1 Monday, 21 March 2011
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.49 p.m.
5 JUDGE FLUEGGE: Good afternoon to everybody. I hope the
6 technical problems are resolved and we will not be -- we don't have to
7 face any additional problem today.
8 At the outset of our today's hearing, I would like to issue an
9 oral decision. The Chamber is seized of the Prosecution's motion for
10 leave to file an amended Rule 65 ter summary for witness Dusan Janc and
11 confidential Appendix A filed on 9th of March, 2011.
12 In this motion, the Prosecution requests leave to amend its 65
13 ter witness summary for its witness Dusan Janc.
14 It argues that Witness Janc's proposed additional testimony
15 concerns the provenance and authenticity -- sorry, I -- I will slow down
16 a bit -- of video footage relating to this case which depicts the accused
17 and other alleged JCE members, as well as the reliability of the Croatian
18 intercept material.
19 The Chamber heard the position of the accused last Wednesday.
20 Mr. Gajic, on behalf of Mr. Tolimir, submits that the motion should be
21 denied in relation to the proposed testimony concerning the Croatian
22 intercepts. He argues that the material should instead be tendered
23 through a bar table motion. He also argues that it is inappropriate for
24 an OTP investigator to address the reliability of these documents and
25 such materials should not be introduced through them.
1 With regard to the proposed testimony concerning the video
2 footage, Mr. Gajic suggests that the material be submitted through other
3 witnesses who have direct knowledge of these events. The Chamber
4 understands he does not take a definite position in this respect.
5 Following Mr. Gajic's oral response, the Chamber heard the
6 Prosecution's reply. Mr. McCloskey submits that the proposed testimony
7 is important for establishing the authenticity of these materials with
8 Witness Janc and that the same examination has been done with this
9 witness and other Prosecution investigators such as Witness Frease.
10 Mr. McCloskey argues that the proposed testimony is not prejudicial or
12 In responding to the Prosecution's reply, Mr. Gajic made further
13 submissions basically reiterating his arguments.
14 In the Chamber's view it is entirely appropriate for Witness Janc
15 to address the issue of reliability of the Croatian intercepts at this
17 The witness's proposed testimony is, prima facie, relevant to and
18 probative of material issues in the case. It will also potentially
19 assist the Chamber since the witness has been involved in the Srebrenica
20 and Zepa investigations.
21 In addition, it is in the interests of the accused that the
22 proposed evidence be presented in this way so as to afford him to
23 cross-examine the witness and the Chamber to ask any additional
25 Lastly, as has been repeated in its written or oral decisions,
1 the Chamber emphasises that it will later accord these materials due
2 weight in terms of its ultimate reliability and probative value, together
3 with all the evidence.
4 For these reasons, the Chamber finds that it is in the interests
5 of justice to allow the amendment of Witness Janc's 65 ter summary.
6 The motion is hereby granted.
7 I understood that there are some translations uploaded in the
8 meantime of Prosecution exhibits.
9 Mr. Thayer.
10 MR. THAYER: Good afternoon, Mr. President. Good afternoon to
11 Your Honours. Good afternoon to the Defence. Good afternoon everyone.
12 There are, Mr. President. They are ten, and they are P00996,
13 P01469, P01538E, P01538F, P01538G, P01541C, P01543C, P01951, P01958,
15 JUDGE FLUEGGE: Thank you very much.
16 MR. THAYER: And, Mr. President, while I'm on my feet just a
17 couple of other preliminary matters. I --
18 JUDGE FLUEGGE: I just want to say these documents are now in
20 MR. THAYER: Thank you, Mr. President.
21 There were four exhibits on the Prosecution's list of exhibits
22 for General Smith which the Defence wanted translations for. Those, I
23 understand, have been completed, and they should be uploaded and released
24 by now. But they -- my understanding is that they are all completed and
25 Ms. Stewart is affirming that they are available in e-court now.
1 JUDGE FLUEGGE: This is really appreciated.
2 MR. THAYER: Two other quick matters with respect to General
3 Smith, Mr. President.
4 The first is the Trial Chamber will have noticed that in the
5 Popovic case testified as a mixed fact and expert witness, and I divided
6 it very clearly to facilitate the clarity of his testimony, so I think
7 it -- as you I'm sure you saw, it's very clearly delineated in his prior
9 I can tell the Trial Chamber for the purposes of my
10 examination-in-chief today, I do not intend to elicit any further expert
11 testimony from General Smith. We're going to rely on the testimony that
12 was adduced in the Popovic case. Of course, I will be clarifying,
13 expanding on certain factual issues, and I will ask him some questions in
14 greater detail about his personal observations of how the VRS Main Staff
15 operated, based on his experience on the ground. But with respect to any
16 further expert testimony, I don't anticipate any in my
17 examination-in-chief with -- with General Smith.
18 The second item is just to forewarn the Trial Chamber. I have a
19 92 ter summary for General Smith. As Your Honours might imagine his
20 testimony was voluminous, it was comprehensive given the nature of his
21 position, role and personal involvement in many of these events. He is
22 clearly an important witness in this case. Judging from the almost 20
23 pages of Defence exhibits we have received, he is of some importance to
24 the Defence as well. For that reason, I have done a fairly detailed
25 92 ter summary for two purposes. The first is -- and having read
1 General Smith's testimony a number of times since 2007, I'm still getting
2 my head around all the issues and putting them in the right categories
3 and trying to organise it so it makes sense, and I think that everybody
4 can benefit from having it condensed, based solely on the transcripts in
5 a summary fashion. So you will see that the summary flows both
6 chronologically, but also by subject matter. And I think that will
7 assist everyone when we embark on four days of cross-examination and what
8 I don't think will be a very extensive examination-in-chief from the
9 Prosecution. I asked for two hours, I don't think I will exceed two
10 hours; I think it will be possibly less.
11 The other reason for a more detailed 92 ter summary is to assist
12 the public who may be following General Smith. I anticipate that there
13 may be more interest than usual with respect to his testimony, so
14 providing that basis for the public to be able to understand the
15 contextual backdrop to his testimony, I think also assists the purpose of
16 this institution.
17 So with that said, and the spirit in which it's been done, I ask
18 for the Court's patience with what is going to be a slightly longer
19 92 ter summary.
20 JUDGE FLUEGGE: Depends how you understand the word "slightly
22 Okay. Let's start, and the witness should be brought in, please.
23 [The witness entered court]
24 JUDGE FLUEGGE: Good afternoon, sir. Please stand for a moment.
25 THE WITNESS: Yeah.
1 JUDGE FLUEGGE: I wish to apologise to you first and foremost for
2 the delay. We had a technical hitch. That was a quotation from the
3 Popovic trial. At the outset of the -- at the outset of your testimony,
4 in that case, it happened the same as today. We had a big technical
5 problem. Therefore, we have a real delay. I'm sorry for that.
6 Please read aloud the affirmation on the card which is shown to
7 you now.
8 THE WITNESS: I solemnly declare that I will speak the truth, the
9 whole truth, and nothing but the truth.
10 JUDGE FLUEGGE: Thank you very much. Please sit down.
11 THE WITNESS: Thank you.
12 JUDGE FLUEGGE: Mr. Thayer is conducting the examination-in-chief
13 by the Prosecution. He has the floor.
14 MR. THAYER: Thank you, Mr. President.
15 WITNESS: RUPERT ANTHONY SMITH
16 Examination by Mr. Thayer:
17 Q. Good afternoon, sir.
18 A. Good afternoon.
19 Q. Would you please state your name for the record?
20 A. My name is Rupert Smith, Rupert Anthony Smith.
21 Q. Sir, do you recall testifying in this Tribunal for five days in
22 November 2007 in the Popovic case?
23 A. Yes, I do.
24 Q. And I'm just pausing because we speak the same language and we'll
25 need to continue to do that.
1 Did you recently read that testimony, sir?
2 A. Yes, I did.
3 Q. And were there a number of misspellings of names and a couple of
4 typographical errors which were identified in your transcript, sir?
5 A. Yes, there were.
6 MR. THAYER: Mr. President, what I would like to do is just
7 review those with General Smith.
8 Q. Sir, at page 17467, lines 10 toe 11, where the word "Carleton" is
9 spelled C-a-r-l-e-t-o-n, that should be Cholerton, C-h-o-l-e-r-t-o-n. Is
10 that correct?
11 A. That is correct, yes.
12 Q. And then at the next page 17468/1, the name Bashley,
13 B-a-s-h-l-e-y, should be Bachelet, B-a-c-h-e-l-e-t. Is that correct?
14 A. That's also correct.
15 JUDGE FLUEGGE: Sir, you should check if we have it now in a
16 correct manner on the screen in our record of this trial. I think you
17 see the record in front of you.
18 THE WITNESS: I don't have it up at the moment, but the document
19 I was shown had that error in it.
20 JUDGE FLUEGGE: It -- the court usher should assist you to have
21 it on the screen in front of you. So that you can follow.
22 THE WITNESS: I thought I was looking there. Oh, I see. You're
23 not putting it up on this one. Right. I'm sorry, I have been then
24 following it on the record as opposed to the display on the -- on my
1 JUDGE FLUEGGE: If we make corrections to some -- of some
2 typographical errors it would be helpful to have it clear on the
3 transcript now.
4 THE WITNESS: Yes.
5 MR. THAYER:
6 Q. And at page 17469, lines to 22, Diane, D-i-a-n-e, Mehoff,
7 M-e-h-o-f-f, should actually be Deyan, D-e-y-a-n, Mihov, M-i-h-o-v. Is
8 that correct, sir?
9 A. Correct, yes.
10 Q. And Antonio Pedwey, P-e-d-w-a-y, should be Antonio Pedauye,
11 P-e-d-a-u-y-e, on the same page and lines?
12 A. Again, correct.
13 JUDGE FLUEGGE: Please wait a moment. Is it recorded correctly?
14 THE WITNESS: Yes, I believe so, yes.
15 JUDGE FLUEGGE: Thank you. Please carry on.
16 MR. THAYER: I'll spell that again, for the record.
17 Q. "Pedauye". Is that how you understand that name is spelled,
19 A. Hang on. We're getting too many variations.
20 Q. P-e-d --
21 A. P-e-d-e-a-w-y. Sorry. P-e-d-e-a-w-y, yes, is how I think it was
23 MR. THAYER: Okay.
24 Q. Transcript page 17511, line 7, "General Bobar" should be
25 "General Gobillard," G-o-b-i-l-l-a-r-d.
1 A. Correct.
2 Q. And at transcript page 17511, line 9, where it says: "Couldn't
3 knew," k-n-e-w, "wit," w-i-t, "my office" should be "continuity with my
5 Again, that's "continuity with my office."
6 A. Correct.
7 Q. Transcript 17626, lines 3 to 4, the phrase "those who tempt them"
8 should be "those who sent him."
9 A. Again, correct.
10 Q. Transcript page 17631, line 4, "Mr. Bilton" should be
11 "Mr. Bildt."
12 A. Correct.
13 Q. And, lastly, transcript page 17806, line 11, the name "Bashaley,"
14 B-a-s-h-a-l-e, again, should be Bachelet. B-a-c-h-e-l-e-t,
16 A. Correct.
17 Q. Okay. General.
18 A. I've been looking again at all those spellings of Pedauye and I
19 would, if it helps the court, I will try and revise my spelling yet
20 again. I think it was spelt P-e-d-u-a-w-e-y.
21 Q. Okay. Now?
22 JUDGE FLUEGGE: But to look at this screen.
23 THE WITNESS: And it is now -- that is how I think it was spelt.
24 JUDGE FLUEGGE: Thank you.
25 THE WITNESS: Those -- those separate letters spelt out with
1 dashes in between.
2 MR. THAYER: Okay.
3 Q. Having advanced to the next round of our spelling bee, General,
4 bearing in mind those typographical corrections, can you attest that the
5 transcript that you read accurately reflects what you said in the Popovic
7 A. It reflects my memory, yes, it does.
8 Q. Can you attest that if you were asked the same questions asked
9 today, that you were asked back in November of 2007, your answers would
10 be the same?
11 A. They would be the same.
12 MR. THAYER: Mr. President, the Prosecution would tender 65 ter
13 7218 and 7219, the former under seal.
14 JUDGE FLUEGGE: They will be received, the former under seal.
15 THE REGISTRAR: Your Honour, 65 ter document number 7218 shall be
16 assigned exhibit number P2085, admitted under seal.
17 65 ter document 7219 shall be assigned exhibit number P2086.
18 Thank you.
19 MR. THAYER: As the Trial Chamber I'm sure has seen, there is an
20 extensive list of associated exhibits which were admitted through
21 General Smith. I trust that the Trial Chamber wants to have those
22 assigned numbers by registry rather than going through them seriatim.
23 JUDGE FLUEGGE: Yes, indeed. But I would like to invite the
24 Prosecution to indicate exactly which of these documents have a
25 translation and which not, so that we can -- we will receive them and
1 they will get a P number by an internal memorandum, but those without a
2 translation will only be marked for identification pending translation.
3 MR. THAYER: Very well, Mr. President. And I'm going to be
4 taking signals from Ms. Stewart who is uncharacteristically at a
5 distance, if she knows. My records indicate that 7220 still does not
6 have a translation.
7 JUDGE FLUEGGE: It is not necessary to do it now. You should --
8 MR. THAYER: [Overlapping speakers] ... Oh, okay.
9 JUDGE FLUEGGE: -- provide the registry with this information .
10 MR. THAYER: Very well.
11 JUDGE FLUEGGE: It would be too time consuming.
12 MR. THAYER: Thank you, Mr. President.
13 JUDGE FLUEGGE: But I take it that the first document in this
14 list is 65 ter 7220, and the last one in this list is already an exhibit.
15 This is P747 and the penultimate one is 65 ter 7240. If we are in
16 agreement with that, you may continue.
17 MR. THAYER: That's correct, Mr. President.
18 JUDGE FLUEGGE: Thank you.
19 Mr. Gajic.
20 MR. GAJIC: [Interpretation] First of all, greetings to everybody.
21 Your Honour, I would like to draw your attention to two exhibits
22 from the Prosecution list. 65 ter 7233 and 7234. They are two videos,
23 and they are identical to D72, marked for identification, which was used
24 with Cornelis Nicolai.
25 So we have a problem. Not only is the contents the same, but we
1 may end up with one exhibit marked for identification and two exhibits
2 admitted into evidence. Since they are identical, I think that from
3 purely technical perspective of the proceedings, the best solution would
4 be to remove MFI from D72, so that it would become simple, normal D72.
5 JUDGE FLUEGGE: The parties are invited to discuss the problem so
6 that we have a clear record.
7 Please go ahead, Mr. Thayer.
8 MR. THAYER: Thank you, Mr. President. And with respect to just
9 one of these exhibits, I want to draw the Trial Chamber's attention to 65
10 ter 2896A, which is an intercept, on the list of associated exhibits.
11 That exhibit is an intercept which has been entered into evidence
12 as P731A and P826B, but intercepted at a different site. So it's the
13 same conversation, just intercepted at a different site. So,
14 technically, they're two separate exhibits because they were intercepted
15 by different operators, but rather than waste time in trying to show
16 General Smith an intercept he has already seen in a different form, we'll
17 just leave it at that, and I just want to put it on the record that this
18 conversation is already in evidence under two different numbers.
19 JUDGE FLUEGGE: Please explain, why did you put it under a
20 different number now in your list?
21 MR. THAYER: Well, the intercept which General Smith was shown in
22 Popovic was simply from a different site, from maybe the north or the
23 south site. But when we called all the intercept operators, of the ones
24 who came and testified, the version of this conversation that we
25 introduced at trial was from a different site, and that's the version
1 that's in evidence right now. But because we showed General Smith in
2 Popovic the other version, that's why it's on the list. We -- we aren't
3 just going to swap it without telling anybody. Because that is what he
4 was shown, not the two exhibits that are actually in evidence in this
5 case. That's what I'm bringing to the Trial Chamber's attention.
6 As you may remember, we had multiple sites hearing the same
7 conversation. This is it an example of that.
8 JUDGE FLUEGGE: At the end of the day, we need a clear system of
9 numbers so that these documents can be identified clearly. It is, at the
10 moment, in your hands to do that.
11 MR. THAYER: Yes, Mr. President. And I think the Chamber will
12 see this is actually a completely separate conversation, so it has a
13 completely separate number.
14 Now, I do have a 92 ter summary for General Smith.
15 JUDGE FLUEGGE: A slightly longer one than usual.
16 MR. THAYER: You put your finger on it, Mr. President, I think it
17 is more than slightly longer than usual.
18 General Smith served in the British army for 40 years and retired
19 in 2002. In late January 1995, he began serving as commander UNPROFOR
20 Bosnia and Herzegovina, based in the Residency in Sarajevo. His mission
21 was to support the delivery of humanitarian aid and to carry out the
22 instructions of the Security Council in relation to the exclusions zones
23 and safe areas and to do this amidst a war. His immediate superior was
24 General Janvier who was based in Zagreb. Also in Zagreb, was
25 Yasushi Akashi, who was UN Secretary-General Boutros-Ghali's
1 Special Representative and Smith's political superior. In his
2 headquarters during the relevant period, Smith had a Chief of Staff,
3 General Nicolai, and a military assistant, Colonel Jim Baxter. In
4 Sarajevo was also located Sector Sarajevo, a subordinate UNPROFOR command
5 based in the PTT building, and commanded by General Gobillard.
6 When he took command in January 1995, a cease-fire between the
7 Bosnian Muslims and Serbs had recently been struck and a Cessation of
8 Hostilities Agreement had been signed. As part of the Cessation of
9 Hostilities Agreement agreement, joint commissions were set up, through
10 which the two sides could sort out issues that might occur. Smith's
11 predecessor, General Rose, established Joint Commission Observers, known
12 as JCOs, as part of the observer and control mechanism in connection with
13 Cessation of Hostilities Agreement, particularly in Sarajevo. As the
14 Cessation of Hostilities Agreement broke down, the JCOs became more
15 valuable as a means of communications with the enclaves of Srebrenica and
16 Gorazde as it got harder and harder to communicate with those enclaves,
17 and also as forward air controllers.
18 Smith met with Izetbegovic, Muratovic, Silajdzic and Delic on the
19 Muslim side, and Karadzic, Koljevic, Krajisnik and Mladic on the Serb
20 side. Smith would be accompanied by civil affairs officers for these
21 meetings. He also attended meetings with these officials in support of
22 Akashi. Smith's purpose in these meetings was to gain an understanding
23 of their position and intentions and to support Akashi in furthering the
24 Cessation of Hostilities Agreement. During these early weeks, Smith
25 developed a thesis to help explain the situation he was seeing and
1 collected information from these meetings and daily reporting from his
2 own officers and the civil side of the UN to prove the hypothesis right
3 or wrong. It was very important for him to have an understanding of the
4 political context, because the position he was in was on the interface
5 between politics and the military.
6 It started to become clear to him that no side to the conflict
7 wanted to make peace at that stage and that the Cessation of Hostilities
8 Agreement would break down. The Muslim side was beginning to gain
9 strength, and their numerical superiority and the arms they were now
10 getting were going to give them an advantage if they started to fight
11 again. On the Serb side, they had gotten so much territory and had so
12 few people that they were overextended, and the only way they could hold
13 the territory was by producing more soldiers. The enclaves, specifically
14 the eastern enclaves of Srebrenica, Zepa, and Gorazde, lay in their rear
15 and required a large number of forces and resources to guard. Smith
16 concluded that not only would the cease-fire break down, but in order to
17 hold the territory they had gained, the Serbs would squeeze the eastern
18 enclaves in order to reduce their significance and free up forces.
19 Smith discussed a number of meetings he had with military and
20 civilian leaders of both sides, from March through September 1995. A
21 record of the meetings was kept by Baxter, and Mladic was always
22 accompanied by another senior VRS officer, frequently the accused.
23 UNPROFOR resupply and humanitarian aid convoys were centrally
24 controlled and restricted by Mladic and his headquarters and were being
25 denied. And among the topics raised by Smith in March and April 1995
1 were the increasing number of VRS attacks on the safe areas, direct
2 targeting of UNPROFOR personnel, and the disruption of aid convoys.
3 Throughout these meetings, the Bosnian Serb military and political
4 leadership accused UNPROFOR of supplying the defenders in the enclave,
5 especially with fuel.
6 Each of the parties would seek to use the UN and the UN forces to
7 their advantage, which Smith called the hostage and shield situation.
8 The Bosnian Serbs saw the UN as a hostage through which they could
9 control and influence the international community. On the other hand,
10 the Bosnian Muslim side urged a more robust interpretation of the
11 UNPROFOR mandate and the use of NATO to support them as a shield.
12 When the VRS attack on Srebrenica began, Smith was on a two-week
13 leave, but was in daily radio contact with Baxter. Gobillard had assumed
14 command in Smith's absence. Smith was recalled from leave to attend a
15 meeting in Geneva to discuss a report to the Security Council about
16 UNPROFOR. At the meeting, it was reported that a Dutch soldier had been
17 killed and another OP lost. It was the general understanding at that
18 time that what was happening in Srebrenica was further squeezing of the
19 enclave, and a fight over an east/west road to the south of the enclave
20 where the VRS had attacked a DutchBat OP in June with a tank. The
21 consequence of the VRS denials to UNPROFOR during the attack, that the
22 VRS was attacking UNPROFOR or the civilian population, was that it
23 introduced delay into the UN and into the decision making process
24 regarding the use of air power, since both parties were in the habit of
25 blaming the other for various actions and the UN had to verify the
2 Smith resumed his leave, but a day later was recalled to Sarajevo
3 because the attack had developed much more strongly. The defence had
4 collapsed and the enclave fell. He arrived in Sarajevo on 13 July. Upon
5 return to Sarajevo, his priorities were the very nearly overwhelming
6 refugee problem at the Tuzla airport and the Dutch hostages and battalion
7 still in Srebrenica. The DutchBat commander was in no way in control of
8 his own circumstances anymore and was "talking from the jail." So he
9 needed to be supported at a level higher than Smith, who was as much in
10 the jail as the DutchBat commander was. Accordingly, Smith attended a
11 meeting in Belgrade on the 15th of July. During that meeting a follow-up
12 meeting was scheduled for 19 July in order to confirm the agreement which
13 was framed in Belgrade and that meeting on the 19th was held at the Jela
14 restaurant and attended by Mladic, the accused, and Indjic.
15 Mladic told Smith that he was meeting in Zepa later that day and
16 sent Smith a letter that night claiming that Zepa had fallen and a
17 surrender arranged. However, Smith treated this claim with considerable
18 suspicion because the actual people doing the fighting were not present
19 at the meeting, and it struck him that the VRS had got the civilians to
20 start to negotiate before they had dealt with the military.
21 Smith attended the London Conference from 20 to 23 July and met
22 with Muratovic in the evening of 23 July. Muratovic was concerned that
23 the Serbs should not have any access to the Muslims from Zepa and with
24 respect to the military-aged men, Smith understood that it was always
25 going to be a problem differentiating between fighters, who are more or
1 less armed, from men of military age who may or may not be fighters,
2 since not all men of military age were members of the armed forces or had
3 the capacity to be a soldier.
4 On 25 July, Smith met Mladic and Gvero again at the Jela
5 restaurant to discuss the outcome of the London Conference, to again
6 press ICRC access to the Srebrenica prisoners, which had not happened,
7 and to discuss Zepa. After the meeting, Smith and Mladic arrived to Zepa
8 separately. Smith met Mr. Torlak, who was a clearly worried man in
9 shirtsleeves, as well as a doctor. The impression the witness had of
10 Torlak was that he had found himself between a rock and a hard place and
11 that the solution was to sign the agreement on 24 July which was put in
12 front of him. Smith returned to Sarajevo late in the evening of the 25th
13 of July and met with Izetbegovic, Muratovic, Masovic, and Dr. Kulovac
14 from Zepa.
15 Smith's priorities were to get UN agencies and personnel on the
16 ground to monitor the situation and to establish what agreement could be
17 reached concerning the POW exchange. Smith also convinced Mladic to
18 permit a CNN team in as a way of avoiding potential excesses.
19 Smith met Mladic again on 26 July at the top of a hill at a
20 Ukrainian check-point. During this time, the VRS officer who was most
21 involved in the operation to remove the civilian population was the
22 accused, who was present on the ground, as well as Mladic.
23 On 27 July, Smith met again with Torlak, Mr. Hajric and
24 Mr. Imamovic, who were considering signing another surrender agreement
25 with Mladic. On the way out of Zepa that last day, he encountered Gvero
1 at a check-point as Gvero was headed into the enclave.
2 Smith next met Mladic in Mrkonjic Grad on the 31st, during a
3 Croatian offensive in the west, which resulted in the ethnic cleansing of
4 Croatian Serbs. By this time, Mladic and his entire high command had
5 moved to the west.
6 On 22 August, Smith met Mladic at Borike near Zepa. And I'll ask
7 General Smith some about that meeting, so I'll just skip part of the
9 And, finally, Smith testified about the role and function of the
10 Main Staff. And he described the structure and functions of the various
11 branchs and other elements of the Main Staff as it acts on the interface
12 between the political elements of a state and the purely military -- to
13 translate the political intentions and desires into military acts. And
14 he further testified, based on his personal observation of the VRS
15 Main Staff, what he observed concerning the command-and-control system
16 that he saw centralised and embodied in the VRS Main Staff. In
17 particular, what he saw in the VRS Main Staff was a relatively small
18 group of people making the decisions at the centre, and there was a
19 capacity to retain this centralised control by splitting off from the
20 main headquarters to put forward elements of the main headquarters
21 alongside the subordinate headquarters in whose area the event in
22 question was taking place and therefore retain that close central control
23 over events. An example of this was in Zepa. By placing his assistant
24 commanders in these forward headquarters, which had the necessary
25 communications links, Mladic was able to have his assistant commanders
1 command in his name across a whole range of responsibilities for the
2 matter for which he was put forth to handle. While Mladic's assistant
3 commanders had specific staff functions, when Smith dealt with the
4 accused or Gvero, he understood each to be a commander, albeit an
5 assistant one, dealing with the matter in hand in the round, and that is
6 how he dealt with them.
7 That concludes my summary, Mr. President.
8 I do have some additional questions for General Smith.
9 JUDGE FLUEGGE: Please go ahead.
10 MR. THAYER:
11 Q. General, you discussed your thesis, we just heard a little bit
12 about it in the summary, and part of your thesis was you judged that both
13 sides were prepared to go back to war, active combat. Was there a
14 time-frame during which you judged that the sides wanted the war to be
15 over or by which it needed for their purposes to be over?
16 A. Yes. I thought that they -- both, for their separate reasons,
17 wanted to see the matter concluding, of course, to their advantage, by
18 the end of that year, 1995. The -- this was for reasons of the
19 availability of resource, as much as anything.
20 Q. And the Trial Chamber has heard, on a couple of occasions,
21 reference to the Carter agreement. Can you tell the Trial Chamber just
22 what the Carter agreement was.
23 A. This was a shorthand for the Cessation of Hostilities Agreement.
24 The final stages of reaching that agreement had been chaired and
25 facilitated by President Carter who had flown in right at the -- at that
1 last stage of that process. I can't remember the precise date, but I
2 think it was between Christmas and New Year of 1994, when he was there,
3 and this agreement was finalized and came into -- into being.
4 Q. Now, as part of your thesis, you testified in Popovic that you
5 had put yourself in Mladic's shoes and anticipated that he would, to use
6 your term, "squeeze the enclaves."
7 And you further testified that, with respect to the VRS
8 restrictions on UNPROFOR resupply and humanitarian aid convoys, that
9 Mladic was very much in charge and that the restrictions and the orders
10 were centrally controlled by him and his headquarters.
11 Do you recall giving that testimony in Popovic, General?
12 A. Yes, I do.
13 Q. Can you tell the Trial Chamber whether these convoy restrictions
14 fit into your thesis.
15 A. Yes, I can. The -- it's a long time ago since I first started to
16 use this word "squeeze," and -- but it was my word as much to myself as
17 anything else, to describe a process, so that you set out to render
18 this -- this enclave as neutralized as you could, so that it required the
19 very minimum number of your own people on its outside to guard yourself
20 against it, and you could free up the maximum number of forces for
21 deployment elsewhere in your -- in your war. And that -- so controlling
22 the flow of resource into that enclave would achieve that purpose. You
23 would also achieve the purpose of, more specifically, of denying popular
24 support to any military activity that conducted out of that. By -- by
25 pressurising the civil population they, in turn, would pressurise the
1 military, the Bosnian military within that enclave, and secondly, you
2 could use it to squeeze and control the United Nations in this
3 relationship that I called the hostage and shield relationship.
4 Q. I want to discuss for a little while the use of air power during
5 your time as commander UNPROFOR, Bosnia-Herzegovina.
6 And I want to just direct your attention to your Popovic
7 testimony. This is transcript page 17601. And just to encapsulate a
8 little bit, and then I will ask you to amplify, you identified three
9 areas of potential use of air power by UNPROFOR through NATO. The first
10 was with respect to the no-fly zones; the second one was close air
11 support in self-defence; and the third was to neutralize the use of, for
12 example, VRS artillery and heavy weapons that were targeting the civilian
13 population or which were violating one of your mandates, the exclusion
14 zones or safe area mandates.
15 Can you explain a little bit more for the Trial Chamber what
16 those three categories really mean. That's a kind of bare bones summary.
17 But if could you expand just a little bit about the differences among
18 those, for example, three uses and perhaps we could talk about a couple
19 of examples that actually happened in -- in May and then obviously in
20 July of 1995.
21 A. Well, there were those three categories. The -- chronologically,
22 they came into force with the no-fly zone category coming in first. This
23 was largely -- which -- it was wholly a NATO responsibility to conduct
24 and -- and was operated from the NATO headquarters in Italy.
25 The -- when that agreement was made and you had forces from one
1 organisation, NATO, operating superimposed over the forces of another
2 organisation, the United Nations, there was clearly the beginnings of a
3 command-and-control problem. And there was also the need to provide
4 added capacity for self-defence to the United Nations forces in case a --
5 the actions of NATO created a -- a situation in which a UN element on the
6 ground was then threatened.
7 And from that, flowed the need for -- for both those two reasons.
8 There flowed the need for something that came to be called the dual key
9 approach to the handling of air power. This was written down in a NATO
10 document when the safe area and exclusion zones were worked through, and
11 became -- worked through in NATO and the UN, and because now you had to
12 have a capacity for both the commanders to agree that if you were going
13 to fly air attacks to enforce -- air attacks by NATO to enforce the safe
14 area and exclusion zone regime, then both commanders had to initiate this
15 attack by turning their keys.
16 The -- a violation of the no-fly zone was dealt with by NATO in
17 the chain of command and when that was -- circumstances occurred when
18 that -- those air attacks took place, the UN were not part of the chain
19 of command. When a close air support mission, and here I would just draw
20 a distinction, it isn't precise in that it sometimes doesn't quite work
21 like this, but as a general rule, a close air support mission is flown at
22 the request of the people on the ground, and there is an -- a -- a party,
23 usually referred to as a forward air controller, on the ground
24 controlling the attack, and the reason for that is the close proximity of
25 your own forces, and that the situation is directly involving your own
1 forces on the ground.
2 If you are carrying out an air attack, for example, in support of
3 the no -- of the exclusion zone and you wish to attack a specific target,
4 let us say an artillery position, then you may still want to have a
5 forward air controller, but here he is now acting more to indicate the
6 target which might be difficult to see from the ground -- I beg your
7 pardon, difficult to see from the air, than to act as a -- and control
8 the attack in order to ensure the safety of your own forces.
9 If the targets are further away from your own forces, or are easy
10 enough to identify by -- from the air, then the probability is you do not
11 involve a forward air controller at all, and it is conducted by the air
12 force, or air forces, using their own capabilities.
13 I think that's a sort of a -- short guide to those three uses of
14 air power, and in particular in the command-and-control arrangements of
15 it this particular year.
16 Q. Let me follow up, General, with a couple of definitional
17 questions and maybe we can look at those examples as they actually took
18 place on the ground in 1995.
19 You've used two terms, "no-fly zone," and I think in the context
20 of what is happening in the Middle East right now, it's certainly a term
21 we're hearing a lot of right now, and you've also used the term
22 "exclusion zone." We have all heard about the safe areas and how the
23 safe areas were constituted, but can you tell the Trial Chamber what do
24 you mean when you are talking with about a no-fly zone, and what do you
25 mean when you are referring to an exclusion zone?
1 A. The no-fly zone over Bosnia-Herzegovina was established fairly
2 early on in the -- in the story of this war. My memory is in 1993, but I
3 couldn't be sure of the exact month in that year. But I'm sure we can
4 find it in the record.
5 This was an intervention by the Security Council members of the
6 United Nations who wanted to see the -- a cessation of the use of Bosnian
7 Serb air power on -- specifically on to civilian targets and -- and
8 refugee columns in -- that were coming out of various towns in Bosnia at
9 the time.
10 NATO, as an organisation, whether they were asked or volunteered,
11 I don't recall, but became the body that took on this particular task
12 and, as I've said, it was conducted out -- by the NATO headquarters in --
13 specific command headquarters was the NATO headquarters in Vicenza in
14 northern Italy.
15 The safe areas were established, but the civil population inside
16 them remained under shell fire on a number of occasions, and the
17 exclusion zone was a further effort by the Security Council and the
18 United Nations to relieve the -- the pressure and stop the direct attacks
19 upon the civil population inside the safe areas. And to do this, a zone,
20 and again my memory may be wrong by a kilometre or two, but I seem to
21 remember it was a 20-kilometre radius, around each of the safe areas was
22 designated. The safe areas were the three eastern enclaves, Sarajevo,
23 Tuzla, and, if I recall, Bihac. But I -- I'm not sure it was the whole
24 of that particular part of the -- of that territory.
25 The safe areas, the exclusion zone, I beg your pardon, were to be
1 free of all heavy weapons which was -- I would -- they were specifically
2 defined, but loosely, anything bigger than an 82-millimetre mortar was
3 considered to be a heavy weapon.
4 These weapons were to be grouped in weapon collection points, and
5 the reason for this was that the United Nations did not want to become
6 partial in this particular war, and that it was agreed that each party
7 should have a capacity to defend itself and the weapons, therefore, would
8 be collected in weapon collections points. For those on the inside of
9 the safe area couldn't take their weapons for 20 kilometres out of it and
10 then have them available for self-defence. So they were grouped inside
11 the safe area in a weapons collection point, and this applied to those on
12 the outside the safe area: In this case, the Bosnian Serbs as well.
13 The weapons were supposed to be, and were until the end of
14 May 1995, under UN supervision within those collection points. The --
15 and the UN had to agree to them being released, that a case existed for
16 you to have your weapons back for self-defence.
17 And that was, as I recall it, the exclusion zone regime that was
18 extant in the beginning of 1995.
19 Q. Okay. Let's turn to two uses of NATO air power during your time.
20 The first in May of 1995, and the Trial Chamber has heard a fair amount
21 of testimony about the air-strikes of the 25th of May and 26th of May,
22 1995, that NATO conducted, targeting, on the 25th, the ammo dump at Pale.
23 The Trial Chamber has obviously heard a lot of testimony about the
24 employment of close air support on 11 July in Srebrenica as well.
25 Can you describe for the Trial Chamber which of the three
1 categories you've just been discussing, each of these events fell into?
2 A. The one I know best is the one in May. As you've heard, in July,
3 I'm on leave at that -- or coming back from leave at that particular --
4 for that particular attack.
5 In May, the situation had been steadily deteriorating during
6 April and May, and we'd reached a stage in -- early in May when I had
7 already requested the use of air power and had it denied in the -- by my
8 superiors in Zagreb. About ten days later, the situation has reached a
9 point where we've had a number of weapons removed from weapon collection
10 points, that is to say, Bosnian Serb army weapons removed by the Bosnian
11 Serbs from weapon collection points under -- in -- in the -- in --
12 outside of Sarajevo, and there was considerable shelling of the civil
13 areas of Sarajevo.
14 I gained the agreement of my superiors and warned directly, by
15 letter and by broadcast, that if these weapons were not back, put back
16 into the weapons collection point, and the attacks on the civil
17 population didn't stop, then targets would be bombed until these weapons
18 were returned. In consultation with NATO, who had the business of
19 actually carrying out this request, and -- we chose the target, an
20 ammunition depot near Pale. The reason for the choice of this target was
21 that it was far enough away from any civil population so there was a very
22 small probability of any damage to civilians. It was close to the
23 headquarters and capital of the Bosnian Serbs. The evidence of this
24 attack would be impressed upon them. There were a number of ammunition
25 bunkers and by -- it allowed me to escalate into a second attack, since
1 we could start and, in fact, bombed two bunkers and then, if that didn't
2 work, I could move on and bomb more, et cetera.
3 So that was a simple explanation of the rationale of that
4 particular target.
5 And, finally, and not least because of my thesis, I thought that
6 the Bosnian Serbs would be worried about the availability of ammunition,
7 and losing ammunition would be a direct threat to their capacity to
8 conduct their war and achieve their military objectives. And in the
9 light of those, the attacks were initiated. They had no effect, in terms
10 of returning the weapons, and that night all the safe areas, from my
11 memory, were shelled again, all within about an hour of each other, and
12 one of the attacks was particularly lethal, killing some 70 people in
13 Tuzla. And, still, the weapons had not been returned, and so we attacked
14 again, at which -- I can't remember, I think we took out two bunkers on
15 the first attack and four on the next one and this had the immediate
16 reaction of hostage taking, threats of UN personnel having their throats
17 slit, men being chained to the outside of anticipated targets and so
18 forth. The number of hostages was slowly increased over the next 12
19 hours. I think I've used the word wrong to say slowly, steadily
20 increased to I think some 350 people were hostage within the next 24
21 hours or so. At which point the resolve of the troop-contributing
22 nations was so weakened that all -- I was told to stop any further
23 attacks. The authority to initiate attacks, excepting close air support
24 for self-defence, was removed from the military commanders and, indeed,
25 from Mr. Akashi, and the -- from the UN side, the authority now rested,
1 after this event, with the Secretary-General himself and nobody else.
2 It -- after this event, we then enter a period of some two weeks,
3 or maybe a little longer, during which negotiations take place to recover
4 the hostages from the Bosnian Serbs.
5 Q. Now --
6 JUDGE FLUEGGE: Mr. Thayer, we started much later than usual, but
7 we -- we must have a break, and I -- I suppose we take our first break
8 now but a shorter break than usual.
9 We will resume at half past at 4.00.
10 --- Recess taken at 4.04 p.m.
11 --- On resuming at 4.33 p.m.
12 JUDGE FLUEGGE: Yes, Mr. Thayer, please continue.
13 MR. THAYER: Thank you, Mr. President.
14 Q. Good afternoon again, General.
15 We left off discussing the air-strikes of the 25th and 26th of
16 May, 1995. Just to literally put them in the -- in the box, was the
17 rationale behind those air-strikes enforcing the exclusion zone, the safe
18 area mandate, self-defence? What was the simple rationale from your
19 perspective for requesting that air power?
20 A. The rationale was to enforce the exclusion zones and the safety
21 of the civil population in the safe area regime.
22 Q. Now you referred in your answer to earlier in May, also
23 requesting air power, but that that was denied. Can you just briefly
24 tell the Trial Chamber what the circumstances were of that earlier
25 request by you for air power.
1 A. Yes. Again, I'm -- I can't be sure of the dates but it's in the
2 first half of May. There was a tunnel that had been dug by the defenders
3 of Sarajevo under the airport that you may have heard about. And it came
4 out at Butmir on the -- as it were, on the side of the airport away from
5 Sarajevo on the side nearest Mount Igman. On this particular day, at or
6 around midday, the mouth of this tunnel or the buildings in the vicinity
7 of the mouth of this tunnel, was very effectively shelled by the Bosnian
8 Serbs and it killed a number of people. I never got to the bottom,
9 entirely at the bottom, of who were amongst these people who were killed
10 on this particular occasion, but it was -- some were certainly in
11 uniform, and it was -- it clearly a -- a well-targeted attack because it
12 caused an immediate reaction amongst the Bosnians defenders who were
13 demanding air-strikes and that the UN should do something about this,
14 et cetera.
15 I refused to follow this -- these urgings of the Bosnian
16 government on the grounds that were people there in uniform. This
17 particular vicinity was on, or very close to, the front line, and I
18 considered it to be part of, if you like, a military engagement. There
19 was considerable political pressure being put on me, not only by the
20 Bosnian government directly, but from external sources that I should do
21 something about this. I refused to do so for the reasons I've given.
22 However, during the evening, the civil areas of Sarajevo began to
23 be shelled and shelled heavily, to the point that I requested an air
24 attack on the grounds that this was now a -- a denial of the safe area
25 and the exclusion zone regimes. However, having refused to do it on one
1 grounds earlier in the day and now demanding it on another set of grounds
2 was rather too much for the system above me to cope with, and I was --
3 this particular request was denied.
4 Q. Okay, General. Let's turn to the 11th of July and understand
5 your caveat that you were probably just about to return from your leave
6 during this period of time.
7 A. You mean the 11th of July.
8 Q. Yes, sir.
9 A. Sorry, I heard you as June.
10 Q. The use of air support on this occasion fell into which of these
11 categories we've been talking? From your understanding.
12 A. Yes.
13 Q. The self-defence of NATO, enforcement of the exclusion zone
14 regime, enforcement of the safe area regime, one or more, or none?
15 A. My memory of this event and the reporting of it was that this was
16 a request under the close air support for self-defence of a UN personnel
18 Q. Now, in the Popovic trial, you spoke a little bit about
19 distinguishing the concepts of impartiality and neutrality and this is at
20 transcript 17503. If you would, please explain to the Trial Chamber, if
21 you would, how those two concepts are different and how that difference
22 played out, in your experience, for example, during the employment of
23 this air power that we've been talking about? If you wanted to use any
24 of those examples, or another example, if you've got a better one.
25 A. These two words, it had been my experience that these two words
1 tend to be used in the same breath and almost as synonyms, and I
2 didn't -- and I don't think that that is the case, and I -- and
3 particularly, in the circumstances I found myself as a commander, I
4 thought it was very important to make sure that I, at least, understood
5 what I -- what was meant by those words, and so that in some of these
6 rather difficult situations where you're standing in the middle of
7 someone else's fight, you can work out just what to do and achieve the
8 object that you've been set.
9 My -- my way of understanding it is by referring myself, if you
10 like, to this following example. If I was a medical officer in the
11 British Army in a war, I would clearly not be neutral. I would be in the
12 British Army, I would be wearing a British Army uniform, and I would be
13 marching under the flag, under the Union Jack. But my duty as a doctor
14 was to carry out my profession impartially, and thus if a casualty was
15 brought in, an enemy that was one of my enemies, I -- my duty was to
16 treat him impartially according to his wounds, and if his wounds were
17 greater and of greater urgency than those of a soldier of my own army, I
18 would -- I would be correct, and it would be my duty as a doctor, to
19 treat the enemy soldier first, because his need was greater than that of
20 my own soldier.
21 So holding that example in mind, I approached the situation where
22 we were to be neutral, but the situation would create the situation where
23 one's actions, if you like, had to be considered within that impartial
24 definition as opposed to one's position of neutrality. And so if a
25 situation occurred where one saw, for example, great need of a population
1 for supply of -- of humanitarian goods, then your business was to supply
2 to those people who needed it, regardless of which side they were on.
3 Equally, if something, some sanction such as the no-fly zone was
4 breached, then that situation had created the situation where you had
5 to -- I, as the commander, had to exercise my understanding of my
6 impartiality in this case, in which case my duty lay with re-imposing the
7 exclusion zone, or whatever it was that had been breached.
8 Q. Now, the Trial Chamber has heard a lot of testimony about the use
9 of NATO air power. Again, in May; in July; and then, ultimately, in
10 September of 1995. The targets of that air power in each of those cases
11 were Bosnian Serb targets. Can you explain to the Trial Chamber why,
12 during the same period of time, let's say from the beginning of 1995
13 through September of 1995 when there were Muslim offences from outside of
14 Sarajevo, threats from Muslim officers in the case of Zepa to -- to kill
15 Ukrainian peace keepers, why NATO air power wasn't employed against the
16 Muslim army or forces.
17 A. In the first instance, the use of air power was not to be
18 understood as the immediate response to every particular situation. It
19 was a -- it was something that one used or was expected to be used
20 sparingly, if at all.
21 So it isn't a solution to everything. Nor is it a solution to
22 everything in that it has its own characteristics and it has to be
23 applied within its, as it were, capabilities. In particular, the
24 interpretations of what it meant in using air power in the case of
25 self-defence or in -- close air support in self-defence -- is there is a
1 time matter that has to be understood and considered. The first is these
2 aircraft were not held in a sort of permanent orbit over the UN. They
3 had to be requested and it takes time for them to fly out there and be
5 Secondly, as I have explained there has to be a forward air
6 controller to actually conduct the attack and if you haven't got the
7 planes and/or you haven't got the forward air controller there, then you
8 can't apply this weapon in those circumstances.
9 And, finally, the understanding of what self-defence meant was
10 taken broadly from the -- if you like, understanding in civil law that if
11 you're not actually being attacked at the time, then you're no longer
12 able to say that you need close air support for self-defence. So if the
13 attack had occurred, you couldn't apply this particular capability in --
14 for that reason. If the man you were trying to defend was no longer
15 being shot at or whatever, he was no longer requiring civil defence and
16 you couldn't uses it punitively after the event.
17 So those limited -- the use of air power in a number of cases
18 where, on the face of it, an incident was occurring.
19 Q. Okay. General, I want to turn your attention to Zepa for a
20 little while.
21 JUDGE FLUEGGE: May I interrupt you for a moment.
22 Judge Nyambe has a question.
23 JUDGE NYAMBE: Thank you.
24 I just wonder if you could clarify for me at page 32, in line 15
25 to the end, Mr. Thayer has asked you to explain: "Can you explain to the
1 Trial Chamber why during this same period of time, let's say from the
2 beginning of 1995 through September 1995, when there were Muslim offences
3 from outside of Sarajevo, threats from Muslim forces ... why NATO air
4 power wasn't employed against the Muslim army or forces?"
5 You have explained quite clearly and eloquently what needs to be
6 in place for the air power to be called. But I think I have missed your
7 answer as to exactly why, in the particular instance that Mr. Thayer has
8 explained, why air power was not used or if it was used at all.
9 THE WITNESS: It wasn't used at all, and I'd have to have a
10 specific -- I have used examples there as some of the reasons why it
11 might not have been used. But without a specific case, I find it
12 difficult to -- he did mention one specific case, didn't he, in Zepa?
13 There, the -- if -- the case I can recall, either I or General Gobillard,
14 I think it was General Gobillard, got hold of the then-prime minister
15 Sacirbey and invited him to get a control of his people in Zepa and that
16 took -- that dealt with that problem that way rather than calling in air
17 power. I also think it was happening at night which is a further
18 complication in these matters. But I can't remember the timing very
20 JUDGE NYAMBE: Thank you.
21 JUDGE FLUEGGE: Mr. Thayer.
22 MR. THAYER:
23 Q. In -- in Popovic, General, you described how Colonel Karremans,
24 the DutchBat commander on the ground there, by the -- by the 11th of
25 July was, in your words, "talking from the jail" and in the summary I
1 read out, I repeated your words that you were in the jail, just as much
2 as he was. And I think we all understand what you're talking about
4 My question to you is: In Zepa, when you go down there on the
5 25th, were you in the jail, as you were in -- or as you and
6 Colonel Karremans were back in Srebrenica on the 11th of July and
8 That's my first question.
9 A. The short answer is, no, we were nothing like as much. In the
10 Zepa case, we were nothing like as much in the jail as I thought
11 Karremans and, to that extent, me, were in -- in the Srebrenica case.
12 Q. And why not, sir?
13 A. Although we'd been presented with the fait accompli of the
14 Bosnian Serb attack, the presence of Bosnian Serbs in the enclave and so
15 forth, we were present and had a great deal more freedom of action and
16 movement than in the Srebrenica case.
17 Secondly, we had the media there. There was, as it were, a
18 witness of other agencies, which included the ICRC. We had the -- the
19 male population had, in the main, taken to the hills and were not in the
20 same circumstances as those that I understood at the time in Srebrenica,
21 all having been taken prisoner. I just couldn't gain access to them.
22 So the -- the context was -- was different to that of Srebrenica.
23 Q. And were you in a position to, as it were, reclaim the enclave or
24 kick Mladic out?
25 A. No. I was in no position to do that. To that extent, I had been
1 presented with this fait accompli.
2 Q. Now, how about the Ukrainian company commander on the ground in
3 Zepa? The Trial Chamber has heard about Colonel Dudnik. Was he talking
4 from the jail?
5 A. Yes. He and his men had been -- were, to a large extent, in the
6 Karremans' position, first with the -- with the defenders and then with
7 the attackers.
8 Q. Now you just referred to the male population from Srebrenica and
9 not gaining access to those people. And in your testimony, you referred
10 on a couple of occasions to 2.000 Muslim men who you are repeatedly
11 asking General Mladic to give ICRC and UNHCR access to but who remain
12 unaccounted for. And that's, for example, at transcript page 17536.
13 Do you recall referring on a number of occasions to these 2.000
14 men that you had in mind?
15 A. Yes, I do. Yes.
16 Q. And at the time, what was your understanding of where these men
17 had been seized and where they were being held during this period of time
18 in July of 1995?
19 A. My understanding is that they had been taken at Srebrenica after
20 the pocket had collapsed, that they had been separated out from the women
21 and children, and that they -- they were being held in Bratunac. And my
22 memory is that we thought they were being held in a football stadium
24 Q. And, ultimately, when ICRC was granted access, do you recall what
25 the ICRC representatives were shown?
1 A. I -- I seem to remember being told that they were finally granted
2 access sometime in early August, but that might have been when I was told
3 as opposed to when they got access. And they were shown some empty --
4 what one might call detention facilities but they weren't convinced that
5 anyone had necessarily been there. And they certainly didn't have any of
6 those 2.000 men there then.
7 Q. And you also testified about your knowledge that, contemporaneous
8 with your involvement down in Zepa, there were ongoing discussions,
9 meetings at the Sarajevo airport about a potential prisoner exchange.
10 Do you recall that testimony, General?
11 A. Yes, I do. Yes.
12 Q. Do you remember how, or if at all, the whereabouts of, for
13 example, these 2.000 men who you were trying to get access to figured
14 into these meetings and discussions, trying to effect an all-for-all
16 A. I have a vague -- a not very comprehensive memory of this --
17 these negotiations. They were -- the idea of a prisoner exchange started
18 fairly early in the Zepa incident. There was a procedure of -- that was
19 conducted between the parties at the airport for dealing with prisoner
20 exchanges and the political affairs element of the UN headquarters, in my
21 headquarters, was responsible for facilitating these talks between the
22 parties on prisoner exchanges at the airport. And my memory of this
23 negotiation was that it kept stalling on what did "all" mean? And the
24 Bosnian Serbs essentially didn't think that Srebrenica's prisoners were
25 part of the exchange, part of "all," and the Bosnian government
1 considered that they most definitely did. And the debate kept stalling
2 over that issue. But I -- beyond knowing that it was going on all the
3 time and reached no result, I don't recall much more than that.
4 Q. All right. We already talked a little bit, if you will, about
5 this Dr. Kulovac, who you met in Zepa. Do you remember meeting him at
6 some point in Sarajevo during this period of time?
7 A. Yes, I do. I met him late one night, or very early one morning,
8 after he'd come out with a busload of wounded and the very sick, of
9 people from Zepa. And I think I met him in the Presidency.
10 Q. And do you recall, General, whether Mr. Kulovac, after reaching
11 Sarajevo, stayed in Sarajevo, or did he get back on one of the buses and
12 return to Zepa during this time?
13 A. I don't think he returned, but I couldn't be absolutely sure of
15 Q. Okay.
16 MR. THAYER: Let's look at video-clip, if we could, please, this
17 is from P594. It's just going to be a couple of seconds of footage.
18 JUDGE FLUEGGE: May I, at this point put a question to the
20 You just mentioned the Presidency. You said, "I think I met him
21 in the Presidency."
22 THE WITNESS: I'm sorry. This was a large building in which
23 Izetbegovic had his -- his offices and so forth known as the Presidency.
24 JUDGE FLUEGGE: In Sarajevo.
25 THE WITNESS: In Sarajevo itself, yes.
1 JUDGE FLUEGGE: Yes. And the place you resided in --
2 THE WITNESS: In the Residency.
3 JUDGE FLUEGGE: Residency. And what kind of building was that?
4 THE WITNESS: It's -- was a substantial house in its own grounds
5 in the centre of Sarajevo. It, I understood, dates or dated, the name at
6 least, from about a century before when people moved about the
7 Austro-Hungarian empire, there was places called the Residency in most
8 large provincial capitals in which visiting officials and so forth would
10 JUDGE FLUEGGE: Thank you very much.
11 Mr. Thayer.
12 MR. THAYER:
13 Q. Okay. We're going to play some video and again this is at --
14 this is P594. We're going to start at approximately 46 minutes into the
15 video. About 20 seconds of video and then I want to go back to a little
16 clip, please.
17 [Video-clip played]
18 MR. THAYER:
19 Q. We've paused at 46 minutes, 15.9 seconds. Can you identify
20 anybody in this still that we have here on the screen, General?
21 A. My military assistant, the then-Colonel Baxter, is in -- is the
22 balding head in the middle.
23 Q. Holding a notebook or a pad in his hand, General?
24 A. Holding the notebook in his hand and with his right hand in the
25 air and slightly out of focus.
1 Q. Okay. Let's continue rolling this clip, please.
2 [Video-clip played]
3 We have paused at 46 minutes, 25.9 seconds. Can you identify
4 anybody in this still.
5 A. I have Mr. Mladic, or General Mladic, is the man with his arm and
6 watch across the picture.
7 Q. Okay. And do you recognise anybody else?
8 A. I think that's Mr. -- that's Indjic back right behind the --
10 Q. With the moustache?
11 A. Yes.
12 Q. Okay. All right.
13 MR. THAYER: If we could start the clip again, please, and
14 just ...
15 [Video-clip played]
16 MR. THAYER: We're at 46 minutes, 7.0 seconds.
17 [Video-clip played]
18 MR. THAYER:
19 Q. Sir, we've stopped at 46 minutes, 9.8 seconds. There's an
20 individual in the immediate foreground with a beard and a blue shirt. Do
21 you know who that is? Can you recognise that man?
22 A. From memory, that's the doctor that we've talked about just now.
23 Q. Okay. Thank you. We're done with this exhibit.
24 With respect to Zepa, the last thing I'd like to take you
25 through, General, is a packet of reports from David Harland, and there's
1 going to be a collective groan from some people in the courtroom; we've
2 worked with this exhibit before. It's a collection of 18 reports that
3 we've looked at with other witnesses, and I want to show you about five,
4 fairly quickly, if I could, and this is 65 ter 2438.
5 The first report is at page 39 of e-court, which is page 30 in
6 the B/C/S.
7 Great. We can see, for the record, that we're at tab 8 in both
9 If we could just go to the next page in both. That should be
10 page 31 in B/C/S.
11 Can we try 31 in B/C/S if -- we're there? Oh. Okay.
12 I'll just read into the record the portions we're interested in.
13 There's not too much. I thought there was a translation available for
15 We can see here, we have a 25 July 1995 report from David Harland
16 to John Ryan and General Gobillard, and the subject is: Zepa
17 negotiations, report number 7.
18 MR. THAYER: If we could go to the next page, please.
19 Q. Okay. We see that it refers to an airport meeting between 1.30
20 and 5.30 this day. There's a reference to the elements of a form
21 agreement being expected.
22 And if we go down to the very bottom, we see that there's a
23 reference to Harland reporting the results of the meeting to, among other
24 people, General Smith's ADC. And who is this referring to, your ADC?
25 A. He is called Captain Lavender. Subordinate to one's military
1 assistant, I had an aide de camp who was this Captain Lavender. And if I
2 was out and about I would be accompanied by my military assistant, and
3 the ADC would act as the long stalk back in the headquarters.
4 Q. There's a reference above to a tentative agreement being reached
5 at the airport to be signed the next day, the 27th, but at the bottom of
6 this page, it reads: "I learned that General Smith and General Mladic
7 had apparently reached an agreement between themselves, under which ..."
8 MR. THAYER: And if we go to the next page.
9 Q. There's a reference in subparagraph 1 to medevacs from Zepa would
10 begin immediately. "2, 60 UNPROFOR troops would proceed to Zepa; and, 3,
11 evacuation of civilians to the area of Kladanj would begin tomorrow."
12 My question, General, is: This agreement that Harland is
13 reporting that he received information from, do you recall on the 25th
14 reaching any such agreement with General Mladic; and if you did, was it
15 verbal, was it written down? What was it, what -- what's this report
16 referring to, if you can remember? And is it accurate, I guess, first of
18 A. I'm sure it's accurate in the sense that this is what Harland
19 understood was the situation at the time. I've -- my experience of his
20 reporting was that it was -- it was good.
21 What -- the first thing is that the agreements were going to have
22 be made between the Bosnians and the Bosnian Serbs, not between me and --
23 and anyone else. I was there to see that agreement was reached and that
24 the -- if at all possible, and that the -- the civilian population were
25 looked after and so forth.
1 My second comment is that I -- at this stage, I don't think we
2 had -- I think those would have been, if you like, lines on which
3 people -- we were -- agreement looked as though it might be being formed
4 but I don't think we had reached the point at that stage of actually
5 reducing anything to writing or anything like that.
6 Q. Okay.
7 MR. THAYER: Mr. President, when we had the other witness who was
8 here testifying about this packet of documents, I think we're all agreed
9 the Defence position was they didn't have an objection, under those
10 circumstances, to the then witness testifying and having those reports
11 that he testified about coming into evidence.
12 I'm trying to complete this document so we can tender the whole
13 thing and I would again invite the Trial Chamber to invite the Defence to
14 seek their position on this additional report and the other four that I
15 will be showing General Smith.
16 JUDGE FLUEGGE: I'm sure the Defence will express their
17 objections if there are any.
18 You should continue.
19 MR. THAYER: I'll just continue then, Mr. President.
20 May we have page 74 in e-court, please. And this is page 51 in
21 the B/C/S.
22 For the record, we're at tab 15 of this packet. If we could go
23 to the next page, please.
24 Q. We can see this is another report from David Harland, this time
25 dated 31st of July. And this one is headed: Zepa negotiations, report
1 number 14.
2 MR. THAYER: And we'll need to go to the next page in the -- in
3 both versions. And one more in the B/C/S, please. And again, just one
4 more in the B/C/S after that. And, I'm sorry, one more page in the
5 B/C/S. Okay.
6 JUDGE FLUEGGE: Mr. Tolimir.
7 THE ACCUSED: [Interpretation] Mr. President, I can't see the
8 first page in B/C/S. I can't see it at all.
9 JUDGE FLUEGGE: It was there for a short moment. Then Mr. Thayer
10 moved to the next and the next and the next page.
11 MR. THAYER: I'm trying to get to the -- to the actual beginning
12 of the report, Mr. President. For some reason, as we saw the translation
13 chopped the B/C/S of the cover page into three separate pages, so the
14 part I want to focus on for General Smith is here on this page.
15 JUDGE FLUEGGE: And if there's a need at the end of dealing with
16 this document, we can go back to the first page and enable Mr. Tolimir to
17 read it.
18 MR. THAYER: Very easily. Mr. President.
19 Q. General, we can see here again this is dated the 31st of July.
20 In the second paragraph here, we can see that Harland reports: "In the
21 morning, I spoke with General Smith and gave him my opinion that the
22 present impasse benefits only the Serbs: Zepa is neutralized, and
23 UNPROFOR is sitting on a remote piece of Serb-controlled territory with
24 150 potential hostages."
25 And then we can all see the rest here. I won't read it into the
1 record. But if you'll take a moment, read to the bottom of the page, and
2 when you need it turned --
3 A. You can turn now.
4 Q. Okay. And I think we can stay in the B/C/S, because this text is
5 captured on the B/C/S page.
6 According to Harland, you've reported to him that you had met
7 with General Mladic near Banja Luka on this day, the 31st of July, and
8 that the entire Serb high command, including Mladic, Gvero, Milovanovic,
9 and Tolimir, appeared to have moved from the Srebrenica-Zepa area to
10 Banja Luka. And we see here, in Roman numerals I through VI, Harland's
11 account of what you are reporting to him, Mladic told you --
12 A. Mm-hm.
13 Q. -- on the 31st.
14 JUDGE FLUEGGE: Do we need to go to the next page in B/C/S?
15 MR. THAYER: Yes, Mr. President. If General Tolimir has had an
16 opportunity, certainly, we are at the last paragraph of this section.
17 Q. And my first question is: Does this report accurately reflect
18 your conversations, both with Mr. Harland and I'll just start there,
19 instead of putting two questions to you?
20 A. As far as I can remember them, yes. Yes.
21 Q. And secondly, your meeting with General Mladic on the 31st.
22 A. Yes, that's -- as I recall those events.
23 Q. And we see here in the seconds-to-the last paragraph,
24 Colonel Coiffet noting that the Sector Sarajevo commander on the ground
25 was unable to render any assistance to the residual Bosnian civilian
1 population in the hills, and favoured withdrawal."
2 Can you tell the Trial Chamber what that's about, General?
3 A. Well, you've -- the -- the male population, certainly those of
4 military age, with the exceptions of one or two had all withdrawn into
5 the hills, whether they were armed or not. And these are mentioned as
6 the Bosnian fighters in the hills by -- in the report of what Mladic told
7 me, and these people were not -- had no intention of surrendering to the
8 Bosnian Serbs, whether they were armed or not.
9 And I was maintaining a presence until I was confident that
10 they -- that -- that the situation had developed to the point that they
11 were either not there or were no longer likely to be rounded up by the
12 Bosnian Serbs. And we're coming to the point when I'm about to withdraw,
13 not least because of circumstances that had started to develop in the
14 west of Bosnia.
15 Q. And we can see here in Roman numeral III that General Mladic is
16 reporting to you - and we need to go back to the previous page in B/C/S
17 to capture Roman numeral III. We can see that General Mladic is
18 reporting to that he has already got information that, in his words, the
19 Bosnian fighters in the hills around Zepa were attempting to break out
20 into three directions: Towards Kladanj, west, and then east, over the
21 river, to Serbia and south towards Gorazde.
22 Did you come into this information independent of Mladic or was
23 he the only source that you had at this time for that information?
24 A. He was my only source of information about the directions,
25 Kladanj and Gorazde. But I was aware -- and I don't think I shared this
1 information with anybody like David Harland, so he wouldn't have known,
2 that there were negotiations going on between Carl Bildt and the Serbians
3 in Belgrade to, as it were, receive these people from Zepa as refugees
4 under the auspices of the ICRC. And part of my reason for continuing to
5 maintain a presence in the pocket was to wait until I'd seen that -- that
6 these negotiations had shown fruit and -- and that people were starting
7 to cross the river, at which point there became less and less reason for
8 me to keep people in Zepa.
9 Q. Now, if we could go to page 78 in e-court and page 57 in the
10 B/C/S. And, again, I don't think we've got a translation for the B/C/S,
11 but it's a one-page document. I just want to look at a couple portions
12 of it.
13 We can see, for the record, that we're looking at tab 16, so if
14 we could go to the next page, please.
15 It's a document headed: The situation in Zepa as of 2 August.
16 It states, "Civil affairs, the present situation in Zepa to be as
17 follows ..."
18 And it starts off, we can see, saying: "The village of Zepa is
19 empty expect for a few Serb soldiers."
20 There's a reference to looting.
21 And if we could skip the next paragraph and I want to focus on
22 two other paragraphs. The third paragraph, and I'll just read this into
23 the record for the benefit of the accused.
24 The third paragraph reads: "The upland interior of the Zepa
25 enclave appears not to have been overrun by the Serbs. It is estimated
1 that perhaps 2.000 people remain in this area, most of whom are believed
2 to be men of military age; and some of whom are believed to be
4 Now the document we just looked at indicated that General Mladic
5 referred to all of the men from Zepa in the hills as fighters and -- and
6 claimed that there were no civilians left in the hills. We have here the
7 civil affairs belief that some of the men in the hills are, indeed,
9 Do you recall hearing this information that the UN believed there
10 were civilians among these men and where that information came from, if
11 you can recall?
12 A. I -- I held a similar view -- I -- it -- that they wouldn't all
13 be fighters, and although I have been talking about the men of military
14 age and this report talks of the military age, I was quite - you know, I
15 wouldn't have been surprised to find women amongst them, particularly
16 younger women. The -- it -- they weren't classified in my mind as only
17 fighters. They were people who didn't want to be in any way -- be moved
18 through Serb hands into -- or run the risk of being moved through Serb
19 hands, the Serb ground, Serb -- Bosnian Serb land into Sarajevo or
20 Central Bosnia.
21 Q. Now, if we can scroll down just a little bit.
22 And, sir, why wouldn't you have been surprised, as you said, to
23 have learned that there were particularly young women among these people
24 in the hills?
25 A. Because there was talk of and a certain amount of evidence in
1 previous cases of rape, of -- of women being raped.
2 Q. Now, the Trial Chamber has heard a lot of testimony about the
3 movement of the civilian population out of Zepa on the 25th, 26th, 27th,
4 and then a little bit on the 28th. Do you recall whether you actually
5 received any reports of any rapes occurring during that transportation?
6 A. No. I had no reports of any rapes.
7 Q. Okay. Let's look at the next-to-last paragraph on this page.
8 It's the one right above the paragraph that's a little obscured. It
9 states: "The Serbs have not allowed UNPROFOR into the Bosnian-controlled
10 area of the pocket and have never granted any freedom of movement other
11 than between OP-2 and Zepa village, both at the south-west corner of the
13 Is this statement correct, General? Is this how you experienced
14 it? Or is it not correct?
15 A. No, that's how I experienced it.
16 MR. THAYER: And let's go to page 81, please, in e-court. And I
17 don't think we have the translation back yet for this one either. For
18 the record, we're at tab 17 in the English version.
19 If we could go to the next page.
20 Q. I just want to ask you a couple of quick questions about this
21 document and then the last one in the pact.
22 We can see from the date, it's 2 August 1995. Report from
23 David Harland. The subject is: Zepa negotiations, report number 15.
24 The --
25 MR. THAYER: If we could go to the next page, please. And if we
1 could scroll down just a little bit more, please.
2 Q. There's a reference to a meeting with yourself and
3 General Gobillard about the French forces remaining in the Zepa pocket.
4 Can you just tell the Trial Chamber what is going on, what's being
5 discussed in this report?
6 A. Can we go to the next ... next page? Or is it just --
7 Q. There is a next page.
8 MR. THAYER: So if we can go to the next page.
9 Q. And we'll see in a moment, General, the letter that is referred
10 to in the previous page that you sent to General Mladic.
11 A. Yeah. I can talk to it now.
12 JUDGE FLUEGGE: Mr. Tolimir.
13 THE ACCUSED: [Interpretation] Thank you, Mr. President.
14 I don't know what this is all about. There is no translation.
15 The question is ambiguous, so I really don't know what to think about all
16 this, what this is all about.
17 Thank you.
18 JUDGE FLUEGGE: Indeed, Mr. Thayer, you should read that part in
19 the record so that Mr. Tolimir receives a translation.
20 MR. THAYER: Will do, Mr. President.
21 The page we have is headed: Assessment. And the assessment
22 reads: "Once the evacuation of civilians from the Serb-controlled part
23 of the Zepa pocket was completed (on 27 July), UNPROFOR was not able to
24 do much for the people who remained. The Serbs did not allow UNPROFOR
25 into the Bosnian-controlled part of the pocket, and there was no
1 evacuation or surrender agreement to implement. Thus, UNPROFOR's people
2 in Zepa were acting only as potential hostages.
3 "It seems that the remaining population of Zepa will have to
4 fend for themselves. Most will presumably try to flee. And most of
5 those are likely to be killed or captured."
6 Q. Can you tell the Trial Chamber what's going on that this report
7 is reporting on?
8 A. There's three things coming to a head here. I am in the
9 knowledge of these negotiations, of which I'm not sharing with my
10 command, and particularly not with my civil affairs officer is making
11 sure I've still got some people in Zepa in case those negotiations fail.
12 From memory, I have evidence that people are now crossing the
13 Drina and going into Serbia at about this time.
14 At the same time, France -- I've got Ukrainian forces in the
15 pocket, I have a few British forces, but the bulk of the force is a
16 French infantry company. And at this point, France is getting concerned
17 about the potential risk that their own forces are under in this pocket
18 as potential hostages to fortune. Since I'm going in and out of the
19 pocket, I am less concerned than France. And the -- and then you have
20 the need to pull everyone out all together and bring them out and cleared
21 through the Bosnian Serb territory to get back to Sarajevo, and that's
22 got to be organised as well.
23 And the reporting by David Harland is privy to the problems of
24 extracting everybody, privy to the concerns of France being rehearsed in
25 New York, but he is not aware that I'm hanging on until I'm confident
1 that people have started to cross the Drina. Somewhere around that day,
2 I'm able to start to withdraw. I think I -- I want to go about 24 hours
3 after the French want everyone to go.
4 Q. And with respect to this assessment that I just read into the
5 record, in July of 1995, when this is being written, did you share this
6 assessment, or is there anything in this assessment with which you
8 A. I was less worried about everybody -- where does he say: "Most
9 will presumably try to flee. Most of these will likely be killed or
11 I was not sharing that because I understood that the back door
12 was open over the Drina and into Serbia.
13 MR. THAYER: And if we could just go to the next page.
14 Q. We have here a letter from you personally to General Mladic.
15 It's dated the 2nd of August at 1120 Bravo, 1995. The subject is:
16 Withdrawal from Zepa.
17 You write: "Further to our meeting on the 31st of July 1995, it
18 is clear that people are now breaking out of the enclave of Zepa. It is
19 judged that there is little left for UNPROFOR to do.
20 "As a result, orders have been given to me to withdraw UNPROFOR
21 from Zepa."
22 And then you request convoy clearance.
23 And you end up by saying: "Should any more members of the
24 civilian population appear, I am sure that you will continue to guarantee
25 access to UNHCR, ICRC, and UN civil affairs personnel who we intend to
1 base in Pale."
2 Do you recall sending this letter to --
3 A. Yes, I do.
4 Q. -- General Mladic?
5 A. Yes.
6 Q. Okay. Last report.
7 MR. THAYER: If we could go to page 86. And there is a
8 translation, which is at page 61.
9 For the record, we're looking at tab 18. If we could go to the
10 next page in both versions.
11 Q. We can see this is another report from David Harland. It's dated
12 the 3rd of August. And the subject is: Zepa. And we can see it's report
13 number 16.
14 I note, if we look at the -- it's to John Ryan and
15 General Gobillard. And we see in the information section, it says
16 Antonio Pedauye, chief of mission UNPROFOR, HQ Sarajevo. First of all,
17 trust me, we've got the correct spelling after all that, if we agree,
19 A. Yes, we do.
20 Q. And just briefly, what is the chief of mission, UNPROFOR
21 headquarters? What was that position in?
22 A. The civil and military chains of command in the UN at that time,
23 and I don't know whether it's still the case now, were parallel, and each
24 reporting in parallel back to New York, the -- with the military setting
25 up their headquarters and sharing the same headquarters with the civil
1 component. So in Zagreb you have the SRSG, the Special Representative
2 for the Secretary-General, and the Force Commander. In Sarajevo, you
3 have the head of mission and -- or chief of mission and UNPROFOR
4 commander. And now it -- although you share the same headquarters,
5 you're reporting separately. So you can see Harland as the civil affairs
6 chief in Sector Sarajevo with his military commander, commander Sector
7 Sarajevo, Gobillard. He is reporting in parallel to Gobillard.
8 Gobillard is reporting to me and Harland is reporting to Pedauye, and so
9 on up the line to New York.
10 Q. Now if we go to the next page in the B/C/S but stay where we are
11 in English, please. We can see that it's an update, and Mr. Harland
12 reports: "There are now no international personnel in the Zepa area."
13 And that: "The last 203 UNPROFOR military personnel have
14 withdrawn from the area in three convoys."
15 And he details the movement of those personnel and then states:
16 "No UNHCR, ICRC, NGO, or other international agencies are present."
17 And if we could go to the next page just in the English.
18 He is reporting further that: "With the UNPROFOR withdrawal from
19 Zepa, this office now has no firsthand source of information on the
20 situation in Zepa."
21 Can you tell the Trial Chamber whether this information, as
22 reported by Mr. Harland, is accurate, based on your experience in the
24 A. Yes, I -- that's -- remind me, it was the 3rd of August again?
25 Q. That's correct, General.
1 A. That's the situation, yes.
2 MR. THAYER: Okay. I think, Mr. President, I think I have
3 already exceeded by two-hour estimate. I do have one document that I
4 passed over in our discussion of the use of air power that I'd like to
5 show General Smith and then I do have another topic which will be at
6 least 20 minutes, I think. And I'd ask the Court for this extra time on
7 these topics which I think will be of benefit to the -- to the
8 Trial Chamber. Particularly, I want to discuss with General Smith some
9 of his observations of how the Main Staff operated in his experience,
10 which weren't gone into during his Popovic testimony, and I'd like to
11 take all together, I think about another half-hour to complete that
12 portion of his testimony.
13 JUDGE FLUEGGE: Mr. Thayer, firstly we must have our second break
14 now, and I must express my concern. This is really very unsatisfactory.
15 You should be able to estimate your time you need in examination-in-chief
16 and you must be aware that most of the testimony of this witness is
17 already in evidence.
18 We come back to that question. We adjourn and resume quarter
19 past 6.00.
20 --- Recess taken at 5.48 p.m.
21 --- On resuming at 6.18 p.m.
22 JUDGE FLUEGGE: Mr. Thayer, you may continue, but finish today.
23 MR. THAYER: Thank you, Mr. President. I will.
24 May we have 65 ter 6039 on e-court, please.
25 Q. While we're waiting for the English translation to come up, what
1 we can see on the left and on UNPROFOR stationery but in B/C/S has been
2 translated for our purposes on the other side.
3 So if you would just take a moment and read the English
4 translation of this letter that, on its face, indicates it was sent from
5 you to General Mladic on the 14th of July.
6 MR. THAYER: And could we scroll down, please.
7 Q. When you're done reading the document, General, please just let
8 us know.
9 A. Yes.
10 Q. What is the purpose of sending this letter to General Mladic on
11 the 14th of July?
12 A. It is to remind him and place on record, again, that the -- that
13 this was a safe area, it had UN forces in it, and there were provisions
14 for their self-defence and so forth.
15 Q. And you refer to a number of UN Security Council Resolutions in
16 this letter, numbers 836, 856 and 1004. We're not going to conduct a pop
17 quiz here as to what each of these specific resolutions stated. But
18 generally speaking, can you tell the Trial Chamber what these resolutions
19 that you're citing to here provided.
20 A. These, from memory, are those to do with the safe areas'
21 exclusion zones, and the exclusion zones, and they provided for the
22 protection of the civil population within those areas and the exclusion
23 of heavy weapons and so forth from them.
24 Q. And with respect to the potential or recourse to NATO air power
25 in the events of violations, was that mentioned in any of these three
1 resolutions, to your knowledge?
2 A. I'd have to check.
3 Q. And from your recollection was the potential use of NATO air
4 power something that was explicitly addressed by the UN Security Council
5 in some resolution, whatever number it might have been?
6 A. Yes, it was, yes.
7 MR. THAYER: Mr. President, the Prosecution would tender 65 ter
8 6039, please.
9 JUDGE FLUEGGE: It will be received.
10 THE REGISTRAR: Your Honour, this document shall be assigned
11 exhibit number P2087.
12 Thank you.
13 JUDGE FLUEGGE: And what about the previous package?
14 MR. THAYER: Mr. President, I think, to be on the safe side, I'd
15 like some time to go through each of those tabs - I've done almost all of
16 them - just to make sure we've got no problems with them and then I can
17 come to you, and I think, save some more time, by doing it later, when
18 we're ready to tender the whole thing.
19 JUDGE FLUEGGE: That's fine. Please go ahead.
20 MR. THAYER:
21 Q. Sir, I want to turn your attention now to some of your
22 observations of not only various Main Staff officers, but how they
23 interacted among themselves and with their lower echelons during your
24 time in Bosnia.
25 You testified to some degree concerning the relationship between
1 the political leadership and the military leadership in Popovic, but I
2 want to spend a little bit more time in an area that we didn't get into
3 in -- in the last case.
4 The first area I want to explore with you is the -- your
5 observations of the individual armies; specifically the VRS and the
6 Armija, the Army of Bosnia and Herzegovina. You noted in the Popovic
7 trial that the VRS had more professional and trained officers than the
8 other two armies, and I presume you're referring to the ABiH and the
9 Croatian forces. Is that correct?
10 A. Yes, yes.
11 Q. Now, in formulating your thesis and observing the VRS and the
12 Armija, did you come to some assessment of their relative strengths and
13 weaknesses? Again, we've already addressed in the prior trial to some
14 degree their officer corps. But let's focus for a minute, for example,
15 on their weapons, in particular their heavy weapons. If you can provide
16 us with a little bit of your assessment based on your observations and
18 A. The -- it was my observation that the -- that the former
19 Yugoslavian army, when things began to break up and the underpinning
20 situation that led to this war began to develop, the -- when the
21 Yugoslavian army fell apart, the bulk of the professional officers went
22 towards the Bosnian Serb forces. That is to say, those that were in
23 Bosnia-Herzegovina, were to be found in the Bosnian Serb army. And with
24 them, went the larger proportion of the weapons, heavy weapons in
25 particular, and the associated ammunition that was available in
1 Bosnia-Herzegovina was in the hands of the Bosnian Serb forces.
2 In addition to the heavy weapons, and not least by virtue of
3 having the -- a higher proportion of the professional officers, they also
4 had the, if you like, an extant staff system - I refer to it, I think, as
5 a nervous system - upon which to build an army. The -- these -- this
6 all, in comparison, to the Bosnians.
7 So the Bosnian army lacked, in comparison, the heavy weapons, the
8 same -- a degree of the cadre of professional officers and this nervous
9 system upon which to build an army. What the Bosnian army had was
10 greater numbers. It -- it was -- it could -- it was numerically stronger
11 and with a smaller area to defend.
12 Q. Now, General, the Trial Chamber has heard a lot of testimony
13 about raids conducted by armed combatants, Muslim combatants from inside
14 the Srebrenica enclave outwards towards targets outside the Srebrenica
15 enclave. And it's, again, uncontested by the Prosecution that that
16 activity occurred and that it occurred in 1995 during the relevant
18 My -- and it's -- again, further, not a matter of dispute from
19 the Prosecution that there were weapons coming into the enclave by
20 helicopter and other means, to arm the Muslim forces who were in the
21 Srebrenica and Zepa enclaves.
22 My question to you, General, is: Number one, do you recall
23 receiving reports of some of these activities, these attacks, these raids
24 from inside the enclave outwards?
25 A. Yes. Yes, I do recall receiving reports. One, in particular,
1 precedes the attack on Srebrenica in July.
2 Q. And from your understanding, from the information that you were
3 provided at the time, did you understand -- or can you provide the
4 Trial Chamber with your understanding of the size and nature of these
5 forces or these groups that were conducting these attacks and raids from
6 inside the Srebrenica enclave?
7 A. They were -- let me start with, it -- it -- it was clear to me,
8 if only by deduction, that it was the Bosnian army's strategy to keep the
9 enclaves active and a nuisance, at the very least, to the Bosnian Serbs
10 and that they were trying to get weapons and they were succeeding in
11 getting weapons, and so forth, into the enclaves.
12 The -- at enclave level as opposed to Bosnian army level, the
13 object of these attacks was much more to gain food and -- as well as
14 being a nuisance. So you were raiding to get supplies and so forth into
15 the -- as well as being just a nuisance and in the rear areas of the
16 Bosnian Serbs. And the bulk of these raids, I don't think were conducted
17 by bigger groups than plus or minus 50 men on any one occasion was my
18 impression of these attacks when they occurred.
19 Q. And do you recall whether it was reported to you that the targets
20 of these attacks were military and -- as well as civilian?
21 A. I don't recall. All of these reports of Bosnian military raids
22 came to us from the Bosnian Serbs, and they reported them as attacks
23 on -- as both military attacks and civil attacks, in that they stole
24 sheep or something like that. But they were also said to be military
25 attacks on Bosnian Serb positions.
1 Q. And do you recall it being reported to you that civilians were
2 killed during any of these attacks as well?
3 A. Yes. I can -- I -- as I recall it, the attack in July that
4 preceded the attack in -- the Bosnian Serb attack on Srebrenica had --
5 there were civilian casualties in that attack.
6 Q. You're referring to an attack in July. Was that the attack on a
7 settlement by the name of Visnjica?
8 A. I believe that was its name, yes. I think so.
9 Q. And if I told you and I don't think I'm going to get any dispute
10 from the Defence that that attack occurred in late June, does that sound
11 about right, or do you think that was in July --
12 A. No, it could have been late June. I remember it as an event that
13 was the -- if you like, the -- that starts the process that leads to the
14 attack on -- on Srebrenica.
15 Q. Okay.
16 A. Is my memory of the chronology.
17 Q. I want to now turn your attention to some of your observations of
18 the actual officers of the VRS.
19 You've testified at great length about your contacts with
20 General Mladic during, in particular, the time of the Zepa operation.
21 Can you describe the level of control that General Mladic appeared to you
22 to have over his army?
23 A. It -- as far as I could see, he had complete control. He, in
24 a -- in -- exercised command directly and firmly.
25 Q. And can you describe for the Trial Chamber the levels in the army
1 at which you saw that control exercised that you've described your
2 contacts with members of the high command, as we might refer to it, or
3 the Main Staff. But did you have opportunities to observe his level of
4 control of subordinate units?
5 A. Well, a particular case comes to mind is when I'm cleared to
6 visit Srebrenica in March of 1995, and we get, as we're driving there, we
7 get lost and we finish up at a Serb check-point and are halted there.
8 And my liaison officer is able to talk quite quickly. We're -- within 20
9 minutes, half an hour, directly to General Mladic from that check-point
10 and have us cleared away and from the check-point and on to Srebrenica.
11 The -- he -- my observation was that he and the Bosnian -- the
12 Bosnian Serb army he commanded was what I would characterise as a very
13 centralised command system, in which the main headquarters kept their
14 hand very firmly on what was going on around them.
15 Q. And, General, were you able to gauge, based on your observations
16 of General Mladic and his senior officers, the degree to which he would
17 tolerate any breakdown in the chain of command within his army?
18 A. My impression was that he wasn't about to tolerate any breakdown.
19 He wanted to be in command and in control. He exercised command through
20 his -- as I observed it, through his immediate subordinate commanders and
21 senior staff officers. And within his command system and the
22 construction of his main headquarters, he had the capacity to split off
23 forward headquarters. I'm not sure what they were called by the Bosnian
24 Serb army, but I -- that was my name for them. And you could put, as it
25 were, a Main Staff headquarters (forward) alongside a subordinate to make
1 sure that things were going exactly as you would wish.
2 Q. All right. For my last series of questions, I want to direct
3 your attention, in particular, to your assessment based on your
4 observations of the accused, General Tolimir, and his role and place in
5 General Mladic's army.
6 MR. THAYER: If we could have 65 ter 27 -- I beg your pardon.
7 7247 on e-court.
8 Q. We'll be looking at a copy of your 1996 witness statement. I
9 think it's easier just to pop that up and ask you some questions about
10 what is in there.
11 So if we could have 7247 in e-court.
12 Do you recognise your signature on the front page of this witness
13 statement, General?
14 A. Yes, I do.
15 MR. THAYER: If we could go to page 6, please, in both the
16 English and the B/C/S.
17 I'd like to focus on the -- perfect. Thank you.
18 And in the B/C/S, I think we'll have to scroll down a little bit.
19 A little bit more. Okay perfect?
20 Q. We see the last sentence of the first full paragraph, you state:
21 "I believe in terms of the RS military hierarchy, Gvero was second fiddle
22 Tolimir, who Mladic described as 'my right-hand man.'"
23 A. Mm-hm.
24 Q. Do you recall the occasion when General Mladic told you this or
25 was this something that was reported to you, if you recall?
1 A. I don't remember the occasion. But I doubt I would have said it
2 as a quote if he hadn't said it to me.
3 Q. Now, if we continue into the next paragraph, you describe what
4 you believe or understood was General Tolimir's position as head of
5 security for the Bosnian Serb army. And you note that he played a
6 prominent and open role in the cleansing of the Zepa enclave where he was
7 seen to be in personal charge of the organisation of assembling buses and
8 putting refugees on to them.
9 Do you see that portion, General?
10 A. Yes, I do.
11 Q. From your testimony in the Popovic case, am I correct that you
12 never went down into the village of Zepa when the removal of the
13 population was occurring; is that correct?
14 A. That is correct.
15 Q. So this information here about General Tolimir being seen to be
16 in personal charge of the organisation of assembling buses and putting
17 refugees onto them, what is the source of your statement in this witness
18 statement [overlapping speakers]?
19 A. It would have been the political affairs officers - Ed Joseph and
20 I can't remember the name of the other one, he was a Ukrainian - who were
21 down there, and a -- and I had a JCO detachment down there as well, and
22 they would have reported to me.
23 Q. The Ukrainian, was that Mr. Bezruchenko, General?
24 A. Yes, that's correct.
25 Q. And this JCO detachment, can you provide the names of the
1 detachment of --
2 A. No. I have a memory that it's the commander of my JCOs was
3 there. He was a Major Wood, but he may not have been there all the time,
4 or been a witness to that particular incident, but he might easily have
5 been the person who reported to me.
6 Q. Okay. Now you go on in the statement, and you report, or you
7 state that Tolimir was a trusted and close confidante of Mladic.
8 What's your basis for saying that in the statement, General?
9 A. Well, on most -- on many occasions when I had met Mladic,
10 General Tolimir was there as well. You saw there the interplay between
11 them. You witnessed them inter-react. There were one or two occasions
12 when I can remember them having an argument, you know, we were talking
13 across the table, Mladic and I, and then suddenly Tolimir was having an
14 argument with Mladic. That sort of relationship. This was close. And
15 then he was being -- he would be used, that is to say, General Tolimir,
16 you would find that he had been put out to, you know, in one of these
17 forward headquarters that ...
18 Q. And what is it, General, about Generals Mladic and Tolimir
19 arguing in front of you which makes you draw the conclusion that they had
20 a close relationship or helps you draw that conclusion?
21 A. Well, it was the body language and the tone. This was a -- this
22 was, you know, rather closer to being equals and so forth, rather than a
23 direct subordinate. They were -- they were -- they -- you could see that
24 this was an a pair operating together, if you will, rather than a -- a
25 straightforward hierarchical structure with one doing what he was told.
1 Q. The last sentence of this paragraph, you state: "I would expect
2 to find that Tolimir had a significant role in all BSA actions including
3 Srebrenica, and in rallying the situation when the BSA Defence collapsed
4 in western Bosnia."
5 Again, can you explain to the Trial Chamber what your basis for
6 making this statement in your witness statement is?
7 A. Well, what he was in charge of, of security and by inference,
8 intelligence and so forth, was -- is central to the command process on --
9 of an army, particularly in circumstances such as the Bosnian Serbs were
11 So what he was doing was -- was an essential function within the
12 command process in the first place.
13 Secondly, I'd seen him, as it were, at Zepa, and I didn't know
14 he'd been at Srebrenica at the time, but the same structures and
15 organisation would have, I suppose, have applied in Srebrenica as it did
16 a few weeks later, a few days later, in fact, at Zepa. And then, as
17 it -- the business of the west -- what went on in western Bosnia, to some
18 extent, that was formed from a conversation with General Tolimir that he
19 and I had had in - it's either the one in October that's mentioned there
20 in that paragraph, or subsequently - where we discussed that particular
21 time and how he'd been very nearly captured while trying to organise the
22 defences on the western side of Bosnia.
23 Q. Now --
24 JUDGE FLUEGGE: Mr. Gajic, is the problem solved?
25 MR. GAJIC: [Interpretation] Mr. President, I would kindly ask
1 General Smith and the Prosecutor to slow down. It's impossible to follow
2 their words in two languages if they continue at this speed.
3 JUDGE FLUEGGE: And especially, please avoid overlapping.
4 THE WITNESS: I'm sorry.
5 JUDGE FLUEGGE: You need to pause between question and answer.
6 MR. THAYER: Guilty as charged, Mr. President.
7 Q. Now, General, you mentioned the -- that you didn't know that
8 General Tolimir had been at Srebrenica at the time. And let me put this
9 question to you: Would General Tolimir - and this is going directly to
10 your statement here - would he have had to have been on the ground in
11 Srebrenica, as General Mladic was, in order for you to have made this
12 statement? In other words, would your assessment, as expressed here,
13 change if you were to learn that General Tolimir was not on the ground at
14 certain periods of time? And let's just say in Srebrenica, for example.
15 A. No, it wouldn't. I'm -- are -- it stopped buzzing.
16 No, it wouldn't. Because the whole business of putting these
17 forward headquarters on the ground is because you, the principal
18 commander, are either in your main headquarters or somewhere else. If
19 Mladic is in Srebrenica, then he doesn't need a -- he is at his own
20 forward headquarters. He doesn't need to put another one forward or
21 another person in it. So -- and all these distances are a day's drive.
22 It's not great distances involved. So it wouldn't surprise me to find
23 that days two and three, for example, Mladic is there, and then a bit
24 later on, he's put someone else, one of his assistant commanders forward
25 into a -- into the area, and he's gone somewhere else.
1 Q. And so, again, with respect to your statement here that you would
2 expect to find that Tolimir had a significant role in all BSA actions,
3 including Srebrenica, is it your assessment, based on your observations
4 of how the VRS operated and Mladic and Tolimir, watching them personally
5 how they operated, that Tolimir's role would have been any less
6 significant, as you've described it, with respect to Srebrenica, were he
7 not on the ground at a particular place or particular time when some of
8 these critical events are happening?
9 A. I'm not sure I can measure significance of a particular action,
10 but his particular portfolio would have made -- you know, was what --
11 dealing with the aftermath of the -- the actual taking of the pocket.
12 And the security issues and so forth would have fallen, directly, as I
13 understand it, into his portfolio.
14 Q. Thank you, General. I have no further questions.
15 MR. THAYER: And I thank the Trial Chamber for the additional
17 JUDGE FLUEGGE: Mr. Thayer, are you tendering the last document?
18 MR. THAYER: No I'm not, Mr. President. That's the 26-page
19 witness statement of General Smith. If my friends wish to introduce it
20 later, I'll have no objection. But at this point I'm not sure we need to
21 burden e-court. I read out the relevant sections, so I'm not tendering
22 it. Thank you.
23 JUDGE FLUEGGE: Thank you very much.
24 Mr. Tolimir, you have nearly five minutes left, but I think it is
25 more convenient to commence the cross-examination tomorrow.
1 But Judge Nyambe has a question.
2 JUDGE NYAMBE: Thank you.
3 I just need some clarification to understand some of the
4 goings-on, since you were the high command of the UN in the relevant
6 The first question I have is: Who was -- or which parties were
7 involved in the evacuation of the civilian population in Zepa?
8 THE WITNESS: Which parties?
9 JUDGE NYAMBE: Yes. Like your office, the Muslim army or the
10 Serbian armies. That sort of thing.
11 THE WITNESS: I'll take it, as it were, a -- group by group.
12 In -- you have two groups of people involved with me as UNPROFOR.
13 There are the civil affairs staff, who, as I've explained, are reporting
14 to Pedauye and so on, and myself. In addition, and -- a completely
15 independent body of the ICRC are there on the ground, and we have some
16 press, I think, acting on a pool basis of everybody, from the CNN there.
17 I don't recall whether the UNHCR had a detachment in the pocket, but they
18 were certainly involved at the Sarajevo end of the -- of the business.
19 That, if you like, was the UN component, both civil and military.
20 Then you have the Bosnian Serb elements, who were either or
21 represented by Mladic or General Tolimir, depending on the time of these
22 events, and then you have the Bosnians themselves. They are -- you can
23 understand them in two groups. The military component of them led by a
24 man whose name began with P and it's now forgotten, but perhaps someone
25 can help me.
1 JUDGE FLUEGGE: I'm very sorry, nobody can help you.
2 THE WITNESS: His name began with P. And I am a -- Palic,
3 perhaps, but it's just slipped my mind. I may be able to remember it
4 tomorrow morning. And the civil element whose initial representative was
5 the doctor, Torlak, who I met in Sarajevo when he brought out a busload
6 of wounded people. And others were -- became involved speaking for that
7 group of people.
8 Those were all the, if you like, the people in the mix.
9 JUDGE NYAMBE: Okay. I have a few questions, but maybe in view
10 of the time, I can continue tomorrow.
11 THE WITNESS: That's your ...
12 JUDGE NYAMBE: Yeah, okay.
13 JUDGE FLUEGGE: Thank you very much. We have to adjourn for the
14 day, and we will resume tomorrow in the morning at 9.00 in Courtroom I.
15 [The witness stands down]
16 --- Whereupon the hearing adjourned at 6.59 p.m.,
17 to be reconvened on Tuesday, the 22nd day of March,
18 2011, at 9.00 a.m.