Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11672

 1                           Wednesday, 23 March 2011

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.02 a.m.

 5             JUDGE FLUEGGE:  Good morning to everybody in the courtroom and

 6     those who are listening to our trial.  If there are no procedural

 7     matters, the witness should be brought in, please.

 8                           [The witness takes the stand]

 9             JUDGE FLUEGGE:  Good morning, sir.  Please sit down.  Welcome

10     back to the courtroom.

11             THE WITNESS:  Thank you.

12             JUDGE FLUEGGE:  I have to remind you that the affirmation to tell

13     the truth still applies.

14             THE WITNESS:  Thank you.

15             JUDGE FLUEGGE:  And Mr. Tolimir is continuing his

16     cross-examination.

17             Mr. Tolimir.

18             THE ACCUSED: [Interpretation] Thank you, Your Honour.  May peace

19     reign in this house.  I wish this day and the whole trial to end in

20     accordance with God's will and not necessarily my will.  I will also like

21     to greet the witness and welcome him again.

22                           WITNESS: RUPERT ANTHONY SMITH [Resumed]

23                           Cross-examination by Mr. Tolimir: [Continued]

24        Q.   Yesterday we were talking about evacuation, so yesterday we were

25     talking about the evacuation and who were aware of that evacuation and

Page 11673

 1     who gave their approval.  I asked you whether you saw on the 19th of July

 2     in Mladic's possession the agreement that was reached for the evacuation

 3     of civilians.  You said that you were aware of this agreement but that

 4     you don't remember exactly whether you saw it there.

 5             I would like to show you 7246; that's the 65 ter number.  7247

 6     actually, I apologise.  And it also I think has a P number?

 7             JUDGE FLUEGGE:  Please give us the P number.

 8             THE REGISTRAR:  Your Honours, if I may, 65 ter document 7247 has

 9     not been tendered or admitted into evidence.  Thank you.

10             JUDGE FLUEGGE:  Mr. Thayer.

11             MR. THAYER:  Just so we can start off with a bit of clarity about

12     the various meetings, I don't think I'm mistaken, but the meeting to

13     which General Tolimir is referring wherein General Smith in the report

14     observed that Mladic was carrying agreement was the meeting on the

15     25th of July at the Jela Restaurant.  I think it's clear from the reports

16     that are in evidence that that is the meeting to which we are talking or

17     to which he is referring, just so we can get oriented to time and place.

18             JUDGE FLUEGGE:  Thank you.

19             Is that your position, Mr. Tolimir?

20             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I'm not

21     asking about the timing of that meeting.  What I want to ask him about is

22     what agreement he saw in General Mladic's hands.  And that's why I wanted

23     to take a look at 7247, that's the 65 ter number, so that the General can

24     see what I'm going to ask him about.  Thank you.

25             JUDGE FLUEGGE:  It is on the screen now.  Please go ahead.

Page 11674

 1             THE ACCUSED: [Interpretation] Thank you.

 2             MR. TOLIMIR: [Interpretation]

 3        Q.   So this is your statement.

 4             THE ACCUSED: [Interpretation] Can we have page 19, paragraph 6,

 5     in Serbian.  Okay, now we can see it.  I'm not sure exactly which page in

 6     English that is.  I'm going to read what I'm interested in so that we can

 7     find it in English.  It's page 8 in the English language.  Thank you.

 8             MR. TOLIMIR: [Interpretation]

 9        Q.   "On the 25th of July, I met General Mladic at Han Kram in order

10     to discuss the situation in Zepa and to follow up on aspects of the

11     agreement I had signed with him on the 19th of July.  Mladic was

12     accompanied by General Gvero.  The subject of Zepa dominated the meeting.

13     Mladic arrived carrying an agreement signed by Bosnian officials

14     providing for a cease-fire.  The evacuation of civilians less men of

15     military age and the arrangements for the exchange of prisoners under

16     UNPROFOR auspices.  After a two-hour meeting, I decided to move to Zepa

17     and continue the meeting with Mladic there in order to assess the

18     situation for myself and to assist with the Bosnian agreement on the

19     evacuation of the wounded."

20             My question is, Do you remember now that you stated that Mladic

21     had an agreement signed by Bosnian officials?  Can you tell us anything

22     about that agreement?  Can you tell us whether you saw it?  Did he show

23     it to you?  Thank you.

24        A.   I don't remember the details of the agreement.  I remember he had

25     it and I -- I expect he showed it to me.  But I don't specifically recall

Page 11675

 1     its form or substance.

 2        Q.   Thank you.  So you do remember what you stated here in your

 3     statement, that the agreement was about the cease-fire, about the

 4     evacuation of civilians except the men of military age; is that true?

 5     And also it pertained to the agreement about the exchange of prisoners

 6     under UNPROFOR auspices.  Can you confirm that those elements were

 7     present in that agreement?

 8        A.   If I am saying it when I'm making that statement, then I expect

 9     that was the case, yes.

10        Q.   Thank you.  Does that mean that on the 25th when you arrived

11     there, as you said, to help reach and sign the agreement about the

12     evacuation of the wounded, can you then tell us whether they spoke about

13     it with the Muslim side, because you saw this agreement that they signed,

14     the agreement for the evacuation of civilians and everybody else except

15     men of military age?

16        A.   Yes, I'm clear that this was a result of the two sides talking.

17     Indeed, if not on that day, on another day, I was present when they were

18     both talking, as we've seen in that video.

19        Q.   Thank you.

20             THE ACCUSED: [Interpretation] Please, can we now have 151.

21     It's -- no, actually, I apologise.  D51.  Thank you to e-court.

22             MR. TOLIMIR: [Interpretation]

23        Q.   So this is the basic agreement signed by the representative of

24     the Zepa authorities.  Can you take a look at item number 7.  This was

25     signed on the 24th; that's what we can see in the first paragraph, signed

Page 11676

 1     on the 24th of July and so on and so forth.  And then item 7 goes as

 2     follows:

 3             "In accordance with the Geneva Conventions of

 4     12th of August, 1949, and the additional protocols of 1977, the civilian

 5     population of Zepa shall be given the freedom to choose their place of

 6     residence while hostilities continue."

 7             And I emphasise that: "While hostilities continue."

 8             My question is:  This probably was in the agreement that he

 9     mentioned earlier because this agreement also talks about the evacuation

10     of able-bodied men; so is this the agreement that the Muslim authorities

11     signed?

12        A.   I don't know.  I can't -- I cannot confirm that that is what they

13     signed at that time at all.

14        Q.   Can you now take a look at item 3 where it says that Avdo Palic

15     is supposed to order his soldiers to withdraw.  I will repeat.

16     Avdo Palic has to order his soldiers to withdraw from the defence lines

17     together with the population from the centres of inhabited places and

18     villages and not to try to cross illegally through the territory of

19     Republika Srpska.  My question is --

20             JUDGE FLUEGGE:  Mr. Tolimir, this is very complicated.  You are

21     not putting the text, the real text, of the document to the witness but

22     you put your interpretation of the -- this agreement, item 3, to the

23     witness, which is quite complicated.  And then you want to add a

24     question.  This is, I think, not appropriate.

25             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I was

Page 11677

 1     reading this very bad original that we have on the screen, so maybe I

 2     inserted a word or two.  So I'm going to try to read it again:

 3             "Avdo Palic shall issue an order to his troops to withdraw from

 4     the defence line and refugee groups together with the population and from

 5     the centre of settlements/villages" --

 6             JUDGE FLUEGGE:  May I interrupt you.  This is item 2.  You

 7     indicated you wanted to read item 3.  Now you are reading item 2; this is

 8     a different matter.

 9             THE ACCUSED: [Interpretation] That's correct, Mr. President, I

10     apologise to you and to the witness and to everybody listening.  When I

11     said paragraph 3, I meant their sequence from the top of the page.  But

12     it is actually numbered as paragraph 2.

13             MR. TOLIMIR: [Interpretation]

14        Q.   "Avdo Palic shall issue an order to his troops to withdraw from

15     the defence line and refugee groups together with the population and from

16     the centre of settlements/villages and not to try to cross illegally

17     through the territory of Republika Srpska."

18             This was paragraph 2.  My question is:  If you look at this item

19     of the agreement, can we conclude that Muslims had the obligation to

20     withdraw and then come to the centre of the village and then from that

21     point evacuation would be carried out?  Thank you.

22        A.   I'm not sure I can conclude that in that I don't know the

23     provenance of this document.  You told me it is the one that was in the

24     hands of Mladic and then you weren't so sure.  And secondly, I can see at

25     the bottom of the original -- from the bottom of the original that Palic

Page 11678

 1     hasn't signed it.

 2        Q.   Thank you, Mr. Smith.  I told you first that Mladic had in his

 3     hands a document signed by the Muslim functionaries from Sarajevo, while

 4     this agreement is an agreement signed by the representative of the Zepa

 5     civilian authorities together with General Mladic.

 6             Can we now take a look at item 5.  I quote:

 7             "Avdo Palic shall start disarming his units immediately.  And all

 8     the weapons" -- now I can't read this bit, "... shall be handed over to

 9     the VRS representative in the UNPROFOR base in Zepa."

10             So is this an obligation on the military and Avdo Palic to disarm

11     and surrender their weapons to the VRS in the UNPROFOR base in Zepa?

12     Thank you.

13        A.   No, I don't see that that -- I go back to my last point.  Palic

14     has not signed this agreement.  And as I understand it, he was the

15     commander of the Bosnian armed forces in that enclave.

16        Q.   Thank you, Mr. Smith.

17        A.   And just as you, whoever, drafted this document is committing the

18     ICRC, UNPROFOR, UNHCR to carry out certain tasks, nobody invited UNPROFOR

19     and I'm absolutely certain they didn't invite the ICRC to put their

20     signatures to these documents, or this document.

21        Q.   Thank you, Mr. Smith.  Is this the first time you see this

22     document here in the courtroom, or were you aware at the time that this

23     document was signed back then in Zepa?

24        A.   I believe this is the first time I have seen this specific

25     document.

Page 11679

 1        Q.   Thank you.  On the basis of which document did your team arrive

 2     in Zepa and carry out the evacuation?  Which agreement?  Which document

 3     was it?

 4        A.   I do not recall except that it was the one in Mladic's hand on

 5     the day -- on the 19th, I think it was, if I get my dates right, that

 6     we -- that I came to -- when you've quoted me in my statement.  And I

 7     can't remember now whether that's the 19th or the 25th.  But on that day

 8     I had seen him with a document and we then went to Zepa.  And I suspect

 9     the document was in Serbo-Croat, which I can't read, so I was taking its

10     interpretation for what I was told it said.

11        Q.   Thank you.  Since you do not know this document, although your

12     people took part in the evacuation in accordance with the agreement, I

13     would like us to tell -- I would like you to tell us the following:  You

14     said that Avdo Palic didn't sign it; however, were you as a soldier

15     responsible and did you have a duty to carry out the political decisions

16     of the political functionaries of your state and also of the

17     United Nations during your term in Bosnia?  Thank you.

18        A.   You've got -- I didn't follow your question properly.  And in the

19     record it says an "injury state," and I'm not quite clear.

20             JUDGE FLUEGGE:  We heard the interpretation of "your state."

21             THE WITNESS:  Ah.  I was not --

22             JUDGE FLUEGGE:  Now it's corrected.

23             THE WITNESS:  Right.  My political authorities and the people I

24     was responsible to politically were the United Nations and my -- and as

25     I've explained to you, there was a parallel chain of command in which the

Page 11680

 1     military chain of command worked back to the department of peacekeeping

 2     in the United Nations.  And while I was required in every way to

 3     co-operate, co-ordinate, and so forth with the political direction of the

 4     United Nations, my authority as a military commander was to make my

 5     decisions and give my orders to my command.

 6             MR. TOLIMIR: [Interpretation]

 7        Q.   Thank you.  We heard your answer which was slightly more expanded

 8     than I expected, so maybe we lost the essence of the answer.  What I want

 9     to know is whether you on one side and Avdo Palic on the other side were

10     duty-bound to carry out the orders given to you by the political

11     authorities of your respective countries?  Thank you.

12        A.   I cannot answer for Palic or, for that matter, the Bosnian army.

13        Q.   Thank you.  Were you aware of the fact that Hamdija Torlak, the

14     person to whom you spoke, was the representative of the Muslim population

15     and the military in the negotiations with the VRS?  He arrived at

16     Boksanica as their representatives.  Were you aware of that?

17        A.   I'm not clear that he was the representative for military matters

18     in this negotiation, and I don't believe he could speak for them.  Not

19     least because we've already seen from the correspondence with the -- with

20     President Izetbegovic that he saw -- he, the president, saw that there

21     was a difference between the authorities of the civil community within

22     Zepa and the military of Bosnia-Herzegovina overall.

23        Q.   Thank you, Mr. Smith.  I think this is your opinion.  The

24     documents, however, tell a different story.

25             THE ACCUSED: [Interpretation] Can we now take a look at D55,

Page 11681

 1     page 30.  I want to see what Mr. Avdo Palic says about this evacuation.

 2     So can we have in e-court page 30, paragraph 108.

 3             MR. TOLIMIR: [Interpretation]

 4        Q.   And Avdo Palic says the following:

 5             "President, at about 21 hours, negotiations in Boksanica,

 6     Rogatica, at which General Smith, Torlak Hamdija," the person we just

 7     mentioned, "president of Executive Board of Zepa, and war criminal

 8     Ratko Mladic were present, concluded.  As General Suvalic informed me

 9     today during these negotiations, an agreement about the exchange of all

10     for all, accepted also by our side, should have been adopted.

11     Minister Muratovic was supposed to be present at these negotiations but

12     he was not because security was not guaranteed for him.  General Suvalic

13     also informed me about this.  During the negotiations, General Smith

14     stated that our side did not accept the agreement about the exchange of

15     all for all and that our side was looking for some additional

16     concessions.  Hamdija Torlak remained at the place of negotiations in

17     Boksanica, and he was told that if we are prepared to accept the exchange

18     of all for all during the night or until 0800 hours in the morning,

19     General Smith will let us know so that the plan of helicopter evacuation

20     could be prepared.  President, I ask you on behalf of my brigade, which

21     is on the verge of nervous breakdown, if our side does not accept the

22     agreement to undertake everything so that it accepts the agreement and

23     free us from torture, we cannot believe that this problem looks like you

24     will not solve it.  If this problem is not resolved in the course of

25     tomorrow, I must make a decision tomorrow to make a break-through towards

Page 11682

 1     you with 2.000 men and 10.000 rounds, whoever will cross over, and you

 2     have the picture of Srebrenica and obtained intelligence data," and so

 3     and so forth.

 4             Then further below, line 18, he says:

 5             "President, I ask you in the name of soldiers who have been

 6     fighting for the last 15 days like lions.  I ask you in the name of

 7     fallen soldiers.  And in my ranks I have sons or parents of those who

 8     died.  I ask you in the name of evacuated families and children who are

 9     just waiting to meet their fathers, who are left on Zepa mountain to be

10     slaughtered or annihilated in any other way.  I ask you again in the name

11     of my soldiers to make it possible for us to defend Bosnia in some other

12     battle-fields, to liberate it, and to die like people.  Do not let us die

13     of hunger, of most common diseases, because we do not have a single

14     doctor, but already have sick people who cannot, if we start the

15     break-through, to get through to the free territory."

16             So this was a long quote.  Do you see the position of Avdo Palic

17     here?  Was his position that both the population and the military should

18     be evacuated from the non-demilitarised zone of Zepa into the territory

19     controlled by the BiH army?  Thank you.

20        A.   I can see that that is what he's asking his president to arrange

21     or to make happen.

22        Q.   Thank you.  Does Avdo Palic recognise Torlak as the negotiator on

23     behalf of the army and the population and is he saying that he will wait

24     in Boksanica until you get the consent of the Muslim Presidency?  Thank

25     you.

Page 11683

 1        A.   He says that he is making -- he is negotiating, if I recall.

 2             Can we go back to the first page of this?

 3             JUDGE FLUEGGE:  Not the first page, the previous page.

 4             THE WITNESS:  The previous page, correct.  I'm sorry.  He says

 5     that Torlak is conducting and has conducted the negotiations.

 6             MR. TOLIMIR: [Interpretation]

 7        Q.   Thank you.  Does he call him "our negotiator" in this document?

 8     Hamdija Torlak is in Boksanica, et cetera.  Thank you.

 9        A.   I don't remember if he says "our."  I can't see "our" there.

10        Q.   Thank you.  Does that mean that Avdo Palic recognizes members of

11     the War Presidency to be negotiators, those who are in charge of the army

12     and civilians who are exercising all authority in war time in the

13     territory of the enclave of Zepa?  Thank you.

14        A.   No, it doesn't mean it as you've stated it.  It says that, in

15     that Palic is supposed to have written this or said it, that Torlak is

16     conducting the negotiations.  It doesn't say that he is in charge of the

17     army.

18        Q.   Thank you.  Does Avdo Palic want the soldiers and civilians to

19     leave the enclave of Zepa, and is that what he says in his letter to

20     Alija Izetbegovic?

21        A.   Clearly he is wanting to get them out, and he would like to get

22     them out by helicopter.  If not, he is going to have to walk them out.

23        Q.   Thank you.  I asked you yesterday whether anyone had obstructed

24     the implementation of the agreement or the evacuation of civilians and

25     soldiers from Zepa and you said that no one did that.  Can you please

Page 11684

 1     answer that question now.  Was anybody obstructing the process or

 2     dragging their feet?  Because yesterday we read that letter of

 3     Alija Izetbegovic saying that it was the Serbs who were taking their

 4     time.  Thank you.

 5        A.   I'm not entirely clear.  I think I answered last time that apart

 6     from particular incidents, one of which was reported me involving you, I

 7     don't recall the evacuation of the population as being obstructed once we

 8     had got the arrangements clear.  What we have here is an argument going

 9     on about the arrangements.

10        Q.   Thank you, Mr. Smith.  I understand what you are trying to say.

11     My question is: Was anybody delaying the evacuation of soldiers from Zepa

12     in accordance with the agreement?  Thank you.

13        A.   And I'm trying to explain to you that we didn't have an agreement

14     at this stage.  The -- there is no trust shown in what it is you've put

15     before me whatsoever.

16        Q.   Thank you.  I put the agreement to you.  1D151.

17             THE ACCUSED: [Interpretation] Could that be shown once again, the

18     heading and the first paragraph underneath that.  And then could the

19     signatories and signatures be displayed as well.  Thank you.

20             MR. TOLIMIR: [Interpretation]

21        Q.   You see where it says "agreement"?  That's what it also says in

22     English.  And then it says "following the disarming of military-aged men

23     in Zepa," and the signatures are those of Rajko Kusic; Sejmon Dudnjik,

24     commander of UNPROFOR; Ratko Mladic, head of the Main Staff of the

25     Army of Republika Srpska; and Hamdija Torlak, a member of the

Page 11685

 1     War Presidency of Zepa who negotiated on behalf of the soldiers and

 2     inhabitants of Zepa.  So do you see the document now?  Does it have legal

 3     force and the consent of all the protagonists in this event?  Thank you.

 4             JUDGE FLUEGGE:  For the record, this is D51.

 5             Mr. Thayer.

 6             MR. THAYER:  And, Mr. President, for the record, I'd like it to

 7     be clear whether or not General Tolimir's question where he describes

 8     Hamdija Torlak as negotiating on behalf of the soldiers and inhabitants

 9     of Zepa, whether that's something he's pulling out of the agreement or if

10     that's just something he's building into the question.  Because up to

11     then I think he was quoting from the agreement.

12             JUDGE FLUEGGE:  Mr. Tolimir, could you clarify this.

13             THE ACCUSED: [Interpretation] Thank you, Mr. President.  The next

14     document is going to clarify that.  This is a document that the witness

15     is familiar with too.  P --

16             JUDGE FLUEGGE:  No, no.  You put -- you were going to put a

17     question to the witness.  But before you did this you said:

18             "And then it says: 'Following the disarming ..." and so on

19     "... and Hamdija Torlak, a member of the War --" I think it should read,

20     "a member of the War Presidency of Zepa who negotiated on behalf of the

21     soldiers and inhabitants of Zepa."

22             That was your statement before you were going to put a question

23     to the witness.  Mr. Thayer asked you to clarify this.  Is it your

24     position that he negotiated on behalf of the soldiers, not only of the

25     inhabitants of Zepa?  And you were discussing that with the witness quite

Page 11686

 1     a long time now.  Please clarify this.

 2             THE ACCUSED: [Microphone not activated]

 3             THE INTERPRETER:  Microphone, please.

 4             THE ACCUSED: [Interpretation] Thank you, Mr. President.  Thank

 5     you.  Thank you to Mr. Thayer.

 6             MR. TOLIMIR: [Interpretation]

 7        Q.   Could the witness please tell us whether he knew that not all the

 8     inhabitants and soldiers could take part in the negotiations, rather it

 9     could only be the representatives of these categories that had requested

10     evacuation from Zepa; did you know that?

11        A.   Of course not everybody could stand there and negotiate.  What I

12     knew was that whoever was negotiating on behalf of anybody in Zepa,

13     whether soldier or civilian, was negotiating from a position of weakness.

14     Further, I could see, and I can see it in these documents, that the

15     military were not represented in this negotiating panel.

16        Q.   Thank you, Mr. Smith.  I understand you.  But please tell us, did

17     Torlak communicate with Avdo Palic and did he and Avdo Palic communicate

18     with Alija Izetbegovic on a daily basis as you did?  Thank you.

19        A.   I have no idea of the degree of communication between Torlak and

20     Palic.  And at the time, as opposed to now, I was aware that the --

21     Izetbegovic could communicate with the people in the enclaves.  But to

22     the degree of this and the frequency it was happening, I had no idea at

23     all.

24        Q.   Thank you, Mr. Smith.  Yesterday we read out the letters and

25     answers on the basis of everything we read out in the document, D55,

Page 11687

 1     page 30, the letter of Avdo Palic to Alija Izetbegovic.  Do we not see on

 2     that basis that they have constant communication on a daily basis, and is

 3     Palic asking him to allow both the civilians and the soldiers to withdraw

 4     once certain requirements are met?  Thank you.

 5        A.   If you're asking -- I'm not entirely clear.  Are you trying --

 6     are you asking me what I understood at the time or are you asking me to

 7     comment on a document that you're now showing me?  A document that I was

 8     not aware of at the time.

 9        Q.   Thank you, Mr. Smith, for answering this.  I am satisfied with

10     your answer --

11             JUDGE FLUEGGE:  Mr. Tolimir, the witness asked you to clarify

12     your question.  He didn't provide you with any answer yet.  He wanted to

13     know what the essence of your question was, and therefore you should

14     explain that to enable him to answer the question.  Otherwise, it's a

15     waste of time.

16             THE ACCUSED: [Interpretation] Thank you for your assistance,

17     Mr. President.

18             MR. TOLIMIR: [Interpretation]

19        Q.   I asked whether Avdo Palic had communication on a daily basis and

20     whether he communicated with regard to this particular event with

21     Alija Izetbegovic.  Did he ask for approval to be given for all the

22     soldiers and inhabitants of Zepa to be evacuated from the enclave?  Thank

23     you.

24             JUDGE FLUEGGE:  Mr. Tolimir, and the witness asked you to clarify

25     if you want to have an answer about his knowledge at the time or if you

Page 11688

 1     want to have a comment of the witness reading the document now.  This was

 2     the request of the witness.  You should answer that and clarify that.

 3             THE ACCUSED: [Interpretation] Thank you.

 4             MR. TOLIMIR: [Interpretation]

 5        Q.   He can give a comment, he can say whatever he likes.  I accept

 6     any answer he gives because he's a witness and I am the accused.  Thank

 7     you.

 8        A.   I think in that case --

 9             JUDGE FLUEGGE:  To overcome this situation --

10             THE WITNESS:  I think I have answered his question.

11             JUDGE FLUEGGE:  You should answer in both ways.

12             THE WITNESS:  Oh, very well.

13             JUDGE FLUEGGE:  Your understanding at that time and your

14     interpretation of the documents.

15             THE WITNESS:  As I have explained already, I understood that

16     there was communications between the enclaves and Sarajevo and that --

17     but the degree of this communication, I did not know at the time.  What

18     I'm now learning is that it was more comprehensive than I thought that it

19     was at the time.  And it would appear from what you have shown me that

20     Palic wanted to get everyone out by helicopter.  And I would go on with

21     the comment that the point why he wanted to go out by helicopter in my

22     understanding was to avoid passing through the Bosnian Serb military, who

23     he did not trust.  Particularly after the experience of the survivors of

24     Srebrenica who had reached the Zepa enclave.

25             MR. TOLIMIR: [Interpretation]

Page 11689

 1        Q.   Thank you.  Is he writing that in his letter?  Is he explicitly

 2     asking his president to carry out this exchange which would make it

 3     possible for them to leave the enclave?  Thank you.

 4        A.   Yes, he is asking them -- him to facilitate this.

 5        Q.   Thank you, Mr. Smith.

 6             THE ACCUSED: [Interpretation] Can we now display 65 ter 2247.  I

 7     don't remember the number actually.

 8             JUDGE FLUEGGE:  Stop a moment, please.  You can -- may check the

 9     number.  And in the meantime, Judge Mindua has a question for the

10     witness.

11             JUDGE MINDUA: [Interpretation] General Smith, I listened

12     carefully to the questions and answers with General Tolimir relating to

13     Mr. Torlak's ability to represent Avdo Palic and the Muslim military.

14     For the time being I don't wish to address the weakness, as you called

15     it, of the Bosnian army, or the Muslim side, to be more specific.  But as

16     far as Mr. Torlak is concerned, this person was a member of the

17     War Presidency in the Zepa municipality.  According to the document we

18     have just seen, i.e., the agreement signed with General Mladic, if I have

19     understood you correctly, you hesitate and you don't believe that

20     Mr. Torlak was capable of representing the Muslim army.  This is just a

21     point of clarification.  Are you aware of the prerogatives of the

22     War Presidency in the municipality of Zepa, or is this a personal

23     assessment on your part when you say that Torlak was in no legitimate

24     position to represent Avdo Palic?

25             THE WITNESS:  I have not -- I have no memory and I don't think I

Page 11690

 1     ever was shown a formal statement, paper, or whatever of the relationship

 2     between War Presidencies and the Bosnian military.  But what I'm about to

 3     say is a bit more than just comment; this is informed, if you like, by my

 4     observations at the time and my experience of how these matters get

 5     conducted more generally.

 6             Your -- the relationship between the civil and the military can

 7     become complex and very, very rarely are the military authorities

 8     directly subordinated to the civilian authorities all the way down the

 9     hierarchical chain of command.  And the reason for this is that the

10     military are handled and committed and used as an entity, as an entity of

11     the state, while the civil arrangements are to deal with -- as they

12     cascade down the hierarchy, are there to deal with the local issues.  And

13     you will find exactly the same thing happening in Bosnia.  The armed

14     forces are being controlled and committed and used on a state basis,

15     Bosnian government basis, across the whole of their territory.  And they

16     are employing the armed forces in the enclaves as part of a greater plan.

17             This isn't just a Zepa-related business that that military is

18     undertaking.  And, therefore, their command arrangements are held more

19     centrally, and their local commander has a degree of latitude that is

20     independent of the civil authorities in any -- in that locality.  And

21     that is why I do not accept that Torlak had the authority -- of course he

22     was capable; he was clearly a capable leader of his community in those

23     circumstances.  But he didn't have the authority, and that is evident

24     from some of the evidence we've been given where you see Izetbegovic

25     indicating that he has other plans for the military and there are other

Page 11691

 1     possibilities for them to be used that are separate to the dealings with

 2     the civil population within that community.

 3             Does that answer the difference?  Or answer your question about

 4     the difference?

 5             JUDGE MINDUA: [Interpretation] Yes.  If I have understood you

 6     correctly, you're saying that you did not more specifically read the

 7     legal texts that lay behind the setting up of the War Presidency in Zepa.

 8     And for the commander Avdo Palic to be tied by this agreement between

 9     Torlak and General Palic, he had to be present; or, if not, his military

10     hierarchy should have been present, and the mere civilian Torlak was not

11     sufficient in that case.

12             THE WITNESS:  And I'm certainly saying that.  I'd go further,

13     that I don't actually have any great confidence in this agreement as it's

14     been presented.  We're making this signed as though this is being

15     conducted in some office in some court between advocates.  This is

16     nothing of the sort.  This Torlak and Co. have just had their community

17     invaded, there are soldiers of the opposition all over the place, and

18     they're now being asked to make an agreement.  In English slang there is

19     a saying that the large print giveth and the small print taketh away, and

20     the -- this agreement is a good example of it.

21             JUDGE FLUEGGE:  Thank you.  Another question by Judge Nyambe.

22             JUDGE MINDUA: [Interpretation] Thank you very much.

23             JUDGE NYAMBE:  I'm just trying to understand the relationships

24     between the people you dealt with in the context of these events.  In

25     paragraph 108 of the document on the screen it says that" following the

Page 11692

 1     meeting between General Smith and Hamdija Torlak."  In what capacity were

 2     you meeting with him?

 3             THE WITNESS:  My capacity is as command of UNPROFOR.

 4             JUDGE NYAMBE:  No, on his part?

 5             THE WITNESS:  I can't remember the specifics of that meeting, but

 6     if it's the one I -- if he's there up at the check-point at the place

 7     beginning with B, who I can't remember it now, he is representing the

 8     civil community.  I understand that that is what his role is.

 9             JUDGE NYAMBE:  But quite clearly he's working very closely with

10     Avdo Palic, because on the basis of information from your meeting, he's

11     sent to this dramatic telegram or letter to the president.  It seems to

12     me that there's quite a link --

13             THE WITNESS:  Oh, I've no -- there's -- I'm trying to -- there's

14     no doubt that they were communicating, and it was in the interests of the

15     Bosnian Serbs to ensure that they communicated.  Indeed, I asked to see

16     Palic.  I was never allowed to see him.  I wanted to talk to him too.

17     But it's -- the central point, in addition to the one I've made to you,

18     that there was a separate arrangement of command and authority in these

19     circumstances and why, is that one group of people, Torlak, is

20     representing the civil community and the women and children, and Palic is

21     representing the -- all those men of military age, and there is a

22     distinct difference to how they anticipated they would be dealt with,

23     particularly after the reports of what happened in Srebrenica had reached

24     them.  And it had reached them and they knew much more about what had

25     happened in Srebrenica at this stage than I did because survivors from

Page 11693

 1     the Srebrenica enclave had reached Zepa by that stage.

 2             JUDGE NYAMBE:  Thank you.

 3             JUDGE FLUEGGE:  Mr. Tolimir, please continue.

 4             THE ACCUSED: [Interpretation] Thank you, Mr. President.

 5             MR. TOLIMIR: [Interpretation]

 6        Q.   So now, bearing in mind everything that you said, tell us, did

 7     Avdo Palic represent a military dictatorship in Zepa or did he recognise

 8     Torlak as the member of the War Presidency and the president of the

 9     Executive Board of the municipality?  Thank you.

10        A.   Palic did not represent a military dictatorship.  And I -- as far

11     as I'm aware, he recognised Torlak as being a member of the

12     War Presidency.

13        Q.   Thank you.

14             THE ACCUSED: [Interpretation] We are going to take a look at

15     P736.  P736.  Thank you.

16             MR. TOLIMIR: [Interpretation]

17        Q.   And while we are waiting for it, we are going to see what was the

18     function of Mr. Torlak and other members of the War Presidency.  This is

19     a decision written by the War Presidency and forwarded on the 27th to the

20     military commanders.  So it says at the beginning:

21             "The War Presidency of the Zepa municipality at its meeting held

22     on the 27th of July, 1995, attended by Mehmed Hajric, president of the

23     War Presidency; Hamdija Torlak, president of the Executive Committee; and

24     Amir Imamovic, commander of the civil protection staff, hereby adopt the

25     following decision."

Page 11694

 1             Now I'm reading the decision itself:

 2             "All able-bodied men from 18 to 55 years of age shall surrender

 3     their weapons to the representatives of the Army of Republika Srpska in

 4     the presence of UNPROFOR at the UNPROFOR base in Zepa.  All able-bodied

 5     men shall be registered by the ICRC and shall be guarded by the forces of

 6     the VRS in the presence of UNPROFOR in Zepa until an agreement on

 7     exchange has been reached.

 8             "Following the agreement on exchange, and exchange of POWs, all

 9     able-bodied men registered by the ICRC shall be safely escorted by

10     UNPROFOR and evacuated to a territory of their free choice.

11             "Urgently inform the Muslim authorities in Sarajevo about this

12     decision and carry it out immediately.

13             "In Zepa on the 27th of July, 1995."

14             Signed by Rajko Kusic, the commander of the Rogatica Brigade.

15     Lieutenant-Colonel Sejmon Dudnjik was supposed to certify it, but he

16     didn't sign it, as well as Ratko Mladic.  And it was also signed by the

17     three members of the War Presidency: Mehmed Hajric, the president;

18     Hamdija Torlak, member of the Presidency; and Amir Imamovic, member of

19     the Presidency.

20             So based on this, my question is:  Did you have an opportunity to

21     find out who the members of the War Presidency were?  And did you meet

22     anybody else besides Torlak on Boksanica during the day of the

23     27th of July?  Thank you.

24        A.   I don't recall whether I was there on the 27th or not.  I

25     certainly met -- it is probable I was there on the 27th but I don't

Page 11695

 1     recall the dates.  I met others, other members of the civil leadership,

 2     or people I believed to be other members of the civil leadership other

 3     than Torlak, but I don't remember the names of them.  And by the 27th, if

 4     I had been shown this document on the 27th, my reaction was that it had

 5     been written while the -- and signed under duress.  This was not

 6     something that those people were in any position not to agree to sign.

 7     The -- Zepa was completely in the hands of the Bosnian Serbs at this

 8     stage.

 9        Q.   Thank you.  Can you tell us, while you were the commander of

10     UNPROFOR in Bosnia, was that agreement signed under the pressure and the

11     threat of the use of air force against those who wouldn't sign the

12     agreement?  Were any threats of the similar nature used also during the

13     conference in Rambouillet, during the negotiations between the delegation

14     of the Federal Republic of Yugoslavia and the Kosovo delegation?  Thank

15     you.

16        A.   You've lost me.  We've moved out of Zepa?  Is this question

17     relating to Zepa or are we now talking generally?

18        Q.   Thank you.  This question pertains to Zepa, because the losing

19     side always signs an agreement under certain circumstances while the

20     winning side signs the same agreement under different circumstances;

21     isn't that true?  Thank you.

22        A.   I do not recall any threat or use of air power in relation to

23     Zepa and the negotiations and so forth that we're talking about.

24        Q.   Thank you.  Do you remember that Yugoslavia was bombed during

25     three months in order for it to accept the Rambouillet agreement, an

Page 11696

 1     agreement that was imposed by the NATO so that Yugoslavia would have to

 2     accept the war of the rebels under the conditions defined by the NATO?

 3     Thank you.

 4             JUDGE FLUEGGE:  Mr. Thayer.

 5             MR. THAYER:  Mr. President, I have no question that General Smith

 6     is capable of answering the question.  My only request is that we, for

 7     the record, put a date, a year, on the events we're talking about.  I

 8     think we all remember, generally, Rambouillet and so forth, but just for

 9     the record so we can orient ourselves to time, place, I think that would

10     be helpful.

11             JUDGE FLUEGGE:  Mr. Tolimir, can you help Mr. Thayer by giving a

12     time-frame.

13             THE ACCUSED: [Interpretation] Thank you.

14             MR. TOLIMIR: [Interpretation]

15        Q.   Yes, I will pose a different question.

16             Mr. Smith, were you the UNPROFOR commander in Bosnia at the time

17     when the Federal Republic of Yugoslavia was bombed and certain events

18     occurred in Kosovo?  Thank you.  More precisely we are talking about

19     1978.

20        A.   Um ...

21        Q.   I'm sorry, I meant 1999.

22        A.   We appear to be talking about 1999, a completely and a different

23     set of circumstances to that that was occurring in Zepa in 1995.  And I

24     was not the commander of UNPROFOR in 1999.

25        Q.   Thank you.  Can you tell us where were you in 1999 during the

Page 11697

 1     bombardment of the Federal Republic of Yugoslavia?  Because Kosovo

 2     decided to secede.  Thank you.

 3        A.   I was the deputy supreme allied commander Europe based in the

 4     NATO headquarters at Mons in Belgium.

 5        Q.   Thank you.  Do you remember whether force was used at the time in

 6     order to achieve political agreements?  I mean, force against the

 7     Federal Republic of Yugoslavia.  And after they didn't want to sign the

 8     agreement in Rambouillet, were they bombed during the period of three

 9     months in 1999?  Thank you.

10        A.   Force was used in 1999 over Kosovo.

11             JUDGE FLUEGGE:  Mr. Tolimir, I'm not sure if we are dealing with

12     the Kosovo conflict in this trial.  You should focus on what the witness

13     can provide you with, his knowledge and his involvement in 1995.

14             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I didn't

15     speak about Kosovo for Kosovo sake; I was addressing a principle.  When

16     two sides have to reach an agreement, the victorious side and the losing

17     side, we have a certain situation.  We can compare it even with Libya.

18     Those who have the force are able to impose the conditions which will

19     then regulate the cease-fire agreement in Libya.  Currently NATO

20     countries are conducting an air-strikes campaign in Libya.  Thank you.

21             JUDGE FLUEGGE:  Mr. Tolimir, you are -- that was not a question.

22     And, indeed, I repeat, you should focus on the substance of this trial.

23     The witness is not here as an expert witness about political negotiations

24     and the involvement of the military all over the world.  He is a fact

25     witness about the conflict in Bosnia.  Please carry on.

Page 11698

 1             THE ACCUSED: [Interpretation] Thank you, Mr. President.

 2             MR. TOLIMIR: [Interpretation]

 3        Q.   Mr. Smith, you claim that Torlak was compelled, forced - I'm not

 4     quite sure which words you used - to sign that agreement.  Can you tell

 5     us, did the Muslim agreement accept -- did the Muslim government accept

 6     the agreement to evacuate the civilian population and able-bodied men

 7     under a condition that an exchange would be organised?  Thank you.

 8        A.   I don't think the Muslim government did accept that the

 9     population would be evacuated under a condition of an exchange.  I don't

10     recall that at all.

11        Q.   Thank you.

12             THE ACCUSED: [Interpretation] Can we have again D55, document

13     entitled "The Fall of Zepa" written by a Prosecution expert.  I would

14     like to take a look at page 28, paragraph 102, and the second segment of

15     that paragraph.  Thank you.

16             MR. TOLIMIR: [Interpretation]

17        Q.   Here we can see paragraph 102.  And I would like to take a look

18     at the segment written in smaller font.  I quote -- Or maybe first I

19     should quote the top of the paragraph.

20             THE WITNESS:  Could the smaller font be brought up one size

21     larger for me, please.  Brilliant.  Thank you.

22             MR. TOLIMIR: [Interpretation]

23        Q.   So let us read out the whole paragraph, 102:

24             "While negotiations between the VRS and ABiH delegations

25     regarding the people in Zepa were going on in Sarajevo.  On the

Page 11699

 1     25th of July, Lieutenant-Colonel Jovica Karanovic updated General Tolimir

 2     on the situation at the negotiations as follows:  Muslim government

 3     accepts the proposed (signed) agreement in its entirety on condition that

 4     both civilians and able-bodied men are evacuated together from the

 5     enclave of Zepa.  In order to sign this agreement, Muslims are willing to

 6     secure release of all prisoners of war demanded by VRS.  (It was not

 7     stated precisely when and how they are going to release them, remark by

 8     JK)."

 9             So this is what Mr. Bezruchenko, the OTP investigator, wrote

10     based in the document quoted in the footnote 156.  We can find ERN number

11     of the relevant document in that footnote.

12             So my question is --

13             JUDGE FLUEGGE:  Please slow down.  Please slow down a bit.

14             THE ACCUSED: [Interpretation] Thank you, Mr. President.

15             MR. TOLIMIR: [Interpretation]

16        Q.   My question is:  Did the Muslim government arrive at the

17     negotiations with the position that they were going to accept the

18     agreement signed in Zepa?  Thank you.

19        A.   I don't know what they -- what their opinion was or their plan

20     was.  What you're showing me is a report by one of your staff to you.  I

21     don't know what that tells me about the Muslims and their position.

22        Q.   Thank you.  This is a negotiator who was present at the airport

23     together with the UNPROFOR representatives, and he reported about what

24     was going on at the Sarajevo airport.  So could you please tell us, were

25     you aware of the fact that there were negotiations at the Sarajevo

Page 11700

 1     airport between the Muslim government and the delegation sent by the VRS?

 2     Thank you.

 3             JUDGE FLUEGGE:  Mr. Thayer.

 4             MR. THAYER:  Mr. President, when the accused refers to a

 5     negotiator who was present at the airport together with the UNPROFOR

 6     representatives, could we have some clarification of to whom he was

 7     referring.  There are a number of people referred to in this

 8     paragraph 102, including Mr. Karanovic as well as others, in the smaller

 9     font text.  So when he is referring to a negotiator, who is he referring

10     to?  Just so we know.  Thank you.

11             JUDGE FLUEGGE:  It would be helpful for the witness to know to

12     whom you are referring.  Can you give the name.

13             THE ACCUSED: [Interpretation] Thank you, Mr. President.

14             MR. TOLIMIR: [Interpretation]

15        Q.   Yes, I can.  In line 2 of paragraph 102, we find that

16     Lieutenant-Colonel Jovica Karanovic updated General Tolimir of the

17     situation at the negotiations.  So it was Bezruchenko who quoted

18     Karanovic's words in this document that he wrote and that is entitled

19     "The Fall of Zepa," an overview of military events.

20             So my question is:  Can we see from this document that

21     negotiations were conducted in Sarajevo, and did you know that the

22     representative of UNPROFOR was present about these negotiations which

23     pertained to the situation in Zepa?  Thank you.

24        A.   I've already said, I know, I think I said it yesterday, that

25     these negotiations about prisoner exchange were going on and that these

Page 11701

 1     were facilitated by UNPROFOR.

 2             JUDGE FLUEGGE:  Sir, do you know who was present during these

 3     negotiations?

 4             THE WITNESS:  I don't know who the UNPROFOR representative was on

 5     a day-to-day basis, but it would have been from the civil affairs people

 6     in either headquarters of Sector Sarajevo or my headquarters.

 7             JUDGE FLUEGGE:  Do you know who was present on behalf of the VRS?

 8             THE WITNESS:  No.

 9             JUDGE FLUEGGE:  Thank you.

10             Mr. Thayer.

11             MR. THAYER:  Again, Mr. President, your colloquy with the General

12     may have answered my question, but the question still stands.  When he's

13     referring to a negotiator, is he talking about Karanovic, Bugojno,

14     Bulajic?  There are five or six names that are referenced here when he

15     refers to a negotiator as being the source of the information or of this

16     paragraph.

17             THE ACCUSED: [Interpretation] Thank you.  I read two times.  You

18     can find it in paragraph 102 in the second sentence.  It was

19     Lieutenant Jovica Karanovic who sent to General Tolimir on the

20     25th of July the following updated report of negotiations.  I don't know

21     whether you heard what I quoted.  I simply repeated what was written in

22     the paragraph.  I didn't mention Bulajic or anybody else in my question.

23     Thank you.

24             JUDGE FLUEGGE:  Mr. Tolimir, please continue with your next

25     question.

Page 11702

 1             THE ACCUSED: [Interpretation] Thank you.

 2             MR. TOLIMIR: [Interpretation]

 3        Q.   Let us move on to another group of questions.

 4             What was the perspective of Sarajevo, chronologically speaking,

 5     on the events in Zepa.

 6             THE ACCUSED: [Interpretation] Can we have 2247.  65 ter 2247.

 7     Thank you.  Thank you.  We have it on the screen.

 8             MR. TOLIMIR: [Interpretation]

 9        Q.   It's an outgoing code cable sent to Annan, United Nations

10     New York, and the sender is Akashi.  The subject is a meeting between

11     President Izetbegovic and General Smith on the 17th of July, 1995.  Did

12     you meet Alija Izetbegovic on that day as we can find it in the subject

13     line of this code cable?  Thank you.

14        A.   If that code cable says I did, then I probably did.

15        Q.   Thank you.

16             THE ACCUSED: [Interpretation] Can we now take a look at page 4 so

17     that the witness can see what my questions are going to be, related to

18     this document.  It's page 3 in English.  Thank you.

19             MR. TOLIMIR: [Interpretation]

20        Q.   I'm going to quote from the first part of the first paragraph.

21     Or rather, first I'm going too read out the title.  "Meeting,

22     President Izetbegovic/General Smith, 17 July 1995."

23             I quote:

24             "The meeting took place at the Presidency at 1050 hours on the

25     17th of July, 1995, at President Izetbegovic's urgent request.

Page 11703

 1     Izetbegovic expressed interest in UNPROFOR's capability to evacuate the

 2     civilian population of Zepa if necessary.  General Smith explained that

 3     there would be few logistical problems but obviously any evacuation would

 4     require BSA consent.  Izetbegovic stated that there were two categories

 5     of people in Zepa:  Firstly, the sick, wounded, and elderly; and then the

 6     rest of the population.  He asked what could be done to ensure the safety

 7     of at least the first category.  Izetbegovic asked General Smith to make

 8     contact with the Serbs and find out their conditions for the safe

 9     evacuation of the civilian population of Zepa.  General Smith agreed to

10     pass the query to the Serbs immediately."

11             My question:  Do you remember this meeting now?  Do you remember

12     that it was on Alija Izetbegovic's request that you begin to study the

13     possibility of the evacuation of the wounded and civilian population from

14     Zepa?  Thank you.

15        A.   This refreshes my memory of the substance of the meeting, yes.

16     I'd like to read the whole document before answering further questions.

17     How many pages does it run to?

18                           [Trial Chamber and Registrar confer]

19             JUDGE FLUEGGE:  The document contains four pages, I was told.  It

20     will consume some time and that would be possible during the break

21     perhaps.

22             Mr. Thayer.

23             MR. THAYER:  Mr. President, it's really a page and a half of

24     text.  It's four if you count the two sort of cover pages.  But the

25     actual text is fairly -- fairly short.

Page 11704

 1             JUDGE FLUEGGE:  Thank you very much.

 2             Mr. Tolimir, if you want to deal with this document with the

 3     witness, I think we should give him a hard copy of it and have the first

 4     break now to enable the witness to read the full text and then you may

 5     put your questions in relation to this document to the witness.  Are you

 6     in agreement with that?

 7             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I accept

 8     your proposal.  I think that it is necessary for the witness to know what

 9     exactly were the topics of his discussion with Alija Izetbegovic before

10     he can answer my questions.  Thank you.

11             JUDGE FLUEGGE:  A hard copy of this document should be given to

12     the witness.  We must have our first break now.  And we will resume five

13     minutes before 11.00.

14                           --- Recess taken at 10.27 p.m.

15                           --- On resuming at 10.59 p.m.

16             JUDGE FLUEGGE:  Yes, Mr. Tolimir, please carry on.

17             THE ACCUSED: [Interpretation] Thank you, Mr. President.

18             MR. TOLIMIR: [Interpretation]

19        Q.   Mr. Smith, I believe you read the document.  Based on it and

20     based on what I could read in the first paragraph, I'd like to ask you

21     this:  On the 17th was there a meeting between you and Alija Izetbegovic

22     and did he task you to determine what the appropriate safe measures

23     needed to be in place to safely evacuate the civilian population from

24     Zepa?

25        A.   There was this meeting, and he wanted me to see what we could do

Page 11705

 1     as UNPROFOR to help evacuate the population of Zepa.

 2        Q.   Thank you.  Since it was always important for you to know the

 3     position of one side, was it a clear position during this meeting put

 4     forth by Alija Izetbegovic that he wished to see the entire civilian

 5     population evacuated from Zepa as of that date?

 6        A.   He wanted to see the population evacuated, with particular

 7     reference to the sick, wounded, and elderly.

 8        Q.   Thank you.  Did you convey this wish of his to the VRS?

 9        A.   Yes.

10        Q.   Thank you.  Does the text of the document as drafted by your

11     associates clearly and accurately reflect the message you conveyed?

12        A.   You are referring to the -- the bit in inverted commas, "I have

13     been asked by the Bosnian government" and following on from that, are

14     you?

15        Q.   Precisely.  Did you convey the Bosnian government position to the

16     VRS as stated here?

17        A.   That message was sent, yes.

18        Q.   Thank you.  Is it clear from that message that the Muslim

19     leadership in Sarajevo represented by Alija Izetbegovic wished the

20     civilian population from Zepa evacuated to territory held by the

21     Federation?

22        A.   Yes, it -- I'm quite clear that that is what he wanted.  He

23     wanted them to be safely evacuated in the circumstances of Zepa at the

24     time.  Or from the circumstances of Zepa at the time.

25        Q.   Thank you.  If you recall the document we saw which was titled,

Page 11706

 1     "The Agreement on the Disarming of the Military Able-Bodied Men from

 2     Zepa," we then looked at items 2, 5, and 7.  Did item 7 of the document

 3     reflect Alija Izetbegovic's requests about the civilian population?

 4        A.   I don't remember item 7 in --

 5             JUDGE FLUEGGE:  We should have it on --

 6             THE WITNESS: -- specifically.

 7             JUDGE FLUEGGE:  We should have it back on the screen.

 8             Mr. Tolimir, we have seen two agreements today.  Please indicate

 9     which one you want to have on the screen.

10             THE ACCUSED: [Interpretation] Thank you.  This is the agreement

11     and the item 7 I refer to.

12             MR. TOLIMIR: [Interpretation]

13        Q.   I will quote:

14             "In accordance with the Geneva Conventions of 12 August 1949 and

15     the additional protocols of 1977, the civilian population of Zepa shall

16     be given the freedom to choose their place of residence while hostilities

17     continue."

18             Thank you.  Does item 7 of the agreement clearly put forth

19     Alija Izetbegovic's wish when he asked you to convey that position of his

20     and his request to the VRS?

21        A.   No.  No, it doesn't.  Not precisely.  And these -- your -- we are

22     looking at a document that's signed, I think it's six days -- on the

23     24th of July, while the other document you've produced for me to look at

24     is on the 17th of July.  The -- what it says in paragraph 7 of the

25     document on the screen, the agreement of the 24th of July, it says that

Page 11707

 1     the people will be allowed to choose.

 2        Q.   Thank you.  Did Alija Izetbegovic ask for the same thing?  What

 3     is the difference between item 7 and his request?

 4        A.   The basis of the request is that it is about their evacuation.

 5     The assumption is that they have chosen.

 6        Q.   Thank you.  If we look at item 7 on the screen, you can see that

 7     it invokes the Geneva Conventions and its protocols.  In its last

 8     sentence, it reads that they "shall be given the freedom to choose their

 9     place of residence while hostilities continue."  In that sense it goes

10     beyond the conventions, because I don't believe we can find this in

11     International Humanitarian Law and the Laws of War.  This sentence

12     expressly states that the status as such would be enjoyed until or for as

13     long as hostilities continue.

14        A.   Yes, that phrase is used in that paragraph.

15        Q.   Thank you.  Did you know that the residents of Zepa who had lived

16     there before the war now actually reside in Zepa again?

17        A.   I don't know that.

18        Q.   Thank you.  Did you know that the -- that one of the signatories

19     of the agreement testified to that effect, having said so in his

20     testimony in these proceedings?

21        A.   No, I didn't.

22        Q.   Thank you.  Can you see here whether the Bosnian government

23     undertook all practical measures, including appointing representatives

24     who would be in charge of the evacuation, so that those representatives

25     could liaise with representatives of the VRS about the issue?

Page 11708

 1             THE ACCUSED: [Interpretation]We can see that on page 4.  And we

 2     should go back to 224 so that the witness can see it.  Actually, 2247.

 3             JUDGE FLUEGGE:  You are referring to the document 65 ter 2247, I

 4     assume.  And just for the record --

 5             THE ACCUSED: [Overlapping speakers] [no interpretation] ...

 6             JUDGE FLUEGGE:  Just for the record --

 7             I am talking.  I am talking.  Please don't interrupt me.

 8             For the record, the last document, the agreement, on the screen

 9     was D51.

10             Now we have this document again on the screen.

11             Mr. Tolimir.

12             THE ACCUSED: [Interpretation] Thank you, Mr. President.  It

13     wasn't my intention to interrupt you.  I actually received a question in

14     the interpretation I received; that's why I started answering.  In any

15     case, let us look at page 4 of the agreement of the 17th of July, 1995.

16     Paragraph 2.  Paragraph 2, please.  It should be page 4 in the Serbian

17     version so that I could peruse it as well.

18             THE REGISTRAR:  Your Honours, if I may, this is page 4 in

19     e-court.

20             THE ACCUSED: [Interpretation] It is the - first, second, third,

21     fourth - fifth paragraph in the English, but we don't see the fourth page

22     in Serbian.  Please change the page from 1 to 4.  We can see it now.

23             MR. TOLIMIR: [Interpretation]

24        Q.   I quote:

25             "General Smith passed Mladic's offer to the Bosnian government.

Page 11709

 1     The president appeared initially amenable to the idea and nominated

 2     General Muslimovic and Mr. Ljevakovic as his representatives.  These

 3     names were passed to Mladic, who appeared content with them, and

 4     arrangements were set in train."

 5             My question is this:  Did the Muslim side, on the 17th, when the

 6     meeting between you and Alija Izetbegovic took place, appoint these

 7     negotiators so that they could negotiate the way civilians would be

 8     evacuated from Zepa?

 9        A.   They nominated those two names and then these were withdrawn

10     later in the afternoon.

11        Q.   Thank you.  Was it VRS responsibility, or did the Muslim

12     government withdraw their nominations?

13        A.   No, I said the -- during the afternoon, the Bosnian government

14     backtracked on this proposal and declined to send any representative.

15        Q.   Thank you.  On page 6 -- sorry, 4 of this document, we can see

16     that General Mladic said that they had to stop all fighting and that they

17     had to hand over all of their weapons.  Can you find that sentence on the

18     page?

19             JUDGE FLUEGGE:  Could you please indicate where the witness

20     should find it.

21             THE ACCUSED: [Interpretation] Thank you.  In the Serbian it is on

22     page 4 out of 6.  In the first paragraph.  In the English it follows the

23     quote.  It's around the middle of the paragraph.

24             THE WITNESS:  I can see where it says at the bottom of the page

25     in English "a second call was made to Mladic."  Is that where we are?

Page 11710

 1             JUDGE FLUEGGE:  I think it could be the paragraph in the middle

 2     of the page.  The paragraph -- yes, indeed, you can see the quote there.

 3     "Mladic then offered safe passage to any representative."  Can you see

 4     that?

 5             THE WITNESS:  Yes, yes.  But I thought the question was about

 6     having to hand over weapons.

 7             THE ACCUSED: [Interpretation] Thank you.  Could we have page 4 in

 8     e-court, the first paragraph in Serbian, so that I could indicate what

 9     portion of the text I was referring to.  This is the first page.  I need

10     page 4, please.  This is the first out of seven.

11             JUDGE FLUEGGE:  Mr. Tolimir, the numbering of the pages is always

12     a problem.  Are you referring to the page number of the document itself,

13     this message about the meetings, or to the number of the e-court page?

14             THE ACCUSED: [Interpretation] Thank you.  I don't know what the

15     pagination is in e-court but I think it ought to be page 4 of the

16     document.  Thank you.

17             JUDGE FLUEGGE:  I think your assistant will be able to help you.

18             THE ACCUSED: [Microphone not activated]

19             THE INTERPRETER:  Microphone, please.

20             THE ACCUSED: [Interpretation] There seems to be a problem.  But

21     in the English version it should be the fourth paragraph in the middle of

22     the page.

23             MR. TOLIMIR: [Interpretation]

24        Q.   The penultimate sentence reads:

25             "Mladic asked that all fighting cease and all weapons be handed

Page 11711

 1     over."

 2             Was this a legitimate request by General Mladic to have the zone

 3     demilitarised since he -- his intention was to allow the entire civilian

 4     population to move to BiH-held territory?

 5             JUDGE FLUEGGE:  Mr. Tolimir, indeed we have, still, a problem.

 6     It should be the next page in B/C/S and not page 4.  But I don't find

 7     this quote.

 8             THE ACCUSED: [Interpretation] Thank you.  It is page 6 in B/C/S.

 9     In English it is page 4 most likely.

10             JUDGE FLUEGGE:  And where can we find it?

11             Mr. Thayer.

12             MR. THAYER:  Mr. President, I think General Smith had it correct,

13     that I believe what General Tolimir is paraphrasing is the last -- oh,

14     now we have to go back in the English version.  We had it on the screen.

15     It's the last paragraph, last full sentence, that begins with his reply.

16     And it's just after the line that General Smith quoted.  "A second call

17     was made to Mladic."  So it's the very bottom of this page.  It does

18     continue to the next page in English.  I believe that's what

19     General Tolimir is quoting.

20             JUDGE FLUEGGE:  Thank you very much for this assistance.

21             Please carry on, Mr. Tolimir.  What is, in fact, your question?

22             THE ACCUSED: [Interpretation] Thank you, I was not paraphrasing.

23     I'm reading from the last sentence we see on the screen on page 6, the

24     last sentence of the first paragraph.

25             MR. TOLIMIR: [Interpretation]

Page 11712

 1        Q.   "Indjic said that it meant that before the civilians are allowed

 2     to leave and other issues began to be resolved, all fighting needed to

 3     cease and all weapons had to be handed over."

 4             My question is this:  Was this a legitimate request by the VRS

 5     and by Mladic, having in mind that this entire zone was supposed to be

 6     vacated of any civilians, and their condition was for the armed forces to

 7     lay down their weapons?

 8             JUDGE FLUEGGE:  Mr. Tolimir, I have a big problem with this kind

 9     of examination.  We need a clear reference where we can find the portion

10     you are reading from.  I don't find it.  The witness will not be able to

11     find it.  Perhaps because he has a hard copy he is in a better position.

12     But to follow your conduct of the cross-examination, it is really

13     necessary to give a clear reference and indication where we can find

14     these portions, in English and in B/C/S.

15             Mr. Gajic.

16             MR. GAJIC: [Interpretation] Thank you, Mr. President.  Since

17     Mr. Thayer wanted to go back one page in English, now we should go one

18     page forward so that the witness could see the text.

19             JUDGE FLUEGGE:  Which part of this document are you quoting from?

20     This is a clear question.  Please give us a reference.

21             THE ACCUSED: [Interpretation] I am quoting the first sentence you

22     see in the English version at the top of the screen, that is, the very

23     end of that paragraph.  It is asked that all fighting stopped and all

24     weapons be handed over.

25             MR. TOLIMIR: [Interpretation]

Page 11713

 1        Q.   I will repeat my question.  Was this a legitimate request by the

 2     army allowing the entire civilian population to leave to

 3     Bosnia-Herzegovina-held territory and asking at the same time that all

 4     able-bodied men hand down their weapons and stop fighting?  Was this a

 5     legitimate military request?

 6        A.   It's a negotiating position.  It's neither -- it's not -- it's

 7     what he wanted.  There's no -- and what he's saying he wants is that he

 8     has disarmed the Bosnian army in the pocket and then he would allow the

 9     civil population to leave.  It's a condition.  Hostilities are to end and

10     then the population can go.  That's what I understand is his position.

11        Q.   Thank you.  I am asking you this:  As UNPROFOR commander, was it

12     a legitimate request to allow to leave -- allow the population to leave

13     alongside all able-bodied men but that all able-bodied men should lay

14     down their weapons first?  Was this a legitimate request made by

15     General Mladic?

16        A.   Well, he's -- he calls them civilians.  And I'm not in a position

17     to say whether it's legitimate or not.  It hasn't happened.  This is, as

18     I say, is a negotiating position.

19        Q.   Thank you.  Was UNPROFOR supposed to carry out demilitarisation

20     of Zepa?  Did General Mladic warn you of the fact that the zone had not

21     been demilitarised as envisaged under the agreement?  Perhaps you recall

22     that so that we don't need to go back to the specific document.

23        A.   UNPROFOR was not supposed to carry out demilitarisation.  And I'm

24     not clear what agreement you're referring to.

25        Q.   Thank you.  Was the area of Zepa supposed to have been

Page 11714

 1     demilitarised in keeping with the agreement on demilitarisation of Zepa

 2     and Srebrenica signed by Sefer Halilovic and Ratko Mladic in 1993?  On

 3     behalf of UNPROFOR it was Philippe Morillon who signed it.

 4        A.   I don't recall the absolute details of that agreement.  But I

 5     think you're correct; the word "demilitarisation" does appear in that, or

 6     did appear in that.

 7        Q.   Thank you.  Can you tell us, was this a legitimate request by the

 8     VRS to ask for a demilitarisation exercise to be conducted before all --

 9     before the entire population left so that there would be no possibility

10     left for them to carry out any further attacks against Serb-held

11     territory?

12        A.   It isn't asking.  Mladic, in this document that is on the screen,

13     is not asking for demilitarisation.  He's asking for one side to lay down

14     all their weapons.

15        Q.   Thank you.  I understand your answer.  Please look at the

16     penultimate paragraph on the page you have in English.  It is the last

17     paragraph in Serbian.  It reads as follows:

18             "The Bosnian government rejected Mladic's conditions.  In

19     particular their requirement to surrender all weapons as a precursor to

20     the start of negotiations."

21             My question is this:  Who was obstructing the implementation of

22     the agreement we saw at the beginning signed on the 24th?  We referred to

23     item 7 of that agreement a moment ago.

24        A.   I don't know the answer because this conversation -- these

25     conversations that are being recorded are taking place on the

Page 11715

 1     17th of July, which is some days before the document that you referred me

 2     to, and included the paragraph 7 with the Geneva Conventions mentioned in

 3     it, was signed.

 4        Q.   Thank you.  Did the negotiations begin prior to that and were you

 5     notified?

 6        A.   Which -- what is that?  Did the negotiations prior to what?

 7        Q.   Before the conversation you had with Alija Izetbegovic.  Or was

 8     Alija Izetbegovic the one who initiated this idea that all civilians

 9     should cross over to Muslim-held territory?

10        A.   I don't know who initiated the idea.

11        Q.   Thank you.  Did you convey his idea to the VRS after the 17th

12     when you had that conversation with him?

13        A.   Yes, I -- well, again, it was his request that I conveyed.

14        Q.   Does it mean that Alija Izetbegovic was the one who came up with

15     the idea of evacuating the entire civilian population of Zepa?

16        A.   I can't tell you whether that was the case or not.

17        Q.   Thank you.  Were you merely some kind of test pilot for

18     Alija Izetbegovic for him to test what the feelings of the other side

19     were when he asked you to convey that message?

20        A.   I can't tell you what he thought my role was.  I could -- you

21     have before you a document describing what I did in response to his

22     request.

23        Q.   Thank you.  This request of his, was it merely a way to test the

24     position of the VRS, or did he have serious intentions in stating that he

25     wanted to see the entire civilian population evacuated from Zepa?

Page 11716

 1        A.   I can tell you that he was concerned and gave me every impression

 2     of being concerned as to the safety of the civil population of Zepa.

 3     What his other motivations were, I cannot tell.

 4        Q.   Thank you.  Please, was the evacuation of the population from

 5     Zepa carried out in accordance with the agreement that had been signed

 6     between the representatives of Zepa and the representatives of the

 7     Army of Republika Srpska?

 8             THE ACCUSED: [Interpretation] Can we please see D51.  Thank you.

 9             MR. TOLIMIR: [Interpretation]

10        Q.   We see this document yet again.  Did the evacuations start, of

11     the civilian population from Zepa, in accordance with the provisions of

12     this agreement that had been signed by the representatives of the

13     civilian authorities and the War Presidency in Zepa with the

14     representatives of the Army of Republika Srpska?  Thank you.

15        A.   The actual course of the evacuation of the population and the

16     dates on which it occurred, I don't -- the precise, you know, what days

17     buses left and so forth, I would need to look at the reporting of the

18     time.  The -- my memory is that it did not go entirely according to this

19     document.  And I don't think the ICRC, for example, ran the -- I'm almost

20     certain they didn't run a holding centre and so forth.  So I don't think

21     paragraph 8 was carried out, for example.  Nor was 9.

22        Q.   Thank you, Mr. Smith.  I understand your position.

23             THE ACCUSED: [Interpretation] Could we please look at document

24     D55 again now.  Page 105.  Because you had just asked to see how it was

25     that the evacuation had started.  Thank you.

Page 11717

 1             JUDGE FLUEGGE:  Please don't move to the next document.

 2     Judge Mindua has a question for the witness in relation to the document

 3     on the screen.

 4             JUDGE MINDUA: [Interpretation] General Smith, sir, I would like

 5     to understand this question better, i.e., the evacuation of civilians

 6     mentioned in this Exhibit D55, in paragraph 7.  The Defence, from what I

 7     understand, would like to show another document.  Since I have this

 8     document, document 51 before me, I would like to clarify the situation.

 9             According to this paragraph, the civilian population will be

10     permitted to choose its place of residence - I'm translating the document

11     directly from the French - whilst the hostilities are still on-going.

12             What I'm interested in is the end of the hostilities right now.

13     I know that in terms of International Humanitarian Law the evacuation of

14     civilians is not mandatory but is encouraged.  I'm referring to

15     Article 17 of the 4th Geneva Convention.  Of course, military commanders

16     cannot expose civilians to danger when the latter are in the

17     battle-field.  This is why I understand this provision full well which

18     gets a party to agree on the evacuation of the civilian population as is

19     mentioned in paragraph 7 as the hostilities are still on-going.

20             This is my question:  According to you, when did the hostilities

21     cease?  I'm talking about the hostilities in particular and in Bosnia in

22     general.  Do you have any idea on what date the hostilities ceased?

23             THE WITNESS:  Let me -- the formal ending of the hostilities

24     occurred in -- on a date in October 1995 when there was a cease-fire

25     agreed by all parties.  Again, I'd have to look at the record to give you

Page 11718

 1     the date, but my memory is it's somewhere around about the middle of

 2     October.

 3             In the specific case, and here I won't use the word "hostilities"

 4     between the parties, there was, in the immediate vicinity of the major

 5     population and the civil point population in Zepa and the village of

 6     Zepa, there was no fighting taking place at and around the time of the

 7     24th of July.  And I don't recall reporting of actual fighting taking

 8     place around this village in the immediate vicinity of that area in the

 9     enclave of Zepa from certainly after the London conference and my return

10     from that.

11             The Bosnian Serb army was in -- was occupying and in firm control

12     of that vicinity and everything that was going on in that area.  The --

13     there was no evidence of armed Bosnian army personnel at the bottom of

14     the hill where the village was or up at the top of the hill where the

15     check-point was and where I was.  The only armed men I saw were either

16     UN soldiers under my command or those of the Bosnian Serb army.  And

17     there was no fighting taking place.

18             Does that draw the distinction between the actual combat going on

19     as opposed to the hostilities as a whole?

20             JUDGE MINDUA: [Interpretation] Yes, thank you very much.  I have

21     understood this well.  You talked about the official date of the ending

22     of the hostilities and you also discussed the situation on the ground and

23     you said that there was no fighting, in fact.

24             So according to you, if you can answer this question, if you

25     can't, it doesn't matter, why was this sentence introduced in this

Page 11719

 1     paragraph?  What I mean is, "the civilian population must choose its

 2     place of residence whilst the hostilities are still on-going."  Why do we

 3     have this part of the sentence, "while the hostilities are still

 4     on-going"?

 5             THE WITNESS:  This is an observation of my experience at the

 6     time, reinforced to some extent by seeing documents subsequently by

 7     attending this court that I didn't know existed or didn't -- hadn't seen

 8     at the time in 1995.  But both parties were in the habit of sprinkling

 9     their argumentation in these various meetings and in documents that, as I

10     say, I've now seen, with these phrases appealing to some other authority

11     such as the Geneva Conventions or so forth.  And I came to some extent to

12     ignore them because you found that they weren't being used, once I'd

13     started to find out what that convention was or treaty was in some

14     historical case and so on and so forth, this was being referred to in a

15     very self-serving and partial way.  And I came to find that this was a

16     habit of all parties in this affair.  And I'm not surprised to find a

17     paragraph in there that doesn't actually -- in my memory of reading the

18     Geneva Conventions, I'm not entirely sure that the beginning of the

19     sentence is actually connected with the end of the sentence in any

20     logical sense or fact.

21             JUDGE MINDUA: [Interpretation] Thank you very much.

22             JUDGE FLUEGGE:  Mr. Tolimir, please carry on.  And I have a

23     request.  Sometimes you are putting your questions with a very loud voice

24     to the witness.  There's no need for that because we all have our

25     microphones and earphones and everybody will understand you.  Please

Page 11720

 1     carry on.

 2             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I put

 3     the microphone away and then I was asked to speak into the microphone,

 4     but this is just the way I speak.

 5             I would like to thank Mr. Smith.

 6             MR. TOLIMIR: [Interpretation]

 7        Q.   You claim here that there were no clashes in the enclave.  1D617

 8     is the document that we looked at yesterday.  May I remind you of that.

 9     And let me just show you that is General Mladic's letter sent to you

10     personally on the 10th of July, 1995.  Let us just read what

11     General Mladic wrote to you, why there was a conflict in the enclave.

12     I'm sorry that we have to read the document again, but what you said just

13     now was that there were no conflicts.

14             THE ACCUSED: [Interpretation] P185.  Thank you both.

15             JUDGE FLUEGGE:  Mr. Thayer.

16             MR. THAYER:  Mr. President, I think everybody understood what

17     General Smith said in his answer and in particular the time-period to

18     which he was referring.  We are now about to reread a letter that

19     predates this by two weeks.  General Tolimir can ask the questions he

20     wishes and we don't want to place restrictions on the subject matter

21     within certain -- certain obvious guide-lines, but that's not what

22     General Smith testified to.  He testified that at a particular time the

23     fighting had stopped.  So showing him a letter from ten days earlier, I

24     think, is really going to waste time on this issue.

25             JUDGE FLUEGGE:  Thank you for this assistance, but it is the

Page 11721

 1     conduct of the cross-examination.  You may deal with that in

 2     re-examination.

 3             Mr. Tolimir, what is your question?

 4             THE ACCUSED: [Interpretation] Thank you.

 5             MR. TOLIMIR: [Interpretation]

 6        Q.   Mr. Smith, do you remember that we looked at this document

 7     yesterday?  Thank you.

 8        A.   Yes, I remember.

 9        Q.   Do you remember that General Mladic in paragraph 2 of this

10     document wrote the following to you:

11             "I'm reminding you that since then to the present day Muslim

12     forces by way of attacks and sabotage terrorist groups killed 100 and

13     wounded over 200 Serb civilians.  They torched several Serb villages in

14     the immediate vicinity of the zone, committing unheard of massacres

15     against the civilian population.  Over the past few days they conducted a

16     large-scale military operation in order to link the enclave in the area

17     of Zepa -- with the villages in the Zepa area and they torched the

18     villages of Visnjica and Banja Lucica and they killed the entire

19     population.  In carrying out their dastardly intentions, they did not

20     spare even the members of UNPROFOR.  Although your forces protected them,

21     they were their victims themselves."

22             Was this sent to you before the combat in Zepa took place

23     actually?

24        A.   If what you've put on that screen says all that and it's dated, I

25     think, on the 9th of - is it? - 10th of July, as I think I answered last

Page 11722

 1     time, I'm on leave when this arrives, but I am quite prepared to believe

 2     that it was read and understood in my headquarters.  And on my return it

 3     would have been included in my briefing.

 4        Q.   Thank you.  Upon returning from leave were you informed that the

 5     conflict had escalated between the Muslim soldiers in the Zepa enclave

 6     and the Army of Republika Srpska around the Zepa enclave?  Thank you.

 7        A.   My briefing was centred on the events in Srebrenica.

 8        Q.   Thank you.  I'm asking you whether you had been informed about

 9     conflicts taking place in Zepa between the Muslim army that was supposed

10     to be demilitarised and the Army of Republika Srpska that was around the

11     demilitarised zone.  Thank you.

12        A.   The -- I knew that this fighting was going on, yes.

13        Q.   Thank you.  On the basis of what are you claiming, then, that the

14     Army of Republika Srpska acted unlawfully and that it occupied Zepa if

15     there was fighting in that zone and General Mladic had warned that he

16     would turn it into a demilitarised zone because it was not actually

17     demilitarised as stated in this letter that read out to you because there

18     was no translation for you to read?

19        A.   What are you claiming ...

20             JUDGE FLUEGGE:  I was told that there is now an English

21     translation.  It was sent to the Registry today.  And this will help you

22     to put your questions accordingly.  But --

23             THE WITNESS:  I'm -- I am claiming and stating because of the

24     evidence of my own eyes that the army of the Bosnian Serbs had occupied

25     Zepa and that -- to go back a whole range of questions, and that the --

Page 11723

 1     there was no fighting taking place on and around the 24th of July.

 2             JUDGE FLUEGGE:  Could the English version please be enlarged.

 3             MR. TOLIMIR: [Interpretation]

 4        Q.   Thank you.  Thank you.  Before this letter was sent, was the

 5     Army of Republika Srpska in the territory of the enclave of Zepa?  Thank

 6     you.

 7        A.   The letter of the 10th of July, the Bosnian Serb army was not in

 8     the safe area of Zepa, as far as I was aware.

 9        Q.   Thank you.  The military operations of the Army of

10     Republika Srpska against Zepa, did they take place because they had

11     killed 100 and wounded 200 civilians around the demilitarised zone as

12     armed groups left the demilitarised zone?  That is what General Mladic is

13     referring to in paragraph 2 of this letter.  Thank you.

14        A.   He -- if I -- can I have the page turned, please, on my ...

15             My understanding of this is that he is complaining of the Bosnian

16     military operating out of Srebrenica, not out of Zepa.  He is saying that

17     they're starting operations with a view to linking up with the enclave in

18     Zepa.  He is not saying that people from Zepa have attacked.

19        Q.   Thank you, General.  I don't want to waste time with a single

20     document, and the Trial Chamber actually has several documents about

21     Zepa.  I understand your position.  You know when the evacuations started

22     and how that happened.

23             THE ACCUSED: [Interpretation] Before that, I'm just going to ask

24     for D55 to be displayed in e-court, paragraph 101, on page 27.  This

25     document has to do with the fall of Zepa.

Page 11724

 1             MR. TOLIMIR: [Interpretation]

 2        Q.   It was written up by Mr. Bezruchenko for the OTP.  He was sent by

 3     your command to Zepa before it surrendered.  Thank you.  This is what

 4     Mr. Bezruchenko says in paragraph 101 that both you and I can see on our

 5     screens.  This is what he says:

 6             "President Izetbegovic on the 25th of July in his letter to the

 7     Security Council requested UNPROFOR to assist the safe evacuation of

 8     civilians.  The Security Council at once responded positively through a

 9     presidential statement."

10             And then he provides that document in footnote 154 and he

11     provides the ERN number of that document, as you can see too, down there

12     in that footnote, 154.

13             This is my question --

14             THE ACCUSED: [Interpretation] Actually, can we read just one more

15     sentence.  Can we have the next page in Serbian.  Thank you.

16             MR. TOLIMIR: [Interpretation]

17        Q.   "Intensive negotiations then took place between General Smith and

18     General Mladic over conditions and modalities of such an operation."

19             Now, this is my question:  Through a presidential statement did

20     the Security Council authorise you to carry out the evacuation of the

21     civilian population of Zepa in line with Alija Izetbegovic's request, and

22     were you informed of that decision?  Thank you.

23        A.   I don't remember the actions of the Security Council.  I had

24     forgotten about that completely.  But I was fully engaged in doing just

25     that at the time, so I don't -- I don't suppose I felt that it was

Page 11725

 1     anything more than an added authority from my political masters.

 2        Q.   Thank you.  At the time, because you cannot recall now, were you

 3     duty-bound as UNPROFOR commander to abide by the presidential statement

 4     of the Security Council?  So could you please tell the Trial Chamber what

 5     that means, "presidential statement."  What is its form and content and

 6     how binding is it for UN forces, in this case UNPROFOR?  Thank you.

 7        A.   I'm no expert in this.  My understanding is that there is a

 8     procedure within the United Nations where the president of the

 9     Security Council can issue a statement without calling the complete

10     Security Council into session.  He does this when he is confident that

11     there is no likelihood of disagreement on the council.  He does it so

12     that the authorities of the and statements by the Security Council are

13     timely and authoritative.

14             Its impact on the -- on military operations would merely

15     reinforce the importance of achieving this particular objective.  It

16     would be more, as it were, setting the context for one's military

17     operation rather than changing the operation itself.

18        Q.   Thank you, Mr. Smith.  Do you know that presidential statements

19     are issued after Security Council sessions and that the president of the

20     Security Council as chairman is duty-bound to present the decisions and

21     conclusions reached either by way of a statement or a resolution?  Thank

22     you.

23        A.   I didn't know it in that form, no.

24        Q.   Thank you.  Could you please tell us whether presidential

25     statements were binding on the parties, and did UNPROFOR had to implement

Page 11726

 1     them in accordance with Security Council instructions?  Did your command

 2     receive the presidential statement of the Security Council where he

 3     responds favourably to Alija Izetbegovic's request to have the civilian

 4     population moved out of Zepa to BH-controlled territory?  Thank you.

 5        A.   I doubt that we did receive the statement in the way you've

 6     expressed it as though it was an order.  As I say, it's something that

 7     would have set the context in which we were operating, and we were

 8     already doing what the Security Council was urging us to do.

 9        Q.   Thank you.

10             THE ACCUSED: [Interpretation] Can we have this document in

11     Serbian version.  I would like to see the previous page so that we can

12     see the footnote 155 both in Serbian and in English.  Thank you.

13             MR. TOLIMIR: [Interpretation]

14        Q.   So now we can see footnote -- actually, I meant 154 and not 155.

15     And it says:

16             "UNPROFOR HQ Sarajevo.  Office of civil affairs.  Weekly

17     situation report number 129, 24 to the 30th of July, 1995."

18             So was this statement provided to you, to your command, and to

19     your civilian sector who was subordinated -- which was subordinated to

20     you?  And then they send two of their representatives to Zepa,

21     Mr. Edward Joseph and Mr. Bezruchenko.  Thank you.  And he is actually

22     the person who wrote this.

23        A.   You have referred me to a document by headquarters, civil affairs

24     office of UNPROFOR, headquarters in Sarajevo.  Is this where the

25     presidential statement is appearing?  Well, I'm -- or have we moved away

Page 11727

 1     from this presidential statement?

 2        Q.   Mr. Smith, we haven't moved from the presidential statement.  I

 3     asked you whether it was binding for all the sides and UNPROFOR, and you

 4     said that you were involved in carrying out those activities.  You also

 5     said that you did not remember the contents of this statement.  That is

 6     why I reminded you about what you did at the time.  Immediately after

 7     that you contacted General Mladic and began carrying out the presidential

 8     statement in practice; isn't that so?  Thank you.

 9        A.   I'm -- told you, I don't recall the presidential statement.  You

10     have referred me to a document that is -- emanates apparently from my

11     headquarters, not anything that has been passed down to me by a superior

12     headquarters.  And as we've seen from various reporting, by the -- by

13     this time we have been engaged in the business of Zepa and its civil

14     population for some days.

15             JUDGE FLUEGGE:  May I put a question just to understand better.

16             Were Mr. Joseph and Mr. Bezruchenko subordinated to you?

17             THE WITNESS:  No, not formally.  They were part of the civil

18     affairs staff, and I can't -- I think they are both part of

19     Sector Sarajevo's civil affairs team.  They are not part of my

20     headquarters for UNPROFOR.  But I may have been wrong there.  At this

21     stage I do not have a chief of civil affairs.  I haven't had one since

22     sometime in April.  Mr. Pedauye doesn't appear on the scene until a

23     little later, in either July or August.  My -- and in many ways I am

24     dealing direct with Sector Sarajevo's civil staff, as well as those that

25     do not have a chief, in my own headquarters.  I am -- I believe, I think

Page 11728

 1     initially, on the initiative of David Harland, but it may not have been,

 2     Joseph and Bezruchenko, he is -- they go into Zepa before we have

 3     presidential statements and so forth.  Again, I can't give you the dates

 4     precisely, but they're there very early on in this event.

 5             And I don't understand the questions as to why this particular

 6     document that's being referred to in the footnote may mention a

 7     presidential statement having been made but it isn't any way an

 8     authority.  This document looks to me as though it's the weekly situation

 9     report, and, in fact, that's what it says it is, sorry, for the week

10     24th-30th of July.  So it was probably written at the end of July and not

11     right at the end of the month.  And I suspect it merely has an account

12     that this statement was issued.

13             JUDGE FLUEGGE:  Do you recall who were the superiors or the

14     superior of Mr. Joseph and Mr. Bezruchenko?

15             THE WITNESS:  As I say, I think, in a formal sense, it would have

16     been Mr. Akashi back in Zagreb.  But in the circumstances of Sarajevo at

17     the time, I was -- knew perfectly well that these two had been sent into

18     Sarajevo -- into Zepa, and to all intents and purposes I would have been

19     their superior and directing what they were doing.

20             JUDGE FLUEGGE:  Thank you very much.

21             Mr. Tolimir, please carry on.

22             THE ACCUSED: [Interpretation] Thank you, Mr. President.

23             MR. TOLIMIR: [Interpretation]

24        Q.   I would like to ask the witness to say whether the

25     Security Council would issue a presidential statement without

Page 11729

 1     Alija Izetbegovic requesting it as one of the warring parties.  Thank

 2     you.

 3        A.   I cannot answer for the thinking in the Security Council or the

 4     UN headquarters in New York at that time.

 5        Q.   Thank you, Mr. Smith.  I asked you this because it is said that

 6     the Security Council requested UNPROFOR to help in the safe evacuation of

 7     the civilians.

 8             My question is:  If the Security Council requested it, if you

 9     then undertook certain efforts, because we see here a mention of a

10     discussion between General Smith and General Mladic, and if that

11     evacuation had indeed commenced, can then General Tolimir be held

12     responsible for simply carrying out the tasks that were defined by this

13     agreement bearing in mind that he was simply part of a Main Staff in a

14     similar way to which you were a commander in your staff?  Thank you.

15        A.   I don't see --

16             JUDGE FLUEGGE:  Mr. Tolimir, please switch off your microphone,

17     otherwise we have the noise of your papers.

18             THE WITNESS:  As I've said to you, I don't see that the -- we in

19     UNPROFOR - and I separate UNPROFOR from the Bosnian Serb army at this

20     stage, and every other army for that matter - we in UNPROFOR are already

21     concerned with and setting out to deal with the evacuation of the

22     civilians from Zepa.  The fact that the Security Council then encourages

23     to do this is, as I say, sets the context, sets the political urgency of

24     doing this, but it is -- that is what it does.  It doesn't alter what I

25     am doing on anything.

Page 11730

 1             Now, whether or not you, General Tolimir, are part of the staff,

 2     an assistant commander of one of the armies engaged in this war, have a

 3     responsibility, I leave that to others to decide.  You were there and you

 4     were conducting the -- a part of what went on in that enclave.  That I

 5     can vouch for.

 6        Q.   Thank you.  I know that I carried out what was agreed between you

 7     and General Mladic and the other warring party.

 8             THE ACCUSED: [Interpretation] Can we now have 65 ter 7247.

 9     That's the statement by this witness.  I would like to take a look at

10     page 20, paragraph 5, the first and the second sentence.  Thank you.  Can

11     we also have the version -- can we also have the version in Serbian.

12     It's page 20, paragraph 5, lines 1 and 2.  It's the previous page in

13     English.  Thank you.  It's the last paragraph, beginning with the words

14     "General Tolimir."

15             MR. TOLIMIR: [Interpretation]

16        Q.   So this is what you say.  I quote from the Serbian version:

17             "General Tolimir clearly played an important role at Zepa and

18     appeared to be in charge of the cleansing of the pocket and the movement

19     of civilians out of the pocket."

20             My question is:  Does that mean that all the representatives of

21     UNPROFOR who took part in the negotiations were also in charge of

22     cleansing of Zepa and the movement of civilians out of the pocket?  You

23     also said in examination-in-chief that I played an important role by

24     providing the buses.  So what I'm saying here is did I do all this in

25     accordance with the negotiations and the agreement, or did I cleanse the

Page 11731

 1     enclave in a military sense?  Thank you.

 2        A.   I think you are confusing deliberately or otherwise the creation

 3     of the situation with dealing with the situation, it having been created.

 4     As far as I am concerned, evacuating the population is a consequence of a

 5     situation that was created by you and the Bosnian Serb army.

 6        Q.   Thank you, if you finished your answer.  Can you tell us now, was

 7     my activity in Zepa the consequence of the agreement signed by the two

 8     parties as we saw today in the documents that we looked at today?  Thank

 9     you.

10        A.   Again, I make my point, the agreement that you showed me on the

11     screen was reached as a result of your attack into the safe area of Zepa,

12     and the -- and the evacuation of the civil population then followed from

13     that.  And it followed from that in particular because of the experience

14     of previous events, not least that in Srebrenica.  And I think we've seen

15     reference to my saying to General Mladic that I -- that we needed to

16     evacuate the people, and this to be seen, and this is why the CNN got in,

17     so that there was the least likelihood of any threat to the civil

18     population occurring in the light of the -- what was beginning to be

19     clear had occurred elsewhere and in Srebrenica.

20        Q.   Thank you.  Yesterday you stated that I gathered the buses.  My

21     question is:  Is it possible that an assistant commander would go around

22     finding buses in a unit two levels below the Main Staff, or would it be

23     something normally carried out at the brigade level?  In other words,

24     would a commander do something like that or would it be entrusted to

25     assistant commanders?  Thank you.

Page 11732

 1        A.   I didn't say you had gathered the buses.  I said that it had been

 2     reported to me that you had taken people off a bus.  And this is referred

 3     to in the document you've got on the screen somewhere.  I've just seen

 4     it.  Yes, there you are, in the very of paragraph you've referred me to.

 5     Second sentence:  "I was told he personally removed 11 wounded males from

 6     the buses to an uncertain [Realtime transcript read in error "Albanian"]

 7     fate."

 8             Not "Albanian fate," to a "uncertain fate."

 9        Q.   Thank you.  We can see that in this paragraph on page 20 of

10     Bezruchenko's report.  It's the second paragraph from the bottom in

11     Serbian, and I think that it is also the second paragraph from the bottom

12     in English.

13             However, do you know when those combatants were taken off the

14     buses?  Can we find it in this paragraph?  Also, did that happen after

15     the Muslims refused to surrender their weapons?  Take a look at the last

16     paragraph where it says the 30th of July.  That's the last paragraph in

17     English and also the last paragraph in Serbian.

18        A.   We're referring to my statement still, are we?  Or the report on

19     Zepa?

20        Q.   I'm referring to your statement, because you said that I took

21     some men off the buses.  Now I'm asking you, when were they taken off the

22     buses?  Were they able-bodied men?  And were they taken off the buses

23     only after the Muslim side refused to surrender the weapons of all

24     able-bodied men?  Thank you.

25        A.   I'm stating there that I was told this.  I don't know the date.

Page 11733

 1     And I believe that the people on the buses were wounded.  To what extent,

 2     that I don't know.  Nor do I know -- sorry, I backtrack.  I don't --

 3     you're referring to an agreement which I have already told you I don't

 4     believe was an agreement between the military and yourselves.

 5        Q.   Thank you.

 6             THE ACCUSED: [Interpretation] Can we now take a look at D173.

 7     That's the statement of Mr. Edward Joseph.  He testified in these

 8     proceedings.  He speaks about this situation because he was there in the

 9     field, and it was an agreement between me and those people, not between

10     Mladic and those people.  Can we have paragraph number 20 in D173.  Thank

11     you.

12             MR. TOLIMIR: [Interpretation]

13        Q.   So let us take a look first at paragraph 19 and then paragraph 20

14     so that you could understand what Mr. Joseph is referring to.  He says:

15             "The previously-mentioned group of slightly wounded men boarded

16     probably the last bus.  I recall them being a group of 12.  As they were

17     of military age and therefore falling to the problematic group of

18     evacuates, I and Viktor went to VRS General Tolimir who was in the centre

19     area.  I asked him if he allows these 12 to go to the Serb-controlled

20     territory without being disturbed and he very clearly replied yes."

21             And now we come to paragraph 20:

22             "The bus departed with the wounded men.  And because I still was

23     concerned of their safety, I asked one French officer, probably he was

24     major, to follow the bus with his APC, which he did.  Later I heard from

25     the source which I cannot identify that the bus had been stopped and the

Page 11734

 1     wounded arrested."

 2             So this is what Edward Joseph says.  And he was sent to

 3     Srebrenica in order to carry out the evacuation of the civilian

 4     population.  He clearly states that it was on the last day and that this

 5     was the last bus.  It means that it was after the 27th.  This morning we

 6     saw the agreement in which the War Presidency signed that all the

 7     combatants would surrender their weapons, while they refused to do that,

 8     and then send the message to the president of the War Presidency that

 9     they would not surrender it.

10             So is this the situation that you mentioned earlier in which you

11     knew that a certain door would be open and by that I mean the door that

12     would enable them to cross the Drina River and go into Serbia?  Thank

13     you.

14        A.   I'm sorry, I was concentrating on buses and people on it.  How

15     have we got to the Drina River?  Just let me read what you've said again.

16        Q.   Let me help you.  Were these able-bodied men stopped on the last

17     day of the evacuation after it was found out that the soldiers did not

18     want to obey the decision for the -- from the War Presidency which bound

19     them to surrender their weapons?  Thank you.

20        A.   First of all, I don't think they are able-bodied.  I believe them

21     to be wounded.  And I think that's what the -- Joseph says.  And that he

22     was still concerned for their safety.  The connection between this and my

23     understanding of what was going on with the negotiations over getting

24     people over the Drina, I couldn't put those two together in time as you

25     are describing it.  I don't remember the dates well enough to say that

Page 11735

 1     this is coincident with this.

 2        Q.   Thank you.  I would like to remind you again of the contents of

 3     paragraph 19 of this statement where we find the words:

 4             "The previously-mentioned group of slightly wounded men boarded

 5     probably the last bus.  I recall them being a group of 12.  As they were

 6     at military age, it meant that they were problematic for the evacuation."

 7             So doesn't this say that Mr. Joseph himself identified them as

 8     able-bodied men?  Thank you.

 9        A.   It doesn't say anything of the sort.  It says they are a group of

10     wounded men, albeit slightly, and they are of military age.

11        Q.   Thank you.  So does that mean that their age would define them as

12     men fit for military service or not?

13        A.   Their age would define them as possible for military service.

14     But if they're wounded, then they are hors de combat.

15        Q.   Thank you.  Can we find in the English text paragraph 19 the

16     words of Mr. Edward Joseph saying that they were able-bodied, which meant

17     that they were problematic vis-à-vis the evacuation?  Thank you.  It's

18     the second line in paragraph 19.  You can see the words at the very end

19     of the second line that they were able-bodied.

20             JUDGE FLUEGGE:  Mr. Tolimir, we see another word.  "As they were

21     at military age."  I don't find the words "able-bodied."

22             Mr. Thayer.

23             MR. THAYER:  Mr. President, I don't know whether this is a

24     perhaps translation issue from the written to the written.  I don't see

25     any effort by the Defence to suggest that, so I don't know.  That's the

Page 11736

 1     only possible explanation other than General Tolimir being obtuse at the

 2     moment.  But I don't know.  But I'm not seeing any suggestion at this

 3     point from the Defence that there is a possible translation issue, so we

 4     might be able to save some time, otherwise we're just going to go around

 5     in circles because we can see what we see in English and we hear the

 6     questions coming from General Tolimir.

 7             JUDGE FLUEGGE:  Indeed.

 8             Are you able to clarify that, Mr. Tolimir?  In the English you

 9     see the word "military age."

10             THE ACCUSED: [Interpretation] Thank you, Mr. President.  If

11     that's what it says in English, it says "military," which means fit for

12     the military.  Maybe I could help in order to resolve any

13     misunderstanding.  Take a look at D173 which used to be 65 ter 0273.

14     It's a Prosecution document.  And that's the document that was introduced

15     by the Prosecution and the Defence received with this translation.  And

16     now we can see the translation on the left side of the screen and you can

17     compare it.  Thank you.

18             JUDGE FLUEGGE:  Mr. Tolimir, this is not the issue we are dealing

19     with.  We know that this is the document on the screen.  Could you

20     please, to clarify this, read the last sentence of -- the second sentence

21     of paragraph 19 into the record and we will see in which way our

22     interpreters present in the courtroom will translate it.

23             MR. THAYER:  Mr. President.

24             JUDGE FLUEGGE:  Mr. Thayer.

25             MR. THAYER:  If I may, it may be easier just to have the

Page 11737

 1     interpreters in the booth read what they can see on the screen.  Because

 2     what's in the writing is in the writing.  And we clearly aren't getting

 3     anywhere by asking General Tolimir to interpret what he's got or to state

 4     the question because we're getting what we're getting.

 5             JUDGE FLUEGGE:  I would like to ask Mr. Tolimir to read the

 6     second sentence of paragraph 19.  We will be able to follow that.  No,

 7     third -- it is the third sentence, sorry.

 8             Please, Mr. Tolimir, to clarify this, read the third sentence

 9     which begins with the words "kako su bili."

10             THE ACCUSED: [Interpretation] Thank you.  I'm reading from the

11     Serbian version:  "As they were able-bodied, which meant that they were

12     problematic about the evacuation, Viktor and I went to see

13     General Tolimir who was in the" --

14             JUDGE FLUEGGE:  Please stop there.  It is enough.  We wanted to

15     have the -- only the third sentence.

16             Mr. Gajic.

17             MR. GAJIC: [Interpretation] Mr. President, with your permission,

18     maybe I could explain.  The phrase in the English language, "military

19     age," is very often translated into Serbian as able-bodied.  In practice

20     they are often used as synonyms, to be fit for the military service and

21     to be of the age for the military service.  In the Serbian language, you

22     would very rarely say of the military age.  So this seems to be only a

23     translation issue, because we are dealing with two terms that are very,

24     very similar.  Thank you.

25             JUDGE FLUEGGE:  Thank you very much.  I think we all can agree

Page 11738

 1     that the English version is the original because Mr. Joseph was

 2     interviewed by the OTP in English.  Thank you.

 3             Please carry on, Mr. Tolimir.

 4             THE ACCUSED: [No interpretation]

 5             JUDGE FLUEGGE:  No, please don't.  Please don't carry on because

 6     we need now to have our second break.  I just realised.

 7             We will have our second break and resume at 1.00.

 8                           --- Recess taken at 12.32 p.m.

 9                           --- On resuming at 1.03 p.m.

10             JUDGE FLUEGGE:  Yes, Mr. Tolimir, now you may proceed.

11             THE ACCUSED: [Interpretation] Thank you, Mr. President.

12             MR. TOLIMIR: [Interpretation]

13        Q.   While we still have this statement on the screen, let's look at

14     paragraph 4 and paragraph 5 of the statement.  Thank you.  It is

15     Mr. Joseph's statement, paragraph 4 and paragraph 5.  I quote:

16             "I arrived in Sarajevo and I was briefed there by David Harland,

17     senior civil affairs officer in Sarajevo, and General Rupert Smith, the

18     military commander of UNPROFOR in BiH.  I got an impression that the

19     Bosnian Serb forces had attacked and practically overrun Zepa enclave and

20     there was no resistance by the Muslim army in the enclave any more."

21             My question is this:  Did you talk to Mr. Joseph before he was

22     sent to Zepa by UNPROFOR?

23        A.   I don't recall the specific incident, but this makes it appear

24     that I did.  So I imagine I did.  And under the circumstances, I expect I

25     did.

Page 11739

 1        Q.   Thank you.  In that case, I'll move on to paragraph 5:

 2             "We decided to go to Zepa, monitor the situation, and probably do

 3     as much as possible to help with the evacuation of the civilian

 4     population from the enclave.  Along with the civil affairs officer

 5     Viktor Bezruchenko, I was chosen to do this.  I don't remember whether

 6     one of us was ordered to be in charge."

 7             I want to look at the first sentence of paragraph 7 next.  "I

 8     believe we departed from Sarajevo on the 19th of July."  This is just to

 9     give you the temporal context.

10             My question is this:  Did you decide for the two officers,

11     Viktor Bezruchenko and Edward Joseph, to be sent there because of the

12     evacuation of the civilian population from Zepa to BiH territory?

13        A.   As I think I've said already, I don't recall making the specific

14     decision.  I certainly was content and pleased that they were there.  And

15     the first priority and why I wanted people there was to ensure that

16     incidents such as those that was becoming clear might have occurred in

17     Srebrenica weren't going to occur in Zepa, and I wanted to get

18     UN personnel on the ground in the vicinity, observing what was going on

19     as quickly as possible.

20        Q.   Thank you.  We'll now look at paragraphs 16 and 17, where

21     Mr. Joseph confirmed it.  Let's go to paragraphs 16 and 17, please.

22     There he says as follows.  I quote from Edward Joseph's statement, which

23     is D173, paragraph 16.

24             JUDGE FLUEGGE:  Please wait a moment until the relevant part is

25     occurring on the screen.  Now it is visible.  Please go ahead.

Page 11740

 1             THE ACCUSED: [Interpretation] Thank you, Mr. President.

 2             MR. TOLIMIR: [Interpretation]

 3        Q.   I'm quoting from paragraph 16:

 4             "We created written lists of the evacuees.  And as far as I can

 5     recall we had a separate list for each vehicle.  I handed over those

 6     lists later either to the UNHCR or someone in UNPROFOR.  We also tried to

 7     place one UNPROFOR soldier in each vehicle, but I'm not sure if we

 8     managed to do so throughout the duration of the evacuation."

 9             Paragraph 17 -- let me ask you this first:  Having read

10     paragraph 16, tell us whether Mr. Joseph reported correctly his role as

11     UNPROFOR representative in the evacuation of the civilians from Zepa?

12        A.   Yes, that is as much as I remember it.  And I remember wanting

13     him to record the names of all the people that went on the buses so that

14     we had some idea of who they were, and if any went missing we could

15     account for them.

16        Q.   Thank you.  In paragraph 17, he says:

17             "The evacuation probably lasted a bit over three days.  The

18     atmosphere was tense throughout the time, but we managed to get all those

19     people on board who had come to the centre of town and were willing to

20     go.  I estimate that approximately 7.000 people were evacuated."

21             My question is this:  Does Viktor Bezruchenko state here that he

22     evacuated all those who had come to the centre of the town and were

23     willing to leave?  Thank you.

24        A.   No, he doesn't.  I think it's Ed Joseph's report, isn't it?

25             JUDGE FLUEGGE:  It is, indeed.

Page 11741

 1             MR. TOLIMIR: [Interpretation]

 2        Q.   Apologies, it's Mr. Joseph.  Did he state there that he managed

 3     to board all those who had come to the town centre?

 4        A.   Yes, the paragraph states that.

 5        Q.   Thank you.  Let us look at how the evacuation process developed

 6     as was recorded by the cameramen you requested to do so.

 7             THE ACCUSED: [Interpretation] Could we please have P740.  The

 8     time is 36 minutes, 14 seconds to 37 minutes, 45 seconds.

 9                           [Video-clip played]

10             THE ACCUSED: [Interpretation] Thank you, please stop.  It was

11     stopped at 36 minutes, 39 seconds.

12             MR. TOLIMIR: [Interpretation]

13        Q.   While watching the video, did you see any VRS members in front of

14     the bus or could you only see civilians boarding the buses in the centre

15     of Zepa?

16        A.   I didn't see any military at all.

17        Q.   Thank you.

18             THE ACCUSED: [Interpretation] Please go on with the footage

19     starting with 36 minutes, 39 seconds.

20                           [Video-clip played]

21             THE ACCUSED: [Microphone not activated]

22             THE INTERPRETER:  Microphone, please.

23             JUDGE FLUEGGE:  Your microphone, please.

24             MR. TOLIMIR: [Interpretation]

25        Q.   The time is now 36 seconds [as interpreted], 47 seconds.  In the

Page 11742

 1     previous still we saw some VRS soldiers standing on the side away from

 2     the bus.  We can also see an ABiH soldier approaching his family.  And we

 3     see another one greeting his family.  Were they prevented from doing so

 4     by the VRS?  Were they prevented from doing anything in the area?

 5        A.   This you would -- I'm not clear that those are Bosnian military.

 6     I've seen a picture that I recognise as Bosnian Serb.  I don't recognise

 7     this on the frame I've got in front of me as a -- as Bosnian military.

 8             THE ACCUSED: [Interpretation] To have a continuity, could we

 9     please go back from the still where we saw the VRS soldiers so that the

10     witness could try and identify any differences in uniform or insignia.

11                           [Video-clip played]

12             THE WITNESS:  If you stop it there, that I recognise,

13     particularly the armed person on the left of the group of three, as

14     Bosnian Serb.  And if we were to come in closer or it moves, I don't

15     know, there's some insignia on him.  On his arm or jacket.  No, I can't

16     see very clearly, no.  But I certainly see that as a Bosnian Serb

17     soldier.  You got someone in a UN hat back left who I don't recognise.

18             JUDGE FLUEGGE:  Could you please indicate which makes you certain

19     that this is a Bosnian Serb soldier?

20             THE WITNESS:  It's -- what makes it certain, the camouflage

21     uniform.  The colour of the camouflage uniform and the nature of the

22     uniform was frequently worn by the Bosnian Serbs.

23             JUDGE FLUEGGE:  And what about the men, the two men on the right

24     side of the picture?

25             THE WITNESS:  I don't see this -- the particular soldier with the

Page 11743

 1     black hat or scarf around his head, I'm -- thought I'd seen an insignia

 2     on his arm.  I don't mean that necessarily as a badge.  The Bosnian Serb

 3     army is -- particularly, if they were doing an attack, would put coloured

 4     ribbons on their shoulders to identify them in that attack, so it was

 5     quite clear.  And this colour coding, if you like, would be specific for

 6     that attack.  And then they knew that this chap was or someone else was

 7     impersonating them or something like that.  And I thought I'd seen that

 8     on that particular soldier when the first time it had gone through.

 9             The other soldiers appear to be from a different unit by the

10     nature of their uniforms, but I wouldn't be sure of that.

11             JUDGE FLUEGGE:  Thank you very much.

12             Mr. Tolimir.

13             MR. TOLIMIR: [Interpretation]

14        Q.   Thank you, Mr. Smith.  We see three soldiers in this still.  You

15     identified them as VRS.  And we also see three ABiH soldiers who are

16     partially dressed in uniform and partially in civil clothes greeting

17     their families to the left of these three.  Are these three paying any

18     attention to the other three?  Are they doing anything with regard to

19     that group?  That's one thing.

20             The second thing, on the upper right arm of --

21             JUDGE FLUEGGE:  Please, please, not a compound question, please.

22     It's very difficult to follow.  Not a compound.  You put one question to

23     the witness including a statement how you identify the three people on

24     the left side of the screen.  We want to hear the witness and his opinion

25     about these.

Page 11744

 1             THE ACCUSED: [Interpretation] Thank you.

 2             JUDGE FLUEGGE:  Sorry, I want to hear the answer of the witness.

 3             THE WITNESS:  And the witness would like to see the picture

 4     you're referring to.  Because I can't see three people to the left of

 5     the ... on the screen that I have.

 6             JUDGE FLUEGGE:  We all have the same picture on the screen at the

 7     moment.  I understand, Mr. Tolimir, that he was referring to the people

 8     left to this specific soldier you testified about.

 9             THE WITNESS:  I don't think those are -- I see no reason to

10     suppose that those are Bosnian military.

11             JUDGE FLUEGGE:  Thank you.

12             Now your second question, Mr. Tolimir.

13             THE ACCUSED: [Interpretation] Thank you.

14             MR. TOLIMIR: [Interpretation]

15        Q.   Can you see three men to the left of the VRS soldier, the closest

16     to us?  Can you see three men wearing items of clothing which is uniform

17     and civilian clothes?  It's a combination.  One, for example, has

18     civilian pants and a civilian jacket, the other way, the other way

19     around.  One of them, for example, has an olive drab uniform.  Can you

20     see that?

21        A.   I can see four people to the left of the VRS soldier.  And to be

22     sure we're looking at the same one, one of the four has what to me on

23     this screen looks like a blue basketball cap on his head.

24        Q.   That is correct.

25             THE ACCUSED: [Interpretation] Let us start playing again and then

Page 11745

 1     we can see any further differences between VRS soldiers and soldiers from

 2     Zepa and representatives of Zepa.

 3             JUDGE FLUEGGE:  We started at 36 minutes 44 seconds.

 4             THE ACCUSED: [Microphone not activated]

 5             THE INTERPRETER:  Microphone, please.

 6             THE ACCUSED: [Interpretation] Thank you.  This is 37 minutes,

 7     3 seconds.

 8             MR. TOLIMIR: [Interpretation]

 9        Q.   We see the back of a person.  Did you personally know Avdo Palic?

10        A.   No, I didn't know Palic personally.

11             THE ACCUSED: [Interpretation] I'd like to ask to go on playing

12     this footage from 37 minutes, 3 seconds.

13                           [Video-clip played]

14             THE ACCUSED: [Interpretation] Thank you.  Stop, please.

15     [Microphone not activated]

16             THE INTERPRETER:  Microphone, please.

17             MR. TOLIMIR: [Interpretation]

18        Q.   Did you see the person who is now with his back turned to us in

19     the light blue shirt?  Did you notice him holding sheets of paper or

20     lists in his hand?

21        A.   I saw a piece of paper in his hand.

22             JUDGE FLUEGGE:  We stopped at 37 minutes, 15 seconds.

23             THE ACCUSED: [Interpretation] Thank you.  Let us go on with the

24     footage from 37 minutes, 15 seconds.  We can probably see the person's

25     face somewhat later, and then stop when we do, please.

Page 11746

 1             JUDGE FLUEGGE:  We did already.

 2             THE ACCUSED: [Microphone not activated]

 3             THE INTERPRETER:  Microphone, please.

 4             THE ACCUSED: [Interpretation] The footage is stopped at

 5     37 minutes, 31 seconds.

 6             MR. TOLIMIR: [Interpretation]

 7        Q.   Can you see what the cameraman inserted in the footage by way of

 8     titles which probably refer to the person who is now facing us whom you

 9     saw a moment ago holding pieces of paper?

10        A.   Yes, I can see that.

11        Q.   Thank you.  Have you ever met this person?  As we can see from

12     the footage, his name is Mehmed Hajric.  Thank you.

13        A.   I do not recall meeting him.

14        Q.   Thank you.  Was he introduced to you as the president of the

15     Zepa War Presidency who signed the agreement on the disarmament of men

16     fit for military service?

17        A.   As I said, I don't recall meeting him.

18        Q.   Thank you.

19             THE ACCUSED: [Interpretation] Let's go on with the footage.

20                           [Video-clip played]

21             THE ACCUSED: [Interpretation] Stop, please.

22             MR. TOLIMIR: [Interpretation]

23        Q.   Do you recognise anyone in this still?

24        A.   I -- well, if we can step it back a bit, I think we have

25     General Mladic on my left but I'm not sure.  It's not that clear.  We've

Page 11747

 1     already identified or you identified the man Palic to the right.  And the

 2     man with the beard is the man who I'd met at the top of the hill and is

 3     the doctor.  I think.

 4             JUDGE FLUEGGE:  We stopped at 37 minutes, 45 seconds.  The

 5     witness requested to move a bit back so that we can see the man on the

 6     left more clearly.

 7                           [Video-clip played]

 8             THE WITNESS:  Yeah, I'm not sure it is Mladic now.  Not sure.

 9             JUDGE FLUEGGE:  Please move a little bit further.

10                           [Video-clip played]

11             THE ACCUSED: [Interpretation] Thank you.

12             MR. TOLIMIR: [Interpretation]

13        Q.   Can you see any VRS representatives here greeting Avdo Palic in

14     the presence of Benjamin Kulovac whom you met previously and you

15     recognised him just now?

16        A.   Yes, the man on the left who I thought was Mladic and I don't

17     think it is now is from wearing the uniform of the VRS.

18             JUDGE FLUEGGE:  We stopped now at 37 minutes, 47 seconds.  We

19     should move a bit further.

20                           [Video-clip played]

21             THE ACCUSED: [Interpretation] Thank you.

22             MR. TOLIMIR: [Interpretation]

23        Q.   Does the person in the VRS uniform resemble at all

24     General Tolimir perhaps?

25        A.   Not as I remember him.

Page 11748

 1             THE ACCUSED: [Interpretation] Thank you.  Let us move on from

 2     37 minutes, 49 seconds.

 3                           [Video-clip played]

 4             THE ACCUSED: [Interpretation] Thank you.

 5             MR. TOLIMIR: [Interpretation]

 6        Q.   This was the last still of that part of the footage, where you

 7     saw the evacuation from Zepa itself.  We unfortunately don't have enough

 8     time to view everything.

 9             THE ACCUSED: [Interpretation] Let us have a look at P736 briefly

10     so that the witness could see the first and last name of the president of

11     the War Presidency in Zepa.  Thank you.  In the English could we see the

12     signature block.

13             It was a decision of the Zepa War Presidency.  We'd like to have

14     it in English as well.

15             MR. TOLIMIR: [Interpretation]

16        Q.   We can see the names here.  The first person is Mehmed Hajric;

17     the second, Hamdija Torlak; the third, Amir Imamovic.  As members of the

18     Zepa War Presidency.  Did you see the superscript on the footage with

19     Mehmed Hajric's name who appears here as a member of the

20     Zepa War Presidency?  Did you see his name on the footage a moment ago?

21        A.   Yes, I did.

22        Q.   Thank you.  Did you see him taking part in the creation of the

23     lists and the evacuation itself?

24        A.   I saw him holding the lists and seeing people onto the buses.

25        Q.   Thank you.  I promised you that we would show you how the

Page 11749

 1     evacuation started because you asked for that previously.

 2             THE ACCUSED: [Interpretation] Could it now please be displayed.

 3     D55, page 29, paragraph 105.  Thank you. [Microphone not activated]

 4             THE INTERPRETER:  Microphone, please.

 5             THE ACCUSED: [Interpretation] This is Bezruchenko's report.  This

 6     is a document that he wrote as a Prosecution expert.  Thank you.  So

 7     could we have paragraph 105.

 8             MR. TOLIMIR: [Interpretation]

 9        Q.   I'm going to quote it:

10             "UNPROFOR started evacuation from Zepa on the 25th of July.  In

11     the afternoon of the 25th of July, French Battalion 2 of Sector Sarajevo

12     sent a medevac convoy to Zepa for evacuation of the wounded."

13             And now my question:  Did UNPROFOR take part in this, in the

14     evacuation of the wounded from Zepa?  Thank you.

15        A.   Yes, we did.

16        Q.   Thank you.  Have a look at line 6 of paragraph 105.  This is what

17     it says:

18             "Another convoy reached Zepa at 2300 hours on the 25th of July

19     but did not participate in the evacuation of civilians.  The second

20     convoy for the same purpose was blocked near Sarajevo at the first VRS

21     check-point after the airport between 500 hours to 1200 hours and then

22     left for Zepa without an Egyptian APC as was demanded by the VRS."

23             Now, this is my question:  Had another special unit of UNPROFOR

24     arrived in Zepa in order to provide security to the evacuation effort?

25     Thank you.

Page 11750

 1        A.   I don't remember.

 2        Q.   Thank you.  On the hill of Boksanica, is that where that special

 3     unit was stationed, where the negotiations between the two sides on the

 4     separation line took place?

 5        A.   I don't remember a special unit.  I remember bringing in extra

 6     forces which were provided by the French.  The exact number, again, I

 7     can't recall.  If that's what you're referring to, again I don't remember

 8     the dates on which they deployed.  We've already seen evidence of them

 9     being withdrawn in early August.

10        Q.   Could you please say whether the Army of Republika Srpska asked

11     you not to send APCs to Sanicari [as interpreted] in Republika Srpska in

12     order for the asphalt not to be damaged because we could not repair it

13     during the war.  Thank you.

14        A.   No, I don't recall that either.

15        Q.   Thank you.  Let's not --

16             THE ACCUSED: [Interpretation] "Sanicari" was not recorded.  But I

17     can show, if necessary, a document in which the Main Staff is asking

18     UNPROFOR not to send such vehicles.  We can deal with that perhaps if we

19     have time tomorrow.

20             MR. TOLIMIR: [Interpretation]

21        Q.   Please tell us whether this French unit that arrived at Boksanica

22     was part of the rapid deployment force.  Thank you.

23        A.   No, it wasn't.  It came from Sector Sarajevo.

24        Q.   Thank you.  Do you remember who the commander of this unit was

25     and what his name was?  Thank you.

Page 11751

 1        A.   I don't recall, no.  No, I don't.  No, I don't remember.

 2             THE ACCUSED: [No interpretation]

 3             THE INTERPRETER:  Microphone, please.

 4             MR. TOLIMIR: [Interpretation]

 5        Q.   Could you please have a look at paragraph 106 of this document.

 6     Thank you.  It reads as follows:

 7             "UNPROFOR Sector Sarajevo report for the 26th of July described

 8     the situation as follows:

 9             "In accordance with the order of UNPROFOR commander and decision

10     of sector commander, our units took part in the evacuation of wounded

11     people from Zepa to Sarajevo and civilian population to Kladanj.  This

12     process is on-going."

13             161 is the document that was quoted by Prosecution expert

14     Mr. Bezruchenko and you can see that, 161, and you can see its ERN number

15     down there in the footnote.  Thank you.

16             Now, did UNPROFOR, as is stated here, take part in the evacuation

17     of the wounded and the civilian population?  Thank you.

18        A.   Yes.

19             JUDGE FLUEGGE:  Mr. Tolimir, I think it was the fourth or fifth

20     time that you asked this question.  You should avoid pure repetitions.

21             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I'm not

22     going repeat that question any more because the witness gave a clear

23     answer.

24             MR. TOLIMIR: [Interpretation]

25        Q.   Could you please look at the third sentence in paragraph 106, the

Page 11752

 1     last line:

 2             "General Tolimir respected the evacuation agreement and that BSA

 3     apparently was seeking to complete the evacuation on the 26th of July."

 4             And there is a document about that in footnote 162.  This is

 5     information provided by G2 SHQ on the 26th of July, 1995.  Thank you.

 6     Can you see this and can you confirm that such reports arrived in

 7     Sector Sarajevo and the command of UNPROFOR in Sarajevo?  Thank you.

 8        A.   I can see what's written in that paragraph and that their

 9     reference to Sector Sarajevo reports, which as I've said before, is a

10     subordinate command to mine.

11        Q.   Thank you.

12             THE ACCUSED: [Interpretation] Could we now have paragraph 109 of

13     this report of Mr. Bezruchenko, who was an expert of the OTP.

14             MR. TOLIMIR: [Interpretation]

15        Q.   This is what he says in paragraph 109:

16             "On the 26th of July, 1995, President Izetbegovic sent a message

17     to Palic, demanding to put under control those soldiers who were going to

18     surrender.  The message also contained a vague promise to arrange an

19     exchange."

20             And now we're going to read the content of the message:

21             "There is information that a certain number of your soldiers is

22     moving towards the village with the intention of surrendering.  I do not

23     know if this is correct.  Warn them about the danger and put them under

24     control.  Negotiations about exchange are in progress.  We have enough

25     arguments to obtain good conditions of exchange because we keep a great

Page 11753

 1     number of their prisoners, but we have to be careful what we are doing.

 2     And something else, important, burn all archives and letters."

 3             End of quotation.  Greeting, Alija Izetbegovic, Sarajevo, the

 4     26th of July, 1995.  This telegram was sent from Sarajevo to Zepa at

 5     16.45 and that is what is referred to in footnote 165.  And also the ERN

 6     number of the document on the basis of which the expert came to this

 7     conclusion is noted.

 8             Please tell us whether Alija Izetbegovic was stopping soldiers

 9     from acting in accordance with the provisions of the agreement and

10     reaching the UNPROFOR base in Zepa and handing over their weapons?

11        A.   Are we still referring to the document that you showed me this

12     morning as the agreement?

13        Q.   Thank you.  I'm referring to the agreement on disarming, the one

14     I showed you this morning several times.  And now we are reading what

15     Alija Izetbegovic says about that agreement.  So could we please hear now

16     whether it is clear on this basis that he was stopping some of the

17     soldiers from reaching the centre and acting in accordance with the

18     agreement as was stated in paragraph 6 [as interpreted] of that decision

19     you saw a moment ago?  Yes, the decision of the War Presidency, that all

20     military-aged men surrender their weapons.  D51, I can show that again,

21     and P736, and that is a reference.

22             JUDGE FLUEGGE:  This again is the problem, Mr. Tolimir.  We have

23     discussed and seen at least three so-called agreements.  Now you are

24     referring to the decision of the War Presidency of the

25     27th of July, 1995.  This is P736 and not D51.  You should be clear in

Page 11754

 1     your questioning, and the witness asked for that, to make clear to which

 2     of these three different agreements you are referring.

 3             I take it now that you were referring to the decision of the

 4     War Presidency of the 27th of July, 1995, which is not an agreement about

 5     demilitarisation.

 6             THE ACCUSED: [Microphone not activated]

 7             THE INTERPRETER:  Microphone, please.

 8             JUDGE FLUEGGE:  Microphone.

 9             THE ACCUSED: [Interpretation] I said D51.  That is the agreement

10     that the witness saw this morning.  And in addition to the agreement, it

11     is regulated by the decision that you refer to a moment ago, so I don't

12     have to repeat that.

13             These two documents regulate what the soldiers are going to do.

14     I now read what Alija Izetbegovic wrote.  Did he stop the soldiers from

15     reaching the centre of Zepa and disarming in accordance with the

16     provisions of the agreement and decision on disarmament.  Thank you.

17             JUDGE FLUEGGE:  Again, Mr. Tolimir, this is not clear, at least

18     to me.  You put first the question, please tell us whether

19     Alija Izetbegovic was stopping soldiers from acting in accordance with

20     the provisions of the agreement.  We have dealt with three agreements and

21     you, now again, at least you were referring to two agreements.  You

22     should be very clear in your questioning.  Which agreement do you mean

23     now?  D51 or P736?  And if you do that, please put it on the screen.

24     Otherwise, it will help nobody in understanding the answer of the

25     witness.

Page 11755

 1             THE ACCUSED: [Interpretation] Thank you.  Could the witness

 2     please remember what Alija wrote to Palic in paragraph 109 and then can

 3     we have D51 placed on the screen.  Thank you.  Thank you.

 4             MR. TOLIMIR: [Interpretation]

 5        Q.   We see this now, that this is the agreement of the 24th of July.

 6     Thank you.  And we also see paragraph 2 that we read out this morning:

 7             "Avdo Palic shall issue an order to his troops to withdraw from

 8     the defence line and refugee groups together with the population and from

 9     the centre of settlements/villages, and not to try to cross illegally

10     through the territory of Republika Srpska."

11             Thank you.  In that telegram of the 26th that we saw, did

12     Alija Izetbegovic stop the process of surrender of the military-aged men?

13     And it says here, "moving towards the village."  And it says, "I don't

14     know how that is developing and place them under control."

15             Is he actually stopping the soldiers from acting in accordance

16     with the agreement reached on the 24th between the

17     Army of Bosnia-Herzegovina and the Army of Republika Srpska?  Thank you.

18        A.   What he is saying to Palic is that he want to be -- he wants him,

19     Palic, to get all of his command under control.  And the reason for that

20     is because he's heard that some of them are intending to surrender.  And

21     warn them of the dangers of doing so.  And then goes on to tell Palic

22     that negotiations are underway.

23             The -- the tone of this is that he, President Izetbegovic, and

24     Palic, are setting out to do something that does not involve

25     surrendering.  I hear that other people in your command, is what he's

Page 11756

 1     saying, are setting out to surrender.  I'm not convinced from this that

 2     Izetbegovic knows of this agreement of the 24th of July.  He might have

 3     done, but I'm not convinced from the tone of his message that he knows

 4     that Palic has signed up to everybody surrendering at paragraph 2 of that

 5     agreement.

 6        Q.   Thank you.  Mr. Smith, please, let us have a look at paragraph 85

 7     now.

 8             JUDGE FLUEGGE:  Mr. Tolimir, you should look at the time.  You

 9     are already five minutes past our time-frame.  We can't go on and on.  We

10     should adjourn for the day at a certain point in time.  As always, I

11     don't want to interrupt you, but you yourself are responsible for

12     recognising the time.

13             Mr. Thayer.

14             MR. THAYER:  Mr. President, I don't want to extend it any second

15     longer than we have to, but we had an 11-hour time estimate which we've

16     got no problem with.  We obviously lost some time with technical

17     difficulties, I went over about half an hour.  We thought we were going

18     to be able to conclude General Smith's testimony in the four days.  I

19     sincerely doubt we'll be able to if the Defence takes its full 11 hours.

20     So I don't know the General's schedule, but for our witness planning

21     purposes as well, it's helpful for us to know where we're headed,

22     schedule-wise, into next week.

23             JUDGE FLUEGGE:  To let the parties know, Mr. Tolimir has now used

24     6 hours and 10 minutes for his cross-examination.

25             Mr. Tolimir, can you give us an estimation of the remainder of

Page 11757

 1     your cross-examination?

 2             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I think

 3     that we will be done with the cross-examination by the 11 hours that we

 4     had announced.  We are not going to ask for longer hours.  Thank you.

 5             JUDGE FLUEGGE:  That makes it clear that we have to continue next

 6     week.  It is not possible to finish tomorrow.  Is that for the moment

 7     enough for you, Mr. Thayer, for your planning purposes?

 8             MR. THAYER:  Mr. President, we aren't in a position to speak with

 9     General Smith except indirectly through VWU about his schedule and they

10     can take care of that, but I wanted to make sure that we all understood

11     what the future was going to look like, particularly the witness.

12             JUDGE FLUEGGE:  Sir, would you be available next week?

13             THE WITNESS:  It is possible, Mr. President.  I would need to

14     make a telephone call later on this afternoon and check my diary, but I

15     think it might be possible.

16             JUDGE FLUEGGE:  We would appreciate that to enable Mr. Tolimir to

17     conclude his examination in the estimated time.

18             Thank you very much for your understanding.  We have to adjourn

19     for the day, and we'll resume tomorrow morning at 9.00 in this courtroom.

20                           [The witness stands down]

21                           --- Whereupon the hearing adjourned at 1.53 p.m.,

22                           to be reconvened on Thursday, the 24th day of

23                           March, 2011, at 9.00 a.m.