 ter because there are six

14    documents, and then Defence, 30 minutes, for Praljak and 30 minutes for

15    the others and then 15 minutes for each of the other members of the

16    Defence, and they can of course share their time with Mr. Petkovic or

17    Mr. Praljak.  So I must apologise to members of the Court that have had to

18    spend an additional 20 minutes, that there are some times when this has to

19    be done.

20            So I wish you a very nice evening, and as for you, we shall meet

21    again tomorrow at quarter past 3.00.  And I should spell out that I will

22    be actually in this room at 9.00 tomorrow morning.  Thank you and good

23    evening.

24                          [The witness withdrew]

25                          --- Whereupon the hearing adjourned at 7.18 p.m.,

Page 25641

 1                          to be reconvened on Wednesday, the 12th day of

 2                          December, 2007, at 2.15 p.m.