Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10167

 1                           Friday, 26 February 2010

 2                           [Open session]

 3                           [The accused entered court]

 4                           [The witness takes the stand]

 5                           --- Upon commencing at 2.15 p.m.

 6             JUDGE MOLOTO:  Good afternoon to everybody in and around the

 7     courtroom.

 8             Mr. Registrar, would you please call the case.

 9             THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon to

10     everyone in and around the courtroom.

11             This is case number IT-04-81-T, the Prosecutor versus

12     Momcilo Perisic.  Thank you.

13             JUDGE MOLOTO:  Thank you very much, Mr. Registrar.

14             Could we have appearances for the day, starting with the

15     Prosecution.

16             MR. SAXON:  Good afternoon, Your Honours.  Dan Saxon,

17     Mark Harmon, and Carmela Javier for the Prosecution.

18             JUDGE MOLOTO:  Thank you very much, Mr. Saxon.

19             And for the Defence, Mr. Lukic.

20             MR. LUKIC: [Interpretation] Good afternoon, Your Honours.  Good

21     afternoon to everybody in and around the courtroom.

22             Mr. Perisic will be represented in the courtroom today by

23     Novak Lukic, Gregor Guy-Smith, Boris Zorko, and Mr. Chad Mair today with

24     us.

25             JUDGE MOLOTO:  Thank you very much.

Page 10168

 1             Once again, may the record show that the Chamber is still sitting

 2     pursuant to Rule 15 bis in the absence of Judge Picard.

 3             Good afternoon to you, Mr. Simic.

 4                           WITNESS:  MIODRAG SIMIC [Resumed]

 5                           [The witness answered through interpreter]

 6             THE WITNESS: [Interpretation] Good afternoon to you,

 7     Your Honours.  Good afternoon to everybody in the courtroom.

 8             JUDGE MOLOTO:  Thank you very much, Mr. Simic.  Again, I'll still

 9     remind you, Mr. Simic, that you are bound by the declaration you made at

10     the beginning of your testimony to tell the truth, the whole truth,

11     nothing else but the truth.

12             Mr. Saxon.

13             MR. SAXON:  Thank you.

14                           Cross-examination by Mr. Saxon: [Continued]

15        Q.   Good afternoon, General Simic.

16        A.   Good afternoon, Prosecutor.

17             MR. SAXON:  If perhaps the binders that were made available to

18     the witness yesterday could be made available to him again.  And there

19     should be a binder that is marked "65 ter," and it's that particular

20     binder that I'd like him to look at.  And if we could please see

21     Prosecution 65 ter 2022 on the screen, 2022.  And there should be a tab

22     in that binder referring to 2022.

23             JUDGE MOLOTO:  Yes, Mr. Guy-Smith.

24             MR. GUY-SMITH:  If I'm not mistaken, this document presents the

25     first issue with regard to the question of fresh evidence, if this is not

Page 10169

 1     a P exhibit but a 65 ter exhibit.

 2             MR. SAXON:  Your Honour, as I've read the jurisprudence, fresh

 3     evidence -- fresh evidence addresses, if I could pull it out -- I do

 4     stand --

 5             JUDGE MOLOTO:  Corrected?

 6             MR. SAXON:  I do stand corrected, Your Honour.  Mr. Guy-Smith is

 7     correct.

 8             JUDGE MOLOTO:  I thought so too.

 9             MR. SAXON:  Yes.  And if I could have one more moment, please.

10             Well, quite frankly, Your Honour -- Your Honour, quite frankly,

11     I'm not sure that Mr. Guy-Smith is correct, and I will explain why.

12             If I direct your attention to the language from our

13     Appeals Chamber, the 26th of February, 2009, in the case of

14     Prosecutor versus Jadranko Prlic and all, and this was a decision on an

15     interlocutory appeal regarding presentation by the Prosecution of

16     documents during its cross-examination of Defence witnesses, and

17     paragraph 15 of that decision says the following:

18             "With regard to fresh evidence, this refers to material that was

19     not included in the Prosecution Rule 65 ter list and not admitted during

20     the Prosecution's case in chief, but that is tendered by the Prosecution

21     when cross-examining Defence witnesses."

22             I read that, Your Honour, as conjunctive, as a conjunctive

23     definition, material that was not included in the Prosecution's 65 ter

24     list and not admitted during the Prosecution's case in chief.

25             The document -- may I finish, please?  The document that I wish

Page 10170

 1     to show the witness now is a document that was on the Prosecution's

 2     65 ter list, and that is where I part company with Mr. Guy-Smith.

 3             MR. GUY-SMITH:  And I think there's a good --

 4                           [Trial Chamber confers]

 5             JUDGE MOLOTO:  Yes, Mr. Guy-Smith.

 6             MR. GUY-SMITH:  And there certainly is a good reason why we part

 7     company, inasmuch as Mr. Saxon has indicated this is a conjunctive as

 8     opposed to disjunctive reading of the situation, and that is, in large

 9     measure, based upon the Trial Chamber's decision in the very case in

10     which Mr. Saxon is discussing the appeal.  And I'm referring now to the

11     decision of the Trial Chamber of the 27th of November, 2008, in which

12     it's really quite clear that the Prosecution took the position, in

13     paragraph 13, and I quote:

14             "The Prosecution further relies on Rule 90(H) of the Rules in

15     order to justify the presentation and cross-examination of 'new

16     documents.'"

17             Which is what we're referring to here, also using the term "fresh

18     evidence."  And then there's a parenthetical remark which I think

19     directly contradicts the position that Mr. Saxon's taken here and

20     directly contradicts the position that the Prosecution took there, which

21     is:

22             "In other words, documents that have not yet been admitted."

23             Which go to the proof of the guilt of the accused, which is --

24     we'll get to that of this particular analysis.  But with regard to the

25     issue of whether this a conjunctive or disjunctive analysis, I think it

Page 10171

 1     is quite clear that with regard to the appeal decision that was relied

 2     upon, the Prosecution took a disjunctive as opposed to a conjunctive

 3     position.  And so that internally, if one is to view what the analysis is

 4     of the Appeals Chamber, it's quite clear that they were relying on the

 5     Prosecution's assertion that they were dealing with documents that have

 6     not yet been admitted, which is precisely the kind of document that

 7     Mr. Saxon is presently intending on using.

 8             MR. SAXON:  Your Honour, if that had been the intention of the --

 9     of our Appeals Chamber, then I would think, then, they would have written

10     that sentence in paragraph 15 much more differently.  They did not.

11             MR. GUY-SMITH:  Well, I tend to disagree, Your Honour.  And I

12     think that now what is happening is that Mr. Saxon is substituting his

13     desire for whether or not something is to be conjunctively or

14     disjunctively understood for what the reading is.  And it becomes a

15     question of the plain reading of the sentence.  And if it has two

16     interpretations, which I don't believe it does, based upon the history of

17     the litigation in question, then that poses another dilemma and something

18     that perhaps the Appeals Chamber may have to take care of in the future.

19     But in the history of this particular litigation, I don't think there's

20     any question at all that this was disjunctive analysis based upon a

21     disjunctive presentation.

22             JUDGE MOLOTO:  Thank you.  I've looked at the decision of the

23     26th of February, 2009, which I have here before me.  But I have not had

24     the benefit of the one of the 27th of November, 2008, which is, I think,

25     the first-instance decision that was being appealed.

Page 10172

 1             MR. GUY-SMITH:  That's correct, Your Honour.  So that's the

 2     decision upon which the Appeals Chamber is making a determination --

 3             JUDGE MOLOTO:  That's right.

 4             MR. GUY-SMITH: -- of the evidence that's been presented and the

 5     definitions that the parties took with regard to that evidence.

 6             JUDGE MOLOTO:  So with the definition that the parties took with

 7     regard to the evidence would then be resolved by the determination of the

 8     Chamber?

 9             MR. GUY-SMITH:  Absolutely, without a doubt.  But since we're

10     dealing with an issue of whether or not something's to be read as

11     disjunctive of conjunctive, and we're dealing now with an issue of

12     pleading.  Since in the first-instance the Prosecution took the

13     disjunctive position, I don't believe it's appropriate for the

14     Prosecution here to be interpreting the Court of Appeal's decision to be

15     anything other than that which they proffered in the first instance,

16     because the concerns were, in large measure, dealing not with the

17     question of a 65 ter list, but the question of what are the principles

18     that surround the issue of the requirements of the Prosecution with

19     regard to the evidence they present in their case in chief.  That's the

20     underlying thrust of this.

21             I think you also may well be familiar with this in your own

22     experience, having sat on another case where this issue came up as well.

23             JUDGE MOLOTO:  I've got it.

24             MR. GUY-SMITH:  I think it happened in the Delic case at some

25     point as well.

Page 10173

 1             But the fact of the matter is that the 65 ter issue is, in many

 2     senses, a secondary issue to the underlying question that is been

 3     presented in this part of -- in this litigation.

 4             Now, it does factor into part of the analysis, but I don't think

 5     we've gotten to that point yet, in terms of the presentation that

 6     Mr. Saxon has made.  Mr. Saxon is taking the position that 65 ter

 7     documents are necessarily excluded from this analysis, which I believe is

 8     not a reasonable or an accurate interpretation, predicated upon the state

 9     of the decision and the law that we have at the present time.

10             JUDGE MOLOTO:  Mr. Saxon, if my understanding of the

11     Appeals Chamber's decision, particularly in their decision of the

12     15th of April, 2008, in the Delic matter, the considerations that I think

13     are enunciated there center around fair trial for an accused, proper

14     notice, time to prepare, and all those considerations.  And could it

15     clearly be said that a document that was on the 65 ter list but which was

16     not tendered during the evidence-in-chief of the Prosecution, that the

17     Defence has proper notice of it at this stage?  Obviously, when it was

18     not used in the case in chief, they must have disregarded it.  And when

19     it now gets tendered, they need to get proper notice of it and have

20     sufficient time to prepare for it.  I think this is the underlying

21     thinking of the Appeals Chamber in its decision.  Really, the question of

22     listing one's 65 ter list doesn't seem to be me to be certainly an

23     important issue.  I'm --

24             MR. SAXON:  I will agree with you in part, Your Honour, but not

25     completely, and here is why.  And eventually we may have to ask the

Page 10174

 1     witness to leave the courtroom, but I'll try to -- perhaps it would be

 2     appropriate at this point to ask the witness to leave the courtroom.

 3             JUDGE MOLOTO:  Mr. Simic, can you excuse us for a while.

 4                           [The witness stands down]

 5             MR. SAXON:  Thank you, Your Honour.

 6             Your Honour, I don't agree with Your Honour's position

 7     completely, because I think there may be circumstances, and I think where

 8     we are at this moment is one of them, where it is certainly not unfair to

 9     the Defence for the Prosecution to use and possibly seek the admission of

10     at document from its 65 ter exhibit list that it did not tender during

11     its case in chief.  And here's why, in this situation, in fact, the

12     Prosecution believes it would be unfair to the Prosecution if the

13     Prosecution were prohibited from doing this.

14             Right now, I'm cross-examining this witness about the so-called

15     Drina Plan, which obviously is a major part of this witness's evidence.

16     It's an important document in the Prosecution's case.  And for the first

17     time on Wednesday afternoon, the Prosecution was informed that the

18     Defence position about the Drina Plan is that this was a work of

19     so-called strategic camouflage, and it seems to me -- and, you know, the

20     Prosecution was not informed about this in the Defence pre-trial brief,

21     et cetera, et cetera, not until Wednesday.  And suddenly the --

22     certainly, if this was going to be part of the defence of

23     General Perisic, the Defence would understand that the Prosecution, to

24     test that position, might want to use any document related to the

25     Drina Plan.  And in this case, we have one document - it's related to the

Page 10175

 1     series of documents that I was showing the witness yesterday - that was

 2     not admitted into evidence, but it was on our 65 ter list.

 3             And I don't think it should be a matter of any surprise, then, to

 4     the Defence, given the situation that we're in, that the Prosecution

 5     would want to use this evidence, particularly since it's material that

 6     was disclosed years ago to the Defence.

 7                           [Trial Chamber confers]

 8             JUDGE MOLOTO:  Yes, Mr. Guy-Smith.

 9             MR. GUY-SMITH:  Yes.

10             Looking at what Mr. Saxon has just said, I think it's curious and

11     strange, in the first instance, that if this document is as important as

12     Mr. Saxon now claims it to be, that this was not a document that was

13     presented in the Prosecution's case in chief with regard to a whole

14     series of documents that were presented with regard to the very thing

15     we're discussing here, which is the Drina Plan.  So I'm not sure that the

16     argument, as it's presently put forth to Your Honours, really holds

17     water, because, in fact, what it seems to be being said by Mr. Saxon is

18     that, Since the Defence has challenged Prosecution evidence, we now are

19     in a position to rebut that challenge, which is a different standard to

20     be used than the standard that Mr. Saxon is presently dealing with.  And

21     I think part of the difficulty that we're having here is that the

22     underlying principle, that the Prosecution is supposed to present that

23     evidence and those exhibits in their case in chief to establish their

24     case, and obviously their position, which is the guilt of the accused, is

25     to be done at that time; isn't to be done piecemeal, isn't to be done

Page 10176

 1     through cross-examination with fresh evidence, and in a situation whereas

 2     here, from the Prosecution we have been told this an important document

 3     concerning an important matter, which is part of -- I think probably one

 4     of the foundation principles of their case, their failure to have

 5     presented that document to the Chamber in their case in chief is perhaps

 6     unfortunate and perhaps an oversight, or perhaps it's sandbagging and

 7     they're relying on weight.  I'm not in a position to say.  But you have

 8     seen myriad documents with regard to the Drina Plan, you've seen myriad

 9     documents of this sort in their case in chief.  At this point, to single

10     out this one particular document as now having this critical

11     significance, where they full well know what case their prosecuting and

12     they full know well that we're challenging their evidence, I don't think

13     is appropriate under the decisional law as it stands.

14             MR. SAXON:  Your Honour, if I may.

15             The issue that Your Honour raised was whether 65 ter documents

16     are automatically included in this concept of fresh evidence, first from

17     the Delic appeal decision, where it is not specifically stated there, and

18     then from the subsequent Prlic appeal decision, where, again, from a fair

19     reading, it would seem to exclude documents; it would not include

20     documents that were on the Prosecution's 65 ter list from this world or

21     universe of so-called fresh evidence.  That is the specific question

22     before Your Honour right at this moment, not these broader issues raised

23     by Mr. Guy-Smith.

24             MR. GUY-SMITH:  Well, if such be the case, then the argument just

25     posed by Mr. Saxon and I responded to is irrelevant, and I do apologise

Page 10177

 1     for taking up the Court's time in that regard.

 2             The fact of the matter is that I think it's very clear that this

 3     type of evidence is evidence which is a new document for purposes of the

 4     analysis that we're engaged in here, and, as such, falls within the

 5     jurisprudence.

 6             And -- I mean, I think it's of importance - excuse me, I have to

 7     find something - that in the self-same paragraph that Mr. Saxon is

 8     reading from, that's paragraph 15, and relying on, it says:

 9             "The Appeals Chamber" --

10             The last sentence:

11             "The Appeals Chamber further clarifies that in this decision the

12     term is not limited to the material that was not available to the

13     Prosecution during its case in chief."

14             Well, what information was available to the Prosecution during

15     its case in chief?  Obviously, if none other information, most assuredly

16     the information that was contained on their 65 ter list.  That's why I'm

17     suggesting the disjunctive as opposed to -- the disjunctive as opposed to

18     conjunctive reading.

19                           [Trial Chamber confers]

20             JUDGE MOLOTO:  The Chamber does not feel fully prepared to rule

21     on this objection at this stage.  The Chamber would like to study the

22     situation a little further.  Is it possible, Mr. Saxon, that you can deal

23     with other documents which are not fresh evidence - I'm just using that

24     word colloquially, not legally - so that the Chamber can find time to

25     think about this and study the totality of this.  We'll try to do it

Page 10178

 1     while the witness is here.  To the extent that the Defence would say they

 2     have had sufficient notice, those are all issues, of course, that will

 3     have to be taken into account.  We'll try to do it while he's here, and

 4     we'll see what happens, if we hear any further arguments on sufficient

 5     time and other things.

 6             MR. SAXON:  One moment, Your Honour.

 7                           [Prosecution counsel confer]

 8             MR. SAXON:  Your Honour, I could change the order of my

 9     examination-in-chief.

10             Just to warn the Court as to what is coming, after this document

11     that we've been discussing the last few minutes was dealt with, I had

12     intended to show the witness another exhibit, a Prosecution exhibit,

13     again related to the Drina Plan.

14             JUDGE MOLOTO:  Is it an exhibit or is it a --

15             MR. SAXON:  It is an exhibit, it is an admitted exhibit,

16     Your Honour.  But then at that stage I was planning on having this

17     particular discussion that we've just begun on the issue of fresh

18     evidence, because the Prosecution has a series of documents, similar to

19     what I've been showing to this witness, related to the

20     Army of Republika Srpska's work on the Drina Plan that were never put on

21     the Prosecution's 65 ter list, nor, obviously, admitted into evidence.

22     And so the discussion at that point, in other words, just one or two

23     documents from now, I was planning on having a broader discussion as to

24     why the Prosecution wishes to use these documents at this time with this

25     witness; that the Prosecution, again, because we were told about this

Page 10179

 1     defence -- line of defence on Wednesday, we then found these documents,

 2     and we would like to use them with the witness to test his credibility.

 3             We haven't decided -- and I've got about a dozen documents from

 4     the 1st Krajina Corps of the VRS, and a similar number of documents from

 5     the Sarajevo Romanija Corps of the VRS, and a similar number of documents

 6     from the Drina Corps of the VRS; and what the Prosecution was hoping to

 7     do today was to use these documents with the witness to test his

 8     evidence, mark them for identification, and decide -- and perhaps have a

 9     final discussion as to whether they may be admitted into evidence as

10     inculpatory evidence after the witness's testimony is done, after all

11     cross-examination, Judges' questions, and redirect.  That was going to be

12     the Prosecution's proposal today, Your Honour, hoping to do this in a

13     reasonably efficient way.

14             MR. GUY-SMITH:  Well, of the 178 documents that we received from

15     the Prosecution and that they indicated they might be using

16     cross-examination, I think that they have identified now somewhere in the

17     neighbourhood of 40, give or take a few - I'm using your figures of 12,

18     12, and 12, which I think comes to 36, plus I know that you have another

19     couple of 65 ter documents that I think fall in the same category of

20     discussion - I don't know whether or not there's going to be any

21     examination with regard to the other exhibits, the actual P exhibits or

22     D exhibits, which may be a matter to allow the Chamber time to reflect

23     further on the general issue, although Mr. Saxon obviously is not only

24     free but obviously going to do his cross-examination in any fashion he

25     deems appropriate, but it seems to me that, first of all, as a practical

Page 10180

 1     matter, there may be a way of dealing with those exhibits that you wish

 2     to cross-examine Mr. Simic about that are, in fact, not in dispute with

 3     regard to this particular issue.  I offer that as a first thought.

 4             I think that the Chamber's aware of the fact that, when dealing

 5     with this kind of evidence and this kind of proffer, that the analysis is

 6     on an ad-hoc basis, which would mean, literally, document by document,

 7     which could be quite tedious and cumbersome in the absence of us all

 8     having some common ground and familiarity with the underlying

 9     jurisprudence.  So I don't believe that Mr. Saxon's suggestion, although

10     I understand what it is, I don't think it's terribly practical at the

11     moment.  But, then again, I don't know what other areas of examination he

12     intended to go into.  And perhaps I'll pass the floor back to him to deal

13     with that to see whether or not there's a way of accommodating the

14     Chamber's question in the first instance or not.

15             JUDGE MOLOTO:  From what I understand Mr. Saxon to be saying, it

16     seems as if, indeed, he is not in the position to accommodate the

17     Chamber, because two documents from now he would be getting into this

18     same area, with a difference that --

19             MR. GUY-SMITH:  He may have another topic, is what I was

20     suggesting.

21             JUDGE MOLOTO: -- with a difference that that time the documents

22     are not on the 65 ter list and therefore they take a slightly different

23     shade.  But, again, a decision would have to be made at that stage.

24             MR. SAXON:  Your Honour --

25             MR. GUY-SMITH:  I agree.  And what I was suggesting, and

Page 10181

 1     perhaps I -- Mr. Saxon, please.

 2             MR. SAXON:  Your Honour, if it would suit the Chamber, I can -- I

 3     will take my cross-examination out of order, at least until the end of

 4     this session, if that suits the Chamber.  And I will deal with documents

 5     that have been admitted, if that is -- I just wanted to foreshadow what

 6     was coming today, that's all, before a final decision was made.

 7             JUDGE MOLOTO:  Thank you, Mr. Saxon.

 8             Shall we recall the witness?

 9             MR. SAXON:  Very well, Your Honour.

10             JUDGE MOLOTO:  Thank you.  The Court is indebted to you.

11                           [The witness takes the stand]

12             JUDGE MOLOTO:  Thank you for your patience, Mr. Simic.

13             THE WITNESS: [Interpretation] I feel it to be my duty.

14             MR. SAXON:

15        Q.   Good afternoon again, Mr. Simic.

16        A.   Good afternoon, Mr. Prosecutor.

17        Q.   I'd like to take some time to explore with you the subject of

18     sanctions that were imposed on the Republika Srpska by the

19     Federal Republic of Yugoslavia, starting in August of 1994.  And I

20     believe you'll recall that this included a blockade of the Drina River so

21     that goods, with the exception of humanitarian aid, could not pass from

22     the Federal Republic of Yugoslavia across the river to the

23     Republika Srpska.  Have I described that reasonably well?

24        A.   Yes.

25        Q.   And on Tuesday of this week, at page 9996, lines 11 through 18,

Page 10182

 1     you testified that the VJ, and I'm quoting now, "fully" honoured the

 2     decision of the Government of the Federal Republic of Yugoslavia

 3     concerning the sanctions imposed on the -- on Republika Srpska.  Do you

 4     recall that testimony?

 5        A.   Yes, completely.

 6        Q.   Very well.

 7             MR. SAXON:  Can we please show the witness -- first of all, the

 8     witness needs to be given his binder that refers -- excuse me.  Now, I

 9     have a document for the witness.  Mr. Usher, if you could come over here.

10             Could we bring up on e-court Prosecution Exhibit P222.

11             I have a copy in the witness's language.  If you could show this

12     to Mr. Lukic so that he's all right with providing it to the witness.

13        Q.   General Simic, you'll see that this is an article from the

14     "Borba" daily newspaper, dated Friday, 5th of August, 1994, and it's

15     titled "Federal Government Decides to Cut Political and Economic Ties

16     with Republika Srpska."  And then it says:  "Border on the Drina Closed."

17     Are you following me?

18        A.   Yes, so far.

19        Q.   And there's a discussion in the early paragraphs about the

20     decision of the Government of the FRY to cut all political and economic

21     ties with Republika Srpska.  And then in the English version, about

22     two-thirds of the way down the page, there's a stand-alone sentence that

23     says:

24             "The Federal Republic of Yugoslavia border is closed for all

25     shipments into Republika Srpska except food, clothes, and medicine."

Page 10183

 1             Do you see that?

 2        A.   Yes, I do.

 3        Q.   Can we -- if this article was published on the

 4     5th of August, 1994, can we -- can we agree that the Government of the

 5     Federal Republic of Yugoslavia made its decision to begin imposing

 6     sanctions on the 4th of August?  Can we agree on that?

 7             Mr. Simic, did you understand my question?

 8        A.   Yes, I did, Mr. Prosecutor.  Just give me a minute to look at it

 9     and to refresh my memory.

10             I see that this article is dated the 5th of August.  It seems to

11     me, but I'm not quite sure, I think that the sanctions came into force on

12     the 8th of August.  That's what I think.  I'm not sure.

13             MR. SAXON:  Okay.  Thank you for that.

14             We can move away from this exhibit now.  And I believe now if we

15     could give the witness his binder with the Prosecution exhibit documents,

16     P documents, and if we could call up Exhibit -- and if we could call up

17     Exhibit P230 on e-court, please.  And there should be a tab -- and maybe

18     the usher might still be able to assist the witness, because there are

19     many tabs.  We're looking for the tab that says "P230."

20             THE WITNESS: [Interpretation] Mr. Prosecutor, I was under the

21     impression that the documents were put in the order that you were going

22     to put questions to me.  Therefore, I'm finding it a bit difficult to

23     find my bearings, but I will do my best to do that.

24             MR. SAXON:  I completely understand, and I'm very grateful for

25     your patience.  When we come back to a different topic, you will see that

Page 10184

 1     the documents that I show you, if I'm allowed to show them to you, are in

 2     a particular order.

 3        Q.   If you take a look at this document, which is Exhibit P230,

 4     you'll see it says "Defence, State Secret" at the top, and it's a record

 5     of a meeting of the Federal Republic of Yugoslavia and Republika Srpska

 6     representatives of the highest political and military leadership held on

 7     the 25th of August, 1995, at the Army of Yugoslavia Residence in

 8     Dobanovci.

 9             You see that at the top on the first page?

10        A.   Yes, I do.

11        Q.   And we'll see -- in the third paragraph, we see who was present

12     from the Yugoslav side; President Zoran Lilic, Slobodan Milosevic, Momir

13     Bulatovic, Radoje Kontic, Lieutenant-General Momcilo Perisic, Federal

14     Minister of Defence Pavle Bulatovic, Major-General Susic.  And then we

15     see in the next paragraph the members of the delegation from the

16     Republika Srpska, which included Radovan Karadzic, Momcilo Krajisnik,

17     Lieutenant General Mladic, et cetera.

18             And then in the fourth paragraph - I'm still on the first page,

19     General Simic - it says:

20             "The meeting was also attended by His Holiness Pavle, the

21     Patriarch of the Serbian Orthodox Church, and by the Orthodox Bishop

22     Irinej Bulovic."

23             Do you see that, General Simic?

24        A.   Yes.

25        Q.   And now I'd like to take you to what is -- at least on the hard

Page 10185

 1     copy, it's page 14 in the Serbo-Croat version.  So if you could turn --

 2     the page numbers are in the upper right-hand corner, General.  So if you

 3     turn to page 14.

 4             MR. SAXON:  And for those following along in English, if we could

 5     go to page 11 of the English version, please.

 6        Q.   And can you please focus, General, on the end of the top

 7     paragraph on page 14.  There's -- the penultimate sentence begins with

 8     the name "Bishop Irinej."  Do you see that?

 9        A.   Yes.

10        Q.   And that sentence and the last sentence says the following:

11             "Bishop Irinej advocated the tacit lifting of the Drina River

12     blockade.  President Milosevic responded that the blockade was merely a

13     formality and that aid flows daily."

14             Have you been following me?

15        A.   Yes, absolutely.

16        Q.   Now, given the fact that -- given the persons who were in

17     attendance at that meeting, including General Perisic, that would be an

18     indication that members of the Government of the

19     Federal Republic of Yugoslavia and the army perhaps were not so serious,

20     in terms of their decision to enforce the blockade, wouldn't it?

21             JUDGE MOLOTO:  Mr. Lukic.

22             MR. LUKIC: [Interpretation] I think it's not fair to put the

23     question to the witness in this way, because he hasn't seen the entire

24     document.  He's being asked to comment on one single sentence.  The

25     witness needs to know the whole content of the document, and he needs to

Page 10186

 1     be familiar with the context.  In order for the witness to answer this

 2     question, he needs to familiarise himself with the entire content of the

 3     document.

 4             MR. SAXON:  Well, Your Honour, if that is the standard, then any

 5     time we have a document that is more than a page or two long, and there

 6     are many such documents in this case, this will be a very long trial

 7     indeed.

 8             The context of the -- if you'll forgive me, Counsel, and let me

 9     finish.

10             These two sentences, we see a single exchange between the bishop

11     and President Milosevic.  The bishop makes a comment; President Milosevic

12     responds to the comment.  What more context is needed, Your Honour?

13             MR. LUKIC: [Interpretation] I understand -- or I would understand

14     had the witness been in attendance of this meeting, and in that case he

15     would have been able to answer Mr. Saxon's questions.  But to extract a

16     single sentence from a document and ask the witness about it will be

17     misleading for the Chamber as well.  He may only guess on the basis of

18     one sentence alone, and, therefore, his answer might not be reliable.

19             I'm not going to testify, but in order for the witness to give a

20     reply to Mr. Saxon's question, he needs to know what the topic of the

21     whole debate was.

22             MR. SAXON:  Your Honour --

23             JUDGE MOLOTO:  Sorry.  Yes, Mr. Saxon.

24             MR. SAXON:  Your Honour, there were many topics discussed in this

25     meeting.  I asked the witness -- the witness testified, Your Honour, that

Page 10187

 1     the Army of Yugoslavia fully complied with the decision of the

 2     Federal Government of Yugoslavia to set up a blockade along the

 3     Drina River.  And I'm asking the witness to comment, to see if he will

 4     agree with the argument that I am making, or not, as to whether this

 5     exchange indicates whether this was a serious blockade or not.

 6             And my question was at page 19, line 6 to 10.

 7             JUDGE MOLOTO:  First of all, I don't think that your objection

 8     has a basis, Mr. Lukic.  Secondly, I do think that even if it may, this

 9     witness can give any answer that he wants to give.  He either agrees,

10     disagrees, doesn't know, cannot comment, you know, because he was

11     not -- there are any number of answers that he can give, and he can tell

12     us whether he's able to answer or not.

13             MR. LUKIC:  May I add something?

14             JUDGE MOLOTO:  Yes.

15             JUDGE DAVID:  As I recall Mr. Lukic yesterday asking questions of

16     the witness, and you said, I don't want a professional question, I just

17     want an opinion, you know.  And so I think that the Prosecution are

18     always asking for an opinion of the witness in relation to this issue, so

19     that was the argument you used yesterday in asking the witness for an

20     opinion.  At the objection of the Prosecution that he was not an expert,

21     you said, Well, I am not asking this matter as an excerpt, I am asking as

22     an opinion.

23             MR. LUKIC: [Interpretation] Judge David, Your Honour, you have

24     quoted me precisely, but we are talking about two different things here.

25     I sought his opinion based on the information that he has in his mind

Page 10188

 1     about certain facts.  Now Mr. Saxon is asking him to express and offer

 2     his position on the basis of a single sentence extracted from a document.

 3     The Trial Chamber will not have any assistance from this witness unless

 4     he is fully familiar with the whole document.

 5             And I also disagree with Mr. Saxon that various subjects were

 6     discussed at this meeting.  There was only one topic on the agenda of

 7     this meeting, and Mr. Saxon knows that very well.

 8             And I think that things are a little bit distorted -- maybe not

 9     distorted, but, Your Honours, you're not going to get a useful testimony

10     from this witness unless he knows what was being discussed.

11             MR. SAXON:  Your Honour, I'm asking this witness to comment on

12     something that I have just told him about, something that is now part of

13     his knowledge, and that is the content of a portion of a contemporaneous

14     document in which many subjects related to the armed conflict that was

15     going on in Republika Srpska were discussed.

16             JUDGE MOLOTO:  The objection is overruled.

17             MR. SAXON:  I'm going to repeat my question, General Simic,

18     because it's been a while since I've asked it.

19        Q.   Bishop Ir inej advocated the tacit lifting of the Drina River

20     blockade.  President Milosevic responded that the blockade was merely a

21     formality and that aid flows daily.

22             Wouldn't that indicate that this so-called blockade wasn't being

23     taken very seriously by the Government of the Federal Republic of

24     Yugoslavia?

25        A.   Mr. Prosecutor, first of all, I cannot comment on any political

Page 10189

 1     decision.  Secondly, in my previous statements, I said that the army,

 2     within its zones of responsibility, honoured this decision.

 3             Please bear in mind that I said that the Customs Service and the

 4     border crossings were not under the jurisdiction of the army, and

 5     Mr. Perisic was not in charge of that, as for what happened in this

 6     meeting, because yours truly didn't have an opportunity to attend this

 7     meeting.

 8        Q.   General Simic, you haven't answered my question.  I'm not asking

 9     you to comment on any political decision.  I'm asking you to respond to a

10     question that I put to you based on a portion of this record of this

11     meeting, and I'd like an answer to my question, sir.

12             MR. LUKIC: [Interpretation] I believe that Mr. Simic answered on

13     page 22, line 14, and that he provided a comprehensive answer to the

14     Prosecutor's question.  The line reference is 14 to 15.

15             MR. SAXON:  Your Honours, the witness did not answer my question.

16     My question was not about what the Customs Service was doing.  My

17     question was:  Didn't this comment by President Milosevic indicate that

18     the Government of the FRY didn't treat this as a very serious blockade?

19     And I'd like an answer to my question.  It can be a Yes, or a No.

20             JUDGE MOLOTO:  Yes, Mr. Lukic.

21             MR. LUKIC: [Interpretation] The witness said on page 22, line 14:

22             [In English] "First of all, I cannot comment on any political

23     decisions."

24             JUDGE MOLOTO:  Are you able to answer that question, sir?

25             THE WITNESS: [Interpretation] Your Honours, I think that I have

Page 10190

 1     answered.

 2             Mr. Prosecutor, as for Customs, the border crossings were secured

 3     by the forces of the MUP, and aid convoys, if you insist on that, could

 4     not go through the mountains or field paths, in other words, through the

 5     areas for which the VJ was responsible.

 6             MR. SAXON:  I'm going to move on.

 7             THE WITNESS: [Interpretation] I apologise, Your Honours.

 8             MR. SAXON:

 9        Q.   In response to what you just told us, General Simic, it's at

10     least possible -- it was at least possible, wasn't it, for aid to move

11     through the 100-metre zone along the border that was under the

12     responsibility of the Army of Yugoslavia, wasn't it?  Wasn't that at

13     least possible?

14        A.   No.

15        Q.   Why not?

16        A.   Mr. Prosecutor, if you're alluding to some aid, aid cannot be

17     carried in a backpack by an illegal transporter.  It has to go on large

18     trucks which can only use legal crossings.

19        Q.   There were pontoon bridges and ferries that were available to be

20     set up to take materials across the Drina River during the armed

21     conflict; isn't that correct?

22        A.   Yes.  Ferries, actually, not pontoon bridges.

23             MR. SAXON:  I'm going to move on.

24             Can we please call up what is called Exhibit P628.  And perhaps

25     the usher could help General Simic find tab 628.

Page 10191

 1        Q.   Now, General Simic, a short time ago you said that, to your

 2     recollection, the blockade of goods along the Drina River went into

 3     effect on the 8th of August, 1994.  This is a document where the date at

 4     the top is not fully legible.  It says "15 August 19," and it's difficult

 5     to read the next two numbers.  But if you look towards the bottom, you'll

 6     see a receipt stamp from the Special Unit Corps of the Army of Yugoslavia

 7     dated the 17th of August, 1994.  Do you see that?

 8        A.   Yes, I see both.

 9        Q.   And this is a -- this is a document signed by General Perisic,

10     then the Chief of the General Staff, and General Perisic says that

11     pursuant to an order of the president of the FRY, dated the

12     18th of February of that year --

13             MR. SAXON:  Perhaps -- no, we're all right in English.

14        Q.   "... I issued instruction for the replenishment of the

15     30th and 40th Personnel Centres --"

16             JUDGE MOLOTO:  Where are you reading this from?

17             MR. SAXON:  It's right at the top of the English version on the

18     ELMO, Your Honour:

19             "... I issued an instruction for replenishment" --

20             Could we scroll up a bit on -- could we move up a bit so we --

21     now I think you can see the whole document, Your Honour.

22             "Pursuant to an order of the president dated 18 February 1994, I

23     issued an instruction ..."

24             Do you see that, Your Honour?

25             JUDGE MOLOTO:  I see that.  Thank you.

Page 10192

 1             MR. SAXON:  Okay.

 2        Q.   "... which was submitted to you under a highly-confidential

 3     number," there's a number, "dated February 22, 1994."

 4             And then, General Simic, it says the following:

 5             "Despite constant warnings, certain commanding officers of the

 6     Army of Yugoslavia disobeyed the order and issued equipment for the needs

 7     of the 30th and 40th Personnel Centre without authorisation.

 8     Disciplinary and criminal procedures are under way for the responsible

 9     individuals."

10             Are you following me?

11        A.   Absolutely.

12        Q.   And then it says, in relation to this:

13             "1.  Warn all those issuing orders and material organs to

14     strictly implement the measures and procedures from the mentioned

15     instruction."

16             Do you see that?

17        A.   Yes.

18        Q.   Now, nowhere -- now, material for the 30th and

19     40th Personnel Centre meant material to the Army of Republika Srpska and

20     the Army of -- the Serbian Army of Krajina, didn't it?

21        A.   Yes.

22        Q.   If you look at this document, General Simic, you'll see that

23     about a week after the blockade was imposed, General Perisic is not

24     saying, Stop providing material to the Army of Republika Srpska.  He's

25     not saying that.  He's saying, Do this according to my previous

Page 10193

 1     instructions.  Right?

 2        A.   I don't understand what your question is.

 3        Q.   Well, you see, the blockade had been imposed about a week before

 4     General Perisic sent this document, and you testified that the

 5     Army of Yugoslavia fully complied with the decision of the

 6     Government of the FRY.  And in this document, General Perisic is saying,

 7     If you're going to give materials to the Army of Republika Srpska, do it

 8     according to my instructions; isn't that right?

 9        A.   That is right, Mr. Prosecutor, and there was no need for him to

10     repeat what he had operationalised in more detail in that instruction.

11     That is why he -- here he didn't use the term you're insisting on.

12             MR. SAXON:  Thank you very much.  I'm going to move on from that

13     document now.

14             If we could bring up on the screen Exhibit P851.

15             And hopefully you have a tab that says "851," General.  If not, I

16     have a copy of the document in your language.  But it should be there.

17     We'll wait for the e-court version to come up.

18        Q.   General, you'll see this is a document from the

19     Office of the Chief of the VJ General Staff -- I'm sorry, we'll wait.

20     It's tab 851, please.

21             General, this is a document from the Office of the Chief of the

22     General Staff, dated the 22nd of February, 1995, to the commander of the

23     Republika Srpska Army Main Staff.

24             MR. SAXON:  And perhaps now to assist those following in English

25     on the -- if we could increase the bottom half of the English version,

Page 10194

 1     please.

 2        Q.   And you'll see it starts off:

 3             "Ratko.

 4             "In mid-September 1994, the Supreme Council had made a decision

 5     to suspend payment of salaries to your people.  After that, we have

 6     agreed that I send you 500.000 dinars, which I did on 21 September.  The

 7     money was collected by General Tomic."

 8             And then, below that, General Perisic is asking for some

 9     documentation regarding who from the VRS received the payment.

10             Have you been following me?

11        A.   Yes, yes.

12        Q.   Wouldn't this 500.000-dinar distribution, if I can call it that,

13     made by General Perisic to the Army of Republika Srpska in

14     mid-September 1994 indicate that the Army of Yugoslavia perhaps was not

15     fully complying with the blockade of the Drina River and of the

16     Republika Srpska?

17        A.   There's something I don't quite understand, Mr. Prosecutor.  This

18     document was registered in the Office of the Chief of General Staff on

19     the 22nd of February, 1995, and you are speaking about -- or, rather, we

20     can read in the document that the time-period referred to is 1994.  So

21     something is wrong here.

22        Q.   General Simic, I'm asking you -- my question referred to the

23     content of this document.  The first paragraph describes something that

24     occurred in mid-September 1994.  It describes something that happened in

25     the past.  It describes a payment of 500.000 dinars sent by

Page 10195

 1     General Perisic to the Army of Republika Srpska.  And my question, I'll

 2     ask it again:  Wouldn't that indicate that the Army of Yugoslavia was not

 3     fully complying with the blockade of the Drina River and of the --

 4     Republika Srpska?

 5        A.   To my mind, no.  If the Trial Chamber will allow me a more

 6     detailed explanation, I'm willing to provide it.

 7             JUDGE MOLOTO:  You are in the lawyer's hands.

 8             MR. SAXON:

 9        Q.   Please.  Please, Mr. Simic, yes.

10        A.   Mr. Prosecutor, once the JNA started pulling out of

11     Bosnia-Herzegovina, both armies were established.  Part of the officers

12     who hailed from those areas stayed behind.  Some officers pulled out, as

13     members of the VJ, and then those who were born in Republika Srpska or

14     had some other ties with that territory were sent to that army through

15     the 30th or 40th Personnel Centres.  Those centres are organisational

16     units of the Personnel Administration of the General Staff.  Their

17     purpose was to have a register at one place of all those persons to

18     enable them to claim their status-related rights.

19             Let's not forget that those people who stayed behind, once the

20     two armies were separated, had families in the Federal Republic

21     of Yugoslavia, and, well, they had to make a living.

22        Q.   Earlier today, we looked at what was Prosecution P222, which was

23     the article from "Borba" describing the imposition of the sanctions on

24     Republika Srpska, which said that:

25             "The FRY border is closed for all shipments into Republika Srpska

Page 10196

 1     except food, clothes, and medicine."

 2             Are you suggesting that money for salaries for army officers

 3     falls into the realm of food, clothes, and medicine; is that your

 4     evidence?

 5             JUDGE MOLOTO:  Yes, Mr. Lukic.

 6             MR. LUKIC: [Interpretation] No comment.

 7             THE WITNESS: [Interpretation] I think, Mr. Prosecutor, with all

 8     due respect to you, that we are referring to two different periods.

 9             At the time when the Federal Republic of Yugoslavia - in the

10     month of August - when the leadership of the RS refused the contact

11     group's plan, sanctions were imposed on the Drina River, and earlier

12     there had already been the UN sanctions against the Federal Republic of

13     Yugoslavia.

14             MR. SAXON:  Your Honour, I see the time.  Shall we take the first

15     break?

16             JUDGE MOLOTO:  We'll take a break and come back at 4.00.

17             Court adjourned.

18                            --- Recess taken at 3.35 p.m.

19                           --- On resuming at 4.01 p.m.

20             JUDGE MOLOTO:  Mr. Saxon, I'm not quite sure whether you want to

21     carry on or you want the Chamber to revisit that point.

22             MR. SAXON:  Well, Your Honour, I'm in the middle of a topic right

23     now, and I need to show the witness some more documents.  Perhaps we

24     could finish this topic and then move to the discussion.  Thank you.

25             JUDGE MOLOTO:  Very good.

Page 10197

 1             MR. SAXON:  If we could call up on e-court, please,

 2     Exhibit P1257.  And, General Simic, you should have a red tab there that

 3     says that, "P1257."

 4        Q.   General Simic, you'll see this is a document dated the

 5     27th of February, 1995, from the Military Post 2082 in Belgrade, and it

 6     says it's signed by Dragoljub Ojdanic.  And it says, in the first

 7     paragraph:

 8             "On the basis of Ruling Confidential Number 85-7 of the

 9     24th of February, 1995, by the Chief of the General Staff of the

10     Army of Yugoslavia, please issue to the 30th Personnel Centre from

11     Military Post 5292, Mrsac, the following:"

12             And it refers to 150-millimetre contact fuses for a Howitzer

13     cannon and 100 pieces.

14             Are you follow me there?

15        A.   Yes.

16        Q.   And in the penultimate sentence, it says:

17             "The sign-off of the above-stated ammunition is to be done in

18     accordance with the above-stated ruling by the Chief of the General Staff

19     of the Army of Yugoslavia."

20             Are you following me?

21        A.   Yes.

22             MR. SAXON:  Can we -- for the next document, Your Honour, I would

23     ask you to please move into private session, if we can.

24             JUDGE MOLOTO:  May the Chamber please move into private session.

25             MR. SAXON:  And if we can call up -- I'll wait.

Page 10198

 1                           [Private session]

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20                           [Open session]

21             THE REGISTRAR:  We're back in open session, Your Honours.

22             JUDGE MOLOTO:  Thank you so much.  May the Chamber --

23             MR. SAXON:  It's Friday.

24        Q.   General Simic, this document is from the Main Staff of the

25     Army of Republika Srpska, dated the 19th of June, 1995.  It says

Page 10199

 1     "Very Urgent" to the General Staff of the VJ, and then to the attention

 2     of the Chief of the General Staff of the VJ.  Below that, it says

 3     "Support and Ammunition," and below that, "Request."

 4             Are you following me?

 5        A.   Yes.

 6             MR. SAXON:  And then we see on the -- if we can scroll down,

 7     please, in the B/C/S version on e-court for the public.  We can see --

 8     and if we go to the next page in the English version, we can see that

 9     starting at the bottom of page 1 in B/C/S, we see a list of requested

10     ammunition, and -- which continues on to the second -- on to the third

11     page in the English version, on to the second page in B/C/S.

12             If we go to the next page in B/C/S, please, and could we -- we

13     see that the document is coming from Commander Ratko Mladic.  And could

14     we please scroll down in both versions, please.  Could we go to the next

15     page in English, please.

16        Q.   And we see at the bottom there, in the B/C/S version, there's a

17     telegram.  Are you with me, General?  At the very end of the document,

18     there's a telegram.  Do you see that?

19        A.   On page 1?

20        Q.   No, on page 4, on the very last -- excuse me, on page -- on the

21     second page in your version, the bottom of the second page.  You'll see

22     a --

23        A.   Yes, now I can see, Mr. Prosecutor.

24        Q.   All right.  And that's -- again, that's from the General Staff of

25     the Army of Yugoslavia, from the Cabinet of the Chief of the

Page 10200

 1     General Staff to the Logistics Sector, to General Milovanovic.  Can you

 2     read for us, please, then, what that telegram says?  Can you read it,

 3     please, out loud?

 4        A.   "We hereby forward to you the telegram of the Main Staff of the

 5     Army of Republika Srpska and inform you that the Chief of General Staff

 6     of the VJ ordered:  'Give it to Ratko to have it sorted out.'"

 7             And signed chief of the -- chief -- it only says:

 8             "Chief, Colonel Sinisa Borovic."

 9             MR. SAXON:  Your Honour, I wanted the witness to read it out in

10     the original language, because it indicates that in the last page of the

11     English, there is an error in the English translation.  In the second

12     line of the telegram, it says "Chief of the VRS Main Staff."  That should

13     be the VJ General Staff, Your Honour.  That's what the witness just read

14     into the record.  So I just wanted to correct the record for this

15     exhibit.

16             Can we please remove that document now and -- one moment, please.

17     Can we now -- I now have a series of documents -- two documents that need

18     to be viewed in private session.  Could we look at P2736, please.

19             JUDGE MOLOTO:  After we've moved into private session?

20             MR. SAXON:  After we've moved into private session.  Thank you,

21     Your Honour.

22             JUDGE MOLOTO:  May the Chamber please move into private session.

23 [Private session] [Confidentiality lifted by order of the Chamber]

24             THE REGISTRAR:  We're in private session, Your Honours.

25             JUDGE MOLOTO:  Thank you so much.

Page 10201

 1             MR. SAXON:  Thank you.  And if this could not be published to the

 2     public.

 3             JUDGE MOLOTO:  P2736?

 4             MR. SAXON:  Correct, Your Honour.  I'll wait for that.  It's

 5     not -- here it comes on e-court.

 6        Q.   General, you'll see this is a document from the Main Staff of

 7     the Army of Republika Srpska.  It's dated the 1st of September, 1995.

 8     It's marked "Urgent," to the Chief of the General Staff of the VJ.  And

 9     in the first paragraph, it refers to a confidential letter of the

10     21st of July, 1995, where:

11             "... we requested the 172nd ssrp to be replenished with three

12     kub-m rocket batteries and reinforced with personnel."

13             And then it says:

14             "We have received only one rocket battery."

15             Are you with me?

16        A.   Yes.

17             MR. SAXON:  And could we go to the next page, please, in English.

18     And if we could scroll to the bottom of the B/C/S page, please.

19        Q.   General, again you'll see this came from

20     Colonel General Ratko Mladic, and there's a telegram at the bottom again

21     from the Yugoslav Army General Staff, Office of the Chief of the

22     General Staff, dated the 1st of September, 1995, to the Sector for

23     Air Force and Anti-Aircraft Defence.  Again, could you please read the

24     contents of that telegram out loud, please?

25        A.   Before I do that, Mr. Prosecutor, let me just add one thing.

Page 10202

 1             This is not a telegram from the General Staff of the VJ, sent to

 2     the RV and PVL Sector, but, rather, his chief of the staff is forwarding

 3     the telegram received from the Main Staff of the VRS to his assistant for

 4     logistics to study it and to prepare a proposal for the Chief of

 5     General Staff.

 6             Have I been clear?

 7        Q.   You've been very clear, and thank you for clarifying that for us.

 8     Thank you.

 9             Could you please read the message that is there?

10        A.   Yes:

11             "We are forwarding a telegram of the Main Staff of the

12     Army of Republika Srpska, and we kindly ask you to make a proposal to be

13     submitted to the Chief of General Staff."

14        Q.   Thank you so much.

15             MR. SAXON:  If we could stay in private session for a moment

16     longer, and if we could look at Exhibit P2746, please.  This is a

17     document that's been admitted under seal.

18             I'm waiting for the English of this document to come up.

19        Q.   General, again, this is a request from the Main Staff of the

20     Army of Republika Srpska, dated the 7th of October, 1995, again marked

21     "Very Urgent," addressed to the Command of the General Staff of the

22     Army of Yugoslavia, Chief of General Staff personally.  It says:

23             "Sending 10 FAB-275/4 aerial bomb request."

24             And then in the first paragraph, if you go to what is probably

25     the second page in your version, it says:

Page 10203

 1             "Please send us 10 FAB-275/4.  Since we do not have any such

 2     ammunition and considering the short time available to us, please send

 3     the ammunition to the 30th Logistics Base as soon as possible."

 4             Have you been following me?

 5        A.   Yes.

 6             MR. SAXON:  Can we go to the next page in English, please, and

 7     what is probably -- in your version, it's the first page.  It may be out

 8     of order.  I'm not sure.  Again, we see a message from the General Staff,

 9     Office of the Chief of General Staff, dated the 7th of October, 1995.

10     And, again, this is addressed to the Air Force and Anti-Aircraft Defence

11     Sector, and it says:

12             "The Chief of the General Staff of the VJ has approved for," it

13     should be, "the Main Staff of the Army of Republika Srpska to be resolved

14     as soon as possible.  Please send your reply."

15             Have you been following me?

16        A.   Yes.

17             MR. SAXON:  And, I'm sorry, we'll have to stay in private session

18     for one document more.

19             If we could please see Exhibit P2731.  And could we go to the

20     next page in the English version, please, and to the next page in the

21     Serbo-Croat version, please.

22             Okay.  And there should be a document in B/C/S dated the

23     27th of June, 1995.  Here we're seeing the document from the

24     28th of June.  I believe there's one more page.

25             THE WITNESS: [Interpretation] Yes, I can see it.

Page 10204

 1             MR. SAXON:  All right.

 2        Q.   Let's start with the document dated the 27th of June, please.

 3     It's from the Main Staff of the Army of Republika Srpska.  It's marked

 4     "Urgent" to the General Staff of the Yugoslav Army, addressed to the

 5     Chief of the General Staff.  And then it says the following:

 6             "In Brezovik store, there are 200 'grad' motors, bought for the

 7     needs of the VRS, still not taken nor transferred to Republika Srpska."

 8             And then it says:

 9             "The assistant commander for logistics in the 2nd Army does not

10     approve giving and transferring of motors without your order."

11             "I would like to ask you to make possible giving and transferring

12     to Republika Srpska the above-mentioned quantity of 'grad' motors."

13             And then it's from Colonel-General Ratko Mladic, personally.

14             Have you been following me?

15        A.   Yes.

16             MR. SAXON:  Now can we turn to the earlier page in both the

17     English and the B/C/S, please.

18        Q.   This document, dated the 28th of June, 1995, from the

19     Office of the Chief of the General Staff to the Command of the 2nd Army,

20     the assistant commander for logistics, and it says:

21             "In regard to the request of the VRS Main Staff for the giving

22     and transfer to Republika Srpska 200 'grad' motors, hereby we inform you

23     that the Chief of the General Staff of the VJ has ordered all stated

24     assets to be given to the VRS."

25             It's signed for the Chief of Office Colonel Dr. Sinisa Borovic.

Page 10205

 1             Do you see that?

 2        A.   Yes.

 3        Q.   So some action was taken by the Office of the Chief of the

 4     General Staff the following day; correct?  In other words, the day after

 5     General Mladic sent his communication to the VJ General Staff, some

 6     action was taken by the Office of the Chief of the General Staff.  Right?

 7        A.   Yes, you're right.

 8             MR. SAXON:  We can now move into public session, Your Honour.

 9             JUDGE MOLOTO:  May the Chamber move into open session.

10                           [Open session]

11             THE REGISTRAR:  We're in open session, Your Honours.

12             JUDGE MOLOTO:  Thank you so much.

13             Yes, Mr. Saxon.

14             MR. SAXON:  I don't know if Your Honour wishes to wait until it's

15     possible for the blind to be raised, or would you like me to continue?

16     You would like -- I will continue?

17                           [Trial Chamber and Registrar confer]

18             JUDGE MOLOTO:  We're trying to give the transcript time to

19     disappear, the transcript that was -- otherwise, the people sitting there

20     will read what was said in private session.

21             MR. SAXON:  Does that mean I should pause for a moment?

22             JUDGE MOLOTO:  It means you can carry on, and we'll open the

23     blind a little later, when it has disappeared.

24             MR. SAXON:  All right, Your Honour.

25             If we could show the witness Exhibit P2787, please.

Page 10206

 1                           [Trial Chamber and Registrar confer]

 2             JUDGE MOLOTO:  I'm told the exhibit is confidential.

 3             MR. SAXON:  I was not aware of that.  I'm sorry, Your Honour.

 4     Then we'll have to go back to private session.

 5             JUDGE MOLOTO:  May the Chamber please move back into private

 6     session.

 7             MR. SAXON:  It was my error, Your Honour, it was my error.

 8 [Private session] [Confidentiality lifted by order of the Chamber]

 9             THE REGISTRAR:  We're back in private session.

10             JUDGE MOLOTO:  Thank you so much.

11             When you say confidential, do you mean it's under seal?

12             MR. SAXON:  Yes, Your Honour.

13             JUDGE MOLOTO:  Thank you.

14             MR. SAXON:

15        Q.   General, your version of this document is not easy to read, so

16     I'm only going to ask you to look at the beginning of the document.  It's

17     from the Army of Republika Srpska Main Staff, dated the

18     3rd of August, 1995.  It's marked "Urgent.  Submit to the chief of the

19     VJ General Staff."

20             Are you with me?

21        A.   Yes.

22        Q.   And then below that, it says:

23             "Take over of the allocated TMS."

24             And then it says:

25             "A request."

Page 10207

 1             And then, below that, it says:

 2             "By your decision, Strictly Confidential Number 4361-1, from

 3     30 March 1994, the VRS was allocated the following seven helicopters,

 4     which have not yet been taken over:"

 5             Are you following me?

 6        A.   Yes.

 7             MR. SAXON:  And then if we can please go to the next page --

 8     actually, to the last page in the English version, and if we could scroll

 9     to the end -- go to the end of the B/C/S version.  It should be one more

10     page in B/C/S.  There it is.

11        Q.   You see the last item we looked at was dated the 3rd of August,

12     and now we see the document from the 4th of August, 1995, from the

13     VJ General Staff, Sector for Air Force and Anti-Aircraft Defence, to be

14     sent to -- and we see a list:  The VJ General Staff 608th Logistics Base;

15     the Command of the Air Force and Anti-Aircraft Defence; the

16     VRS Main Staff; and also to the attention of the Chief of the

17     VJ General Staff.  And it says:

18             "Pursuant to the VRS Main Staff request dated the

19     3rd of August, 1995, we agree that the following VTMS be given to the

20     VRS Main Staff:"

21             And then we see, below that, some acronyms.  And the first one is

22     "HN-42."  That's a kind of helicopter, isn't it, General?

23        A.   Yes, it is.

24        Q.   One piece.  And then we see "HN-45 - two pieces."  That's another

25     kind of helicopter; right?

Page 10208

 1        A.   Yes.

 2        Q.   And then we see "Ho-42 - 3 pieces."  It's another kind of

 3     helicopter; right?

 4        A.   Yes.

 5        Q.   And, finally, one "HT-40," which I assume is also a kind of

 6     helicopter?

 7        A.   Yes.

 8        Q.   And this document is signed by Mirko Vrucinic, general major --

 9     major-general, I should say, for the Sector for The RV and PVO, the

10     Air Force and Anti-Aircraft Defence.

11             Your Honours, can we now move back into public session.

12             JUDGE MOLOTO:  May the Chamber please move into open session.

13                           [Open session]

14             THE REGISTRAR:  We're back in open session, Your Honours.

15             JUDGE MOLOTO:  Thank you so much, Mr. Registrar.

16             Yes, Mr. Saxon.

17             MR. SAXON:

18        Q.   General, what I want to ask you is:  Given the documents that

19     I've been showing to you this afternoon, is it still your position that

20     the Army of Yugoslavia fully complied with the blockade in place to

21     prevent materials going to Republika Srpska?

22        A.   You're asking me about something that was not within my purview

23     and my scope of responsibility.  When I said that goods did not cross the

24     border-line that was being secured by the Yugoslav Army, I still stand by

25     what I said.  However, if you're claiming that we were providing

Page 10209

 1     assistance to the Army of Republika Srpska, that is, without doubt, true.

 2        Q.   Okay.  So that, in other words, after the blockade -- the

 3     so-called blockade was publicly announced in August of 1994, the

 4     Army of Yugoslavia continued to provide assistance to the

 5     Army of Republika Srpska?  That, I think, is what you're saying?

 6        A.   As far as I know, the blockade was in place in 1995, not in 1994.

 7     At least that's what I heard in the translation of your question, 1994.

 8     Everything that you're asking me about with respect to all these

 9     documents was not within my scope of responsibility, and nowhere can you

10     see that anything went through my administration, nor is it seen that my

11     administration provided approval or anything else.  It went to other

12     organisational units and the heads of these respective organisational

13     units.

14        Q.   Okay.  Let's take this slowly.  All right?

15             You said a moment ago - this is at page 41, lines 22 to 25:

16             "When I said that goods did not cross the border-line that was

17     being secured by the Yugoslav Army, I still stand by what I said.

18     However, if you're claiming that we were providing assistance to the

19     Army of Republika Srpska, that is, without doubt, true."

20             And I just want to clarify that.  What you're saying is:  After

21     the blockade was announced, the Army of Yugoslavia continued to provide

22     assistance to the Army of Republika Srpska?  That's just my first

23     clarification.  Is that right?

24        A.   Judging by the documents that we have seen, there is no question

25     about it.  It's true.

Page 10210

 1        Q.   All right.  So are you aware of any other kinds of assistance

 2     that the Army of Yugoslavia provided to the Army of Republika Srpska

 3     after the blockade was announced, apart from what's been in the documents

 4     that I've shown you today?

 5        A.   A while ago, I mentioned the personnel centres.  These personnel

 6     centres served precisely the purpose of solving status-related issues and

 7     rights of the personnel who left there.  Among other things, part of that

 8     package was the 500.000 dinars sent by the Chief of General Staff, which

 9     means assistance in providing salaries to people.

10        Q.   I'm sorry, General.  My fault.  My question wasn't clear enough.

11     When I said if you were aware of other kinds of assistance, apart from

12     what we saw in the documents today, I was referring to materiel;

13     materiel, equipment, that kind of thing.

14        A.   It was not within my department, but I know that there were other

15     assets, what we call equipment used for war.  This is one general name

16     for all these assets that are being used to wage war.

17        Q.   Okay.  And what kind of -- can you describe the kinds of assets

18     that you're referring to, these assets that were being used to wage war?

19     Can you give some examples?

20        A.   Well, these assets include armaments, ammunition, fuel,

21     lubricants, and the like.

22             MR. SAXON:  I'm finished with this topic now, Your Honour.

23             JUDGE MOLOTO:  Are you handing over to the Chamber?

24             MR. SAXON:  Well, I wanted to -- yes, effectively, yes, in case

25     at this time you wanted to discuss the other matter.

Page 10211

 1             JUDGE MOLOTO:  The Trial Chamber looked at the -- studied the

 2     matter.  Obviously, for the Trial Chamber to be able to make a ruling on

 3     this issue, the concerns raised in these decisions need to be addressed;

 4     the mode of disclosure, the purpose of the document, what is it -- what

 5     is it proving, and the --

 6             THE INTERPRETER:  Could we ask Mr. Saxon to switch off his mike.

 7     Thanks.

 8             JUDGE MOLOTO: -- and the time spent when it was delivered,

 9     disclosed.  You know, all those points need to be addressed before we can

10     make a ruling.

11             MR. SAXON:  Your Honour, do I take from what Your Honour has just

12     advised us, then, that the Chamber is ruling that a document included on

13     Prosecution's 65 ter exhibit list falls within the universe of what we

14     refer to as fresh evidence?  Is that what I take from your ruling,

15     because that's what was subject to -- that's what we were discussing in

16     the first session.

17             JUDGE MOLOTO:  What the Trial Chamber wants to rule on is on

18     whether to allow the Prosecution to use that document or not.  And the

19     argument that it is part of the 65 ter list or not will be part of the

20     submissions that --

21             MR. SAXON:  Very well.

22             MR. GUY-SMITH:  Before Mr. Saxon starts, I have one question to

23     ask, which I believe is appropriate, given the Chamber's ruling, which

24     is:  It is our assumption that the Prosecution's going to seek to admit

25     whatever we wish to call this body of documents in order to establish the

Page 10212

 1     guilt of the accused.  I see Mr. Saxon waving his finger at me, so that

 2     may not be the case.  I think that may be of some import or not with

 3     regard to the discussion, but -- so if he could identify, when discussing

 4     these documents, which position the Prosecution's taking with them, that

 5     also, I think, would be helpful for purposes of our discussion.

 6             JUDGE MOLOTO:  Let me make it quite clear from the point of view

 7     of the Chamber.  The Chamber is not talking about the batch of documents.

 8     The Chamber is talking about the one document, 65 ter 2022.

 9             MR. GUY-SMITH:  Thank you very much.  Okay, very well.  I'm with

10     you now.

11             MR. SAXON:  It's a fair point that my colleague is raising, and

12     it may be -- it may be more appropriate, Your Honour, to ask the witness

13     to step out for a minute.  I don't know how else -- how else to do this.

14             Then I won't, Your Honour.  I see that that's not acceptable to

15     the Chamber.  I --

16             JUDGE MOLOTO:  No, no, I never -- how do you get it that it's not

17     acceptable to the Chamber?

18             MR. SAXON:  I'm sorry, I saw you shaking your head, and I

19     thought --

20             JUDGE MOLOTO:  No, no, no.  I can shake my head, but I wasn't

21     responding to you.  I was actually smiling at Mr. Simic because I was

22     feeling sorry for him.

23             Mr. Simic, I'm sorry, again we are going to ask you to please

24     step out for a while.

25             THE WITNESS: [Interpretation] Thank you.

Page 10213

 1                           [The witness stands down]

 2             JUDGE MOLOTO:  Yes, Mr. Saxon.

 3             MR. SAXON:  Your Honour, the Prosecution seeks permission to use

 4     this document, as well as other documents that were not on its

 5     65 ter list today, related to the Drina Plan.

 6             JUDGE MOLOTO:  Mr. Saxon, let me warn you up front.  It's going

 7     to have to be looked at on a case-by-case basis.  And we're dealing now

 8     with one document.

 9             MR. SAXON:  Very well.  Well, then the purposes of this document,

10     we want to use it with the witness to carry on impeaching his evidence,

11     Your Honour, not necessarily to admit the document into evidence.  What

12     we would like to do is review the document with the witness, get his

13     comments, mark it for identification, and then what we would propose

14     doing, and again with other documents, is to, at the end of this

15     witness's evidence, after all cross-examination, after redirect and the

16     Judges' questions, make any final discussions as to whether these

17     documents might be admitted as inculpatory evidence against the accused.

18     We are seeking permission at this time to use them for purposes of

19     impeachment.

20             JUDGE MOLOTO:  I do not follow you there, Mr. Saxon, that you

21     want to tender the document, use it against the witness for purposes of

22     impeachment, and still reserve the right later to change that purpose

23     into inculpatory evidence.

24             MR. SAXON:  That's --

25             JUDGE MOLOTO:  If the their purpose -- this is precisely -- well,

Page 10214

 1     let me say my concern is why the purpose would change along the line.

 2             MR. SAXON:  The purpose that would change would be whether we

 3     seek the admission of these documents or not, that -- that is the purpose

 4     that would change.  What we're asking to do -- to be allowed to do,

 5     preliminarily, is use these documents at least for the purposes of

 6     impeaching the witness.

 7             JUDGE MOLOTO:  Let us understand the way "purposes" is used in

 8     the Appeals Chamber's decisions.

 9             MR. SAXON:  Very well.

10             JUDGE MOLOTO:  The Appeals Chamber's decisions are about the

11     decision whether or not to admit the document.  And in order to admit it,

12     the purpose for its being tendered is to be determined.  So whether it's

13     going to be admitted or not could not be a purpose.

14             MR. SAXON:  As I've read -- with the greatest respect,

15     Your Honour, is I have read, for example -- as I have read the

16     jurisprudence, Your Honour, there is a high threshold that the

17     Prosecution must show that it is in the interests of justice to tender

18     inculpatory fresh evidence, rather than - and there is a lower

19     standard - than for evidence used solely for impeachment purposes.

20     That's how I'm reading, and that's why I'm making this distinction,

21     Your Honour.

22             JUDGE MOLOTO:  I hear you, and I agree with you on that point.

23     Now, but I'm -- I was still at a lower level, a lower threshold.

24             MR. SAXON:  All right.

25             JUDGE MOLOTO:  And at the lower threshold, there are a number of

Page 10215

 1     preconditions that must be addressed.

 2             MR. SAXON:  Very well.

 3             JUDGE MOLOTO:  The mode of disclosure of the document in

 4     question, the purpose for their admission, the time lapsed between

 5     disclosure and examination of the witness, the language known to counsel

 6     and the accused, as well as any other relevant factual considerations.

 7     Okay.  Now --

 8             MR. SAXON:  Then let me -- sorry.

 9             JUDGE MOLOTO:  If, at this stage, then the purpose, which is

10     number 2, the purpose for the admission is to inculpate the accused, then

11     the higher threshold kicks in.  However, I do not understand why the

12     purpose can initially be for purposes of impeachment, and then when it is

13     in, then we say, No, no, now we want it to inculpate the accused.

14             You've got to state up front whether you want to inculpate the

15     accused or is it for purposes of impeachment, in which case, then -- in

16     which case, then, if it's to incriminate the accused, then the higher

17     standard kicks in.  Okay?

18                           [Prosecution counsel confer]

19             JUDGE MOLOTO:  Are we on a wavelength --

20             MR. SAXON:  We are on a wavelength, Your Honour.

21             JUDGE MOLOTO:  I'm talking about procedural --

22             MR. SAXON:  Yes.

23             JUDGE MOLOTO: -- that the admission could not be a purpose.

24             MR. SAXON:  Yes, Your Honour.  And the purpose of our using the

25     document this time is to impeach the witness.  That is our purpose.

Page 10216

 1             JUDGE MOLOTO:  I see you, Mr. Guy-Smith.

 2             And that would be the purpose --

 3             MR. SAXON:  Yes, Your Honour.

 4             JUDGE MOLOTO: -- right through the trial?

 5             MR. SAXON:  Well, we're talking on a case-by-case basis,

 6     so I'm --

 7             JUDGE MOLOTO:  Yeah, and we're dealing with this case -- this

 8     case or this document.

 9             MR. SAXON:  This -- exactly, Your Honour.

10             JUDGE MOLOTO:  And that's the purpose of this document --

11             MR. SAXON:  Yep.

12             JUDGE MOLOTO: -- right through the case?

13             MR. SAXON:  The Court's indulgence for a moment, Your Honour.

14                           [Prosecution counsel confer]

15             MR. SAXON:  Yes.  Once again, Your Honour, we will -- we seek

16     your permission to use this document for the purposes of impeaching the

17     witness.

18             JUDGE MOLOTO:  I'm going to ask you a question before you ask for

19     the indulgence.  Is that purpose, with respect to this document, is the

20     only purpose for the entirety of the case?

21             MR. SAXON:  Yes.

22             JUDGE MOLOTO:  And the reason I asked you this question is

23     earlier you accept you might later want to use it to inculpate, you might

24     want to change that purpose for impeaching to inculpate.

25             MR. SAXON:  Yes.

Page 10217

 1             JUDGE MOLOTO:  But you're not going to do that with this witness?

 2                           [Prosecution counsel confer]

 3             MR. SAXON:  Your Honour, we will use this document, with your

 4     permission, for the purposes of impeachment.  And we understand that will

 5     be the purpose through the remainder of the case.

 6             JUDGE MOLOTO:  Thank you, Mr. Saxon.

 7             Do you have any submissions on the other points that are raised?

 8             MR. SAXON:  Yes, Your Honour.

 9             This particular document, 65 ter 2022, was disclosed to the

10     Defence on the 2nd of February, 2007, via CD-ROM.  So that's three years

11     ago, Your Honour.  We are -- again, we are -- seek to use this document

12     to challenge the witness's testimony that the Drina Plan was not an

13     authentic plan.  That is the purpose.

14             JUDGE MOLOTO:  You have already told me that you want to impeach.

15     That's fine.

16             MR. SAXON:  Right.  And, again, the Prosecution was not aware of

17     the Defence position on this matter until Wednesday afternoon, and that's

18     why we feel that it would be in the interests of justice to use this

19     document for this purpose at this time.

20             JUDGE MOLOTO:  What was the mode of disclosure?

21             MR. SAXON:  CD-ROM, Your Honour.  That's been the mode of

22     disclosure throughout this case.

23             JUDGE MOLOTO:  There is an issue raised about the languages known

24     to counsel and the accused.

25             MR. SAXON:  We would have -- this document, originally, is in

Page 10218

 1     B/C/S, Your Honour, and that would have been the language that it was

 2     disclosed in.  Before any translation, it was disclosed in B/C/S.

 3             JUDGE MOLOTO:  Okay.  Are you done?

 4             MR. SAXON:  Yes, Your Honour.

 5             JUDGE MOLOTO:  Mr. Guy-Smith.

 6             MR. GUY-SMITH:  I have but one remark, understanding that the

 7     Prosecution seeks to introduce this document for the sole purpose of

 8     impeachment and none other, and the argument being, as I understand, that

 9     they seek to use this document to challenge the witness's testimony the

10     Drina Plan was not an authentic plan, I have only one concern, which is:

11     At the time the Drina Plan was tendered by the Prosecution, through

12     Mr. Treanor, the Prosecution indicated --

13             THE INTERPRETER:  Can the counsel speak close to the microphone,

14     please.

15             MR. GUY-SMITH:  I do apologise.

16             The Prosecution indicated, beginning at page 1200, the question

17     from Ms. Sutherland:

18             "Q.  Mr. Treanor, did the FRY continue to provide military

19     assistance to the Bosnian Serbs?

20             "A.  Yes.

21             "Q.  Have you seen any new documents that reflect the ultimate

22     goal of the FRY leadership?

23             "A.  Yes.

24             "Q.  Did General Perisic have knowledge of this goal?

25             "A.  Yes."

Page 10219

 1             After which point in time we went into private session, because

 2     at that point in time the Drina Plan was a protected document, and the

 3     document that was introduced was the Drina Plan.  Thereafter, the next

 4     day, subsequent parts of the Drina Plan were once again introduced.

 5             I understand what the Prosecution's position is here.  However, I

 6     believe, as I indicated earlier, that this is something that should have

 7     been introduced in their case in chief.

 8             However, having heard the arguments made by Mr. Saxon, I believe

 9     that he probably has met the threshold with regard to the issue of

10     impeachment.  So I've just done something that I think on occasion you

11     object to, Your Honour, which is I've answered a question in a rather

12     long fashion.  I believe that Mr. Saxon has obtained --

13             JUDGE MOLOTO:  Shall I finish it for you?

14             MR. GUY-SMITH:  -- the threshold of -- for his purposes.

15             JUDGE MOLOTO:  You are -- you are withdrawing the objection at

16     this stage; is that the short answer?

17             MR. GUY-SMITH:  That would be the short answer, yes.

18             JUDGE MOLOTO:  Thank you very much.

19             Would you call in the witness, please.

20             MR. SAXON:  Could Mr. Simic please return.

21             While we're waiting for the witness to be brought in, could the

22     Drina binder be brought to his desk, please.  It's a particular binder

23     marked "Drina number 1."

24             I'm sorry, I can't hear you, sir.  I'm sorry.

25             THE REGISTRAR:  If you can just wait for the usher, please.

Page 10220

 1             JUDGE MOLOTO:  I'm sorry it took long, but it's resolved.

 2             MR. SAXON:  It's resolved, Your Honour.

 3                           [The witness takes the stand]

 4             JUDGE MOLOTO:  Yes, Mr. Saxon, you may -- the Prosecution may use

 5     Exhibit 2022 -- 65 ter 2022 to question the witness.

 6             MR. SAXON:  Thank you, Your Honour.

 7             And if we could turn to tab 9 in that binder, please, and if we

 8     could call up 65 ter -- we've already called it up.  Thank you very much.

 9             JUDGE MOLOTO:  This is it?

10             MR. SAXON:  Yes.

11        Q.   General Simic, if you look at your version of the document, we'll

12     see that it says:

13             "People's Defence, State Secret, Drina, Attachment 10, Copy 2."

14             Are you with me?

15        A.   Yes.

16        Q.   And it's an order for engineering support of the

17     Republika Srpska Army.  And there is a stamp from the

18     Army of Republika Srpska Main Staff at the bottom of the first page.  And

19     as you go to the last page, we'll see that this is stamped again and

20     signed by General Mladic.

21             Can we agree with that so far?

22        A.   Yes.

23        Q.   This kind of order for engineering support, again, is this the

24     kind of order you would expect to see in a directive like the Drina Plan?

25        A.   Well, this is a -- this is an attachment or an appendix about

Page 10221

 1     engineering support from the Drina Plan, and it's from the

 2     Main Staff of the VRS.  And such documents can be found in any plan of

 3     use, so that the Main Staff, in their plan, also had this appendix.

 4             MR. SAXON:  Your Honour, and I hope I'm following the correct

 5     procedural wavelength, I would seek to tender this document for the

 6     purposes that we talked about before.

 7             MR. GUY-SMITH:  Okay.

 8             JUDGE MOLOTO:  The document is admitted into evidence.  May it

 9     please be given an exhibit number.

10             THE REGISTRAR:  Your Honours, this document shall be assigned

11     Exhibit P2893.  Thank you.

12             MR. SAXON:  One moment, please.

13        Q.   Yesterday, in response to one of my questions, General, you said

14     that:

15             "Had the Drina Plan been a complete plan of use and had extracts

16     been provided to the Main Staffs, they would have to elaborate plans for

17     their own units, including a more detailed operationalisation in terms of

18     carrying out the said tasks."

19             That's at page 10148 of the transcript, lines 14 to 17.

20             If you go, General, to what is tab 10 in your binder.

21             MR. SAXON:  And if we could bring up on e-court what is

22     Exhibit P1562, please.

23        Q.   You'll see, General, that this is a document from the

24     Command of the 1st Krajina Corps that was submitted -- it was a list of

25     1st Krajina Corps documents submitted to the General Staff of the

Page 10222

 1     Army of Republika Srpska.  At the top right-hand corner, it says:

 2             "National Defence, State Secret, Drina R, Copy 1."

 3             And then in the list itself we see a list of 14 documents, going

 4     from:  Order for defence attack operation; decision for defence attack

 5     operation map; order for intelligence security, intelligence security

 6     plan; all the way down to number 14, which is "Logistical support."

 7             Are you with me?

 8        A.   Entirely.

 9        Q.   And we see at the bottom -- first of all, we see a stamp of the

10     1st Krajina Corps, isn't that right, of the Command of the

11     1st Krajina Corps?

12        A.   Yes.

13        Q.   Dated the 29th of January, 1994.  You see it was received by a

14     person whose name has not been translated in English, but I'm wondering

15     if you can read it in your language.  Does that say "R. Miletic," if you

16     can read it, or "Neletic"?  I don't know.

17        A.   Yes, that's what it looks like, "Miletic."

18        Q.   Okay.  Now, this would be an example, this particular list of

19     documents from the 1st Krajina Corps, this would be an example of the, to

20     use your term, the --

21             JUDGE MOLOTO:  The operationalisation.

22             MR. SAXON:  I better find it, because it's late on Friday

23     afternoon.

24        Q.   This would be an example, I think, if you'll agree with me, of

25     the more detailed operationalisation from the units below the Main Staff,

Page 10223

 1     in terms of carrying out the said tasks; would that be right?

 2        A.   Mr. Prosecutor, will you allow me a few sentences in order to

 3     explain this?

 4        Q.   Absolutely.

 5        A.   Thank you.  This kind of list of documents, indicating --

 6             THE INTERPRETER:  Could the witness please repeat the answer

 7     slowly.

 8             JUDGE MOLOTO:  Mr. Simic, the interpreters ask that you please

 9     repeat your answer slowly.

10             THE WITNESS: [Interpretation] Yes, Your Honours.  It seems that

11     everybody's affected by the fact that it's Friday.

12             When I was talking about -- about the Drina Directive, signed by

13     the president of the Federal Republic of Yugoslavia, this directive had

14     to be operationalised and extracted therefrom, submitted to the commands

15     of lower units, each army to their respective units.

16             We see here the mention of an order for defence.  The Main Staff

17     would have a directive on this.

18             Another key element on the plan of use is a decision, a decision

19     that has to be approved by the president of the FRY, because this

20     decision affects the operationalisation of the texts of the directive,

21     and that applied to everything else.  However, we don't see that as being

22     elaborated at the level of the General Staff.  However, the only thing

23     that exists is the text of the directive that was signed at the strategic

24     global level, and for those on the ground who have to carry it out, this

25     does not mean a lot.

Page 10224

 1             Here, the commander of the 1st Krajina Corps handed over these

 2     documents to someone who succeeded him, who received the plan of use,

 3     because that is how the record of hand-over of these documents is usually

 4     made.

 5             I hope I've been clear.

 6        Q.   You have been clear.  But with the greatest respect, you haven't

 7     answered the question that I asked you.  Let me just repeat it again

 8     briefly.

 9             My question was simply:  Was this document that we've just looked

10     at from the 1st Krajina Corps Command, would that be an example of the

11     more -- what you referred to yesterday, the more detailed

12     operationalisation from the units below the Main Staff?  That was my

13     question.  Just -- if you can say, Yes, or, No, or --

14        A.   Yes.

15             JUDGE MOLOTO:  For my own refreshment of my memory, by the way,

16     to which army does the 1st Krajina Corps belong?

17             THE WITNESS: [Interpretation] It belonged to the Main Staff of

18     the Army of Republika Srpska.

19             Your Honours, everything that we are discussing concerning the

20     Drina Plan relates to the plan of the Main Staff of the

21     Army of Republika Srpska, for which I was not in charge.

22             JUDGE MOLOTO:  I understand.  But it is also interacting with the

23     VJ, isn't it?

24             You may proceed, Mr. Saxon.

25             MR. SAXON:  Your Honour, with this -- excuse me.  I just may have

Page 10225

 1     one follow-up question, if you will allow me to look at the transcript,

 2     please.

 3             JUDGE MOLOTO:  You are allowed.

 4             MR. SAXON:

 5        Q.   I just want to clarify your response to Judge Moloto's question.

 6     Judge Moloto asked you:

 7             "To which army does the 1st Krajina Corps belong?"

 8             And you responded:

 9             "It belonged to the Main Staff of the Army of Republika Srpska."

10             Just so everything is clear, are you saying that the corps, the

11     Krajina Corps, was an organisational unit of the Main Staff?

12        A.   No, it was subordinated to the Main Staff of the

13     Army of Republika Srpska, just like the commander of the 1st Army was

14     subordinate to the Chief of General Staff of the VJ.  This is the

15     standard chain of command.

16             MR. SAXON:  Thank you.

17             Your Honour, just before we break, I'm now at a point where I

18     believe some further discussion on the same legal issue will be

19     necessary, but it involves a group of documents.  So I think it only

20     needs to be one discussion for a few minutes, and so it may be best, with

21     Your Honour's leave, that, when we come back, that the witness remain in

22     the waiting room for a few moments while we deal with this matter once

23     again.

24             JUDGE MOLOTO:  Thank you so much.

25             We'll take a break and come back at quarter to 6.00.

Page 10226

 1             Court adjourned.

 2                           [The witness stands down]

 3                           --- Recess taken at 5.19 p.m.

 4                           --- On resuming at 5.45 p.m.

 5             JUDGE MOLOTO:  Yes, Mr. Saxon.

 6             MR. SAXON:  Your Honour, we come back to the issue of fresh

 7     evidence.

 8             The last document that you saw was Prosecution Exhibit P1562,

 9     which was a list of 1st Krajina Corps documents.  P1562 was the first

10     document in a group of documents that was obtained by the

11     Office of the Prosecutor from the Government of Republika Srpska.  Only

12     P1562 was placed on the Prosecution's 65 ter list and tendered into

13     evidence.

14             What the Prosecution seeks leave of the Trial Chamber to do is

15     to -- it has the documents that were mentioned on this list, that is,

16     P1562, which it didn't place on its 65 ter list at that time.  All of

17     these documents were disclosed to the Defence on the

18     2nd of February, 2007, more than three years ago.  And like the last

19     document, Your Honour, we seek the Chamber's leave to use this series of

20     documents from the 1st Krajina Corps for purposes of impeachment of the

21     witness.  And I'm referring to this series of documents, because it

22     seems -- I think it's -- I think, with the Chamber's leave, rather than

23     dealing with each document separately, this can be the subject of a

24     single discussion and single decision.

25             And if you allow me to go on, Your Honours, the Prosecution also

Page 10227

 1     obtained documents related to the Drina Plan from the Drina Corps of the

 2     Army of Republika Srpska.

 3             MR. GUY-SMITH:  If I might interject, since I think we're going

 4     into a new subject, new documents.

 5             Could you please identify for us specifically which of the

 6     documents you're referring to in that first grouping, just so that when

 7     we're dealing with this, we can deal with this in a discreet fashion,

 8     because they may be treated differently by the Chamber.

 9             JUDGE MOLOTO:  Could we have P1562 back on the monitor, please.

10             Do you see the list, Mr. Guy-Smith?

11             MR. GUY-SMITH:  Yes, I do.  My --

12             JUDGE MOLOTO:  Those are the documents that the Prosecution says

13     it seeks leave to tender.

14             MR. GUY-SMITH:  I understand.  What I'm asking for is these -- I

15     have a series of documents that were presented to us, in the

16     neighbourhood of some approximately 200 -- 200-plus documents that the

17     Prosecution intends on using for purposes of cross-examination.  Of those

18     documents, a certain number of those documents are designated XN, XN-1,

19     XN-2, XN-3.  All I'm asking for is to know which XN numbers they are so

20     that I can correlate Mr. Saxon's position with what he's representing.

21     It's not that I disbelieve him.  It's just that I want to be organised.

22             JUDGE MOLOTO:  Are you able to help, Mr. Saxon?

23             MR. SAXON:  Absolutely, Your Honour.

24             And if we just stick with the Krajina Corps documents for now,

25     that would be what has been up-loaded on e-court from XN-144 through

Page 10228

 1     XN-155.  And these are the documents that are on the list that is P1562,

 2     with one exception, and that is the second item on the list, which is a

 3     map.  That, we do not have.

 4             MR. GUY-SMITH:  Therein lies my initial dilemma, because I have

 5     different numbers.  So I'm not sure that I'm following what you've

 6     suggested.  I have as your last document XN-143 being an SRK Drina Plan.

 7     I'm just trying to be with you.  That's not what you've talked about thus

 8     far.  I have 144 as being a document concerning some criminal

 9     proceedings.

10             MR. SAXON:  That is a surprise to me, quite frankly.

11             MR. GUY-SMITH:  Maybe I've done something wrong, so let me just

12     double --

13             MR. SAXON:  All right.

14             MR. GUY-SMITH:  Maybe I've done something wrong, so let me check,

15     please.

16             MR. SAXON:  All right.

17             JUDGE MOLOTO:  In fact, XN-143 would not be part of the

18     list, because --

19             MR. GUY-SMITH:  No, I was only using that for reference to put us

20     into co-ordination.  Let me just co-ordinate here.

21             Why don't you proceed, then, because I'll be able to figure out

22     where the difficulty lies.

23             MR. SAXON:  I think, for the sake of simplicity, let me just stay

24     with the Krajina Corps documents for now, as I've explained to

25     Your Honour -- I've explained when they were disclosed, who we've

Page 10229

 1     received them from.

 2             JUDGE MOLOTO:  You've explained the purpose; to impeach.

 3             MR. SAXON:  I've explained the purpose.  And, quite frankly,

 4     again, we didn't realise this would be so important until Wednesday

 5     afternoon, and that is why we're making this application now.

 6             JUDGE MOLOTO:  Any response, Mr. Guy-Smith?

 7             MR. GUY-SMITH:  Understanding that all of these documents are

 8     being offered for the purpose of impeachment, and none other, I'm not

 9     sure that the conclusion that's been reached, which we didn't realise

10     would be so important until Wednesday afternoon, meets the standard.  Why

11     is it so important?  I think they have to say more than what their

12     internal conclusion is here with regard to why these documents they

13     believe are going to, in fact, operate to do that which I think they will

14     do, which is impeach.  So it's what we would call an offer of proof.  To

15     say it's important is meaningless.  There's a reason behind the --

16     there's a reason why they believe they will impeach, using these

17     documents, but perhaps we should hear what that reason is.  Otherwise,

18     all they're telling you is they think it's important, and that, in and of

19     itself, doesn't meet any standards.

20             JUDGE MOLOTO:  I must admit, you are leaving me behind.  I'm not

21     with you.  I don't know whether you are with him, Judge.

22             Let me try and read what you have -- let me read what you have

23     said.

24             If I think I understand what you are saying, the reason is

25     impeachment.  Until Wednesday afternoon, they didn't know that the

Page 10230

 1     Defence was going to tender evidence that says that the Drina Plan was a

 2     camouflage.  Now that they are aware that it has been tendered as -- it's

 3     been explained as a camouflage, they see the importance to dispute that.

 4     And that is the reason behind their application to want to tender these

 5     documents.

 6             MR. GUY-SMITH:  Well, you explained it better than Mr. Saxon did.

 7     And with that as an understanding, then I have no further comments.

 8             JUDGE MOLOTO:  Then if you have --what does that -- "I have no

 9     further comments," what does that mean in terms of their application to

10     use the documents?

11             MR. GUY-SMITH:  To the extent the documents are solely being used

12     for purposes of impeachment, then they would have met the threshold.

13             JUDGE MOLOTO:  Thank you.  Now, the Drina documents may be used,

14     sir -- the 1st Krajina documents.  I'm so sorry.

15             MR. SAXON:  Thank you, Your Honour.

16             Your Honour, before we lose -- before we leave the topic of the

17     1st Krajina Corps documents, I have one more application to make.

18             Again, the Prosecution chose not to put these documents on its

19     65 ter list, and so it chose, to save resources, not to translate them.

20     All right?  Wednesday afternoon, we see, as we've discussed already, the

21     importance of the documents now to use them with this particular witness.

22     We don't have them, obviously, in such a short period of time, in the

23     English language.  We're asking for the Chamber's patience and leave to

24     allow me to review the key portions of these documents with the witness

25     in his language.  That's what I'm asking you to do.

Page 10231

 1             MR. GUY-SMITH:  Well, if I -- considering that they've had the

 2     documents since at least 2007, when they gave them -- supplied them to

 3     the Defence, I find it somewhat odd that they haven't been translated.

 4     But apart from that, it creates another problem here, which is:  In the

 5     absence of -- in the absence of the documents being translated so the

 6     Chamber can look at them and so we are in a position to fully look at

 7     them with regard to any objections that may arise internally with regard

 8     to any document, we are disadvantaged.  It would make sense for us to

 9     have the document so that we are in a position to address whatever issues

10     may or may not come up.  I don't know if any issues would come up or not,

11     but --

12             MR. SAXON:  The Defence have had the documents for three years,

13     Your Honour, in the language of the excused.

14             MR. GUY-SMITH:  Well, you know what?  I mean, at this point in

15     time, this is -- this is an interesting conversation.  Quite frankly,

16     they've got the burden of proof.  They chose not to introduce these

17     documents.  They chose not to call witnesses.  We relied on that.  We're

18     entitled to rely on that, because the Prosecution has to prove their

19     case.  And if they choose not to call witnesses about a particular

20     matter, and if they choose not to introduce documents about a particular

21     matter, none of that in any way should enure to our detriment.  And in no

22     way should there be any responsibility that enures to us by virtue of the

23     Prosecution's failure to present their case.

24             MR. SAXON:  Your Honour, lead counsel for Mr. Perisic is fully

25     equipped to read these documents and follow them, as is the witness, as

Page 10232

 1     is General Perisic.  If it would assist the Defence, we can tender them

 2     marked for identification at a certain time and then seek the appropriate

 3     translations so then they can be reviewed and dealt with at a later time.

 4     I'm asking for leave to use them today, while the witness is here.

 5             JUDGE MOLOTO:  So if they do come in, they would be marked for

 6     identification precisely because they're not been translated.

 7             MR. SAXON:  Fine.

 8             MR. GUY-SMITH:  I --

 9             JUDGE MOLOTO:  And I was -- if I may, just intervene on your

10     intervention, Mr. Guy-Smith.

11             You indicated that you would be disadvantaged, and Mr. Saxon has

12     already referred to what I wanted to raise with you, that to the extent

13     that at least on your side you have been able to understand B/C/S, to

14     that extent are you even better advantaged than everybody else.  However,

15     I hear what Mr. Saxon says, when he says when they decided - and I don't

16     know when that decision was taken - when they decided that they were not

17     going to use these documents, they decided to save the resources of the

18     Tribunal and not have them translated.  Now they have now become

19     important for them since Wednesday, the 24th of February this year.  In

20     that short period of time, they were not able to have them translated.

21     The witness is here.  We can do it in two ways.  We can either use these

22     documents, mark them for identification, have them translated later, and

23     try to work as detailed as we possibly can while this witness is here, or

24     we don't use these documents, but then this witness must come back once

25     they're translated.

Page 10233

 1             MR. GUY-SMITH:  Understood.

 2             I'm getting a communication from my colleague here.  If I

 3     could -- if I could do that.

 4             JUDGE MOLOTO:  And if you can switch off your microphone --

 5             MR. GUY-SMITH:  I understand.

 6             JUDGE MOLOTO: -- to make sure that we don't hear.

 7             MR. GUY-SMITH:  I understand.

 8                           [Defence counsel confer]

 9             MR. GUY-SMITH:  So the record is complete with regard to this

10     issue:  After speaking with my colleague, we received - XN-144

11     through 155 - notice that those documents would be used today, at

12     2.15 p.m.  That is the first time we received notice that these

13     particular documents would be used for purposes of cross-examination.

14             Number 1, the reason that's of importance is we were supposed to

15     receive, at the time the cross-examination starts, a list of those

16     documents which are to be used.  That was yesterday.  Yesterday, we

17     received, at 5.02 p.m., notice that 178 documents would be used.  And

18     those 178 documents did not include documents XN-144 through 155.  So

19     there's a problem already with regard to -- there's a guide-line problem

20     here, in terms of the way things are supposed to occur.

21             But be that as it may -- there are two other issues that --

22             JUDGE MOLOTO:  May I suggest that you sit down while he's on his

23     feet.

24             MR. SAXON:  Thank you, Your Honour.  But, of course, you know I'm

25     not so good at sitting down, but I'll try.

Page 10234

 1             JUDGE MOLOTO:  But, unfortunately, the ethics of court is that

 2     while one counsel is on his feet, the other must sit down.

 3             MR. GUY-SMITH:  Be that as it may, my understanding, from what

 4     Mr. Saxon has told us, is that documents that were not translated into

 5     English he became aware of as being important for purposes of examining

 6     this particular witness.  I have a question, because unless I'm mistaken,

 7     Mr. Saxon is not conversant in B/C/S, so I'm not quite clear as to how he

 8     became aware of the importance of these documents in a language which he

 9     is not familiar with.

10             However, be that as it may, in the --

11             JUDGE MOLOTO:  Don't be impatient with me.  I'm with you.

12             MR. GUY-SMITH:  In the event -- I'm not being impatient with you,

13     Your Honour.  I'm having some -- never mind what I'm having.  You really,

14     quite frankly, don't want to be in my head right now, or maybe you do.

15             Be that as it may, as I was saying, in the event that the Chamber

16     finds that the late notice of these documents - and by that I mean the

17     failure to include them on the initial list at the commencement of

18     cross-examination - is to be permitted, I believe that we have a

19     position.  However, we would ask for a ruling with regard to that issue

20     first, because otherwise what we're going to get into, I'm afraid of, and

21     this is perhaps the first example of it, is as the cross-examination goes

22     along, they go, Oh, well, here's some more documents that we'd like to

23     use for purposes of cross-examining this individual that we never put on

24     the 65 ter list but were available.  And we're going to end up in a

25     situation where there're going to just be bucket-loads of documents that

Page 10235

 1     come in during the lengthy process of their cross-examination, as opposed

 2     to a cogent determination at the commencement of their cross-examination

 3     that these are the documents that are going to be used.

 4             JUDGE MOLOTO:  By all means.

 5             MR. SAXON:  Your Honour, Mr. Guy-Smith is correct that when the

 6     Prosecution, yesterday afternoon, sent its list of documents to be used

 7     on cross-examination of General Simic, XN-144 through 155 were not

 8     included on the list.  And that was due to an error which I will explain,

 9     an error that I discovered this morning.

10             We've looked at today Prosecution Exhibit P1562, which is the

11     list of documents from the 1st Krajina Corps.  It was the Prosecution's

12     misapprehension, beginning on Wednesday night, when it first began to

13     look at this issue, that the documents that are XN-144 through 155 were

14     part of P1562.  I discovered, at about 10.00 this morning, that we were

15     wrong, that they were part of the 65 ter material that eventually became

16     P1562.  We were wrong about that.  As soon as I realised we were wrong, I

17     called Mr. Lukic and explained the error, and we had the documents

18     up-loaded as soon as we could.

19             Your Honour, if we're going to be clashing over guide-lines, I

20     could also point out, for example, that with respect to this witness, on

21     Saturday of last weekend -- excuse me.  On Friday, a week ago, the

22     Defence deadline for providing its list of exhibits for this witness for

23     direct examination was due to the Prosecution, two working days before

24     the start of direct examination.  On Saturday evening, the Defence sent

25     the Prosecution a list of 27 additional documents that it would use --

Page 10236

 1     potentially use as exhibits with this witness.  Out of collegiality, I

 2     did not raise that with the Trial Chamber.  I told Mr. Simic [sic] that.

 3     I'm surprised, quite frankly, that --

 4             JUDGE MOLOTO:  You told Mr. Simic?

 5             MR. SAXON:  I'm sorry, Your Honour.  It's late Friday afternoon.

 6     I told Mr. Lukic that I wouldn't, and I didn't.  So I'm frankly that

 7     this -- I'm a bit surprised that this argument is being made, but there

 8     it is.

 9             JUDGE MOLOTO:  The argument has been made.  And as I understand

10     the argument, it turns around the question of notice to the Defence and

11     the question of fair trial.  And if that is the feeling of the Defence

12     about that point, which you concede, if this Chamber is going to be

13     forced to make a ruling, and if the two of you don't agree, we're going

14     to have to give the Defence adequate notice before we use those

15     documents.  You can decide, before we make a ruling, whether you want a

16     postponement so that notice is given or whether you want to carry on.

17             MR. SAXON:  Your Honour, we're not going to finish with the

18     witness today.  That is clear.

19             JUDGE MOLOTO:  That's quite clear.

20             MR. SAXON:  So what I will do is I will not use these

21     Krajina Corps documents today.  I will save them until Monday to give the

22     Defence the weekend to review them.  And I hope that would clear up any

23     potential unfairness to the Defence.

24             JUDGE MOLOTO:  Would you have other documents that you could use

25     with the witness today?

Page 10237

 1             MR. SAXON:  With the leave of the Chamber, absolutely,

 2     Your Honour.  They are on our list.

 3             JUDGE MOLOTO:  Okay, let's find out.

 4             MR. GUY-SMITH:  If I could have but a moment with my colleague.

 5                           [Defence counsel confer]

 6             MR. GUY-SMITH:  We appreciate Mr. Saxon's accommodation in this

 7     regard, and the weekend would be time sufficient for us to be able to

 8     grapple with those issues.

 9             JUDGE MOLOTO:  Thank you, Mr. Guy-Smith.

10             MR. SAXON:  Then that brings me, Your Honour, to another group of

11     Drina Plan documents, and I believe I can say, in all truthfulness, that

12     this group were put on the Prosecution's list to be used in

13     cross-examination.  They are the documents that were referred to as

14     XN-132 and the documents that were referred to as XN-133.

15             Let me start with what has been up-loaded onto e-court as XN-132.

16     Your Honour, again this would fall within the category of fresh evidence.

17     These are documents obtained from the Government of Republika Srpska by

18     the Office of the Prosecutor, and they are documents from the

19     Drina Corps, the Army of Republika Srpska, related to the Drina Plan.

20     They were disclosed to the Defence on the 10th of August, 2007, via

21     CD-ROM.  And, again, the Prosecution seeks to use these documents with

22     this witness, tender them for the purposes of impeachment, because they

23     speak to the important issue first raised by the Defence, through this

24     witness, on Wednesday afternoon; that is, that the Drina Plan was not a

25     genuine document or a genuine plan.  So we have 18 such documents from

Page 10238

 1     the Drina Corps, Your Honour.

 2             Also, Your Honour --

 3             JUDGE MOLOTO:  Just hear me out.  I thought you said it's XN-132

 4     and XN-133, which gave me the impression it's two documents.  Now you say

 5     18 documents?

 6             MR. SAXON:  Absolutely, Your Honour is correct.  They have been

 7     up-loaded into e-court under -- the Drina Corps documents have been

 8     up-loaded onto e-court under a single number, XN-132.  But within XN-132,

 9     there are 18 such documents.

10             JUDGE MOLOTO:  And any response from the Defence?

11             MR. GUY-SMITH:  I believe there's a translation issue with regard

12     to these documents.  We do not object to them being MFI'd, if they reach

13     the point of being -- if they reach a point where they are being tendered

14     as exhibits.

15             MR. SAXON:  Your Honours, Mr. Guy-Smith is correct.  Just as with

16     respect to the Krajina Corps documents that have not been translated into

17     English, nor have the Drina Corps documents been translated.  So if we're

18     given permission to use them, I would also seek your leave to use them in

19     the language of the accused for the time being.

20             JUDGE MOLOTO:  Okay.  And you said you don't object,

21     Mr. Guy-Smith?

22             MR. GUY-SMITH:  After consultation with my colleague, we do not

23     object, no.

24             JUDGE MOLOTO:  Thank you, sir.

25             Well, then those documents, XN-132 and XN-133, called the

Page 10239

 1     Drina Plan documents, may be used, and they will be MFI'd, pending

 2     translation.

 3             MR. SAXON:  And, Your Honour, if you'll let me clarify, because

 4     maybe I wasn't clear before.  The documents that have been up-loaded

 5     under XN-133 are documents produced by the Sarajevo Romanija Corps of the

 6     Army of Republika Srpska.

 7             JUDGE MOLOTO:  Oh, not the Drina Corps?

 8             MR. SAXON:  Not the Drina Corps.  That's why they were given a

 9     different number on e-court.  I'm sorry if I wasn't clear.

10             JUDGE MOLOTO:  Okay.

11             MR. SAXON:  Yes, we have a set of Drina Corps documents, that is,

12     XN-132, and a set of Sarajevo Romanija Corps documents, XN-133.  And from

13     the Sarajevo Romanija Corps, we have six documents.

14             JUDGE MOLOTO:  Thank you.  Thank you, Mr. Saxon.

15             You got that right?  XN-132 are Drina Corps documents; XN-133 are

16     Sarajevo Romanija documents?

17             MR. GUY-SMITH:  That's what I understand are the representations

18     made by Mr. Saxon.

19             JUDGE MOLOTO:  Thank you.

20             MR. GUY-SMITH:  There are a total of 24 documents; 18 documents

21     as relates to XN-132, 6 documents as relates to XN-133.

22             JUDGE MOLOTO:  Is that the issue -- is that correct?

23             MR. SAXON:  I believe that those mathematics are correct,

24     Your Honour.

25             JUDGE MOLOTO:  Okay, thank you.

Page 10240

 1             Then both the Sarajevo Romanija Corps documents and the

 2     Drina Corps documents, numbered XN-132 and 133, respectively, may be

 3     used.  They shall be MFI'd, pending translation.

 4             MR. SAXON:  Thank you, Your Honour.

 5             Shall we bring the witness back now?

 6             JUDGE MOLOTO:  The witness may come in.

 7                           [The witness takes the stand]

 8             JUDGE MOLOTO:  Once again, we are very sorry, Mr. Simic.  These

 9     are the vicissitudes of trials.

10             Mr. Saxon.

11             MR. SAXON:  Once again, good afternoon, Mr. Simic.

12             I believe we may need to give the general a different binder.  It

13     would be the second Drina Plan binder.

14        Q.   And, General, if you could please take a look at what is tab 1,

15     and this is part of the first document of XN-132.

16        A.   Yes, it is.

17             MR. SAXON:  We'll wait for it to come up on the screen so other

18     people can follow along.

19             I don't know if that can be rotated somehow.  There we are.

20        Q.   General, this appears to be the cover of a binder.  Can you read

21     for us, please -- we're going to go now into the realm of the Drina Corps

22     of the Army of Republika Srpska.  Can you read what that label says in

23     the binder, please?  Can you read it out loud?

24        A.   From the Main Staff of the Army of Republika Srpska, Drina Corps,

25     and, "Drina."

Page 10241

 1        Q.   Thank you.  And just so you understand, General, this next series

 2     of documents, we don't have them translated into English, so I may rely

 3     on you a little bit more now to read some parts of things into the

 4     record.  But we'll do this as efficiently as we can.

 5             If you turn to tab 2, please, in the binder.  It should be the

 6     next document in XN-132.

 7             JUDGE MOLOTO:  Yes, Mr. --

 8             MR. GUY-SMITH:  I have some concern with what Mr. Saxon just

 9     said, that he's going to use a witness to read things into the record.  I

10     don't think that's an appropriate use of the witness, to read things into

11     the record, when he is using these documents for purposes of impeachment.

12             MR. SAXON:  I'm surprised at that -- I'm surprised at that

13     submission, because in the last series of documents, when we were

14     discussing sanctions, the general read several pieces of documents into

15     the record.

16             MR. GUY-SMITH:  Undeniably so, but --

17             JUDGE MOLOTO:  Mr. Guy-Smith, what's your authority for that

18     submission?

19             MR. GUY-SMITH:  I have no case law for that authority.  However,

20     I believe --

21             JUDGE MOLOTO:  A rule or jurisprudence?

22             MR. GUY-SMITH:  However, I believe that what is being done here,

23     if it is for the purpose of impeachment, then what one does is they

24     present the evidence for which they wish to impeach the witness to them

25     and then engage in whatever appropriate questions they believe establish

Page 10242

 1     that impeachment.  But to have him establish the record, which is what

 2     I'm referring to -- to have the witness establish the record is not an

 3     appropriate manner of dealing with documents --

 4             JUDGE MOLOTO:  The record --

 5             MR. GUY-SMITH: -- because the document, itself -- the document,

 6     itself, is that which is being relied upon, not him reading it into the

 7     record.

 8             JUDGE MOLOTO:  The record is the document, itself, so --

 9             MR. GUY-SMITH:  Well, with that in mind, then I have no

10     difficulty.

11             JUDGE MOLOTO:  Thank you.

12             Yes, Mr. Saxon.

13             MR. SAXON:  Your Honour, before I work with the document at

14     tab 2, I neglected to tender the first document into evidence marked for

15     identification.  That was the first document under XN-132.  It was the

16     cover of the --

17             JUDGE MOLOTO:  The cover?

18             MR. SAXON:  Yeah, and I'm asking if that could be given an

19     exhibit number now, MFI'd.

20                           [Trial Chamber and Registrar confer]

21             JUDGE MOLOTO:  I'm advised that in that case, you'll have to

22     re-upload it as a separate exhibit, sir.

23             MR. SAXON:  Then what I will do is I will work with the witness

24     and ask for the entire group of documents to be given an exhibit number,

25     marked for identification.

Page 10243

 1             JUDGE MOLOTO:  The entire XN-132?

 2             MR. SAXON:  Yes, Your Honour.

 3             JUDGE MOLOTO:  Proceed.

 4             MR. SAXON:  Thank you.

 5        Q.   General Simic, if you could focus your attention on the document

 6     in tab 2, please.  At the top, in the middle, it says:

 7             "Plan of intelligence security."

 8             Isn't that right?

 9        A.   No.

10        Q.   All right.  What does it say?

11        A.   "Plan of intelligence support for the performing of a defensive

12     and offensive operation of the Army of Republika Srpska."

13        Q.   Very well, thank you.  On the left-hand side, we see a stamp of

14     the VRS Main Staff.  And are you able to see the signature of

15     General Mladic on that stamp?  Are you able to see that?

16        A.   Yes.

17        Q.   All right.  And then on the right side at the top, it says:

18             "State Secret, Drina."

19             Doesn't it?

20        A.   Not quite.  It says "People's Defence, State Secret, Drina."

21        Q.   Thank you for that.  And then it says, below that:

22             "Attachment Number 5."

23             And there's a --

24        A.   Yes.

25        Q.   There's a copy number, but I'm, quite frankly, having a hard time

Page 10244

 1     reading it.  Do you see that?  Perhaps it's a "4" or a "9."

 2             JUDGE MOLOTO:  It could also be a "7."

 3             MR. SAXON:  It might be, Your Honour, yes.

 4             THE WITNESS: [Interpretation] To me it looks more like

 5     "Copy Number 7."

 6             MR. SAXON:  All right.

 7        Q.   General, if you go back to the left side of the top of the page,

 8     where we see the stamp and Mladic's signature, doesn't it say there that

 9     it's been approved by General Mladic?

10        A.   That's what it says.

11        Q.   And we see -- if we could go to the next page, please.  We see,

12     again, at the bottom of this chart, another seal of the VRS Main Staff.

13             MR. SAXON:  And then, if we could turn to the last page, please.

14     I'm sorry.  I'm very, very sorry.  I misspoke.  I should have said

15     "the next page" for e-court purposes.  My mistake.  E-court page 4.

16             General, do you see on that page there's a signature by

17     Colonel Petar Salapura?  Do you see that, and a seal?

18        A.   Yes.

19        Q.   And he was the -- he was in charge of the Intelligence Sector for

20     the Main Staff of the VRS; isn't that right?

21        A.   He was the assistant of the commander of the Main Staff for

22     intelligence.

23        Q.   Thank you.  If you could turn, General, to tab 3 in your binder,

24     please, and if we could go to the next document in what is XN-132.  It

25     would be the next page, probably, in XN-132.  Yes, it is.

Page 10245

 1             General Simic, can you read -- this particular document actually

 2     is a total of three pages.  If we stick with the first page here, can you

 3     read the title of the document at the top?

 4        A.   If I have turned to the right document, then it reads "Order for

 5     Intelligence Support."

 6        Q.   And in the upper right-hand corner, we see "People's Defence,

 7     State Secret, Drina," again, don't we?

 8        A.   That's correct.

 9        Q.   And then "Attachment Number 4" and "Copy Number 7."  Are you with

10     me?

11        A.   Completely, Mr. Prosecutor.

12        Q.   At the bottom of the first page, we see the seal of the

13     VRS Main Staff; isn't that right?

14        A.   Yes.

15             MR. SAXON:  And can we turn to the next page, please.  Again, at

16     the bottom we see the seal of the VRS Main Staff.

17             And then can we please go to the last page of this document, just

18     the next page in e-court.

19        Q.   And at the bottom, you'll see the seal of the VRS Main Staff, and

20     signed by the commander, Ratko Mladic.  Are you following me?

21        A.   That is correct.

22        Q.   Thank you, sir.  Can we turn -- General Simic, if you simply go

23     now to tab 4 in your binder.

24             MR. SAXON:  And could we go to the next page in XN-132.

25        Q.   General Simic, this is a plan for camouflage, is it not?

Page 10246

 1        A.   It says "Plan of Operative Camouflage."  The term "deception" has

 2     been used here, but it's called "Plan of Operative Camouflage" where I'm

 3     from.

 4        Q.   All right.  And so this would be a plan describing the different

 5     kinds of deceptive tactics that would be carried out; right?

 6        A.   It provides measures of how certain deceitful actions are going

 7     to be taken or what documents should be planted to agents of foreign

 8     secret or intelligence services in order to deceive the enemy about our

 9     actual intentions.  That was the purpose of what we call, in theory,

10     camouflage.

11             You can see here that it's "operative camouflage," but when I

12     explained the directive, that had to do with strategic camouflage.  You

13     have camouflage at all levels of planning.

14        Q.   All right.  And on the left-hand side, it says -- on the upper

15     left-hand corner, we see a stamp.  And, again, this has been approved by

16     Ratko Mladic, hasn't it?

17        A.   It has been obscured by numbers and by the stamp.  I think it's

18     "Mladic," but I cannot read it clearly.  However, since it says

19     "I approve," it must have been the commander, Ratko Mladic.

20        Q.   Thank you so much for that.  Can you stay on that page for a

21     moment and turn your eyes to the far right-hand side, at the top.  And,

22     again, we see "People's Defence, State Secret, Drina," don't we?

23     Followed by an attachment number and a page number?

24        A.   That's right.

25        Q.   And if we could go to the next page, please.

Page 10247

 1             MR. SAXON:  Can we scroll down in e-court, please.

 2        Q.   On this last page, we see the seal of the VRS Main Staff, and

 3     then this -- it looks like it's been signed by Radivoje Miletic.  Do you

 4     recall what his position was?  Or "Miletic?"

 5        A.   It says, in this document, "Head of the Administration for

 6     Operations and Training."  That is the function of Mr. Miletic on the

 7     Main Staff of the Army of Republika Srpska, the same position that I had

 8     in the General Staff of the VJ.  To put it briefly, he was an operative.

 9        Q.   All right.  So this document would have been -- this plan would

10     have been prepared by General Miletic for the approval of General Mladic;

11     is that right?

12        A.   Not only Miletic, but the whole operations organ, just like I had

13     my own administration on the General Staff, and I wasn't such a clever

14     man like Bismark to do it all by myself.  I had a whole group working on

15     the preparation and drafting of the document.  The fact that I signed it

16     gives me the right to do so based on the order from the Chief of

17     General Staff.  Equally, Mr. Miletic received similar orders from the

18     Main Staff of the Army of Republika Srpska.

19        Q.   Thank you.  So you raise an interesting point.  So, for example,

20     the production of these kinds of plans, they require the concerted

21     efforts of a group of officers, don't they?

22        A.   Yes.

23        Q.   If you could turn to tab 5 in your binder, General.

24             MR. SAXON:  And if we could go to the next page in e-court,

25     please.

Page 10248

 1        Q.   General, I believe - correct me if I'm wrong - this is a list of

 2     documents from the Main Staff of the VRS that was delivered to the

 3     Drina Corps.  Is that a correct summation of what we see at the top here?

 4        A.   Yes.

 5        Q.   All right.  We see, on the upper left-hand corner, the date,

 6     "3 January 1994."  And, again, on the right-hand side, "People's Defence,

 7     State Secret, Drina."  I believe that would be copy number two.

 8             General, one copy of this document would have been kept by the

 9     Main Staff of the VRS; isn't that right?

10        A.   If you followed what I was talking about earlier, when I spoke

11     about the Drina Plan at its strategic level, I said that plans were

12     always drafted in two copies.  One copy is always retained by those who

13     elaborated the details.  In this particular case, it was the Main Staff

14     of the Army of Republika Srpska.  And the second copy, in the form of an

15     extract, which was important for the Command of the Drina Corps, was

16     submitted to them.  And this is the list of documents that they received

17     at the Drina Corps.

18             If you allow me one more sentence.  The entire plan of the

19     Main Staff of the VRS was not available to corps commanders.  What they

20     had was something that was specifically related to their tasks or

21     possibly neighbouring units that possibly depend on the execution of

22     their tasks.

23        Q.   Thank you for that helpful clarification.

24             Can you stay on this same page, General, but focus your eyes on

25     the bottom of the page.

Page 10249

 1             MR. SAXON:  And can we scroll down on the screen, please.

 2        Q.   General, you'll see that this list contained 15 items.  You see

 3     that?  It goes down to number 15?

 4        A.   Yes, yes.

 5        Q.   And at the bottom of that page, we see a date, "13 January 1994,"

 6     and below that the seal of the VRS Main Staff.  Are you with me?

 7        A.   That's right.

 8        Q.   Could we go to the next page, please.  Are you -- I believe on

 9     the next page, in the upper left-hand corner, it says "Documents Drina

10     from the VRS Main Staff."  Do you see that?

11        A.   Yes, I do.

12        Q.   Could we go to the next page, please.  And we see on this page it

13     looks like a table, and in item 1 -- in item number 1, we see the date

14     "9 January 1994."  And then in the next column, this is a difficult word

15     for me to pronounce, but does it say "Naredjenje"?

16        A.   "Naredjenje," yes.

17        Q.   What does "Naredjenje" mean?

18        A.   This document, in the list of documents, is entitled an order.

19     So some order is being issued.

20        Q.   All right.  And then in item 2, in the first column, we see the

21     date "3 January 1994."  And then in the next column over, it says

22     "List of documents."  Do you see that?

23        A.   Yes.

24        Q.   And then in the next column, we see the number "15."  Do you see

25     that?

Page 10250

 1        A.   Yes.

 2        Q.   And that number 15 on this page confirms the receipt of the

 3     15 documents on the list of the first page, doesn't it?

 4        A.   That's right.  But under number 1, there's a covering letter that

 5     goes with this order.  And this list is an integral part of the plan,

 6     whereas the covering letter contains his order to work these plans into

 7     more detail.

 8        Q.   And I imagine an order like that would also require the concerted

 9     efforts of a number of officers to produce.  Wouldn't it?

10        A.   No.  This is a very short order.  All he's saying is that his

11     subordinate must act in accordance with a plan and proceed with the

12     elaboration of his own documents.  Therefore, there was no need for any

13     elaborate and cumbersome order.  It just contained two or three

14     sentences.

15        Q.   Thank you for correcting me.

16             Can you turn to tab 6, please.

17             MR. SAXON:  And if we could go to the next page in e-court.

18             General, correct me if I'm wrong, like you just did, but it's my

19     understanding that this is a document addressed to the Air Force and the

20     Anti-Aircraft Defence about the preparation of a plan.  Is that what it

21     says in the first two lines of text at the top?

22        A.   Yes.

23        Q.   Is this an order?  The word below that in all capital letters, is

24     that the word "ORDER"?

25        A.   We, in the army, use imperative mode.  Therefore, this reads

Page 10251

 1     literally "I hereby order," which means that he issued an order to them

 2     to act in accordance with the extracts received that referred to the

 3     RV and PVO, meaning that they should prepare their own plans.

 4        Q.   Thank you.  Again, on the right-hand side it says "Drina R,

 5     Copy Number 7."

 6             MR. SAXON:  Can we scroll to the bottom of this page, please.

 7        Q.   At the very bottom, to the left of the seal, we see some text,

 8     beginning with the word "Radjeno."  Can you tell us what this text says

 9     or what it means?

10        A.   It means that this order was made out in eight copies and

11     submitted to the Archive, to the Command of the 1st and

12     2nd Krajina Corps, the Sarajevo Romanija Corps, the Eastern Bosnian

13     Corps, and the other corps as well.

14        Q.   The other corps of the Army of Republika Srpska; is that right?

15        A.   I am talking all the time and you're asking me all the time about

16     the documents that came from the Main Staff and the subordinate units of

17     the Army of Republika Srpska.

18        Q.   All right.  We see the seal of the Main Staff, the signature of

19     General Milovanovic.

20             Can you turn to tab 7, please.

21             MR. SAXON:  And can we go to the next page in e-court.

22        Q.   Can you look at the first page with me now, General, please.

23     You'll see, in the upper right-hand corner, it says "People's Defence,

24     State Secret, Drina, Attachment 2, Copy Number 7."  What is the title of

25     this document, General?  Or let me put the question to you directly:  Is

Page 10252

 1     the title "Intelligence Situation"?

 2        A.   Yes, it is.

 3        Q.   If we scroll to the bottom of this page, we see the seal of the

 4     Main Staff.

 5             Can we turn the page, please.  And we see, on the bottom of that

 6     page, the seal of the Main Staff.

 7             Can we go to the next page.  Again, the seal of the Main Staff.

 8             And on until -- can we go to -- can we go ahead one or two more

 9     pages, please, and it should say "Page 8" at the top.  Thank you.

10             MR. SAXON:  This is page 21 in e-court.  We see the seal on the

11     last page.

12        Q.   General, very briefly, why would a report about the intelligence

13     situation form a part of the Drina Plan?

14        A.   Well, how shall I put it?  All other measures taken by the

15     command derive from the prevailing intelligence situation in order for

16     them to carry out their tasks.  They are mainly talking about what the

17     tasks of the aggressor would be, what the probable or possible mode of

18     activities of the Croatian Army would be, what kind of operations would

19     be launched by the Muslim forces, how the enemy forces are expected or

20     anticipated to act; and this would enable the commander to figure out how

21     to resist these actions.  This is the purpose of intelligence reports.

22        Q.   Thank you.  Could you turn to the next tab in your binder.

23     That's tab 8.

24             MR. SAXON:  And if we could go to the next page in e-court,

25     please.

Page 10253

 1        Q.   And, General, if you could just focus for now on the top of the

 2     first page.  At the top of the first page, we see, in all capital

 3     letters, the word "INSTRUCTIONS."  Instructions for what?

 4             You see it at the top of the first page, General Simic?

 5        A.   Mr. Prosecutor, please give me some time to look at the document

 6     to enable me to give you an answer.  You asked me about what an

 7     instruction means.  In order for me to grasp that, I have to look at the

 8     content of the document to give you a valid answer.

 9        Q.   Very well.

10        A.   In the Yugoslav Army, the word "instruction" is not commonplace

11     when it had to do with the Drina Plan of use.

12        Q.   I'm very sorry.  I'm very sorry to interrupt.  I think perhaps my

13     question was not clear.

14             My question was:  You see at the top of the first page the word

15     "Instruction," but I can't read the text immediately below that word, so

16     I can't -- I don't know - and I'd like you to help the Chamber - tell us,

17     instructions regarding what particular unit or topic?  Can you just tell

18     us what it says there?

19        A.   I apologise, Mr. Prosecutor.

20             It reads literally as follows:

21             "Instruction for executed command and co-ordinated action in

22     anti-aircraft defence and air support."

23        Q.   And we see, on the upper left-hand corner, that this was approved

24     by General Mladic.  You see that?

25        A.   That's right.

Page 10254

 1        Q.   Again, a reference to the Drina Plan on the upper right-hand

 2     corner.

 3             And could we please go - let's see - eight more pages forward,

 4     please.  That's it.

 5             And it's a page, General, where we see the word "Prila [phoen]."

 6     If you look at the screen in front of you, we see the seal and a

 7     signature from an officer named Maric below the word "Prilok [phoen]."

 8     Are you with me?

 9        A.   Yes, no worries.

10        Q.   Okay.  Who was Colonel Maric, if you know, or what position did

11     he hold?

12        A.   I can't give you a precise answer to this question, and I'm

13     reluctant to improvise.

14        Q.   All right, that's fine.  But in this case, Colonel Maric would

15     have prepared these instructions for the approval of General Mladic;

16     isn't that right?

17        A.   That's right.

18        Q.   Can we go to the next page, please.

19             Can you tell us in summary, briefly, what do we see on this page?

20     It has ERN 0433-6601.  I believe at the top it says something about

21     signals.  What does it say at the top?

22        A.   It reads:

23             "A.  Signals indicating danger - alerts."

24             Under B, in the middle of the document, it says:

25             "Signals of co-ordinated action and anti-aircraft defence."

Page 10255

 1             You asked me about this instruction before.  I said that it is

 2     not commonplace, in this kind of plans, to use the word "instructions."

 3     We are talking about the plan for co-ordinated action, how the Air Force

 4     and Anti-Aircraft Defence is going to act in concert with the units that

 5     it provides support to.  Now we have the word "co-ordinated action" here.

 6        Q.   Mr. Simic, thank you for that.

 7             JUDGE MOLOTO:  Mr. Lukic.

 8             MR. LUKIC: [Interpretation] Just a correction in the transcript.

 9     On page 86, line 21, the witness said "in our environment" or "with us."

10     I would like the witness to explain what he meant.

11             THE WITNESS: [Interpretation] I meant that in the documents

12     produced by the General Staff of the VJ, this document would have been

13     called a plan for co-ordinated action.

14             MR. SAXON:  Thank you.  I think Mr. Lukic could have done that in

15     redirect examination, but that's fine.

16             MR. LUKIC: [Interpretation] It was just a translation issue.

17             MR. SAXON:  I'm sorry.  That wasn't clear.

18        Q.   General Simic, I'm sorry, very briefly, because we have to pause

19     now, but my question, in particular, for this page is :  What kind of

20     information is on this page, is recorded here?

21        A.   Under item A, "Signals for danger - alerts," it says air raids

22     would be conveyed by telephone, like alert, or air-raid, or by radio

23     communication 22-22.  Next one, danger from --

24             THE INTERPRETER:  The interpreters note that it is very difficult

25     to translate, simultaneously, written documents.  Thank you.

Page 10256

 1             MR. SAXON:  All right.  I think we can stop now for the day.

 2     I think we've done enough.

 3             JUDGE MOLOTO:  Sorry about that, Madam Interpreter.

 4             THE INTERPRETER:  Thank you, Your Honour.

 5             JUDGE MOLOTO:  We, unfortunately, are not done with you, so

 6     you're going to have to come back on Monday at quarter past 2.00 in

 7     Courtroom I.

 8             I warn you again, you may not discuss the case with anybody, and

 9     in particular not with your counsel.

10             Court adjourns to Monday, quarter past 2.00 in the afternoon, in

11     Courtroom I.

12             Court adjourned.

13                           [The witness stands down]

14                           --- Whereupon the hearing adjourned at 7.02 p.m.,

15                           to be reconvened on Monday, the 1st day

16                           of March, 2010, at 2.15 p.m.