1 Friday, 13 September 2013
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.35 a.m.
5 JUDGE ORIE: Good morning to everyone.
6 Madam Registrar, would you please call the case.
7 THE REGISTRAR: Good morning, Your Honours. This is case
8 IT-09-92-T, the Prosecutor versus Ratko Mladic.
9 JUDGE ORIE: Thank you, Madam Registrar.
10 The Chamber was informed that some preliminaries were to be
12 Mr. McCloskey.
13 MR. McCLOSKEY: Good morning, Mr. President, Your Honours. Yes,
14 we have been reminded recently by the Trial Chamber that there was an
15 issue with Bill Haglund that was brought up in court on 24 July this
16 year, where the Prosecution had offered to allow in or put in any
17 cross-examination that the Defence felt they needed for Bill Haglund
18 particularly in the Popovic case. The Defence has needed some time to
19 review that, and it's our understanding in speaking with Mr. Lukic that
20 they have decided not to use any cross-examination for Mr. Haglund -- any
21 prior cross-examination for Mr. Haglund.
22 JUDGE ORIE: I see that Mr. Lukic is not jumping up and
23 protesting so I take it that he agrees. That's hereby on the record.
24 Mr. McCloskey.
25 MR. McCLOSKEY: And one other issue, we have a dead-line of
1 16 September for the bar table for Sarajevo documents. We've found
2 recently we've been able to reduce some of those documents by reviewing
3 the recent witnesses that have testified and the documents that have come
4 in through them. We have a few more witnesses coming and we expect to be
5 able to reduce some of the documents then too, but in order to get you
6 the best product possible we would like to request a dead-line extension
7 to 30 September so we can both explain those documents and yet reduce
8 them to try to get them to the smallest number necessary for you.
9 JUDGE ORIE: Mr. Lukic, any objection?
10 MR. LUKIC: We never object to any extension of time.
11 JUDGE ORIE: Yes.
12 Mr. McCloskey, apparently there are a number of documents you
13 know you'll skip already, others perhaps depending on what testimony will
14 be heard in the weeks to come.
15 MR. McCLOSKEY: That's my understanding, yes.
16 JUDGE ORIE: Yes.
17 Wouldn't it then not be wise to already informally indicate which
18 ones you would drop so that the Defence, Chamber staff would not have to
19 bother about that at this very moment, but that would not be the definite
20 list then but still others could be dropped as well.
21 MR. McCLOSKEY: Yeah, I'll see where we are precisely with lists
22 and what's dropped and get back -- get back soon with whatever help we
23 can provide in that.
24 JUDGE ORIE: Yes. Because that's how you introduced it, that you
25 had decided already to -- that some would be dropped, would be skipped,
1 and perhaps more to follow.
2 So then the Chamber would like to hear from you, and perhaps also
3 from the Defence, on ...
4 [Trial Chamber confers]
5 JUDGE ORIE: But with this strong suggestion, the Chamber grants
6 the request.
7 Any other matter? Not from the Prosecution.
8 Any further issue to be raised by the Defence? Not. Then could
9 the witness be escorted into the courtroom.
10 I would like to use the time for the following:
11 On the 28th of June, 2013, the Chamber, inter alia, admitted
12 portions of prior testimony of Witness Music pursuant to Rule 92 bis. On
13 the 1st of August, the Prosecution sent an informal communication
14 requesting leave to add approximately 11 lines to the admitted portion.
15 The lines in question are transcript pages 12.833, line 21 -- oh, yes, I
16 apologise. I re-start. Page 12.832, line 21, until 12.833, line 6.
17 [The witness takes the stand]
18 JUDGE ORIE: The Chamber would like to know whether there's any
19 objection by the Defence to that request. May I take it that you would
20 need to look at it first and that we would hear, either later today or
21 immediately after the weekend?
22 MR. IVETIC: Yes, Your Honour, we would appreciate that
23 opportunity since right now we're trying to figure out which -- which
24 witness that is exactly.
25 JUDGE ORIE: Yes.
1 Then if you're ready to continue cross-examination, Mr. Ivetic,
2 you're invited to proceed.
3 MR. IVETIC: Thank you, Your Honour.
4 WITNESS: RICHARD BUTLER [Resumed]
5 Cross-examination by Mr. Ivetic: [Continued]
6 Q. Good morning, sir --
7 JUDGE ORIE: Yes, but of course I first --
8 MR. IVETIC: Yes.
9 JUDGE ORIE: Mr. Butler, again we spent time on procedural issues
10 and we were not very polite when you entered the courtroom. I would like
11 to remind you again, as I did before, that you are still bound by the
12 solemn declaration you've given at the beginning of your testimony --
13 THE WITNESS: Yes, Your Honour.
14 JUDGE ORIE: Mr. Ivetic will now continue.
15 MR. IVETIC: Thank you, Your Honours.
16 Q. And good morning, sir.
17 A. Good morning.
18 Q. We left off talking about intercepts and I'd like to return
19 there. Now, during the course of this trial we had a witness RM279 who
20 was knowledgeable about the ABiH's capabilities of intercepting the VRS
21 and he conceded they could not follow VRS communications through the HVT1
22 system, the SMC1306B, or the FM200 system, and this can be found at
23 transcript page 13.574 through 13.575. Sir, was such information made
24 available to you at the time that you were making your assessments as to
25 the technical capabilities of the ABiH side to intercept communications?
1 JUDGE ORIE: Mr. McCloskey.
2 MR. McCLOSKEY: I apologise for interrupting. It appears
3 Mr. Ivetic would like Mr. Butler to know the identity of this person and
4 if we could go into private session briefly.
5 MR. IVETIC: We could. That's fine.
6 JUDGE ORIE: We move into private session.
7 [Private session]
23 [Open session]
24 THE REGISTRAR: We're in open session, Your Honours.
25 JUDGE ORIE: Thank you, Madam Registrar.
1 THE WITNESS: Yes, sir. What I was aware of was that they did
2 not have the capability to collect on what was essentially data
3 transmissions that were going over the various communication channels.
4 They could only collect on voice communications. So again, without
5 looking at what each specific piece of equipment that you've listed, the
6 actual technical specifications are, I can't comment on that. But I did
7 know generally that there were some military communications that was
8 clearly beyond their capability at those sites to collect against.
9 MR. IVETIC:
10 Q. Thank you. Did anyone at the OTP or yourself undertake to
11 identify for each intercept that you were relying upon what particular
12 type of radio relay device was said to be the source that was
14 A. I know that many of the intercepts as written in the notebooks
15 will have notations on that, but I did not go to that effort. I don't
16 know if anyone else did or not.
17 Q. Now, without identifying the locations, which I will refer to as
18 just the northern and southern facilities, could you tell me if you were
19 made aware of the locations of both, such that you were able to confirm
20 the distance of those facilities from the communication relay hubs of the
21 VRS that were used to transmit communications by the VRS in the
22 Srebrenica area?
23 A. I can tell you that I visited back in I believe it would be
24 either late 1998 or -- 1998, I'm pretty sure, one of the sites. I cannot
25 tell you offhand if it was the northern or the southern site. I also
1 know that we were provided maps of where the sites where, and of course
2 not only from the documents that the ABiH sites were located, we also had
3 corresponding -- at that time we also had the corresponding documents
4 from the Zvornik Brigade. Many of those documents -- one of those
5 documents that was particularly valuable was a copy of the Drina Corps
6 communications plan, which actually laid out the VRS communications
7 schematics and their locations as well. So again, you know, not
8 necessarily getting it directly from the individuals at the site how far
9 they were, we could certainly calculate how far they were from the
10 various locations from the information that they provided as well as the
11 information that we had seized as part of the search at Zvornik.
12 Q. Now again returning to some of the testimony that RM279 gave, at
13 transcript page 13.569 and onwards, he confirmed that for those radio
14 relay devices used by the VRS which he claimed they could intercept, the
15 manufacturer's longest optimal range at full power were 80 kilometres for
16 the RRU-800 and 30 kilometres for the RRU-1. Did you have that type of
17 information available to you and was it considered at the time of making
18 your assessments as to the technical capabilities of the ABiH?
19 A. Yes, sir. I mean, not only did I have general information like
20 that -- I mean, the reality is that, you know, I also -- I've given it
21 some thought as to how I could actually explain this, so let me try it
22 that way: As you're aware from my resume, from 1989 to 1992, I was an
23 all-source intelligence technician in the 3rd Infantry Division. It is
24 not classified, it's open source and you can find it on the internet,
25 that at that time the 3rd Infantry Division had a rather robust
1 capability to conduct tactical signals intelligence collection. We had
2 what was known as the trail blazer system which allowed us to collect in
3 the high-frequency range, the very high-frequency range, and ultra high
4 frequencies. And we had the quick-fix system which was a
5 helicopter-mounted version of the same equipment.
6 Now, I won't say that I'm obviously an expert; however, I would
7 suggest that for me to be able to do my job in the division with a robust
8 intelligence and signals intelligence collection capability, I at least
9 had to have a functional knowledge, not only -- you know, at least on
10 signals intelligence collection. And again, it won't be a secret that in
11 1989 through 1992 our primary target of collection was the military
12 forces of the former Soviet Union that were in East Germany who use a
13 communications network remarkably like the one used in Bosnia by the VRS
14 and in fairness remarkably like the systems that we used back then. As
15 any radio enthusiast will understand, you know, the radio waves work the
16 same way for everybody and consequently we all in the military structure
17 our radio communications similarly.
18 So at least, again, the inference I'd like to draw on this one is
19 that while I'm not an expert, I certainly did have enough of a background
20 that when I looked at this --
21 JUDGE ORIE: Mr. Butler, could I stop you because there may be
22 some misunderstanding.
23 Please correct me, Mr. Ivetic, when I'm wrong.
24 It seems that Mr. Ivetic wants to know whether you verified on
25 the basis of the documentation of the equipment used that the distances
1 over which communication was intercepted was beyond what this
2 documentation said would be the range of coverage of that equipment. Now
3 Mr. Ivetic could have focused on that --
4 THE WITNESS: I agree, sir, and --
5 JUDGE ORIE: -- perhaps directly -- that's --
6 THE WITNESS: -- and getting to that, because of this basis of
7 knowledge that I have, I also understand that regardless of what the
8 manufacturer says with respect of their radio range, you know, as a rule
9 of thumb we understood from an intelligence collection perspective that
10 we had an ability to collect radio waves out further ranges of that.
11 There's a lot of factors that are involved with respect to radio wave
12 propagation that intelligence people look at, you know, even amateur
13 intelligence people like the ABiH back then, that go beyond the
14 manufacturer's recommended specifications for the radio usage. So the
15 distance to me doesn't matter more than other technical factors, like
16 radiation power, condition of the antennas, and things of that nature
17 would, to determine whether or not the radio equipment that was
18 transmitting could be technically intercepted from a different location.
19 MR. IVETIC:
20 Q. Sir, you mentioned the trail blazer device that could be placed
21 on a helicopter. Do you know if the intercepts from the ABiH originated
22 from aircraft radio interception devices of a similar nature?
23 A. No, sir, but again we put it on a helicopter to gain line of
24 sight. The fact that they don't have a helicopter but they have a
25 mountaintop essentially accomplishes the same thing.
1 Q. Now, in the course of your research, did you determine that the
2 JNA had a training doctrine or protocol in place of powering down the
3 radio relay devices from full power when covering a distance shorter than
4 the maximum manufacturer's recommended range, precisely so as to keep or
5 limit the ability of others to intercept those communications?
6 A. Absolutely, and the same JNA radio protocols would have called
7 also for them to place the radio receivers in locations where they would
8 have terrain features blocking the radio propagation so it can't be
9 collected by outside sites. However, you know, in a perfect world if you
10 had enough equipment, I'm sure that the VRS would have really enjoyed the
11 ability to place a radio communications network in the valleys where it
12 would be completely secure for intercept, but since radio waves don't
13 bend corners and they don't have enough equipment to do multiple
14 stations, the option that they clearly chose was to use the few pieces of
15 equipment they had, put them on high terrain, and use them to
16 communicate. They took a risk that their communications could be
17 intercepted, and the gain that they got was that they would actually be
18 able to communicate.
19 JUDGE FLUEGGE: May I put a question at this point, Mr. Ivetic.
20 Mr. Butler, Mr. Ivetic used term "manufacturer's recommended
21 range," and added to that "maximum manufacturer's recommended range."
22 What is your understanding about this recommended range by the
23 manufacturer? Is it a guaranteed minimal range or is it a maximum range
24 in the understanding of the manufacturer?
25 THE WITNESS: The -- when one -- in this particular sense, what
1 they're referring to is the maximum range that the equipment will
2 properly operate as the manufacturer intends it to operate. Essentially
3 what they're saying is if you place the radio stations at ranges beyond
4 these certain rates, obviously the -- not equipment is subject to
5 failure, but the radio wave propagation will be such that maybe the
6 signal's distorted, you won't be able to operate the equipment
7 effectively. It doesn't mean that it can't be operated that way. It
8 doesn't mean that it can't be modified, but again when you're talking
9 about what the manufacturer's recommended range is, this is the range by
10 which he guarantees, or the corporation that manufacture it guarantees,
11 that this equipment will perform according to the specifications that the
12 people who wanted the equipment built asked for.
13 JUDGE FLUEGGE: Thank you.
14 Mr. Ivetic.
15 MR. IVETIC: Thank you, Your Honour.
16 Q. Sir, I propose now to look at a photograph with you. If we can
17 have in e-court D00309. And, sir, I'd like to focus on the object in the
18 middle, that looks like a tube attached to a plate in the middle of the
19 photo. Can you -- first of all, can you tell me if this appears
20 consistent with the antenna setup that you were shown when you toured one
21 of the ABiH facilities?
22 A. I can't remember. I'm assuming that there is a coil -- there's a
23 Yagi antenna in here. I can't exactly tell what's inside the tube.
24 Q. Okay --
25 A. I see the dipole in the back, but I don't know if that's of
1 consequence to what you're looking for.
2 Q. What I'm looking for is that in relation to this antenna, would
3 you --
4 A. Well, again, if inside there's a Yagi configuration, it would be
5 the standard antenna that one would use to intercept UHF range
6 communications or to receive UHF range communications.
7 Q. In this configuration can it receive duplex, or would a dual
8 helicoidal antenna be required?
9 A. I -- again, you're just about -- at that point you're now
10 starting to cross the line --
11 Q. I understand.
12 A. -- between, you know, my functional knowledge of it and expert
13 knowledge of it.
14 Q. Understood. Now if we can look at D00311. And that is, I
15 believe, another picture from one of the other antennas in this same
16 cluster. Sir, I can tell you in relation to this antenna that RM279
17 testified that the ABiH 2nd Corps made homemade antennas from stop signs
18 and toilet pipings such as this one. Would that information have been
19 available to you when you analysed their capabilities, their technical
20 capabilities of intercepting radio communications?
21 A. Yes, sir, they did tell us that and I did know that, absolutely.
22 Q. Okay. And now am I correct that as part of your March 1998
23 mission you interviewed an individual familiar with the VRS frequencies
24 that said that the frequencies used did not change during the course of
25 the war, which allowed the ABiH to fine-tune and intercept them easier?
1 A. Well, I'm sure that the individual frequencies may have changed,
2 but the general radio bands that they were using did not. As you are
3 aware from multi-channel communication, it's not one single radio
4 frequency. It's a band of multiple frequencies that are in use. Some
5 stations are transmitting and some stations are receiving, that's why you
6 get what sounds like a telephone conversation.
7 Q. Okay. And are you familiar with the explanation given to you by
8 an individual that you interviewed in March 1998, that the VRS
9 frequencies did not change?
10 A. That's what we said. I take it that that's what he said.
11 Q. Okay. I'd like to look at 1D1243 and page 70 of the same in
12 e-court. And if we could focus on line 8 through 15, sir.
13 The question posed during the -- again, I believe it's the
14 Popovic case reads as follows:
15 "Q. Were you able to see the frequency plans of the VRS?
16 "A. In the documents that we primarily use with respect to the
17 Zvornik Brigade, which we had seized first, and to the Bratunac Brigade,
18 I am not aware that there was a specific frequency plan with those
19 documents. I don't know, having not gone through the entire Drina Corps
20 material, the new stuff, whether or not there is a frequency plan for
21 each of those networks in that, so the short version is: No, I have not
22 seen a frequency plan for the radio relay."
23 Is the answer as reflected here accurate -- accurate as to how
24 you recall answering this question?
25 A. Yes, sir. Even in the documents that we did have that outline
1 the radio backbone, I don't recall that there were individual frequency
2 plans for each channel of the network.
3 MR. IVETIC: And I'd like to now pull up 65 ter number 19848 in
4 e-court, a Prosecution document. If we can zoom in on it so we can ...
5 Q. Did you have access to this type of document from the video
6 communications schematic from the 1st Krajina Corps, I believe?
7 A. I don't know that I've ever seen this document. Looking at the
8 ERN number on it, given the ERN number, it appears that this is something
9 that came into the OTP's possession after I left.
10 Q. Okay.
11 A. Or at least was put in the ERN system and got a number after I
13 Q. I put it to you that there's at least, I believe, one other
14 document that I've seen of a similar nature. Would you permit the
15 possibility that if such documentation came to the Prosecution after you
16 left, that one could, as a preliminary step, look at the information
17 contained therein and then go back and check with the purported
18 intercepts to see if the -- if the frequencies match up and if all the
19 other information matches up, so as to reach a new determination of the
20 technical capabilities of the ABiH?
21 A. Well, again, it's not -- it was not my job at the time of the --
22 that I worked here for a variety of reasons to authenticate the network
23 with respect to the intercepts for the Court. That was obviously
24 something the intercept operators and those individuals who managed that
25 collection apparatus work do. My understanding of the basis of a lot of
1 these questions is -- relates to my -- the steps that I took in order to
2 validate to myself at least the first foundational question of why I
3 included the intercepts in my narrative and testified about them, which
4 goes back to the question of whether or not the VRS telecommunications
5 network as it existed in Eastern Bosnia in 1995, if it was subject to
6 intercept and whether the ABiH had the technical capability to intercept
7 it. That, of course, was the first step of my analysis and nothing at
8 this point has been offered that would make me change that conclusion.
9 Q. Now, Mr. Butler, drawing on your experiences as an all-source
10 intelligence officer, let me give you a hypothetical. If the frequencies
11 that are recorded as having been used by a party do not match up to the
12 frequencies recorded by those claiming to intercept them, would that
13 reinforce or dissuade your skepticism in the reliability of the
14 intercepts had you known that information?
15 A. I would say that it would be an indicator that the collection
16 take that they were receiving could -- might not be accurate.
17 Q. By the way, did you consider the fact that if according to the
18 ABiH they were capable of intercepting the radio signals of the VRS, that
19 the ABiH would also be capable of interloping on the same VRS frequencies
20 and broadcasting their own false transmissions?
21 A. Therein lies the difference between collection and electronic
22 warfare. And as I suspect you are well aware, the power that you have to
23 push down range in order to interfere or essentially insert yourself
24 falsely into somebody else's communication network is far more than is
25 required to actually collect radio signals. The radio equipment that I
1 saw and that I'm aware the ABiH possessed at the time did not allow for
2 the power wattage necessary to essentially bump the VRS's own signal X
3 amount of kilometres away.
4 Q. I agree. But could they broadcast on the same frequency as the
5 VRS within their own territory so that their own troops or own
6 intercepted locations much closer could hear those on those frequencies
7 and mistake them for VRS transmissions, intentionally or not?
8 A. Sure. I mean, in the abstract that is a possibility.
9 Q. Thank you. Now I'd like to look at one of the intercepts that
10 you and Mr. McCloskey dealt with during direct examination, P12 --
11 JUDGE ORIE: Mr. Ivetic --
12 MR. IVETIC: Yes.
13 JUDGE ORIE: -- you have shown a diagram to the witness. I'm
14 not -- first of all, there's no English translation for that in e-court.
15 Now, I'm afraid that if you make an English translation you get the same
16 undecipherable series of letters and numbers. I'm a bit lost about --
17 you don't want to -- the witness had never seen it before. I don't know
18 what you want to do with it, what you want the Chamber to do with it.
19 MR. IVETIC: Well, Your Honour, since the witness has not seen it
20 before, I don't think I have a basis for putting it into evidence through
21 the witness. We do believe we'll have some -- I do believe we have a
22 translation now, if I'm reading correctly. But I believe we'll have a
23 witness coming later who will be able to talk about this and the other
24 documents, the other diagrams. I believe these are schematics of radio
25 networks, but I don't want to be testifying and to have the Chamber rely
1 upon what I say; I'd rather have you rely upon what a qualified witness
3 JUDGE ORIE: Yes. Nevertheless, you asked questions about the
4 document and what it would have allowed to do, et cetera, et cetera. So,
5 to that extent to say that it was not used in any way is not accurate,
6 but let us leave it as it is for the time being.
7 [Trial Chamber confers]
8 JUDGE ORIE: Please proceed, Mr. Ivetic.
9 MR. IVETIC: Thank you.
10 If we can look at P1235.
11 Q. And this was discussed by you on the 4th of September at
12 transcript page 16.256.
13 MR. IVETIC: We should not broadcast. I apologise.
14 Q. Now, looking at this intercept, it purports to be between
15 General Mladic and an unidentified person, X. And you testified that
16 this supported your position that General Mladic is talking about
17 Potocari and that everyone needs to be evacuated whether they want to
18 leave or not. Now, I propose to go through the B/C/S original with you.
19 The word I want to focus on is located in the middle of the page and is
20 spelled e-v-a-k-u-i-r-a-t c-c-e-m-o and it is pronounced
21 "evakuirat ccemo," which is two words, and I submit is in the Croatian
22 variant of the language. The Serbian word would be one word and would be
23 e-v-a-k-u-i-s-a-c-c-e-m-o and would be "evakuisaccemo." Now, I
24 understand that since you were working off the English translation this
25 difference would not be apparent to you, but to a B/C/S speaker it is.
1 General Mladic is purported to be using this word, the Croatian
2 vernacular variant. Was this info known to you when assessing the
4 A. No, sir. Again, I work off the English-language versions. I do
5 not have any basis to be able to differentiate between an ethnic version
6 of any of the B/C/S languages.
7 Q. Do you find it odd, sir, that a VRS officer, indeed,
8 General Mladic would be speaking in the Croatian vernacular?
9 A. Again, it's not something that I could comment on, whether he
10 spoke it in the Croatian vernacular or whether or not the intercept
11 operator who may, for all I know, be ethnic Croatian working with the
12 ABiH wrote it that way. I mean, I can't comment on that one way or
13 another. I don't know.
14 Q. Okay. Now, did part of your analysis into the technical
15 capability of --
16 JUDGE ORIE: Mr. Ivetic, has it a different meaning in the -- if
17 it would be -- you spelled it how it would be in the Serbian. Would it
18 have a different meaning or is it just that you want to draw attention to
19 the fact that the way in which it is written down, that it's a Croatian
20 version of the language which you would be surprised as being used by
21 your client?
22 MR. IVETIC: The latter, sir.
23 JUDGE ORIE: Thank you.
24 MR. IVETIC: The English translation of the words is the same.
25 JUDGE ORIE: Thank you.
1 MR. IVETIC:
2 Q. Now, did part of your analysis into the technical capabilities of
3 the ABiH take into account that the ABiH used a significant number of
4 amateur ham radio operators, as it did not have a sufficient number of
5 trained professional signals corpsmen?
6 A. Yes, sir, that is what they told us and that is what we also
8 MR. IVETIC: If we can take a look at number 1D1079 together.
9 Q. First of all, sir, are you familiar with the FMSO, the foreign
10 military studies office, within the -- as part of Fort Leavenworth,
12 A. Yes, sir.
13 Q. Can you tell me the role or function of the FMSO within the US
15 A. They are -- the Foreign Military Studies Office is an office of
16 academics employed by the United States Army at Fort Leavenworth, which
17 is where our combined arms academy is. Their job is to do in-depth
18 studies of various military-related topics, many of them are military
19 policy related, many of them are in-depth studies of what would be
20 potential military adversaries and their tactics.
21 Q. Are you familiar with the lieutenant-colonel that is identified
22 as the author of this piece?
23 A. No, sir.
24 Q. Okay. I'd like to turn to page 7 of the document with you in
25 e-court, where he has some observations as to events in the enclaves and
1 the ham radio operators. If we could focus on footnote or end note I
2 guess is number 4. And it reads as follows:
3 "Rumours persist that the Bosnian Muslim government has hired
4 some of these public relations firms to conduct media campaigns on their
5 behalf in the US and Europe. Former President Carter was berated when he
6 noted that the American public only knew one side of the story in Bosnia,
7 but his statement stands as a concise and astute summary of content
8 analysis available in the press. One of the best examples of Bosniak
9 propaganda occurred during the battle for Gorazde in April 1994. The
10 Bosnian Muslim government convinced the world that the BSA demolished the
11 town and inflicted numerous civilian casualties ..."
12 And then he lists a number of publications which I don't think I
13 need to repeat. And then we continue:
14 "The international media dutifully interviewed and subsequently
15 printed accounts of refugees which government officials made available to
16 them. Unfortunately, most of the media failed to corroborate these
17 stories. The press also broadcast reports from a Bosnian Muslim
18 ham radio operator whom they insisted had to be authentic due to the
19 accuracy of his reports pertaining to the NATO bombings during the fight.
20 Verification of these events later proved this reporting to be highly
21 inaccurate, but the media had already moved on to further stories. Most
22 of the damage that was done in the enclave had actually occurred almost
23 two years prior to the battle when Muslims had conducted their own ethnic
24 cleansing and burned out the Serbs' houses. As for the ham radio
25 operator, no one who is holed up in a basement (as he claimed to be) can
1 accurately describe events taking place on the battle-field. Rather,
2 this person simply monitored the unsecured radio transmissions of
3 UNPROFOR personnel who were controlling the NATO air strikes. He then
4 mixed these elements of truth with his own propaganda to deceive the
5 media. In fact, no conclusive evidence exists that the ham radio
6 operator was even based in Gorazde."
7 Was this incident or any other incidents of this nature known to
8 you at the time that you performed your analysis of the reliability of
9 the intercepts of the ABiH?
10 JUDGE ORIE: Mr. McCloskey.
11 MR. McCLOSKEY: Objection. That question presumes that there's
12 some sort of comparability between military operators on sites doing
13 military work and a person in a basement in the Gorazde enclave. It's
14 just so far away from the work that we're doing --
15 JUDGE ORIE: That's --
16 MR. McCLOSKEY: -- it has no relevance or value.
17 JUDGE ORIE: The objection is denied.
18 The witness may answer the question, whether you considered this
19 incident or other similar incidents, if -- whether you consider -- first
20 of all, were you aware of this incident? Were you aware of other
21 incidents where ham radio operators were deceiving in their reports those
22 who were supposed to read it?
23 THE WITNESS: No, I'm not aware of this incident and of course
24 I've never seen this article before. In the broader sense - and again as
25 I've testified before - obviously we were aware that the ABiH was a party
1 to the conflict and would -- given what happened in Srebrenica, would
2 have a vested interest to try and potentially steer the investigation or
3 slant facts. That is why I said at the very beginning that -- by
4 testimony that I looked at the material that was provided to us. You
5 know, I was very suspicious of it, precisely because of an awareness that
6 the ABiH was not a neutral party. They were an affected party.
7 JUDGE ORIE: Please proceed, Mr. Ivetic.
8 MR. IVETIC: Thank you, Your Honour. If we could move to 1D1243
9 in e-court, page 65 of the same, and which should correlate to transcript
10 page 20.109. And if we could start at line 14.
11 Q. And before I begin reading, sir, I'd like to advise you and the
12 Court that 1D218 that is referenced in this transcript from the Popovic
13 case is indeed the document known as 65 ter number 25575 in the Mladic
14 case. And then I begin with the questions and answers:
15 "Q. Thank you. Let us have a look now at 1D218. It is a letter
16 of the State Security Service of Bosnia-Herzegovina, dated the
17 24th of July, 1995. It is very brief. I am not sure whether this has
18 been translated, although it had been requested. It is very brief. I'll
19 read it out to you.
20 "In it, a request was made of the 2nd Corps -- well, it reads:
21 "'Given that in the latest offensive against the protected area
22 of Srebrenica, the aggressor committed genocide over the Bosniak people.
23 We kindly ask you that you require all phono material, audio material,
24 pertaining to Srebrenica, from the assistant chief for security. The
25 audio material is needed in order to open a file that will be put at the
1 disposal of the International Tribunal in The Hague.'"
2 If we can go to the next page:
3 "My question is this: Did you ever see this document?
4 "A. No, sir, I don't recall that I did.
5 "Q. For you, as the expert, would this raise any doubts if even
6 after such a request, the tapes with alleged conversations would be
8 "A. Yes, sir, I mean it would -- it would continue to, you know,
9 be a piece of the weighting of information particularly with respect to
10 my work on the intercepts, that, you know, would have continued to keep
11 in the front of my mind that I always had to be aware of the material
12 that I was working with that had been provided by these measures were a
13 form of disinformation or deception, yes, sir. I had that in the front
14 of my mind going in, and this piece of information would have just
15 continued to pour weight on that."
16 Sir, does this transcript selection accurately record your
17 answers to these questions and are those answers truthful such that you
18 would repeat the same today?
19 A. Yes, sir.
20 MR. IVETIC: Your Honours if we could tender 65 ter number 25575
21 at this time.
22 MR. McCLOSKEY: We would like to see it.
23 MR. IVETIC: Absolutely. Let's call it up on the screen.
24 65 ter number 25575.
25 Q. Sir, just for purposes of connecting this testimony to the
1 testimony that you gave in the Popovic case, looking at the document now,
2 can I confirm that this was not a document that you had in your
3 possession and that you considered at the time you reached your
5 A. Again, sir, I don't recall having this document in my possession
6 at the time I made my initial analysis on the intercepts.
7 Q. Thank you, sir.
8 MR. IVETIC: Your Honours, I would tender this document as the
9 next available exhibit number.
10 MR. McCLOSKEY: No objection.
11 JUDGE ORIE: Madam Registrar.
12 THE REGISTRAR: Document 25575 receives number D359,
13 Your Honours.
14 JUDGE ORIE: And is admitted into evidence.
15 Please proceed.
16 MR. IVETIC: Your Honours, I would but I think the interpreters
17 would kill me if I tried to do a question in 30 seconds, so I suppose we
18 should take the break now.
19 JUDGE ORIE: We certainly have to avoid that to happen,
20 Mr. Ivetic.
21 We'll take a break. Could the witness be escorted out of the
23 [The witness stands down]
24 JUDGE ORIE: We take a break and we resume at ten minutes to
1 --- Recess taken at 10.30 a.m.
2 --- On resuming at 10.53 a.m.
3 JUDGE ORIE: Could the witness be escorted into the courtroom.
4 [The witness takes the stand]
5 JUDGE ORIE: You may proceed, Mr. Ivetic.
6 MR. IVETIC: Thank you, Your Honour.
7 If we can have in e-court number 1D1260. And if we can have
8 page 3 of that 65 ter number. That should correlate to transcript
9 page 20.123. And if we can focus on line 3 and onwards.
10 Q. Sir, I'd like to re-visit the Popovic transcript at this stage:
11 "Q. Let us go back to the first paragraph of the first page
12 again. Did you notice that there, the General Staff of the
13 Army of Bosnia-Herzegovina state that all of the tapes they had in their
14 possession, referring to the events, they forwarded to the
15 Agency for Research and Documentation back in 1995?
16 "A. Yes, sir, that's correct. And to further clarify, now that
17 I've read this document in English, I can tell you that I have seen it at
18 an earlier date, probably around 1997, 1998. So I can confirm now that I
19 did have access and I did see this document at the early part of my work.
20 "Q. My last question pertaining to this document is that: Did
21 this raise any doubts, this fact that the AID has not been forwarding any
22 tapes to you since 1995; although, they had them in their custody?
23 "A. Yes, sir. In fact, this, among other information, was, in
24 part, why I was prepared fully to not accept the broader body of
25 intercepts at face value until the work of the OTP could independently
1 corroborate them. This is just one of the many reasons."
2 Sir, is your testimony accurately recorded and is the same
3 truthful such that you would so testify again today?
4 A. Yes, sir, it is. Again, in the context that we're discussing, I
5 hope I've been abundantly clear about my initial skepticism about the
7 Q. As an expert do you concede based upon some of the material that
8 we've been going through the last hour or so that more investigation is
9 required before placing undivided faith in the reliability and
10 authenticity of the purported ABiH intercepts?
11 A. Sir, that is exactly why I undertook an initial investigation
12 before I included them in my reports in 1998 and 1999 and 2000. My
13 position is that in 2013 I believe that their authenticity has been
14 adequately proven and -- again, not to belabour an issue here, but the
15 first part of my analysis was the technical issue. Obviously I looked at
16 the intercepts from a broader analytical perspective and how they fit
17 into the overall context of our awareness or my awareness specifically of
18 what happened in July of 1995. Because, again as I've noted in response
19 to both questions by all three parties here, deception was a possibility
20 and I also understand the issue related to deception, you know, what it's
21 meant to do at a point in time in the battle-field, just as the recent
22 document the Defence brought up showed that this person may have operated
23 and tried to deceive someone in 1994 and it was outed in 1995. You know,
24 here you have a scenario where you get a body of information in 1997.
25 One would think if this was a broad-scale deception operation, you know,
1 from the period of 1997 to 2013, that would be evident. I believe that
2 the opposite is true. I believe that when one looks at the military
3 documents that were seized by the VRS that were clearly not in the
4 possession of the ABiH and one uses that to lay out a context and that
5 one looks at the body of the intercepts, it's not a technical term, but
6 if you have a context here and the intercepts weave that context
7 together, they synchronise. If it was a broad-scale deception operation,
8 the reality as painted by the military documents on the one hand would
9 run counter to the story being told by the intercepts.
10 So the intercepts as a body of information are corroborated to a
11 large degree by the military documents that were in the possession of the
12 VRS. And when you look at specific vignettes like, for example,
13 17 July 1995, you will actually have intercepted references of military
14 documents that were later found in VRS military headquarters buildings.
15 The presumption I make obviously is not that an ABiH officer at some
16 point deposited documents inside a secure VRS headquarters hoping that
17 one day we would find that material. So again, when one looks at
18 deception, the strength of a deception is highest at its initial point
19 and degrades over time. We're now in 2013 which is, what, almost 16,
20 17 years after that initial deception was supposed to take place. I
21 believe that's illogical.
22 Q. Do you believe it's illogical that for every single one of the
23 intercepts you went through the other day, the audio even though it was
24 sought to be preserved does not exist, the audio recording?
25 A. That question was asked. We were told that they had a shortage
1 of audiotapes for the systems. It was a reasonable answer.
2 Q. Do you know what percentage of the intercepts that you relied
3 upon in your report do not have audio recordings in the possession of the
4 Office of the Prosecutor?
5 A. At the time that I put together the report and the intercepts
6 that I used, I don't believe any of them have audio recordings. I would
7 certainly like to think that if we had an audio recording of that
8 particular intercept, that we would have played it in court for that
10 Q. And yet for other intercepts by the ABiH from the same
11 time-period, there do exist audio recordings?
12 A. Yes, sir.
13 Q. Did you ever seek out an explanation from the ABiH authorities
14 why they withheld the audiotapes that they did turn over from the
15 Office of the Prosecutor for nearly three years?
16 A. We asked that question on both the intercept notebooks as well as
17 the audiotapes. Specifically with the question of the audiotapes, my
18 understanding is the answer they had gotten back was that the audiotapes
19 were forwarded to the military archive in Sarajevo. The war ended and
20 they were essentially forgotten about.
21 Q. Now --
22 A. Again, not an unrealistic answer if you understand Sarajevo.
23 Q. Let me ask you something else and whether it's realistic or not.
24 Wouldn't also if someone has taken text of intercepts and fiddled with
25 them, would it also not be realistic that they would get rid of the audio
1 because that would reveal, as you said, the deception that was being
3 A. Again, sir, whether -- for me, it's not simply a question of
4 looking at a particular intercept in isolation and determining whether or
5 not an audio does or does not exist. As I've indicated, there are other
6 ways to corroborate the veracity of the intercept. One of them obviously
7 is comparing the intercept and the information purported to be contained
8 in it to the actual context of events that it's claiming to record.
9 Q. And would you agree if one were to doctor-up the intercepts, get
10 rid of the original audio, one would probably be good enough to make sure
11 that it fit the context of events based upon information that was then
12 known in 1998 that would not have been known in 1995, for instance?
13 A. For instance, the fact that in 1998 that the ABiH would have
14 knowledge of 500 litres of fuel going to Colonel Popovic when the only
15 document of that is a technical service rep? I mean, again, it's not
16 that we did not explore -- I mean, personally I had to explore all of
17 these alternative thesises simply because since General Krstic claimed
18 that the entire body of intercepts were a deception or a montage, you
19 know, that was my Rule 68 obligation at the time. And so, yes, I put on
20 my intellectual blinders and I took myself down all of those rabbit
21 holes, attempting to assemble information which would, in fact, support a
22 conclusion that the body of intercepts was false or fake or had been
23 planted. My conclusion is that that body of evidence does not exist
24 simply because when you look at the intercepts in the broader context of
25 the events that occurred, knowing what the ABiH would have or would not
1 have known at the time because they did not have access to the VRS
2 documents clearly -- and again, I didn't know at the time. Because until
3 March of 1998, I didn't have access to the VRS documents or in April. So
4 again, the probabilities that two separate bodies of information created
5 by two separate armies pertaining to one contextual situation that
6 occurred in July of 1995, and when you look at them and see how they
7 correlate to each other I believe that gives me the basis to make a
8 strong conclusion that the body of intercepts that I've used is authentic
9 and purports to be exactly what it is.
10 Q. Now, I want to switch gears and move to a topic closely related
11 to the scrutiny of convoys and the distrust of UN and aid organisations
12 by the Serbs.
13 MR. IVETIC: If we can please have 1D1240 in e-court, and it
14 should be page 1 of this document which is the transcript page 6671 from
15 the Perisic proceedings. And if we can focus on line 15 and onwards.
16 Q. And, sir, the questions and answers are as follows:
17 "Q. We left each other last night having a brief conversation
18 with regard to the Mujahedin. And I'd like to spend a few more moments
19 talking about some of the contextual issues that involving around the
20 time of July 1995.
21 "You had mentioned in your testimony that, I believe, that there
22 was also apart from the presence of the Mujahedin within the Muslim
23 Bosnian army, there was also smuggling occurring that went through Tuzla.
25 "A. Well, sir, the smuggling was the continuing effort to move
1 manpower and supplies into particularly the eastern enclaves of
2 Srebrenica and Zepa in order to keep the 28th Infantry Division supplied.
3 I don't know how that has to deal with the Mujahedin, insomuch as I'm not
4 aware of any of them in those eastern enclaves.
5 "Q. Very well. With regard to the issue of smuggling, were you
6 aware of a meeting that occurred in 1994 in Tuzla with various members of
7 the United States air force and Bosnian Muslim army members concerning
8 supplying ammunition and other necessary equipment to the army?
9 "A. No, sir.
10 "Q. Okay. In the research that you did, did you come across any
11 discussions about a secret airport or air strip that was being built in a
12 place called Visiko?
13 "A. No, sir."
14 Do you stand by what is written here as accurately recording your
15 truthful answers to these questions?
16 A. Yes, sir. I did not have that knowledge at the time. I still
17 don't have specific knowledge of those issues. You know, my knowledge
18 obviously based on the fact that, you know, the United Nations report
19 does document it - I'm aware that they do - but I don't have first-hand
20 knowledge of any of that.
21 Q. Okay, now dealing specifically with Srebrenica and Zepa, did you
22 have any indications of clandestine operations from France, United States
23 or other NATO country operating in and around these enclaves in the
24 time-period leading up to and including July 1995 as part of your
1 A. I knew, for example, that -- well, not clandestine. I knew that
2 there was a group of I believe British military officers in the
3 Srebrenica enclave, whose purpose it was to act as forward air
4 controllers in order to guide in NATO aircraft during -- you know, at a
5 point when bombing started on the 10th of July, 1995. That's the extent
6 of my knowledge. I've always been very curious about the background
7 voice speaking French but I haven't got to the end of that one either.
8 Q. Now I'd like to look at something with you, the Prosecution
9 document number 09930. This is a -- this is an UNPROFOR memorandum, I
10 guess, circulating an article written in November 1995 by a person
11 described as the ex-chief of the military information office of the UN in
12 Zagreb who is, himself, a UN intelligence officer from Belgium, talking
13 about his experiences in relation to the enclaves. The name of the
14 individual is in the first paragraph, sir. First of all, are you
15 familiar with either this document or the individual who is referenced
16 [overlapping speakers] --
17 A. If I could ask the Registrar to expand the -- I'm sorry, even
18 though I'm wearing my glasses, my eyes are starting to go, expand the
19 size a little bit.
20 Q. Don't worry, sir, I'm also working off the hard copy because I
21 can't see with my glasses either, so you're not the only one.
22 A. The person you're talking about is this commandant Jan Segers?
23 Q. Segers. Segers, yes.
24 A. I'm not aware of him. No, sir, I don't believe I know him.
25 Q. First enough. I would like to look at some of the points he
1 raises. If we could have page 2 of the document in English and this will
2 be page 4 of the Serbian and it's the fourth question on that page.
3 JUDGE ORIE: Could I just inquire, does this reflect the whole of
4 the article or is it excerpts of the article written? Because --
5 MR. IVETIC: My understanding of it is that it is a translation
6 of the article that would have been distributed by UNPROFOR at some point
7 in time. I don't even know the date. It would have been after -- the
8 article is written in November -- it would have been after
9 30 November 1995, but there's no date on it indicating when it would have
10 been transmitted. The end -- the last page has the authors of the
11 article listed which seems to indicate that it would be the entire -- the
12 entirety of the article, but since we do not have the original text in
13 French for this Prosecution document, I cannot make any affirmative
14 representations on that, Your Honour.
15 JUDGE ORIE: Thank you.
16 MR. IVETIC: And if we could focus then on the fourth question
17 from the top. I see it is on the screen.
18 Q. I will read it to you so that hopefully the small text will be
19 overcome. And this is how it goes:
20 "How can you explain the so long survey of Bihac?
21 "JS - thanks to the money that cams permanently, given by the
22 Arab countries or by the refugees installed in Europe. Countless
23 suitcases full of German marks arrived by helicopter or by road, brought
24 in by locals or strangers. We even catch two colleagues UNMO doing this
25 little traffic. They had 50.000 German marks and two mobitel, they have
1 been send back on the spot. The 5th Corps sent for packages of money two
2 times at night by helicopter. It is believed that the amounts of money
3 who came in pro week were around 10 millions of mark, a billion Belgian
4 franc each month."
5 First of all, Mr. Butler, am I correct that Bihac was another
6 safe area or enclave like Srebrenica and Zepa?
7 A. Yes, sir, far north-western part of the country.
8 Q. Okay. Now, we see here information about suitcases of cash being
9 smuggled, including by UN staff that were caught and sent back. Did you
10 come across such information in the course of your research and did you
11 rely upon or exclude the same for purposes of reaching your -- for
12 writing your reports and reaching your conclusions?
13 A. I came across numerous instances where the UN forces were engaged
14 in extracurricular activities. Again, I testified even, with respect,
15 closer to home with the Zepa enclave. Obviously there's VRS documents
16 which talk about the fact that the Ukrainian peacekeepers there were
17 selling fuel to the VRS. I suspect the UN was selling fuel to all three
18 sides. It was certainly an issue that the VRS was concerned about, the
19 fact that, you know, the opponents that they were facing, you know, could
20 be getting illicit fuel and illicit support from UN sources.
21 Q. If we could turn to page 3 in the English and page 6 in the
22 Serbian, it is the end of the fourth question on the page in the English
23 and it is the last line of page 6 in the B/C/S, going on to the next
24 page --
25 JUDGE ORIE: There seems to be some sound on the English channel
1 which -- oh, it's the reconstruction work one of my colleagues tells me.
2 Then we have to bear it as it is.
3 MR. IVETIC: I'll try perhaps speaking closer to the microphone,
4 Your Honours, to try to minimise the interference.
5 Q. Again, we are looking at, if I could just -- yes, it is the
6 middle of the response of the individual to the question that is -- that
7 is the one, two, three, fourth from the top, and his response in the
8 middle reads as follows:
9 "I was doubting if they were intercepting our messages, but one
10 day I have the evidence. A Croatian colonel told me one day:
11 'Yesterday, in your sitrep this information was correct but this one was
12 not.' When I asked him if he had access to our reports, he told me: 'Of
13 course, yes.' Without knowing it or without willing to know it, the UN
14 was working as a source of information for the Croats. This is
15 unacceptable. I know that the Americans are given them information, but
16 I think that the UN was doing an unpardonable mistake."
17 Did you have such information that resulted from your research
18 and was it considered by you that the US and perhaps others in the UN
19 were leaking information to the Croats who at the time were allied with
20 the ABiH?
21 A. I can definitely tell you that when I was putting together my
22 reports, we had ample evidence that everybody was leaking to everybody.
23 The UNPROFOR was a pretty equal-opportunity source of information for all
24 three of the warring factions and all three of the warring factions did
25 actively seek to collect information from it that they could use to their
2 Q. And if we could go to the next page, the top question, it will
3 still be the same page in the B/C/S, although we need to scroll down to
4 the bottom of that page in the B/C/S. And again, I'll read it so we
5 don't have to strain our eyes:
6 "Q. It has been said that there are military American advisers
7 at the Croatian side.
8 "JS - why not? It is clear that there are retired officers,
9 Americans but also Germans, in direct support of the Croatian army. They
10 are not representing their government, but they are there at official
11 request. In Zagreb there is an office of 'consultancies,' a private
12 company directed by American generals, which is given his services to the
13 Croatian army. One day in Sector West, I requested to see the Croatian
14 commander, a certain Djanko. They told me he was absent because he was
15 visiting military installations in the United States. The same happened
16 in Bosnia with the General Galvin, retired military chief of NATO, who
17 was officially in charge as adviser of the Croat Muslims troops. Is this
18 a violation of the weapon embargo of ex-Yugoslavia? I prefer not to
19 pronounce me. One fact is clear, Croatia has bought modern weapons
20 coming from the arsenals of the ex-Warsaw Pact countries. And to have
21 this money, they should have been used money coming from drugs dealing."
22 Did you have and consider such information that the US,
23 unofficially through retired officers, helped both the -- both in Croatia
24 and in Bosnia the opponents of the VRS to break the arms embargo?
25 A. I had that -- I mean, obviously I was aware of the issue with
1 what was known as MPRI, a consultancy that did that. I was aware
2 obviously from United Nations report about reports of US working with at
3 least one side, the Bosnian Muslims, to violate the arms embargo.
4 Obviously I knew all of this in my reports. I just don't know how it's
5 germane to what happened in July of 1995.
6 Q. Well, sir, let me see if I can help you with that. With these
7 things we've been talking about going on in the time-period leading up to
8 July 1995, would they have given cause for the Serbs to pay particular
9 attention to the convoys, irrespective if they were UNPROFOR or some
10 other source, in your opinion and based upon your knowledge?
11 A. Yes, sir, and again as I've testified, you know, from the VRS's
12 own documents, you know, setting aside these types of documents, the VRS
13 believed that they had cause to want to ensure that equipment and
14 material that could potentially be diverted for military use by the
15 Bosnian Muslims in the enclave wasn't delivered.
16 MR. IVETIC: Your Honours, at this time I would tender
17 65 ter number 09930, the document that's up on the screen, into evidence.
18 JUDGE ORIE: Mr. McCloskey.
19 MR. McCLOSKEY: Yeah, I would -- Mr. President, I would like more
20 foundation for this document. It is originally a Defence document. It's
21 only got, like, four lines of purported UN type on it. It's not like
22 anything I've ever seen. It's from an article allegedly and this should
23 be independently findable from this Belgian newspaper. So if we could
24 find out a bit more about where this came from and what it is before we
25 let it in.
1 MR. IVETIC: Just to be clear, it's a document on the
2 Prosecution's 65 ter list.
3 MR. McCLOSKEY: And what --
4 JUDGE ORIE: Mr. McCloskey --
5 MR. McCLOSKEY: So what?
6 JUDGE ORIE: Well, I take it that you must have an idea more
7 about whether you'd -- 65 ter list means documents you consider to use as
8 evidence --
9 MR. McCLOSKEY: Not necessarily, Mr. President.
10 JUDGE ORIE: [Overlapping speakers] well, that's what the 65 ter
11 list is for, isn't it ?
12 MR. McCLOSKEY: Not completely, no. I think fundamentally, yes.
13 But we put things on there to make sure they are visible available and we
14 might have the opportunity to use them. They don't necessarily -- a
15 document like this -- the fact that it is on the 65 ter list is
16 certainly -- and I'm sure everyone would agree with me, does not mean
17 it's authentic. The 65 ter list is designed as a notice issue, not as an
18 authentication issue.
19 JUDGE ORIE: Yes, but you would give notice that you may use a
20 document which you consider not to be authentic?
21 MR. McCLOSKEY: Absolutely, especially if the Defence brings it
22 up and causes it to be authentic. It's not something that we would think
23 about that's part of this case, but just because it's on the 65 ter list
24 doesn't mean it's authentic.
25 JUDGE ORIE: Yes, you would like to have more -- you mean even to
1 demonstrate efforts of deception might need evidence which would then
2 result in tendering not authentic documents, authentic only for the
3 purposes of deception. Let's not at this moment try to -- one of my
4 concerns - and I'm looking to both parties - is that some of the English
5 is rather difficult to understand. Apparently the original is in French.
6 Second, the document starts saying that it is an article by Mr. Segers
7 and apparently it is an interview with Mr. Segers, so whether it reflects
8 his own words is another issue that everyone will have to consider.
9 I ...
10 [Trial Chamber confers]
11 JUDGE ORIE: The Chamber will MFI the document and urges the
12 parties to see whether the original French version is available; and if
13 not, then to further explore the origin of this document as presented
15 Madam Registrar, the number would be?
16 THE REGISTRAR: Document 09930 receives number D360,
17 Your Honours.
18 JUDGE ORIE: And is marked for identification.
19 Please proceed.
20 MR. IVETIC: Thank you, Your Honours.
21 I would now like to look at number 25915, which unfortunately is
22 a document with no translation so I'll have to switch to B/C/S to briefly
23 read the part of this order from 12 May 1995 from the Birac Brigade. So
24 I give notice to the translators that I'll be switching languages and
25 hopefully my pronunciation will be sufficient to allow it to be
1 translated into English. I begin:
2 [Interpretation] "Pursuant to available information, UNPROFOR
3 members as well as of UNHCR and other international organisations are
4 involved in illegal transport of fuel for the Muslims in the enclaves of
5 Sarajevo, Gorazde, Zepa, and Srebrenica.
6 "They smuggled the fuel in reservoirs with double walls and
7 larger reservoirs on combat and non-combat vehicles which are then
8 emptied in the enclaves. What they leave in the reservoirs are smaller
9 quantities of fuel which are enough only to enable them to travel from
10 the enclaves to the territories of the SRJ and the RS."
11 Q. [In English] Now, sir, have you had occasion -- have you had
12 occasion to run across such documentation in the course of your inquiry
13 into events in Srebrenica in 1995, even though it was -- would not have
14 been available in an English translation apparently?
15 A. I can say that I have seen English-language documents from the
16 VRS which essentially say the same thing. Their concern was that
17 basically the vehicles going in to the enclave with nearly full fuel
18 tanks would leave with nearly empty fuel tanks and that was viewed by the
19 VRS to be a potential means for fuel to be smuggled into the enclave.
20 Q. Thank you, sir.
21 MR. IVETIC: Your Honours, this document has been used now I
22 think with two witnesses. Can we get it MFI'd, and obviously it does
23 need a translation but I don't want it to get lost in the mix of the
24 trial record.
25 JUDGE ORIE: Madam Registrar, the number for the document would
2 THE REGISTRAR: Document 25915 receives number D361,
3 Your Honours.
4 JUDGE ORIE: And is marked for identification.
5 MR. IVETIC: Thank you, Your Honours.
6 At this time I'd like to look at Exhibit D00141.
7 Q. Sir, this is a situation report from the NorBat UNPROFOR which,
8 it's my understanding, had among other places in Bosnia had some men
9 based at Tuzla airfield. I think we can agree that the first page
10 indicates this covers the period of 12 February 1995. Do you believe
11 that you would have seen this document before?
12 A. Again, I don't discount that I wouldn't have come across it.
13 It's -- I don't know why I would have considered it, you know, relevant
14 to -- again, what the focus of my report is on.
15 Q. Well, let's turn to page 2 and see if it does in your opinion.
16 In the middle of the page within the "general overview" section there is
17 a reference to the following:
18 "Late Friday night an aircraft was observed flying at low
19 altitude over the area east of Tuzla, with every indication that it was
20 going to land. It was assumed that this would happen at Tuzla east where
21 there is an extended highway strip. The UN APCs which were sent out to
22 investigate the matter were prevented by the BiH (Bosnia-Herzegovina
23 Army) from doing so. It therefore cannot be confirmed whether the
24 aircraft actually landed or not or whether a load was dropped at low
25 altitude ..."
1 Sir, you earlier mentioned knowledge of some involvement between
2 the US and the ABiH in terms of weapons shipments. Is this what you made
3 reference to, that the weapons transfers were taking place at Tuzla?
4 A. What I was making reference to was the UN's report on Srebrenica
5 where they discuss that particular issue. I take it since this is a UN
6 report, this is one of the sources they drew on to draw that conclusion.
7 Q. Okay. Now I'd like to look at D00140 with you.
8 JUDGE ORIE: Could I ask the witness --
9 MR. IVETIC: Yes.
10 JUDGE ORIE: -- you said the UN's report on Srebrenica where they
11 discussed that particular issue, and you take it that since this is a UN
12 report that this is one of the sources, although it says something about
13 possibly having landed or a --
14 THE WITNESS: What I can say is, again, if one looks at the
15 United Nations own report on Srebrenica, there is a discussion in that
16 report - and I couldn't tell you exactly what paragraph it is - but
17 certainly that report discusses and concludes the fact that there were
18 clandestine arms shipments that came in from that area. Again, I take it
19 this is one of the documents, but certainly not all they would have drawn
20 a conclusion from.
21 JUDGE ORIE: Yes, because it doesn't talk about weapons, at least
22 from what I see at this moment, but in the context with other evidence it
23 may be that this is indicative --
24 THE WITNESS: And again I have no -- I take it as a matter of
25 fact I have no information that would dispute the UN's conclusion there
1 and what I've learned obviously in the years since that is that in fact
2 there is a body of evidence that supports this conclusion.
3 JUDGE ORIE: Yes.
4 Please proceed.
5 MR. IVETIC: Thank you. If we can have -- pardon me,
6 Exhibit D00140. I see it's on the screen.
7 Q. We can see from the first page that this is a letter from
8 General Mladic to General Smith dated 14th February, 1995, two days after
9 the document from NorBat that we just looked at. And if we can have the
10 next page, please, I'd like to introduce -- talk with you about the
11 letter to see if this was something you had access to. So please bear
12 that in mind as I read the introductory part of this correspondence which
13 reads as follows:
14 "Dear General,
15 "We are gravely concerned over the frequent use of Tuzla airport
16 by the Muslim side. The aircrafts are bringing weapons, ammunition, and
17 war materials for their needs.
18 "Unfortunately, this pirate activity of their aircraft is enabled
19 by the NATO airforce, and the Muslim army does not allow your forces to
20 control the loads.
21 "I am sure you share my opinion that these activities are
22 seriously jeopardising the signed agreements and represent a serious
23 breach of the truce and of relevant Security Council Resolutions.
24 "I ask you to take urgent measures to stop these
25 peace-threatening activities, otherwise we will be compelled to take the
1 necessary measures regarding the Muslim side's violations of the Tuzla
2 safe area, which is, in the presence of your forces, turning into a war
3 base for Islamic countries."
4 First of all, sir, do you believe that you had this letter and
5 the information contained therein at your disposal when you were doing
6 your research and reaching your conclusions?
7 A. I can't say that I've seen this letter, but again on the broader
8 sense obviously I testified previously that I had a knowledge that during
9 the conflict these types of things were occurring.
10 Q. There is a truce mentioned in this letter. Am I correct that
11 there was a cessation of hostilities agreement in place at the beginning
12 part of 1995?
13 A. Yes, sir.
14 Q. And in relation to the clandestine arms that were coming into
15 Tuzla, what is your information? Were they -- was that their end point
16 or were they being transported from Tuzla to some other location?
17 A. No, sir. The information that -- and again, drawing from the
18 United Nations' own report, those weapons, some of them were in part
19 being smuggled into Srebrenica and subsequently to Zepa.
20 Q. Okay.
21 MR. IVETIC: If I could have D00142 in e-court.
22 Q. I think we'll see when it comes up that it is another letter, a
23 protest, from General Mladic to UNPROFOR, this time to
24 General de Lapresle. And let's look at the part that reads at the first
25 introductory, two paragraphs that read as follows:
1 "On 23 February 1995, at about 2010 hours, a transport plane,
2 with weapons and military equipment, landed again at Tuzla airport's
3 secondary runway. It was escorted by 2 NATO fighter aircraft which were
4 protecting it during flight and off-loading.
5 "Unfortunately, this has been repeated lately in front (within
6 sight and hearing) of NATO and UNPROFOR forces both in the air and at
7 Tuzla airport itself. Those forces are doing nothing to prevent the
8 violation of the relevant UN Security Council Resolutions prohibiting the
9 import of weapons and military equipment."
10 Did you have information that NATO aircraft were involved in
11 these clandestine shipments into Tuzla?
12 A. I don't know that I had specific information that it was NATO
13 aircraft. But it was -- given the fact that NATO was policing the no-fly
14 zone over Bosnia, I'm quite comfortable with the assumption that if
15 they're not NATO-operated they're certainly operating with the knowledge
16 of at least some NATO partners.
17 MR. IVETIC: If we can turn to 1D605 in e-court.
18 Q. While we wait for that, I can tell you, sir, this is a document
19 that purports to be from the embassy of the Republic of BiH in Croatia.
20 JUDGE ORIE: Before we do so, could I have just a few small
22 MR. IVETIC: Yes, Your Honour.
23 JUDGE ORIE: First, I noticed that the subject of this is
24 expressed as, "Protest letter for General Mladic." I take it that it is
25 protest letter from General Mladic if that is at the top.
1 MR. IVETIC: Actually, I believe if you read the explanation,
2 sir, it indicates that it was signed for General Mladic on behalf of. I
3 think "for" is meant on behalf of in the context of the note that says
4 the signature is not General Mladic's. BSA HQ only advised us that it is
5 the signature of another general authorised by ...
6 JUDGE ORIE: The "for" then would stand for "signed on behalf
7 of." I thought it was a letter, although signed on behalf of, but still
8 coming from General Mladic.
9 MR. IVETIC: Right.
10 JUDGE ORIE: That's one.
11 Second, do I understand that well that this document is explained
12 to have been signed by General Mladic although someone else signs for him
13 without the usual "for" expressed in the document itself?
14 MR. IVETIC: If we could turn to the last page --
15 JUDGE ORIE: Yes --
16 MR. IVETIC: -- I really don't know. Unfortunately, this
17 document is only in English, too, so I don't know whether it was written
18 in English or whether there was ever a B/C/S original.
19 JUDGE ORIE: Yes, the -- this is the only thing we have, I see.
20 I noticed on the previous document as well there was a signature there --
21 MR. IVETIC: Correct.
22 JUDGE ORIE: -- and which I don't know whether that was
23 General Mladic's signature or whether the parties have any view on that
24 or whether it was similarly signed by someone else.
25 JUDGE MOLOTO: What --
1 JUDGE ORIE: I'm talking about the previous document, the
2 previous letter of protest.
3 MR. IVETIC: The previous document would have been 1 -- pardon
4 me, D00140, I believe.
5 JUDGE ORIE: Could we then have a look at that one in the
6 original. Or was it the one before --
7 MR. IVETIC: Last page.
8 JUDGE ORIE: Oh, last page. Yes, there we see something at the
9 bottom written. Now, I don't know whether that is --
10 MR. IVETIC: Perhaps if you can zoom in on it.
11 JUDGE ORIE: Is this -- how does the Chamber -- do the parties
12 have any view and the witness have any view on how we should understand
13 this handwriting?
14 THE WITNESS: I have no particular comment on it. I couldn't --
15 I don't know what that is.
16 MR. IVETIC: It's my understanding that this would have been a
17 translation done by UNPROFOR so I don't know -- I mean, this is not
18 obviously the --
19 JUDGE ORIE: Yes. The originals are not available.
20 MR. IVETIC: Correct.
21 JUDGE ORIE: Then we have to live with that for the time being.
22 Please proceed.
23 MR. IVETIC: Thank you, Your Honour. I believe we were just
24 about to look at 1D605 in e-court. This is from the embassy of the RBiH
25 in Croatia and it's a list of a bunch of military supplies being sent to
1 Bihac, again, one of the other safe areas, and is dated 29 May 1993. If
2 we can turn to page 2 in the English and remain on page 1 in the original
3 B/C/S, I think we will see it refers to the fact that these were sent via
4 truck number UNHCR-10379. Did you come across documentation like this in
5 your research about specific inventories of military equipment being
6 smuggled via trucks that were marked as being official UNHCR convoys?
7 A. Not only -- again, I've -- not simply documents. I'm also aware
8 of we have videotapes that were done by the Republika Srpska television
9 company, RS TV station, you know, where the VRS is searching some
10 vehicles that are reported to be either UNPROFOR or other NGOs and where
11 they pull various weapons and ammunition out. Again, certainly it was an
12 issue that the VRS was sensitive to.
13 MR. IVETIC: Your Honours, I would tender this document, 1D605,
14 as the next available exhibit number.
15 MR. McCLOSKEY: No objection.
16 JUDGE ORIE: Madam Registrar.
17 THE REGISTRAR: Document 1D605 receives number D362,
18 Your Honours.
19 JUDGE ORIE: And is admitted into evidence.
20 [Trial Chamber confers]
21 JUDGE ORIE: I was just wondering, it comes to my mind that I've
22 seen this document before. Was that another version or was it not
23 admitted or tendered or ... ?
24 MR. IVETIC: It was used, I believe, with General Rupert Smith
25 and at that time he did not have knowledge of it so I did not tender it.
1 JUDGE ORIE: So then, yes, then at least my recollection serves
2 me well, but we now have it in evidence.
3 Let's proceed.
4 MR. IVETIC: I would, Your Honour. I think we are at the time
5 for the break.
6 JUDGE ORIE: We are at the time for the break. Thank you for
7 reminding me.
8 Mr. Butler, we would like to see you back in 20 minutes from now.
9 THE WITNESS: Yes, sir.
10 [The witness stands down]
11 JUDGE ORIE: We take a break. We resume at ten minutes past
12 12.00 and I would like to inform the parties that the Chamber would like
13 to have ten minutes at the end of the next session to deliver a decision.
14 We take the break.
15 --- Recess taken at 11.52 a.m.
16 --- On resuming at 12.13 p.m.
17 JUDGE ORIE: The witness will be escorted into the courtroom.
18 [The witness takes the stand]
19 JUDGE ORIE: Please proceed, Mr. Ivetic.
20 MR. IVETIC: Thank you, Your Honours.
21 If we can look together at 1D1246 in e-court, page 2 of the
22 electronic version, that should correlate to transcript page 20.506 of
23 the 28 January Popovic transcript from 2008. If we can focus on line 7
24 and the following.
25 Q. And, again, sir, follow along with me and I'll have some
1 questions at the conclusion of this selection:
2 "On the 15th of January, you mentioned the humanitarian convoys,
3 and you said that your task was not to provide a comprehensive view on
4 the policy regarding humanitarian convoys. I would like, however, to ask
5 you whether you conducted an analysis concerning the period going from
6 March to July 1995 regarding the number of convoys that were announced
7 and the number of convoys that were refused access.
8 "A. No, ma'am, I did not.
9 "Q. Throughout the same period, you did not, did you, conduct an
10 analysis about the number of convoys that were authorised access but
11 that, for another reason, never went to the enclave?
12 "A. That's correct, ma'am, I did not do that.
13 "Q. On the 15th of January, you stated that the policy of the
14 staff of the VRS, in terms of the convoys, was directly linked to
15 directive number 7. Did you conduct an analysis of the policy of the
16 Republika Srpska and its army regarding the convoys before the directive
17 was passed; in other words, before March 1995?
18 "A. No, ma'am, I did not.
19 "Q. In that case, how can you say that the policy of the
20 Army of the Republika Srpska, in relation to the convoys, was linked to
21 directive number 7? How can you say that?
22 "A. Well, ma'am, it's pretty self-evident in directive 7 what
23 that policy is, so all I did at that juncture was then look at the convoy
24 documents to determine whether or not there was evidence that such
25 policies were being carried out. Now, with respect to the
1 Dutch Battalion and their effect in January and February and March, prior
2 to that, I believe their testimony doesn't reflect the fact that their
3 soldiers were not being permitted back into the enclaves or that they
4 were not being seriously degraded in their -- the supplies that they were
5 getting until approximately the March 1995 time-frame. So, granted,
6 while I did not take into account a statistical analysis of that, I did
7 do it on a more anecdotal basis.
8 "Q. Is it correct that you do not know whether the percentage
9 [Realtime transcript read in error, 'personage'] of convoys that were
10 refused after the directive was higher than before the directive?
11 "'Percentage.' I was talking about percentage and I see in the
12 transcript that the word 'personage' has been included.
13 "A. Yes, ma'am, you're correct, I cannot give you a statistical
14 break down."
15 Sir, are your answers accurately recorded here?
16 A. Yes, sir, that's correct.
17 Q. And are those answers truthful such that you would so testify
18 today the same way?
19 A. Yes, sir. It remains the same today. I have not done a
20 statistical analysis to determine the status of each and every convoy.
21 Q. Okay. And if we can scroll down on this page to take up where we
22 left off at line 20.
23 "Q. Would you agree that the policy of Republika Srpska and the
24 policy of its army was the result of the abuse made of the convoys
25 because weapons had been transported in these convoys, as well as
1 humanitarian aid for the ABiH?
2 "A. Yes, ma'am. For the convoys, Bosnia-wide in general, the
3 VRS was aware of situations where weapons and other illicit goods were
4 being smuggled in on US -- UN vehicles, I should say, so certainly that
5 is a consideration that the VRS would have taken into account.
6 "Q. Do you know that the procedure regarding to the
7 authorisation for humanitarian aid convoys was different from the
8 procedure regarding UNPROFOR convoys?
9 "A. Yes, ma'am, I believe that's correct.
10 "Q. Are you aware that orders related to humanitarian aid
11 convoys existed right at the beginning of the war and that the procedure
12 did not change, was not modified, after the directive was passed?
13 "A. I don't know that as a fact, so I'm just not familiar with
14 convoy operations in the early war years, so I can't tell you 'yes' or
16 Now, sir, is this select both accurately depicted and are the
17 answers contained therein truthful to the best of your knowledge?
18 A. Yes, sir. I mean, again when I talk about the issue of policy,
19 it's the general policies related to inspection. I'm not meaning to
20 imply - and I hope I didn't in this particular context - that 7 --
21 directive 7 where it talks about strangling the enclave, you know, is
22 part of a broader policy of simply inspecting convoys to ensure fuel,
23 ammunition, and weapons don't get into the hands of other warring
25 Q. Now, sir, in the direct examination that you gave I may have
1 missed something, but I don't remember you ever mentioning the existence
2 of a co-ordinating body during this time-period that had certain
3 authority over convoys. Am I right that such a co-ordinating body
5 MR. McCLOSKEY: Objection, he's wrong that -- that was mentioned.
6 JUDGE ORIE: Then, Mr. McCloskey, you'll certainly be willing to
7 assist Mr. Ivetic in -- where he missed something. That happens to all
8 of us now and then, isn't it?
9 MR. McCLOSKEY: Of course, Mr. President. And my only point was
10 that the question cannot inject an incorrect premise in it.
11 JUDGE ORIE: No.
12 MR. McCLOSKEY: And that's why I say it was wrong.
13 JUDGE ORIE: I'm not blaming you in any way for objecting to the
14 question, but as a next step I'm inviting you to assist Mr. Ivetic to
15 overcome his flaws in this respect.
16 MR. IVETIC: Which I [overlapping speakers] -- in the question.
17 MR. McCLOSKEY: Yes, we will listen and of course be supported in
18 all ways we can.
19 JUDGE ORIE: Yes. That's why I dared to ask you.
20 JUDGE FLUEGGE: Mr. Ivetic was very careful putting his question:
21 "I don't remember you ever mentioning the existence ..."
22 And he added "I may have missed something ..."
23 JUDGE ORIE: Mr. Ivetic, perhaps you leave this for a moment
24 aside until you have found the source. I'm quite willing to assist you
25 as well, if need be, and move on meanwhile.
1 MR. IVETIC: Thank you.
2 If we can --
3 JUDGE FLUEGGE: But the question was: "
4 Am I right that such a co-ordinating body existed?"
5 And this question can be answered.
6 MR. IVETIC: Yes.
7 THE WITNESS: Yes, sir. I mean, I think I recall talking about
8 the fact that there is -- there was -- the Main Staff was directly
9 responsible for approving the UNPROFOR convoys, and therefore other
10 humanitarian good-related convoys I believe we did discuss that there was
11 another co-ordinating body. Obviously the Main Staff was part of it but
12 it was run by the civil side.
13 MR. IVETIC:
14 Q. Okay. In relation to that civil side, I'd like to look together
15 at another transcript reference, 1D1426, transcript page 20.509 -- oops.
16 One moment.
17 THE REGISTRAR: Could the counsel check if it's the correct
18 number, please.
19 MR. IVETIC: Actually, I think I'm -- I can't verify that right
20 now so I'll move on to another question, so as to save time.
21 MR. McCLOSKEY: We think it may be 1246.
22 MR. IVETIC: That's possible.
23 JUDGE MOLOTO: [Microphone not activated]
24 MR. IVETIC: But still I'd rather move on and come back to it
25 since I don't have the exact number in e-court.
1 JUDGE MOLOTO: 1246 is the one on the screen.
2 MR. IVETIC: Ah, I see. I apologise, it is the bottom of that
3 page. We can go back to it then, focusing on line 10.
4 Thank you, Your Honour.
5 JUDGE MOLOTO: You're welcome.
6 MR. IVETIC:
7 Q. And the discussion here is in relation to 5D605 in the Popovic
8 case which is 1D01265 in our case. And the questions to answers read as
10 "Q. My question is the following: Would you agree that with
11 respect to paragraphs 1 and 2 of this order, approvals regarding
12 humanitarian convoys were issued by the co-ordinating body?
13 "A. Yes, ma'am, they were the initial approval authority, but as
14 you can tell from the remainder of the body of the order, the fact that
15 they would initially approve a convoy, the Main Staff made it quite
16 clear, in the body of the order, that if it wasn't co-ordinated through
17 them, it still wasn't going through.
18 "Q. But if you turn to paragraph 4 on this first page of the
19 document, we can see that the document says sent by the VRS Main Staff to
20 its subordinate units, was a notification, notification regarding the
21 convoys that had been approved and the convoys that had not been
23 "A. What it's saying, at least to my reading, ma'am, is that
24 they're complaining that one of the problems that they have is that even
25 though convoys may have been approved by the co-ordinating body, they're
1 aware that sometimes they're not getting notified and that these convoys
2 are showing up unannounced at VRS check-points and it's causing a
4 If we can go to the -- yeah:
5 "Q. I don't want to argue with you. At paragraph 3 on this same
6 page, mention is made of the control of the VRS on the movement of
8 "A. Yes, ma'am. It specifically states that the army has the
9 obligation to check the teams and convoys passing through the territory."
10 Sir, do you agree that this testimony is accurately depicted and
11 that the underlying testimony by you is truthful?
12 A. I would concur with respect to the fact that, you know, this is
13 what I said in response to the questions related to the document. If
14 you're asking for me is -- do I still have the exact same view of the
15 document, I would ask you to put the document up so I can look at it. I
16 would probably concur but I just wouldn't want to do so without looking
17 at the document if that's what you're asking me to comment on.
18 MR. IVETIC: If we can pull up 1D01265.
19 THE WITNESS: As you can tell from the text of the transcript, it
20 appears that I have a difference of opinion with Defence counsel on that
22 MR. IVETIC:
23 Q. Yes. Please feel free to let the court staff to know if you need
24 to go to a different page of the document. As I understand, it you
25 looked at paragraphs 1 and 2 and then paragraph 4 of the first page and
1 then paragraph 3 on the same page. So if the questions thus far related
2 to the first page, but by all means if you need to turn to the others I'm
3 not going to stand in your way. And perhaps while you're reading this,
4 could you tell us if this would have been a document you recall having
5 had an opportunity to review for purposes of the report that you did?
6 A. Which one? I -- as you will note from my earlier reports with
7 the Srebrenica military narrative, I don't delve too deeply into the
8 issue of convoy discussions because those weren't an area of legal
9 concern during the Krstic and Blagojevic trials to the extent that they
10 are now. I probably did deal with it more in the Main Staff report so,
11 again, I did have access to those documents for that particular report.
12 Q. Thank you for clarifying that.
13 A. Page 2, please.
14 Yes, sir. To get back to your original question. Yes, sir, I
15 mean, the answers that I gave with respect to that time and how they
16 reflect to this document are still valid. It essentially is an order by
17 the Main Staff to its subordinates, noting the fact that even though they
18 don't have control with respect to the approval of a humanitarian convoy
19 by the co-ordinating body, if the co-ordinating body does not let the
20 Main Staff know in a timely manner that these convoys may be coming
21 through and what the cargo is, the Main Staff is telling them: We
22 reserve the right to stop these convoys. Again, there's a war going on.
23 The Main Staff has got to know about all these convoys, whether they're
24 UNPROFOR or whether humanitarian, in order to be able to inspect them,
25 check them out, and even, you know, in a more benign way to make sure
1 that they're not walking into the middle of a fight.
2 Q. Thank you.
3 MR. IVETIC: I'd like to tender 1D01265, the document that is on
4 the screen.
5 MR. McCLOSKEY: No objection.
6 JUDGE ORIE: Madam Registrar.
7 THE REGISTRAR: Document 1D1265 will be number D363,
8 Your Honours.
9 JUDGE ORIE: And is admitted into evidence.
10 MR. IVETIC: If we could return to 1D1246 and it should be, I
11 believe, page 7 of that document which should correlate to transcript
12 page 20.510 of the underlying Popovic transcript. And if we focus on
13 line 8 onward.
14 Q. This is -- it's in relation to the same order we just went
16 "Q. At point 1 of this order, convoys that had not been
17 announced were not allowed to go through?
18 "A. Yes, ma'am, it's what it's saying, is that unless they
19 receive -- unless the subordinate formations receive authorisation in
20 writing from the Main Staff, they're not to permit the convoy to pass.
21 "Q. In the remaining parts of this order, we have a list of the
22 controls that subordinated formations or units are supposed to conduct
23 when a convoy appears?
24 "A. Yes, ma'am.
25 "Q. Would you agree that these measures are precisely the same
1 as the one that existed in 1995, provided of course you know what
2 measures were to be followed in 1995?
3 "A. Well, yes, ma'am, with respect to the technical goods and
4 humanitarian aid issues, it just seems to be the same type of order. The
5 fact that they're not to allow anything more that pass -- that's been
6 authorised to pass, anything else will be confiscated, so in that sense
7 it's correct. This order obviously does not regulate anything with
8 respect to the issue of UN or even international personnel who leave a
9 particular area and what the policy is on allowing them to return. So in
10 that respect it is different."
11 And is this accurately and truthfully reflected in the testimony
12 on these answers -- on these questions, I should say?
13 A. Yes, sir.
14 Q. And would you agree with respect to humanitarian convoys there
15 were several agreements that were entered into and concluded between the
16 UNPROFOR and the VRS as to those convoys? Are you aware of that or not?
17 A. I couldn't tell you that I'm specifically aware at the moment of
18 the various agreements pertaining convoy regulation between UNPROFOR and
20 Q. Okay. I understand your answer. Would I be correct that in
21 drafting your reports, in particular your Main Staff report, reaching
22 your opinions you did not have any specific knowledge about the technical
23 details of these agreements that existed between UNPROFOR and the VRS?
24 A. Again, I may have at the time. I just -- I don't recall them at
25 the moment now. If I did, I would like to believe that I would have
1 referenced them in the report, but I just -- I don't recall having
2 knowledge of that.
3 Q. Okay. And if we could turn to 1D1246, page 7, and line 10
4 through 20. I think I can refresh your recollection:
5 "Q. Have you had the opportunity to see the agreements passed
6 between the VRS and UNPROFOR?
7 "A. For which particular time-frame, ma'am?
8 "Q. 1995, and especially after the directive was passed.
9 "A. No, ma'am. I don't believe I've seen any agreements or any
10 of the technical agreements with the UN with respect to those convoys for
11 post March 1995.
12 "Q. But before March 1995?
13 "A. I believe my association with those documents relates to
14 convoys passing between the VRS positions around Sarajevo. They're not
15 directly related to Srebrenica."
16 Does that assist you, sir, to refresh your recollection as to if
17 you would have had the technical details of these agreements in mind when
18 you reached your conclusions and drafted your various written reports?
19 A. At least -- again, I don't remember obviously - and I'm
20 consistent in at least not remembering - seeing anything post 1995 with
21 Srebrenica. Again, it may very well be that I have seen some of the
22 technical agreement documents with Sarajevo that related to an earlier
23 period. I certainly don't discount that I did; and again, if I did so,
24 hopefully it's marked in my Main Staff report or at least talked about in
25 my direct testimony.
1 Q. If we can please turn to page 9 of this transcript, focus on
2 line 4 through 19:
3 "MS. FAUVEAU: [Interpretation] Could the witness be shown
4 Exhibit 5D727. It's in English. Could we see the signature at the
5 bottom of the document. It's a letter sent by General Ratko Mladic to
6 General Bernard Janvier. If you turn to the text itself of the document,
7 you'll see that reference is made to an agreement passed on the
8 4th of June, 1995.
9 "Q. Have you had the opportunity to see this agreement of
10 4th of June, 1995?
11 "A. I do not believe so, ma'am.
12 "Q. This document mentions contacts between the liaison officers
13 in the enclaves with the local commanders of UNPROFOR. Have you had
14 access to the material related to these contacts that apparently took
15 place on the 6th of June, 1995, if we are to believe this document?
16 "A. No, ma'am. With respect to Srebrenica, and Zepa, for that
17 matter, I am not aware of any meeting notes or things of that nature
18 that -- that would have occurred on 6 June 1995. It certainly may very
19 well have happened, but I don't recall coming across any notes reflecting
21 Does this accurately comport to your recollection of the
22 testimony and is said testimony truthful to the best of your knowledge
23 and information?
24 A. Well, again, given it's a conversation between myself and
25 Ms. Fauveau disputing or at least looking at a particular document, may I
1 please see the document.
2 Q. This one I don't have access to in our system or at least I have
3 not yet pinned down which one it is. All right. Well, let me ask you
4 this: For purpose of your research and reaching conclusions in relation
5 to the objectives of -- of the Serbs and the issue of humanitarian
6 convoys post March 1995, would you agree that the existence or
7 non-existence of contacts between the VRS and UNPROFOR and agreements
8 that may or may not have been reached would be germane to your review or
9 the type of review you were doing?
10 MR. McCLOSKEY: And can we --
11 JUDGE ORIE: Mr. McCloskey.
12 MR. McCLOSKEY: -- I'm sure he meant Bosnian Serbs, but I don't
13 want the record to reflect that Mr. Butler is referring to all Serbs in
14 his answer.
15 MR. IVETIC: I apologise, I meant Bosnian Serbs or VRS.
16 JUDGE ORIE: Now, the question moves from very concrete to
18 THE WITNESS: Abstract in a hurry.
19 JUDGE ORIE: Mr. Ivetic, I think for the Chamber to be fully able
20 to appreciate the evidence, we'd like to have a look at the document
21 itself as well and perhaps you may --
22 MR. IVETIC: I think Mr. McCloskey --
23 JUDGE ORIE: I see Mr. McCloskey is so assisting today perhaps in
24 this respect as well.
25 MR. McCLOSKEY: Yes, Ms. Stewart has found it as 17520 in our
2 MR. IVETIC: Thank you.
3 JUDGE ORIE: Perhaps we could have a look at it.
4 MR. IVETIC: Yes.
5 Q. While you're reading this, sir, perhaps keep in mind my first
6 question will be: Were you aware of this document or did you come across
7 it in your research.
8 A. If I was aware of it, I don't know what I would make of it. I've
9 read the paragraph three times, at least the first paragraph, and I don't
10 know that I can make any sense out of what General Mladic is offering
12 Q. Well, let's try to simplify. It does reference the existence of
13 an agreement entered into in June of 1995.
14 JUDGE ORIE: Everyone who can read can answer that question.
15 Next question, please.
16 MR. IVETIC: Okay.
17 Q. Did you have knowledge of any such agreements entered into in
18 June of 1995, relating specifically to Srebrenica, Zepa, Gorazde, and
20 A. No, sir.
21 Q. Okay.
22 JUDGE ORIE: Could I ask both parties: Is there any document
23 which contains such an agreement because the line of questioning is very
24 much you should have considered that agreement. I wonder whether there's
25 any source which gives us the text of that agreement.
1 Mr. Ivetic.
2 MR. IVETIC: Well, as Your Honours have seen, I did not even have
3 access to this document at the time that [overlapping speakers] --
4 JUDGE ORIE: So the simply answer is no?
5 MR. IVETIC: Correct.
6 JUDGE ORIE: Then, Mr. McCloskey, do you have a 4th of June
8 MR. McCLOSKEY: Not that I'm aware of. But as you know, you can
9 look --
10 JUDGE ORIE: Yes, perhaps I should have asked Ms. Stewart.
11 MR. McCLOSKEY: I take -- no, I won't take too much offence to
13 JUDGE ORIE: If you could trace any text of such an agreement,
14 then we would know what we are talking about.
15 If you want to take instructions in this matter?
16 MR. IVETIC: I would like to, Your Honour.
17 JUDGE ORIE: Please do so. But you know at short, low volume.
18 [Defence counsel and accused confer]
19 JUDGE ORIE: Mr. Ivetic.
20 MR. IVETIC: Thank you.
21 If I can assist, I'm told there may not be a written document
22 from this encounter, but there may be a recording, a video of the
23 meeting. We will investigate further and get back to the Chamber.
24 JUDGE ORIE: Yes. Wouldn't it have been easier just to have put
25 this document to the witness, Mr. Ivetic, instead of reading long
1 portions -- because that seems to have become your technique, to read --
2 if it is about whether what the witness said at the time is accurate or
3 reflected in the transcript, why not give it in advance, ask him to read
4 it, and ask us -- ask him to tell us whether he finds anything in the
5 transcript which is not reflecting what he remembers he would have said.
6 That saves such a lot of time, and this one as well. Go to the core of
7 your -- of the issue right away.
8 Please proceed.
9 MR. IVETIC: Thank you.
10 Q. Now, sir, would you agree with me that for purposes of your
11 review you did not do an extensive review of Ministry of the Interior
12 documents to determine what role the MUP or the Ministry of the Interior
13 of the Republika Srpska would have had in relation to authorisation of
14 convoys of humanitarian aid?
15 A. I -- I would conclude that the MUP's participation with respect
16 to the humanitarian aid would be as a result of whatever participation
17 they took in the civilian co-ordinating body issue. Again, my focus when
18 looking at the convoy documents was the practical application of those
19 convoys being able to move and under what circumstances. And ultimately,
20 again as we've talked about in a previous document, it was the army
21 that -- whether they had a vote at the co-ordinating committee level or
22 not -- or co-ordinating body or not, the fact is it was the army that
23 controlled the roads in Eastern Bosnia or in access to Sarajevo. And
24 they ultimately decided which convoys passed and under what
1 Q. And in relation to the MUP, I'd like to re-visit an issue from
2 direct examination. At transcript page 16.405, Mr. McCloskey asked you
3 and -- about -- at lines 7 through 15 the question was in relation to a
4 Mr. Karisik that you identified as being the head of the RDB, the
5 Republika Srpska State Security Service. In that relation I'd like to
6 call up document 1D01259. This is a dispatch dated 27 July 1995. In
7 B/C/S the header at the top reads:
8 "MUP RS - RJB Bijeljina.
9 [Interpretation] "Broj: RJB-314/95."
10 [In English] And I believe we can see at the bottom of the screen
11 that it is signed by the [Interpretation] Head of the RJB,
12 Milenko Karisik.
13 [In English] Sir, is this the same person that you were
14 testifying about that you indicated was the head of the RDB or the
15 Republika Srpska State Security Service?
16 A. Yes, sir, I believe it is.
17 Q. Looking at the date of the document, are you -- does it refresh
18 your recollection that in fact he was head of public security at that
20 A. That may well be the case that I'm misremembered it. My
21 recollection that he was head of the state security branch.
22 Q. Okay. Now, I wanted to ask you, sir, one of the check-points
23 near Srebrenica known as the "Yellow Bridge," are you familiar with such
24 a feature or a location?
25 A. Yes, sir.
1 Q. Would you agree with me that this check-point existed from 1993
2 onwards at this location, and thus could not have been said to be
3 established subsequent to directive number 7?
4 A. The facility known or the check-point known as the Yellow Bridge
5 was the long-established check-point which was where you entered the
6 UN -- you know, you cross the bridge and you enter essentially the safe
7 area of Srebrenica. So yes, the establishment of a check-point at the
8 Yellow Bridge was not a direct correlation to directive 7.
9 Q. And specifically in relation to the Zvornik Brigade, I believe
10 for purposes of your report you may have cited to two reports relating to
11 items confiscated from convoys. Am I correct, you did not do a
12 comprehensive review of the Zvornik Brigade documents in relation to
13 locating all of them that dealt with convoys?
14 A. No, sir. Again, with respect to the Zvornik Brigade documents
15 and particularly my early work, I did not go back and look at all
16 Zvornik Brigade documents as they might relate to convoys through 1994
17 and 1995, particularly up to March of 1995.
18 Q. In relation to the convoys, would you agree with me that there
19 was a requirement for the convoys to have an inventory listing the goods
20 being transported, both in terms of what they were and their quantity?
21 A. Yes, sir.
22 Q. And in your opinion was such a provision entirely reasonable,
23 given the circumstances of the war and the acts of misuse of convoys that
24 we've discussed here today?
25 A. What I have said about that issue is this: Certainly the VRS
1 from a military perspective had a right to inspect the convoys to ensure
2 that goods that they considered to be military in nature or that might be
3 diverted for military use would be, you know, either kept to a minimum
4 because they were -- belonged to the UN or they were denied access in the
5 enclaves. The question as to whether restricting the amount of broader
6 humanitarian goods and under what circumstances that activity was
7 reasonable is a case-by-case basis.
8 MR. IVETIC: I'd like to call up 19596 in e-court.
9 Q. I think you will see when it comes up this is a
10 1st Zvornik Brigade command regular report to the Drina Corps dated
11 April 4, 1995. If we could turn to the third page in the English, the --
12 I believe it should be the last page in the B/C/S. Item number 10, sir,
13 talks about the crossing of various convoys. We see two UNHCR convoys
14 and three MSF, or Doctors Without Borders, Medecins Sans Frontieres,
15 convoys that went through. And apparently there was only one that was
16 stopped that material was seized and that's identified here at the bottom
17 of this page and the top of the next page. And it would appear -- at
18 least there's no indication that other material was not allowed to pass
19 through. Would you agree that for purposes of your research where items
20 were not on inventory, only the items that were not on inventory were
21 confiscated and the convoys were allowed to proceed with all other items?
22 A. I don't know that that's the case. Again, they're in this
23 particular document, it is an assumption that can be made, but again it
24 doesn't specifically -- if I remember this document correctly because
25 I've talked about it, this document does not specifically note the fact
1 that these items were seized because they were not inventory items.
2 They're noting that they were seized, no explanation.
3 MR. IVETIC: If we could tender this document as the next
4 available exhibit number.
5 JUDGE ORIE: Mr. Ivetic, I think it's in evidence already as
7 MR. IVETIC: I apologise. And Your Honours said you needed ten
8 minutes at the end of the session. I believe we are just about there.
9 JUDGE ORIE: We are close to that moment, yes.
10 Mr. Butler, your break will be a little bit longer than ours. We
11 would like to see you back in 25 to 30 minutes from now.
12 THE WITNESS: Yes, sir.
13 [The witness stands down]
14 JUDGE ORIE: And I would deliver an oral decision which is an
15 oral decision on the Prosecution's motion for leave to amend its
16 Rule 65 ter witness list.
17 On the 26th of June of this year, the Prosecution filed a motion
18 for leave to amend its Rule 65 ter witness list, seeking the addition of
19 Witnesses RM096, RM097, RM098, RM099, RM182, RM378, and RM379. The
20 Prosecution submits that these additions should be considered in light of
21 its 20th June 2013 notice of its intention to reduce the evidence it
22 adduces in support of its case. The Prosecution states that the decrease
23 in both the total number of witnesses and live witnesses resulting from
24 its notice and from the motion constitutes good cause for adding the
25 witnesses to its Rule 65 ter witness list, as the Defence will require
1 less preparation time for the remaining Prosecution witnesses and will
2 not be prejudiced. Further, the Prosecution submits that witnesses'
3 evidence either addresses issues and potential defences raised during the
4 trial or addresses with greater specificity issues related to the
5 Prosecution's burden of proof. The Prosecution submits that even if it
6 lacks good cause, the witnesses' evidence is relevant and probative and
7 it is in the interests of justice to grant the proposed additions.
8 After being granted an additional 14 days in which to respond, on
9 the 23rd of July, the Defence filed its response, objecting to the motion
10 in part. It requests that the addition of Witness RM099 be denied and
11 objects only to the proposed mode of testimony of Witnesses RM096, RM098,
12 and RM378. The Defence does not object to the addition of
13 Witnesses RM097, RM182, and RM379.
14 On the 30th of July, the Prosecution filed a request for leave to
15 reply, with its reply attached. The Chamber grants the Prosecution's
16 request and considers the reply to be validly filed on the
17 30th of July, 2013. In its reply, the Prosecution submits that the
18 Defence's objection to Witness RM099 was based on a mistaken premise,
19 that the witness had not previously testified before the Tribunal. The
20 Prosecution states that the witness has, in fact, testified in two
21 previous cases before the Tribunal and that these testimonies were
22 disclosed to the Defence on the 3rd of July, 2013, before the response
23 was filed.
24 The Chamber recalls and refers to the applicable law concerning
25 amendments to the Prosecution's Rule 65 ter witness list, as set out in
1 its previous decision filed on the 22nd of August of this year.
2 At the outset, the Chamber notes that the Defence's objections
3 regarding the mode of testimony through which the witness will eventually
4 testify are premature and misplaced. Instead, the proper forum for such
5 arguments would be in response to a motion tendering the evidence.
6 Accordingly, those parts of the response dealing with the proposed mode
7 of testimony will not be further considered in this decision.
8 The Chamber further notes that the Defence has not objected to
9 the addition of Witness RM096, RM097, and RM098, and Witness RM182,
10 RM378, and RM379 to the Prosecution's Rule 65 ter witness list. The
11 Chamber finds that it's in the interests of justice to add the
12 aforementioned witnesses to the Prosecution's Rule 65 ter witness list.
13 With regard to Witness RM099, whilst the Chamber considers that
14 the Prosecution has not shown good cause for adding this witness to its
15 Rule 65 ter witness list at this stage of the proceedings, the Chamber
16 considers the witness's evidence to be prima facie relevant and of
17 probative value. The Chamber finds that the addition of this witness
18 will result in a limited additional burden for the Defence given that the
19 witness will provide crime base evidence on Banja Luka and ARK topics,
20 upon which the Chamber has already heard evidence. The Chamber reminds
21 the Defence that it has 14 days to respond to the Prosecution's Rule 92
22 quater motion relating to Witness RM099, a request that was granted by
23 the Chamber on the 19th of August of this year. Should the Defence
24 require additional time to respond to the motion, the Chamber will
25 consider such a request. In light of the aforementioned, the Chamber
1 finds that it is in the interests of justice to allow the addition of the
2 witnesses to the Prosecution's Rule 65 ter witness list. Further, the
3 Chamber grants the Prosecution's request to exceed the word limit in the
5 And this concludes the Chamber's decision. We take a break and
6 we resume at 1.30.
7 --- Recess taken at 1.11 p.m.
8 --- On resuming at 1.34 p.m.
9 JUDGE ORIE: The witness will be escorted into the courtroom.
10 Meanwhile, there are a few requests for extensions of time
12 Mr. McCloskey, is there any objection to any of the requests?
13 [Prosecution counsel confer]
14 MR. McCLOSKEY: No, Mr. President.
15 JUDGE ORIE: Then the request for the extension of time to
16 respond to the 34th motion to admit evidence pursuant to Rule 92 bis is
17 partially granted, the new dead-line being the 24th of September. The
18 Defence motion to enlarge time to respond to the Prosecution's second UN
19 bar table motion is partially granted and the new dead-line is set at
20 11th of October, which means 30 days for the Defence from today.
21 [The witness takes the stand]
22 JUDGE ORIE: And finally the Defence motion to enlarge time to
23 respond to the Prosecution's 35th motion to admit evidence pursuant to
24 Rule 92 bis, that is about Witness RM275, the Defence had asked for
25 30 days. 21 days are granted, so you have until the 3rd of October,
1 Mr. Lukic.
2 If Mr. Ivetic is ready, we can continue.
3 MR. IVETIC: Thank you, Your Honour. I'm ready to proceed.
4 I would ask that we call up exhibit -- document 1D01269 in
6 Q. We had left off by looking at a Zvornik Brigade report to the
7 Drina Corps about the convoy from Doctors Without Borders. We now have a
8 report from the Drina Corps to the Main Staff from the same time-period,
9 and if you could look at item number 3 I think we'll see that it says in
10 relation to the UNPROFOR convoys and teams:
11 "The situation is under control and all the planned UNPROFOR
12 convoys and teams crossed our territory without any holdups."
13 There is no mention in this document at least of any reporting
14 about the incident in relation to the convoy vehicle from
15 Doctors Without Borders. Did you do any research to determine if, in
16 fact, incidents at -- in relation to goods being confiscated if they were
17 accurately reported upwards towards the Main Staff or not?
18 A. No, sir, not in the sense that you're talking about, if I sought
19 to do that. With respect to what the brigades were reporting related to
20 that and then through the corps and then to the Main Staff.
21 Q. Thank you.
22 MR. IVETIC: Your Honours, I would tender 1D01269.
23 JUDGE ORIE: Madam Registrar.
24 THE REGISTRAR: Document 1D01269 receives number D364,
25 Your Honours.
1 JUDGE ORIE: Since there are no objections, D364 is admitted into
3 MR. IVETIC: I would then call up 1D266 in e-court.
4 Q. This is a one-page report from the command of the
5 1st Bratunac Brigade signed by a Captain Momir Nikolic and it gives some
6 information. I'd like to focus on the last two paragraphs which state:
7 "I would like to inform you that the co-ordinator of the
8 MFS/?MSF/ - Medecins Sans Frontieres organisation publicly apologised for
9 the abuse of /trust of/ and /one of/ his members in Srebrenica and
10 publicly admitted that the Serbian side had behaved perfectly, correctly
11 when it confiscated the vehicle and smuggled goods. This
12 delegate - Jean - was removed from the MFS/?MSF/ organisation and
13 returned to his country because of abuse /of trust/ and smuggling with
14 Muslims from Srebrenica and Naser Oric.
15 "The MFS/?MSF/ co-ordinator asked me to put this case behind us
16 and said that it should not affect the further co-operation between the
17 Serbian side and the above-mentioned humanitarian organisation."
18 Now, did you have access to and review this report for purposes
19 of reaching the conclusions that you did testify about in relation to
20 humanitarian convoys?
21 A. Could you go back up first on this document so that I could look
22 at the ERN number.
23 Q. Absolutely. If you go in the original I think that would be --
24 A. It's a relatively low ERN number, so I gather at some juncture I
25 may have had access to it. I don't know whether I've seen it offhand.
1 Q. Do you have an independent recollection of this event, where the
2 Doctors Without Borders made a --
3 A. No, sir, and that's why I wanted to read the whole document to
4 see if it could refresh my memory as to whether I've seen this document
5 or not.
6 Q. Fair enough.
7 A. Would you give me a minute, sir?
8 Q. Sure.
9 A. No, sir, I have not seen this document before; or if I did, it
10 didn't stick in memory.
11 Q. Fair enough, sir.
12 MR. IVETIC: Your Honours, I would tender this as the next
13 available Defence exhibit number.
14 MR. McCLOSKEY: No objection.
15 JUDGE ORIE: Madam Registrar.
16 THE REGISTRAR: Document 1D01266 receives number D365,
17 Your Honours.
18 JUDGE ORIE: D365 is admitted into evidence.
19 Could I ask the parties whether there's any further information
20 available about incident of smuggling prior to the 11th of January so
21 that we know more or less what the seriousness of the issue was. Is
22 there any -- could the parties see whether they can find anything on that
23 so --
24 MR. IVETIC: Definitely, Your Honours --
25 JUDGE ORIE: -- as to better enable the Chamber to understand the
1 importance of this document.
2 JUDGE FLUEGGE: May ...
3 [Trial Chamber confers]
4 JUDGE FLUEGGE: May I --
5 JUDGE ORIE: Of course I refer to 11th of January, 1995, which is
6 the date of this document which was admitted a minute ago.
7 JUDGE FLUEGGE: May I go back to the question Mr. Ivetic put to
8 the witness last. It was:
9 "Do you have an independent recollection of this event?"
10 This is a question which was not answered by you.
11 THE WITNESS: I'm sorry. No, I do not. I have no recollection
12 of that event whatsoever.
13 JUDGE FLUEGGE: Thank you very much.
14 THE WITNESS: Or I should say I have no knowledge of that event.
15 MR. IVETIC: If we can turn to document -- 65 ter number 1D01270.
16 Q. This is a code restricted report on the implementation of the
17 cessation of hostilities agreement during March 1995. If we could turn
18 to page 4 of the same, I believe that there is a section on humanitarian
19 aid at paragraph 7. If we could zoom in on that and talks about the
20 proportion of aid that actually got into the enclaves during the
21 time-period, and it says the penultimate conclusion or end, I should say:
22 "Approximately 18.000 metric tons of aid were delivered in total,
23 compared to the monthly target of 22.800 metric tons. This success ratio
24 breaks down as follows:
25 "Bihac - 29 per cent.
1 "Sarajevo - 71 per cent.
2 "Srebrenica - 93 per cent.
3 "Zepa - 80 per cent.
4 "Gorazde - 83 per cent."
5 Now, sir, did you have access to this document or access to this
6 type of information independent of this document at the time that you
7 were performing your review and making your conclusions as to
8 humanitarian aid convoys in the area of Srebrenica?
9 A. I don't believe I've ever seen this document before. Again,
10 this -- I take it this is -- this is March of 1995, correct? I mean --
11 Q. That's correct.
12 A. No, I don't recall seeing this document.
13 Q. Okay. If -- if I can ask you, apart from this document did you
14 have any data for the months up to March 1995 as to amounts of aid that
15 were projected -- that were supposed to get through and amounts of aid
16 that actually did get through to the enclaves when drafting your reports
17 and reaching your conclusions that you testified about?
18 A. Again, sir, with respect to my reports the documents with respect
19 to the convoys are issues I've testified. They aren't dealt with in my
20 reports, we didn't have these documents early on and I certainly didn't
21 look at them early on. And again, as I've testified, I've not done a
22 broad statistical analysis with respect to how many convoys departed, how
23 many arrived, and what percentage of them were either turned around or
24 what percentage of cargo was taken off under the circumstances.
25 Q. Okay. Then I'd like to move to a different topic. The first day
1 of direct examination and several times thereafter you focused on the
2 inclusion of civilian population in certain VRS military orders and have
3 testified about what you think that means. By way of refreshing
4 everyone's memory, T -- transcript page 16141 is one such example in
5 relation to P2095 and perhaps we can call up P2095 for purposes of the
6 next few questions.
7 Now, sir, in direct you focused on the language at item number 1
8 that says:
9 "Launch on attack using the main body of troops and major
10 equipment to inflict on the enemy the highest possible losses, exhaust
11 them, break them up or force them to surrender, and force the Muslim
12 local population to abandon the area of Cerska, Zepa, Srebrenica, and
14 Now, if I'm correcting recalling your testimony you seemed to
15 imply that while it was okay to direct an attack on the enemy soldiers
16 and while you acknowledged the Bosnian Muslim soldiers withdrew their
17 support for the civilian population, you implied that this order was
18 illegitimate or demonstrated an attempt to violate international law
19 because of the inclusion of the Muslim local population. Am I correctly
20 understanding your evidence, and if not please correct me.
21 A. What I recall that I said was that -- it was -- I didn't pass
22 actually, I don't believe, a value judgement on that issue. What I
23 believe I said was that it is inappropriate to target civilian population
24 or objects, make them the target of a military attack.
25 Q. Okay.
1 A. Ultimately the issue of lawfulness is a matter for the Court to
2 decide, not me.
3 Q. And at transcript page 16.143, lines 17 to 18, in answering
4 Judge Orie's follow-up question you elaborate by saying:
5 "It is a recognition in my particular case that something can
6 have military utility yet still be patently unlawful."
7 Does that fresh your recollection if you were --
8 A. Yes, sir, it was my comment back to Judge Orie and his question.
9 From a legal perspective obviously it's contradictory that something
10 could have military value or have a military utility as a tactic and yet
11 be unlawful. The fact is that is the case.
12 Q. Now, you'll agree with me, I think, that there is a stark
13 difference between a military temporarily removing a civilian population
14 from a zone of combat on the one hand and a military permanently removing
15 a population on the other hand, am I right?
16 A. Yes, sir. I would distinguish that.
17 Q. Will you agree with me that where a party is intended to engage
18 in combat with an opposing force, the civilians usually leave the combat
19 zone of their own accord as the fighting gets close to them?
20 A. I suspect the answer is that where possible civilians do not want
21 to find themselves in the line of fire, yes, sir.
22 Q. Would you agree with me based on your military background,
23 experience, and expertise that the ABiH forces operating in this same
24 area had an affirmative obligation under international military law to
25 remove themselves from areas populated by civilians, so as to prevent the
1 civilian population from becoming, in essence, a human shield exposed to
2 potential combat?
3 A. Well, yes, sir. My understanding is that all warring parties, to
4 the degree that they can to take steps to ensure that they can conduct
5 combat operations in a way that minimise the risk to civilians.
6 Q. In the case of combat, either initiated by or foreseen by the
7 ABiH forces, would you agree that the ABiH forces in this area had an
8 affirmative obligation to move civilians from amongst the combat zone to
9 areas of safety?
10 A. In abstract I would. In the context of what was actually
11 happening, I guess the question that I would have is: Where would you
12 move them to an area that the ABiH would be considered safe? I mean in
13 this context again we are talking about a -- while rather large pocket,
14 it is one that is behind the lines of VRS territory.
15 Q. And would you agree that the ABiH forces in this area had an
16 obligation not to locate their military structures, like headquarters,
17 weapons depots, and troop formations near civilian areas?
18 A. Are we talking about November of 1992 or are we talking about
19 July of 1995?
20 Q. We're talking about the 1992 for the time-period of the document.
21 A. I'm not aware that the military forces of the ABiH that were
22 operating in the Cerska or Udrc regions at the time had weapons depots
23 and things of that nature. Certainly the military forces would be under
24 an obligation to not set up military targets or, where possible, not use
25 populated villages as a key component of their defence lines where they
1 could. Again, it's a matter of practical aspect. I mean, if the village
2 is in the middle of the road and you need to fight over the road, the
3 village is going to become a military object at some juncture. Some
4 things are not avoidable.
5 Q. Now, as to civilians that are caught in a combat zone, perhaps
6 due to the ABiH's failures to live up to obligations, would you agree
7 that the VRS has a legitimate incentive to engage in a tactic to attempt
8 to modify the civilian-to-combatant ratio in that area so as to try to
9 cure the ABiH's non-compliance and minimise collateral damage that would
10 have been expected from legitimate combat?
11 JUDGE ORIE: Mr. McCloskey.
12 MR. McCLOSKEY: Objection, that's long and confusing and it also
13 assumes facts not in evidence. It would have to be done as a
14 hypothetical, which I don't have a problem with a hypothetical --
15 MR. IVETIC: It is a hypothetical.
16 JUDGE ORIE: Well, to some extent one of the seven questions
17 certainly puts some hypothesis under it.
18 But, Mr. Ivetic, could you please rephrase all of your seven
20 MR. IVETIC: Yes, Your Honours, and I could perhaps even cut them
22 Q. When a party is contemplating combat, isn't it a legitimate
23 tactic to attempt to modify the civilian-combatant ratio in that area so
24 as to try to minimise collateral damage that would be expected from such
25 legitimate combat?
1 JUDGE ORIE: That's still three questions in one, and apart from
2 that it's all hypothetical. And of course a tactic -- whether a tactic
3 is legitimate or not also depends, of course, which means are used in
4 order to -- could you please be concrete, Mr. Ivetic, and put to the
5 witness what apparently you want to suggest was the situation in
6 July 1995.
7 MR. IVETIC:
8 Q. Was the VRS entitled to engage in attempts to modify the
9 civilian-combatant ratio in an area prior to engaging in combat to try to
10 minimise collateral damage?
11 A. I guess what I am unclear about in your question is what you mean
12 by the phrase "modify the civilian-combatant ratio."
13 Q. Modify the non-combatant to combatant ratio, sir. It's a term of
14 art in the military, I believe, for reducing the number of civilians in
15 an area, so as to do your proportionality analysis to determine if a
16 military action with a military purpose, even with a risk for collateral
17 damage, is -- gets a green light or a go order.
18 JUDGE ORIE: Mr. McCloskey.
19 MR. McCLOSKEY: If you -- if he's now defining this term of
20 reducing the Muslims in an area --
21 MR. IVETIC: I didn't say "Muslims" --
22 MR. McCLOSKEY: -- you said a reducing of the number of
24 MR. IVETIC: Right.
25 MR. McCLOSKEY: Given how many civilians were forcibly
1 transferred or murdered in this war, I think we should have a clear
2 meaning of what he means by "reducing civilians."
3 MR. IVETIC: Getting them out of the area.
4 JUDGE ORIE: Which means -- or would you leave that entirely
6 MR. IVETIC: [Overlapping speakers] --
7 JUDGE ORIE: Yes, but it's a hypothetical question, Mr. --
8 MR. IVETIC: Mr. McCloskey asked me to make a hypothetical.
9 JUDGE ORIE: If you say take a balloon and put them all in a
10 balloon and take them out, that might be different from loading them into
11 buses and driving them out and that may be different. There are so many
12 options, so therefore to say -- to ask whether this would be legitimate
13 or not, let's try to stick to the facts as they were there rather than to
14 lose ourselves in the abstract possibilities.
15 JUDGE MOLOTO: If I may.
16 JUDGE ORIE: Please proceed.
17 JUDGE MOLOTO: If I may just -- I was going to say what
18 Judge Orie is saying. But I just want to look at this document that's on
19 the screen which is the source of all of these questions that are
20 hypothetical at this stage. Mr. Ivetic, what you read to the witness
21 before you asked these questions is a passage that says:
22 "Launch an attack using the main body of troops and major
23 equipment to inflict on the enemy the highest possible losses, exhaust
24 them, break them up or force them to surrender, and force the Muslim
25 local population to abandon the area of Cerska, Zepa, Srebrenica, and
2 Now, these are facts stated as not in hypotheses, just stating
3 what should be done. I thought if you confine yourself to what is said
4 here we would understand your questions better.
5 MR. IVETIC: I realise that, Your Honour. Unfortunately, the
6 problem we have is the English translation of this document is not true
7 to the B/C/S which is what I was getting to --
8 JUDGE ORIE: Then you ask for a better translation, but this does
9 not -- is -- it's not an explanation on how you put your questions.
10 MR. IVETIC: I will, Your Honour. But I was under the impression
11 that he was a military expert, not that he's been --
12 JUDGE ORIE: Mr. Ivetic, I think the matter is clear to you now.
13 Mr. McCloskey, anything to add?
14 MR. McCLOSKEY: Just that we completely disagree on the
15 interpretation issue, so you know --
16 JUDGE ORIE: If there is an interpretation issue which should be
17 resolved, the Chamber is always assisting in getting the best
18 translation, and finally the Chamber will have to interpret on the basis
19 of the best available translation what the document tells us yes or no.
20 Please proceed, Mr. Ivetic.
21 MR. IVETIC: Thank you.
22 JUDGE FLUEGGE: Just one observation, this document is already in
23 evidence and when it was tendered it was not objected in relation to the
24 quality of the translation. It is in evidence.
25 MR. IVETIC: Yes, it is, Your Honours.
1 JUDGE ORIE: Again, if there's any serious translation problem,
2 it would have been better to raise it, as suggested by Judge Fluegge,
3 when it was admitted. But if there is any thing that came up later, then
4 please don't hesitate to have it all verified, but don't use it as an
5 excuse for the way in which you are phrasing your questions at this
6 moment. You may proceed.
7 MR. IVETIC: Thank you.
8 Q. Well, let's go to very specific examples then. Sir, would you
9 agree that in the case of this region during that specific time-period,
10 it was not available to the VRS to drop warning leaflets to areas that
11 were going to be subjected to combat due to the no-fly zone that was
12 imposed on that region?
13 A. That is one explanation, I guess. I mean, I don't know from my
14 reading of the military documents that -- and again, with respect to
15 1992, I mean other people have studied that in more depth than I have.
16 I'm not aware that there was ever an intent to drop leaflets or documents
17 and that the issue of whether or not there was a no-fly zone or not had
18 any bearing on that.
19 JUDGE ORIE: Is there any dispute about the answer to this
20 question, that a no-fly zone would have prevented throwing leaflets?
21 Mr. McCloskey, I'm not asking you about the relevance of it; I'm asking
22 you whether there's any dispute about it.
23 MR. McCLOSKEY: I don't know. I just don't know. If the VRS had
24 asked for a special request so they could act like the US army acted in
25 Vietnam, whether that would have been approved or not, I don't know.
1 JUDGE ORIE: You don't know.
2 Please proceed, Mr. Ivetic.
3 MR. IVETIC: Okay.
4 Q. If done correctly, don't modern military forces use a concept of
5 warning shots before a ground attack against combatants in an area as a
6 means to minimise the presence of civilians when ground troops go in?
7 JUDGE MOLOTO: I'm sorry, Mr. Ivetic. Again you are asking
8 theory. You are not asking what happened. Were warning shots raised if
9 they were -- warning shots were shot. Put it to the witness that they
10 were shot at that time and let him say whether he knows or doesn't know
11 about that.
12 MR. IVETIC: Okay. Let's turn to his report number 04627,
13 page 36 in English, page 38 in B/C/S.
14 Q. While we wait for that, sir, I can tell you this is in relation
15 to your Srebrenica narrative revised where you describe how the VRS
16 forces were able to move the Dutch UNPROFOR without actually targeting
17 them as such or creating injuries upon them. It starts at 3.15:
18 "As the day wore on, the VRS forces continued to advance on Dutch
19 blocking positions using fire and manoeuvre tactics to force them back
20 without actually firing directly on Dutch troops. Thus, despite the
21 intensity of the conflict, the Dutch did not suffer casualties as a
22 result of VRS fire ..."
23 Later on in this same paragraph you say:
24 "Using the same tactics of fire and manoeuvre tactics, the VRS
25 continued to force the Dutch back, until the blocking positions were in
1 the town proper."
2 Sir, would you agree with me that by not actually targeting the
3 Dutch troops as such, the VRS had demonstrated an ability to effectively
4 use fire and movement tactics to clear both combatants, non-combatants,
5 and the DutchBat from an area without directly attacking them or causing
6 unnecessary collateral damage?
7 A. No, sir. What I said is what I meant, that when firing in the
8 direction of the Dutch Battalion, that is the tactic they employed. I
9 have no information that suggests that that is the same tactic they
10 employed when firing at Bosnian Muslim military units in July of 1995. I
11 limited that observation to the Dutch Battalion for those particular
13 Q. And what about the civilians that would have been near the
14 DutchBat according to the narrative and the evidence, would they also
15 have been moved in the same manner without injuries?
16 A. Again, sir, as evidenced in my narrative - and I don't believe
17 that any additional information has come to the contrary, during the
18 actual several-day operation where the VRS attacked down into and towards
19 Srebrenica, I don't recall documents indicating that, you know, as they
20 were heading towards Srebrenica that they would otherwise not distinguish
21 between military and civilians. I don't recall them deliberately
22 targeting civilians or being in a position to until potentially the 10th,
23 when they were actually in a position to fire on the town.
24 Q. Okay.
25 MR. IVETIC: If we can get back to P2095 now.
1 THE INTERPRETER: Would you kindly pause between questions and
2 answers for the interpreters. Thank you very much.
3 MR. IVETIC: I apologise.
4 Q. If we can focus on the paragraph in question again, number 1. In
5 English it says:
6 "An attack," in the Serbian attack would be "napadati" which is
7 not found in that paragraph. What is found are the words --
8 MR. McCLOSKEY: Mr. President, I'm going to object to any of his
9 off-the-cuff translation issues. He's corrupting the system.
10 MR. IVETIC: Should I read it in B/C/S?
11 JUDGE ORIE: Mr. Ivetic, Mr. Ivetic, you know that our
12 interpreters are not serving as translators. And therefore, a
13 verification of the translation of a written document should be submitted
14 to CLSS and that procedure should not be replaced by either you telling
15 us what the words are and what they mean or to read them to the
16 interpreters. And if there's any need on this specific matter to see
17 whether the translation should be revised, the Chamber will try to assist
18 you in order to have that urgently done.
19 Mr. McCloskey.
20 MR. McCLOSKEY: Mr. President, this has clearly been a deliberate
21 tactic to bring up translation issues to Mr. Butler at the last minute.
22 This document is clearly something that has been planned for. Mr. Butler
23 does like to consider things counsel says and takes it seriously. So I
24 think by not objecting to this -- this or other related intercepts at
25 this point he has waived his right to get into this issue. And certainly
1 not to drop his new versions on things.
2 Now we can discuss, as we do, afterward and if there are
3 documents, as we have recently done, that we can work an agreement on as
4 we can, I'm open to do that, but this is really -- this is a deliberate
6 MR. IVETIC: Do I need to respond?
7 JUDGE ORIE: Mr. Ivetic -- well, that the way in which you
8 introduced the translation issue was not the most elegant one --
9 MR. IVETIC: I agree.
10 JUDGE ORIE: -- I think you agree with that --
11 MR. IVETIC: I've been on my feet for eight hours. So, yes, I
12 agree, Your Honours, I'm not exactly the most elegant at times.
13 JUDGE ORIE: Mr. Ivetic, you have an opportunity after the court
14 hearing to make any attempt to have the translation revised, and the
15 request of the observation by Mr. McCloskey that you've waived your right
16 is not adopted by the Chamber. And I would invite you to use better
17 arguments than the one that you are eight hours on your feet. Please
19 MR. IVETIC: Thank you, Your Honour.
20 Q. Sir, are you familiar with the concept known as an undefended or
21 an open city as opposed to a defended city under the rubric of the
22 Additional Protocols of the Geneva Convention and, more closely to home,
23 US army doctrines as first established by field manual 27-10.
24 A. Yes, sir, I am.
25 Q. And by undefended city, will you agree with me that the
1 definition requires an undefended place within the meaning of Article 25
2 HR or the Additional Protocols in the Geneva Convention, depending on
3 which source one draws from, as being an inhabited place near or in a
4 zone where opposing armed forces are in contact which is open for
5 occupation by an adverse party without resistance. In order to be
6 considered as undefended the following conditions should be fulfilled:
7 Armed forces and all other combatants as well as mobile weapons and
8 mobile military equipment must have been evacuated or otherwise
9 neutralised; no hostile use should be made of fixed military
10 installations or establishments; no acts of warfare shall be committed by
11 the authorities or by the population; and no activities in support of
12 military operations shall be undertaken.
13 Do you agree with that definition, sir?
14 JUDGE ORIE: Mr. McCloskey.
15 MR. McCLOSKEY: What's the relevance of "undefended"? I don't
16 know where -- what are we suggesting is undefended?
17 JUDGE ORIE: Mr. Ivetic, could you inform the Chamber whether the
18 relevance is found in Srebrenica to be an undefended city? Because then
19 we could first ask the witness whether he considers that that was the
20 case. Is that --
21 MR. IVETIC: That's the question I want to ask him whether he
22 considers this area --
23 JUDGE ORIE: Okay --
24 MR. IVETIC: -- that was the subject of this order --
25 JUDGE ORIE: Okay, let's then try not to waste too much time.
1 MR. IVETIC: Okay.
2 JUDGE ORIE: The first question is: Did you consider, with your
3 knowledge of international law, Srebrenica to be an undefended city?
4 THE WITNESS: In July of 1995?
5 JUDGE ORIE: Yes.
6 THE WITNESS: I've never defined it as an undefended city with
7 respect to the protections that it was involved. Even though there's
8 obviously a substantial civilian presence and a United Nations presence,
9 my understanding of an open city is that a party has to declare it as
10 such. And I'm unaware of the Bosnian Muslim political or military
11 leadership making a declaration that Srebrenica is an open city. So in
12 that respect, I've never considered it as such.
13 JUDGE ORIE: Please proceed, Mr. Ivetic.
14 MR. IVETIC:
15 Q. In relation to this same area, would you define it as a defended
16 city under the same international instruments?
17 JUDGE ORIE: Perhaps you should give the witness some time to
18 think about --
19 MR. IVETIC: Oh, I see that --
20 JUDGE ORIE: -- the answer because it is time to adjourn.
21 I also put on the record that, Mr. Ivetic, you are now at
22 approximately eight hours and 35 minutes at this moment.
23 Could the witness be escorted out of the courtroom, but I
24 again -- one second, Mr. Butler, one second. I would like to instruct
25 you again not to speak or communicate with whomever about your testimony,
1 which will continue early next week because we'd like to see you back on
2 Monday morning at 9.30 in this same courtroom. But before I ask you to
4 Mr. McCloskey, could you give us an indication now after a major
5 part of the cross-examination having -- is behind us, whether -- how much
6 time you approximately need for re-examination in seconds, please.
7 MR. McCLOSKEY: Yes, I've been thinking about that with the
8 re-opening of directive 4, that opens up a big area, but I don't want to
9 spend hours there so -- and I know that you don't either. So right now I
10 see one session.
11 JUDGE ORIE: One session, which means that most likely we'll not
12 conclude on Monday, but there's a fair chance that we would on Tuesday.
13 THE WITNESS: Yes.
14 JUDGE ORIE: Then you may follow the usher.
15 THE WITNESS: Thank you.
16 [The witness stands down]
17 JUDGE ORIE: We adjourn for the day and we'll resume Monday, the
18 16th of September, 2013, at 9.30 in the morning in this same
19 courtroom, I.
20 --- Whereupon the hearing adjourned at 2.18 p.m.,
21 to be reconvened on Monday, the 16th day of
22 September, 2013, at 9.30 a.m.