³⁵⁴⁸⁰

Monday, 24 January 2005

[Open session]

[The accused entered court]

[The witness entered court]

--- Upon commencing at 9.03 a.m.

JUDGE ROBINSON: Judge Bonomy being absent, we sit pursuant to the provisions of Rule 15 bis.

Mr. Nice to continue your cross-examination.

MR. NICE: Your Honour, yes.

WITNESS: RATKO MARKOVIC [Resumed]

[Witness answered through interpreter] Cross-examined by Mr. Nice: [Continued]

MR. NICE: We were dealing with the 1990 constitution of Serbia. We had reached in the page numbers at the foot, page 38, and it's article 86. If that could be laid on the overhead projector. To assist the Chamber in the pattern of work for this morning, I have three other constitutions to look at but in each case probably only two or three provisions of each and I will fit other matters that I need to ask this witness around the expirations of the constitutions to a large extent.

If we have it on the overhead projector, Article 86 says this: "The President of the Republic shall be elected in direct election and by secret ballot.

"The term of the office of the President of the Republic shall be five years. ³⁵⁴⁸¹ "The same person may be elected for President of the Republic two times only."

Q. Professor Markovic, I think the last thing we discussed last week was who had instructed you to draft this constitution and I think your answer was that no one instructed you to draft the constitution. Have you been able to reflect on that over the weekend and remember who it was who asked you to draft the constitution?

A. Well, I cannot remember something that does not exist. One can only remember something that was a fact. And let me repeat again: I didn't write the constitution. The constitution was a collective work on the part of the Coordination Commission and then the Assembly which passed it. So I cannot remember something that never existed in the first place.

Q. You can't help us at all, can you, with who it was that asked the drafting body to draft the constitution at all? And I'm going to suggest that this is a silly answer, but just -- if you're really saying you can't identify who asked you to draft the constitution or who asked the body to draft it. You really can't remember at all?

A. Nobody asked me to draft the constitution, nor did I write the constitution. The need was shown for a new constitution. Conditions were ripe, and then the body, the Constitutional Commission, as an auxiliary of the Assembly, drafted the constitution. Perhaps that proposal seems to you to be a stupid one, but it corresponds to the truth.

Q. What we see here is the first direct election of the president. Until 1990, the president been appointed by one of the government ³⁵⁴⁸² Assemblies; is that right?

A. Until 1990, no, there was no president of the republic at all. The institution didn't exist as such. There was a collective body which was known as the Presidency of the republic.

Q. And so that we can just deal with this thing as a piece, these direct elections, was that simply to bring Serbia in line with similar reforms in the other republics?

A. The direct elections for the president of the republic provided by this constitution is a component part of the concept of power which permeates this constitution and which in its first articles is formulated. It is the concept of the division of power; the division of power with the parliamentary system of power and with the so-called bicephal executive, that is, two-headed executive organ, bicephalous. One permanent one, which is the head of state, and the other the government which is changeable. And that is the system of government that the Western countries have become accustomed to. And as an example for this constitution we used the Fifth French Republic, dated 1958, which also provides direct election for the head of state.

Q. Well, what happened was that, having been elected for five years, the accused went to the polls two years later because of the competitive approach taken by Milan Panic; is that correct?

A. I wouldn't tie that up with one man like Milan Panic. Quite simply, a consensus was reached and the president of the federal republic of the day, Mr. Dobrica Cosic, was also of that opinion. He also thought that all the elections should be held at all levels, including elections ³⁵⁴⁸³ for the president of the republic. So parliamentary elections and presidential elections, and I think local ones, too, and that was in 1992.

Q. I'm not going to debate the detail of that further. That, therefore, took this accused to 1997 by dint of his second term running for five years, and in 1997, one of the various things you did that was controversial, was you sought to interpret this provision, Article 86, as allowing the accused to stand for yet a further term despite the fact that it says in terms the person may only be elected two times only. You said, ah-ha, but since he's only done two years of his first term, the first term doesn't count. That was your argument, wasn't it?

A. Asked by a journalist first how I understand this provision of the constitution, I just gave an interpretation of it, but since I took part in the writing of the constitution, I'm fully conscious of the fact that there is a void here in the constitution, a gap, and that it says that the mandate of the president of the republic lasts for five years, a five-year term of office. Now, what happens if it lasts for less than five years? Is it considered to be a full mandate? The American constitution, for example, resolved this question by subsequent amendments and said that if a term -- a lesser term was served, then it is not counted as a full term of office. So there's a gap in the constitution here. We needed a provision in this Article 86 which would state that the mandate of the president of the republic, if it be shorter than the full term of office, is counted as having served a full term of office. Had a provision of that kind existed, then there would be no room for interpretation. The situation would have been quite clear. So as I say, we needed a provision ³⁵⁴⁸⁴ here saying that if a lesser period of the five periods [as interpreted] was served, that would be equivalent to a full term of office.

Q. The point is, Professor Markovic, that you would do almost anything you could to help this accused. We'll look at the article you speak of so we can deal with this all of a piece. It's Vreme from the 3rd of May, 1997, please. You can have it in the B/C/S, remind yourself of what you said, and we'll see in English on the overhead projector. But you would do almost anything to help this accused stay in office, including advancing the unarguable argument.

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

JUDGE ROBINSON: Professor, I think you should --

THE INTERPRETER: Microphone, Your Honour, please.

JUDGE ROBINSON: Professor, Mr. Nice just put a proposition to you which you should not leave unanswered. He said that you would do almost anything to help this accused stay in office, including advancing the unarguable argument. Is that so?

THE WITNESS: [Interpretation] No, that is not so, any of those statements. I didn't do everything. An individual cannot do everything himself. A candidate has to be put forward as a president of the republic. I cannot elect him or choose him, so I don't agree with Mr. Nice that I cannot back that argument up. Mr. Nice has shown considerable lack of understanding of the constitution of Serbia so far.

JUDGE ROBINSON: You must not leave unanswered propositions like that when they're put.

MR. NICE: ³⁵⁴⁸⁵

Q. So if we look at the article, in the second paragraph you're quoted as saying the following: "Same person cannot be elected president of the republic more than twice, but if that person did not complete their full term of office, then this can be seen as if they hadn't been elected at all."

And then if we go down the page to the last part of your quotation: "Markovic stated that if the term in office did not last for five years, facts from paragraphs of Article 86 of the Constitution --" I'm so sorry I'm going too fast -- "of Serbia can also be interpreted as if there had been no election at all ..."

And then the last sentence you say this: "Election and political justice speak in favour of my interpretation. The factual question is whether the President of the Republic will rely on this interpretation and again run for Presidency or not."

Well, now, that's what you said, and you remember one of my earliest questions to you was were you the supreme constitutional lawyer that the accused described you as being. We see here a counter-argument advanced through Vreme by Dr. Pavo Nikolic. Do you accept that he is a constitutional law expert of respectability?

A. Absolutely. Every professional in constitutional law has the right to his own opinion. There is never a unanimous opinion by all participants in science and among scholars, and here you have it, two different people thinking two different things. It's no heresy. And I didn't give an interview of any kind to the papers that you mentioned. Never. I never gave an interview like that. ³⁵⁴⁸⁶

Q. We can read the respectable Dr. Nikolic's contrary view, but what happened was this: You didn't press on with -- or the accused didn't press on with your argument, recognised that it was untenable, and therefore he was going to be out of office as President of Serbia, so he simply switched, by removing Lilic, to having himself elected by the federal republic Assembly to become President of the FRY, didn't he? Showing that it didn't really matter which office he held, but that's what he did. He simply switched to the FRY.

THE ACCUSED: [Interpretation] Mr. Robinson.

JUDGE ROBINSON: Yes, Mr. Milosevic.

THE ACCUSED: [Interpretation] These observations incorporated into a question are quite improper, because Mr. Lilic ceased to be president of the Federal Republic of Yugoslavia when he had served a full term of office to the very last day. He even stayed on several weeks after the expiration of his mandate, which was when I was elected president of Yugoslavia. So to say that Lilic was done away with is a flagrant lie here, because nobody was taken away after he had served -- not served a full mandate. So Mr. Nice must take care of what he's saying.

JUDGE ROBINSON: What he can comment on as a matter of fact, if he's able to, is whether you simply switched by removing Lilic so that you could then become the President of the FRY.

Can you say whether as a matter of fact that was a strategy employed by the accused?

THE WITNESS: [Interpretation] There was no strategy. It was just a spontaneous development of events. The head of state of the day, of the ³⁵⁴⁸⁷ federal state, his mandate had expired pursuant to the constitution, and we had to elect a new head of state.

Now, whether immediately afterwards Mr. Lilic was elected, not for president as Mr. Nice just said but as vice-president of the federal government or vice-premier, I can't really remember, but there was absolutely no strategy. Quite simply, the mandate had expired with the passage of time.

MR. NICE:

Q. The accused is quite right that Lilic had served his full term. Of course, these constitutions of which you were the draftsman were so malleable -- or you believed them so malleable that anything could have happened if it had been desired, and it was desired that the accused should stay as head of Serbia but he couldn't. So he took the three-year term in the FRY, and then in 2000 there was a further proposal, wasn't there, to change the constitution so that he could stay in for another two full years.

JUDGE ROBINSON: Mr. Nice, you have several questions there, and the first proposition, I think, the witness should attend to because it does say something about him which is adverse as a professional. You say that he was the draftsman and the constitutions were so malleable that anything could have happened if it was desired, and it was desired that the accused would stay as head of state.

Did you draft the constitution in such a malleable, such a flexible manner that anything could happen that you desired?

THE WITNESS: [Interpretation] Of course not. And that that is so, ³⁵⁴⁸⁸ if you look at the time after the year 2000, this will be best illustrated that. That constitution, which according to Mr. Nice has qualities of this kind, stayed on for five years once the opposition came into power. And pursuant to that constitution last year, the president of the republic was elected from the ranks of the opposition. So had the constitution been the way Mr. Nice had characterised it, it would have been replaced straight away in the year 2000 once the opposition came to power. So it is the facts and time that show Mr. Nice is not right in his assumptions.

JUDGE ROBINSON: Yes, Mr. Nice.

THE WITNESS: [Interpretation] That disprove him.

JUDGE ROBINSON: The next question.

MR. NICE: Yes, certainly.

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

While I'm showing this document to you, the position is, therefore, that the -- or as a matter of history, that the accused was President of the FRY until 2000. There were then elections which in fact in any event he lost, but there was -- but there was before an amendment to the constitution. The president's mandate should be by direct election and by secret vote. How many terms and for what period, please?

A. Before that, in June, amendments were passed to the federal constitution which did not provide for only that, that is to say that the president of the republic should be elected at direct elections, but it also provided for the direct election of the federal Chamber, that is to say the council of the republic. So this change was far more complex than ³⁵⁴⁸⁹ you are representing it as being.

There were a number of amendments, and the president was elected according to that provision for a four-year mandate, and he could be chosen twice to the same position, two terms.

Q. One way or another, it was going to be possible by the constitutions and the amendments and your proposal in 1997 and the decision made by the accused for him to have stayed in office, had he been elected, until 2008; correct?

A. Well, no, it is not correct, Mr. Nice. You know that for somebody to be in office he has to be elected first. For example, Mr. Milosevic was a candidate and did not win those elections. Therefore --

Q. Let's go back --

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

Q. Very well. Let's go back, then, to the constitution of 1990. And to save time, perhaps we can just look at Article 110 on page 48. This one says in respect of the autonomous province of Kosovo, I think, or Vojvodina, Kosovo now renamed Kosovo and Metohija: "The statute is the highest legal act of the autonomous province which, on the ground of the Constitution, shall lay down the competences of the autonomous province ...

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

Well, we reminded ourself last week that the Assembly was abolished and never in the event elected again, but even had it been elected, its powers by this constitution, were dramatically reduced even ^{35490 BLANK PAGE 35491} in theory from what they would have been under its previous pre-1989 status; correct? Had no constitution, just had an ability to make statutes if the Assembly had even been elected.

A. First of all, Kosovo and Metohija was called Kosovo and Metohija right up until 1968. That was its name. It was only after 1968 that it was referred to as just Kosovo. So its name was Kosovo and Metohija for longer than its name was Kosovo. That's one point. Secondly, in my answers I've already stated that the autonomy, territorial autonomy, was reduced by the 1990 constitution to its classical form, that is to say its classical form and shape, not as a rival to the state in whose composition it was but as a unit realising autonomy within the frameworks and borders of its specific features, within the frameworks of the Republic of Serbia. And Article 13 of the constitutional law for implementing this constitution stated how the Assembly of the autonomous province of Kosovo and Metohija would be constituted. So that is Article 13 that you would have to refer to of the law for the implementation of the constitution. And what you said was correct: The province lost its powers of constitutionality, it enacts a statute, but apart from the former Soviet Union, there was never an autonomous unit in the world which would be able to bring in its own constitution and had the powers of doing that. And our provincial autonomies were introduced in 1945 under the influence of Stalin's constitution of 1936, and their rank is -- was institutionalised in the 1946 constitution. It was mirrored on Stalin's 1936 constitution, in fact. ³⁵⁴⁹²

Q. I'm not going to go into those matters in detail. The constitution that we've been looking at came into effect in September of 1990, and the next things that we can deal with -- incidentally, we've looked at Article 135, and I'm not going to deal with that any more. I may come back to it.

Is it right - just yes or no - that about -- that at about this time Slovenia and Croatia were pressing for confederation?

A. Well, I can't pinpoint that, the period of time, whether that's when that happened, but I do know that they opted for a confederal system. They were pressing for that, yes, at one point.

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

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

MR. NICE: Certainly.

Q. May we return to -- not the draft exhibit, the exhibit marked for identification, Kosovo: Law and Politics, which is marked for identification 818, just so that we can see chronologically what was happening to Kosovo, very briefly.

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

Q. And if the witness would like to look at page 88 of this exhibit in Serbian. So we can see what's happening in Kosovo. Here's a decision. A "Decision on the provisional measures for the social protection of self-management rights and social property in the regional radio station in Urosevac." ³⁵⁴⁹³ "It is established that at the Regional Radio Station in Urosevac self-management relations have been substantially disrupted, the social interests seriously impaired ..." et cetera.

So under II, the director is dismissed and somebody else is appointed in his -- I think Sabani Isa is a man -- I'm in the wrong place. "The provisional executive shall discharge this function full-time and shall take it over immediately ... "III: The Programme Council --"

MR. NICE: Sorry for the delay, Your Honour. It's my fault entirely. I hadn't given Ms. Dicklich enough advance notice. If the usher would just put the page up a little bit on the screen now so we can see III. "The Programme Council of the Regional Radio Station ... is disbanded." So there's one of the things that's happening following the 1989 changes. A radio station is being taken over by central authority.

Is that something that happened a lot in Kosovo, Professor Markovic, taking over news outlets?

A. I don't know. I've already explained to you that at the time I did not hold a public office, but temporary measures could have been exercised in the entire territory of the SFRY in accordance with Article 130 of the constitution. So these are not unconstitutional measures. These are temporary measures taken in order to protect public property and self-management system, and that was in compliance with the then self-management system and self-management law.

Q. Would it surprise you if, for example, those resident in Kosovo ³⁵⁴⁹⁴ thought that interference of this kind with the freedom of the press was what was involved?

A. Mr. Nice, you as a lawyer should know that I ought to be acquainted with the facts first before I could answer, and I'm not acquainted with the facts. I did not hold a public office at the time.

Q. Let's look at another example of the sort of orders that were made. Same document, if we could just go to page 95 for the overhead projector, and it will be 94 for the witness.

This is the regime that we're dealing with now, isn't it: "Decision on the enforcement of provisional measures for the social protection of self-management rights and social property in the provincial administration for the advancement of upbringing and education in Pristina."

"I: It is established that the self-management relations are gravely disrupted, the public interests seriously impaired and that statutory obligations are not complied with ..." et cetera, et cetera. "II: The executive organ is dismissed: ... director of the Provincial Administration ..." and then somebody else is appointed in his place. Halim Hiseni, it would appear to be probably a Kosovo Albanian name, wouldn't it?

A. Are you asking me?

Q. Yes, I am.

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

Q. I'm asking you if, first of all, the name of the person sacked, dismissed, would appear to be a Kosovo Albanian name. I imagine you know ³⁵⁴⁹⁵ the difference in general terms between Kosovo Albanian names and others?

A. You know what, I couldn't claim with certainty. Because when I was in Rambouillet, I saw that the Gorani, the Roma, and the Ashkali, or rather, the Egyptians have very similar names. So just to give you an example, Qerim Abazi representing the Ashkali was there --

Q. If you really are going to tell us that you don't know if this is an Albanian name, I'm going to move on. If that's your answer, you don't know.

Just getting things in chronological order. On the 10th of January of 1991, the Constitutional Court of the federal republic affirmed Slovenia's right to self-determination and secession, even if it didn't assert -- didn't accept its right to unilaterally declare secession. Is that correct?

A. I couldn't say until I looked at the decision of the Constitutional Court. I need to see the facts, what decision you're talking about. I might have it here with me.

Q. We're pressed for time. Do you have any recollection of this particular decision, Professor Markovic, so as to help us with whether my summary is broadly accurate?

A. I cannot remember if we go by dates alone. If you were to give me some more specific details, then perhaps I would be able to recollect if the decision -- if you just tell me that the decision was adopted in January of 1991, then no, I cannot identify the particular decision. You have to tell me what enactment was assessed for its constitutionality, because after all, it was 14 years ago. ³⁵⁴⁹⁶

Q. In light of the format of your answers and the pressures of time and your wanting to get away, I'm going to move on. We go past Karadjordjevo, with which I've already dealt, and we come to May of 1991. Now, of course you weren't in office, you were just an ordinary member of the SPS, but you were subsequently to be in office of one kind or another for ten years. The Red Berets were established in May of 1991. How was that justified constitutionally? A paramilitary organisation established in May of 1991.

THE ACCUSED: [Interpretation] Mr. Robinson.

JUDGE ROBINSON: Mr. Milosevic.

THE ACCUSED: [Interpretation] I think this is an improper question because it contains an untruthful claim. There were no Red Berets in May of 1991. Even I wouldn't know about that let alone Professor Markovic. What Red Berets? Who? Where? In May of 1991. It's not true.

JUDGE ROBINSON: It's for the witness to say. Professor, you were asked a question which is in the form of a statement but a question, nonetheless, that the Red Berets were established in May of 1991, and then a subsequent question. What is your answer to the first?

THE WITNESS: [Interpretation] My answer is I don't know. I was a university professor. I did not deal with police matters.

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

MR. NICE:

Q. Very well. You were a university professor, but subsequently you ³⁵⁴⁹⁷ were a member of the Assembly of the Federal Republic of Yugoslavia, and then you were a Deputy Prime Minister. Now, one of the powers of the Assembly of the Federal Republic of Yugoslavia was that it had to approve the federal budget. Just yes or no so that we can understand the picture: Did you, as a member of the Assembly, acquainting yourself with and approving the federal budget, ever approve money for something such as the Red Berets, of which, of course, you're aware?

A. That's correct, the Federal Assembly, just as any other parliament in the world, adopts or approves the budget. The budget is a very detailed enactment, full of figures, and while I was a deputy, I didn't really look into those figures because every ministry and every federal agency was just an item within the budget. So I didn't really look into the figures. I only looked into my fields, the fields for my domain, such as education, culture, and so on.

Q. Professor, these are all very serious matters, and the existence of the body called the Red Berets was known. If it was financed even in part by federal body, perhaps Mr. Kertes' federal customs office, this is something of which you Assembly members should have oversight, isn't it, or was it hidden from you?

A. On the eve of the adoption of budget, minister of finance would always give a presentation, and I never heard while I was a deputy in the Federal Assembly him mentioning any expenditures for the Red Berets.

Q. May we take it if the Judges in due course find that the funding came in part from the federal budget, that it was hidden from the view of those who should have been supervising the propriety of the payment? May ³⁵⁴⁹⁸ we take that?

A. No, we couldn't take that. We should take a look at the budget, the specific budget for those years, check the items, because it's very difficult now to recollect items. Some items were expressed very -- in very global terms, such as "expenditures" without specifying expenditure for what. We should check, look into each budget item, check the figures for that item and see whether the Red Berets were provided for within that item. I don't have such a memory as to be able to remember all budgetary items.

Q. [Previous translation continues]... this way. You've been, of course, following events in the country of which you were an office-holder and to some degree following events in this trial. When you've heard of the activities of the Red Berets, realising that they had to be funded from either Serbia or the federal republic, were you shocked at what you had been a party to?

A. I don't know where you come with this idea that I was -- that I had been a party to that. What do you mean I was a party, I was a member of the Red Berets, that I wore a red beret on my head; is that what you mean?

Q. As a legislator approving a budget at a time when paramilitaries were operating on the territory of other states, where tens and hundreds of thousands, or tens of thousands of people and over a hundred thousand people eventually lost their lives, were you shocked at discovering what you and your fellow legislators had been a part of?

A. I will repeat once again that I don't know that there ever was an ³⁵⁴⁹⁹ item for Red Berets within the budget. You should present it here as evidence so that I could see it. As far as I can remember, up until 1996, while I served as a federal deputy, I never saw such an item in the federal budget.

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

MR. NICE: Indeed.

Q. The reason I pressed you on it is this, Professor: We've had evidence in the form of Exhibit 390, tabs 9 and I think 11, which are excerpts from the JSO video film, we've had evidence, Professor Markovic, that Frenki Simatovic says that something called the JSO was constituted on the 4th of May of 1991, and you in your evidence-in-chief, and I think it was under tab 3, drew to our attention the Constitutional Court's condemnation of paramilitary activity by reference to the ZNG. What I'd like your help with as the constitutional expert and as the participating member of the Assembly and subsequently a Deputy Prime Minister is why there was never any constitutional or other legal condemnation of the Red Berets, the JSO known later as the Red Berets. Can you help us, please?

THE ACCUSED: [Interpretation] Mr. Robinson.

JUDGE ROBINSON: Yes, Mr. Milosevic.

THE ACCUSED: [Interpretation] The question is truly improper. The -- according to the information available here, the JSO were established in 1996. I don't care who stated what. This is an improper way to put questions to the witness. ³⁵⁵⁰⁰

MR. NICE: It's not for the accused to try and assist the witness. The evidence is absolutely clear, as the Chamber will remember, in the words of Simatovic addressed to this accused at the ceremony subject of the videotape. And just to remind the Chamber and the accused, what Simatovic says on the videotape is this: "It -" by which he was referring to the JSO - "was constituted on the 4th of May, 1991, at the time of break-up of the former Yugoslavia and since it emerged has constantly worked to protect the national security in circumstances where the existence of the Serbian people was directly jeopardised throughout its entire ethnic area."

JUDGE ROBINSON: Well, Mr. Nice -- Professor, let me put the question to you in this way: Were you aware of the activities of the Red Berets?

THE WITNESS: [Interpretation] I was not.

MR. NICE: Well, Your Honour, I can move on. The coincidence of time, 4th of May, from that exhibit, to the Red Berets, 26th of June for the ZNG, and Defence tab 3.

Q. Professor, you were to be elected to the Federal Assembly. What month of what year did that take effect?

A. I was elected in late December, I believe it was the 23rd or the 24th of December, 1992. And I remained in that position until September 1996, when the new Assembly was elected, the new Federal Assembly.

Q. In the middle and early autumn or autumn of 1991, there was a political initiative coming from the accused known as the Belgrade initiative. Are you aware of that? ^{35501 BLANK PAGE 35502}

A. I cannot remember the substance of it. The name is familiar, but I cannot remember the substance of that initiative. After all, it's been 14 years. Perhaps if you were to give me some additional details, then I would be able to remember.

Q. [Previous translation continues] ... incorporate within the residual state as much as possible but in particular to incorporate Bosnia as well as Serbia and Montenegro within the remaining Yugoslavia; correct? Do you remember that?

A. I do not remember the substance of that initiative at all. I did not participate in any capacity in drafting that document and cannot remember the actual contents of it, so I'd better not say anything for fear of saying something that is not true.

Q. Let us turn to the next constitution I think you were involved in. It's the constitution of Republic of Serbian Krajina, RSK, and we'll lay that on the overhead projector for you.

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

A. I've never seen it, and that's why I quoted the words of Lord Palmerston. I never saw that constitution, nor do I know its contents. I spoke to you about the statute of the Serbian Autonomous Region. I know nothing about the constitution of the Republic of Serbian Krajina, absolutely nothing.

Q. Can you explain, then, what it was you were doing for Mr. Babic, because Mr. Babic in evidence said quite clearly that it was drafted by Borivoj Rasua and Professor Ratko Markovic. ³⁵⁵⁰³

A. I don't know what he referred to. I really don't know what he referred to. First of all, Borivoj Rasua, as far as I know, is not a lawyer at all. Somebody who is not a lawyer cannot draft a constitution. I told you that we assisted with the drafting of the statute of the Serbian Autonomous Region. I assisted and Academician Jovicic. However, that was the statute of an autonomous region. I don't know how the text of the constitution was drafted.

Q. And indeed it's true that it was first a statute and then it was proclaimed a constitution. So let's see if this document in the parts I want you to look at jogs your memory.

On the first page will be page 2 of 37 for the English, and it's at the top of the page. Thank you very much. And it reads -- I hope you have it in the Serbian.

"Proceeding from the right of the Serb people to self-determination and in compliance with the free will of the Serb people in the Serb Autonomous District of Krajina, expressed at a referendum, as well as the centuries old struggle of the Serb people for the freedom of its liberate, democratic and governmental tradition, resolve to establish a democratic state of the Serb people in their historic and ethnic areas in which other citizens will be enabled to exercise their ethnic rights, a state based on sovereignty which belongs to the Serbian people and other citizens in it, on the rule of law and equal rights for the prosperity of all individuals and society, the Serb people of Republika Srpska Krajina, through their representatives in the Constitutional Assembly, proclaim ..." ³⁵⁵⁰⁴ There's no legal -- and first of all, does this jog your memory? Did you draft this bit in the statute which you helped create?

A. I did not. This provision was a very brief one. It contained perhaps 20 articles, and it was modelled after the statutes of autonomous units. As far as I can see, this is an entire constitution, a full constitution. It contains everything that a constitution should contain.

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

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

MR. NICE: I'm sorry. You do have the document, Your Honour. It's Exhibit 351, tab 68, and I apologise for not having mentioned that already. But if we can go to page 3 of 37. Indeed Article 5 is what I'm looking for.

Q. "The territory of the Republika Srpska Krajina is integral and inviolable. A change to the borders of Republika Srpska Krajina can only be decided by its citizens at a referendum.

"The Assembly of the Republika Srpska Krajina can decide that other Serb territories be joined to the Republika Srpska Krajina should the citizens of such territories decide to join the Republika Srpska Krajina."

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

A. I can't say now because this pertains to the territory of a state, whereas the other document pertained to an autonomous region. However, I don't see anything unusual here. I don't see why you read it in such dramatic tone. Simply stated, the Serb people did not wish to be made to leave Yugoslavia. This is a reaction to the secession of Croatia. So why ³⁵⁵⁰⁵ should there be anything dramatic here?

Simply speaking, the Serb people who constituted in that area a majority did not wish to go and live in Croatia in a state where they would be an ethnic minority and where they would not feel at home. What is unnatural about this provision?

Q. You're not here as an expert, but I can at least ask you this: Do I take it, then, from your answer that you, you personally think that what they were doing was entirely legal, to carve out a portion of a state that was to be recognised by the European Union? Is that what you thought was legal?

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

Q. And can you just help us, again not as an expert but as a matter of fact, just by pointing us, please, to the differences between the rights of the people, the Serbs in Croatia, from the rights of the Kosovo Albanians in Serbia where they were, of course, an 85 per cent majority? Can you just point us to the factual difference between the two so that we can follow it?

A. Of course I can. The difference is very simple. The Serb people is a constituent people in the Republic of Croatia. The Albanian people is a national minority in the Republic of Serbia. The right to self-determination is something that belongs to a constituent people, not an ethnic minority, because an ethnic minority already has its mother state, and that's the Republic of Albania.

Q. Finally, please -- sorry. We've understood that, as you've ³⁵⁵⁰⁶ explained that before, but it certainly constitutes this, doesn't it: In terms of ethnic groups, totally different rules, in your mind, apply for ethnic Albanians from ethnic Serbs.

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

MR. NICE: Very well.

Q. Page 28 of 37, Article 102, please. "The Armed Forces of the Republika Srpska Krajina are the territorial defence of the Republika Srpska Krajina."

Now, by whom were they paid, Professor Markovic? You were on the Assembly of the federal republic from 1992. Help us, please, and indeed those viewing so they can know, by whom were these armed forces paid?

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

Q. We have heard a little, and we are going to hear a great deal more about things called the 30th and 40th personnel centres, established through the Supreme Defence Council. Professor Markovic, you know what the Supreme Defence Council was?

A. I do. I do, but I wasn't a member in order to know what decisions it made, but I know what kind of organ it was. It was a body that commanded the army of Yugoslavia, and ex officio two republican presidents and the federal president were members.

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

A. I'm hearing about them for the first time from you now. I had never heard about it before.

Q. How, then, did you think that these Serbs outside Serbia and the ³⁵⁵⁰⁷ federal republic were able to sustain an armed force, because you must have learnt that they had armed forces?

A. Well, Mr. Nice, if I -- if I'm a factual witness, I do not know that. I do not know the facts. I can only give you my assumptions, my suppositions, but that's not my job here. I do not know the facts. At the time, I repeat, I was a university professor, and from 1992 on, I was a federal MP, one among a hundred or so.

Q. I'll come back to that. Before -- The Hague Conference, are you acquainted, as a member of the public or as somebody later in government viewing the history of your state, are you acquainted with what happened at The Hague Conference?

A. You mean in 1991.

Q. Indeed I do.

A. Well, at that time, a certain plan was made. Lord Carrington made a plan to resolve the crisis in Yugoslavia, and as far as I remember, that plan was not accepted by everybody.

Q. Because you drew to our attention at tab 2 of your exhibits the letter to -- or an answer to Lord Carrington's question, and I wondered what your particular role in relation to that letter was. Can you help us? Maybe it was a bit of expert evidence to comment on legality or illegality. Just help us. What was your -- what was the significance for you of the letter to Lord Carrington?

A. No. Lord Carrington addressed a letter to the Arbitration Committee, which was an auxiliary working body of the conference, and the Arbitration Commission addressed the organs in all Yugoslav republics, ³⁵⁵⁰⁸ asking for their opinions. One of those organs was the Constitutional Court of Yugoslavia, therefore a federal body. The Arbitration Commission elicited the opinion of federal bodies as well. And in response to this request by the Arbitration Commission, the Constitutional Court wrote that letter at one of its sessions and sent it to the Arbitration Commission. So it is a letter, a document from the Constitutional Court of Yugoslavia.

Q. If we are looking at things chronologically and at the significance, if any, of that answer, and if there's any reliance by you on behalf of this accused as to the illegality of other acts by other states, shouldn't we bear in mind that the first act of force was the log revolution, to which we referred last week, and that either the first or one of the first acts of violence was the arming of the Serbs, if it happened, in the Krajina?

A. But the log revolution cannot be put before the Constitutional Court of Yugoslavia in order to assess its constitutionality. The only thing that can be assessed by the Constitutional Court for constitutionality are federal enactments and the federal constitution. Log revolutions are material, substantive acts, and they cannot be assessed for legality or constitutionality.

Q. I may come back to some documents, if I have time, for the end of 1991, but can you just confirm from memory that there was an offer by the European Union to all states of the former Yugoslavia to see if they -- what they were seeking by way of independence? Do you remember that being made on the 16th or 17th of December of 1991? We're going to see another reference to it and it's also contained in the Cassese article that you ³⁵⁵⁰⁹ were going to produce but weren't able to, but do you remember it?

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

Q. And the clear consequence of that was that Bosnia was going to go for independence. And so that we can have everything in a chronological way, once it was known that Bosnia was going for independence, the Belgrade initiative, which involved the incorporation of Bosnia, was dead. Do you remember that?

A. I repeat to you, the Belgrade initiative fell into complete oblivion, in my mind. I cannot remember the substance of the Belgrade initiative, although the name rings a bell.

Q. And just to make our position as the Prosecution clear, it was following the acceptance by Bosnia of the European Union's invitation that it became necessary for the accused to try one other way, having an enlarged Serbia, and that was with his third Yugoslavia, the so-called third Yugoslavia for which there was a conference at the beginning of 1992. Do you remember that?

A. I don't know which conference you are referring to. It would be very good if I could read that paragraph of the indictment, because things would be much clearer to me then, and I could memorise it.

Q. I have my eye on the clock, and I'll come back possibly to that a little later. Can we go back to marked for exhibit -- marked for identification Exhibit 818 briefly and just see again some of the things that happened either at the end of 1991 or in 1992 to Kosovo, and we'll look at another constitution so we can get the picture. We go to page 69 of this exhibit in the English, which I expect ³⁵⁵¹⁰ will be 68 for you, and indeed it is. We can see that the elementary education law requiring the language of instruction to be Serbian and nationalities to be provided with education in the mother tongue if not less than 15 pupils enroll in the first grade, subject to the consent of the Ministry of Education. It's on page 69.

Then we -- that was the elementary education law at the top of the page, Usher.

And then we're coming down to the middle of the page, the secondary education law: "The school shall conduct instruction in the Serbian language.

"The school shall follow the syllabus of the language of nationalities or bilingually when not less than 15 pupils of the same grade opt for it ..."

Then at the bottom of the page, the high school law: "Higher education shall be acquired in the Serbian language. "Instruction at a high school may be in the languages of nationalities or national minorities and in one of the world languages decided by the founder."

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

A. I don't think so. Simple arithmetics go in the face of your argument. They fulfil the requirement of 15 in all the three levels of school. We are talking about much smaller minorities than Kosovo Albanians here.

Q. Let's go over to page 107, for you page 106. All about the same time, in the same year. ³⁵⁵¹¹ The law on Serbian Academy of Sciences and Arts: "The Serbian Academy of Sciences and Arts is the supreme scientific and artistic institution in the Republic of Serbia.

"The Academy of Sciences and Arts of Kosovo and Metohija shall terminate its work as of the day of entry into force of the present law ..."

If you'd like to turn over -- that's as far as I need go for these purposes, I think.

What do you think that would have done to a place 85 per cent of the same ethnic origin, having to close the doors on its academy? And indeed the next reference is to the Institute of Kosovo History, which had to terminate its work. Is this all to do with constitutionality, or is this to do with centralising Serbian state and oppressing Kosovo Albanians?

A. Well, you see, I think that a small country like Serbia does not have enough people to fill three academies of science. At the time there were three academies of science. The requirements for becoming a member of the academy are extremely high, and in the Republic of Serbia, there are simply not enough personalities of respectability that could fill three academies. Much bigger states, like France, have only one.

Q. [Previous translation continues] ... and its institute of history had existed and had functioned, and now for no good reason, it may be thought, they were simply being abolished.

I mean, I know you were only a member of the party at the time, but can you help us with why that really was done? ^{35512 BLANK PAGE 35513}

A. Here is why: We simply moved to a different concept of autonomy. Autonomy is not a quasi-state. It is a unit with a territorial autonomy. And that goes with certain other changes regarding other institutions, like academies of science. If it is a territorial unit with a degree of autonomy, scientists from that unit can be elected members of the Academy of Science of Serbia. And indeed, the Academy of Science of Serbia had members both from Kosovo and Metohija and from Vojvodina, the other autonomous unit.

Q. A very brief look at the constitution of the Serbian Republic of Bosnia-Herzegovina, please, which Your Honours have had produced twice as either Exhibit 319, tab 1, or as Exhibit 132.

And do you remember, Professor Markovic, the passage of your evidence that appeared to have been incorrectly interpreted where you claimed privilege from identifying your involvement in the drafting of a constitution? We've looked at the RSK for which you say you contributed something in respect of a law, and we're now looking at the constitution of the RS. Which one of these was it that you were referring to when you were, right at the beginning of your evidence, saying you were privileged from discussing it?

A. I didn't say I was privileged from discussing it. I said it would not be fair for me to speak about it, and I meant the constitution of the autonomous region. And by the way, in my testimony I enumerated all the constitutions to which I contributed. This one would be the fifth. According to you, you would make me out to be the main constitution writer for the Balkans. It looks as if I had written them all. ³⁵⁵¹⁴

Q. Did you involve yourself in the preparation, assistance, drafting of this constitution or any statute that preceded it?

A. No, in any way, and I explained why. Bosnia and Herzegovina or, rather, Republika Srpska has enough qualified professors, some of them members of the Academy of Science, that they are able to do it without any assistance from outside.

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

MR. NICE: But can we look, please, Usher, simply at page 1 of this constitution, Article 2.

Q. You will see the family of constitutions involving the Serbs of the former Yugoslavia. Article 2 says: "The territory of the Republic consists of regions of Serbian ethnic entities including the regions where genocide has been committed upon the Serbian people. "The borders of the Republic shall be established and altered by means of plebiscite of a three-quarter majority of the total number of registered voters.

"The Republic is part of the federal state of Yugoslavia." What does that mean? Of which federal state was the RS proclaiming itself, the RS there from -- cut out from Bosnia, of what Yugoslavia was it proclaiming itself to be part?

A. That same Yugoslavia to which it had belonged until then. Quite simply, the Serbian people in areas where it was in the majority did not wish to be led out into foreign states, states that they did not feel as their own, states in which they would be an ethnic minority. It was a ³⁵⁵¹⁵ struggle for preserving the old Yugoslavia, not for creating some sort of Greater Serbia. Those people simply didn't want to be led out. They wanted to stay in their former state. It is a natural aspiration. They wanted to stay together with their own people in the same mother-state in which they had lived until then.

Q. Article 4 says: "The Republic may enter into union with state forms of other peoples constitutive of Bosnia-Herzegovina." Did that mean other Serb-dominated areas?

A. I don't know why you address me personally, as if I had written this. You should ask something like, "Do the authors mean ..." or something like that. I can only interpret this as a lawyer, just like you.

Q. Very well. Finally, over the page to Article 9. "The capital city of the Republic of Sarajevo." You were an Assembly member starting at the end of 1992. We all know about the siege of Sarajevo. Does the desire to have Sarajevo as the capital, in your judgement as a former parliamentarian and later Deputy Prime Minister, explain the siege?

A. First of all, the -- both capacities that you ascribe to me I did not have on the 16th of March, 1992. I was neither the federal MP or Deputy Prime Minister. At that time, I was only a university professor. Do you want my opinion as a university professor, because I'm a factual witness here? But then it would not --

Q. I want your knowledge --

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

Q. [Previous translation continues] ... an Assembly member from 1992, ³⁵⁵¹⁶ please. That's what I want.

A. I became a federal MP in end 1992. I believe our term of office was verified only in February 1993. And you know that one can only become an MP once their office, their election is verified by the parliament. I can only give you an opinion as a man in the street.

Q. Finally on this constitution, at page 17. For example, 110, Article 110: "Serbian Republic of Bosnia-Herzegovina shall have its own Army, consisting of standing units and reserve units." Throughout its life and for the period of time when you were an Assembly member, are you aware how the RS was -- the army of Republika Srpska was funded?

A. I was not aware of that at all.

Q. Again I'll return to that with time. I want you now, please, to look at the next constitution that you drafted, the last of -- sorry. I realise you're saying you had no part in the previous one. The next constitution with which you had any part in the drafting was the 1992 FRY constitution. That came to be prepared in 1992, I think in April.

Now, if you'd look, please, at this document, you'll find it's an article -- again it's entirely my fault. I -- I hadn't given Ms. Dicklich advance notice of what I'm going to be putting to the witness.

MR. NICE: Your Honours, while it's coming, and I don't know how Your Honours are committed over the break, but it's a document that it may be of value for you to spend -- maybe worthwhile spending time with it over the break, assuming we can find it. ³⁵⁵¹⁷

Q. Is it right that there was, in January of 1992, European recognition of Slovenia and Croatia?

A. Correct.

Q. Is it right, following that, that there was a meeting on the 5th of February of 1992 in Podgorica for the purpose of considering the 1992 constitution that was to come?

A. You have to take my word for it if I say that I don't know about that, because I was not present at the meeting. I was not part of the delegation from the Republic of Serbia. I know that for sure, and I know even the reasons why I wasn't on it.

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

A. Well, again as an expert. I was a member of that narrower body that had prepared a draft constitution, and that body was made up following the principle of equal representation. Half of the members were from Serbia, half from Montenegro.

Q. Who instructed you?

A. Once again, nobody gave me any instructions. And if someone were there to give me instructions, then they would be best placed to write the constitution themselves. I assume that the people drafting this had their own autonomy and can do so themselves, where it is the facts that define the contents and substance of a constitution.

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

MR. NICE: I seem to have mislaid this particular document I wanted you to read, and I'm afraid I can't ask you to read it over the ³⁵⁵¹⁸ break.

JUDGE ROBINSON: We will break for 20 minutes.

--- Recess taken at 10.31 a.m.

--- On resuming at 10.55 a.m.

JUDGE ROBINSON: Yes, Mr. Nice.

MR. NICE: The exhibits produced earlier, may they be given numbers? There was the Vreme article, and there was an amendment. If the Vreme article could be numbered.

JUDGE ROBINSON: Yes, it may be numbered.

JUDGE KWON: Yes, Ms. Higgins.

MS. HIGGINS: Before it's admitted into evidence I do have several objections, which I can outline briefly.

JUDGE ROBINSON: Yes.

MS. HIGGINS: Firstly, in evidence the witness stated himself that he had never given an interview like that. He didn't accept that he'd given the interview.

Secondly, in my submission, it adds nothing to the evidence he's actually already given to the Court, and on analysis of the article, it appears that it is not even an original interview but was in fact material taken from Politika Ekspres and, before that, Tanjug. My concern, Your Honour, is firstly, as I've stated, it adds nothing; and secondly, it contains journalistic comment, and other names are referred to in the B/C/S version of the article which has not been translated its entirety. As far as I can establish, just five paragraphs of the original article has been translated for these purposes. ³⁵⁵¹⁹ The fear is also that there is included comment by someone else - Professor Nikolic - who was not a witness in this case. Your Honour, briefly those are my observations on the admissibility of this document.

JUDGE ROBINSON: Could we sever the comments?

MS. HIGGINS: Your Honour, the difficulties there are paragraph -- the last paragraph relating to Professor Nikolic could be severed, but the concerns remain in terms of the originality of the interview and the concerns about this witness admitting and stating that he never gave an interview like that. So my concerns still stay, but if Your Honour is willing to and wants to admit it, then I would ask that the comments from Professor Nikolic go.

JUDGE ROBINSON: Mr. Nice.

MR. NICE: The witness acknowledged the views expressed there as being no different from his own, and the value is very substantially in the comments of Nikolic, given the way this witness has been advanced as an unimpeachable and peerless expert, we see here, as he was obliged to concede, public expression of contrary views on important matters, and if I have time, we're going so see more. And therefore, given the assertion that I've made that this witness would do whatever was necessary to help this accused, it's important to see that his opinions were indeed the subject of contrary academic expert opinion. So in our submission, the article is admissible for both parts and on the normal grounds.

[Trial Chamber confers]

JUDGE ROBINSON: On the basis that the professor acknowledged that ³⁵⁵²⁰ these -- the views expressed are similar to his, we'll admit the document.

THE REGISTRAR: That will be 823.

MR. NICE: I'm grateful. The other document doesn't need to be produced in the event the witness gave answers that are sufficient and I needn't burden the record with a document.

As to the document I was going to ask you to look at over the adjournment, it's entirely my error. Ms. Dicklich had, of course, produced it but I gave her a wrong internal reference. Can I now distribute to the Chamber, to the witness, and to the accused and to Ms. Higgins an article written by this witness. The first thing we'll see -- I'm going to require a lot of it to be shown, so if the usher could stay by the --

JUDGE ROBINSON: Mr. Milosevic, yes.

THE ACCUSED: [Interpretation] I assume that the interpreter misspoke, because it says in Serbian that this is a text written by the accused whereas I can see on the transcript it says that the text was written by the witness. So that was a slip of the tongue. But just to put that right.

JUDGE ROBINSON: Thank you, Mr. Milosevic.

MR. NICE:

Q. If we look, Professor Markovic, at the top of the page, and the Chamber can see this in the translation, it is headed Pravni Zivot 3-4/92. Would that suggest that this article was written in or about March or April 1992, Professor?

A. Well, that's what it ought to mean, and that they are published on ³⁵⁵²¹ time, but usually they're published a little late, and then the copies are antedated, the issues.

Q. The 1992 FRY constitution is dated the 27th of April. So that would mean that you were writing or preparing this article either at the time of drafting of the constitution or shortly before; correct?

A. Well, they worked on that text from February, and it was adopted in parliament on the 27th of April, 1992, but it was worked on before.

Q. In fact, it only took five days to draft the FRY constitution, so it is said. Is that a correct proposition? We'll see the proposition later.

A. Well, if you take a look at expired labour, you cannot write the constitution and be an ignoramus. If you look at past labour, past labour, you would have to have 15 years of knowledge accumulation in order to be able to write it in the space of just five days.

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

A. The draft constitution of the Federal Republic of Yugoslavia was written. That is to say, those republics who had decided to remain within the then-state of Yugoslavia and to carry on its continuity.

MR. NICE: Your Honours, this text which may actually merit detailed reading, is unrevised. It's an official translation but it is unrevised. There are some passages of it which are quite awkward, but for the most part I think it's easily to be followed and much of it I'd like to deal with but I have limited time.

Q. Paragraph 1, from about three lines down, reads as follows: Since the 1968 constitutional amendments -" and I'm going to miss out words from ³⁵⁵²² time to time to save time - "Serbia has been engaged in a struggle to have as many states on the territory of its republic, as other republics, members of the Yugoslav Federation have on theirs. That struggle successfully ended only in 1990 by drafting the Constitution of the Republic of Serbia."

Next sentence on the same paragraph: "... unification of Serbia and formation of a unique state government on its entire territory is the greatest result of this Constitution."

Is that something to which you still -- is that something you still believe, Professor Markovic? Just yes or no.

A. Yes.

Q. [Previous translation continues]... of centralisation of Serbia, achieved by the 1990 constitution, isn't it, unification of Serbia and a formation of a unique state government. That's what this was all about.

A. No, I don't agree with you there. Decentralisation existed on two counts; territorial autonomy and local self-government.

JUDGE ROBINSON: Mr. Nice.

MR. NICE: Yes.

JUDGE ROBINSON: I'm going to ask the professor to explain this, that since 1968 -- "Since the 1968 constitutional amendments to the SFRY Constitution from 1963, Serbia has been engaged in a struggle to have as many states on the territory of its republic, as other republics, members of the Yugoslav Federation have on theirs."

The part I would like to have comment on is "to have as many states on the territory of its republic ..." What does that mean? And ^{35523 BLANK PAGE 35524} then, "as other members --" "as other republics have." First, what is meant by "as many states on the territory of its republic," and how is that contrasted with the situation of other republics?

A. Well, this meant that the Republic of Serbia should undertake all the prerogatives of its state power and authority throughout its territory like the other five republics, whereas the autonomous units should just realise their autonomy within the frameworks of the Republic of Serbia itself. Because the status of the autonomous provinces beginning with 1968, for instance, pushed Serbia back to an area -- as a state, I'm saying -- to an area between the autonomous provinces, lodged there. The autonomous provinces were the protagonists of their own constitution, their own laws, they had their own government, their organs of administration, their own Supreme Court, their own Constitutional Courts. So the Republic of Serbia was not a state on the territory of the autonomous provinces. It wasn't a united state on its own territory and did not have the prerogatives of its own social powers like the other five republics.

JUDGE ROBINSON: So in effect it meant to have incorporated within the territory of Serbia the autonomous states, the autonomous provinces.

THE WITNESS: [Interpretation] That meant that the autonomous provinces were supposed to be deprived of the state functions that they gradually won since 1968. For example, in 1968 itself, when this status of the autonomous provinces came into being as quasi-republics, this was being built up, they had the right to a constitutional law which they had never enjoyed until then. Then they enjoyed the right to a statute as the ³⁵⁵²⁵ highest act, and the right to enact laws, which it never had until 1968. It also gained a Supreme Court, which it did not have the right to before that. The Assembly and the Executive Council of the autonomous province was vested with the right to take proceedings with the Constitutional Court of Yugoslavia, for instance, which right it did not have up until then, and so on and so forth.

JUDGE ROBINSON: The next part of the question is how was Serbia in a position of inequality in that regard in relation to the other republics?

THE WITNESS: [Interpretation] Well, first of all, it was in a position of inequality, let me repeat, because the functions of the state could be realised just outside the territory of the provinces themselves.

JUDGE ROBINSON: Are you able to --

THE WITNESS: [Interpretation] And secondly --

JUDGE ROBINSON: Are you able to illustrate the inequality by saying, for example, what the position was with Croatia or Slovenia or any other republic?

THE WITNESS: [Interpretation] The other republics had all the prerogatives of state power and authority throughout their territory. The laws were in force throughout the territory of the republic, for example, as was the constitution. The republican constitution and the republic as a whole was represented in the federal state. And in the federal state Serbia was represented itself, that is to say this space or area between the two provinces and the provinces themselves separately. So they were not -- ³⁵⁵²⁶

JUDGE ROBINSON: The question of --

JUDGE KWON: Mr. Nice.

MR. NICE: I've had a note, which I suspect comes from one of the interpretation booths, where they say having compared the Serbian and the English, that fifth line down, the phrase "as many states" is better translated as "as much of a state."

JUDGE ROBINSON: I see. "As much of a state." I see. Yes.

MR. NICE: We're much obliged to the booths.

JUDGE ROBINSON: That would explain the difficulty I had, yes. Thank you. Please proceed, Mr. Nice.

MR. NICE:

Q. Can I say, Professor Markovic, generally about this article, my suggestion is to you overall that this article in a sense gives the game away and reveals in many ways exactly the thinking of the political leadership of Serbia at this critical time of 1992, and that even if, as you say, nobody asked you to write the constitution, you nevertheless happened to understand what the thinking of the leadership was and indeed how it was going to be executed.

So, so that you have that in mind, that's my general proposition, shall we look at the first footnote, the double starred footnote, "Publishing the text of the author who directly worked in the project of the Constitution of the joint state of Serbia and Montenegro, among other things, has a primary goal to inspire our wise constitutional thinkers and our experts, to publish in their views on the constitutional status of Serbia and its orientation to create joint state, with perspective of ³⁵⁵²⁷ graduate unification of all Serbian states and Serbian people on the pages of this magazine."

That is the clearest exposition of a plan to create an enlarged Serbia to which other Serb areas could join. Am I correct?

A. No, you're not correct, on that on two counts, for two reasons. First of all, I didn't write this. This was written by the editorial board of that scientific journal, magazine. The editorial board and not me as author.

And secondly, you're not right because there were no efforts to create a Greater Serbia. The effort was to remain within Yugoslavia and not to leave Yugoslavia. So the Serb people did not wish to borrow their ethnic substance to anyone else and to create a state of their own based on the Serb people alone. Why would the Croatian state be created of the Serb people or Bosnia created of the Serb people? They wanted to stay where they were. They didn't wish to leave. They wished to remain in the state they had lived in.

Q. We'll see what you say later in the article. In the English to page 2, and in your text, Professor, to page 374, first paragraph. "However, since the Federation that was first created by the amendments from 1971 ..." and then amended and so on, "... which at the time of the enactment of the constitution of Serbia ... became openly separatist, Serbia had to integrate security mechanisms in its Constitution in case of already visible forms of disregard of the federal legal system and other violations of the Federal Constitution to the cost of the Republic of Serbia. By proclaiming itself -" and then that's a ³⁵⁵²⁸ reference to the Article 135 - "a part of the SFRY, the Republic of Serbia stipulated in its Constitution that she would realise the rights and duties she has according to its Constitution ..." And I'm going to read to the end the paragraph from the next sentence: "Therefore, to avoid the possibility that some vital government functions would not be executed because of separatism and the republics cancelling their participation in the work of federal bodies, the Republic of Serbia -" and this is perhaps a passage that is a little awkward as presently translated - "envisaged these functions in its Constitution as its own, prolonging their exercise until the SFRY and the Federal Constitution exist. From a legal point of view, this provision is useless, even incorrect in relation to the Federation and its Constitution. However, it is an expression of a specific political situation and actual relations in the Federation, and Serbia could not influence the outcome."

Two things. Aren't you really saying there that Serbia's 1990 constitution was in defiance of the law, claiming that this was because of already present disregard or separatism?

A. I don't know which law you're referring to. You say that the Serbian constitution was in defiance or contrary to the law. Which law?

Q. To the federal constitution of 1974, which was the abiding law at the time by which constitutional change was permitted.

A. It is not necessary for it to say the constitution of the federal unit, that the rights and units of the federal state will be realised within it, within the federal state. But in view of the express ³⁵⁵²⁹ tendencies towards secession, the constitution repeated that. That is to say, it said that all the functions, rights, and duties which it provides for the Republic of Serbia, envisaged for the Republic of Serbia, which the federal constitution had envisaged for the federation would be realised within the federation, that is to say within the federal state. And in view of the dangers of secession, those rights and duties were repeated as the rights and duties of the Republic of Serbia. However, it deferred their implementation until the constitution of 1974 was still in force, or its successor, the 1992 constitution.

Q. You see, I'm not going to explore the detail of that answer now, but dealing with the second point, the justification for this, the Serbian constitution was dated September 1990, and by that time what separatism had there actually been apart from, say, the summer log revolution or the arming of Serbs in the Krajina? Where is the separatism which you rely on in this article? Or, as I'm going to suggest, is this a form of post facto justification?

A. Well, it was said here that leading questions are not allowed, so why are you suggesting an answer to me now? We're talking about amendments to the constitution of the Republic of Slovenia, which were enacted in 1989, and we dealt with those amendments here. We examined them. And in one of the provisions of those amendments, it was stated that the right to self-determination, including the right to secession, that the Republic of Slovenia would regulate in its constitution, and that was in 1989. And it was the first decision that the Constitutional Court took, and we discussed here. And the constitution of the Republic of ³⁵⁵³⁰ Serbia, the 28th of September, 1990 is the date of that. And as far as I can say, the reactions on the constitution of Serbia was a posteriori, that is to say once we had clear manifestations of aspirations towards the right to self-determination as being the right to secession as well.

JUDGE ROBINSON: Professor, the prohibition against leading questions only applies to examination-in-chief and re-examination. It doesn't apply to cross-examination.

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

Q. If we go on to page 3 in the English, and to the paragraph in your text, Professor, which is on page 375, on the right-hand side, under II: "Since its resurrection (1804), the modern Serbian state should have solved its most important question - how to gather Serbian people, dispersed during the five centuries of foreign power, in one state, in other words, how should the Serbian state be a protector of all Serbs. During the XIX century, when the medieval Serbian state was rebuilt, many wise Serbian people and Serbian political parties ... tried to solve that problem with their programs for unification ..." That's a reference to Nacertanije, I think. But the first sentence is the clearest possible exposition of what was then, in 1992, the political leadership's plan to gather all Serb people in one state. Am I not right?

A. No, you're not right because the Serb people already existed in a single state, and the name of that single one state was Yugoslavia. And the struggle of the Serbian people, in fact, is the wrong thesis. It wasn't the struggle to create a Greater Serbia but to preserve Yugoslavia. ³⁵⁵³¹ Serbia was the largest country when it was Yugoslavia, when all the Serbs lived in one state.

Q. Professor, by 1992, that's all history. Secessions have happened and international recognition has taken place, and the problem is what's going to happen to the Serbs with their proclaimed but unrecognised states in Croatia and in Bosnia? And my suggestion to you, and I give you one last chance to think about it, is that writing this in 1992 is the clearest reflection of the accused's and the other political leadership's intention to create a new state for all Serbs by carving out from and then attaching to Serbia parts of Croatia and Bosnia. Correct or incorrect?

JUDGE ROBINSON: It's an important question, Professor, because that is the thesis of the Prosecution. That's the Prosecution case in essence.

THE WITNESS: [Interpretation] First of all, this is a text written by an author and not written by Mr. Milosevic. I myself wrote this text, and it says that the entire text was printed in a scholarly, scientific journal which is called Legal Life. And there is an asterisk with my name stating my functions. So I wrote this in the capacity of a professional scientific worker, not a man of politics because I had no political functions at the time. That's the first point.

The second point is this: There was no creation of a new state, as you put it. It was simply the preservation of the old state, the SFRY or, rather, federal Yugoslavia. That is to say the whole question lies in this point: It wasn't an effort on the part of the leadership of Serbia to create a Greater Serbia but to preserve and maintain Yugoslavia, ³⁵⁵³² because the Serbs from the secessionist republics did not wish to go and live in another state that they didn't experience and feel to be their own. They wanted to remain living in the country they had always lived in for the past 70 years.

MR. NICE:

Q. Allow me to try to bring you back to the question. Secession and international recognition had already happened, so that what you set out here could only be achieved by bringing into the Serb fold, in due course, those parts of the territories of Croatia and Bosnia which could be dominated or ruled by Serbs. Am I not right?

A. But, Mr. Nice, I'm talking about the 19th century, not the 20th century.

Q. Very well. Let's look at the next paragraph, still on your page 375, because I'm going to suggest to you that in the next -- in this paragraph and the following one you completely reveal the realities of what we're inquiring into.

You said this: "That question is a permanent national task, still unsolved. Only in this century, for the third time Serbian people was put in a position when they have to solve their fundamental national question - how to organise their state. As in previous two situations of this century, even now Serbian people have two options. The first one proceeds from the mixing of nations on the South-Slav territory. There are compact territories where one nation is in majority, but there are also some enclaves, which are smaller territories, populated by one nation and surrounded from all sides by one or many other nations. Furthermore, ³⁵⁵³³ there are territories where no nation has a total majority. Proceeding from such a reality, which is primarily the reality of Serbian people, a joint state of all Yugoslav nations organised as a complex state, specifically, as a federal state, is considered to be mostly in accordance with."

Just pausing there. From the questions I asked you before the break and in particular from the questions about the change from the Belgrade initiative to the third Yugoslavia turning around the invitation of the European Union, the Yugoslav states to declare independence, this was an impossible -- there was no longer possible, because Croatia had gone, Slovenia had gone, and Bosnia had gone. So that what you've set out in the paragraph until this full stop is impossible. Do you agree with me?

A. This is a statement to the effect that the federation of Yugoslav peoples is the optimum way to resolve the Serbian national question as well.

Q. We understand that's the Serbian view, but here you are winter 1991/1992, or spring 1992, with reality facing you, describing the options, and you go on to say this: "A federation -- a confederation would not be a suitable form because it intensifies ethnic antagonisms instead of eliminating them. This was very evident even in the case of Yugoslav Federation according to the Constitution from 1974, that in the last decade plus a year or two, which practically functioned more as a confederation. Today everyone can see the results of such functioning." Two points. First, I must suggest to you that to all those states ^{35534 BLANK PAGE 35535} which exist happily as confederations, the suggestion that confederations intensify antagonisms is not founded and/or absurd but is your way of justifying Serbia's refusal of confederation offers made by other states at earlier times and in particular at The Hague Conference. Am I right?

A. You are not right. Confederation is a historically outdated form. All confederations, including United States and Switzerland, have grown to become federations and there was no reverse processes where federations became confederations. There were no such processes in history.

Q. There are alternative arguments but I don't have time. But let's look at the next sentence, because this really tells the truth, doesn't it, Professor, if we bear in mind that the first possibility, the optimum choice, is gone, that you're against confederation and you say this: "Second choice is an independent and sovereign state of Serbia which would comprise all Serbian countries which are in geographical continuity, thus connected territorially. To go over that and demand that state also encompass the Serbian majority countries which are separated from the mother country Serbia by territory where the second nation represents majority is only possible by entering war with the risk of confronting the organised international community and exposing to its draconian sanctions."

Now, you will have to look at it again. It may need some revision in its translation, but you're telling us you were a mere technical draftsman, assisting without being asked in the drafting of constitutions, and you're here saying that the second choice involving territories where the second nation represents the majority, and that has to be Muslims and ³⁵⁵³⁶ Croats, is only possible by entering war. You're simply describing exactly what this accused did when he led people to their fates in an attempt to bring about a Serbian country in geographical continuity. Isn't that correct?

A. It is not correct, certainly not.

Q. [Previous translation continues] ... to us.

A. You keep ignoring the fact that I wrote this in my capacity as a scholar who held no public office at the time. In this article, I explain what two options for solving the Serbian national issue are possible. I chose the optimum one as the federal state option. As for the second option, I said that it was not possible to realise because it would have to come at the cost of confrontation with the international community and exposing the country to Draconian sanctions. Therefore, the second option was not realistic, could not have been realised. This is not a pogrom at all, this is simply my view as a scholar which I expressed ex cathedra.

JUDGE ROBINSON: Professor, I notice on the first page you're identified as the author and as Judge of the Constitutional Court of Yugoslavia. Was your judgeship a factor in the writing of this article?

THE WITNESS: [Interpretation] No. You know, in our journals, various errors occur. This is one of the obvious errors. At the time, I was no longer a Judge of the Constitutional Court of Yugoslavia because, quite simply, the Constitutional Court of Yugoslavia existed no longer at the time. But in front of my name you can see the term "Professor." I am a professor of the faculty of law in Belgrade, and they simply did not ³⁵⁵³⁷ update the information.

JUDGE ROBINSON: Frankly, I was surprised to see the reference to your being a judge. But could you tell us why that second choice was only possible by what is described here as entering war, by waging war? Why, in your view, was it only possible through the waging of a war?

THE WITNESS: [Interpretation] Precisely because the Serbian people, against their will, were taken to live in other independent national states. Serbian people were separated from their parent state. Up until that time, Serbian people lived in one state and then by ways of secession and war, Serbian people were taken to live in another state, and that fact was recognised by the international community. Therefore, through secessionist acts and armed action, Serbian people were taken to live in another state. The international community recognised that, and by doing so it severed the Serbian nation into several bits. The Serbs, up until that time, lived in one state, in federal Yugoslavia.

JUDGE ROBINSON: Yes, Mr. Nice.

MR. NICE:

Q. If we can go to English page 5, to page 377 for you, Professor Markovic, to have some feel for how your approach to the other states may have informed your judgement, note this: You asserted that: "... the advocacy of one state is not enough to preserve a multiethnic state. The Serbs and Serbia could not prevent leaving Yugoslavia by the people and republics that want to found independent and sovereign states." But then this: "It is very likely those nations entered the joint state of Yugoslavia with calculation finding it as a necessary evil on the ³⁵⁵³⁸ way to constitution of their own statehood. Thus, first Yugoslavia was their salvation from the German outvoting and assimilation -" no surprise to the Slovenes, Croats, and Muslims - "and thanks to the federal system and criterion on which it was executed the second one was a radical step forward on the way to the realisation of the final goal." So that the second Yugoslavia, this is between the two wars of the last century, "... was incubation for those people of secessionism which broke out when relevant social and political consequences fell into place ..." Is it really your view that going back to the Second World War, there was there was a plan on the part of Slovenes and Croats, executed by their successors, to achieve independence via the bridge of Yugoslavia? Is that really your case -- not your case, your belief?

A. I don't know why you are bringing up the Second World War. I don't see the Second World War mentioned here at all. You are placing my statement into a wrong temporal context. I am here referring to the creation of the common kingdom, the Kingdom of Serbs, Croats, and Slovenes. There is no mention of the Second World War here.

Q. Very well. But is it your belief that there was a planned use of Yugoslavia as a bridge by Slovenian and Croatian politicians eventually to obtain their independence? Is that what you're saying? And also the Muslims in Bosnia?

A. If you're asking me about my personal view, then, yes, this is my belief to this day.

Q. Let's move on to page 6, and in your text, that will be picking up at the halfway down page 377. And we can see your views, your ³⁵⁵³⁹ emerging views on the other nations and republics -- yes, republics. "Such a federal system based on the quasi ethnic criterion was the best leavening for secessionism. Convenient motive for it to break out was found in the aspiration of Serbia to correct its humiliating constitutional position in the federation established in the period from 1968 to 1974. Constitution from 1974 established Serbia as a republic of the second class."

I then miss a couple of sentences without disservice, I hope. "Two Serbian provinces which were the rival-countries to their state Serbia had been supported by the republics which became the secessionist ones later. What is more, they were encouraged in their emancipation and secessionism by Serbia. According to them, it was a condition for ethnic and political balance in the multiethnic Yugoslavia. When the political forces grew up in Serbia so that they were able to establish the republic statehood in the whole republic territory -" and then this - "as well as in other republics on the federal Yugoslavia ..." That phrase is a reference to the RSK and to the RS, isn't it? You're linking the establishment of the RS and the RSK to the developments in Serbia.

A. Quite wrong, Mr. Nice. It's obvious that you misunderstood the matters. There is reference here to other republics that had the status of federal units. No Republic of Serbian Krajina, whatsoever. Anyone who knew the facts at the time could not have made such a conclusion.

Q. Very well. Let's read on. "... that project was explained to the world as an aspiration for creation of Greater Serbia." ³⁵⁵⁴⁰ Well, forgive my getting it wrong and I'm only too happy to be corrected, whether it's a matter of interpretation or otherwise, how can something being explained to the world as an aspiration for a Greater Serbia be other than the connection of Serbia with other territories and particularly other Serb territories?

A. The non-aspiration -- it is not the aspiration for uniting the Serb territories but, rather, the aspiration for establishing the single state in Serbia in its entire territory in accordance with the 1974 constitution. There is no aspiration towards other republics' territories, no. The reference here is the reference to the autonomous provinces within the Republic of Serbia, which grew together with Serbia.

Q. Let's read on --

JUDGE BONOMY: I don't think I understand this answer, Mr. Nice. I wonder if I can ask a question.

Going back to the sentence which begins, "When the political forces grew up in Serbia so that they were able to establish the republic statehood in the whole republic territory -" now, I understand that to be a reference to the autonomous provinces, but it then goes on to say - "as well as in other republics of the federal Yugoslavia." So reading short, they were able to establish the republic statehood in other republics of the federal Yugoslavia. Now, what do you mean by that?

THE WITNESS: [Interpretation] No. This must be a translation error. This is a misunderstanding. Just like in other republics of the federal Yugoslavia, the reference here is to the fact that all other federal republics in Yugoslavia have prerogatives, state prerogatives in ³⁵⁵⁴¹ their entire territory except for the Republic of Serbia, which had state prerogatives only in the territory outside the provinces. So in that sense, the desire here is to give an equal standing to Serbia, the same status that other federal republics had. This must be some miscommunication due to wrong translation.

JUDGE BONOMY: I take it from that answer, Professor, you accept that if it's an accurate translation, then it describes the situation that Mr. Nice was presenting to you.

THE INTERPRETER: Microphone, please.

THE WITNESS: [Interpretation] Mr. Nice is advancing an argument that the Republic of Serbia wanted to establish statehood in its ethnic territory. What I claim is that it wanted to establish statehood in its republican territory. This is the essential difference between Mr. Nice's view and my view. He's claiming one thing, and I'm claiming quite the opposite.

MR. NICE:

Q. Well, we'll see how you deal with this same proposition with some later passages in this article, Professor, but let's stick with where we are.

"Serbia in the whole republic territory outside which almost the third of Serbs was left in other republics is really big in regard to the rest South-Slav republics. Precisely in that is the main failure and inadequacy of the political project which is called Yugoslavia for the Serbian people. Regardless of how much the Serbian people are divided into more federal units, Serbia will always be big in such Yugoslavia and ³⁵⁵⁴² will give complexes to others. First of all to those who do not have its history and historical glory, the Croats and Slovenes who are like that in front of the others and then to those who generated their quasi ethnic autochthonism from the Serbian national feeling what is the case with Macedonians and Muslims."

This shows your set of mind, Professor Markovic. The Slovenes and the Croats lacked Serbs' history and historical glory, and the quasi-ethnic autochthonism of Macedonians and Muslims was not worthy of taking into account. You show in this passage, I suggest to you, an absolute belief in the superiority of Serbs. Am I not right?

A. Not right at all. This is a well-known case, case well known in the world of federalism, namely that one federal unit which stands out in view of its size, number of residents, history, is a thorn in the side of other federal units. That was the case with Prussia in the German federation starting in 1871. That was the case with Russia within the Soviet federation from 1922 or, rather, 1924 onwards. Therefore, one federal unit which, in terms of its size, historical past and so on is such that it differs from other federal units causes distrust or inspires distrust, and in that sense we can view the thesis of Mr. Lazar Kolisevski that the Yugoslav federation was structured in such a way as to implement the principle "weak Serbia, strong Yugoslavia." Therefore, only if Serbia is deprived of its advantages, and that was the purpose of autonomous provinces, would it become equal with other republics. It would no longer stand out. It would no longer be larger than the rest of the federal republics. ³⁵⁵⁴³ This is the essence of my claim. It has no racist or chauvinist views as you are attributing to me. Simply speaking, Serbia was much larger than other units, and unlike other units, it had a very diverse and rich historical past.

JUDGE ROBINSON: Yes, Mr. Milosevic.

THE ACCUSED: [Interpretation] I have a lot of understanding for this type of debate and exchange of views between one university professor and his counterpart, but I would like to draw your attention to the time. If Mr. Nice is allowed to continue -- to continue until the end of this session, he would have had six and a half sessions altogether, and please bear in mind that I also need some time for redirect.

MR. NICE: Your Honours, I am quite --

JUDGE ROBINSON: Very much so, Mr. Nice.

MR. NICE: I am aware of that, but this is extremely important evidence, and I was aware that the Bench itself was interested in exploring the significance of the constitutional matters, and I'm going to try and complete this article and to take you to an article of criticism of the professor and then deal with Rambouillet, if I may. I realise it's trespassing over the normal period of time, but in my respectful submission it's probably justified.

JUDGE ROBINSON: Mr. Nice, you have taken a very long time in cross-examination.

MR. NICE: Yes, I have, because the witness has -- the witness has been giving answers of a very particular type, but, Your Honour, can we see how we go with this article, because -- ³⁵⁵⁴⁴

JUDGE ROBINSON: I'd like to get an estimate as to when you plan to finish because the accused rightly says that he wants to re-examine.

MR. NICE: I shall finish this article in 10 or 15 minutes. There is an article of criticism which I'd invite you again to consider reading over the interval, which you may not be prepared to do so, and then I'll simply use whatever time is available before re-examination time starts for the witness to get away today, if that's acceptable to the Court.

JUDGE ROBINSON: Mr. Milosevic, how much time would you need for re-examination?

THE ACCUSED: [Interpretation] At least one hour. And even then, I will not have had too much time as compared to Mr. Nice. It would not have been an unproportional division of time.

JUDGE ROBINSON: Bear in mind that in re-examination you can only ask questions on issues that arise out of the cross-examination. It's not an opportunity to examine the witness again.

THE ACCUSED: [Interpretation] That's precisely what I have in mind.

JUDGE ROBINSON: We'll consult. We'll probably have to put a limit on the cross-examination.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Nice, you have up until the first 15 minutes of the next session, so the accused will have three-quarters of an hour for re-examination.

MR. NICE: I will have to deal with things more swiftly on this article. ^{35545 BLANK PAGE 35546}

JUDGE KWON: Microphone.

MR. NICE: As Your Honours please. I will have to invite you to look at this article in more depth perhaps privately.

Q. Page 7, for the witness page 378. End of the first paragraph. Professor Markovic, what you're saying, incidentally, I suggest to you, is intentionally incorrect on many occasions. Look what you say here. You say: "... the separation cannot realise the territories in which the majority population which did not commit itself to leaving Yugoslavia lives. In that case, the republic borders which are conditional anyway will no longer be valid and they are valid only if there is a federal system and territorial integrity of Yugoslavia. In that case, exclusively the ethnic borders are relevant." That's the clearest possible intention to redraw the borders. Am I not right?

A. No, absolutely not. This is a unanimous view of the scholars. The borders were drawn between federal units provisionally, and they reflected the organisation of the Communist Party of Yugoslavia. They were created up to the second session of AVNOJ in 1943. Marshal of Yugoslavia, Josip Broz, used to say that the borders between republics resemble fine lines in marble. They do not separate but to the -- to the contrary, they unite. Therefore, these borders were drawn only within the federal system in order to exercise the right of the peoples to self-determination. And this is a unanimous view of all scholars within Yugoslavia. There is not a single legal document establishing the borders between units. And why is it so? Because these are the borders ³⁵⁵⁴⁷ reflecting the organisation of the Communist Party of Yugoslavia. Its central committee, regional committees, and provincial committees. So this is just a reflection of those borders, whereas the legal borders were never established pursuant to a referendum or pursuant to a legal document.

Q. I'll cut right to several points I would like to draw to the Chamber's attention. We'll come to page 12 in the English, and for you, Professor, it will be page 383. The large paragraph for you, Professor, and towards the bottom of the page on the English, and you said this: "To put it very briefly, in the present circumstances the joint state of ... Montenegro is, like an extension of the SFRY, the preservation of the parent core of the Serbian people and their statehood. It is not the state of all Serbs. In that sense, in terms of that request, its better achievement is a federal Yugoslavia of all constituent Yugoslav nations. However, we saw why that idea is unattainable. Better to say, its realisation is unacceptable for the Serbs. Likewise, there is no need to insist on a sovereign state of Serbia, when Montenegro wishes to build a federal state with Serbia."

Then this: "That federal state is a core around which the Serbian countries would gather and it would serve as a base for by-stages unification of the Serbian countries and the Serbian people. We are primarily talking about the areas where the Serbian people is in majority in Croatia and Bosnia, and partly in Macedonia too." There's more of it on the following pages, but, Professor, what you're setting out there is exactly what was this accused's intention, ³⁵⁵⁴⁸ that by stages Serb areas of Croatia and Bosnia should link with the motherland. It couldn't be clearer.

A. Thank you for this compliment on clarity. However, it has nothing whatsoever to do with any kind of joint action with Mr. Milosevic. I have to reiterate again here. I am presenting my academic opinion, my scientific opinion, no political position at all. This is an academic article published in a scientific journal. We can have an academic debate on it, but not a legal one.

Q. Well, just tell us what you meant --

A. This --

Q. Tell us what you meant --

A. -- is something that --

Q. Tell us what you meant if you didn't mean that you're setting out what's to happen in the future, that Serb territories of Croatia and Bosnia are to link up with Serbia. Tell us what you did mean.

A. This is a ideal request, aspiration that Germany, Italy before the unification had at some point. It's not a political demand. It's a programme, it's an idea, it's a vision of a man who is dealing with these matters, how the Serbian issue, national issue, can be resolved.

Q. Now, when you assisted unasked to -- in the drafting of the 1992 Serbian constitution, who gave you ideas as to what sort of really important constitutional elements should go in this constitution? Who gave you the ideas or did they all come from your own brain?

A. I'm saying again I'm not the author of the entire constitution, and I apologise to the people who contributed to the making of that ³⁵⁵⁴⁹ constitution in advance. You make me seem like I am claiming to be the single and only author.

There was a platform for the reform of the political system, and we referred to that document in order to identify ideas that influenced the making of the 1990 constitution. That platform for the reform of the political system is in evidence here, and it exposed, enumerated various ideas on what the political order and system should be in the future. The constitution of 1990 implemented them. The commission appointed by the Presidency identified these views.

Q. Let's look at one part of the 1992 constitution, and one part only, Article 2. Page 4. And the document was also exhibited as Exhibit 319, tab 2. We just need to look very briefly at Article 2. Article 2, please. Thank you very much.

We see Article 2 says this, the second part: "The Federal Republic of Yugoslavia may be joined by other member republics, in accordance with the present constitution."

Which member republics were you referring to? Was that to Republika Srpska and Republika Srpska Krajina? Was it?

A. No. No. We're talking about a type of open federation. There are two types of federation in the world; closed federations with the structure determined in advance, then unchangeable, and open federations that are opened to new members subject to the decision of the Federal Assembly. That is written in Article 78 of the constitution.

Q. The RS and the RSK were declared or declared themselves as republics, hadn't they? ³⁵⁵⁵⁰

A. I see absolutely no connection with Article 2 of the constitution of Yugoslavia. How can you know their intention in advance?

Q. Let's go now, then, please, to the article that I've asked you to review several days ago, and --

MR. NICE: Sorry, may the article the witness has just gone through be exhibited, please.

THE REGISTRAR: 824.

JUDGE ROBINSON: We will admit the last document.

THE REGISTRAR: That will be 824.

MR. NICE: Thank you very much.

Q. And we've already seen, I think, in the constitution of the RS and the RSK their powers to unite elsewhere.

If we now look at an article written by Slobodan Samardzic.

MR. NICE: I don't know if the Chamber still has the copies that were distributed or if they've handed them back. Let's just look at -- does the witness have this? It's in English. Comes from the European Studies Centre. He's read it, I hope.

Q. The first thing we can notice about this article, Professor, is it's written by Serbs; correct?

A. That is the first thing you can notice. And second, I can tell you it was written by non-lawyers. Mr. Samardzic never graduated from the law school.

Q. And Mr. Samardzic is a much respected intellectual, is he not, or won't you have that?

A. I do not deny that. I am just denying the assumption that ³⁵⁵⁵¹ somebody without graduating from the law school can debate a legal issue.

Q. And if we go to page 2 of 11, halfway down the page we can see that this is by no means written by people who are friends of the ICTY or any Western conspiracy, because the author describes NATO's intervention as the recent "brutal, illegal, and illegitimate military intervention of the NATO forces against the country."

So you would accept that this is a Serb without any particular leaning towards the forces and powers that established this Tribunal. Would you accept that?

A. No. I only agree that this man is humane enough to tell the truth.

Q. If we go to endnotes 18 and 19, we see that -- we see the material upon which they -- author relies. We see references in 18 and 19 to Slobodan Vucetic, who was, what, in the Constitutional Court? Correct?

A. No, he was not a member of the Constitutional Court of Yugoslavia that I was a member of. He is currently a member of the Constitutional Court of Serbia.

Q. And the man Cavoski, or Cavoski probably. Cavoski, I think -- no, I was right the first time, Cavoski, just again so that we can have a flavour of the sources relied on, Cavoski is the founder member of one of the Save Radovan Karadzic organisations, isn't he?

A. Kosta Cavoski is one of the first fighters for political pluralism in the Republic of Serbia, and he was among the founders and the inner circle of leadership of the Democratic Party. This is what I would say of him rather than what you said: He is one of the forefront fighters for ³⁵⁵⁵² political democracy in Serbia.

Q. We see that you're referred to in footnote number 9. Elsewhere but certainly in footnote number 9. If we get a shape of the document, but if we come back to the top of the page, Usher, please, page 5 of 11 -- in fact the bottom of that page, this is the assertion made by this group in respect of the constitutions and the operation of the constitutions that you helped in constructing. Five lines up from the bottom of the page: "What does make Serbia different from the other post-communist countries of Central and Eastern Europe is that the President relies heavily on one political party and on this basis the principle of party leadership is directly transformed into the principle of state leadership. This establishes a firm ruling amalgam between the Parliament, the Government, and the head of state, who in reality most often act outside the constitution. This amalgam of power existed before the constitution was adopted in the form of an all-powerful party, and its leader, that adopted constitution tailored to its own needs and simply moved itself into the new institutions. It continues to function even now, when the strong party chief is no longer President of Serbia, but President of Yugoslavia."

Well, the time of which the author's writing includes the time when you were both Assembly member and Deputy Prime Minister. Is his analysis of the reality of the operation of your constitutions or the constitutions in which you gave some assistance accurate? Professor?

JUDGE ROBINSON: Did you hear the question?

THE WITNESS: I'm without translation. ³⁵⁵⁵³

JUDGE ROBINSON: Would you repeat the question.

THE ACCUSED: [Interpretation] Mr. Robinson.

JUDGE ROBINSON: Yes, Mr. Milosevic.

THE ACCUSED: [Interpretation] Mr. Robinson, I heard the remark of the interpreter in Serbian saying that the interpreter did not understand the end of Mr. Nice's question. Since they didn't understand the end of Mr. Nice's question, they were unable to interpret it. I heard the interpreter saying that he or she did not understand the end of Mr. Nice's question.

JUDGE ROBINSON: Mr. Nice, please repeat the question.

MR. NICE: Yes.

Q. At the time that this article was written or over the time -- I'll go back.

The time to which this article refers was the time when you were an Assembly member and later a Deputy Prime Minister, and I'm asking you is his analysis of the reality of the operation of your constitutions correct?

A. First of all, I don't have the text in my own language. I have it in English. But all right, I'm not going to make an issue out of this. So I'm looking at the English version.

As far as I'm able to understand and as far as I understand your question, he objects here to the fact that the head of state is at the same time the party chief. But the same thing happens today. Borisav Tadic is the leader of the Democratic Party, and at the same time the head of state. If that is not what you meant by your question, you have to ³⁵⁵⁵⁴ edify me.

Q. A few more questions on this article because of time. Page 7 of 11, if you please, in the middle of the page. A particular challenge to the interaction of your two principal drafting exercises in the 1990 constitution of Serbia and the 1992. Second sentence: "By failing to bring its constitution in line -- into line with the Federal Constitution, Serbia has retained powers, which constitutionally belong to the federation. This has forced Montenegro to do the same and the federal organs therefore exercises its constitutional powers to only a limited extent. From 1992 to 1997 the president of Serbia in fact conducted Yugoslavia's foreign policy, which should be conducted by the federal government. The same person continues to conduct foreign policy following his election as president of the federal state, although this is equally unconstitutional."

Do you accept he's right about this being unconstitutional for the President of Serbia to conduct the federal foreign policy?

A. According to the constitution of the Federal Republic of Yugoslavia of 1992, the -- the internal and foreign policies are charted and implemented by the government. This statement here is not substantiated by any document, and it is completely wrong to say that despite the existence of the federal government politicians from other countries came to speak to Mr. Milosevic, not the federal Prime Minister. But they knew their reasons for doing that, for not going to see the federal Prime Minister rather than Mr. Milosevic.

Q. Did the accused run the foreign policy for the Federal Republic of ³⁵⁵⁵⁵ Yugoslavia or not? Yes or no.

A. No.

Q. Who did?

A. The federal government. The federal government ran the foreign policy, although it is the president of the Republic of Serbia who had the most contacts with the representatives of the international community, but they insisted on speaking to him.

JUDGE ROBINSON: Mr. Nice, we are four or five minutes beyond the break, and in view of the fact that we have to stop at a quarter to, those four or five minutes will have to be taken from the 15 minutes allocated to you.

MR. NICE: Certainly.

JUDGE ROBINSON: Otherwise we would eat into the time allocated to the accused.

--- Recess taken at 12.19 p.m.

--- On resuming at 12.43 p.m.

JUDGE ROBINSON: Yes, Mr. Nice.

MR. NICE:

Q. My last question about the article we were looking at is that it asserts the constitution was a smokescreen for unlimited power, and in a footnote says that in 1987, the federal parliament sat for less than ten effective days.

Is he right that you only sat for ten effective days? You'll find it in endnote 4, but you can remember. Did you only sit for ten effective days? We're very pressed for time. ^{35556 BLANK PAGE 35557}

A. I don't know, because I was not an MP in the federal parliament at the time. I told you I was an MP there until 1996.

Q. Yes. And as Deputy Prime Minister, you have no idea how often the Assembly met, do you? Just yes or no.

A. You're not asking me about the republican Assembly. You're asking me about the federal Assembly. I was Deputy Prime Minister in the republican government, not the federal government. I didn't count the days when the federal Assembly was in session.

Q. Help us with this: We're going to hear in due course, as already in evidence, of the millions of dollars or financial equivalent that went to support the RS and the RSK military forces. In either of your capacities, were you ever informed about that or was it kept from you? Were you informed? Yes or no.

A. I didn't know about it, and I don't know who would have the obligation to provide me with such information.

Q. Well, as a citizen, are you not entitled to know where your taxes are going, broadly?

A. Of course we have such rights as citizens. However, there is a distribution of work in the government.

Q. As a parliamentarian are you entitled to know where the money goes?

A. Yes, we are.

Q. [Previous translation continues] ...

A. And that is expressed on two occasions.

Q. As a Deputy Prime Minister, are you entitled to know where the ³⁵⁵⁵⁸ money goes?

A. I was Deputy Prime Minister in the republican government, whereas the army is financed from the federal budget.

Q. And you're really telling us, so that we can have this on our record, you were never told by anyone of the 30th and 40th personnel centres until I mentioned it to you today?

A. I claim that under oath, that I heard this for the first time this morning from you.

Q. In addition to the criticisms we've seen in the article, you've also been heavily and publicly criticised by a lawyer from your own university, different department, Stefan Lilic. He's in an article on the constitution headed The Unbearable Lightness of Unconstitutional Being, he's also heavily criticised you publicly for the quality of your latest constitutional book which your students were obliged to work from and which took no account of any of the recent developments in the former Yugoslavia. It's correct, isn't it, that you've been subject to heavy public criticism from that person?

A. He criticised me because I did not update the textbook with changes in the constitution, and I was waiting for the amendments in the constitution of Serbia. I updated the latest edition. The new constitution of Serbia was pending, and I waited for that to update the textbook. However, since the amendments had not been passed until then, I published the ninth latest edition of the textbook, taking into account all the changes in the legislation of the constitution.

Q. [Previous translation continues] ... criticisms and their replies ³⁵⁵⁵⁹ by this witness to them are available if they would help the Chamber in assessing them.

Tab 47 of the witness's exhibits is described as the Contact Group Non-negotiable Principles of 22nd of January of 1999, and it ends with, "Kosovo consent required inter alia for changes to borders and declaration of martial law."

For some reason the last part wasn't included. It's now on display and we see that in fact the non-negotiable principles, as described, included "Judicial protection for human rights," and then "Role of OSCE," and under, "Implementation" "Dispute resolution mechanism, establishment of a joint commission, participation of OSCE and other international bodies as necessary."

First of all, can you explain why the exhibit you produced was incomplete?

A. Because there was talk only about principles not the entire document. We were talking only about the principles, the general elements, and you are talking about the document as a whole, which was not contested. We believe that the principles endorsed by the Contact Group under the title "General Elements," we thought that on the basis of these principles an agreement should be made.

Q. Did you -- no. The question is why the Judges were presented with a document that was incomplete. In stopping at "Kosovo consent required inter alia for changes to borders and declaration of martial law," in the copy provided to them and to me, did you intentionally cut off the last bit about human rights and implementation? Yes or no. ³⁵⁵⁶⁰

A. Quite intentionally because that was not the subject of the discussion. The subject was the principles for the Contact Group, what you see here, general elements, not the entire document. That is what was being negotiated.

Q. The full document, which should have been available to this Court, makes it quite clear from the beginning, as you all understood, that there was going to be an international presence and that meant an international military presence and so all this arguing about the military element being the cause of the problem is false. You always knew there was going to be an international military presence before this accused signed up to engage in the agreement at all, didn't you?

A. You are absolutely wrong. I was the entire time in the castle in Rambouillet, and I know for a fact as well as all the other participants of that gathering there was not a word of mention of military presence. Only on the last day of the negotiations was it notified to the parties.

Q. Please remind yourself of this document, which is -- our Exhibit 135, I think. If it can go on the overhead projector. This is the letter you wrote on the 23rd of February. Let's read it. It went to Ambassadors Hill, Petritsch and Mayorski. "The delegation of the government of Republic of Serbia wishes to emphasise ..."

Next paragraph: "We would particularly like to emphasise the same as the Contract Group, no independence of Kosovo and Metohija." Next paragraph: "All elements of self-government at the time of defining of the agreement have to be known and clearly defined." Next paragraph: "The FRY agree to discuss the scope and character ³⁵⁵⁶¹ of international presence in Kosmet to implement the agreement to be accepted in Rambouillet. The FR of Yugoslavia and the Republic of Serbia are fully ready to continue the work in line with the positive spirit of this meeting. We therefore consider that it would be useful to set a reasonable deadline..." et cetera.

Until you were supplanted in the negotiations by Milutinovic, you, A, knew that there was going to be an international military presence, and B, until you were supplanted you were happy to go on negotiating, weren't you? And this letter makes it absolutely clear.

A. Well, it makes clear absolutely the opposite. What is being referred to is the presence of the international forces, not NATO forces. And only in Kosovo, not the entire territory of Serbia. Linguistically speaking, what you are reading does not show what you want to show. It speaks of the presence of international forces, not international military forces, not international troops. International forces concerned a civilian mission and only to Kosmet, not the entire territory of Serbia.

JUDGE ROBINSON: Mr. Nice -- Mr. Milosevic.

THE ACCUSED: [Interpretation] May I also receive a copy of this document that is being discussed?

JUDGE ROBINSON: Yes.

JUDGE KWON: And when did you write this letter? Was it after you were given the deadline, noon of 23rd of February?

THE WITNESS: [Interpretation] Yes. That was precisely the time of it, towards the end of the conference, three hours after -- 3.00 in the afternoon on the 23rd of February, in Rambouillet. ³⁵⁵⁶²

JUDGE KWON: So what you were asking at that time was an extension of that deadline. Am I right?

THE WITNESS: [Interpretation] No. The deadline was extended without a request from us. It was extended twice before that, on the 14th of February and the 20th of February. But it was said that the negotiations on the agreement were to be continued in Paris at a time that we would be informed of subsequently, because we expressed the readiness to continue the talks in Paris and to attend those talks.

JUDGE KWON: Mr. Nice.

MR. NICE:

Q. You see, your last answer before the question by His Honour is simply unrealistic and takes no account of reality. There'd already been the OSCE mission. There had been the KDOM mission. These didn't work. It was known -- and there had been an escalation of violence. It was known that there was going to be a military component and this agreement or this plan for agreement was exactly based on the Dayton model. You all knew there was going to be a military presence and you were going along with it until this accused stopped you. And he stopped you between Rambouillet and Paris, didn't he?

A. You're just not right on that score and that that is so I'm going to show you the conclusions enacted by the national assembly when it sent its delegation to Rambouillet to negotiate. May I be allowed to show these conclusions on the overhead projector? Just one sentence, in fact of that document.

That sentence, it is the conclusion of the national assembly, and ³⁵⁵⁶³ the mandate finds the Rambouillet delegation and it states: "We do not accept the presence or agree to the presence of foreign troops on our territory under any pretext what -- of the implementation of the agreement reached."

That is the sentence. It is one of the conclusions dated the 4th of February before we actually went to Rambouillet. So what Mr. Nice just said, to put it mildly, just -- is just not correct.

MR. NICE:

Q. Your description of the whole process of the 1998 negotiations and of the Rambouillet process is completely incorrect. There was goodwill on the side of the internationals and before that there was a willingness to consult on the part of the Kosovo Albanians. Did you record the evidence of Zoran Lilic when he was before this Tribunal on this topic?

A. No, I did not. I cannot follow all the proceedings at this Tribunal because I have to teach at the university.

Q. Did you follow the evidence of Ambassador Petritsch?

A. No, I did not, although I do know Ambassador Petritsch. I didn't hear what he said in testimony before this Tribunal. As I say, these proceedings take place in the morning when I have business to attend to at the university.

Q. So far as the accused is concerned, we've heard evidence from Borisav Jovic of his complete domination of and power over the party. Do you agree with that characterisation of him in general terms? You were a member of the party throughout and a founder member.

A. Well, it's like this: Every party leader dominates his party. So ³⁵⁵⁶⁴ he is a leader. He is the first man of the party, the leader of the party. I don't know of any party where the party president is not a leader.

Q. [Previous translation continues]... you went back to Belgrade on the 23rd of February and that's when -- to see the accused, no doubt, and that's when things all changed. Is he right about that?

A. He is right inasmuch as one fact and that is that on the 23rd we returned to Belgrade because it was when the conference in Rambouillet ended. As to the second point, no, he's not right there.

Q. Just two other questions. Is it right that when in 1996 local elections were apparently lost as a result of fraud by the SPS, the accused turned to you for assistance, and eventually of course, you all accepted the reality of electoral fraud in what's called the lex specialis that was drafted that gave the vote or gave the decision to the opposition parties? Is that right?

A. That law was adopted by the national Assembly at the time, and there are only two articles and it was positively assessed by the group led by Mr. Gonzales and generally by the international community as a whole. They gave a very good assessment of the law.

Q. And finally, because I see the time, going right back to the beginning of your evidence, 1989, the amendments, so far as those amendments concerned Vojvodina - of course Kosovo had fallen into an entirely different organisation and regime - as far as those amendments for Vojvodina, were they reversed by an omnibus law for Vojvodina in the last few years? ³⁵⁵⁶⁵

A. No. That law merely defined more precisely the provisions of Article 109 of the constitution and it was called the omnibus law in popular terms. It specified the regions in which the autonomous province, according to Article 109 of the constitution, has normative powers, and then it stated which those questions were that the autonomous province can regulate on the basis of its own laws or, rather, I apologise, by its normative acts. It did not step outside the frameworks of the constitutional provisions and solutions. It merely defined more precisely the provisions of Article 109 of the constitution.

JUDGE ROBINSON: Thank you, Mr. Nice. Mr. Milosevic.

MR. NICE: The question of exhibits can be dealt with either today or tomorrow.

JUDGE ROBINSON: Yes.

THE ACCUSED: [Interpretation] Thank you, Mr. Robinson. I shall try to be brief and use my time as rationally as possible, although I highly doubt that I'll be able to get through everything I want to get through, but unfortunately it is the physical restrictions of time here. Re-examined by Mr. Milosevic:

Q. [Interpretation] Professor Markovic, at the beginning of the cross-examination, Mr. Nice asked you whether you had taken part in the working group which, according to my instructions and Tudjman's instructions, was supposed to divide up Bosnia. And then he provided us with an exhibit, an extract from a book, in fact, by Professor Avramov, in which she states the following, and my question to you is this, or, rather, does that reflect what actually happened, what was going on at the ³⁵⁵⁶⁶ time? She says this, and it is on page 140. There's a number, 140, in the documents I received from Mr. Nice. I don't have the pagination, but 111 is the final -- the final digits of the ERN number. It says: "The presidents of the two republics, Tudjman and Milosevic, undertook another step but this time not an official step. They established two teams with the aim of comprehensively reviewing the political, economic, constitutional, legal, and international legal consequences of a possible disintegration of Yugoslavia and through that prism to seek a solution to it. Most probably the decision about this was taken at the meeting between the two leaders in Karadjordjevo in March 1991." And then she goes on to state the following: "Unfortunately, this attempt was not successful. The only point on which the two parties agreed was that the main determinant for the talks must be 70 years of life in common, life together, and stands on all other issues were very far divergent."

Therefore, Professor Markovic, when you talked to your colleagues, did anybody ever mention any division of Bosnia-Herzegovina at all?

A. I state on oath, having taken the solemn declaration at the beginning of this testimony, that there was not one single word about Bosnia-Herzegovina's division. Not one single word.

Q. All right, let me be even more specific. We're not now dealing with your talks with your Croatian colleagues but your own internal group consultations and agreements, the team mentioned here in fact, the team that is said to have taken part on the Serb side. Did you amongst yourselves ever mention any idea about Bosnia's division in any way? ^{35567 BLANK PAGE 35568}

A. How would we have the authority and power to do so?

Q. I'm not asking you about your power mandate. I'm asking you whether you ever brought an idea like that up. Did you discuss it amongst yourselves ever?

A. Either not amongst ourselves. We never discussed this. What we did discuss was what Professor Avramov stresses in her book. That's what we discussed.

Q. So what Smilja Avramov says here, "comprehensive review of the political, economic, constitutional, legal and international legal aspects," is that what you mean?

A. Absolutely correct.

Q. So that was the subject of your talks, was it?

A. With my partner, and that was Professor Smiljko Sokol, who is professor of constitutional law at the faculty of law in Zagreb, I discussed with him constitutional and legal problems, and international legal problems, as Professor Avramov says, economics ones. Academician Kosta Mihailovic, we all discussed that.

Q. So what you're testifying about coincides fully with what Professor Avramov writes in her book.

Now, look at the next page, please, the central paragraph towards the end. It is four lines from the bottom. It says: "The fact remains --" The explanation is given, et cetera, of how the talks were conducted. "The fact remains," she says, "that the discussion was waged behind closed doors, far from the eyes of the public, but there were never any secret agreements nor was there anything which should be hidden from ³⁵⁵⁶⁹ public view. It was just one episode in the attempt to find a solution which would not even be worth mentioning had stories not been brought up in the press which have nothing to do with reality." Is that the proper assessment, the one made by Professor Avramov? Is that right?

A. That corresponds to the truth in all its aspects based on the quotations you have just given us, and that working group had, I think, only two successful meetings and one meeting planned but never -- one that never took place.

Q. Very well. Now we have to go as fast as possible, Professor. Do you happen to know that for an entire year, one year after that famous meeting in Karadjordjevo and independent of that meeting, of course, but I'm talking chronologically here, that for a whole year after that meeting, alleged agreement on Bosnia's division, the Serb side in Bosnia-Herzegovina accepted Cutileiro's plan which enabled a peaceful settlement to the problem and an independent Bosnia-Herzegovina?

A. Yes, I do know about that.

Q. Now, the fact that it was one year after Karadjordjevo that the Serb side came out in favour of Cutileiro's plans, doesn't that deny and negate the idea of me and Tudjman having an agreement on Bosnia's division?

A. Well, those two facts are completely at odds with each other. Cutileiro's plan for Bosnia implies the whole.

Q. Thank you, Professor Markovic, we all know about the Cutileiro plan, but tell me this now, please: Since you were not able to remember ³⁵⁵⁷⁰ the Belgrade initiative awhile ago, Professor Rakic, during the break -- as this was brought up by Mr. Nice in the first place, Professor Rakic has given me some documents here, the text, in fact, as far as I remember, in Belgrade the 16th of September, 1991 is the date and venue, and I'm going to hand it over to you. And would the usher be so kind as to place this --

MR. NICE: If he wasn't present at the negotiations, if he has no memory of it, what has the document got to do with it? It's not his document. When the witness asserted lack of recollection of these things, this one in particular, I moved on. I'm not sure that this is appropriate re-examination of any kind.

JUDGE ROBINSON: He may be able to, but let me hear the question that you're putting.

THE ACCUSED: [Interpretation] Mr. Robinson, I had in mind the fact that Professor Markovic, when this was mentioned, said, yes, I know about it but I haven't got the documents for me to be able to answer, so I'm providing him with the document and I wish to go through the document very briefly. Mr. Nice explained, et cetera --

MR. MILOSEVIC: [Interpretation]

Q. Have you all got this text of the Belgrade initiative, Professor?

A. Yes, I have. I've been provided with it.

Q. Now, from this text can we see that the representatives of the republics -- of the Republic of Bosnia-Herzegovina, and we take it in alphabetical order, Montenegro and Serbia, that they had jointly asserted basic grounds for relationships in Yugoslavia? Can we see that and that ³⁵⁵⁷¹ is the title of the document, in fact?

A. Yes, and it emanates from the preamble itself.

Q. Very well. Now, from this document is it quite clear that the representatives of the three republics are speaking about the basis for structuring relations in Yugoslavia as it is made up six republics but that the initiatives were made by the three republics in question? Is that quite obvious?

A. Yes, that would emerge from point 1 of I.

Q. Very well, Professor Markovic. This initiative provides the groundwork for relations in Yugoslavia to be regulated. I point 1 it says Yugoslavia is the joint state of equal republics, nations, and citizens. Was that the approach that was the principled approach, the constitutional, legal position taken by the Republic of Serbia herself? That is to say Yugoslavia joint state of equal republics and citizens, nations and citizens?

A. Yes, that was Serbia's approach, that Yugoslavia as a federal state in which all the Serbs were rallied together and gathered together should be preserved as a state.

Q. Professor Markovic, in point 5 -- I don't have time to go through the entire document, but let's take point 5 of the first chapter. It says the republics and nations of Yugoslavia can step down from Yugoslavia in the way and methodology established by the constitution and laws of Yugoslavia but they cannot violate the interests of other nations and republics by doing so.

Is that the position taken generally in the political life of the ³⁵⁵⁷² country with respect to the principled approach that Serbia adopted?

A. That was the position of the Constitutional Court of Yugoslavia as well as we have seen. So they were able to step down or secede from Yugoslavia but only according to the methodology prescribed by the constitution without violating the rights and interests of the other nations and republics.

Q. And take a look at point 7 now, further down, which begins as follows: "Yugoslavia is founded upon the equality of the Yugoslav nations and republics." And then it goes on to say: "The national minorities are recognised all national and human rights established by corresponding international covenants."

Was that the principled stand that Serbia had which it advocated both in the amendments of the constitution and in enacting the 1992 constitution itself later on when the Federal Republic of Yugoslavia was established as being a continuity with the former Socialist Federal Republic of Yugoslavia?

A. Yes, that was Serbia's approach, and these two points or, rather, the two sentences that you read out were taken over directly from the decisions of the second session of the AVNOJ, the AVNOJ. Both those things exist in the decisions made by the second session of AVNOJ.

Q. Now take a look at point 9. It says: "A market economy, equality in property, the freedom of people and property, capital and knowledge, entrepreneurial undertaking shall be the groundworks for the economic life of Yugoslavia ..." et cetera, et cetera. Was that the stand of principle taken by the leadership of Serbia as well and the Republic of Serbia in ³⁵⁵⁷³ attempting to solve the Yugoslav crisis in its approach to the crisis?

A. The Republic of Serbia did have this position not only to preserve Yugoslavia but to transform the constitutional system of Yugoslavia in keeping with a market economy and its principles and the principle of political pluralism and parliamentrism, the parliamentary system.

Q. Since you've said that, please bear in mind point 10 of these basic principles: "In Yugoslavia, state authorities organised on the division of power in the form of multi-party parliamentary republics based on the rule of law and social justice." Was that the approach that Serbia took, the position Serbia took?

A. Those were the ideas and ideals that the Republic of Serbia based the transformation of the Yugoslav state on, and they gained expression in the 1992 constitution because all this is the principle set out in the basic provisions of the 1992 constitution.

Q. Very well. Now please take a look is what is stated about the relations within Yugoslavia in the second chapter of this document. Item 1: "Republics and nations of Yugoslavia base their relations on common interests and respect and protection of their interests on mutual respect and cooperation."

Is that in principle the position taken by Yugoslavia -- by Serbia in the Yugoslav crisis?

A. Yes. All aimed at preserving Yugoslavia as a federal state.

MR. NICE: These are effectively all leading questions. What's being done is the witness is being reminded of a text without my having cross-examined on the text, and if I had been allowed the opportunity to ³⁵⁵⁷⁴ cross-examine on this text, believe me I would have had things to say. And about its -- the way it fits with other events. But if we look at the questions, all that's being done is it's being used as a vehicle for a leading question of a kind that the witness picks up.

JUDGE ROBINSON: Mr. Milosevic, I don't know that this is taking us very far. You should move on to something else. I think you have been through this document sufficiently.

MR. MILOSEVIC: [Interpretation]

Q. Let us just clarify another matter, since we said that there was division of power, competencies among Yugoslav organs. Item 3 speaks about the Assembly of Yugoslavia --

JUDGE ROBINSON: Mr. Milosevic, we have dealt with this document sufficiently. Let's move on to another topic.

THE ACCUSED: [Interpretation] There is a peculiarity that I would like to quote to Professor Markovic from this document. I would like to remind him of this. On page 5, on page 5 of this document, when speaking of the president of the republic --

JUDGE ROBINSON: Bring that to his attention and then move on to another topic.

THE ACCUSED: [Interpretation] Well, I would just like to draw his attention to this.

MR. MILOSEVIC: [Interpretation]

Q. It is stated in this initiative, in this document, that the president of the republic is elected by the Assembly of Yugoslavia for each term of office from another republic at the proposal of that republic ³⁵⁵⁷⁵ in an A, B, C chronology of the names of the republics. So each time a president is elected from another republic following the A, B, C order. So the first president to be elected in this manner would be a president from Bosnia and Herzegovina.

Are you familiar with the idea and with the fact that at the time it was proposed that Alija Izetbegovic should be the president of that Yugoslavia as envisaged by this initiative?

A. Yes. This emanates from this provision. That same principle was applied to the chairmanship of the Presidency of SFRY in the 1974 constitution.

Q. Now, a general question which I would like to link to Mr. Nice's statement, claim on the division of Bosnia from Karadjordjevo. This Belgrade initiative which came six months after the alleged division of Bosnia, because that was in March and this is in September, does it deny any thought of division of Bosnia because it supports the continuity of Yugoslavia? So is that clear, Professor Markovic, based on your knowledge of constitutional legal principles and the contents of this initiative as I've put it to you?

A. Well, one doesn't need to be a constitutional law expert to answer this. One just needs to link certain matters. This document speaks of a united, single Bosnia-Herzegovina which together with the republics of Serbia and Montenegro creates a federal state. Had Bosnia been divided, it would not have figured here.

Q. Thank you, Professor Markovic. Now I will turn very briefly to a document Mr. Nice dwelt on for quite awhile. This is the last document -- ³⁵⁵⁷⁶ maybe not the last document he gave to us, but at any rate, this is a document that he quoted quite extensively. I don't have that much time. This is the journal entitled Pravni Zivot, Legal Life.

JUDGE ROBINSON: We'll exhibit this document, Mr. Milosevic.

THE ACCUSED: [Interpretation] You mean this Belgrade initiative document? Well, certainly, certainly, because Mr. Nice referred to it. Therefore, Legal Life.

[Trial Chamber confers]

JUDGE ROBINSON: Well, I'm reminded that it's not translated, so in accordance with the practice, we'll mark it for identification pending translation.

THE REGISTRAR: D272 ID.

MR. MILOSEVIC: [Interpretation]

Q. Professor Markovic, based on this article of yours published in the Legal Life journal, Mr. Nice quoted quite a lot of sentences from that article. I will now quote the bits that he did not quote, because I have an impression that he quoted that only in order to save himself the trouble of putting quite a lot of questions.

Now, please take a look at page 366. And for you gentlemen, it should be in chapter 3 in English of this article. Where you go on to state the following, Professor Markovic. After analysing various elections, options, and so on, in the very beginning of chapter 3 you state: "Yugoslavia, as a common state of South-Slav peoples, is the most logical, the most reasonable, and the best solution for a national question of all South-Slav peoples, especially those who are most ³⁵⁵⁷⁷ intermixed such as is the case with Serbs, Muslims, and Croats." Then I continue without skipping anything. The following sentence is: "It is well said that Yugoslavia is the largest Serbia but also Croatia. Bearing that in mind, the Serbian people committed themselves to Yugoslavia as their state twice in this century." And then the final sentence in this paragraph goes on to say: "Because of that, the Serbian people preferred Yugoslavia to the Independent State Of Serbia, regardless of the impression based on the names of the states that only the independent Serbia was a realisation of the ethnic statehood of the Serbs."

So you explain why is it that the Serbs preferred Yugoslavia to Serbia. And then you go on to say: "The fact that Yugoslavia is not a national state of the Serbian people is being neutralised for every South-Slav nation including the Serbian people in the way that according to the ethnic criteria in Yugoslavia is organised as a federal state in which the principle of equality of the peoples and their federal units is implemented. In the higher stage of overcoming the ethnic sensibility, the ethnic identity can be preserved along with the constituting of Yugoslavia as the state of equal citizens and constitutional proclamation and guarantees of the voluminous catalogue of the collective ethnic Croats as well as individuals ones as the members of the nation." And then in the next paragraph you say: "In abstract view that is the kind of state that Yugoslavia is. That is the reason why the official policy in the Republic of Serbia defends preservation of Yugoslavia with such persistence and tries in spite of all secessions that took place in ^{35578 BLANK PAGE 35579} Yugoslavia to preserve it in the uninterrupted existence." And then you go on to say: "The insistence of Serbia on the uninterrupted existence of Yugoslavia as the state regardless of secession of several federal units made possible that nowadays international and the states subject status of Yugoslavia continued and Yugoslavia continued its existence as a state without any interruption."

Therefore, I'd like to ask you this: In our political life, was there a clear distinction between the support for the continuity of Yugoslavia as an official political position that was continuously supported, was that distinguished from any idea of creating a Greater Serbia which would be to the detriment of other nations?

A. Absolutely. When giving my answers to Mr. Nice, this is precisely the point that I was making, and that point is elaborated here quite in detail. There were absolutely no efforts to create Greater Serbia. There were efforts to preserve Yugoslavia, which is the optimum solution for Serbs, because Yugoslavia is equal to the Greater Serbia, and the same thing applies to Croatia. That was my explanation of the events taking place in the country at the time.

I hope that Their Honours will read the entire article, not just excerpts of it, because the entire article supports quite explicitly everything that I've stated so far.

Q. Professor, Mr. Nice quoted another of your articles published in the Legal Life journal. However, that's another issue of that journal, the one that he quoted from yesterday [as interpreted]. And first he referred to it as a preamble of a constitution. So please tell me very ³⁵⁵⁸⁰ briefly, this article of yours that Mr. Nice qualified as the constitutional preamble, can it be found in the text of the constitution published in the Official Gazette as an official text of the constitution?

A. No, it cannot be found there, because that is the article that I authored, and I have it in English. I can show it to you. We have a foreword here first, a foreword that I authored, so this is my work project, and then is the text of the constitution from the first to the 136th article.

Q. Well, let us clarify the nature of this article. So this is a piece that you wrote, you as an author, and it is considered as a foreword or it can also be published as an article that goes after the constitution. So it has nothing to do with the constitution?

A. Yes, that's right. This has nothing to do with the constitution.

Q. It was simply published as a preface to the constitution; is that right?

A. Absolutely.

Q. Well, let me just draw your attention to one excerpt. Time flies, so I will have no time for any more than that.

On page 2 of is this article in Legal Life, this is page 1180, you start by saying, "What do people want in Serbia in relation to the upcoming constitutional reform?" And then you say that they want a very clear and specific matter. I'm quoting you: "Namely, that in the territory of Serbia there be only one and not, as until now, three rival states." And then few sentences down it is stated: "So that the people, ³⁵⁵⁸¹ wherever they are in the territory, have equal protection of the law, they be protected by the state whose citizens they are, which is the duty of the state." And then it says, "Together with other Yugoslav peoples and their republics to be equal within the federation of states of Yugoslav people."

So, Professor Markovic --

JUDGE KWON: Page 3 of Exhibit 816, in the middle of the page.

MR. MILOSEVIC: [Interpretation]

Q. Professor Markovic, so you are putting an essential question here.

JUDGE KWON: It's Exhibit 816. It's a different one.

MR. MILOSEVIC: [Interpretation]

Q. And then you give a very clear sentence here as to what is it that they want. They want to be equal together with other Yugoslav peoples and their republics within the federation of states of Yugoslav nations. Is that the briefest possible answer to the requests put both by the politicians and the citizens of Serbia?

A. Yes. That was precisely the request out of which the constitutional amendments arose. Serbia wanted to have equal rights in its own territory, the rights that would be equal to the rights that other republics enjoyed and wanted to be represented equally within the federation. The system that existed until then was asymmetrical. There were people in Serbia or in -- people -- residents of the autonomous provinces had two chances, two chances to constitute, to establish organs and laws, whereas the residents of Serbia were given only one chance.

Q. You've already explained that several times. No need to go into ³⁵⁵⁸² that again.

Now, please tell me, Professor, to go back to the misunderstanding or the confusion that exists in relation to the so-called usurping of the federal competencies by Serbia. Please read out in Serbian, not in English, Article 135 of the constitution of Serbia.

A. It states as follows: "The rights and duties that the Republic of Serbia within the Federal Republic of Yugoslavia has based on this constitution and which are to be exercised in the federation as provided for by the federal constitution shall be enforced in accordance with the federal constitution. If acts of the agencies of the federation or acts of the agencies of another republic, in contravention of the rights and duties it has under the constitution of the Socialist Federal Republic of Yugoslavia, violate the equality of the Republic of Serbia or in any other way threaten its interests without providing for compensation, the republic agencies shall issue acts in order to protect the interests of the Republic of Serbia."

Q. Let me put a question to you. Does it make completely clear that by doing so the Republic of Serbia --

MR. NICE: That sounds to me like a leading question on quite an important topic. I haven't bothered to stop all the other leading questions, but --

JUDGE ROBINSON: Just -- Mr. Milosevic, just ask the witness what is the significance of that -- of that article in terms of the relationship between the two entities.

Professor? ³⁵⁵⁸³

MR. MILOSEVIC: [Interpretation]

Q. Very well. Professor Markovic, you heard the question of Mr. Robinson. What is the significance of that article in view of the relations between Serbia and the Federal Republic of Yugoslavia at the time when this constitution was drafted?

A. The significance of this article lies in the affirmation of the status of Serbia within the federal state. Therefore, the Republic of Serbia expresses in this article the fact that it is going to abide by all the provisions of the federal state. The federation will exercise its rights in accordance with the federal constitution, and this provision is an act of federal loyalty of Serbia to the federal state.

Q. As you are a fact witness, please tell us, at that time when the constitution was passed in 1992 and later on, did Serbia ever take over the prerogatives of the federal state after the time when the federal constitution was passed?

A. I claim it never did so. Absolutely not. The federation exercised all its rights based on the federal constitution. Not even the president of the republic could exercise competencies from this constitution in Articles 5, 6, 7 and 8, because those rights were reserved for the federation and the president of the republic could never exercise the rights or obligations from Article 87 of the constitution.

Q. Now, explain briefly. In paragraph 91 of the Kosovo indictment, and I will have to quote it in full because that is more expedient than just quoting a couple of lines. It says: "Although Slobodan Milosevic [In English] was the President of Serbia during the wars in Slovenia, ³⁵⁵⁸⁴ Croatia, and Bosnia-Herzegovina, he was nonetheless the dominant Serbian political figure ..."

[Interpretation] I do not challenge this so I am not asking anything from you here. But here is my question: "... exercising de facto control [In English] of the federal government as well as the republican government and was the person with whom the international community negotiated a variety of peace plans and agreements related to these wars."

[Interpretation] Now, please, as a fact witness, do you have any knowledge that would indicate that it was under my control to run the federal government during the wars in Slovenia, Croatia, and Bosnia? So in 1991 until the end, until December, who was the president of the federal government, the federal Prime Minister?

A. Mr. Ante Markovic.

Q. Did I have any control over Ante Markovic, who was a witness here, by the way?

A. None. You had no institutional or constitutional opportunity to control him, and it would be unnatural for you to control him, because a federal level only controls the federal institution.

JUDGE ROBINSON: The allegation is that you exercised de facto control, not necessarily institutional or constitutional control. So the question was whether, in fact, Mr. Milosevic had that control over the federal government, but not looking at constitutional authority.

THE WITNESS: [Interpretation] Yes, I understand the question ³⁵⁵⁸⁵ completely, and you are completely right. Since we are talking about de facto matters, I have to invoke one fact: I do not believe that Mr. Ante Markovic would lend himself to any control by Mr. Milosevic in view of the fact that their relations were not such as to allow for that control. Their personal relationship goes in the face of such an assumption. It was not possible. And anyway, Mr. Ante Markovic testified before this Tribunal, and you could become aware of his attitude.

MR. MILOSEVIC: [Interpretation]

Q. Now, look at the last line. It says: "... with whom the international community negotiated a variety of peace plans and agreements related to these wars."

Do you know anything at all, in terms of facts - you don't need to explain the constitution and its coverage, you've done enough of that - just tell us how I participated and in what capacity in those talks and negotiations at the international level, peace negotiations.

A. You participated, I suppose, in your capacity as President of Serbia. And if what is meant here are specific international contacts, then you participated upon or according to a decision of the federal government. Such was the case with the Dayton Accords. It was clearly visible from the press and the media that the representatives of the international community had contacts with you. They came to you and had political talks with you. At that time, it was completely transparent and obvious.

Q. I have to hurry up. It seems I won't be able to cover all the grounds I wanted to, but with reference to the question asked by Judge ³⁵⁵⁸⁶ Bonomy, I think it remained unclear. We were talking about language and related rights.

Tell me, can the Albanian language be written in Cyrillic script?

A. No. No, it cannot be.

Q. All right. All right. Now, answer this question: So it cannot be written in Cyrillic script. Does the provision that relates to Cyrillic or Latinic script have anything to do with the rights of Albanians?

A. None. It relates only to those speaking the Serbian language. The Albanian language cannot use the Cyrillic script. It would be the same thing as righting Arabic in the Latinic script.

Q. Tell me just briefly, please, in connection with the law on university, because I don't want to search this huge document given me by Mr. Nice, it takes time, it was mentioned, everybody remembers, that a class would be formed if there are 30 students. Does that in any way jeopardise the rights of Albanians as the majority population in that area?

A. No way. I already answered that question today. Because the Albanians were an overwhelming majority in Kosovo and Metohija. This was a protective provision for Serbs and other inhabitants of Kosovo and Metohija, certainly not Albanians, because by virtue of the fact that they formed 90 per cent of the population, they do not fall under this provision. How could they possibly be a minority? This provision refers only to other inhabitants. It doesn't apply to Albanians at all in any way. ³⁵⁵⁸⁷

Q. Now tell me about the provision in another law on the ban of turnover of real estate. Does this law claim to impose such a ban on sale of property only if there is suspicion that this sale was made under pressure?

A. That was precisely the aim of that law, to prevent coerced sale. The aim was to prevent the change of ethnic structure of Kosovo and Metohija, and the Serbs were being made to leave by being made to sell their property. And if that had been allowed, there would be a Kosovo without Serbs and any Serbian property would have ended up in the hands of Albanians.

Q. Now, as an expert in civil law, do you know as a lawyer that contracts in general, especially contracts on sale can be declared null and void if it is determined that they were transacted under illegal terms or circumstances?

A. Yes. That is precisely the case. Contracts made under duress are nullified.

THE ACCUSED: [Interpretation] I really have to be in a hurry.

JUDGE ROBINSON: Mr. Milosevic, I'm reminded, I don't want to have my knuckles rapped again today, they're quite bruised, so just one more question, and then, Mr. Nice, to deal with your exhibits.

MR. NICE: I suspect in fact the number of exhibits that are outstanding may be better dealt with first thing tomorrow morning were that acceptable to the Court. I'm quite happy to deal with them now, but I don't want to invade the accused's time or the Court's.

JUDGE ROBINSON: Yes, Mr. Milosevic. ³⁵⁵⁸⁸

THE ACCUSED: [Interpretation] Just briefly a couple of questions.

Q. Mr. Nice quoted to you a certain article that makes reference to some sort of amalgam of power between the president and the party chief, et cetera. Just one question. Did the Socialist Party in this period, except for 1991 and 1992, ever have a majority in the parliament, be it the federal parliament or the republican one?

A. You mean absolutely majority.

Q. I mean the kind of majority that would allow it to pass a law or do something else without the cooperation of others.

A. It only had such a majority, the absolute majority from 1990 to 1992. Before and after there were only coalition governments.

Q. You mentioned a couple of dates because Mr. Nice stressed chronology on several occasions and spoke of the log revolution as the first instance of violence, whereas you mentioned Slovenia's declaration of independence, et cetera. Would you say that the log revolution was the first consequence of the current violence?

A. Yes. It was a response to violence. It was an effect of the violence that was occurring of the attempts to --

MR. NICE: It is a very leading question on the topic that's obviously of importance when everything that happened afterwards is justified. It may not have any effect on the legal picture here but everything that happens after is justified by first events of violence. I mean, the question is uttering leading.

JUDGE ROBINSON: Yes, Mr. Milosevic. You have to reformulate and then this has to be the last question. ³⁵⁵⁸⁹

THE ACCUSED: [Interpretation] All right. I cannot ask just one more question.

MR. MILOSEVIC: [Interpretation]

Q. Mr. Markovic, Mr. Nice said at one point that Bosnia had accepted the proposal and the invitation of the European Community for independence. Tell me, according to the constitution of Bosnia and Herzegovina, both the previous and the one that was in force at that time, which were the constituent nations of Bosnia and Herzegovina?

A. I already read this. There were three such nations; Muslims, Serbs, and Croats. They had the status of constituent peoples, constituent nations in Bosnia and Herzegovina, and conflict occurred when on the 29th of February, or, rather, the 1st of March a referendum was announced treating the entire population of Bosnia-Herzegovina as ethnically homogenous, ethnically equal rather than dividing into three constituent nations.

Q. Fine. But was it possible to pass any legal decision of that kind even if we disregard the constitution of Yugoslavia and other constitutions? Was it possible to pass such a decision without the approval of all three constituent nations?

A. No. The relevant amendment to the constitution of Bosnia and Herzegovina is very explicit. In such issues the approval of all three constituent peoples was necessary. There was to be no outvoting on matters of that importance.

JUDGE ROBINSON: Last question, Mr. Milosevic.

THE WITNESS: [Interpretation] And that amendment was an integral ³⁵⁵⁹⁰ part of the constitution.

THE ACCUSED: [Interpretation] I have to skip over quite a lot.

JUDGE ROBINSON: Last question.

THE ACCUSED: [Interpretation] Very well.

MR. MILOSEVIC: [Interpretation]

Q. Mr. Nice, presenting you with an article written by Professor Samardzic, stated that that author is certainly not a friend of this Tribunal - I'm quoting Mr. Nice - because he is not siding with the people who founded this Tribunal since he is criticising the NATO aggression. Does it really follow from this statement, from the claim of Mr. Nice that this Tribunal is really trying to justify the NATO aggression, something that I am precisely trying to prove here?

A. Well, from his question --

MR. NICE: [Previous translation continues] ...

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

MR. NICE: The same question that shouldn't be asked from --

THE INTERPRETER: Microphone.

JUDGE ROBINSON: We have to conclude now. Thank you, Mr. Milosevic. I'm saying we have to conclude now. We are five, six minutes beyond the time permitted. I'd like to thank the professor for testifying at the Tribunal. That concludes your testimony. We are now adjourned until 9.00 tomorrow morning when we will take up first the question of the outstanding documents as exhibits. We are adjourned.

--- Whereupon the hearing adjourned at 1.50 p.m., to be reconvened on Tuesday, the 25th day of ³⁵⁵⁹¹ January, 2005, at 9.00 a.m.