Tribunal Criminal Tribunal for the Former Yugoslavia

Page 35369

1 Thursday, 20 January 2005

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

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

6 JUDGE ROBINSON: Mr. Nice to continue cross-examination.


8 [Witness answered through interpreter]

9 MR. NICE: Your Honours, for there to be a prospect of my

10 concluding today, first it will be necessary for me to sacrifice to a

11 degree maybe the appearance of a completely chronological approach. I'll

12 do my best.

13 Second, I will invite the Chamber at the first break, should it

14 indicate that it might be willing to take this course, to review one or

15 possibly two documents. The first document is the typed comments, now

16 both in English and B/C/S, provided by Professor Kristan on the

17 constitutional matters that were raised, and in light of what the Chamber

18 postulated as a possibility that he be recalled, it may be that it will be

19 helpful and time saving to read those -- that document. It's four or five

20 pages in English.

21 And I would also invite the Chamber, or may also invite the

22 Chamber if I've got sufficiently far advanced in the questions I wish to

23 ask, to review the critical document that I provided to the witness

24 yesterday for him to review, because again, the criticisms contained there

25 are criticisms that would form the subject of my cross-examination and

Page 35370

1 pre-reading might assist.

2 JUDGE ROBINSON: No doubt he would have read that document over

3 night.

4 MR. NICE: Your Honour, yes.

5 JUDGE ROBINSON: I should say that in terms of time, the Trial

6 Chamber has been rebuked for trespassing on the time of another Trial

7 Chamber. Quite often we go beyond 1.45 and that interferes with the trial

8 which is to start, so we are not to do that.

9 Cross-examined by Mr. Nice: [Continued]

10 Q. Professor Markovic, I'm just going to return to a couple of

11 matters that we dealt with yesterday, but first I want to return

12 immediately to the question of the constitutions that you --

13 THE ACCUSED: [Interpretation] Mr. Robinson.

14 JUDGE ROBINSON: Yes, Mr. Milosevic.

15 THE ACCUSED: [Interpretation] Can you issue an order to have these

16 same documents handed to me? For example, I did not receive the same

17 documents that Professor Markovic received yesterday. I hope I will

18 receive that as well as the one that Mr. Nice just mentioned.

19 JUDGE ROBINSON: Yes, you should receive that.

20 MR. NICE: Absolutely.

21 JUDGE ROBINSON: You should have received that.

22 Are the documents available?

23 MR. NICE: They're certainly available, yes. They can be

24 provided. Kristan in B/C/S will be a few minutes, but other than that, of

25 course they can be available.

Page 35371

1 Q. Professor Markovic, I want to turn to your assistance in respect

2 of constitutions that you drafted, because you gave answers yesterday

3 rejecting the suggestion that you had assisted at all in the drafting of

4 either a constitution for the Republika Srpska or for the Republic of Serb

5 Krajina and identified, it seemed, the constitution of Montenegro as

6 perhaps the missing constitution, but this is exactly what you said when

7 asked questions by this accused and a follow-up question by His Honour

8 Judge Robinson. You said: "I can't enumerate them all. I can tell you

9 the names of three but not the fourth. One was the constitution of the

10 Republic of Serbia, the 1991; the constitution of the Republic of

11 Montenegro, the 1992 one, in October; and the constitution of the Federal

12 Republic of Yugoslavia dating to 1992. I still come under the Official

13 Secrets Act, so I can't quote you the fourth country."

14 Now, will you please name the fourth country.

15 A. Again, I have to correct you, because you keep making mistakes in

16 your questions. First of all, I did not say that I wrote the drafts of

17 these constitutions. And please do not manipulate this particular type of

18 wording yet again. I did not do the writing. I was on a team that did

19 the writing, so it was a collective effort.

20 Secondly, I never mentioned any Official Secrets Act, nor am I

21 aware of any such act or law. I spoke of professional privilege.

22 Mr. Nice, I am -- I do not have to tell anyone as to what I do in

23 my profession. There is full freedom in this respect in my country. I

24 can write whatever I wish to write, but they are adopted or not adopted by

25 competent bodies. Perhaps I am writing a constitution or a law right now,

Page 35372

1 working on that kind of thing. Why are you interested in that? You are

2 entering the realm of the private in this way, and you have no right to do

3 so.

4 Q. Professor Markovic, the words "Official Secrets Act" come straight

5 off the transcript, so --

6 THE INTERPRETER: The interpreter who said that notes that it

7 might have been "privileged information" but at the speed we were going,

8 that is the first term that came to mind. Thank you.

9 JUDGE BONOMY: Mr. Nice, that would be a sterile debate into which

10 to enter because the position has been clarified. All the witness is

11 claiming is professional privilege, and as far as I'm concerned, he

12 doesn't have that here to refuse to answer the question.

13 MR. NICE: I'm grateful to Your Honour.

14 Q. Can I now assist you with something else, Mr. Markovic.

15 JUDGE BONOMY: Are you not seeking an answer to the question?

16 MR. NICE: I am, certainly, and I'm grateful to Your Honour.

17 Q. Professor Markovic, before I turn to my next point on this, you've

18 heard His Honour's observation about whether privilege exists of the kind

19 you claim. Will you please name the other -- fourth country to which you

20 referred.

21 A. Professor Jovicic and I together worked on the statute of the Serb

22 Autonomous Region.

23 Q. Thank you. Was this the Serb Autonomous Region that you yesterday

24 told me had no constitution?

25 A. Not then.

Page 35373

1 Q. Do you remember you made a very clever remark -- not clever

2 remark, not for me to qualify it. A remark about, was it Lord Palmerston

3 when you challenged me to show you a document? Do you remember that?

4 A. Yes, I recall that.

5 Q. [Previous translation continues] ... existence of something you

6 knew well to exist, Professor Markovic?

7 A. Lord Palmerston said to a British MP who invoked the British

8 constitution, he said that he was prepared to give a handsome reward to

9 anyone who gave him that kind of information. What I did was not a

10 constitution. It was a constitutional document. We as professionals were

11 asked to do it. So that's why I said if you show me the constitution,

12 that was the statute of the autonomous region. Of course it is a document

13 of constitutional nature but nevertheless it is not a constitution.

14 Q. Professor Markovic, you knew from my questions yesterday that I

15 was interested in establishing that you had assisted in the drafting of

16 the constitutions of the Republic of Serb Krajina and the Republika

17 Srpska; correct?

18 A. That is absolutely incorrect. As a matter of fact, it's a lie.

19 Q. [Previous translation continues] ... my questions. What was I

20 trying to discover from you? You tell the Court, please, so that we can

21 understand your thinking process, and let me not beat about the bush, so

22 that we can see whether you're an honest man. What was the purpose of my

23 question, Professor Markovic?

24 A. How can I know? You're the one who should know. How can I know

25 what the point of your question is? For me these questions are pointless,

Page 35374

1 but you probably know why you're putting them to me.

2 These questions have nothing to do with my evidence. I have been

3 giving evidence about completely different matters, whereas you are

4 working ad hominem. You are analysing me as a person.

5 JUDGE ROBINSON: Professor, the questions go to your credibility.


7 Q. I'm going to give you one last chance before we move on. What you

8 did yesterday was an attempt deliberately to mislead this Court about your

9 involvement in the drafting constitutions for the RSK and the RS. Could

10 you explain, please, why.

11 A. Mr. Nice, I never wrote or participated in writing the two

12 constitutions that you mentioned. Never. Only the statute of the Serb

13 Autonomous Region. As a matter of fact, Republika Srpska has so many

14 learned professors of constitutional law that they themselves are in a

15 position to help draft a constitution. Why would they engage me from

16 Belgrade when they already have such people in their own midst?

17 MR. NICE: I'll take no further time of this witness, and the

18 Court will be probably pleased to learn I'm now determined to try and

19 finish him today.

20 JUDGE BONOMY: Professor, could you clarify for me what you mean

21 in that answer by the reference to the "Serb Autonomous Region."

22 THE WITNESS: [Interpretation] The Serb Autonomous Region in the

23 sense of "oblast." "Oblast" is the word I used, not "pokrajina," the one

24 that was created in Croatia. Since there weren't any legal professionals,

25 at that time Professor Jovicic and I were asked to do it in order to

Page 35375

1 stylize the norms. It simply has to do with craftsmanship, how to draft

2 norms and standards. Of course, the ideas have to be those that are set

3 out in the first place. I can write a constitution for Zanzibar if

4 somebody tells me what kind of social system they want, what the history

5 of Zanzibar, because I do it as a craftsman. I draft the norms. I do not

6 create the constitution from the point of view of the underlying ideas.

7 MR. NICE: And the Court will be interested to recall that in the

8 evidence of Mr. Babic, initially protected but like so much of his

9 evidence subsequently released from any protection, he was asked about the

10 statute, constitution, and he said, when asked who drafted it, he said it

11 was drafted by Borivoj Rasua and Professor Ratko Markovic.

12 I turn to another topic out of sequence.

13 Q. You concluded your work on the amendments to the Serb constitution

14 and the Kosovo constitution and the Vojvodina constitution in the spring

15 of 1989. Just one thing before I move to my next short topic.

16 After the Kosovo Assembly passed in the manner it did those

17 amendments, people died on the streets in demonstrations. Do you remember

18 that?

19 A. I told you that I am quite unaware of that. I'm not from Kosovo,

20 and I did not follow events on the spot. I think it is quite irrelevant

21 for me to recount what I read in the newspapers at that time, and that was

22 24 years ago.

23 Q. [Previous translation continues]... relevant. We've had evidence

24 of deaths on the streets, and my question to you, and it's going to apply

25 to all your evidence today, is this: As someone involved - and we've seen

Page 35376

1 the terms of your approval - someone involved in making such dramatic

2 changes to the constitutional arrangements of the former Yugoslavia, do

3 you feel any responsibility for the things that happened, such as those

4 deaths on the streets of Kosovo?

5 A. The two cannot be related at all. As a matter of fact, I have

6 great professional pride that I took part in all of this, and I consider

7 it to be one of my greatest professional achievements that I took part in

8 that particular endeavour. And the fact that somebody is trying to turn a

9 province into a state and investing his own life in it has nothing to do

10 with my professional work.

11 Q. I don't accept that characterisation of what happened, but we'll

12 move on.

13 In 1990, the SPS was formed.

14 A. That's for you to say. It's your own affair.

15 Q. That's the accused's party was formed, and something you haven't

16 told us about is that you were a founding member of that party, on its

17 Executive Committee?

18 A. Yes, I was, for four months. And since I lost the elections in

19 order to win a seat in parliament, I resigned because I thought that the

20 party had lost with me on the ticket, and I thought that the party did not

21 benefit from my presence. And since then I was nothing but an ordinary

22 member of the SPS. I tendered my resignation guided by the democratic

23 principle that whoever loses an election has to suffer the consequences,

24 and therefore, I resigned my membership on the Executive Board. I was a

25 member from July to December.

Page 35377

1 Q. All right.

2 A. After that, ever since 1990, I repeat, I have been nothing but an

3 ordinary member of the SPS.

4 Q. Well, an ordinary member of the SPS.

5 A. That's right.

6 Q. A member of the group that discussed the division of Bosnia

7 following the Karadjordjevo meeting of Milosevic and Tudjman, weren't you?

8 A. This is the first time I hear of it, from you now. Could you tell

9 me more specifically what you're referring to? What you're saying is pure

10 science fiction. I have no idea what you're talking about.

11 Q. Following the famous meeting of the accused and Tudjman at

12 Karadjordjevo where they discussed the partitioning of Bosnia, working

13 groups were set up on either side to deal with the putting into effect of

14 possible agreements. You were a member of the group serving Milosevic,

15 this accused.

16 THE ACCUSED: [Interpretation] Mr. Robinson.

17 JUDGE ROBINSON: Mr. Milosevic, yes.

18 THE ACCUSED: [Interpretation] Mr. Nice cannot include in his

19 question an assertion that I talked to Tudjman about the division of

20 Bosnia. That is just something that he is claiming, and of course it is

21 false. He gives an assertion, "when they discussed the division of

22 Bosnia," et cetera, et cetera. He can ask him what he did, but that is

23 not a fact that he can proceed from.

24 JUDGE ROBINSON: It is part of Mr. Nice's case. It's part of the

25 Prosecution case, and if I'm not mistaken, evidence was led to that

Page 35378

1 effect.

2 MR. NICE: A great deal.


4 THE ACCUSED: [Interpretation] Mr. Robinson. Mr. Robinson, that

5 meeting was just between me and Tudjman in accordance with the evidence

6 that you have. So referring to the evidence is senseless.

7 JUDGE ROBINSON: Mr. Milosevic, it's not appropriate to comment

8 now. Evidence of that meeting has been given, and it's on that basis that

9 the question is being put. At the end of the day, it will be a matter for

10 the Chamber to assess the evidence.

11 MR. NICE:

12 Q. Professor Markovic, in the time that's passed following the

13 accused's observations, have you now remembered your participation in this

14 group that advised this accused? The first meeting was held in the

15 hunting castle near Osijek on the 10th of April of 1991. Think back.

16 A. This was a working group, not a team that served Milosevic.

17 Please, I have to react to such wording. You're a lawyer just like I am.

18 You cannot put it that way that I served Milosevic. It was a working

19 group that included Academician Kosta Mihailovic, Professor Smilja

20 Avramov, Professor Vladan Kutlesic, and myself. On the other side there

21 was Dusan Bilandzic as leader. He's a professor and an academician too,

22 and then also a constitutional lawyer like myself --

23 THE INTERPRETER: The witness will have to slow down. The

24 interpreters cannot follow at this speed.

25 THE WITNESS: [No interpretation]

Page 35379












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 35380

1 JUDGE ROBINSON: We have lost the English translation.

2 THE INTERPRETER: The interpreters note again that the speaking is

3 moving too fast, mentioning names. If you wish to have an accurate

4 transcript, we cannot do it at this speed.

5 JUDGE ROBINSON: Professor, the interpreter has just made a

6 comment that you're speaking too fast, mentioning several names. Please

7 slow down.

8 THE WITNESS: [Interpretation] I'm sorry. I do apologise. It is a

9 professional deformity, because I try to say as much as possible during my

10 classes.

11 So this was a working group on which was Academician Kosta

12 Mihailovic, Professor Smilja Avramov, Professor Vladan Kutlesic, and

13 myself. On the other side, our partners in these talks were Academician

14 Dusan Bilandzic -- I'm not sure whether he's an academician but I think he

15 is, a member of the academy. Professor Smiljko Sokol, Professor Zvonko

16 Lerotic, and I cannot remember who the fourth member was.

17 My partner for these talks was Professor Smiljko Sokol who teaches

18 constitutional law in Zagreb just like I teach it in Belgrade, but I'm

19 saying to you that if you think that university professors divide Bosnia,

20 you are overestimating professors. Professors never divide territories.

21 It is only the top political echelons that can do that kind of thing

22 anywhere in the world.

23 MR. NICE:

24 Q. Of course you were an ordinary member of the SPS, and since you

25 mention one of the members of the other side, let's see what he had to say

Page 35381

1 about it, please. If we can have a look at this next exhibit.

2 Please take the -- as it comes your way, take the B/C/S version of

3 the newspaper article from Nacional, the 26th -- the 25th of October,

4 1996, and if the usher would be good enough to display the English

5 language version of this document, you will see about this meeting. This

6 is how your colleague on the other side described things, Professor. This

7 is from --

8 A. I'm sorry, who is this colleague?

9 Q. Bilandzic. There's a picture of him. And you'll find the

10 following text --

11 MR. NICE: If Your Honours will give me one minute. I wasn't

12 expecting to have to deal with it necessarily at all.

13 Q. If you'd look, please, Professor, on the second of the sheets of

14 the newspaper. Second sheet of the newspaper, left-hand column, at the

15 foot under the cross-heading "Najveca Razilazenja," we see the following:

16 "However, the biggest disagreements Tudjman and I had were in discussions

17 about Bosnia and Herzegovina. At the beginning of 1991, after his

18 negotiations with Milosevic, it was agreed that two commissions were to

19 meet and discuss the division of Bosnia and Herzegovina. Tudjman told us

20 then that he and Milosevic came to an agreement in principle and that we

21 were to work out the concrete details on maps. Academy member Kosta

22 Mihailovic, chief of the cabinet of Milosevic, Kupresic, Smilja Avramov,

23 and the vice-president of the government of Serbia were participants in

24 these discussions from the Serbian side. Three ten-hour rounds of talks

25 were held in Tikves and in Belgrade. However, these talks yielded no

Page 35382

1 results."

2 I return to my original question to you: Were you a member of a

3 group or team, however you prefer to describe it, that took part in

4 discussions with your opposing numbers to consider the division of

5 Bosnia-Herzegovina? Yes or no.

6 A. I was a member of the team, but the division of Bosnia was not

7 discussed at all. What was discussed were general problems that the

8 country was facing and how we professional people viewed this from our

9 professional point of view. As for Bosnia, divisions, looking at maps,

10 heaven forbid, there was no mention of that. No participant can say any

11 such thing. They're all alive. They can all tell you that no partition

12 of Bosnia was ever referred to.

13 Q. Let me invite you to reconsider that last answer in light of the

14 following: You say "heaven forbid," reference to maps. Your colleague

15 Smilja Avramov has given evidence before this Court, and she spoke in

16 quite specific terms about working with maps. So think back, Professor.

17 Tell us what the maps had to do with your meetings.

18 A. I don't know that there was ever any mention of maps and that any

19 maps were shown at all. No maps at all whatsoever at those meetings were

20 brought up. It was a tete-a-tete meeting, one-on-one, and everyone was

21 able to present their own visions of the crisis that the country was in

22 and the ways out of that crisis. There was not a single word about the

23 division of Bosnia, not one single word. And that is what I claim and I

24 have taken the solemn declaration to tell the truth here. So there was

25 not a single word about Bosnia, and I only went to Bosnia two or three

Page 35383

1 times in my life, so I'm not competent enough to speak about it. I don't

2 know the towns and places in Bosnia where the -- what kind of population

3 lives in what area, so how could I be competent enough to speak about

4 Bosnia at all?

5 JUDGE ROBINSON: Mr. Nice, perhaps you should seek to find out

6 whether you're talking about the same meeting. If you're able to pinpoint

7 the membership, the professor can say whether he identified with those

8 persons at meetings, whether he worked with those persons at the meeting.

9 It may be that he's talking about a different meeting.

10 MR. NICE: Well, I can deal with that. The accused had something

11 he wanted to raise.

12 JUDGE ROBINSON: Mr. Milosevic?

13 THE ACCUSED: [Interpretation] I just want to say that Smilja

14 Avramov, Professor Smilja Avramov never testified about having worked on

15 some project to divide Bosnia between Croatia and Serbia. That's

16 completely incorrect.

17 MR. NICE: Absolutely correct. And I didn't suggest otherwise.

18 She gave a different account of the meetings, but she was constrained to

19 accept that she was working with maps. This witness denied fulsomely

20 working with maps at all.

21 Q. And just to tidy that matter up, although again I had hoped not to

22 take this time --

23 A. Mr. Nice, where do you see my name here? Quote it if you can. Go

24 on, say where my name appears here, if you can, since you're operating

25 with this exhibit. Just show me where my name is there if you can find.

Page 35384

1 Go on.

2 MR. NICE: Your Honour, I, of course, don't respond to approaches

3 like that by the witness and it might be thought to be an inappropriate

4 approach.

5 JUDGE ROBINSON: Yes, but it was also the point of my comment

6 earlier as to whether you're talking about the same meeting.

7 MR. NICE: Another document. Perhaps the usher would be good

8 enough. I'm afraid -- this is extract from Smilja Avramov's book where

9 indeed she sticks to her account that there was no reference to division

10 of Bosnia. Let's just look at what she does say, because the witness

11 wants to see his name cited as a member of the group.

12 What she said was this. English version on the overhead

13 projector. Thank you very much.

14 "The presidents of the two republics, Tudjman and Milosevic, took

15 another step, but this time one of the informal nature; they formed two

16 teams in order to unanimously consider the political, economic,

17 constitutional law and the international law consequences of a possible

18 disintegration of Yugoslavia and to find a solution through that prism.

19 It is likely that the decision on that matter was made at a meeting --

20 THE ACCUSED: [Interpretation] Just a moment, please.

21 JUDGE ROBINSON: Mr. Milosevic, yes.

22 THE ACCUSED: [Interpretation] Just a correction here. In the

23 Serbian translation, I heard that they formed two teams so that they could

24 unanimously view. It's not a question of unanimously viewing,

25 "jednoglasno," in Serbian. They set up two teams with the aim of

Page 35385

1 comprehensively reviewing the political, et cetera, et cetera,

2 consequences of a possible disintegration of Yugoslavia and through that

3 prism to seek solutions.

4 JUDGE ROBINSON: We accept that correction.


6 Q. I read on: "It's likely that the decision on that matter was made

7 at a meeting of the two leaders in Karadjordjevo in March 1991, but no one

8 informed the group of the development and the results of those meetings.

9 Footnote 14. The negotiating group on the Croatian side consisted of

10 President Tudjman's advisors Josip Sentija and Dusan Bilandzic, and the

11 professors at the University of Zagreb, Zvonko Lerotic and Smiljko Sokol.

12 The Serbian group was comprised of President Milosevic's advisors; an

13 Academician Kosta Mihajlovic and Vladan Kutlesic, and professors of

14 Belgrade University Ratko Markovic and Smilja Avramov. The first meeting

15 was held in a hunting castle near Osijek on the 10th of April, the second

16 meeting in Dedinje on the 13th of April, and the third meeting in Zagreb a

17 week later."

18 Let's go back to the topic I was about to leave. You were a

19 member of this group referred to by Smilja Avramov and also by Dusan

20 Bilandzic in the Nacional newspaper article that we've read, weren't you?

21 One and the same group.

22 A. That's the same working group; however, I did not attend that

23 third meeting in Zagreb myself. I was there on the 10th of April and the

24 13th of April, but the third in Zagreb -- on the third in Zagreb, a week

25 later, I did not attend that one.

Page 35386

1 Q. So you seem to have a good active recollection of these meetings,

2 or did you only recover your recollection of them when prompted by these

3 documents?

4 A. Well, I told you all this before. Everything you've read out to

5 me I've already told you.

6 THE ACCUSED: [Interpretation] Mr. Robinson, I think that this is

7 highly improper because the witness is being led astray. It is being

8 suggested that he took part in a working group on the division of Bosnia.

9 What is being read out here now with Smilja Avramov makes no mention of

10 the division of Bosnia. It deals with general issues and a comprehensive

11 review of all questions of importance to the Yugoslav crisis. There is

12 not a single mention of Bosnia. And here, in the quotation that we had a

13 moment ago, he says none of the attempts succeeded. The only point - and

14 this was something that Mr. Nice quoted - on which the two sides agreed

15 was the -- that the main determinant for talks was to be 70 years of life

16 in common. All other attitudes were far apart on all other issues. So

17 he's asking the witness about the division of Bosnia and shows that there

18 was a group of intellectuals who exchanged views and opinions by

19 comprehensively reviewing the issues at hand.

20 JUDGE ROBINSON: Mr. Milosevic, I consider your point to be a fair

21 one. It had occurred to me.

22 Mr. Nice, what this witness has said is that he did not

23 participate in any meeting in which maps were used, did not discuss the

24 division of Bosnia. The document that you have cited does not speak to

25 that.

Page 35387

1 MR. NICE: Your Honour, the position is that I neither accepted

2 the account given as to the detail of the meeting when advanced by Smilja

3 Avramov, nor by this witness. On the contrary, the Prosecution case is

4 reflected in the version given by the interlocutor on the other side,

5 Bilandzic. But as to this witness, he sought, I will argue in due course,

6 really to deny participation at all in these meetings, and the witness

7 Avramov made it quite clear that borders were considered and maps were

8 used, and it will be for the Chamber in due course to decide, putting all

9 that evidence together, where the truth lies.

10 JUDGE ROBINSON: Yes. I don't think you can take the matter any

11 further. Please proceed.

12 MR. NICE: Can I ask, however, that both these documents, the

13 newspaper report and the extract from Smilja Avramov's book, be exhibited,

14 please?

15 [Trial Chamber confers]

16 JUDGE BONOMY: Mr. Nice, is the Avramov book not part of the

17 evidence already?

18 THE INTERPRETER: Microphone, please, Mr. Nice.

19 MR. NICE: Our recollection -- I'm sorry if I overlooked it. Our

20 recollection is that it hadn't been produced.

21 [Trial Chamber confers]

22 JUDGE ROBINSON: Mr. Nice, what is the status of the newspaper

23 report which hasn't been confirmed by the witness?

24 MR. NICE: It's a species of hearsay evidence. If there's any

25 doubt as to that being the views of this witness, we can deal with that --

Page 35388

1 not this witness. That being -- there being any doubt as to that being

2 the views of the speaker referred to in the newspaper, we can deal with it

3 in a number of ways, not least, of course, by seeking to call him in

4 rebuttal. But I would ask that the newspaper be admitted at this stage.

5 We will, of course, add him, or can add him to list B so that we remember

6 to consider him as a witness we may wish to call later, but it is like so

7 much of the other material that's been put in, prima facie evidence of its

8 truth and a species of acceptable hearsay.

9 [Trial Chamber confers]

10 JUDGE BONOMY: Mr. Nice, we're back to a problem. Certainly it's

11 a problem I have and I may be alone in this, I'm not sure, but it's the

12 timing of the presentation of this that concerns me. You call it hearsay

13 and that may be a proper description of it, and it may well in an

14 appropriate context be admissible hearsay, but we're in the Defence phase

15 of the case, we're not in the Prosecution phase of the case, and therefore

16 there has to be some way in which it's accepted by the witness before it

17 can have any status. On the other hand, I see the point you make about

18 the potential need to rebut some evidence, and if that's right and you can

19 justify it in due course, is it not then that the question of exhibition

20 arises?

21 MR. NICE: Your Honour, I understand Your Honour's concerns. In

22 each case, the problem arises -- in most cases it arises in the same

23 structural way as it arises here: The Prosecution puts in its case not

24 knowing fully the degree of challenge that there's going to be, so that

25 here primary evidence was given, and extensive evidence, from Ante

Page 35389

1 Markovic, from President Mesic, and so on, of the content of the

2 Karadjordjevo meeting.

3 The accused calls now two witnesses, Smilja Avramov and this

4 witness, who were members of the committee that -- or the group or the

5 team that set to work either in implementation of or in consideration of

6 that primary agreement. They give evidence that the Prosecution doesn't

7 accept, and doesn't accept for good reason because it has evidence or

8 material to the contrary effect, inter alia, the primary evidence and the

9 secondary evidence, for example, coming as to the subordinate meetings in

10 this newspaper article.

11 It wouldn't have been reasonable or necessary or appropriate to

12 put in all such newspaper articles and material as part of our case, and

13 it might have been difficult for us to do so. It would be inappropriate

14 for us not to draw this material to your attention when it's contrary to

15 the defendant's case, and it may be appropriate for us to call the

16 evidence in rebuttal. But here we come to the practical problems of cases

17 of this kind and size. If -- if we deal with this with every conceivable

18 point and try and call it in rebuttal, we'll almost certainly be arguing

19 for a rebuttal case larger than the Chamber would want.

20 JUDGE BONOMY: But my impression, Mr. Nice, is that when this type

21 of material was offered by the Defence in the course of the Prosecution

22 case, it wasn't regularly exhibited because its provenance and its

23 reliability were questionable. And what you've produced is a photocopy of

24 a newspaper report of what someone said. And I have to say that I would

25 have reservations about anyone claiming in a court that he was relying on

Page 35390












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13 English transcripts.













Page 35391

1 what was supposed to have said reported in a newspaper, without some sort

2 of evidence to support the circumstances and context of how it's suggested

3 I came to say it.

4 MR. NICE: Your Honour, beginning with the two points that arise

5 from that. I think in the Prosecution's case, as we've indicated in our

6 recent filing, there were -- there was a broad test for admissibility, and

7 I think documents of this kind did find their way in from time to time at

8 the hands of the accused but I would need a moment of time to find some

9 particular examples. And I would press the Chamber, in light of the

10 particular difficulties that these cases present, to consider this

11 material and indeed to admit it at this stage, because it's important that

12 you should know material contrary to the evidence of a witness such as

13 this exists. And we can consider not least by identifying the witness on

14 our list B of potential additional witnesses, we can decide later on the

15 need to prove this in strict evidential terms or possibly not to rely on

16 this material, if that were to be our decision, if it's not further

17 corroborated by other similar material between now and the end of the

18 Defence case. But it would be unfortunate not to have the material, and

19 in our submission unnecessary not to have the material --

20 JUDGE ROBINSON: Mr. Nice. Thanks very much. Let me hear from

21 Mr. Kay and then the accused briefly on this.

22 MR. KAY: It would be fortunate for Mr. Nice to have this material

23 in rather than unfortunate for the trial process. What he should be doing

24 is putting in evidence that is either adopted by the witness so it has an

25 evidentiary foundation or exhibits from his own case. What we're having

Page 35392

1 now, and there's been a tendency throughout the Defence to have documents

2 wheeled out from other reports, other sources, which apparently go to an

3 issue, that he wants to use the Defence process of the trial, the Defence

4 phase of the trial as a means of getting that evidence in to build up his

5 case without the actual evidence itself having become evidence in the

6 trial proceedings. And he has had 300 days to present a case, and in that

7 time produced thousands, many thousands of exhibits on issues relevant to

8 the indictment.

9 JUDGE ROBINSON: But he says it's hearsay evidence, which is

10 admissible under our Rules.

11 MR. KAY: Hearsay evidence is admissible, but it has -- it has to

12 be evidence in some form. This is just a document which doesn't even

13 mention this accused, as I've been through it carefully and sometimes you

14 miss things, but I can't see his name --

15 JUDGE BONOMY: It mentions the accused. It doesn't mention the

16 witness.

17 MR. KAY: The witness.

18 JUDGE BONOMY: It's certainly difficult for me to tell because I

19 suspect the English is not a translation of the full -- the full article.

20 MR. KAY: I've been looking at the B/C/S text behind which is very

21 -- it's of small typeface and I can't see it there either. So that this

22 extract doesn't mention the witness, the witness disagrees with what's

23 being said, you're asked to consider it as an exhibit in the case because

24 it contains a contrary view. Well, we've had the contrary view. That

25 lasted 300 days. It's now the Defence phase of the case. Evidence can

Page 35393

1 become admissible if adopted, but the danger is that you're going to be

2 building up here a bank of material of no provenance, of --

3 JUDGE ROBINSON: If it's hearsay evidence that's admissible under

4 our Rules, that is to say if it meets reliability tests and so on, isn't

5 the only issue then one of authenticity?

6 MR. KAY: It's not even hearsay evidence. It's not what someone

7 said to someone who's a witness in the case. This man has never been a

8 witness in the case. It's something he said to a journalist on another

9 occasion. It's not even in the category of evidential material of the

10 trial, but it contains an apparently contrary point of view favourable to

11 one side.

12 If it was evidence admissible in that form, it should have come in

13 in their case and have some kind of justification, but we're at the stage

14 of the Defence case now, where the witness says, "Well, I disagree with

15 that and that's not true," and something's being put in where we don't

16 even know if this man agrees to this interview or accepts it. It's just a

17 piece of paper. It's not even hearsay evidence, in my submission. It

18 doesn't -- sorry, Your Honour Judge Kwon, if I can just finish. In an

19 investigative process where all materials may be collected, which is an

20 entirely different concept from the one we're dealing with now and where

21 you more rightly control what's looked at, then it may have some kind of

22 evidential foundation, but in these proceedings and at this stage it does

23 not.

24 Sorry, Judge Kwon. I know you wanted to say something.

25 JUDGE KWON: Yes. Another issue may be the consistency of our

Page 35394

1 practice, or equality.

2 MR. KAY: Yes.

3 JUDGE KWON: During the Prosecution's case, was it not the

4 practice that the Defence was not allowed to present this kind of evidence

5 on the ground that he could call the witness during his case?

6 MR. KAY: Exactly so. For the -- there were occasions when some

7 documents were put in which carried with them a major point, though -- I

8 can't remember now off the -- standing on my feet. There were some

9 occasions and the practice was against it and firm rulings were made and

10 Mr. Milosevic was told firmly, "Well, your chance to produce the evidence

11 will come."

12 And as I say, it would be fortunate for Mr. Nice if this went in

13 because his chance to call evidence has gone, and if he does want a

14 rebuttal case containing this material, those are decisions that he has to

15 make, if he wants to call this witness and have him adopt the material.

16 But it's not anything connected with this particular witness giving

17 evidence at the moment.

18 JUDGE ROBINSON: Mr. Kay, if I may say so, I think you hit upon a

19 point which has been troubling me about our -- the nature of our

20 proceedings here. It's the conflict or the potential conflict between the

21 two legal systems.

22 You mentioned that it would be admissible if it were the

23 investigative, civil law type of procedure, but I have had to retrain

24 myself since I came here. I'm from the common law system, and I think I

25 have eventually succeeded in accepting that admissibility of evidence is

Page 35395

1 on the more relaxed mode in the civil law inquisitorial system, although

2 the presentation of evidence follows the adversarial system. And it is

3 because I am being influenced by that why I would tend to think that it is

4 -- it's admissible. But I'd like to -- I think we would reserve on this

5 particular point and consider it and give a decision on the admissibility

6 later, because we also have to consider the question raised by Judge Kwon

7 of consistency.

8 MR. KAY: There are dangers -- if I may just mention. There are

9 dangers in thinking that when something happens, oh, well it might well

10 fall into the other system. Again, provenance in the investigative system

11 is important as well, and there's a review of the file. You're actually

12 being asked to short circuit that here and now and make this an exhibit,

13 not even marked for identification to give the opportunity for a witness

14 to be called.

15 [Trial Chamber confers]

16 JUDGE ROBINSON: I think I should hear Mr. Milosevic very briefly

17 on this doctrinal point.

18 THE ACCUSED: [Interpretation] Well, I think, Mr. Robinson, that

19 this is quite nonsensical, because not even somebody who grants an

20 interview testifies about that but does so by the by, by the way, in

21 passing. He takes an example of how he was, for example, good friends

22 with Tudjman. Look at what it says. It says Bilandzic, the man Bilandzic

23 is responding to accusations which in his last interview was presented by

24 Tudjman to the media. And then it goes on to say Tudjman went -- was too

25 hasty, a monster, and they were friends in the 1950s. And then to impress

Page 35396

1 the public about that fact, of having been friends, he says, "Well, I even

2 drew up maps with the Serbs about the division of Bosnia." That's what he

3 says, which isn't true, and you can see that from the book. The book is

4 not a yellow press interview; it is a book written by Professor Avramov

5 and speaks about the fact that they discussed the situation in Yugoslavia

6 in a comprehensive manner, nothing to do with the division of Bosnia.

7 This is not even secondhand, hearsay evidence. And if Mr. Nice

8 wants to prove this through Bilandzic, who was the Croatian ambassador to

9 Belgrade at one point, well, why doesn't he bring Bilandzic in to testify?

10 What does it mean, presenting us with completely worthless papers like

11 this? And he had the possibility of bringing them in. And he had the

12 time. Has twice the number of days accorded to him that I have for my

13 case.

14 JUDGE ROBINSON: That part is not true. That part is not true,

15 and we have been through that before. You will be given the same time as

16 the Prosecutor had.

17 What we will do is we will set aside this document and other

18 documents of that kind which the Prosecutor is seeking.

19 THE ACCUSED: [Interpretation] Mr. Robinson.

20 JUDGE ROBINSON: Let me finish. We'll set aside those documents

21 and reserve our position on their admissibility to a later stage.

22 We will exhibit the Avramov document.

23 MR. NICE: And, Your Honour, may I make one final observation?


25 MR. NICE: Picking up simply on His Honour Judge Kwon's point

Page 35397

1 about practice in the Prosecution case. Where words of the kind recalled

2 by Judge Kwon were used, saying, "You can call the witness in the Defence

3 case," and of course I remember such words being used and indeed on

4 several or many occasions, it was in the recognition that there was a --

5 effectively an open opportunity for the accused to call witnesses.

6 The realities of the potential to call a rebuttal witness are

7 different because in real terms one knows that there will be substantial

8 limits on the rebuttal case. And so where a new topic is called, that is

9 the topic of the groups serving the initial Karadjordjevo meeting, not

10 only is it our right to identify contrary material, and possibly our duty

11 to present it in some form, but I would ask you to say that in the

12 particular circumstances, that justifies admissibility. That's all I

13 would add to my earlier argument.

14 JUDGE KWON: Speaking for myself, we may be able to apply a more

15 lenient rule in relation to the rebuttal case, having come from the civil

16 law countries.

17 MR. NICE: Does Your Honour mean more lenient in the sense of more

18 permissive in the calling of witnesses?

19 JUDGE KWON: Maybe.

20 MR. NICE: For that, of course, many thanks as the advocate of the

21 cause, but I recognise the problems that will have for the timetable.

22 Can I move on to another topic?


24 MR. NICE: And this one in fact is going to kick off --

25 JUDGE ROBINSON: The Avramov document is admitted.

Page 35398

1 THE REGISTRAR: It will be 817.


3 THE REGISTRAR: Would you like to give the MFI to Kosovo, Law and

4 Politics which was tendered yesterday in court?

5 JUDGE ROBINSON: Yes, we should. We should.

6 THE REGISTRAR: So that would be 818.

7 JUDGE ROBINSON: Thank you very much, Madam Registrar.

8 THE REGISTRAR: Thank you.

9 JUDGE ROBINSON: Mr. Milosevic wanted to say something. Not on

10 the question of allocation of time.

11 THE ACCUSED: [Interpretation] Mr. Robinson, you said that I had

12 stated something that was not truthful, and I don't think that it is

13 untruthful that Mr. Nice had 300 days and I am to have only 150 days.

14 This is a fact that is known to everyone. Therefore, 300 days --

15 JUDGE ROBINSON: I disallowed that kind of question, that kind of

16 comment.

17 MR. NICE: Should the questioned document be given an MFI number

18 so that it fits in the sequence of events, rather than come out of --

19 JUDGE ROBINSON: Perhaps another kind of notation.

20 MR. NICE: All marked-for-identification exhibits are subject to a

21 decision of the Chamber in due course as to whether they are admitted or

22 rejected, so --


24 THE REGISTRAR: So it will be 819.

25 MR. NICE:

Page 35399

1 Q. Professor Markovic, I'm moving on, and to remind us, we were

2 exploring in the most general terms your role in events. I'll have to

3 come back and deal with the drafting of constitutions, but we know that

4 you became a Deputy Prime Minister for five or six years, was it?

5 A. I was Deputy Prime Minister in the cabinet for six and a half

6 years. I served two terms in two governments. The second term was not a

7 full one.

8 Q. On any reckoning being one of the three Deputy Prime Ministers is

9 to place you at the heart of the administration, isn't it?

10 A. Mr. Nice, I've said several times so far that there were five

11 Deputy Prime Ministers, not three. So there were five of them.

12 Q. To be one of five Deputy Prime Ministers places you at the heart

13 of the administration?

14 A. The role of the Deputy Prime Minister is not regulated in the law

15 on the cabinet. Deputy Prime Minister can stand in for the Prime Minister

16 if he's for some reason absent. And in addition to that, Deputy Prime

17 Minister carries out tasks given to him by the Prime Minister.

18 I was given a task to be in charge of the legislation and legal

19 system of the Republic of Serbia.

20 Q. And you retained your position as a professor at the faculty in

21 Belgrade.

22 A. That's right. I continued to be a university professor. I served

23 for six and a half years as Deputy Prime Minister on a pro bono basis. I

24 received no salary for that. My only income came from my salary of

25 university professor.

Page 35400

1 Q. And one of your fellow -- oh, yes. You got your position as

2 Deputy Prime Minister because of your membership in the SPS party, didn't

3 you?

4 A. There were some Deputy Prime Ministers who were not members of the

5 SPS. For example, Slobodan Radulovic, in charge of commerce, was a member

6 of the New Democracy Party. Svetozar Krstic was Deputy Prime Minister in

7 charge of economy. He was a member of the New Democracy Party. That was

8 in the second -- first term. And in the second term there were even more

9 non-SPS members as Deputy Prime Ministers than SPS ones.

10 Q. Indeed so. One of them was Vojislav Seselj.

11 A. That was in the second determine, lasting from 1998. At the time,

12 he was one of the five Deputy Prime Ministers. I believe he was in charge

13 of the economy.

14 Q. And he had the good fortune to be appointed as a full professor at

15 your faculty, didn't he?

16 A. He was elected for a tenured professor based on a paper prepared

17 by a three-member commission and based on the appointment which was

18 carried out in accordance with the law.

19 Q. Can we now look at how you were reported, and this comes from a

20 media outlet, I think indeed it may have been taken off the internet, but

21 can we see how you were reported to have approached Vojislav Seselj's

22 professorship.

23 MR. NICE: The document coming the way of the Court is Vreme

24 weekly of the 15th of April of 2000. If the usher could display the

25 English version on the overhead projector, providing the --

Page 35401












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13 English transcripts.













Page 35402

1 Q. Professor, on the first sheet of the B/C/S, under the heading

2 Odabrana Bibliografija, about ten lines down there's a sentence beginning,

3 "Tako je..."

4 The article itself, as we can see in the newspaper format, asked

5 whether the Deputy Prime Minister was on the committee for writing -

6 that's you - were on the committee for writing reports on applicants to

7 help in the election of Vojislav Seselj as professor. And your quoted

8 words, and I want to know if these are accurately quoted, are these: "...

9 his works are of unbalanced level of depth, but author's knowledge in the

10 field of political theory, philosophy and history cannot be denied, as

11 well as, possession of information, sharp and literate expression and

12 polemical style, general knowledge and almost passionate dedication to

13 subjects about which he writes ... Dr. Vojislav Seselj masterfully rules

14 the public scene, which is demonstrated in countless public appearances at

15 public debates, television and radio, public lectures, political

16 campaigning ... The crystal clarity of his publicly spoken words, logic

17 in making conclusions, rich lexica and almost perfect intonation of his

18 speech are a guarantee that Dr. Vojislav Seselj will always be an

19 interesting lecturer that students would gladly listen to ... The content

20 and number of his published, expert and technical works, stunning

21 rhetorical gift and suggestiveness of his address to others are more than

22 sufficient reasons (reviewers should know that the necessary reasons are

23 defined by the Law on University...) to propose Dr. Vojislav Seselj for

24 election to the only, and at the same time, highest academic educational

25 and scientific position, which he has had so far - the position of full

Page 35403

1 professorship."

2 Now, these words are, I think, attributed to the commission of

3 which you were a part; is that correct?

4 A. That's correct.

5 Q. And may we take it that you, therefore, agree with these words?

6 A. Absolutely. With everything that is stated here. I can affirm

7 these words today.

8 Q. As a Deputy Prime Minister, one of the five in the government of

9 the day, was there for you, as for Vojislav Seselj, a joint responsibility

10 for what you did, a shared responsibility for what you did?

11 A. What do you have in mind; within the cabinet, within the

12 government? Well, within the cabinet, Mr. Seselj was in charge of

13 economy, and I was in charge - and forgive me for having to repeat this so

14 often - of legislation and legal system. Therefore, there was no

15 cooperation between us as such.

16 And now let me tell you this: When Mr. Seselj was appointed

17 professor, I have to say that the room in which he lectured, there was not

18 enough room for all the students who wanted to come in and listen to him.

19 Students had to stand in the hallway in order to hear what he was saying.

20 He's an excellent lecturer, and I can confirm once again, an excellent

21 university professor.

22 Q. In the government, it would not be proper or appropriate for any

23 one of you five Deputy Prime Ministers to say something publicly that was

24 outside government policy, would it?

25 A. I don't know what you're trying to say. You come from a country

Page 35404

1 which has a cabinet system of government. Those who disagree with the

2 government's position resign from the cabinet. How can you be in the

3 cabinet and not go along with what the cabinet is doing? If that is the

4 case, then you are homo duplex. If you disagree, you have to resign.

5 This is the rule of the cabinet system of government, which exists in

6 Serbia as well.

7 Q. By 1998, you had been involved with Kosovo, on your own account,

8 for several years, hadn't you?

9 A. No. No. Unfortunately, not. I have to confess to you, and I

10 believe that this is my own personal shame, that the first time I went to

11 Kosovo was when I was sent there by the government. The first task I

12 received from the government relating to Kosovo was on the 10th of March,

13 1998, when I was appointed head of a working group for negotiations with

14 the representatives of political parties of Kosovo Albanians. That was

15 the first time I was assigned a task related to Kosovo.

16 Q. No doubt you became aware of government policy in relation to

17 Kosovo?

18 A. I don't know what policy you have in mind, what government policy

19 in relation to Kosovo you have in mind.

20 Q. Just simply generally. If you were being trusted with

21 negotiations in Kosovo and then subsequently in 1999 you headed the

22 delegation at Rambouillet over Kosovo, may we take it that you were

23 informed of all aspects of government policy in relation to Kosovo? It

24 would be hard for you not to be, wouldn't it?

25 A. If you followed closely my testimony, you could see that I was

Page 35405

1 always tasked with issues that had to do with constitution and

2 constitutional acts, and both of these things were included in

3 negotiations with Kosovo Albanians and in Rambouillet, except that in

4 Rambouillet, unfortunately, I was not given an opportunity to carry out

5 that kind of work.

6 JUDGE BONOMY: Professor, I understood you yesterday to say that

7 you accepted a proposition, I think, that was put from a document

8 attributed to you that it was the will of the people that mattered in the

9 end when it came to constitutional issues, and that would presuppose that

10 before you actually get down to drafting or amending a constitution, you

11 need to know what the policy is.

12 THE WITNESS: [Interpretation] Absolutely. That's what I said,

13 that I could write a constitution for Zanzibar, too, if someone were to

14 give me basic parameters for that constitution. A constitution, just like

15 any other task, is a matter of trade.

16 JUDGE BONOMY: Does it not then automatically follow that you must

17 have been aware of what government policy was in relation to Kosovo?

18 THE WITNESS: [Interpretation] Yes, and that's what I'm saying. I

19 just would like Mr. Nice to tell me what policy he had in mind. I

20 naturally know what the government policy is. I was Deputy Prime

21 Minister, and I sat in all the meetings. But I have to say that there

22 always was a Deputy Prime Minister in charge of Kosovo.

23 JUDGE BONOMY: He'll get to that when he has a question to pose on

24 that. His question was a general one which it to appeared to me simply

25 demanded a yes or no answer.

Page 35406


2 Q. And my final question on this topic is this: Did you become aware

3 at any stage of any member of the government, whether a Deputy Prime

4 Minister, Prime Minister, or whether this accused, Milosevic --

5 Mr. Milosevic, did you at any time become aware of anybody having kept

6 back any aspect of policy on Kosovo from you?

7 A. You know what? I couldn't say yes to that question of yours. I

8 think that there existed a frankness among the cabinet members. Cabinet

9 members constitute a team. We had very good relations among us in the

10 government, and I don't think that anybody kept anything back from other

11 members of the government.

12 I am not aware of any secret meetings or any small teams within

13 the government. All issues were discussed in plenaries, in government

14 sessions, and there were various discussions, so-called coordinations,

15 when some special issues in the field of economy were discussed. What I'm

16 trying to say is that there were no secrets among the cabinet members.

17 Q. Very well. I'd like you, please, to look at a very short clip.

18 It comes from 1998, and it will now be played to us.

19 [Videotape played]

20 MR. NICE: There's something wrong with the sound at the moment.

21 [Videotape played]

22 "NARRATOR: What Milosevic was trying to do next.

23 "MR. SESELJ: [No interpretation]"

24 MR. NICE: The transcript available for that.

25 Q. Do you remember that speech?

Page 35407

1 A. I was not present at that rally, at that gathering. This was

2 obviously a rally held outdoors, and I wasn't present. This must have

3 been a rally of the Serbian Radical Party based on the people I see

4 present on the stage.

5 Q. Here's the Deputy Prime Minister speaking, and he says in terms:

6 "If NATO bombs us, no Albanians will be left in Kosovo."

7 In light of what you've told us about collective responsibility of

8 the government, in light of what you have revealed as the views of your

9 commission on the quality of Mr. Seselj in academic and in all other ways,

10 can you please tell us what was meant by a member of your government

11 saying: "If NATO bombs, no Albanians will be left in Kosovo"?

12 A. That cabinet was a coalition government. It wasn't homogenous in

13 the terms of political parties. There were several representatives of

14 several political parties. I did not belong to Mr. Seselj's party. He's

15 a leader of the Serbian Radical Party, and I am a member of the Socialist

16 Party of Serbia.

17 Mr. Seselj uttered these words in his capacity as chairman of a

18 political party. This was the position taken by his political party. He

19 did not utter these words in his capacity as Deputy Prime Minister but,

20 rather, as a party chairman. His political work has nothing, absolutely

21 nothing to do with his academic qualities. It has nothing to do with

22 that. We have to teach ourselves not to use anything else but scholarly

23 parameters when writing these reports. We should absolutely ignore the

24 party words and party work uttered by that person.

25 Q. [Previous translation continues] ... actually answering, really,

Page 35408

1 the question. Let me remind you what you said --

2 A. I am answering your question, but it seems that my answer doesn't

3 suit you.

4 Q. My question to you was: What did he mean by saying: "If NATO

5 bombs, no Albanians will be left in Kosovo"?

6 A. I am not Mr. Seselj's alter ego. You should put that question to

7 him. How could I know what he had in mind when he uttered these words?

8 Q. Remember what you told us about the duty to resign, and remember

9 what you told us about the openness and frankness of government.

10 "Frankness" is my word, I think, not yours.

11 JUDGE ROBINSON: But Mr. Nice, to be fair to him, he has also said

12 that the cabinet was a coalition government, it wasn't homogenous, and

13 Mr. Seselj was speaking not as Deputy Prime Minister but as leader of his

14 Radical Party.

15 MR. NICE: Yes, but my question, if I may put it, is this:

16 Q. To your knowledge, was Seselj ever criticised, sanctioned, or

17 asked to resign because he had made what is a clear threat of what would

18 happen to Kosovo Albanians if NATO bombed?

19 A. You should put that question to the Assembly deputies, because

20 they are the only ones who can initiate a procedure of political

21 accountability of a cabinet member. The Assembly deputies did not put on

22 the agenda a no-confidence vote for Mr. Seselj. That procedure was never

23 instituted.

24 Q. Before we turn to technicalities of the kind you've referred to,

25 just remember all the answers you've given about being at the heart of

Page 35409

1 government - my question - about the openness of government - your answer.

2 What I want to know, what you can help the Court with is this: Did this

3 accused or any other senior members of the government dissociate

4 themselves from these words of Seselj?

5 A. Mr. Nice, how would I know that? These are personal issues. So

6 you should put that question to each individual person. I cannot tell you

7 what somebody else may think about something. You are attributing

8 supernatural qualities to me which I do not possess.

9 Q. I take it, then, that you are effectively saying - help me if I'm

10 wrong - that you're not aware yourself of any action being taken against

11 Seselj for saying what he did.

12 A. There could have been only a no-confidence vote of the Deputy

13 Prime Minister, and there was no such action taken. Prime Minister is not

14 a teacher who can discipline somebody. The government, cabinet members,

15 are appointed and removed from office by the parliament alone, and that

16 can only be done by the parliament, no one else.

17 MR. NICE: May the Vreme article which the witness has adopted be

18 exhibited?


20 MR. NICE: May the video clip, the clip together with the

21 transcript be exhibited?

22 MR. KAY: Can I raise opposition to that? We have a commentary on

23 that video clip that is a statement as to what the accused was doing by

24 whoever the journalist was - we don't know which journalist - and then a

25 statement by Mr. Seselj, not adopted by this witness at all, knows nothing

Page 35410

1 about it, and we're getting into more and more danger with exhibits in

2 this form.

3 If you look at this, the controversiality of the material that's

4 being sought to be introduced in this way as an exhibit, it's not an

5 exhibit of anything. It's got a statement within it about Mr. Milosevic's

6 rejection of Rambouillet, what he was planning to do next, "nationalism

7 had brought Milosevic to power, now it threatens to bring about his

8 downfall --"

9 MR. NICE: I'm not concerned about those passages. It's only the

10 passage in the middle.

11 JUDGE ROBINSON: We will just admit the quote attributed to

12 Mr. Seselj.

13 THE REGISTRAR: The article will be 820. The videotape will be

14 821. The transcript will be 821.1.

15 MR. NICE: Your Honour, I see the time.


17 MR. NICE: I have, for various reasons, proceeded much more slowly

18 than I had hoped. There remains the possibility of the Chamber, if it

19 would accept it, reviewing Professor Kristan's observations on day one.

20 They do start with some effective -- if it's not criticism, it's

21 expressions of regret that he was apparently treated evidentially

22 differently, but I'm sure the Chamber won't be offended by what he says.

23 And the other document -- at least I hope it won't be, I'm sure it won't

24 be.

25 And the other document which at some stage I would like the

Page 35411

1 Chamber to consider is the article that has been made available to the

2 accused and that the witness had for his consideration by Slobodan

3 Samardzic of the Institute of European Studies in Belgrade.

4 [Trial Chamber confers]

5 JUDGE BONOMY: Mr. Nice, I'm concerned about what you're proposing

6 in relation to Kristan, not because I value the 20 minutes of free time

7 but because we haven't made a decision yet on to the extent to which, if

8 any, he might be recalled. And indeed, we were considering whether that's

9 something on which it might be appropriate for you to make a filing. We

10 haven't made a decision on any aspect of that, we're just considering

11 various possibilities.

12 I see no harm in you putting propositions -- speaking for myself,

13 I see no harm in you putting propositions to the witness that you may have

14 derived from advice that you've got from Professor Kristan, but I think I

15 feel at this moment uncomfortable about reading this in advance. There

16 may be other circumstances where it's perfectly appropriate to read things

17 in advance, but I'm uncomfortable at the moment. It may turn out that

18 your suggestion was right, but I don't want to fall into a trap at this

19 stage through the rush.

20 Now, you can't be faulted for taking the time you've taken this

21 morning, and indeed I personally think it important that points are

22 clarified in this evidence. I'm anxious, for example, to hear just

23 exactly what it is that was changed about the significant constitutions

24 here about which there seems to be so much doubt and about which there

25 should be certainty, and therefore if it's necessary to take time to do

Page 35412












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13 English transcripts.













Page 35413

1 that, then so be it. I would be unhappy to hear you protesting today that

2 you are missing out significant elements of the evidence because there

3 wasn't time to deal with them.

4 MR. NICE: Your Honour, I'll take all that into account. The only

5 -- if I understand Your Honour's concerns, the advantage, if it were to be

6 seen as a proper advantage of reading both of these articles --

7 JUDGE BONOMY: The article I have no problem with, it's the

8 Kristan comment.

9 MR. NICE: Yes, is that it would enable me to present the somewhat

10 detailed propositions in a much more efficient and quick way if everybody

11 has pre-read, basically, my cross-examination. Now, if I were simply, for

12 example, to take the name Kristan off the document - I haven't done this -

13 and reduce it to a selection of 20 questions and asked the witness and the

14 Chamber to review them in advance, that might have been acceptable, but I

15 don't press it any further than that. That's the utility that I was

16 seeking to achieve.

17 MR. KAY: Yes, if I can say, the Kristan commentary, it's a

18 commentary on the evidence of this witness. It's a highly unusual form of

19 proceedings, receiving -- it could be a letter to the Judges saying,

20 "This is what I think of this witness's evidence." There could be no end

21 to this. It's a very dangerous and novel form, and we oppose that.

22 The Samardzic --

23 JUDGE BONOMY: It's especially so, I think, Mr. Kay, because the

24 basis on which he might be recalled is to give evidence of fact rather

25 than expert evidence, and we haven't even decided how to categorise that.

Page 35414

1 MR. KAY: Yes. Where it all leads is -- and the Samardzic article

2 -- again, this is a very detailed text here, as I understand it. It's

3 not an exhibit already in the case that you're being asked to look at

4 because it's going to be put for cross-examination purposes to the

5 witness. It's again a text by someone else that you're asked to look --

6 JUDGE ROBINSON: Thank you, Mr. Kay.

7 THE ACCUSED: [Interpretation] Mr. Robinson.

8 [Trial Chamber confers]

9 JUDGE ROBINSON: Mr. Nice, we don't accept the invitation to read

10 documents in advance in this way. Certainly the comments of Professor --

11 of Dr. Kristan on the testimony of Professor Markovic we will not hear. I

12 entirely agree with Mr. Kay that it's dangerous. We don't know what it

13 will lead to. You can seek to adduce the document by Slobodan Samardzic

14 when we return.

15 We'll break for 20 minutes.

16 THE ACCUSED: [Interpretation] Mr. Robinson.

17 JUDGE ROBINSON: Mr. Milosevic.

18 THE ACCUSED: [Interpretation] Could I please be given Samardzic's

19 text in the Serbian language? I tried to. Did Professor Markovic get

20 Samardzic in English or in Serbia?

21 THE WITNESS: [Interpretation] Not in Serbian. I got it in

22 English.

23 MR. NICE: He got it in English. It's an English document.

24 JUDGE ROBINSON: Well, the rule of course applies, Mr. Nice, and

25 you will have to put it on the ELMO and cite short passages.

Page 35415

1 We'll break for 20 minutes.

2 --- Recess taken at 10.37 a.m.

3 --- On resuming at 11.04 a.m.

4 JUDGE ROBINSON: Mr. Nice, please continue.


6 Q. Professor Markovic, just so that the Chamber can remember the

7 history of your functions, as well as being, as you say, an ordinary

8 member of the SPS following your resignation from the Main Board, you were

9 in fact also a member of the SFRY Assembly for a time, were you? Sorry,

10 of the FRY Assembly.

11 A. Yes. That's precisely what I said. I was a member of the federal

12 parliament, of the lower house.

13 Q. So that from the beginning of the 1990s, when you were a founding

14 member of the SPS and on its Main Board for a time, you were a member of

15 the SPS, and you were either a member of the FRY Assembly or a Deputy

16 Prime Minister, and that took you right the way through to 2000.

17 A. That's not right. As for political functions in the party, I lost

18 them or, rather, I didn't have them from 1990 onwards, the end of 1990.

19 So in 1992, I was elected federal MP on the SPS list, but I did not hold

20 any party office. It was in 1994 that I became Deputy Prime Minister, and

21 I ceased being a federal MP in 1996.

22 Q. Now, I want your help in relation to Kosovo in this way: Evidence

23 has been given before this Court, Professor Markovic, that some 1.45

24 million people were displaced, some 860.000 were forced to leave Kosovo,

25 and some 10.000 Kosovo Albanians were killed. And the evidence -- it will

Page 35416

1 be for the Court to decide, the evidence shows patterned use of special

2 police forces and the VJ and systematic removal of papers of

3 identification from those expelled.

4 Can you please, from the heart of government, tell us what was the

5 policy that led to that happening?

6 A. Mr. Nice, I have to correct your mistakes yet again, because I

7 cannot answer questions that are wrong.

8 First of all, according to your math, Kosovo had a population of

9 over 2.3 million. I think that you have exaggerated a lot. The actual

10 population was at least a half of that. That is one matter.

11 Secondly, as far as the government is concerned, the government

12 policy, it always pursued a policy of seeking a political solution to

13 Kosovo and Metohija, that is to say not to have an armed conflict but to

14 have a political solution, and that is precisely why on the 10th of March,

15 1998, the delegation went there, in order to have political agreement

16 reached and bloodshed prevented.

17 Q. It may be I didn't make myself clear, and I'm sorry if I didn't.

18 I'm concerned with the suffering that happened in 1999, after the failure

19 of Rambouillet, where you remained in office as a Deputy Prime Minister in

20 a government that was transparent, as you explained it to us, so that you

21 would know what was going on.

22 Let's just deal with the 10.000 Albanians killed. What was the

23 policy, please, of your government that led to that happening?

24 A. That question has nothing to do with government policy. Of course

25 the government did not pursue a policy of killing people.

Page 35417

1 Q. Let's take another aspect of it. Forces eventually under the

2 control of this accused, the army and others, systematically seized

3 documents of identification from Kosovo Albanians numbering - and this is,

4 incidentally, according to the UNHCR - some 860.000 forced out of their

5 country. What, please, was your government's policy that led to that

6 happening? Was it to expel all Albanians, or was it to achieve a dramatic

7 change in the ethnic composition of Kosovo? Please tell us.

8 A. Again, I'm telling you. In the government I was in charge of

9 legislation and the legal system. The government, at its sessions, and

10 this is what you've been ascribing to the government, the government never

11 pursued that kind of policy. The government had a policy that was the

12 complete opposite. And I told you that in pursuit of that policy I went

13 to Kosovo 15 times. However, obviously there was no wish to have this

14 political settlement that we had proposed.

15 Q. Do you remember I asked you earlier whether in your judgement

16 anything was ever kept away from you about policy in relation to Kosovo or

17 generally, and you didn't identify ever being aware of things being hidden

18 from you. Do you remember that?

19 A. Well, you see, if something had been hidden, I would have had to

20 know that it had been hidden from me, but I am not aware of anything

21 having been hidden away from me.

22 Q. Professor Markovic, you dealt with Sainovic, didn't you? You

23 dealt with the accused. You were trusted in the early stages to deal with

24 all aspects of Rambouillet. Immediately following the failure of the

25 Paris talks and the bombing started by NATO, Kosovo Albanians started

Page 35418

1 dying and being expelled in large numbers. Can you explain it for us at

2 all?

3 A. First of all, I could not have cooperated with the Prime Minister,

4 Nikola Sainovic, because we had two completely different departments that

5 we were in charge of. He is an engineer. He was in charge of the

6 economy. I am a lawyer, and on the republican government I was in charge

7 of the legislation. We were on the delegation in Rambouillet, but as you

8 saw, this delegation had a total of 12 numbers and the head of the

9 delegation. So he was one of the members of the delegation.

10 Q. My last two questions on this topic are these: Your fellow Deputy

11 Prime Minister made it clear that if there was bombing, Albanians would

12 suffer. That was the policy of your government, and it was put into

13 effect, wasn't it?

14 A. Well, that is your assertion, Mr. Nice. I told you a few moments

15 ago that that was not right. Mr. Seselj certainly stated that in his

16 capacity as leader of the Serb Radical Party. You saw him speaking at a

17 rally, not at a government meeting. You would be right if you had shown

18 him uttering these words at the government meeting.

19 As for what political leaders stay in the street, they say all

20 sorts of things in order to win votes because they are worried about the

21 elections.

22 Q. You know perfectly well, Professor Markovic, that politicians in

23 office can't divide up their public utterances from their responsible

24 government utterances. What you've been saying, and you've said this

25 several times, is nonsense, isn't it? Once you're a politician, you're

Page 35419

1 responsible for what you say.

2 A. What you said applies to a one-party government, a homogenous

3 government. A government cannot discipline political parties. Every

4 political party has its own autonomy because it has another concern, that

5 is the elections that are coming up.

6 JUDGE KWON: Excuse me. Professor Markovic, in previous question

7 put by Mr. Nice, you're asked, I will quote: "Immediately following the

8 failure of the Paris talks and the bombing started by NATO, Kosovo

9 Albanians started dying and being expelled in large numbers. Can you

10 explain it for us at all?" But I don't think I heard your answer to that

11 question. Could you give an answer to that question.

12 THE WITNESS: [Interpretation] Well, I cannot give an answer

13 because I don't know. I don't know. I submitted a report to parliament

14 about the course of the Rambouillet and Paris negotiations, and the

15 following evening the bombing started. What happened after that, well,

16 you see, when the bombing was on, the government did not have sessions.

17 The government was relocated because the government building was a target

18 and it had been hit. Half of the building was destroyed.

19 JUDGE KWON: Yes, Mr. Nice.

20 MR. NICE:

21 Q. Just to see if I follow your answer to His Honour Judge Kwon.

22 Here you are at the centre of government in one of the greatest crises

23 Serbia has suffered, where the most treasured part of Serbia, if we are to

24 believe the protestations of Serb politicians, is suffering a forced

25 exodus of a majority of its, as you would say, Serb republic population,

Page 35420

1 because the Kosovo Albanians are Serb republicans, on your understanding,

2 and you cannot offer any explanation in the year 2005 for what happened?

3 Is that your position, Professor Markovic?

4 A. Well, I do have an explanation. Of course I have an explanation.

5 Of course the people are going to flee from bombs. People try to save

6 their lives. How many times was Kosovo bombed? We watched all of that.

7 How many people left Belgrade, if you wish, and went to other countries?

8 How many people made it possible for their children to go away to be safe,

9 because you didn't know when a bomb would fall. Only around my own

10 building three bombs fell, and also windows were being shattered and

11 falling out of the Ministry of the Interior that is in the neighbourhood.

12 People were fleeing in order to save their lives.

13 Q. Professor, the truth is, as you revealed in your last answer to

14 the accused when he was examining you, you are one of those Serbs who

15 believes that Serbs' dignity is more important than the lives of others,

16 and you know perfectly well that a policy was pursued by your government

17 that led to the extreme suffering of Kosovo Albanians, and you're simply

18 denying it.

19 A. According to what you said, it seems that it was the Serb

20 government that bombed the Albanians and that it bombed the population in

21 general, that it was the Serbian government that did that. That is the

22 only thing that can be inferred from your question. Who was it that

23 bombed the country? Those are the ones who caused the loss of lives and

24 the exodus, those who bombed the country. The government simply did not

25 want to agree to that, to have a shameful occupation of the country and to

Page 35421

1 succumb to an ultimatum.

2 Q. Go back in time now to where we were at the end of my questioning

3 yesterday, and I'm going to try to deal with matters sequentially.

4 MR. NICE: And Your Honour, I will deal in some detail with all

5 the constitutions so that we can become familiar with them to the extent

6 necessary.

7 I should make the point to the Court that the Prosecution, in

8 dealing with them in detail, doesn't concede that the shape of any of the

9 constitutions or the manner of their change necessarily affects the

10 position in law at all, but it's been adduced by us as part of the general

11 background, referred to in greater detail by the accused through his

12 witnesses really for the purposes of good faith on his conduct of events,

13 and to that extent we must deal with it.

14 Q. Is it right, Professor Markovic, that the amendments upon which

15 you were engaged in 1989 were focused on denying the provinces veto

16 rights?

17 A. That was not the point of the amendments at all. I've already

18 told you that the vast majority of these amendments had to do with the

19 economy and a different constitutional concept of the economy and the

20 delegate system. Only one out of a total of 41 amendments, only one

21 amendment, amendment 47, has to deal with constitutional powers in the

22 Republic of Serbia and denying the provinces the right of veto to changes

23 of the constitution.

24 Q. I have here, and you can see it, of course, off a media website, a

25 quotation of yours made in the year 2000 in March, where you explained

Page 35422

1 that the provinces were not excluded from exercising constituent

2 authority, they were only denied veto rights. You can see the quote if

3 necessary, but -- and I'll just repeat it so that it can be on the

4 transcript.

5 "The provinces were not excluded from exercising constituent

6 authority. They were only denied veto rights."

7 Is that your explanation, at least in part, for what happened in

8 1989?

9 A. I just presented the substance of amendment 47. I put it very

10 briefly, because Mr. Robinson asked me to talk about amendment 47 in the

11 briefest possible terms, so I referred to it in one sentence only.

12 However, if you insist, I can explain amendment 47 to you.

13 The autonomous provinces still take part in changing the

14 constitution of the Republic of Serbia. However, in terms of their

15 opinion of changes to the constitution, if it differs, then there would be

16 a republican referendum. They can only ask for a referendum in the

17 republic. They can only ask for the citizens themselves to vote in a

18 referendum if the opinion of the province is not taken into account in

19 relation to constitutional changes.

20 I put it in the briefest possible terms out of respect for what

21 Judge Robinson asked.

22 Q. Move on. As you know, at the beginning of 1989, there was a

23 strike of miners. The Kosovo politician Vllasi was arrested, and on the

24 27th of February, a state of emergency was declared by the Presidency;

25 correct?

Page 35423












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Page 35424

1 A. Mr. Nice, I told you and I told the Court that I entered politics

2 only in 1992. I know about all of this only as a reader of the

3 newspapers. I do not have any firsthand knowledge about this. And of

4 course a lot of time has gone by.

5 Q. You were on the commission dealing with the amendments. Were you

6 really not aware of circumstances surrounding the approval by the Kosovo

7 parliament of those amendments when they were -- when that Assembly

8 apparently dealt with them?

9 A. Mr. Nice, the Constitutional Commission is an auxiliary working

10 body of the Assembly. It is the government, the Presidency then of the

11 Republic of Serbia, and the Assembly that pursue policy. The

12 Constitutional Commission is one of the commissions or, rather, auxiliary

13 working bodies. You are giving the Constitutional Commission some kind of

14 importance that it never really had.

15 Q. I've asked you about the state of emergency, and I note that in

16 your own proposed exhibits one that was not produced yet was tab 38, which

17 is the confirmation by the Assembly of the SFRY of the state of emergency.

18 Perhaps you'd just like to remind yourself of that, coming your way. We

19 can provide a copy if that makes it quicker. Perhaps it has been

20 admitted.

21 What we see here is the Assembly supports the measures of the

22 Presidency, introduced -- you can see it on the screen under

23 "Conclusions." You can see that, "The Assembly supports the special

24 measures introduced by the Presidency ... These measures have been

25 introduced to preserve and protect the territorial integrity and

Page 35425

1 constitutional order of the SFRY, to secure the public order, peace,

2 freedom of work and well-being of all citizens, as well in order to

3 normalise the general state of affairs in Kosovo."

4 So emergency powers granted and by the time these amendments were

5 dealt with, they were dealt with first in Vojvodina, I think, on the 10th

6 of January, and they were then dealt with in -- I beg your pardon, on the

7 10th of March, and then they were dealt with in Kosovo on the 23rd of

8 March.

9 You must have been following, as an interested member of the

10 commission, the question whether these amendments would be passed in

11 Kosovo, weren't you?

12 A. The amendments were adopted in the parliament of Kosovo with a

13 required majority, a two-thirds majority.

14 THE ACCUSED: [Interpretation] Mr. Robinson.

15 JUDGE ROBINSON: Yes, Mr. Milosevic.

16 THE ACCUSED: [Interpretation] This tab 38, these are conclusions

17 of the Assembly of Yugoslavia. If I remember correctly, if my memory

18 serves me well, this was admitted into evidence during the

19 examination-in-chief. Professor Markovic even answered questions in

20 relation to these conclusions of the Assembly of Yugoslavia. The

21 assessment of the changes in Serbia was a very favourable one.

22 JUDGE ROBINSON: Thank you for being so alert, Mr. Milosevic.

23 MR. NICE:

24 Q. Before I move to the amendments themselves, Professor Markovic,

25 were you aware of the presence of threatening force in Kosovo in the form

Page 35426

1 of tanks and helicopters pursuant to the special powers given under the

2 emergency? Yes or no.

3 A. No.

4 Q. Very well. Let's move --

5 A. I didn't know that at all.

6 Q. The consent given by Kosovo is then reflected at the final stage

7 on the 28th of March in Belgrade, and if we could display on the overhead

8 projector further pages from marked for identification Exhibit 818, at

9 page 55. We will just look at three of the actual amendments, to one of

10 which you have already referred.

11 MR. NICE: 55 in English, and 54, if the witness wishes it, from

12 this document in Serbian.

13 Q. So amendment 27 says this: "In the official and public use in the

14 SR Serbia shall be the Serbo-Croatian language and its alphabets...

15 "In Serbia, in the territories inhabited by individual

16 nationalities, the Serbo-Croatian language and its alphabets and the

17 languages of these nationalities and their alphabets shall be in equal

18 official use, public use ..."

19 And then the next paragraph: "The official and public use of the

20 Cyrillic alphabet shall be prescribed ..."

21 Then the next paragraph: "The provincial Constitutions shall

22 specify, consistent with the present Constitution, that the languages of

23 nationalities shall be in equal official and public use in the territories

24 of the Autonomous Provinces."

25 That's one of the amendments which changed the previous rule on

Page 35427

1 language, correct?

2 A. That's precisely what I said; that the Constitutional Court of

3 Yugoslavia found, ruled, that in para 3 of this amendment, or point 3 of

4 this amendment was in contravention with the federal constitution, the

5 constitution of the federation. And it found only three such instances of

6 contravention; when it came to language, when it came to real estate, and

7 when it came to the election of electoral units in municipalities.

8 Q. But we see what was proposed. What was intended to be applied to

9 Kosovo here?

10 There is another amendment that I don't have in English --

11 JUDGE BONOMY: Before you move on to that, Mr. Nice, one part you

12 didn't specifically draw attention to you is in the third paragraph of

13 that amendment, where it says: "State agencies and organisations

14 exercising public powers in the Socialist Republic of Serbia shall use the

15 Cyrillic alphabet unless specified otherwise by republican statute in

16 individual cases."

17 Now, is that of any significance?

18 MR. NICE: I'm grateful to Your Honour.

19 Q. Could you explain, first of all, Professor, why it was thought

20 appropriate to compel the use of the Cyrillic alphabet in what you were

21 dealing with as the unsatisfactory position of the province of Kosovo?

22 A. No, not in Kosovo. It says here the republican law shall

23 determine when in public use -- when the Cyrillic alphabet is in public

24 use. So it is the law that is to stipulate that, not the amendment. The

25 law shall enforce such-and-such.

Page 35428

1 Q. But was that intended to extend --

2 A. The Constitutional Court ruled that that provision was in

3 contravention to the constitution, and I have the views of the

4 Constitutional Court about it here.

5 Q. We're concerned with what you and the others drafting these

6 amendments were actually trying to achieve, so please help us with the

7 question. Why was it thought appropriate to compel the use of the

8 Cyrillic alphabet, no doubt included in Kosovo?

9 Professor Markovic, please -- I know you've got to look at the

10 text, but please help the Judges. Tell us, how was compelling the use of

11 the Cyrillic alphabet going to help the circumstances in Kosovo where you

12 had 95 per cent Kosovo Albanians? What was the purpose?

13 A. I do apologise for having to look at the text, but I cannot rely

14 on your quotes because you quoted erroneously several times from the

15 constitution. So I have to take time to look at the actual text of the

16 constitution. That's why I'm looking at this.

17 But let me say simply why the Cyrillic alphabet. The Cyrillic

18 alphabet is more widespread, although the Latin script was treated on a

19 footing of equality and is taught in primary schools, the same as Cyrillic

20 is taught. I don't know how it is that through an alphabet on script you

21 can express nationalism and national disenfranchisement, if you want. So

22 the Albanian language cannot be written, for example, in the Cyrillic

23 script, with the Cyrillic alphabet. It has its own script. What we're

24 talking about here is the Serbian language.

25 JUDGE KWON: If I --

Page 35429

1 JUDGE BONOMY: Professor --

2 JUDGE KWON: If I can be clear about this. Professor, could you

3 tell us whether, before this amendment, only the Albanian language was

4 used in offices in Kosovo? So the purpose of this amendment to use -- to

5 let both of the languages be used in the official area?

6 The second sentence of the fourth paragraph says that: "The

7 autonomous provinces shall ensure the equality of the languages and

8 alphabets of the nationalities and the Serbo-Croatian language and its

9 alphabets." If you could help us with this.

10 THE WITNESS: [Interpretation] They were used completely equally.

11 Both languages were in equal use. The Cyrillic Latin script only refers

12 to the Serbian language, because the Serbian language has two scripts or

13 alphabets, the Cyrillic and the Latin. It doesn't mean repression of the

14 Albanian language as an official language. It remained the official

15 language. And when I refer to the decision of the Constitutional Court,

16 that is one of its findings and what it criticises. He says that in this

17 way, the use of the Latin script in state organisations or institutions or

18 public institutions can only be determined, et cetera, et cetera.

19 JUDGE KWON: Sorry to interrupt you, but my question is in factual

20 terms whether Serbo-Croatian language was used in offices in official

21 areas in Kosovo before this amendment.

22 THE WITNESS: [Interpretation] Yes, it was, Serbo-Croatian and

23 Albanian on a footing of complete equality. We're just talking about the

24 script here, not language; the alphabet or script and not language.

25 JUDGE KWON: Then why did you need this kind of amendment at that

Page 35430

1 time when the Serbo-Croat is used in official areas?

2 THE WITNESS: [Interpretation] Well, as I say, it only has to do

3 with the alphabet, the script, not language. Quite simply, the mass of

4 the population finds Cyrillic closer to them. For example, I write in the

5 Cyrillic script. I find it easier, because we have become used to it,

6 whereas the younger generations have become more -- better versed in the

7 Latin script because you have foreign languages, of course. That's all

8 the Latin script. So the younger generation tend to write in the Latin

9 script whereas I in the older generation tend to write in the Cyrillic

10 script, but this provision is in contravention to the federal constitution

11 and that was the ruling of the Constitutional Court.

12 JUDGE BONOMY: Professor, the sentence I mentioned and which I

13 think Mr. Nice's question relates to is the one in the third paragraph

14 which requires the state agencies and organisations to use only the

15 Cyrillic alphabet in writing, unless specified otherwise by republican

16 statute in individual cases. And I think I'm right in understanding, and

17 I just want to be absolutely clear, that that's the passage which was held

18 to be unconstitutional and that in fact if it hadn't been so, it would

19 have enabled the Serbian republican authorities to insist on the use of

20 Cyrillic alphabet only in the written work of the state agencies and

21 organisations in Kosovo. And following on that, Mr. Nice is asking you

22 why, why it was thought appropriate to do that when the bulk of the

23 population were Kosovo Albanians.

24 THE WITNESS: [Interpretation] I should like to ask you to do your

25 best to understand me. This provision relates to the Serbs, not the

Page 35431

1 Albanians, because they were using their own language and their own

2 script, their own alphabet. So in the official use for Albanians, you had

3 the Albanian language. This targeted the Serbs alone, that is to say

4 those using Serbian as the official language in the work of state organs.

5 This did not relate in any way to the Albanians, because the Albanian

6 language was on a footing of complete equality with the Serbian language

7 in Kosovo and Metohija.

8 JUDGE BONOMY: But that's not what it says, Professor. It says

9 clearly that the official and public use of the Cyrillic alphabet shall be

10 prescribed by republican statute, and state agencies and organisations in

11 the Socialist Republic of Serbia shall use the Cyrillic alphabet, and that

12 socialist republic includes Kosovo.

13 THE WITNESS: [Interpretation] But already in the following

14 paragraph, as you say, para, we see a provision which is special in

15 relation to the previous one, and it says the provincial constitution, in

16 conformity with this constitution, shall establish the languages of the

17 ethnic groups on the territory of the autonomous province. So take the

18 provisional constitution and you will see that Albanian was completely

19 equal to the Serbian language. And let me repeat once again, para 3

20 refers exclusively to those people speaking Serbian, not the people

21 speaking the Albanian language.

22 JUDGE ROBINSON: But I think what Judge Bonomy was asking was

23 where is that gathered from the text? Is it a matter of interpretation?

24 Could you explain? It's certainly not explicit in the text.

25 THE WITNESS: [Interpretation] Well, you can't have it in that

Page 35432

1 text. You can have it in the constitution of Kosovo. That's where it

2 will be, and that's where it states that, in the constitution of Kosovo,

3 whereas these are amendments to the constitution of Serbia. And it says

4 the provincial constitutions shall specify which languages of

5 nationalities shall be in equal official and public use. Take the

6 constitution of Kosovo and you'll see what it says, because legal norms

7 are systemically expressed. You can't draw your conclusions about the

8 whole on the basis of a single part. You must look at the whole together.

9 And for official languages in Kosovo and Metohija, it is the

10 constitutional -- the provincial constitution that specifies that, not

11 this one, the constitution of Serbia. And this is the result of the

12 social set-up of the Republic of Serbia itself. That was the system that

13 prevailed.

14 JUDGE BONOMY: It is interesting to observe also, Professor, that

15 in the next paragraph, where reference is made to the provincial

16 constitutions, that they have to specify that the languages - not the

17 languages and alphabets but the languages - of nationalities shall be in

18 equal official and public use, and that they have only to ensure the

19 equality of the languages and alphabets of the nationalities and the

20 Serbo-Croatian language and its alphabets without reference to use in

21 public -- rather, in official and public organisations.

22 However, I need take no more of your time on this, Mr. Nice.

23 MR. NICE: I'm grateful.

24 Q. Can we now turn to one other of only two other amendments I need

25 touch on. I don't have an English translation of this. It can be found

Page 35433

1 in Defence tab 17 as one of the untranslated parts of the Official

2 Gazette. So if we can simply place on the overhead projector what is, top

3 left-hand corner, page 600 of this Cyrillic text of defendant's tab 17 and

4 look at amendment 43, but for the usher it's the top right-hand part of

5 this page, which is amendment 43, subparagraph 3.

6 Can you confirm for us, Professor, that this amendment gave power

7 to the President of Serbia to empower republican bodies to take over

8 provincial organs in certain circumstances?

9 A. Once again a correction. The president of the republic did not

10 exist pursuant to this constitution. It was only with the 1990

11 constitution that this existed. What existed was the Presidency of the

12 Republic of Serbia as a collegiate organ.

13 Q. The Serbian Presidency could empower republican bodies to take

14 over provincial organs; yes?

15 A. Absolutely, when we're talking about this particular function,

16 because the view was taken, and I've already explained this in response to

17 the questions asked, that this was a function which is an eminently state

18 function of interest to the republic as a whole and, therefore, its

19 functioning as a whole cannot be left to the provinces themselves. So it

20 is a state function. And I'd really like to hear any autonomous unit in

21 the world having competencies in this sphere. It's a state function, a

22 state empowerment linked to the state, and it was the Republic of Serbia

23 that enjoyed statehood.

24 Q. So by this measure, the potential for centralisation of the

25 Serbian state was enhanced, wasn't it?

Page 35434












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 35435

1 A. I don't agree at all with that. Why centralisation? Why the

2 centralisation of the state? Things are being brought back to the norm,

3 the normal. The state is exerting its state functions. You can't have a

4 province or municipality performing something that is only -- that is only

5 the state that should be empowered to do. We know which functions the

6 state carries out, what a territorial unit is and what a unit of local

7 self-government is and what they are empowered to do.

8 Q. The third amendment is the one you've already dealt with, 47.

9 Amendment 47, Article 3, which is contained in tab 17, we needn't look at

10 it again, which withdraws Kosovo's -- province of Kosovo's veto power over

11 changes in the constitution.

12 Now, when these amendments were promulgated, it was not made

13 clear, was it, Professor, the degree to which they were going to be used

14 and extended and, in particular, it wasn't made clear that the

15 Constitutional Court was going to be wound up, that the Assembly was going

16 to be wound up, and so on. None of that was made clear to those listening

17 to whatever public debate there was.

18 A. I don't know what your question is. What are you asking me?

19 Q. I'm asking you, to your knowledge, in the public debate such as

20 there was, was it ever made clear that there was going to be the use of

21 these amendments basically to wind up Kosovo altogether; to take away the

22 Assembly, to take away the Constitutional Court, to take away the Academy

23 of Arts and Sciences, to take away the Institute of Kosovo History. Was

24 any of that made clear by those of you who were promulgating these

25 amendments?

Page 35436

1 A. None of that is correct. None of what you're saying now is

2 correct. These amendments did not take away any of those things. They

3 continued to enjoy what they had before; the Constitutional Court and the

4 Presidency and the provincial Executive Council and a provincial Assembly

5 and their own Supreme Court and constitution and their laws and

6 provisions. Where do you get this idea from at all that they lost and

7 forfeited all that through the amendments? No. They retained it all

8 through the amendments. The only thing they forfeited was the veto to the

9 republican constitution.

10 Q. My earlier suggestion that you justify these amendments on the

11 grounds that they were denied only the veto may be in fact your position.

12 Is it your position that withdrawing the veto is what justified these

13 amendments?

14 A. I don't understand. How do you mean justified these amendments?

15 There were 41 amendments. There were 41 amendments in all. This

16 amendment is just one of these 41 amendments. So I don't know what you

17 want me to say. What do you want to hear from me?

18 Q. I'll move on and come back to it. You will remember that on the

19 28th of June, 1989, 500th anniversary of the great loss of the Serbs at

20 Kosovo Polje, the accused made his famous speech. Were you present? You

21 can't have been because you've never been to Kosovo. No, in 1989 you had

22 been to Kosovo. Were you present?

23 A. No, I was not present at that meeting, and I say unfortunately so.

24 Until I became vice-premier, I had never visited Kosovo at all. I say

25 unfortunately.

Page 35437

1 Q. [Previous translation continues] ... how these amendments perhaps

2 took effect.

3 MR. NICE: If the Chamber would be good enough sticking with

4 marked for identification number 818, which I'd be grateful if it could be

5 placed on the overhead projector at page 57.

6 Q. We will find that as early as July 1989, a couple of months, a few

7 months after these amendments, this is what's done -- and in your case,

8 Professor, the document concerned can be found on page 56.

9 "The law on the restriction of real property transactions.

10 "Real property transactions between physical persons, and between

11 physical and civil legal persons in the territory covering a part of the

12 territory of Serbia within the territory of Vojvodina, shall be restricted

13 for a period of 10 years ..."

14 And then Article 3: "The commission formed by the Assembly of

15 Serbia shall authorise a real property transaction specified in Article 1

16 of the present Law, upon being satisfied that the transaction will not

17 result in a change of the national structure of the population or the

18 emigration of members of a certain nation or nationality."

19 Now, this law, was this something that could only be achieved

20 following the amendments to the constitutions? This time it happens to be

21 Vojvodina, but there was a similar one for Kosovo.

22 A. Unfortunately, I don't have the text in Serbian. I'm looking at

23 it in English, and from this portion, I can't see if --

24 Q. Page 56.

25 A. Where? Which page? Which page 56?

Page 35438

1 JUDGE ROBINSON: It should have been placed on the ELMO.


3 Q. I'm so sorry if you didn't have it. Page 56 for the witness, page

4 57 for the ELMO. There it is.

5 A. Yes. And what's the question? I have the text now in Serbian.

6 Q. This promulgated for Vojvodina and to restrict ordinary sales of

7 property between individuals, would that have been possible without these

8 1989 amendments, or was it only possible to achieve this sort of a law for

9 Vojvodina after the amendments?

10 A. These amendments were passed in March 1989 and I can't see when

11 the law was passed, but at all events, and this is what I said on the

12 first day of my testimony, the Constitutional Court of Yugoslavia found

13 that the provisions of the amendment to the constitution of Serbia

14 limiting the real estate transactions was in contravention with the

15 federal state. So it was the Constitutional Court which had provided the

16 Assembly with its ruling and opinion that this provision of the amendment

17 was in contravention to the constitution of the federal state.

18 But I cannot see from this what date this law was enacted. I can

19 just see that it says Official Gazette number 30/89. But I'm not a

20 professional -- I'm not expert in the realm of real property transactions,

21 real property laws, so I'd have to read the foregoing laws to see whether

22 it was regulated in some other manner by the previous law in comparison to

23 this law.

24 Q. My suggestion to you is very simple: Amongst the objectives of

25 the 1989 amendments was the objective of population or demographic

Page 35439

1 control, and that's made as clear as day by the rapid introduction of an

2 extraordinary restriction on the sale of property. It has nothing to do

3 with vetoes, it has nothing to do with structure of constitutions; it has

4 to do with demographic control. Isn't that right, Professor?

5 A. The Constitutional Court stated that that was in contravention to

6 the federal constitution. So what you're saying is something that was

7 expressed in legal terms by the Constitutional Court. The Republic is

8 duty-bound to do away with that contravention from its amendments in the

9 way it is at variance to the federal constitution. Now, your

10 explanations, everybody has the right to make their own conclusions

11 because you go through your thought processes and you can interpret it any

12 way you like.

13 Q. The next thing in date order that you can probably help us with is

14 this --

15 MR. NICE: Your Honours, I don't have a copy of this. I can get

16 it copy of it but I don't want to burden you too much with more paper.

17 It's referred to in the document before you but it's only referred to in

18 the commentary section on page 51.

19 Q. In March of 1990 following these amendments, a programme was

20 announced called the Programme for the Realisation of Peace, Freedom,

21 Equality, Democracy, and Prosperity, and it was pursuant to that programme

22 and under the amendments that various other laws were made. Am I right

23 about that, Professor?

24 A. Well, please believe me when I say I just don't know. At that

25 time - let me repeat again - I was just a university professor. I don't

Page 35440

1 know. I wasn't a deputy at the time. I really don't know.

2 MR. NICE: On the same document marked for identification 818, can

3 we now go, in the English, to page 71, and in the version before the

4 witness, please, if he could look at page 70.

5 Q. This was clearly -- this was another law introduced now in 1990.

6 I can't give you the precise date of this one, but it's the university

7 law. There's an extract of it here. Paragraph 2: "In the socialist

8 autonomous provinces, the syllabi shall also be followed in the language

9 of another nation and nationality when not less than 30 students of the

10 same year of study so opt."

11 Incidentally, I must correct myself. I misspoke in saying 95 per

12 cent Kosovo Albanians. I think the figures are 85 per cent or down to 82

13 per cent of Albanians in Kosovo at the time.

14 With those figures in mind, this law would make it possible in the

15 universities -- or the university in Kosovo for courses to be followed in

16 Albanian if and only if not less than 30 students of the same year in a

17 particular syllabus, I understand it, so opt.

18 What do you say about that, Professor Markovic? What good is

19 that going to do the Kosovo Albanians?

20 A. I think that this provision was formulated for the following

21 reasons: You know, much time is needed. Many efforts and much talent is

22 needed in order to become a professor at a university. There simply

23 wasn't enough qualified personnel able to teach in Albanian, and I know

24 that for certain subjects there were absolutely no Albanian teachers. In

25 order to become a university professor, you first have to have your

Page 35441

1 master's degree, your Ph.D., and to write a number of publications from

2 the relevant field. Therefore, it was very difficult all of a sudden to

3 staff these positions with qualified personnel. Kosovo and Metohija is

4 not a large territory, the number of qualified personnel is limited.

5 Q. [Previous translation continues] ... interrupt you. How long had

6 Pristina University been in existence?

7 A. Now you've really got me. I couldn't say, although I think that

8 initially it was a department of the Belgrade law school, and when it

9 became a full-fledged university, to my shame, I don't know.

10 Q. I think it was in the 1960s, I must suggest to you, and just help

11 the Judges, please; what language was being used to teach the students up

12 and until the 1989 amendments?

13 A. I truly don't know. I never lectured at the Pristina University.

14 I was never a visiting professor there either. To this day I've never

15 given a lecture at the Pristina University. I only once attended a

16 doctoral dissertation, and that was on the 16th of January, 1999. I

17 remember this date. That was my sole involvement with the Pristina

18 University. Certain of my colleagues did go there, and for my subject,

19 constitutional law, there were lecturers who taught both in Serbian and

20 Albanian.

21 Q. Well, how come then you offer this answer that there was an

22 insufficiency of Albanian teachers? How can you possibly say that that's

23 the reason for this law if your ignorance of what happened in this

24 university is what you claim it to be? I mean, I'll find out and present

25 one way or another the history of language use in Pristina University as

Page 35442

1 soon as I can offer it authoritatively, but just answer us how could you

2 give that answer, Professor, if you knew nothing about it?

3 A. I told you that I supposed, I supposed that was so. If you want

4 me to give you answers only about issues that I am certain about, then I

5 would have to be silent, I would have to remain silent in relation to many

6 of your questions.

7 Q. Let's look at the next provision on the same page; 70 for you, 71

8 for us. "The law on the termination of work of the Assembly of the

9 Socialist Autonomous Province of Kosovo and the Executive Council of the

10 Assembly of the Socialist Autonomous Province of Kosovo.

11 "Proceeding from the fact that the Assembly of Kosovo has not

12 functioned for a long period of time, that it has failed to comply with

13 the constitution, and that the work of a large number of delegates of the

14 Assembly of the Socialist Autonomous Province of Kosovo, and the majority

15 of the members of the Executive Council of the Assembly of the province of

16 Kosovo endangers the sovereignty, territorial integrity and the

17 constitutional order of Serbia, the Assembly of Kosovo, the Executive

18 Council of the Assembly shall terminate their work."

19 And then under Article 2: "The rights and duties of the Assembly

20 shall be taken over by the Assembly of Serbia, and those of the Executive

21 Council of the Assembly by the Executive Council of the Assembly of Serbia

22 pending a constitution of the new Assembly of Kosovo and the Executive

23 Council of the Assembly of Kosovo."

24 Under Article 5, a few lines down, we see that, "Deputies shall be

25 relieved of office."

Page 35443

1 This was a way of using the new powers of the amendments to make

2 laws like this simply to take over everything in Kosovo, wasn't it?

3 A. No. That's absolutely untrue. The amendments were not a legal

4 basis for this. This happened when the constitutional declaration was

5 adopted proclaiming Kosovo a federal unit, upon the adoption of the

6 Kacanik constitution. Similarly to what was done by Great Britain in '73

7 after the unrest in Londonderry. Absolutely the same thing happened; they

8 suspended autonomy in Northern Ireland.

9 Q. As to suspension, reinstatement of the Council and Assembly

10 required elections. Can you help us, please, with when those elections

11 were allowed to happen, if ever?

12 A. That never happened for the simple reason that part of Kosovo

13 Albanians believed that they received their state, the state of Kosovo,

14 through the Kacanik constitution and that all organs ought to be

15 established in accordance with that constitution, not in accordance with

16 the law of the Republic of Serbia. As far as I know, all agencies

17 envisaged in Kacanik constitution were constituted pursuant to that

18 constitution. So back then, they already considered that they had nothing

19 to do with the Republic of Serbia and that the laws of Serbia were invalid

20 in that territory. This was not the belief held by all of the Albanians,

21 as I said, only by part of the Albanians.

22 Through this mechanism, Mr. Rugova also became president of

23 Kosovo. Not pursuant to the constitution of the Autonomous Province of

24 Kosovo but pursuant to the Kacanik constitution.

25 Q. Professor Markovic, your government never offered elections for

Page 35444

1 the reinstatement or the establishment of the Kosovo Assembly, did it?

2 A. All of the elections were boycotted by the Albanian population,

3 and they constitute majority in Kosovo. Therefore, the elections never

4 had a chance to succeed and to lead to the Kosovo agencies being

5 established, because Albanian population refused to participate in these

6 elections, and they constitute the majority.

7 JUDGE KWON: Professor Markovic, was this legislation, the law on

8 the termination of the work of the Assembly, possible even without the

9 amendment of constitution in 1989?

10 THE WITNESS: [Interpretation] It was possible to realise that

11 without the 1989 constitution. Additionally, this law was reviewed by the

12 Constitutional Court of Serbia to assess its constitutionality. I

13 explained to you what happened with the Constitutional Court of

14 Yugoslavia. It ceased to exist when the Federal Republic of Yugoslavia's

15 constitution was adopted on the 27th of February. No, I apologise, 27th

16 of April, 1992. Prior to that --

17 JUDGE KWON: I think I have the answer.

18 Mr. Nice.

19 MR. NICE: Thank you. Give me one minute. I'll just check a

20 reference.

21 Q. Can we look at one other law made at about the same time, and it's

22 at page 63 of the same marked for exhibit, 818, and this is at page 63 in

23 the English and 62 in the Serbian.

24 "To ensure --" if we put it on the overhead projector, please, at

25 the top.

Page 35445












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 35446

1 "To ensure constitutionality and legality, democratic freedoms

2 and rights, duties and responsibilities of citizens and their equality

3 throughout the territory of Serbia, the republican agencies, the Supreme

4 Court of Serbia, the Office of Public Attorney of Serbia, the Republican

5 Public Prosecutor, the Republican Social Attorney of self-management and

6 the Court of Associated Labour of Serbia and the higher Business Court,

7 (hereinafter republican agencies) shall have the right and duty to act in

8 conformity with the provisions of the present law when so necessitated by

9 reasons of security (special circumstances) in a part of the territory of

10 Serbia."

11 This gave enormously wide-ranging powers to all those identified

12 bodies to act in Kosovo, didn't it?

13 A. I don't see where you are reading this, to act in Kosovo.

14 Q. It speaks of an ability of those bodies or individuals to work

15 throughout the territory of Serbia, and by reason of the amendments, if

16 for no other reason, unambiguously Kosovo now falls within Serbia. So

17 enormous powers were given. Isn't that correct?

18 A. Mr. Nice, Kosovo always fell within Serbia. It was always within

19 the composition of Serbia. How come you state that it started falling

20 within Serbia after 1989? It was always within Serbia, even in the

21 Kingdom of Yugoslavia. And it was only in 1945 that it was given an

22 administrative -- separate administrative identity.

23 I cannot answer the question which is incorrect. I cannot. I am

24 a university professor, after all; I do not want to disgrace myself.

25 Q. Well, I observe your answer, and perhaps you'd do me the courtesy,

Page 35447

1 Professor Markovic, as you read English, perhaps you would -- have you got

2 the English display of the question on the screen before you? Professor

3 Markovic, have you? Because since you make a point, I'm just going to

4 read you again what I said.

5 "It speaks of an ability of those bodies or individuals to work

6 throughout the territory of Serbia and by reason of the amendments, if for

7 no other reason, unambiguously Kosovo now falls within Serbia."

8 I wasn't excluding that Kosovo was a historical part of Serbia. I

9 was simply saying that the amendments made this absolutely unambiguous.

10 Now, perhaps you'd answer the question. Did this law give

11 enormous powers to Serbian individuals and bodies?

12 A. This is a law that exists in every country, the law regulating the

13 so-called extraordinary special circumstances. Therefore, these powers

14 given to the republican organs should not be linked only to Kosovo,

15 because these powers could be implemented in Vranje, in Kikinda, in any

16 other part of Serbia. Why are you coming out with this attitude that all

17 of this was directed only to Kosovo? This law applied in the entire

18 territory of the Republic of Serbia.

19 Q. [Previous translation continues] ... Leskovac?

20 A. To my knowledge, no. However, we did have special circumstances,

21 law applied in the Republic of Serbia recently. This law could not have

22 been applied in Kosovo. This law is only applied in places where special

23 circumstances exist. Every country in the world has laws of this nature,

24 the so-called laws that regulate extraordinary circumstances.

25 JUDGE ROBINSON: Mr. Nice, if you're at a convenient point, we'll

Page 35448

1 take the break now.

2 MR. NICE: Yes. I can simply say that we'll be turning to how

3 these laws were - and similar - were applied later. The major exercises I

4 must do are to take the Court through the relevant parts of and criticisms

5 and comments on the 1990, the 1992 constitution. I must also deal with

6 the account of Rambouillet, and I shall not be able to conclude this

7 morning.

8 JUDGE ROBINSON: Let me just be sure. You will not be able to?

9 MR. NICE: I will not.

10 JUDGE ROBINSON: Thank you. We'll break for 20 minutes.

11 --- Recess taken at 12.19 p.m.

12 --- On resuming at 12.44 p.m.

13 JUDGE ROBINSON: Please continue, Mr. Nice.

14 THE WITNESS: [Interpretation] Mr. Robinson.

15 JUDGE ROBINSON: Yes, Professor.

16 THE WITNESS: [Interpretation] May I address you?


18 THE WITNESS: [Interpretation] I would like to inform the Chamber

19 of the fact that I've been here for 15 days now. Now it seems likely that

20 I would have to remain here. I have an operation scheduled in Belgrade.

21 I never expected that it would be necessary for me to remain in a foreign

22 country this long in order to testify. It is simply impossible for me to

23 be absent from my country and from my duties there for which I receive

24 remuneration this long. It is exactly 15 days today that I've been away.

25 JUDGE ROBINSON: Is that a medical operation that you have?

Page 35449

1 THE WITNESS: [Interpretation] Yes.

2 JUDGE ROBINSON: When was that scheduled for?

3 THE WITNESS: [Interpretation] Precisely because of The Hague, I

4 postponed my surgery, and the surgery has been scheduled immediately upon

5 -- was scheduled immediately upon my return. I have certain medical

6 problems. I was supposed to have this surgery before I travelled to The

7 Hague, and it seems, though, there is no end in view of my testimony here.

8 MR. NICE: Your Honour, I cannot -- I had expressed the view

9 earlier that I'd like to conclude the evidence, especially in light of one

10 or two of the answers of the witness, but time has passed. These matters

11 are important and detailed. The accused has made more significance of the

12 statutes as part of his Defence. I regard it as essential now that I take

13 the Chamber through the four constitutions and the family that we need to

14 look at and deal with the other evidence, and I cannot properly conclude

15 the evidence today.

16 JUDGE ROBINSON: I think you're entitled to, Mr. Nice, but we have

17 to be sensitive to the professor's obligations and in particular to his

18 medical condition. Let us consult.

19 [Trial Chamber confers]

20 JUDGE ROBINSON: Professor, the likelihood is that the furthest

21 that you would have to remain here for testimony would be Monday morning,

22 maybe by the end of the first session, which is 10.30. It will be either

23 that or you would be required to come back at some date later. You didn't

24 tell us the precise date of the operation.

25 THE WITNESS: [Interpretation] The surgery will take place

Page 35450

1 immediately upon my return from The Hague. I was supposed to have the

2 surgery before I came here. Your officials are informed of all my medical

3 problems. They have witnessed them.

4 In that case, if I should have to remain here until Monday, then

5 could please my flight be scheduled for Monday afternoon? Could I please

6 take the first flight that leaves after that? I am aware of all the

7 expenses the Court has incurred with respect to my stay here. I think

8 that I am the witness who has had to stay the longest here in The Hague.

9 JUDGE ROBINSON: I'm not sure about that, but it's in the

10 international public interest.

11 I believe the Victims and Witnesses Unit would be able to arrange

12 for you to leave the earliest flight after the first session.

13 MR. NICE: Your Honour, I must be candid that the amount of detail

14 that I have to go through, and I'm anxious to get on with it, may make

15 that optimistic. I also know that it is possible to take both early and

16 late afternoon flights to Belgrade, because I've done it.

17 JUDGE ROBINSON: Professor, would a flight in the late afternoon,

18 would that also be all right? It would still be on Monday but later in

19 the day.

20 THE WITNESS: [Interpretation] I don't know when the flights leave

21 for Belgrade on Monday.

22 JUDGE ROBINSON: Well, we can have that information before the end

23 of the session. Mr. Nice -- or the Court Registrar, would you get that

24 for me, please.

25 MR. NICE: Your Honour, before I return to questioning the

Page 35451

1 witness, I'm asked to make a correction to something that appeared -

2 nothing to do with this witness - in our public January the 6th filing,

3 where it was asserted that this trial is broadcast live on RTS Belgrade.

4 That was incorrect. It's channel B92 that broadcasts the trial, and RTS

5 has asked us to make that correction, and I happily do so.

6 JUDGE ROBINSON: Thank you.


8 Q. Professor Markovic, by June of 1990, SPS is formed, and there was

9 an address by the accused to the Serbian Assembly on the 25th of June

10 where he dealt with the question of borders. Were you present, by any

11 chance, at that Assembly meeting?

12 A. I was not, because I was not a deputy at the time. And I have to

13 make a correction once again. The SPS was not founded in June but,

14 rather, in July. On the 16th of July, not in June.

15 Q. No doubt there were preliminary meetings. Were you party to those

16 meetings if you were on the Main Board?

17 A. I could have been on the Main Board only after the SPS was

18 founded, and the SPS was founded in July, not in June. Your question

19 pertains to June.

20 Q. You're aware that the programmes written by Mihailo Markovic dealt

21 with the existence of autonomous regions for Serbs out of Serbia. Were

22 you aware of that? You've heard about those from him?

23 A. I'm somewhat skeptical with respect to the claims that one person

24 wrote the entire document. Similarly, you attributed an entire

25 constitution to me. It was a collective work project. It wasn't done by

Page 35452

1 Academician Markovic alone.

2 Q. We only have his evidence to go on, and take as long with the

3 answers as you like, but I'm trying to deal with matters quickly. The

4 question is: Are you aware that the programmes dealt with the existence

5 of autonomous regions for Serbs out of Serbia?

6 A. If you would be so kind as to tell me what the programmes specify,

7 then I could answer. Otherwise, I'm unable to answer. I cannot be

8 expected to know the contents of the programme by heart.

9 Q. If necessary, I'll come back to it. I can't take time in view of

10 the pressures.

11 Of this will be aware: In the summer of 1990, there was the log

12 revolution, particularly in Knin, having, amongst other effects, for

13 example, cutting off the Zagreb to Zadar road. And we've heard evidence

14 of the arming of Serbs at that time.

15 Two questions: If those things happened, do you - and we're going

16 to be looking at your writings on these topics later - do you accept that

17 to use logs to disrupt a state and movement through a state, do you accept

18 that that is the application of force?

19 A. As far as I understand, through that mechanism the Serbs in

20 Croatia expressed their will, namely that they did not wish to leave

21 Yugoslavia. They wanted to remain where they were, in the state in which

22 they were. They did not want to be taken out of that state by way of a

23 secessionist act of Croatia.

24 Q. Now, could you answer the question: Is that an act of force?

25 A. I'm not an expert for those matters. How could I be expected to

Page 35453

1 answer that, whether it was an act of force to place a log?

2 There were all kinds of demonstrations in Belgrade taking place

3 all the time that disrupted the traffic. I don't think that I could call

4 that an act of force. It's an act of protest because of something, and

5 the citizens are entitled to protest.

6 Q. All right. That's your answer. If, as the evidence has been,

7 Serbs in Croatia - that is not army, not police; ordinary Serbs - were

8 provided with firearms, is that an act preparatory to violence?

9 A. Well, how could I know that, Mr. Nice? At that time, as I keep

10 telling you, I did not have any such knowledge. I don't know about that.

11 If you go on asking me this kind of questions, you can go on for a

12 fortnight. I did not take part in this at all.

13 Q. If you want to comment, it takes time. Can we now move on

14 chronologically to June of 1990. I want you to look at a document which I

15 have in a short form and a long form. It's in English. It will be laid

16 on the overhead projector and made available to the Court. It's headed

17 "Discriminatory and unconstitutional laws and other judicial acts on

18 Kosovo passed by the Assembly of Serbia," and I want it to see if you can

19 help me, and if you can't today you may be able to over the weekend, with

20 some facts asserted in it.

21 MR. NICE: It's in English, so it will have to go on the overhead

22 projector. And it's the last page of this document, if you would be so

23 good, Usher.

24 I can't get a display at the moment. Can we have the overhead

25 projector, please, displayed. Thank you very much.

Page 35454

1 Q. Left-hand side, towards the bottom of the page, and this is now up

2 to the 27th of June, so just before your arriving on the scene as an SPS

3 member, it says this, immediately under the bolded words "Official Gazette

4 of SPK": "On the occasion of granting such an unconstitutional consent,

5 upon the initiative of Academician Gazmend Zajmi and lawyer Bajram

6 Kelmendi, the Constitutional Court of Kosovo with its verdict numbered on

7 the 27th of June, 1990, decided to initiate a procedure to assess the

8 constitutionality of the Assembly of the Socialist Autonomous Province of

9 Kosovo in giving consent for the amendments 9-49 of the constitution of

10 the Socialist Republic of Serbia of 23 March. The Court Council consisted

11 of..." and then the Judges are listed. "By a project decision of the

12 Court, numbered, of the 27th of July, the decision to give consent to the

13 amendments in the constitution of Serbia was annulled and the

14 Constitutional Court Council consisted of the following Judges," named.

15 "The verdict remained unsigned, for in the meantime, the Assembly of

16 Serbia, after it had introduced a state of emergency to Kosovo, also in an

17 unconstitutional way passed another unconstitutional law on the cessation

18 of work of the Assembly of Kosovo, its executive body, and other

19 officials."

20 Now, you're the constitutional lawyer. You were party to the

21 introduction of these amendments. This document suggests that a proper

22 complaint to the Kosovo Constitutional Court was brought, was successful

23 in that the amendments were annulled, but it all came to nothing because

24 Serbia erased the Court, cut the Court out, killed the Court. Is that

25 right, factually? Because you haven't told us about it in your own

Page 35455

1 evidence in chief.

2 THE ACCUSED: [Interpretation] Mr. Robinson.

3 JUDGE ROBINSON: Yes, Mr. Milosevic.

4 THE ACCUSED: [Interpretation] As for this quotation, the question

5 was not put very specifically. I see now what Mr. Nice has -- by a

6 project decision. That's what it says here. So it was not an actual

7 decision that was taken, it was a project decision, a draft decision. It

8 was not a decision that --

9 MR. NICE: [Previous translation continues] ... witness, and stop

10 trying to rehearse him.

11 JUDGE ROBINSON: Whatever a project decision is, the witness can

12 comment on that.

13 MR. NICE: It's not the first time, if I may say so, Your Honour,

14 that the interventions of this accused may have had the effect and it may

15 be have had the purpose of alerting witnesses to answers they can give. I

16 read out quite precisely and intentionally "project decision" in order

17 that this witness can help us.

18 THE WITNESS: [Interpretation] The constitutionality of the change

19 of the constitution of the Republic of Serbia cannot be reviewed by the

20 Constitutional Court of Kosovo and Metohija. They can only review the

21 constitutionality and legality of the laws of Kosovo and Metohija.

22 As for the laws and constitution of the Republic of Serbia, it is

23 only the Constitutional Court of the Republic of Serbia that can review

24 those.

25 Therefore, they usurped a right. They did not act within their

Page 35456












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 35457

1 jurisdiction. It would be as if a federal unit was reviewing the

2 constitutionality of the federal constitution. How could that be

3 possible?

4 JUDGE BONOMY: Professor, that's -- misrepresents what's said

5 here. The issue was the constitutionality of the act of the Kosovo

6 Assembly, not -- they weren't attacking or challenging some act of the

7 Republic of Serbia.

8 THE WITNESS: [Interpretation] You see, the Assembly of Kosovo

9 agreed to the amendments to the republic constitution. The Constitutional

10 Court cannot rule on actions. It can only rule on legal documents, that

11 is to say the constitutionality of adopting amendments, constitutional

12 amendments. That is so-called formal constitutionality. And it is not

13 the Constitutional Court of Kosovo that is in charge of doing that but the

14 Constitutional Court of Serbia. I already explained to you at the very

15 beginning that the Constitutional Court is reviewing only the

16 constitutionality and legality of general legal acts and legal documents.

17 MR. NICE:

18 Q. Now will you answer, if you'd be so good, Professor, my question

19 and not a question of your own creation, because that's what you did. My

20 question was: Is it factually correct that complaint about the consent

21 was taken to the Kosovo Constitutional Court and that by a project

22 decision it was annulled but that the matter couldn't be taken further

23 because the Constitutional Court was itself wiped out? Is that factually

24 accurate?

25 A. My answer to the first question is I don't know; and the second,

Page 35458

1 it is not correct.

2 Q. I'll press on from that. We know just with --

3 JUDGE ROBINSON: Mr. Nice, if it is not factually correct, I'm

4 interested in knowing what the correct -- what is the accurate statement.

5 What is the correct position?

6 THE WITNESS: [Interpretation] Mr. Robinson, I was not a judge on

7 the Constitutional Court of Kosovo. I don't know at all whether there was

8 any kind of proposal before the Constitutional Court of Yugoslavia to

9 assess constitutionality and legality. I was a judge on the

10 Constitutional Court of Yugoslavia in 1991. I only became one in 1991. I

11 cannot have an overview of all the cases before all the Constitutional

12 Courts of Yugoslavia because --

13 JUDGE ROBINSON: So then your answer to the second question should

14 have been, "I don't know." No?

15 THE WITNESS: [Interpretation] No, my answer to the first question

16 was I don't know. I don't know that proceedings were initiated before the

17 Constitutional Court of Kosovo. I don't know. And as for the second

18 question, I said that it is not correct. That is to say the

19 Constitutional Court of Kosovo was still there. I don't know the facts,

20 but I do know the law. The Constitutional Court of Kosovo continued to

21 exist.

22 MR. NICE:

23 Q. Were you aware, and I'm not going to trouble you with the

24 document, I can't find it --

25 JUDGE ROBINSON: Mr. Nice, it may be that the -- to clarify that

Page 35459

1 point, a little further down in the same passage, it says -- it ends, that

2 paragraph: "So a moratorium in the work of the Constitutional Court of

3 Kosovo ..."

4 MR. NICE: Ensued, yes.

5 JUDGE ROBINSON: "... and immediately after that this institution

6 likewise ceased to exist."

7 So, Professor, you're technically saying, then, that the

8 Constitutional Court, at that particular time, was still in existence

9 because it was in the stage which is described here as a moratorium; it

10 had not yet ceased to exist?

11 THE WITNESS: [Interpretation] The court existed -- the

12 Constitutional Court of Kosovo existed until the constitution of the

13 Republic of Serbia entered into force on the 20th of September, 1990.

14 That is when a completely different organisation was envisaged for the

15 province. The province had three types of organs; a provincial Assembly,

16 a provincial Executive Council, and provincial agencies. And from 1990

17 onwards, it no longer had a Constitutional Court because it no longer had

18 a constitution. From then on, it had a statute.

19 JUDGE ROBINSON: All these things will be made clear ultimately.

20 Go ahead, Mr. Nice.

21 MR. NICE:

22 Q. And incidentally, I'm reading from the same article at the top

23 left-hand side, the general alleged history, which we've had in evidential

24 form. I'll just ask the professor this as a constitutional lawyer: One

25 of the things noted and probably complained of to the Kosovo Assembly --

Page 35460

1 to the Kosovo Constitutional Court was that on an important matter like

2 this, the effective voluntary surrender of all their autonomy by the

3 Kosovo Albanians, the vote wasn't counted and there was no listing and

4 identification of those voting. Do you as a constitutional lawyer think

5 that's a good way to carry on; not to have a proper count of votes on a

6 matter of this extreme importance?

7 A. Mr. Nice, you are proceeding from a premise that is completely

8 wrong. Again you're talking about surrendering an autonomy. There was no

9 surrender of autonomy. How many times do I have to say that?

10 In 1989, it was not the autonomy of either Vojvodina or Kosovo

11 that was suspended. I just explained this. There were only five

12 amendments that pertained to autonomous provinces.

13 Q. For these five amendments, these five little amendments with the

14 consequences that we're going to see, do you think it was a good idea to

15 have counted the votes and to have listed those present as being qualified

16 to vote? Do you?

17 MR. KAY: The question really should be whether he knows whether

18 the votes were counted or not in the first place. This is a comment being

19 dressed up as a question and is unhelpful.

20 MR. NICE: No, it's not, because the evidence is quite clear,

21 because the Defence has shown the video of the vote and it has been

22 uncontroversial that there was no counting of the votes.

23 JUDGE ROBINSON: Yes, I think he can answer the question. Yes.

24 THE WITNESS: [Interpretation] I'm not able to answer the question

25 because I was not present physically. I am bound by my solemn declaration

Page 35461

1 to speak the truth. How can I talk about this when I was not present?

2 You had Mr. Jokanovic here as a witness, who was actually present

3 there. I was not. I was in Belgrade. How could I know what the session

4 of the Assembly of Kosovo went? I didn't even watch it on television.

5 JUDGE BONOMY: I don't think that's the question you've been

6 asked, Professor. You've been asked whether, if the votes were not

7 counted, and there is evidence suggesting that, whether if that happened,

8 that was an appropriate way to proceed in something as important as this;

9 and you're being asked that as a constitutional -- professor of

10 constitutional law.

11 THE WITNESS: [Interpretation] There is no need to be a professor

12 of constitutional law in order to be able to answer that question. Of

13 course in that case it would not be an appropriate way to vote, but I'm

14 speaking in completely abstract terms. I don't know what the situation

15 was in the Assembly of Kosovo, whether they did the counting or not. But

16 of course, if the votes were not counted, then there can be no decision.

17 MR. NICE: I'm going to move straight now to the Serb constitution

18 of September 1990. It's, I think, tab 16, but we've got it in full.

19 Forget that. Withdraw that. We've got it in full. And the document

20 itself has been exhibited as Exhibit 319, tab 1, or Exhibit 132, but I'll

21 display the relevant passages on the overhead projector and ask for the

22 witness's comments.

23 Can the witness have the Serb version? I'm sorry, I haven't done

24 complete connections between the various pages, but it may be my colleague

25 will be able to take me straight away to the connecting pages if we've got

Page 35462

1 the B/C/S version here.

2 Q. This was a document that was published, Professor, with the

3 advantage of a preamble written by yourself; correct?

4 A. That's not correct.

5 Q. Who wrote the preamble?

6 A. The Constitutional Commission.

7 Q. Very well. Let's have a look, then, at the document we have in

8 English.

9 MR. NICE: The page numbers, Usher, are on the bottom of the page.

10 The first page we'd better look at is page 9, which is the end of the

11 preamble. We don't have it in the B/C/S, I'm afraid, but --

12 Q. Perhaps it's an introduction, and it seems to be signed by

13 yourself, Dr. Ratko Markovic, Professor at the University of Belgrade. We

14 can see that. And if we come to the first page of this document, which

15 has got page 3 at the foot of it.

16 If the usher would be so good.

17 It is the beginning of the document, apparently signed by

18 yourself, and it begins: "By means of the constitution of the Republic of

19 Serbia of 1990, after many years, the dignity is being returned in the

20 entire Yugoslavia to the constitution as a legal act."

21 Before we move on at all, in a document that in the way we have it

22 has sequential ERN numbers, do you remember writing this either

23 introduction or preamble to this constitution?

24 A. Mr. Nice, what I have before me is the constitution of the

25 Republic of Serbia and the preamble to that constitution. Where do you

Page 35463

1 get the idea that the preamble is written by an individual? The preamble

2 is an integral part of the constitution. It precedes the constitution.

3 It would certainly not be truthful if I were to say that I wrote the

4 preamble. I don't know what this is that I signed. Why don't you tell

5 me, what document is this that I signed?

6 Q. [Previous translation continues] ... constructive with our use of

7 time. I've shown you your signature at the end of a document of six

8 pages, starting at page 3. It's then continuous through to page 9. Can

9 you help us; if it wasn't a preamble, was it a preface, was it an

10 introduction? What was it that you signed?

11 A. Well, I should know what it was that I signed.

12 THE ACCUSED: [Interpretation] Can you identify the document? I

13 cannot find it among the exhibits here. What document is this? I

14 couldn't find it.

15 JUDGE KWON: We can find it at tab 16. In English as well.

16 THE ACCUSED: [Interpretation] Thank you.

17 JUDGE KWON: It is translated as "Preface".

18 THE WITNESS: [Interpretation] Oh, now I understand. Mr. Nice, you

19 do not distinguish between a preamble, which is an integral part of the

20 constitution, and the preface that is written by the author. And you say

21 that the preface is an integral part of the constitution.

22 This is an authored piece of work, whereas the preamble is an

23 integral part of the constitution. For the umpteenth time, you've put the

24 question wrongly.

25 The preface is written by the author, whereas the preamble is an

Page 35464

1 official document.


3 Q. I'm going to interrupt you and I'm going to ask you this

4 question: Are you by your answers where you keep suggesting that I'm

5 making errors trying to distract attention from matters in hand? Is that

6 what you're doing? Because you do it so often that I'm suggesting to you

7 it has an oblique purpose. You're taking time. Is that what you're

8 doing, trying to obfuscate?

9 JUDGE ROBINSON: No, Mr. Nice, I can't accept that. There is a

10 distinction between the preface and preamble.

11 MR. NICE: And I gave him a number of opportunities, Your Honour,

12 if it wasn't a preamble, whether it was an introduction and so on.

13 JUDGE ROBINSON: He has made a point. Let's move on.

14 MR. NICE: Can we now, Usher, please go to the bottom of page 4 in

15 English, and the Cyrillic version will be coming downstairs in a couple of

16 minutes, I think.

17 Q. At the foot of page 4, last paragraph, it says this, fourth line

18 down: "Contrary to constitutional definitions of multinational states -

19 independent or federal units - both in the world and in our country, the

20 constitution of Serbia does not define the state by applying the ethnic

21 criterion (a state of the Serbian people) but by applying the democratic

22 criterion of a national, namely citizen sovereignty (a state of all

23 citizens living within it)."

24 That's your understanding of the position of Serbia; correct?

25 A. That is the definition of Serbia from Article 1 of the

Page 35465

1 constitution of the Republic of Serbia, where Serbia was defined through

2 the sovereignty of citizens, not the sovereignty of a nation. It is the

3 citizens that are the mainstay.

4 JUDGE BONOMY: It must be me alone that's confused about this, but

5 I thought a large part of your evidence was to the effect that Serbia

6 wasn't a state at this stage at all and that it was Yugoslavia that was

7 the state.

8 THE WITNESS: [Interpretation] Yugoslavia was the federal state, a

9 federal state. And in Article 3 of the constitution of the SFRY from

10 1974, republics are defined as states. Therefore, the Republic of Serbia

11 is also defined as a state in the 1974 constitution. But I can also tell

12 you what -- how the provision actually reads.

13 MR. NICE: Usher, page 7 at the bottom, please. Middle of the

14 page.

15 Q. "According to the new constitution of Serbia, only one state does

16 exist, as everywhere in the world, in the territory of the single state of

17 Serbia. This, as something entirely natural, should not be emphasised at

18 all, but the fact is that until now, due to the asymmetric state order of

19 Serbia, three states have been in existence in its territory, namely two

20 provincial ones and, between them, the third one which was a state the

21 least. In the constitutional order of Serbia, there still are autonomous

22 provinces, but now as units of territorial autonomy, such as the provinces

23 in Italy and autonomous communities in Spain. In other words, without

24 state functions."

25 Your new statute had as its purpose to remove any autonomy of

Page 35466

1 function from the two provinces and to make a single centralised Serbian

2 state; correct?

3 A. Correct.

4 Q. In which case, what does this mean?

5 A. Well, you're asking me to give short answers, and now you're

6 asking for a lengthy answer. But it is incorrect. That's not what it

7 means. The autonomous provinces have an autonomy within their own sphere

8 of activity. They are not states that have statehood. They do not have a

9 judicial legislative executive power, only an autonomy like the autonomous

10 provinces in Italy and in Spain.

11 Q. That was the position after the amendments. Shall we go to page

12 8, please, Usher, at the --

13 A. No. No. You're mistaken again, Mr. Nice. That was not the

14 position after the amendments. I am sorry for correcting you, but I

15 cannot give answers to questions that are wrong. Then it would seem that

16 I were condoning the mistakes. This was in 1990, and you have to learn

17 constitutional law if you want to put these kinds of questions.

18 Q. Very well.

19 JUDGE ROBINSON: The constitutional law of your country.

20 MR. NICE:

21 Q. The bottom of page 8. Do you --

22 A. I'm referring to constitution law in general, in general, and then

23 the constitution law of my country, too. I can understand that there is a

24 lack of knowledge of that, but --

25 Q. "Due to the present constitutional status of Serbia, the question

Page 35467












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13 English transcripts.













Page 35468

1 may arise as to whether Serbia with the new constitution has turned its

2 back to the federal Yugoslavia. By the new constitution, Serb has only

3 made more precise the character of its link with Yugoslavia. Serbia has

4 entirely recognised the primacy of the federal constitution - until

5 Yugoslavia continues to have the federal order. Some other non-federal

6 Yugoslavia is beyond the political and state interest of Serbia.

7 Precisely because of that, and due to the tendency of squandering the

8 federal Yugoslavia which is now visible, Serbia had to include in its

9 constitution the defensive clause --" and I'm not sure whether that's

10 "too" or "100," but never mind.

11 "A violation of the federal constitution at the detriment of

12 Serbia entitles Serbia to self-defence. In such cases, namely republic

13 authorities shall issue acts in order to protect the interests of the

14 Republic of Serbia.

15 "The constitution of the Republic of Serbia enacted in 1990 has

16 established in its constitutional norms a new society and a new state.

17 Such qualitative changes of society and state are done in the world in

18 revolutions where, as a rule, the blood is shed. The new constitution of

19 Serbia has transformed the entire anatomy and physiognomy of the

20 constitutional order of the Republic of Serbia without shedding a drop of

21 blood. It marks a recision from the utopian constitutionality of the

22 Kardelj type, while trying to build up democratic foundations of an

23 entirely new society and state, based on well-known and verified clear

24 democratic principles. This constitution opens, therefore, a new era of

25 democratic constitutionality ..."

Page 35469

1 That's the way you prefaced this constitution, acknowledging what,

2 that Serbia was going to exert supremacy over the federal state if it so

3 chose?

4 A. You've made a mistake once again, and the proof of that pudding is

5 in Article 135 in English. Article 135, which states quite the opposite

6 to what you have said. Here is what the article says: "The rights and

7 duties vested under the present constitution in the Republic of Serbia --"

8 MR. NICE: It's on page 57.

9 THE WITNESS: "[In English] -- which is part of the Socialist

10 Federal Republic of Yugoslavia, which by the terms of the federal

11 constitution are to be exercised in the federation shall be enforced in

12 accordance with the federal constitution."

13 [Interpretation] Therefore, Mr. Nice --

14 MR. NICE:

15 Q. Next paragraph, please.

16 A. -- you have distorted --

17 Q. Next paragraph.

18 A. Well, you read it out from my preface. "[In English] It acts of

19 the agencies of the Federation or acts of the agencies of another

20 republic, in contravention of the rights and duties it has under the

21 Constitution of the Socialist Federal Republic of Yugoslavia, violate the

22 equality of the Republic of Serbia or in any other way threaten its

23 interests, without providing for compensation, the Republic agencies shall

24 issue acts to protect the interests of the Republic of Serbia."

25 Q. This does not give Serbia the right to overrule the federal

Page 35470

1 government, or purport to do so?

2 A. Because it is violating the federal constitution. It is a means

3 of self-defence since the secession of Yugoslavia [as interpreted] was

4 already underway.

5 Q. Let's have a look at some of the other provisions, if we may, that

6 go to make this point good. If the usher would be good enough --

7 THE ACCUSED: [Interpretation] Mr. Robinson.

8 JUDGE ROBINSON: Yes, Mr. Milosevic.

9 THE ACCUSED: [Interpretation] In the transcript, the response by

10 Mr. Markovic, it says "because it is overturning the constitution." He

11 did not say violating the constitution, he said violating the federal

12 constitution, and that's what it says in the text he read. So it is the

13 federal constitution, violating the federal constitution. Only if there

14 is violation of the federal constitution do protective -- are protective

15 measures taken, et cetera. The Professor said federal constitution.

16 JUDGE ROBINSON: Thank you for the correction.

17 MR. NICE:

18 Q. If we can have page 32, and if you want to follow it in the

19 original, Professor Markovic, it's Article 72, and I've got about six

20 articles I want us to look at and that's all.

21 "The following shall be regulated and provided by the Republic of

22 Serbia:

23 "Sovereignty --"

24 JUDGE KWON: Mr. Nice, could you hold on a minute so that the

25 Chamber could follow.

Page 35471

1 MR. NICE: Yes. I'm very sorry.

2 JUDGE KWON: It's page 21 of tab 16.


4 Q. I'll start again. Article 72: "The following shall be regulated

5 and provided by the Republic of Serbia:

6 "Sovereignty, independence and territorial integrity of the

7 Republic of Serbia and its international position and relations with other

8 states and international organisations."

9 Subparagraph 2: "Realisation and protection of freedoms and

10 rights of man and citizen; constitutionality and legality."

11 But then this, subparagraph 3: "Defence and security of the

12 Republic of Serbia and of its citizens; measures to cope with the

13 emergencies."

14 Now, those are all functions of the republican government, aren't

15 they, properly? Or the federal government, sorry, properly and here they

16 are now being assumed by the Serbian government. Can you explain why?

17 A. That's not true. What you say is not true. There's another

18 error, and I'm looking at number 35. "The rights and duties vested under

19 the present constitution in the Republic of Serbia [In English] which is

20 part of the Socialist Federal Republic of Yugoslavia which by the terms of

21 the federal constitution are to be exercised in federation shall be

22 enforced in accordance with the federal constitution."

23 [Interpretation] Bear that in mind, please, Mr. Nice.

24 Article 135, para 1 of the constitution of the Republic of Serbia,

25 which states something quite different from the way Mr. Nice just put it.

Page 35472


2 Q. Well, just help me. We're going to find out in due course that

3 Serbia established a Ministry of Foreign Affairs and a Ministry of

4 Defence. How is that all justified if you're in a proper federation with

5 Montenegro or anybody else? Because that's what you did -- or not you, of

6 course, but that's what happened.

7 A. That did happen and it went on for a very brief period. In the

8 law governing ministries, the Ministry of Foreign Affairs of Serbia and

9 the Defence Ministry was abolished straight away and Montenegro still has

10 a Foreign Ministry, albeit Serbia and Montenegro are a state community

11 now. But while it was within federal Yugoslavia, in the Federal Republic

12 of Yugoslavia, I mean, Montenegro always had a Ministry of Foreign Affairs

13 regardless of the fact that it was within the federation, whereas the

14 Republic of Serbia, when the first amendment on the law on ministries came

15 about, it abolished the Ministry of Defence, the Foreign Ministry.

16 Q. The SFRY still existed at the time you were drafting this

17 document, didn't it?

18 A. The SFRY did exist in legal terms until the 27th of April, 1992.

19 Q. [Previous translation continues] ... Usher, and for you it's the

20 end of Article 72, subparagraph 12.

21 "Other relations of interest for the Republic of Serbia, in

22 accordance with the constitution."

23 Sorry, that's prefaced by regulated and provided by the Republic

24 of Serbia.

25 "The Republic of Serbia shall maintain relations with Serbs

Page 35473

1 living outside the Republic of Serbia in order to preserve their national

2 and cultural historical identity."

3 Now, just tell us, please, what that was all about. Why would

4 Serbia, which we've heard claimed in due course had nothing to do with the

5 war, was never at war, why should it be setting out here an intention to

6 preserve the national and cultural historical identity of Serbs living in,

7 in particular, Croatia and Bosnia?

8 A. And where did you read that, that it says Serbia and Bosnia?

9 Q. I didn't. I'm just suggesting that to you. You tell us -- very

10 well, Professor. You tell us, then, where were you maintaining relations

11 with Serbs living outside the Republic of Serbia? As you will be able to

12 recall, a ministry was formed for dealing with Serbs outside Serbia.

13 Where did it have its offices? It had the offices in Belgrade, didn't it?

14 A. Of course. But every state looks after its members, the members

15 of its nation. So we're talking about the Serbs from Vancouver, Canada,

16 the Serbs of Chicago, the Sydney Serbs. Why are you linking that to

17 merely Serbs in Bosnia and Croat? Wherever there are Serbs living, their

18 original organisation enables them to have their own specialties

19 determined; culture, customs, and so on.

20 Q. If we ever find the documents or find the time to explore the

21 documents of that office for external relations, it's going to be focused

22 almost exclusively on Bosnia and Croatia, isn't it? Quite simple. Yes or

23 no.

24 A. I don't know that.

25 Q. Very well.

Page 35474

1 A. I don't know.

2 Q. Page 36, please, Usher. And article 83 for you, Professor

3 Markovic.

4 "President of the republic shall propose to the national assembly

5 a candidate for the post of Prime Minister and hearing the opinion of the

6 representative of the majority of the national assembly --" 2, 3 and then

7 4: "Conduct affairs in the sphere of relations between the Republic of

8 Serbia and other states and international organisations in accordance with

9 law."

10 Just pausing there so that we can draw an analogy. Unless I've

11 got it wrong. Is this like the state of Maryland in America having a

12 Ministry of Foreign Affairs? And if so, why?

13 A. No. This is about the president of the republic, and he is not

14 the Foreign Minister if he's president of the republic. The president of

15 the republic is the head of state, and by definition the head of state

16 represents the country within the state and abroad, outside the country.

17 So we're talking about differentiation here between the theoretical

18 definition of a head of state, because we know what a head of state is,

19 what it means.

20 Q. You've just answered His Honour Judge Bonomy on that. It wasn't a

21 state, was it?

22 A. Where did you get that from?

23 Q. The republic. Well, let's look at the next bit.

24 A. Well, just a moment, please. Don't put words in my mouth, words

25 that I haven't said, Mr. Nice. Let's be decent here and civil. I said

Page 35475

1 that pursuant to Article 3 of the SFRY constitution, the republic is a

2 state. Take a look at article 3 of the SFRY constitution, the 1974 one.

3 Why are you putting words into my mouth?

4 Q. Look at article subparagraph 5. The president's now going to

5 "command the armed forces in peacetime and in war, and the popular

6 resistance in war under the general - something - partial mobilisation

7 organise the preparations for something in accordance with law."

8 What were the armed forces in Serbia that required the command of

9 its president?

10 A. The armed force -- there were no armed forces in Serbia. Serbia

11 never had any armed forces. But this constitution was written at the time

12 when we saw secession taking place and when there was the danger of Serbia

13 -- or, rather, the Socialist Federal Republic of Yugoslavia be divided up

14 into as many units as there were federal units. When the federal 1992

15 constitution came into being, these provisions on the armed forces ceased

16 to be in force, and then we looked to the 1992 constitution. And you must

17 bear in mind that when this particular constitution was passed, Yugoslavia

18 was encountering an economic crisis. There were -- the republics were

19 seceding, and Serbia had to make provision in case the republic seceded.

20 So this was in force until the new constitution came into force. And

21 there were no armed forces in Serbia. This is a defensive clause which in

22 view of the circumstances was necessary and needed to be incorporated into

23 the constitution of Serbia.

24 Q. Professor Markovic, you're quite right to correct me about

25 paragraph 4 when I referred to a Ministry of Foreign Affairs. I should

Page 35476

1 have, of course, referred to, in the analogy, the governor of Maryland, I

2 suppose.

3 Extending that analogy, if we can, it would be a very major step

4 for the governor of a state such as Maryland to decide not only to have

5 foreign affairs but to have its own armed forces and to command them in

6 preparation for some dissolution of the federal arrangement. You've told

7 us on more than one occasion that you were merely a technician doing your

8 drafting, so will you tell us, please, who instructed you to make

9 provision for Serbia to have, under the command of the president, armed

10 forces? Who instructed you to make that quite extraordinary provision?

11 While you're thinking about it, I'm going to make this

12 proposition: There's no way that could have been your initiative, is

13 there, Professor? Somebody had to tell you to do that. Who was it?

14 A. Once again, Mr. Nice, you are linking the entire constitution to

15 myself as the author. You would have to ask the entire Constitutional

16 Commission that, because this text was adopted by the Constitutional

17 Commission, whereas you keep ascribing me the authorship. I would become

18 Leo Tolstoy in a few minutes in view of all the things that I have

19 written. So I have given you an explanation as to why it says what it

20 does say.

21 Q. I'm sorry, Professor, you must remember that in examination in

22 chief you gave answers including answers about how good, effectively, and

23 worthy and excellent this constitution was. You didn't claim any

24 ignorance or non-responsibility for it then. Well, now it's the

25 commission. Tell us, please, who instructed the commission to make this

Page 35477

1 accused have responsibility for international relations and to have

2 authority for command of an armed force?

3 THE ACCUSED: [Interpretation] Mr. Robinson.

4 JUDGE ROBINSON: Yes, Mr. Milosevic.

5 THE ACCUSED: [Interpretation] These questions are quite improper,

6 because they completely leave aside the answers given by Professor

7 Markovic that nothing that the Yugoslav or, rather -- came under federal

8 competency pursuant to this constitution held true but was that it was the

9 constitution of Yugoslavia that was being applied. And he quoted Article

10 135. So this about the armed forces and all the rest of it --

11 MR. NICE: I'm so sorry.

12 JUDGE ROBINSON: Yes, Mr. Milosevic. I've stopped you because

13 you're now descending into comment.

14 We are coming to the break, and I cannot suffer another rap on the

15 knuckles, because my fingers are sore. Just one last question.

16 MR. NICE: I'd like an answer to the question that I put, please.

17 JUDGE ROBINSON: Who gave you your drafting instructions? That's

18 the question.

19 THE WITNESS: [Interpretation] I've understood it, and the answer

20 is just one word: Nobody.

21 MR. NICE: Your Honour, the document that I tendered that dealt

22 with the possible history of the application to the Kosovo Constitutional

23 Court, may it either be exhibited or exhibited marked for identification?

24 The position is that I have found a complete version of that

25 document which goes into alleged -- a longer list of alleged

Page 35478

1 discriminatory acts and laws. On this topic, this witness is an expert,

2 so he tells us, and if we can't find the source material for numbered

3 decisions, it may be that he can do that over the weekend, because the

4 decisions are fully identified and numbered and described, the one being a

5 project decision. But I would ask that the document be exhibited at the

6 moment, being no reason not to. And if there is any challenge to what

7 I've said, the witness have an opportunity to return to it on Monday.

8 MR. KAY: Can we --


10 MR. KAY: Sorry. I wanted to come in in relation to the document

11 that was produced from the Kosovo Information Centre. And we've had a

12 chance to consider the practice during the first phase of the trial, the

13 Prosecution case, when Mr. Milosevic was engaged in this exercise. His

14 documents were actually returned to him, and he was told that his time

15 would come to produce such documents, that there wasn't this wholesale

16 practice of marking for identification. And if there is to be consistency

17 in the approach to this matter - because this is quite plainly a

18 controversial document written by someone who has not been a witness in

19 the Prosecution case, not adopted by the Defence witness, and containing

20 an entirely contrary proposition to the evidence of the witness.

21 JUDGE ROBINSON: We will adopt the same procedure as we did in

22 relation to the earlier document. We'll mark it for identity and we'll

23 later give a ruling on all of these documents. We have in mind the

24 question of consistency. Of course, it is always better to be correct

25 rather than consistent. We can't ignore what happened in the Prosecution

Page 35479

1 case.

2 Professor, I'm told that a flight will be available in the

3 afternoon, late afternoon, at 6.00 p.m. on Monday.

4 THE WITNESS: [Interpretation] Is there no earlier flight?

5 JUDGE ROBINSON: None earlier, from what I understand from the

6 Court Registrar. Perhaps something could be done about improving air

7 links between Amsterdam and Belgrade, but it's not within my power.

8 THE WITNESS: [Interpretation] Well, I should like to ask that a

9 ticket be booked, then, so that I can go from the court to the airport

10 straight away.

11 JUDGE ROBINSON: Yes, and we thank you for your cooperation,

12 Professor. We'll then resume on Monday at 9.00.

13 THE REGISTRAR: May I give the number to the document?

14 JUDGE ROBINSON: Please give the number.

15 THE REGISTRAR: Thank you, Your Honour. That will be 822.

16 JUDGE ROBINSON: Marked for identification, yes.

17 --- Whereupon the hearing adjourned at 1.48 p.m.,

18 to be reconvened on Monday, the 24th day of

19 January, 2005, at 9.00 a.m.