1 Friday, 3 May 2013
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.35 a.m.
5 JUDGE ORIE: Madam Registrar - good morning to everyone - could
6 you please call the case.
7 THE REGISTRAR: Good morning, Your Honours. This is case
8 IT-09-92-T, the Prosecutor versus Ratko Mladic.
9 JUDGE ORIE: Thank you, Madam Registrar. Before we resume, there
10 is a matter I would briefly like to deal with in private session, so we
11 go into private session for only a few minutes.
12 [Private session]
19 [Open session]
20 THE REGISTRAR: We are in open session, Your Honours.
21 JUDGE ORIE: Thank you, Madam Registrar. Mr. Ivetic, you'll
22 understand that if possible the Chamber would appreciate if it would
23 be -- if you could conclude your cross-examination today and preferably
24 even leaving some time for additional questions by the Prosecution or by
25 the Bench.
1 [The witness takes the stand]
2 MR. IVETIC: I'll try to do so, Your Honour.
3 JUDGE ORIE: Good morning, Mr. Nicolai.
4 THE WITNESS: Good morning, Your Honour.
5 JUDGE ORIE: You're still bound by the solemn declaration you've
6 given yesterday at the beginning of your testimony.
7 WITNESS: CORNELIS HENDRICK NICOLAI [Resumed]
8 [Witness answered through interpreter]
9 JUDGE ORIE: Mr. Ivetic will now continue his cross-examination.
10 MR. IVETIC: Thank you, Your Honour.
11 Cross-examination by Mr. Ivetic: [Continued]
12 Q. Good day, General. And I'll begin with my questions right away
13 to try and be as efficient as possible. I'd like to first talk about
14 something that was contained in a proofing information report which we
15 received from the Office of the Prosecutor that indicates:
16 "The witness confirmed that he had relatively regular contact
17 with General Mladic from the beginning of his deployment in February 1995
18 through the fall of the Srebrenica enclave with the departure of the
19 Dutch Battalion in July 1995. The witness stated that his contact with
20 General Mladic was mostly by telephone and occasionally in writing."
21 First of all, sir, is this information that I've been provided
22 and which I've now read back to you true and correct?
23 A. Ninety per cent of my contacts with the headquarters of BSA were
24 with my counterpart, Chief of Staff, Milovanovic. Incidentally, I would
25 get other persons on the phone, including General Mladic at times.
1 Q. And with that clarification, now, is the rest of what I read
2 accurate and truthful?
3 A. Well, I also wrote letters on a number of occasions and they in
4 all cases addressed General Mladic.
5 Q. Okay. Let me break it down. On occasions when you had
6 telephonic contact with General Mladic, would those have almost always
7 have been with the same Croatian translator Svetlana that we talked about
9 A. Well, as I stated before, in almost all cases, this was Svetlana
10 the Croatian interpreter. On occasion, if unexpectedly something would
11 happen and Svetlana was not present, I would use one of the military
12 interpreters that were present there at the headquarters.
13 Q. Okay. Fine. And now I want to talk about the written letters
14 that were sent to General Mladic. Did you always send a Serbo-Croatian
15 translation of the letter and, if so, who was responsible for translating
16 the document into Serbo-Croat?
17 A. Translations were always sent along and they would be made by one
18 of the interpreters, those translations.
19 Q. Okay. Now, the proofing information report from the Prosecution
20 also indicates that one of the topics which you discussed with
21 General Mladic was in relation to VRS complaints about Armija BiH attacks
22 on Serb territory originating from within the Srebrenica enclave; is that
24 A. Yes. That's correct.
25 Q. Okay. Then I would like to spend a few moments talking about
1 this before we return to some more general items. Do you recall, sir,
2 how many times or at least how frequently the VRS was complaining to
3 UNPROFOR about the Armija BiH undertaking attacks originating from within
4 the Srebrenica enclave and attacking Serb territory?
5 A. Well, I can't be really sure. I wasn't keeping track of that,
6 but if I were to make an estimate, I would think about five times in the
7 period that I was Chief of Staff.
8 Q. And, sir, on these occasions, did you receive such complaints
9 directly or were they forwarded to you by DutchBat or some other UNPROFOR
11 A. In a number of cases, I received them direct. However, I can't
12 rule out that incidentally we would receive a warning indirectly through
13 DutchBat and the headquarters and from there to Tuzla.
14 Q. And did you also receive complaints from the VRS about the
15 Armija BiH forces conducting military attacks originating from within
16 Bihac or any of the other UN protected areas attacking Serb territories
17 surrounding those protected areas?
18 A. Well, yes. I actually think that that is what this discussion is
19 about, so I'd have to say yes.
20 Q. All right. I'd like to focus for the time being on the safe area
21 of Srebrenica. First of all, if we can return to your Rule 92 ter
22 statement, which is P1165 marked for identification, and if we could turn
23 to paragraph 8 which is at the top of page 3 in the English and also in
24 the B/C/S. Here you state that during a meeting with Mr. Silajdzic of
25 the Bosnian Muslim side, you reminded him that you could use air support,
1 you being UNPROFOR, against the Muslim side if they used their weapons in
2 breach of Security Council Resolutions 824, 836 and 844. And I want to
3 ask you, sir, did you or anyone else at BH command ever threaten to use
4 air support against the Armija of BiH in Srebrenica for these attacks
5 that took place from within the enclave of Srebrenica?
6 A. I very clearly remember this one instance and it was I who made
7 that actual comment. It might be because there was a meeting later on
8 with representatives of BiH that this was repeated, but I dare not say
9 with certainty, but no more often than that.
10 Q. And just so that we are clear, this meeting that's discussed in
11 paragraph 9 with Mr. Silajdzic, that occurred sometime early in
12 May of 1995; is that correct?
13 A. That is correct.
14 Q. And how about Bihac? Did you or anyone else at BH command of
15 UNPROFOR ever threaten to use close air support against the
16 Bosnian Muslim side under these same UN Security Council resolutions as
17 to attacks they conducted from within the Bihac enclave attacking Serb
18 territories surrounding the enclave?
19 JUDGE ORIE: Mr. Ivetic, you refer to paragraph 9, but I thought
20 it was in the same discussion with Silajdzic and that is in 8, isn't it?
21 MR. IVETIC: I apologise, Your Honours, it is 8.
22 JUDGE ORIE: Yes, then please proceed.
23 MR. IVETIC:
24 Q. Sir, in relation to Bihac, did you or anyone else at BH Command
25 ever threaten the use of air support against the Bosnian Muslim side
1 under these same UN Security Council resolutions relating to attacks
2 which they conducted from within the Bihac enclave?
3 A. No. I can't recall that. And actually I deem it very unlikely
4 because deploying air attacks against military that exfiltrate and often
5 during the night would conduct attacks on villages outside an enclave, it
6 would be very hard to use a weapon against that.
7 Q. Okay. At that time, what was your understanding and was it the
8 similar understanding of the BH command as to these three
9 Security Council resolutions? Did they apply equally to the Armija BiH
10 violations as well as to the VRS violations?
11 A. Yes.
12 Q. And was there a consensus of what was to be considered a
13 violation and what was not a violation, again at the level of the BH
15 A. Well, in the Security Council resolutions, it states very clearly
16 that air attacks can be used for attacks on positions of UN military as
17 well as in situations where the civilian population is being attacked.
18 JUDGE ORIE: Mr. Ivetic, I take it that your previous questions
19 about equally being applied requires a bit more of an analysis of what is
20 exactly found in the resolutions, but if your question was: Where armed
21 forces are addressed or governments are addressed in those resolutions
22 without further specification, that it would apply to both parties? Is
23 that what you intended to ask?
24 MR. IVETIC: Yes, Your Honour.
25 JUDGE ORIE: And is that how you understood that question,
1 Mr. Nicolai?
2 THE WITNESS: [Interpretation] This is how I understood the
3 question, Mr. President.
4 JUDGE ORIE: Mr. Ivetic, you are aware that the Chamber is
5 very -- wants to be very precise in analysing these international texts,
6 what obligations are found in it and what tasks are given in it,
7 et cetera. But for the time being we can proceed.
8 MR. IVETIC: Thank you.
9 Q. General, I'd like to focus with you on Srebrenica. Was it your
10 understanding from these resolutions along with other documents and
11 agreements from the time period in 1993 that the enclave of Srebrenica
12 was supposed to be demilitarised such that no combatants were supposed to
13 be left armed in the enclave itself?
14 A. Yes. I know that that was the idea, yes.
15 Q. And did such a regime apply to the other safe area enclaves such
16 as Zepa, Gorazde, Bihac and Sarajevo?
17 A. Yes. Definitely. And it's also true that for all those
18 enclaves, the heavy arms which are also most easily identified were
19 stored at so-called weapon collection points, and these were also under
20 the control of the UN. However, it is evident that it be much harder
21 with individuals that have very light hand arms to track them down
22 because those weapons are so much easier to hide.
23 Q. Well, let's digress from Srebrenica into Sarajevo, sir. Were any
24 efforts actually made by BH command to enforce the demilitarisation as to
25 infantry weapons in Sarajevo where the weapons were not so difficult to
2 A. When military were found or Muslim fighters were found with
3 weapons and they would be disarmed but it's an illusion to suppose that
4 in a city you would not be able to hide any hand arms, so that there be a
5 situation where you could disarm everybody is truly a mission impossible.
6 Q. But, sir, were the Muslim fighters in Sarajevo really hiding
7 their weapons from UNPROFOR, their infantry weapons?
8 A. Well, not always. And there were times that there were fierce
9 fighting at the borders of the enclave between Muslim fighters and the
10 Serb fighters with heavy firing of hand arms. However, these are moments
11 at which it's not very easy to start disarming either one of the parties,
12 and I'm sure that's clear.
13 Q. It is. I'd like to look at some documents with you. And the
14 first I would like to look at is 65 ter number 17956, and I would like
15 the first page in e-court so we can look at it together. And I can tell
16 you that this is an April 18 1993 agreement signed by Generals Halilovic,
17 Mladic and General Wahlgren of the UNPROFOR, and I would like to look
18 at - once it comes up - paragraph 4 of the same.
19 JUDGE ORIE: While waiting for it, Mr. Ivetic, exactly that
20 happened what I was concerned about, that is that you put the
21 demilitarisation in Sarajevo at exactly the same footing as any of the
22 others, whereas we've seen many instruments which make a distinction
23 between the two. But I'll let you go, but that's what I tried to avoid
24 and that's what nevertheless happened. Please proceed.
25 MR. IVETIC: Thank you, Your Honour.
1 Q. Sir, first of all, let me direct you to the part that I would
2 like to read from paragraph number 4 for you and ask you about it:
3 "All weapons, ammunition, mines, explosives and combat supplies
4 except medicines inside Srebrenica will be submitted, handed over, to
5 UNPROFOR under the supervision of three officers from each side who --
6 with control carried out by UNPROFOR. No armed persons or units except
7 UNPROFOR will remain within the city once the demilitarisation process is
8 complete. Responsibility for the demilitarisation process remains with
10 Sir, I want to ask you, at the time that you were deployed to be
11 Chief of Staff at BH command in Sarajevo, was this document or the
12 requirements of this provision one of the things that you were briefed on
13 and made aware of when assuming your position?
14 A. The document as such, I never had before me. But the fact that
15 in the enclaves, and in this case specifically in Srebrenica, the
16 fighters had to be demilitarised, that was something I knew.
17 Q. Okay. And now I'd like to look at I believe it's Exhibit P00023
18 in e-court. And this is again an agreement relating to Srebrenica signed
19 by General Halilovic, General Mladic and General Morillon this time of
20 UNPROFOR dated 8 May 1993. And, again, if we could have the first page,
21 sir, if you could take a moment to look at the title of this page in the
22 English version that is before us, do you believe that such a document
23 was of the type that you were made aware of upon your deployment to
24 Sarajevo in February of 1995?
25 A. I first have to read it.
1 I've read it and the document itself, I don't know. The content,
2 however, has more or less the same purport as the earlier quote that you
3 read to me.
4 Q. Okay. I'd like to ask you about specific parts of it, see if
5 that comports with what you understood the regime to be in Srebrenica.
6 First I'd like to look at Article 2, which is at the bottom of the first
7 page in English and it's at pages 2 to 3 of the B/C/S version in e-court.
8 And, sir, if you could follow along with me from the English, it says as
10 "On the ground, the demilitarised zone shall be marked by
11 UNPROFOR by means of boards on which is stated in English, Serbian and
12 Bosnian, written in Cyrillic and Latin as follows: Demilitarised zone,
13 any military operation is strictly forbidden. Article 60 Protocol I
14 additional to the Geneva Conventions."
15 Sir, does this comport with your understanding and recollection
16 of the safe area regime that was supposed to be in effect in Srebrenica
17 during the time that you were Chief of Staff to General Smith at the
18 BH command?
19 A. The statement about the boards that were supposed to be -- to be
20 placed there is not something I know about and I don't know to what
21 extent this actually happened. But the fact that this -- these were the
22 agreements that there would be no military operations inside those
23 borders. Those demarcations, well, naturally I know about that.
24 Q. Thank you, sir. I'd like to ask you was it your recollection
25 that the definition of a demilitarised zone was according to -- was
1 supposed to be according to Article 60 of Protocol I of the additions to
2 the Geneva Conventions?
3 A. Honestly, no.
4 Q. I'd like to now turn to page 2 in the English and page 3 in the
5 B/C/S to briefly look at Article 3 to again see if this provision is
6 consistent with the knowledge and understanding that you had of the
7 regime when you were Chief of Staff to General Smith in 1995:
8 "Every military or paramilitary unit will have either to withdraw
9 from the demilitarised zone or submit, hand over their weapons,
10 ammunition, mines, explosives and combat supplies in the demilitarised
11 zone will be handed over, submitted to UNPROFOR."
12 Sir, is this provision something consistent with your
13 understanding of what the safe area regime was supposed to be in
14 Srebrenica in 1995?
15 A. Yes. Entirely.
16 Q. And if we could scroll down this page to Article 5 of the same in
17 both languages, and, sir, again I'd like to ask you to follow along as
18 I read, and my question will again be the same, if it's consistent with
19 your understanding of the regime that was in place:
20 "UNPROFOR shall control the demilitarised zone. To be able to
21 implement this, an UNPROFOR unit and UNMOs with sufficient strength to
22 control the area shall be present in the demilitarised zone. Until the
23 contracting parties agree otherwise, the UNPROFOR strength shall be of at
24 least a company group with command and supplying elements in each
25 demilitarised zone. In order to be able to resupply, and rotate the
1 unit, UNPROFOR shall have freedom of movement to and from the
2 demilitarised zone. Non-combatants who are in or who are willing to
3 enter the demilitarised zone except members of UNPROFOR are not permitted
4 to have in their possession any weapon, ammunition, or explosives.
5 Weapons, ammunition and explosives in their possession shall be seized by
6 UNPROFOR. Combatants will not be allowed to enter or to be in the
7 demilitarised zone."
8 Is this provision consistent with your knowledge and
9 understanding of the safe area regime that was supposed to be in place in
10 Srebrenica in 1995 when you were Chief of Staff to General Smith?
11 A. Yes. It definitely comports with that. And I'd like to add
12 right away that all those provisions, also the first one listed here
13 about free access from and to the enclave, that against all those
14 provisions there were violations.
15 Q. I'd like to ask you, sir, would you agree with me that the safe
16 area of Srebrenica enclave that in fact was never demilitarised such that
17 the Armija BiH forces within the enclave remained armed and active in
18 1995 all the way up until the fall of Srebrenica in July of 1995?
19 A. Well, I don't quite agree with you. Where you say they were
20 never completely demilitarised I must say you're right. However, there
21 were considerable quantities of weapons seized. I saw the weapon
22 collection point with my own eyes and there was quite a store there.
23 Q. Thank you, sir. And the weapons collection point was primarily
24 or was entirely heavy weapons; is that accurate?
25 A. Yes. Mainly. But also a considerable quantity of hand weapons.
1 Q. Did you, as Chief of Staff of BH command in 1995, understand that
2 the demilitarisation of UN declared safe areas, including Srebrenica,
3 extended to infantry or small arms in addition to heavy weapons?
4 A. Yes. I was informed about that, yes.
5 Q. Now, I'd like to confront you with something that
6 General Rupert Smith testified about at transcript page 7524, line 20, to
7 7543, line 2, at this trial at which time he testified that he didn't
8 think that the exclusion zone and agreements, demilitarisation agreements
9 did not cover small arms. Was he right about that or are you right that
10 infantry and small arms were part of the demilitarisation agreements as
11 to the safe areas?
12 A. Well, in as far as I know, this also applied to small arms.
13 Q. Thank you, sir. Now, what information or knowledge did the BH
14 command of UNPROFOR have at that time when you were Chief of Staff to
15 General Smith as to the number of armed -- excuse me, of Armija BiH
16 fighters that were still present in the enclave of Srebrenica?
17 A. Well, yes, we were given regular information about that, and
18 I think it must have been from 2.000 to 3.000 BiH military that were in
19 the enclave. To what extent they were still all armed at that time, I
20 cannot say.
21 Q. And how about in the enclaves of Gorazde, Bihac and Zepa? Did
22 you have any information as to the amount of BiH fighters that were still
23 present in those safe areas?
24 A. Yes. That information was absolutely available. However,
25 I can't recall it now.
1 Q. That's fair enough, sir. I'd like to -- I'd like to go through
2 something which you testified about in the Tolimir trial.
3 MR. IVETIC: And for that purpose, I'd like to call up 65 ter
4 1D931 which is a transcript from the 17th of August, 2010, and the
5 e-court page is 18 at the bottom, continuing on to page 19, and that
6 comports to transcript page 3990 through 3991.
7 Q. And if we could look at line 21 - I apologise - and if you could
8 follow along with me, sir, I'd have a question after I read this section:
9 "Q. Then, please, General, tell us whether you had reports about
10 the activities of the Muslim forces from the protected areas of
11 Srebrenica and Zepa which they conducted immediately prior to the
12 operation that took place in Zepa and Srebrenica? And we are talking
13 about the month of June and July. Thank you. So did your command have
14 that? Thank you.
15 "A. When Muslim troops tried to carry out actions outside the
16 limits of the enclave, and it was observed by UNPROFOR, then of course it
17 would be reported. Now, we did receive some incidental reports about
18 that but except for noting that they had, we couldn't do anything besides
19 note that they had crossed the borders of the enclave because we had no
20 means to observe outside the limits of the enclave because we were denied
21 access to the Serb territory. So we couldn't see what they were doing
22 there. And as I've stated at previous hearings, the means and
23 opportunities for UNPROFOR units to observe properly were greatly
24 complicated by, first, the lack of fuel which made it impossible to carry
25 out motorised patrols, and because some of the UNPROFOR soldiers were
1 blocked by Serb troops and unable to return from leave which had
2 seriously compromised the numbers of our troops and they were no longer
3 able to perform their duties properly. So the number of observations was
4 therefore undoubtedly more limited than what was actually happening."
5 Now, sir, first I have to ask you: Do you stand by this
6 testimony that you gave in this other case as being both truthful and
7 accurate as to the section that I have just gone through with you?
8 A. Yes. I think this is a fine reflection.
9 Q. Thank you. Now I'd like to ask you about specific portions of
10 it. First of all, when you say that the -- you had no way of -- you were
11 denied access and couldn't see what was going on there, am I correct that
12 BH command had at its disposal the resources of NATO and the NATO
13 overflights in particular, both manned and unmanned flights, with the
14 capability of -- with a camera recording what was happening in a
15 particular village or what a particular village looked like? Am I
16 correct that you had that ability?
17 A. The UN as such did not have these means or resources but it could
18 ask NATO to do exploratory flights or use drones to survey specific
20 Q. Did BH command ever ask NATO to do so?
21 A. Undoubtedly.
22 Q. Yesterday you told us that the G-2 at BH command had a direct
23 link to the HQ in Naples of NATO and had access to satellite and other
24 surveillance. Was that utilised in relation to the complaints of Muslim
25 forces burning villages surrounding Srebrenica?
1 A. Well, in relation with these specific complaints I do not know.
2 Moreover, at a time that such a complaint comes in, the fact has usually
3 already taken place. So the only thing that one might be able to observe
4 in retrospect is whether there was any destruction inflicted and then
5 it's always very much the question when and by whom that was inflicted.
6 So in retrospect it is very hard to ascertain that with those specific
8 Q. Okay. Now I'd like to focus on the parts of this answer that
9 dealt with the inability to carry out duties because of the forces that
10 were not permitted to return from leave. We had a member of the DutchBat
11 testifying here last week, Mr. van Duijn, who at transcript page 10341,
12 lines 1 through 8, testified that as to the DutchBat deployment, even
13 before Dutch troops went on leave, there still was not a sufficient
14 amount of forces sent to the enclave to demilitarise an area the size of
15 Srebrenica. Is it your contention that the original deployment size was
16 sufficient to perform duties to demilitarise the Srebrenica enclave?
17 A. I am absolutely convinced that from the start, there was
18 absolutely insufficient troops present in the enclave to be able to do
19 that task adequately. I think that instead of some 600, we would have
20 needed around 6.000 to perform those tasks adequately.
21 Q. Thank you, sir. And now I want to ask you about the part of your
22 prior answer where you talked about not being able to see what the Muslim
23 forces were doing on Serb territory. I'd like to present you with
24 something that Mr. van Duijn testified about at transcript page 10346
25 through 10347 answering Judge Orie. And I think I will read it out for
1 you in full so that you have the benefit of that when listening to my
2 question. It begins at line 12 and goes through line 2 of the next page:
3 "Judge Orie: Mr. Ivetic, I'm a bit puzzled by one of the
4 previous answers. The question was whether you ever found out about or
5 hear stories about Muslim soldiers going out from the Srebrenica enclave
6 burning down Serb villages. Your answer was, 'I've heard stories about
7 that, yes, in other areas that were not under my responsibility but in
8 the enclave.' Did you want to say that you heard it in the enclave or
9 that it happened in the enclave because the question was about going out
10 of the enclave.
11 "The witness: It did not happen in the enclave. I heard it from
12 other commanders, colleagues of mine from DutchBat, that were responsible
13 for other areas and that had seen from their observation posts or patrols
14 or from Muslim commanders in the area that they would leave the enclave
15 and enter the Serb area and then burn down villages.
16 "Judge Orie: Yes, thank you."
17 Now, sir, the question I have for you is: Do you recall if you
18 had reports from DutchBat commanders that they could see from their own
19 observation posts and also heard from the Muslim commanders that the
20 Muslims were leaving the enclave and burning down Serb villages?
21 A. What I remember concretely is that there were notifications that
22 it was observed from the OPs that Muslim combatants would leave the
23 enclave, but from those OPs they were not able to see what subsequently
24 happened or was done by those combatants in that territory, on Serb
1 Q. Okay, sir. I'd like to look at Exhibit P1182 which was a
2 document that the Prosecution used with you yesterday. If we could have
3 that up in e-court. And if you recall, this was a letter that you wrote
4 to General Mladic on the 26th of June, 1995. And I'd like to ask you
5 about the first paragraph which reads as follows:
6 "In response to your letter number 06/17-441 of 24 June 1995,
7 with reports on several attacks from the safe area of Srebrenica,
8 I ordered an immediate investigation. That investigation made me
9 recognise that at the times and places mentioned in your letter, combat
10 activities by BiH troops had really occurred."
11 Now, I want to ask you, after conducting an investigation and
12 after confirming that the complaints made by General Mladic were
13 confirmed by facts, what did BH command do in relation to the BiH
15 A. Well, your question is more or less twofold. The investigation
16 that was conducted was unable to confirm this, simply for the reason that
17 those observations were not there, that events had in fact taken place as
18 had been alleged by General Mladic. Nevertheless, we did get in touch
19 with the BiH command, we informed them about these complaints, and gave
20 them severe warning that were they to conduct such activity, this would
21 be deemed provocation for BSA with possible consequences in the shape of
22 acts against the population in the enclave.
23 Q. Well, sir, correct me if I'm wrong, but you were able to confirm
24 that combat operations were conducted by the BiH. Was that not a
25 violation of the Srebrenica safe area regime that no military operations
1 were to be conducted?
2 A. Yes, obviously, it was part of the agreement that those troops
3 could most definitely not go outside the enclave. However, we were not
4 able to prevent this in each and every case.
5 Q. Now, I want to ask you, in your previous answer to my question
6 you said that you complained to the BiH command, the Bosnian Muslim
7 command, that these would be considered provocations. Isn't it correct
8 that you never complained to them about these being actual violations of
9 the accords that were in place as to Srebrenica?
10 A. Oh, but I did, with some regularity, this was a point of
11 discussion on all levels, both Colonel Karremans spoke to the
12 representatives present in Srebrenica, but also on other levels we
13 repeatedly insisted that it was absolutely necessary for all parties to
14 comply with the agreements that had been made.
15 Q. Was there a consensus under -- within the BH command originating
16 from General Smith, that military air strikes against the Bosnian Muslims
17 were off the table?
18 A. I never heard somebody say that this was not possible.
19 Q. Okay. I'd now like to ask you about something slightly different
20 in relation to demilitarisation of Srebrenica. Mr. van Duijn last week
21 also testified about what happened when Observation Post Echo fell in
22 1995; that is transcript page 10348 through 10349. First of all, sir, do
23 you recall during your tenure that there was a time period when one of
24 the observation posts, Echo, was taken over?
25 A. I'm sorry, I don't understand the question.
1 Q. Do you recall a time period during your tenure as Chief of Staff
2 when one of the observation posts in Srebrenica code named E, or Echo,
3 fell, was taken over?
4 JUDGE MOLOTO: Maybe if we can correct the record -- oh, thank
5 you, it has now been corrected.
6 THE WITNESS: [Interpretation] And by whom was that observation
7 post allegedly taken over?
8 MR. IVETIC:
9 Q. By the Serb forces.
10 A. Well, I can't really recall that.
11 Q. Fair enough, sir. Without being able to fix the date of that,
12 I do want to ask you about what Mr. van Duijn testified about at 10349,
13 transcript lines 13 through 17. At that time he said that he received a
14 communication from his DutchBat superiors which he viewed as a directive
15 to turn a "blind eye" to the Bosnian Muslims' weapons in Srebrenica. Did
16 BH command of UNPROFOR know of any such directive having been given to
17 DutchBat personnel within the enclave of Srebrenica?
18 A. No, I know nothing about that, and it sounds absolutely absurd.
19 Q. Do you believe that such a directive would have been consistent
20 with the obligations of UNPROFOR and the mission, as you understood it,
21 as to Srebrenica?
22 A. No. Of course, it is absolutely opposed to the actual task we
23 were there to fulfil. I would understand if a patrol on foot, five men,
24 would get to a platoon, 40 men that were also armed, that they would not
25 be able to demilitarise that group of 40. However, the least they could
1 do is report the fact that this incident took place, where the incident
2 took place, et cetera, and why no action was taken. But looking the
3 other way intentionally is something I can't imagine took place.
4 MR. VANDERPUYE: Thank you, Mr. President. I'm sorry, I switched
5 channels by mistake. I think it would be helpful if Mr. Ivetic read the
6 quote that he read to Lieutenant-Colonel van Duijn which I think would
7 put this matter in perspective and in context in framing the question to
8 General Nicolai, and that can be found at the page that Mr. Ivetic
9 referred to except he didn't read it.
10 JUDGE ORIE: Mr. Ivetic.
11 MR. IVETIC: Well, Your Honour, I believe that I accurately --
12 JUDGE ORIE: Well, let's not debate. Isn't it true, but help me
13 if I'm wrong in my recollection, that this happened according to that
14 witness in the days immediately preceding the moving in of the Bosnian
15 Serb troops?
16 MR. IVETIC: Correct, after Operation Post Echo fell which is
17 what I asked him --
18 JUDGE ORIE: Yes, but -- but you said you can't give an exact
19 time. I don't know whether it was clear from your question to the
20 witness that the testimony was about that point in time. So when he says
21 it's absurd, it may be that the timing is relevant for the judgement you
22 asked him as a matter of fact to give. You were not asking for facts but
23 you were asking for judgement. Perhaps you could make that part of the
24 context for which you asked that judgement of this witness.
25 MR. IVETIC: I'm confused because my question very specifically
1 dealt with the fall of Observation Post Echo and at that time that this
2 was said to Commander van Duijn, so how much clearer can I be?
3 JUDGE ORIE: But I think the witness said he didn't know when
4 that happened, isn't it?
5 MR. IVETIC: Okay I understand.
6 JUDGE ORIE: So therefore he's totally lost as far as time is
7 concerned, he has more than six months available. The fall of
8 Observation Post Echo was, I think it was around 8 July, it was then that
9 happened what Mr. van Duijn said happened. Would that cause your answer
10 to be the same or would that change anything?
11 THE WITNESS: [Interpretation] No. That doesn't change anything
12 of my answer.
13 JUDGE ORIE: Please proceed.
14 MR. IVETIC: Thank you, Your Honour.
15 JUDGE ORIE: Mr. Vanderpuye, I take it that this was the context
16 you were seeking, isn't it?
17 MR. VANDERPUYE: It is, Mr. President, but there was a specific
18 quote that Mr. Ivetic read to Lieutenant van Duijn.
19 JUDGE ORIE: If there is anything specific in that quote you can
20 do that in re-examination.
21 Please proceed.
22 MR. IVETIC: Thank you.
23 Q. One other thing Mr. van Duijn testified about was situations when
24 he witnessed what he believed to be helicopter flights into Srebrenica
25 and DutchBat patrols finding remnants of US military emergency rations at
1 the same time when Serbs claim that the Americans were arming the
2 Bosnian Muslims in Srebrenica. And he testified at transcript page 10350
3 that his requests for AWACS support to identify if there were any such
4 flights was not able to be completed because coincidentally the AWACS
5 were said to be not available. Did you obtain reports of such things
6 from the Dutch Battalion in Srebrenica?
7 JUDGE MOLOTO: Is the question "do you" or "did you"?
8 MR. IVETIC:
9 Q. Did you?
10 A. All that is asserted here, I am reading now for the first time
11 and I have never heard about this before.
12 Q. Thank you, sir. Am I correct that at the time in 1995, that the
13 Americans were operating the AWACS planes that were providing support to
14 UNPROFOR and the NATO missions in Bosnia at that time?
15 A. Yes. There was, and I would assume that this is known, an
16 operation deny flight where NATO air fighters would try to prevent all
17 other air flights above the territory, and that operation was ongoing
18 also at that time.
19 Q. Thank you, sir.
20 MR. IVETIC: Your Honours, I believe we are at the point for the
21 first break.
22 JUDGE ORIE: We are, Mr. Ivetic.
23 Could the witness first be escorted out of the courtroom. We
24 will take a break of 20 minutes, Witness.
25 [The witness stands down]
1 JUDGE ORIE: We will take a break and resume at five minutes to
3 --- Recess taken at 10.34 a.m.
4 --- On resuming at 10.59 a.m.
5 JUDGE ORIE: Could the witness be escorted into the courtroom.
6 Mr. Ivetic, the Chamber observed that major portions of the evidence you
7 elicited before the break, at least that's the impression of the Chamber,
8 are matters which are not very much in dispute, which are matters on
9 which you have led already quite some evidence through other witnesses,
10 and where at least the Chamber is not aware of major challenge to those
11 matters, and as far as relevance is concerned, the Chamber asked itself
12 whether this was the core of the case or whether this was background, and
13 if it is background, and the Chamber tends to think that it is for major
14 parts, then it should get the size of background and not replace what
15 seems to be the core of the case. Could you please keep this in mind
16 when you are using your time in the hours to come.
17 MR. IVETIC: I will, Your Honours and I do want to also bring to
18 Your Honours' attention that a significant part of the questions that
19 I asked dealt with matters that another witness testified about and so it
20 goes towards the credibility of that testimony by the other witness who
21 is superior to this witness within the command.
22 JUDGE ORIE: That may explain 15 per cent of your time, not more.
23 Please proceed.
24 MR. IVETIC: Thank you, Your Honour.
25 [The witness takes the stand]
1 MR. IVETIC:
2 Q. I'd like to ask you about a document, sir, Exhibit D140 and I'd
3 like to call it up in e-court and look at the same with you. I think
4 when the first page comes up we will see that it originated from within
5 the BH command, and if we can turn to the next page of the document we
6 will see it's an English rendition of a letter received by General Smith
7 from General Mladic, and it states in the first section as follows:
8 "Dear general, we are gravely concerned over the frequent use of
9 Tuzla airport by the Muslim side. The aircrafts are bringing weapons,
10 ammunition and war materials for their needs. Unfortunately this pirate
11 activity of their aircraft is enabled by the NATO air force and the
12 Muslim army does not allow your forces to control the loads. I am sure
13 you share my opinion that these activities are seriously jeopardising the
14 signed agreements and represent a serious breach of the truce and of
15 relevant Security Council resolutions. I ask you to take urgent measures
16 to stop these peace-threatening activities, otherwise we will be
17 compelled to take the necessary measures regarding the Muslim side's
18 violations of the Tuzla safe area which is in the presence of your forces
19 turning into a war base for Islamic countries."
20 Now, given the date of this letter being just before your
21 deployment, were you briefed about such complaints pertaining to the use
22 of the Tuzla air base at the time of your arrival as Chief of Staff to
23 BH command?
24 A. To start, let me point out to you that this letter dates from
25 before my arrival or the commencement of my position as Chief of Staff at
1 UNPROFOR, it dates to 13 February, and I did not arrive until late
2 February in Sarajevo. However, I did indeed hear that --
3 JUDGE ORIE: I invite you to carefully listen to the question
4 because the question started with "date of this letter being just before
5 your deployment," so that was already part of the question. But please
6 proceed with your answer.
7 THE WITNESS: [Interpretation] I apologise, Your Honour.
8 I did indeed hear that allegedly there had been resupplies
9 through the airport of Tuzla and I know that investigations were started
10 and everything was done to prevent that that sort of things would happen.
11 MR. IVETIC:
12 Q. I'd like to move to a second document, D142 an exhibit in
13 e-court, and it is again a communication from General Mladic complaining
14 to General Smith of an incident a little closer in time to your
15 deployment, I believe on the 23rd of February, and I'll direct your
16 attention to the part that reads as follows:
17 "On 23 February 1995, at about 2010 hours, a transport plane with
18 weapons and military equipment landed again at Tuzla airport's secondary
19 runway. It was escorted by two NATO fighter aircraft which were
20 protecting it during flight and offloading. Unfortunately, this has been
21 repeated lately in front within sight and hearing of NATO and UNPROFOR
22 forces, both in the air and at Tuzla airport itself. These forces are
23 doing nothing to prevent the violations of the relevant
24 UN Security Council resolutions prohibiting the import of weapons and
25 military equipment."
1 Now, again, were you briefed of this specific type of incident
2 where it is alleged that NATO aircraft provided escort or support to
3 flights bringing military weapons to the Bosnian Muslim side in late
4 February 1995, albeit again a few days before your deployment?
5 A. I heard that this had allegedly happened, and I repeat what
6 I just said. UNPROFOR took measures to prevent that this would be
7 repeated, and as far as I know, during my period there it never did
8 happen again.
9 Q. What did you, as the person with command over the G-2
10 intelligence officer Lieutenant-Colonel Powers within BH command do
11 vis-a-vis your ability to contact NATO to confirm or deny whether in fact
12 NATO aircraft had participated in such an arming campaign?
13 A. Well, I don't know exactly what happened there because it did
14 take place before I came onboard, but I take it that at the highest level
15 the authorities of UNPROFOR and NATO got in touch so as to insist that
16 this sort of activity would be ceased, and at the airport of Tuzla, was
17 also the headquarters of the north-east sectors, and so I think it was
18 within our possibilities to actually have control over this.
19 Q. To your knowledge, either directly or indirectly, did anyone at
20 BH command ever attempt to get confirmation from NATO of whether NATO had
21 been involved or NATO aircraft or aircraft of NATO member nations had
22 been involved in this arming these convoys, these air convoys, into Tuzla
24 A. The only thing I recall, as far as that is concerned, is that
25 indeed it was seen that aircraft landed there, their nationality was not
1 ascertained at that time. But I cannot but conclude, in view of the
2 control that NATO had over the air territory, that that would have
3 happened at least with the permission or consent of NATO.
4 Q. Thank you, sir. Now I'd like to return and focus with you on the
5 6th of July, 1995, in Srebrenica. And I think at your 92 ter statement
6 which is P1165 marked for identification, we need to look at page 9 in
7 both languages, at paragraph number 41, where you're talking about this
8 day. And you talk first about of how around the 6th of July in the
9 morning there was heavy fighting between the VRS and the ABiH. You say
10 that the VRS were using between five to ten tanks and heavy artillery,
11 the shelling was mostly directed at military targets and not directly
12 against the civilian population. And that day -- you say:
13 "That day I talked with the commander of DutchBat about using air
14 power, I explained to him that day of the policies of General Janvier and
15 Smith. I said that according to the actual guidelines the use of air
16 power was permitted for the self-defence of UNPROFOR soldiers or in case
17 of deliberate attacks on the civilian population."
18 I want to ask you, sir, first of all, during this time period,
19 6th of July, am I to understand that the Armija BiH from within
20 Srebrenica enclave was firing or was exchanging fire with the Serb forces
21 located around Srebrenica?
22 A. I don't exactly recall but, yes, yes, it says it here in the
23 report that there was fierce fighting between the army and the ABH so
24 that must have been the case.
25 Q. And now, looking at paragraph 42 of your statement, which is on
1 the next page in both languages, it is recorded that the 7th of July,
2 Friday, was a rather quiet day, probably because of the bad weather
3 conditions. I want to ask you: Did this assessment relate to both the
4 activities of the VRS and the Armija BiH in Srebrenica and around
5 Srebrenica on that day?
6 A. Yes. That's correct. I just know that it was a relatively quiet
7 day, which is not to say that nothing happened. However, in comparison
8 with the day before, confrontations were less fierce.
9 Q. And with respect to the 8th of July, which is also detailed in
10 your statement, would it be fair to summarise it that again, both sides
11 were still militarily active and fighting?
12 A. Yes, that's correct.
13 Q. And I want to focus on paragraph 45 of your statement, in the
14 middle part of the same, which is on this same page that we have here and
15 it's the part that starts with:
16 "Zagreb made it clear that General Janvier did not want to use
17 this ultimate solution without DutchBat having first used their weapons.
18 He wanted a step to be taken before the calling in of air attacks.
19 According to the results of these consultations, we gave orders to
20 DutchBat to take blocking positions south of Srebrenica town so that if
21 the VRS attacked the town this would not only be an attack on the
22 civilian population but also an attack on UNPROFOR troops. In this case
23 all the conditions for using air power would be met. This order was
24 carried out by DutchBat?"
25 I want to ask you, sir, am I correctly interpreting this that the
1 order for DutchBat to take blocking positions in Srebrenica was in
2 essence to create the pretext for the ability to call in close air
3 support against the Serb forces?
4 A. Yes. That is correct, and formally it was not absolutely
5 necessary based on the council Resolution A 24 and 36 because they
6 offered ample opportunity already to be able to use air space. However,
7 because of the additional restrictions imposed from the headquarters in
8 Zagreb concerning the use of air support, General Janvier explicitly
9 wanted that first the UNPROFOR troops would react with other means to the
10 attack of the BSA before he was willing to deploy the air arms, the air
12 JUDGE ORIE: From the answer, which by the way I listened to in
13 English, it's unclear to me whether the witness has well understood your
14 question. It being a pretext that it is that they were seeking a reason
15 to start air strikes but that the blocking positions were ordered in
16 order to create such a situation. Was that the case? Or was it, and
17 that seems to be your explanation, that only in last resort, until other
18 means had been used, that only in last resort Zagreb was willing to order
19 air strikes. Which of the two is it? Or any third explanation is of
20 course welcome as well.
21 THE WITNESS: [Interpretation] Well, given the fact that the
22 quantity of troops still available to halt any attack from the BSA was
23 absolutely insufficient, this order was very consciously given so as to
24 create a situation in which there would be both an attack on UNPROFOR and
25 on the city of Srebrenica. And in that case, there was no doubt
1 whatsoever about the legitimacy of the deployment of air strikes.
2 JUDGE ORIE: That seems to be a third explanation, that the
3 blocking positions were ordered in order to provoke more or less an
4 attack on the town, which then would justify air strikes. Is that well
6 THE WITNESS: [Interpretation] Well, not to provoke the attack.
7 It was intended to draw a clear line in the sand up to this point, but no
8 further. Then if you come further we will deploy air strikes. And so
9 obviously BSA had the choice to withdraw its troops then and to say,
10 Okay, if that is your position, we will go, we'll halt our attacks.
11 JUDGE ORIE: Please proceed, Mr. Ivetic.
12 MR. IVETIC: Thank you.
13 Q. And, sir, these blocking positions that were ordered on the
14 9th of July, am I correct that Armija BiH forces, armed Armija BiH
15 forces, were deployed alongside the DutchBat APCs and fired upon the Serb
16 troops that were approaching?
17 A. Well, they were not deployed by UNPROFOR. It is true that they
18 were in position close to the blocking positions and whether they
19 actually fired is not something I have any information on. You would
20 have to ask the witnesses that were in Srebrenica at the time. However,
21 they held positions close to the blocking positions, it is true.
22 Q. What clear message did UNPROFOR, BH command, think that would
23 send to the Serbs, deploying blocking positions at or near the places of
24 deployment of Armija BiH forces?
25 A. I have no opinion on that. We had a very written -- clear
1 written statement in which we said that UNPROFOR would take a position
2 there and if it were to be attacked, that position, this would lead to
3 deployment of air strikes. And what BiH would do at the same time is not
4 something that we had any announcements about. We did not know in effect
5 what they would do.
6 JUDGE ORIE: Mr. Ivetic, was actually your question: Wouldn't
7 send this the message that UNPROFOR was siding with the forces? Why not
8 directly ask it? I mean that's a clear issue, takes less time if you put
9 it in one question. Mr. Ivetic wanted to know whether you do not think
10 that this would send a message that UNPROFOR was siding with the
11 Army of the BiH, and whether you would share such a view.
12 THE WITNESS: [Interpretation] No. I absolutely do not share such
13 a view. UNPROFOR had orders to protect the civilian population, and this
14 is what they attempted to do from those blocking positions, and if the
15 forces on the ground were not enough, then they would use forces in the
16 air. There was absolutely no support to the Army of the BiH.
17 JUDGE ORIE: But the question was whether by allowing the ABiH
18 forces so close to the blocking positions, whether there was not a
19 serious risk that it would be understood as siding. Mr. Ivetic, I take
20 it that is what you were aiming at.
21 MR. IVETIC: Correct.
22 JUDGE ORIE: So irrespective of the intentions, what the effect
23 might have been.
24 THE WITNESS: [Interpretation] Well, yes. That might possibly
25 have been the case. However, it was hard enough to free up troops to
1 take up those blocking positions and UNPROFOR absolutely did not avail of
2 additional means to prevent that the BiH would take positions close to
3 those blocking positions.
4 MR. IVETIC: Thank you, Your Honours.
5 Q. Now, I want to ask you, we've come to the 9th of July, and you've
6 previously said that you did not know of any order to turn a blind eye to
7 the Bosnian Muslim weapons at this time. I'd like to move to 10 July.
8 Am I correct that by the 10th of July, BH command had made a decision and
9 ordered DutchBat to make available to the Armija BiH the heavy weapons
10 that were in the weapons collection point at one of the DutchBat company
12 A. Yes, that is correct. The BiH incidentally did not use them.
13 Q. Now, I want to ask you: What was the rationale or authority for
14 permitting the BiH side to be offered to take back their heavy weapons
15 from the weapons collection points in Srebrenica or was this again
16 something that could amount to taking sides in a conflict, given the
17 overall picture?
18 A. Well, you know, this is putting the world on its head, isn't it?
19 There was actually one party to wit the BSA who had for some days
20 attempted to use every means they had to attack the enclave, including
21 the Muslims that were inside it, and I don't think it's anything more
22 than reasonable, and actually UNPROFOR I think waited long enough, where
23 one party is violating agreements to such an extent that also the other
24 party is given the means to resist this with all possible means.
25 Q. Then I have a question for you, sir, about the weapons collection
1 points in Sarajevo where the Serbs had heavy weapons stored. Did they
2 also have a right to take back those weapons to defend themselves in case
3 of an attack by the BiH side that UNPROFOR was unable to stop under the
4 regime and the agreements of the weapons exclusion zones that were in
5 place, as you understood them, and in particular I'm talking about the
6 time period of May 1995?
7 A. Just a moment. I'm just reading the question again in the
8 transcript in English. Yes. I think I understood the question. In
9 May 1995, in Sarajevo, there was definitely not a matter of the use by
10 heavy arms by BiH vis-a-vis the Serb forces, and also no cause, then, to
11 give permission to the Serb forces to take their heavy arms that had been
12 stored at those weapon collection points.
13 Q. I'd like to now switch back to Srebrenica and 9th of July, 1995,
14 and I want to take a look at P1152, which is the warning and press
15 release that you discussed yesterday in direct examination, sent on
16 9 July to General Mladic and I guess to the world. And if we could have
17 the second page of the same, and the text of this was shown to you
18 yesterday and you confirmed having a role in generating this, and I think
19 it is clear. Now I want to ask you about this because this document says
20 that the Serbs resumed attacks on 7 July 1995. Will you agree with me,
21 given your testimony today, that this press release and warning is
22 factually not entirely correct as to the 7th of July, in that it was
23 deemed a quiet day and thus the Serbs -- that the actions of the Serbs
24 could not be described as they are described in this press release?
25 A. Well, yes. That is a little curious, that after all those years
1 you now point this out to me for the first time. It should have been
2 6th July to be exact, but I never noticed it before now that you indicate
3 it to me.
4 Q. And the document also claims that they fired indiscriminately
5 into the safe area and directly targeted UN facilities causing several
6 civilian deaths. Am I correct that the reference to several civilian
7 deaths in this warning and press release is also not entirely correct?
8 A. That I doubt very seriously because I know there were
9 notifications that there were lethal casualties and we actually knew this
10 because of the UNMOs' observations, among other things.
11 Q. Now, do you recall who made the decision to include the not
12 entirely correct allegation about the 7th of July, 1995, in this press
14 A. Well, the entire text of this warning is the result of extensive
15 telephone consultations between the headquarters in Sarajevo and the
16 headquarters in Zagreb, and ultimately the responsibility for the text is
17 with General Janvier or Mr. Akashi.
18 Q. But it was sent to General Mladic and I take it it was a warning
19 or, rather, a rationale for why air strikes might be considered against
20 his forces, am I correct?
21 A. Yes, that is absolutely correct.
22 Q. And it was not sent to the Armija BiH side, which according to
23 your prior testimony was engaged on the 6th of July, heavily fighting
24 with the Serbs, exchanging fire with the Serbs, also a violation of the
25 agreements; isn't that correct?
1 A. Yes. But what we deemed much more serious was that the Serbs
2 were attacking both the civilian population and the UNPROFOR forces,
3 which was not the case with the activities of the BiH.
4 Q. I want to now move to the issue of the evacuation of refugees
5 from the Srebrenica enclave, and I'd like to look at page 13 in English
6 of your Rule 92 ter statement, P1165, and paragraph 59 of the same and
7 it's also page 13 in the B/C/S.
8 JUDGE ORIE: Mr. Ivetic, while waiting for the text to come on
9 our screens, you were talking about violation of the agreements, plural.
10 Which ones did you have in mind?
11 MR. IVETIC: I had in mind the -- we have been talking with this
12 witness about the regime of the safe areas as he understood it under the
13 various Security Council resolutions and the various demilitarisation
14 agreements which I went through with this witness and which he said he
15 did not recall the actual documents. But the particular provision that
16 I had read were ones that he was familiar with as applying to the overall
17 regime in the safe area of Srebrenica. That's my --
18 JUDGE ORIE: Yes. You were talking about agreements but you put
19 two agreements to the witness, that those are the ones that you're
20 talking about, okay. Please proceed.
21 MR. IVETIC:
22 Q. At this paragraph, and I think we are talking about the
23 11th of July at this point in time, and I will read it for you it says:
24 "Colonel Karremans commenced negotiations with General Mladic
25 that night and I was advised for the first time that Mladic was on the
1 ground there. The next day, the negotiations were to continue with
2 Mladic. We were instructing Colonel Karremans on what he had to do
3 during those negotiations -- these negotiations by telephone and in
4 writing. We instructed him to stay with the civilian population so that
5 he and his men could observe the evacuation in order that it would be
6 carried out within the international rules. Directly after we stopped
7 the air attacks we realised that the civilian population would have to be
8 evacuated from Srebrenica. There was no food, enough medical care or
9 even protection from the weather for the people there. We had hoped to
10 do this under the cover of the UNPROFOR troops and even use UNPROFOR
11 trucks if necessary. On the 11th of July, I had informed the Dutch
12 minister of defence of the planned evacuation and our intention to use
13 UNPROFOR trucks, and he had agreed to this."
14 Now, just so that we are clear here, I want to make sure that I'm
15 clear in understanding this as meaning that UNPROFOR BH command had
16 instructed and ordered Colonel Karremans to negotiate with General Mladic
17 to permit the evacuation of refugees from Srebrenica as early as
18 11 July 1995.
19 A. No. No. That would have been absolutely impossible because as
20 you may recall, the end of the deployment of the air force was later that
21 afternoon, and not until then was there contact between Mladic and
22 Colonel Karremans and were there negotiations started about the
23 conditions for evacuation. And I think, if I recall clearly, it was
24 around 6.00 at the end of the afternoon, I was in touch with the
25 Ministry of Defence in the Netherlands, and told the minister that we
1 intended such an evacuation, but it may be clear that it takes some time
2 to organise something like that. It's not simple. You have to get means
3 of transport from somewhere to start an evacuation. And definitely we
4 wouldn't have been able to do this on the same day. In the most
5 favourable case we would have succeeded to do this on the next day.
6 Q. Well, then I ask for you to explain to me the section that says:
7 "Directly after we stopped the air attacks, we realised that the
8 civilian population would have to be evacuated from Srebrenica."
9 Is this not "we," referring to UNPROFOR, making a decision that
10 the evacuation of refugees from Srebrenica was a necessity before there
11 was any contact with General Mladic on the ground?
12 A. Yes. We didn't need General Mladic's advice to be able to
13 conclude that the situation of the refugees in those circumstances was an
14 untenable one.
15 Q. And thus I suppose, sir, that the instructions and orders you
16 sent to Colonel Karremans before he met with General Mladic for the first
17 time would have dealt with the evacuation and the need for the refugees
18 to be evacuated, am I correct?
19 A. Yes. That was -- I no longer needed to explain the necessity of
20 this to Colonel Karremans. He could readily understand this, and it was
21 also simply an order from UNPROFOR to Colonel Karremans that the
22 evacuation would have to take place. However, naturally, we did have to
23 inform him as to how we supposed this might take place before -- because
24 for the execution we needed the co-operation of the Bosnian Serb forces,
25 where he had to negotiate that on the spot.
1 Q. Thank you, sir, for that answer. Now I'd like to leave
2 Srebrenica and talk a little bit more about the situation in Sarajevo
3 during your tenure as Chief of Staff for the UNPROFOR BH command. In
4 your 92 ter statement which is before us, at paragraph 11 of the same
5 which is on page 3 in both languages, you -- I'll wait for it to get
6 there. You talk about the Bosnian Muslim side in Sarajevo using mobile
7 mortars to provoke a retaliation from the Serb side. Now, I do
8 understand that you personally did not witness the actual mortars in
9 question, and I'd like for you to explain for us the bases for your
10 conclusion that the BiH Muslims were using vehicles, civilian vehicles,
11 to launch from around the city with these mobile mortars.
12 JUDGE ORIE: Mr. Vanderpuye?
13 MR. VANDERPUYE: I see that the statement does reflect that
14 mortars were mounted on a vehicle with an open roof. I don't know that
15 there is a specific reference to civilian vehicles. I assume that's the
16 case but I don't know that that's the case based on the statement, and I
17 don't know if Mr. Ivetic does. But to the extent that that informs the
18 answer I would expect Mr. Ivetic perhaps might frame it more accurately.
19 MR. IVETIC: If I could perhaps assist. The 2006 statement
20 prepared by the Office of the Prosecutor signed by this witness in
21 paragraph 18 refers to a civilian car, and I was trying to avoid having
22 to go through that whole statement with the witness to see if he recalled
23 that indication. I make an offer of proof that it's in there and if
24 counsel believes it's otherwise, I could actually read the statement into
25 the record and that's fine.
1 MR. VANDERPUYE: I accept that. That's fine. Thank you.
2 JUDGE ORIE: Yes, therefore the whole debate was unnecessary.
3 Please proceed.
4 MR. IVETIC:
5 Q. Sir, could you tell us the bases for your knowledge because again
6 I do understand that you did not eye-witness the actual mortar itself but
7 I believe you do have personal knowledge that led you to believe that the
8 BiH side was using open-roofed civilian cars to fire mobile mortars
9 around Sarajevo. Could you tell us what that personal knowledge that you
10 have is?
11 A. Well, to start, my knowledge about this stems from reports of
12 UNMOs who actually saw the vehicle with the open roof. And from my own
13 perception, that is limited in this respect to a single incident when
14 very close to our headquarters, behind the building where I had my
15 bedroom, mortars were fired - and you do hear if this is close to your
16 window - and when I approached the window to look out I saw a civilian
17 car driving off. However, this took place in the dark so I couldn't see
18 whether this was the actual vehicle with the open roof. However, that
19 did make it very likely that it was.
20 Q. Thank you, sir. That's precisely what I understood from reading
21 your prior -- other documentation to have been the case. Now --
22 JUDGE ORIE: Mr. Ivetic, the Chamber of course is not aware of
23 what is elsewhere because if it's not in evidence you made the singular
24 plural, civilian cars. Is that also to be found there? And do the
25 parties agree on that? Then it's fine. Otherwise I would like to bring
1 to your attention that at least the statement of the witness which is in
2 evidence does not give any reason to use the plural.
3 MR. IVETIC: Correct, Your Honours. And I believe the witness
4 has confirmed that the singular incident he knows of was one car but he
5 had reports from UNMOs of other such incidents which would therefore make
6 it --
7 JUDGE ORIE: So other such incidents could be this one car still.
8 MR. IVETIC: Agreed. Agreed.
9 JUDGE ORIE: Please proceed.
10 MR. IVETIC: Thank you.
11 Q. Now am I correct that this mobile mortar or a mortar fired in
12 such a manner would leave a plume of smoke which would allow the other
13 side, that is the Bosnian Serbs, to quickly locate the origin of fire and
14 shoot back upon it in self-defence?
15 A. Yes. And that was actually the major problem because those
16 mortars were usually fired from positions in the direct vicinity or
17 environment of UNPROFOR facilities, either the headquarters or the
18 barracks or the headquarters of UNPROFOR. And it is clear that then this
19 can be traced back to the place from where the mortars were fired. The
20 risk that UNPROFOR facilities are hit is very real.
21 JUDGE ORIE: Is there any dispute about these matters? We have
22 heard some quite evidence about mobile mortar, a mobile mortar or mobile
23 mortars, being fired from within the city with the risk of return fire.
24 MR. VANDERPUYE: Indeed we have, Mr. President. I'll leave that
25 to your discretion. It's not a matter of dispute in the record.
1 JUDGE ORIE: Yes. But of course I would like to know whether
2 it's a matter in dispute and that's not within our discretion. If you
3 say you well have understood the record until now then we can move on.
4 MR. VANDERPUYE: Yes, Mr. President, we can move on [overlapping
5 speakers] ... record.
6 JUDGE ORIE: Mr. Ivetic, I tried to convince you that it's --
7 there is no reason to present repetitious evidence, no reason to present
8 evidence on matters which are not in dispute, but it seems that you have
9 difficulties in understanding it.
10 Please proceed.
11 MR. IVETIC: Thank you, Your Honour.
12 Q. I want to ask you something relative to the UNPROFOR monitoring
13 that was underway in Sarajevo at the time. And at paragraph 13 of your
14 statement, the 92 ter statement which is on the screen, at page 4 in both
15 languages you talk about the radar detection equipment that you describe
16 as being not completely accurate in the early days. And I want to make
17 it clear, for the record, that this inaccurate radar detection equipment
18 you're talking about is the so-called Cymbeline system.
19 A. Yes. That's correct. That was what I saw as a somewhat outdated
20 mortar-tracking radar system that the French used and which naturally
21 allowed you to conclude that mortars were being fired. But the exact
22 source of those grenades, for the identification of that exact source,
23 they were not very accurate, contrary to, in fact, the equipment that was
24 implemented on Mount Igman in the course of July.
25 JUDGE ORIE: Mr. Ivetic, was there any dispute about this? We
1 have heard quite a bit of evidence in detail about these matters.
2 Cymbeline system inaccuracy, any dispute?
3 MR. IVETIC: I'm sorry. It's a charged incidents in the
4 indictment, Your Honours.
5 JUDGE ORIE: I'm not asking -- I mean, that's not an answer to my
6 question. My question was whether there is any dispute about this, about
7 the system being the Cymbeline system and it being inaccurate, to some
8 extent. We have heard detailed evidence about that. Should we hear from
9 every witness the same evidence because it's part of the indictment,
10 Mr. Ivetic? That is what you suggest apparently.
11 MR. IVETIC: That's not what I suggest, Your Honours. We have
12 had a charged indictment where the sole evidence for it is -- the major
13 evidence for it based upon the reliability of the Cymbeline system. And
14 we have a witness who has very specific direct individual knowledge about
15 it that I'm trying to elicit because its towards a direct charge in the
16 indictment that is being charged against my client, which I believe in
17 every court of law you are entitled to present evidence contrary to a
18 charged indictment event, Your Honours. Please correct me if I'm wrong.
19 JUDGE ORIE: Not if it is repetitious, if it's not challenged.
20 MR. IVETIC: Then, Your Honours, are they dropping that from the
21 indictment? Is the Prosecution willing to drop that from the indictment?
22 That's my question.
23 JUDGE ORIE: No, no. Your questions are about facts, Mr. Ivetic.
24 If you question a witness, you do not ask a witness: Is the charge in
25 the indictment accurate or not? You're asking him about facts. And
1 those facts have been dealt with in detail before this Court and seems in
2 respect of the matters you're raising in your questions, seems to be not
3 in dispute and repetitious, and that's the reason why I intervened.
4 Please proceed.
5 MR. IVETIC: Thank you.
6 JUDGE ORIE: Mr. Vanderpuye, if you want to ...
7 MR. VANDERPUYE: There's just a couple of things, Mr. President.
8 Paragraph 13 is what Mr. Ivetic was referring to in the statement. The
9 witness states that the mortar detection equipment was not completely
10 accurate, and at paragraph 14, in the last line of that paragraph, he
11 specifically refers to --
12 JUDGE ORIE: Cymbeline.
13 MR. VANDERPUYE: -- the Cymbeline system.
14 JUDGE ORIE: Yes. That of course, Mr. Vanderpuye, there was no
15 need to repeat what I already brought to the attention of Mr. Ivetic.
16 Cymbeline was mentioned by the witness.
17 MR. IVETIC: But, Your Honours --
18 JUDGE ORIE: And we are not going to enter into a debate. This
19 is not a debating club. This is a court of law.
20 You may proceed.
21 MR. IVETIC: It is, Your Honours. And for the record, so that
22 the record is abundantly clear, this paragraph also talks about another
23 radar system. The witness has mentioned another radar system, so I'm
24 perfectly entitled to try to determine whether Cymbeline is the one that
25 is inaccurate or it is the other system that he's talked about and to get
1 that information so we have a full picture of what happened in August of
2 1995 when General Smith decided to call for air strikes against the
3 Serbs, which is a critical point to the reliability of General Smith and
4 all his evidence that has been presented by the Prosecution.
5 JUDGE ORIE: Put a focused question on that saying: You're
6 talking about the Cymbeline system, you're talking about another system,
7 was that other system or was it only the Cymbeline system which was
8 inaccurate or were both inaccurate. Then you have a clear, focused
9 question which meets all the needs of the Defence and gives clear
11 MR. IVETIC: And which would have been a compound question.
12 JUDGE ORIE: Mr. -- Mr. -- I said no debating club.
13 Please proceed.
14 MR. IVETIC: Thank you.
15 Q. Am I correct, sir, that with respect to the Cymbeline system it
16 had to be switched on after you first hear the firing start and that you
17 had to manually move around the radar to have that system function?
18 A. I have no knowledge of this. I know that the French used it.
19 I don't have specific knowledge of how the system worked.
20 Q. Is your -- is the system that you talked about on Mount Igman, am
21 I correct that that was specifically aimed at the Bosnian Serb positions
22 to track for purposes of the rapid reaction force located thereupon to
23 track any potential mortar rounds coming from Bosnian Serb forces?
24 A. I think that the radar covered the entire area but I don't know
25 in detail. I think at any rate that the radar covered the air space over
2 Q. And to be clear now if we can dilate upon the incident known as
3 the Markale II shelling which occurred in late August of 1995 and the
4 final report prepared by BH command, authorised by General Rupert Smith,
5 your superior, that conclusively determined that the shells must have
6 come from the Serb side were relying upon this Cymbeline radar detection
7 system which you have identified as being inaccurate?
8 A. At the same time there was also another radar system that was
9 present, and I take it that also the results of this were jointly
11 Q. Sir, the report references the Cymbeline radar system. I believe
12 the other radar system was not called the Cymbeline radar system, am I
14 A. That at any rate is correct.
15 Q. Do you know if the other radar system that was specifically aimed
16 at the Serb artillery was ever consulted for purposes of determining the
17 source and origin of fire for the Markale II incident that occurred in
18 August of 1995?
19 A. I don't recall whether in the report it said anything about
20 observations with the other radar system. However, you should look at
21 the report. I'm sure that would state it if it was there. I don't
22 recall that.
23 JUDGE ORIE: Mr. Ivetic, where the witness has -- if the witness
24 has no knowledge about details, then we should focus on those sources
25 which could provide us with the details of all this. Would you please
1 keep this in mind.
2 MR. IVETIC: Yes, Your Honour.
3 Q. I'd like to focus on this incident known as the Markale II
4 incident in August of 1995 and the subsequent UNPROFOR investigation or
5 investigations, as the case may be. I'd like to focus on your Rule
6 92 ter statement from 1996, which is in e-court, and that is P1165 MFI,
7 and page 4 in the English and the B/C/S and paragraphs 13 through 14.
8 And here you talk about a -- about one of the five shells striking a roof
9 of a building and the results that occurred. And I want to ask you, am I
10 correctly interpreting your statement as implying that one of the shells
11 detonated above ground after striking the roof of a building sending
12 shrapnel down from a great height? Is that accurate as to your
13 understanding of this incident?
14 JUDGE ORIE: Could we first ask a different question to the
15 witness. If you could stop -- if you would stop for a second. Do you
16 have any personal knowledge about this incident, beyond what you may have
17 read in the reports that were written about it?
18 THE WITNESS: [Interpretation] Yes. The incident happened at the
19 time I was in the staff building at Sarajevo, so actually on the day
20 itself I was immediately informed about it. And also the UNMOs of the
21 headquarters and the head of UNMO was immediately ordered to do a
22 thorough inquiry into this, and so to that extent I am informed about
23 this. And also in the consultations in response to the report issued by
24 the head of UNMO, that was something I was participant in as well. So
25 I was informed in that sense. Other than the retrospective observations
1 of the damage to the building, I did not have an immediate experience of
3 JUDGE ORIE: Mr. Ivetic. Let's keep this in mind for after the
4 break because we are at the time of the break, to know where the source
5 of knowledge of the witness lies.
6 Witness, you're invited to follow the usher. We take a break of
7 20 minutes.
8 [The witness stands down]
9 JUDGE ORIE: We take a break and we resume at quarter past 12.00.
10 --- Recess taken at 11.57 a.m.
11 --- On resuming at 12.16 p.m.
12 JUDGE ORIE: Before we continue, Mr. Vanderpuye, as matters stand
13 now, how much time do you think you would need for re-examination?
14 MR. VANDERPUYE: Thank you, Mr. President. Good afternoon. As
15 things stand right now it seems to me it would be 15 or 20 minutes.
16 [Trial Chamber confers]
17 JUDGE ORIE: Mr. Ivetic, the Chamber has considered the way in
18 which the cross-examination developed. We have another break. The
19 Chamber expects you to finish at 2.00 and then there will be 15 minutes
20 left for Mr. Vanderpuye, and as matters stand now at this moment the
21 Chamber has no questions. Of course, that could change.
22 Then could the witness be escorted into the courtroom.
23 Meanwhile, I use the --
24 [The witness takes the stand]
25 JUDGE ORIE: The witness is there already.
1 You may proceed, Mr. Ivetic.
2 MR. IVETIC: Thank you, Your Honour.
3 Q. General, I'd like to clear up the issue of what actually you
4 reviewed, what reports you reviewed since we have been using general
5 terms, and I think that the Chamber might be under the misapprehension
6 that you actually reviewed the written reports for Markale. I think the
7 easiest way to do this is to look at your 2006 statement, which is
8 65 ter 1D00917, and it's page 5 of the same in English, page 9 in the
9 B/C/S, and it's paragraph 23 that I would like to go over with you.
10 An if you can follow along with me, sir, I'll read into the
11 record the relevant portion:
12 "I have read documents numbered R 001-5992 to R 001-6013 which
13 pertain to the shelling of Markale market on 28 August 1995. I had not
14 read all these reports before, and I had based my opinion stated in
15 paragraph 14 of my statement on my recollection of a verbal briefing by
16 the chief UNMO in Sarajevo. I seem to recall that briefing was addressed
17 to our small circle of senior staff that included General Smith, myself,
18 the heads of G-3 and G-2, and the respective military assistants. G-2
19 was the head of the intelligence branch and the G-3 was head of the
20 operations branch. I think we discussed the preliminary results of the
21 investigation. I further believe that the direction of fire was
22 discussed because not only the distance matters. I have checked my notes
23 of that day and I have recorded that I was briefed that the shell came
24 from the south south-west. I also have recorded that one of the shells
25 hit a roof. In any event, I have no reason to doubt anything in the
1 reports that I've just read. I'm providing a photocopy of the relevant
2 pages of my notes to accompany my statement."
3 Now, sir, I hope I've been accurate and complete in reading the
4 entirety of this so that we can have agreement. Would you stand by this
5 paragraph of your 2006 written statement to the Office of the Prosecutor
6 as being truthful and accurate, and would you so testify today subject to
7 the solemn declaration that you have taken?
8 A. Yes. I still do.
9 Q. And now, apart from this oral briefing from the chief UNMO, do
10 you recall that upon instruction of General Smith, there was a cumulative
11 or final report that was prepared by the BH command undertaken by, I
12 believe, the G-2 officer, Colonel Powers, into the Markale II incident
13 that we have been discussing?
14 A. I know that also a written report was made of that.
15 Q. And by the way, in this 2006 report which is not in evidence, it
16 indicates or you indicate that your background is infantry and you have
17 experience with mortar units having commanded formations as high as a
18 division and specifically you commanded the 1st Division of the Dutch
19 army from 1996 to 1998, a unit that was comprised of four brigades and a
20 total of 12.000 soldiers and officers. Is that true and accurate, sir?
21 A. All of this is correct, but let me emphasise that my knowledge of
22 mortars does not stem specifically from my experience as divisional
23 commander because that is more from a distance. However, as
24 first lieutenant, I was in a support company and that company availed of
25 mortars and so I was trained in mortars and hence stems my specific
1 knowledge of mortars.
2 Q. Thank you, sir. Did Colonel Powers have any experience in
3 mortars, if you know?
4 A. I have no idea.
5 Q. Were there other experienced officers in the BH command with
6 experience and training in mortars, such as yourself?
7 A. Yes, I know that at any rate there was one specialist who was
8 also engaged by head of UNMO in the investigation, and somebody who had
9 knowledge of and experience with doing so-called crater analyses based on
10 which one might detect from which direction a mortar was fired.
11 Q. Now, sir, at transcript page 7451, lines 10 through 20, actually
12 lines 13 to 20, General Rupert Smith testified subject to the solemn
13 declaration of this Tribunal, answering why he selected
14 Lieutenant-Colonel Powers of the intelligence division to do the report
15 on Markale, testified as follows and I'll read it for you so you can get
16 it in a language you understand and follow:
17 "Q. Why do you -- why did you select him to do this second
18 reiteration of investigation and analysis? Didn't you have trained
19 artillery officers under your command.
20 "A. Not in my headquarters, I didn't. I can't -- I can't
21 remember why I chose him in particular.
22 "Q. Were there trained artillery officers in either your
23 subordinate command or in your superior command, UNHG Zagreb.
24 "A. There might have been but there weren't in my headquarters."
25 Is General Smith's testimony that there were no trained officers
1 in artillery in the BH command accurate?
2 A. There was no artillery specialist among the officers in the
3 command, and to that extent General Smith was undoubtedly right. I do
4 know that the head of UNMO had somebody in his team, this is unlikely to
5 have been an officer, however, with the experience that I just pointed
6 out for doing crater analyses.
7 Q. And we keep talking about the chief of UNMO. I want to ask you,
8 sir, is it your recollection, that in fact the chief the UNMO was part of
9 the investigative team that came up with the definitive report that was
10 authorised by General Smith as to the Markale shelling, Markale II
12 A. Well, what I know is that the head of UNMO was given the orders
13 to do that investigation and I do assume that it was also he that was in
14 charge of that.
15 Q. Do you know or recall if anyone from Sector Sarajevo of UNPROFOR
16 was included in this investigation?
17 A. I don't recall, but I don't rule it out either.
18 Q. Do you recall a Colonel Demurenko, the Chief of Staff of Sector
19 Sarajevo of UNPROFOR?
20 A. I recall that name, yes.
21 Q. Do you recall if he was consulted and if he had any role in the
22 investigation that was authorised by General Smith and carried out by
23 Lieutenant-Colonel Powers?
24 A. I have no recollection of that.
25 Q. Okay. Now, if we look at paragraph 24 at the bottom of the page
1 in the English of the 2006 statement that we have up on our screens in
2 e-court, it's it starts off as follows, sir:
3 "I recall that it was very important that the source of fire be
4 determined because we did not rule out any possibility including the
5 possibility that the Bosniaks had shelled their own people. I have never
6 seen or have any evidence that the Bosniaks shelled their own people,
7 although I heard from my predecessor, General van Baal, that it might
8 have happened during his time.
9 "And elements to be considered were that if there was no sound to
10 be heard, the shell must have been fired from far away. And the fact
11 Cymbeline did not pick up anything meant the trajectory was very low.
12 I remember that the investigation brought us to the conclusion that it
13 was the Serb forces who did the shelling, I don't remember the names of
14 all the investigators, but I do remember that the chief UNMO was part of
15 the team."
16 And now I ask you, sir, is this selection that I've just read
17 from your 2006 statement truthful and accurate to the matters contained
18 therein such that you would testify the same today?
19 A. Yes. And I would still support that statement.
20 Q. And I want to first ask you about the predecessor,
21 General van Baal, and his knowledge of incidents that might have happened
22 during his time. Did he provide any specifics for you, and did one of
23 those incidents involve the Markale marketplace?
24 A. As to what General van Baal told me, he said in his period there
25 was also a shooting in the centre of Sarajevo or it was fired, and that
1 in retrospect impressions were strong that they were done by the Muslims
2 themselves. And so he warned me that should something like that ever
3 happen again, where this was a possibility that would normally be very
4 unlikely was still a possibility to be thoroughly investigated.
5 Q. Thank you, sir. Now here you mention again the fact that the
6 firing of the round was not heard. And the question I have for you, sir,
7 is -- and again if you don't know, then please tell me. But if the
8 firing shot is not heard, how does one know to turn on the Cymbeline
9 system to therefore then check if there is any low trajectory or high
10 trajectory shots? In one doesn't hear the round how is the Cymbeline
11 system known to be turned on at all?
12 A. Well, yes, that's a question I cannot answer. However, let me
13 try and clarify, if I may. First of all, taking the direction from which
14 the mortars were fired, if they had been fired from the city, we would
15 have heard it, because the distance between the marketplace and the
16 border of the enclave that was such a limited distance we could have
17 heard it even in the headquarters. And that was not the case. And also
18 the UNMOs did not hear the shots. The Cymbeline was always oriented
19 to -- well, oriented in such a way that the majority of the area over the
20 air space of Sarajevo was covered. It did not pick up on the mortar
21 fire. However, it is equally likely that the mortars were actually fired
22 from a larger distance.
23 Q. Now, sir, I'd like to show you what has been marked as 1D607
24 which is a video which we have a transcript of in the e-court system.
25 It's 13 minutes in total, and I think it will show both verbally and
1 visually the matter contained therein which is the analysis of a
2 Colonel Demurenko of Sector Sarajevo as to this incident. And I'd like
3 to ask you to follow that, sir, and then I'll have some questions as to
4 the items that the gentleman is talking about, again based upon your
5 knowledge of both mortars and of your knowledge of the investigation that
6 was carried out and the conclusion that were reached by the BH command.
7 MR. IVETIC: And, Your Honours, I don't know -- are we going to
8 need to play this one twice?
9 JUDGE ORIE: If we have to depend on text, we have to. I have
10 one additional question, Mr. Ivetic. We have spent quite a lot of time
11 on technical details of the 28th of August, 1995, event. This appears to
12 be now new evidence? It has not been dealt with with the previous
13 witnesses who testified about those details? Is that --
14 MR. IVETIC: Are we talking about the video? That's correct the
15 video has not been shown yet in the proceedings.
16 JUDGE ORIE: And you have received it recently or ...
17 MR. IVETIC: We had it on the list to be used with General Smith,
18 but as Your Honours might recall I was not permitted to finish the --
19 I was limited in my cross-examination of General Smith and this video was
20 not able to be shown at that time.
21 JUDGE ORIE: Yes. You had chosen at that time to rather ask
22 other questions rather than show the video, if I understand you well.
23 Then let's have a look at the video.
24 MR. IVETIC: Thank you.
25 [Video-clip played]
1 MR. IVETIC: I don't know why we have the garbling.
2 [Video-clip played]
3 MR. GROOME: Your Honour, if it assists, if Mr. Ivetic provides
4 us with a DVD we can try it on our system. There is obviously something
5 very wrong here.
6 JUDGE ORIE: Yes, I can follow it but with some difficulty, I
7 must admit.
8 MR. IVETIC: It should be much clearer. The version I was
9 viewing last night was much clearer, but perhaps we can try it with the
10 DVD with the assistance of the usher.
11 JUDGE ORIE: Yes. Could the usher assist? Perhaps meanwhile you
12 already continue to the extent possible because otherwise ...
13 MR. IVETIC: Yeah, no problem.
14 Q. Sir, I'd like to ask you: Are you familiar from your experience
15 as an officer trained in mortars that mortars come with what's called
16 firing tables as to the number of charges that can be placed on a mortar
17 shell and the distances that a particular shell or round will travel
18 based upon those charges?
19 A. Yes. With a mortar, at any case at 120-millimetre mortars you
20 can put different charges or loads on it and they would determine the
21 reach of that specific mortar.
22 Q. Thank you, sir.
23 MR. IVETIC: Now with the assistance of Ms. Stewart I would ask
24 that the video be played first one time through for the interpreters and
25 then afterwards a second time through with interpretation.
1 THE INTERPRETER: Interpreter's note: We did not receive the
3 JUDGE ORIE: The interpreters have not received the transcript,
4 they tell us, Mr. Ivetic. Is it true that I saw one on my screen a
5 second ago? Otherwise, could they be printed out and provided to the
6 interpreters and meanwhile we will proceed?
7 MR. IVETIC: Let me consult, Your Honours.
8 [Defence counsel confer]
9 JUDGE ORIE: Mr. Ivetic, let's try to take care that the pages
10 will be printed, four or five pages, for all the booths and then we can
11 look at it in a more meaningful way.
12 MR. IVETIC: Agreed, Your Honour, and I've asked for my
13 colleagues to assist me to have that printed. In the interim I propose
14 to go to another topic so that we can return and make use of our court
16 JUDGE ORIE: Yes, let's do that.
17 MR. IVETIC:
18 Q. Sir, I'd like to move to a topic that you discussed in some
19 detail yesterday, the issue of humanitarian convoys and the enclaves.
20 I want to ask you, sir, first of all, given the prevailing situation on
21 the ground, did you at BH command consider that the parties had a right
22 to ensure that weapons and other materials were not smuggled as part of
23 humanitarian convoys according to your understanding of the regimes and
24 the agreements that were in place?
25 A. Well, yes, it's clear that the convoys were not intended for the
1 smuggling of arms, and the UNPROFOR command was definitely clear that if
2 you were to violate that rule, that approval for further convoys would be
3 much endangered so that you better never do that.
4 Q. Now, do you recall during your tenure in Sarajevo that there were
5 repeated incidents of smuggling of weapons into the enclaves by way of
6 humanitarian convoys and into Sarajevo by way of the Butmir tunnel and
7 the Igman road?
8 A. Ah, well, these are two questions again. I remember one instance
9 where there were weapons found in what I believe was a UNHCR convoy, but
10 at any rate a humanitarian convoy, and this was given much play by the
11 media. And the only thing I can say about it was that it was such a
12 coincidence, much of a coincidence that these arms were discovered while
13 there were television crews presents. But, yes, I recall that incident.
14 And the second question, this was a tunnel that had been dug below the
15 airport of Sarajevo and through the tunnel it is true goods were smuggled
16 into the city. I take it that this was generally food but I can't rule
17 out that also weapons were smuggled into the city that way.
18 Q. This tunnel ran underneath the airport, that is to say ran
19 underneath the area that was held and occupied by UNPROFOR forces in
20 Sarajevo; is that correct?
21 JUDGE ORIE: Mr. Ivetic, any dispute about this? We have heard
22 about this tunnel, where it is, several times.
23 Mr. Vanderpuye, is there any dispute about this? Is there any
24 dispute about a televised incident of weapons having been found in a
25 humanitarian convoy?
1 MR. VANDERPUYE: Mr. President, I think we've seen that in the
2 record of the proceedings so far. We don't dispute that.
3 JUDGE ORIE: No dispute about that. Let's focus on what is not
4 in dispute. Any follow-up questions, any new information, please
5 proceed. But let's not ask this witness where the tunnel was. We've
6 heard that five or ten times where it's not in dispute.
7 MR. IVETIC: Your Honours, yesterday for approximately one hour
8 and ten minutes, the Prosecution asked this witness about --
9 JUDGE ORIE: Mr. -- Mr. -- Mr. Ivetic --
10 MR. IVETIC: May I for the record state my position, Your Honour?
11 JUDGE ORIE: Mr. -- Mr. --
12 MR. IVETIC: Are you preventing me from making a record,
13 Your Honour?
14 JUDGE ORIE: Mr. Ivetic, I prevent you from interrupting me. May
15 that be clear. You may proceed, you may put your next question to the
16 witness, and if at the very end you want to put something on the record
17 you're invited to do so. Please proceed.
18 MR. IVETIC:
19 Q. In paragraph 67 of your statement you talk about having to leave
20 Sarajevo via the Igman road at the conclusion of your tour of duty. Is
21 it a fact that the Bosnian Muslims had a method for transporting fuel via
22 a pipeline on that road from Igman to Sarajevo?
23 A. I have no knowledge of the existence of that pipeline.
24 Q. You mentioned yesterday the fuel situation in the enclave -- in
25 enclaves in relation to the discussion of the humanitarian convoys.
1 I want to look at a Prosecution document with you that is numbered
2 65 ter 25915, and unfortunately since we still only have a B/C/S version
3 of it I will have to read its contents to you. Before I switch languages
4 I will note that it is dated the 12th of May, 1995, from the command of
5 the 1st Brcanska Infantry Brigade and is an order of Colonel Andric of
6 the VRS.
7 And now I will switch to B/C/S to read you the title of this
8 document and the first two paragraphs of the same, with the assistance of
9 the translators:
10 [Interpretation] "Prevention of smuggling of fuel of the UNPROFOR
11 UNHCR -- by the UNPROFOR, UNHCR and others. Order. Pursuant to
12 available information, UNPROFOR, UNHCR and members of other international
13 organisations are transporting illicitly fuel for the needs of the
14 Muslims in the Sarajevo, Gorazde, Zepa and Srebrenica enclaves. The fuel
15 is being smuggled in double-bottom tanks, and large volume tanks on
16 combat and non-combat vehicles which are then being emptied within the
17 enclaves, whereas the tanks are left with small quantities of fuel
18 sufficient to return from the enclave to the territory of the
19 Federal Republic of Yugoslavia and the Republika Srpska."
20 [In English] Sir, did you have occasion to hear about complaints
21 and incidents of this nature where excess fuel was smuggled into the
22 enclaves for the use of the Bosnian Muslim forces within those enclaves?
23 A. No. This is the very first time I hear about this, and never was
24 a complaint received about this at the headquarters in Sarajevo in the
25 period that I was there.
1 Q. Would you agree with me that such concerns on the parts of any
2 side in the conflict would constitute a legitimate reason to inspect and
3 limit humanitarian convoys relating to fuel into the enclaves?
4 A. If humanitarian convoys were indeed being abused for that
5 purpose, I could imagine that this would be a reason to inspect them.
6 However, I never heard from even a single situation in which this was the
8 Q. I'd now like to move to another document, number 19538, again a
9 Prosecution document, dated January 1996 from the Bosnian MUP SDB Tuzla.
10 And if we could first look at the first page of that to see what this
11 document purports to be, I would then, after that -- well, let me read
12 it, the part that I'm focusing on in the English. If we could see here,
13 sir, this document says:
14 "Here enclosed please find an overview of the available
15 information on murders and criminal acts, prostitution and the like in
16 the area of Srebrenica during the period leading up to the occupation of
17 this safe area."
18 And now I'd like to turn to page 6 in both languages to present
19 you with a finding of this document. And it is in the middle of the
20 page, in the English, the precise middle of the page, and I'll read it to
21 you, sir. It says:
22 "In addition to what has been said so far, in our conversations
23 with refugees from Srebrenica, we also recorded information on a number
24 of criminal offences committed by members of the 28th Division and
25 certain leaders of the municipal organs of Srebrenica. These contributed
1 to the de-establishment of the overall situation and affected the
2 security of this enclave. These criminal activities involve persons
3 close to the aforementioned categories and represented one of the links
4 in the chain of the sale of humanitarian aid and oil on the black market,
5 the illegal sale of weapons, and so on. Such a situation reflected
6 largely on the relationship between the military and civilian
7 authorities, it has already been mentioned that in all of that, a key
8 role was played by the command cadre of the 28th Division who did their
9 best to discredit and thwart by threats and coercion the work of the
10 civilian organs, judiciary, the SJB, et cetera."
11 And then this document goes on to list specifics of the charges
12 against Naser Oric and many others detailing various black-marketeering
13 and smuggling related to humanitarian aid and fuel. Sir, did UNPROFOR
14 have such information as to what was going on in Srebrenica at the time
15 that you were Chief of Staff of the BH command?
16 A. If you expect an answer from me about this, I absolutely have no
17 knowledge of this, nor was anything like this ever reported to me. If
18 something like this had happened and there was knowledge about it within
19 UNPROFOR, then that should have been with the UNMOs or the members of
20 DutchBat. They never reported to Sarajevo about anything like that.
21 Q. Would you agree with me that this, and again this is information
22 from the Bosnian Muslim SDB, if such information -- if such activities
23 were ongoing or were suspected to be ongoing, would that also be a
24 legitimate reason to inspect convoys and/or restrict convoys going into
25 the enclaves of Srebrenica?
1 A. I think that this would only be justified if there were clear
2 indications that those goods had been smuggled in with the help of UNHCR
4 Q. And now a couple of times you've mentioned UNHCR convoys. As far
5 as UNHCR convoys are concerned, is it correct that UNPROFOR did --
6 neither had a role nor authority to inspect these convoys and thus had no
7 responsibility or knowledge as to what was actually in them?
8 A. No. No. That was not one of the tasks of UNPROFOR to check that
9 but UNHCR is an organisation which was very much aware that their own
10 credibility would be harmed if they were to abuse their authority.
11 Q. And the one incident that you do recall where ammunition was
12 found in a convoy was an UNHCR convoy, am I accurate in that
14 A. As far as I can recall, yes.
15 Q. Okay. Thank you.
16 [Defence counsel confer]
17 MR. IVETIC: Your Honours, with the assistance of the usher
18 I would like to present the printed transcripts of the video, 1D607, to
19 be distributed to the booths.
20 JUDGE ORIE: Could the usher assist?
21 MR. IVETIC: Your Honours, I have eight copies. I'm told that
22 should be enough for even the Judges and the witness to have in front of
23 them as it might assist.
24 JUDGE ORIE: Yes, it's primarily for the booth. They have to
25 read it. For the Judges if it's in e-court we always can have it on our
1 screens. But ...
2 MR. IVETIC: I will assume that's going to take a few moments so
3 I will go on with [overlapping speakers]
4 JUDGE ORIE: Yes, if you continue with the remainder then.
5 MR. IVETIC:
6 Q. I want to ask you about the bombings that occurred -- excuse me,
7 the NATO action that occurred against the Bosnian Serb Army in May of
8 1995. And you discussed this at paragraph 30 of your Rule 92 ter
9 statement, which is P1165 marked for identification, page 7 in the
10 English and page 7 in the B/C/S. Now, we've already touched upon this,
11 and it started when the Serbs took and fired weapons from the weapons
12 collection points. And I want to ask you, sir, isn't it true that when
13 we talked earlier about your discussions with Minister Silajdzic where
14 you said that the Muslims were provoking the Serbs and you warned about
15 potential air strikes against the Muslim side that this is again the same
16 month and the same time period when all this is happening?
17 A. It's at any rate the same month. The stealing of the weapons
18 from the weapon collection point happened late May, the discussion with
19 Minister Silajdzic was, as I recall it, halfway through May.
20 Q. Thank you, sir. And if we look at paragraph 29 of your
21 statement, which is on this page I believe at the top, indeed the ABiH
22 had been shelling with heavy weapons against the Serbs, and you and
23 General Smith convinced them to stop, and the Serbs stopped. And then it
24 says, in this paragraph, that after about one week, both sides started
25 shelling again. So the question I have for you, sir: Does this appear
1 to be, again, a continuation of the discussions that you had with
2 Mr. Silajdzic where the Muslims were provoking fire and that this is
3 again a situation, a week or two after that, when again both sides are
4 firing at one another when the decision was made to strike the Serbs with
5 NATO air forces?
6 A. I know that after the first consultation with Minister Silajdzic,
7 there was a period of about a week in which the number of incidents
8 drastically receded, but after about a week it became increasingly more
9 serious and it was soon at the old -- at the former level again.
10 Q. Thank you, sir. Now the question I have for you is: If the
11 Muslims were the ones provoking the fire, if after a week both sides
12 resumed shelling one another, why was the decision made only to subject
13 the Serb side to actual air strikes? Who made that decision and why?
14 A. Undoubtedly because it was the Serbs who were using the heavy
16 Q. But correct me if I'm wrong here, sir, your paragraph 29 ends
17 with the phrase:
18 "I was not pleased for very long, as within one week the shelling
19 started again from both sides."
20 Does that refresh your recollection as to whether the
21 Bosnian Muslim side was also using heavy weapons, sir?
22 A. I know that the firing back and forth was resumed. I don't
23 recall, however, whether from the Bosnian side heavy weapons were used
24 and the only time that something like that may have happened, it was very
25 incidental, where maybe a mortar was gotten out of hiding and then fired
1 and then quickly hidden away again. Definitely if this was from a
2 residential area that that happened, it would have been very hard to
3 identify exactly where; and secondly, it would be very hard to act
4 against this because then one would run the risk that the civilian
5 population would become a victim. And it was different with a purely
6 military BSA setups outside the environment of civilian population, at a
7 time that heavy artillery is used there. This was simply with a purpose
8 to the air strikes.
9 Q. So the BH command decided to do air strikes against the
10 Bosnian Serbs because it was easier for them to do so even though both
11 sides had violated the accords, is that what you're telling us?
12 A. No. That is not what I'm telling you. You're putting links
13 between answers that I gave and that I didn't intend like that in my
14 mouth. The air strikes were done purely and only because heavy arms had
15 been stolen from the weapon collection points that were under the UN
16 control, and the BSA did this, not the BiH, and subsequently the BSA also
17 was asked to return those weapons within a certain deadline, and this
18 instruction was not followed up, and therefore air strikes were started.
19 Q. Thank you.
20 MR. IVETIC: If I can inquire, have the booths received the
21 transcript of the 1D607?
22 JUDGE ORIE: Yes, they have been distributed.
23 MR. IVETIC: With the assistance of Ms. Stewart, I'd like to
24 switch gears back to August of 1995 and have the viewing of this video.
25 [Video-clip played]
1 JUDGE ORIE: The quality --
2 MR. IVETIC: If we can stop it, I'd like to try one other thing.
3 I really have no idea for why the quality is like that.
4 JUDGE ORIE: Is there another way, Mr. Ivetic? We have now a
5 written transcript. I do not know what is shown in the video, if it's
6 just Mr. Demurenko speaking.
7 MR. IVETIC: It is not.
8 JUDGE ORIE: It's not. Okay. Then my solution that came to my
9 mind might not work. Another way of dealing with it is that we all read
10 it during the next break and that you show the portions where there is
11 anything explained and then we don't have to play it twice.
12 MR. IVETIC: Your Honour, except it's through the entirety of it
13 that it is. I'm trying to get my original up on the screen in front of
14 me. If Your Honours will bear with me, I think that one should be the --
15 MR. VANDERPUYE: If I could just interject, we will try to play
16 it through Sanction and see if we can resolve the problem relatively
17 quickly, Mr. President.
18 [Video-clip played]
19 JUDGE ORIE: Seems to be the same problem.
20 MR. IVETIC: I believe I now have it coming in through --
21 JUDGE ORIE: Okay, let's try it again.
22 Mr. Ivetic, I suggest that you try to prepare it during the break
23 and -- unless there is any reason to believe that we have it on our
24 screens within the next 15 to 20 seconds.
25 MR. IVETIC: No, Your Honour, the computer over there is not
1 co-operating with me. It seems to be stalled, so I'd like to go back to
2 asking other questions.
3 JUDGE ORIE: And still we could -- if it would work I think we
4 could read it during the break.
5 MR. IVETIC: I think we have it up on the screens now,
6 Your Honours.
7 JUDGE ORIE: We have the statement of the witness on our screens
8 at this moment.
9 MR. IVETIC: The video, it should be being shown.
10 [Video-clip played]
11 MR. LUKIC: It's still the same audio, Your Honours. I'd like to
12 go back to asking questions and try to resolve it during the break.
13 JUDGE ORIE: Yes.
14 MR. IVETIC:
15 Q. Now, sir, if we could return back to May 1995, am I correct that
16 the hostage taking that you talked about in your statement and in your
17 direct examination, the alleged hostage taking by the Bosnian Serbs of
18 UNPROFOR personnel, only occurred after NATO started bombing persistently
19 the Bosnian Serb positions?
20 A. I wouldn't call it an alleged hostage taking. It was very
21 clearly a hostage taking, but, true, it happened after the air strikes
22 had been done.
23 Q. Am I correct that not a single UNPROFOR casualty resulted from
24 their detention?
25 A. Yes. I can confirm that.
1 Q. Am I correct that for the most part, personnel were merely
2 confined to their quarters and placed under armed guard except for a few
3 incidents where they were put in public places?
4 A. Yes. Both happened.
5 Q. And am I also correct that the air strikes of NATO aircraft were
6 called down or guided by forward air controllers who were embedded with
7 the various UNPROFOR units throughout Bosnia?
8 A. No. The latter is absolutely incorrect. I'm not speaking of
9 close air support here. Close air support is led by forward air
10 controllers but these were air strikes, so targets bombed on predestined
11 locations, pilots using their own navigational means.
12 Q. Well, let me ask you this, sir: Was it a known fact that
13 UNPROFOR made known that as part of its units out in the terrain, there
14 were forward air controllers, including members of the SAS and even
15 Unit 108 of the DutchBat, that were embedded with the UNPROFOR units out
16 in the terrain whose role could have been to direct NATO strikes against
17 targets on Bosnian Serb territory?
18 A. Yes. I know that in a number of locations, inter alia the
19 enclave of Srebrenica, had forward air controllers present who could be
20 used for close air support, but 1st May there was a very different
21 situation. These were predetermined targets on Serb territory, so not
22 inside the enclaves, and so not places where forward air controllers were
23 being used.
24 JUDGE ORIE: Mr. Ivetic, could I ask one additional question?
25 What was -- had UNPROFOR provided assistance to NATO to define those
1 targets on Bosnian Serb territory?
2 THE WITNESS: [Interpretation] Yes. The targets that were
3 targeted were determined at UNPROFOR headquarters in Sarajevo and that
4 information was subsequently relayed to NATO with a request to fire
6 JUDGE ORIE: Please proceed, Mr. Ivetic.
7 MR. IVETIC:
8 Q. Would you agree that once NATO undertook these actions UNPROFOR
9 had essentially taken a side in the conflict and entered as a combatant
11 A. Well, that's a tricky question. It is true that at the time
12 the -- to deploy resources you become a party to the conflict because
13 you're using armed forces, and that was the case with UNPROFOR at that
14 time. But this is irrespective of the fact whether one chooses to side
15 with one or the other party. This is deployment of means to punish a
16 party that is breached specific agreements.
17 Q. I'd like to try and resolve any doubt by looking at a document
18 from this time period from General Smith, P1176, we can have that up in
19 e-court, it is dated 29 May 1995, and it is entitled, "Post air strike
20 guidance." And at paragraph 2, it said that the objective of the air
21 strikes has not been achieved. When we get that up, sir, I'll ask you if
22 you're familiar with this document that is now up on our screens in
24 A. Yes. I know it very well.
25 Q. And if we look at items 4, A through C, at the bottom of the
1 English and they are on the next page in the B/C/S, I believe, and I'd
2 like to ask you about these, and it's -- item A says:
3 "UNPROFOR no longer have a peacekeeping relationship with the
4 BSA. It has lost the consent of one of the parties. B, UNPROFOR is very
5 close to being an ally of the Bosnian government. It is very nearly no
6 longer impartial. Item C, UNPROFOR has used force to enforce a mandate.
7 There is now potential for confusion between force being used in
8 self-defence and for enforcement."
9 Do you agree with General Smith's own assessments as detailed
10 herein arising out of the use of force against the Bosnian Serbs in
11 May 1995?
12 A. Yes. That was the direct cause for him to write this assessment,
13 and he says, Well, you know, a border has been crossed, and this might be
14 interpreted as though UNPROFOR actually chose to be a party along with
15 one of the parties.
16 Q. Would you agree with me that his concerns existed from the moment
17 that the NATO air strikes began and thus created a legitimate reason for
18 the VRS to react as it did, given that it could be viewed that UNPROFOR
19 was no longer having consent of the party to operate and was viewed as
20 being close to an ally of the Bosnians?
21 JUDGE ORIE: Mr. Vanderpuye?
22 MR. VANDERPUYE: Thank you, Mr. President. I'm unclear as to
23 what Mr. Ivetic means by the BSA acting as it did, I don't know if he's
24 referring to the hostage taking or he's referring to other actions and
25 I think it would be better if he could clarify that for the record.
1 MR. IVETIC: Referring to the hostage taking.
2 JUDGE ORIE: Mr. Ivetic, it's a very composite question you have
3 put to the witness. You're asking for a judgement. I'm not going to
4 stop you from doing that although the Chamber usually expects witnesses
5 to focus on facts.
6 MR. IVETIC: Okay.
7 JUDGE ORIE: But you're invited to split it up and to make it
8 clear for the witness.
9 MR. IVETIC:
10 Q. Would you agree with me, sir, that these concerns that were
11 voiced by General Smith after the bombings also would have been -- could
12 be understood and divined from the beginning of the bombings themselves,
13 that is to say that these were things in everyone's mind at the beginning
14 of the NATO bombings in May of 1995?
15 A. Well, I still believe this is not a very clear question, or this
16 may just be me.
17 JUDGE ORIE: If it assists you, Mr. Ivetic, what you would like
18 to know, I think, is: Whether you could not easily foresee this to
19 happen at the beginning of the bombing.
20 MR. IVETIC: And whether BH command did, indeed --
21 JUDGE ORIE: Yes, well that's.
22 MR. IVETIC: That's the second follow-up.
23 JUDGE ORIE: Okay. Let's first ask the second one: Did the BH
24 command, UNPROFOR BH command, foresee that this likely would be the
25 result of the bombing they would undertake?
1 THE WITNESS: [Interpretation] We did foresee that this might
2 yield a risk for UN personnel in the territory of the Serbs. However, we
3 deliberately close to do the air strikes anyway because doing nothing,
4 not sanctioning violations of the treaties also wasn't an option. So we
5 consciously took that risk.
6 JUDGE ORIE: If you don't mind to interrupt you there, I think
7 the question by Mr. Ivetic was not whether you had foreseen that this
8 could create a risk but whether you foresaw that you would -- there was a
9 likelihood that you lose your peacekeeping relationship with the
10 Bosnian Serb Army and that it would bring you close to being an ally, and
11 that the --
12 MR. IVETIC: The confusion of the --
13 JUDGE ORIE: Yes, the confusion of your role as self-defence
14 against enforcement. That was the question. Whether that was foreseen
15 as a likely result of bombing.
16 THE WITNESS: [Interpretation] Well, I can't look in
17 General Smith's mind, but that the Serbs would interpret this as our
18 choice for one or the other party, I don't think that we foresaw that.
19 JUDGE ORIE: Mr. Ivetic, I am looking at the clock.
20 MR. IVETIC: I suggest we take the break now so I can try and get
21 this video sorted out and also have time for Mr. Vanderpuye's redirect.
22 JUDGE ORIE: By the way the last few lines, as far as the volume
23 on the English channel, were different, so -- well, at least it was for
24 me but I see it's my headphones.
25 We will first invite the witness to follow the usher and take a
1 break of 20 minutes.
2 [The witness stands down]
3 JUDGE ORIE: Before we take the break, I'd like to briefly deal
4 with two matters, yes, and we'll then have a break from 20 minutes past
5 1.00 until 20 minutes to 2.00. The first one, and we -- it's a leftover
6 from yesterday, the Chamber has considered the Defence request made in
7 court yesterday morning, the 2nd of May at transcript page 10535, for an
8 additional 21 days to respond to the Prosecution's 14th Rule 92 bis
9 motion and the Chamber denies this request. The regular deadline for
10 response has already once been extended by 30 days. This was clearly put
11 on the record on the 1st of March, 2013, transcript page 9503. The
12 Chamber does not consider that good cause has been shown or that it would
13 be in the interests of justice to grant a further extension of time.
14 That's the first matter.
15 The second matter - and I specifically also draw the attention of
16 Mr. Mladic to the second one - with regards to the alleged non-verbal
17 communication of the accused during the testimony of Evert Rave on the
18 24th of April of this year, the Chamber has verified that the accused
19 made certain gestures during a specific portion of the witness's
20 testimony. However, taking into account the nature of these gestures,
21 the subject matter of the testimony at the moment these gestures were
22 made, and the witness's statement to the victims and witnesses section
23 that he was not shaken by these gestures, the Chamber will attach no
24 consequences to the accused's actions in this particular instance.
25 Nevertheless, the Chamber and again strongly urges the accused to
1 refrain from expressing himself either in words or gestures during the
2 testimony of any witness and reiterates that it shall consider on a
3 case-by-case basis the measures to be taken in consequence.
4 We take a break and we'll resume at 20 minutes to 2.00. You will
5 have another 20 minutes, Mr. Ivetic.
6 --- Recess taken at 1.21 p.m.
7 --- On resuming at 1.45 p.m.
8 JUDGE ORIE: Could the witness be escorted into the courtroom.
9 Mr. Ivetic and Mr. Vanderpuye, the Chamber apologises for the
10 late start. You have until 5 minutes past 2.00. Further I'd like to
11 hear from the parties whether the 14th and the 15th of May cause any
13 MR. GROOME: Your Honour, it doesn't and I've sent an e-mail,
14 which I'm sure the Chamber will see after the court, with a revised
15 schedule that would make a proposal for dealing with or having the
16 witness available for the videolink.
17 JUDGE ORIE: Yes. And then most likely would start an -- earlier
18 that afternoon with another witness -- and then move to the videolink for
19 two hours, from 5.00 to 7.00 on the 14th, and then so as not to lose any
21 MR. GROOME: Yes, the witness will be available for that time
23 JUDGE ORIE: Yes. Mr. Lukic, no problems as far as the Defence
24 is concerned?
25 MR. LUKIC: Probably not, but we have to see the proposals about
1 the witnesses but probably we will try to do our best to fit in.
2 JUDGE ORIE: Yes, and I take it that appropriate measures will be
3 taken so that Mr. Mladic will not be without food, perhaps, because if we
4 are sitting until 7.00 or 8.00 that of course changes the situation.
5 MR. LUKIC: Thank you, Your Honour.
6 JUDGE ORIE: Therefore the UNDU should be properly informed.
7 [The witness takes the stand]
8 JUDGE ORIE: Mr. Ivetic you may further proceed.
9 MR. IVETIC: Thank you, Your Honour. I propose to show a segment
10 of the video 1D00607. For the record it's the segment going from 1
11 minute and 48 seconds to 9 minutes and 48 seconds. On the transcript of
12 the document in e-court, on the English, the part starts with the
13 beginning of the fourth paragraph on the first page, on the B/C/S,
14 I presume it is also that part which is "Firstly, if you know the main
15 serious facts for us is the following." And I propose we play it through
16 twice per procedure in this courtroom and then I'll have some follow-up
17 questions. Here is the first playing.
18 [Video-clip played]
19 MR. IVETIC: I apologise, we don't seem to have audio, at least
20 I don't.
21 [Video-clip played]
22 JUDGE ORIE: I don't have audio.
23 MR. IVETIC: I don't know what to do to get audio.
24 JUDGE FLUEGGE: Could it be that --
25 [Video-clip played]
1 "Firstly, if you know the main serious facts for us is following.
2 This is a material, maybe one portion of whole material of UN specialist
3 about the shelling. This is a -- such report with -- stated on French
4 language but with a very strange conclusion. This is a conclusion
5 include idea about this shelling was from Serbian side, I mean
6 Bosnian Serbs. This is a small picture which explained angle on the
7 street, Marshal Tito, and angle which was between ground and shell,
8 mortar shell. It's very important for us. I will explain it following
9 afterwards. This is a copy of photo pictures of this place. This is the
10 street. This is a place where is exploded from the shell. This is very
11 important for us, picture. As you can see, this is a direction of fire.
12 This is place of explosion. And in accordance with investigation,
13 direction of fire was 176 degrees, or in accordance with French custom,
14 2976 mils. Really, this is a south-east area. It's very important for
15 us also. This is a picture about -- it's very interesting this material
16 of Bosnian police. I mean, government Bosnian police about angle between
17 ground and shell. As you can see, 70 degrees. And the last paper is --
18 this is small slice of copy from map. This is my idea which I can
19 explain all this paper.
20 "In accordance with this material, I believe that specialist
21 which was participated in the investigation was very professional and
22 honest people. As before, in accordance once again with this official
23 investigation and material we have any picture. It's symbolic, you know.
24 This is Sarajevo. This is a confrontation line, green. This is a two
25 building and place where is explodes this shelling. In accordance with
1 this material, direction of fire was 100 -- 106 degrees. In accordance
2 with another material it's once again very interesting question why in UN
3 we have two different material of investigation but no different and one
4 conclusion. But in accordance with another material of investigation,
5 they set about another angle. About first. In accord -- once again, we
6 know what was used, and so 120-millimetres mortar shell. It's really
7 former Yugoslavian weapon and before it was Soviet system. I know it
8 very well because I am field commander, like a professional soldier.
9 Many times I participated in real practical shelling and manage them, I
10 mean my artillery officers. In accordance with main documents for this
11 system, this is a table with whole data about characteristics of the
12 system. We can see that --"
13 MR. VANDERPUYE: If I may interject.
14 JUDGE ORIE: Could we stop it for a second. Mr. Vanderpuye,
15 apparently it's so urgent that you stop it.
16 MR. VANDERPUYE: Yes, I have an objection to this particular line
17 of questioning, this particular video. It seems to me in the
18 circumstances that what we have here is a person that's effectively
19 testifying about information that they received concerning investigation
20 of the shelling incidents which Mr. Ivetic is inquiring about. It's not
21 clear yet what the question will be to the witness but I expect it will
22 relate to this, what appears to be expert evidence, which is not yet been
23 put before the Chamber according to the process that is defined in the
24 rules, and it also seems to me in the circumstances that it would be
25 inappropriate to the extent that this witness hasn't been qualified as an
1 expert to respond to this.
2 JUDGE ORIE: We do not know. Perhaps the question will be about
3 the age of Mr. Demurenko is. I do not know what the question will be.
4 I think we all agree that this is expert evidence. I put this clearly on
5 the table because at least what Mr. Demurenko tells us on the video,
6 because there seems to be a great sensitivity with Defence about what is
7 expert evidence "yes" or "no." I have no problem in listening to it at
8 this moment. But of course whether we would accept any conclusions and
9 whether we want to be provided with every material that is presented by
10 this witness and why it should not be verified by someone who qualifies
11 as an expert of course is a totally different matter. Mr. Ivetic,
12 I suggest that we just go on and listen to it. Let's do so, and we are
13 fully aware of your concerns you've expressed Mr. Vanderpuye.
14 Please proceed, Mr. Ivetic.
15 [Video-clip played]
16 "For the system normally used six standard charges. And in
17 accordance with this angle, 70 degrees, and this is a direction, 176, we
18 can after comparison with the standard data see on following map. First
19 explosion it could be in accordance with this, once again, this degrees
20 and this degrees. In this area 900 metres, next this area, this is a
21 1400, next one 2000, really this is on confrontation line. Theoretically
22 it could be from Serbian, theoretically. I will once again explain it.
23 And next three of the 2700, 3000, and the last church they can use for
25 "Today, personally, with my special -- not special, very small
1 investigation group including artillery officers, we was on this place.
2 This place, this and this and this. Really by my foot. And I can
3 affirm, absolutely without or beyond any doubts, this is place
4 unacceptable or unsuitable for firing position mortar shell. No
5 perspective stay on this position and shell on this area. And therefore
6 conclusion of material of investigation was wrong.
7 "Now I said only about terrain where is located Serbian troops
8 and special without my proposals about his area. This is not my job. I
9 am soldier. I am colonel. And this is a business for special group,
10 like maybe for this group necessary include criminal prosecutors, members
11 of court marshal, I don't know, maybe it's a ballistics personnel and so
12 on and so on. But really for us it's necessary understand it that it was
14 "About another direction. This is a distance between place of
15 explosion and place of fire position 2100 metres. Same. I was here
16 today absolutely no perspective locate firing battery or platoon or even
17 one mortar for this area. Because this is a really rock slope and
18 forest. And no perspective fired from this position. I can affirm it
19 and I will have today photo picture about each of these places."
20 MR. IVETIC:
21 Q. Okay, now, sir, first of all, do you recognise the individual on
22 the screen as being Colonel Demurenko who was the Chief of Staff of
23 Sector Sarajevo in Sarajevo?
24 A. I really wouldn't know any more. I met him maybe once or twice
25 but so long ago that I don't recognise him but I have no reason to doubt
2 Q. And in relation to the technique that he has described that he
3 employed to determine a potential fire locations of the mortar as a
4 person trained in the use of mortars, does it make sense to you as a
5 technique that a trained officer would use?
6 JUDGE ORIE: Mr. Vanderpuye.
7 MR. VANDERPUYE: This is where I thought Mr. Ivetic was going
8 with the question, and I don't think it's an appropriate question for
9 this witness.
10 JUDGE ORIE: Let's first establish whether the witness thinks
11 he's qualified to give a judgement on the solidity of the methods
12 apparently used by Mr. Demurenko.
13 THE WITNESS: [Interpretation] I can't give you a definitive
14 conclusion but I might make a number of remarks. At any rate, a number
15 of comments which lead me to the conclusion that I'm not yet convinced by
16 his argumentation. So let me tell you why. If the direction is known
17 from where the shot was fired, then theoretically at any point on the
18 line within the maximum reach of that specific mortar, the position of
19 impact might have been because the scope, the range, of a mortar is
20 determined partly, on the one hand, by the charge affixed to it and
21 secondly by the angle under which the firing takes place, so there is an
22 indefinite number of places that it could have been fired from. As
23 I seem to understand somewhat from the argumentation of the colonel, you
24 can be a little more precise once you know the angle of impact and they
25 speak of 70 degrees as an angle. I'm not that conversant with that, but
1 I would be curious to know how reliable within what sort of band width
2 that 70 degrees might have been determined. Could it have been 60 or 80
3 degrees? It raises some doubt vis-a-vis this whole story.
4 JUDGE ORIE: Do I understand your testimony that in itself
5 efforts to define where a shell comes from on the basis of angle of
6 descent and the direction from where it comes, that that is in itself not
7 a wrong approach to try to find further data about the origin of the
8 shell? Is that, in short, summarised what -- but that you need details
9 to draw any conclusions?
10 THE WITNESS: [Interpretation] Yes. By itself, the approach where
11 you know the direction and also the angle, one might draw a conclusion
12 from that about the possible position from where it was fired in the
13 first place.
14 JUDGE ORIE: Next question, yes, Mr. Vanderpuye, we have seen
15 here several times that persons who had some knowledge of mortars have
16 testified about even not always called as experts. I would suggest
17 Mr. Ivetic puts his next question because he has only three minutes left
18 and you will get your 15 minutes after that.
19 MR. VANDERPUYE: With respect to Mr. Ivetic 's time, Mr.
20 President, I must tell you that I don't plan to conduct any redirect
21 examination. But with respect to this particular issue, I think it is
22 important because Mr. Demurenko has testified in another proceeding and
23 he's been challenged specifically on the methods that he's used that
24 Mr. Ivetic is now showing this witness and he's made certain admissions
25 with respect to the manner in which he conducted those investigations
1 which are not known to the witness and not depicted in the evidence now
2 before the Chamber.
3 JUDGE ORIE: Of course the Chamber was not aware of that. What
4 I would suggest, then, is that Mr. Ivetic, who wants to rely on
5 Mr. Demurenko, agrees with you perhaps from the bar table to provide to
6 the Chamber relevant portions of the evidence Mr. Demurenko has given.
7 This is at this moment just a video, and I have not expressed myself on
8 behalf of the Chamber in any other way that I did not disallow the
9 Defence to present it to us for us to look at at this moment. That is as
10 far as it goes now. Yes.
11 JUDGE MOLOTO: Just for the record I don't see this as a witness.
12 I see this as a video playing for us, so this person is not being called
13 before this Court, this Chamber, to testify. He's not a witness.
14 JUDGE ORIE: That underlines I think my previous observation.
15 Please proceed, Mr. Ivetic, and you have a bit more time.
16 MR. IVETIC: Thank you.
17 Q. Sir, based upon the briefing that you received from the chief
18 UNMO in relation to the report that was carried out by BH -- under the
19 auspices of BH command into the Markale incident, do you know if they
20 employed range tables and/or visited sites of potential firing positions
21 once they knew the direction and the angle of descent of the mortar round
22 that landed at Markale?
23 A. No. No tables were used to determine the possible mortar
24 positions, and in my view that is actually almost not doable unless you
25 know a hundred per cent accurately what the angle of descent was, but if
1 you don't then the number of possible firing positions is almost endless,
2 as long as they are along the line of the firing direction, and the
3 number of positions at which you might place a mortar I don't think there
4 are hardly any restrictions to that unless it is a very uneven, very
5 forested position or a very steep slope, but any other position would do.
6 MR. IVETIC: And I'd like to turn to P797 which is an exhibit in
7 this case and it is the final report issued by General Smith's office
8 signed by Colonel Baxter, the MA to the BH commander.
9 JUDGE ORIE: Mr. Ivetic, may I have one question before you put
10 the -- -
11 MR. IVETIC: Yes, absolutely.
12 JUDGE ORIE: Have we seen -- we saw Mr. Demurenko with a lot of
13 paperwork. Is all of that in evidence at this -- before us, apart from
14 what he draws at that moment on his board?
15 MR. IVETIC: I believe everything except for -- it's P797.
16 I think that's a 22-page document and I think the majority of that is
17 there except for the book that he had from 1970 which was the --
18 JUDGE ORIE: Tables.
19 MR. IVETIC: -- tables. Correct.
20 JUDGE ORIE: Firing table is not and the one document with --
21 from the local police, from the BH police?
22 MR. IVETIC: That one I'm note sure whether it's contained within
23 P797 or not. I honestly don't recall.
24 JUDGE ORIE: I'll have a look at that.
25 Please proceed.
1 MR. IVETIC: Thank you. If we can turn P797, which is the --
2 listed as the report. Do you see on the first page this appears to be
3 the final and comprehensive report of the Sarajevo mortar incident of 28
4 August 1995. I would like to turn to Annex B of this document, which is
5 at page 9 of 21 in the English and page 9 of 24 in the B/C/S.
6 Q. And at the top we see that this is an UNMO daily sit-rep, and it
7 says released by Lieutenant-Colonel Oien, the SMO. Does that refresh
8 your recollection that this is the chief UNMO officer that verbally
9 briefed you and other members of the BH command as to the results of the
10 preliminary results of the investigation that they performed?
11 A. The name doesn't really ring a bell or spur my recollection. But
12 SMO stands for senior military observer, as far as I know, so that must
13 have been the rank or position. The name is not familiar to me.
14 Q. If we look at item 1 on this document it appears to reference the
15 Markale attack and says that the final report will follow this daily
16 sit-rep. Now, I'd like to turn to the next page in both languages and
17 the bottom of the page in English. And we will see, first of all, that
18 the middle column is always for origin, if we look on the English, and
19 the bottom entry has been marked and the middle column says unknown. Do
20 you recall, sir, at the time of your briefing of the preliminary results,
21 that the UNMO finding was that the source of the shells was unknown?
22 Does that comport with your recollection?
23 A. Yes. The source or the location from which the mortars were
24 fired could not be ascertained until after the investigation had been
25 carried out so this is unlikely to have been on the 28th itself.
1 Q. And if we turn to page 15 in English and page 16 in B/C/S, we
2 will see the updated situation report dated the 29th of August, and if we
3 look at item 1, it lists that the full report of the central city
4 shelling is below, and if we turn to page 17 in English and page 19 in
5 B/C/S, under subsection (b), I think we will find the full final report
6 of the Markale market shooting. Would you agree with me, sir, having a
7 glance at what is item number (b) on this page that is now before us in
8 e-court in English?
9 A. Ah, I see the text before me. To ask whether I agree to be able
10 to answer that question, I would have to read the text. So if you'll
11 indulge me.
12 Q. Sir, my question was does this appear to be relating to the
13 Markale incident. This was my -- I thought what my question was.
14 A. Oh, yes. Well, then I misunderstood you. I'm sorry. This is
15 undoubtedly to do with the aforementioned incident.
16 Q. And the conclusions are on the second page, the next page. If we
17 could turn to that page, sir, I would direct your attention to -- that
18 would be I guess page 16 in both languages. And do you see there, sir,
19 the comment section just before crater analysis. It says, "Comment,
20 UNMOs are unable to confirm which WF fired the rounds." And, sir, the
21 first question I have for you: Is "WF" an abbreviation for warring
23 A. That sounds very plausible to me.
24 Q. And, sir, if WF stands for warring factions it would appear that
25 the UNMOs were unable to confirm which warring faction fired the round.
1 Does that comport to your recollection of what you were orally told in
2 the briefing by the chief UNMO in the presence of General Smith and the
3 other members of the BH command that you previously identified?
4 A. The conclusion that we drew there was that we really ruled out
5 that the mortar had been fired from Bosnian territory, because that would
6 have been such a distance that the noise, the bangs, would have been
7 heard in the city.
8 Q. Thank you for that, sir. I think you've testified to that in
9 that paragraph of your statement. My question was: Is this conclusion
10 from the UNMOs the same conclusion that you were orally advised of in the
11 briefing by the chief UNMO in the presence of General Smith,
12 Colonel Baxter, Colonel Powers, and the other individuals that you
13 identified in the BH command?
14 A. I would assume so, because I don't know on what grounds, for what
15 arguments we would have to diverge from the conclusions of the UNMOs.
16 I did know -- I do know there were discussions about the possibilities
17 from whence they might have come and I'm not quite sure about the
18 contribution of the UNMO chief and the others who was in that discussion.
19 But reasoning out the facts that had been put forward, we concluded that
20 the mortars had to have been fired from a great distance.
21 JUDGE ORIE: But I think that what Mr. Ivetic is mainly
22 interested to know is that, following up on your last answer, whether the
23 report you received from the chief UNMO, whether that report was
24 different from the conclusions you provisionally had drawn as to the
25 origin of fire being from Serb-held territory rather than from
1 Federation-held territory. Do you have any recollection that you
3 THE WITNESS: [Interpretation] I cannot recall that we took a
4 position that diverged from what the chief UNMO had advised us about.
5 MR. IVETIC: Perhaps just one follow-up, Your Honours, with your
7 Q. Is this conclusion that's in writing here from the UNMO, is that
8 identical to the conclusion that was orally given to you by the chief
9 UNMO as you recall it at the time that you were briefed?
10 JUDGE ORIE: Mr. Vanderpuye?
11 MR. VANDERPUYE: Mr. President, I think the witness has already
12 answered the question a couple of times.
13 JUDGE ORIE: I think he has. Apart from whether it's a
14 conclusion or not written, unable to determine, it's only the conclusion
15 that that person -- so, but the answer -- the question has been asked
16 several times and has been answered. Any other question? I'm looking at
17 the clock, Mr. Ivetic. It's now 17 minutes past 2.00 and we are already
18 working with the indulgence of interpreters.
19 MR. IVETIC: I believe that was my last question for this witness
20 so I was finished.
21 JUDGE ORIE: Mr. Vanderpuye, the situation remains as it was?
22 MR. VANDERPUYE: Yes, Mr. President, it remains the same.
23 JUDGE ORIE: Thank you. Mr. Nicolai, this concludes your
24 testimony. I would like to thank you very much for coming to this
25 courtroom and for having answered all the questions that were put to you
1 by the parties and by the Bench. You're excused and I wish you a safe
2 return home again. You may follow the usher.
3 THE WITNESS: [Interpretation] Pleasure, thank you.
4 [The witness withdrew]
5 JUDGE ORIE: Unless there are any matters to be raised at this
6 moment we will adjourn for the day. We thank all those assisting us
7 again for their flexibility, and we'll resume Tuesday, the 7th of May, at
8 9.30 in Courtroom III. We stand adjourned.
9 --- Whereupon the hearing adjourned at 2.18 p.m.,
10 to be reconvened on Tuesday, the 7th day
11 of May 2013, at 9.30 a.m.