Tribunal Criminal Tribunal for the Former Yugoslavia

Page 35480

1 Monday, 24 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: Judge Bonomy being absent, we sit pursuant to the

7 provisions of Rule 15 bis.

8 Mr. Nice to continue your cross-examination.

9 MR. NICE: Your Honour, yes.


11 [Witness answered through interpreter]

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

13 MR. NICE: We were dealing with the 1990 constitution of Serbia.

14 We had reached in the page numbers at the foot, page 38, and it's article

15 86. If that could be laid on the overhead projector.

16 To assist the Chamber in the pattern of work for this morning, I

17 have three other constitutions to look at but in each case probably only

18 two or three provisions of each and I will fit other matters that I need

19 to ask this witness around the expirations of the constitutions to a large

20 extent.

21 If we have it on the overhead projector, Article 86 says this:

22 "The President of the Republic shall be elected in direct election and by

23 secret ballot.

24 "The term of the office of the President of the Republic shall be

25 five years.

Page 35481

1 "The same person may be elected for President of the Republic two

2 times only."

3 Q. Professor Markovic, I think the last thing we discussed last week

4 was who had instructed you to draft this constitution and I think your

5 answer was that no one instructed you to draft the constitution. Have you

6 been able to reflect on that over the weekend and remember who it was who

7 asked you to draft the constitution?

8 A. Well, I cannot remember something that does not exist. One can

9 only remember something that was a fact. And let me repeat again: I

10 didn't write the constitution. The constitution was a collective work on

11 the part of the Coordination Commission and then the Assembly which

12 passed it. So I cannot remember something that never existed in the first

13 place.

14 Q. You can't help us at all, can you, with who it was that asked the

15 drafting body to draft the constitution at all? And I'm going to suggest

16 that this is a silly answer, but just -- if you're really saying you can't

17 identify who asked you to draft the constitution or who asked the body to

18 draft it. You really can't remember at all?

19 A. Nobody asked me to draft the constitution, nor did I write the

20 constitution. The need was shown for a new constitution. Conditions were

21 ripe, and then the body, the Constitutional Commission, as an auxiliary of

22 the Assembly, drafted the constitution. Perhaps that proposal seems to

23 you to be a stupid one, but it corresponds to the truth.

24 Q. What we see here is the first direct election of the president.

25 Until 1990, the president been appointed by one of the government

Page 35482

1 Assemblies; is that right?

2 A. Until 1990, no, there was no president of the republic at all.

3 The institution didn't exist as such. There was a collective body which

4 was known as the Presidency of the republic.

5 Q. And so that we can just deal with this thing as a piece, these

6 direct elections, was that simply to bring Serbia in line with similar

7 reforms in the other republics?

8 A. The direct elections for the president of the republic provided by

9 this constitution is a component part of the concept of power which

10 permeates this constitution and which in its first articles is formulated.

11 It is the concept of the division of power; the division of power with the

12 parliamentary system of power and with the so-called bicephal executive,

13 that is, two-headed executive organ, bicephalous. One permanent one,

14 which is the head of state, and the other the government which is

15 changeable. And that is the system of government that the Western

16 countries have become accustomed to. And as an example for this

17 constitution we used the Fifth French Republic, dated 1958, which also

18 provides direct election for the head of state.

19 Q. Well, what happened was that, having been elected for five years,

20 the accused went to the polls two years later because of the competitive

21 approach taken by Milan Panic; is that correct?

22 A. I wouldn't tie that up with one man like Milan Panic. Quite

23 simply, a consensus was reached and the president of the federal republic

24 of the day, Mr. Dobrica Cosic, was also of that opinion. He also thought

25 that all the elections should be held at all levels, including elections

Page 35483

1 for the president of the republic. So parliamentary elections and

2 presidential elections, and I think local ones, too, and that was in 1992.

3 Q. I'm not going to debate the detail of that further. That,

4 therefore, took this accused to 1997 by dint of his second term running

5 for five years, and in 1997, one of the various things you did that was

6 controversial, was you sought to interpret this provision, Article 86, as

7 allowing the accused to stand for yet a further term despite the fact that

8 it says in terms the person may only be elected two times only. You said,

9 ah-ha, but since he's only done two years of his first term, the first

10 term doesn't count. That was your argument, wasn't it?

11 A. Asked by a journalist first how I understand this provision of the

12 constitution, I just gave an interpretation of it, but since I took part

13 in the writing of the constitution, I'm fully conscious of the fact that

14 there is a void here in the constitution, a gap, and that it says that the

15 mandate of the president of the republic lasts for five years, a five-year

16 term of office. Now, what happens if it lasts for less than five years?

17 Is it considered to be a full mandate? The American constitution, for

18 example, resolved this question by subsequent amendments and said that if

19 a term -- a lesser term was served, then it is not counted as a full term

20 of office. So there's a gap in the constitution here. We needed a

21 provision in this Article 86 which would state that the mandate of the

22 president of the republic, if it be shorter than the full term of office,

23 is counted as having served a full term of office. Had a provision of

24 that kind existed, then there would be no room for interpretation. The

25 situation would have been quite clear. So as I say, we needed a provision

Page 35484

1 here saying that if a lesser period of the five periods [as interpreted]

2 was served, that would be equivalent to a full term of office.

3 Q. The point is, Professor Markovic, that you would do almost

4 anything you could to help this accused. We'll look at the article you

5 speak of so we can deal with this all of a piece. It's Vreme from the 3rd

6 of May, 1997, please. You can have it in the B/C/S, remind yourself of

7 what you said, and we'll see in English on the overhead projector. But

8 you would do almost anything to help this accused stay in office,

9 including advancing the unarguable argument.

10 And on the overhead projector we see what happened, what you said.

11 JUDGE ROBINSON: Professor, I think you should --

12 THE INTERPRETER: Microphone, Your Honour, please.

13 JUDGE ROBINSON: Professor, Mr. Nice just put a proposition to you

14 which you should not leave unanswered. He said that you would do almost

15 anything to help this accused stay in office, including advancing the

16 unarguable argument. Is that so?

17 THE WITNESS: [Interpretation] No, that is not so, any of those

18 statements. I didn't do everything. An individual cannot do everything

19 himself. A candidate has to be put forward as a president of the

20 republic. I cannot elect him or choose him, so I don't agree with

21 Mr. Nice that I cannot back that argument up. Mr. Nice has shown

22 considerable lack of understanding of the constitution of Serbia so far.

23 JUDGE ROBINSON: You must not leave unanswered propositions like

24 that when they're put.

25 MR. NICE:

Page 35485

1 Q. So if we look at the article, in the second paragraph you're

2 quoted as saying the following: "Same person cannot be elected president

3 of the republic more than twice, but if that person did not complete their

4 full term of office, then this can be seen as if they hadn't been elected

5 at all."

6 And then if we go down the page to the last part of your

7 quotation: "Markovic stated that if the term in office did not last for

8 five years, facts from paragraphs of Article 86 of the Constitution --"

9 I'm so sorry I'm going too fast -- "of Serbia can also be interpreted as

10 if there had been no election at all ..."

11 And then the last sentence you say this: "Election and political

12 justice speak in favour of my interpretation. The factual question is

13 whether the President of the Republic will rely on this interpretation and

14 again run for Presidency or not."

15 Well, now, that's what you said, and you remember one of my

16 earliest questions to you was were you the supreme constitutional lawyer

17 that the accused described you as being. We see here a counter-argument

18 advanced through Vreme by Dr. Pavo Nikolic. Do you accept that he is a

19 constitutional law expert of respectability?

20 A. Absolutely. Every professional in constitutional law has the

21 right to his own opinion. There is never a unanimous opinion by all

22 participants in science and among scholars, and here you have it, two

23 different people thinking two different things. It's no heresy. And I

24 didn't give an interview of any kind to the papers that you mentioned.

25 Never. I never gave an interview like that.

Page 35486

1 Q. We can read the respectable Dr. Nikolic's contrary view, but what

2 happened was this: You didn't press on with -- or the accused didn't

3 press on with your argument, recognised that it was untenable, and

4 therefore he was going to be out of office as President of Serbia, so he

5 simply switched, by removing Lilic, to having himself elected by the

6 federal republic Assembly to become President of the FRY, didn't he?

7 Showing that it didn't really matter which office he held, but that's what

8 he did. He simply switched to the FRY.

9 THE ACCUSED: [Interpretation] Mr. Robinson.

10 JUDGE ROBINSON: Yes, Mr. Milosevic.

11 THE ACCUSED: [Interpretation] These observations incorporated into

12 a question are quite improper, because Mr. Lilic ceased to be president of

13 the Federal Republic of Yugoslavia when he had served a full term of

14 office to the very last day. He even stayed on several weeks after the

15 expiration of his mandate, which was when I was elected president of

16 Yugoslavia. So to say that Lilic was done away with is a flagrant lie

17 here, because nobody was taken away after he had served -- not served a

18 full mandate. So Mr. Nice must take care of what he's saying.

19 JUDGE ROBINSON: What he can comment on as a matter of fact, if

20 he's able to, is whether you simply switched by removing Lilic so that you

21 could then become the President of the FRY.

22 Can you say whether as a matter of fact that was a strategy

23 employed by the accused?

24 THE WITNESS: [Interpretation] There was no strategy. It was just

25 a spontaneous development of events. The head of state of the day, of the

Page 35487

1 federal state, his mandate had expired pursuant to the constitution, and

2 we had to elect a new head of state.

3 Now, whether immediately afterwards Mr. Lilic was elected, not for

4 president as Mr. Nice just said but as vice-president of the federal

5 government or vice-premier, I can't really remember, but there was

6 absolutely no strategy. Quite simply, the mandate had expired with the

7 passage of time.


9 Q. The accused is quite right that Lilic had served his full term.

10 Of course, these constitutions of which you were the draftsman were so

11 malleable -- or you believed them so malleable that anything could have

12 happened if it had been desired, and it was desired that the accused

13 should stay as head of Serbia but he couldn't. So he took the three-year

14 term in the FRY, and then in 2000 there was a further proposal, wasn't

15 there, to change the constitution so that he could stay in for another two

16 full years.

17 JUDGE ROBINSON: Mr. Nice, you have several questions there, and

18 the first proposition, I think, the witness should attend to because it

19 does say something about him which is adverse as a professional. You say

20 that he was the draftsman and the constitutions were so malleable that

21 anything could have happened if it was desired, and it was desired that

22 the accused would stay as head of state.

23 Did you draft the constitution in such a malleable, such a

24 flexible manner that anything could happen that you desired?

25 THE WITNESS: [Interpretation] Of course not. And that that is so,

Page 35488

1 if you look at the time after the year 2000, this will be best illustrated

2 that. That constitution, which according to Mr. Nice has qualities of

3 this kind, stayed on for five years once the opposition came into power.

4 And pursuant to that constitution last year, the president of the republic

5 was elected from the ranks of the opposition. So had the constitution

6 been the way Mr. Nice had characterised it, it would have been replaced

7 straight away in the year 2000 once the opposition came to power. So it

8 is the facts and time that show Mr. Nice is not right in his assumptions.

9 JUDGE ROBINSON: Yes, Mr. Nice.

10 THE WITNESS: [Interpretation] That disprove him.

11 JUDGE ROBINSON: The next question.

12 MR. NICE: Yes, certainly.

13 Q. We can probably just see this in tab 14, just the end of this

14 point.

15 While I'm showing this document to you, the position is,

16 therefore, that the -- or as a matter of history, that the accused was

17 President of the FRY until 2000. There were then elections which in fact

18 in any event he lost, but there was -- but there was before an amendment

19 to the constitution. The president's mandate should be by direct election

20 and by secret vote. How many terms and for what period, please?

21 A. Before that, in June, amendments were passed to the federal

22 constitution which did not provide for only that, that is to say that the

23 president of the republic should be elected at direct elections, but it

24 also provided for the direct election of the federal Chamber, that is to

25 say the council of the republic. So this change was far more complex than

Page 35489

1 you are representing it as being.

2 There were a number of amendments, and the president was elected

3 according to that provision for a four-year mandate, and he could be

4 chosen twice to the same position, two terms.

5 Q. One way or another, it was going to be possible by the

6 constitutions and the amendments and your proposal in 1997 and the

7 decision made by the accused for him to have stayed in office, had he been

8 elected, until 2008; correct?

9 A. Well, no, it is not correct, Mr. Nice. You know that for somebody

10 to be in office he has to be elected first. For example, Mr. Milosevic

11 was a candidate and did not win those elections. Therefore --

12 Q. Let's go back --

13 A. Well, if you're going to do it that way.

14 Q. Very well. Let's go back, then, to the constitution of 1990. And

15 to save time, perhaps we can just look at Article 110 on page 48. This

16 one says in respect of the autonomous province of Kosovo, I think, or

17 Vojvodina, Kosovo now renamed Kosovo and Metohija: "The statute is the

18 highest legal act of the autonomous province which, on the ground of the

19 Constitution, shall lay down the competences of the autonomous

20 province ...

21 "The statute of the autonomous province shall be enacted by its

22 assembly ..."

23 Well, we reminded ourself last week that the Assembly was

24 abolished and never in the event elected again, but even had it been

25 elected, its powers by this constitution, were dramatically reduced even

Page 35490












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13 English transcripts.













Page 35491

1 in theory from what they would have been under its previous pre-1989

2 status; correct? Had no constitution, just had an ability to make

3 statutes if the Assembly had even been elected.

4 A. First of all, Kosovo and Metohija was called Kosovo and Metohija

5 right up until 1968. That was its name. It was only after 1968 that it

6 was referred to as just Kosovo. So its name was Kosovo and Metohija for

7 longer than its name was Kosovo. That's one point.

8 Secondly, in my answers I've already stated that the autonomy,

9 territorial autonomy, was reduced by the 1990 constitution to its

10 classical form, that is to say its classical form and shape, not as a

11 rival to the state in whose composition it was but as a unit realising

12 autonomy within the frameworks and borders of its specific features,

13 within the frameworks of the Republic of Serbia. And Article 13 of the

14 constitutional law for implementing this constitution stated how the

15 Assembly of the autonomous province of Kosovo and Metohija would be

16 constituted. So that is Article 13 that you would have to refer to of the

17 law for the implementation of the constitution. And what you said was

18 correct: The province lost its powers of constitutionality, it enacts a

19 statute, but apart from the former Soviet Union, there was never an

20 autonomous unit in the world which would be able to bring in its own

21 constitution and had the powers of doing that. And our provincial

22 autonomies were introduced in 1945 under the influence of Stalin's

23 constitution of 1936, and their rank is -- was institutionalised in the

24 1946 constitution. It was mirrored on Stalin's 1936 constitution, in

25 fact.

Page 35492

1 Q. I'm not going to go into those matters in detail. The

2 constitution that we've been looking at came into effect in September of

3 1990, and the next things that we can deal with -- incidentally, we've

4 looked at Article 135, and I'm not going to deal with that any more. I

5 may come back to it.

6 Is it right - just yes or no - that about -- that at about this

7 time Slovenia and Croatia were pressing for confederation?

8 A. Well, I can't pinpoint that, the period of time, whether that's

9 when that happened, but I do know that they opted for a confederal system.

10 They were pressing for that, yes, at one point.

11 Q. May we return to your exhibit, which was our draft exhibit, the --

12 THE INTERPRETER: The speaker is kindly asked to speak into the

13 microphone.

14 MR. NICE: Certainly.

15 Q. May we return to -- not the draft exhibit, the exhibit marked for

16 identification, Kosovo: Law and Politics, which is marked for

17 identification 818, just so that we can see chronologically what was

18 happening to Kosovo, very briefly.

19 MR. NICE: If the usher would be good enough to place page 89 on

20 the overhead projector.

21 Q. And if the witness would like to look at page 88 of this exhibit

22 in Serbian. So we can see what's happening in Kosovo. Here's a decision.

23 A "Decision on the provisional measures for the social protection of

24 self-management rights and social property in the regional radio station

25 in Urosevac."

Page 35493

1 "It is established that at the Regional Radio Station in Urosevac

2 self-management relations have been substantially disrupted, the social

3 interests seriously impaired ..." et cetera.

4 So under II, the director is dismissed and somebody else is

5 appointed in his -- I think Sabani Isa is a man -- I'm in the wrong

6 place. "The provisional executive shall discharge this function

7 full-time and shall take it over immediately ...

8 "III: The Programme Council --"

9 MR. NICE: Sorry for the delay, Your Honour. It's my fault

10 entirely. I hadn't given Ms. Dicklich enough advance notice.

11 If the usher would just put the page up a little bit on the screen

12 now so we can see III. "The Programme Council of the Regional Radio

13 Station ... is disbanded." So there's one of the things that's happening

14 following the 1989 changes. A radio station is being taken over by

15 central authority.

16 Is that something that happened a lot in Kosovo, Professor

17 Markovic, taking over news outlets?

18 A. I don't know. I've already explained to you that at the time I

19 did not hold a public office, but temporary measures could have been

20 exercised in the entire territory of the SFRY in accordance with Article

21 130 of the constitution. So these are not unconstitutional measures.

22 These are temporary measures taken in order to protect public property and

23 self-management system, and that was in compliance with the then

24 self-management system and self-management law.

25 Q. Would it surprise you if, for example, those resident in Kosovo

Page 35494

1 thought that interference of this kind with the freedom of the press was

2 what was involved?

3 A. Mr. Nice, you as a lawyer should know that I ought to be

4 acquainted with the facts first before I could answer, and I'm not

5 acquainted with the facts. I did not hold a public office at the time.

6 Q. Let's look at another example of the sort of orders that were

7 made. Same document, if we could just go to page 95 for the overhead

8 projector, and it will be 94 for the witness.

9 This is the regime that we're dealing with now, isn't it:

10 "Decision on the enforcement of provisional measures for the social

11 protection of self-management rights and social property in the provincial

12 administration for the advancement of upbringing and education in

13 Pristina."

14 "I: It is established that the self-management relations are

15 gravely disrupted, the public interests seriously impaired and that

16 statutory obligations are not complied with ..." et cetera, et cetera.

17 "II: The executive organ is dismissed: ... director of the

18 Provincial Administration ..." and then somebody else is appointed in his

19 place. Halim Hiseni, it would appear to be probably a Kosovo Albanian

20 name, wouldn't it?

21 A. Are you asking me?

22 Q. Yes, I am.

23 A. I don't know what you're asking me.

24 Q. I'm asking you if, first of all, the name of the person sacked,

25 dismissed, would appear to be a Kosovo Albanian name. I imagine you know

Page 35495

1 the difference in general terms between Kosovo Albanian names and others?

2 A. You know what, I couldn't claim with certainty. Because when I

3 was in Rambouillet, I saw that the Gorani, the Roma, and the Ashkali, or

4 rather, the Egyptians have very similar names. So just to give you an

5 example, Qerim Abazi representing the Ashkali was there --

6 Q. If you really are going to tell us that you don't know if this is

7 an Albanian name, I'm going to move on. If that's your answer, you don't

8 know.

9 Just getting things in chronological order. On the 10th of

10 January of 1991, the Constitutional Court of the federal republic affirmed

11 Slovenia's right to self-determination and secession, even if it didn't

12 assert -- didn't accept its right to unilaterally declare secession. Is

13 that correct?

14 A. I couldn't say until I looked at the decision of the

15 Constitutional Court. I need to see the facts, what decision you're

16 talking about. I might have it here with me.

17 Q. We're pressed for time. Do you have any recollection of this

18 particular decision, Professor Markovic, so as to help us with whether my

19 summary is broadly accurate?

20 A. I cannot remember if we go by dates alone. If you were to give me

21 some more specific details, then perhaps I would be able to recollect if

22 the decision -- if you just tell me that the decision was adopted in

23 January of 1991, then no, I cannot identify the particular decision. You

24 have to tell me what enactment was assessed for its constitutionality,

25 because after all, it was 14 years ago.

Page 35496

1 Q. In light of the format of your answers and the pressures of time

2 and your wanting to get away, I'm going to move on.

3 We go past Karadjordjevo, with which I've already dealt, and we

4 come to May of 1991. Now, of course you weren't in office, you were just

5 an ordinary member of the SPS, but you were subsequently to be in office

6 of one kind or another for ten years. The Red Berets were established in

7 May of 1991. How was that justified constitutionally? A paramilitary

8 organisation established in May of 1991.

9 THE ACCUSED: [Interpretation] Mr. Robinson.

10 JUDGE ROBINSON: Mr. Milosevic.

11 THE ACCUSED: [Interpretation] I think this is an improper question

12 because it contains an untruthful claim. There were no Red Berets in May

13 of 1991. Even I wouldn't know about that let alone Professor Markovic.

14 What Red Berets? Who? Where? In May of 1991. It's not true.

15 JUDGE ROBINSON: It's for the witness to say.

16 Professor, you were asked a question which is in the form of a

17 statement but a question, nonetheless, that the Red Berets were

18 established in May of 1991, and then a subsequent question. What is your

19 answer to the first?

20 THE WITNESS: [Interpretation] My answer is I don't know. I was a

21 university professor. I did not deal with police matters.

22 JUDGE ROBINSON: Mr. Milosevic, in future, allow the witness to

23 answer the question.

24 MR. NICE:

25 Q. Very well. You were a university professor, but subsequently you

Page 35497

1 were a member of the Assembly of the Federal Republic of Yugoslavia, and

2 then you were a Deputy Prime Minister. Now, one of the powers of the

3 Assembly of the Federal Republic of Yugoslavia was that it had to approve

4 the federal budget. Just yes or no so that we can understand the

5 picture: Did you, as a member of the Assembly, acquainting yourself with

6 and approving the federal budget, ever approve money for something such as

7 the Red Berets, of which, of course, you're aware?

8 A. That's correct, the Federal Assembly, just as any other parliament

9 in the world, adopts or approves the budget. The budget is a very

10 detailed enactment, full of figures, and while I was a deputy, I didn't

11 really look into those figures because every ministry and every federal

12 agency was just an item within the budget. So I didn't really look into

13 the figures. I only looked into my fields, the fields for my domain, such

14 as education, culture, and so on.

15 Q. Professor, these are all very serious matters, and the existence

16 of the body called the Red Berets was known. If it was financed even in

17 part by federal body, perhaps Mr. Kertes' federal customs office, this is

18 something of which you Assembly members should have oversight, isn't it,

19 or was it hidden from you?

20 A. On the eve of the adoption of budget, minister of finance would

21 always give a presentation, and I never heard while I was a deputy in the

22 Federal Assembly him mentioning any expenditures for the Red Berets.

23 Q. May we take it if the Judges in due course find that the funding

24 came in part from the federal budget, that it was hidden from the view of

25 those who should have been supervising the propriety of the payment? May

Page 35498

1 we take that?

2 A. No, we couldn't take that. We should take a look at the budget,

3 the specific budget for those years, check the items, because it's very

4 difficult now to recollect items. Some items were expressed very -- in

5 very global terms, such as "expenditures" without specifying expenditure

6 for what. We should check, look into each budget item, check the figures

7 for that item and see whether the Red Berets were provided for within that

8 item. I don't have such a memory as to be able to remember all budgetary

9 items.

10 Q. [Previous translation continues]... this way. You've been, of

11 course, following events in the country of which you were an office-holder

12 and to some degree following events in this trial. When you've heard of

13 the activities of the Red Berets, realising that they had to be funded

14 from either Serbia or the federal republic, were you shocked at what you

15 had been a party to?

16 A. I don't know where you come with this idea that I was -- that I

17 had been a party to that. What do you mean I was a party, I was a member

18 of the Red Berets, that I wore a red beret on my head; is that what you

19 mean?

20 Q. As a legislator approving a budget at a time when paramilitaries

21 were operating on the territory of other states, where tens and hundreds

22 of thousands, or tens of thousands of people and over a hundred thousand

23 people eventually lost their lives, were you shocked at discovering what

24 you and your fellow legislators had been a part of?

25 A. I will repeat once again that I don't know that there ever was an

Page 35499

1 item for Red Berets within the budget. You should present it here as

2 evidence so that I could see it. As far as I can remember, up until 1996,

3 while I served as a federal deputy, I never saw such an item in the

4 federal budget.

5 JUDGE ROBINSON: Mr. Nice, the Professor has been clear on that

6 point.

7 MR. NICE: Indeed.

8 Q. The reason I pressed you on it is this, Professor: We've had

9 evidence in the form of Exhibit 390, tabs 9 and I think 11, which are

10 excerpts from the JSO video film, we've had evidence, Professor Markovic,

11 that Frenki Simatovic says that something called the JSO was constituted

12 on the 4th of May of 1991, and you in your evidence-in-chief, and I think

13 it was under tab 3, drew to our attention the Constitutional Court's

14 condemnation of paramilitary activity by reference to the ZNG.

15 What I'd like your help with as the constitutional expert and as

16 the participating member of the Assembly and subsequently a Deputy Prime

17 Minister is why there was never any constitutional or other legal

18 condemnation of the Red Berets, the JSO known later as the Red Berets.

19 Can you help us, please?

20 THE ACCUSED: [Interpretation] Mr. Robinson.

21 JUDGE ROBINSON: Yes, Mr. Milosevic.

22 THE ACCUSED: [Interpretation] The question is truly improper. The

23 -- according to the information available here, the JSO were established

24 in 1996. I don't care who stated what. This is an improper way to put

25 questions to the witness.

Page 35500

1 MR. NICE: It's not for the accused to try and assist the witness.

2 The evidence is absolutely clear, as the Chamber will remember, in the

3 words of Simatovic addressed to this accused at the ceremony subject of

4 the videotape. And just to remind the Chamber and the accused, what

5 Simatovic says on the videotape is this: "It -" by which he was referring

6 to the JSO - "was constituted on the 4th of May, 1991, at the time of

7 break-up of the former Yugoslavia and since it emerged has constantly

8 worked to protect the national security in circumstances where the

9 existence of the Serbian people was directly jeopardised throughout its

10 entire ethnic area."

11 JUDGE ROBINSON: Well, Mr. Nice -- Professor, let me put the

12 question to you in this way: Were you aware of the activities of the Red

13 Berets?

14 THE WITNESS: [Interpretation] I was not.

15 MR. NICE: Well, Your Honour, I can move on. The coincidence of

16 time, 4th of May, from that exhibit, to the Red Berets, 26th of June for

17 the ZNG, and Defence tab 3.

18 Q. Professor, you were to be elected to the Federal Assembly. What

19 month of what year did that take effect?

20 A. I was elected in late December, I believe it was the 23rd or the

21 24th of December, 1992. And I remained in that position until September

22 1996, when the new Assembly was elected, the new Federal Assembly.

23 Q. In the middle and early autumn or autumn of 1991, there was a

24 political initiative coming from the accused known as the Belgrade

25 initiative. Are you aware of that?

Page 35501












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13 English transcripts.













Page 35502

1 A. I cannot remember the substance of it. The name is familiar, but

2 I cannot remember the substance of that initiative. After all, it's been

3 14 years. Perhaps if you were to give me some additional details, then I

4 would be able to remember.

5 Q. [Previous translation continues] ... incorporate within the

6 residual state as much as possible but in particular to incorporate Bosnia

7 as well as Serbia and Montenegro within the remaining Yugoslavia; correct?

8 Do you remember that?

9 A. I do not remember the substance of that initiative at all. I did

10 not participate in any capacity in drafting that document and cannot

11 remember the actual contents of it, so I'd better not say anything for

12 fear of saying something that is not true.

13 Q. Let us turn to the next constitution I think you were involved in.

14 It's the constitution of Republic of Serbian Krajina, RSK, and we'll lay

15 that on the overhead projector for you.

16 Can you remember when this constitution took effect, Mr. Babic's

17 constitution?

18 A. I've never seen it, and that's why I quoted the words of Lord

19 Palmerston. I never saw that constitution, nor do I know its contents. I

20 spoke to you about the statute of the Serbian Autonomous Region. I know

21 nothing about the constitution of the Republic of Serbian Krajina,

22 absolutely nothing.

23 Q. Can you explain, then, what it was you were doing for Mr. Babic,

24 because Mr. Babic in evidence said quite clearly that it was drafted by

25 Borivoj Rasua and Professor Ratko Markovic.

Page 35503

1 A. I don't know what he referred to. I really don't know what he

2 referred to. First of all, Borivoj Rasua, as far as I know, is not a

3 lawyer at all. Somebody who is not a lawyer cannot draft a constitution.

4 I told you that we assisted with the drafting of the statute of

5 the Serbian Autonomous Region. I assisted and Academician Jovicic.

6 However, that was the statute of an autonomous region. I don't know how

7 the text of the constitution was drafted.

8 Q. And indeed it's true that it was first a statute and then it was

9 proclaimed a constitution. So let's see if this document in the parts I

10 want you to look at jogs your memory.

11 On the first page will be page 2 of 37 for the English, and it's

12 at the top of the page. Thank you very much. And it reads -- I hope you

13 have it in the Serbian.

14 "Proceeding from the right of the Serb people to

15 self-determination and in compliance with the free will of the Serb people

16 in the Serb Autonomous District of Krajina, expressed at a referendum, as

17 well as the centuries old struggle of the Serb people for the freedom of

18 its liberate, democratic and governmental tradition, resolve to establish

19 a democratic state of the Serb people in their historic and ethnic areas

20 in which other citizens will be enabled to exercise their ethnic rights, a

21 state based on sovereignty which belongs to the Serbian people and other

22 citizens in it, on the rule of law and equal rights for the prosperity of

23 all individuals and society, the Serb people of Republika Srpska Krajina,

24 through their representatives in the Constitutional Assembly,

25 proclaim ..."

Page 35504

1 There's no legal -- and first of all, does this jog your memory?

2 Did you draft this bit in the statute which you helped create?

3 A. I did not. This provision was a very brief one. It contained

4 perhaps 20 articles, and it was modelled after the statutes of autonomous

5 units. As far as I can see, this is an entire constitution, a full

6 constitution. It contains everything that a constitution should contain.

7 Q. Let's go to page 3 of 37.

8 JUDGE KWON: Do we have that document, Mr. Nice?

9 MR. NICE: I'm sorry. You do have the document, Your Honour.

10 It's Exhibit 351, tab 68, and I apologise for not having mentioned that

11 already. But if we can go to page 3 of 37. Indeed Article 5 is what I'm

12 looking for.

13 Q. "The territory of the Republika Srpska Krajina is integral and

14 inviolable. A change to the borders of Republika Srpska Krajina can only

15 be decided by its citizens at a referendum.

16 "The Assembly of the Republika Srpska Krajina can decide that

17 other Serb territories be joined to the Republika Srpska Krajina should

18 the citizens of such territories decide to join the Republika Srpska

19 Krajina."

20 Was that an article, one of ten or thereabouts, that you drafted?

21 A. I can't say now because this pertains to the territory of a state,

22 whereas the other document pertained to an autonomous region. However, I

23 don't see anything unusual here. I don't see why you read it in such

24 dramatic tone. Simply stated, the Serb people did not wish to be made to

25 leave Yugoslavia. This is a reaction to the secession of Croatia. So why

Page 35505

1 should there be anything dramatic here?

2 Simply speaking, the Serb people who constituted in that area a

3 majority did not wish to go and live in Croatia in a state where they

4 would be an ethnic minority and where they would not feel at home. What

5 is unnatural about this provision?

6 Q. You're not here as an expert, but I can at least ask you this: Do

7 I take it, then, from your answer that you, you personally think that what

8 they were doing was entirely legal, to carve out a portion of a state that

9 was to be recognised by the European Union? Is that what you thought was

10 legal?

11 A. It was just as legal as Croatian secession from the federal

12 Yugoslavia.

13 Q. And can you just help us, again not as an expert but as a matter

14 of fact, just by pointing us, please, to the differences between the

15 rights of the people, the Serbs in Croatia, from the rights of the Kosovo

16 Albanians in Serbia where they were, of course, an 85 per cent majority?

17 Can you just point us to the factual difference between the two so that we

18 can follow it?

19 A. Of course I can. The difference is very simple. The Serb people

20 is a constituent people in the Republic of Croatia. The Albanian people

21 is a national minority in the Republic of Serbia. The right to

22 self-determination is something that belongs to a constituent people, not

23 an ethnic minority, because an ethnic minority already has its mother

24 state, and that's the Republic of Albania.

25 Q. Finally, please -- sorry. We've understood that, as you've

Page 35506

1 explained that before, but it certainly constitutes this, doesn't it: In

2 terms of ethnic groups, totally different rules, in your mind, apply for

3 ethnic Albanians from ethnic Serbs.

4 JUDGE ROBINSON: Mr. Nice, he has explained why.

5 MR. NICE: Very well.

6 Q. Page 28 of 37, Article 102, please. "The Armed Forces of the

7 Republika Srpska Krajina are the territorial defence of the Republika

8 Srpska Krajina."

9 Now, by whom were they paid, Professor Markovic? You were on the

10 Assembly of the federal republic from 1992. Help us, please, and indeed

11 those viewing so they can know, by whom were these armed forces paid?

12 A. I don't know that. As a separate item in the budget, they were

13 not expressed.

14 Q. We have heard a little, and we are going to hear a great deal more

15 about things called the 30th and 40th personnel centres, established

16 through the Supreme Defence Council. Professor Markovic, you know what

17 the Supreme Defence Council was?

18 A. I do. I do, but I wasn't a member in order to know what decisions

19 it made, but I know what kind of organ it was. It was a body that

20 commanded the army of Yugoslavia, and ex officio two republican presidents

21 and the federal president were members.

22 Q. Do you know about the 30th and 40th personnel centres?

23 A. I'm hearing about them for the first time from you now. I had

24 never heard about it before.

25 Q. How, then, did you think that these Serbs outside Serbia and the

Page 35507

1 federal republic were able to sustain an armed force, because you must

2 have learnt that they had armed forces?

3 A. Well, Mr. Nice, if I -- if I'm a factual witness, I do not know

4 that. I do not know the facts. I can only give you my assumptions, my

5 suppositions, but that's not my job here. I do not know the facts. At

6 the time, I repeat, I was a university professor, and from 1992 on, I was

7 a federal MP, one among a hundred or so.

8 Q. I'll come back to that. Before -- The Hague Conference, are you

9 acquainted, as a member of the public or as somebody later in government

10 viewing the history of your state, are you acquainted with what happened

11 at The Hague Conference?

12 A. You mean in 1991.

13 Q. Indeed I do.

14 A. Well, at that time, a certain plan was made. Lord Carrington made

15 a plan to resolve the crisis in Yugoslavia, and as far as I remember, that

16 plan was not accepted by everybody.

17 Q. Because you drew to our attention at tab 2 of your exhibits the

18 letter to -- or an answer to Lord Carrington's question, and I wondered

19 what your particular role in relation to that letter was. Can you help

20 us? Maybe it was a bit of expert evidence to comment on legality or

21 illegality. Just help us. What was your -- what was the significance for

22 you of the letter to Lord Carrington?

23 A. No. Lord Carrington addressed a letter to the Arbitration

24 Committee, which was an auxiliary working body of the conference, and the

25 Arbitration Commission addressed the organs in all Yugoslav republics,

Page 35508

1 asking for their opinions. One of those organs was the Constitutional

2 Court of Yugoslavia, therefore a federal body. The Arbitration Commission

3 elicited the opinion of federal bodies as well. And in response to this

4 request by the Arbitration Commission, the Constitutional Court wrote that

5 letter at one of its sessions and sent it to the Arbitration Commission.

6 So it is a letter, a document from the Constitutional Court of Yugoslavia.

7 Q. If we are looking at things chronologically and at the

8 significance, if any, of that answer, and if there's any reliance by you

9 on behalf of this accused as to the illegality of other acts by other

10 states, shouldn't we bear in mind that the first act of force was the log

11 revolution, to which we referred last week, and that either the first or

12 one of the first acts of violence was the arming of the Serbs, if it

13 happened, in the Krajina?

14 A. But the log revolution cannot be put before the Constitutional

15 Court of Yugoslavia in order to assess its constitutionality. The only

16 thing that can be assessed by the Constitutional Court for

17 constitutionality are federal enactments and the federal constitution.

18 Log revolutions are material, substantive acts, and they cannot be

19 assessed for legality or constitutionality.

20 Q. I may come back to some documents, if I have time, for the end of

21 1991, but can you just confirm from memory that there was an offer by the

22 European Union to all states of the former Yugoslavia to see if they --

23 what they were seeking by way of independence? Do you remember that being

24 made on the 16th or 17th of December of 1991? We're going to see another

25 reference to it and it's also contained in the Cassese article that you

Page 35509

1 were going to produce but weren't able to, but do you remember it?

2 A. Yes, yes, correct. I remember. It was exactly the way you said.

3 Q. And the clear consequence of that was that Bosnia was going to go

4 for independence. And so that we can have everything in a chronological

5 way, once it was known that Bosnia was going for independence, the

6 Belgrade initiative, which involved the incorporation of Bosnia, was dead.

7 Do you remember that?

8 A. I repeat to you, the Belgrade initiative fell into complete

9 oblivion, in my mind. I cannot remember the substance of the Belgrade

10 initiative, although the name rings a bell.

11 Q. And just to make our position as the Prosecution clear, it was

12 following the acceptance by Bosnia of the European Union's invitation that

13 it became necessary for the accused to try one other way, having an

14 enlarged Serbia, and that was with his third Yugoslavia, the so-called

15 third Yugoslavia for which there was a conference at the beginning of

16 1992. Do you remember that?

17 A. I don't know which conference you are referring to. It would be

18 very good if I could read that paragraph of the indictment, because things

19 would be much clearer to me then, and I could memorise it.

20 Q. I have my eye on the clock, and I'll come back possibly to that a

21 little later. Can we go back to marked for exhibit -- marked for

22 identification Exhibit 818 briefly and just see again some of the things

23 that happened either at the end of 1991 or in 1992 to Kosovo, and we'll

24 look at another constitution so we can get the picture.

25 We go to page 69 of this exhibit in the English, which I expect

Page 35510

1 will be 68 for you, and indeed it is. We can see that the elementary

2 education law requiring the language of instruction to be Serbian and

3 nationalities to be provided with education in the mother tongue if not

4 less than 15 pupils enroll in the first grade, subject to the consent of

5 the Ministry of Education. It's on page 69.

6 Then we -- that was the elementary education law at the top of

7 the page, Usher.

8 And then we're coming down to the middle of the page, the

9 secondary education law: "The school shall conduct instruction in the

10 Serbian language.

11 "The school shall follow the syllabus of the language of

12 nationalities or bilingually when not less than 15 pupils of the same

13 grade opt for it ..."

14 Then at the bottom of the page, the high school law: "Higher

15 education shall be acquired in the Serbian language.

16 "Instruction at a high school may be in the languages of

17 nationalities or national minorities and in one of the world languages

18 decided by the founder."

19 Is this, do you think, oppressive to Kosovo Albanians?

20 A. I don't think so. Simple arithmetics go in the face of your

21 argument. They fulfil the requirement of 15 in all the three levels of

22 school. We are talking about much smaller minorities than Kosovo

23 Albanians here.

24 Q. Let's go over to page 107, for you page 106. All about the same

25 time, in the same year.

Page 35511

1 The law on Serbian Academy of Sciences and Arts: "The Serbian

2 Academy of Sciences and Arts is the supreme scientific and artistic

3 institution in the Republic of Serbia.

4 "The Academy of Sciences and Arts of Kosovo and Metohija shall

5 terminate its work as of the day of entry into force of the present

6 law ..."

7 If you'd like to turn over -- that's as far as I need go for these

8 purposes, I think.

9 What do you think that would have done to a place 85 per cent of

10 the same ethnic origin, having to close the doors on its academy? And

11 indeed the next reference is to the Institute of Kosovo History, which had

12 to terminate its work. Is this all to do with constitutionality, or is

13 this to do with centralising Serbian state and oppressing Kosovo

14 Albanians?

15 A. Well, you see, I think that a small country like Serbia does not

16 have enough people to fill three academies of science. At the time there

17 were three academies of science. The requirements for becoming a member

18 of the academy are extremely high, and in the Republic of Serbia, there

19 are simply not enough personalities of respectability that could fill

20 three academies. Much bigger states, like France, have only one.

21 Q. [Previous translation continues] ... and its institute of history

22 had existed and had functioned, and now for no good reason, it may be

23 thought, they were simply being abolished.

24 I mean, I know you were only a member of the party at the time,

25 but can you help us with why that really was done?

Page 35512












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13 English transcripts.













Page 35513

1 A. Here is why: We simply moved to a different concept of autonomy.

2 Autonomy is not a quasi-state. It is a unit with a territorial autonomy.

3 And that goes with certain other changes regarding other institutions,

4 like academies of science. If it is a territorial unit with a degree of

5 autonomy, scientists from that unit can be elected members of the Academy

6 of Science of Serbia. And indeed, the Academy of Science of Serbia had

7 members both from Kosovo and Metohija and from Vojvodina, the other

8 autonomous unit.

9 Q. A very brief look at the constitution of the Serbian Republic of

10 Bosnia-Herzegovina, please, which Your Honours have had produced twice as

11 either Exhibit 319, tab 1, or as Exhibit 132.

12 And do you remember, Professor Markovic, the passage of your

13 evidence that appeared to have been incorrectly interpreted where you

14 claimed privilege from identifying your involvement in the drafting of a

15 constitution? We've looked at the RSK for which you say you contributed

16 something in respect of a law, and we're now looking at the constitution

17 of the RS. Which one of these was it that you were referring to when you

18 were, right at the beginning of your evidence, saying you were privileged

19 from discussing it?

20 A. I didn't say I was privileged from discussing it. I said it would

21 not be fair for me to speak about it, and I meant the constitution of the

22 autonomous region. And by the way, in my testimony I enumerated all the

23 constitutions to which I contributed. This one would be the fifth.

24 According to you, you would make me out to be the main constitution writer

25 for the Balkans. It looks as if I had written them all.

Page 35514

1 Q. Did you involve yourself in the preparation, assistance, drafting

2 of this constitution or any statute that preceded it?

3 A. No, in any way, and I explained why. Bosnia and Herzegovina or,

4 rather, Republika Srpska has enough qualified professors, some of them

5 members of the Academy of Science, that they are able to do it without any

6 assistance from outside.

7 Q. I may come back to ask you some questions about that if time

8 permits.

9 MR. NICE: But can we look, please, Usher, simply at page 1 of

10 this constitution, Article 2.

11 Q. You will see the family of constitutions involving the Serbs of

12 the former Yugoslavia. Article 2 says: "The territory of the Republic

13 consists of regions of Serbian ethnic entities including the regions where

14 genocide has been committed upon the Serbian people.

15 "The borders of the Republic shall be established and altered by

16 means of plebiscite of a three-quarter majority of the total number of

17 registered voters.

18 "The Republic is part of the federal state of Yugoslavia."

19 What does that mean? Of which federal state was the RS

20 proclaiming itself, the RS there from -- cut out from Bosnia, of what

21 Yugoslavia was it proclaiming itself to be part?

22 A. That same Yugoslavia to which it had belonged until then. Quite

23 simply, the Serbian people in areas where it was in the majority did not

24 wish to be led out into foreign states, states that they did not feel as

25 their own, states in which they would be an ethnic minority. It was a

Page 35515

1 struggle for preserving the old Yugoslavia, not for creating some sort of

2 Greater Serbia. Those people simply didn't want to be led out. They

3 wanted to stay in their former state. It is a natural aspiration. They

4 wanted to stay together with their own people in the same mother-state in

5 which they had lived until then.

6 Q. Article 4 says: "The Republic may enter into union with state

7 forms of other peoples constitutive of Bosnia-Herzegovina."

8 Did that mean other Serb-dominated areas?

9 A. I don't know why you address me personally, as if I had written

10 this. You should ask something like, "Do the authors mean ..." or

11 something like that. I can only interpret this as a lawyer, just like

12 you.

13 Q. Very well. Finally, over the page to Article 9. "The capital

14 city of the Republic of Sarajevo." You were an Assembly member starting

15 at the end of 1992. We all know about the siege of Sarajevo. Does the

16 desire to have Sarajevo as the capital, in your judgement as a former

17 parliamentarian and later Deputy Prime Minister, explain the siege?

18 A. First of all, the -- both capacities that you ascribe to me I did

19 not have on the 16th of March, 1992. I was neither the federal MP or

20 Deputy Prime Minister. At that time, I was only a university professor.

21 Do you want my opinion as a university professor, because I'm a

22 factual witness here? But then it would not --

23 Q. I want your knowledge --

24 A. -- be proper testimony it would just be my opinion.

25 Q. [Previous translation continues] ... an Assembly member from 1992,

Page 35516

1 please. That's what I want.

2 A. I became a federal MP in end 1992. I believe our term of office

3 was verified only in February 1993. And you know that one can only become

4 an MP once their office, their election is verified by the parliament. I

5 can only give you an opinion as a man in the street.

6 Q. Finally on this constitution, at page 17. For example, 110,

7 Article 110: "Serbian Republic of Bosnia-Herzegovina shall have its own

8 Army, consisting of standing units and reserve units."

9 Throughout its life and for the period of time when you were an

10 Assembly member, are you aware how the RS was -- the army of Republika

11 Srpska was funded?

12 A. I was not aware of that at all.

13 Q. Again I'll return to that with time. I want you now, please, to

14 look at the next constitution that you drafted, the last of -- sorry. I

15 realise you're saying you had no part in the previous one.

16 The next constitution with which you had any part in the drafting

17 was the 1992 FRY constitution. That came to be prepared in 1992, I think

18 in April.

19 Now, if you'd look, please, at this document, you'll find it's an

20 article -- again it's entirely my fault. I -- I hadn't given Ms. Dicklich

21 advance notice of what I'm going to be putting to the witness.

22 MR. NICE: Your Honours, while it's coming, and I don't know how

23 Your Honours are committed over the break, but it's a document that it may

24 be of value for you to spend -- maybe worthwhile spending time with it

25 over the break, assuming we can find it.

Page 35517

1 Q. Is it right that there was, in January of 1992, European

2 recognition of Slovenia and Croatia?

3 A. Correct.

4 Q. Is it right, following that, that there was a meeting on the 5th

5 of February of 1992 in Podgorica for the purpose of considering the 1992

6 constitution that was to come?

7 A. You have to take my word for it if I say that I don't know about

8 that, because I was not present at the meeting. I was not part of the

9 delegation from the Republic of Serbia. I know that for sure, and I know

10 even the reasons why I wasn't on it.

11 Q. How was it that you came to be involved in drafting the 1992

12 constitution?

13 A. Well, again as an expert. I was a member of that narrower body

14 that had prepared a draft constitution, and that body was made up

15 following the principle of equal representation. Half of the members were

16 from Serbia, half from Montenegro.

17 Q. Who instructed you?

18 A. Once again, nobody gave me any instructions. And if someone were

19 there to give me instructions, then they would be best placed to write the

20 constitution themselves. I assume that the people drafting this had their

21 own autonomy and can do so themselves, where it is the facts that define

22 the contents and substance of a constitution.

23 JUDGE ROBINSON: Mr. Nice, we're coming to the break now.

24 MR. NICE: I seem to have mislaid this particular document I

25 wanted you to read, and I'm afraid I can't ask you to read it over the

Page 35518

1 break.

2 JUDGE ROBINSON: We will break for 20 minutes.

3 --- Recess taken at 10.31 a.m.

4 --- On resuming at 10.55 a.m.

5 JUDGE ROBINSON: Yes, Mr. Nice.

6 MR. NICE: The exhibits produced earlier, may they be given

7 numbers? There was the Vreme article, and there was an amendment. If the

8 Vreme article could be numbered.

9 JUDGE ROBINSON: Yes, it may be numbered.

10 JUDGE KWON: Yes, Ms. Higgins.

11 MS. HIGGINS: Before it's admitted into evidence I do have several

12 objections, which I can outline briefly.


14 MS. HIGGINS: Firstly, in evidence the witness stated himself that

15 he had never given an interview like that. He didn't accept that he'd

16 given the interview.

17 Secondly, in my submission, it adds nothing to the evidence he's

18 actually already given to the Court, and on analysis of the article, it

19 appears that it is not even an original interview but was in fact material

20 taken from Politika Ekspres and, before that, Tanjug.

21 My concern, Your Honour, is firstly, as I've stated, it adds

22 nothing; and secondly, it contains journalistic comment, and other names

23 are referred to in the B/C/S version of the article which has not been

24 translated its entirety. As far as I can establish, just five paragraphs

25 of the original article has been translated for these purposes.

Page 35519

1 The fear is also that there is included comment by someone else -

2 Professor Nikolic - who was not a witness in this case.

3 Your Honour, briefly those are my observations on the

4 admissibility of this document.

5 JUDGE ROBINSON: Could we sever the comments?

6 MS. HIGGINS: Your Honour, the difficulties there are paragraph --

7 the last paragraph relating to Professor Nikolic could be severed, but the

8 concerns remain in terms of the originality of the interview and the

9 concerns about this witness admitting and stating that he never gave an

10 interview like that. So my concerns still stay, but if Your Honour is

11 willing to and wants to admit it, then I would ask that the comments from

12 Professor Nikolic go.


14 MR. NICE: The witness acknowledged the views expressed there as

15 being no different from his own, and the value is very substantially in

16 the comments of Nikolic, given the way this witness has been advanced as

17 an unimpeachable and peerless expert, we see here, as he was obliged to

18 concede, public expression of contrary views on important matters, and if

19 I have time, we're going so see more. And therefore, given the assertion

20 that I've made that this witness would do whatever was necessary to help

21 this accused, it's important to see that his opinions were indeed the

22 subject of contrary academic expert opinion. So in our submission, the

23 article is admissible for both parts and on the normal grounds.

24 [Trial Chamber confers]

25 JUDGE ROBINSON: On the basis that the professor acknowledged that

Page 35520

1 these -- the views expressed are similar to his, we'll admit the document.

2 THE REGISTRAR: That will be 823.

3 MR. NICE: I'm grateful. The other document doesn't need to be

4 produced in the event the witness gave answers that are sufficient and I

5 needn't burden the record with a document.

6 As to the document I was going to ask you to look at over the

7 adjournment, it's entirely my error. Ms. Dicklich had, of course,

8 produced it but I gave her a wrong internal reference.

9 Can I now distribute to the Chamber, to the witness, and to the

10 accused and to Ms. Higgins an article written by this witness. The first

11 thing we'll see -- I'm going to require a lot of it to be shown, so if the

12 usher could stay by the --

13 JUDGE ROBINSON: Mr. Milosevic, yes.

14 THE ACCUSED: [Interpretation] I assume that the interpreter

15 misspoke, because it says in Serbian that this is a text written by the

16 accused whereas I can see on the transcript it says that the text was

17 written by the witness. So that was a slip of the tongue. But just to

18 put that right.

19 JUDGE ROBINSON: Thank you, Mr. Milosevic.

20 MR. NICE:

21 Q. If we look, Professor Markovic, at the top of the page, and the

22 Chamber can see this in the translation, it is headed Pravni Zivot 3-4/92.

23 Would that suggest that this article was written in or about March or

24 April 1992, Professor?

25 A. Well, that's what it ought to mean, and that they are published on

Page 35521

1 time, but usually they're published a little late, and then the copies are

2 antedated, the issues.

3 Q. The 1992 FRY constitution is dated the 27th of April. So that

4 would mean that you were writing or preparing this article either at the

5 time of drafting of the constitution or shortly before; correct?

6 A. Well, they worked on that text from February, and it was adopted

7 in parliament on the 27th of April, 1992, but it was worked on before.

8 Q. In fact, it only took five days to draft the FRY constitution, so

9 it is said. Is that a correct proposition? We'll see the proposition

10 later.

11 A. Well, if you take a look at expired labour, you cannot write the

12 constitution and be an ignoramus. If you look at past labour, past

13 labour, you would have to have 15 years of knowledge accumulation in order

14 to be able to write it in the space of just five days.

15 Q. Was it, in fact, written in five days? Please help us.

16 A. The draft constitution of the Federal Republic of Yugoslavia was

17 written. That is to say, those republics who had decided to remain within

18 the then-state of Yugoslavia and to carry on its continuity.

19 MR. NICE: Your Honours, this text which may actually merit

20 detailed reading, is unrevised. It's an official translation but it is

21 unrevised. There are some passages of it which are quite awkward, but for

22 the most part I think it's easily to be followed and much of it I'd like

23 to deal with but I have limited time.

24 Q. Paragraph 1, from about three lines down, reads as follows: Since

25 the 1968 constitutional amendments -" and I'm going to miss out words from

Page 35522

1 time to time to save time - "Serbia has been engaged in a struggle to have

2 as many states on the territory of its republic, as other republics,

3 members of the Yugoslav Federation have on theirs. That struggle

4 successfully ended only in 1990 by drafting the Constitution of the

5 Republic of Serbia."

6 Next sentence on the same paragraph: "... unification of Serbia

7 and formation of a unique state government on its entire territory is the

8 greatest result of this Constitution."

9 Is that something to which you still -- is that something you

10 still believe, Professor Markovic? Just yes or no.

11 A. Yes.

12 Q. [Previous translation continues]... of centralisation of Serbia,

13 achieved by the 1990 constitution, isn't it, unification of Serbia and a

14 formation of a unique state government. That's what this was all about.

15 A. No, I don't agree with you there. Decentralisation existed on two

16 counts; territorial autonomy and local self-government.


18 MR. NICE: Yes.

19 JUDGE ROBINSON: I'm going to ask the professor to explain this,

20 that since 1968 -- "Since the 1968 constitutional amendments to the SFRY

21 Constitution from 1963, Serbia has been engaged in a struggle to have as

22 many states on the territory of its republic, as other republics, members

23 of the Yugoslav Federation have on theirs."

24 The part I would like to have comment on is "to have as many

25 states on the territory of its republic ..." What does that mean? And

Page 35523












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Page 35524

1 then, "as other members --" "as other republics have." First, what is

2 meant by "as many states on the territory of its republic," and how is

3 that contrasted with the situation of other republics?

4 A. Well, this meant that the Republic of Serbia should undertake all

5 the prerogatives of its state power and authority throughout its territory

6 like the other five republics, whereas the autonomous units should just

7 realise their autonomy within the frameworks of the Republic of Serbia

8 itself. Because the status of the autonomous provinces beginning with

9 1968, for instance, pushed Serbia back to an area -- as a state, I'm

10 saying -- to an area between the autonomous provinces, lodged there. The

11 autonomous provinces were the protagonists of their own constitution,

12 their own laws, they had their own government, their organs of

13 administration, their own Supreme Court, their own Constitutional Courts.

14 So the Republic of Serbia was not a state on the territory of the

15 autonomous provinces. It wasn't a united state on its own territory and

16 did not have the prerogatives of its own social powers like the other five

17 republics.

18 JUDGE ROBINSON: So in effect it meant to have incorporated within

19 the territory of Serbia the autonomous states, the autonomous provinces.

20 THE WITNESS: [Interpretation] That meant that the autonomous

21 provinces were supposed to be deprived of the state functions that they

22 gradually won since 1968. For example, in 1968 itself, when this status

23 of the autonomous provinces came into being as quasi-republics, this was

24 being built up, they had the right to a constitutional law which they had

25 never enjoyed until then. Then they enjoyed the right to a statute as the

Page 35525

1 highest act, and the right to enact laws, which it never had until 1968.

2 It also gained a Supreme Court, which it did not have the right to before

3 that. The Assembly and the Executive Council of the autonomous province

4 was vested with the right to take proceedings with the Constitutional

5 Court of Yugoslavia, for instance, which right it did not have up until

6 then, and so on and so forth.

7 JUDGE ROBINSON: The next part of the question is how was Serbia

8 in a position of inequality in that regard in relation to the other

9 republics?

10 THE WITNESS: [Interpretation] Well, first of all, it was in a

11 position of inequality, let me repeat, because the functions of the state

12 could be realised just outside the territory of the provinces themselves.

13 JUDGE ROBINSON: Are you able to --

14 THE WITNESS: [Interpretation] And secondly --

15 JUDGE ROBINSON: Are you able to illustrate the inequality by

16 saying, for example, what the position was with Croatia or Slovenia or any

17 other republic?

18 THE WITNESS: [Interpretation] The other republics had all the

19 prerogatives of state power and authority throughout their territory. The

20 laws were in force throughout the territory of the republic, for example,

21 as was the constitution. The republican constitution and the republic as

22 a whole was represented in the federal state. And in the federal state

23 Serbia was represented itself, that is to say this space or area between

24 the two provinces and the provinces themselves separately. So they were

25 not --

Page 35526

1 JUDGE ROBINSON: The question of --

2 JUDGE KWON: Mr. Nice.

3 MR. NICE: I've had a note, which I suspect comes from one of the

4 interpretation booths, where they say having compared the Serbian and the

5 English, that fifth line down, the phrase "as many states" is better

6 translated as "as much of a state."

7 JUDGE ROBINSON: I see. "As much of a state." I see. Yes.

8 MR. NICE: We're much obliged to the booths.

9 JUDGE ROBINSON: That would explain the difficulty I had, yes.

10 Thank you. Please proceed, Mr. Nice.

11 MR. NICE:

12 Q. Can I say, Professor Markovic, generally about this article, my

13 suggestion is to you overall that this article in a sense gives the game

14 away and reveals in many ways exactly the thinking of the political

15 leadership of Serbia at this critical time of 1992, and that even if, as

16 you say, nobody asked you to write the constitution, you nevertheless

17 happened to understand what the thinking of the leadership was and indeed

18 how it was going to be executed.

19 So, so that you have that in mind, that's my general proposition,

20 shall we look at the first footnote, the double starred footnote,

21 "Publishing the text of the author who directly worked in the project of

22 the Constitution of the joint state of Serbia and Montenegro, among other

23 things, has a primary goal to inspire our wise constitutional thinkers and

24 our experts, to publish in their views on the constitutional status of

25 Serbia and its orientation to create joint state, with perspective of

Page 35527

1 graduate unification of all Serbian states and Serbian people on the pages

2 of this magazine."

3 That is the clearest exposition of a plan to create an enlarged

4 Serbia to which other Serb areas could join. Am I correct?

5 A. No, you're not correct, on that on two counts, for two reasons.

6 First of all, I didn't write this. This was written by the editorial

7 board of that scientific journal, magazine. The editorial board and not

8 me as author.

9 And secondly, you're not right because there were no efforts to

10 create a Greater Serbia. The effort was to remain within Yugoslavia and

11 not to leave Yugoslavia. So the Serb people did not wish to borrow their

12 ethnic substance to anyone else and to create a state of their own based

13 on the Serb people alone. Why would the Croatian state be created of the

14 Serb people or Bosnia created of the Serb people? They wanted to stay

15 where they were. They didn't wish to leave. They wished to remain in the

16 state they had lived in.

17 Q. We'll see what you say later in the article. In the English to

18 page 2, and in your text, Professor, to page 374, first paragraph.

19 "However, since the Federation that was first created by the

20 amendments from 1971 ..." and then amended and so on, "... which at the

21 time of the enactment of the constitution of Serbia ... became openly

22 separatist, Serbia had to integrate security mechanisms in its

23 Constitution in case of already visible forms of disregard of the federal

24 legal system and other violations of the Federal Constitution to the cost

25 of the Republic of Serbia. By proclaiming itself -" and then that's a

Page 35528

1 reference to the Article 135 - "a part of the SFRY, the Republic of Serbia

2 stipulated in its Constitution that she would realise the rights and

3 duties she has according to its Constitution ..."

4 And I'm going to read to the end the paragraph from the next

5 sentence: "Therefore, to avoid the possibility that some vital government

6 functions would not be executed because of separatism and the republics

7 cancelling their participation in the work of federal bodies, the Republic

8 of Serbia -" and this is perhaps a passage that is a little awkward as

9 presently translated - "envisaged these functions in its Constitution as

10 its own, prolonging their exercise until the SFRY and the Federal

11 Constitution exist. From a legal point of view, this provision is

12 useless, even incorrect in relation to the Federation and its

13 Constitution. However, it is an expression of a specific political

14 situation and actual relations in the Federation, and Serbia could not

15 influence the outcome."

16 Two things. Aren't you really saying there that Serbia's 1990

17 constitution was in defiance of the law, claiming that this was because of

18 already present disregard or separatism?

19 A. I don't know which law you're referring to. You say that the

20 Serbian constitution was in defiance or contrary to the law. Which law?

21 Q. To the federal constitution of 1974, which was the abiding law at

22 the time by which constitutional change was permitted.

23 A. It is not necessary for it to say the constitution of the federal

24 unit, that the rights and units of the federal state will be realised

25 within it, within the federal state. But in view of the express

Page 35529

1 tendencies towards secession, the constitution repeated that. That is to

2 say, it said that all the functions, rights, and duties which it provides

3 for the Republic of Serbia, envisaged for the Republic of Serbia, which

4 the federal constitution had envisaged for the federation would be

5 realised within the federation, that is to say within the federal state.

6 And in view of the dangers of secession, those rights and duties were

7 repeated as the rights and duties of the Republic of Serbia. However, it

8 deferred their implementation until the constitution of 1974 was still in

9 force, or its successor, the 1992 constitution.

10 Q. You see, I'm not going to explore the detail of that answer now,

11 but dealing with the second point, the justification for this, the Serbian

12 constitution was dated September 1990, and by that time what separatism

13 had there actually been apart from, say, the summer log revolution or the

14 arming of Serbs in the Krajina? Where is the separatism which you rely on

15 in this article? Or, as I'm going to suggest, is this a form of post

16 facto justification?

17 A. Well, it was said here that leading questions are not allowed, so

18 why are you suggesting an answer to me now? We're talking about

19 amendments to the constitution of the Republic of Slovenia, which were

20 enacted in 1989, and we dealt with those amendments here. We examined

21 them. And in one of the provisions of those amendments, it was stated

22 that the right to self-determination, including the right to secession,

23 that the Republic of Slovenia would regulate in its constitution, and that

24 was in 1989. And it was the first decision that the Constitutional Court

25 took, and we discussed here. And the constitution of the Republic of

Page 35530

1 Serbia, the 28th of September, 1990 is the date of that. And as far as I

2 can say, the reactions on the constitution of Serbia was a posteriori,

3 that is to say once we had clear manifestations of aspirations towards the

4 right to self-determination as being the right to secession as well.

5 JUDGE ROBINSON: Professor, the prohibition against leading

6 questions only applies to examination-in-chief and re-examination. It

7 doesn't apply to cross-examination.

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

9 Q. If we go on to page 3 in the English, and to the paragraph in your

10 text, Professor, which is on page 375, on the right-hand side, under II:

11 "Since its resurrection (1804), the modern Serbian state should have

12 solved its most important question - how to gather Serbian people,

13 dispersed during the five centuries of foreign power, in one state, in

14 other words, how should the Serbian state be a protector of all Serbs.

15 During the XIX century, when the medieval Serbian state was rebuilt, many

16 wise Serbian people and Serbian political parties ... tried to solve that

17 problem with their programs for unification ..."

18 That's a reference to Nacertanije, I think. But the first

19 sentence is the clearest possible exposition of what was then, in 1992,

20 the political leadership's plan to gather all Serb people in one state.

21 Am I not right?

22 A. No, you're not right because the Serb people already existed in a

23 single state, and the name of that single one state was Yugoslavia. And

24 the struggle of the Serbian people, in fact, is the wrong thesis. It

25 wasn't the struggle to create a Greater Serbia but to preserve Yugoslavia.

Page 35531

1 Serbia was the largest country when it was Yugoslavia, when all the Serbs

2 lived in one state.

3 Q. Professor, by 1992, that's all history. Secessions have happened

4 and international recognition has taken place, and the problem is what's

5 going to happen to the Serbs with their proclaimed but unrecognised states

6 in Croatia and in Bosnia? And my suggestion to you, and I give you one

7 last chance to think about it, is that writing this in 1992 is the

8 clearest reflection of the accused's and the other political leadership's

9 intention to create a new state for all Serbs by carving out from and then

10 attaching to Serbia parts of Croatia and Bosnia. Correct or incorrect?

11 JUDGE ROBINSON: It's an important question, Professor, because

12 that is the thesis of the Prosecution. That's the Prosecution case in

13 essence.

14 THE WITNESS: [Interpretation] First of all, this is a text written

15 by an author and not written by Mr. Milosevic. I myself wrote this text,

16 and it says that the entire text was printed in a scholarly, scientific

17 journal which is called Legal Life. And there is an asterisk with my name

18 stating my functions. So I wrote this in the capacity of a professional

19 scientific worker, not a man of politics because I had no political

20 functions at the time. That's the first point.

21 The second point is this: There was no creation of a new state,

22 as you put it. It was simply the preservation of the old state, the SFRY

23 or, rather, federal Yugoslavia. That is to say the whole question lies in

24 this point: It wasn't an effort on the part of the leadership of Serbia

25 to create a Greater Serbia but to preserve and maintain Yugoslavia,

Page 35532

1 because the Serbs from the secessionist republics did not wish to go and

2 live in another state that they didn't experience and feel to be their

3 own. They wanted to remain living in the country they had always lived in

4 for the past 70 years.


6 Q. Allow me to try to bring you back to the question. Secession and

7 international recognition had already happened, so that what you set out

8 here could only be achieved by bringing into the Serb fold, in due course,

9 those parts of the territories of Croatia and Bosnia which could be

10 dominated or ruled by Serbs. Am I not right?

11 A. But, Mr. Nice, I'm talking about the 19th century, not the 20th

12 century.

13 Q. Very well. Let's look at the next paragraph, still on your page

14 375, because I'm going to suggest to you that in the next -- in this

15 paragraph and the following one you completely reveal the realities of

16 what we're inquiring into.

17 You said this: "That question is a permanent national task, still

18 unsolved. Only in this century, for the third time Serbian people was put

19 in a position when they have to solve their fundamental national question

20 - how to organise their state. As in previous two situations of this

21 century, even now Serbian people have two options. The first one proceeds

22 from the mixing of nations on the South-Slav territory. There are compact

23 territories where one nation is in majority, but there are also some

24 enclaves, which are smaller territories, populated by one nation and

25 surrounded from all sides by one or many other nations. Furthermore,

Page 35533

1 there are territories where no nation has a total majority. Proceeding

2 from such a reality, which is primarily the reality of Serbian people, a

3 joint state of all Yugoslav nations organised as a complex state,

4 specifically, as a federal state, is considered to be mostly in accordance

5 with."

6 Just pausing there. From the questions I asked you before the

7 break and in particular from the questions about the change from the

8 Belgrade initiative to the third Yugoslavia turning around the invitation

9 of the European Union, the Yugoslav states to declare independence, this

10 was an impossible -- there was no longer possible, because Croatia had

11 gone, Slovenia had gone, and Bosnia had gone. So that what you've set out

12 in the paragraph until this full stop is impossible. Do you agree with

13 me?

14 A. This is a statement to the effect that the federation of Yugoslav

15 peoples is the optimum way to resolve the Serbian national question as

16 well.

17 Q. We understand that's the Serbian view, but here you are winter

18 1991/1992, or spring 1992, with reality facing you, describing the

19 options, and you go on to say this: "A federation -- a confederation

20 would not be a suitable form because it intensifies ethnic antagonisms

21 instead of eliminating them. This was very evident even in the case of

22 Yugoslav Federation according to the Constitution from 1974, that in the

23 last decade plus a year or two, which practically functioned more as a

24 confederation. Today everyone can see the results of such functioning."

25 Two points. First, I must suggest to you that to all those states

Page 35534












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13 English transcripts.













Page 35535

1 which exist happily as confederations, the suggestion that confederations

2 intensify antagonisms is not founded and/or absurd but is your way of

3 justifying Serbia's refusal of confederation offers made by other states

4 at earlier times and in particular at The Hague Conference. Am I right?

5 A. You are not right. Confederation is a historically outdated form.

6 All confederations, including United States and Switzerland, have grown to

7 become federations and there was no reverse processes where federations

8 became confederations. There were no such processes in history.

9 Q. There are alternative arguments but I don't have time. But let's

10 look at the next sentence, because this really tells the truth, doesn't

11 it, Professor, if we bear in mind that the first possibility, the optimum

12 choice, is gone, that you're against confederation and you say this:

13 "Second choice is an independent and sovereign state of Serbia which would

14 comprise all Serbian countries which are in geographical continuity, thus

15 connected territorially. To go over that and demand that state also

16 encompass the Serbian majority countries which are separated from the

17 mother country Serbia by territory where the second nation represents

18 majority is only possible by entering war with the risk of confronting the

19 organised international community and exposing to its draconian

20 sanctions."

21 Now, you will have to look at it again. It may need some revision

22 in its translation, but you're telling us you were a mere technical

23 draftsman, assisting without being asked in the drafting of constitutions,

24 and you're here saying that the second choice involving territories where

25 the second nation represents the majority, and that has to be Muslims and

Page 35536

1 Croats, is only possible by entering war. You're simply describing

2 exactly what this accused did when he led people to their fates in an

3 attempt to bring about a Serbian country in geographical continuity.

4 Isn't that correct?

5 A. It is not correct, certainly not.

6 Q. [Previous translation continues] ... to us.

7 A. You keep ignoring the fact that I wrote this in my capacity as a

8 scholar who held no public office at the time. In this article, I explain

9 what two options for solving the Serbian national issue are possible. I

10 chose the optimum one as the federal state option.

11 As for the second option, I said that it was not possible to

12 realise because it would have to come at the cost of confrontation with

13 the international community and exposing the country to Draconian

14 sanctions. Therefore, the second option was not realistic, could not have

15 been realised. This is not a pogrom at all, this is simply my view as a

16 scholar which I expressed ex cathedra.

17 JUDGE ROBINSON: Professor, I notice on the first page you're

18 identified as the author and as Judge of the Constitutional Court of

19 Yugoslavia. Was your judgeship a factor in the writing of this article?

20 THE WITNESS: [Interpretation] No. You know, in our journals,

21 various errors occur. This is one of the obvious errors. At the time, I

22 was no longer a Judge of the Constitutional Court of Yugoslavia because,

23 quite simply, the Constitutional Court of Yugoslavia existed no longer at

24 the time. But in front of my name you can see the term "Professor." I am

25 a professor of the faculty of law in Belgrade, and they simply did not

Page 35537

1 update the information.

2 JUDGE ROBINSON: Frankly, I was surprised to see the reference to

3 your being a judge. But could you tell us why that second choice was only

4 possible by what is described here as entering war, by waging war? Why,

5 in your view, was it only possible through the waging of a war?

6 THE WITNESS: [Interpretation] Precisely because the Serbian

7 people, against their will, were taken to live in other independent

8 national states. Serbian people were separated from their parent state.

9 Up until that time, Serbian people lived in one state and then by ways of

10 secession and war, Serbian people were taken to live in another state, and

11 that fact was recognised by the international community. Therefore,

12 through secessionist acts and armed action, Serbian people were taken to

13 live in another state. The international community recognised that, and

14 by doing so it severed the Serbian nation into several bits. The Serbs,

15 up until that time, lived in one state, in federal Yugoslavia.

16 JUDGE ROBINSON: Yes, Mr. Nice.

17 MR. NICE:

18 Q. If we can go to English page 5, to page 377 for you, Professor

19 Markovic, to have some feel for how your approach to the other states may

20 have informed your judgement, note this: You asserted that: "... the

21 advocacy of one state is not enough to preserve a multiethnic state. The

22 Serbs and Serbia could not prevent leaving Yugoslavia by the people and

23 republics that want to found independent and sovereign states."

24 But then this: "It is very likely those nations entered the joint

25 state of Yugoslavia with calculation finding it as a necessary evil on the

Page 35538

1 way to constitution of their own statehood. Thus, first Yugoslavia was

2 their salvation from the German outvoting and assimilation -" no surprise

3 to the Slovenes, Croats, and Muslims - "and thanks to the federal system

4 and criterion on which it was executed the second one was a radical step

5 forward on the way to the realisation of the final goal." So that the

6 second Yugoslavia, this is between the two wars of the last century, "...

7 was incubation for those people of secessionism which broke out when

8 relevant social and political consequences fell into place ..."

9 Is it really your view that going back to the Second World War,

10 there was there was a plan on the part of Slovenes and Croats, executed by

11 their successors, to achieve independence via the bridge of Yugoslavia?

12 Is that really your case -- not your case, your belief?

13 A. I don't know why you are bringing up the Second World War. I

14 don't see the Second World War mentioned here at all. You are placing my

15 statement into a wrong temporal context. I am here referring to the

16 creation of the common kingdom, the Kingdom of Serbs, Croats, and

17 Slovenes. There is no mention of the Second World War here.

18 Q. Very well. But is it your belief that there was a planned use of

19 Yugoslavia as a bridge by Slovenian and Croatian politicians eventually to

20 obtain their independence? Is that what you're saying? And also the

21 Muslims in Bosnia?

22 A. If you're asking me about my personal view, then, yes, this is my

23 belief to this day.

24 Q. Let's move on to page 6, and in your text, that will be picking up

25 at the halfway down page 377. And we can see your views, your

Page 35539

1 emerging views on the other nations and republics -- yes, republics.

2 "Such a federal system based on the quasi ethnic criterion was

3 the best leavening for secessionism. Convenient motive for it to break

4 out was found in the aspiration of Serbia to correct its humiliating

5 constitutional position in the federation established in the period from

6 1968 to 1974. Constitution from 1974 established Serbia as a republic of

7 the second class."

8 I then miss a couple of sentences without disservice, I hope.

9 "Two Serbian provinces which were the rival-countries to their state

10 Serbia had been supported by the republics which became the secessionist

11 ones later. What is more, they were encouraged in their emancipation and

12 secessionism by Serbia. According to them, it was a condition for ethnic

13 and political balance in the multiethnic Yugoslavia. When the political

14 forces grew up in Serbia so that they were able to establish the republic

15 statehood in the whole republic territory -" and then this - "as well as

16 in other republics on the federal Yugoslavia ..."

17 That phrase is a reference to the RSK and to the RS, isn't it?

18 You're linking the establishment of the RS and the RSK to the developments

19 in Serbia.

20 A. Quite wrong, Mr. Nice. It's obvious that you misunderstood the

21 matters. There is reference here to other republics that had the status

22 of federal units. No Republic of Serbian Krajina, whatsoever. Anyone who

23 knew the facts at the time could not have made such a conclusion.

24 Q. Very well. Let's read on. "... that project was explained to the

25 world as an aspiration for creation of Greater Serbia."

Page 35540

1 Well, forgive my getting it wrong and I'm only too happy to be

2 corrected, whether it's a matter of interpretation or otherwise, how can

3 something being explained to the world as an aspiration for a Greater

4 Serbia be other than the connection of Serbia with other territories and

5 particularly other Serb territories?

6 A. The non-aspiration -- it is not the aspiration for uniting the

7 Serb territories but, rather, the aspiration for establishing the single

8 state in Serbia in its entire territory in accordance with the 1974

9 constitution. There is no aspiration towards other republics'

10 territories, no. The reference here is the reference to the autonomous

11 provinces within the Republic of Serbia, which grew together with Serbia.

12 Q. Let's read on --

13 JUDGE BONOMY: I don't think I understand this answer, Mr. Nice.

14 I wonder if I can ask a question.

15 Going back to the sentence which begins, "When the political

16 forces grew up in Serbia so that they were able to establish the republic

17 statehood in the whole republic territory -" now, I understand that to be

18 a reference to the autonomous provinces, but it then goes on to say - "as

19 well as in other republics of the federal Yugoslavia." So reading short,

20 they were able to establish the republic statehood in other republics of

21 the federal Yugoslavia. Now, what do you mean by that?

22 THE WITNESS: [Interpretation] No. This must be a translation

23 error. This is a misunderstanding. Just like in other republics of the

24 federal Yugoslavia, the reference here is to the fact that all other

25 federal republics in Yugoslavia have prerogatives, state prerogatives in

Page 35541

1 their entire territory except for the Republic of Serbia, which had state

2 prerogatives only in the territory outside the provinces. So in that

3 sense, the desire here is to give an equal standing to Serbia, the same

4 status that other federal republics had. This must be some

5 miscommunication due to wrong translation.

6 JUDGE BONOMY: I take it from that answer, Professor, you accept

7 that if it's an accurate translation, then it describes the situation that

8 Mr. Nice was presenting to you.

9 THE INTERPRETER: Microphone, please.

10 THE WITNESS: [Interpretation] Mr. Nice is advancing an argument

11 that the Republic of Serbia wanted to establish statehood in its ethnic

12 territory. What I claim is that it wanted to establish statehood in its

13 republican territory. This is the essential difference between Mr. Nice's

14 view and my view. He's claiming one thing, and I'm claiming quite the

15 opposite.

16 MR. NICE:

17 Q. Well, we'll see how you deal with this same proposition with some

18 later passages in this article, Professor, but let's stick with where we

19 are.

20 "Serbia in the whole republic territory outside which almost the

21 third of Serbs was left in other republics is really big in regard to the

22 rest South-Slav republics. Precisely in that is the main failure and

23 inadequacy of the political project which is called Yugoslavia for the

24 Serbian people. Regardless of how much the Serbian people are divided

25 into more federal units, Serbia will always be big in such Yugoslavia and

Page 35542

1 will give complexes to others. First of all to those who do not have its

2 history and historical glory, the Croats and Slovenes who are like that in

3 front of the others and then to those who generated their quasi ethnic

4 autochthonism from the Serbian national feeling what is the case with

5 Macedonians and Muslims."

6 This shows your set of mind, Professor Markovic. The Slovenes and

7 the Croats lacked Serbs' history and historical glory, and the

8 quasi-ethnic autochthonism of Macedonians and Muslims was not worthy of

9 taking into account. You show in this passage, I suggest to you, an

10 absolute belief in the superiority of Serbs. Am I not right?

11 A. Not right at all. This is a well-known case, case well known in

12 the world of federalism, namely that one federal unit which stands out in

13 view of its size, number of residents, history, is a thorn in the side of

14 other federal units. That was the case with Prussia in the German

15 federation starting in 1871. That was the case with Russia within the

16 Soviet federation from 1922 or, rather, 1924 onwards.

17 Therefore, one federal unit which, in terms of its size,

18 historical past and so on is such that it differs from other federal units

19 causes distrust or inspires distrust, and in that sense we can view the

20 thesis of Mr. Lazar Kolisevski that the Yugoslav federation was structured

21 in such a way as to implement the principle "weak Serbia, strong

22 Yugoslavia." Therefore, only if Serbia is deprived of its advantages, and

23 that was the purpose of autonomous provinces, would it become equal with

24 other republics. It would no longer stand out. It would no longer be

25 larger than the rest of the federal republics.

Page 35543

1 This is the essence of my claim. It has no racist or chauvinist

2 views as you are attributing to me. Simply speaking, Serbia was much

3 larger than other units, and unlike other units, it had a very diverse and

4 rich historical past.

5 JUDGE ROBINSON: Yes, Mr. Milosevic.

6 THE ACCUSED: [Interpretation] I have a lot of understanding for

7 this type of debate and exchange of views between one university professor

8 and his counterpart, but I would like to draw your attention to the time.

9 If Mr. Nice is allowed to continue -- to continue until the end of this

10 session, he would have had six and a half sessions altogether, and please

11 bear in mind that I also need some time for redirect.

12 MR. NICE: Your Honours, I am quite --

13 JUDGE ROBINSON: Very much so, Mr. Nice.

14 MR. NICE: I am aware of that, but this is extremely important

15 evidence, and I was aware that the Bench itself was interested in

16 exploring the significance of the constitutional matters, and I'm going to

17 try and complete this article and to take you to an article of criticism

18 of the professor and then deal with Rambouillet, if I may. I realise it's

19 trespassing over the normal period of time, but in my respectful

20 submission it's probably justified.

21 JUDGE ROBINSON: Mr. Nice, you have taken a very long time in

22 cross-examination.

23 MR. NICE: Yes, I have, because the witness has -- the witness has

24 been giving answers of a very particular type, but, Your Honour, can we

25 see how we go with this article, because --

Page 35544

1 JUDGE ROBINSON: I'd like to get an estimate as to when you plan

2 to finish because the accused rightly says that he wants to re-examine.

3 MR. NICE: I shall finish this article in 10 or 15 minutes. There

4 is an article of criticism which I'd invite you again to consider reading

5 over the interval, which you may not be prepared to do so, and then I'll

6 simply use whatever time is available before re-examination time starts

7 for the witness to get away today, if that's acceptable to the Court.

8 JUDGE ROBINSON: Mr. Milosevic, how much time would you need for

9 re-examination?

10 THE ACCUSED: [Interpretation] At least one hour. And even then, I

11 will not have had too much time as compared to Mr. Nice. It would not

12 have been an unproportional division of time.

13 JUDGE ROBINSON: Bear in mind that in re-examination you can only

14 ask questions on issues that arise out of the cross-examination. It's not

15 an opportunity to examine the witness again.

16 THE ACCUSED: [Interpretation] That's precisely what I have in

17 mind.

18 JUDGE ROBINSON: We'll consult. We'll probably have to put a

19 limit on the cross-examination.

20 [Trial Chamber confers]

21 JUDGE ROBINSON: Mr. Nice, you have up until the first 15 minutes

22 of the next session, so the accused will have three-quarters of an hour

23 for re-examination.

24 MR. NICE: I will have to deal with things more swiftly on this

25 article.

Page 35545












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13 English transcripts.













Page 35546

1 JUDGE KWON: Microphone.

2 MR. NICE: As Your Honours please. I will have to invite you to

3 look at this article in more depth perhaps privately.

4 Q. Page 7, for the witness page 378. End of the first paragraph.

5 Professor Markovic, what you're saying, incidentally, I suggest to

6 you, is intentionally incorrect on many occasions. Look what you say

7 here. You say: "... the separation cannot realise the territories in

8 which the majority population which did not commit itself to leaving

9 Yugoslavia lives. In that case, the republic borders which are

10 conditional anyway will no longer be valid and they are valid only if

11 there is a federal system and territorial integrity of Yugoslavia. In

12 that case, exclusively the ethnic borders are relevant."

13 That's the clearest possible intention to redraw the borders. Am

14 I not right?

15 A. No, absolutely not. This is a unanimous view of the scholars.

16 The borders were drawn between federal units provisionally, and they

17 reflected the organisation of the Communist Party of Yugoslavia. They

18 were created up to the second session of AVNOJ in 1943. Marshal of

19 Yugoslavia, Josip Broz, used to say that the borders between republics

20 resemble fine lines in marble. They do not separate but to the -- to the

21 contrary, they unite. Therefore, these borders were drawn only within the

22 federal system in order to exercise the right of the peoples to

23 self-determination. And this is a unanimous view of all scholars within

24 Yugoslavia. There is not a single legal document establishing the borders

25 between units. And why is it so? Because these are the borders

Page 35547

1 reflecting the organisation of the Communist Party of Yugoslavia. Its

2 central committee, regional committees, and provincial committees. So

3 this is just a reflection of those borders, whereas the legal borders were

4 never established pursuant to a referendum or pursuant to a legal

5 document.

6 Q. I'll cut right to several points I would like to draw to the

7 Chamber's attention. We'll come to page 12 in the English, and for you,

8 Professor, it will be page 383. The large paragraph for you, Professor,

9 and towards the bottom of the page on the English, and you said this:

10 "To put it very briefly, in the present circumstances the joint state of

11 ... Montenegro is, like an extension of the SFRY, the preservation of the

12 parent core of the Serbian people and their statehood. It is not the

13 state of all Serbs. In that sense, in terms of that request, its better

14 achievement is a federal Yugoslavia of all constituent Yugoslav nations.

15 However, we saw why that idea is unattainable. Better to say, its

16 realisation is unacceptable for the Serbs. Likewise, there is no need to

17 insist on a sovereign state of Serbia, when Montenegro wishes to build a

18 federal state with Serbia."

19 Then this: "That federal state is a core around which the Serbian

20 countries would gather and it would serve as a base for by-stages

21 unification of the Serbian countries and the Serbian people. We are

22 primarily talking about the areas where the Serbian people is in majority

23 in Croatia and Bosnia, and partly in Macedonia too."

24 There's more of it on the following pages, but, Professor, what

25 you're setting out there is exactly what was this accused's intention,

Page 35548

1 that by stages Serb areas of Croatia and Bosnia should link with the

2 motherland. It couldn't be clearer.

3 A. Thank you for this compliment on clarity. However, it has nothing

4 whatsoever to do with any kind of joint action with Mr. Milosevic.

5 I have to reiterate again here. I am presenting my academic

6 opinion, my scientific opinion, no political position at all. This is an

7 academic article published in a scientific journal. We can have an

8 academic debate on it, but not a legal one.

9 Q. Well, just tell us what you meant --

10 A. This --

11 Q. Tell us what you meant --

12 A. -- is something that --

13 Q. Tell us what you meant if you didn't mean that you're setting out

14 what's to happen in the future, that Serb territories of Croatia and

15 Bosnia are to link up with Serbia. Tell us what you did mean.

16 A. This is a ideal request, aspiration that Germany, Italy before the

17 unification had at some point. It's not a political demand. It's a

18 programme, it's an idea, it's a vision of a man who is dealing with these

19 matters, how the Serbian issue, national issue, can be resolved.

20 Q. Now, when you assisted unasked to -- in the drafting of the 1992

21 Serbian constitution, who gave you ideas as to what sort of really

22 important constitutional elements should go in this constitution? Who

23 gave you the ideas or did they all come from your own brain?

24 A. I'm saying again I'm not the author of the entire constitution,

25 and I apologise to the people who contributed to the making of that

Page 35549

1 constitution in advance. You make me seem like I am claiming to be the

2 single and only author.

3 There was a platform for the reform of the political system, and

4 we referred to that document in order to identify ideas that influenced

5 the making of the 1990 constitution. That platform for the reform of the

6 political system is in evidence here, and it exposed, enumerated various

7 ideas on what the political order and system should be in the future.

8 The constitution of 1990 implemented them. The commission

9 appointed by the Presidency identified these views.

10 Q. Let's look at one part of the 1992 constitution, and one part

11 only, Article 2. Page 4. And the document was also exhibited as Exhibit

12 319, tab 2. We just need to look very briefly at Article 2. Article 2,

13 please. Thank you very much.

14 We see Article 2 says this, the second part: "The Federal

15 Republic of Yugoslavia may be joined by other member republics, in

16 accordance with the present constitution."

17 Which member republics were you referring to? Was that to

18 Republika Srpska and Republika Srpska Krajina? Was it?

19 A. No. No. We're talking about a type of open federation. There

20 are two types of federation in the world; closed federations with the

21 structure determined in advance, then unchangeable, and open federations

22 that are opened to new members subject to the decision of the Federal

23 Assembly. That is written in Article 78 of the constitution.

24 Q. The RS and the RSK were declared or declared themselves as

25 republics, hadn't they?

Page 35550

1 A. I see absolutely no connection with Article 2 of the constitution

2 of Yugoslavia. How can you know their intention in advance?

3 Q. Let's go now, then, please, to the article that I've asked you to

4 review several days ago, and --

5 MR. NICE: Sorry, may the article the witness has just gone

6 through be exhibited, please.


8 JUDGE ROBINSON: We will admit the last document.

9 THE REGISTRAR: That will be 824.

10 MR. NICE: Thank you very much.

11 Q. And we've already seen, I think, in the constitution of the RS and

12 the RSK their powers to unite elsewhere.

13 If we now look at an article written by Slobodan Samardzic.

14 MR. NICE: I don't know if the Chamber still has the copies that

15 were distributed or if they've handed them back.

16 Let's just look at -- does the witness have this? It's in

17 English. Comes from the European Studies Centre. He's read it, I hope.

18 Q. The first thing we can notice about this article, Professor, is

19 it's written by Serbs; correct?

20 A. That is the first thing you can notice. And second, I can tell

21 you it was written by non-lawyers. Mr. Samardzic never graduated from the

22 law school.

23 Q. And Mr. Samardzic is a much respected intellectual, is he not, or

24 won't you have that?

25 A. I do not deny that. I am just denying the assumption that

Page 35551

1 somebody without graduating from the law school can debate a legal issue.

2 Q. And if we go to page 2 of 11, halfway down the page we can see

3 that this is by no means written by people who are friends of the ICTY or

4 any Western conspiracy, because the author describes NATO's intervention

5 as the recent "brutal, illegal, and illegitimate military intervention of

6 the NATO forces against the country."

7 So you would accept that this is a Serb without any particular

8 leaning towards the forces and powers that established this Tribunal.

9 Would you accept that?

10 A. No. I only agree that this man is humane enough to tell the

11 truth.

12 Q. If we go to endnotes 18 and 19, we see that -- we see the material

13 upon which they -- author relies. We see references in 18 and 19 to

14 Slobodan Vucetic, who was, what, in the Constitutional Court? Correct?

15 A. No, he was not a member of the Constitutional Court of Yugoslavia

16 that I was a member of. He is currently a member of the Constitutional

17 Court of Serbia.

18 Q. And the man Cavoski, or Cavoski probably. Cavoski, I think -- no,

19 I was right the first time, Cavoski, just again so that we can have a

20 flavour of the sources relied on, Cavoski is the founder member of one of

21 the Save Radovan Karadzic organisations, isn't he?

22 A. Kosta Cavoski is one of the first fighters for political pluralism

23 in the Republic of Serbia, and he was among the founders and the inner

24 circle of leadership of the Democratic Party. This is what I would say of

25 him rather than what you said: He is one of the forefront fighters for

Page 35552

1 political democracy in Serbia.

2 Q. We see that you're referred to in footnote number 9. Elsewhere

3 but certainly in footnote number 9. If we get a shape of the document,

4 but if we come back to the top of the page, Usher, please, page 5 of 11 --

5 in fact the bottom of that page, this is the assertion made by this group

6 in respect of the constitutions and the operation of the constitutions

7 that you helped in constructing. Five lines up from the bottom of the

8 page: "What does make Serbia different from the other post-communist

9 countries of Central and Eastern Europe is that the President relies

10 heavily on one political party and on this basis the principle of party

11 leadership is directly transformed into the principle of state leadership.

12 This establishes a firm ruling amalgam between the Parliament, the

13 Government, and the head of state, who in reality most often act outside

14 the constitution. This amalgam of power existed before the constitution

15 was adopted in the form of an all-powerful party, and its leader, that

16 adopted constitution tailored to its own needs and simply moved itself

17 into the new institutions. It continues to function even now, when the

18 strong party chief is no longer President of Serbia, but President of

19 Yugoslavia."

20 Well, the time of which the author's writing includes the time

21 when you were both Assembly member and Deputy Prime Minister. Is his

22 analysis of the reality of the operation of your constitutions or the

23 constitutions in which you gave some assistance accurate? Professor?

24 JUDGE ROBINSON: Did you hear the question?

25 THE WITNESS: I'm without translation.

Page 35553

1 JUDGE ROBINSON: Would you repeat the question.

2 THE ACCUSED: [Interpretation] Mr. Robinson.

3 JUDGE ROBINSON: Yes, Mr. Milosevic.

4 THE ACCUSED: [Interpretation] Mr. Robinson, I heard the remark of

5 the interpreter in Serbian saying that the interpreter did not understand

6 the end of Mr. Nice's question. Since they didn't understand the end of

7 Mr. Nice's question, they were unable to interpret it. I heard the

8 interpreter saying that he or she did not understand the end of Mr. Nice's

9 question.

10 JUDGE ROBINSON: Mr. Nice, please repeat the question.

11 MR. NICE: Yes.

12 Q. At the time that this article was written or over the time -- I'll

13 go back.

14 The time to which this article refers was the time when you were

15 an Assembly member and later a Deputy Prime Minister, and I'm asking you

16 is his analysis of the reality of the operation of your constitutions

17 correct?

18 A. First of all, I don't have the text in my own language. I have it

19 in English. But all right, I'm not going to make an issue out of this.

20 So I'm looking at the English version.

21 As far as I'm able to understand and as far as I understand your

22 question, he objects here to the fact that the head of state is at the

23 same time the party chief. But the same thing happens today. Borisav

24 Tadic is the leader of the Democratic Party, and at the same time the head

25 of state. If that is not what you meant by your question, you have to

Page 35554

1 edify me.

2 Q. A few more questions on this article because of time. Page 7 of

3 11, if you please, in the middle of the page. A particular challenge to

4 the interaction of your two principal drafting exercises in the 1990

5 constitution of Serbia and the 1992. Second sentence: "By failing to

6 bring its constitution in line -- into line with the Federal Constitution,

7 Serbia has retained powers, which constitutionally belong to the

8 federation. This has forced Montenegro to do the same and the federal

9 organs therefore exercises its constitutional powers to only a limited

10 extent. From 1992 to 1997 the president of Serbia in fact conducted

11 Yugoslavia's foreign policy, which should be conducted by the federal

12 government. The same person continues to conduct foreign policy following

13 his election as president of the federal state, although this is equally

14 unconstitutional."

15 Do you accept he's right about this being unconstitutional for the

16 President of Serbia to conduct the federal foreign policy?

17 A. According to the constitution of the Federal Republic of

18 Yugoslavia of 1992, the -- the internal and foreign policies are charted

19 and implemented by the government. This statement here is not

20 substantiated by any document, and it is completely wrong to say that

21 despite the existence of the federal government politicians from other

22 countries came to speak to Mr. Milosevic, not the federal Prime Minister.

23 But they knew their reasons for doing that, for not going to see the

24 federal Prime Minister rather than Mr. Milosevic.

25 Q. Did the accused run the foreign policy for the Federal Republic of

Page 35555

1 Yugoslavia or not? Yes or no.

2 A. No.

3 Q. Who did?

4 A. The federal government. The federal government ran the foreign

5 policy, although it is the president of the Republic of Serbia who had the

6 most contacts with the representatives of the international community, but

7 they insisted on speaking to him.

8 JUDGE ROBINSON: Mr. Nice, we are four or five minutes beyond the

9 break, and in view of the fact that we have to stop at a quarter to, those

10 four or five minutes will have to be taken from the 15 minutes allocated

11 to you.

12 MR. NICE: Certainly.

13 JUDGE ROBINSON: Otherwise we would eat into the time allocated to

14 the accused.

15 --- Recess taken at 12.19 p.m.

16 --- On resuming at 12.43 p.m.

17 JUDGE ROBINSON: Yes, Mr. Nice.

18 MR. NICE:

19 Q. My last question about the article we were looking at is that it

20 asserts the constitution was a smokescreen for unlimited power, and in a

21 footnote says that in 1987, the federal parliament sat for less than ten

22 effective days.

23 Is he right that you only sat for ten effective days? You'll find

24 it in endnote 4, but you can remember. Did you only sit for ten effective

25 days? We're very pressed for time.

Page 35556












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Page 35557

1 A. I don't know, because I was not an MP in the federal parliament at

2 the time. I told you I was an MP there until 1996.

3 Q. Yes. And as Deputy Prime Minister, you have no idea how often the

4 Assembly met, do you? Just yes or no.

5 A. You're not asking me about the republican Assembly. You're asking

6 me about the federal Assembly. I was Deputy Prime Minister in the

7 republican government, not the federal government. I didn't count the

8 days when the federal Assembly was in session.

9 Q. Help us with this: We're going to hear in due course, as already

10 in evidence, of the millions of dollars or financial equivalent that went

11 to support the RS and the RSK military forces. In either of your

12 capacities, were you ever informed about that or was it kept from you?

13 Were you informed? Yes or no.

14 A. I didn't know about it, and I don't know who would have the

15 obligation to provide me with such information.

16 Q. Well, as a citizen, are you not entitled to know where your taxes

17 are going, broadly?

18 A. Of course we have such rights as citizens. However, there is a

19 distribution of work in the government.

20 Q. As a parliamentarian are you entitled to know where the money

21 goes?

22 A. Yes, we are.

23 Q. [Previous translation continues] ...

24 A. And that is expressed on two occasions.

25 Q. As a Deputy Prime Minister, are you entitled to know where the

Page 35558

1 money goes?

2 A. I was Deputy Prime Minister in the republican government, whereas

3 the army is financed from the federal budget.

4 Q. And you're really telling us, so that we can have this on our

5 record, you were never told by anyone of the 30th and 40th personnel

6 centres until I mentioned it to you today?

7 A. I claim that under oath, that I heard this for the first time this

8 morning from you.

9 Q. In addition to the criticisms we've seen in the article, you've

10 also been heavily and publicly criticised by a lawyer from your own

11 university, different department, Stefan Lilic. He's in an article on the

12 constitution headed The Unbearable Lightness of Unconstitutional Being,

13 he's also heavily criticised you publicly for the quality of your latest

14 constitutional book which your students were obliged to work from and

15 which took no account of any of the recent developments in the former

16 Yugoslavia. It's correct, isn't it, that you've been subject to heavy

17 public criticism from that person?

18 A. He criticised me because I did not update the textbook with

19 changes in the constitution, and I was waiting for the amendments in the

20 constitution of Serbia. I updated the latest edition. The new

21 constitution of Serbia was pending, and I waited for that to update the

22 textbook. However, since the amendments had not been passed until then, I

23 published the ninth latest edition of the textbook, taking into account

24 all the changes in the legislation of the constitution.

25 Q. [Previous translation continues] ... criticisms and their replies

Page 35559

1 by this witness to them are available if they would help the Chamber in

2 assessing them.

3 Tab 47 of the witness's exhibits is described as the Contact Group

4 Non-negotiable Principles of 22nd of January of 1999, and it ends with,

5 "Kosovo consent required inter alia for changes to borders and

6 declaration of martial law."

7 For some reason the last part wasn't included. It's now on

8 display and we see that in fact the non-negotiable principles, as

9 described, included "Judicial protection for human rights," and then "Role

10 of OSCE," and under, "Implementation" "Dispute resolution mechanism,

11 establishment of a joint commission, participation of OSCE and other

12 international bodies as necessary."

13 First of all, can you explain why the exhibit you produced was

14 incomplete?

15 A. Because there was talk only about principles not the entire

16 document. We were talking only about the principles, the general

17 elements, and you are talking about the document as a whole, which was not

18 contested. We believe that the principles endorsed by the Contact Group

19 under the title "General Elements," we thought that on the basis of these

20 principles an agreement should be made.

21 Q. Did you -- no. The question is why the Judges were presented with

22 a document that was incomplete. In stopping at "Kosovo consent required

23 inter alia for changes to borders and declaration of martial law," in the

24 copy provided to them and to me, did you intentionally cut off the last

25 bit about human rights and implementation? Yes or no.

Page 35560

1 A. Quite intentionally because that was not the subject of the

2 discussion. The subject was the principles for the Contact Group, what

3 you see here, general elements, not the entire document. That is what was

4 being negotiated.

5 Q. The full document, which should have been available to this Court,

6 makes it quite clear from the beginning, as you all understood, that there

7 was going to be an international presence and that meant an international

8 military presence and so all this arguing about the military element being

9 the cause of the problem is false. You always knew there was going to be

10 an international military presence before this accused signed up to engage

11 in the agreement at all, didn't you?

12 A. You are absolutely wrong. I was the entire time in the castle in

13 Rambouillet, and I know for a fact as well as all the other participants

14 of that gathering there was not a word of mention of military presence.

15 Only on the last day of the negotiations was it notified to the parties.

16 Q. Please remind yourself of this document, which is -- our Exhibit

17 135, I think. If it can go on the overhead projector. This is the letter

18 you wrote on the 23rd of February. Let's read it. It went to Ambassadors

19 Hill, Petritsch and Mayorski. "The delegation of the government of

20 Republic of Serbia wishes to emphasise ..."

21 Next paragraph: "We would particularly like to emphasise the same

22 as the Contract Group, no independence of Kosovo and Metohija."

23 Next paragraph: "All elements of self-government at the time of

24 defining of the agreement have to be known and clearly defined."

25 Next paragraph: "The FRY agree to discuss the scope and character

Page 35561

1 of international presence in Kosmet to implement the agreement to be

2 accepted in Rambouillet. The FR of Yugoslavia and the Republic of Serbia

3 are fully ready to continue the work in line with the positive spirit of

4 this meeting. We therefore consider that it would be useful to set a

5 reasonable deadline..." et cetera.

6 Until you were supplanted in the negotiations by Milutinovic, you,

7 A, knew that there was going to be an international military presence, and

8 B, until you were supplanted you were happy to go on negotiating, weren't

9 you? And this letter makes it absolutely clear.

10 A. Well, it makes clear absolutely the opposite. What is being

11 referred to is the presence of the international forces, not NATO forces.

12 And only in Kosovo, not the entire territory of Serbia. Linguistically

13 speaking, what you are reading does not show what you want to show. It

14 speaks of the presence of international forces, not international military

15 forces, not international troops. International forces concerned a

16 civilian mission and only to Kosmet, not the entire territory of Serbia.

17 JUDGE ROBINSON: Mr. Nice -- Mr. Milosevic.

18 THE ACCUSED: [Interpretation] May I also receive a copy of this

19 document that is being discussed?


21 JUDGE KWON: And when did you write this letter? Was it after you

22 were given the deadline, noon of 23rd of February?

23 THE WITNESS: [Interpretation] Yes. That was precisely the time of

24 it, towards the end of the conference, three hours after -- 3.00 in the

25 afternoon on the 23rd of February, in Rambouillet.

Page 35562

1 JUDGE KWON: So what you were asking at that time was an extension

2 of that deadline. Am I right?

3 THE WITNESS: [Interpretation] No. The deadline was extended

4 without a request from us. It was extended twice before that, on the 14th

5 of February and the 20th of February. But it was said that the

6 negotiations on the agreement were to be continued in Paris at a time that

7 we would be informed of subsequently, because we expressed the readiness

8 to continue the talks in Paris and to attend those talks.

9 JUDGE KWON: Mr. Nice.

10 MR. NICE:

11 Q. You see, your last answer before the question by His Honour is

12 simply unrealistic and takes no account of reality. There'd already been

13 the OSCE mission. There had been the KDOM mission. These didn't work.

14 It was known -- and there had been an escalation of violence. It was

15 known that there was going to be a military component and this agreement

16 or this plan for agreement was exactly based on the Dayton model. You all

17 knew there was going to be a military presence and you were going along

18 with it until this accused stopped you. And he stopped you between

19 Rambouillet and Paris, didn't he?

20 A. You're just not right on that score and that that is so I'm going

21 to show you the conclusions enacted by the national assembly when it sent

22 its delegation to Rambouillet to negotiate. May I be allowed to show

23 these conclusions on the overhead projector? Just one sentence, in fact

24 of that document.

25 That sentence, it is the conclusion of the national assembly, and

Page 35563

1 the mandate finds the Rambouillet delegation and it states: "We do not

2 accept the presence or agree to the presence of foreign troops on our

3 territory under any pretext what -- of the implementation of the agreement

4 reached."

5 That is the sentence. It is one of the conclusions dated the 4th

6 of February before we actually went to Rambouillet. So what Mr. Nice just

7 said, to put it mildly, just -- is just not correct.


9 Q. Your description of the whole process of the 1998 negotiations and

10 of the Rambouillet process is completely incorrect. There was goodwill on

11 the side of the internationals and before that there was a willingness to

12 consult on the part of the Kosovo Albanians. Did you record the evidence

13 of Zoran Lilic when he was before this Tribunal on this topic?

14 A. No, I did not. I cannot follow all the proceedings at this

15 Tribunal because I have to teach at the university.

16 Q. Did you follow the evidence of Ambassador Petritsch?

17 A. No, I did not, although I do know Ambassador Petritsch. I didn't

18 hear what he said in testimony before this Tribunal. As I say, these

19 proceedings take place in the morning when I have business to attend to at

20 the university.

21 Q. So far as the accused is concerned, we've heard evidence from

22 Borisav Jovic of his complete domination of and power over the party. Do

23 you agree with that characterisation of him in general terms? You were a

24 member of the party throughout and a founder member.

25 A. Well, it's like this: Every party leader dominates his party. So

Page 35564

1 he is a leader. He is the first man of the party, the leader of the

2 party. I don't know of any party where the party president is not a

3 leader.

4 Q. [Previous translation continues]... you went back to Belgrade on

5 the 23rd of February and that's when -- to see the accused, no doubt, and

6 that's when things all changed. Is he right about that?

7 A. He is right inasmuch as one fact and that is that on the 23rd we

8 returned to Belgrade because it was when the conference in Rambouillet

9 ended. As to the second point, no, he's not right there.

10 Q. Just two other questions. Is it right that when in 1996 local

11 elections were apparently lost as a result of fraud by the SPS, the

12 accused turned to you for assistance, and eventually of course, you all

13 accepted the reality of electoral fraud in what's called the lex specialis

14 that was drafted that gave the vote or gave the decision to the opposition

15 parties? Is that right?

16 A. That law was adopted by the national Assembly at the time, and

17 there are only two articles and it was positively assessed by the group

18 led by Mr. Gonzales and generally by the international community as a

19 whole. They gave a very good assessment of the law.

20 Q. And finally, because I see the time, going right back to the

21 beginning of your evidence, 1989, the amendments, so far as those

22 amendments concerned Vojvodina - of course Kosovo had fallen into an

23 entirely different organisation and regime - as far as those amendments

24 for Vojvodina, were they reversed by an omnibus law for Vojvodina in the

25 last few years?

Page 35565

1 A. No. That law merely defined more precisely the provisions of

2 Article 109 of the constitution and it was called the omnibus law in

3 popular terms. It specified the regions in which the autonomous province,

4 according to Article 109 of the constitution, has normative powers, and

5 then it stated which those questions were that the autonomous province can

6 regulate on the basis of its own laws or, rather, I apologise, by its

7 normative acts. It did not step outside the frameworks of the

8 constitutional provisions and solutions. It merely defined more precisely

9 the provisions of Article 109 of the constitution.

10 JUDGE ROBINSON: Thank you, Mr. Nice. Mr. Milosevic.

11 MR. NICE: The question of exhibits can be dealt with either today

12 or tomorrow.


14 THE ACCUSED: [Interpretation] Thank you, Mr. Robinson. I shall

15 try to be brief and use my time as rationally as possible, although I

16 highly doubt that I'll be able to get through everything I want to get

17 through, but unfortunately it is the physical restrictions of time here.

18 Re-examined by Mr. Milosevic:

19 Q. [Interpretation] Professor Markovic, at the beginning of the

20 cross-examination, Mr. Nice asked you whether you had taken part in the

21 working group which, according to my instructions and Tudjman's

22 instructions, was supposed to divide up Bosnia. And then he provided us

23 with an exhibit, an extract from a book, in fact, by Professor Avramov, in

24 which she states the following, and my question to you is this, or,

25 rather, does that reflect what actually happened, what was going on at the

Page 35566

1 time? She says this, and it is on page 140. There's a number, 140, in

2 the documents I received from Mr. Nice. I don't have the pagination, but

3 111 is the final -- the final digits of the ERN number. It says: "The

4 presidents of the two republics, Tudjman and Milosevic, undertook another

5 step but this time not an official step. They established two teams with

6 the aim of comprehensively reviewing the political, economic,

7 constitutional, legal, and international legal consequences of a possible

8 disintegration of Yugoslavia and through that prism to seek a solution to

9 it. Most probably the decision about this was taken at the meeting

10 between the two leaders in Karadjordjevo in March 1991."

11 And then she goes on to state the following: "Unfortunately, this

12 attempt was not successful. The only point on which the two parties

13 agreed was that the main determinant for the talks must be 70 years of

14 life in common, life together, and stands on all other issues were very

15 far divergent."

16 Therefore, Professor Markovic, when you talked to your colleagues,

17 did anybody ever mention any division of Bosnia-Herzegovina at all?

18 A. I state on oath, having taken the solemn declaration at the

19 beginning of this testimony, that there was not one single word about

20 Bosnia-Herzegovina's division. Not one single word.

21 Q. All right, let me be even more specific. We're not now dealing

22 with your talks with your Croatian colleagues but your own internal group

23 consultations and agreements, the team mentioned here in fact, the team

24 that is said to have taken part on the Serb side. Did you amongst

25 yourselves ever mention any idea about Bosnia's division in any way?

Page 35567












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Page 35568

1 A. How would we have the authority and power to do so?

2 Q. I'm not asking you about your power mandate. I'm asking you

3 whether you ever brought an idea like that up. Did you discuss it amongst

4 yourselves ever?

5 A. Either not amongst ourselves. We never discussed this. What we

6 did discuss was what Professor Avramov stresses in her book. That's what

7 we discussed.

8 Q. So what Smilja Avramov says here, "comprehensive review of the

9 political, economic, constitutional, legal and international legal

10 aspects," is that what you mean?

11 A. Absolutely correct.

12 Q. So that was the subject of your talks, was it?

13 A. With my partner, and that was Professor Smiljko Sokol, who is

14 professor of constitutional law at the faculty of law in Zagreb, I

15 discussed with him constitutional and legal problems, and international

16 legal problems, as Professor Avramov says, economics ones. Academician

17 Kosta Mihailovic, we all discussed that.

18 Q. So what you're testifying about coincides fully with what

19 Professor Avramov writes in her book.

20 Now, look at the next page, please, the central paragraph towards

21 the end. It is four lines from the bottom. It says: "The fact remains

22 --" The explanation is given, et cetera, of how the talks were

23 conducted. "The fact remains," she says, "that the discussion was waged

24 behind closed doors, far from the eyes of the public, but there were never

25 any secret agreements nor was there anything which should be hidden from

Page 35569

1 public view. It was just one episode in the attempt to find a solution

2 which would not even be worth mentioning had stories not been brought up

3 in the press which have nothing to do with reality."

4 Is that the proper assessment, the one made by Professor Avramov?

5 Is that right?

6 A. That corresponds to the truth in all its aspects based on the

7 quotations you have just given us, and that working group had, I think,

8 only two successful meetings and one meeting planned but never -- one that

9 never took place.

10 Q. Very well. Now we have to go as fast as possible, Professor. Do

11 you happen to know that for an entire year, one year after that famous

12 meeting in Karadjordjevo and independent of that meeting, of course, but

13 I'm talking chronologically here, that for a whole year after that

14 meeting, alleged agreement on Bosnia's division, the Serb side in

15 Bosnia-Herzegovina accepted Cutileiro's plan which enabled a peaceful

16 settlement to the problem and an independent Bosnia-Herzegovina?

17 A. Yes, I do know about that.

18 Q. Now, the fact that it was one year after Karadjordjevo that the

19 Serb side came out in favour of Cutileiro's plans, doesn't that deny and

20 negate the idea of me and Tudjman having an agreement on Bosnia's

21 division?

22 A. Well, those two facts are completely at odds with each other.

23 Cutileiro's plan for Bosnia implies the whole.

24 Q. Thank you, Professor Markovic, we all know about the Cutileiro

25 plan, but tell me this now, please: Since you were not able to remember

Page 35570

1 the Belgrade initiative awhile ago, Professor Rakic, during the break --

2 as this was brought up by Mr. Nice in the first place, Professor Rakic has

3 given me some documents here, the text, in fact, as far as I remember, in

4 Belgrade the 16th of September, 1991 is the date and venue, and I'm going

5 to hand it over to you. And would the usher be so kind as to place

6 this --

7 MR. NICE: If he wasn't present at the negotiations, if he has no

8 memory of it, what has the document got to do with it? It's not his

9 document. When the witness asserted lack of recollection of these things,

10 this one in particular, I moved on. I'm not sure that this is appropriate

11 re-examination of any kind.

12 JUDGE ROBINSON: He may be able to, but let me hear the question

13 that you're putting.

14 THE ACCUSED: [Interpretation] Mr. Robinson, I had in mind the fact

15 that Professor Markovic, when this was mentioned, said, yes, I know about

16 it but I haven't got the documents for me to be able to answer, so I'm

17 providing him with the document and I wish to go through the document very

18 briefly. Mr. Nice explained, et cetera --

19 MR. MILOSEVIC: [Interpretation]

20 Q. Have you all got this text of the Belgrade initiative, Professor?

21 A. Yes, I have. I've been provided with it.

22 Q. Now, from this text can we see that the representatives of the

23 republics -- of the Republic of Bosnia-Herzegovina, and we take it in

24 alphabetical order, Montenegro and Serbia, that they had jointly asserted

25 basic grounds for relationships in Yugoslavia? Can we see that and that

Page 35571

1 is the title of the document, in fact?

2 A. Yes, and it emanates from the preamble itself.

3 Q. Very well. Now, from this document is it quite clear that the

4 representatives of the three republics are speaking about the basis for

5 structuring relations in Yugoslavia as it is made up six republics but

6 that the initiatives were made by the three republics in question? Is

7 that quite obvious?

8 A. Yes, that would emerge from point 1 of I.

9 Q. Very well, Professor Markovic. This initiative provides the

10 groundwork for relations in Yugoslavia to be regulated. I point 1 it says

11 Yugoslavia is the joint state of equal republics, nations, and citizens.

12 Was that the approach that was the principled approach, the

13 constitutional, legal position taken by the Republic of Serbia herself?

14 That is to say Yugoslavia joint state of equal republics and citizens,

15 nations and citizens?

16 A. Yes, that was Serbia's approach, that Yugoslavia as a federal

17 state in which all the Serbs were rallied together and gathered together

18 should be preserved as a state.

19 Q. Professor Markovic, in point 5 -- I don't have time to go through

20 the entire document, but let's take point 5 of the first chapter. It says

21 the republics and nations of Yugoslavia can step down from Yugoslavia in

22 the way and methodology established by the constitution and laws of

23 Yugoslavia but they cannot violate the interests of other nations and

24 republics by doing so.

25 Is that the position taken generally in the political life of the

Page 35572

1 country with respect to the principled approach that Serbia adopted?

2 A. That was the position of the Constitutional Court of Yugoslavia as

3 well as we have seen. So they were able to step down or secede from

4 Yugoslavia but only according to the methodology prescribed by the

5 constitution without violating the rights and interests of the other

6 nations and republics.

7 Q. And take a look at point 7 now, further down, which begins as

8 follows: "Yugoslavia is founded upon the equality of the Yugoslav nations

9 and republics." And then it goes on to say: "The national minorities are

10 recognised all national and human rights established by corresponding

11 international covenants."

12 Was that the principled stand that Serbia had which it advocated

13 both in the amendments of the constitution and in enacting the 1992

14 constitution itself later on when the Federal Republic of Yugoslavia was

15 established as being a continuity with the former Socialist Federal

16 Republic of Yugoslavia?

17 A. Yes, that was Serbia's approach, and these two points or, rather,

18 the two sentences that you read out were taken over directly from the

19 decisions of the second session of the AVNOJ, the AVNOJ. Both those

20 things exist in the decisions made by the second session of AVNOJ.

21 Q. Now take a look at point 9. It says: "A market economy, equality

22 in property, the freedom of people and property, capital and knowledge,

23 entrepreneurial undertaking shall be the groundworks for the economic life

24 of Yugoslavia ..." et cetera, et cetera. Was that the stand of principle

25 taken by the leadership of Serbia as well and the Republic of Serbia in

Page 35573

1 attempting to solve the Yugoslav crisis in its approach to the crisis?

2 A. The Republic of Serbia did have this position not only to preserve

3 Yugoslavia but to transform the constitutional system of Yugoslavia in

4 keeping with a market economy and its principles and the principle of

5 political pluralism and parliamentrism, the parliamentary system.

6 Q. Since you've said that, please bear in mind point 10 of these

7 basic principles: "In Yugoslavia, state authorities organised on the

8 division of power in the form of multi-party parliamentary republics based

9 on the rule of law and social justice." Was that the approach that Serbia

10 took, the position Serbia took?

11 A. Those were the ideas and ideals that the Republic of Serbia based

12 the transformation of the Yugoslav state on, and they gained expression in

13 the 1992 constitution because all this is the principle set out in the

14 basic provisions of the 1992 constitution.

15 Q. Very well. Now please take a look is what is stated about the

16 relations within Yugoslavia in the second chapter of this document. Item

17 1: "Republics and nations of Yugoslavia base their relations on common

18 interests and respect and protection of their interests on mutual respect

19 and cooperation."

20 Is that in principle the position taken by Yugoslavia -- by Serbia

21 in the Yugoslav crisis?

22 A. Yes. All aimed at preserving Yugoslavia as a federal state.

23 MR. NICE: These are effectively all leading questions. What's

24 being done is the witness is being reminded of a text without my having

25 cross-examined on the text, and if I had been allowed the opportunity to

Page 35574

1 cross-examine on this text, believe me I would have had things to say.

2 And about its -- the way it fits with other events. But if we look at the

3 questions, all that's being done is it's being used as a vehicle for a

4 leading question of a kind that the witness picks up.

5 JUDGE ROBINSON: Mr. Milosevic, I don't know that this is taking

6 us very far. You should move on to something else. I think you have been

7 through this document sufficiently.

8 MR. MILOSEVIC: [Interpretation]

9 Q. Let us just clarify another matter, since we said that there was

10 division of power, competencies among Yugoslav organs. Item 3 speaks

11 about the Assembly of Yugoslavia --

12 JUDGE ROBINSON: Mr. Milosevic, we have dealt with this document

13 sufficiently. Let's move on to another topic.

14 THE ACCUSED: [Interpretation] There is a peculiarity that I would

15 like to quote to Professor Markovic from this document. I would like to

16 remind him of this. On page 5, on page 5 of this document, when speaking

17 of the president of the republic --

18 JUDGE ROBINSON: Bring that to his attention and then move on to

19 another topic.

20 THE ACCUSED: [Interpretation] Well, I would just like to draw his

21 attention to this.

22 MR. MILOSEVIC: [Interpretation]

23 Q. It is stated in this initiative, in this document, that the

24 president of the republic is elected by the Assembly of Yugoslavia for

25 each term of office from another republic at the proposal of that republic

Page 35575

1 in an A, B, C chronology of the names of the republics. So each time a

2 president is elected from another republic following the A, B, C order.

3 So the first president to be elected in this manner would be a president

4 from Bosnia and Herzegovina.

5 Are you familiar with the idea and with the fact that at the time

6 it was proposed that Alija Izetbegovic should be the president of that

7 Yugoslavia as envisaged by this initiative?

8 A. Yes. This emanates from this provision. That same principle was

9 applied to the chairmanship of the Presidency of SFRY in the 1974

10 constitution.

11 Q. Now, a general question which I would like to link to Mr. Nice's

12 statement, claim on the division of Bosnia from Karadjordjevo. This

13 Belgrade initiative which came six months after the alleged division of

14 Bosnia, because that was in March and this is in September, does it deny

15 any thought of division of Bosnia because it supports the continuity of

16 Yugoslavia? So is that clear, Professor Markovic, based on your knowledge

17 of constitutional legal principles and the contents of this initiative as

18 I've put it to you?

19 A. Well, one doesn't need to be a constitutional law expert to answer

20 this. One just needs to link certain matters. This document speaks of a

21 united, single Bosnia-Herzegovina which together with the republics of

22 Serbia and Montenegro creates a federal state. Had Bosnia been divided,

23 it would not have figured here.

24 Q. Thank you, Professor Markovic. Now I will turn very briefly to a

25 document Mr. Nice dwelt on for quite awhile. This is the last document --

Page 35576

1 maybe not the last document he gave to us, but at any rate, this is a

2 document that he quoted quite extensively. I don't have that much time.

3 This is the journal entitled Pravni Zivot, Legal Life.

4 JUDGE ROBINSON: We'll exhibit this document, Mr. Milosevic.

5 THE ACCUSED: [Interpretation] You mean this Belgrade initiative

6 document? Well, certainly, certainly, because Mr. Nice referred to it.

7 Therefore, Legal Life.

8 [Trial Chamber confers]

9 JUDGE ROBINSON: Well, I'm reminded that it's not translated, so

10 in accordance with the practice, we'll mark it for identification pending

11 translation.


13 MR. MILOSEVIC: [Interpretation]

14 Q. Professor Markovic, based on this article of yours published in

15 the Legal Life journal, Mr. Nice quoted quite a lot of sentences from that

16 article. I will now quote the bits that he did not quote, because I have

17 an impression that he quoted that only in order to save himself the

18 trouble of putting quite a lot of questions.

19 Now, please take a look at page 366. And for you gentlemen, it

20 should be in chapter 3 in English of this article. Where you go on to

21 state the following, Professor Markovic. After analysing various

22 elections, options, and so on, in the very beginning of chapter 3 you

23 state: "Yugoslavia, as a common state of South-Slav peoples, is the most

24 logical, the most reasonable, and the best solution for a national

25 question of all South-Slav peoples, especially those who are most

Page 35577

1 intermixed such as is the case with Serbs, Muslims, and Croats."

2 Then I continue without skipping anything. The following sentence

3 is: "It is well said that Yugoslavia is the largest Serbia but also

4 Croatia. Bearing that in mind, the Serbian people committed themselves to

5 Yugoslavia as their state twice in this century."

6 And then the final sentence in this paragraph goes on to say:

7 "Because of that, the Serbian people preferred Yugoslavia to the

8 Independent State Of Serbia, regardless of the impression based on the

9 names of the states that only the independent Serbia was a realisation of

10 the ethnic statehood of the Serbs."

11 So you explain why is it that the Serbs preferred Yugoslavia to

12 Serbia. And then you go on to say: "The fact that Yugoslavia is not a

13 national state of the Serbian people is being neutralised for every

14 South-Slav nation including the Serbian people in the way that according

15 to the ethnic criteria in Yugoslavia is organised as a federal state in

16 which the principle of equality of the peoples and their federal units is

17 implemented. In the higher stage of overcoming the ethnic sensibility,

18 the ethnic identity can be preserved along with the constituting of

19 Yugoslavia as the state of equal citizens and constitutional proclamation

20 and guarantees of the voluminous catalogue of the collective ethnic Croats

21 as well as individuals ones as the members of the nation."

22 And then in the next paragraph you say: "In abstract view that is

23 the kind of state that Yugoslavia is. That is the reason why the official

24 policy in the Republic of Serbia defends preservation of Yugoslavia with

25 such persistence and tries in spite of all secessions that took place in

Page 35578












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13 English transcripts.













Page 35579

1 Yugoslavia to preserve it in the uninterrupted existence."

2 And then you go on to say: "The insistence of Serbia on the

3 uninterrupted existence of Yugoslavia as the state regardless of secession

4 of several federal units made possible that nowadays international and the

5 states subject status of Yugoslavia continued and Yugoslavia continued its

6 existence as a state without any interruption."

7 Therefore, I'd like to ask you this: In our political life, was

8 there a clear distinction between the support for the continuity of

9 Yugoslavia as an official political position that was continuously

10 supported, was that distinguished from any idea of creating a Greater

11 Serbia which would be to the detriment of other nations?

12 A. Absolutely. When giving my answers to Mr. Nice, this is precisely

13 the point that I was making, and that point is elaborated here quite in

14 detail. There were absolutely no efforts to create Greater Serbia. There

15 were efforts to preserve Yugoslavia, which is the optimum solution for

16 Serbs, because Yugoslavia is equal to the Greater Serbia, and the same

17 thing applies to Croatia. That was my explanation of the events taking

18 place in the country at the time.

19 I hope that Their Honours will read the entire article, not just

20 excerpts of it, because the entire article supports quite explicitly

21 everything that I've stated so far.

22 Q. Professor, Mr. Nice quoted another of your articles published in

23 the Legal Life journal. However, that's another issue of that journal,

24 the one that he quoted from yesterday [as interpreted]. And first he

25 referred to it as a preamble of a constitution. So please tell me very

Page 35580

1 briefly, this article of yours that Mr. Nice qualified as the

2 constitutional preamble, can it be found in the text of the constitution

3 published in the Official Gazette as an official text of the constitution?


5 A. No, it cannot be found there, because that is the article that I

6 authored, and I have it in English. I can show it to you. We have a

7 foreword here first, a foreword that I authored, so this is my work

8 project, and then is the text of the constitution from the first to the

9 136th article.

10 Q. Well, let us clarify the nature of this article. So this is a

11 piece that you wrote, you as an author, and it is considered as a foreword

12 or it can also be published as an article that goes after the

13 constitution. So it has nothing to do with the constitution?

14 A. Yes, that's right. This has nothing to do with the constitution.

15 Q. It was simply published as a preface to the constitution; is that

16 right?

17 A. Absolutely.

18 Q. Well, let me just draw your attention to one excerpt. Time flies,

19 so I will have no time for any more than that.

20 On page 2 of is this article in Legal Life, this is page 1180, you

21 start by saying, "What do people want in Serbia in relation to the

22 upcoming constitutional reform?" And then you say that they want a very

23 clear and specific matter. I'm quoting you: "Namely, that in the

24 territory of Serbia there be only one and not, as until now, three rival

25 states." And then few sentences down it is stated: "So that the people,

Page 35581

1 wherever they are in the territory, have equal protection of the law, they

2 be protected by the state whose citizens they are, which is the duty of

3 the state." And then it says, "Together with other Yugoslav peoples and

4 their republics to be equal within the federation of states of Yugoslav

5 people."

6 So, Professor Markovic --

7 JUDGE KWON: Page 3 of Exhibit 816, in the middle of the page.

8 MR. MILOSEVIC: [Interpretation]

9 Q. Professor Markovic, so you are putting an essential question here.

10 JUDGE KWON: It's Exhibit 816. It's a different one.

11 MR. MILOSEVIC: [Interpretation]

12 Q. And then you give a very clear sentence here as to what is it that

13 they want. They want to be equal together with other Yugoslav peoples and

14 their republics within the federation of states of Yugoslav nations.

15 Is that the briefest possible answer to the requests put both by

16 the politicians and the citizens of Serbia?

17 A. Yes. That was precisely the request out of which the

18 constitutional amendments arose. Serbia wanted to have equal rights in

19 its own territory, the rights that would be equal to the rights that other

20 republics enjoyed and wanted to be represented equally within the

21 federation. The system that existed until then was asymmetrical. There

22 were people in Serbia or in -- people -- residents of the autonomous

23 provinces had two chances, two chances to constitute, to establish organs

24 and laws, whereas the residents of Serbia were given only one chance.

25 Q. You've already explained that several times. No need to go into

Page 35582

1 that again.

2 Now, please tell me, Professor, to go back to the misunderstanding

3 or the confusion that exists in relation to the so-called usurping of the

4 federal competencies by Serbia. Please read out in Serbian, not in

5 English, Article 135 of the constitution of Serbia.

6 A. It states as follows: "The rights and duties that the Republic

7 of Serbia within the Federal Republic of Yugoslavia has based on this

8 constitution and which are to be exercised in the federation as provided

9 for by the federal constitution shall be enforced in accordance with the

10 federal constitution. If acts of the agencies of the federation or acts

11 of the agencies of another republic, in contravention of the rights and

12 duties it has under the constitution of the Socialist Federal Republic of

13 Yugoslavia, violate the equality of the Republic of Serbia or in any other

14 way threaten its interests without providing for compensation, the

15 republic agencies shall issue acts in order to protect the interests of

16 the Republic of Serbia."

17 Q. Let me put a question to you. Does it make completely clear that

18 by doing so the Republic of Serbia --

19 MR. NICE: That sounds to me like a leading question on quite an

20 important topic. I haven't bothered to stop all the other leading

21 questions, but --

22 JUDGE ROBINSON: Just -- Mr. Milosevic, just ask the witness what

23 is the significance of that -- of that article in terms of the

24 relationship between the two entities.

25 Professor?

Page 35583

1 MR. MILOSEVIC: [Interpretation]

2 Q. Very well. Professor Markovic, you heard the question of

3 Mr. Robinson. What is the significance of that article in view of the

4 relations between Serbia and the Federal Republic of Yugoslavia at the

5 time when this constitution was drafted?

6 A. The significance of this article lies in the affirmation of the

7 status of Serbia within the federal state. Therefore, the Republic of

8 Serbia expresses in this article the fact that it is going to abide by all

9 the provisions of the federal state. The federation will exercise its

10 rights in accordance with the federal constitution, and this provision is

11 an act of federal loyalty of Serbia to the federal state.

12 Q. As you are a fact witness, please tell us, at that time when the

13 constitution was passed in 1992 and later on, did Serbia ever take over

14 the prerogatives of the federal state after the time when the federal

15 constitution was passed?

16 A. I claim it never did so. Absolutely not. The federation

17 exercised all its rights based on the federal constitution. Not even the

18 president of the republic could exercise competencies from this

19 constitution in Articles 5, 6, 7 and 8, because those rights were reserved

20 for the federation and the president of the republic could never exercise

21 the rights or obligations from Article 87 of the constitution.

22 Q. Now, explain briefly. In paragraph 91 of the Kosovo indictment,

23 and I will have to quote it in full because that is more expedient than

24 just quoting a couple of lines. It says: "Although Slobodan Milosevic

25 [In English] was the President of Serbia during the wars in Slovenia,

Page 35584

1 Croatia, and Bosnia-Herzegovina, he was nonetheless the dominant Serbian

2 political figure ..."

3 [Interpretation] I do not challenge this so I am not asking

4 anything from you here. But here is my question: "... exercising de

5 facto control [In English] of the federal government as well as the

6 republican government and was the person with whom the international

7 community negotiated a variety of peace plans and agreements related to

8 these wars."

9 [Interpretation] Now, please, as a fact witness, do you have any

10 knowledge that would indicate that it was under my control to run the

11 federal government during the wars in Slovenia, Croatia, and Bosnia? So

12 in 1991 until the end, until December, who was the president of the

13 federal government, the federal Prime Minister?

14 A. Mr. Ante Markovic.

15 Q. Did I have any control over Ante Markovic, who was a witness here,

16 by the way?

17 A. None. You had no institutional or constitutional opportunity to

18 control him, and it would be unnatural for you to control him, because a

19 federal level only controls the federal institution.

20 JUDGE ROBINSON: The allegation is that you exercised de facto

21 control, not necessarily institutional or constitutional control.

22 So the question was whether, in fact, Mr. Milosevic had that

23 control over the federal government, but not looking at constitutional

24 authority.

25 THE WITNESS: [Interpretation] Yes, I understand the question

Page 35585

1 completely, and you are completely right. Since we are talking about de

2 facto matters, I have to invoke one fact: I do not believe that Mr. Ante

3 Markovic would lend himself to any control by Mr. Milosevic in view of the

4 fact that their relations were not such as to allow for that control.

5 Their personal relationship goes in the face of such an assumption. It

6 was not possible. And anyway, Mr. Ante Markovic testified before this

7 Tribunal, and you could become aware of his attitude.

8 MR. MILOSEVIC: [Interpretation]

9 Q. Now, look at the last line. It says: "... with whom the

10 international community negotiated a variety of peace plans and agreements

11 related to these wars."

12 Do you know anything at all, in terms of facts - you don't need to

13 explain the constitution and its coverage, you've done enough of that -

14 just tell us how I participated and in what capacity in those talks and

15 negotiations at the international level, peace negotiations.

16 A. You participated, I suppose, in your capacity as President of

17 Serbia. And if what is meant here are specific international contacts,

18 then you participated upon or according to a decision of the federal

19 government. Such was the case with the Dayton Accords. It was clearly

20 visible from the press and the media that the representatives of the

21 international community had contacts with you. They came to you and had

22 political talks with you. At that time, it was completely transparent and

23 obvious.

24 Q. I have to hurry up. It seems I won't be able to cover all the

25 grounds I wanted to, but with reference to the question asked by Judge

Page 35586

1 Bonomy, I think it remained unclear. We were talking about language and

2 related rights.

3 Tell me, can the Albanian language be written in Cyrillic script?

4 A. No. No, it cannot be.

5 Q. All right. All right. Now, answer this question: So it cannot

6 be written in Cyrillic script. Does the provision that relates to

7 Cyrillic or Latinic script have anything to do with the rights of

8 Albanians?

9 A. None. It relates only to those speaking the Serbian language.

10 The Albanian language cannot use the Cyrillic script. It would be the

11 same thing as righting Arabic in the Latinic script.

12 Q. Tell me just briefly, please, in connection with the law on

13 university, because I don't want to search this huge document given me by

14 Mr. Nice, it takes time, it was mentioned, everybody remembers, that a

15 class would be formed if there are 30 students. Does that in any way

16 jeopardise the rights of Albanians as the majority population in that

17 area?

18 A. No way. I already answered that question today. Because the

19 Albanians were an overwhelming majority in Kosovo and Metohija. This was

20 a protective provision for Serbs and other inhabitants of Kosovo and

21 Metohija, certainly not Albanians, because by virtue of the fact that they

22 formed 90 per cent of the population, they do not fall under this

23 provision. How could they possibly be a minority? This provision refers

24 only to other inhabitants. It doesn't apply to Albanians at all in any

25 way.

Page 35587

1 Q. Now tell me about the provision in another law on the ban of

2 turnover of real estate. Does this law claim to impose such a ban on sale

3 of property only if there is suspicion that this sale was made under

4 pressure?

5 A. That was precisely the aim of that law, to prevent coerced sale.

6 The aim was to prevent the change of ethnic structure of Kosovo and

7 Metohija, and the Serbs were being made to leave by being made to sell

8 their property. And if that had been allowed, there would be a Kosovo

9 without Serbs and any Serbian property would have ended up in the hands of

10 Albanians.

11 Q. Now, as an expert in civil law, do you know as a lawyer that

12 contracts in general, especially contracts on sale can be declared null

13 and void if it is determined that they were transacted under illegal terms

14 or circumstances?

15 A. Yes. That is precisely the case. Contracts made under duress are

16 nullified.

17 THE ACCUSED: [Interpretation] I really have to be in a hurry.

18 JUDGE ROBINSON: Mr. Milosevic, I'm reminded, I don't want to have

19 my knuckles rapped again today, they're quite bruised, so just one more

20 question, and then, Mr. Nice, to deal with your exhibits.

21 MR. NICE: I suspect in fact the number of exhibits that are

22 outstanding may be better dealt with first thing tomorrow morning were

23 that acceptable to the Court. I'm quite happy to deal with them now, but

24 I don't want to invade the accused's time or the Court's.

25 JUDGE ROBINSON: Yes, Mr. Milosevic.

Page 35588

1 THE ACCUSED: [Interpretation] Just briefly a couple of questions.

2 Q. Mr. Nice quoted to you a certain article that makes reference to

3 some sort of amalgam of power between the president and the party chief,

4 et cetera. Just one question. Did the Socialist Party in this period,

5 except for 1991 and 1992, ever have a majority in the parliament, be it

6 the federal parliament or the republican one?

7 A. You mean absolutely majority.

8 Q. I mean the kind of majority that would allow it to pass a law or

9 do something else without the cooperation of others.

10 A. It only had such a majority, the absolute majority from 1990 to

11 1992. Before and after there were only coalition governments.

12 Q. You mentioned a couple of dates because Mr. Nice stressed

13 chronology on several occasions and spoke of the log revolution as the

14 first instance of violence, whereas you mentioned Slovenia's declaration

15 of independence, et cetera. Would you say that the log revolution was the

16 first consequence of the current violence?

17 A. Yes. It was a response to violence. It was an effect of the

18 violence that was occurring of the attempts to --

19 MR. NICE: It is a very leading question on the topic that's

20 obviously of importance when everything that happened afterwards is

21 justified. It may not have any effect on the legal picture here but

22 everything that happens after is justified by first events of violence. I

23 mean, the question is uttering leading.

24 JUDGE ROBINSON: Yes, Mr. Milosevic. You have to reformulate and

25 then this has to be the last question.

Page 35589

1 THE ACCUSED: [Interpretation] All right. I cannot ask just one

2 more question.

3 MR. MILOSEVIC: [Interpretation]

4 Q. Mr. Markovic, Mr. Nice said at one point that Bosnia had accepted

5 the proposal and the invitation of the European Community for

6 independence. Tell me, according to the constitution of Bosnia and

7 Herzegovina, both the previous and the one that was in force at that time,

8 which were the constituent nations of Bosnia and Herzegovina?

9 A. I already read this. There were three such nations; Muslims,

10 Serbs, and Croats. They had the status of constituent peoples,

11 constituent nations in Bosnia and Herzegovina, and conflict occurred when

12 on the 29th of February, or, rather, the 1st of March a referendum was

13 announced treating the entire population of Bosnia-Herzegovina as

14 ethnically homogenous, ethnically equal rather than dividing into three

15 constituent nations.

16 Q. Fine. But was it possible to pass any legal decision of that kind

17 even if we disregard the constitution of Yugoslavia and other

18 constitutions? Was it possible to pass such a decision without the

19 approval of all three constituent nations?

20 A. No. The relevant amendment to the constitution of Bosnia and

21 Herzegovina is very explicit. In such issues the approval of all three

22 constituent peoples was necessary. There was to be no outvoting on

23 matters of that importance.

24 JUDGE ROBINSON: Last question, Mr. Milosevic.

25 THE WITNESS: [Interpretation] And that amendment was an integral

Page 35590

1 part of the constitution.

2 THE ACCUSED: [Interpretation] I have to skip over quite a lot.

3 JUDGE ROBINSON: Last question.

4 THE ACCUSED: [Interpretation] Very well.

5 MR. MILOSEVIC: [Interpretation]

6 Q. Mr. Nice, presenting you with an article written by Professor

7 Samardzic, stated that that author is certainly not a friend of this

8 Tribunal - I'm quoting Mr. Nice - because he is not siding with the people

9 who founded this Tribunal since he is criticising the NATO aggression.

10 Does it really follow from this statement, from the claim of Mr. Nice that

11 this Tribunal is really trying to justify the NATO aggression, something

12 that I am precisely trying to prove here?

13 A. Well, from his question --

14 MR. NICE: [Previous translation continues] ...

15 THE INTERPRETER: Microphone, please, for Mr. Nice.

16 MR. NICE: The same question that shouldn't be asked from --

17 THE INTERPRETER: Microphone.

18 JUDGE ROBINSON: We have to conclude now. Thank you,

19 Mr. Milosevic. I'm saying we have to conclude now. We are five, six

20 minutes beyond the time permitted. I'd like to thank the professor for

21 testifying at the Tribunal. That concludes your testimony. We are now

22 adjourned until 9.00 tomorrow morning when we will take up first the

23 question of the outstanding documents as exhibits. We are adjourned.

24 --- Whereupon the hearing adjourned at 1.50 p.m.,

25 to be reconvened on Tuesday, the 25th day of

Page 35591

1 January, 2005, at 9.00 a.m.