Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11521

 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.

Page 11522

 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

11     untimely.

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

16     stage.

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

24     questions.

25             Lastly, as has been repeated in its written or oral decisions,

Page 11523

 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,

14     P01959.

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

19     evidence.

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.

Page 11524

 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

 8     testimony.

 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

Page 11525

 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

21     longer."

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.

Page 11526

 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.

Page 11527

 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

25     right.

Page 11528

 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,

18     General?

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

22     spelled.

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.

Page 11529

 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

 4     office."

 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,

15     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

Page 11530

 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

 6     trial?

 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

Page 11531

 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

Page 11532

 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

Page 11533

 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

Page 11534

 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

Page 11535

 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

Page 11536

 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

Page 11537

 1     information.

 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

Page 11538

 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

Page 11539

 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

 8     summary.

 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

Page 11540

 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

Page 11541

 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

Page 11542

 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

Page 11543

 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

Page 11544

 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?

Page 11545

 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

Page 11546

 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

Page 11547

 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

Page 11548

 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,

Page 11549

 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.

Page 11550

 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

Page 11551

 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

17     detachment.

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

Page 11552

 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

Page 11553

 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

Page 11554

 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

 4     there.

 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

Page 11555

 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

19     clearly.

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

Page 11556

 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

 3     there.

 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

 7     afterwards?

 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

Page 11557

 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

23     there.

24        Q.   And, ultimately, when ICRC was granted access, do you recall what

25     the ICRC representatives were shown?

Page 11558

 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

15     exchange?

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

Page 11559

 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

14     that.

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

19     witness.

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.

Page 11560

 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

 9     stay.

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.

Page 11561

 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 --

 9     Mladic.

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

Page 11562

 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

 8     versions.

 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

14     this.

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

Page 11563

 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

17     all?

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.

Page 11564

 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

Page 11565

 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

Page 11566

 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

Page 11567

 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

Page 11568

 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

Page 11569

 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

 3     civilians."

 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,

 8     civilians.

 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

Page 11570

 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

12     enclave."

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

Page 11571

 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

Page 11572

 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

Page 11573

 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

 7     disagree?

 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

10     captured."

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

Page 11574

 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,

18     General?

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

Page 11575

 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

23     ground?

24        A.   Yes, I -- that's -- remind me, it was the 3rd of August again?

25        Q.   That's correct, General.

Page 11576

 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

Page 11577

 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

Page 11578

 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

Page 11579

 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

17     information.

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

Page 11580

 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

17     time-period.

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,

Page 11581

 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.

Page 11582

 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

Page 11583

 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

Page 11584

 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?

Page 11585

 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

Page 11586

 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.

Page 11587

 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

10     in.

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

Page 11588

 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.

Page 11589

 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

16     time.

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.

Page 11590

 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

 5     area.

 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.

Page 11591

 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.