1 Tuesday, 18 January 2005

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 9.02 a.m.

6 JUDGE ROBINSON: Mr. Milosevic, just two matters before you begin.

7 We will deal with the admission of documents as exhibits individually, and

8 use must be made of the documents through the witness if the documents are

9 to be considered for admission as exhibits. Let us proceed.

10 THE ACCUSED: [No interpretation]

11 JUDGE ROBINSON: I'm not hearing you.

12 THE INTERPRETER: Can you hear the English?

13 THE ACCUSED: [Interpretation] Can you hear the English?

14 JUDGE ROBINSON: Yes.

15 THE ACCUSED: [Interpretation] As I was saying with respect to the

16 tendering of documents, I went through a series of decisions by the

17 Constitutional Court of Yugoslavia with this decision. I took them one by

18 one. And as far as I remember, on the last working day last week, you

19 said that they should be marked for identification. Do I have to go

20 through those documents again or can it be taken that I tendered them?

21 [Trial Chamber confers]

22 JUDGE ROBINSON: Yes. You don't need to go through them again.

23 Those are marked for identification because of translation.

24 THE ACCUSED: [Interpretation] Very well. So we can continue.

25 Fine.

1 WITNESS: RATKO MARKOVIC [Resumed]

2 [Witness answered through interpreter]

3 Examined by Mr. Milosevic: [Continued]

4 Q. [Interpretation] Professor Markovic, at the end of our working day

5 last week, we left off by your observing that setting apart a part of the

6 federation or a part of the federation separating was possible in a legal

7 and lawful manner on the basis of consensus and agreement by the other

8 constituent elements. Was that, in a nutshell, what you were saying?

9 A. Well, that wasn't my opinion. That was the position taken by the

10 1974 SFRY constitution; the federal structure could change. You could

11 change the character of the country but only by changing and amending the

12 constitution. And how the constitution is amended is written down in the

13 constitution itself, the method by which this should be done.

14 Q. Tell me, please, were there any attempts to separate -- effect

15 separation of this kind in a constitutional manner on the basis consensus

16 and agreement, was it possible to regulate that, and where did the

17 initiative for that come from in the first place?

18 A. Yes, there were indeed attempts to do that sometime towards the

19 end of December, 1991. On the 21st of December, 1991 to be exact. The

20 federal council condemned the unilateral secession of the republics and

21 decided that its board, which was an auxiliary body for the social and

22 political system, should draft a bill for a law for the realisation of the

23 rights of peoples to self-determination. So it came from the lower house

24 of the federal parliament because it was in charge of bringing in laws of

25 that kind. And after it, that task was assigned to its board, that is to

1 say its auxiliary body.

2 Q. Tell me, were you yourself included in any of these activities in

3 any way?

4 A. I was not a member of the working body myself or, rather, the

5 working group that was set up to draw up the draft law. I think Gavro

6 Perazic. Gavro Perazic was president of the working group, and he would

7 consult me on a number of occasions. He would ask me for my opinion and

8 would give me the texts already drafted to review, to look through and to

9 give him my comments. So that I didn't take part in the actual writing of

10 the draft law, but I am fully aware of its contents and the basic idea.

11 Q. All right. Can we say, then, that you are indirectly involved as

12 a consultant of the head of that working group?

13 A. Yes, that's right, I was involved in that way.

14 JUDGE ROBINSON: At that time, what was your substantive position?

15 THE WITNESS: [Interpretation] In 1991, I had no substantive

16 position. I was just a professor at the faculty of law in Belgrade. It

17 was only in 1992 that I was given my first political position or, rather,

18 I was elected as deputy to the federal parliament. Up until then, I was

19 professor of constitutional law at the faculty of law in Belgrade and in

20 that capacity my senior colleague, Professor Gavro Perisic, who otherwise

21 teaches international public law, and he engaged me as a consultant.

22 JUDGE ROBINSON: Thank you.

23 MR. MILOSEVIC: [Interpretation]

24 Q. Professor Markovic, may we take a look at tab 40 now, please. It

25 has been translated into English, and it is a proposal for a law on the

1 realisation of nations to self-determination. And it says with the

2 proposal that the law be enacted through urgent measures, and we have the

3 integral text of that law.

4 Could you take a look at some of the articles of that draft law.

5 We'll go through them fairly rapidly, in rapid succession, but let me draw

6 your attention to the articles that I would like to highlight and discuss

7 with you. They are Article 3, 6, 7, 9, 10, 11, 12, 14, 15, and 17.

8 So could you please explain to me first, just to be quite clear

9 what this is all about this: You have certain portions of the text that

10 are crossed out and -- in the typing, and then you have the integral text

11 which has been prepared for the Assembly. What are the sections that have

12 been crossed out?

13 A. The crossed out sections were not adopted at the board in charge

14 of the social political system, or socio-political relations as that

15 working body was called. So in the course of their work, something was

16 added to the draft and something was taken away, subtracted from it, not

17 adopted. But what was in the draft remains crossed out like this so that

18 we can see what was actually proposed and then what was adopted.

19 A. Yes. The sequence of the idea put forward and how the actual

20 draft text was arrived at, so that's why we have it in this form with the

21 crossings out as well.

22 JUDGE ROBINSON: There is no crossing out in the English text, so

23 we're unable to appreciate the significance of the -- what was crossed out

24 and what was included.

25 MR. KAY: It's in the B/C/S version.

1 JUDGE BONOMY: Yes. I take it, Mr. Kay, from that, that it's the

2 part in block capitals in the English version, which remains, and the part

3 which is simply an ordinary script or typed script is the part which was

4 not endorsed.

5 MR. KAY: Well, Article 2, for instance, is untouched, not crossed

6 out, and that's not in block capitals. I think the typist was probably

7 reluctant to deal with it in the way that it was originally done, probably

8 not knowing the significance of it. That's my guess.

9 THE ACCUSED: [Interpretation] Very well.

10 MR. MILOSEVIC: [Interpretation]

11 Q. We're going to comment on the sections that remain in the final

12 text and were not crossed out, and my question was to clear up any

13 misunderstandings in that regard as to the crossed out parts and the parts

14 that weren't crossed out.

15 Professor Markovic, would you please read out Article 3 and

16 explain it to us, or quote it.

17 A. Let me say once again that the meaning of this -- the purpose of

18 this draft was in a peaceful democratic legal way to have the nations able

19 to realise their rights to self-determination, because without doubt that

20 was indeed a constitutional right.

21 Article 3 gives us the modalities for doing that, or the options

22 for realising -- for people realising their right to self-determination.

23 There were four modalities, the right of people to self-determination

24 defined as the right to decide on the form of social and state system, and

25 in that way to freely realise their economic, social, and cultural

1 development.

2 Second, it is also the right to continue to live together with

3 other peoples in the Yugoslav state.

4 Then third, the right to peoples to unite with other peoples and

5 enter into other forms of integration, association, cooperation.

6 And finally, fourthly, the right of peoples to create independent,

7 sovereign and autonomous states, hereinafter referred to as independent

8 states.

9 So those were the four options which would give peoples the right

10 to self-determination, three methods.

11 Q. Now, the right to create independent sovereign and autonomous

12 states, the right you just quoted, is defined in this law, is it?

13 A. Yes, in the draft law. That is one of the options, one of the

14 modalities, just like each of the other ones, to be realised according to

15 condition and procedure defined in the following articles of this draft

16 law.

17 Q. Let's take a look at Article 6 now, Professor. It says here:

18 "The right of people to create an independent, sovereign and autonomous

19 state is realised on the basis of people's voting results in a

20 referendum." And that is the entire text of Article 6.

21 A. Yes, but the right of peoples at referendum -- and here when it

22 says "people," it means nation. Not people but peoples, in fact, nation.

23 It is the nation which realises that right on the basis of their views

24 stated at a referendum or plebiscite.

25 Q. Well, let's be clear on this because the terms seem to be used

1 differently in the Serbian language and in English. Here what is referred

2 to is the Yugoslav nations; the Serbs, Croats, Macedonians, Muslims, and

3 so on. Is that right?

4 A. Yes, absolutely.

5 Q. Now, in Article 7, since Article 6 explains that it is the peoples

6 or nations Croats, Muslims, Serbs, et cetera --

7 JUDGE BONOMY: Before you go on, Mr. Milosevic, in Article 6 there

8 are certain words deleted. Can you tell me what these words are in

9 English?

10 THE ACCUSED: [Interpretation] Yes. "Sovereign and --"

11 "independent, sovereign and autonomous," or rather, "sovereign and

12 autonomous." "The rights of nations to create independent states." That

13 has remained, whereas the other attributes of sovereign and autonomous

14 were thrown out because "independent" implies that they are already

15 sovereign and autonomous.

16 JUDGE BONOMY: The way the evidence has just been given was on the

17 basis that all three remain, so it is very important to specify exactly

18 what the terms of the constitution -- the constitutional amendment were.

19 THE ACCUSED: [Interpretation] I'm not sure I followed you,

20 Mr. Bonomy. Are you referring to Article 6?

21 JUDGE BONOMY: Yes. I'm referring to Article 6 where your

22 question was: "It says here, 'The right of people to create an

23 independent, sovereign and autonomous state is realised on the basis of

24 people's voting results in a referendum.' And that is the entire text of

25 Article 6." But we now discover, in fact, that the text of Article 6

1 actually omits the words "sovereign and autonomous," and that may be

2 important. I just wanted to be clear exactly what the exact text in

3 Serbian was, and I think you've now clarified that.

4 THE WITNESS: [Interpretation] May I be allowed to clarify? In

5 Article 3 where the options are stated, the last one, the "right to create

6 independent ... state," and then, "(hereinafter referred to as:

7 Independent state)." So the draft will no longer stipulate "independent,

8 sovereign and autonomous"; hereinafter, as it says, they will be referred

9 to as just independent states.

10 JUDGE BONOMY: Thank you.

11 JUDGE ROBINSON: Mr. Milosevic, just a minute, please.

12 [Trial Chamber confers]

13 JUDGE ROBINSON: Continue, Mr. Milosevic.

14 THE ACCUSED: [Interpretation] I hope that this is clear now in

15 view of the fact that Article 3 says the right of nations to create

16 independent, et cetera, et cetera ... "... independent, sovereign and

17 autonomous states," and then in brackets, "(hereinafter referred to as

18 independent states)." Just like any legal text, we see this term

19 "hereinafter" to make the text lighter and not to have to repeat all the

20 individual elements that have already been stated at the beginning.

21 JUDGE ROBINSON: We perfectly understand the reason. The question

22 is what else is there in the English text which should not [Realtime

23 transcript read in error "should"] be there in other articles as we go

24 along? But proceed.

25 MR. MILOSEVIC: [Interpretation]

1 Q. In the English text, we will now turn to Article 7. The first two

2 paragraphs of Article 7 have been crossed out, and the portion which is in

3 capital letters remains. In Serbian text the first two paragraphs have

4 been crossed out. I assume that the translator believed that there was no

5 need to cross this out because it was obvious.

6 Professor Markovic, since the previous article sets forth that the

7 right is realised on the basis of a referendum --

8 JUDGE ROBINSON: I'm sorry to interrupt you. Just to correct what

9 I said. I said the question is what else is there in the English text

10 which should not be there in the other articles as we go along. "Not" has

11 been omitted. Please continue.

12 THE ACCUSED: [Interpretation] Mr. Robinson, I presume that the

13 English text contains every word that is contained in the Serbian text

14 except that no text has been crossed out, but we can certainly compare.

15 MR. MILOSEVIC: [Interpretation]

16 Q. Professor Markovic, since Article 6 specifies that the right is

17 realised on the basis of a referendum, please explain to us and read out

18 Article 7.

19 A. Well, as you can see, the first two paragraphs of Article 7 have

20 been crossed out. Therefore, they're invalid. The following two

21 paragraphs are valid, the ones in capital letters. These two paragraphs

22 regulate the exercising of the right to self-determination in the

23 republics where two or more nations are considered constituent nations.

24 That means that in the same republic, one constituent nation can vote in

25 favour of an independent state, whereas the other constituent nation can

1 opt for a common state with other Yugoslav nations if these other Yugoslav

2 nations desire so. The Assembly of the SFRY is informed about the results

3 of a referendum, which is specified in Article 8. The text of Article 8

4 is not in capital letters.

5 Q. Well, these are technical differences, not essential ones, as far

6 as I understand it.

7 Now, please take a look at Article 9. It mentions an objection

8 that can be sent to the SFRY Assembly. Can you tell us something about

9 that?

10 A. Yes. The SFRY Assembly is informed about the results of a

11 referendum, and should the Assembly be sent an objection complaining that

12 the referendum was not carried out in accordance with the provisions of

13 this law, then the Assembly can establish an Arbitration Commission which

14 should provide its opinion with respect to the objection within 30 days.

15 Q. Thank you, Professor Markovic. Now let us turn to Article 10. Is

16 this what would ensue after the referendum if everything is conducted in

17 accordance with the law? What happens after that?

18 A. You mean Article 10?

19 Q. Yes.

20 A. Well, should the Assembly establish that the referendum was valid,

21 was carried out in accordance with the provisions of this law, then the

22 Assembly of the SFRY would commence procedure for territorial and material

23 delimitation and would undertake necessary measures and actions needed for

24 continual functions of the state community with the peoples who continue

25 to live together in the Yugoslav state.

1 Q. Very well. What is Article 11 about?

2 A. Article 11 speaks of territorial delimitation which encompasses

3 the establishment of borders of Yugoslavia and the parts that have

4 seceded, which should be done on the basis of ethnic, historical,

5 geopolitical and strategic criteria as well as generally accepted rules of

6 international law.

7 Q. What does Article 12 discuss?

8 A. Article 12 discusses material delimitation which is done on the

9 basis of the partition balance of the jointly created values, property,

10 and debts of the Yugoslav state. I don't think there is any need to go

11 into further details concerning paragraph 2, which mentions all the

12 specifics of the partition balance.

13 Q. All right. Article 14. I have selected only those articles that

14 I believe to be relevant.

15 A. Well, Article 14 says that in order to carry out territorial and

16 material delimitation, the Assembly of the SFRY shall establish a special

17 commission. And should there be a dispute, then that dispute would be

18 reviewed by an arbitration, whereas the parties to the dispute would

19 decide on their own whether they would establish their own ad hoc

20 arbitration or whether they would address themselves to an international

21 arbitration. This is what Articles 14 and 15 discuss. They speak about a

22 subject matter that is linked.

23 Q. What about Article 17?

24 A. Article 17 specifies the conditions under which Yugoslavia may

25 recognise as an independent state a state where such a decision was taken

1 at a referendum. There are four conditions. The first one is that the

2 territorial and material delimitation was carried out in accordance with

3 the provisions of this law. The second one is that that republic needs to

4 give a guarantee that it shall respect all basic rights and freedoms of

5 the citizens of SFRY, protect the property and rights of peoples, national

6 minorities, and ethnic groups in accordance with the rules of

7 international law. The third one is that the republic needs to give a

8 guarantee that it shall respect the assumed international legal

9 obligations. And final one is that the republic needs to give a guarantee

10 that it shall respect the assumed obligations regarding prohibition of

11 construction of nuclear power stations and other nuclear structures which

12 may be harmful to people's health and environment, and prohibition of

13 importation and storage of dangerous -- hazardous material.

14 Q. All right. So these are some of the most important provisions of

15 this law, rather this draft law, which was drafted at the initiative of

16 the federal Chamber of Yugoslavia.

17 A. Yes. The federal Chamber was in charge of that. The Federal

18 Assembly at the time had two houses; a federal Chamber, which is the

19 citizens Chamber, which was the lower house, and the upper house, the

20 house of republics and provinces. The decision-making was unicameral, not

21 bicameral, because there was a list of laws that was adopted or could be

22 adopted by the two Chambers. The Chamber of the republics mostly adopted

23 law from the field of economy, whereas the federal Chamber was in charge

24 of the laws in the field of politics. Therefore, this law was -- fell

25 within the responsibility of the federal Chamber. This is why the federal

1

2

3

4

5

6

7

8

9

10

11

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

13 English transcripts.

14

15

16

17

18

19

20

21

22

23

24

25

1 Chamber initiated the adoption procedure of this bill, and this is why it

2 was in charge of its drafting.

3 Q. And what was the fate of this draft?

4 A. This draft never became a bill, nor was it ever presented to the

5 Chamber. In a sense, it arrived post festum, after the fact, after the

6 secession had been carried out of certain republics, and naturally those

7 republics that had seceded from Yugoslavia did not wish to subsequently

8 legalise their secession in accordance with the provisions of this law.

9 They simply based their independence and later on sovereignty on an

10 unconstitutional act.

11 Q. In relation to the views taken by the Constitutional Court of

12 Yugoslavia, we saw a number of decisions of that Court, and if you

13 remember, Lord Carrington put a question to the Constitutional Court of

14 Yugoslavia. And let me formulate my question in more specific terms.

15 Regardless -- or outside, beyond these decisions that we quoted

16 last time, did the Constitutional Court of Yugoslavia take a position with

17 respect to whether what happened in Yugoslavia was a disintegration or a

18 secession?

19 A. Yes. The Constitutional Court of Yugoslavia, as an organ

20 responsible for watching over the constitution, did give an answer to a

21 question which is eminently a constitutional question, namely, what

22 happened in Yugoslavia. Was there a secession that was carried out in

23 Yugoslavia or a disintegration? And Lord Carrington, in his capacity as

24 the chairman of the Conference of the former Yugoslavia, put this question

25 to the arbitral commission, which was an auxiliary body of the conference,

1 and the arbitral commission requested from certain organs in various

2 republics to provide their view on that question, what they believed was

3 the proper answer, so that the arbitral commission could take a final

4 position.

5 Q. Please take a look at tab 2. There we have an answer to Lord

6 Carrington's question as to whether what happened in Yugoslavia was a

7 disintegration or a secession, and here we can see that this document was

8 sent to the arbitral commission by the Ministry of Foreign Affairs, to the

9 Conference of European Community on the former Yugoslavia, and we also

10 have a number here.

11 I will only quote two paragraphs at the end of this document.

12 Second and third from bottom. This is the answer provided to Lord

13 Carrington's question.

14 "Yugoslavia is not a contractual community of states. Therefore,

15 one cannot say that Yugoslavia broke up due to the cancellation of the

16 contract on which it was based. Yugoslavia was not created as a

17 federation of sovereign and independent states in the form of the

18 republics of the Yugoslav state community but as a federal state of the

19 peoples of Yugoslavia and their republics. Therefore, every republican

20 document in which a republic declares itself a sovereign and independent

21 state is an unconstitutional change against the constitutional system of

22 Yugoslavia, or rather, a secession document that, pursuant to the decision

23 of the Constitutional Court of Yugoslavia, cannot have legal effects."

24 And then the following paragraph: "The break-up or the

25 disintegration of Yugoslavia can only be viewed as a consequence of

1 unconstitutional documents of individual republics on declaring their

2 sovereignty and independence. Such unconstitutional documents cannot

3 legally call into question the survival of Yugoslavia as a federal state

4 and a subject of international law as long as at least two republics

5 remain in that community."

6 Is that the essence of the answer provided to Lord Carrington's

7 question?

8 A. Yes. That's precisely the substance of all of those decisions of

9 the Constitutional Court that we reviewed on Thursday last week.

10 Therefore, starting from -- basing its answer on the constitution, the

11 Constitutional Court took view that Yugoslavia was not a contractual

12 community. It was not a mechanical sum of individual parts but was one

13 whole uniting all those parts, that it was a sovereign federal state. So

14 that any act of secession from Yugoslavia taken against the constitution

15 meant an unconstitutional change of a federal state. From a legal point

16 of view, such an act, enactment, was invalid, was null and void.

17 Therefore, there could be no question of disintegration of Yugoslavia.

18 This was an act that constituted an unconstitutional disintegration of a

19 federal state, but Yugoslavia, even after the secession, would

20 mathematically continue to exist as long as it had at least two federal

21 units because those two federal units taken together constituted more than

22 half of the territory of republics that had seceded and more than half of

23 the population of the -- living in those seceded republics. That was the

24 position taken by the commission and the Constitutional Court. And this

25 view of the commission was simply extracted from the decisions that had

1 already been passed by the Constitutional Court. We reviewed all of those

2 decisions of the Constitutional Court last Thursday.

3 Q. Based on your experience as judge of the Constitutional Court of

4 Yugoslavia, based on the arguments you heard that were used in those

5 discussions, could you tell us briefly why administrative borders cannot

6 be state borders as well.

7 MR. NICE: I simply observe that this is -- this is completely

8 contrary to the principle that excluded Professor Kristan's evidence. He

9 was a participating member of the court, and for the preparation of an

10 opinion, which got no further, I think, than the preparation of an

11 opinion, he was excluded from giving of evidence.

12 It may be better simply to allow this witness to say whatever he's

13 going to say, recognising that it frankly is expert evidence. I'll do my

14 best to deal with it, but the consequences of there having been no expert

15 evidence served in advance will have to be faced at a later stage.

16 JUDGE ROBINSON: Unless he's giving evidence as a matter of fact,

17 as a participant in this particular case, not giving evidence as an

18 expert.

19 MR. NICE: The question reads: Based on your experience, based on

20 the arguments would you tell us briefly why there cannot be state borders.

21 That would seem to me almost inevitably to bring in expert answers. And

22 indeed I think - I can't recall precisely the ways in which we advanced

23 the problem of Kristan's evidence on Kosovo, but I think one of the things

24 was that we suggested he could give evidence limited in some way to the

25 factual, and that was excluded. But I don't want to retrace all that. I

1 will simply observe this is plainly a form or species of expert evidence.

2 I'll deal with it as best as I can.

3 [Trial Chamber confers]

4 JUDGE ROBINSON: We have interchanged positions, Mr. Nice. You

5 have been referred to as Judge Robinson.

6 MR. NICE: I'm so sorry.

7 JUDGE ROBINSON: I hope not to your disadvantage.

8 THE INTERPRETER: Microphone, please, for Mr. Nice.

9 MR. NICE: I'm deeply honoured, and for this error many thanks.

10 MR. KAY: The witness can give evidence of the decision that was

11 made, and that's his experience. That's what happened, and that's what

12 he's doing. It's a matter of fact as to what the decision was, and this

13 is part of the evidence that's being given.

14 JUDGE ROBINSON: That's the view that I have, that he can give the

15 evidence as a matter of fact. Kristan was proposed as an expert witness.

16 Continue, Mr. Milosevic.

17 MR. MILOSEVIC: [Interpretation]

18 Q. So Professor Markovic, can you tell us on the basis of your

19 experience in the Constitutional Court and your practice in the

20 Constitutional Court, what were the arguments that were resorted to and to

21 what extent were they based on the constitution? Why can administrative

22 borders not be state borders?

23 A. You have already mentioned these reasons, that is to say last

24 Thursday when you invoked these decisions. All of that is written in the

25 decisions themselves. It says why internal borders cannot be considered

1 state borders. International law applies to state borders whereas

2 internal law applies to internal borders. This is based on the system of

3 Yugoslavia. Yugoslavia was a federal country, and this has to do with the

4 fact that there was a federal system. The regimen of state borders was

5 regulated in Article 5 just like the regimen of internal borders. So

6 internal borders are an internal matter of the state concerned. That was

7 the ruling of the Constitutional Court, whereas international borders,

8 state borders, are subject to international law and they are based on

9 international law in its universally recognised principles.

10 JUDGE ROBINSON: Mr. Nice, we may be minded to allow you to call

11 Dr. Kristan as a fact witness.

12 MR. NICE: I'm obliged.

13 [Trial Chamber confers]

14 JUDGE ROBINSON: Mr. Milosevic, we should deal with the admission

15 of these two tabs, in line with the procedure that I outlined at the

16 commencement. We'll admit both of them.

17 What's the number?

18 THE REGISTRAR: Tab 14 and tab 2.

19 JUDGE KWON: It should be tab 40.

20 THE ACCUSED: [Interpretation] Thank you.

21 MR. MILOSEVIC: [Interpretation]

22 Q. Let us go back to the answer to Lord Carrington. After giving an

23 answer to Lord Carrington's question, the Arbitration Commission on

24 Yugoslavia, did it take decisions of its own with regard to this matter

25 or, rather, did it take positions?

1 A. The Arbitration Commission precisely sought the opinion of all the

2 relevant organs in each and every one of the republics of the Yugoslav

3 federation in order to be able to take a position of its own. There was a

4 series of such opinions. However, this is opinion number one of the

5 Arbitration Commission. It took its own view.

6 Q. All right. The view of the Constitutional Court, as expressed in

7 this answer to Lord Carrington which we've quoted, was it taken into

8 account when the Arbitration Commission took its position?

9 A. It was not taken into account, the position of the Constitutional

10 Court of Yugoslavia when the Arbitration Commission took its view. The

11 Arbitration Commission ruled quite the opposite, totally ignoring the

12 constitution of the federation and the fact that secession was an

13 anti-constitutional act.

14 Q. Tell me, Professor Markovic, where is the difference between the

15 position of the Constitutional Court and the position of the Arbitration

16 Commission?

17 A. There are three differences. First of all in relation to the

18 status of Yugoslavia; then in relation to who the protagonist is of the

19 right to self-determination; and finally, there is a difference in terms

20 of how state territory is treated.

21 Q. All right. In relation to these three main points, first of all

22 you said that there is a difference in terms of the status of Yugoslavia.

23 Could you please be so kind as to spell this out more specifically.

24 A. In relation to the rulings of the Constitutional Court and in

25 relation to the letter to Lord Carrington, the position of the court --

1 Constitutional Court is quite clear. The Constitutional Court believes

2 that it is the people who have the right to self-determination. It is a

3 universal right. It is a general right. There are two equal options, one

4 to leave the federal Yugoslavia, and the other one to remain in

5 Yugoslavia. One cannot supersede the other. Both have equal value, both

6 options. And for as long as there are at least two constituent elements

7 left in the federal Yugoslavia, at least two federal units, Yugoslavia as

8 a state continues to exist, particularly because secession is an

9 anti-constitutional act.

10 The commission, on the other hand, believed that Yugoslavia was in

11 a state of dissolution, that is to say disintegration, and that it was

12 disintegrating into its integral parts, although that did not correspond

13 to the actual fact. Two federal units did decide to remain in Yugoslavia,

14 and they reconstructed the federal system through their own constitution

15 adopted in April 1992. Therefore, the constitution believes that the

16 right to self-determination, that is to say to leave the federation,

17 cannot supersede the right to self-determination in the sense of remaining

18 in the federation.

19 Q. All right. In relation to the other element that you mentioned,

20 in terms of who the protagonist is of the right to self-determination,

21 what is the core of the matter?

22 A. The Constitutional Court believed, proceeding from the

23 constitution, that is to say section 1, basic principles, that the nation

24 is the right -- is the protagonist of the right to self-determination.

25 I'm just going to look at the ... "[In English] Proceeding from the

1 right of every nation to self-determination." [Interpretation] Not to

2 quote the entire text. It's a bit of a blah, blah. "[In English] Federal

3 republic of free and equal nations."

4 [Interpretation] So free and equal nations created Yugoslavia.

5 Therefore, they are the only ones that can be the protagonists of the

6 right to self-determination.

7 The federal state, and that is an anomaly in the Yugoslav

8 federation, preceded the republics. First the federal state was created

9 at the second session of AVNOJ, which in a way was the Philadelphia

10 convention from the point of view of the Yugoslav situation, and the

11 participants in the session of AVNOJ were in a way the founding fathers of

12 the federal Yugoslavia. So it was the Federal Republic of Yugoslavia that

13 was first established and then the territories of the republics were set

14 up. They were not established at the second session of AVNOJ.

15 Q. Stop there, please, Mr. Markovic. Could you tell us which legal

16 document regulated the borders among the republics.

17 A. There was no legal document that ever regulated those borders.

18 Those borders were never legalised. That is one matter.

19 And secondly, it was never established by democratic means, that

20 is to say by a referendum. There is not a single legal document which

21 established the borders among the federal units. The only trace of such

22 borders can be found in the stenographic notes of the Presidency of AVNOJ,

23 dated January 1945, when the ASNOS, the Anti-fascist Council of National

24 Liberation of Macedonia, so there should be an M at the end, that was the

25 national parliament of Macedonia, and ZAVNOH, that is to say the

1 country-wide Anti-fascist Council of National Liberation of Croatia, asked

2 for a larger number of their representatives in AVNOJ. Then in these

3 stenographic notes, we can see what was the territory of the republic that

4 was taken as relevant for the election of delegates to AVNOJ.

5 Then it says that Slovenia is considered to be the border --

6 within the borders of Dravska Banovina, as it was formally known. Then

7 the Savska Banovina was Croatia, plus 13 districts of Primorska Banovina

8 plus the Dubrovnik district and the Zetska Banovina. Bosnia-Herzegovina

9 was within the borders established at the Congress of Berlin, the Republic

10 of Macedonia was within the borders south of Kacanik and Risovac all the

11 way to the state border of the Kingdom of Yugoslavia, that Montenegro was

12 considered to be within its borders before the Balkan wars plus the Bereni

13 [phoen] and Kotor districts. As well as Plav and Gusinje [phoen].

14 Whereas Serbia was considered to be within its borders before the Balkan

15 wars, but extended by two districts on the basis of the Versailles peace

16 treaty, that is Bosiligrad [phoen] and Dimitrovgrad. But that is the only

17 written trace of all of this.

18 MR. NICE: [Previous translation continues] ... answer to the

19 Court. It's not an answer to the question, which simply said can you

20 identify a document. Is it relevant? Is it going to help us? Those are

21 my observations.

22 JUDGE ROBINSON: In fact, Mr. Nice, your intervention allows me to

23 raise a question that I wanted to raise about this evidence.

24 Mr. Milosevic and Mr. Kay and Mr. Nice, tell me if you agree with

25 this: The Chamber is not called upon to pass upon the correctness of any

1 of these decisions, say the decision of the Constitutional Court. The

2 Chamber doesn't have to evaluate the lawfulness of the secession of any

3 particular republic. The Chamber is concerned that these things happened

4 as a matter of fact, and the Chamber is concerned to note the consequences

5 that they had for events which form the basis of the indictment.

6 What I'm trying to ascertain is to what extent the evidence is --

7 how it becomes relevant for the case. I don't think the Chamber has to

8 pass upon, has to concern itself with whether the decision of the

9 Constitutional Court was right or whether the secession followed

10 particular procedures. It is the fact of these happenings which is

11 important and the effect which those happenings had on particular acts

12 which are the basis of the indictment.

13 Mr. Milosevic, can I just hear from you on that matter first?

14 THE ACCUSED: [Interpretation] This part of the testimony of

15 Professor Markovic that pertains to the rulings of the Constitutional

16 Court of Yugoslavia and the review of the constitutionality and legality

17 of the documents adopted by the republics that seceded shows that

18 secession was illegal and violent and that it caused armed conflicts.

19 Therefore, I assume that that is very important to establish. Since this

20 entire approach says that Serbia or I personally had some kind of plan to

21 do something against others, whereas it stems from all of this that the

22 conflicts were a consequence of the illegal and violent secession that

23 took place.

24 So if there was any kind of plan, I mean how can you plan what

25 somebody else is going to do or has done, especially if it is done in a

1 violent manner?

2 JUDGE ROBINSON: Yes. I think you're right. The Chamber is

3 concerned that the secession led to violence, but is the Chamber unduly

4 concerned with the lawfulness of the secession?

5 Mr. Kay.

6 MR. KAY: So far as context is concerned, it's obviously important

7 as we're dealing here with an accused who was a head of state and all that

8 responsibility and all that he had to consider at the time and was aware

9 of at the time that was happening within Yugoslavia. Perhaps the detail

10 of it or excessive detail of it can be too much, but the fact of what the

11 witness is dealing with is important in relation to the accused's own

12 position, and when one -- and he -- or has his state of mind considered as

13 to what he did or said and how he conducted himself as the President of

14 Serbia.

15 So in that context important, but perhaps overly detailed, may be

16 drawing the Court to the position where it considers, "Well, do we have to

17 decide on this as a matter of law, as a matter of law in relation to this

18 indictment?" Probably not, and it wouldn't be the function of this Court.

19 But in the context of how the accused conducted himself, then important.

20 JUDGE ROBINSON: The part of the Prosecution's case, the secession

21 was -- was lawful --

22 MR. NICE: It's not part of our case one way or the other. The

23 question of the legality of secession is not for this Court, and as I was

24 indicating in the reservations I was expressing on a couple of occasions

25 last Thursday, not something necessarily into which we should even be

1

2

3

4

5

6

7

8

9

10

11

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

13 English transcripts.

14

15

16

17

18

19

20

21

22

23

24

25

1 inquiring. I am aware of no statute of the former Yugoslavia or any other

2 international legal instrument or principle of law that says the

3 illegality of an earlier secession or even the belief in the illegality of

4 an earlier secession justifies involvement in war crimes that happened

5 later. It seems to me the two are wholly unconnected.

6 That individuals in one state or another might have believed or

7 been led to believe that secession was unlawful is part of the fabric of

8 the case. Whether it has any effect on the legal liability of this

9 accused is, in our submission, doubtful in the extreme, but we don't

10 object to that being laid before you as part of the context. It would be

11 not only wrong, it would be perilous for this Chamber to venture into some

12 kind of definitive decision on the legality of action of, for example,

13 Slovenia or Croatia in their secessions from the former Yugoslavia. It's

14 not for this Court.

15 JUDGE ROBINSON: Thank you.

16 Mr. Milosevic, I hope you followed the discussion. The matter is

17 relevant, of course, but as Mr. Kay said, too much detail will derail us.

18 We don't want to be too far from the central issues in this case. So we

19 don't need to have as much detail.

20 Professor, Professor Markovic, I'm saying we don't need to have as

21 much detail as you were just giving in answer to the last question. We

22 are more concerned with the -- that matters happened as matters of fact.

23 We'll draw the appropriate inferences.

24 MR. NICE: I'm reminded and am grateful for that and should have

25 mentioned earlier that of course there is one associated legal issue which

1 does concern the Court and that is the date or a date of independence of

2 Croatia for purposes of international armed conflict. That has been dealt

3 with elsewhere in our filings, but that's a different but nevertheless

4 connected or marginally connected issue.

5 JUDGE ROBINSON: Thank you. Mr. Milosevic, please proceed.

6 THE ACCUSED: [Interpretation] Just to link up certain matters with

7 this, Mr. Robinson. Take a look at points 89 and 90 of the Kosovo

8 indictment, for instance. In 89 - I haven't got the Serbian text so I'll

9 read it out. 89 says this: " On 25 June 1991, Slovenia declared its

10 independence from the SFRY, [In English] which led to the outbreak of

11 war..."

12 [Interpretation] And the next sentence: "Croatia declared its

13 independence [In English] on 25 June 1991, leading to fighting between

14 Croatian military forces on the one side and the JNA, paramilitary units

15 and the 'army of Republic of Srpska Krajina' on the other."

16 [Interpretation] And then in 90: "[In English] On 6 March 1992,

17 Bosnia and Herzegovina declared its independence, resulting in wide-scale

18 war after 6 April 1992."

19 [Interpretation] Therefore, the correct observations were made

20 here as to the outbreak of war.

21 Now compare that to point 6 of the Croatian indictment, where it

22 says the following: "The purpose of this joint criminal enterprise [In

23 English] was the forcible removal of the majority of the Croat and other

24 non-Serb population from the approximately one-third of the territory of

25 the Republic of Croatia ..."

1 [Interpretation] And I'd like to emphasise this: "... that he

2 planned to become part of [In English] the new Serb-dominated State

3 through the commission of crimes ..."

4 [Interpretation] This entire approach about some criminal

5 enterprise which was planned, which was planned in order to expel somebody

6 from some territory is quite absurd if we bear in mind the fact that

7 nobody could have planned other people's acts and that the entire conflict

8 came about through the secession and armed attacks on federal organs, not

9 even on Serbia or I don't know what else, but it was an attack on federal

10 organs in those territories. Therefore, we see the extent here to which

11 elementary logic is not being pursued here in these papers and these

12 paragraphs. Absolutely illogical and unfounded, and that is quite

13 evident.

14 JUDGE ROBINSON: Mr. Milosevic, let me see if I understand you.

15 What you're saying is that it is the secession which led to the commission

16 of the acts which are the subject of the indictment and not any joint

17 criminal enterprise of which you were a part. Is that the case?

18 THE ACCUSED: [Interpretation] Well, there is no joint criminal

19 enterprise. How can somebody plan something that somebody else is going

20 to do in the future?

21 JUDGE ROBINSON: Let me stop you. I'm trying to understand your

22 case, and I think I'm getting it clear, the relevance of the secession.

23 You're saying it is the secession and these, what you call unlawful acts

24 on the part of the republics, that explain the acts with which you have

25 been charged, you say wrongly charged. The explanation of the acts is not

1 any criminal enterprise of which you were a part. I understand that is

2 what you are saying.

3 That's an important part of the function of the Chamber,

4 Mr. Milosevic, to try to understand the case that an accused is putting

5 forward, and what I have just said seems to be the -- the explanation of

6 the case that I understand you to be putting forward, and that is why you

7 place so much emphasis on the secession and the lawfulness of the

8 secession which led to the violence.

9 THE ACCUSED: [Interpretation] With an addition, with one proviso.

10 It's not any of my acts, no acts on my part. The conflict was between the

11 paramilitary formations of the illegally seceded republics and the

12 Yugoslav organs, which is to say the Yugoslav People's Army and not the

13 Republic of Serbia whose president I was. So there is a reversal of

14 thesis here. Everything has been placed topsy-turvy. The whole idea has

15 been based completely erroneously. They were not my acts or the acts of

16 the Republic of Serbia. They were violent acts which produced conflicts

17 in which, of course, there were crimes and victims on all sides, et

18 cetera, et cetera, everything else that ensued. But they were not the

19 acts of the Republic of Serbia or my acts.

20 How can you say that they were the acts of the Republic of Serbia

21 if paramilitary Croatian troops block JNA barracks that have been there

22 for 70 years, and then a conflict arises? What does the Republic of

23 Serbia have to do with that? Or, for example, the military expert on the

24 part of the Prosecution, did he produce a single document by the Republic

25 of Serbia or document of mine connected with this? Everything has been

1 placed upside down, on its head.

2 I'm not saying that crimes weren't committed. The fact is who

3 perpetrated the crimes and where the link is, the cause and effect.

4 JUDGE ROBINSON: Yes. Well, the question of responsibility for

5 paramilitary acts is both a legal and a factual issue which will have to

6 be addressed in some detail, no doubt in the closing arguments.

7 Please continue.

8 THE ACCUSED: [Interpretation] Fine, Mr. Robinson, I will.

9 MR. MILOSEVIC: [Interpretation]

10 Q. Now, Witness, in explaining the differences, you mentioned the

11 borders, too, but I think we dealt with that issue and there's no need to

12 dwell on that. We can move on.

13 A. But I'd like to say something else with respect to borders and

14 frontiers, and it's this: When the Arbitration Commission assumed its

15 position with respect to the frontiers, or to put it depo iuris, that is

16 to say relying on the decision of the International Court in the Burkina

17 Faso and Republic of Mali lawsuit, it left out part of the judgement from

18 which we can see that that particular law and rule --

19 JUDGE ROBINSON: Mr. Milosevic, that's the kind of detail we -- I

20 don't think we need. Just move on.

21 THE ACCUSED: [Interpretation] Mr. Robinson, I cannot agree with

22 you on that point because we're not dealing with details. In tab 54, for

23 example, you have quotations by the Badinter Arbitration Commission, and

24 the decision of the Badinter Arbitration Commission was a sort of legal

25 alchemy, if I can put it that way, and a forgery or falsification, because

1 he explains - and you have that in tab 54 and it is in English -

2 "Nevertheless, the principle is not a special rule which pertains solely

3 to one specific system of international law. [In English] It is a general

4 principle, which is logically connected with the phenomenon of the

5 obtaining of independence, wherever it occurs. Its obvious purpose is to

6 prevent the independence and stability of new States being endangered by

7 fratricidal struggles ..."

8 [Interpretation] And then, when you have the Mali-Burkina Faso

9 example and how it referred to something that it could not have referred

10 itself to. So this is a question of fact. And it is not a matter of

11 legal finesse and nuance but it is much more flagrant consequences.

12 MR. MILOSEVIC: [Interpretation]

13 Q. Professor, could you explain this to us, please. Do you consider

14 and in the Constitutional Court did you consider --

15 JUDGE ROBINSON: Mr. Milosevic. Mr. Milosevic, I have made a

16 ruling. If I wish to reconsider it in the light of the comments that you

17 have made, that's a matter for me. It is entirely inappropriate for you

18 to instruct the witness to proceed to answer the question.

19 I'll allow you to deal with it very briefly.

20 THE ACCUSED: [Interpretation] Very well, Mr. Robinson. I'd like

21 to draw the witness's attention to tab 54 now, please.

22 MR. MILOSEVIC: [Interpretation]

23 Q. Just briefly explain to us, not to take up too much time, what is

24 this about?

25 A. What is tab 54?

1 Q. It is the Badinter Arbitration Commission and Mali-Burkina Faso

2 that we mentioned.

3 A. It explains the right of uti possidetis iuris, but it omits from

4 the decision of the International Court this portion: "... provoked by

5 the challenging of frontiers following the withdrawal of the

6 administrating power."

7 So this rule relates to countries in which the colonial power is

8 being revoked. The federal state was not colonial power over federal

9 units nor were the federal units colonial provinces. The federal state

10 had its constitution, so there was no need to look back at Burkina Faso in

11 order to resolve the border problem but just to look at the constitution

12 and Article 5 of that constitution that was in force. And then the

13 decision referred to Article 5 but the wrong provisions, provisions 2 and

14 4, and they intentionally left out provisions 1 and 3 which speak

15 differently from the view presented by the Arbitration Commission.

16 I don't want to read them out to you because you have in the tab

17 in English, not to waste any time.

18 Q. Thank you, Professor Markovic. I believe that this is crystal

19 clear now.

20 Tell me, please, among the documents and acts that were assessed

21 by the Constitutional Court of Yugoslavia and considered by the Court,

22 were there such documents as indicated the violent nature of the secession

23 that took place? And I'm linking this up to the observation made a moment

24 ago by Mr. Robinson with respect to the question about the paramilitary

25 formations, et cetera, in view of the fact that certain explanations are

1 needed there to. But to save time, would you look at tabs 3, 4, and 5, as

2 well, please, and answer my question.

3 A. The assessment of constitutionality is the subject, and it was the

4 decision that was referred to, the decision on assessment and the law on

5 the amendments of the law on internal affairs, and the proceedings to

6 determine constitutionality were launched by the federal government, the

7 Federal Executive Council, in fact. And in the decision of the

8 Constitutional Court of Yugoslavia, it says that the ZNG, established

9 according to this law, is a professional armed military formation for

10 defence duties. That's what it says in this law.

11 Now, what did the Constitutional Court of Yugoslavia consider?

12 They considered this decision to be unlawful because according to the

13 constitution of the federations, the command of the armed forces of

14 Yugoslavia is determined, which make up one entity, and they comprise the

15 Yugoslav national defence and territorial defence. Furthermore, the

16 Constitutional Court of Yugoslavia ruled that outside the system of armed

17 forces you cannot have the founding and establishment of other armed

18 formations. Therefore, the Constitutional Court considered that the

19 Croatian National Guards Corps, or the ZNG, which was established

20 according to the law on the amendments to the law on internal affairs of

21 the Republic of Croatia, is an example of a paramilitary formation which

22 steps outside the system of the armed forces of the federal state.

23 THE INTERPRETER: Microphone, please. Microphone for the accused.

24 THE ACCUSED: [Interpretation] Well, my microphone's on.

25 Mr. Robinson, I should like this decision of the Constitutional

1 Court in tab 3 be tendered into evidence and be admitted, by which the

2 Constitutional Court states its views loud and clear on the illegality and

3 unlawfulness of the armed formations or, rather, the armed formation that

4 was called the Croatian National Guards Corps, the ZNG of Croatia.

5 JUDGE ROBINSON: And do you want the earlier reference to tab 54?

6 MR. NICE: Tab 54, can I just offer the following: I have and I

7 think the Chamber has simply one page, no doubt extracted from a Badinter

8 document. The history of Badinter material before the Chamber is that the

9 Chamber at some stage asked for the Badinter Commission documents, and

10 they were provided other than through a witness, if my recollection is

11 correct. There were then several Badinter documents produced through the

12 witness Sarinic under Exhibit 641 tab 32, but I don't think that was a

13 complete Badinter set of documents. It may be helpful at some stage if

14 the accused or perhaps Mr. Kay can connect this extract with one of the

15 documents that will be more clearly authoritative so we know where it

16 comes from.

17 JUDGE ROBINSON: Extensive use was made by the Chamber of the

18 Badinter Commission's report, Rule 98 bis proceedings.

19 What do we do with this document, then?

20 THE ACCUSED: [Interpretation] Mr. Robinson.

21 JUDGE ROBINSON: Mr. Nice, are you saying then we already have

22 this Badinter Commission's report?

23 MR. NICE: I'm not sure exactly where tab 54 comes from and it

24 will probably be sensible to connect it and find out where it comes from

25 so that we can -- I'm not challenging it, it can be admitted providing it

1 is an extract, but it's better really to connect it.

2 [Trial Chamber confers]

3 JUDGE ROBINSON: We will admit the extract from the Badinter

4 Arbitration Commission as a Defence exhibit, and later, if we are able to

5 identify the connection with the Prosecution Exhibit, then we'll deal with

6 it in that way as well. And we'll also admit tab 3.

7 THE ACCUSED: [Interpretation] Thank you, Mr. Robinson. For the

8 record, for the transcript, I should like to emphasise that the point of

9 admitting this tab lies in the fact that Badinter improperly quoted the

10 suit between Mali and Burkina Faso and finishes his quotation with the

11 word "struggles," whereas the quotation continues by saying "... provoked

12 by challenging of frontiers following the withdrawal of the administering

13 power," which means after the withdrawal of the colonial powers, which was

14 inapplicable and improper both from the intellectual and legal standpoint.

15 It was incorrect to quote that legal basis and gives rise to the idea of

16 ill intention, that it was ill-intentioned.

17 JUDGE ROBINSON: [Previous translation continues] ...

18 Mr. Milosevic, yes.

19 THE ACCUSED: [Interpretation] Show him where the quotation comes

20 from.

21 THE WITNESS: [Interpretation] Can someone assist me? I wish to

22 place this on the ELMO, on the overhead projector, so that I can show you

23 this piece of paper, and it may be of assistance.

24 JUDGE ROBINSON: Is it in relation to Badinter or in relation

25 to --

1 THE WITNESS: [Interpretation] Yes, in relation to the opinions

2 stated by the Arbitration Commission.

3 JUDGE ROBINSON: We already have the point made by Mr. Milosevic.

4 There is no need to show us.

5 MR. NICE: I think I've misunderstood it. They're trying to

6 explain that Badinter is misquoting something and this is a correction.

7 Now I understand the point. It will have to be dealt with differently,

8 but I take no objection.

9 [Trial Chamber confers]

10 JUDGE ROBINSON: There is no need to show us. We take the point

11 that you made, Mr. Milosevic. Let us --

12 THE WITNESS: [Interpretation] I just wanted to show the

13 constitution, to show how the provisions were not quoted which speak

14 differently. The constitution of the SFRY, Article 5 of the constitution.

15 JUDGE ROBINSON: Professor Markovic, I've already ruled on it.

16 Let us move on.

17 THE ACCUSED: [Interpretation] Very well.

18 MR. MILOSEVIC: [Interpretation]

19 Q. Professor, now let's us take a look at tab 5. No, I apologise,

20 tab 4, because we've only covered up to tab 3. And now tab 4, which is

21 the decision of the Constitutional Court assessing the constitutionality

22 of the decision of non-application of provisions of the federal law on

23 conscription on the territory of the Republic of Croatia. And at the end

24 of item 3, it says that in view of the Constitutional Court of Yugoslavia,

25 the republican -- republican law cannot discontinue the application of a

1 federal law on the territory of one of the republics of the federation,

2 and then this provision of Croatia was annulled. This was one of the

3 decisions taken by the Constitutional Court.

4 Does this decision also point to the violent nature of the

5 secession?

6 A. This decision, as well as the decision on non-application of the

7 provisions of the law on national defence, declared unconstitutional the

8 act of suspending these two laws on the territory of Croatia. Why were

9 these two laws suspended? They were suspended because these two laws

10 determined constitutional armed forces which were at the time the JNA and

11 Territorial Defence. The Republic of Croatia wanted to annul the validity

12 of these two formations and establish its own formation, which was the

13 ZNG, as a professional armed formation for defence and police functions.

14 Therefore, they wanted to limit the application of the federal laws on

15 conscription and on national defence in the territory of the Republic of

16 Croatia because the Republic of Croatia has created its own armed forces,

17 and it wanted to prevent the forces of the federal state from acting in

18 its territory.

19 JUDGE ROBINSON: Professor, the specific question at the end was:

20 Does this decision also point to the violent nature of the secession?

21 Are you in a position to answer that?

22 THE WITNESS: [Interpretation] Yes, I can answer. It does point to

23 the violent nature of secession, because Croatia refused to apply legal

24 constitutional armed forces and established its own armed forces because

25 its own armed forces had to carry out the secession. On the other hand,

1

2

3

4

5

6

7

8

9

10

11

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

13 English transcripts.

14

15

16

17

18

19

20

21

22

23

24

25

1 the constitutional legal forces would be against the secession, would try

2 to protect the constitutional order, whereas the ZNG was the force that

3 was supposed to carry out secession by violent means.

4 Yugoslav People's Army is a constitutional formation of the

5 federal state, and one of its functions is to protect the constitutionally

6 established order. The constitutionally established order is being

7 destroyed if one of the federal units wishes to leave the federation.

8 This is one of the reasons why these federal laws were suspended in the

9 territory of Croatia, which, in the view of the Constitutional Court, was

10 unconstitutional.

11 JUDGE ROBINSON: Does that necessarily lead to violence?

12 THE WITNESS: [Interpretation] It does necessarily lead to

13 violence, and I'll tell you why. Because the Serb nation in Croatia in a

14 referendum decided that they did not wish to leave Yugoslavia. They did

15 not wish to go and live in another state because they had their own state,

16 Yugoslavia, where they were together with the rest of their nation.

17 Therefore, the Serb people did not want to secede and live in an

18 independent Croatia, and this is where the conflict arose. One of the

19 parties in the conflict was the ZNG, National Guard Corps.

20 JUDGE KWON: Mr. Milosevic, if you could clarify whether it is tab

21 4 or tab 5 we are now looking at. I guess it's the latter.

22 THE ACCUSED: [Interpretation] Mr. Kwon, there are two decisions

23 which were annulled and mentioned in tab 4. One applies to the

24 non-application of the federal law on conscription, whereas the other one

25 applies to the law on non-application of the law on national defence. So

1 both tab 4 and 5 pertain to similar issues. This is why I ask that they

2 both be admitted as exhibits.

3 Tab 5, towards the end of item 3 of the decision on the assessment

4 of the constitutionality of the decision on non-application of provisions

5 of the law on Civil Defence, it says that all federal legislation is to be

6 applied on the whole territory of the SFRY unless those laws and acts

7 provide for their applicability in a more narrow territory.

8 And then at the end it says that the decision not to apply

9 provisions of the law on Civil Defence on the territory of the Republic of

10 Croatia is being annulled.

11 JUDGE ROBINSON: Please give us the numbers. Oh, yes, they are

12 admitted.

13 MR. KAY: To clear up the outstanding matter on tab 54, I'm

14 grateful for Ms. Anoya's assistance. It was in Prosecution Exhibit 641,

15 tab 32.2, in opinion number 3 of Badinter.

16 JUDGE ROBINSON: Thank you very much, Mr. Kay.

17 MR. MILOSEVIC: [Interpretation]

18 Q. Professor Markovic, since you as member of the Constitutional

19 Court reacted to all of these enactments which you qualified as unlawful,

20 I will now read out to you in parallel two items, two charges from

21 Croatian indictment, 85 and 110.

22 85 reads as follows: "[In English] Between at least 1 August,

23 1991, and at least June 1992, a state of armed conflict existed in

24 Croatia. Until 7 October 1991, this armed conflict was internal in

25 nature. From 8 October 1991, an international armed conflict and partial

1 occupation existed in the Republic of Croatia." [Interpretation]

2 Therefore, this is what is stated in paragraph 85.

3 And then in 110 it says as follows: "[In English] The SFRY,

4 Socialist Federal Republic of Yugoslavia, existed as a sovereign state

5 until 27 April 1992, when the constitution of the Federal Republic of

6 Yugoslavia was adopted, replacing the Constitution of the Socialist

7 Federal Republic of Yugoslavia of 1974."

8 [Interpretation] From the point of view of what you assessed,

9 these enactments on secession that were passed during the Yugoslav crisis,

10 what can you conclude if you were to compare counts 85 and 110?

11 MR. NICE: It sounds to me as though this is expert opinion and/or

12 it's the job of the Court.

13 [Trial Chamber confers]

14 JUDGE ROBINSON: This is a matter which we will have to decide,

15 Mr. Milosevic.

16 THE ACCUSED: [Interpretation] Mr. Robinson, I asked this of

17 Professor Markovic based on the experience he had as member of the

18 Constitutional Court and the facts that were before them at the time. It

19 states there that starting on the 8th of October, 1991, there was an

20 international armed conflict, whereas count 110 specifies that Yugoslavia,

21 the SFRY as a sovereign state, existed until the 27th of April, 1992, when

22 the constitution of the -- of FRY was passed. So how can there be an

23 international armed conflict in a state that existed until the April of

24 1992? So these were precisely the matters that were discussed at the

25 Constitutional Court, and these are obvious facts.

1 JUDGE ROBINSON: But you're asking him to pass on a legal matter

2 that is ultimately a matter for the Chamber. It would be permissible for

3 you to ask him questions relating to the factual situation that would give

4 rise to the legal conclusion, but the legal conclusion is ultimately a

5 matter that the Chamber will have to address.

6 THE ACCUSED: [Interpretation] I'm not asking him just to draw a

7 legal conclusion. What I'm saying is that they reviewed these enactments

8 as members of the Constitutional Court, Mr. Robinson. That's what they

9 did.

10 MR. MILOSEVIC: [Interpretation]

11 Q. So is it beyond dispute that the SFRY as such, as stated in count

12 110, existed as a sovereign state until the 27th of April, 1992, when the

13 constitution of the Federal Republic of Yugoslavia was adopted?

14 A. If you allow me, my opinion would be that this is a purely factual

15 issue. What fact is important to determine the dissolution of SFRY as a

16 federal state. In count 85, this is linked to the 8th of October, when

17 independent Croatia was declared. In count 110, it is linked to the fact

18 of the adoption of the federal republic of Yugoslavia, which was the 27th

19 of April 1992. So the same phenomenon is being linked to two different

20 facts. I'm not passing any legal judgement here. All I'm doing is

21 concluding that the dissolution of Yugoslavia is being linked to two

22 different dates.

23 THE ACCUSED: [Interpretation] My mike is off.

24 JUDGE ROBINSON: Mr. Milosevic, it's past the time for the

25 adjournment.

1 THE ACCUSED: [Interpretation] Let me please conclude with this

2 question so as not to cut it in half.

3 MR. MILOSEVIC: [Interpretation]

4 Q. So the 8th of October is obviously being linked to the Brioni

5 declaration or the expiration of the deadline provided by the Brioni

6 declaration, the three-months deadline. In view of the fact that you were

7 kept abreast of the developments at the time, please ask me [as

8 interpreted], could the Brioni declaration have given legal force to the

9 enactments on illegal secession?

10 A. Brioni declaration could not have given constitutional validity to

11 unconstitutional enactments, because the Constitutional Court had already

12 declared them unconstitutional. And they could not become constitutional

13 after the expiration of the three months deadline. In addition to that,

14 the Brioni declaration also did not have any constitutional

15 responsibilities or authorisations, especially not in contravention of the

16 then-valid constitution which was the 1974 constitution. The passage of

17 time does not make something that was unconstitutional constitutional.

18 THE ACCUSED: [Interpretation] Thank you.

19 JUDGE ROBINSON: We will take an adjournment now for 20 minutes.

20 --- Recess taken at 10.35 a.m.

21 --- On resuming at 10.58 a.m.

22 JUDGE ROBINSON: Please continue, Mr. Milosevic.

23 MR. MILOSEVIC: [Interpretation]

24 Q. Professor Markovic, we will now turn to another topic of your

25 evidence. As I've mentioned in the beginning, it has to do with

1 constitutional changes or, rather, the adoption of amendments to the

2 constitution of Serbia from 1989 and also the activities linked to the

3 constitution in 1990 and the constitution of Yugoslavia from 1992.

4 You were a member of the Constitutional Commission for drafting

5 constitutional amendments to the constitution of Serbia from 1974,

6 adopting on the -- adopted on the 28th of March, 1989. Please tell us

7 something about the composition of that commission and what was your

8 capacity in that commission.

9 A. The Constitutional Commission consisted of deputies to the

10 Assembly, the greatest number of the members of the commission were

11 deputies to the Assembly. At the time, the Assembly had three Chambers.

12 All three Chambers were represented, but in addition to that, also

13 sciences and professions were represented as well, because there wasn't

14 just one working group. There were several working groups. That means

15 that the professions and sciences were represented as well, and I was a

16 member of that commission in that capacity, representing professions and

17 sciences.

18 Q. Please tell us, why were those amendments adopted?

19 A. Those amendments were adopted as a result of the constitutional

20 status of the Republic of Serbia as a federal unit within a federal state.

21 In November, federal Yugoslavia adopted 40 amendments to the constitution

22 of the Federal Republic of Yugoslavia -- Socialist Federal Republic of

23 Yugoslavia, and all republics had to adopt appropriate amendments to their

24 own constitution. So that was a joint change of both federal

25 constitution, six republican constitutions, and two constitutions of

1 provinces. That was the first joint state to the constitution of 1974,

2 and second one was in 1981.

3 Q. And who gave the initiative for constitutional amendments?

4 A. The initiative was given by the authorised organ, which was the

5 Presidency of the Republic of Serbia. In addition to the Presidency,

6 other authorised proponents could be any of the three Chambers of the

7 Assembly and at least 30 deputies had to be in favour of it, of that. The

8 government of Serbia also was authorised to commence this procedure.

9 Q. Please tell us something about the procedure and whether it was

10 carried out in accordance with the provisions of the constitution of

11 Serbia.

12 A. Well, the procedure was naturally constitutional. It was in

13 accordance with the provisions of the constitution of Serbia, chapter 17,

14 Articles 427 to 431. So these articles, a total of five articles,

15 specified the procedure for amending the constitution of Serbia, or as it

16 is called, lege artis. This is the revisionist procedure.

17 Q. How many amendments were passed?

18 A. Forty-one amendments to the constitution of the Republic of

19 Serbia. That was in 1989.

20 Q. In tab 17, we have here the Official Gazette of Serbia, which

21 brings the text of the amendments 9 through 49, amendments to the

22 constitution of Serbia.

23 [No interpretation]

24 THE INTERPRETER: The interpreters cannot hear anything from the

25 courtroom.

1 JUDGE ROBINSON: Professor. There is some difficulty with the

2 interpreters hearing what Mr. Milosevic just said. Would you please

3 repeat the question, Mr. Milosevic.

4 MR. MILOSEVIC: [Interpretation]

5 Q. Could you please say briefly what the underlying idea and content

6 of these amendments is.

7 A. The underlying idea of these amendments was to follow up on the

8 constitutional changes that had been carried out in those 40 amendments at

9 the level of the federal state, to follow this up in the Republic of

10 Serbia. That is to say to bring the constitution of Serbia into

11 accordance with the amendments to the federal constitution, because as is

12 well known, in a federal state, the federal state supersedes the

13 republics, therefore, the republican constitution has to be in line with

14 the federal constitution.

15 As for the content, if I can put it that way, it developed in

16 three areas. The first area was the economic system where market laws

17 were being introduced and where future reforms of the economic system were

18 heralded. The second area is the rationalisation of the delegate system.

19 And the third area has to do with republican agencies and organs. That is

20 to say, different solutions were provided for the work of some of the

21 republican organs, not all.

22 As I said, this was due to the changes made in the federal

23 constitution.

24 Q. Tell me now, please, how many amendments out of those that were

25 adopted then pertain to the status of provinces? Which ones are those?

1 A. Out of a total of 41 amendments, five pertain to the status of

2 provinces. That is amendment 29, amendment 31, amendment 33, amendment

3 43, and amendment 47.

4 Q. What was amended? Let us do it in the right order. Amendment 29

5 in relation to the previous provisions that were in force, what were the

6 changes introduced?

7 A. Amendment 29 regulates the relationship between the republican

8 constitution and the provincial constitution. As is well known, the

9 provinces are within the Republic of Serbia. Therefore, the provisional

10 -- the provincial constitution cannot be contrary to the republican

11 constitution. And then it says that the Constitutional Court of Serbia

12 shall give its opinion to the Assembly of the Republic of Serbia on

13 whether the provincial constitution is in contravention of the

14 constitution of the Republic of Serbia.

15 When the Assembly of Serbia establishes on the basis of the

16 opinion of the Constitutional Court of Serbia that some provisions of the

17 constitution of the autonomous province are in contravention of the

18 constitution of the Republic of Serbia, it shall inform the Assembly of

19 the autonomous province about it. Unless the Assembly of the autonomous

20 province removes this contravention within one year, these provisions of

21 the constitution of the autonomous province may not be applied.

22 This regulated a natural legal rule that in a legal system one

23 cannot have something that does not exist in the constitution. It is

24 quite comprehensible from a legal point of view that there is a one-year

25 tolerance of an unconstitutional law or, rather, sorry, constitution of

1 the autonomous province. So the province is being given a grace period of

2 one year to redress that. If it fails to comply, then the rule of force

3 -- the force of primacy will come into being. So then the regulations of

4 the province that are not in accordance with the republican constitution

5 can no longer be applied. That was amendment 29.

6 JUDGE BONOMY: Professor, what was the rule before this, before

7 this change was made?

8 THE WITNESS: [Interpretation] Before the amendment was made,

9 Article 402 dealt with it, of the constitution of Serbia, that is. It was

10 for the provincial Assembly itself to decide whether they are going to

11 eliminate anything that is anti-constitutional or not. The -- Article 402

12 says that the Constitutional Court shall give its opinion to the Assembly

13 of Serbia as to whether the constitution is not in accordance with the

14 constitution of Serbia. This is lex imperfecta. There is nothing that

15 says what happens if the Constitutional Court says that the provincial

16 constitution is not in accordance with the republican constitution. So

17 this is not fully set out. There is republican arbitration. The

18 republican Assembly addresses the provincial Assembly and probably resorts

19 to political means in order to redress the differences. However, that

20 cannot be seen from the actual wording of this norm, and those were the

21 shortcomings of the republican constitution from 1974 and the federal

22 constitution from 1974. Many norms are not specific enough and not

23 complete.

24 JUDGE BONOMY: That was the amendment to the federal constitution

25 which required Serbia to make this amendment?

1 THE WITNESS: [Interpretation] There was no such amendment to the

2 federal constitution, because the federal constitution regulates the

3 federation.

4 JUDGE BONOMY: I -- sorry. I understood you to say that all of

5 these amendments were necessary because of other amendments that had been

6 made to the federal constitution.

7 THE WITNESS: [Interpretation] That is correct. That is correct.

8 But this change was taken advantage of in order to carry out some other

9 changes, too, that were within the constitutional competencies of the

10 Republic of Serbia and that were not linked to the federal constitution.

11 MR. MILOSEVIC: [Interpretation]

12 Q. What was changed in amendment 31? I'm just going to go through

13 the amendments that have to do with the provinces, not the others.

14 Amendment 31, paragraph 1 says: "The republic organs shall be responsible

15 for the execution of republic laws and other republic regulations which

16 apply on the entire territory of the Republic; on the territory of an

17 autonomous province, provincial organs shall also be responsible for this,

18 in accordance with this constitution..." and so on and so forth. What was

19 the change involved in amendment 31?

20 A. This is a very voluminous and very substantive amendment, but the

21 point of all these 12 paragraphs, to summarise them, is that the republic

22 should have enhanced responsibility in terms of carrying out republican

23 laws that are uniformly applied throughout the territory of the republic,

24 not subdivided into autonomous provinces.

25 There was sabotage in the implementation of these laws in the

1 territory of the provinces. Therefore, in order to give the republic

2 instruments on the basis of these laws that were passed on the basis of

3 the constitution of Serbia, the republic received certain authority in the

4 provinces, too, only for those laws that are uniformly applied throughout

5 the territory of the republic.

6 As for the laws that are passed by the province itself, it has

7 full capacity, full authority to carry out its own laws that it passed on

8 its own.

9 Q. According to the previous constitution, were there laws that were

10 applied throughout the territory of the republic?

11 A. There were. They were established in Article 300 of the

12 constitution of the Republic of Serbia.

13 Q. From 1974?

14 A. From 1974, yes. There were various shortcomings involved in the

15 implementation of this provision in practice. That is to say, the

16 republic was -- resorted to general standards, general norms in order to

17 regulate the system throughout the republican territory, basic rights.

18 All of this is something that was not very specific, and in practice there

19 were major disputes between the republic on the one hand and on the other

20 hand the provinces.

21 What do these basic things mean, these fundamental principles

22 mean? How far can one go? So these are these rubber terms that can be

23 applied elastically. And they caused major disputes in implementation.

24 I even read a paper that over the two years that this article was

25 applied, only 13 laws were passed that were applied uniformly throughout

1

2

3

4

5

6

7

8

9

10

11

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

13 English transcripts.

14

15

16

17

18

19

20

21

22

23

24

25

1 the territory of the Republic of Serbia.

2 JUDGE KWON: Excuse me, Mr. Milosevic. I wonder if the parties,

3 either Mr. Nice or Mr. Milosevic or Mr. Kay, could tell us whether we have

4 the previous version of Serbian constitution before it was amended like

5 this.

6 MR. NICE: I've been working in the last few days on an extract

7 from the 1974 constitution, and I haven't checked whether we have the full

8 1974 Serbian constitution. We will make that inquiry now. One way or

9 another, I'll have either the full document or the extract for you in the

10 course of cross-examination if not before.

11 JUDGE KWON: Tab 15 is the constitution of FRY, not Serbia.

12 MR. NICE: Yes.

13 JUDGE KWON: I'm not sure we've got -- well, Ms. Dicklich --

14 MR. KAY: Tab 526, we think -- Exhibit 526, sorry, tab 1, we think

15 has got it, but I had it on a list earlier. Dr. Kristan produced.

16 JUDGE KWON: Thank you.

17 MR. NICE: Ms. Dicklich was, as ever, ahead of us in knowing what

18 you want, and I understand that 526, tab 1, may have the entire

19 constitution in Serbian but only certain articles translated into English,

20 and the articles to which the witness is now referring are not included in

21 those that are in English.

22 I'll just check on my extract whether the extract contains them in

23 English.

24 JUDGE KWON: In fact --

25 MR. KAY: Also try 132. That's a reference I've got as well. It

1 might -- that's 1990 constitution.

2 JUDGE KWON: Yes. So the fact is that we don't have the earlier

3 Serbian constitution.

4 THE INTERPRETER: Microphone for Mr. Kay, please.

5 MR. KAY: It's not fully translated. It's -- Dr. Kristan's is the

6 nearest we've got.

7 JUDGE KWON: Thank you. Go on, Mr. Milosevic.

8 MR. MILOSEVIC: [Interpretation]

9 Q. Professor Markovic, please look at amendment 33. Where does it

10 explain what is it that is uniform throughout the territory of the

11 republics? What is regulated uniformly for the territory of the entire

12 republic? There are several paragraphs here, but perhaps they should all

13 be looked at.

14 "Regulates and ensures: The use and protection of the coat of

15 arms, flag, and the national anthem of the Socialist Republic of Serbia

16 and the basic content and protection of public documents; the official use

17 of the Serbo-Croatian language and its alphabets - Cyrillic and Latin, as

18 well as the way and conditions of the application of that language and the

19 equality of the alphabets in public use; equal official and public use of

20 the Serbo-Croatian language and the languages and alphabets of

21 nationalities --" "nationalities" is the word that is used for national

22 minorities -- "in areas where some nationalities live; protection against

23 the pollution of land which is of interest for the entire Republic and

24 supervises the implementation of these regulations."

25 So this is quite civil and logical, isn't it, as far as I can

1 see.

2 And then it regulates: "The notion of marriage and the basic

3 conditions for entering into a marriage, grounds for dissolving a marriage

4 and the fundamental rights and duties of spouses; the subject and the

5 basic principles of inheritance, the basis of claiming inheritance and

6 other basic conditions for the passing of inheritance to heirs; the basic

7 rights, duties and relations between parents and children and relations

8 between adoptive parents and adopted children."

9 Then further on: "The contents of property and the boundaries of

10 property rights," and so on and so on, and the other rights.

11 Then: "Types and basic conditions for issuing and implementing

12 public loans; the regime and balance of waters which are of interest to

13 the whole of the Republic; protection of people's health against

14 contagious diseases ..." It's a pretty long amendment.

15 Is there anything that is specific here -- how should I put this?

16 Was there anything here that jeopardised anyone's rights as far as the

17 entirety of the Republic of Serbia is concerned? Because this does apply

18 to the entirety of the republic.

19 THE INTERPRETER: Microphone for the witness, please.

20 THE WITNESS: [Interpretation] The subject matter involved in this

21 amendment is exactly to specify these general terms, these rubber terms

22 from Article 300 from the republican constitution of 1974, and it can be

23 seen in the very last sentence of paragraph 33. It says: "This amendment

24 shall replace the appropriate parts and supplement the provisions of

25 Article 300 and shall replace Article 423 of the Constitution of the

1 Republic of Serbia."

2 So uniform principles, single principles, fundamental principles,

3 basics, the system, all of these notions were defined specifically. Their

4 meaning was defined. An attempt was made for the jurisdiction of the

5 republic in that area spelled out as precisely as possible and to

6 eliminate the use of these very general terms, these rubber terms in terms

7 of establishing the authority of the republic.

8 At that time, there were three types of republican laws. The

9 majority of the laws of the Republic of Serbia were applied only in the

10 territory of Serbia outside the territory of the provinces. These were

11 laws from this group. Then there were other laws that were applied

12 uniformly throughout the territory of the republic, and also there were

13 these laws based on social compact. They were envisaged in Article 301,

14 where it says: "On the basis of agreement, a social compact between a

15 province and the republic, the law can regulate things throughout the

16 territory of the republic but in different fields." However, the

17 provinces have to agree to that, that they have to put forth a proposal

18 and previously their Assembly should pass the said law with the required

19 majority. So there were three categories of republican laws.

20 MR. MILOSEVIC: [Interpretation]

21 Q. Thank you, Professor Markovic. We have only two more amendments

22 that have to do with the provinces as well. One is amendment 43, which

23 speaks of the jurisdiction of the Presidency of Serbia, and the last one

24 is amendment 47, which speaks of the changes to the constitution of the

25 Republic of Serbia.

1 Please, in the briefest possible terms, does this jeopardise

2 anybody's rights in any way? Is there anything special involved here that

3 might seem strange to anyone or unusual in terms of legal subject matter?

4 A. In this amendment 43, what is spelled out are the powers of the

5 Presidency of the Republic of Serbia. I draw your attention to paragraph

6 3 where these innovations are, especially in the second subparagraph of

7 paragraph 3. It says specifically what the Presidency can do in terms of

8 protecting the state order, that is to say the state security. State

9 security is a par excellence state function. According to the

10 constitution of Serbia, provinces are not states and they could not

11 perform a state function. That function was now entrusted to the

12 Presidency of Serbia.

13 And in paragraph 3, authority was given to the Presidency of

14 Serbia.

15 JUDGE ROBINSON: Mr. Milosevic. Mr. Milosevic, we don't have in

16 English amendment 43 or, in fact -- yes, we have 47 but not 43. We have

17 44.

18 THE ACCUSED: [Interpretation] Well, I don't know how come you

19 haven't got this, because it was provided early on and these articles

20 pinpointed or, rather, the amendments which in any way mention the

21 provinces, which is the reason I'm quoting them in the first place.

22 JUDGE ROBINSON: Proceed and then we'll decide what to do with the

23 question of the document as an exhibit.

24 THE ACCUSED: [Interpretation] Well, I assume you have all the

25 other amendments in translation, do you?

1 JUDGE ROBINSON: Yes. Yes, we do.

2 THE ACCUSED: [Interpretation] It's easy to add that one, then.

3 MR. MILOSEVIC: [Interpretation]

4 Q. Professor Markovic, what is the basic characteristic of this

5 amendment number 47? Point 1 says the changes to the amendment of Serbia

6 should be decided by the Assembly of Serbia or, rather, "The Assembly of

7 the SR of Serbia shall render decisions on changes to the constitution of

8 Serbia."

9 JUDGE ROBINSON: In his last question, Mr. Milosevic invited you

10 to be brief, and I wish to reiterate that invitation. In fact, it's an

11 instruction, for you to be brief in your reply.

12 THE WITNESS: [Interpretation] In the briefest terms. The

13 provinces are -- do not have the right to veto amendments to the

14 constitution of Serbia. That's my answer.

15 MR. MILOSEVIC: [Interpretation]

16 Q. In point 2, it says: "Changes to the constitution of Serbia

17 cannot alter the position, rights, and duties of the autonomous provinces

18 established by the constitution of the SFRY."

19 A. Well, that's precisely it. That's where the subservient position

20 of the republican constitution lies in relation to the federal

21 constitution. Everything established by the SFRY for a province as a

22 constituent element of the federation you can't have the constitution of

23 the republic intervening because it comes under the jurisdiction of the

24 federal constitution. So everything relating to the rights, duties, and

25 position of the provinces as determined by the federal constitution is in

1 force, because an act with lower legal force cannot intervene the primacy

2 act, which is the federal constitution.

3 Q. While we're on the subject of the federal constitution, I have a

4 specific question for you. These amendments, were they adopted in keeping

5 with the authorisations of the Republic of Serbia from -- as derived from

6 the constitution of the SFRY?

7 A. Yes. These amendments are absolutely in conformity with the

8 constitution of the Federal Republic of Yugoslavia. And if you have

9 Article 4 before you of that constitution or, rather, the Federal Republic

10 of Yugoslavia, you will see a definition there of the autonomous provinces

11 in which the following is stated: That the socialist autonomous province

12 is an autonomous socialist socio-political community based upon the rights

13 of self-management by the working people and all working citizens in which

14 the working people and citizens, nations and nationalities realise their

15 sovereign rights, and when so specified by the constitution of the

16 Republic of Serbia in common interest of the working people, nations and

17 nationalities of that republic as a whole, they do so also within the

18 republic.

19 So the extent to which the rights and duties that will be accorded

20 to the provinces will be will be determined by the constitution of the

21 Republic of Serbia. And it emanates from Article 4 of the constitution of

22 the Federal Republic of Yugoslavia.

23 Therefore, the subject of the republic -- it is up to the

24 republican constitution to determine the quantity of the powers that the

25 autonomous provinces will be vested with.

1 JUDGE BONOMY: Professor, can I in relation to this amendment, 47,

2 ask you the same questions as I asked before in relation to, I think it

3 was 29. What was the position before this amendment was made? That's the

4 first question.

5 THE WITNESS: [Interpretation] Before this amendment was passed, a

6 province could quite simply veto a matter. That means change any

7 amendments to the -- that means not allow any changes to be made to the

8 constitution of the Republic of Serbia, ban them in fact.

9 JUDGE BONOMY: Thank you. And my second question is: What

10 amendment was made to the federal constitution which required this

11 amendment to be made in the Serbian constitution?

12 THE WITNESS: [Interpretation] No amendment was made to the federal

13 constitution, because we're dealing with a matter which comes under the

14 sphere of interest of the self-organisation of the republics. Now, how

15 the republican constitution was to be changed is determined by the

16 republic, whereas the federal state determines how the federal

17 constitution is to be changed or amended. So there were no changes in

18 that sense at federal level. And I've already stated that the majority of

19 these provisions, and we have seen a total of 36, was caused by changes in

20 the federal constitution, whereas the five articles were within the

21 framework of the constitutional powers of the republic which regulated

22 this differently than existed in the 1974 text of the Serbian

23 constitution.

24 MR. MILOSEVIC: [Interpretation]

25 Q. Professor Markovic, doing what you explained to us just now, did

1 the republic step outside the frameworks of its authorisation as vested in

2 it by the constitution?

3 A. No. The republic acted upon the constitution, the letter of the

4 constitution. It is up to the republic to determine the amount of

5 authority that an autonomous province is going to have. Now, the

6 difference between a republic and autonomous province is based on Article

7 3 and 4 of the constitution of the SFRY. Article 3 of the constitution

8 states that a republic is a state. Therefore, Serbia is a state by the

9 same token. And an autonomous province is an autonomous socialist

10 self-management community. That is to say it is not a state. It is not a

11 state, let me repeat, and cannot realise the same functions realised by a

12 state, otherwise autonomy would be a status within a state -- a state

13 within a state. That's the status it would have.

14 Q. Thank you, Professor.

15 THE ACCUSED: [Interpretation] Mr. Robinson, I would like tab 17,

16 which contains the amendments, to be tendered into evidence. You said

17 that one of the amendments was not translated but you do have all the

18 others, so I would like to tender it into evidence as an exhibit, and if

19 this other document hasn't been tendered yet, I don't have the records on

20 that -- I'm referring to tab 15. I'd like to tender tab 15 unless it has

21 already been admitted. And Professor Markovic quoted from the

22 constitution of Yugoslavia, which is what that document is and what

23 Professor Markovic just quoted from. You have it translated in English in

24 its entirety.

25 JUDGE ROBINSON: Yes. We'll admit 17. 15 is already admitted..

1 MR. MILOSEVIC: [Interpretation]

2 Q. Your answer was that it was done in keeping with the Yugoslav

3 constitution. Tell me now, the Constitutional Court of Yugoslavia, did it

4 make a ruling as to whether these amendments were in conformity with the

5 constitution of Yugoslavia? Did it have anything to say about that? And

6 let me draw your attention to tab 18, in which we see the ruling and

7 opinion of the Constitutional Court of Yugoslavia. So my question to you,

8 Professor, is this: Did the Constitutional Court of Yugoslavia state

9 whether it felt that these amendments were in conformity with the SFRY

10 constitution? Did it give a ruling?

11 A. The Constitutional Court of Yugoslavia, at the proposal of the

12 federal Chamber of the Yugoslav Assembly did make a ruling on the

13 constitutionality of all the amendments to the republican constitutions,

14 which includes the constitutionality of the amendments to the constitution

15 of the Republic of Serbia as well. It stated its opinions to the Yugoslav

16 Assembly and said whether the amendments were in keeping or not with the

17 federal constitution. And the Constitutional Court in only three points

18 found that out of a total of 41 amendments, only three stipulations

19 therein were not in conformity or, rather, were in contravention to the

20 federal constitution.

21 Q. And which were they? What three stipulations?

22 A. First of all, with regards to real estate and limiting real estate

23 transactions and trade. And they said that this was in contravention to

24 the federal constitution.

25 The second matter in which the Constitutional Court ruled was in

1 contravention to the federal constitution was the use of the alphabet and

2 the Cyrillic script was favourised. And the Constitutional Court ruled

3 that both scripts were legal, both the Cyrillic and the Latin script.

4 And the third question had to do with the delegate system, the

5 formation of the so-called delegate electoral unit for electing the

6 councils of the municipalities and the Assembly, and the republican

7 Assembly had three Chambers: The Chamber of associated labour, which was

8 the largest one with 160 deputies; the Assembly of the municipalities, 90

9 deputies; and the Socio-Political Chamber, which had 90 deputies as well.

10 So none of the amendments of the ones that we mentioned, 29, 31,

11 33, 43, and 47, none of those amendments from the aspects of the

12 Constitutional Court of Yugoslavia were in contravention to the

13 constitution of the Socialist Federal Republic of Yugoslavia.

14 JUDGE ROBINSON: Professor, were you a member of the court that

15 made this decision?

16 THE WITNESS: [Interpretation] Well, you can see that and not see

17 that from this. No, I was not a member of the Constitutional Court at the

18 time, but I was invited to attend the meeting and the public debate as a

19 representative of the scholarly circles, and it is the proponents of the

20 acts that were there and those who were the proponents of the whole matter

21 of constitutionality and on the basis of a report tabled by the judge.

22 MR. MILOSEVIC: [Interpretation]

23 Q. So you were not a judge on the Constitutional Court, but you did

24 take part in its sessions and the public debate waged within the

25 Constitutional Court?

1 A. Yes. I asked to take the floor and expounded my views. And

2 Judge Kristan was a Judge of the Constitutional Court during that period

3 of time.

4 Q. Now, in light of that ruling made by the Constitutional Court, I

5 should like to ask you to comment on the points that I'm going to read out

6 to you, which are the following: From the Kosovo section of the

7 indictment, points 79 and 81, paragraphs 79 and 81.

8 Para 79 reads as follows: "[In English] Simultaneously, within

9 Serbia, calls for bringing Kosovo under stronger Serbian rule intensified

10 and numerous demonstrations addressing this issue were held. On 17

11 November 1988, high-ranking Kosovo Albanian political figures were

12 dismissed from their positions within the provincial leadership and were

13 replaced by appointees loyal to Slobodan Milosevic. In early 1989, the

14 Serbian Assembly proposed amendments to the Constitution of Serbia which

15 would strip Kosovo of most of its autonomous powers, including control of

16 the police, educational and economic policy, and choice of official

17 language, as well as its veto powers over further changes to the

18 Constitution of Serbia. Kosovo Albanians demonstrated in large numbers

19 against the proposed changes. Beginning February 1988 -- 1989 a strike by

20 Kosovo Albanian miners further increased tensions."

21 [Interpretation] And then you have paragraph 81, which states:

22 "[In English] On 23 March 1989, the Assembly of Kosovo met in Pristina

23 and, with the majority of Kosovo Albanian delegates abstaining, voted to

24 accept the proposed amendments to the Constitution. Although lacking the

25 required two-thirds majority in the Assembly, the President of the

1

2

3

4

5

6

7

8

9

10

11

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

13 English transcripts.

14

15

16

17

18

19

20

21

22

23

24

25

1 Assembly nonetheless declared that the amendments had passed. On 28 of

2 March 1989, the Assembly of Serbia voted to approve the constitutional

3 changes, effectively revoking [Realtime transcript read in error

4 "granting"] the autonomy granted in the 1974 constitution."

5 JUDGE ROBINSON: Professor, I'd like you to answer them

6 individually, and the allegation -- first allegation, in 79, is that,

7 "Simultaneously within Serbia calls for bringing Kosovo under stronger

8 Serbian rule intensified and numerous demonstrations addressing this

9 issue ..."

10 THE INTERPRETER: Interpreter's note: It was "... effectively

11 revoking the autonomy granted ..."

12 JUDGE ROBINSON: I'm sorry. I just heard what the interpreter

13 said, but I don't see that in paragraph 79.

14 Do you agree with that allegation? Just very briefly.

15 THE WITNESS: [Interpretation] No, I do not agree, because Kosovo

16 was not placed under Serb authority, Serbian authority. Quite simply, the

17 autonomous province was incorporated into the constitutional order of the

18 Republic of Serbia in view of the fact that in Article 2 of the

19 constitution of the Federal Republic of Yugoslavia said that the provinces

20 were within the frameworks of the Republic of Serbia. So the term

21 "Serbian rule" is much too strong and should not be there.

22 JUDGE ROBINSON: Thank you. I'm proceeding. "On the 17th

23 November, high-ranking Kosovo Albanian political figures were dismissed

24 from their positions within the provincial leadership and were replaced by

25 appointees loyal to Slobodan Milosevic." Can you comment on that? Are

1 you in a position to comment on that as a matter of fact?

2 THE WITNESS: [Interpretation] No, I'm not in a position because I

3 was not involved in politics at the time, and no single name is mentioned

4 here that would enable me to answer.

5 JUDGE ROBINSON: Next allegation is that, "In early 1989, the

6 Serbian Assembly proposed amendments to the constitution of Serbia which

7 would strip Kosovo of most of its autonomous powers, including control of

8 the police, educational and economic policy, choice of official language,

9 as well as its veto powers over further changes to the constitution of

10 Serbia."

11 What is your comment on that?

12 THE WITNESS: [Interpretation] The only thing that is true in that

13 allegation is that the provinces were deprived of their right to veto.

14 Everything else does not correspond to the actual state, to the truth.

15 JUDGE ROBINSON: Next question is that -- is a question of fact,

16 that "Beginning in February 1989, a strike by Kosovo Albanian miners

17 further increased tensions." Are you in a position to comment on that as

18 a matter of fact?

19 THE WITNESS: [Interpretation] No. For the same reasons, because I

20 was not involved in politics at the time. I simply was a university

21 professor then.

22 JUDGE ROBINSON: And in paragraph 81, the first allegation is

23 that, "On the 23rd of March, 1989, the Assembly of Kosovo met in Pristina,

24 and with the majority of Kosovo Albanian delegates abstaining, voted to

25 accept the proposed amendments to the constitution." Are you in a

1 position to comment on that?

2 THE WITNESS: [Interpretation] Once again, that does not correspond

3 to the truth, because in the decision declaring or proclaiming these

4 amendments, if you happen to have the text of the amendments, you can see

5 that in front of the text of each amendment there is a decision

6 proclaiming amendments 9 to 49 to the constitution of the Serbian

7 constitution. This is the so-called promulgation of the amendments. And

8 in the text it is stated that the amendments are hereby promulgated, and

9 that on the 10th of March, 1989, the Assemblies of provinces in a -- or,

10 rather, the Assembly of Kosovo, in a joint session of all Chambers on the

11 23rd of March 1989 confirmed all of these amendments. Therefore, I cannot

12 conceive a situation in which in one of official Gazettes a lie of this

13 nature would be published.

14 THE ACCUSED: [Interpretation] Mr. Robinson, I just wanted to

15 remind you that we had a witness here, Mr. Vukasin Jokanovic, who was

16 present there, and we played the tape from that session indicating how

17 many delegates voted and so on. Therefore, this is a flagrant or blatant

18 lie.

19 MR. NICE: [Previous translation continues] ... indictment, if I

20 may so say.

21 JUDGE ROBINSON: That's a comment, Mr. Milosevic, which is not

22 appropriate, neither now nor at any other time.

23 THE ACCUSED: [Interpretation] Very well.

24 MR. MILOSEVIC: [Interpretation]

25 Q. Professor Markovic, did the majority of Albanian delegates really

1 abstain in that session? You probably remember that because you followed

2 the developments.

3 A. Had the majority of them abstained, the amendments could not have

4 been declared because the two-third majority is needed. Therefore, the

5 majority could not have abstained. The majority had to vote in favour,

6 because that was the only mechanism by which the draft amendments could

7 become amendments.

8 Q. Thank you, Professor Markovic. Let us continue. Please tell us

9 in most general terms -- perhaps I should have asked this earlier, because

10 it's a very important question. Therefore, what arguments were used by

11 the Constitutional Commission, in whose work you participated, to propose

12 these amendments, the amendments that we've mentioned, discussed, the ones

13 pertaining to provinces and so on? What were the arguments that guided

14 the commission in making these proposals?

15 A. When it comes to the implementation of the constitution between

16 1974 and 1989, a lot of experience accumulated, and this experience was

17 contained in various papers written by various bodies. Professionals

18 reacted to these papers as did the general public. Therefore, these

19 changes were made on the basis of taking into account all these three

20 sources. Back in 1987, the Presidency of the Republic of Serbia published

21 a paper on the legal position of the Republic of Serbia and autonomous

22 provinces within Serbia. This was the so-called blue paper. This blue

23 paper was never published.

24 I myself received it just prior to this trial. I received the

25 text of that paper thanks to academician Kosta Mihailovic.

1 In addition to that, there were various scholarly gatherings. One

2 of them was in its nature of Yugoslav orientation, and there were

3 representatives of Albanians there, Croatia, Macedonia. So there were

4 Croatians and Macedonians there. And only Slovenes did not attend. So

5 except for Slovenes, the entire ethnic composition of Yugoslavia was

6 represented there.

7 I have attached this book. There is no need to translate it. It

8 is clear that this entire book is devoted to this issue, and it shows that

9 the position of scholars was unanimous, namely, that