1 Thursday, 24 January 2013
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.34 a.m.
5 JUDGE ORIE: Good morning to everyone.
6 Madam Registrar, would you please call the case.
7 THE REGISTRAR: Good morning, Your Honours.
8 This is the case IT-09-92-T, The Prosecutor versus Ratko Mladic.
9 JUDGE ORIE: Thank you, Madam Registrar.
10 The Chamber was informed that the Prosecution would like to raise
11 two preliminary matters, and the Defence one.
12 Mr. Groome.
13 MR. GROOME: Good morning, Your Honours.
14 First a very simple matter. General Smith has asked if he could
15 have a hard copy of his statement as well as some blank paper to make a
16 few notes, if necessary, regarding questions. I've shown this to
17 Mr. Ivetic. He has no objection. So with the Court's permission, I
18 would ask the usher to place this on the table.
19 JUDGE ORIE: Permission is granted.
20 MR. GROOME: Secondly, Your Honour, yesterday at transcript 7273,
21 the Chamber expressed that it was still troubled by the discussion
22 surrounding the legal status of the protocol attached to a memorandum
23 from Akashi dated 16 August 1994 and now in evidence as D112. Lest any
24 confusion take root, I want to direct the Chamber to Prosecution
25 Exhibit P631 which is a second memo from Akashi which specifically
1 references the 16 August memo by number, Z1256. In P631 [realtime
2 transcript read in error "613"], Akashi makes a clear statement of the
3 legal status of the protocol the Defence has suggested had been accepted
4 and had legal effect:
5 "The attached protocol in contrast is a Bosnian Serb proposal
6 that was never accepted by us, the protocol was sent to us in error, and
7 was forwarded to you without a full examination."
8 Akashi attached to this correspondence an assessment of the
9 document from the UNPROFOR senior legal advisor which unequivocally
11 "Draft that had been prepared and submitted by the Bosnian Serb
12 negotiators but was found acceptable -- unacceptable by the UNPROFOR
13 negotiators and was never signed. Accordingly, it cannot be regarded as
14 having any legal standing."
15 Your Honour, this fact is also corroborated by the evidence of
16 RM163 at transcript page 6175, RM055 at transcript page 7225, and
17 General Rose at transcript page 6976.
18 Your Honours, it is the Prosecution's position that P613 is
19 dispositive of the legal status of the protocol proposed by the Bosnian
20 Serbs in D112. However, we stand ready to explore the matter further
21 should the Chamber take a different view.
22 JUDGE ORIE: Mr. Ivetic -- well, Mr. Groome, whether this
23 resolves all the problems is still to be seen. But at least you have now
24 pointed at what you consider to be the relevant sources for the Chamber
25 to make an assessment on the legal status. Mainly, also documents which
1 came months and months after the protocol apparently was drafted.
2 Mr. Ivetic.
3 MR. GROOME: Your Honour, if I could just correct the record. On
4 page 2 at line 14 I'm recorded as having said "613," I intended "631."
5 Thank you.
6 JUDGE ORIE: Yes, that's what I jotted down on my piece of paper.
7 Mr. Ivetic.
8 MR. IVETIC: Just briefly to respond to the arguments presented
9 by counsel, I wasn't aware we were at that stage of the proceedings, but
10 I would ask Your Honours to keep an open mind and examine all the
11 evidence as indeed I believe even the testimony of this witness who is
12 coming today will be illustrative on the fact of the protocols and how
13 they were viewed by those on the grouped on both sides on UNPROFOR and on
14 the side of the combatants, the combatting parties.
15 But I rise for another matter, Your Honours.
16 As a preliminary matter to this witness --
17 JUDGE ORIE: One second, please.
18 MR. IVETIC: Yes.
19 JUDGE ORIE: Yes. Please proceed.
20 MR. IVETIC: As a preliminary matter to this witness being
21 brought in, it is my duty to rise and bring to your attention a matter
22 relating to the list of exhibits for this witness. Your Honours have
23 issued a guidance whereby the initial list of exhibits for a witness are
24 to be given seven days in advance of their testimony. In this case, we
25 did receive such a list and it was, indeed, a very lengthy list of
1 documents, some three binders' worth once printed. Your Honours have
2 also stated that upon proofing the list can be amended with a reasonable
3 number of documents which arise during proofing. Here, the proofing of
4 the witness was on the 8th of January, 2013. At least that is according
5 to the information report which we have received. That information
6 report which we received the 18th of January, 2013 was dated the 11th of
7 the January, 2013, and did not list any new documents arising from the
9 Now, just one day before the witness was scheduled to testify,
10 that is, on the 22nd of January, and almost a full two weeks after the
11 witness's proofing session, we all of a sudden receive notice of some
12 seven new documents that are being added to the Prosecution list for this
13 witness with no explanation of where they came from, and I have to say
14 granted upon review we now note that four are extracted from existing
15 documents that were on the list but three are completely new.
16 Unless there was a new and undisclosed to us proofing of this
17 witness, we do not know how and why these new documents arise just before
18 the day that a witness of this complexity is scheduled to testify,
19 especially since they were all on the Rule 65 ter list previously and
20 apparently did not arise during proofing.
21 I need to know, and the members of the Defence team need to know,
22 for purposes of knowing how to best represent and protect the rights of
23 our client, in light of Your Honours' previous guidance, and the
24 established practice of the Prosecution to date, what exactly is the law
25 of the case as to the addition of documents to the direct examination
1 list for a witness? What are the methods of enforcement and what are the
2 remedies? Because we still don't have a clear answer to these questions
3 or a clear ruling from the Chamber on the degree of notice that our
4 client and his Defence team are entitled to for Prosecution witnesses,
5 even if this may be for future witnesses and not this particular witness.
6 I thank you for your time.
7 JUDGE ORIE: Thank you, Mr. Ivetic.
8 Mr. Groome, three entirely new documents, because that's the core
9 of the argument.
10 MR. GROOME: Could I ask Mr. Ivetic to tell us -- I'm unaware of
11 three new documents, Your Honour.
12 MR. IVETIC: By way of e-mail, January 22nd, 9.47 a.m., we
13 received 65 ter numbers 2227M, 22270P, 22270S, 01691A, 01624A, 05258,
14 27625, and P38.
15 It is my understanding that the last three --
16 JUDGE ORIE: Mr. Ivetic, yes. I asked for the three. But the
17 last three ones are entirely new in your view?
18 MR. IVETIC: That's my understanding, Your Honours. I don't have
19 the break down of the documents in front of me, but it's -- three of
20 those documents are entirely new. I can tell from looking at them that
21 the first four appear to be ones that were extracted from an existing --
22 existing audio recording that was on the list.
23 JUDGE ORIE: Mr. Groome.
24 MR. GROOME: Your Honour, more than a week before this witness
25 testified the Defence was provided with a list, a very detailed list of
1 the exhibits that would be used. With respect to 2270, over the course
2 of the week we limited -- it's a set of intercepts. We limited the
3 number of intercepts and we gave specific information about that.
4 With respect to P38, that is an original UNPROFOR report that
5 appears in 3535, 65 ter 3535. We -- Prosecution gave notice that we
6 would also be using P38, which is the same as that, but that we would
7 also be asking the witness to look at that.
8 The other two, Your Honour, I would have to take a look in
9 e-court. I believe they are intercepts, and I believe that we did give
10 notice of them. I'm sorry, 5258 is a map of the Srebrenica area, and I
11 can indicate now I will not use that with the exam. But it was simply a
13 JUDGE ORIE: 5258, yes.
14 MR. GROOME: And 2765 is an intercept that I will not be using
15 today as well.
16 I believe --
17 JUDGE ORIE: Mr. Groome, we have 27625 mentioned by Mr. Ivetic.
18 Is that the same?
19 MR. GROOME: That's the same one, I misspoke.
20 JUDGE ORIE: Yes.
21 MR. GROOME: So I will not be using that today, Your Honour. I
22 believe it was part of a larger collection of intercepts as well, but I'm
23 not going to use that today, so I don't believe there is any exhibits
24 that I'm using today that the Defence did not have more than a week's
25 notice that I would use.
1 JUDGE ORIE: Mr. Ivetic, when did you receive those new
2 documents, you said? Let me see. The 22nd, which --
3 [Trial Chamber confers]
4 JUDGE ORIE: Yes. And then I take it you immediately contacted
5 the Prosecution, asked them, What are you doing now coming with entirely
6 new documents isn't it.
7 MR. IVETIC: No, Your Honour, because it's happening with every
8 witness. So I don't do that. I look at the documents and see whether
9 it's a problem with this witness --
10 JUDGE ORIE: Mr. Ivetic, next time -- we're talking seven
11 documents, some of them clearly linked to other ones.
12 MR. IVETIC: Correct.
13 JUDGE ORIE: Next time you're hereby invited, if you want to
14 be -- raise these matters, with the weight, with the heaviness, you do it
15 first one call to the Prosecution. Because here you say it happens with
16 every witness. Here it apparently did not happen entirely with this
17 witness. If you look at the map, and if it's just a map of the
18 Srebrenica environment and the area, then, of course, before asking a
19 ruling from the Chamber on what remedies, I would say, well, we have a
20 map, which now, by the way, is not used and that, of course, confuses.
21 That's clear.
22 Mr. Groome, if you sent lists of documents you say you're not
23 going to use, I think it is better not to do that, but perhaps you'd
24 still have to make up your mind.
25 Mr. Ivetic, if you look at it, give a call to Mr. Groome and say,
1 What are you doing now? Because the first thing the Chamber would ask is
2 what is the type of the document. If it is simply a map of Srebrenica
3 area, then there may not be that much reason for the strong language you
5 We move on.
6 The Chamber will consider your request.
7 If there's nothing else to be raised, then could the witness be
8 escorted into the courtroom.
9 [Trial Chamber confers]
10 [The witness takes the stand]
11 JUDGE ORIE: Good morning.
12 THE WITNESS: Good morning.
13 JUDGE ORIE: Good morning, Mr. Smith. Before you give evidence,
14 the rules require that you make a solemn declaration. The text is now
15 handed out to you. I'd like to invite you to make that solemn
17 THE WITNESS: I solemnly declare that I will speak the truth, the
18 whole truth, and nothing but the truth.
19 JUDGE ORIE: Thank you, Mr. Smith. Please be seated.
20 When I address you as "Mr. Smith" without title and rank, it's
21 not out of disrespect but for us witnesses of the truth are irrespective
22 of titles and ranks.
23 Mr. Groome, you may start your examination of the witness.
24 Mr. Smith, you will first be examined by Mr. Groome. Mr. Groome
25 is counsel for the Prosecution.
1 WITNESS: RUPERT SMITH
2 Examination by Mr. Groome:
3 Q. Sir, can I ask you to begin your testimony by stating your full
4 name for the record.
5 A. My full name is Rupert Anthony Smith.
6 Q. Now, General Smith, it's important that the Chamber have an
7 understanding of your military background, something which is covered in
8 detail in paragraphs 3 to 5 of your statement which I will tender for
9 admission in a few minutes.
10 Can I ask you to simply, at this stage, state how long was your
11 military career and what was the highest rank that you achieved?
12 A. I served for just under 40 years, and I was a full general in the
13 British Army.
14 Q. Could I ask that 65 ter 28631 be brought to our screens. It is a
15 statement of General Smith given on several different dates and signed on
16 the 21st of September, 2009.
17 General while your statement is being brought to our screens, can
18 I ask you to tell us whether you ever served in Bosnia-Herzegovina and,
19 if so, tell us in what capacity and during what period.
20 A. I served in Bosnia-Herzegovina in 1995 for most of that year,
21 from early January -- I'm sorry, late January to the end of the year,
22 just before Christmas. And I was the commander of the UN forces with the
23 title of commander UNPROFOR.
24 Q. Who was your immediate superior?
25 A. My immediate military superior was General Janvier and the
1 Force Commander in Zagreb.
2 Q. Who did you succeed?
3 A. General Michael Rose had been my predecessor as commander
5 Q. Now, General Smith, we can see the document before you. Can I
6 ask that you look at this first page and tell us whether you recognise
7 any of the signatures in the bottom right-hand corner?
8 A. I recognise at least two of them; that is, mine and of a lady
9 called Carolyn Edgerton underneath that.
10 Q. And what is the document that we are looking at?
11 A. The witness statement that was signed and made -- made by me and
13 Q. Can we now go to the last page, please.
14 JUDGE ORIE: Could we slow down slightly. You are both speaking
15 the same language and therefore a short pause between question and answer
16 and answer and question would be appreciated by our interpreters and
18 MR. GROOME:
19 Q. Do you recognise any of the signatures there?
20 A. Yes, the same two.
21 Q. Before testifying today, did you have an opportunity to read and
22 review this statement?
23 A. Yes. I was able to read it and review it, yes.
24 Q. In that process, were two typographical errors identified?
25 A. Yes, they were. Although I can't remember where they were in the
2 Q. Can I ask that we go to paragraph 62. On e-court, that is 15 in
3 the original and 12 in B/C/S.
4 The third line in that paragraph contains an 8-digit evidence
5 reference number of a document you referred to in your statement. The
6 first four digits of that number are incorrectly recorded in the
7 statement as 0632, when, in fact, they should be 0362; is that correct?
8 A. Correct, yes.
9 Q. Can we now go to paragraph 75. In e-court, this is 18 in the
10 original, 14 in the translation.
11 And more precisely, to the second line in that paragraph, which
12 refers to a document ending in ERN number 9398, purportedly dated
13 28 March 1995.
14 Have you now learned that the translation of this document you
15 were shown had a typographical error and that the date of this document
16 is, in fact, 26 March, and, hence, this should be considered in reading
17 this paragraph?
18 A. Yes, I have learned that.
19 Q. If the Chamber were to consider your statement in conjunction
20 with these two corrections, would it have an accurate record of your
22 A. Yes, it would.
23 Q. If I were today to ask you questions similar to those you were
24 asked in the taking of the statement, would you give the same answers, in
1 A. Yes, I would.
2 Q. Sir, now that you have taken the solemn declaration, do you
3 affirm the truthfulness and accuracy of your statement?
4 A. Yes, I do.
5 MR. GROOME: Your Honours, having established the foundational
6 requirements necessary, the Prosecution, at this time, tenders 65 ter
7 28631 into evidence, pursuant to Rule 92 ter as a public exhibit.
8 JUDGE ORIE: Mr. Ivetic.
9 MR. IVETIC: Your Honours, the Defence would at this time object
10 to the tendering of this statement and would refer Your Honours to our
11 filing of 1 January 2013, wherein we objected not only to the number of
12 associated exhibits, 56, we objected to certain non-tendered associated
13 exhibits being quoted from verbatim in the statement. We also objected
14 to multiple associated exhibits that were not integral to the statement
15 pursuant to Your Honours' rulings in prior instances with other
16 witnesses, and we objected to some, I believe, 19 paragraphs containing
17 improper expert opinion that had not been qualified under the appropriate
18 criteria of Rule 94 bis. To my knowledge we have not received a decision
19 on this motion, so we would suggest that pursuant to our objections that
20 can be MFI'd until Your Honours reach a final determination as to these
22 Thank you.
23 JUDGE ORIE: Mr. Groome, anything -- the Chamber usually decides
24 on admission at the end of the testimony and then also will consider
25 the -- the associated exhibits and the non-associated exhibits. Apart
1 from those used during the testimony. That's a different matter.
2 MR. GROOME: Your Honour, I have no objection to proceeding in
3 that way.
4 JUDGE ORIE: Madam Registrar, the number assigned to the
5 statement of the witness, 65 ter 28631.
6 THE REGISTRAR: Will receive number P785, Your Honours.
7 JUDGE ORIE: And is marked for identification.
8 You may proceed, Mr. Groome.
9 MR. GROOME: Your Honour, despite the fact that the statement is
10 in evidence, may I summarise the evidence contained therein for the
12 JUDGE ORIE: Yes. We'll hear the evidence and the questions
13 anyhow, so, therefore, you may summarise it, although it should also be
14 clear on the record that it's not yet admitted.
15 Please proceed.
16 MR. GROOME: Thank you, Your Honour.
17 A summary of the evidence of General Rupert Smith.
18 General Rupert Smith was commander of UNPROFOR in Bosnia and
19 Herzegovina from January 1995 until the end of the conflict. In this
20 capacity, he held numerous meetings with Bosnian Serb political and
21 military leaders, including Mladic, Karadzic, and Krajisnik. Based on
22 this interaction as well as other observations, General Smith provides
23 evidence about the nature and function of the VRS. His evidence
24 addresses VRS interference with humanitarian assistance and the resupply
25 of UN personnel, the taking of UN personnel hostage, events during 1995
1 related to Sarajevo, Srebrenica; in particular, the massacres in
2 Srebrenica and the second shelling of Markale market. He provides
3 evidence of his interaction and meetings with General Mladic and
4 describes an occasion when he and the Secretary-General's Special
5 Representative were shot at as they landed in Sarajevo airport and
6 another occasion when his helicopter came under fire. General Smith also
7 provides evidence of his meeting with General Mladic on the 15th of July,
9 Your Honours, that concludes a brief summary of General Smith's
10 evidence. Of course, should the Chamber admit his statement, it will be
11 available to the public as well.
12 May I proceed with some additional questions, Your Honour.
13 JUDGE ORIE: You may proceed.
14 MR. GROOME: Could I ask that 65 ter 23867 be brought to our
16 Q. General, over the course of my examination of you here this
17 morning, I will ask you to provide additional detail regarding portions
18 of your statement, as well as to invite you to make observations on
19 documentary evidence.
20 We're calling up now 23867.
21 THE REGISTRAR: The document is not in e-court, Your Honour.
22 MR. GROOME: We'll come back to that. We'll investigate if
23 there's a problem with that.
24 Q. In paragraph 30 --
25 MR. GROOME: I'm sorry, there was a mistake there. It is there
1 now. If I could ask the Court Officer to try again.
2 And could I ask that we go directly to page two in both
4 Q. General Smith, I would ask you to take a look at the document on
5 the screen. It is an UNPROFOR report dated 14 February 1995, recording
6 what occurred at a meeting between you and General Mladic on the same
7 day. Did you have an opportunity to review this document in preparation
8 for your testimony?
9 A. Yes, I did.
10 Q. Was this your first meeting with Mladic? If you recall.
11 A. I'm not entirely sure. It -- I think it was my second.
12 MR. GROOME: Can I ask that we go to point 6 in the report. It
13 is on e-court page 3 in both languages. And this is the portion of the
14 report that is of greatest relevance to this case, and I want to read it
15 to you:
16 "Evacuation from enclaves, Mladic repeated his offer of an
17 evacuation of 450 people, each from Srebrenica, Zepa, and Gorazde. This
18 was a gesture of good faith, and the old, the young, and the women of
19 university age would be selected. This is an offer which has been made
20 previously to the Force Commander. We propose to tread carefully here,
21 bearing in mind the pitfalls associated with this idea."
22 Can I ask you to explain to the Chamber what the phrase "we
23 propose to tread carefully here" referred to?
24 A. There -- we were -- we were in -- there were three things that I
25 think was behind that sentence. The first is that we, the UN, were a
1 third party in this, and I wasn't about to make a set of agreements that
2 I didn't have an understanding of the other parties' position in these
3 matters. And frequently during the story of UNPROFOR in Bosnia, we, the
4 UN, had found ourselves making agreements that we couldn't then discharge
5 because the other party wouldn't agree with us in this triangular
7 The second, was that there was a danger of us, if you like,
8 conducting ethnic cleansing ourselves by moving people out of these
9 enclaves and so on and so forth.
10 And, thirdly, and perhaps, that you weren't sure that the -- the
11 basis of the deal that the -- that necessarily you would get the return
12 on -- that was being offered on us being able to take people out of an
13 enclave or some other set of circumstances.
14 MR. GROOME: Your Honours at this time the Prosecution tenders
16 MR. IVETIC: No objection from the Defence as to this document.
17 JUDGE ORIE: Madam Registrar.
18 THE REGISTRAR: Document 23867 receives number P786,
19 Your Honours.
20 JUDGE ORIE: And is admitted into evidence.
21 Mr. Smith, women of university age is a concept not -- I'm not
22 familiar with. Could you explain.
23 THE WITNESS: At this distance, while I may have understood what
24 that meant then, I'd be pressed to be sure of what we meant. I imagine
25 young women in their 18-to-22 age group. But I wouldn't --
1 JUDGE ORIE: Yes. Which would mean that women of -- well, let's
2 say, anything between 25 and 50 would be excluded.
3 THE WITNESS: Indeed.
4 JUDGE ORIE: Yes. Thank you.
5 MR. GROOME: Thank you.
6 Q. If I could now draw your attention to paragraph 35 of your
7 statement, P785, marked for identification. This can be found in 9 of
8 the original and 7 of the translation.
9 In this paragraph you provide evidence about the inability of
10 UNPROFOR to access the Srebrenica enclave. My particular question, in
11 addition to what you have in this paragraph -- in this particular
12 paragraph, is are you able to estimate the number of times you or your
13 staff requested access to the UN safe area in Srebrenica and were denied
14 such access?
15 A. It -- I certainly asked to be able to do this when I first -- I
16 think I first met the Bosnian Serb leadership at Pale. And I know my
17 staff were pursuing this request, and I would have thought that we'd --
18 it was probably raised two or three times in the first few weeks of my
19 time in Bosnia.
20 Q. Can you enumerate the reasons, if any, that you and your staff
21 were given when you were denied access to the safe area?
22 A. From memory, they were -- it wasn't safe. You -- we couldn't
23 secure your presence because the -- there were -- the Bosnians were
24 attacking out of these enclaves and so forth. That it -- they couldn't
25 provide escorts, or you were just not given a reason. You were just
1 told, No.
2 Q. Now, when you mentioned that it wasn't safe, can you be specific?
3 It wasn't safe for who?
4 A. It wasn't safe, it was said, for me and my party. The Bosnian
5 Serbs could not guarantee my security.
6 Q. In consideration of these repeated denials of access and the fact
7 that permission was eventually provided by Mladic himself, did you
8 understand Mladic to be personally controlling access to the enclave?
9 A. Yes.
10 JUDGE ORIE: Mr. Ivetic.
11 MR. IVETIC: Objection, Your Honour. I think it's speculation
12 and I believe that Mr. Groome is testifying in the question.
13 MR. GROOME: I certainly didn't mean to testify. I will rephrase
14 the question.
15 JUDGE ORIE: Please do so.
16 MR. GROOME:
17 Q. General Smith, who did you understand to be personally
18 controlling access to, if anyone, to the safe area?
19 A. Access by me was being controlled by General Mladic.
20 MR. GROOME: Could I ask that 65 ter 3822 be brought to our
21 screens. It's a record of a meeting between Generals Smith and Mladic,
22 held on 5 March 1995. The first page is simply a cover sheet, so could I
23 ask that we go to e-court page 2 immediately.
24 Q. When you are able to see the document, can I first ask you
25 whether it is a document you had an opportunity to examine in preparation
1 for giving evidence.
2 A. Yes, I recognise the document, yes.
3 Q. In paragraph 37 of your statement, you provide testimony of this
4 5 March 1995 meeting in Jahorina. Can I draw your attention to
5 paragraph 3, and that's 3 in the original and in B/C/S, in particular,
6 the first two sentences which read:
7 "General Smith questioned General Mladic on the reason for the
8 upsurge sniping attacks in Sarajevo. General Mladic cited recent Serb
9 casualties from BiH attacks."
10 Can you explain this particular sentence?
11 A. The background is that we still have this Cessation of
12 Hostilities Agreement in being, and the -- there had been a steady rise
13 in incidents around Sarajevo and elsewhere, but this is considering the
14 Sarajevo one. And I'm trying to understand the Serb position in the --
15 Bosnian Serb position in this rise of incidents, as to what it was behind
16 them, we were not clear at that stage, the motivation of these attacks,
17 although I was becoming clearer as the weeks went by.
18 Q. Did General Mladic acknowledge that his troops were responsible
19 for an upsurge in sniping incidents?
20 A. He is explaining that -- he is saying they're reacting to the
21 upsurge in the Bosnian sniping but, then, yes, they are involved as well,
23 Q. And did he seem informed about the activity of snipers in -- in
24 the Sarajevo area?
25 A. He certainly understood that this was going on. This was no --
1 no surprise to him.
2 Q. Now, in paragraph 39 of your statement, that's ten in the
3 original, 8 in the B/C/S, you say:
4 "He," referring to Mladic, "He threatened a complete blockade of
5 all enclaves including Sarajevo if sanctions were not lifted. I took the
6 threat seriously. He had the demonstrable ability to do what he had
8 I would like you to further explain this last statement when you
9 said that he had the demonstrable ability. What you did mean precisely?
10 A. First of all, his forces controlled the route into these
11 enclaves, and every convoy, every truck, had to be -- go through Bosnian
12 Serb check-points. So that was one control.
13 Secondly, the UN had in previous years accepted that UN convoys
14 were searched, that convoys were -- you had to list what you were putting
15 in the vehicles before the convoy was given clearance, if it was given
16 clearance at all, and so all -- all of those controls, if you like,
17 administrative controls, were in place as well.
18 And then, finally, we, the UN, and the troop contributing nations
19 had shown no interest in forcing a convoy through. So we were unlikely
20 to fight our way through in order to get a convoy into, for example,
22 MR. GROOME: Your Honour, the Prosecution tenders 3822 as a
23 public exhibit.
24 MR. IVETIC: No objection to this document, Your Honours.
25 JUDGE ORIE: Madam Registrar.
1 THE REGISTRAR: Document 3822 becomes Exhibit P787, Your Honours.
2 JUDGE ORIE: P787 is admitted.
3 MR. GROOME:
4 Q. In paragraphs 54 to 58 of your statement, you describe your
5 meeting with Mladic in Vlasenica on the 7th of March. I would like to
6 direct you to paragraph 57. It is 14 in the original, 11 in the
7 translation, where you describe Mladic telling you that he had restricted
8 the amount of food, medicine, and fuel for the enclaves, and your reply
9 that an attack on the UN Safe Areas would risk a response by NATO. You
10 then say:
11 "This brought forward a tirade of threats of counteraction from
13 Can you tell us with as much detail as you recall the threats
14 that General Mladic made as well as his demeanour when he made these
16 A. I don't remember the threats in any great detail. They -- they
17 were largely centred, as I recall, on British -- the threat was being
18 made against British forces on the grounds, I understood, that I was a
19 British officer, and that people would have their throats cut and so on.
20 Q. Could I ask now that we have 65 ter 1624 brought to our screens.
21 Your Honours, the military notebook recovered from the Mladic
22 home are already in evidence. In addition to these books a collection of
23 audiotapes was also recovered from the same location. They're on the
24 Prosecution list, based on an initial review which indicated many of them
25 were likely recordings made by General Mladic of events relevant to the
1 indictment. A more detailed analysis has taken place, and the
2 Prosecution is now in the process of drafting a bar table. I will work
3 with several of them today which relate to General Smith but will only,
4 at this stage, ask that they be marked for identification.
5 And if I -- I'm sorry, if it could be 1624A. I misspoke.
6 General, when you can see 1624A on the screen before you, can I
7 ask you to look at it and tell us whether it is a document that you had
8 an opportunity to review in preparation for your testimony?
9 A. Yes, I did see it. Yes.
10 Q. Having read the transcript, did you recognise the subject matter
11 being discussed in this tape?
12 A. Yes.
13 Q. What did you recognise the subject matter from?
14 A. I can -- he is talking about this meeting in Vlasenica. It
15 appears to be a conversation about a day after the meeting. And he is
16 explaining what he said to me --
17 Q. Now --
18 A. -- in the bottom of the page.
19 Q. If I could draw your attention specifically to that, about
20 three-quarters of the way down the page, we can see Mladic say:
21 "I will cut Smith off. I won't give him any food until this can
22 go in a normal way."
23 Do you recall him threatening to impede the supply of food to UN
25 A. Oh yes. The -- the -- at that point in the meeting in Vlasenica,
1 there was this -- the whole argument, if you like, or point that he was
2 making, was that we were supplying more than was absolutely necessary.
3 They were under sanctions. We should be under sanctions. And that had
4 been said as well at Jahorina some two days before that.
5 Q. At the bottom of the page we can read the following:
6 "Since you are English and threatening, and he said, I am the
7 United Nations, then I'll take your Englishmen from Gorazde and in front
8 of cameras cut one head off for each threat. Publicly. And I'll show it
9 to CNN, and don't think that I won't do this."
10 My first question is do you recall Mladic making threats along
11 the lines of this to you?
12 A. Yes. Although I suspect what reached me in translation wasn't
13 necessarily quite as he is explaining it to -- in this telephone call.
14 Q. Do you know what the phrase "Englishmen from Gorazde" refers to?
15 A. Yes. There was British battalion in Gorazde.
16 JUDGE ORIE: No consultations, Mr. Mladic. You can write down
17 whatever you want. Pass a note to counsel and that's it.
18 MR. GROOME: Your Honour, I'd ask that 65 ter 1624 be marked for
19 identification pending a written application to admit it.
20 MR. IVETIC: No objection to that procedure being followed for
21 this document.
22 JUDGE ORIE: Madam Registrar.
23 MR. GROOME: Your Honour, I'm sorry. It's 1624A again.
24 JUDGE ORIE: Yes. Madam Registrar, the number would be?
25 THE REGISTRAR: Document 1624A receives number P788, Your
2 JUDGE ORIE: And is marked for identification.
3 Please proceed.
4 MR. GROOME:
5 Q. In paragraph 63 of your statement, that's in 15 -- page 15 and
6 page 12 respectively in e-court, you recount your flight into Sarajevo
7 with Mr. Akashi and the Force Commander on the 12th of March and describe
8 how it was hit by heavy machine-gun fire. Can I ask you to describe the
9 plane, in particular the outer markings on the plane?
10 JUDGE ORIE: Before you do so, Mr. Ivetic is on his feet.
11 MR. IVETIC: Yes, Your Honour. I've received a note from my
12 client asking for a break. I do not know the reasons since I'm not
13 allowed to consult with my client.
14 JUDGE ORIE: We'll have a -- your client can write down the
15 reasons for which he wants a break and pass it onto you.
16 Mr. Ivetic, I'm not amused by your physical expression of
17 discontent with the Chamber's ruling.
18 I would leave it to that.
19 MR. IVETIC: I would take exception with Your Honour's comments.
20 JUDGE ORIE: We'll take a break in seven minutes. If there's any
21 specific reason, Mr. Mladic can write a little note and we'll hear what
22 the reasons are.
23 Mr. Ivetic, I emphasise that this regime was imposed after
24 repeated abuse by Mr. Mladic, and that is the reason why it is there.
25 Nothing else.
1 Mr. Smith, you may answer the question.
2 THE WITNESS: The aircraft was a Russian YAK. It was the type of
3 aeroplane. It was a small, we might call it a commuter jet. And it was
4 run by Ukrainian organisation on contract to the United Nations, and the
5 airplane was painted -- certainly had UN markings on and was, as I
6 recall, painted white.
7 MR. GROOME:
8 Q. Was notice given to -- to the parties to the conflict about the
9 expected arrival of this flight?
10 A. That would have been the standard procedure, yes.
11 Q. Did the Army of Bosnia and Herzegovina have an air force? In
12 other words, did any military aircraft belonging to the ABiH use Sarajevo
13 airport if you know?
14 A. No, they didn't have an air force, and no they didn't have
15 aeroplanes flying into Sarajevo.
16 Q. At the end of paragraph 63, you say:
17 "My recollection is that the incident was almost immediately
18 protested and faced with this protest, Mladic agreed that it had been his
19 people who had fired."
20 By "people," did you intend -- was it intended that people were
21 the troops under Mladic's control?
22 A. Yes.
23 Q. You had additional meetings --
24 JUDGE ORIE: These little pauses, Mr. Groome.
25 MR. GROOME: Sorry.
1 Q. You had additional meetings with Mladic after this event. Did he
2 ever inform you of any disciplinary action he took with respect to the
3 troops involved or describe an investigation he ordered into this event?
4 A. I don't remember him doing either of those things.
5 Q. Paragraphs 78 to 96 of your statement records your evidence with
6 respect to events in April 1995.
7 Can I draw your attention to paragraph 79, that's 19 in the
8 original, 15 in the translation of your statement, there you describe a
9 private meeting you had with Dr. Karadzic on the 5th of April, 1995, at a
10 hotel near Pale.
11 The penultimate sentence in that paragraph reads:
12 "I took the step of contacting Karadzic because at this stage
13 General Mladic refused to ... speak with me on the telephone, and my
14 letters to him requesting meetings went unanswered."
15 JUDGE ORIE: Mr. Groome, your quote was not complete. You left
16 out refused to meet or speak.
17 MR. GROOME: Yes --
18 Q. Can I ask that you place this sentence in context and perhaps
19 explain what you meant in greater detail?
20 A. The -- I mean, I'm not sure I can expand on it. He wasn't
21 communicating with me. The context of the -- of the -- the situation at
22 that time was that the Cessation of Hostilities Agreement had more or
23 less broken down by this stage. It was breaking down. The -- the -- we,
24 the UN, were being seen increasingly as -- by the Bosnian Serbs as
25 irrelevant, a nuisance in the way rather than anything that was going to
1 be of use to them, and on top of that, there was a particular cause in
2 that in the Cessation of Hostilities Agreement, there was a -- a
3 requirement for each side to place liaison officers with the UN, and the
4 Bosnian Serbs had provided two liaison officers who were with the British
5 headquarters at Sector South-west. But by the virtue of the agreement
6 breaking down, this -- these arrangements were useless and the -- the two
7 liaison officers were sitting in the headquarters at Gornji Vakuf and
8 were an embarrassment as much to us -- to themselves as they were to the
10 And Mladic knew I wanted to get them back to the -- but he wasn't
11 going to relieve me of this embarrassment and didn't want to talk to me,
12 and subsequently I sent them back, which became a cause for another round
13 of -- of disagreements between us.
14 MR. GROOME: Your Honour, I will be guided by the Chamber whether
15 there's time for one more question or not.
16 JUDGE ORIE: Yes. We have one minute left. So please proceed,
17 with one last question before the break.
18 MR. GROOME:
19 Q. Paragraph 94 of your statement, and that's at 23 in the original,
20 18 translation, it describes an incident on 21st of April during which
21 the US and German members of the contact group were effectively detained
22 by the Bosnian Serb army at Sarajevo airport.
23 You go on to assert that you believe the decision to do this was
24 a military one in which Mladic was personally involved.
25 My question is: Can you tell us why you came to this conclusion.
1 A. Because it was -- Mladic's people who were -- had, in effect,
2 created the situation, and it was with them that we were having to
3 negotiate. And every time you got Professor Koljevic moving towards a
4 solution to this problem, then he just came up against an inability to
5 persuade Mladic.
6 MR. GROOME: I have no follow-up to that particular answer.
7 JUDGE ORIE: Thank you. Thank you, Mr. Groome.
8 Could the witness be escorted out of the courtroom. We'll take a
9 break of 20 minutes, Mr. Smith.
10 THE WITNESS: Thank you.
11 [The witness stands down]
12 JUDGE ORIE: We take a break, and we resume at ten minutes to
14 --- Recess taken at 10.30 a.m.
15 --- On resuming at 10.55 a.m.
16 JUDGE ORIE: May the witness be escorted into the courtroom.
17 [The witness takes the stand]
18 JUDGE ORIE: Mr. Groome, please proceed.
19 MR. GROOME: Thank you, Your Honour. Could I ask that 65 ter
20 5518 be brought to our screens. It's an order from the VRS Main Staff,
21 issued on 27 May 1995.
22 Q. General Smith, your statement, at paragraphs 118 and following,
23 addresses NATO air-strikes at the end of May 1995 and the taking of UN
24 personnel as hostages. When the English version of this order comes to
25 the screen before you, could I ask you, have you had a chance to review
1 this document prior to today?
2 A. Yes, I have. Yes.
3 Q. The document states "I hereby order," and then sets out 9
4 paragraphs of specific orders. The first directs that captured UNPROFOR
5 staff be placed "at the warehouses, in the areas of command posts, firing
6 positions, and other potential targets that may come under the
8 The second paragraph sets out the specific number of hostages to
9 be sent to four different corps.
10 What, if anything, does this document indicate about the level at
11 which the decision to use UNPROFOR personnel as human shields was made?
12 MR. IVETIC: Object. Calls for speculation for an expert opinion
13 for which this witness has not been qualified.
14 JUDGE ORIE: Let me re-read the question.
15 The witness may answer the question.
16 The objection is denied.
17 MR. GROOME:
18 Q. Do you recall the question?
19 A. Yes, I do, thank you. It shows that it's from the Main Staff,
20 that they're controlling this, and because I've seen the document, you
21 showed it to me, it is signed by Mladic, if I recall correctly.
22 Q. Can we advance to the second page of the document just to be sure
23 there's no mistake.
24 A. No, I'm wrong. By the chief of -- the deputy commander.
25 MR. GROOME: Your Honour, the Prosecution tenders 5518 as a
1 public exhibit.
2 MR. IVETIC: No objection to the document being tendered in that
4 JUDGE ORIE: Madam Registrar.
5 THE REGISTRAR: Document 5518 becomes Exhibit P789, Your Honours.
6 JUDGE ORIE: P789 is admitted into evidence.
7 Mr. Ivetic, may I take it when your microphone was not activated
8 that you had said what you wanted the Chamber to listen to?
9 MR. IVETIC: Yes, Your Honour, and I believe I had activated it
10 after to say I had no objection to it being tendered in that manner, as a
11 public exhibit.
12 JUDGE ORIE: Yes. Thank you.
13 Please proceed.
14 MR. GROOME: Could I ask that 65 ter 27615 be brought to our
15 screens. It is an intercept dated 26 May 1995 at 1105 hours.
16 Q. General Smith, in your statement beginning at paragraph 123 you
17 describe three long telephone conversations with Mladic. In preparation
18 for your evidence, did you have an opportunity to review the transcript
19 which is now being brought to our screen, which purports to be a record
20 of one of these conversations?
21 A. Yes, I saw this transcript.
22 Q. And did you read it in -- when you --
23 A. Yes, I did.
24 Q. Does it accurately reflect the conversation between you both on
25 the 26th of May 1995 as best as you can recall?
1 A. Yes, as best as I can recall.
2 Q. In the transcript, we can see midway down the page you say the
4 "I must remind you that using these prisoners as a human shield
5 is against the Geneva Convention. Those other" --
6 JUDGE ORIE: Mr. Groome, could I again ask everyone to slow down
7 and to make these pauses as the court reporter asks us to do.
8 MR. GROOME: I apologise. I'll pick it up from "after
9 Geneva Convention."
10 "... those other armies and the UN colours represents the
11 violation of a protocol and the threat to kill, not only does it violate
12 the Geneva Convention but also, besides the shelling of Tuzla, ... Tuzla
13 is another violation ..."
14 Q. In this passage, you are informing General Mladic that his
15 conduct is a violation of international law. Did you form an impression
16 during your conversation whether or not he appreciated this fact?
17 A. I don't think he appreciated me telling him this. Whether he
18 understood what I had said, I think he probably did, but I'm not -- my
19 impression at the time was that that wasn't very important to him at all.
20 MR. GROOME: Could I ask that 27613 be now be brought to our
21 screens. It is an intercept dated 26 May at 1446 hours.
22 Q. General Smith, once again, once you are able to see the document
23 on your screen, can you tell us whether it's one you've had an
24 opportunity to review in preparation for your evidence today?
25 A. Yes, I reviewed this.
1 Q. And after having reviewed it, does it accurately reflect the
2 conversation between yourself and General Mladic on the 26th of May as
3 best as you're able to recall?
4 A. Yes. Yes, it does.
5 Q. About midway down the page, we can see Mladic refer to something
6 called a "HRIPE-1." Do you recall him saying something along those
8 A. Yes. My particular memory is that I didn't understand it, and
9 we -- it -- we later learnt that it meant something like death rattle.
10 Or -- that's what we understood.
11 Q. You go on to say:
12 "The air-strikes took place because of those decisions you
13 yourself took personally."
14 Can you tell us what decisions you are referring to and upon what
15 basis did you believe General Mladic took them personally?
16 A. This is the -- can you give me the line? I'm just looking for
17 where I go on to say that.
18 Q. It's further down. I think it's in the lower half. Let me
19 see ...
20 Sorry, it's about midway.
21 A. I'm so sorry.
22 Q. Do you see? It says:
23 "The camera will tell him," then it has S, "as I explained to
24 you." Just under HRIPE.
25 A. Yeah. Yes. My -- I -- what I think I'm explaining there or
1 trying to get across to him is that it is he that has taken the decisions
2 not -- well, first, to remove weapons from the weapon control points or
3 to use the weapons in the weapon control points, and then to -- and to --
4 and then when the ultimatum had been given to stop doing that and to put
5 them back into weapon control points, this was ignored.
6 If the -- he had not made the decision to use the weapons against
7 the exclusion zone regime and had then accepted the ultimatum, then none
8 of the air-strikes would have taken place.
9 MR. GROOME: Your Honour, at this time the Prosecution tenders
10 27615 and 27613 as public exhibits.
11 MR. IVETIC: Your Honour, we would object based upon the lack of
12 showing us the provenance of these documents and how they were prepared
13 and, in particular, if there is any audio or video material upon which
14 they are based. This witness has given his evidence so I would suggest,
15 therefore, that these be marked for identification pending resolution of
16 those issues.
17 JUDGE ORIE: Mr. Groome.
18 MR. GROOME: Your Honour, the Prosecution submits -- or I can
19 first make the representation that there are no audiotapes. There it's
20 the -- the transcript that we have. And I submit that adequate
21 foundation has been laid before you. You have the person who was one
22 party to the telephone conversation has reviewed this and says that they
23 accurately reflect the conversation as best as he can recall. So I
24 believe there is sufficient foundation for their admission.
25 JUDGE ORIE: Mr. Ivetic, any need for further comments?
1 Especially on the presence of the witness who testified to the accuracy
2 of these transcripts.
3 MR. IVETIC: No, Your Honours. He has testified as to portions
4 that have been presented to him. Whether this is the entirety of the
5 conversation or not, I don't know. And therefore it is important to have
6 the individuals who created this document to identify how they took the
7 document, whether in fact it is a true and complete copy or if it is an
8 extract, I don't know. All I have is a piece of paper with no heading
9 indicating words from -- with no signatures, with no seals, that purports
10 to be a conversation. I mean, this could have been printed up on a
11 computer, and if portions of it are consistent with the witness's memory,
12 that doesn't mean that the entirety is consistent with the witness's
14 If we're going to be using documents as evidence in a court of
15 law, those documents need to have some weight to them, they need to have
16 some reliability factors to them, and with this type of document there is
17 none, respectfully, Your Honours.
18 JUDGE ORIE: Mr. Groome, could you, perhaps, especially on the
19 matter of whether this is all of it, that this is this part, or --
20 respond to that.
21 MR. GROOME: Perhaps it's best if I ask the witness whether he
22 recalls whether -- this entire conversation.
23 JUDGE ORIE: Please do so.
24 MR. GROOME:
25 Q. General Smith, when you reviewed this, did you note that there
1 was any portion of the conversations that you had with Mr. Mladic that
2 was not included in these documents, recognising that they're not
3 verbatim transcripts?
4 A. This brought to mind those conversations that I had in that year,
5 in 1995, and as I -- as I recall them, they are -- represent what the
6 conversation that took place on that day.
7 JUDGE ORIE: Yes, Mr. Groome, any further information as to how
8 they were created?
9 MR. GROOME: Yes, Your Honour. Could we go into private session
10 for that, please.
11 JUDGE ORIE: We move into private session.
12 [Private session]
7 [Open session]
8 THE REGISTRAR: We're in open session, Your Honours.
9 JUDGE ORIE: Thank you, Madam Registrar.
10 The Chamber denies the objections raised.
11 Madam Registrar, the numbers to be assigned to the two
13 THE REGISTRAR: Document 27615 receives number P790; and document
14 27613 receives number P791, Your Honours.
15 JUDGE ORIE: P790 and P791 are admitted.
16 You may proceed, Mr. Groome.
17 MR. GROOME: Your Honours, could I now ask that 65 ter 3529 be
18 brought to our screens. It is a letter purporting to be from
19 General Smith to General Mladic, dated 26th June, 1995.
20 Q. And again, General, once you are able to see the document on your
21 screen, can you tell us whether it is a document that you have reviewed
22 recently, and if so, tell us what it is.
23 A. This is -- as it says, a letter from me to General Mladic, and I
24 recognise it as the -- as one I looked at beforehand.
25 Q. The introductory paragraph states:
1 "I write further to the letter signed by my Chief of Staff on my
2 behalf concerning Srebrenica. I wish to express my increasing concern
3 about a sequence of very serious incidents."
4 Can I ask you to explain to the Chamber in greater detail what it
5 was you were attempting to communicate to General Mladic.
6 A. Throughout June, the enclaves, including Sarajevo, had come under
7 increasing pressure, and this was particularly the case in the eastern
8 enclaves: Zepa, Gorazde, and Srebrenica. The -- the precise incidents I
9 don't recall, but there was an increasing crescendo of incidents or a
10 crescendo was building up. The -- and I'm trying to get Mladic to
11 understand that this the -- the safe area and the exclusion zones, which
12 system, the exclusion zone system had already broken down as a result of
13 what had happened in May, but that we were -- now the safe areas system
14 was breaking down. We were not being able to feed the people inside them
15 properly, and this was getting worse and worse, and I wanted to get this
16 quite clearly laid out for him, at that stage.
17 MR. GROOME: Your Honour, the Prosecution tenders 3529 as a
18 public exhibit.
19 MR. IVETIC: No objection, Your Honour.
20 JUDGE ORIE: Mr. Ivetic.
21 MR. IVETIC: No objection, Your Honours.
22 JUDGE ORIE: Madam Registrar.
23 THE REGISTRAR: Document 3529 becomes Exhibit P792, Your Honours.
24 JUDGE ORIE: And is admitted into evidence.
25 Mr. Groome, to the extent there would be a better legible
1 original, especially the lower part, apparently the translators have once
2 had a copy which they could read.
3 MR. GROOME: I will investigate that, Your Honour. But let me,
4 while the witness is here, take advantage of his presence --
5 JUDGE ORIE: Yes. He has said that this is a document he
6 recognises and he has looked at, so therefore --
7 MR. GROOME: I was going to ask him whether you recognise
8 anything missing or --
9 JUDGE ORIE: Well, yes.
10 MR. GROOME:
11 Q. The portion of the page which seems to be damaged, that's
12 blacked, do you recall whether there's anything under there?
13 A. Well, it looks like the top of my signature. So apart from
14 the -- something saying General Rupert Smith underneath it and possibly
15 a -- a -- recording that a copy has gone to somebody, I don't expect to
16 find anything else under there.
17 MR. GROOME: Your Honour, we will try to see if we can find a
18 better copy.
19 JUDGE ORIE: Please proceed.
20 MR. GROOME: Could I ask that we now see P363. And if we go to
21 page 7 in the original, and page 4 in the English.
22 Q. General, I would now like to move to that portion of your
23 evidence which concerns July 1995. I would like to begin by asking you
24 to you take a look at an entry from General Mladic's military notebook
25 for 15 July.
1 In this entry, General Mladic recorded a meeting in Dobanovci on
2 15 July 1995 and indicates that you were one of the attendees. Do you
3 recall meeting Mladic on 15th of July?
4 A. Yes, I do.
5 MR. GROOME: Can we advance to the next page, please.
6 Q. The note from the meeting purports to record a conversation
7 between you and General Mladic, in which he notes:
8 "Treatment of the population in Srebrenica and Zepa. There are
9 rumours" --
10 JUDGE ORIE: Do we have the right page in B/C/S on our screen?
11 MR. GROOME: In fact, Your Honour, could I ask that we use the
12 actual photocopy of the diary of the notebook itself, if that's possible?
13 JUDGE ORIE: Whatever, but the corresponding page. The original
14 is fine if you have the page number.
15 MR. GROOME: And page 7 in the original --
16 JUDGE ORIE: Handwritten version.
17 MR. GROOME: -- digital image handwritten version is -- is the
18 e-court page 7.
19 Q. "There are rumours about atrocities, massacres, and rape" --
20 JUDGE ORIE: What we need is also an English version. So the
21 handwritten version should replace the transcribed version, and then next
22 to it I'd like to have English.
23 MR. GROOME: English is on page 4 in e-court.
24 Q. While that is being brought up, do you recall during this meeting
25 on the 15th of July telling Mr. Mladic or discussing with him information
1 you had regarding Srebrenica?
2 A. Yes.
3 Q. I will ask you to provide more detail about this meeting in a few
4 minutes, but I would like to return to the days prior to the meeting so
5 that the Chamber has an understanding of what information you had and the
6 UN had prior to this meeting.
7 In paragraphs 149 and 151, you state that you went on leave from
8 the 1st of July and returned to BiH in the evening of the 12th.
9 Do you recall what time you returned to Bosnia?
10 A. Not so much to Bosnia but it was late in the evening. It was
11 certainly dark. We were in the middle of summer, so it would have been
12 late on the night of the 12th. And that was getting into Sarajevo.
13 Q. In paragraph 149, you state that while you were away, you were
14 accompanied by a radio operator to communicate with your command. Did
15 you remain in contact with your command and receive briefings about the
16 situation in Bosnia while you were on leave?
17 A. Yes, I did.
18 Q. Once you returned on the 12th, were you briefed on developments
19 in Bosnia?
20 A. Yes, I was.
21 Q. In paragraph 152, you summarise your assessment of the situation
22 as follows:
23 "Firstly, there was a major refugee problem, up to 35.000
24 refugees had already started to arrive in the Tuzla area. Secondly, I
25 had to recover the Dutch Battalion. The whereabouts and fortunes of the
1 Bosnian defenders of Srebrenica were unknown to me, although I was aware
2 that captured men were being separated from the refugees and I had
3 received reports of abductions and murders from the Bosnians but as yet
4 these were unconfirmed."
5 General, my question for you is whether you know the source of
6 the information that you are provided with at this point in time, the
7 12th of July.
8 A. From memory, the reporting that my briefing would have been
9 taken -- would have been -- would have come from my staff and their
10 reports from DutchBat in Srebrenica, although there were also reports
11 going into Zagreb and to the -- to The Hague, to the capital, and they
12 would have received informing from that direction as well, I suspect.
13 In addition, the Bosnian government in Sarajevo were
14 communicating with my headquarters.
15 MR. GROOME: Your Honours, could I ask that 65 ter 3535 be now
16 brought to our screens. It is a series of UN documents all from around
17 the period of the massacres in Srebrenica. They were recovered from the
18 UN archive by the OTP as a packet of material and some markings on the
19 documents suggest they were transmitted as a single packet, and so I will
20 preserve that characteristic of the exhibit as it may be relevant to the
21 Chamber's consideration of them. There are seven documents in the
22 packet, and I am able if the Chamber would be assisted to enumerate those
23 documents now for the record, or I can just deal with them in turn.
24 JUDGE ORIE: I think that it would be preferable that you deal
25 with them in turn.
1 MR. GROOME:
2 Q. General, your evidence with respect to the series -- this series
3 of documents will be more easily understood if we examine them in
4 chronological order of their creation rather than in the order in which
5 they were assembled in this packet of documents.
6 MR. GROOME: Could I ask that we go to e-court page 9 in the
7 original, and 11 in the B/C/S.
8 Q. The first document is a report of a meeting you had with BiH
9 Prime Minister Silajdzic on 13 July 1995. Have you had a chance to
10 familiarize yourself with this and the other documents in this packet of
12 A. Yes, I have.
13 Q. General, the first sentence of the report of the meeting states
14 as follows:
15 "General Smith met Prime Minister Silajdzic at the Presidency at
16 1420 hours on 13 July 1995. They discussed the current situation in
17 Srebrenica, the refugee crisis, and unconfirmed reports of atrocities."
18 Do you recall who raised the topic of the refugee crisis? Was it
19 you or was it the prime minister?
20 A. My memory is that I led on the refugee crisis, and -- because I
21 wanted the -- the Bosnian government was trying to use this situation --
22 in their eyes the UN had failed and failed utterly, and that the UN
23 should sort of the refugee problem that was a consequence of that
24 failure. The -- however, we couldn't cope with that, unless the Bosnians
25 played an active part in housing these people and so forth, and I was
1 trying to get the prime minister's co-operation in this matter.
2 Q. Did the prime minister provide you with additional information to
3 that information you already possessed regarding the refugee crisis?
4 A. I don't recall a particular volume of information, no.
5 Q. Who raised the reports of atrocities?
6 A. I think that would have been Silajdzic.
7 Q. The last sentence in paragraph 4 - and if we could advance to the
8 next page of B/C/S - of the report states:
9 "Thirdly, he requested the UN to provide medical and food aid and
10 shelter to the refugees at Tuzla airport."
11 Can you explain to the Chamber what was the refugee crisis at the
12 Tuzla airport.
13 A. The -- the refugees were coming over the -- the entry point
14 across the confrontation line, between the Bosnians and the Bosnian
15 Serbs, was, if I recall, correctly, at Zvornik, and some way south of
16 Tuzla. And the -- the only place where we had any area in which to move
17 these refugees that was under UN control was Tuzla, and so we started to
18 move the refugees there as they arrived.
19 But there were no facilities for them there. They were in range
20 of Serb artillery, and there was -- we had only a very limited amount of
21 tents and cooking facilities and so forth with which to start building a
23 Q. At this point in time, had anyone made the observation that
24 able-bodied men were generally not among this group of refugees?
25 A. I don't recall it being made as specifically as you state it, but
1 it was generally understood, yes, that these were women and children and
2 old men that -- only.
3 Q. Can I draw your attention now to paragraph 152 of your statement.
4 In particular, sentence 4, which begins:
5 "By the end of July -- of 13 July, I believed there to have been
6 a breakout by the defenders. In what numbers and with what success, I
7 was not clear, and the ABiH were not telling me. We thought that some
8 2.000 male prisoners had been taken by the Bosnian Serbs and were being
9 held in the vicinity of Bratunac."
10 What was your source for this information, if you recall?
11 A. I don't recall specifically. The -- it would have been part of
12 my briefings. It would have been a conversation which I think I had with
13 the CO of the Dutch Battalion. And it would also have been me looking at
14 the map and trying to understand the -- forming a picture of what had
15 been happening on the information that I had available. A -- a defence
16 doesn't collapse just like that without the defenders either being dead,
17 and there was no evidence that they were, or captured, and we could only
18 account for about 2.000 people, so where were the others? And my
19 assumption, I suspect at that stage, is that they had broken out.
20 MR. GROOME: Could I ask that we return 65 ter 3535 to the
21 screens and that we go to the second document I would like to use. And
22 that can be found at e-court page 11 in the original and 14 in the
24 Q. And, again, once you see the document, can you tell us, did you
25 have an opportunity to review it.
1 A. Yes. And I wrote it.
2 Q. And can you just briefly tell us what it is that you wrote; and
3 can you orient us to the purpose and context of this document.
4 A. In situations such as this, it has been my habit as a commander
5 to write out what I think the situation is and what the -- and what the
6 options are that might present themselves and then to distribute this,
7 if -- if it's suitable to do so, to my subordinates so that we all have a
8 common picture of what the situation is and an idea of the priorities
9 that I might be setting and the boundaries, if you like, of any future
11 This, of course, gets updated as events unfold, but this was me
12 doing this at the end of that day, in fact, the first day I'm back in
14 Q. Could I ask that the Court Officer assist us by turning the
15 document upside down and focussing on the bottom edge of the document.
16 And, General, in preparation for your evidence today, did I ask
17 you to study this marking and interpret it for us, if possible?
18 JUDGE FLUEGGE: The document should be turned. It's now upside
20 THE WITNESS: Yes, yeah.
21 MR. GROOME: No. Can we --
22 THE WITNESS: No, no.
23 MR. GROOME: I'm sorry, Your Honour. I did want it to be upside
24 down. There is a portion of text which is upside down which can be more
25 easily read if the document is turned upside down.
1 So could we turn the document upside down? And focus in ...
2 Q. General, are you able to interpret that text?
3 A. Yes, I can. It only -- it's telling you that this was
4 transmitted at 2331, whether that's local time or Greenwich Mean Time,
5 I'm not sure, but I suspect it's local time, and on the 13th of July, and
6 it's the -- the -- the accounting system, as it were, of the electronic
7 machinery that's transmitting this copy, I imagine, to Zagreb.
8 Q. And the term BH command crypto?
9 A. It's my headquarters signals detachment, and it's their
11 Q. And that would be in Sarajevo?
12 A. In Sarajevo, yes.
13 MR. GROOME: Could I ask that we turn the document right side up
15 Q. Now, General, the Chamber will be able to read the document for
16 themselves, but I want to draw your attention to two portions to ensure
17 the Chamber has a full understanding of what you're communicating.
18 First, can we look at paragraph 2(a). In this paragraph, you use
19 the acronym RRF. Can you tell the Chamber what that acronym stands for?
20 A. This is the Rapid Reaction Force. And it begins as a -- as a
21 force in the aftermath of the events at the end of May, where I form a --
22 a small element mainly based on -- in fact entirely based on the British
23 and French detachments in Bosnia.
24 The -- this finds favour with the -- specifically Britain and
25 France and subsequently other troop-contributing nations and is
1 reinforced. And during June, it becomes, if you like, an officially
2 sanctioned reality, and other elements are supplied by France and Britain
3 and ultimately the Netherlands, which are starting to deploy in
4 June into -- and July, into the theatre.
5 Q. Now, the first sentence of paragraph 3 states:
6 "The Bosnian Serbs are 'cleansing' Srebrenica."
7 Cleansing is placed in quotation marks. Can you describe what
8 your intent was by placing "cleansing" in quotation marks?
9 A. Well, it was a -- the word had become jargon in the theatre,
10 which is probably why I put it in inverted commas, and it implies that
11 the people in that place, which, in this case, is Srebrenica, are being
12 driven out to some other destination, but the area is being cleaned of
14 Q. The paragraph continues to describe unconfirmed reports of
15 abductions and murders.
16 Can I ask you to describe what was your understanding of the
17 magnitude of any abductions or murders at this stage.
18 A. I'd start by saying that these reports were, at this stage, in
19 the main, coming from the Bosnians, and they would be saying that,
20 wouldn't they? So I'm -- everything that's being told to me, I'm taking
21 with a quite a lot of -- of salt at the time, wanting to see some
22 evidence to support it.
23 Secondly, we knew that this -- that the Bosnian Serbs practiced
24 this ethnic cleansing, as it was called. We knew that people would be
25 separated and that -- that's what happened in this war. And that -- and
1 you do get in these circumstances incidents of people being killed and so
3 So with -- in a disaster such as the collapse of the defence of
4 Srebrenica, I'm not surprised to find some incidents occurring and being
5 reported. They're regrettable, they don't want to happen, and you don't
6 went them to continue, but it wasn't a huge surprise to be hearing some
7 of these reports, and I had no sense of -- of their magnitude at that
9 Q. We can now go to the third document that I wish to work with.
10 This can be found on 14 -- the original packet of documents and 18 in the
12 Can I now draw your attention to a report by Major Fortin dated
13 13 July 1995. This document reports on a meeting between VRS liaison,
14 Lieutenant-Colonel Indic, and UNPROFOR representatives on 13th. If I can
15 draw your attention, in particular, to paragraph 6. I believe we'll need
16 to advance the page. It's on 15 and 19 respectively. It states:
17 "Next, they discuss the return of stolen UNPROFOR weapons ..?"
18 JUDGE ORIE: We wait a second until we have it on our screen.
19 MR. GROOME: I ask that we go to the next page and see if the
20 paragraph carries over. It should be 15 in e-court. So this is
21 General Smith's letter.
22 If we could move to the next document, please. I believe it
23 follows immediately after this. And to the next page. I think we have
24 it now.
25 JUDGE ORIE: It's paragraph 6.
1 MR. GROOME: Yes, Your Honour.
2 JUDGE ORIE: Third full paragraph on this page.
3 Please proceed.
4 MR. GROOME:
5 Q. In that paragraph we see:
6 "Next they discussed the return of stolen UNPROFOR weapons.
7 Lieutenant-Colonel [sic] Indic said they could let us inspect small arms
8 to demonstrate that they were not used, but he could not return them
9 without Mladic's approval."
10 Can you comment on this particular passage.
11 A. Yes. I wouldn't -- it doesn't surprise me. I -- I would have
12 been very surprised if Indic was prepared to do anything without Mladic's
13 approval. He was Mladic's liaison officer.
14 Q. And, specifically, what weapons are being referred to here?
15 A. These, I think, are the French weapons that had been taken in the
16 aftermath of the bombing in -- in -- at the end of May and -- and had
17 been used -- and in the -- when prisoners were taken at the Vrbanija
19 Q. Can we now go to the next document. It is a public statement by
20 Akashi on the 13th of July. And it can be found on page 17 and 21
22 MR. GROOME: Again, the Chamber will be able to read the
24 Q. I simply want to draw your attention to the last sentence in the
25 second paragraph which reads:
1 "In compliance with Resolution 1004, unanimously adopted last
2 night by the United Nations Security Council, I demand that the Bosnian
3 Serb civilian and military authorities immediately allow unimpeded access
4 to the United Nations High Commissioner for Refugees and other
5 international agencies."
6 Can you set out the reasons why it was so important for the UN to
7 gain immediate unimpeded access to Srebrenica.
8 A. Well, at this stage, there were -- the bulk of the refugees were
9 still in the vicinity of Srebrenica. They were not all across the border
10 into Bosnian territory.
11 Secondly, we didn't know what had happened to the rest of the
12 population and how many casualties there were and so on. And until we
13 got some access and got some idea of what was going on, we couldn't help
15 Q. What role, if any, did Mladic play in the UN's ability or
16 inability to gain access throughout Srebrenica after this resolution was
18 A. I don't think he made any attempt to let anybody into the area.
19 MR. GROOME: Could I now ask that we go to the first document in
20 this packet. It can be found on e-court page 1 in both languages. And
21 it is a code cable from Akashi to the Secretary-General dated 14
22 July 1995.
23 THE INTERPRETER: Could the witness kindly speak into the
24 microphone, please. Thank you.
25 JUDGE ORIE: Mr. Smith, you are kindly requested to speak into
1 the microphone.
2 THE WITNESS: Okay.
3 MR. GROOME:
4 Q. General Smith I want to spend some significant amount time on
5 this code cable and the reports attached to it and incorporate it into
6 it. Have you had an opportunity to carefully review this document?
7 A. I have. I have.
8 Q. The last sentence on page 1 states:
9 "An UNMO patrol into the town of Srebrenica reports that the town
10 is deserted and BSA soldiers were looting the town. The report also
11 touches on the rumours circulating among the DPs of maltreatment" of "the
12 Bosnian Serb army."
13 JUDGE ORIE: You take "by." You read "of."
14 MR. GROOME: Oh, I'm sorry.
15 Q. And it continues:
16 "In view of the position of the UNMOs, we recommend that the
17 source of any information released in this report be kept confidential."
18 Can you explain that last portion of what I've read.
19 A. Yes, I think I can. The UNMOs are not under my command, but --
20 and so exactly where these -- this UNMO team has come from, I'm not sure.
21 They -- there was certainly an UNMO team or more than one in the
22 Srebrenica area, and to the best of my knowledge, they were with the
23 Dutch Battalion in Potocari.
24 It -- it would seem that they had, in one way or another, been
25 able to leave Potocari and -- and tour around the area, but they may have
1 come from another direction, for all I know.
2 The fact that they had been able to do this is, I suspect, why
3 Mr. Akashi is saying that this -- their ability to collect this
4 information should be kept confidential at this stage.
5 MR. GROOME: Can we now turn to e-court page 4 in both languages.
6 Q. There are now five pages that appear very similar to this
7 particular page. Can you tell us what is the document that we are now
8 looking at?
9 A. This is the -- again, UNMO reporting in a daily situation report.
10 And they're reporting these -- this particular, that, on the -- at 8.00
11 local time on the 13th, there's a medical convoy stopped at Kladanj,
12 et cetera.
13 Q. Can I draw your attention to what appears as a subheading in the
14 document, which states: "Srebrenica Update: DTG 130800B Jul 95." Can you
15 interpret this for the Chamber?
16 A. Yes I can. DTG stands for date, time, group. The date is the
17 13th, the time is 0800 time zone Bravo, which is two hours plus of
18 Greenwich mean time, in July 1995.
19 Q. Was Bravo time the local time in Bosnia?
20 A. Yes, it is.
21 Q. Can I confirm my understanding of your evidence by asking would I
22 be correct to conclude that the very next subheading pertains to an
23 update from 1100 hours on the 13th of July 1995?
24 A. Correct.
25 Q. Now under this second heading we read in the seconds sentence:
1 "General Mladic gave assurances that the convoy was acceptable,
2 so there should not be any problem with that convoy in Zvornik and at
3 yellow bridge."
4 What does this indicate to you about the level of Mr. Mladic's
5 personal involvement at this stage?
6 A. Well, he is the one dealing with -- and here I'm making an
7 assumption, the -- the UNMO team who's sending this update, and that he
8 is the person that is in control of -- who comes and goes into the
9 Srebrenica area.
10 MR. GROOME: Can we go to e-court page 5 in both languages.
11 Q. Now, further down in this particular report, from 11.00 on the
12 13th, the report continues:
13 "The number of BiH soldiers those are taken POW by the Bosnian
14 Serb army is not known yet, but General Mladic told the UNMO team and the
15 CO DutchBat that the BiH have several hundred dead soldiers in the area
16 of the Bandera Triangle. He also asked the CO DutchBat to contact BiH
17 soldiers and inform them that it is not the general's intention to kill
18 any more soldiers of the BiH. They only have to surrender and hand over
19 their weapons. The UNMO team and DutchBat are not allowed to enter that
20 area because of safety, therefore can't investigate the numbers."
21 Now my first question is: This report is from 11.00 in the
22 morning of the 13th, and Mladic is recorded as having stated there are
23 several hundred BiH soldiers dead in the Bandera Triangle. Do you recall
24 at this point in time an area around Srebrenica that was referred to as
25 the Bandera Triangle?
1 A. No, I don't.
2 Q. Do you know from where in the enclave a column did break out and
3 head for Tuzla?
4 A. It -- my understanding at the time and is -- and is now is that
5 the breakout occurred on the -- to the north-west of the enclave. In the
6 general direction of the north-west.
7 Q. Could I ask that we look at P0038 on our screens?
8 JUDGE ORIE: While waiting for that, Mr. Groome, we're close to
9 the time where we'd take a break.
10 Could you tell us where you are? We had a late start today.
11 MR. GROOME: Your Honour, I think I'm approximately halfway
12 through my examination given the number of -- by just by looking at the
13 number of questions.
14 JUDGE ORIE: And you asked for two hours.
15 MR. GROOME: I think that I will have to be revising that
16 estimate upwards somewhat, Your Honour, given the importance of this
17 witness's evidence. I might -- would be in a better position at the
18 beginning of the next session to advise the Chamber how much I think
19 additional time I would require.
20 JUDGE ORIE: Yes. Then perhaps we first take a break.
21 MR. GROOME: Could I perhaps just deal with this document, Your
23 JUDGE ORIE: Yes.
24 MR. GROOME: It's a very small point I want to make with this.
25 JUDGE ORIE: Please do so.
1 MR. GROOME:
2 Q. General, can you please take a look at P38 on our screens. Do
3 you recognise this document?
4 A. Yes.
5 Q. And what's the relationship between this document and the one we
6 just looked at, the report we just looked at?
7 A. I think this is the source document, if you like, of the summary
8 that's in the annex of the previous one.
9 Q. There are several headings at the top of that document. What is
10 the significance of the heading: 13 July 1995 09:11:29?
11 A. I'm sorry. I'm -- I need to --
12 Q. Just at the very, very top, and it looks like someone has
13 hand-circled the original.
14 A. Oh right, it's there. That would be -- I don't know why it was
15 circled. But it's -- it's the date it was sent and originated -- I'm
16 sorry, date it was sent on -- at 9.11. And then this is the date, time,
17 group, [indiscernible]. Yes. I'm not sure. I'm not sure I can tell you
18 the significance of that line.
19 Q. Okay.
20 MR. GROOME: Your Honour, if we can please take the break.
21 JUDGE ORIE: Yes. Then we'll take a break.
22 Could the witness first be escorted out of the courtroom.
23 [The witness stands down]
24 [Trial Chamber and Legal Officer confer]
25 JUDGE ORIE: We'll resume at quarter past 12.00.
1 --- Recess taken at 11.57 a.m.
2 --- On resuming at 12.18 p.m.
3 JUDGE ORIE: Could the witness be escorted into the courtroom.
4 Mr. Groome, you've used one hour and 40 minutes. Just as the
5 Chamber yesterday easily agreed to the request of the Defence to -- not
6 to sit extended hours and not to limit time in relation to what seems to
7 be an important witness, the Chamber allows you to go beyond the time of
8 your estimate, but there are certain limits there.
9 If you could conclude in one hour and 30 minutes from now, that
10 would give you almost double the time as have you used -- and -- the same
11 time as you have used until now.
12 MR. GROOME: That is much appreciated, and I have re-examined my
13 examination, and I think there are some of these documents that perhaps
14 I'll just rely on the tendering of them as associated exhibits.
15 If I may continue, now, Your Honour.
16 [The witness takes the stand]
17 JUDGE ORIE: Please do so.
18 MR. GROOME:
19 Q. General Smith, before I leave P38, I just want to inquire whether
20 perhaps over the break it had come to you whether can you help us in
21 understanding that endorsement that has the circle around it?
22 A. No, I'm afraid it can't -- I don't.
23 Q. Are you able to assist the Chamber after having looked at the
24 documents related to this report on the Bandera Triangle, to assist the
25 Chamber in understanding the parameters of when that report was likely
1 made recording Mladic's statement?
2 A. Well, I think it's being made quite early in the morning on the
3 13th. But I'm -- I'm ...
4 Q. And what is that based on?
5 A. Well, this -- we go back to this date, time, group at the top.
6 The date, time, group, is, you've got is recorded as 1100 Bravo. That's
7 on the -- on the -- you can see to and from, to TX from TA. I don't know
8 what those are, but there's -- date, time, group there is 1100 Bravo on
9 the 13th. But you've got another time listed at the one with the circle
10 around it where it says 13th of July, and then the time there is at 9.00
11 in the morning -- yes, 9 hours, 11 minutes, 29 seconds.
12 Q. And based on that you believe this report was made on the morning
13 of the 13th?
14 A. Yes. And it said the information in it is even earlier than
16 Q. Now the Chamber has taken judicial notice in adjudicated facts
17 1530 and 1531 that the massacres of large numbers of men in Srebrenica
18 commenced on the afternoon and evening of the 13th. If you assume for
19 the purposes of my question that the Bandera Triangle was located in the
20 west, south-west area of the enclave, is Mladic's statement recorded on
21 the morning of the 13th, that hundreds of soldiers had been killed there,
23 A. Just let me read that again.
24 MR. IVETIC: Your Honours, I'm reading the question again. I
25 will have to pose an objection as it calls for speculation. It assumes
1 facts not in evidence.
2 MR. GROOME: Your Honour, perhaps I can ask it another more
3 direct way.
4 JUDGE ORIE: Please rephrase then your question.
5 MR. GROOME:
6 Q. General Smith, either at this time or any time after this, did
7 you ever learn that hundreds of BiH soldiers had been killed in this
8 west, south-west portion of the Srebrenica enclave at some point prior to
9 the morning of the 13th?
10 A. No, I don't. It -- certainly not at stage. And you've said did
11 I learn about it afterwards? I did learn that lots of people had been
12 killed. The exact location of those killings, I don't recall at all.
13 Q. Now further down in paragraph 5 of this report we see the
14 following sentence:
15 "DutchBat are not allowed to enter that area," this is a
16 reference again to Bandera Triangle, "because of our safety. We can't
17 investigate the number."
18 Do you know if the determination that it was too unsafe for
19 DutchBat to move around the enclave was a decision taken by DutchBat or a
20 restriction placed on their movement by the VRS?
21 A. My understanding at the time is they were being restricted in
22 their movement by VRS.
23 Q. Can I now ask that we go to page 7 in the original, and nine in
24 the translation of this document, and to the subheading entitled:
25 "Refugee Situation at Kladanj DTG-13 2300, July 1995."
1 Now if I can draw your attention to the portion of that report
2 which states:
3 "The important point to note at the transfer point is there are
4 no men over the age of 16, bar a few over 60."
5 Would DutchBat have been the source of this report?
6 A. At Kladanj, no. I wouldn't have thought they were the -- I mean,
7 that wasn't part of their --
8 Q. Are you able to assist us --
9 A. Yeah, I'm not actually -- hang on a minute. I would have to --
10 one minute.
11 Q. And tell us if you want to advance a page or go back a page?
12 A. I would like -- I don't mind -- go to back, if you see what I
14 Q. Go back one page?
15 A. Yes, please.
16 MR. GROOME: Could I ask that that be done.
17 THE WITNESS: Yeah. I think they're still looking -- are we
18 still looking at an UNMO report?
19 MR. GROOME:
20 Q. Perhaps if we could go to the first page in this document which
21 is at e-court page 4 in both languages. So this is a series of five
22 pages and this is now the first page that we're bringing to the screen.
23 A. Yes. This is -- this is the annex to the UNMO daily sitrep.
24 Now if we go back to the one you first showed me.
25 Q. That's page 7 in the original and 9 in the B/C/S, please.
1 A. And I think it -- this is UNMO reporting.
2 Q. And that would be -- are you able to say where the UNMOs would
3 have been based?
4 A. No, I wouldn't know where those -- I just don't know at this
5 stage. I might have known at the time, but I can't remember now.
6 Q. Okay.
7 MR. GROOME: Your Honours, at this time, the Prosecution tenders
8 65 ter 3535 as a public exhibit.
9 MR. IVETIC: Well, Your Honours, the witness has discussed it as
10 detailed, but it's based on a number of assumptions and I'm not quite
11 sure between this document and the other document how much of this was
12 known to the witness before reviewing these documents when presented by
13 the Office of the Prosecutor. So on that bases, I would object to their
14 admission as not being -- not being tied to the knowledge of this
15 witness. Both this document and the one that we did prior, which has not
16 been tendered yet.
17 [Trial Chamber confers]
18 JUDGE ORIE: Objection is denied.
19 Madam Registrar.
20 THE REGISTRAR: Document 3535 receives number P793, Your Honours.
21 JUDGE ORIE: P793 is admitted into evidence.
22 MR. GROOME:
23 Q. General, now having looked at what information was known on the
24 13th and 14th of July, could I ask you to now return to your meeting with
25 Mladic on the 15th.
1 Before you describe the meeting and the substance of the meeting,
2 can I ask you to, as it were, set the stage, give the Chamber some idea
3 of the context, the format, the location of the meetings.
4 Could you please do that.
5 A. Yes. The -- from my point of view, this starts on the -- on the
6 14th with a request for me to get myself to Belgrade. We get out of
7 Sarajevo. We go down to Split. We fly to Belgrade -- I beg your pardon.
8 We fly to Zagreb. We fly to Belgrade. The meeting is the first time for
9 a long time that I saw -- there was the -- the negotiating, political
10 negotiating level of Carl Bildt; Stoltenberg; together with Akashi;
11 General De La Presle; Stoltenberg's military advisor; the Force
12 Commander, for -- everybody was in the same place, and the catalyst, if
13 you like, of this event was the collapse of the Srebrenica safe area and
14 the refugees. I don't think anybody understood what had actually
15 happened there at this stage.
16 The -- we start with a meeting amongst ourselves and then we move
17 to meet Milosevic.
18 Q. When did you actually arrive at this meeting?
19 A. I got there - let me think - I think about noon on the - what day
20 would it be. The 15th.
21 Q. And when you arrived there had any meetings taken place before
22 your arrival that you were made aware of?
23 A. Oh, I think that Carl Bildt had met with Milosevic and that --
24 all -- with the Akashi and I and the Force Commander, General Janvier, we
25 had all arrived together. But I think the others had met beforehand.
1 Q. And can you describe the first meeting you had upon your arrival.
2 First let's start by can you describe who you met with. Name all the
4 A. There was Stoltenberg, de La Presle, Janvier, Akashi, myself. I
5 had a Colonel Baxter with me. General De La Presle had a Colonel Elliot
6 with him. And I can't remember who was supporting the other principal
8 Q. And did there come a time when you were asked to have a smaller
9 meeting with Mr. Mladic himself?
10 A. Yes. We all met at the hunting lodge, and very soon after we had
11 all gathered around, and Mladic and Milosevic were there when we arrived.
12 The -- it -- we -- we, General Mladic and I, were told to go away and
13 sort out the, if you like, the modalities of Srebrenica in relation to
14 the refugees and the extraction of the Dutch battalion.
15 Q. And --
16 JUDGE ORIE: This is of course is found in 157, to that extent
17 repetitious. If you are short in time, would you please keep that in
19 MR. GROOME:
20 Q. Where precisely was this particular meeting held?
21 A. In a room. The -- everyone else -- we had all met on a sort of
22 patio outside the building. The, if you like, the military members,
23 General Mladic and I, we went to some anteroom actually in the building,
24 and the remainder of the meeting stayed on the patio.
25 Q. Now in paragraph 162 of your statement you say quote, referring
1 to Mladic:
2 "He warned me that his troops in the Gorazde area were awaiting
3 his orders to attack and claimed a significant victory in the Treskavica
4 mountains near Sarajevo."
5 Was it your understanding that he was presently and actively
6 giving orders to his subordinates while at that meeting?
7 A. Yes.
8 Q. Did he say or do anything which indicated to you that he had
9 given another person temporary direct authority to issue orders while he
10 attended that meeting?
11 A. No, I don't think he ever said that.
12 Q. Did you consider that you yourself, while at that meeting, were
13 in actual command of the troops under your command?
14 A. Yes.
15 MR. GROOME: Can we now please return to P363, General Mladic's
16 military notebook, and if we could go, once again, to 7 in the digit
17 image of the notebook, and 4 in the English translation.
18 Q. While that is being brought up, General Mladic records you as
19 saying three things, and I want to put them to you and ask you to
21 If we could go, I'm sorry, to the next page, please, in both.
22 And once again, if we could please call up the digital image of the
23 actual notebook.
24 While that is being down I will read the text and you can confirm
25 it when you see it on the screen.
1 The first thing he records you as saying is:
2 "I will use the force when the UN forces come under attack on the
3 road or at the camp."
4 Do you recall saying something along these lines to Mladic?
5 A. Yes, I do.
6 MR. GROOME: Sorry, with respect to the -- I'm sorry. If I could
7 just get the right English page up here. With respect to the English, it
8 should be page 5 in the English, in e-court. I think that's it there
9 now. Okay. So now we have it. Okay.
10 I'm sorry, I interrupted you. Can you please --
11 A. The forces I think I was referring to is -- is the air force,
12 the -- the -- you know, use air-strikes.
13 Q. And what's the camp that you're referring to?
14 A. I suspect the camp at Gorazde, if that was the -- it -- it -- I
15 don't remember the connection, but if we are talking about a threat to
16 the British battalion or the Ukrainian forces in Gorazde, then it would
17 have been if their camp was attacked.
18 Q. The next note records you as saying:
19 "Treatment of the population in Srebrenica and Zepa - there are
20 rumours about an atrocities, massacres, and rape."
21 JUDGE FLUEGGE: Mr. Groome, I think we should have the
22 corresponding page in the original.
23 MR. GROOME: Thank you, Your Honour.
24 Could we advance the original copy one page.
25 Q. And, General Smith, my question to you is do you say -- do you
1 recall saying something along those lines to General Mladic?
2 A. Yes, I do.
3 Q. Do you recall whether you used the word "rumours"?
4 A. I don't remember that specifically, no.
5 Q. The last note in this notebook entry, and if we could advance the
6 translation at this stage, regarding you as:
7 "It would be good if you would allow the UNHCR and International
8 Committee of the Red Cross as soon as possible."
9 Do you recall saying something along these lines?
10 A. Yes. I'm trying to get access. We're -- we, that is, I, the
11 UNHCR, and the ICRC, are still looking for what we think are some 2.000
12 prisoners of war plus, and we don't know how many the plus is.
13 MR. GROOME: Can we now please go to 01935. It's 65 ter number.
14 Now, during the course of this meeting with Mladic, did you begin
15 to develop a draft agreement?
16 A. Yes, we did.
17 Q. Now, 65 ter 1935 is on the screen. Did you have a chance to
18 review this document before testifying here today?
19 A. Yes, I did.
20 Q. Do you recognise the substance that's discussed or written in
21 this particular document?
22 A. Yes.
23 Q. And Your Honours so the Court has some understanding, this is
24 also a document recovered with one of the notebooks.
25 Item number 3 indicates that representatives of the UNHCR will be
1 allowed to enter Srebrenica by 18 July 1995 at the latest.
2 Did Mladic explain why he would not agree to immediate access?
3 A. To the best of my memory, the -- this was all to do with the
4 security of people and that they were -- you know, there were still
5 Bosnian soldiers about that my be creating incidents and so forth.
6 MR. GROOME: Your Honour, the Prosecution tenders 65 ter 1935 as
7 a public exhibit.
8 MR. IVETIC: No objection to this document being tendered.
9 JUDGE ORIE: Madam Registrar.
10 THE REGISTRAR: Document 1935 becomes Exhibit P794, Your Honours.
11 JUDGE ORIE: And is admitted into evidence.
12 You may proceed.
13 MR. GROOME: Now could I ask that we please bring to the screen
14 65 ter 5729. This is a document dated 19 July 1995 from
15 Lieutenant-Colonel Baxter and entitled: "Meeting, General Smith,
16 General Mladic, 19 July 1995."
17 My first question to you is: Do you recall meeting, again, with
18 General Mladic on the 19th of July.
19 A. Yes, I do.
20 MR. GROOME: Can I ask that we go to page 3 in the original and 4
21 in the translation.
22 Q. And in paragraph 3(c) it states:
23 "General Smith explained that it was particularly important for
24 UNHCR to have immediate access to Srebrenica in order to assess
25 requirement for future aid convoys. Mladic agreed to this without
2 My question to you is: When would be the first time UNHCR would
3 gain access to Srebrenica.
4 A. I'm sorry, I can't find that bit on the paper [Overlapping
5 speakers] ...
6 Q. I'm sorry, it's 3(c). If you look at the very top there.
7 A. I don't see anything where I'm saying about access. In the --
8 Q. "It seems that in the discussion General Smith explained that it
9 was particularly important" -- [Overlapping speakers] ...
10 A. Sorry, got you.
11 Q. Sorry.
12 A. Yeah. Yes. The -- I don't think UNHCR ever got access in the
13 end to the Srebrenica area.
14 Q. Did Mladic ever give an explanation as to why they were not given
16 A. Not in my memory, no.
17 Q. The last sentence on the original, and if we could advance to
18 page 5 in the B/C/S, states with the word "he," referring to Mladic:
19 "He said he engaged himself personally in this operation and
20 organised as much food and water for the refugees as possible."
21 My question to you is: Do you recall General Mladic stating that
22 he had been personally involved in VRS operations in Srebrenica?
23 A. Yes, I do.
24 MR. IVETIC: Objection. It misstates the document, Your Honour.
25 It's testifying and it misstates the document and calls for speculation.
1 JUDGE ORIE: Mr. Groome, let me have -- you were quoting exactly
2 from -- let me see where it is on the -- on the top, yes.
3 MR. IVETIC: The bottom of page 2, Your Honour.
4 JUDGE ORIE: May I take it that you understand this language to
5 be that he took part or that -- let me ...
6 MR. GROOME: Your Honour, and that was my next question with the
7 witness to clarify his understanding.
8 MR. IVETIC: He only talks about the organisation of food and
9 water for the refugees.
10 JUDGE ORIE: It's not this operation.
11 Witness, where it reads here that Mr. Mladic would have said that
12 he engaged himself personally in this operation, which is described to
13 you a minute ago, and organised as much food and water for the refugees
14 as possible, how did you -- how do you interpret this language? Is that
15 Mr. Mladic was exclusively engaged in this operation, as far as food and
16 water is concerned, or whether it was to be understood in a wider sense,
17 and, if so, on what basis?
18 THE WITNESS: I understood it on the wider basis, that he was
19 engaged personally on this operation, and indeed I'd seen television
20 footage of him being engaged personally on this operation in the streets
21 of Srebrenica and around Potocari.
22 So that was my understanding at the time, and -- and that is how
23 I continued to read that paragraph.
24 JUDGE ORIE: Please proceed, Mr. Groome.
25 MR. GROOME: Could I ask that we now go to paragraph 5. This can
1 be found on 4 in the original, and page 5 in the B/C/S.
2 Q. The portion I want to draw your attention says:
3 "Mladic described how on the night of 10/11 July 1995, a
4 significant number of BiH troops broke through the lines in the direction
5 of Tuzla. He explained that he had opened a corridor to let these troops
6 go. He accepted that some skirmishes had taken place with casualties on
7 both sides and that some 'unfortunate small incidents' had occurred."
8 That's the end of the quote of that.
9 My question to you is: What did you understand him to mean when
10 he said "unfortunate small incidents"?
11 A. It would have been things like people trying to surrender,
12 getting shot, people -- people who weren't armed being shot. Those sorts
13 of things. Which I can envisage happening in those sorts of
15 MR. GROOME: Your Honour, the Prosecution tenders 5729 as a
16 public exhibit.
17 MR. IVETIC: No objection to this document, Your Honour.
18 JUDGE ORIE: Madam Registrar.
19 THE REGISTRAR: Document 5729 becomes Exhibit P795, Your Honours.
20 JUDGE ORIE: P795 is admitted into evidence.
21 MR. GROOME: Can I ask that we now go to 65 ter 5733. And this
22 is notes on a meeting between Generals Smith and Mladic on 31st of
23 July 1995.
24 Q. General, did there come a time when you met General Mladic on the
25 31st of July?
1 A. Yes.
2 Q. Was there anything memorable about your travel to that meeting?
3 A. Yes, my helicopter was shot up.
4 Q. And was it hit?
5 A. Yes.
6 Q. And was your helicopter shot on the way to the meeting?
7 A. It was -- it was engaged on our way to the meeting as we crossed
8 from Bosnian-held bits of Sarajevo and into the Bosnian Serb area.
9 Q. Can you describe the outer markings of the helicopter.
10 A. It was a UN marked helicopter of the British Sea King, it was the
11 type of helicopter, with UN markings.
12 Q. Was your trip announced to both sides.
13 A. Yes, it was.
14 Q. Were you travelling in daylight?
15 A. It was in daylight and it wasn't so much as announced. We had
16 been given clearance for this meeting and this journey by Mladic's
18 Q. Can I draw your attention to paragraph 8 and that can be found on
19 the third page in both languages, which is entitled: "UNHCR Aid to
20 Sarajevo." The last sentence of this paragraph summarising the
21 discussions related to Sarajevo states, referring to Mladic:
22 "He then offered to take measures to open Sarajevo airport and
23 return all Sarajevo utilities if UNPROFOR removes the BiH from the Igman
24 DMZ, suggesting that we had the forces in place to do this."
25 Did you understand during the course of this meeting for Mladic
1 to represent that he had the personal capacity to control the inflow of
2 utilities into Sarajevo?
3 A. Yes, I did. It -- it -- and the -- the -- this offer is
4 indicative of it, but it is also that if I'd agreed to that, I was
5 assuming, which was not a safe assumption, that the Bosnians would permit
6 me to, in fact, shot down the Igman trail, he would then be entirely in
7 control of the enclave.
8 Q. Now if I draw your attention to a meeting on the 22nd of
9 August 1995 and ask you to take a look at paragraph 194 of your
10 statement, and this is P785, MFI, page 49 and 38 respectively. It says:
11 "Later in the meeting, I tackled Mladic on Srebrenica and the
12 allegations of atrocities. It was clear by now that these massacres had
13 taken place."
14 Can you explain this portion of your meeting with as much
15 precision as possible, including what you said to Mladic and he to you.
16 A. The -- just let me, for a moment, just refresh my memory of the
17 earlier paragraphs in that statement. Yeah.
18 During this meeting, I'm trying to explain the -- the political
19 situation, the international political situation and the progress of
20 the -- what had come to be called the Holbrooke peace talks. And trying
21 to get him to understand, the -- that the -- that repeatedly the Bosnian
22 Serbs had put themselves into positions where their -- the impression
23 they gave was so revolting to public opinion, that their position, their
24 argument that they were trying to advance was being dismissed before
25 they'd been able to make their argument because of their actions as seen
1 on television and so forth. And I'm trying to get that across at this
3 Q. I'd like to change to a different subject now. In paragraphs 189
4 to 210 of your statement concerns events in August 1995 and includes the
5 shelling on the market-place in Sarajevo on 28 August.
6 Your evidence is comprehensive on this point. I do want to draw
7 your attention to paragraph 201. That can be found on page 51 and 40
8 respectively in e-court.
9 In your statement, you say:
10 "There was an acoustic system called HALO that didn't pick up any
11 firing from within the city, which told us that it was out of range of
12 acoustic system."
13 Can I ask you to explain to the Chamber what is H-A-L-O or HALO
14 and explain it in the context of this sentence?
15 A. HALO was an acoustic target acquisition system. It has a number
16 of sensors. The -- it -- a weapon is fired. It hears the firing of the
17 weapon. The sensors all produce a direction and you -- you -- each one
18 is compared to the other -- excuse me, one minute. And then you can
19 begin to get a direction of where the weapon was fired from.
20 In addition to this form of information, and as said in this
21 paragraph, there is the Cymbeline radar, and then finally you had the
22 observation posts around the confrontation line of -- in Sarajevo and
23 they, too, are part of your acoustic system in that the people can hear a
24 weapon being fired.
25 Q. Can I ask that 10244 be brought to our screens. It is a document
1 entitled "Final and Comprehensive Report on the 28 August 1995 Mortar
2 Incident," dated 8 September 1995.
3 Once it's on the screen, I'd ask you whether you have had a
4 chance to examine this document in preparation for your evidence today.
5 A. Yes, I have.
6 Q. And can you tell us what it is we are looking at.
7 A. The -- this is a collection of documents put together by my
8 military assistant and as to the background to our understanding and how
9 we reached our understanding of what had happened.
10 MR. GROOME: Your Honour, the Prosecution tenders 10244 as a
11 public exhibit.
12 MR. IVETIC: No objection to the tendering of this document.
13 JUDGE ORIE: Yes.
14 Mr. Groome, is it correct that you did not tender 65 ter 5733?
15 MR. GROOME: I may not have, Your Honour. I apologise and thank
16 you for the reminder. It is my intention to tender that document,
17 Your Honour, and I would do so at this time.
18 JUDGE ORIE: Mr. Ivetic.
19 MR. IVETIC: 5733. No objection to the document being tender.
20 JUDGE ORIE: Madam Registrar, 65 ter 5733 would receive.
21 THE REGISTRAR: Number P796 Your Honours.
22 JUDGE ORIE: P796 is admitted.
23 Then we have 65 ter 10244.
24 THE REGISTRAR: Receives number P797 Your Honours.
25 JUDGE ORIE: And is admitted into evidence.
1 MR. GROOME: Your Honours, the next three -- well, let me ask
2 General Smith something first.
3 Q. After the Markale bombing, you had a number of phone calls with
4 General Mladic; is that correct?
5 A. Yes.
6 MR. GROOME: Your Honours, 65 ter, and the core number -- is the
7 root number is the same for all the suffix differs, 22270M suffix P and
8 suffix S are tape recordings of phone calls -- of these phone calls made
9 by General Mladic and they were recovered from him. I asked Mr. Ivetic
10 to consider whether he would consent to their admission, and if he makes
11 his position known, perhaps I can save some time and not have the general
12 look at them here in court.
13 MR. IVETIC: If I could have a minute to consult with my client
14 on this issue.
15 JUDGE ORIE: Yes. If you want to take instructions.
16 MR. IVETIC: Yes, I do, Your Honour.
17 [Defence counsel confer]
18 MR. GROOME: Perhaps while that's being done, could I ask that a
19 document be brought to our screen, and it's 3548. And in fact, Your
20 Honour, as I see Mr. Ivetic is coming back, perhaps he can make his
21 position known and I will proceed.
22 MR. IVETIC: Yes, Your Honour. My client has instructed that he
23 does not object to the admission of these documents so long as they are
24 read and presented in their entirety so that the public gets the true,
25 full picture of what was discussed and we get to the truth of the matters
1 that are of interest to these proceedings finally.
2 JUDGE ORIE: Yes. Access of the public to these proceedings is a
3 matter the Chamber will deal with. I do understand that Mr. Mladic does
4 not object to their admission, and we'll take care that the public is
5 informed as it usually is.
6 Madam Registrar, 22270, and -- suffix P.
7 THE REGISTRAR: 22270M, first, will receive number P798,
8 Your Honours.
9 JUDGE ORIE: P798 is admitted into evidence.
10 Mr. Mladic, no talking allowed at this moment.
11 THE REGISTRAR: And 222 ...
12 [Trial Chamber confers]
13 JUDGE ORIE: The next one, Madam Registrar.
14 THE REGISTRAR: Document 22270P receives number P799,
15 Your Honours.
16 JUDGE ORIE: And is admitted into evidence.
17 [Trial Chamber confers]
18 JUDGE ORIE: And is there the third one is the suffix S?
19 MR. GROOME: Yes, Your Honour.
20 JUDGE ORIE: Madam Registrar.
21 THE REGISTRAR: And document 22270S receives number P800,
22 Your Honours.
23 JUDGE ORIE: P800 is admitted into evidence.
24 MR. GROOME: Your Honour, with respect to three --
25 JUDGE ORIE: Mr. Ivetic is on his feet.
1 MR. IVETIC: Yes, Your Honours. I did have to consult with my
2 colleague about the additional instructions to reiterate that Mr. Mladic
3 expects that these are to be read or heard in their entirety in the
4 courtroom. And in so as far there are audio --
5 JUDGE ORIE: Mr. Ivetic. Mr. Ivetic.
6 MR. IVETIC: Am I not allowed to make a record, Your Honour?
7 JUDGE ORIE: First of all --
8 MR. IVETIC: Am I not allowed to make a record, Your Honour?
9 JUDGE ORIE: Will you please calm down, Mr. Ivetic. And, well,
11 MR. IVETIC: Am I allowed to continue making my record, Your
12 Honour, of what my client has instructed me to do.
13 JUDGE ORIE: You are interrupted by me at this moment and you
14 have to accept that because I wanted to say something first, and then I
15 will allow you to complete what you intended to say.
16 What I wanted to say is that it may be clear to you that an
17 objection to admission cannot be conditional. The Chamber does not
18 accept conditions before it admits something. The Chamber understands
19 the condition Mr. Mladic intended to impose as an expression of concern
20 for the public character of this trial. That is a matter the Chamber
21 will look at seriously, as it always does.
22 That is what I wanted to say.
23 If you now want to complete what you said, you're free to do so.
24 MR. IVETIC: Yes, Your Honour. And first I thank you for your
25 comments and your understanding.
1 Mr. Mladic also wanted to bring to the attention of the Chamber,
2 as I understand it, that these are apparently from dictaphone cassettes
3 which should be in the possession of the Prosecution and which can be
4 played and can be heard, so we would ask that those cassettes be also
5 entered into evidence, not just the transcripts.
6 JUDGE ORIE: Mr. Mladic -- Mr. Groome, are there any cassettes
7 which could be --
8 MR. GROOME: We have them prepared and they are here in court.
9 That was our full intention to tender them as public exhibits, Your
11 JUDGE ORIE: Yes. Therefore, the cassettes, the audio is part of
12 the -- is it already? If not, is it uploaded?
13 MR. GROOME: Your Honour, I'm informed that the digital audio has
14 already been transferred over to the Registrar and the transcripts have
15 been uploaded.
16 JUDGE ORIE: We'll take care that they are part of the record of
17 these proceedings so it's not only text but also audio.
18 Madam Registrar, how are we going to deal with that technically?
19 Do we have to add something to the e-court records?
20 THE REGISTRAR: No, Your Honours. This is standard procedure. I
21 have been provided with copies and DVDs, the Chamber staff was provided
22 with copies as well, and transcripts are uploaded in the e-court as I can
23 see now.
24 JUDGE ORIE: Yes. Therefore, Mr. Ivetic, everything is part of
25 the record now, including audio. And I think we could then proceed.
1 MR. GROOME: Your Honour, just so the record is clear, what's
2 been transmitted to the Chamber has not been edited in any way by the
3 Prosecution. It is the entire content of the conversation.
4 JUDGE ORIE: Thank you for that information.
5 You may proceed, Mr. Groome.
6 MR. GROOME:
7 Q. General, do you recall if during these conversations
8 General Mladic was proposing that a joint commission be established to
9 investigate the second Markale bombing?
10 A. Yes, he did propose this.
11 Q. In due course the Prosecution will adduce evidence about that
12 these recordings were recovered from General Mladic. My question to you,
13 at this point, when the conversation took place, were you aware that he
14 was recording your conversation?
15 A. No, I was not aware of it.
16 MR. GROOME: Could I ask -- Your Honour, the next exhibit I want
17 to work with is 3548. I only intend to tender the last two pages, pages
18 9 and 10, and have taken the liberty of creating a sub-exhibit, 3548A.
19 If the Chamber permits, I will use that instead.
20 JUDGE ORIE: Let's first ask Mr. Ivetic whether there's any
21 objection against using two pages only of this document as a separate
23 MR. IVETIC: Well, I did not have an objection to the entire
24 exhibit coming in. I don't have it in front of me right now to give an
25 immediate response as to extract of. Since there are many documents that
1 were disclosed for this witness, I don't have them at instantaneous
3 JUDGE ORIE: Then I suggest the following, that we follow the
4 suggestion by Mr. Groome, and if you want the entire exhibit, the entire
5 original exhibit to be in evidence, Mr. Ivetic, that we hear from you.
6 MR. IVETIC: That would be appreciated, Your Honour.
7 JUDGE ORIE: Mr. Groome, sub-Exhibit 3548A is the one you want to
8 work with at this moment?
9 MR. GROOME: And that's what is on the screen now, Your Honour.
10 Q. General Smith, did you have a chance to review this document?
11 A. Yes, I did.
12 Q. Can you tell us what it is.
13 A. This is a -- an account of the conversations I had with Mladic,
14 those -- on those two days, the 28th and 29th.
15 Q. The entry in the middle of the page for 1823 hours on the 28th,
16 it's reported that Mladic claimed that an examination of the casualty
17 list and the circumstances of the incident would provide the truth and
18 vindicate his forces.
19 Did he explain to you how the identity of the victims would
20 vindicate the involvement of his forces?
21 A. No, he didn't.
22 MR. GROOME: Your Honour, the Prosecution tenders 3548A as a
23 public exhibit.
24 JUDGE ORIE: Yes. With reference to what I said earlier,
25 Madam Registrar, this exhibit would receive number.
1 THE REGISTRAR: Document 3548A receives number P801,
2 Your Honours.
3 JUDGE ORIE: And is admitted into evidence.
4 MR. GROOME: Your Honour, my final line of questioning should
5 only be a few minutes. Could I ask that 65 ter 17494 be brought to our
6 screens. It is an order from Dr. Radovan Karadzic, president of the
7 republic, strictly confidential number 1538-2/95, dated 26 March 1995.
8 Q. General Smith, have you had an opportunity to familiarise
9 yourself with this document?
10 A. Yes, I have.
11 Q. I'm not as interested in the substance of the document as the
12 procedure that was followed. But can I ask you to briefly summarise your
13 understanding of this order issued by President Karadzic.
14 A. It's an order issued in -- on 26th of March, ordering the
15 mobilisation of the state of -- of Republika Srpska, and the -- it --
16 it -- and it's all the organs of the state. This isn't just military.
17 It's making sure that the whole of the state's effort is devoted to
18 the -- to -- to the purpose of the mobilisation.
19 MR. GROOME: Can we please now see 65 ter 7661.
20 Q. It's an order from the Main Staff dated the same date and
21 type-signed by General Ratko Mladic. And, again, General, once you can
22 see this document, can you tell us whether you have recently familiarised
23 yourself with it.
24 A. Yes, I have.
25 Q. Can you summarise its purpose in military terms.
1 A. Well, this is the military chain of command taking the
2 political --
3 MR. IVETIC: I will interject and object to this opinion
4 testimony coming in. The witness has not been qualified as an expert
5 witness, and in fact has been disqualified on the topic of being an
6 expert witness by other Trial Chamber as to the VRS. He can talk in
7 general terms but he cannot apply his facts and conclusions specifically
8 to the VRS. This has never been presented as an expert under 94 bis.
9 This is constantly happening, Your Honours.
10 JUDGE ORIE: Are you finished, Mr. Ivetic?
11 Mr. Groome, would you please rephrase the questions.
12 MR. GROOME: Your Honour, I'm simply asking the witness, who has
13 40 years of a military officer and his experience as a commander of a
14 multinational force, if he recognises what the purpose of this document
15 would be. I'm not asking him to express any opinion about the
16 effectiveness of a chain of command or anything like that, but simply
17 what would be the purpose of such a document. I believe that's well
18 within his realm of personal and professional experience.
19 [Trial Chamber confers]
20 JUDGE ORIE: The witness may answer the question. We'll then --
21 and the witness is invited not to avoid from any speculation and just to
22 base his answer on experience preferably well explained so that the
23 Chamber understands exactly what the basis for your comments is.
24 THE WITNESS: Can we go back to the original, please.
25 MR. GROOME:
1 Q. That's the one signed by Dr. Karadzic?
2 A. Correct, yes.
3 MR. GROOME: Could we please have once again on the screen 17494.
4 THE WITNESS: Yeah. We can see in the original that there --
5 there is a strictly confidential number. It starts 01 in the top
6 left-hand corner. And the next order, the one -- if we could down the
7 chain, as it were, to --
8 MR. GROOME: Could we please now have 7661.
9 Q. And you're asking us to note the --
10 A. That number at the top.
11 Q. Okay.
12 MR. GROOME: Can we now please see 7661.
13 THE INTERPRETER: Kindly slow down for the interpreters. Thank
15 THE WITNESS: And you now see the Main Staff of the army
16 referring to this order in the second paragraph, "we received this
17 strictly confidential order number," et cetera, the same number as the
18 previous one, and we then see the order being repeated. And if it turns
19 over the page, will probably tell you to obey it.
20 MR. GROOME:
21 Q. It's only one page in the -- okay.
22 A. Yep.
23 MR. GROOME: Can we now look at 65 ter 13045. This is a document
24 dated the next day, 27 March 1995, from the command of the Drina Corps.
25 Q. And, again, once you can see it, have you recently familiarised
1 yourself with this document?
2 A. Yes, I have. And I'd only point out that the -- well, let me
3 look at it.
4 And there, again, at the -- in -- on my screen, the paragraph at
5 the bottom of the page:
6 "We've received an order from the RS president ... number 01,"
7 et cetera.
8 And it repeats it and passes it on down the chain of command.
9 MR. GROOME: Finally can we look at 65 ter 13035.
10 Q. It's a document of the 1st Podrinje Light Infantry Brigade dated
11 29 March, 1995, entitled in part: "Delivery of the Order of the
12 President of Republika Srpska."
13 Again, when can you see it, have you recently familiarised
14 yourself with it?
15 A. Yes, I have. And here we see the subordinate formation of the
16 Drina Corps commander repeating the order number that begins with 01 and
17 repeating the order to their subordinates.
18 Q. And finally can we go to the last page in the English
19 translation, the last sentence of the document which states:
20 "The battalion commands are duty-bound to make known the contents
21 of the order of the president of the republic through their company
22 commanders to every soldier an officer so that they may be informed and
23 acquainted with the application of regulations during a state of war ..."
24 and it continues.
25 Do you have any observations about that last sentence?
1 A. Other than the -- that there is this -- if you like, there's the
2 threat of punishment if you don't understand these orders and carry them
4 Q. Okay. Thank you.
5 MR. GROOME: Your Honour, before I tender these documents, I want
6 to point out something with respect to 7661 and 13045.
7 The English translation of 7661 records the VRS document number
8 as 3/4-480. In 13045, which refers to this document, records the number
9 as 03/4-490. It is the Prosecution's case that given the poor quality of
10 the original identified as 7661, the translator has understandably
11 misread the number 490 as 480.
12 Since the original is illegible, I think asking for the
13 translation to be verified will not resolve the matter but, rather, it
14 will be for the Chamber to ultimately consider the related documents and
15 come to its own view about what the real reference number is in fact.
16 And with that, Your Honour, the Prosecution would tender 17494, 7661, 65
17 ter 13045, 65 ter 13035 as public Prosecution Exhibits.
18 MR. IVETIC: Your Honour, the Defence would object. I have heard
19 no testimony from this witness giving any personal factual knowledge of
20 either the matters contained in these documents or of having received the
21 documents during the relevant time-period. What we've had here is trying
22 to get an opinion testimony through the backdoor through a witness who
23 has not had any personal knowledge to gain as to these documents and
24 therefore we would object to the introduction of these three documents on
25 this basis.
1 JUDGE ORIE: Mr. Ivetic, would there be any objection against
2 having them admitted through the bar table because what the Prosecution
3 apparently wants to establish, and almost everyone can read in those
4 documents, is that an order is going down the line of the hierarchical
5 military line.
6 MR. IVETIC: When they make a submission via the bar table we
7 will examine it and we will give our position.
8 JUDGE ORIE: Mr. Groome, would you extend the tendering to
9 alternatively tendering them from the bar table.
10 MR. GROOME: Yes, Your Honour.
11 JUDGE ORIE: Then we'll ask Madam Registrar to mark them for
12 identification, and we'd like to hear from you, Mr. Ivetic, well, let's
13 say still this week.
14 Madam Registrar, can you please assign numbers to the documents.
15 THE REGISTRAR: Document 17494 receives number P802,
16 Your Honours.
17 Document 07661 receives number P803, Your Honours.
18 Document 13045 receives number P804, Your Honours.
19 And document 13035 receives number P805, Your Honours.
20 JUDGE ORIE: Thank you, Madam Registrar. P802 up to P805,
21 because the last one is missing on the transcript, but I think it was
22 13035 which receives exhibit number P805.
23 Therefore, P802 up to and including P805 are marked for
25 MR. GROOME: Your Honour, that concludes my examination.
1 Q. Thank you, General Smith.
2 JUDGE ORIE: Thank you, Mr. Groome.
3 We take another break, and we'd like to see you back in 20
4 minutes, Witness. Could you please follow the usher.
5 [The witness stands down]
6 JUDGE ORIE: We take a break, and we resume at a quarter to 2.00.
7 --- Recess taken at 1.23 p.m.
8 --- On resuming at 1.48 p.m.
9 JUDGE ORIE: Mr. Mladic, you are supposed not to speak aloud once
10 the Chamber has entered the courtroom, which it has done by now.
11 I would like to have, Mr. Ivetic, at the end of this session,
12 seven minutes to deliver some guidance.
13 Meanwhile, can the witness be escorted into the courtroom.
14 Mr. Groome, I already can announce what I'll read at the end of
15 this session. That is, a statement regarding the Rule 94 bis filing of
16 expert report of Witness Theunens. It could be that you want someone
17 else to listen in as well.
18 [The witness takes the stand]
19 THE WITNESS: Thank you.
20 JUDGE ORIE: Mr. Smith, you'll now be cross-examined by
21 Mr. Ivetic. Mr. Ivetic is a member of the Defence team of Mr. Mladic.
22 THE WITNESS: Thank you.
23 JUDGE ORIE: Mr. Ivetic, you may proceed.
24 MR. IVETIC: Thank you, Your Honour.
25 Cross-examination by Mr. Ivetic:
1 Q. Good day, sir.
2 A. Good day.
3 Q. I wish to take the opportunity to remind you that in so far as we
4 both will be speaking the English language, we need to ensure that there
5 is a pause between my question and your answer to allow for the
6 interpretation to complete and, thus, make the job of the court reporter
8 Is that fair and understood, sir?
9 A. Yes.
10 Q. Sir, I would begin by focussing just briefly on your career and
11 education and training.
12 I would like now to move to the time-period before you were
13 deployed to the former Yugoslavia. First of all, in your years of
14 training and education to become a member of the British armed forces,
15 did you ever have a course of study with a focus on the structure or
16 doctrine of the Yugoslav People's Army or the Yugoslav All People's
17 Defence system?
18 A. Not a specific course, no. But in my general training, the --
19 the structure of the -- the -- in the Yugoslavian army was addressed, but
20 only in fairly general terms.
21 Q. You've mentioned the Yugoslavian army. Can I ask you now to
22 focus with regard to the Army of the Republika Srpska, the Armija BiH, or
23 the Croat Defence Union. Did any of your study or training to become a
24 member and officer of the British armed forces involve courses or
25 relative to the structure or doctrine of these entities?
1 A. Not in my -- not in the -- it wasn't -- it wasn't part of one's
2 basic training, no. But in the job I did before I was deployed to
3 Bosnia, I began to learn how these organisations were operating. But it
4 wasn't a course of instruction.
5 Q. Can I take it from your answer that you began to learn that this
6 was an independent study on your own part rather than a formal part of
7 your employment?
8 A. No, it was my job. We were -- we were sending people to these
9 places, and I needed to understand what was going on.
10 Q. And what was the precise nature of your activities to begin to
11 learn how these organisations were operating?
12 A. I was the assistant chief for the Defence Staff for operations
13 and security in the Ministry of Defence in London.
14 Q. On what sources did you rely to begin to learn how these
15 organisations were operating?
16 A. On the reporting that we were receiving, at that time, from the
17 people we'd had deployed there and so forth.
18 Q. Were you able to, at the time of your deployment, speak the local
19 language or any of the local languages of the former Yugoslavia, or did
20 you always rely upon an interpreter?
21 A. I couldn't speak, and don't speak, any of those languages.
22 Q. Can you please provide us with some details relating to the time
23 when you were deployed as a member of UNPROFOR? Did you at that time
24 receive any specific training, instruction, or briefing as to the
25 operation function of the army BiH, Army of Republika Srpska, or the
1 Croat Defence Union?
2 A. Yes, I was briefed by the headquarters when I took over.
3 Q. How long did such a briefing take place?
4 A. The initial one was probably about an hour and a half but this
5 was a continuous process. It wasn't just a one -- one event.
6 Q. Did any part of your briefing deal substantively with the
7 locations of military storage facilities and military formations of the
8 armija BiH within and around Sarajevo?
9 A. If you -- by that you mean the Weapons Collection Points and so
10 forth, yes. In so far as we knew them.
11 Q. Would I be correct that the briefings were only related to the
12 Weapons Collection Points and not any suspected unreported caches of
13 weapons and/or munitions?
14 A. I don't recall there being an unreported or suspected cache, but
15 if there had been I would expect I would have been briefed about it.
16 Q. Now I want to go into some more details about your career before
17 you assumed command of UNPROFOR BH command in January of 1995. I'm
18 looking at your statement, which is P785, marked for identification, and
19 paragraph 4 of the same, which would be in page 2 of the English, and
20 page 2 of the B/C/S as well. And I think you've already identified the
21 position. The period I'm focussing on is from 1992 to 1993 when you
22 served as the assistant chief of the UK Defence Staff for operations and
24 And did you, as part of that entity within the Ministry of
25 Defence of the United Kingdom, as part of your duties plan or assist in
1 activities relating to covert British assets operating in
2 Bosnia-Herzegovina, whether as part of UNPROFOR or NATO or stand alone?
3 A. In my -- the covert operations would not have been conducted in
4 that way.
5 Q. Thank you, sir. Now can I get an answer to my question. Did you
6 plan or assist in any form the operations of covert British assets in
7 Bosnia-Herzegovina during this time-period?
8 A. I was operating as a British officer and now I'm here as a UN
10 JUDGE ORIE: You're here as a witness of the truth, Mr. Smith.
11 THE WITNESS: Okay. In which case --
12 JUDGE ORIE: And therefore --
13 THE WITNESS: -- I would rather I didn't answer that question
14 without some advice.
15 JUDGE ORIE: Well, you're supposed to answer questions that are
16 put to you here. You're under a duty to testify. There's no Rule 70
17 restriction, Mr. Groome, is there?
18 MR. GROOME: There is, Your Honour. Could I ask that the
19 questions be deferred to tomorrow so I can have an opportunity to review
20 the Rule 70 paperwork on this. But I believe that this witness is here
21 pursuant to Rule 70. This witness has testified here many many times, so
22 there's -- if I could just have till the morning to review that
24 [Trial Chamber confers]
25 JUDGE ORIE: Yes, you'll be given time until tomorrow.
1 And, Mr. Ivetic, could you then proceed at this moment and then
2 we'll revisit this matter tomorrow, if need be.
3 MR. IVETIC: Absolutely, Your Honours. Not a problem.
4 Q. I'd like to look at a document in e-court about some of the work
5 you were behind while at this Ministry of Defence position as the
6 assistant chief.
7 MR. IVETIC: Toward that end I would call up 65 ter number 25916
8 which is a transcript of the 12 January 2000 interview which you gave to
9 the Dutch authorities, and I think the selection I want is at page 8,
10 paragraph 30, of the same.
11 I believe the English is page 8 and paragraph --
12 THE REGISTRAR: Your Honours, there's no English version visible
13 in e-court.
14 MR. IVETIC: Ah.
15 JUDGE ORIE: Is there any Dutch version of this document?
16 MR. IVETIC: I don't know, Your Honour. I thought we had an
17 English version but [Overlapping speakers] ...
18 JUDGE ORIE: Apparently you have not. Well, then you have both
19 something to consider before it is tomorrow, Mr. Ivetic.
20 If by tomorrow if you could also find out whether there's an
21 original Dutch version of this document, that would be appreciated.
22 MR. IVETIC: My recollection is that there is a Dutch version.
23 The English version was the question mark that I had. This is a
24 Prosecution document, of course, but I do believe that I have seen a
25 Dutch version.
1 JUDGE ORIE: Yes, that would be appreciated if that would become
2 part of e-court as well.
3 Please proceed.
4 MR. IVETIC: Thank you. I will skip this and we'll get back to
6 Q. Sir, focussing on that time-period of 1993, was the British
7 Ministry of Defence already at that time making plans to engage either by
8 air-strikes or by artillery in combat actions against the Bosnian Serbs,
9 and, if so, could you tell me if it was within the auspices of NATO or
10 the United Nations?
11 A. The British Ministry of Defence was not making those plans, no.
12 Q. Was the British Ministry of Defence participating with others who
13 were making those plans?
14 A. They -- the UN, at one stage, had a -- an element, an artillery
15 element, held offshore in 1993, I think it was, and subsequently NATO
16 established the no-fly zone, and after the no-fly zone the safe areas,
17 and that involved the prospect or use of air power.
18 Q. And you say that there was an artillery element held offshore.
19 Am I correct that we're talking about British artillery pieces there
20 on boats?
21 A. On a ship, yeah.
22 Q. Am I also correct, sir, that at that time in 1993 it was your
23 personal proposal and position these artillery pieces should be brought
24 onto the ground in Bosnia-Herzegovina to be used against the Bosnian
1 A. No, it wasn't to be used against the Bosnian Serbs. And it was
2 my personal opinion that our battle group should have that capability.
3 But it was in defence of our people, rather than to act against anybody,
4 unless they attacked us. It was also in response to the Bosnian Serbs
5 shelling a British position, somewhere in the south. I can't remember
6 the location.
7 Q. And is it correct that you came into conflict or confrontation
8 with your superiors about your will to use force against the Serbs at
9 this time?
10 A. No. They agreed and we put the guns on the ships. The UN didn't
11 want them in the end.
12 Q. Is it your evidence that you never came into confrontation with
13 your superiors about your will to use force?
14 A. Not in those terms, no.
15 Q. Okay. With regard -- with regard to the decision not to bring
16 the British artillery on the ground and have it potentially used, am I
17 correct that you were upset about this decision by your superiors?
18 A. I don't recall being upset about it, no.
19 Q. Am I correct, sir, that in 1993 and 1994 whilst at the Ministry
20 of Defence in London, you were already, at that time, involved in
21 discussions between NATO headquarters in Brussels and the UN headquarters
22 in New York regarding the use of NATO air-strikes in Bosnia-Herzegovina
23 against the Serbs?
24 A. Yes. I wasn't working. I was the -- the British representative
25 in these discussions in both headquarters. I wasn't co-ordinating
1 between the UN and the NATO headquarters.
2 Q. Okay.
3 JUDGE ORIE: Mr. Ivetic, I said I would need seven minutes. We
4 have [Overlapping speakers] ...
5 MR. IVETIC: I defer to you, Your Honours. You can --
6 JUDGE ORIE: Yes.
7 Mr. Smith, there's not much chance that we would conclude your
8 testimony tomorrow, so we were informed that you would still be available
9 on Monday.
10 THE WITNESS: I would need to make a couple of telephone calls to
11 be absolutely sure of that.
12 JUDGE ORIE: Well, then Mr. Groome informed us not completely.
13 MR. GROOME: Your Honour, I believe I said with difficulty. I
14 mean, he's being very co-operative, but it wasn't without difficulty
15 so ...
16 JUDGE ORIE: Yes. We tried, Mr. Smith, to see whether we could
17 conclude your testimony this week. Unfortunately we were unable and we
18 would not like to cut the parties down on your testimony, which I hope
19 you will understand as well.
20 We'd like to see you back tomorrow morning at 9.30 in this same
21 courtroom. But I'd first like to instruct you that you should not speak
22 or communicate in any other way with whomever about your testimony,
23 whether given already today or still to be given tomorrow or any other
24 day to follow.
25 If, in relation to the matter Mr. Groome will further explore
1 what we call Rule 70; that is, confidentiality, if that raises a matter,
2 and if you, as you said, you would have to consult someone, you first
3 need the approval of the Chamber for that.
4 THE WITNESS: I understand, yes.
5 JUDGE ORIE: Then we'd like to see you back tomorrow morning.
6 You may follow the usher.
7 [The witness stands down]
8 JUDGE ORIE: Then I would like to deliver the Chamber's statement
9 regarding Rule 94 bis filing of expert report of Witness Theunens.
10 The Prosecution filed its notice of disclosure of expert report
11 of Reynaud Theunens, pursuant to Rule 94 bis, on the 8th of January of
12 this year, informing the Chamber of the disclosure of Theunens' expert
13 report to the Defence on the 5th of October, 2012. According to the
14 Prosecution, the report provides for an expert military analysis of the
15 documentary evidence related to the existence and the purpose of the
16 overarching joint criminal enterprise alleged in the indictment.
17 At the outset, the Chamber notes that the current English version
18 available in e-court under 65 ter number 28612 seems to have various
19 pages in disorders. For example, page 184 of the document in e-court
20 seems to be parts of a table of contents, followed by page 185, which is
21 normal text again. This mix between table of contents pages and usual
22 page -- usual text pages continues for about 19 pages.
23 Similarly, page 213 of the document in e-court seems to be a
24 cover page, then followed by a page that continues the text, which
25 started on page 212.
1 There are a manifold of other examples in the current version on
2 the e-court. The Chamber expected the Prosecution to upload a proper
3 version of the report. As this was not done, the Chamber requests the
4 Prosecution to correct such mistakes when it uploads a new version and to
5 inform the Defence and Chamber once it has done so.
6 Further, the Chamber notes that "Part I: Background of the
7 Report," comprises of a section covering three subsections that give a
8 general summary of the SFRY armed forces, its military laws, and the
9 conflict in Croatia between 1991 and 1992. The section in total amounts
10 to 180 pages of the 686-pages-long document. In light of the substance
11 covered by these pages, the Chamber expects the Prosecution to clearly
12 explain the relevance of this section of the report.
13 Part II of the report discusses the time-frame from 1992 to 1995.
14 In this regard, the Chamber noted various areas of overlap between the
15 report and the adjudicated facts in this trial. A couple of examples
16 would be: The proclamation of the Serb Autonomous Districts, (report
17 page 294), covered by adjudicated fact 56; the fact that the VRS could
18 rely on personnel and equipment by the JNA (report page 334), covered by
19 adjudicated facts 303; the declaration for a general mobilisation by the
20 Bosnian Serb Presidency (report page 340), covered by adjudicated fact
21 306; or the proclamation of the constitution of the Serbian Republic of
22 BiH (report page 301), covered by adjudicated fact 128, to only name a
23 few. The Chamber reminds the Prosecution that it insists on no, or a
24 minimum of overlap of tendering of evidence, and, therefore, asks the
25 Prosecution to properly review the report again and to redact any overlap
1 with adjudicated facts in this case.
2 In light of the above, the Chamber requests the Prosecution to
3 take the steps outlined above and make a new filing, pursuant to Rule 94
4 bis of the Rules.
5 And this concludes the Chamber's statement.
6 We adjourn for the day, and we'll resume tomorrow, Friday, the
7 25th of January, at 9.30 in the morning, in this same courtroom, III.
8 --- Whereupon the hearing adjourned at 2.15 p.m.,
9 to be reconvened on Friday, the 25th day of
10 January, 2013, at 9.30 a.m.