1 Wednesday, 11th September, 1996.
2 (10.00 a.m.)
3 THE PRESIDING JUDGE: Mr. Kay?
4 MR. KAY: Your Honour, before we start, if I may just mention
5 something? Mr. Wladimiroff is not in court this morning. He is
6 sorting matters out in relation to witness difficulties in Banja
7 Luka. I dare say information will be coming back to the Court
9 THE PRESIDING JUDGE: Very good. If there is anything that we can
10 do, let us know.
11 MR. KAY: I think he knows that.
12 THE PRESIDING JUDGE: Very good. Would you like to continue,
13 Mr. Orie?
14 MR. ORIE: Yes.
15 PROFESSOR ROBERT HAYDEN, recalled.
16 Examined by MR. ORIE, continued.
17 THE PRESIDING JUDGE: Professor Hayden, you understand you are still
18 under oath?
19 THE WITNESS: Yes.
20 THE PRESIDING JUDGE: Very good. You may be seated. Mr. Orie?
21 MR. ORIE: Thank you, your Honour. Professor Hayden, we finished
22 yesterday by paying attention to Article 135 of the 1990 Serbian
23 Constitution. I would like to present another document to you
24 both in the original language and in a translation. (Handed).
25 Professor Hayden, could you please tell us what this document
27 A. It is a slightly enlarged photocopy of Serbo-Croatian versions
1 of amendments to the Slovenia Constitution in 1989.
2 MR. ORIE: I tender that document as being Defence Exhibits 48A and
3 B; A for the original language and B for the translation, your
5 THE PRESIDING JUDGE: Any objection?
6 MR. NIEMANN: No objection.
7 THE PRESIDING JUDGE: Exhibits 48A and B will be admitted.
8 MR. ORIE: Professor Hayden, if you please would put the English
9 version on the monitor? I would like to draw your attention to
10 Amendment XLVI.
11 A. OK.
12 Q. Professor Hayden, could you tell us what Amendment XLVI deals
14 A. Yes, OK. First, I should say that these were amendments passed,
15 amendments to the Constitution of Slovenia that were passed in
16 September of 1989, and that were the focus of a great deal of
17 discussion throughout Yugoslavia actually in they appear here in
18 a Serbo-Croatian newspaper, the independent newspaper, Borba.
19 What we are looking at is the final version, the final version,
20 of the amendments, the amendments as passed.
21 Amendment XLVI says: "In the course of their
22 activities in the territory of the Socialist Republic of
23 Slovenia, the organs of the federation shall respect the
24 constitutional right of the equality of the languages on the
25 part of the members of all the nations and nationalities". The
26 controversial part was the next clause: "If activities or
27 enactments by the organs of the federation violate the
1 constitutional status and rights of the Socialist Republic of
2 Slovenia, the Assembly of the Socialist Republic of Slovenia
3 shall take measures in accordance with Amendment LXII".
4 Q. Professor Hayden, if you would compare this Amendment to the
5 Slovenian Constitution with the provisions of the Serbian
6 constitution, what would be your conclusion?
7 A. Well, I would actually have to look first at Amendment LXII
8 which is now in front of us. It says: "If the organs of the
9 federation adopt a decision which is not in accordance with
10 their competence as set out in the Constitution, and thereby
11 infringe on the constitutional status and the rights of the
12 Socialist Republic of Slovenia, the Assembly of the Socialist
13 Republic of Slovenia shall take measures in order to protect the
14 status and rights of the Socialist Republic of Slovenia as
15 defined in the Constitution."
16 This Amendment, of course, read along with the
17 Amendment before it, is very comparable to the Serbian Amendment
18 -- Serbian Article No. 135 of the Serbian Constitution which
19 was passed a year later. The Serbian Constitution was adopted
20 in September 1990. This Slovenian Constitution was adopted in
21 September of 1989.
22 Q. Looking at these amendments to the Constitutions, both of Serbia
23 and Slovenia, I would like to put to you a quote that I also put
24 to Dr. Gow. It was a quote of a statement he gave in the
25 Foreign Affairs Committee in the House of Commons. Would you
26 agree if I would say that: "It is fair to say that the Slovenes
27 were the first to give up on Yugoslavia", at least if you
1 understand that question?
2 A. I would certainly agree with that statement, yes.
3 Q. Could you please explain why you think that the Slovenes were
4 the "first to give up"?
5 A. The amendments to the Slovenian Constitution in 1989 were very
6 controversial because they, effectively, negated the principle
7 of supremacy of the federal constitution. In doing so, they
8 threatened the entire constitutional order of Federal
10 Q. Professor Hayden, Dr. Gow has expressed as his opinion on
11 8th May in this Court answering to a question, the question
12 was: "When did the federation of Yugoslavia cease to
13 function?" He opined that the date in which the federation
14 ceased to function was 15th May 1991. Would you agree with
16 A. I think that the date is almost two years late. The federation,
17 the Yugoslav federation, well, it began a process of decreasing
18 functionality with the passage of the Slovenian amendments in
19 September of 1989, and specifically the first federal organ to
20 essentially pass into ineffectiveness, an effective nullity, was
21 the constitutional court of Federal Yugoslavia, because there
22 was an attempt made by the federal government (headed by Ante
23 Markovic) to bring the Slovenian amendments before the federal
25 The Slovenian government refused to recognise the
26 competence of the federal court to hear the issue, refused to
27 participate in the hearing before the constitutional, the
1 federal constitutional court, which actually did hear the case
2 and rendered a decision which was ignored by the Republic of
3 Slovenia. Over the course of the next year and a half, as it
4 became obvious that a Republic could ignore federal authority
5 and get away with it, increasingly republics ignored federal
6 authority, ignored directives of the federal government and
7 thereby brought the federal structure to a halt.
8 We might say that that process could have been seen, I
9 do not know if we would say it took its ultimate form in May of
10 1991 or not, by that stage certainly the federal government as
11 an effective federal government had been blocked, particularly
12 in the summer of 1990 and particularly by the efforts of the
13 Republic of Slovenia and the Republic of Serbia soon to be
14 followed by the Republic of Croatia.
15 Q. Professor Hayden, after we discussed the chronology of who was
16 first in not respecting any more the federal authority, I would
17 like to change subjects with you and turn to Bosnia-Herzegovina.
18 THE PRESIDING JUDGE: Just one minute, Mr. Orie, if I may interrupt
19 you? What was the date of the ignoring by Slovenia of the
20 decision of the constitutional court?
21 THE WITNESS: I believe it was December of 1989. I believe that the
22 court sat in late September or in October of 1989, rendered a
23 decision on the Slovenian Constitution as well on the
24 constitutions of the other republics in December of 1989.
25 Q. So that would be the date then that you would consider that the
26 federal order ceased to exist?
27 A. Well, certainly that was the day at which it became apparent
1 that the federal order would cease to exist because the
2 constitutional court -- the constitutional court was in the
3 constitutional structure as the mechanism for deciding the most
4 important questions of relationships within the federation.
5 Q. That was ignored by Slovenia?
6 A. Yes, its ability to do so had been destroyed by the unilateral
7 actions of the Republic of Slovenia.
8 JUDGE STEPHEN: Can I ask this question? I take it that the matter
9 that came before the Court was on the question of the Slovenian
10 Constitution that you have just drawn our attention to?
11 A. Yes, your Honour. The matter that was before the court had to
12 do with whether or not the Slovenian amendments were contrary to
13 the federal constitution because the federal constitution did
14 have a provision that said that the republican constitutions
15 could not be contrary to the federal constitution and this was
16 the question that was brought to the federal constitutional
18 MR. ORIE: Thank you, your Honour. I would like to turn now,
19 Professor Hayden, to the situation in Bosnia and Herzegovina
20 from a constitutional point of view and as far as sovereignty is
21 concerned. Could you explain to us whether there was a
22 different situation in Bosnia-Herzegovina, as far as the concept
23 of sovereignty was concerned?
24 A. In Bosnia and Herzegovina in 1974, as in the rest of Yugoslavia,
25 you would see the dual form of sovereignty that I discussed
26 earlier yesterday. The working people and the working class, on
27 the one hand, and, on the other hand, in Bosnia and Herzegovina
1 the nations -- plural -- narodi, narods, of Bosnia and
2 Herzegovina specified as Muslims, Serbs, Croats, and the
3 nationalities and others, but specified Muslims, Serbs and
4 Croats. This, of course, reflects the situation that in Bosnia
5 and Herzegovina there was no single majority narod.
6 Q. Could you please explain this to us a bit more in detail looking
7 at the 1974 Constitution of the Socialist Republic of Bosnia and
8 Herzegovina which I will present to you. My first question is
9 whether this is this Constitution. Unfortunately, the English
10 text is in the top and the original text is in the back.
11 A. Yes, this is the 1974 Constitution of the Republic of Bosnia and
12 Herzegovina. The Serbo-Croatian original is from the same
13 source that the Croatian Constitution was found in yesterday.
14 It is a collection of Constitutions of Yugoslavia and of the
15 Republics, published in Belgrade in 1974.
16 MR. ORIE: Your Honour, I tender that document as Defence Exhibit
17 49A; A for original language and B for translation.
18 THE PRESIDING JUDGE: Any objection?
19 MR. NIEMANN: No objection, your Honour.
20 THE PRESIDING JUDGE: Defence Exhibit 49A and B will be admitted.
21 MR. ORIE: My question was whether you could be a bit more specific
22 perhaps on this document on the question just raised about the
23 different situation in Bosnia and Herzegovina as far as the
24 sovereignty was concerned?
25 A. Well, if we look at Article 1 of the 1974 Constitution: "The
26 Socialist Republic of Bosnia and Herzegovina is a socialist
27 democratic state and socialist self-management democratic
1 community of working people and citizens, the nations of Bosnia
2 and Herzegovina -- Muslims Serbs and Croats", this type of
3 formulation is what we had found in the federal Constitution
4 of '74, "the working people and citizens and the nations and
5 nationalities", but here the nations of Bosnia and Herzegovina,
6 the nations are specified, Muslims, Serbs and Croats, based on
7 the usual formulations, "the power and self-management of the
8 working class and all working people and on the sovereignty and
9 equality of the nations of Bosnia and Herzegovina", etc. Then:
10 "The Socialist Republic of Bosnia and Herzegovina is a
11 component of the Socialist Federal Republic of Yugoslavia". You
12 see a similar idea expressed in Article 2: "Working people and
13 citizens, the nations of Bosnia and Herzegovina -- Serbs, Croats
14 and Muslims and members of other nations and nationalities,
15 realise their sovereign rights in the Socialist Republic".
16 Article 3: "In the Socialist Republic of Bosnia and
17 Herzegovina, the equality of the nations and nationalities and
18 their members is guaranteed".
19 Q. Could you tell us about rules on the proportional representation
20 under this Constitution?
21 A. Yes, actually if we continue with Article 3 at the bottom of the
22 page, this has to do that the Article is on the equality of the
23 nations and nationalities, "Conditions for the affirmation of
24 national values" etc. "as well as proportional representation in
25 the assemblies of social-political organisations, are ensured
26 for the nations of Bosnia and Herzegovina -- Croats, Muslims and
27 Serbs and members of other nations and nationalities".
1 "Proportional representation in the assemblies" is a
2 constitutional requirement.
3 Q. Could you tell us whether the structure, the constitutional
4 structure, as far as sovereignty and equal representation,
5 subsequently changed in Bosnia and Herzegovina? I might present
6 an exhibit to you and would ask you what these documents are.
8 A. The Serbo-Croatian is a photocopy of the Official Gazette, the
9 Sluzbenilist, of the Socialist Republic of Bosnia and
10 Herzegovina from 31st July 1990, and it contains Amendments L1X
11 to LXXX on the Constitution of the Socialist Republic of Bosnia
12 and Herzegovina, and an English translation.
13 MR. ORIE: I tender these documents as Defence Exhibit 50A for the
14 original language and 50B for the translation, your Honour.
15 THE PRESIDING JUDGE: Any objection?
16 MR. NIEMANN: No objection.
17 THE PRESIDING JUDGE: Exhibits 50A and B will be admitted.
18 MR. ORIE: Professor Hayden, I would like you to look first at
19 Amendment LX. Could you please explain what changes to the 1974
20 Constitutions were adopted in Amendment LX?
21 A. Well, the amendments, of course, were passed in July 1990 and,
22 as with the other essentially post socialist amendments, you
23 will see that the workers, the working people and working class
24 have been deleted from the constitutional structure. So that in
25 place of Article 1 of the Constitution of 1974 that we saw in
26 the last exhibit, we now have that "The Socialist Republic of
27 Bosnia and Herzegovina is a democratic sovereign state of equal
1 citizens, the peoples of Bosnia and Herzegovina -- Muslims,
2 Serbs and Croats and the members of the other nations and
3 nationalities living in it".
4 Q. So is it right, am I understanding, that different from what
5 happened in the other republics, that in Bosnia and Herzegovina
6 there was no majority people that, well, if I could say, took
7 over as the primary one in the Constitution and that all the
8 peoples, Muslims, Serbs and Croats, were equal under this new
10 A. This is the constitutional structure. There is no single
11 majority narod in the Yugoslav sense. You cannot then have a
12 parallel to the Slovenian declaration or the Croatian
14 Q. Professor Hayden, were there any changes in the system of
15 proportional representation under these new amendments?
16 A. Yes, the following Amendment, Amendment LX1, replaces the
17 previous Article 3 and now says: "In the assemblies of social
18 and political associations, the organs which they elect, the
19 Presidency of the Socialist Republic of Bosnia and Herzegovina
20 and other state organs, proportionate representation of the
21 nations and nationalities of Bosnia and Herzegovina shall be
23 Now, what this does is make the requirement of
24 proportionality much more inclusive. It now includes the
25 presidency. Bosnia and Herzegovina, like the Yugoslav
26 federation of which it was still a part, did not have a single
27 President of the Republic. It had a group, a presidency, a
1 collective presidency, of which there would be a President of
2 the presidency who was regarded as being the first among
4 In principle, the presidency would take decisions and
5 the President of the presidency would issue them in the name of
6 the presidency. This Amendment requires proportional
7 representation in the presidency as well as in state organs,
8 social-political associations -- in other words, throughout the
9 governmental structures of Bosnia and Herzegovina proportional
10 representation is to be ensured.
11 Q. Professor Hayden, strict proportionality might be a bit
12 difficulty in practice. Could you tell us whether any deviation
13 from this strict proportionality was permitted under the
15 A. I believe it is under the -- in the same exhibit and Yugoslav
16 Constitutions were always accompanied by a constitutional law
17 for the implementation of the Constitution, always. I have
18 never been clear, being an American lawyer, as to why this is
19 necessary, but there is always a constitutional law for the
20 implementation. We find the translation of this in the last
21 several pages of this exhibit. The original is also in this
22 exhibit because the constitutional law followed in the Official
23 Gazette directly on the text of the Amendment. So if we look
24 at ----
25 Q. Could you please put it on the screen so we can look at the
26 document, Professor Hayden?
27 A. OK. What we will see here is the constitutional law for the
1 implementation of these amendments and Article 19 here: "For
2 the purpose of implementing Amendment LX1, it shall be
3 considered that proportionate representation of the nations of
4 Bosnia and Herzegovina -- Muslims, Serbs and Croats -- in social
5 and political associations is ensured if the proportion does not
6 deviate by more than 15 per cent from the proportion
7 determined". You will see that the proportions are to be
8 determined on the basis of data from the census before the
9 elections. As one carries through this Article of the
10 Constitutional law, it is fairly specific as to what is to be
11 done in regard to the nationalities and other minorities as
12 well. So that they are clearly taking this requirement of
13 proportionality quite seriously in these amendements in 1990.
14 Q. Could you explain to us, Professor Hayden, having looked at this
15 very precise rule on proportional representation, whether any
16 mechanism was created to safeguard, to respect, for the
17 proportional representation?
18 A. Well, I am not sure if I would say it would -- certainly there
19 is an electoral committee -- I think we will see that later --
20 which ensures in elections that the principle proportionality is
21 met in the elections. There was also within these same
22 Amendments an Amendment that was there to ensure equality of the
23 nations by preventing, as they put it, outvoting on critical
24 issues. In other words, there is a provision, an amendment,
25 that sets up a council on national equality. Is that what you
26 are referring to?
27 Q. As a matter of fact, I was asking for the mechanism, organs,
1 created, whenever any dispute would arise on this issue, on how
2 they would solve the issue?
3 A. Right. If we turn to the amendments, back to the amendments
4 within this Exhibit, Amendment LXX on page, beginning on page 2
5 of the translation, what is particularly important is clause 10
6 of Amendment LXX, which is a long and, as you will see,
7 complicated clause, and in the best tradition of Yugoslav
8 Constitutionalism it is sometimes hard to interpret in the
9 original, much less in translation. However, this is within the
10 Assembly of the Socialist Republic of Bosnia and Herzegovina:
11 "A Council on the Questions of Ensuring the Equality of the
12 Nations and Nationalities of Bosnia and Herzegovina shall be
13 established in the Assembly ... An equal number of deputies from
14 the members of nations of ... Muslims, Serbs and Croats, a
15 corresponding number of deputies from among other nations and
16 nationalities and others who live in Bosnia and Herzegovina
17 shall be elected as members of the Council. The Council shall
18 make decisions on the basis of consent of the members
19 representing all the nations and nationalities". This is a
20 requirement of consensus. "The composition, scope and manner of
21 activities of the Council shall be determined by a law which
22 shall be passed with a two-thirds majority of the total number
23 of deputies".
24 Then it provides that, "The Council shall give special
25 attention to matters relating to: the equality of languages and
26 alphabets", and etc., "the organisation and activities of
27 cultural institutions and the institutions of special importance
1 for expression and affirmation of the national characteristics
2 of individual nations ... and passing regulations in order to
3 ensure the implementation of constitutional provisions, which
4 explicitly set out the principles of the equality of nations and
6 It then says that, "This Council shall be obliged to
7 consider the issue of the equality of nations and nationalities
8 following an initiative by the deputies in the Assembly of the
9 Socialist Republic of Bosnia and Herzegovina. If no fewer than
10 20 deputies deem that a proposed regulation or other act within
11 the jurisdiction of the Assembly of the Socialist Republic of
12 Bosnia and Herzegovina undermines the equality of nations and
13 nationalities, the proposal being discussed by the Assembly ...
14 shall be formulated by the Council".
15 What this means is that if a minimum of 20 deputies
16 refer an issue to this Council, the Council will then formulate
17 the question as it will then be discussed by the Assembly. In
18 other words, for the Assembly to discuss the question it will
19 have to be in the form in which the question is referred back to
20 the Assembly by this Council which has to act on the basis of
22 Further: "On a proposal by the Council, the Assembly
23 ... shall make decisions ... in accordance with the special
24 procedure set out in the Rules of Procedure ... by a two-thirds
25 majority of the total number of deputies".
26 Q. Professor Hayden, after having heard this mechanism of unanimity
27 the commission and then putting it to Parliament and requiring a
1 two-thirds majority to adopt any decision on these issues, these
2 are all very much details. Could you please summarise -- really
3 summarise and make it short -- the major changes, just in brief,
4 so that we have a survey of what we discussed more in detail a
5 second ago?
6 A. Certainly. I mean, a major change is that the working class and
7 all working people are expelled from the Constitution leaving
8 the nations as a kind of partitioned sovereign, partitioned into
9 segments which are then guaranteed proportional representation
10 in the organs and in the Assembly and in the presidency of
11 Bosnia and Herzegovina. This mechanism is set up to ensure that
12 the Assembly, the Parliament, cannot take measures against the
13 will, effectively, of one of these component sovereigns, one of
14 the components of this group sovereign in Bosnia and
16 Q. Professor Hayden, I would like now to go with you to what
17 happened actually in Bosnia-Herzegovina.
18 THE PRESIDING JUDGE: Can I ask just one more question regarding
19 these amendments?
20 MR. ORIE: Yes, your Honour.
21 THE PRESIDING JUDGE: Are there any amendments in 1990 of the
22 Bosnia-Herzegovina Constitution that speak to the primacy of the
23 federal Constitution, as were the amendments in Slovenia,
24 Croatia and Serbia? Are there any amendments that speak about
25 the relationship between the Republic and the Constitution and
26 the federal Constitution?
27 A. I do not believe so at this time. I do not remember that there
1 was such an amendment in the Bosnia and Herzegovina
3 MR. ORIE: Professor Hayden, after these Amendments were adopted,
4 were elections held?
5 A. Yes, the elections, the first until now only free and fair
6 elections in Bosnia and Herzegovina since the end of the
7 communism, were held in November of 1990. These Amendments had
8 been passed in July of 1990.
9 Q. Professor Hayden, I would like to give two documents to you and
10 could you please tell us what these documents are about?
12 A. The Serbo-Croatian original is a photocopy of the Official
13 Gazette of Bosnia and Herzegovina, Sluzbenilist, Bosnia and
14 Herzegovina, from 19th December 1990; and it is a report by the
15 Republican Electoral Commission about the results of the
16 elections of 1990, November 1990. Then there is a translation
17 of parts of this report.
18 MR. ORIE: I tender these documents, your Honours, as Defence Exhibit
19 51A for the original language and 51B for the translation in
21 THE PRESIDING JUDGE: Any objection?
22 MR. NIEMANN: No objection.
23 THE PRESIDING JUDGE: Defence Exhibits 51A and B will be admitted.
24 MR. ORIE: Professor Hayden, if you just could give us a brief idea
25 of how this document is structured, not going through it in all
26 detail, but just to give us an impression of what is in it?
27 A. Yes. We will not go through it in full detail. It begins
1 simply with a brief explanation of what it is, that these are
2 the results of the election. It then lists -- most of this
3 document consists of lists of the results of the elections. It
4 is in Cyrillic, of course, but it says: "The results of the
5 election by electoral unit". This part of it is not translated
6 which is why I am just pointing it out on the screen here. Then
7 this happens to be the electoral unit constituency of Banja
9 Then what it does is it lists the total number of
10 registered voters, in this case 552,576, of which 433,226
11 voted. They elected 25 members of the parliament here and these
12 were elected by lists of the various parties. So it lists the
13 Democratic Socialist League of Bosnia and Herzegovina, 14,000
14 votes, won a position. Then it goes down for the various
15 electoral units here. This is for the Council of Citizens of
16 the Assembly of Bosnia and Herzegovina.
17 Q. Could you ----
18 A. It then, and I believe I can then switch -- well, perhaps
19 I should do one other thing. There are two Chambers in the
20 Bosnia and Herzegovina Assembly and I trust that the
21 translators -- well, maybe you are trusting my translation
22 here. If you look to the other Chamber which did elect
23 individuals, we happen again to have Banja Luka and similar --
24 and we have figures on voters. These are actually smaller
25 districts, obviously, because you have 136,000. Then it lists
26 each candidate, Nikola Erceg, Serb, Banja Luka, that is where he
27 is from, a candidate of the Serbian Democratic Party of
1 Bosnia-Herzegovina who received 52,000 votes; here you have the
2 next one, Obrad Milidrag, Serb, from another Party, received
3 3,000 votes; Dr. Anto Cosic, Croat, from his Party, the HDZ,
4 Croatian Democratic Union, received 11,000 votes; Ivica Bijelic
5 Croat, from the League of Reform Parties of Yugoslavia, received
6 14,000 votes; Dzevad -- I cannot read it clearly -- Osmancevic,
7 I think, Muslim, a Muslim from Banja Luka, candidate of the
8 League of Communists and the Social Democratic Party and the
9 Democratic Socialists; Salahudin Mesanovic, a Muslim.
10 So then what you see is that each candidate is
11 identified by Party and by narod, and almost everyone is
12 identified as a Serb or a Croat or a Muslim, although
13 occasionally there is a Yugoslav in there, and I think
14 occasionally there are one or two other identifications but
15 primarily Serb, Croat and Muslims. This is simply the way it is
16 reported by the Electoral Commission.
17 The Electoral Commission then, as part of its report
18 -- here we can turn to the translation -- did a breakdown of
19 the ethnic composition or the national composition of the
20 deputies elected. Here you see Muslims -- to the Citizens
21 Chamber, Citizens Council, Muslims 56, Serbs 45, Croats 25,
22 Yugoslavs 4.
23 Then it looks at the ethnic composition of the
24 Republic, according to the 1981 census -- that was the most
25 recent census -- and gives you a range of deputies and
26 eventually pronounces that the breakdown that was actually
27 achieved in the elections was adequate. It does a report on
1 this. Adequate proportionate ethnic representation of the
2 deputies, according to Articles 19 to 22 of the Constitutional
3 law that we looked at.
4 So it goes through all this and then proclaims, it
5 shows you what the range could be, and then proclaims the
6 results actually to be within that range and eventually says
7 that adequate proportionate ethnic representation has been
9 Q. Professor Hayden, if I could ask you to describe any
10 recognisable pattern in the outcome of these elections, how
11 would you describe it?
12 A. In these elections in November 1990, which were done --
13 international observers were present and proclaimed them to be
14 free and fair, the citizens of Bosnia and Herzegovina did have
15 the opportunity to vote for a non-communist Party headed by the
16 most popular political figure in Bosnia and Herzegovina at the
17 time and, in fact, throughout Yugoslavia at the time, who stood
18 for a state of equal citizens, a civil society of equal
19 citizens. About six per cent of them did so.
20 Overwhelmingly, the citizens of Bosnia and Herzegovina
21 voted as Serbs, Muslims and Croats, Serbs voting overwhelmingly
22 for the Serbian Democratic Party, a single Party; Croats voting
23 overwhelmingly for the Croatian Democratic Union, the HDZ;
24 Muslims voting overwhelmingly for the single Muslim Party, the
25 Party of the Stranka Demokraske Akcije Party, of Democratic
26 Action, SDA.
27 The percentages of votes for each of these national
1 parties is slightly under that nations' narods' proportionality
2 in the census of 1981 or 1991.
3 Q. Do I understand well that the outcome of the elections was
4 mainly according to the ethnic lines?
5 A. The election almost amounted to a census, an ethnic census of
6 Bosnia and Herzegovina.
7 Q. Professor Hayden, from an historical point of view, was this a
8 surprise? If you had compared the outcome of this election with
9 earlier elections, for example, in this century, could you
10 please comment on that?
11 A. There have not been too many relatively free and fair elections
12 in Bosnia and Herzegovina in this century. However, there were
13 such elections in, I believe, 1910 in the Austro-Hungarian
14 Empire and in the Kingdom of Yugoslavia in the 1920s. The
15 results were very similar to the results of the 1990 election
16 with Serbs voting overwhelmingly for one Serb Party, Croats
17 overwhelmingly for one Croat Party, Muslims overwhelmingly for
18 one Muslim Party. So these results were very comparable to
19 earlier .....
20 Q. Professor Hayden could you tell us how then a government was
21 formed after these elections?
22 JUDGE STEPHEN: I wonder if I could ask a question just before that?
23 I had gained the impression that that this election resulted in
24 a surprise in one sense because the Serb proportion had fallen
25 to less than the Muslim proportion or am I thinking only of
27 THE WITNESS: I believe you may be thinking of Prijedor and I am not
1 familiar with the specific results in the local election in
2 Prijedor. I could say -- I actually do not know the basis of
3 your question -- I would only say that -- I said yesterday,
4 I believe, that Muslims were granted the status of a narod, of a
5 nation, in 1971, and immediately the number of Muslims
6 increased, the people who declared themselves as Muslims, the
7 number of Serbs dropped. It has to do with the advantages and
8 disadvantages of declaring oneself what one is, but I am not
9 sure if that is the basis of your question. I suppose I should
10 leave it alone.
11 JUDGE STEPHEN: Do not trouble. Thank you.
12 MR. ORIE: Professor Hayden, then I will repeat my question, how then
13 was a government formed after these elections?
14 A. After these elections, the leaders of the three winning parties,
15 because the other parties were purely marginal, in other words,
16 the leaders of the SDA, the SDS and the HDZ, worked out an
17 arrangement in which they would share power. The Bosnia and
18 Herzegovina, like Yugoslavia, like most of the Republics, had a
19 structure of government. As I said, there was a collective
20 presidency. There was a Parliament, an Assembly, and then there
21 was a government, essentially an administration.
22 The deal worked out was that there would, of course,
23 be seven members of the presidency -- this was constitutionally
24 provided -- two Serbs, two Croats, two Muslims and a man who was
25 elected as a Yugoslav. Actually, I think the results of that
26 election may even be in this exhibit. It was agreed among them
27 that a Muslim politician, Alija Izetbegovic, would become
1 President of the presidency, to be first among equals in the
2 presidency. He had not actually received the highest number of
3 votes of the SDA politicians and other Muslim politicians had
4 received a higher number of votes, but Alija Izetbegovic was to
5 be President of the presidency.
6 A Serb politician, Momcilo Krajisnik, from the SDS was
7 made President Speaker of the Assembly, President of the
8 Parliament, and a Croatian politician, Ure Pelivan, who was made
9 President of the administration of the government. These terms
10 were to last for two years and then they were to rotate.
11 I believe a Croat, for example, was supposed to become President
12 of the presidency after two years, which in fact never
13 happened. But, in any event, then within the administration,
14 within the government, the government was headed by Mr. Pelivan,
15 President of the government or, perhaps, Prime Minister would be
16 an equivalent position. There were, I believe, 22 ministries in
17 the Bosnia and Herzegovina government. 10 portfolios were given
18 to Muslims to head, seven to Serbs and five to Croats.
19 So this was a package, a deal, by which a Muslim
20 became President of the presidency, a Serb President of the
21 Parliament, and a Croat President of the government of the
22 administration. As I said, these positions were supposed to
23 rotate at the end of two years. They came into effect in
24 December 1990 and were supposed to rotate at the end of two
26 You may recall that the President, the presidency of
27 the presidency of Federal Yugoslavia also rotated. This is when
1 Dr. Gow said that Federal Yugoslavia ceased to exist when a
2 rotation was blocked, so this was not unprecedented in Yugoslav
3 constitutional structures.
4 Q. Did the rotation work as foreseen?
5 A. No, the positions never did rotate. Of course, they would have
6 rotated in December of 1992 and the war broke out in April and
7 May of 1992. However, it was all quite curious. As I said, a
8 Croat was supposed to rotate into the position of President of
9 the presidency in December 1992, and even though the Croatian
10 Democratic Union did not officially pronounce secession from
11 Bosnia and Herzegovina, the relations between Croatian and
12 Muslim politicians were strained at that time.
13 So that we had the very curious situation in,
14 I believe, February 1993 when the President of the government of
15 Bosnia and Herzegovina, who was a Croat, was writing to inform
16 the United States, the United Nations, that Mr. Izetbegovic was
17 actually not legitimately President of the presidency because
18 his term had expired and that he was still a member of the
19 presidency but was not legitimately President of the
20 presidency. Now, that issue has essentially vanished and, in
21 fact, most of the people regard Mr. Izetbegovic as President of
22 Bosnia and Herzegovina, although that is not actually a position
23 that is provided for in the Constitution.
24 Q. Professor Hayden, after having gone through the theory of the
25 Constitution and how it was practised, I would like to take you
26 to a subsequent stage of the events in Bosnia-Herzegovina.
27 I would first like to present to you a document. Could you
1 please tell us what document that is? (Handed).
2 A. This is opinion No. 1 of the Badinter Commission, the European
3 Communities Arbitration Commission, the Peace Conference on
4 Yugoslavia. The source is a volume by Shezana Trifunovska,
5 "Yugoslavia Through Documents", published in the Netherlands.
6 MR. ORIE: I tender that document, your Honour, as Defence Exhibit
8 THE PRESIDING JUDGE: Any objection?
9 MR. NIEMANN: No objection.
10 THE PRESIDING JUDGE: Exhibit 52 will be admitted.
11 MR. ORIE: Professor Hayden, could you explain to us how a state was
12 defined in this first Badinter opinion?
13 A. Yes, this opinion had to do with the status, essentially, of
14 Federal Yugoslavia as it still existed at this stage. You can
15 see that the President of the Arbitration Committee received the
16 letter from Lord Carrington in November 1991. The question was,
17 essentially, what would be the status of Federal Yugoslavia
18 considering the events that had taken place, the pronounced
19 secessions of Slovenia and Croatia and Macedonia.
20 Q. As far as the definition of a state is concerned?
21 A. Yes. Then the Badinter Commission began by defining the state
22 in 1(B) here: "The State is commonly defined as a community
23 which consists of a territory and a population subject to an
24 organised political authority".
25 Q. Professor Hayden, would you accept the view given by the
26 Badinter Commission in its opinion that it is necessary to take
27 into consideration the form of internal political organisation
1 and the constitutional provisions in order to determine the
2 government's sway over the population and the territory?
3 A. Yes, I think that that is absolutely necessary. Also, if we are
4 defining the state as in part one of the criteria is a
5 population subject to an organised political authority, the
6 Constitution would seem to be the instrument that provides the
7 organisation of political authority.
8 Q. In applying these criteria, what was the conclusion of the
9 Badinter Committee in regard to the federation? I am not
10 talking about Bosnia-Herzegovina, but about a federation in late
12 A. The conclusion of the Commission -- if I can find it here; it is
13 here -- they noted that various of the republics had withdrawn
14 their representatives from the organs of the federation. Then
15 it said that these organs of the federation no longer meet the
16 criteria of participation and representativeness inherent in a
17 federal State. They noted the recourse to force has led to
18 armed conflict, that the authorities of the federation and the
19 Republics have shown themselves powerless to do anything about
20 it. The Arbitration Committee came to the conclusion that the
21 Socialist Federal Republic of Yugoslavia was at the time in the
22 process of dissolution.
23 Q. Professor Hayden, by applying these criteria to the situation in
24 Bosnia and Herzegovina at the end of 1991, beginning of 1992,
25 could you please tell us what your opinion is about the
26 statehood of the Republic of Bosnia and Herzegovina in that
27 period of time?
1 A. I would say that the Republic of Bosnia and Herzegovina entered
2 a period of constitutional breakdown and, in Badinter terms, of
3 dissolution beginning in October of 1991 and I would imagine
4 more or less concluding at the end of January of 1992.
5 Q. Professor Hayden, I would like to go with you in more detail
6 about this period of time. Could you tell us what events led to
7 the breakdown of the constitutional structure of Bosnia and
8 Herzegovina in that period of time, and would you also tell us
9 about the chronology of these events?
10 A. Bosnia and Herzegovina functioned with this essential coalition
11 government, essentially a coalition government, until October of
12 -- until the middle of October in 1991 when the political
13 agreements, the political consensus, that made this coalition
14 possible broke down in the course of a parliamentary session in
15 the middle of October, October 14th and 15th, of 1991.
16 Q. Professor Hayden, I would like to present to you Prosecution
17 Exhibit 47. (Handed). Could you just in order to refresh our
18 memories tell us what Exhibit 47 is?
19 A. Right, Exhibit 47 is a photocopy of an article from Yugoslav
20 Survey called "The Platform on the Position of Bosnia and
21 Herzegovina and The Future Organisation of the Yugoslav
22 Community". Now what this is is a -- it is a representation, it
23 is a reproduction, of a declaration of sovereignty that was the
24 subject of quite a lot of debate in the Bosnian Parliament, the
25 Bosnian Assembly, on October 14th and 15th of 1991, and it was a
26 very dramatic occasion. I believe that you saw very, very short
27 segments of film in the course of Dr. Gow's testimony and
1 slightly more in the course of the cross-examination of Dr. Gow
2 of some of the parliamentary speeches at this time.
3 The events focused around what was called a Memorandum
4 or letter of intent and a Platform -- if this could somehow be
5 brought in so I can, well, all right -- Memorandum, letter of
6 intent and a Platform on the position of Bosnia and Herzegovina
7 and the future organisation of the Yugoslav Community that were
8 presented to the Parliament, to the Assembly, by the SDA, the
9 Muslim Party, with the support of the HDZ, the Croatian Party,
10 in the Parliament.
11 Q. I would like you, Professor Hayden, to take us to clause 2 of
12 this Memorandum and explain to us what the meaning of it is?
13 A. Clause 2 of the Memorandum, yes, OK, here. Now, at this time,
14 in October of 1991, Slovenia and Croatia had seceded and a war
15 is going on in Croatia. You see here that the position stated
16 in this Memorandum is that, "Bosnia and Herzegovina will
17 continue to strive for the survival of the Yugoslav community on
18 new and ever more acceptable bases. In the meantime, it will
19 also endeavour to promote the normal functioning of existing
20 common institutions, but its representatives will not attend the
21 meetings of the Assembly and of the Presidency of the Socialist
22 Federal Republic of Yugoslavia, if the latter are not attended
23 by representatives of all the republics and provinces. Bosnia
24 and Herzegovina will not be bound by any decisions taken by
25 these bodies while they are incomplete".
26 So, what it says is, while it formally announces
27 support for the continuing existence of Yugoslavia and for the
1 normal functioning of its institutions, it will -- it says that
2 Bosnia will not take part in these institutions because it is
3 very clear that the Slovenes and the Croats will not, and so it
4 is very clear that Bosnia will not either which is an
5 interesting form of support.
6 Q. I would like you to take us now to clauses 5 and 6, Professor
7 Hayden, to see what is in there.
8 A. Right. "The positions set out in this memorandum express the
9 will of the majority of this Assembly and, as such, the
10 political will of the citizens of Bosnia and Herzegovina;
11 consequently, they constitute an obligatory basis for the
12 conduct of the state and political bodies of the Republic.
13 "Proceeding from the right of the parliamentary
14 majority to decide on the fate of the Republic as a whole, this
15 Assembly recognises, simultaneously, the right of the
16 parliamentary minority to claim and realise every one of its
17 legitimate interests ... provided this is achieved without use
18 of force and in a legal and democratic manner".
19 Q. I would like you to take us to the Platform and tell us what
20 this is, what it contains?
21 A. Well, the Platform is a statement of the position of Bosnia and
22 Herzegovina in Yugoslavia, and it is interesting for any number
23 of reasons. One of them, however, is the second clause in
24 paragraph 1, that "any possibility of outvoting in the process
25 of decision-making on crucial issues concerning the equal rights
26 of all nations and nationalities living in the Republic will be
27 precluded through an appropriate structure of the Assembly of
1 Bosnia and Herzegovina".
2 Q. This rather ambiguous document, was it opposed by any other
3 document at that time, and may I please present to you ----
4 JUDGE STEPHEN: I wonder if I can just ask, does that not really mean
5 complete stalemate? There cannot be any outvoting, it should be
6 precluded in some way; so that if you have any dissent, nothing
7 is accomplished?
8 A. Your Honour, I would read that as a reference to the same type
9 of mechanism that was included in this Amendment LXX, clause 10,
10 of the Bosnian Constitution which was then still valid.
11 Q. That there must be consensus?
12 A. Well, that if at least 20 members of parliament referred an
13 issue to this Council on national equality, the question would
14 have -- for further consideration by the Assembly, the question
15 would have to be formulated by unanimous consent of this Council
16 on national equality. This was the valid amendment to the then
17 existing Constitution. One could say that these paragraphs 5
18 and 6 of the Memorandum, of the letter of intent, express
19 something that is contrary to amendment LXX, clause 10. The
20 position set out in this Memorandum expressed the will of the
21 majority of this Assembly and as such the political will of the
22 citizens, and refers to the right of the parliamentary majority
23 to decide on the fate of the Republic as a whole, which sounds
24 fine except that Amendment LXX, clause 10, has provided a
25 mechanism by which for particular types of questions this would
26 have to be done. One will recall that when the issue comes out
27 of this Council on national equality, it must still be passed by
1 a special two-thirds majority, not by a simple majority, of the
2 Assembly. So that the sensitive questions, questions that one
3 of the constituent nations regards as sensitive, must be passed
4 at a minimum. Even if one were to bypass the Council procedures
5 which could still stalemate, you would still see an intent that
6 such issues be passed by a two-thirds majority of the
7 parliament, not a simple majority.
8 MR. ORIE: This, Dr. Hayden, was proposed by two of the three
10 A. This was proposed by the Muslim Party, the SDA, and it was
11 supported by the HDZ, the Croatian Party.
12 Q. I would like to present to you another document, Professor
13 Hayden, and would you please tell us what these are? It is
14 again an A and a B version? I would like you in the first
15 document to look at the right bottom corner of the second page.
16 A. Right. The document, as a whole, is a photocopy of the first
17 and second and third pages of the independent Belgrade
18 newspaper, Borba, the issue of 16th October. Although it does
19 not actually say it on the cover page, it is actually 16th
20 October 1991. It does say that on page 2. The part to which
21 you refer is a box of text in the lower right-hand corner of
22 page 2. The translation here is the translation of this lower
23 right-hand corner of page 2 entitled: "Resolution on the
24 position of the Socialist Republic of Bosnia and Herzegovina in
25 the resolution of the Yugoslav crisis by the SDS", by the
26 Serbian Party.
27 MR. ORIE: I tender that document, your Honour, as Defence Exhibit
1 53A for the original language and B for the portion translated.
2 THE PRESIDING JUDGE: Any objection?
3 MR. NIEMANN: No objection, your Honour.
4 THE PRESIDING JUDGE: Exhibits 53A and B will be admitted.
5 MR. ORIE: Professor Hayden, was this a competing document compared
6 to the Memorandum we were just talking about?
7 A. Yes. This is a competing document presented by the SDS, the
8 Serbian Party.
9 Q. Could you perhaps compare this document with the document we
10 just saw as Exhibit 47?
11 A. I should have kept 47, perhaps, but one sees that the Serbian
12 position is that, "The state of Bosnia and Herzegovina will as a
13 constituent part of the federal state of Yugoslavia respect its
14 constitutional order and its legal system ... and also the
15 constitutional order of Bosnia and Herzegovina and its legal
17 "The existing position of Bosnia and Herzegovina in
18 the SFRY will not be changed until the arrival of the conditions
19 from point 3 [sic] of this Resolution". The Resolution does not
20 make any sense if you look at point 3; I suspect they meant
21 point 4.
22 You see that, "Bosnia and Herzegovina will provide the
23 conditions for the uninhibited work of all of its
24 representatives in organs of the Federal State", which is of
25 course in flat contradiction to the Muslim, the Croat proposal.
26 "In federal organs, all of its representatives are required to
27 defend the interests of Bosnia and Herzegovina as an equal unit
1 of the Federal State, and the equality of all of its nations".
2 The Muslim/Croat Platform, effectively, withdraws
3 representatives of Bosnia and Herzegovina from federal organs.
4 Similarly, clause 2: "Bosnia and Herzegovina will
5 support via its organs and its representatives in the organs of
6 the SFRY the maintenance of Yugoslavia", the usual, nice
7 phrasing based on full equality, etc. etc. "It will similarly
8 support changes in the constitutional organ of the Federal State
9 in accordance with the expressed needs and demands and changes
10 which will guarantee the full equality of the six constitutive
12 Clause 3: "Bosnia and Herzegovina will support the
13 continuation of Yugoslavia as the state of all six nations and
14 republics". Then clause 4: "If Croatia secedes from the SFRY
15 and obtains international legal recognition", which had not
16 happened at this stage; Croatia had not be recognised, "then
17 there will be applied in Bosnia and Herzegovina a mechanism for
18 the realisation of the right to self-determination up to
19 secession" -- they quote the 74 federal preamble, without
20 quotation marks, it is the same wording -- "of the constituent
21 nations of Bosnia and Herzegovina (Muslims, Serbs and Croats)
22 who not wish to remain in such a federal state and wish to
23 organise their own state or to join different international
24 legal recognised states.
25 "The mechanism for realising the right of the nation
26 to self-determination up to secession will be agreed upon by a
27 special act on the plebescite of the constituent nations of
1 Bosnia and Herzegovina, Serbs, Croats and Muslims with confirmed
2 results of the plebiscite of the nation on the level of each
3 nation, on the level of the entire republic and on the
4 territorial principle", from small to larger.
5 Q. Would you, please, Professor Hayden, summarise if possible in a
6 few words what exactly was the difference between these two
7 points of view laid down in the Memorandum on the one hand side
8 and this position paper on the other hand?
9 A. Well, the one primary difference is that by this position Bosnia
10 and Herzegovina would continue to take part in the activities of
11 federal bodies; whereas by the Croat/Muslim position it will
12 not. Another is this clause 4, that if Croatia secedes, then a
13 mechanism for the realisation of the right of self-determination
14 of the nations of Bosnia and Herzegovina, the right to
15 self-determination of the narod -- that constitutional
16 expression of Yugoslavia -- will then be realised within Bosnia
17 and Herzegovina of the individual constituent narods, patterned
18 after the example set by Croatia and Slovenia.
19 Q. What happened then with these competing positions? How was this
20 problem solved, Professor Hayden?
21 A. This was, as I said, a very dramatic occasion and, if you
22 remember the film clips, there was a lot of jeering and applause
23 at different times. It was a parliamentary session that lasted
24 for something like 27 hours on 14th and 15th October in 1991,
25 and it proved not to be possible within the parliament itself to
26 reach a compromise between these two positions, although there
27 were people who attempted to do so, particularly members of
1 those smaller Parties that had been elected as well. There were
2 a few representatives not of these three major Parties.
3 The Serb Party, the SDS, then demanded that this
4 question be put to the Council for questions of national
5 equality which, apparently, had never until that time actually
6 been formed, but they did demand that this be put to the Council
7 for national equality. After, as I say, this very protracted
8 and very, how should one say, excited parliamentary session in
9 the middle of the night on October 15th of 1991, the President
10 of the Parliament, Mr. Krajisnik, who was President of the
11 Parliament as part of the deal that had made Mr. Izetbegovic
12 President of the presidency and Mr. Pelivan President of the
13 Government, a Speaker of the House, President of the Parliament,
14 adjourned the parliamentary session.
15 However, a Muslim member of the Parliament then took
16 the podium and proclaimed a one hour pause. At the end of the
17 hour, the Muslim and Croat representatives came back into the
18 Assembly and voted to accept the SDA's Memorandum by a vote of,
19 I believe, 142 for, none against. There were 240 members of the
20 Parliament. Thus, two-thirds would have required 160 which was
21 not met here.
22 The Serbian representatives regarded this purported
23 (in their terms) parliamentary adoption of the Memorandum as
24 being unconstitutional, in violation of the Constitution, and
25 refused at that moment to take part in the further work of the
26 organs of Bosnia and Herzegovina. They said that until this
27 decision was renounced -- they took, essentially, the same
1 position that the Croat/Muslim Memorandum took in regard to
2 Federal Yugoslavia. The Serbs said, "Look, we are all in favour
3 of Bosnia and Herzegovina, but until this decision, which we
4 regard as unconstitutional, is renounced, we will not take part
5 in the activities of Republican organs".
6 At that stage, the Parliament, which had been
7 operating as normally as such a divided Parliament might be
8 expected to operate, almost ceased to operate normally, as did
9 the Republican organs.
10 Q. So the Serb representatives were stepping back, not accepting
11 this decision. You refer to a Muslim member in Parliament
12 proclaiming a one hour pause instead of the adjournment
13 announced by the President of the Parliament, a Serb. Could you
14 tell us what his competence was to do so?
15 A. I would have no idea what his competence would have been to have
16 done so.
17 Q. Professor Hayden, we have discussed now the adoption of the
18 Memorandum, the voting, the way it went in Parliament, rather
19 chaotic. Could you tell us what then actually happened? The
20 Serbs had said that they would not participate any more. Was
21 that the situation? Did they not participate in the functioning
22 of the state organs on from that moment?
23 THE PRESIDING JUDGE: Excuse me, I do not think you mean the Serbs
24 would not participate, do you?
25 THE WITNESS: The Serbs took the same position in regard to
26 Republican organs in Bosnia that the Muslims were taking in
27 regard to federal organs of Yugoslavia; so, yes, if we are
1 talking about Bosnia, yes, it was the Serbs who were taking this
3 Q. Let me ask, if I may, one question? One fact, I think, has been
4 left out, you alluded to it, but I would like to find out the
5 date that it occurred. When did the President on the federal
6 level refuse to rotate? As I understand it, there was a three
7 person -- no, more than that -- presidency and they were to
8 rotate, and at some point the President -- was he from
9 Montenegro -- refused to rotate as was required by the federal
11 A. Right.
12 Q. Did that not precede the secession of Slovenia and Croatia?
13 A. It was -- yes, it preceded it by approximately one month.
14 Q. So what you have then is you have in 1989, I gather, amendments
15 to the Croatian Constitution refusing to recognise the primacy
16 of the federal?
17 A. The Slovenian Constitution.
18 Q. Slovenian, yes. 1990, Croatia, essentially, doing the same
19 thing. 1990, Serbia, though, I gather its amendments did
20 recognise the primacy of the federal Constitution. The next
21 event, I suppose, would be a failure on the part of the
22 President to rotate on the federal level, is that so?
23 A. Those are major highlights. Throughout this period ----
24 Q. There were so many things going on.
25 A. --- what happens after December of 89 when it is clear that the
26 federal constitutional court may safely be ignored ----
27 Q. I understand that.
1 A. --- that you have a whole range of activities by various
2 Republics of ignoring federal authority, there was ----
3 Q. No, I am not ascribing any responsibility, but who held the
4 position of presidency on the federal level and from what
5 Republic ----
6 A. It was ----
7 Q. --- when it was not rotated as required?
8 A. Right. That was Borisav Yovic of Serbia who was to be seceded
9 by Stipe Mesic of Croatia, which actually eventually did happen
10 after a period of hesitation.
11 Q. But the Serbian President refused to rotate, Slovenia then
12 secedes, Croatia then secedes, Bosnia and Herzegovina in its
13 Constitution did not or at least you could not point us to any
14 amendments that challenge the primacy of the federal
15 Constitution, as did Slovenia's and Croatia's Constitutions.
16 Instead, what they did, after Slovenia and Croatia seceded, was
17 to adopt this Resolution in October, 14th and 15th of 1991,
18 saying, "We will not participate on the federal government
19 level", and at that point in time what had happened was that the
20 presidency of the federal government was being held by a
21 President who should have left, who should have been seceded by
22 another President, according to federal Constitution; is that
24 A. Actually, your Honour, not quite correct.
25 Q. OK, tell me.
26 A. Because although Mr. Yovic did step down as required.
27 Q. The President of Serbia?
1 A. The President from Serbia.
2 Q. When?
3 A. When did his term expire? I believe it was May of '91,
4 beginning of May '91.
5 Q. That was after Slovenia and Croatia seceded?
6 A. No, they secede a little bit later. Then there is a period in
7 which the Serbs refuse to confirm Mr. Mesic as the new President
8 of the presidency. However, under a great deal of international
9 pressure they eventually do confirm Mr. Mesic as President of
10 the presidency. So we have this very curious situation that at
11 the time that Croatia and Slovenia secede, actually Mr. Mesic
12 from Croatia is President of the presidency.
13 Q. He had assumed ----
14 A. He assumed the position, yes.
15 Q. -- that position. Do you know the dates, approximate dates?
16 A. No, I mean, all of this is taking place in May and June of 1991
17 and, as you can see, it is a very messy situation from all
19 Q. When did war break out between Croatia and Serbia then?
20 A. The greatest hostilities broke out in the summer and fall of
21 1991. The secessions are not immediately followed by war in
22 Croatia. There is a period in which Croatia has proclaimed
23 itself, has seceded, but the federal army is staying in its
24 barracks and the federal army then is actually trapped within
25 its barracks in many places in Croatia. So you have this whole
26 summer of 1991 in which it is kind of like the period of the
27 phoney war in 1939 after Germany invades Poland and Britain and
1 France declare war but nobody does much of anything until 1940.
2 You have this brief period in the summer of 91 where there is
3 not much conflict. There is the 10 day war in Slovenia. Then
4 there is this eerie period before wide hostilities break out in
5 Croatia in the late summer and the fall of 1991.
6 Q. When did Slovenia secede then?
7 A. The secessions are at the end of May, I believe, of '91 and then
8 Croatia at the same time.
9 Q. Which was the next day?
10 A. Yes.
11 THE PRESIDING JUDGE: We will stand in recess for 20 minutes,
13 (11.33 a.m.)
14 (Short Adjournment)
15 (11.55 a.m.)
16 THE PRESIDING JUDGE: Mr. Orie?
17 MR. ORIE: Thank you, your Honour. Professor Hayden, we finished
18 where you explained to us how the adopting of the Memorandum was
19 not constitutional because they did not follow the mechanism for
20 ensuring the protection of the equality of the component nations
21 in Bosnia and Herzegovina, and that the subsequent voting
22 requiring a two-third majority in Parliament was not followed.
23 Could you please tell us whether the adoption of the Memorandum
24 was in line with all the provisions of the Platform you referred
25 to earlier?
26 A. I would actually like to have the Platform back, if I may? It
27 may not be that important. It is OK.
1 Q. It was Exhibit 47.
2 A. It is all right.
3 Q. Prosecution Exhibit 47.
4 A. While I am waiting for that, I need to clarify something. In
5 one of those inexplicable lapses which makes one cringe, when I
6 was asked when the war broke out, for some reason I said the end
7 of May when the secessions took place. It was the end of June.
8 Why I should have said that, I have not the faintest idea.
9 Well, actually, this was not the Exhibit. However,
10 you will remember the Platform adopted by the Croats and the
11 Muslims in the second clause of the first paragraph said that a
12 mechanism would be created to preclude outvoting on questions of
13 interest or questions relating to the equality of the nations
14 and nationalities of Bosnia and Herzegovina which, in response
15 from a question from, I think, Judge Stephen, I said was
16 comparable to seemingly an intent to Amendment LXX, clause 10,
17 of 1990. So it seems that the amendment -- that the Memorandum
18 and the Platform were passed in contravention to Amendment LXX,
19 clause 10, and also in contravention to the provision in the
20 Platform itself that such things would not happen.
21 MR. ORIE: Professor Hayden, if October 1991 marked the beginning of
22 the dissolution of the Republic of Bosnia and Herzegovina, could
23 you tell us what marked the final stage of dissolution?
24 A. Dissolution, in the sense in which Badinter uses the term,
25 I would say probably the end of January of 1992 when the
26 Parliament of Bosnia and Herzegovina fractured completely.
27 Q. I would like to show to you Prosecution Exhibit 52, Professor
1 Hayden, and put some questions in relation to that document?
2 JUDGE STEPHEN: Can I, while we are waiting for that, just ask you a
3 question? There is really no division that ever seems to occur
4 between Bosnia, on the one hand, and Herzegovina on the other.
5 I know writing it out many times it becomes irritating that it
6 is such a long name, but in fact there does not seem to be much
7 geographical or ethnic division between the two, is that so?
8 A. The reasons for the names are primarily historical. There is
9 some linguistic difference. The dialects spoken in Herzegovina
10 are somewhat different from those spoken in Bosnia. There is
11 now quite a bit of a political difference as well -- I suppose
12 there always was, in a sense.
13 The part of Herzegovina called Western Herzegovina,
14 which is where Mostar is located, that was a heavily Croatian
15 area before this war began. It is now exclusively Croatian.
16 The Croatian politicians from Herzegovina, as opposed to
17 Croatian politicians from Bosnia, never hid their intent to have
18 Herzegovina secede from Bosnia and adhere to Croatia. They were
19 the ones who were instrumental in proclaiming the Croation
20 community of Herceg-Bosna. That was in sharp distinction to
21 Croatian politicians from Bosnia itself. So there are some
22 differences that are much more apparent to people from
23 Yugoslavia than they are to the rest of us, including to me.
24 THE PRESIDING JUDGE: They were not separate nations at one point way
25 back in history, Bosnia and Herzegovina?
26 A. I would hesitate to say much about Bosnian history because I am
27 not an historian. I am a cultural anthropologist, and I tend to
1 deal with the people as they exist now. I have read a certain
2 amount of history of that part of the world. What can we say,
3 that the peoples who speak Serbo-Croatian are all Slavs
4 linguistically, Slavic peoples of Slavic language families,
5 people who speak the Slavic languages.
6 The history of the region has been such, Empires have
7 come and gone and left their marks, so that the territory of the
8 south Slavs, Yugoslavia -- "Yug" means "south", "Slavia", "of
9 the south Slavs". Parts of it have been ruled by different
10 Empires leaving enormous traces behind and sometimes smaller,
11 and you can even find traces of Napoleon's brief occupation of
12 parts of Croatia if one looks hard enough.
13 For these historical reasons, the peoples have been
14 divided by religion and by script and, hence, divide themselves
15 into these narods that I was discussing yesterday. They
16 distinguish themselves as being different, but the categories
17 are not racial categories certainly, in American terms. The
18 categories are closer, as I have said, to American ethnic
19 groups, but they are very real to the people there. I mean,
20 they know who are Serbs, they know who are Croats, they know who
21 are Muslims. There are differences in customs, in religious
22 practices and sometimes in diet, sometimes in dress,
23 particularly in rural areas. I do not know if I am clarifying
25 MR. ORIE: Professor Hayden, I asked you to be shown Exhibit 52,
26 Prosecution Exhibit 52, to you. Is that the Badinter 4 opinion?
27 A. Yes, this is opinion No. 4 of the Badinter Commission.
1 Q. Could you tell us how the Badinter Committee dealt with the
2 opposing positions taken by the different parties as we just
3 discussed them before the break?
4 A. The question here to Badinter -- I can look at it here if it is
5 here -- right, so the question here has to do with the status of
6 Bosnia and Herzegovina, and whether that Bosnia and Herzegovina
7 should be recognised as an independent state by the members of
8 the European Community. So, Badinter goes through the materials
9 that were presented to it, including, as you will see, the
10 Memorandum, item 3, the Memorandum and Platform of the
11 Assembly. Well, obviously the document is fairly lengthy and
12 I do not wish to go through it ----
13 Q. If you would take us to the conclusion based upon the
14 presentation of all this information.
15 A. Well, the Badinter did note that -- one can see this at the
16 bottom of the page -- although the Memorandum and the Platform
17 had been passed, right above paragraph 4 here they say:
18 "Outside the institutional framework of SRBH, the 'Serbian
19 people' ... voted in a plebiscite for a 'common Yugoslav state'
20 and passed a Resolution", and they note then that -- they note
21 in several places in this document that Serbian representatives
22 dispute the position taken by the presidency of Bosnia and
23 Herzegovina and they disputed it within the presidency.
24 So, the conclusion in paragraph 4 is that: "In these
25 circumstances, the Arbitration Commission is of the opinion that
26 the will of the peoples", and you will note the plural, "of
27 Bosnia and Herzegovina to constitute the Socialist Republic of
1 Bosnia and Herzegovina as a sovereign and independent state
2 cannot be held to have been fully established".
3 Q. Professor Hayden, did they then require a referendum to be held
4 in order to clarify the existing uncertainty on this?
5 A. One often hears that they required a referendum to be held but,
6 if one looks at the decision, it is a bit more tentative than
7 that. They say that this assessment, that the will of the
8 peoples -- peoples -- cannot be held to have been fully
9 established, but "this assessment could be reviewed ... possibly
10 by means of a referendum", possibly by means of a referendum.
11 Q. Professor Hayden, I would like you to go to paragraph 3(b) of
12 the fourth opinion of the Badinter Committee. We see there that
13 a reference is made to Amendment LXVII. Could you please
14 comment on this reference?
15 A. Yes. It says -- they actually cite this later on in regard to
16 referenda. This is a citation to Amendment LXVII, it says:
17 "Under the Constitution of Bosnia and Herzegovina ... the
18 citizens exercise their powers through a representative Assembly
19 or by referendum".
20 Q. Yes. Professor Hayden, I would like to present a document to
21 you. Would you please tell us what it is. (Handed).
22 A. This is an English language translation of Amendment LXVIII to
23 the Constitution of Bosnia and Herzegovina. Would it be
24 possible to obtain again the original, the Exhibit of the
25 Amendments to the Constitution of Bosnia and Herzegovina?
26 MR. ORIE: The original was Defence Exhibit 49A, your Honour.
27 THE WITNESS: Thank you -- no, this is the Constitution of 1974.
1 I need the Constitutional Amendments of 1990.
2 MR. ORIE: I thought it was 49A and B, but I have become less certain
3 now, your Honour.
4 THE PRESIDING JUDGE: I think this is 50A and B.
5 MR. ORIE: It might be then our administration is not fully correct.
6 THE PRESIDING JUDGE: You want the amendments to the July 30th 1990
8 THE WITNESS: That is correct.
9 THE PRESIDING JUDGE: It is 50A -- 50B if you want to read it in
11 THE WITNESS: The problem, your Honour, is actually that part of it,
12 Amendments LXVII and LXVIII, are not actually translated into
13 English. The difficulty is that Badinter here -- I assume it is
14 a typographical error because it is not Amendment LXVII.
15 Amendment LXVII deals with funding medical facilities and the
16 like, and so the relevant Amendment is LXVIII. It might be best
17 if I put it ----
18 MR. ORIE: I will first tender the translation of LXVIII as I have
19 offered it to Professor Hayden as Defence Exhibit 54, your
21 THE PRESIDING JUDGE: Any objection?
22 MR. NIEMANN: No, your Honour.
23 THE PRESIDING JUDGE: Defence Exhibit 54 will be admitted.
24 THE WITNESS: What one would want to do is compare the text of
25 Amendment LXVIII, clause 1, as translated here with the
26 translation in the Badinter Commission report which is no longer
27 in front of me. It is just the top of page 4, I believe.
1 MR. ORIE: Could Prosecution Exhibit 52 be returned to Professor
3 A. Badinter cites Constitution, presumably, LXVIII, that, "The
4 citizens exercise their powers through a representative Assembly
5 or by referendum". Actually, LXVIII does say, and you will see
6 the translation here, that is not quite correct, that "Citizens
7 are the bearers of power, which they exercise through
8 representatives in assemblies of social-political communities,
9 by referendum", and that is where Badinter stopped, "in public
10 meetings and other forms of personal declaration of opinion".
11 Q. Based upon Amendment LXVIII, instead of LXVII, would you,
12 Professor Hayden, share the conclusion of the Badinter Committee
13 that the plebiscite of the Serbian people of Bosnia-Herzegovina
14 was outside the framework of the Constitution?
15 A. Well, I would be much more hesitant than Mr. Badinter apparently
16 was, because it seems to me that a plebiscite is a form of
17 personal declaration of opinion, and this is clearly provided
18 for in the Constitution.
19 Q. Professor Hayden, the Badinter Committee suggested that possibly
20 a referendum could clarify the existing uncertainty, as you have
21 told us. Was a referendum then held?
22 A. A referendum was, indeed, held.
23 Q. Could you tell us how the decision was taken that a referendum
24 would be held?
25 A. Yes. The referendum -- the decision to hold this referendum was
26 taken in a session of the Bosnian Parliament, or purports to
27 have been taken in a session of the Bosnian Parliament, on 24th
1 and 25th January 1992, which was another quite dramatic occasion
2 in the short life of the Bosnian Parliament that had been
3 elected in the free and fair elections of 1990.
4 The decision to take a referendum, to have a
5 referendum, was proposed by the SDA, the Muslim Party, with some
6 support from HDZ politicians, but it was primarily an SDA
7 sponsored action. It was opposed by the SDS, by the Serbian
9 Now, again this was a very long session, a very, shall
10 we say, lively session, of the Bosnian Parliament that again
11 went to one of these sessions that went until very late at night
12 or actually early in the morning, and there was clearly a great
13 deal of negotiation. The Serb representatives were in the
14 Parliament. They had come back into the Parliament that they
15 had, essentially, walked out of in October, and were involved in
16 attempting to negotiate a compromise on this position.
17 In fact, at a late stage in these parliamentary
18 proceedings, Mr. Karadzic, who was head of the SDS, and the Vice
19 President of the SDA, took the podium together to announce that
20 they had reached a deal, that the internal structures of Bosnia
21 and Herzegovina would be reorganised and then immediately, or
22 actually 30 days thereafter, there would be a referendum.
23 According to the newspaper accounts of the main
24 Sarajevo paper, Oslobodjenje, and the independent Serbian paper,
25 Borba, and the independent Serbian weekly, Vreme, this
26 announcement was greeted with a great deal of applause.
27 However, after a pause in the parliamentary session,
1 Mr. Izetbegovic returned to the podium and said that there could
2 not be any preconditions for a referendum, that a referendum
3 would have to take place.
4 The leader of the Serbian caucus, in the SDS caucus,
5 in the Parliament, demanded that the question be referred to the
6 Committee on the establishment of equality of the nations and
7 nationalities. This was a session that had now gone until about
8 3.30 in the morning. The speaker of the parliament, still
9 Mr. Krajisnik of the SDS, proclaimed an end to the day's session
10 and said that the Parliament would meet again -- this is 3.30 in
11 the morning -- he says the Parliament will meet again at,
12 I believe, 10.30 the same morning, in other words, seven hours
14 Q. What would then happen, Professor Hayden?
15 A. Well, what then happened was that after an hour the -- again a
16 Muslim member of the Parliament proclaimed the Parliament to be
17 in session, and Muslim and Croat Members of the Parliament
18 passed an Act to hold the referendum by a vote of something like
19 134 and obviously none against, since there was no one else in
20 the room, again below the two-thirds of 160. They did actually
21 a little bit of other business then by themselves and then they
23 When the Speaker of the Parliament showed up when he
24 called the session at 10.30 in the morning, he walked in with
25 the members of the SDS, waited an hour, determined that they had
26 no quorum and ended the session. So, I believe, ends the active
27 life of the Parliament of Bosnia and Herzegovina in the
1 composition in which it was elected in the free and fair
2 elections of 1990.
3 Q. What, Professor Hayden -- it is a similar question as I did put
4 to you before -- what was the authority of this SDA member in
5 Parliament to decide that the Assembly would gather, not at
6 10 o'clock that morning in order to decide on the referendum,
7 but to do it one hour later, one hour after 3.30 in the morning?
8 A. I have no idea what authority he would have cited, if indeed he
9 cited an authority, it is possible he did. Of course, recalling
10 that Mr. Krajisnik was Speaker of the Parliament as part of the
11 same overall package that had made Mr. Izetbegovic President of
12 the presidency and Mr. Pelivan President of the government, any
13 authority that he claimed would probably be seen as a rejection
14 of the entire deal that had structured the coalition government
15 in the first place.
16 Q. Professor Hayden, what is your opinion about a constitutionality
17 of this outvoting of the Serbian members of the Bosnian and
18 Herzegovinan Parliament?
19 A. It would seem, on the face of it, to be contrary to the valid
20 Amendment LXX, clause 10, of the then valid Constitution.
21 Q. Professor Hayden, this was the decision-making to hold the
22 referendum. What was the result of the referendum that was
23 finally held, as you told us?
24 A. The referendum that was actually held on February 29th and March
25 1st of 1992 was even more of an ethnic census, a national
26 census, nationality census, than the elections of 1990 had
27 been. Approximately -- Professor Gow has discussed this as well
1 -- 65 per cent or so of the electorate voted. Virtually no
2 Serbs voted, virtually everyone who voted "yes". So you have a
3 rather curious referendum in which there is no opposition.
4 Q. Professor Hayden, if we just stay apart from the legitimacy of
5 this referendum, could the outcome of the referendum be regarded
6 to reflect the will of the peoples -- I use the plural as well
7 -- of Bosnia and Herzegovina?
8 A. The question is well put. The Badinter Commission had said that
9 the will of the peoples had not been established, the will of
10 the peoples of Bosnia and Herzegovina to an independent state
11 had not been established, and that this might possibly be
12 established by a referendum. I do not think that you could
13 possibly interpret the results of this referendum as having
14 established the will of the peoples of Bosnia and Herzegovina to
15 constituting the Republic as an independent state.
16 Q. So, Professor Hayden, saying that this referendum did not
17 reflect the will of the peoples of Bosnia and Herzegovina to
18 constitute the Republic, the Republic of Bosnia and Herzegovina,
19 as a sovereign independent state, could you please tell us
20 whether the Badinter Committee in the opinions 4, 8 and 11 was
21 consistent in its opinion as far as the criteria for the
22 existence of an independent state were concerned? Perhaps
23 I should give you the opportunity to look at the Badinter
24 opinions 4, 8 and 11. 4 is Exhibit Prosecution Exhibit 53, if
25 I am correct?
26 A. Yes.
27 Q. And 8 is Prosecution Exhibit 54 -- no, 4 is 52, 8 maybe Exhibit
1 53 and 11 maybe Prosecution Exhibit 54. So 52, 53, 54.
2 A. 52 I have, so it is 53 and 54. (Handed).
3 THE PRESIDING JUDGE: While you are looking at that, Professor
4 Hayden, why, in your opinion, did the February 29 referendum in
5 Bosnia and Herzegovina not represent the will of the people when
6 65 per cent of the electorate voted but virtually no Serbs?
7 Secondly, do you know whether there is any evidence that Serbian
8 people were encouraged not to vote in the referendum?
9 A. As to the first question, the question, the failing that
10 Badinter perceived at the time of the opinion 4 was clearly the
11 will of the peoples, plural, and he was distinguishing between
12 the Serbs and between the Croats and the Muslims. In doing so,
13 he was following Bosnia and Herzegovina constitutional
14 structures and Bosnia and Herzegovina political practice.
15 It was very clear at that moment that the will of the
16 peoples, plural, had not been established. The referendum,
17 I believe Dr. Gow mentioned as well, that very few Serbs voted
18 in the referendum, and it is fairly clear that most of them did
19 not want to vote in the referendum. They had themselves had a
20 plebiscite in November that had been referred to by Badinter and
21 had voted virtually 100 per cent to remain within Yugoslavia.
22 Now, in Yugoslavia from 1990, 1989/1990 onwards, we
23 have also its referenda, and they are always taken by close to
24 100 per cent of the vote in favour of the Party that organised
25 them, and we have a Serbian one like this, and then we have a
26 Croat/Muslim one like this. Certainly, Serbs were not
27 encouraged by Serbian Parties to vote in the referendum of
1 February 29th and March 1st, as they had been encouraged to vote
2 in the plebiscite.
3 It is, however, very doubtful that many Serbs would
4 have voluntarily voted in this referendum which, as I say, was
5 essentially an ethnic census. In that sense, you see, the
6 results of the referendum were absolutely congruent with the
7 situation that was clearly there on the ground at the time that
8 Badinter No. 4 was written, which was that the Serbs had
9 expressed themselves very clearly against constituting Bosnia
10 and Herzegovina as an independent state and Croats or Muslims,
11 particularly, and then Croats a little more nuanced were for
13 In that regard, you see, the referendum taught no one
14 anything that they did not already know, which was that some of
15 the peoples, the Bosnian constitutional and politically
16 recognised peoples, were in favour of independence and some were
17 not. Since Badinter had stated that this was the question,
18 I think it would be impossible to interpret the results of the
19 referendum as providing a positive answer to that question.
20 THE PRESIDING JUDGE: So it did not represent the will of the people
21 because ----
22 THE WITNESS: Peoples, your Honour.
23 Q. --- peoples, oh, yes, that is very important.
24 A. This is the question, it is the peoples, and that was how it was
25 expressed by Badinter and that was in keeping with Bosnian
26 constitutional structure and political practice.
27 Q. It did not represent the will of the peoples because a group of
1 the peoples, i.e. the Serbs, boycotted the election?
2 A. They would put it as one of the peoples, one of the peoples.
3 One of the peoples was against and two of the peoples, narods
4 again, narodi, are for, which Badinter had noted in his opinion
5 and it is suggested that this could possibly, possibly, have
6 been resolved by a referendum.
7 If, in fact, a referendum had been held and everyone
8 had voted, perhaps one could have interpreted it that way which
9 was probably what Badinter had in mind, which was probably as
10 well why the Serbs boycotted it, to make their vote in the
11 referendum, as it were, absolutely clear.
12 JUDGE STEPHEN: But I am afraid I do not understand what Badinter is
13 talking about. It seemed to be perfectly clear that the wills
14 of the peoples were disparate; that one of the peoples wanted
15 one thing, the other two wanted something else. How could you
16 possibly get the will of the peoples, plural?
17 A. Well, Badinter in opinion 4 was actually hesitant about this,
18 and said that this could possibly be shown by a referendum --
19 could possibly be shown -- but the ways in which the referendum
20 was held and the voting patterns in it indicate to me that this
21 was not shown; that all the referendum did was confirm exactly
22 what you point out, your Honour, that one of the peoples was for
23 this and two of the peoples were against this. Of course, this
24 is your bind in Bosnia and Herzegovina, that you have no single
25 majority narod that could impose its will on the others, but
26 that you had to work by consensus. The consensus had clearly
27 broken down and the constitutional structures that were designed
1 to foster consensus had also broken down.
2 MR. ORIE: Professor Hayden, is this reference to the constitutional
3 structure a reference to the prohibition to outvote other
4 peoples? Is this a reference to the right of secession for the
5 peoples, each of it, each of the constituent parties, in that
6 Republic? Is that what you say, that what Badinter proposed
7 finally turned out to be unconstitutional -- at least suggested,
8 I should not, when I listen well to you, he did not propose a
9 referendum but he suggested that possibly that might be of some
10 help and it finally turned out to be unconstitutional as it was
12 A. I would have to ponder the constitutionality of it in regard to
13 Bosnia and Herzegovina. Certainly, the way it was scheduled in
14 regard to Badinter's suggestion seems to have been brought about
15 unconstitutionally. To schedule this referendum that Badinter
16 had suggested was not done in accordance with the provisions of
17 the Constitution of Bosnia and Herzegovina and the parliamentary
18 manoeuvring sounds extremely dubious as well.
19 Q. Professor Hayden, I will come back to the consistency of
20 Badinter in his opinions 4, 8 and 11 that have been presented to
21 you. Could you explain whether there are any inconsistencies in
22 these subsequent opinions?
23 A. Opinion No. 4 -- I am sorry, opinion No. 8 ----
24 Q. If you refer to specific parts, I would like you to put it on
25 the ----
26 A. Yes, I would have to find them to do this. It is dated July 4th
27 of 1992. Right, clause 3 -- I do not have it on my monitor. I
1 do not know if you have it on yours. There we are. Yes, OK.
2 The referendum proposed in opinion No. 4 was held -- proposed,
3 yes, OK -- on 29th February/1 March a large majority of the
4 population voted in favour of the Republics independence. This
5 is a statement of July 4th. That is opinion No. 8. As for
6 No. 11 -- I am sorry, I have to find this.
7 Q. I think 11 was 54.
8 A. Yes. It is paragraph 6. OK. "In opinion No. 4 issued on
9 11 January, the Arbitration Commission came to the view that
10 'the will of the peoples ... could not be held to have been
11 fully established'. Since then, in a referendum held ... the
12 majority of the people have expressed themselves in favour of a
13 sovereign and independent Bosnia". I find that a significant
14 difference in wording, "the majority of the people", as opposed
15 to "the will of the peoples".
16 Q. Professor Hayden, could this difference in wording perhaps be
17 explained by the situation that existed at the time the opinion
18 No. 11 was delivered compared, for example, to the time when
19 opinion 4 was delivered?
20 A. I would suggest that that is probably so. Opinion 4 was written
21 in January of 1992 and the question was whether recognition
22 should be granted. Opinion 8 was written in January -- in
23 July. 11, also after that. Recognition had been granted in
24 April, so that recognition was a fait accompli. Badinter was
25 then confronted with a situation in which, if he were to
26 maintain his original criterion, the political decision to
27 recognise would have been mistaken, and I do not wish to impute
1 anything to Mr. Badinter but I do find the circumstances to be
3 Q. Professor Hayden, in your opinion and applying the Badinter
4 definition of a state as a community which consists of a
5 territory and a population subject to an organised political
6 authority, was by late 1991 Bosnia and Herzegovina empirically a
7 state or not?
8 A. By those criteria, certainly by early 1992 on the territory of
9 Bosnia and Herzegovina there were three communities, not one,
10 there was no single community. Organised political authority,
11 as defined by the Constitution of Bosnia and Herzegovina, had
12 clearly broken down. Thus I would say that by the Badinter
13 criteria Bosnia was not empirically a state after that time.
14 Q. Professor Hayden, your testimony seems to indicate that the
15 processes that took place throughout the former Yugoslavia and
16 brought about this dissolution, also took place within
17 Bosnia-Herzegovina and led similarly to the dissolution of
18 Bosnia and Herzegovina. Could you perhaps point out the main
19 points whether this really is what your statement is?
20 A. Yes, I think that is the essence of my statement and I might
21 simply provide a summation. Yugoslavia was created was created
22 after World War I and the basic premise of Yugoslavia was that
23 the South Slavic peoples were so closely related to each other
24 that they could co-existed, so intermingled that they had to
25 co-exist. Empirically both of these were true. However, that
26 is not what won in the free and fair elections of 1990. What
27 succeeded state socialism in Yugoslavia in 1990 was the separate
1 nationalisms of the Yugoslav peoples, the narodi, nationalisms
2 by which each people would get its own state; the narod, the
3 ethnic group in American terms, gets the state, the territory
4 and the government. This is what won in 1990, this is what
5 people voted for. Voting for this, this construction is
6 possible if not exactly admirable as I think Judge McDonald
7 suggested yesterday in a question to me.
8 In most of the Yugoslav Republics the problem is in
9 Bosnia and Herzegovina where there was no majority narod in whom
10 sovereignty could reside. Bosnia and Herzegovina could have
11 existed as a state under this political definition if the
12 population of Bosnia and Herzegovina chose to view themselves as
13 Bosnians. I think quite tragically in the free and fair
14 elections in 1990 they did not. They partitioned themselves
15 into Serbs, Croats, Muslims and others which, of course, the
16 possibility was always there, the presence of these groups was
17 always there.
18 Groups with strikingly, peoples in Yugoslav terms,
19 narods, with strikingly different views of what the future of
20 Bosnia and Herzegovina should be, with some of them certainly
21 the dominant Serbian political opinion, and quickly the dominant
22 Croatian political opinion in Bosnia and Herzegovina, was that,
23 as the Yugoslav Constitutions had said, it was the narod that
24 had the right to self-determination and that they had the right,
25 as Slovenia and Croatian had seceded from Yugoslavia, to secede
26 from Bosnia and Herzegovina and did not want to be included in
27 this state. The constitutional and political structures devised
1 to prevent this type of breakdown in Bosnia and Herzegovina, did
2 not function and the constitutional order of the state
3 dissolved, leaving these three communities.
4 I find this a situation in which civil war was
5 absolutely inevitable for one of two reasons. If Bosnia were to
6 be constituted as a state empirically within its borders in the
7 former Yugoslavia, it would have been opposed militarily on
8 those peoples who rejected it, or alternatively they had made
9 it, both the Serbs and the Croats, quite clear that they would
10 fight to avoid being included in the state that they rejected,
11 and that is indeed what happened.
12 MR. ORIE: I have no further questions, your Honour. I have a just
13 technical issue, but first if you want to put any additional
15 THE PRESIDING JUDGE: Well, it was just one question really.
16 I suppose it relates to history and you have said you are not a
17 historian. You have taken us from World War I, at the close of
18 World War I, when this state of Yugoslavia was created and then
19 you take us to free elections. Well, you talked a little bit
20 before that, 1989 the amendments to the Constitution in
21 Slovenia, then Croatia and then of course in 1990, in 1991 we
22 get to Bosnia and Herzegovina. Can you tell us what was the
23 role of Tito or the effect that Tito's reign, so to speak,
24 during that interim period after World War II, and how perhaps
25 Tito either as an individual or the way that the Constitutions
26 were structured was able to hold these divergent narods
1 A. One of the basic principles of Tito's Yugoslavia, as I think
2 I said when I read those extracts from the Slovenian
3 intellectuals, one of the basic principles was brotherhood and
4 unity, bratstvo-jedinstvo, that Slovenian intellectuals at the
5 time, by the late 80s, were rejecting, brotherhood as terror and
6 unity as homogenization and they rejected this. Tito and the
7 partisans were very aware of what the consequences of a
8 breakdown of Yugoslavia would be. World War II in Yugoslavia
9 had been, among other things, a quite ghastly civil war which in
10 terms of numbers of victims, absolute numbers of victims on a
11 smaller population base, was much worse than what we have seen
12 in Yugoslavia since 1991.
13 Tito and the partisans having thought that, and this
14 was part of it, it was a war against occupiers but there were
15 some ghastly civil wars and what they interpreted as a communist
16 revolution all going on simultaneously. I would say that we
17 have not seen anything in Bosnia since 1991 that we did not see
18 in Bosnia between 1941 and 1945. Tito and company were aware of
19 this and this is why they set up a federal state. Their idea
20 was to give maximum autonomy to these nations so that none would
21 feel constrained. What happened was that from the first
22 Constitution of 1945 until the last Constitution in 1974, and
23 there was also effectively a new Constitution in '54, there was
24 one in '63, the constitutional structures became so loose that
25 it became a de facto confederation which then Slovenia and
26 Croatia used to bring down the entire structure.
27 I might address it in another way. The problems of
1 Bosnia and Herzegovina were certainly not new to the 1990s. As
2 I said, you a had civil war in the 1940s. People in Bosnia, if
3 I can use Bosnians, Bosanci as opposed to Bosnjaci, had lived
4 together for many centuries, but the centuries have been
5 punctuated by periods of violence and these have tended to occur
6 after the larger state that has encompassed Bosnia-Herzegovina
7 has collapsed or a state authority has been withdrawn. There
8 were periods when Bosnia was part of the Ottoman empire until
9 1878. When the Ottoman empire withdrew there was a great deal
10 of violence and many Muslims left for Turkey with the Otomans.
11 When Austro-Hungarian empire collapsed at then end of World
12 War I there was a great deal of ethnic violence. When the first
13 Yugoslavia collapsed in 1941 there was a great deal of ethnic
14 violence, and when the second Yugoslavia collapsed in 1991/1992
15 the division of the population was something that had certainly
16 occurred before and the results were something that had
17 certainly occurred before. There is a curious sense in which it
18 was the fear of all this that, in effect, forced the population
19 of Bosnia and Herzegovina to partition themselves looking for
20 safety in the numbers of their fellow narod and, thus, bringing
21 about the destruction of the common state.
22 Q. So that really it was the force or was it the force of Tito's
23 personality that was able to hold the republics together, even
24 though by their Constitutions they were given significant or a
25 modicum, I do not know whether it is significant, but some
26 independence and freedom, but the force of his personality
27 permitted the republics to stay together, is that so or not
1 so ----
2 A. In a sense ----
3 Q. --- or is that an overstatement?
4 A. I am sorry. What permitted the republics to stay together was
5 the overarching structure of the communist party of Yugoslavia,
6 because you might have viewed the separate republics as being
7 almost administrative in character because political decisions
8 were made by the communist party of Yugoslavia. Tito could hold
9 this together. A part of the story of the disintegration of
10 communist Yugoslavia was also the disintegration of the League
11 of Communists of Yugoslavia into the Leagues of Communists of
12 each of the separate republics. This does not sound
13 unfamiliar. In the United States there is democratic party in
14 California and there is a Democratic party in New York and then
15 there is a democratic party of the United States of America, but
16 this structure was then seized by the Republican leaderships to
17 destroy the overarching federal party. At the same time that
18 the Slovenes were proclaiming the supremacy of the Republican
19 Constitution to the Federal Constitution, they were also
20 proclaiming the supremacy of the Republican party organisations
21 to those of the federal party.
22 Tito certainly did not permit this to happen.
23 Something similar was on the verge of happening in 1971 and
24 Tito, largely through his personal authority, crushed it. The
25 structures that Tito left behind to deal with the potential
26 divisions of Yugoslavia, certainly were not adequate to the
1 I can also say that throughout the 80s, which was
2 where I started my testimony, there were people in Yugoslavia,
3 very thoughtful people, who were aware of the inadequacies of
4 the Tito structures, beginning with economics of course but then
5 going through the political structures, and wished to revise
6 them but they were defeated by the separate national elites in
7 the separate republics.
8 Q. You said in 1910 that there were elections that really were
9 divided according to ethnic lines. Is that not so? So, as
10 early as then people were voting according to narods, their
12 A. When the choice was given to vote more or less freely, then that
13 is what they chose.
14 Q. Under Tito, under communism, that was kind of just swept under a
15 rug or at least contained?
16 A. Well, elections were hardly free or fair in Tito's Yugoslavia.
17 When I first went there in the early 80s one of the jokes people
18 told me was that, "We don't have elections, we do have voting."
19 Q. So when that then disappeared and the former Yugoslavia had its
20 first try at democracy in how many years would that have been?
21 A. Well, actually the last elections had been in the 1920s because
22 of a dictatorship declared in 1929, so it was a long time. It
23 was virtually 60 years.
24 Q. So when they had their first chance at democracy they reverted
25 back to their ethnic differences, and superimposed really their
26 parties on these ethnic groups or on their ethnic groups,
27 I suppose, is that not so?
1 A. The parties that won were the ones were the parties were ethnic
2 parties. This is what won. Not all parties were ethnic
3 parties. As I said, in Bosnia particularly there was a party
4 headed by the Federal Prime Minister, Ante Markovic, a Croat
5 from Bosnia, who was trying desperately to hold Yugoslavia
6 together because he knew, as I can assure you everyone knew,
7 what the consequences would be. This was a non-ethnic party.
8 It was the League of the Reformists of Yugoslavia. It stood for
9 a civil society, a state of equal citizens. As I said, it got
10 about 6 per cent of the vote. That probably happened because
11 that election was in November and in the elections in Croatia in
12 May the Croatian Democratic Union had already won, had already
13 made perfectly clear its intention of seceding from Yugoslavia.
14 The Croatian Democratic Union that was active in Bosnia and
15 Herzegovina was and is controlled by the Croatian Democratic
16 Union in Zagreb. So that it already seemed as if the electorate
17 in Bosnia would fracture, that the chances of saving Yugoslavia
18 were non-existent.
19 Q. So the conflict then was caused by what would you say, the
20 clashing claims for nationalism?
21 A. In the formulation accepted -- and that is not just Yugoslavia
22 but more or less throughout central Europe -- that the state,
23 the territory and the government, belongs to the one nation. As
24 I say, the problem with Bosnia was that it did not have one
25 nation in the Yugoslav sense. It had three. Remember that it
26 was the nations of Yugoslavia that had united. It was the
27 nations of Yugoslavia that had the right to self-determination
1 according to the Constitution and to the way that Yugoslavs
2 thought about these things and the way that their political
3 parties were operating. This meant that if the population of
4 Bosnia and Herzegovina turned itself into peoples instead of a
5 people, that it would be very difficult to envision how Bosnia
6 and Herzegovina could remain, because overwhelmingly the
7 political desire of the Croats of Herzegovina, if not the Croats
8 of Bosnia and there was a division there, was to become part of
9 Croatia. They were adjacent to Croatia. They felt themselves
10 to be part of Croatia. This has in fact happened. De facto
11 western Herzegovina is incorporated into the economic,
12 political, communications systems of Croatia. It is de facto
13 Croatia. This was clear that this was going to happen and it
14 was also clear that the Serbs were losing interest in Bosnia and
15 Herzegovina as well.
16 In this type of structure being a member of a
17 minority, it is not simply a political minority. Our concepts
18 of democracy are based on the principle that the majority and
19 the minority can change. This is not the principle on which
20 these states are based. The principle on which these states are
21 based is that there is a permanent minority, and part of the
22 function of the state is to ensure the superiority, the
23 sovereignty of the majority. So that to be a member of a
24 minority in one of these states is to be outside of the body
25 sovereign, really in a sense outside of the body politic. This
26 was what won and everyone knew this.
27 Q. Each narod had a majority in one of the republics except the
2 A. That is correct, yes.
3 Q. So each Republic was free to express the sovereignty of its
4 people, of its narods?
5 A. Yes, that is correct.
6 Q. Of the narods with giving superiority to the majority narod in
7 Croatia, in Slovenia, in Serbia, but not in Bosnia-Herzegovina
8 because they had 36 per cent I guess -- was it 36 per cent?
9 A. The Muslims by 1991 were approximately 44 per cent of the
10 population of Bosnia-Herzegovina. You are absolutely correct.
11 Q. So everyone was kind of going their separate way, and there were
12 the narod, the Muslim narod in between with really no Republic
13 to claim?
14 A. The only Republic they could claim would be Bosnia and
15 Herzegovina in which they do not form a majority. For this
16 reason there is very good evidence that the population of Bosnia
17 and Herzegovina in the late 1980s was strongly in favour of the
18 continuation of Yugoslavia, because they could see what would
19 happen if Yugoslavia would disintegrate. There is good public
20 survey data on this. In fact, the law on political
21 organisations of Bosnia and Herzegovina prohibited the formation
22 of political parties on an ethnic or national religious basis,
23 in other words, a political party for a particular narod. There
24 was very strong political support for this law in Bosnia and
25 Herzegovina in 1990, but it was clear after the Croatian
26 elections in Croatia in 1990 the success of HDZ in Croatia and
27 the success of the HDZ among Croats in Bosnia and Herzegovina
1 that, you know, this picture was not going to work, that the
2 Croats were out, and the Serbs were as well, the Serbs and the
3 Croats actually had a very similar picture of Bosnia and
4 Herzegovina at this stage and they did not consider themselves
5 to be part of it. The Muslims actually took the same position
6 in regard to Bosnia and Herzegovina that the Serbs took in
7 regard to Yugoslavia. The Serbs, as a Slovenian politician said
8 yesterday, in the excerpt that I read yesterday, he said the
9 downfall of Yugoslavia would be a catastrophe for the Serbs and
10 they knew it, and the downfall of Bosnia would be a catastrophe
11 for the Muslims and they knew that. But it would also be a
12 catastrophe for everyone in Bosnia.
13 Q. We are still trying to sort things out I suppose. With the
14 secession of Croatia, with the secession of Slovenia, what
15 Bosnia Herzegovina was left with was to stay in the federation
16 with Serbia. The Muslim narod was already a minority and if
17 they stayed in with the Serbian and Montenegrin they would be a
18 significant minority, would they not?
19 A. That is right, and yet if they were to secede, then the other
20 groups could each feel themselves to be threatened as being in
21 the position of a minority. This was divined. You are quite
22 correct in starting it with the secession of Slovenia because
23 within the former Yugoslavia there was no majority narod. The
24 Serbs, like the Muslims in Bosnia, were about 45 per cent, maybe
25 even lower, overall because you had all of these other people.
26 The next largest group were the Croats, you have Muslims,
27 Slovenes, Muslims, Montenegrins, Macedonians. The others, and
1 Albanians actually, not one of the narodi, the narods of
2 Yugoslavia but 2 million Albanians in Serbia itself, so that
3 there was no majority. There was a whole set of institutional
4 structures that, well, we designed to promote consensus. As
5 I said, they were supposed to provide maximum autonomy and to
6 operate on consensus and they broke down, as similar mechanisms
7 broke down in Bosnia and Herzegovina, so the ones in Bosnia and
8 Herzegovina were patterned after federal ones.
9 Slovenia's secession, you see, upset the demographic
10 balance because there are suddenly 2 million less non-Serbs
11 which would then increase, it increases the percentage of every
12 population left, but it would increase the percentage of Serbs
13 to the point where they would start to be close to being a
14 majority nation which the others might then fear. Of course it
15 certainly upset all of the political and constitutional
16 structures of Federal Yugoslavia, just as those Bosnia later
17 required participation and consensus, for this reason that in
18 1989 when I saw the Slovenian amendments I was very worried
19 because it was clear that if Slovenia could reject the
20 competence of the federation then other republics could as well,
21 Slovenia's rejection of the only political mechanism left, the
22 only political mechanism for resolving disputes between
23 republics, left nothing other than the unilateral actions of the
25 JUDGE STEPHEN: There were two questions I would like to ask you,
26 Professor. The first one is we have heard a great deal from
27 individual witnesses about contentedly living together of
1 different ethnic groups, to the extent to which "my best friend
2 is a Serb" or "I am godfather to a Croat". Contrasted with that is
3 the fact that we find that in villages in the opstina Prijedor
4 they seem to be very clearly designated and understood by
5 everyone as being Muslim villages or Serbian villages or Croat
6 villages. How do you, if you do, reconcile those two views?
7 A. In two ways. The greatest interminglings of populations in the
8 former Yugoslavia were in cities and in the province of
9 Vojvodina in Serbia, and in parts of Croatia that actually
10 boarded Bosnia and Herzegovina areas called Banija and
11 Slavonia. I suppose I could point to them on a map if you
12 wished. In rural Bosnia and in some other rural parts of the
13 country the traditional pattern had been that you would have
14 Serb villages, Muslim villages, Croats villages, whatever, and
15 there was much less intermingling and yet as the 1980s
16 progressed, I mean as Yugoslavia became more prosperous, you
17 know, people had cars, people would go from villages, they would
18 go to Prijedor, they would go to Banja Luka, they would go to
19 Sarajevo, went to university. They did mingle and this form of
20 identity was not a primary form of identity to most people in
21 the 1980s.
22 I can also tell you that the nationalist movements did
23 not arise in the regions, the republics or the regions within
24 republics that were most mixed. They arose in the regions that
25 were most homogenous. Slovenia, for example, or in Croatia the
26 heartland of the HDZ was not in the mixed regions of Banija and
27 Slavonia, but was in the regions that were almost purely Croat.
1 Similarly, the Serbian Party in Croatia, the SDS, was based in
2 the part of Croatia, in Knin, that was and had been for
3 centuries virtually entirely Serb.
4 Nationalists in those homogenous areas more or less
5 drove the politics, and to the detriment of the people living
6 together, living intermingled, who in one sense could not
7 believe that these things could happen but on the other sense
8 could believe that these things could happen. If I may give an
9 example, in the Croatian elections in 1990 the people in the
10 mixed regions were Serbs and Croats were living together and
11 intermarrying did not vote overwhelmingly for the nationalist
12 parties. They voted for the Reformed Communists as a way to
13 avoid this, but their communities were torn apart. The war in
14 Croatia took place in the mixed areas and the mixture, you see,
15 was no longer politically imaginable.
16 As nationalism was, in a sense, brought to the mixed
17 regions, and quite often physically brought to the mixed
18 regions, that you might find that there would be violence
19 committed against people in one place, not by the people from
20 that place, at least not initially, but by people from outside,
21 which can then start sparks of conflict within the people who
22 had been living together.
23 Q. The other question I wanted to ask you was, you have spoken not
24 at all about Greater Serbia and Greater Croatia. To the extent
25 to which Serbs and Croats within Bosnia-Herzegovina were tending
26 towards separation from the other ethnic groups in Bosnia, was
27 that something that was part of the ambitions of Croatia and of
2 A. Your Honour, certainly there were (and are) people in the
3 elites, the ruling elites and the ruling parties of Croatia now,
4 and I think Serbia perhaps at an earlier stage, who did indeed
5 have this model. My difficulty had been that the matter as
6 I had seen it discussed and presented by Dr. Gow was that it
7 ignored the political activities of the people in Bosnia
8 themselves who did, indeed, exercise a political will in 1990
9 and did, indeed, vote and act in ways that could only bring on a
10 civil war, no matter what was going on really from outside.
11 Bosnia has existed as part of a single larger state,
12 but it is very hard for it to exist as an independent state on
13 its own because then the question is, whose state is it? I do
14 not know if I have answered your question satisfactorily; if
15 I have not, I will try again, if you wish.
16 JUDGE STEPHEN: No, thank you.
17 THE PRESIDING JUDGE: You say it could only but bring on civil war.
18 I hope this is not a lesson that democracy does not work,
19 because it seems to me that there are other ways to deal with an
20 election that may place you in the minority in a country than to
21 engage in violence. I mean, in the United States, we have often
22 elections where people will say: "I am not going to vote
23 because there is really no alternative. I am just going to
24 boycott this election". If they choose to boycott it, then they
25 get what they get, which is not much because you do not vote.
26 If the election turns out in such a way that they are then a
27 minority, it seems to me there should be a better answer than
1 civil war.
2 A. I agree with you, your Honour, very much so.
3 Q. I do not know that it was inevitable. There should be other
4 ways to deal with it.
5 A. May I try to put it in another way? I do not think it came out
6 in the recitation of my curriculum vitae, but I actually started
7 my professional career as a scholar of India.
8 Q. As a scholar in what?
9 A. Of India.
10 Q. Oh, India.
11 A. Yes.
12 Q. I thought you said "media"; if so ----
13 A. No, heaven forbid!
14 Q. --- that would open up a whole other line of questions before we
15 recess for lunch?
16 A. Not that, I am a consumer, but I did substantial research in
17 India and in many ways, you see, when I got to Yugoslavia after
18 10 years of dealing with India, Yugoslavia seemed easy. I mean,
19 there are 29 states in India and there were only six republics
20 in Yugoslavia. There were only two scripts in Yugoslavia.
21 There are 14 in India, religions, languages, etc.
22 India is the largest democracy in the world, and
23 I have seen it function, and no democracy is perfect and neither
24 is India's. It functions because the presupposition of India,
25 and consciously constructed by the people who brought India to
26 independence, was the principle that we are all Indians.
27 A similar principle was used to justify Yugoslavia.
1 Actually, similar formlations were used. Nehru said there was
2 an India because there was an Indian people because all of the
3 various peoples of India were more alike each other than they
4 were to anyone else on earth. A similar logic was used to
5 justify the creation of Yugoslavia.
6 As I said, the presupposition of Yugoslavia was that
7 these peoples were so similar that they could coexist and so
8 intermingled they had to. That did not succeed. What
9 succeeded, this nationalism was also based on the premise that
10 these people cannot, in fact, coexist, and when that succeeded
11 in regard to the breaking up of the former Yugoslavia, the logic
12 of the equation is, if there cannot be a common state of Serbs,
13 Croats and others called Yugoslavia, how then can there be a
14 common state of Serbs, Croats and others called Bosnia and
15 Herzegovina, because the Serbs and Croats between them did
16 outnumber the Muslims?
17 So, I am not saying that democracy does not work in
18 any sense. I am saying that in the situation that was produced
19 by this very brief stab at democracy at the end of communism in
20 1990, the political constructions that won on all sides led to a
21 situation where a civil war was inevitable in Bosnia.
22 THE PRESIDING JUDGE: We will stand in recess.
23 MR. ORIE: Your Honour, I did not offer formally all the Exhibits
24 that I have tendered today as evidence. I would like to do so.
25 THE PRESIDING JUDGE: Did you not? Let us identify them by number.
26 Are you saying if you did not?
27 MR. ORIE: If I did not -- no.
1 THE PRESIDING JUDGE: OK. Let us check over the lunch recess. Then
2 I will ask if there is any objection and then we will admit them
3 without objection. I think they are all in but we will see.
4 We will stand in recess until 2.30.
5 (1.14 p.m.)
6 (Luncheon Adjournment)
7 (2.30 p.m.)
8 THE PRESIDING JUDGE: Mr. Orie, have you checked for your Exhibits
9 that you offered?
10 MR. ORIE: Your Honour, I think it was a mere form of question.
11 I was told by those who are more familiar with Anglo American
12 systems that I should tender the documents and then offer them
13 as evidence. The only thing I wanted to do is to say they were
14 offered as evidence. I think there is no misunderstanding as to
15 the Exhibits tendered and now and then offered in evidence.
16 THE PRESIDING JUDGE: We are flexible. If I say that they are
17 admitted, that means whatever, either they were offered,
18 tendered, but they are in. I want to make sure that all of them
19 have been admitted, and I guess they have, have they not?
20 MR. ORIE: Yes.
21 THE PRESIDING JUDGE: OK. Very good. Cross-examination,
22 Mr. Niemann?
23 MR. NIEMANN: Thank you, your Honour.
24 Cross-examined by MR. NIEMANN
25 Q. Professor Hayden, you said in your evidence that you had spent
26 quite a lot of time in Yugoslavia; indeed, I think you said you
27 lived in Yugoslavia for a period of time. Is there any one
1 particular Republic that you spent most of your time in?
2 A. Yes, I spent most of my time in Belgrade.
3 Q. I think you also said in your introductory part that for a
4 period of time -- I am sorry, I withdraw that -- you actually
5 worked for Milan Panic in the London conference; is that right?
6 A. My five day diplomatic career!
7 Q. Was that for the Federal Republic of Yugoslavia?
8 A. That is right. Mr. Panic was then Prime Minister of the Federal
10 Q. Can you tell us what the relationship is between the Federal
11 Republic of Yugoslavia and Slobodan Milosevic in a de facto
13 A. Well, in a constitutional sense, there is no relationship
14 because Mr. Milosevic is President of Serbia which is one of the
15 components of the Federal Republic of Yugoslavia, and the
16 President of the Federal Republic of Yugoslavia is Mr. Zoran
17 Lilic. In a de facto sense, it gets more difficult to answer,
19 Q. Well, take your time.
20 A. Well, Mr. Milosevic has certainly been involved in diplomatic
21 negotiations, such as the Dayton peace negotiations over Bosnia
22 in regard to Bosnia and Herzegovina. I am not sure in what
23 capacity. I would imagine he was there in his capacity as
24 President of Serbia, but he was certainly involved in the
26 Q. It is true to say, is it not, that the FRY is, in a sense, a
27 vehicle for Slobodan Milosevic?
1 A. There are many who would say that.
2 Q. You would say that?
3 A. I might have to ponder it. I mean, certainly it is a much more
4 complex situation.
5 Q. Have you ever said it yourself, though, in any of your
7 A. I do not know, I might have. I have written a lot in the last
8 six years.
9 Q. But I am asking you now whether you would agree with that as a
11 A. Certainly Mr. Milosevic is very central to the operations of
12 Serbia and the SFRY, yes.
13 Q. If I quote from an article which I believe you wrote called "The
14 Constitutional Nationalism in the former Yugoslav
15 Republics" ----
16 A. The Slavic Review 1992.
17 Q. Yes, I think on page 660 of that you say in the last paragraph:
18 "The Constitution of the Federal Republic of Yugoslavia in
19 1992, like the 1990 Serbian Constitution, must be viewed
20 primarily as a vehicle for maintaining the personal power of
21 Slobodan Milosevic"?
22 A. Yes, I wrote it in that way. I think the reason for that is
23 that the constitutional power of the federation is low under the
24 1990 Constitution, and that the Presidents of the Republics,
25 including Mr. Milosevic, of course, are involved in some of the
26 federal institutions, such as the federal Defence Council.
27 Q. Professor, would you see your main field as being that of a
1 constitutional lawyer or that of an anthropologist?
2 A. Well, this may surprise you actually, but I combined the two.
3 Perhaps I should explain why I do so. As Yugoslavia entered its
4 period of crisis which, as I said, began as economic and then
5 became political and then became constitutional, there were a
6 number of proposals for constitutional revisions, and notably
7 from Slovenia and Croatia. When I analysed them, it became
8 clear to me when I did a legal constitutional analysis of them
9 they were proposals that were designed to ensure that there
10 would be no workable state.
11 Now, to a lawyer, of course, the purpose of a
12 Constitution is to set up a workable state and then to put some
13 control upon it. These proposals were, clearly, designed to
14 ensure that there would be no workable state. Now, I found that
15 to be very interesting. To explain it, I then had to go to my
16 identity as an anthropologist and look into the cultural and
17 social and political concepts that were driving this entire
18 system, particularly this concept of narod, of nation, which is
19 different from that normally used by Americans particularly.
20 Q. When you spoke of that in your evidence, you also made reference
21 in those constitutional provisions that you took us to -- you
22 took us to numerous of them -- there was a broad definition,
23 there was the definition of Serbia in the Serbian context or
24 Croatia in the Croatian context, and then went on and said
25 nations, nationalities; is it not possible that the definition
26 intends to encompass all?
27 A. No, I think it is very clear, particularly in the context in
1 which these are presented, the political context, that the
2 sovereign is the majority nation, ethnically defined. That is
3 whose state it is. That is how I am looking at
4 sovereignty. I suppose I was looking at it that way in part
5 because I was used to socialist constitutions and then socialist
6 constitutions clearly, the state is there not for the benefit of
7 the entire population, but for only part of the population which
8 is the working class, the working people. Conceptually, the
9 structures of the post socialist constitutions are very, very
10 similar. They also both contain the various rhetoric on, you
11 know, human rights and freedoms and the like.
12 Q. But you would agree with me, would you not, that the working
13 class would itself, at least in part, encompass the
14 nationalities as well?
15 A. Oh, quite. The working class is a category that would cross cut
16 all of the nations of Yugoslavia. It is one of the reasons why,
17 you know, theoretically, Marx put it forth that way in
18 contradiction to Herder and Hegel and the Romantics. It is set
19 up this way in the Yugoslav Constitutions as well, and they
20 really are through 1974 the Constitutions are there to advance
21 the interests of the working class. But I might say that when
22 that category that could include everyone was knocked out of the
23 constitutions with the fall of socialism, what was left of the
24 dual forms of sovereignty was actually a set of categories that
25 were divisive, that divided the population, and the category
26 that could unite the population was then taken out.
27 Q. But if you looked at everyone in the concept of a national,
1 being a member of a nation, and those definitions which
2 incorporated specifically and enumerated nations as well as all
3 others, does that not encompass the lot?
4 A. It is a question of priorities and ordering. I mean, one could
5 turn it around: why was it so very important for the incoming
6 Croatian government elected in May 1990 already in July of 1990
7 to have immediately passed an Amendment that put Serbs into the
8 category of these others if they were all the same? It was
9 clearly important to the Croatian nationalist government to do
10 it. It was very clearly important to the Serbs that it had been
11 done. If they viewed it all as somehow a matter of essentially
12 alphabetical ordering or something, they would -- none of them
13 would have acted that way.
14 Q. True it is that there may be a political motivation for doing
15 this, but surely you must agree with me that the definitions
16 themselves lend themselves to an interpretation which would
17 purport to cover all?
18 A. As I said, if we could envision a situation in which the US
19 Constitution were amended to read, you know, "We, the white
20 protestant people and others of the United States", the very
21 fact that the amendment would be undertaken would be meaningful,
22 and that political fact would also be meaningful in interpreting
23 the wording of the constitution and the clauses that followed
25 Q. Tell us, Dr. Hayden, what was the significance of the terms
26 narod, nationalism, nation, under the Communist Tito's
1 A. The significance, it is clear that the term is included because
2 it is one of the forms of identity of the peoples of
3 Yugoslavia. It is also clear the Yugoslav constitutional
4 distinction that Professor Gow discussed (and I have also tried
5 to discuss) between the constituent nations, constituent narods,
6 the state forming nations (as Dr. Gow described them), and the
7 nationalities of those who have a republic of their own or a
8 state of their own people outside of Yugoslavia. It was
9 otherwise not of such importance.
10 As I said, these were socialist constitutions and the
11 primary goal of the constitutions was for them to be socialist
12 constitutions. You did have the equal protection clauses of the
13 federal Constitution that I believe I pointed out. One of the
14 ways that I interpret the Slovenian Amendments in 1989, 43(C),
15 and the autochthonous minorities and the like, it was kind of
16 breaking the rules that had governed Yugoslavia until then. I
17 mean, yes, the narodi, the nations, were in the Constitution,
18 but everybody was guaranteed the right to equality and it was
19 more or less treated this way, and suddenly distinctions were
20 being made which seemed threatening.
21 Q. Indeed, is it not true that both legally and politically in
22 Tito's communist Yugoslavia nationalism as such was, in fact,
23 quite brutally suppressed?
24 A. Well, nationalism in the sense of the political claim that each
25 of the nations should have its own state, this was certainly
26 suppressed and it was suppressed at the time of, in 1971, for
27 example, at the time of the so-called mass movement, Maspok, in
1 Croatia. It was suppressed in other ways as well. Open
2 espousals of national identity could get one into trouble. If
3 one sang certain songs from World War II, for example, that were
4 interpreted as being the songs of the Serb nationalist or the
5 Croat nationalist, this could get you -- this could, indeed, get
6 you into trouble of various degrees of seriousness in the former
8 Q. So, in the light of that, it would be quite odd, would it not,
9 to give preeminence to nationalities in the Constitutions
11 A. They have to be included. There is actually a great deal of
12 work being done on this in East European studies. Clearly,
13 nationalism did not vanish in Eastern Europe and even within
14 East European communist countries. One might look at Romanija,
15 for example, where the Romanijan Communist Party was also quite
16 frequently a Romanijan nationalist party in regard to the
17 Hungarian minority. Within Yugoslavia, national identity was
18 not meant to be primary, and yet there were reasons of practical
19 politics why it had to be included in the Constitution. But, as
20 I say, it was not primary. These were primarily socialist
22 Q. Indeed, the word "national" appears in the description of the
23 Yugoslav Army, does it not?
24 A. Yes, Yugoslovenska Narodna Armija, yes.
25 Q. What does it mean?
26 A. It is usually translated as "Yugoslav People's Army".
27 Q. Which peoples?
1 A. You could see the peoples of Yugoslavia and you could sometimes
2 find it in that context. However, when it is compared (as it
3 usually is in the Constitutions) with nationalities, the peoples
4 and narodi, narodnosti, if you want, the nations and
5 nationalities and the working class and all working people, it
6 is very clear what was meant. Of course, by the time you get to
7 Bosnia, then it is specified, you see, and it says that the
8 narodi, peoples of Bosnia -- and the constitutions are wonderful
9 because then they keep mixing the order, the peoples of Bosnia,
10 the Muslims Serbs and Croats, and in the next article it will be
11 the peoples of narodi, nations, the Serbs, Muslims and Croats,
12 and they keep mixing up the order, but in the ordinary context
13 one knew what the meaning was.
14 Q. Who carried sovereignty, as it were, under the federal
15 Constitution of the SFRY?
16 A. Well, the federal Constitution was -- we were looking at some of
17 the formulations yesterday afternoon -- the people, the nations
18 and nationalities, narodi, narodnosti, of Yugoslavia, the
19 working class and all working people. This is the formulation
20 that one finds. Frequently, they are the ones, they are the
21 actors. I suppose I could go back into my copy and point out
22 some of the articles that I pointed out yesterday, and then some
23 of the ones that I did not point out yesterday because there are
24 so many in there.
25 Q. But the federal Constitution is made up of a combination of the
26 Republics, is it not?
27 A. Right. You have a combination of Republics, yes.
1 Q. Do they not go to make up the sovereignty of the federation?
2 A. Well, what is the federation there for? I mean, who does it
3 serve? Who does Yugoslavia serve? It serves the peoples of
4 Yugoslavia, the narodi, narodnosti. It serves the working class
5 and all working people who are the ones who are empowered to
6 act. In some places, they realised their rights through the
7 socialist republics. In other places, they realised their
8 rights and obligations through the federation. There is a great
9 deal of formulations along these lines there.
10 Q. Indeed, it is fair to say, is it not, that there is good
11 political motive to create an aura of ambiguity about this issue
12 in terms of nationalities, who has sovereignty, all of the
13 people, the working class -- I am talking about the communist
14 era -- it suited the regime, did it not, to not be too specific
15 about any of these matters?
16 A. Well, in so far as these were socialist Constitutions and what
17 was really supposed to matter was this socialist
18 self-management, which is what the 1974 Constitution is really
19 all about, yes, these are secondary issues that need not be
20 taken too seriously. I actually became convinced with the start
21 of Slovenian amendment crisis in 1989 that there were provisions
22 of that Constitution that nobody had read. In a practical
23 sense, they were not particularly relevant when the important
24 decisions were being taken by the Party and so much of the
25 Constitution was administrative.
26 I might say that when the Party collapsed and the
27 country was left to rely on the constitutional structures, the
1 constitutional structures somehow seemed to be less than
2 adequate to the task.
3 Q. Just finally dealing with the situation as it evolved in
4 Slovenia and Croatia after the passing of Tito, the wordings of
5 the Constitution were such that they still had this broad ambit,
6 did they not, except they had the removal of the term "working
8 A. I am sorry, I did not hear -- "still had this broad" what?
9 Q. Still had the broad ambit of description.
10 A. Oh, ambit. Well, which part of it? I mean, when you remove the
11 "working class", as I have just said, you are left with ----
12 Q. I am dealing specifically with the state forming peoples.
13 A. Yes, you are left with the nations and nationalities which, as
14 I say, is implicitly divisive.
15 Q. His Honour Judge Stephen asked you a question concerning the
16 ability of people to move from one nationality to another
17 nationality. Although you made reference to a movement to
18 Yugoslav, you intimated that it was somewhat difficult to move
19 into any other nationality, was that correct? Have I summarised
20 what you said correctly?
21 A. Well, if we are sure that we are speaking about the same thing,
22 as I interpreted Judge Stephen's question, it had to do with
23 one's identity as, for example, a Muslim or a Serb or a Croat.
24 If we are talking about that, I just want to clarify that you
25 are not talking about moving, for example, from within one
26 Republic to another Republic. Is that the thrust of your
27 question or is it the identity?
1 Q. No, it is the identity.
2 A. It is the identity. Well, as I said, there are, as I said to
3 Judge Stephen, there are certainly factors such as personal
4 names that might make it difficult to do this. There might be
5 other reasons of custom or address for which it might be
6 difficult to do this. As a practical matter, it is hard to say
7 how many people changed their enunciation of their identities.
8 The Yugoslav censuses permitted this to be a matter of free
9 choice, and there are various books written on what the patterns
10 of self-identification were. But it did not usually take place,
11 except involving, perhaps, people who were themselves involved
12 in with a product of mixed marriages, in other words, if one of
13 your parents is a Serb and another is a Croat, you could declare
14 yourself (and people sometimes did) on one occasion as a Serb,
15 on another occasion as a Croat, possibly as a Yugoslav. I do
16 not know if I am getting at your question actually.
17 Q. We are getting there. Perhaps I might clarify it by asking
18 another question. Is there not indeed a policy that was applied
19 during World War II to, in fact, convert a third, in a Croatian
20 sense, to Catholicism?
21 A. Oh, if you are talking about the policy, the enunciated policy
22 of the Ustasha government of Croatia of 1941 to 1945, that is
23 how it has been reported as the Serbian problem of Croatia would
24 be resolved by killing a third, expelling a third and converting
25 a third, converting a third to Catholicism, and there were
26 forced conversions that took place.
27 Now, one has to remember that the primary
1 distinguishing feature of Serbs and Croats is religion, and it
2 is Orthodox Christians among the Serbs and Catholics among the
3 Croats. That has not always been the most important
4 characteristic, and there is a great deal of history on this
5 that I do not, perhaps, need to go into. Certainly, the forced
6 conversions were, in a sense, inconsistent, certainly
7 inconsistent with the type of ideology enunciated at that exact
8 same time by the Nazi Party in Germany because one would think
9 that conversion would not work.
10 However, in the minds of the Ustasha it would work.
11 This is not unprecedented only in the Balkans or in this part of
12 the world. At the time of the partition of India in 1947, there
13 were forcible conversions of Hindus to Islam. It is harder to
14 be converted to Hinduism.
15 Q. But the consequence of that is, is it not, that presumably in
16 the minds of some Croatians, maybe not all, it would be quite
17 acceptable for people to present themselves as Catholics if they
18 were converted from Serbs, for example, the Serbian Orthodox
20 A. Well, one could certainly present oneself as a Catholic,
21 particularly if one is a believer in Catholic, yes. I mean,
22 what happens to the people who were forcibly converted?
23 I cannot honestly tell you what the answer to that is. Those
24 who adopted Catholicism and practised Catholicism could
25 certainly consider themselves to be Catholics, and one does
26 occasionally run into people who identify, on the one hand, as
27 Serbs and as Catholics, although those are almost antithetical
2 Q. In relation to the position in Serbia at the period after Tito's
3 death, did the Serbian Socialist Party and the League of
4 Communists in Montenegro, effectively, transform themselves into
5 nationalist parties?
6 A. Yes. Yes.
7 Q. There was a significant fear, was there not, by the Serbs in
8 Bosnia and Herzegovina which arose as a consequence of -- I am
9 talking about 1991 and onwards -- what had happened during the
10 period of World War II?
11 A. Yes, there certainly was. Part of the breakdown of Yugoslav
12 socialism involved, well, in a sense, resurrecting the bodies
13 that had been buried since 1945. As I said earlier this
14 morning, we have not seen anything in Yugoslavia since 1991, you
15 know, 1991 to 95, that we did not see from 41 to 45, and much of
16 that, the specifics of that, had been suppressed and the various
17 nationalist parties in Slovenia, in Croatia, in Bosnia, brought
18 it back. People had not forgotten in fact. They had simply not
19 pursued this. You had the uncovering of mass graves, for
20 example, in Slovenia, in Croatia, in Bosnia and Herzegovina. It
21 is not that people did not know that they were there. I mean,
22 it turns out if you got to that region people did know, but part
23 of living together after 1945 was never to pretend that it had
24 not taken place, never to pretend that. Everyone did know that
25 it had taken place. It was part of the official historiography
26 of Tito's Yugoslavia, that this had been a ghastly period, and
27 hence brotherhood and unity was necessary. Yet, at the same
1 time the individual actions themselves were often unmemorialised
2 and people were willing to live with this for quite a long time
3 as part of living together and not dwelling upon what had
4 happened in the old Yugoslavia or in 41 to 45.
5 Q. This, though, was assisted, was it not, by a propaganda campaign
6 entered into by the Serbian government?
7 A. Among others, yes, indeed. The Slovenes, the Croats, the
8 Slovenian government, the Croatian government, the Serbian
9 government, were all engaged in publicising the uncovering, the
10 recovery of these mass graves. They were turned into political
11 occasions of enormous importance in Slovenia and in Croatia
12 where the aim was to uncover the bodies of people who had been
13 massacred by the partisans. Among Serbs in Croatia, certainly
14 the uncovery, recovery, of mass graves and the like was
15 publicised as it had been in Croatia and Slovenia, although
16 these were Serbs who were put into the graves by, as the
17 reporting was, by the Croats or the Muslims.
18 Q. This was not just a question of publicising the point. It was,
19 in fact, a propaganda campaign by the Serbs?
20 A. Yes. One of several, just as there were propaganda campaigns by
21 the Slovenes and the Croats.
22 Q. But what was the nature of the propaganda campaign of the
23 Slovenes and the Croats in relation to genocide or the killing
24 of the people?
25 A. What the Slovenes and the Croats were doing in, I believe it
26 was, the summer of 1990, and I have the volumes and I have the
27 commemorative volumes in my library in Pittsburg, the volumes
1 that they put out, you know, with the pictures of the bodies and
2 the like, and the point of it was to de-legitimate the communist
3 rule of Yugoslavia. Part of the methodology of Yugoslavia, of
4 course, had been the partisans were the good guys and evidence
5 of partisan atrocities had been covered up. I can tell you that
6 an actual census of victims of World War II was conducted in
7 Yugoslavia in the early 1960s, although it was never published
8 and, in fact, is literally impossible to get hold of. One of
9 the problems of the people conducting it was they did not know
10 what to do with the victims of the partisans.
11 So, the Croats and the Slovenes were using these to
12 throw into question the legitimacy of Yugoslavia. I just might
13 say, I remember distinctly -- the implication was that "We
14 cannot live together because we were involved in killing each
15 other" -- I remember distinctly a political cartoon in the
16 Croatian news weekly, Danas, when it was still independent, more
17 or less, and it showed several men in, I believe, business suits
18 in a room lined with skulls and bones and one saying to the
19 other: "Is this really the appropriate place to discuss
20 constitutional changes?"
21 Q. But was there not a revisionist propaganda campaign being
22 carried out ----
23 A. Yes.
24 Q. --- in Croatia which is the opposite of what you are saying now,
25 is it not?
26 A. No, it is not.
27 Q. Was there not a denial?
1 A. I am sorry?
2 Q. Was there not a denial being made by Croatia that these things
3 did not happen?
4 A. I am sorry -- which things are we talking about?
5 Q. These mass killings.
6 A. No, the new Croatian regime was publicising the killings of
7 Croats that had taken place by the partisans. They are
8 publicising this, as are the Slovenes. Now, this is
9 revisionist. I mean, this is clearly revisionist in regard to
10 the historiography to the time of Yugoslavia, which was that the
11 partisans were the good guys and, I mean, they may have executed
12 people in the name of the people, but that they had engaged in
13 mass slaughter was not part of the accepted his historiography
14 and was not openly written about within Yugoslavia. You could
15 find it elsewhere, including some extraordinary descriptions in
16 the book by Milovan Djilas, "Wartime", but that was published
17 outside of Yugoslavia. So that was a revisionist campaign -- is
18 that what you are referring to?
19 Q. I am directly referring to an article that you have written.
20 A. I gathered that, but I was not sure what your reference was.
21 Q. "Balancing Discussions of Jasenovac and the Manipulation of
22 History", and on page 212 of that you say: "Part of this
23 propaganda war centred on revisionist histories of massacres
24 during and just after World War II, with Croat writers denying
25 the genocidal activities of the NDH, and some Serb intellectuals
26 giving wildly inflated figures of the dead".
27 A. OK, I am sorry. I was referring to different figures. Part of
1 the accepted historiography of World War II was that the
2 Ustasha, rulers of Croatia, the state that was -- the
3 independent state of Croatia that existed at the time of the
4 German control of Yugoslavia, that it had committed genocide
5 against Serbs, and Serbs, Jews, gypsies and others of the usual
6 formulations in Croatia.
7 Now, whether this was so or not became an issue with
8 Croatian historians saying that this really was not -- that this
9 really did not happen. It tended to focus around the works of
10 Dr. Tudjman who was now President of Croatia and who had
11 published a book in 1989 called "Bespuca ... The Wastelands of
12 Historical Reality". The main thrust of the book was that,
13 well, you know, there were certainly killings there, but the
14 numbers are wildly inflated and, by the way, the death camp at
15 Jasenovac that Serbs complain about was actually being run by
16 Jews and, you know, the things that happened there were
17 happening to Croats.
18 Now, while Dr. Tudjman is attempting to minimise the
19 numbers killed, there are Serbian historians who are trying to
20 maximise the numbers killed, and who are saying that a million
21 Serbs were killed at Jasenovac alone which is ridiculous. I
22 mean, it clearly is ridiculous. There were serious attempts to
23 estimate the casualties in Yugoslavia during World War II and
24 actually consist -- quite close figures were reached
25 independently by a Serb author and by a Croat author in the mid
26 1980s and they were about 1 million, and they broke down
27 reasonably comparably as well in terms of who was what. But,
1 what drove the discussion was the politics of, on the one hand,
2 Croatian historians saying that, you know, this had all been
3 overblown and, on the other hand, Serbs saying it had all been
4 underplayed, and serious scholarly work tended to get lost in
5 the cross-fire.
6 THE PRESIDING JUDGE: Did you say that, I do not know how to
7 pronounce it ----
8 A. Jasenovac.
9 Q. J-A-N-E-S-O-V-A-C?
10 A. Close. J-A-S-E-N-O-V-A-C.
11 Q. That was located in the Prijedor region, was it not?
12 A. Well, it was actually located across the river in Croatia, Sana
14 Q. But north west, I guess?
15 A. Yes, I would have to look at the map to know exactly where it
16 is, but, yes, it is close by.
17 Q. Not too far?
18 A. Yes, it is reasonably close by.
19 Q. You said that camp was run by Jews?
20 A. I did not say that, no. I say that President Tudjman suggests
21 that in a portion of the 1990 edition of his book which,
22 I understand, has since been removed.
23 Q. Was that the thesis he wrote at the university or what was it?
24 A. No, it was a book that he wrote, that Dr. Tudjman is now in his
25 70s, this is a book that he wrote in the late 1980s. It is a
26 very interesting read, I can assure you.
27 MR. NIEMANN: But, in any event, the wildly inflated figures given of
1 the number of dead primarily suited the Serbian interests who
2 may have wanted to stir up nationalistic feelings among the
3 population; is that not right?
4 A. Sure, just as the raising the number of -- in the first place
5 bringing in the category of Croats killed by the partisans and
6 then raising that as high as possible serves an interest
7 of Croatian leaders at the time. Yes, I wrote a quite
8 substantial article about all of this called "Recounting the
9 Dead", which I do not know if you have, but I will send you one.
10 Q. Thank you. The type of constitutional nationalism that you
11 spoke of in the 1990s, was it a similar type of Constitutional
12 nationalism that operated in Serbia?
13 A. I am sorry?
14 Q. Was it a similar type of constitutional nationalism that
15 operated in Serbia as opposed to when compared to the other
16 republics of Croatia and Slovenia?
17 A. Constitutionally, it is harder to find in Serbia, although one
18 certainly does find it in the preamble to the Serbian
19 Constitution, which I cite in what we exhibited, the article
20 that is supposedly on the streets now, and I believe I cited in
21 the articles that you are looking at. Certainly, one found it
22 most openly expressed in the Croatian Constitution. Serbia,
23 however, Serbian politics seemed less tightly bound to
24 constitutional norms than, perhaps, in other places.
25 Q. Why is that?
26 A. The Serbian political structure in many ways did not change
27 overly from the socialist period. It is many of the same
2 Q. Moving on to Bosnia and Herzegovina itself, you say in an
3 article that is entitled "Nationalism in former Yugoslavia"?
4 A. It is entitled?
5 Q. I apologise, "Constitutional Nationalism" ----
6 A. Right.
7 Q. --- "in the former Yugoslav Republics". You say: "Until late
8 1992 Constitutions in Bosnia and Herzegovina did not reflect
9 constitutional nationalism", what do you mean by that?
10 A. Well, my formulation of constitutional nationalism, which I have
11 forgotten exactly the page number in there, but I do define it,
12 it is a constitutional and legal structure that privileges one
13 narod, nation, ethnically defined over others in the state.
14 I say that you do not find this in Bosnia and Herzegovina
15 because you do not have a single majority narod who can be in
16 that privileged position. Instead, you have got the three
17 narodi and then the nationalities of Bosnia and Herzegovina, so
18 that it was not possible to devise a constitutional structure
19 that would do that.
20 Q. But why did you say until late 1992?
21 A. I am not sure. When did I actually publish that article? The
22 date of is 1992. Did I stop then or did something happen that
23 I am trying to remember five, four years later?
24 Q. It appears to be published in the winter of 1992.
25 A. Right. Well, there is a little -- I am sure it came out in 1993
26 with a cover date of 1992. If that is what you are referring
27 to, I would, presumably, have stopped there because that, you
1 know, is when I had to get it back to the publisher.
2 Q. I see. So you are not suggesting that there was some sort of
3 change in late 1992?
4 A. I do not remember -- certainly not for the Bosnian Constitution
5 in 1992. I am not suggesting that. I think I am just stopping.
6 Q. In the same article, you go on to say: "While the leaders of
7 the group agreed to share power at the level of the opstina, the
8 victorious party of the majority ethnic group took absolute
9 control over local government purging all not of their nation",
10 this is referring specifically to Bosnia-Herzegovina?
11 A. Right.
12 Q. Are you saying this is a general thing or are you saying there
13 are exceptions to it?
14 A. I imagine there probably are exceptions to it, but I was writing
15 on the basis of the information available to me at the time.
16 However, I might add that I believe it is the 1994 Country
17 Reports of the US State Department on Bosnia-Herzegovina said
18 that in the areas controlled by the SDA it is absolutely one
19 Party rule, and in the areas controlled by the HDZ it is
20 absolutely one Party rule, and thus monoethnic rule. The State
21 Department thinks highly of those folks. I mean, those are
22 friends. So I think it is a pattern that by the reports
23 apparent to me in 1992, from sources that seemed credible to me,
24 seemed true, and it certainly rings true with what has happened
25 since then.
26 Q. But you would not be surprised to hear that there was, at least
27 that we know of, one exception to that?
1 A. No, I would not be surprised at an exception, no.
2 Q. In the same article you speak of democracy being still birth
3 especially and you say specifically in Serbia as a consequence
4 of this nationalism. Do you agree with that?
5 A. The project I am working on now, as I said at the start of my
6 testimony, is actually called "Potemkin Democracies, Serbia and
7 Croatia since 1990", so yes.
8 Q. I raised with you earlier the question of propaganda and
9 particularly propaganda in Serbia. It is true, is it not, that
10 Milosevic in Serbia took a particular type control over media?
11 A. Milosevic in Serbia was the first to take particularly tight
12 control over the media in a Yugoslav Republic, and it was a
13 recipe that was followed by the HDZ government as soon as it
14 took power. So, he was one of, yes, and certainly freedom of
15 the media is not a characteristic that we associate with the
16 region where people speak Serbo-Croatian.
17 Q. You also spoke in your evidence of moves being taken by Slovenia
18 in relation to, if I can express it this way, upsetting the
19 constitutional arrangement by making amendments and so forth.
20 Did Slovenia do that on its own, I think as you suggested first,
21 or was it provoked into this by other events that happened in
23 A. Well, as I said yesterday, what you have with the demise of
24 state socialism in the former Yugoslavia, because I think this
25 is one where I started yesterday, you have the question arising
26 of what will replace state socialism, and you have the rise of
27 nationalist movements as well as people attempting to promote a
1 type of liberal democracy that we would recognise in western
2 Europe. So that these efforts are going on. I am afraid I have
3 lost my train of thought. I am sorry. What was your question
5 Q. I am asking you whether the events in Slovenia ----
6 A. Oh, right. I am sorry. The Slovenes are, indeed, part of
7 this. So the reason I was introducing the comments of the
8 Slovenian intellectuals yesterday and recounting my own
9 experiences in Slovenia in the late 1980s was that nationalism
10 was certainly rising in Slovenia, and nationalism rising in
11 Slovenia was rising at the same time as some people were
12 speaking of it in Serbia, and this is before the arrival of
13 Slobodan Milosevic; the discussions in the Exhibit, the pages
14 from Dnevni Telegraf, the discussions that took place before
15 Milosevic arrived on the scene.
16 Milosevic certainly was the first to take power with a
17 nationalist tinge to it, but followed by Slovenes. When we are
18 talking about the constitutional processes, constitutionally it
19 was clear to me in the summer of 1989 when I obtained the draft
20 of the Slovenian Amendments that if these Amendments were valid,
21 then Yugoslavia was invalid. This seemed to me to be extremely
22 dangerous, because if the Yugoslav federation, the federal
23 organs, were to cease to exist, there are no mechanisms then for
24 resolving conflicts between republics and that is, indeed, what
26 I actually published (along with a colleague from the
27 Belgrade Law School) an article setting out this scenario. It
1 was first thing I ever published in a Yugoslav newspaper. It
2 was a short article in Borba in September of 89.
3 Q. Would you agree with me, with the proposition, that there was
4 growing hostility between Serbia and Slovenia in 1989?
5 A. Yes, certainly.
6 Q. This arose, among other things, out of what was happening in
8 A. Yes, certainly there was increasing hostility between Serbia --
9 I am sorry Serbia and Slovenia throughout 1989, yes.
10 Q. Would you agree with me that this hostility between Serbia and
11 Slovenia was instrumental in the passing of the Amendments to
12 the Slovenian Constitution?
13 A. I am sure it had a lot to do with it. It was part of the
14 political climate at the time, yes, absolutely.
15 Q. Would you agree with the word "instrumental"?
16 A. Yes, I am sure because it was a very important part of the
17 political climate of Slovenia at the time.
18 Q. Had Slobodan Milosevic captured the Serbian media by 1987?
19 A. By the end of '87, yes -- most of the Serbian media, the most
20 important media, the most important daily papers and the
21 television station, yes. It is curious that Serbia has until
22 this day maintained a couple of independent media, but they are
23 of limited circulation but superb quality.
24 Q. Speaking of the elections in Serbia in 1990, were they seen as
25 fair and free elections in the same way as they were seen as
26 elections in the other parts of what was the former Yugoslavia?
27 A. I believe the phrase used by international observers was "free
1 but not fair" because of the control over the media.
2 Q. Indeed, opposition rallies were not covered by the media and
3 there are misquotes and things of that nature?
4 A. Yes.
5 Q. As a result of that election, Slobodan Milosevic captured 194 of
6 the 250 votes?
7 A. Yes, his Party did, yes, the Socialist Party of Serbia, yes.
8 Q. The implementation of the process of ethnic cleansing that
9 occurred in Bosnia and Herzegovina, would you agree with me that
10 that impacted most severely and extensively upon the
11 non-combatant civilian community?
12 A. The non-combatant civilian community has certainly suffered the
13 most in Bosnia and Herzegovina. I have not concentrated on the
14 processes of ethnic cleansing in Bosnia and Herzegovina.
15 Q. Would you agree with me that what occurred there was aided by
16 paramilitary groups, including those controlled by Seselj?
17 A. I am now -- you are now asking questions that I am less
18 confident on, but I believe those were the reports at the time.
19 Q. Do you see a parallel between what occurred in Nazi Germany in
20 the period of 1930 up to 1940 and this process of what was
21 occurring with nationalism, with the emergence of dominant
22 ethnic groups in Yugoslavia in the 1990s?
23 A. I am not sure what you mean by a "parallel" here. I find that
24 nationalism of this type, associating nation, narod, ethnic
25 group in American terms, with state, which is a territory and a
26 government, to be a very central European formula. I do not
27 read German. My colleagues who do tell me that this Germany
1 constitutional thought goes this way. Of course, you see this
2 in the citizenship laws of Germany.
3 What I have been looking at in my work, citizenship
4 laws are part of it and discriminatory citizenship laws and
5 certainly denaturalising, if you will, people who had been
6 citizens of a state, as has happened to Jews in Germany in 1934,
7 as happened to people in the post Yugoslav republics, and this
8 is certainly part of it. It is all part of the image of who
9 actually belongs in the state, whose state it is. I am not sure
10 if that is what you are referring to?
11 Q. Yes. Do you say that that has its foundations in these
13 A. I say that these Constitutions put forth a vision of the state
14 that is congruent with that image. It depends on how far it is
15 then taken. Conceptually, those who are not of the majority
16 nation do not really belong in the state. It is not theirs. I
17 mean, that is why they are not part of the sovereign group.
18 Q. Is that part of the constitutional framework or is it more
19 correct to say that it was part of the political philosophy of
20 the nationalist parties at the time?
21 A. I actually view it as a cultural logic.
22 Q. You may do, but is it reflected through the political process,
23 is the point that I am raising, such as, for example the HDZ,
24 the SDS or the SDA in Bosnia-Herzegovina?
25 A. It is certainly reflected in who wants to join these parties.
26 It may also be reflected in what happens after the election.
27 I have viewed some of the processes that have taken place after
1 these elections as being an inversion of what Americans call
2 affirmative action, negative action, if you will. The point of
3 the state is certainly not to ensure equality of an equal body
4 of citizens. It is to ensure the superior status of the
5 majority nation. This is where in very many ways that
6 frequently people would lose rights, would lose employment,
7 would lose ultimately the right to citizenship on an
8 ethno-national basis. This is very logical if you come into
9 this framework of thought. It is not a logic that I like, but
10 it is a logic that I try to identify.
11 Q. But would you agree with me if I put to you that particularly,
12 say, in Bosnia-Herzegovina this was directed more as a political
13 philosophy, for example, of the SDS, rather than there being any
14 specific constitutional measures in operation?
15 A. Well, I see the SDS and the HDZ, particularly, as being very
16 similar in these structures.
17 Q. For the sake of balance, I am happy to include the HDZ, but I am
18 saying would you agree with me that this is a political ----
19 A. It is a political logic, yes.
20 Q. --- logic, yes?
21 A. Yes, it is political logic, yes. It is a very strong political
23 Q. It certainly was not derived, was it, from the Constitution of
25 A. From a constitution of Bosnia-Herzegovina?
26 Q. Yes.
27 A. No, no, no, not from the Constitution of Bosnia-Herzegovina
1 which was written and amended under state socialism, and no new
2 Constitution was ever written for Bosnia and Herzegovina, unless
3 we now count the Dayton Constitution, but that was not written
4 by people from Bosnia and Herzegovina.
5 Q. It would not be under the Constitution of Serbia either?
6 A. No, you can see the logic reflected in whose state it is in the
7 preamble. The Serbian Constitution defines Serbia as a state of
8 equal citizens in probably Article 1.
9 Q. Nor would it be Croatia in relation to Bosnia and Herzegovina?
10 A. I am sorry, I did not understand the question.
11 Q. What I am saying is that the political structure which would see
12 the bringing about of the domination and exclusion of the other
13 non-ethnic group is not reflected in the Croatian Constitution
14 in terms of what happened in Bosnia-Herzegovina?
15 A. I am not sure of the connection with Bosnia and Herzegovina.
16 I interpret the Constitutions in part in the context of what the
17 politicians are saying. It may not be expressed in the Croatian
18 Constitution, but it is clearly expressed whose state it is.
19 Mr. Tudjman has been very clear about whose state it is.
20 Q. Yes, but not in relation specifically when dealing with the
21 constitutional provisions of Croatia could that apply to the
22 political activities of the Parties in Bosnia-Herzegovina is my
24 A. Well, in so far as the HDZ of Bosnia and Herzegovina is
25 controlled by the HDZ of Croatia, and it is, are we in a
26 constitutional framework here?
27 Q. Are you saying that we are?
1 A. Well, I do not know. I mean, supposedly we are not, and yet it
2 was the HDZ in Zagreb that was able to change the leader of the
3 HDZ in Bosnia and Herzegovina in early -- in late April/early
4 May of 1992, replacing Mr. Kljuic with Mr. Boban, and the
5 comment was that Mr. Kljuic had proved to be too much Bosnian
6 and not enough Croatian. Is that within the constitutional
7 structures? I would doubt it very much. Is that the political
8 reality? Yes, it is.
9 Q. That is, essentially, what I am suggesting to you ----
10 A. OK.
11 Q. --- that it is political rather than constitutional. With the
12 position in Bosnia and Herzegovina, I think you described it as
13 being stillborn, is that correct?
14 A. I said ----
15 Q. You described it as -----
16 A. --- the still birth of democracy is a term that I have used a
17 number of times. I have used it in regard to the former
18 Yugoslavia. I may have used in regard to Bosnia and
19 Herzegovina. I see various similar processes happening in
20 Yugoslavia and then in Bosnia.
21 Q. What do you mean by that? What do you mean by the term
22 "stillborn" in relation to the state of Bosnia-Herzegovina?
23 A. I believe you saw, you heard this morning that if I applied
24 Mr. Badinter's criteria to Bosnia and Herzegovina, by the time
25 it was recognised it was non-empirically a state. It was a
26 state in the process of dissolution, to use Mr. Badinter's
27 wonderful phrase. Unfortunately, it got there as a result of
1 elections that were free and fair.
2 It has been one of the tragedies of those of us who
3 have dealt with Yugoslavia for a long time that the country that
4 we saw becoming increasingly open, increasingly democratic, in
5 the 1980s, so much of it after -- which leading to the first
6 free elections has become so much less so as the time has gone
7 past -- this is through the looking glass feeling that one gets
8 if one has been there, that it goes more and more like the --
9 the various parts of it grow more and more like the Eastern
10 Europe that it had not been since 1965.
11 I think in that sense we could say that most of the
12 elections in Yugoslavia in 1990 were "free and fair", and then
13 we can pronounce them democratic. But, as somebody has said, it
14 does not take one election to have a democracy, it takes at
15 least two, and free and fair -- two free and fair elections in
16 the territories of the former Yugoslavia are hard to find and
17 certainly not to be found in Serbia, Croatia or Bosnia.
18 Q. But, even accepting that there is no democracy, if one accepts
19 that, in any of those places, that does not mean to say the
20 state does not exist, does it?
21 A. I applied Mr. Badinter's criteria to the existence of the state.
22 Q. His definition?
23 A. Well, his definition provided criteria.
24 Q. I think you told us this morning or it was read to you this
25 morning what that definition was. Perhaps you might tell us the
26 definition that you apply?
27 A. Well, as I recalled, Mr. Badinter in the first opinion described
1 a state as a community in a territory subject to organised
2 political authority, and suggested that one needed to look to
3 the Constitutional order to determine the sway of control over
4 the population in the territory.
5 Q. Do you regard that as being sufficient?
6 A. I regard it as a quite useful definition. I would be perfectly
7 happy to entertain further definitions.
8 Q. I mean, that seemingly could apply to a city council, could it
10 A. Again, if may quote Mr. Badinter, which is all I can do here, he
11 regarded the existence of the state as an empirical question on
12 which recognition was not a deciding factor. I mean, if one
13 looks ----
14 Q. Of course, at the time he was dealing with the whole issue of
16 A. I recognise this, yes. I recognise the recognition. Well,
17 political theorists have written volumes over the definition of
18 the state. I am not a political theorist.
19 Q. But you are the one that posited or said you accept this
20 definition, and that is what I am exploring, but you would agree
21 with me, would you not, the fact that you may not exercise
22 control over the whole part of the state or, indeed, that a part
23 of the population of the state is not necessarily represented in
24 the legislative process, is not of itself a factor which would
25 bring about the non-existence or death of a state?
26 A. Not of itself necessarily, no.
27 Q. There are numerous examples of this.
1 A. I am sorry?
2 Q. There are numerous examples of this. I mean, you have Sri Lanka
3 and the Tamils?
4 A. Yes, you have Sri Lanka and the Tamils.
5 Q. Cyprus and the Turks?
6 A. You have Cyprus and the Turks.
7 Q. Israel and the occupied territories?
8 A. Yes, there are many, many examples, certainly.
9 Q. But nobody suggests for one minute that they are not states, do
11 A. Well, I think there is a difference. Certainly Cyprus existed
12 as a single independent state for a period before the government
13 lost control of part of the territory, as did Sri Lanka, of
14 course. So what you have then is an established government that
15 loses control over a portion of the territory -- an established
16 government of a state that can be recognised as an independent
17 state for a while.
18 Bosnia and Herzegovina, as an independent state,
19 however, never had control. In fact, the recognised government
20 of Bosnia and Herzegovina does not have control over either
21 western Herzegovina or the Republika Srspka and it has not, so
22 that this was recognition of a state as a state of a territory,
23 large portions of the population of which rejected inclusion in
24 that state which strikes me -- that is why I have said that
25 recognition of the state had to mean war, because if it is to be
26 realised in the territory that it is recognised, it has to be
27 imposed on the parties that reject it or, having made clear that
1 they reject it, they would also fight to avoid being included
2 within it which is where I believe I ended this morning.
3 Q. You are not suggesting, are you, that the government of the
4 Republic of Bosnia-Herzegovina did not have control over the
5 whole of the peoples and the whole of the territories of that
6 state for some considerable period?
7 A. Not as an independent state, certainly.
8 Q. No, but I am asking you the question, they did exercise control
9 over the peoples and territory of that state, did they not, the
11 A. As a Republic within Yugoslavia, yes, a control that began to
12 break down, as Yugoslavia was breaking down, but only as a
13 Republic within the control of, within the framework, rather, of
14 Yugoslavia, yes.
15 Q. That framework, of course, had broken down, the framework of
16 SFRY, a considerable period earlier. I think we posited the
17 date 15th May 1991, but you suggested it was even earlier than
19 A. It was breaking down, yes, and it was breaking for -- its
20 breakdown was repeated, essentially, in Bosnia and Herzegovina.
21 We remember that the Socialist Federal Republic of Yugoslavia
22 was also a state recognised by the United Nations. In fact, it
23 was a founding member of the United Nations and a founding
24 Member of the League of Nations before it, but that did not make
25 it empirically a state to Mr. Badinter in December 1991, and if
26 apply his criteria to Bosnia it was not either on the day it was
1 Q. But the international community recognised Bosnia-Herzegovina,
2 did they not?
3 A. Yes.
4 Q. It declared its independence on 6th March 1992?
5 A. Well, but here you have the problem with "it proclaimed its
6 independence" but its, "its", existence for one and the
7 competence of those who claim to speak for all of the peoples of
8 Bosnia and Herzegovina were both being challenged by the
9 leadership, the elected leadership, of at least one of the
10 peoples of Bosnia and Herzegovina. Now, this represented, as
11 I tried to go through today at some considerable pains,
12 a breakdown of the constitutional structure of Bosnia and
13 Herzegovina itself as the constitutional structure of Yugoslavia
14 had broken down.
15 Q. But these factors all go to the determination of whether a place
16 is a state or not, a territory is a state or not, you agree with
18 A. It is a shame Mr. Badinter said that this was an empirical
19 question. I was treating it as an empirical question.
20 Q. It is also recognised by Croatia, is it not?
21 A. It is officially recognised by Croatia, yes.
22 Q. And by the Federal Republic of Yugoslavia?
23 A. Well, I believe that was one of the clauses in the Dayton
24 Agreement that there is actually a mutual recognition clause, so
25 if that is in the Dayton Agreement (as I believe it is), it
26 would have been effective in December of '95.
27 Q. Since 1992 until the present, Bosnia and Herzegovina
1 participates in the international community as a state?
2 A. Yes.
3 Q. It is accepted by the international community as a state?
4 A. Yes.
5 Q. It has embassies that operate around the world?
6 A. Certainly.
7 Q. It continues to function with government, with President and all
8 the apparatus of a state?
9 A. Yes, this is true.
10 Q. So, having regard to all of that, are you suggesting that it is
11 no longer a state?
12 A. Empirically, the recognised government of Bosnia-Herzegovina has
13 control of approximately 30 per cent of the territory of the
14 state and has never had control over much more than that, and
15 never had control over much more than that when it was
16 recognised as a state. I mean, you know, we can discuss this
17 for a long time.
18 The problem here has been that so many of the peoples
19 in Bosnia and Herzegovina did not themselves recognise it as a
20 state. Whether we choose to do so or not, they did not and they
21 were acting in the context of the breakdown of the
22 constitutional organs, the constitutional system, that had
23 existed in Bosnia and Herzegovina up to that time.
24 I mean, I do not know if we could turn it around and
25 propose that the international community could suddenly
26 recognise something as a state and it would thereby be a state.
27 That is actually the logic of your position. I am sure that
1 there is something in the middle, but by Mr. Badinter's
2 criteria, those that were used to say that the Socialist Federal
3 Republic of Yugoslavia was in a state of dissolution, so was
4 Bosnia and Herzegovina.
5 Q. The international community went this way, did it not, because
6 the borders of the state were the borders of the original
7 Republic of Bosnia and Herzegovina?
8 A. The border is on map. There is a very curious situation if one
9 had been in the former Yugoslavia before all of this. The
10 borders were not usually marked. You did not necessarily know
11 when you crossed from one Republican to another unless you
12 happen to know the place names or there is a change in script.
13 It is not like the United States. If one crosses from New
14 Jersey into Pennsylvania, there is a large sign that says
15 "Welcome to Pennsylvania" and gives you the name of the
16 governor. But there was not anything like that in Bosnia and
18 So that actually the position that existing borders
19 were being recognised was actually a demand that de facto new
20 borders should be created, because the border was, essentially,
21 meaningless on the ground. It, obviously, has administrative
22 importance, you know, where you pay your taxes and where you
23 vote. But, for other purposes, it was not particularly
24 important. Suddenly the transformation of these administrative
25 borders into, in an attempt to translate, into international
26 borders was, in effect, creating new borders. If these were
27 rejected by the people on the ground, as they were by the Croats
1 of Herzegovina and the Serbs of Bosnia, then what do we do?
2 Q. But the opstinas of Bosnia-Herzegovina were clearly defined,
3 were they not? People knew where their opstina was.
4 A. Sure.
5 Q. Which opstina they lived in?
6 A. Of course.
7 Q. They knew that those opstinas were in a particular Republic?
8 A. That is right. I mean, clearly the borders were there as
9 defined as certainly administrative borders. Absolutely. There
10 is no question about it. But did you not have to stop and show
11 your passport which would make it a physical barrier, and that
12 is what would have to be created.
13 Q. You do not have stop and show your passport coming into Holland
14 from Germany anymore either, but that does not mean to say the
15 Netherlands is not a state, does it?
16 A. Right, but this is a very curious dynamic because at the same
17 time that the European Community is saying it is perfectly all
18 right to create new physical borders in the Balkans, we are
19 removing borders. That was very odd. I mean, the whole
20 treatment of this by the European Community was very odd.
21 Q. But it was not only the European Community, was it?
22 A. I am sorry?
23 Q. It was not only the European Community?
24 A. No, no, the United States of America was certainly involved in
25 all of this, yes.
26 Q. So it was just not limited to that. Would you agree with me
27 that the recognition of the state of Bosnia-Herzegovina by the
1 United States and by the European Community turned the conflict
2 in that country into an international armed conflict?
3 A. An interesting question, Mr. Niemann. Well, it is an
4 interesting question. Let me give you a counter. In early
5 1991, the Foreign Minister of Italy, Mr. Dimichaelos(?), told
6 the Slovenes and the Croats that, "If you folks secede, you are
7 going to cause a war and we are going to put a wall around
8 Yugoslavia, and when you have stopped killing each other we will
9 deal with you". Now, had that been the stance of the
10 international community, certainly no one would have said that
11 this was an international conflict.
12 If you are saying that the pronunciation by however we
13 define the international community turns a civil war into an
14 international conflict, I suppose that one could well argue
15 that. I suspect it is not going to have much effect on what is
16 motivating the people in a civil war.
17 Q. Maybe not, but you certainly accept it as so, do you not?
18 A. I am sorry?
19 Q. You certainly accept it as so that the international recognition
20 of Bosnia-Herzegovina turned the conflict, transformed it, into
21 an international conflict?
22 A. I am not sure that I do actually.
23 Q. If I can just ----
24 A. I think I know you may be referring to my response to a critic,
25 a letter in the Slavic Review that was written in probably early
27 Q. I am referring to two articles which you wrote. One, The
1 Yugoslav Collapse, National Suicide and Foreign Assistance?
2 A. Yes, which I wrote as it was taking place ----
3 Q. You say ----
4 A. --- with less time for reflection than one might ----
5 Q. If I might just quote what you said?
6 A. By all means.
7 Q. "With the recognition of the independence of Slovenia and
8 Croatia and Bosnia-Herzegovina and their acceptance of the
9 United Nations, the European Community and the United States
10 legally transformed the civil war into international conflict".
11 A. I think I wrote that in approximately May of 1992 and I believe
12 I rethought my composition.
13 Q. So you have changed your mind on that matter?
14 A. Well, I have done a bit more research.
15 Q. What about an article you wrote called The Bosnian Debacle? Are
16 you aware of that?
17 A. Yes, of course.
18 Q. That is a much more resent article, is it not?
19 A. Yes.
20 Q. How recent is that?
21 A. Sorry?
22 Q. How recent is that article?
23 A. 19 -- early '95, early '94.
24 Q. Only you say on page 14 of that article: "The legal effect of
25 the recognition of Bosnia and Herzegovina was to transform a
26 civil war into an international conflict"?
27 A. Well, as part of a rhetorical structure, I had not actually done
1 much research on that aspect of it. It certainly was not key to
2 the thrust of either the 1992 article or the 1994 article. One
3 does sometimes put in material that might be viewed as dicta
4 rather than holding in an academic article as well.
5 Q. So are you telling us now that this is no longer your view, you
6 do not hold this view any more?
7 A. No, I do not think I do hold that view any more.
8 Q. Are there any other views you have had told us about in the
9 course of your evidence that you do not hold to be true any
11 A. I do not believe so. I will stick to the evidence as
12 I presented it. I might remind you that Lord Caines was once
13 asked if he had changed his mind, and he said: "When I obtain
14 new information I change my mind. What do you, sir?"
15 Q. I see. So it is on the basis of further information, is it,
16 that you change your mind?
17 A. Further information and thought. I have been working on this
18 for quite a while, as you, apparently, have had the dubious
19 pleasure of seeing.
20 Q. Perhaps you might tell us what matters or factors you have taken
21 into account which influence you to change your mind?
22 A. On this particular point?
23 Q. Yes.
24 A. I looked more carefully at Badinter and I looked at certain
25 references in international law. I am an anthropologist and
26 lawyer specialising in Yugoslavia. I do not pretend to be an
27 international lawyer, but I do research as problems become
1 apparent to me. The problems in this regard had become
2 increasingly apparent to me. I am surprised that you have not
3 cited the opening paragraphs of the article that I published in
4 Radio Free Europe Research in May of 1993, the one called The
5 Partitioning of Bosnia and Herzegovina, 1990 to 1993, in which
6 I suggest that how one characterises the conflict in Bosnia and
7 Herzegovina depends on the definitions that one uses, and this
8 is a subject of debate.
9 Q. So what you are suggesting is that all the world is wrong when
10 it recognises Bosnia-Herzegovina as being a state, but that you
11 have it right?
12 A. I am applying Mr. Badinter's criteria as he stated them. That
13 he changed his criteria after the fact of recognition is
14 something that you might well raise with Mr. Badinter. The
15 province of Bosnia and Herzegovina had remained, that although
16 Bosnia and Herzegovina has now sat at East River in New York for
17 more than four years, the government that sits there does not
18 control, has not controlled, all of the territory, and very
19 large portions of the population reject it entirely. That is a
20 rather different situation and a situation that involves -- that
21 requires looking at the conditions within Bosnia and Herzegovina
23 MR. NIEMANN: Is that a convenient time, your Honour?
24 THE PRESIDING JUDGE: Yes. We will stand in recess for 20 minutes.
25 (4.00 p.m.)
26 (Short Adjournment)
27 (4.20 p.m.)
1 THE PRESIDING JUDGE: Mr. Niemann?
2 MR. NIEMANN: It is true, Professor, is it not, that the Serbs were
3 much more willing to go to war rather than being incorporated
4 into a state since they controlled most of the guns and much of
5 the territory of Bosnia-Herzegovina?
6 A. And they also perceived themselves as having the most to lose,,
7 although we could also say that the Croats in the territories
8 where they controlled also went to war for that purpose.
9 Q. But you agree with me when I make that statement?
10 A. In principle, yes.
11 Q. It is something that you have said in an article entitled "The
12 Bosnian Debacle" at page 11.
13 A. Yes, OK.
14 Q. When the outbreak of fighting commenced, there were large peace
15 rallies, were there not, in Sarajevo?
16 A. In Sarajevo and in Belgrade.
17 Q. These demonstrations in Sarajevo were largely stopped as a
18 result of being fired upon (in your words) almost certainly by
19 Serbian forces?
20 A. That is how I understand it.
21 Q. By the beginning of April of 1992, Serb forces, including many
22 from Serbia, were attacking Muslim towns in Eastern Bosnia while
23 Croatian forces, including many from Croatia, were attacking
24 Serb settlements in Posavina and Herzegovina?
25 A. That was my understanding when I was writing, yes.
26 Q. And the recognition of Bosnia and Herzegovina spurred further
27 military action by the Serbs because if their incorporation into
1 Bosnia-Herzegovina could not be prevented by voting, it was to
2 be done by force, preferably with large territorial gains?
3 A. As I said today when I closed, it seemed to me that civil war
4 was inevitable either to impose the state on those who reject
5 it, or they would go to war to avoid being incorporated into the
6 state that they rejected.
7 Q. The action, the military action, by the Serbs was extremely
8 aggressive, was it not?
9 A. It has been presented that way to me, yes.
10 Q. You have presented it that way, have you not?
11 A. I was reporting what I was certainly understanding at the time.
12 Q. And that is ----
13 A. I provide, I usually provide citations and I am not sure what
14 I am citing, but yes.
15 Q. This does not seem to have a citation here. It seems to be a
16 direct quote from your writings?
17 A. Yes, I know it is a direct quote from what I am writing. What
18 I exactly I was citing I am not quite sure. I mean, I am sure I
19 was reporting what was regarded as general knowledge at the
20 time, sure.
21 Q. I will read out precisely what you said and see whether you can
23 A. No, please do.
24 Q. On page 15 of the article Bosnian Debacle ----
25 MR. ORIE: Would it be the opportunity, your Honour, that the
26 Prosecutor would present a copy of the writing to Professor
27 Hayden when referring to it so that he can look at the context
1 in which it is?
2 THE PRESIDING JUDGE: Yes, would you do that? First, identify the
3 article, if you have not already, and if you have an extra copy,
4 if you are going to read a quote from it, can you give the
5 entire article to Professor Hayden?
6 MR. NIEMANN: I will identify the article, your Honour. I am fairly
7 sure that the Professor knows what I am talking about. Page
9 A. This is a copy, I cannot actually tell you if this is the
10 version that was published or not because this is a draft in
11 which I say "Forthcoming - The Diplomatic Record", but I know
12 I went through a number of redactions, and I cannot actually
13 tell you that this is the final version as it was published.
14 Q. Did you write it?
15 A. Oh, yes, I certainly wrote it and then, you know, I rewrite them
16 as editors comment upon them and I know that this one went
17 through some rewritings.
18 Q. By all means tell us if there is something there that you do not
19 agree with.
20 A. By all means.
21 Q. Could you go to page 15?
22 A. Certainly.
23 Q. Could you read out that section on page 15 under the
24 heading "The military petition of Bosnia, 1992 to 1993", that
25 whole section there going over to the first sentence in the top
27 A. Sure. "The war was, however, marked by the extreme
1 aggressiveness of the Serbian forces, who had received much
2 support from Serbia and from the Yugoslav National Army, the
3 JNA. Serbian plans for arming Serbs outside of Serbia and for
4 redrawing the borders of Serbia in order to include all Serbs in
5 case of the collapse of Yugoslavia" ----
6 Q. Perhaps you might read it a little slower.
7 A. --- I am sorry --- "were rumoured in 1991". Shall I put it up
9 Q. It might be a good idea if you did that, and perhaps if you
10 could read it just a little bit more slowly because it has to be
11 taken down in the transcript?
12 A. "The war was, however, marked by the extreme aggressiveness of
13 the Serbian forces, who had received much support from Serbia
14 and from the Yugoslav National Army, the JNA. Serbian plans for
15 arming Serbs outside of Serbia and for redrawing the borders of
16 Serbia in order to include all Serbs in case of the collapse of
17 Yugoslavia were rumoured in 1991. The existence of these plans
18 was confirmed by General Veljko Kadijevic, Federal Secretary of
19 Defence until January 1992, in a remarkable book published in
20 Belgrade in 1993, in which General Kadijevic acknowledges that
21 he did not try to defend the integrity of the Socialist Federal
22 Republic of Yugoslavia, as he was sworn to do, but rather tried
23 to establish borders for a new Yugoslavia for the Serbian
24 narod". I am not sure what the footnote is, probably to
25 Kadijevic. "In regard to Bosnia and Herzegovina, Kadijevic
26 acknowledges that the JNA in B&H was transformed into 'the
27 backbone of the Army of the Serbian Republic, with complete
1 armament and equipment'. The Serbian Army was staffed primarily
2 by soldiers from B&H".
3 Q. Thank you. Do you agree with that?
4 A. Yes.
5 Q. You do not wish to say anything about the context in which it
7 A. No. I think I was asked by the editor to include something on
8 Serbian plans, so I wrote it in this way, and I think that has
9 been quite clear from Mr. Kadijevic's book. The question, of
10 course, goes to the nature of support and when it was given.
11 Q. You have relied upon it as a source?
12 A. On Mr. Kadijevic's book, General Kadijevic's book? Oh, yes, as
13 I said, it is a fascinating book.
14 Q. A credible source?
15 A. I will treat it as such, although some people say otherwise, but
16 I treat it as such.
17 Q. But you must have given it sufficient reliability in order to
18 put it in your works, presumably?
19 A. Surely, I cited it, yes.
20 Q. You would not like to be seen to be relying on unreliable
21 sources, no doubt?
22 A. No, of course not.
23 Q. It is true, is it not, that the Serbs took much of the northern
24 region of Posavina in order to secure the vital corridor to
25 their lands in Croatia?
26 A. Yes, after that corridor had been cut off at the very early part
27 of the war, yes.
1 Q. I am looking, just to assist you, specifically at page 16 in
2 relation to these questions, so just you have it in front of
3 you. About two-thirds of the way down the page: "Both Serbs
4 and Croats took land from the Muslims, although the Serbs took
5 far more than did the Croats", is that right? Do you agree with
7 A. Yes, can I read it, please?
8 Q. Yes, please do.
9 A. Yes.
10 Q. You go on to say in this article: "The brutal 'ethnic
11 cleansing' that accompanied these military campaigns turned
12 world public opinion against the Serbs, as the side that was
13 most engaged in brutalising civilians", which picks up on a
14 point that I asked you earlier, I think, about the civilians
15 being most affected?
16 A. Right.
17 Q. Another one of your articles that I would like to take you to,
18 if I may -- again I will give you a copy of that so that you can
19 look at it while I am asking you questions about it -- did you
20 write an article "Imagined Communities and Real Victims:
21 Self-determination and Ethnic Cleansing in Yugoslavia"?
22 A. I did indeed. It is gone through many, many revisions. I am
23 fascinated that you have my drafts!
24 Q. In relation to this particular article, in particular I would
25 like to take you to page 4, if I may?
26 A. Yes.
27 Q. The very last sentence on that page, I asked you some questions
1 about this earlier today ----
2 A. Yes.
3 Q. --- it appears in this article perhaps in a clearer way. You
4 say there at the very bottom: "The powerful tool of appealing
5 to local chauvinism was first seized openly by the Serbian
6 leader, Slobodan Milosevic". You go on over the page: "In
7 openly advocating a nationalistic cause, Milosevic rejected one
8 of the basic pillars of Yugoslav communism". Then you go
9 further down: "However, in 1989, in part in response to fears
10 that Milosevic had designs on becoming another Tito, the
11 Slovenian leadership, still communists, adopted a nationalistic
12 political Platform of their own." Do you see that?
13 A. No, I do not. It sounds familiar, but I do not actually see it.
14 Q. Perhaps you might go to the top paragraph of page 5?
15 A. Yes, I just looked down too far, yes.
16 Q. You agree with that as a proposition expressed there, do you?
17 A. Yes, as part of the entire, I think it is not inconsistent with
18 what I have been saying today.
19 Q. Going over to page 6 of the same article, you see there about
20 the middle of the page: "Indeed, it is my argument", page 6?
21 A. In the middle of the page?
22 Q. Yes. The middle page.
23 A. Yes, OK.
24 Q. Perhaps you might put that on the screen: "Indeed it is my
25 argument" ----
26 THE PRESIDING JUDGE: I cannot locate it.
27 THE WITNESS: Right here.
1 THE PRESIDING JUDGE: OK. I am sorry, Mr. Niemann.
2 MR. NIEMANN: Sorry, your Honour. "Indeed, it is my argument that
3 the spatial patterning of the war and its terrible ferocity are
4 due to the fact that in some regions, the various Yugoslav
5 peoples were not only coexisting but becoming increasingly
6 intermingled." Then in particular: "In a political situation
7 premised on the incompatibility of their components, these mixed
8 territories were not only anomalous, but threatening, since they
9 served as living disproof of the nationalistic ideologies. For
10 this reason, the mixed regions could not be permitted to survive
11 as such, but their populations, which were mixing voluntarily,
12 had to be separated militarily"?
13 A. Yes. This is similar to what I was saying at the end of direct
14 testimony this morning in response to some of the questions from
15 the Judges, yes.
16 Q. The separation militarily was, at least in part, carried out in
17 perhaps the most ferocious form by the Serbs?
18 A. By them all, by them all. I had in mind not simply Bosnia and
19 Herzegovina but the parts of Croatia that were most mixed which,
20 as I said this morning, had not voted for the nationalist
21 parties but had voted for the reformed communists in an attempt
22 to save themselves, and the war was, indeed, about unmixing many
23 of these regions, yes.
24 Q. You spoke in your evidence about the constitutional court
25 examining the Amendments to the Slovenian Constitution and you
26 mention that the Court was not recognised by Slovenia, is that
1 A. Yes, that is right.
2 Q. You remember your evidence on that?
3 A. Yes, that is right.
4 Q. It is true, is it not, that not only did the Court look at the
5 Constitutions of Slovenia, but indeed all of the Constitutions
6 of the former Federal Republic of Yugoslavia?
7 A. That is right. As I said, after the 88 Amendments of the
8 federal Constitution all of the republican Constitutions were
9 amended and the federal court was looking at those.
10 Q. It is true, is it not, that in the final analysis the Court
11 decided that the Constitutions of all of the Republics and
12 provinces, with the exception of Montenegro, contained
13 provisions contrary to the federal Constitution?
14 A. As I recall, yes. I believe I gave it some greater specificity
15 in the article that you are citing, but I do not actually
16 remember now. I mean, it found different provisions of
17 different Constitutions out of congruity with the federal
18 Constitution, but it was December of 1989 and I do not remember
19 the details now.
20 Q. I think if I remember your evidence correctly you only referred
21 to Slovenia.
22 A. Yes, you are right, I did. That was the -- we were discussing
23 the Slovenian Amendments at the time.
24 Q. You also referred us to an article contained in Exhibit 46, did
25 you not, Defence Exhibit 46?
26 A. Sorry, I do not know the numbers.
27 Q. Perhaps you might be shown that Exhibit? (Handed)
1 A. OK.
2 Q. This particular newspaper article, I think, was published
3 sometime this year, was it?
4 A. Yes, a couple of months ago, yes.
5 Q. It contains the various views of the Slovenian academics that
6 took part in this discussion in Slovenia that you referred to in
7 your evidence, is that right?
8 A. Yes, and the Serb participants as well, yes.
9 Q. I think in your evidence you made reference to the fact of the
10 various speakers and you took us to parts of it?
11 A. Yes, that is correct.
12 Q. I am wondering if you would translate for us, as best you can,
13 the provision, the last paragraph on the first column of the
14 second page, the last paragraph of the first column, the very
15 bottom paragraph there. If you have trouble, if you feel
16 uncomfortable about translating that, please let us know and we
17 can put it on the screen and ask the translators to do it.
18 A. This is when one begins with the word "nedjutim" or the one that
19 begins "u tekstu".
20 Q. "U tekstu"?
21 A. "U tekstu", yes, I will be happy to. It is here. Do you want
22 me to translate it, your Honour, or would you like the
23 translators to do it? I have no problem in doing it, but if you
24 would rather have the translation service do it, I will read it
25 in Serbo-Croatian and they can do it.
26 Q. Perhaps we might do it that way, your Honour, and in that way if
27 you feel more comfortable that way, it is probably the easiest.
1 A. No, it is immaterial to me.
2 Q. If you are comfortable to translate it, please do.
3 A. OK.
4 THE PRESIDING JUDGE: I will make the decision if you two cannot
5 decide. Why do we not have the interpreters translate it for
6 us? OK. It says [In translation] "In the text that follows
7 I will attempt on the basis of my notes to reconstruct the
8 discussion of all the participants in the conversation".
9 JUDGE STEPHEN: I cannot hear the interpreter.
10 MR. NIEMANN: If we can start again and do it much more slowly?
11 THE INTERPRETER: Can you hear me now?
12 MR. NIEMANN: Yes. Very slowly, please.
13 JUDGE STEPHEN: No, sorry. Still I hear him very loudly on Channel 4
14 and he drowns out the interpreters.
15 MR. NIEMANN: I am sorry.
16 THE WITNESS: Should I just do it?
17 JUDGE STEPHEN: I do not know.
18 MR. NIEMANN: I think perhaps, your Honour, his voice comes in at
19 first but then it cuts out.
20 JUDGE STEPHEN: We will see if it cuts out.
21 THE INTERPRETER: "In the text that follows I shall attempt to
22 reconstruct on the basis of my notes the discussion of all the
23 participants in this interview. By the very nature of things,
24 it was impossible to take note of every uttered word.
25 Nevertheless, the author vouches that the substance or the
26 spirit of what was deliberated about has been recorded
1 MR. NIEMANN: Thank you. From that, would you say that this is not
2 direct quotes from the speakers, it is merely a reconstruction?
3 A. That is the way that Professor Markovic presents it, yes.
4 Q. In your evidence you spoke of people voting for particular
5 ethnic or national groups -- particularly I am referring to
6 Bosnia-Herzegovina -- and I think you probably had in mind, if
7 you did not expressly say so, the SDS, the SDA and the HDZ in
8 relation to elections in 1990; is that right?
9 A. That is correct, yes.
10 Q. You suggested, I think, that people who voted for these
11 particular parties were pursuing or giving their vote to a
12 particular ethnic national cause; is that right?
13 A. What I said specifically was that, given the chance to vote as
14 undifferentiated Bosnians, they partitioned themselves into
15 Serbs, Croats and Muslims overwhelmingly, a pattern that has
16 occurred before in Bosnia and Herzegovina.
17 Q. Indeed that is a fair construction that could be placed on a
18 reason for a person voting for one of those particular parties,
19 but there are other motives that people could have, are there
21 A. Certainly.
22 Q. So it is not exclusively, people do not exclusively vote or may
23 not have exclusively voted for these parties because of the fact
24 that they wanted to promote nationalism as such. It may have
25 been democracy, might it not?
26 A. Depending on how one defines it, of course.
27 Q. When you suggest that the SDS, the SDA and the HDZ represented
1 these minority groups, sorry, these particular national groups,
2 what is the basis of you saying that they had the mandate to so
3 represent them?
4 A. Well, they were the elected representatives of these people.
5 I think you would have been very hard pressed to have found a
6 Serb who voted for the SDA or a Croat who voted for the SDS or a
7 Muslim who voted for the HDZ. It may have happened, but the
8 patterns seem fairly clear. This is how Bosnian elections
9 earlier in the century have been interpreted.
10 Q. But it is possible, is it not, that there were Serbs, Croats and
11 Muslims outside of these particular parties who put their vote
12 into other parties, other political parties?
13 A. It is possible and there have been stories that I really do not
14 know much about, that is part of agreements to oust the
15 communists that there were agreements that, for example, Croats
16 in one area would vote for the SDA. But I really do not know
17 the details of this, so I cannot tell you.
18 Q. Did nationalistic Serbs discourage other Serbs from voting in
19 the 1992 Bosnian referendum?
20 A. As I have said, they certainly did not encourage them to do so.
21 There have been reports of some discouragement of some people in
22 some places. However, as I recall, Dr. Gow said in his
23 testimony that most Serbs would have boycotted the referendum in
24 any event, and I agree with him.
25 Q. Indeed it is true, is it not, that Serbs who were seen as
26 offering any kind of concessions or whatever to the other groups
27 were viewed as traitors?
1 A. That is the logic of this type of politics which becomes
2 increasingly polarized. One could see this outside of Bosnia,
3 but in Yugoslavia after the late 1980s that compromise was
4 somehow seen as betrayal.
5 Q. In reality there really is nothing in particular to physically
6 distinguish the various ethnic groups as such?
7 A. That is correct, yes.
8 Q. Do the states of Bosnia-Herzegovina, or at least some of them,
9 see themselves as sort of being existing states before the
10 Socialist Federal Republic of Yugoslavia came into existence?
11 A. No, I am sorry the state? I believe you may have misspoken. Do
12 you mean Yugoslavia or Bosnia-Herzegovina? You said the states
13 of Bosnia-Herzegovina?
14 Q. Yugoslavia. Did the states of Yugoslavia see themselves as
15 historic states which existed prior to the federation into the
16 Socialist Federal Republic of Yugoslavia which, once that past,
17 they in effect sprung up again?
18 A. Well, certainly Serbia and Montenegro were independent states in
19 1914. In fact World War I began when the Austro-Hungarian
20 empire using the excuse of the assassination of the Arch Duke in
21 Sarajevo attacked and invaded Serbia. Serbia of course, then
22 Serbia and Montenegro, were incorporated into the first
23 Yugoslavia which was actually called the Kingdom of Serbs,
24 Croats and Slovenes at the end of World War I.
25 Q. What about Croatia, did it see itself as an historic state that
26 sprung up after the removal of the Socialist Federal Republic as
1 A. Well, if you look at the Croatian Constitution, the preamble has
2 a really very interesting lesson, a history lesson, on the
3 continuity of the legal identity of the Croatian state which is
4 a matter of, essentially, holy writ to Croatian politicians.
5 However, the Croatia that went into the Kingdom of Serbs, Croats
6 and Slovenes was a part of the Austro-Hungarian empire and was
7 not regarded as an independent state within the Austro-Hungarian
8 empire. In fact, I do not think there had been an independent
9 Croatian state for many centuries, but I am not a historian and
10 the farther back we go the more bothered I would be by saying
12 Q. Would you say it was in a similar position to
14 A. Bosnia and Herzegovina was also incorporated from the
15 Austro-Hungarian empire into the first Yugoslavia. Bosnia and
16 Herzegovina had been incorporated into the Austro-Hungarian
17 empire on a date that I am afraid I cannot specify. It had gone
18 out of the Ottoman empire in 1878 and was a protectorate of
19 Austro-Hungary, but when it was actually annexed into
20 Austro-Hungary I am not sure. Before that there had not been an
21 independent Bosnian state, again for many centuries.
22 Q. Would you be surprised if I suggested to you that at least
23 Croatia saw itself as being a state which was in existence and
24 then came back into existence, as it were?
25 A. No. No, it would not surprise me in the least. I am aware of
26 the claims. One of the early extreme nationalist Croatian
27 political parties was called the Party of Croatian Right,
1 meaning state right, and in fact a party under that name still
2 exists. No, I am quite aware of the position, but I doubt that
3 many non-Croatian historians would accept the conclusion that
4 Croatia was an independent state for many, many centuries
5 before, well, before 1992.
6 Q. Yes, I am not so much concerned about the time, but the
7 understanding that it was historically a state which went into a
8 federation and then emerged from the federation again as an
9 independent state. So, do you agree with me that there is
10 nothing surprising in them seeing themselves in this light?
11 A. No, I said that I know that Croatian politicians see themselves
12 in this light. I said that I doubted that many non-Croatian
13 historians with agree with them.
14 Q. It is true, is it not, that many of the urban Serbs in
15 Bosnia-Herzegovina desired the continuation of the Bosnian
17 A. I believe that is true.
18 Q. Would it be your view that the Serbian campaign of terror forced
19 deportation and murder in Croatia in 1991 and Bosnia in 1992,
20 paralleled that waged by the Ustasha, the independent state of
21 Croatia in World War II?
22 A. It might be possible to view it that way. One does go
23 rhetorical on some of these occasions.
24 Q. Would it surprise you if I were suggest that these were ----
25 A. Of course it would not. I sometimes respond to editors who
26 request that I include things.
27 MR. NIEMANN: No further questions.
1 THE PRESIDING JUDGE: Mr. Orie?
2 Re-examined by Mr. Orie.
3 MR. ORIE: Thank you, your Honour.
4 Q. Professor Hayden, it went all that quick that I do not exactly
5 what article list, but the Prosecutor has asked you to quote
6 page 16 almost at the bottom. I do not know whether this
7 article is still there and whether you could tell us what
8 article it is. Perhaps you would put it on the screen.
9 A. I do not think it was that one.
10 Q. What I remember was that it was page 16, but it went so quick.
11 A. Well, it is 16 of the other one I had not seen again today. So
12 it must have been this one.
13 Q. If you put it on the screen I will be able to recognise it.
14 Yes, Professor Hayden, you stopped quoting three lines from the
15 bottom. Would you please quote the last part as well.
16 A. Beginning with "However"?
17 Q. Yes, that part.
18 A. "However, all sides engaged in atrocities against civilians
19 aimed at forcing them to leave their homes. By late 1992 more
20 than 2 million people were refugees within Yugoslavia."
21 Q. Thank you, Professor Hayden. Another question to you. You have
22 been asked by the Prosecutor, and you referred this morning, to
23 be a consultant to Mr. Panic for, as you said this afternoon,
24 five days. Could you please tell us where Mr. Panic is living?
25 A. Mr. Panic is a citizen of the United States as well as
26 Yugoslavia and lives and conducts his business in California.
27 Q. Could you tell us what the aim of Mr. Panic was when attending
1 the London conference you referred to?
2 A. He wanted to end the war.
3 Q. Professor Hayden, you were asked by the Prosecution on your
4 opinion about the international character of the conflict.
5 Before writing on this subject, did you study the precise
6 distinctions that are made under international law as between
7 the differences, the distinction between internal conflicts and
8 international conflicts?
9 A. I am afraid I did not.
10 MR. ORIE: Those were my questions, your Honour. No further
12 THE PRESIDING JUDGE: Mr. Niemann?
13 MR. NIEMANN: No, your Honour.
14 JUDGE STEPHEN: Professor, I had one question that you might help me
15 with. You spoke earlier about the period 1941/1945, and the way
16 in which the various armed forces attacked particular
17 populations. I am not at all clear about what happened to the
18 Muslims in Bosnia during that period. I perhaps understand what
19 happened at the hands of the Ustasha. I am not at all clear as
20 to what happened to the Muslims vis-a-vis the Chetniks and the
21 partisans. Was there any particular pattern, and what part did
22 the Muslims play? Did they form mainly part of the Chetnik
23 forces or of the partisan forces? I assume they formed no part
24 of the Ustasha forces?
25 A. Actually, the inconsistencies of the Ustasha philosophy did not
26 only include the idea that converting Serbs would serve,
27 I suppose, to make them no longer Serbs. The Ustasha also
1 viewed officially the Muslims as being part of the Croat
2 nation. In fact they used the term "the flower of the Croat
3 nation", saying that they had been Croats who had been converted
4 to Islam. The independent state of Croatia included Bosnia and
5 Herzegovina. The Ustasha, I do not believe that the Ustasha
6 conducted campaigns against the Muslims. To the contrary, there
7 were Muslims who were Ustasha and much of the slaughter of Serbs
8 in Bosnia and Herzegovina from 1941 to '45 was conducted by
9 Croats and Muslims. The Serbs were, undoubtedly, the largest
10 victim numerically at that time.
11 Muslims joined the partisans in increasing numbers as
12 the war went on. The partisans were an integrated force. The
13 Chetniks were very hostile to the Muslims, and there were
14 Chetnik massacres of Muslims particularly in eastern Bosnia
15 I believe in the latter stages of that war, but it has been a
16 long time since I have read any of this.
17 JUDGE STEPHEN: Thank you. That is very helpful.
18 THE PRESIDING JUDGE: I have just a few questions, Professor. Maybe
19 you can help me as a cultural anthropologist. I do not know
20 that I fully understand what that means, but perhaps you can
21 answer some of the questions that I have in my mind. Mr. Orie
22 just asked you a question and he asked you to read from the last
23 couple of lines of an article that you had written and you said
24 that: "However, all sides engaged in atrocities in late 1992
25 leading to perhaps 2 million refugees." What I want to ask you,
26 it may be a difficult question but try, what do all of these
27 events that we have seen over the last five years, I suppose, in
1 the former Yugoslavia, what do all of these events that
2 transpired with all of the atrocities you have written about and
3 that we have heard about by all sides, what does that tell the
4 world? Is this something unique that happened in the former
5 Yugoslavia, or does this have any relevance to world communities
6 that have multiple ethnic compositions?
7 Particularly you told the Chamber that civil war was
8 inevitable after the referendum, even though in the preamble of
9 the Bosnian-Herzegovina Constitution it, unlike all of the other
10 republics, recognised multiple peoples.
11 It is a long question and perhaps it is not even fair
12 to you, but it is something that keeps going through my mind as
13 I hear all of the experts appear before us and give us all of
14 this information, this very scholarly information, and I say to
15 myself, well, what does that have to do with today and what does
16 that have to do with tomorrow and what does that have to do with
17 other world communities?
18 A. I can attempt to answer this. It is a complicated question and
19 I will start with the first part of it and then you might be
20 able to remind me of the other parts. I should have actually
21 taken notes but I did not. Is all of this unique to Bosnia and
22 Herzegovina or to the former Yugoslavia? The answer to that is
23 clearly no. As I said earlier today, I actually began my career
24 as a scholar of India. I have not seen anything from Bosnia
25 since 1992 that I do not find in reports from the Punjab in
26 1947, the Punjab being, the position of the Punjab being in many
27 ways between India and Pakistan and with no majority because
1 there was a third community in the Sheiks, in many ways
2 analogous to that of Bosnia in 1992. In an article of mine that
3 that Mr. Niemann did not quote I have actually drawn on this
4 parallel a bit more and do so in other work.
5 I think that when you find the partitioning of mixed
6 regions you would expect to find these types of atrocities.
7 I think that if you look at the events in the early 1920s that
8 involved separating an independent Greece from a post-Ottoman
9 Turkey you would find something similar. You would find similar
10 events on much smaller scales, with the partitioning of Cyprus
11 in 1974. You can find similar events actually with the
12 expulsion of 10 million Germans from Poland and from
13 Czechoslovakia and from Yugoslavia in 1945. The creation of
14 homogenous nation states, more or less, is a very European
15 process in this century. For example, the Poland that was
16 created after World War I was only 65 per cent Polish with very
17 large German and Jewish populations. It is now one of the most
18 homogenous states in Europe. I could give other examples.
19 I would not say, and I would never say, that these
20 processes are inevitable. Quite to the contrary. I try in my
21 work to look at the circumstances in which this type of ghastly
22 partitioning becomes inevitable. I may say, for example, that
23 we can look, as I said earlier today, at India as a
24 multi-lingual, multi-religious, multi-ethnic, in any ways that
25 you may care to look at it state, which is also a functioning
26 democracy, it is possible to do this. It is possible to
27 maintain a functioning democracy in these circumstances, but it
1 requires a great deal of political effort.
2 In Bosnia and Herzegovina, as I said, it might have
3 been possible for Bosnia to have not been partitioned if the
4 people, peoples, if the population of Bosnia and Herzegovina had
5 identified themselves primarily as Bosnians, but they did not,
6 they identified themselves primarily as Muslims, Serbs, Croats
7 and others and they voted that way, whether knowingly or not
8 they elected politicians who proved incapable of maintaining the
9 compromises that were stated in the Bosnian, provided for in the
10 Constitution of Bosnia, but it was in a context in which they
11 were simply following the same political processes that had
12 occurred in the destruction of the political compromises and the
13 constitutional structures that had ordered the Yugoslav
15 My view of Bosnia is that I say it is inevitable,
16 I said it was inevitable at the time and I would tell you that
17 if you look at -- it is very well attested that Mr. Izetbegovic,
18 among others, did not want the recognition of Slovenia and
19 Croatia before a deal was reached for Bosnia because he knew
20 also what would happen.
21 The demise of Yugoslavia set off, essentially, if
22 I may be metaphorical, an avalanche. The international
23 recognition of Bosnia and Herzegovina amounted to an attempt to
24 stop an avalanche halfway down a mountain. I do not think it is
25 possible to stop avalanches. I think the point is to prevent
26 them. I would hope we could learn some lessons from this to
27 help us to prevent avalanches.
1 Q. What lessons can we learn? Particularly, what was the effect of
2 the outside influences, if any? Muslims were 44 per cent of
3 Bosnia-Herzegovina in 19 ----
4 A. 1991.
5 Q. --- and Croats then were what?
6 A. Serbs were 31, 32 and Croats about 17.5 per cent.
7 Q. So you have a sizeable Serb minority, 33 per cent or so?
8 A. A third of the population, yes.
9 Q. A third of population who you say fear that if
10 Bosnia-Herzegovina secedes, then they will go unprotected, but
11 they were living within that Republic for whatever number of
12 years that the Republic had existed since World War II I guess.
13 So what was the role then, if any, of outside influences that
14 may have encouraged this feeling that they were not safe within
15 a Republic that seceded from Yugoslavia?
16 A. There are several ----
17 Q. I understand why you are here to testify and I am not interested
18 in ascribing blame. I heard from Dr. Gow and I heard Mr. Orie
19 say that Dr. Gow had suggested that it was the growth of the
20 greater Serbian nationalism when he was responding to Judge
21 Stephen's question as to why you were here. You are here to
22 tell us another side, perhaps, a different view. So really what
23 I am trying to find out is why. I am still after this "why" and
24 maybe we will not find a why.
25 A. There are several outside forces obviously. I personally have
26 always felt that if the international community had put 100th of
27 the effort into preserving the Yugoslavia that did exist that it
1 has put into attempting to create a Bosnia that it was clear to
2 me and it was clear to many others was not going to exist,
3 perhaps none of us would be here. But once Yugoslavia began to
4 collapse like this, it may be that the difference in the way
5 I have looked at things has to do primarily with the fact that
6 I have been looking at the actions of the people and at the
7 political actors and the structures within Bosnia and
8 Herzegovina rather than those from outside.
9 Q. I do not see how they were operating in a vacuum. We see
10 Slovenia's Constitution. Let me ask you about the preamble and
11 the Constitution of Serbia. You did indicate that the preamble
12 recognised the primacy of the Federal Constitution, but what did
13 it say about, we, the peoples, whereas Slovenia said Slovenes,
14 Croatia Croatian, you were not asked I guess, but what did it
16 A. I included it in the box of the Constitution and I think I went
17 alphabetically, Serbia, Republica Srpska, Krajina which was in
18 Croatia and the Republika Srpska are all there. They are all
19 there because the formulations are quite congruent. The
20 justification for Serbia is based -- I do not have the text in
21 front of me, but it is based on the struggle of Serbian narod
22 for its own state, as are the rest of them, yes.
23 Q. That was that page we spent so much time trying to see if we
24 could get it in without the whole article?
25 A. That is the one, yes, your Honour.
26 Q. So the preamble to the Serbian Constitution then says basically
27 the same thing that the Slovenian amendment said and the
1 Croatian amendments?
2 A. Yes, they are all congruent structures. Yes.
3 Q. Bosnia and Herzegovina stands alone saying, we, peoples,
4 mentioning Muslims, Serbs and Croats, is that not so?
5 A. Yes, your Honour, that is so, but I would only say that Bosnia
6 and Herzegovina was the one that did not really have -- well,
7 there was the amendment, yes, I am sorry. Yes, you are
8 correct. It was amended in 1990 to drop the working class and
9 all working people and to leave the nations, yes.
10 THE PRESIDING JUDGE: I have no further questions. Mr. Orie, do you
11 have any questions?
12 MR. ORIE: Yes, I have one additional question, your Honour, and it
13 relates to your question.
14 Further Re-Examined by Mr. Orie.
15 Professor Hayden, was the fact that under the former
16 federation there was some protection for all groups in Bosnia
17 and Herzegovina to live more or less safely together, might that
18 be an explanation also of why things changed after the fall down
19 of the federation?
20 A. Yes, very much so. As someone asked earlier, it may have been
21 Judge McDonald, if Tito had, or Mr. Niemann, I am not sure who,
22 if Tito had suppressed nationalism and certainly it did, then
23 Tito's Yugoslavia, this type of division, could not take place.
24 Of course, there was constitutional provision for equality and
25 non-discrimination and the like, yes.
26 MR. ORIE: No further questions, your Honour.
27 THE PRESIDING JUDGE: Mr. Niemann, do you have additional questions?
1 MR. NIEMANN: No.
2 THE PRESIDING JUDGE: Just one question. I keep trying. (To the
3 witness): When Slovenia seceded there was not civil war within
4 Slovenia, was there?
5 A. No. Over there was the 10-day border war.
6 Q. What was that? Would you describe that war for me? Did Serbia
7 invade Slovenia?
8 A. No. The Federal Army attempted to control the borders.
9 Q. The JNA?
10 A. The JNA, yes, the Yugoslavia Army. It was a Federal Army in its
11 structure and its recruits at that time. It goes into that time
12 as a Federal Army.
13 Q. So when Slovenia seceded the JNA came in?
14 A. Well, the JNA was there. I mean Slovenia was part of Federal
15 Yugoslavia. Its constitutional job was to defend the country,
16 to control the borders.
17 Q. Whether they came in or whether they were there, in any case it
18 was the JNA that engaged with whom in Slovenia?
19 A. With Slovenian Territorial Defence forces who took control of
20 border crossings. There was not much fighting actually.
21 Q. A few days and that was it?
22 A. Yes, just a few days.
23 Q. Then in Croatia, when Croatia seceded there was not civil war,
24 was there?
25 A. The secessions of Croatia and Slovenia were simultaneous
26 virtually, and the focus of everything was on Slovenia, on the
27 borders of Slovenia. A senior American diplomat had expressed
1 to me several months earlier when I questioned what would happen
2 when Slovenia secedes, the answer was that the Yugoslav Army
3 will control the border and no one will recognise them. In
4 fact, the Yugoslav Army did not control the border after the 10
5 days. Then there was a period, as I said earlier today, of this
6 quiescence, the phoney war, for a while which lasted until the
7 late summer and the fall of 1991 when fighting broke out in
9 Q. That was also the JNA, is that not so, that were either there or
10 came in there to quell the Territorial Defence attacks?
11 A. The JNA then became -- I am not a military expert, so perhaps
12 I should not speak on this. My understanding is that the JNA,
13 it was the Army of the Yugoslav Federation. As the Yugoslav
14 Federation was collapsing so was the JNA, and you had apparently
15 a quite chaotic situation in which some officers were defecting,
16 others were not. Remember at this time the Minister of Defence
17 was General Kadijevic who was of a mixed Serb and Croat
18 parentage. The Assistant Minister of Defence was Admiral Stane
19 Brovet who was a Slovene. You had a mixed Officer Corps and
20 yet, you know, one officer who had been in charge of the 5th
21 Military Division of he Yugoslav Army became Croatian Minister
22 of Defence. All sorts of things are happening. Soldiers are
23 leaving. You have extraordinary scenes of marches of mothers,
24 of bus caravans of mothers from Macedonia through Serbia to
25 Croatia to these besieged camps to get their sons out of the
26 army. It was disintegration of so many institutions, including
27 the army.
1 Q. So war broke out in any case, is that not so?
2 A. I am sorry?
3 Q. War broke out in Croatia at the time of the secession?
4 A. Yes, in the late summer and fall.
5 Q. So then what happened in Bosnia-Herzegovina was not very much
6 different, was it not?
7 A. No, it was not so different. It is just that it did not happen
8 until the war in Croatia was largely over. The Yugoslavs were
9 noted for black humour, and one of the black elements of black
10 humour in late 1991 in Bosnia was, you know, why isn't Bosnia
11 involved in the war? The answer was because these are only the
12 semi-finals and Bosnia got a seed in the finals.
13 Q. In 1990 what was the ethnic percentage in Yugoslavia, Serbs,
14 Croats, Muslims, all of Yugoslavia? What was the largest group?
15 A. Your Honour, I will embarrass myself. Certainly the largest
16 group were the Serbs.
17 Q. By far I guess?
18 A. Well, yes, certainly, they are the largest group. Yes, far and
20 Q. Then the next group is then Croats?
21 A. Croats, yes.
22 Q. And after that Muslims?
23 A. Muslims, Slovenes, they are both about 2 million. Yes, 2.1
24 million Muslims, 1.9 million Slovenes, something like that.
25 THE PRESIDING JUDGE: Mr. Orie, do you have additional questions?
26 MR. ORIE: I have no additional questions.
27 THE PRESIDING JUDGE: Mr. Niemann?
1 MR. NIEMANN: No, your Honour.
2 THE PRESIDING JUDGE: Mr. Wladimiroff, what will we do tomorrow? It
3 occurred to me you do not have another witness for this week, do
5 MR. WLADIMIROFF: That is right. As we discussed earlier, it was the
6 intention of the Defence to proceed on the 17th with our first
7 witness of fact. Because of the elections I have no opportunity
8 to bring them.
9 THE PRESIDING JUDGE: And the problems with your other expert
10 witnesses who will be available at a later time, I gather.
11 MR. WLADIMIROFF: Yes. I rescheduled them to the last week, to have
12 them all together, that would make sense, instead of mixing them
13 with the witnesses of fact as soon as they are available. We
14 might use the time perhaps, your Honour, because, as I said, we
15 will file this motion on protection. As a matter of fact, we
16 will file it tomorrow morning and perhaps you could hear it on
18 THE PRESIDING JUDGE: Friday at some point we were going to issue a
19 decision in a Rule 61 proceeding that we had and we had
20 scheduled that for 4.30. You are filing the motion?
21 MR. WLADIMIROFF: First thing tomorrow morning.
22 THE PRESIDING JUDGE: Will that require then argument?
23 MR. WLADIMIROFF: I do not think so.
24 THE PRESIDING JUDGE: Do you think it will be opposed?
25 MR. WLADIMIROFF: I hope not. I have no reason to believe it will.
26 It is in the sequence of previous requests and I would say there
27 are no new elements involved. So it is more or less the same as
1 what we have already dealt with.
2 THE PRESIDING JUDGE: If it is not to be opposed then there is really
3 no reason for us to discuss it in Chambers. There is another
4 motion, Judge Stephen reminds me, that has been filed, a
5 confidential motion, by the Prosecutor. I do not want to
6 discuss it any more, but you have received that.
7 MR. WLADIMIROFF: Yes.
8 THE PRESIDING JUDGE: Do you oppose that motion? Is that something
9 we can talk about?
10 MR. WLADIMIROFF: I am not ready to take a position yet, but we might
11 discuss the matter tonight and we might be able to respond.
12 THE PRESIDING JUDGE: Perhaps tomorrow afternoon. I am concerned
13 about the interpreters. I do not want to keep them hanging and
14 available if we do not need them.
15 What we will do is then to adjourn, just talking with
16 the Registry and Miss Featherstone, we will adjourn until
17 Tuesday. Then we can begin Tuesday. Professor Hayden, you are
18 sitting here listening to all this. Is there any objection to
19 Professor Hayden being permanently excused, unless you are just
20 interested in this you can sit, otherwise is there any objection
21 to Professor Hayden?
22 MR. NIEMANN: No, your Honour.
23 THE PRESIDING JUDGE: Professor Hayden, you are permanently excused.
24 Thank you very much for coming.
25 We can adjourn until Tuesday at 10 o'clock and you can
26 tell the Registry whether it is necessary to begin in closed
27 session on Tuesday for your motion and, Mr. Niemann, for your
1 motion as well. The two of you will know whether there is going
2 to be opposition. If there is no opposition we may not have to
3 discuss it, but you will resolve that, tell the Registry whether
4 we need to meet in closed session on Tuesday at 10. We will
5 just adjourn until then. We will handle the other matter we
6 needed to handle that does not relate to this case when we need
8 MR. WLADIMIROFF: The decision on our motion on dismissal will be
9 read in court or just handed?
10 THE PRESIDING JUDGE: We have not actually decided whether we are
11 going to issue a written decision or whether it just will be
12 orally delivered. It would have been ready tomorrow, so perhaps
13 we will do it as a minute entry or we will resume again on
14 Tuesday and then just announce the ruling. But we are still
15 deliberating on that.
16 Any questions? We are missing two days. Let us not
17 do that again. From looking at your new witness list,
18 Mr. Wladimiroff, and the way you prepared it is very helpful, it
19 takes us to October 25th.
20 MR. WLADIMIROFF: That is right.
21 THE PRESIDING JUDGE: That does not include time for
23 MR. WLADIMIROFF: I think it is.
24 THE PRESIDING JUDGE: It does include time?
25 MR. WLADIMIROFF: Yes.
26 THE PRESIDING JUDGE: So you have estimated? They can estimate your
27 cross-examination, Mr. Niemann! They have been with you so
1 long they know how long it is going to take!
2 MR. WLADIMIROFF: We have had some experience now, have we not.
3 THE PRESIDING JUDGE: That is good. Then rebuttal, Mr. Niemann, do
4 you know at this point how long you would need for rebuttal?
5 The time for filing your rebuttal witnesses has not arrived
6 yet. Can you give us any clue at this time, if you can?
7 MR. NIEMANN: It is very hard, your Honour, to give an estimate.
8 THE PRESIDING JUDGE: But when you file your list then of course we
9 will have it.
10 MR. NIEMANN: We will know then, your Honour.
11 THE PRESIDING JUDGE: Because we must finish this case before the end
12 of November, we absolutely must. It looks like we can now
13 because I did not realise that the October 25th date included
15 MR. WLADIMIROFF: If you would not had suggested that I would have
16 because really it should end indeed.
17 THE PRESIDING JUDGE: OK. We still are concerned though about losing
18 days. So let us handle the time that we have as efficiently as
19 possible. So we will adjourn until 10 a.m. You let the Registry
20 know whether we need to meet in closed session on Tuesday,
21 otherwise it will be in open session on Tuesday at 10 a.m.
22 MR. WLADIMIROFF: I will.
23 THE PRESIDING JUDGE: The Court is adjourned.
24 (5.35 p.m.)
25 (The court adjourned until Tuesday, 17th September 1996).