Although he was presented as a fact witness, Professor Ratko Markovic spoke less of facts at the beginning of his testimony at the trial of Slobodan Milosevic than of theory of constitutional law, prompting the judges to raise objections several times with the accused and his witness that “this was not a university lecture”

Slobodan Milosevic presented his defense witness today as “undoubtedly the best expert in constitutional law in the former Yugoslavia”. He nevertheless did not call him as an expert, but as a fact witness. He will be testifying about the events he had taken part in as a judge on the Constitutional Court of the former SFRY, as a drafter of the constitution of the Republic of Serbia and of the FR Yugoslavia and as the head of the Serbian delegation at the failed negotiations with the minorities representatives in Kosovo 1998 and then at the talks in Rambouillet and in Paris in early 1999. However, the first part of his testimony contained very few facts and a lot of theory of constitutional law, prompting the judges to object to the accused and his witness several times that “this was not a university lecture”, but a criminal trial.

As he introduced himself to the Chamber, Professor Markovic said that he had taken part in the drafting of constitution of four states. When the judges asked him to specify, he stated just three of them: Serbia, Montenegro and FR Yugoslavia. The fourth state whose constitution he drafted, as he said, was his “professional secret.”

Professor Markovic said that Serbia or judges of Serbian ethnic origin could not “in theory or practice” dominate the Constitutional Court in the former SFRY, which consisted of 14 judges: two from each republic and one for each of the provinces. The minimum number of votes required to pass a decision was eight, and on the eve of the break-up of Yugoslavia, the Court contained six judges of Serbian or Montenegrin ethnic origin.

Despite the fact that it was not “under Serb domination”, the Constitutional Court in the early nineties did pass a number of decisions declaring a number of “secessionist acts” of Slovenia, Croatia and Macedonia unconstitutional. Serbia, Markovic claims, never did request the Court to adjudicate on the constitutionality of the acts of other republics, but the Slovene judge, Ivan Kristan, did request that the Court pass its decision on the constitutionality of certain acts passed by the Serbian Assembly. According to Markovic, the judges mostly acted independently and according to the dictates of their own conscience, with the exception of the Slovene judge Ivan Kristan who “obviously based his decisions on the interests of his ethnicity”, Markovic claims. In September 2003, Judge Kristan testified at the Milosevic trial as the prosecution expert on constitutional issues.

The decisions of the SFRY Constitutional Court in 1991 annulling the “unilateral secessionist acts” by Slovenia and Croatia were based, as Markovic said, not only in the Yugoslav Constitution in force at the time, but on the jurisprudence of other constitutional courts in other federations in the world. He cited the rejection of the demands by Nova Scotia, Texas, Western Australia and finally of Quebec for unilateral secession from their federal states. According to Milosevic, this is relevant to the case at trial because it shows that “armed secession was carried out on the basis of unconstitutional acts by Slovenia, Croatia and BH, the direct consequence of which was the outbreak of the war.”

With the assistance of Professor Markovic, Milosevic rekindled the debate that preceded the break-up of Yugoslavia about who actually had the right of self-determination: republics or peoples. According to Markovic, the “issue is clear: the holders of the right of self-determination are peoples, living human beings, not dead territories.”

Professor Ratko Markovic should testify in direct for at least six hours, as Milosevic indicated, which means that together with the cross-examination he will be testifying for the better part of next week.