Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11758

 1                           Thursday, 24 March 2011

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.03 a.m.

 5             JUDGE FLUEGGE:  Good morning.

 6             The Chamber is seized of the Prosecution's motion for the

 7     testimony of a certain witness to be heard via videolink.  I was told

 8     that the Defence is in a position to respond to this motion orally.

 9             Are you, Mr. Tolimir, prepared to respond this morning in the

10     courtroom?  Mr. Tolimir doesn't have a proper translation.

11             Mr. Gajic, did you receive interpretation?  The problem is

12     solved, I was told.

13             MR. GAJIC: [Interpretation] I hope so.

14             JUDGE FLUEGGE:  I have to repeat.  Is the Defence in a position

15     to respond to this Prosecution's motion?

16             Mr. Gajic.

17             MR. GAJIC:  [Interpretation] Yes, Mr. President.  We will give

18     our oral response.  If I'm not mistaken, it concerns a Prosecution motion

19     of the 18th of March of this year concerning a witness; I don't know if

20     it's a protected witness so I don't want to mention his name.  In any

21     case, the Defence position is that we will leave it entirely in your

22     hands.  I was only asked by Mr. Tolimir to tell you that the only thing

23     we don't want to happen is that this videolink testimony becomes standard

24     practice.

25             JUDGE FLUEGGE:  Thank you very much.  I think there is no --


Page 11759

 1     there's no need for being worried because we have up to now heard nearly

 2     100 witnesses and this is the first time that the Prosecution filed such

 3     a motion.

 4             The Chamber will consider the application.

 5                           [Trial Chamber confers]

 6             JUDGE FLUEGGE:  The Prosecution's motion of the 18th of March in

 7     relation to Witness Ramiz Husic, he is not a protected witness, is

 8     granted.  The necessary arrangements should be made.

 9             The witness should be brought in, please.

10                           [The witness takes the stand]

11             JUDGE FLUEGGE:  Good morning, sir.  Please sit down.

12             THE WITNESS:  Thank you.

13             JUDGE FLUEGGE:  Welcome back to the courtroom.  Thank you for

14     your patience.  I have to remind you that the affirmation to tell the

15     truth still applies.

16             Mr. Tolimir is continuing his cross-examination.

17             Mr. Tolimir.

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

19     peace reign in this house.  I'd like to greet everyone including

20     Mr. Smith, and may today's proceedings be concluded in keeping with God's

21     will and not my own.

22                           WITNESS:  RUPERT ANTHONY SMITH [Resumed]

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

24        Q.   [Interpretation] Mr. Smith, yesterday we discussed all of the

25     topics concerning Zepa.  You mentioned that I was involved with some


Page 11760

 1     prisoners on a number of occasions, thus hindering an exchange

 2     all-for-all.  Do you recall having stated that and that you wished to

 3     discuss it further?

 4        A.   I don't recall stating it that you were hindering an exchange in

 5     the way that you've expressed it there, and I certainly didn't say I

 6     wanted to discuss it any further.

 7        Q.   Thank you.  Then I apologise.  Yesterday I asked you if you

 8     recalled those prisoners you mentioned returned immediately prior to

 9     crossing over to Muslim-held territory and that that piece of information

10     arrived from the command of the forces in charge of the operation.  The

11     information was to the extent that the Muslims refused to surrender.  It

12     was on the 28th.  Were you familiar with that?

13        A.   You -- I'm not familiar with the particular issue that you're

14     discussing.  I don't know this case, the particular case that you're

15     talking about.  I would need reminding and then I might find I knew.  But

16     I don't see how this is connected with the previous question.

17        Q.   Thank you.  I will try to make the link.

18             THE ACCUSED: [Interpretation] Could we please see D173 which is

19     Edward Joseph's statement.  Page 4, paragraph 19.  Thank you.

20             MR. TOLIMIR: [Interpretation]

21        Q.   We can see the statement and we'll look at para 19 in both

22     versions.  I will read it out.  I quote Mr. Joseph:

23             "The previously-mentioned group of slightly wounded men boarded

24     probably the last bus.  I recall them being a group of 12.  As they were

25     of military age, they were problematic in terms of evacuation.  Viktor


Page 11761

 1     and I went to General Tolimir of the VRS who was in this area of the

 2     centre of town.  I asked him if he would allow these 12 to go through the

 3     Serb-controlled territory without being disturbed and he clearly replied

 4     yes."

 5             This is probably the group in question.  You received information

 6     from your associates that I approved for them to leave and that the group

 7     was later returned.  I wanted to ask you this:  Did you know that this

 8     group on the last day, the 28th, was returned from the separation line

 9     between Muslims and Serbs in Kladanj where they were supposed to cross

10     over into ABiH territory because it was at that point in time that we

11     learned that not all Muslims wished to lay down their weapons, and it was

12     then ordered that any further implementation of the agreement be halted?

13        A.   I didn't know that what you have just stated had occurred, nor do

14     I have any evidence that it did occur.  All I reported in my statement,

15     as I recall it, is that I was told that you had removed a number of

16     people from a bus, that is to say, a number of wounded soldiers from a

17     bus.

18        Q.   Thank you.  Did you know that General Mladic ordered for all

19     those who came to Zepa handing over their weapons be exchanged and the

20     same thing went for all those who were implementing the agreement in full

21     and abiding by his instructions?

22        A.   I did not know it as you have stated it there.  I knew that we

23     were evacuating these people.  And my understanding was that once they

24     were on the bus, they were clear to go.

25        Q.   Thank you.  Tell us this, please, your personnel in Zepa


Page 11762

 1     monitoring and assisting with the evacuation, did they report to you that

 2     anyone was held in Zepa by the VRS and that someone was prevented from

 3     leaving?

 4        A.   Yes.  Amongst others I was told that you were holding Palic.

 5        Q.   Thank you.  We will see that.  There were witnesses here

 6     testifying to that effect.

 7             THE ACCUSED: [Interpretation] Let us see the list which is P434

 8     in e-court.

 9             MR. TOLIMIR: [Interpretation]

10        Q.   While we're waiting for it, can you tell us whether you knew that

11     Palic was held by the VRS following the entire evacuation and that he was

12     taken to Boksanica?  He was then handed over, but not to me; he was

13     handed over to the Rogatica Brigade.

14        A.   My memory of what I knew at the time was that he was -- I was not

15     allowed to see him or talk to him and that my understanding is that he

16     had probably been shot.

17        Q.   Thank you.  When you were there he was probably still with the

18     convoy because he escorted each and every one.  We will see now that he

19     was not finally killed and we'll see that in Mr. Bezruchenko's report

20     once we are done with the document I initially asked for.

21             Have a look at this document, please, and the list of POWs.  It's

22     an OTP document.  All those who were held back following the Muslim

23     refusal to honour the agreement and that they were all registered by the

24     ICRC on the 28th.  They were all put in a jail.

25             I'm reading the first paragraph:


Page 11763

 1             "Since the 28th of July, 1995, the following Muslims have a

 2     status of prisoners of war placed in the military holding centre in

 3     Rogatica:"

 4             The following persons are on the list.  We see them here.

 5             THE ACCUSED: [Interpretation] Could we please go to the next page

 6     for the witness to see.  We can even go to page 3.

 7             MR. TOLIMIR: [Interpretation]

 8        Q.   Forty-five persons so far.  Let's go to the next page, please.

 9     There is a reference to their health in item B.  And then we can see that

10     they were all accommodated there, including Avdo Palic, in the

11     penultimate paragraph.  The pseudonym used for him is "Atlantis," as the

12     OTP stated when presenting this document.  It's stated here that he was

13     placed in a different location.

14             THE ACCUSED: [Interpretation] Could we go to the last page of the

15     document now.

16             MR. TOLIMIR: [Interpretation]

17        Q.   This was drafted by Captain Zoran Carkic.  He also referred to

18     Avdo Palic and he stated that they were all registered on the 28th.  In

19     this report we can also see, if we look at the penultimate paragraph,

20     that some people had their personal items taken away and that I

21     personally ordered an investigation in order to establish who took away

22     their possessions so that the person in question could be appropriately

23     sanctioned.

24             It reads as follows:

25             "The above-mentioned Muslims complained to General Tolimir and


Page 11764

 1     myself, saying that it was done by men under the command of a short man

 2     with black hair wearing a black beret and limping.  It is obvious that it

 3     is Lieutenant Matic, who at the moment of separation of the Muslims came

 4     to the spot and carried out searches in the school and in the yard of the

 5     school.  General Tolimir demanded that this case be investigated and

 6     money found."

 7             Given that the person in question was from the Drina Corps who

 8     was Carkic's superior, I personally requested of him to specifically

 9     mention my request in the report.  Did you know that on the 28th all of

10     them were placed in detention, registered by the ICRC, and put on a list?

11        A.   No, I didn't.  I knew that the ICRC, who had no responsibility to

12     report to me, but they had told me that they had seen some people at

13     about this time.

14        Q.   [Microphone not activated]

15             THE INTERPRETER:  Microphone, please.

16             MR. TOLIMIR: [Interpretation]

17        Q.   We will have a look at what Mr. Bezruchenko had to say about it,

18     who was there.

19             THE ACCUSED: [Interpretation] It is D55.

20             MR. TOLIMIR: [Interpretation]

21        Q.   He stated that everyone was informed --

22             THE ACCUSED: [Interpretation] Let's look at paragraph 117 of the

23     document before us.  "The Fall of Zepa" drafted by Mr. Bezruchenko as an

24     investigator of the OTP.  It is page 33, paragraph 117.

25             MR. TOLIMIR: [Interpretation]


Page 11765

 1        Q.   On the 28th of July, the commander of the 285th Brigade

 2     Avdo Palic was in VRS custody as General Tolimir reported that the

 3     285th Brigade commander Avdo Palic provided information about the

 4     minefields in Zepa."

 5             In the footnote he refers to a particular document; it is

 6     footnote 174.  Did Mr. Bezruchenko tell you that Avdo Palic was detained

 7     on the 28th?  Could you have heard that from him?

 8        A.   I'm sorry, I -- where does that -- where is the bit about --

 9             JUDGE FLUEGGE:  We should go back one page in the English.

10             THE ACCUSED: [Microphone not activated]

11             THE INTERPRETER:  Microphone, please.

12             JUDGE FLUEGGE:  May we have paragraph 117 again.

13             THE WITNESS:  Ah, I've got you.  No, he didn't tell me, and I

14     don't know that he knew that on the 28th of July.  He's compiling a

15     report of reports.  I don't know when he found out the information in

16     paragraph 117.  It certainly doesn't say that he knew it on the

17     28th of July.

18             MR. TOLIMIR: [Interpretation]

19        Q.   Thank you.  Did you know that Mr. Edward Joseph testified that he

20     followed the vehicle in which Mr. Avdo Palic was taken to Boksanica from

21     the centre of Zepa?  He stated that he was with Bezruchenko.  They were

22     with Avdo Palic up until the moment he was handed over to the

23     Rogatica Brigade.

24        A.   I didn't know that, no.

25             JUDGE FLUEGGE:  Mr. Thayer.


Page 11766

 1             MR. THAYER:  Mr. President, good morning.  I'd like a transcript

 2     cite for that proposition.  If I understood it correctly, the General's

 3     position, what he's putting to this witness, is that Ed Joseph and

 4     Viktor Bezruchenko were with Avdo Palic until he was turned over to the

 5     Rogatica Brigade.  I'd like a transcript cite for that.

 6             JUDGE FLUEGGE:  Mr. Tolimir, are you able to provide us with a

 7     reference?

 8             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I can't

 9     provide you with that.  I recall what Mr. Joseph said while testifying;

10     he said that Avdo Palic was arrested in the UNPROFOR base and was then

11     taken to Boksanica hill.  He also stated that he and Bezruchenko followed

12     the vehicle.  I just wanted to ask him about that particular detail,

13     whether they told General Smith of their knowledge of Palic's arrest.  As

14     for his exact words, I can't quote them now.  I just wanted to know

15     whether they conveyed that information to him since they were on the

16     spot.  The witness is now saying they did not.  Perhaps someone else

17     could locate that particular transcript page.  I could go back through my

18     notes, given sufficient time though.

19             JUDGE FLUEGGE:  Mr. Tolimir, you just said, "The witness is now

20     saying they did not."  This was not the answer of the witness.  The

21     witness said he doesn't know and didn't know, if I recall correctly.

22             THE WITNESS:  I knew that Palic had been taken by the Bosnian

23     Serbs.  That ... someone told me that.  It could have been Joseph or

24     Viktor.  But what I don't know is the -- is the point that, you know, I

25     do not know it in the form that the question was posed to me.


Page 11767

 1             JUDGE FLUEGGE:  Indeed.  That was my understanding of your

 2     answer.

 3             Mr. Tolimir, it is always helpful for the parties and the Chamber

 4     to give a reference from which part of the transcript or document you are

 5     quoting or referring.  Therefore, please bear that in mind.  Continue,

 6     please.

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

 8     gladly do so at the earliest possible opportunity.  I can't come up with

 9     it right now.  I'm sorry.

10             Could we now go back to one of the documents we saw a moment ago.

11     In Mr. Bezruchenko's report, we referred to paragraph 123 yesterday, I

12     believe.  Could we please have it on the screen to jog the witness's

13     memory.  I won't quote from it.  I simply have a question about it and

14     about the detainees held by the Rogatica Brigade.  We can see paragraph

15     123 now.

16             MR. TOLIMIR: [Interpretation]

17        Q.   We could see that according to the Muslim sources of the

18     30th of July everyone had pulled out from Zepa.  You can recall the

19     document we saw stating that they went to Serbia, et cetera.  My question

20     is this:  If they had all left from the protected area in Zepa as stated

21     by Bezruchenko based on ABiH documents and if they were all registered in

22     the detention unit as referred to in P1434, which we just saw because we

23     could see their first and last names, there were 35 -- sorry,

24     45 registered prisoners, then is there a possibility that the

25     representatives of UNPROFOR and civilian authorities were not in Rogatica


Page 11768

 1     on the 28th and that the ICRC was?  The ICRC registered them?  Did you

 2     know that en route to Rogatica one needs to pass by that detention

 3     facility?

 4        A.   Let me answer the last question first.  I knew that there was

 5     the -- a possible site, detention site, in Rogatica and that you would

 6     pass it.  I don't -- I can't speak for the ICRC and what dates they were

 7     there.  They are an independent body.  And I don't know if the civil

 8     affairs people from UNPROFOR were there on the 28th or not.  What I can

 9     say is that I was trying to make sure that every person in Zepa was

10     accounted for and so I would like to think that my people and the ICRC

11     were trying to locate these people and register them.

12             JUDGE FLUEGGE:  For the clarity of the record, Mr. Tolimir, you

13     just mentioned P1434.  In fact, we saw the document P434.  Probably you

14     misspoke.  Please carry on.

15             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I must

16     have misspoken.  I often do that, permutations of numbers.  The number is

17     as you had put it.  Thank you.

18             MR. TOLIMIR: [Interpretation]

19        Q.   Thank you, Mr. Smith.  Were you informed that after the 30th, as

20     paragraph 23 [as interpreted] says and as the army wrote, there were no

21     soldiers or civilians left in Zepa after the 30th?  Did you have

22     information to that effect from any source whatsoever?  Thank you.

23        A.   I can't remember with the precision as to the dates.  We'd have

24     to look at the documents coming from my headquarters.

25        Q.   Thank you.  At any rate, can you answer the question?  On the


Page 11769

 1     30th were there any Muslims in Zepa?  The 30th of August, were there any

 2     soldiers or were there any civilians there?  Thank you.

 3        A.   Do you mean August or July?

 4        Q.   August, August.  Thank you.

 5        A.   I don't think there were any civilians in Zepa on the

 6     30th of August, that is to say, Bosnian civilians.

 7        Q.   Thank you.  I promised you the day before yesterday that I would

 8     show you a document which shows that on the 30th of August you bombed the

 9     hill of Zlovrh in Zepa and you could not remember that.

10             THE ACCUSED: [Interpretation] So I would now like to ask for

11     1D689 to be displayed in e-court.  Thank you.

12             JUDGE FLUEGGE:  Mr. Tolimir, perhaps it is a translation issue.

13     I don't think that it is appropriate to say "you bombed" the mount

14     Zlovrh.

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

16     apologise.

17             MR. TOLIMIR: [Interpretation]

18        Q.   UNPROFOR allowed the bombing using NATO air force.  Now we're

19     going to show what the document says.  I accept your suggestion and your

20     words of caution, thank you.

21             As this document has not been translated, I would read out part

22     of the first paragraph.  This is what it says; this is a report of the

23     command of the 1st Podrinje Light Brigade, that's the Rogatica Brigade,

24     of the 30th of August, 1995.  It was sent to the command of the

25     Drina Corps and it is entitled, "Regular Combat Report."  And it says:


Page 11770

 1             "This morning around 2.30 NATO air force bombed a facility

 2     which -- in which the centre for communications was stationed previously

 3     at Zlovrh.  The Ustashas had torched the facility and over the past 10

 4     days it was used for -- for our unit which was searching and checking the

 5     territory with a view to mopping up remaining enemy forces in the former

 6     enclave of Zepa.  At the moment of the air-strikes in the building, there

 7     were a total of 14 soldiers.  In the immediate vicinity, three air-bombs

 8     fell.  One such bomb hit the building itself and as a result 10 soldiers

 9     in the building were killed, whereas four soldiers survived, however they

10     were seriously injured."

11             And then the soldiers who were killed are listed.

12             Please, can you respond.  Why was Zlovrh bombed at that point in

13     time?  Why were these soldiers killed when in Srebrenica -- sorry, I

14     misspoke, Zepa, when in Zepa on the 30th of August there weren't any

15     Muslim forces there, the evacuation was over?  This is one month later.

16     Thank you.

17        A.   The -- as I said two days ago, I think it was, I don't recall the

18     targets that were attacked on the 30th of August or, for that matter, the

19     complete argumentation as to why they were chosen.  This particular

20     series of attacks had no direct relation to the enclave of Zepa itself.

21     It was to do with the mortaring of Sarajevo and the consequence -- the

22     actions that took place thereafter were a consequence of the decisions

23     made at the London conference which were communicated to you.

24        Q.   Thank you.  This is my question:  Is Zepa in the immediate

25     vicinity of Sarajevo?  How far away is it, do you know?  And can Sarajevo


Page 11771

 1     be mortared from Zepa?  Thank you.

 2        A.   The answer to your questions is, no, it's not in the vicinity of

 3     Sarajevo; I do not know how far away it is; and with the weapons

 4     available to the Bosnian Serb forces, you couldn't mortar Sarajevo from

 5     Zepa.  However, you are not hearing or taking account of my answer to the

 6     previous question.  You have to recall what you were told about the

 7     decisions of the London conference to properly answer or to frame the

 8     questions that you're asking.

 9        Q.   Thank you.  I had asked you whether the decisions of NATO and of

10     the London conference were verified by the Security Council and you said

11     that you did not remember.  Do you remember today perhaps, and do you

12     have a different answer today compared to yesterday?  Thank you.

13        A.   No, I do not recall if they were verified by the Security

14     Council.  And the NATO decisions weren't made at the London conference.

15        Q.   Thank you.  Were procedures changed regarding air support,

16     air-strikes, et cetera, at the London conference?  Were procedures for

17     making decisions on air-strikes, protection, et cetera, were they

18     changed?  Thank you.

19        A.   As I've told you, the decision was made to put the authority to

20     initiate air-strikes into the hands of the military commanders and in

21     NATO and the UN, and the force commander was, as it were, given back the

22     key.

23        Q.   Thank you.  If you were given a key, did that mean that you could

24     hit Republika Srpska at random or did you have to abide by a certain

25     procedure in terms of target selection?  Thank you.


Page 11772

 1        A.   Targets were chosen -- were not chosen at random.

 2        Q.   Thank you.  This target in Zlovrh where there were no Muslim

 3     forces whatsoever and where there was no conflict at all, was it chosen

 4     randomly?  Thank you.

 5        A.   I've just said they were not chosen at random.  And we were not

 6     attacking the Muslim forces.

 7        Q.   Thank you.  I understand that, that you were not attacking Muslim

 8     forces, because they were co-operative.  This was a co-operative

 9     democracy that punished only those who were not co-operative.  Could you

10     please tell us why you did not target Muslim forces?  And there were more

11     reasons for that; there were more attacks in Zepa itself against UNPROFOR

12     and in terms of the disarming of UNPROFOR, everything we discussed

13     yesterday.  Thank you.

14        A.   We were not attacking Muslim forces because they had not violated

15     the safe area of Sarajevo.

16        Q.   Yesterday I read out a document to you.  When they disarmed an

17     entire Ukrainian company in Gorazde, was that not reason enough to bomb

18     them?

19        A.   And I explained that it was not.

20        Q.   Thank you.  Do the procedures say that you can use fire-power

21     only against targets from which there was firing in order to protect the

22     forces that are carrying out the air-strikes and that are asking for air

23     support by way of their own self-defence?  Thank you.

24        A.   No, they didn't say that.  And let me say it again:  After the

25     London conference, the decisions made -- and let me start again.


Page 11773

 1             At the London conference, the decisions that were made was that

 2     should a safe area and in particular attack on the civil population in a

 3     safe area occur, then air power was to be used and to be initiate -- and

 4     the use of it to be -- it was to be initiated by the military commanders.

 5     And air power would be used to enforce, if I recall the correct -- the

 6     words correctly, that until the safe area was and the exclusion zones

 7     around it were fully re-established.

 8        Q.   Thank you.

 9             THE ACCUSED: [Interpretation] Can we have document 1D686 now.

10     Let us see what it says regarding legal grounds for NATO operations.

11             JUDGE FLUEGGE:  Mr. Tolimir, are you tendering the document we --

12     you have just used and which was on the screen, 1D689?

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

14     thought of tendering it.  Thank you.  I would kindly ask that it be

15     admitted.  Thank you.

16             JUDGE FLUEGGE:  It will be marked for identification pending

17     translation.

18             THE REGISTRAR:  Your Honours, 65 ter document 1D689 shall be

19     assigned Exhibit D187 marked for identification pending translation.

20     Thank you.

21             JUDGE FLUEGGE:  Mr. Tolimir.

22             THE ACCUSED: [Interpretation] Thank you, Mr. President.  Can we

23     now have 1D686 in e-court.

24             MR. TOLIMIR: [Interpretation]

25        Q.   This is a document of the BH command for Sarajevo.  It was


Page 11774

 1     written on the 15th of August, 1994.  It had to do with heavy weaponry in

 2     various locations where it was kept so that it wouldn't be used.  Thank

 3     you.  We see it now on our screens.

 4             Let us now please look at the second paragraph of this document.

 5     I'm going to read it out:

 6             "At the present moment there is no legal basis (NAC resolution)

 7     for any NATO action against weapons outside the TEZ firing into the TEZ

 8     unless they are firing at targets inside Sarajevo city.  NATO

 9     air-strikes -- air attacks can only be used against confirmed heavy

10     weapons within the TEZ that are not withdrawn on order or endangering the

11     security of UNPROFOR personnel."

12             Thank you.  On the basis of this, this is my question:  Was any

13     member of UNPROFOR or any safe area under threat from the hill of Zlovrh?

14     Thank you.

15        A.   Can I see the rest of this document, please.

16        Q.   Thank you.  It's a very lengthy document; it has ten pages.  It

17     is ten pages long.  I will let you take a look at it during the break and

18     then we can discuss it once we are back from the break.

19        A.   Okay.

20        Q.   Could you please just say whether at the moment of attack was any

21     UNPROFOR unit or any member of UNPROFOR, any safe area, endangered from

22     Zlovrh?  You can say that without reading the document, can you not?

23        A.   I -- the -- they were not directly endangered by forces in that

24     position of Zlovrh.  But I keep coming back to the point that that isn't

25     the basis on which the actions at the end of August were undertaken.  It


Page 11775

 1     was based on the decision made at the London conference, which allowed

 2     for a much wider interpretation of the exclusion zone policy.  Which was

 3     communicated to you and your headquarters either at the end of -- by the

 4     end of July or early August.

 5        Q.   Thank you, Mr. Smith.  I said that we would continue discussing

 6     the legal basis for the application of force once you read the document.

 7     I am just asking about what happened at Zlovrh when ten soldiers were

 8     killed and four wounded.  Was that the case or was it something else?

 9     Was it retaliation?

10        A.   I'm not clear what the question ... You were discussing a

11     particular case and you were asking me about targeting decisions, and I

12     thought I'd answered that.

13        Q.   Thank you.  What was not interpreted to you is whether this was

14     retaliation; that's the word I used.  Retaliation.  Is that why Zlovrh

15     was targeted?

16        A.   As I've said to you, I cannot recall the argumentation behind the

17     choice of the targets in -- at the end of August.

18        Q.   Thank you.  We see that today a decision was made to stop all

19     air-strikes in Libya and on the other hand each and every mortar in Libya

20     is being hit; is this part of that co-operative policy or is it about

21     something else?  Thank you.

22             JUDGE FLUEGGE:  Again, like yesterday, I would remind you that we

23     are only dealing in this case with events happening in the former

24     Yugoslavia.  If you need a discussion of principles, you should do that,

25     but not in relation to any event happening around the world.


Page 11776

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

 2     asked -- I mean, the point was co-operative democracy that is being

 3     introduced by way of tomahawks.  Egypt, Lebanon, Yugoslavia, Bosnia;

 4     those are the examples I wanted to give.  It is very important for this

 5     case why Republika Srpska was bombed.  Was it bombed because it was not

 6     co-operative vis-ā-vis NATO members that had air power or was it bombed

 7     for some other reason.  Well, thank you, I understand you.  I'm not going

 8     to ask if it has nothing to do with this case, but it does have something

 9     to do with this case.  Thank you.

10             JUDGE FLUEGGE:  Sir, can you answer the question?

11             This was the essence of your argument: Was it bombed because it

12     was not co-operative vis-ā-vis NATO members that had air power or was it

13     bombed for some other reason?

14             That was the essence of the question.  Perhaps you are able to

15     answer this question.

16             THE WITNESS:  I can say that the actions of the UN and NATO at

17     the end of August were a direct result and reaction to the mortaring of

18     the marketplace in Sarajevo which killed a large number of civilians.

19             MR. TOLIMIR: [Interpretation]

20        Q.   Thank you.  You just mentioned the Sarajevo marketplace.  Do you

21     perhaps recall the letter that General Mladic sent to you in which he

22     told you that a commission was being established that would investigate

23     how come the explosion took place in the marketplace?

24        A.   I can recall exchanges with General Mladic at that time which

25     included the idea of establishing a Joint Commission.


Page 11777

 1        Q.   Thank you.  Can you recall your own communique and Mladic's

 2     communique and all the communiques then, namely that at the time no one

 3     knew who had fired the shell?  And your assumption was -- or, actually

 4     Mladic said in his letters to you that no one fired this shell, that it

 5     was the Muslims themselves who committed this massacre in order to open

 6     the door for NATO to strike?

 7        A.   I didn't make any assumptions.  I carried out my own

 8     investigation, and I decided beyond reasonable doubt that the

 9     Bosnian Serbs had fired the mortar rounds that had killed these people.

10        Q.   Thank you, Mr. Smith.  Please, were you a ballistics expert?

11     Could you conduct an investigation yourself without ballistics experts

12     and without the warring parties that could contribute to an all-embracing

13     high-quality investigation?  Thank you.

14        A.   I am not a ballistic expert.  I -- however, I was the competent

15     authority and the person that was required to decide, and I had a staff

16     to support me.

17        Q.   Thank you, Mr. Smith.  Do you cover every decision on the basis

18     of that competent authority, or should there be arguments and proof that

19     would make it possible for you to resort to force?  Because that is not a

20     minor matter.  Thank you.

21        A.   Are we now talking generally or about that specific case?

22        Q.   Thank you.  We were talking about this specific case where -- and

23     a comprehensive investigation should have been carried out so that there

24     would not be all these manipulations so many years later to this day

25     because the investigation had not been completed.  Thank you.


Page 11778

 1        A.   I am content with the decisions that I made at the time.

 2        Q.   Thank you, Mr. Smith.  Did you know beforehand what would be

 3     bombed when and did you make decisions about that too?

 4        A.   I don't -- do you mean say -- are you asking me whether targets

 5     had been prepared against this eventuality?

 6        Q.   Thank you.  I'm asking you this:  Were there cases in which you

 7     chose targets beforehand, planning air-strikes on them?

 8        A.   In my headquarters this was not being done.  I believe, but you

 9     would need to get a NATO officer to confirm or deny this, that they had

10     prepared a number of target lists.  This doesn't mean that you would

11     attack them; it was so that you had the information available,

12     particularly to do with air defences.

13        Q.   Thank you.

14             THE ACCUSED: [Interpretation] Could we please have a look at

15     1D635.  Once we have, I'll have a question for you.

16             MR. TOLIMIR: [Interpretation]

17        Q.   We are about to see 1D635.  It is a document of the State

18     Security Service Department of Gorazde of the 2nd of July, 1995.  They

19     are reporting of the contact they had on the 1st of July, 1995, in the

20     evening with the UNPROFOR commander.  In the second paragraph they say:

21             "On that occasion Colonel John conveyed to us that Karadzic's

22     terrorists, in order to relieve the burden of their forces around

23     Sarajevo, will carry out an attack in the area of Sapna and Kalesija in

24     the course of the next few days (he didn't know what the precise date

25     would be).  The area in question is nearby Tuzla."


Page 11779

 1             In the last paragraph, it is stated:

 2             "We mention that -- we also mention that Colonel John Riley in a

 3     similar situation in mid-May 1995 told us that on a certain day Tuzla was

 4     to be shelled, which proved correct.  We have acquainted you with that

 5     subsequently."

 6             My question is this:  Did you through these British sources pass

 7     on information to the Muslims about certain things which would -- which

 8     might be taking place that you allegedly had information on?

 9        A.   No, I didn't.

10        Q.   Thank you.  Can you see here that in the last paragraph it reads:

11             "He told us or he conveyed an information -- information to us

12     that Tuzla would be shelled on a particular day.  He was proven to be

13     correct."

14             And we also had this presumption that Sapna and Kalesija would

15     come under attack and that certain measures were being planned because of

16     that.  Later on we'll see that Sapna and Kalesija were not attacked but

17     that there was an attack from the protected area of Tuzla on the entire

18     area of the Drina Corps, and I will present information about the

19     casualties involved.

20        A.   I can't see that; it's in Serb or Serbo-Croat.  But I'm -- I

21     would observe that because there is a coincidence it doesn't mean to say

22     that there's a cause.

23        Q.   Thank you.  Can you tell the Chamber how did you know that on a

24     particular day Tuzla would be shelled, which is why you later on applied

25     air-strikes?


Page 11780

 1        A.   I don't know.  And this document, as you're reading it to me,

 2     doesn't say I know.

 3        Q.   Thank you.  It says that this colonel said, this British colonel,

 4     told you that and that he had learned that -- well, I'll refer you

 5     exactly because I haven't read the entire document.

 6             This British officer is reporting to the forces in Gorazde about

 7     certain activities in Tuzla.  That is why I'm asking you whether you knew

 8     and whether the British intelligence knew that on a certain day Tuzla

 9     would be shelled, which would then be used to carry out air-strikes and

10     retaliate against Republika Srpska in areas such as Zepa.

11        A.   I've told you, I don't know, didn't know.

12        Q.   Thank you.  I want to read out the first paragraph, since we do

13     not have a translation and I apologise for it.

14             "We wish to inform you that on the 1st of July, 1995, in the

15     evening we were invited to sit down by the UNPROFOR commander in Gorazde,

16     Colonel John Riley.  His explanation was that he was prepared to offer

17     some information to us again by way of a telephone conversation with

18     General Smith."

19             My question is this:  Did he receive the information I just

20     referred to a moment ago through that telephone conversation with you?

21        A.   I keep telling you, I don't know.

22        Q.   Thank you.  Were you in telephone contact with Colonel John Riley

23     around that time on the 1st of July, 1995; can you recall that?

24        A.   I don't think I was.  I think I am on -- going on leave.

25        Q.   Thank you.  Did you know that Edward Joseph testified?  He stated


Page 11781

 1     that many targets were bombed because the Serbs were targeting Tuzla.

 2        A.   I didn't know he'd said that, no.

 3             JUDGE FLUEGGE:  Mr. Thayer.

 4             MR. THAYER:  Again, I just want a transcript cite for that,

 5     please.

 6             JUDGE FLUEGGE:  Mr. Tolimir, can you give us -- Mr. Tolimir, can

 7     you give us a reference to a transcript page or to a document?

 8             THE ACCUSED: [Interpretation] I asked him whether he knew that

 9     Mr. Joseph, when testifying in these proceedings, stated that some

10     air-strikes came about --

11             JUDGE FLUEGGE:  Mr. Tolimir, I know that you asked that.  It is

12     recorded.  This is another question.  I wanted to ask you, and I repeat

13     it, can you give us a reference in the transcript of the testimony of

14     Mr. Joseph?

15             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I cannot

16     off the cuff.  If the witness does not recall that, I will not put any

17     further questions on the topic.  I just wanted to know whether he

18     remembers it and whether he knew.

19             JUDGE FLUEGGE:  Mr. Tolimir, the witness was not present when

20     Mr. Joseph testified.  If you want to put a certain part of the testimony

21     of Mr. Joseph to the witness and ask him about this specific context, you

22     should put that part of the transcript on the screen and then ask the

23     witness about it.  Otherwise, it's a waste of time.

24             Mr. Thayer.

25             MR. THAYER:  And, Mr. President, I'm in no great need to see a


Page 11782

 1     particular page of a transcript if we can just have some specificity as

 2     to what General Tolimir is talking about.  If he's talking about

 3     air-strikes which were conducted on the 25th and 26th of May, as the

 4     Trial Chamber has heard considerable evidence about, then he can put that

 5     level of detail to General Smith, rather than generally referring to the

 6     testimony of some other witness and putting a completely vague

 7     proposition to him.  He's talking about events and an alleged

 8     communication in July from a Muslim MUP report that may have some

 9     connection to May, but we can't tell from the question what he's talking

10     about.  So my request for a transcript cite can be mooted if we just have

11     some specificity in the question itself.

12             JUDGE FLUEGGE:  Thank you for this addition.  In my view that was

13     not necessary because I want to see the specific part of the transcript

14     and especially the witness should know what the other witness testified

15     about.

16             Mr. Tolimir, bearing that in mind, you should continue.

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

18     bear that in mind.  During the break I will find it in my notes.  As you

19     may recall, I intentionally asked him whether it was carried out because

20     of Pale and whether the Tuzla event was in May.  He said it was not.  He

21     then said that the targets were targeted in such a way.  In any case, for

22     the sake of precision, we'll find it over the break and we'll show it to

23     General Smith, because it was stated that targets were targeted because

24     of Tuzla later on.

25             JUDGE FLUEGGE:  To clarify this statement, I would like to know


Page 11783

 1     what you mean if you said "I intentionally asked him whether it was

 2     carried out because of Pale."  Are you referring to this current witness,

 3     Mr. Smith, or to the other witness?  I don't understand this statement.

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

 5     referring to Mr. Joseph so as to remind the Chamber that it took place in

 6     these proceedings recently.  The date of the strike was disputed and

 7     there was some discussion about whether it was because of Pale or Tuzla,

 8     and then I asked him whether the Tuzla event took place in May, and he

 9     said no, that it was in August.  He was trying to point out that these

10     were two separate events.  We'll find that reference.  And Mr. Thayer

11     asked for the same thing then, to provide an exact reference.  I do not

12     object to that, but I don't wish to waste any further time until I have

13     that reference.

14             MR. TOLIMIR: [Interpretation]

15        Q.   My next question is this:  Did the British intelligence service

16     forward information to the warring parties such as in this case about

17     certain activities and plans of the enemy and whether they forwarded

18     official information from the field to either of the sides?

19        A.   I was a United Nations officer and as far as I'm aware, certainly

20     United Nations officer as the -- sorry.  The United Nations and UNPROFOR

21     did not pass information to either party about the other party.  And I

22     cannot speak for the actions of the British government in these

23     circumstances.

24        Q.   Thank you.  Does it mean that this piece of information which he

25     specified as having learned in a conversation with you that on a certain


Page 11784

 1     day Tuzla would be shelled and that an air-strike would follow, did it

 2     come from the British intelligence service or was it based on the

 3     activities in the field which you observed and conveyed to the opposing

 4     side?

 5        A.   I've told you already, I have no idea where he got had this piece

 6     of information from or even that it is correctly reported that he had

 7     this information.  And I don't think you've told me that an air-strike

 8     was to follow any of these attacks when you read out bits from this

 9     document.

10        Q.   Thank you.  I showed you a document referring to it.  I have

11     others in which we can see that it was this particular channel of

12     British -- the British intelligence which was used to pass on information

13     to the Muslim side.

14             Was it customary to provide information to one of the parties

15     about the other party about its military activities?  And I'm asking you

16     this because you were the UNPROFOR commander and must have been familiar

17     with it.

18             JUDGE FLUEGGE:  Mr. Tolimir, the witness answered this question

19     already, that he was a United Nations officer and that he cannot speak

20     for the actions of the British government in these circumstances.  Please

21     carry on.

22             THE ACCUSED: [Interpretation] Thank you.  That is why I asked him

23     whether this piece of information came from the British government or

24     whether it was gained by UNPROFOR forces by having observed activities in

25     the field, and he can answer with a yes or no.


Page 11785

 1             JUDGE FLUEGGE:  Mr. Tolimir, the witness answered already that he

 2     can't comment on this document because he has no knowledge about it.

 3             THE ACCUSED: [Interpretation] Mr. President, I understand you.

 4     But his name is mentioned.  The source, this British colonel, says that

 5     he was told about that by General Smith.  That is why I'm asking it.  In

 6     any case, I will abide by your instruction and I will move on to the next

 7     question.

 8             MR. TOLIMIR: [Interpretation]

 9        Q.   Did you know that in the first on-site investigation in Tuzla it

10     was concluded that the shell was fired from a distance of 21 kilometres?

11     It struck Tuzla, causing a number of civilian casualties.  Based on that,

12     a member of the VRS was prosecuted.  Did you know that?

13        A.   I -- you've lost me completely.  Which of the many cases of Tuzla

14     being shelled are we talking about?

15        Q.   Thank you.  The shelling of Tuzla, when it was allegedly shelled,

16     when over 80 people were killed in the centre of town.  Do you recall

17     that event and the date?

18        A.   I remember an actual case of Tuzla being shelled.  It's

19     associated with the bombing in May.  I think it's the night of the day we

20     first bombed the ammunition depot at Pale.  And it can't have been

21     alleged if you then prosecuted somebody.  It would appear to be proven.

22     But I didn't know that that had occurred, that is to say, the

23     prosecution.

24        Q.   Thank you.  Did you know that in the first official on-site

25     investigation, the results of which were handed over to a court,


Page 11786

 1     Colonel Djukic was sentenced?  He is serving his sentence now.  The

 2     conclusion of the investigation was that the shell came from

 3     21 kilometres away.

 4        A.   I didn't know that.

 5        Q.   Thank you.  Did you know that the Defence managed to prove that

 6     the zone of 21 kilometres was the exclusion -- within the exclusion zone

 7     and that it was actually in Muslim-held territory?  It could not have

 8     come from Serb-held territory.

 9        A.   Again, I don't know it.

10        Q.   Thank you.  Did you know, then, that there was a retrial a decade

11     later and that a new expert was engaged by a Bosnia-Herzegovina court who

12     apparently concluded that the shell had come from a distance of

13     28 kilometres?

14        A.   Again, no, I don't know.

15        Q.   Thank you.  Did you -- do you know that the very expert testified

16     in the Radovan Karadzic case?  He was a protected witness.  He was asked

17     why ten years later he reconstructed the scene in which he established

18     that the shell had come from a 130 millimetre cannon which was to the

19     front of the lines.

20        A.   No, I didn't know it.

21        Q.   Thank you.  As a soldier, do you know that 130 millimetre cannons

22     are never put at the front and that artillery pieces are deployed in

23     depth to a distance at least two-thirds of range so as not to be exposed

24     to enemy artillery fire?

25        A.   I know that such theories abound, but I personally have moved


Page 11787

 1     artillery right forward into the -- with the leading elements of my

 2     attack, even on some occasions ahead of them.

 3        Q.   Thank you.  Did you know that in the Karadzic case it was

 4     established that the shell was thrown off the roof of a nearby building

 5     and that on the footage it could be heard someone -- someone could be

 6     heard saying that the stabilizer fins should be brought which had been

 7     left on the roof?  That was in a conversation between the people

 8     recorded.

 9        A.   I don't know this about the Karadzic case.

10        Q.   Thank you.  Did you know that the results of investigations are

11     still pending concerning the incident in Tuzla and that it is unknown

12     precisely how the shell was activated or the direction from which it

13     came?  However, you seem to have used that as a basis for your conclusion

14     to carry out air-strikes.

15        A.   I didn't know that the -- that there was an investigation pending

16     on the incident in Tuzla, and I'm at a loss to understand this is

17     connected with a decision by me about air-strikes.

18        Q.   Thank you.  Well, a moment ago you said that you targeted Pale

19     over Tuzla; is that correct or have I misunderstood?

20        A.   I haven't said anything of the sort.

21        Q.   Did you say a moment ago that you decided to target the warehouse

22     in Pale because Tuzla had been shelled?

23        A.   I didn't say that a moment ago.  The continuing attack on the

24     ammunition depot in Pale in May, that is to say, the second attack, was

25     because the weapons were still not back in the weapon collection points


Page 11788

 1     and there had been this further shelling of the safe areas and -- of

 2     which one case of this had been the attack on Tuzla.

 3        Q.   Thank you.  So there is a link between the shelling of Pale and

 4     Tuzla?

 5        A.   I didn't shell Pale; I bombed an ammunition depot near Pale.  And

 6     Tuzla had been attacked after I had started the bombing.  And I had

 7     started it because the exclusion zone regime had broken down and my

 8     demands that the weapons were put back into the safe -- into the weapon

 9     collection points were not being heeded.

10        Q.   Thank you.  While this document is still on the screen, can you

11     tell us how come that you on the 2nd of July, 1995 -- sorry, the

12     1st of July, spoke with John Riley, and how did you know that on a

13     certain day Tuzla would be shelled?  You announced that beforehand.  How

14     are we to understand that, this announcement of yours?  And it is still a

15     number of dispute so many years after the war.  Some people were

16     prosecuted and sentenced, still serving their sentences, and many more

17     were killed.

18        A.   I don't understand how you're connecting an event that is

19     reported to have happened that I don't know anything about on the

20     1st of July is connected with events that we've just been talking about

21     which are going on at the end of May.

22        Q.   Thank you.  This is what it says:

23             "We would like to note that in a similar situation in mid-May

24     Colonel John Riley conveyed to us information to the effect that on a

25     certain day Tuzla would be shelled, which proved to be true, and about


Page 11789

 1     which we provided you with timely information."

 2             How come you know everything in advance, even individually-fired

 3     shells, and then that is used as a basis for air-strikes?  Thank you.

 4     That was my question.

 5        A.   Your question to me is wholly and utterly illogical.  It is based

 6     on the assumption that the document that you have on the screen is --

 7     that I cannot read and that you have read to me and has been translated,

 8     is actually factually correct.  I have no idea whether this document is

 9     correct in what it states or not.

10             Secondly, and even if it is -- he did warn them that this would

11     happen in Tuzla in May and it then did happen, I do not see that the --

12     necessarily that there is a connection.  There is maybe a coincidence,

13     but there's no evidence of any connection whatsoever.  And apart from my

14     name being mentioned in this document, I don't see that I have a hand in

15     it at all.

16             JUDGE FLUEGGE:  Mr. Tolimir, we must have our first break now.

17     And we will resume at 11.00.

18                           --- Recess taken at 10.32 a.m.

19                           --- On resuming at 11.03 a.m.

20             JUDGE FLUEGGE:  Yes, Mr. Tolimir, please continue.

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

22             I would like to move to the next document.  But before that I

23     would like to tender this one.

24             JUDGE FLUEGGE:  Mr. Tolimir, I have a problem with this.  We

25     don't have a translation.  We don't know anything about the content


Page 11790

 1     except those parts you have read out in the courtroom.  And this witness

 2     couldn't give any knowledge, any -- provide us with any knowledge about

 3     the content in this specific document.  He said he doesn't know anything.

 4     Perhaps you should reconsider your position and offer this with another

 5     witness.  I'm not sure if we have heard anything about this document,

 6     about the authenticity and the content.

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

 8     John Riley is not going to testify and this document mentions only

 9     John Riley and this witness, maybe we could now mark it for

10     identification because this document is very important for me.  It speaks

11     about the information at the disposal of the General, and I think that

12     this is important.  Thank you.

13             JUDGE FLUEGGE:  Thank you.

14             Mr. Thayer.

15             MR. THAYER:  Mr. President, I think we can see, as the

16     Trial Chamber has already pointed out, there are in fact two sources

17     behind this document.  It is a document emanating from the, I believe,

18     the Bosnian MUP summarizing a conversation allegedly with this

19     Colonel Riley who allegedly is in turn summarising a conversation he

20     alledgedly had with General Smith.  Now, there's nothing to prevent

21     General Tolimir from calling Colonel Riley or whoever this other

22     individual is who signed had this document.  There's nothing to prevent

23     that from happening and from Colonel Riley coming into this courtroom and

24     testifying about this document.  So to say that Colonel Reilly is not

25     going to testify in this case is not necessarily the case.  I just want


Page 11791

 1     to point that out so General Tolimir fully understands what his rights

 2     are as an accused in this courtroom.

 3             JUDGE FLUEGGE:  Thank you.  The Chamber will mark this document

 4     for identification at a later stage in this trial.

 5             THE REGISTRAR:  Your Honours, 65 ter document 1D635 shall be

 6     assigned Exhibit D188 marked for identification pending further

 7     identification.  Thank you.

 8             JUDGE FLUEGGE:  Mr. Tolimir, the Chamber would like to know the

 9     reason why you stated that Colonel Riley will not testify in this

10     courtroom.

11             THE ACCUSED: [Interpretation] Thank you.  I said it because he is

12     currently not on the witness list.  And the only two protagonists of this

13     event are John Riley and General Smith.  General Smith said that he

14     didn't remember this conversation and that's why I stated what I stated.

15     Thank you.

16             JUDGE FLUEGGE:  But indeed, Mr. Thayer pointed out that

17     Colonel Riley is not listed as a witness for the Prosecution, but we

18     don't know anything about your Defence case yet.  And if you are willing

19     to call him or other people who could testify about this document, it is

20     purely in your hands.  You may decide by yourself.

21             Do you want to comment on that, Mr. Tolimir?

22             THE ACCUSED: [Interpretation] Thank you.  There is no need for me

23     to comment anything.  If it's necessary, we don't have to use this

24     document at all.  However, it is very important because it speaks about

25     the sequence of the events that led to the bombardment.  It says that


Page 11792

 1     information was received that on a certain day Tuzla was going to be

 2     shelled, and that's exactly what happened later.  And the investigation

 3     about this is still being dragged on.  So if you don't want it, I don't

 4     have anything against it.

 5             JUDGE FLUEGGE:  Mr. Tolimir, this is not the matter we are

 6     discussing at the moment.  It's only the question if you are calling any

 7     witness to testify about this document.  For instance, Colonel Riley.

 8             Mr. Thayer, I saw you on your feet.

 9             MR. THAYER:  Yes, Mr. President.  I suppose this is as good a

10     time as any to offer, I think, an observation that has gained some

11     currency in the last hour or so of General Tolimir's cross-examination.

12     And that is, especially in the context of a self-represented accused, I

13     think it is important that he understand that unless and until either a

14     witness adopts something that is put to him in a proposition by

15     General Tolimir or sheds some light on the proposition, be it from a

16     document or from a statement from General Tolimir, or somebody connected

17     with that document comes and testifies, then simply stating the

18     propositions that we have heard in the last hour or so that something was

19     concluded in the Karadzic case, for example, that there are open

20     investigations still pending, all of these statements from the accused

21     without being adopted in any fashion by the witness have zero evidential

22     value.  And I think it's important that he not be under any

23     misunderstanding that when he simply makes those kinds of statements that

24     they carry no evidential weight unless and until there is some evidence

25     that is given by a witness in connection with the document of some sort.


Page 11793

 1     Because we heard a torrent of these characterisations, particularly so, I

 2     think, in the last hour referring to findings in other trials,

 3     Prosecutions, sentencings, but as yet without any factual basis

 4     whatsoever.  And when we feel the need to ask for a factual bases, as the

 5     Court is aware, we get on our feet.  But I just want to make sure that

 6     General Tolimir is under no misunderstanding about that fact as he

 7     continues his self-defence.

 8             THE ACCUSED: [Interpretation] Thank you.

 9             JUDGE FLUEGGE:  Mr. Tolimir has legal assistance.  I'm quite sure

10     that he knows about his rights and his position in this trial.

11     Nevertheless, thank you for your position, Mr. Thayer.

12             Mr. Tolimir.

13             Judge Nyambe has a question.

14             JUDGE NYAMBE:  The question is to Mr. Thayer or to the

15     Prosecution specifically.  Do we know whether John Riley would be

16     available to be present to testify in the court?

17             MR. THAYER:  I have no idea, Your Honour.  I presume if he's

18     alive and he's of sound mind and body and he's not deployed in a hot spot

19     that he can't get out of without reasonable notice, he would be available

20     to either the accused or to the Trial Chamber.  He's not on our list

21     because, as you can see, this -- this document has, in our view, very,

22     very little, if any, probative value to any issue in this case.  But like

23     any other witness, I'm sure he's available.  If he's active service in

24     particular, I think the British military has proven very co-operative in

25     making their active and retired members available for this Tribunal.


Page 11794

 1             JUDGE NYAMBE:  Thank you.

 2             JUDGE FLUEGGE:  Mr. Tolimir, please carry on.

 3             THE ACCUSED: [Interpretation] Thank you, Mr. President.  If this

 4     document is not important and has no probative value whatsoever, then why

 5     does the Prosecution stand up so much against it being tendered?  Maybe

 6     we should ask General Smith once again.

 7             MR. TOLIMIR: [Interpretation]

 8        Q.   Did you have a conversation with Colonel Riley, John Riley, while

 9     he was the UNPROFOR commander in Gorazde?  Thank you.

10             JUDGE FLUEGGE:  Mr. Tolimir, I think we received the argument

11     from the Prosecution that this witness couldn't testify about this

12     document and therefore it is marked for identification.  And the question

13     you now put again to the witness was put to the witness already and

14     answered.

15             MR. THAYER:  And, Mr. President --

16             JUDGE FLUEGGE:  Mr. Thayer.

17             MR. THAYER: -- if I may, in line with our stated policy from the

18     beginning of the trial, we've no objection to the admission of this

19     document into evidence.  My words with respect to General Tolimir's

20     cross-examination had to do with a completely different issue, and I

21     think everybody understands that.

22             JUDGE FLUEGGE:  Go ahead, please, Mr. Tolimir.

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

24     you, Mr. Thayer.  I have my legal assistant who can also give me advice.

25     Thank you to everybody.  I tendered this document pending the


Page 11795

 1     translation, of course.  But if the Court deems that it is not important,

 2     we don't have to have it in evidence at all.

 3             Now I want to move on to another document.  It's 1D634.  Can we

 4     have in e-court 1D634.  Thank you.  We have it now on the screen.

 5             MR. TOLIMIR: [Interpretation]

 6        Q.   It comes from the state security sector in Gorazde, which is part

 7     of the BiH MUP, not Republika Srpska.  And this document is again about

 8     the contacts between the members of this service and the members of the

 9     British forces in Gorazde.  And it says:

10             "Related to your request from the previous telegram, we hereby

11     inform you that in order to verify our earlier information we had a

12     conversation with Colonel Roger from BritBat.  In this conversation,

13     Roger confirmed our information that had been received from officer Allen

14     and said that they had observed the movement of forces belonging to the

15     aggressor whose strength was two or three brigades and which took place

16     in the general area of Trnovo.  He said that we shouldn't worry about it

17     because his estimate is about 1.500 to 1.600 aggressor soldiers."

18             And the last sentence:

19             "As for the situation in Srebrenica, he said that it was stable

20     and that no attack is expected on that enclave in the foreseeable

21     future."

22             Thank you.  My question is:  Did the British officers in Gorazde

23     convey the information about the VRS to the BiH army?  Thank you.

24        A.   Not to my knowledge they didn't.

25        Q.   Thank you.  More specifically, persons mentioned in this


Page 11796

 1     document, did they convey any information to the BiH army related to the

 2     movements of the VRS forces?  Thank you.

 3        A.   I'm not sure who they're referring to.  I don't recognise the

 4     names.  That doesn't mean to say they're not real people; I just don't

 5     recognise the names.  And I don't know of what this report is about.

 6        Q.   Thank you.  Did NATO have as part of its mandate to convey the

 7     information about one warring party to the other warring party?  Is that

 8     something in accordance with the NATO mandate?  Thank you.

 9        A.   I wasn't part of NATO, but I don't think it was anything to do

10     with the NATO policy at all.

11        Q.   Thank you.  I apologise, I made a mistake.  I was talking about

12     the UNPROFOR mandate.  Conveying the information about one warring party

13     to the other warring party, was that part of the UNPROFOR mandate?  Thank

14     you.

15        A.   No, that wasn't what the mandate was about at all.

16        Q.   Thank you.

17             THE ACCUSED: [Interpretation] I would like to tender this

18     document.  And, of course, it should be only marked for identification

19     pending the translation.  Thank you.

20             JUDGE FLUEGGE:  Mr. Tolimir, we are in the same position as with

21     the last document.  The witness couldn't say anything about this

22     document, about the content and the authenticity.  We only can mark it

23     for identification, not pending translation, but just for identification

24     at a later stage if you are going to use it again.

25             THE ACCUSED: [Interpretation] Thank you, Mr. President.  You are,


Page 11797

 1     of course, aware of the fact that these documents originate from the

 2     territory of the BiH army.  I cannot call any witnesses from that

 3     territory to testify on my behalf.  Even the Prosecution has problems

 4     when they call witnesses from there.  But to expect that they will come

 5     to testify on my behalf I don't think is going to happen.  Thank you.

 6             JUDGE FLUEGGE:  Mr. Tolimir, this is not correct.  You may call

 7     every witness you need for your Defence.  You may of course call

 8     witnesses who are citizens of the Republic of Serbia or of the Federation

 9     of Bosnia and Herzegovina or from the Republika Srpska, wherever you need

10     to call them, you may propose them to the Chamber.  It is your right.

11     There should be no doubt about that.

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

13     like to move on to the next document and that's the document that the

14     witness has read.

15             JUDGE FLUEGGE:  This document on the screen will be marked for

16     identification.

17             THE REGISTRAR:  Your Honours, 65 ter document 1D634 shall be

18     assigned Exhibit D189 marked for identification pending further

19     identification.  Thank you.

20             THE ACCUSED: [Interpretation] Thank you, Mr. President.  Can we

21     now have 1D686.  That's a UN document related to the heavy weaponry under

22     the UNPROFOR control and the collection points.

23             MR. TOLIMIR: [Interpretation]

24        Q.   The document speaks about the zone of the exclusion of heavy

25     weaponry.  I'm interested in the third paragraph which says:


Page 11798

 1             "It seems today that there is no legal basis for handing back

 2     heavy weapons for use inside TEZ unless they are firing at targets inside

 3     Sarajevo city.  NATO air attacks can only be used against confirmed heavy

 4     weapons within the TEZ that are not withdrawn on order or endangering the

 5     security of UNPROFOR personnel."

 6             My question is -- have you read it?

 7        A.   Yes.

 8        Q.   Does that mean that on the basis of this not even NATO wanted to

 9     act against the targets that did not present immediate danger for the

10     NATO personnel or facilities protected by NATO?  Thank you.

11             JUDGE FLUEGGE:  Mr. Tolimir, could you please help me.  The first

12     sentence you read into the record I saw on the screen; where can I find

13     the remaining parts of your quotation?

14             THE ACCUSED: [Interpretation] Thank you.  I read the third

15     paragraph.  First we see reference, then we see A, B, and C, and what I

16     was reading --

17             JUDGE FLUEGGE:  That was the first paragraph.

18             THE ACCUSED: [Interpretation] I was reading the paragraph

19     immediately below.  Immediately below C.  And I read the whole paragraph.

20     That's at least the translation that I have here at hand.  That's what I

21     can also see just below C.  That's the entire paragraph that I read.

22             JUDGE FLUEGGE:  Now I see that you first read from the third

23     paragraph on this page and then from the second paragraph.

24             Sir, do you recall the question of Mr. Tolimir?

25             THE WITNESS:  I do.  Yes, I have read the whole of this document.


Page 11799

 1     It is an internal memorandum to the headquarters in Sarajevo.  It is

 2     dated in August 1994, and it does not speak for NATO; it is saying what

 3     these staff officers who are having this internal discussion within the

 4     headquarters think NATO's -- and think the position is vis-ā-vis NATO.

 5     It does not say what NATO thinks as NATO.

 6             MR. TOLIMIR: [Interpretation]

 7        Q.   Thank you.  Now, bearing in mind this answer, this is my

 8     question:  Was the NATO resolution binding for the warring parties and

 9     was it also verified by the Security Council?

10        A.   As I think I've said, I don't recall what the resolutions and

11     their -- that were decided within the North Atlantic Council and then

12     within the Security Council, I don't remember the steps and the

13     chronology of these occasions.  But the basis on which the exclusion

14     zones and safe areas were set up were covered by the UN resolutions.

15        Q.   Thank you.  Do you remember whether the protocols that were

16     attached to the agreement about a total exclusion zone allowed for the

17     possibility that the warring parties could reuse the weapons that had

18     been taken away from them in case that it was needed for their

19     self-defence?  Thank you.

20        A.   Yes, I remember that that was part of the arrangement.

21        Q.   Thank you.  Do you remember whether VRS was attacked by the

22     BiH army at the time?  Thank you.

23        A.   At what time?

24        Q.   When you attacked the warehouse near Pale.

25        A.   And what are we saying?  That the ... I recall that there was


Page 11800

 1     fighting along the confrontation line around Sarajevo that -- and that

 2     the civil population were being shelled which is why -- by weapons that

 3     had been taken out or were being used from the weapon collection points,

 4     and it was for that reason that I wished them to be, A, cease-firing,

 5     and, B, put back into the weapons collection points.

 6        Q.   Thank you.

 7             THE ACCUSED: [Interpretation] Can we now take a look at

 8     paragraph 5; it's page 6.

 9             JUDGE FLUEGGE:  Sorry, we have -- please leave -- go back to the

10     first page of the document.  Judge Nyambe has a question in relation to

11     that.

12             JUDGE NYAMBE:  Thank you.  I just need some assistance to

13     understand the relationship between UNPROFOR and NATO before I ask my

14     next question.  What was the relationship between UNPROFOR and NATO

15     specifically in the context of this document we are looking at?

16             THE WITNESS:  What I'm about to describe to the best of my

17     knowledge covers not only this document but the events.  The

18     United Nations - I won't discuss the membership of the Security Council,

19     United Nations, and NATO; I assume knowledge - was responsible for

20     UNPROFOR and directed its actions, and the commanders of that force were

21     under the direction of the United Nations.  The NATO forces directed by

22     the North Atlantic Council, the political body, were not stationed, with

23     one or two exceptions, in Bosnia itself.  They were conducting their

24     operation in the skies above Bosnia.  So there is a -- if you like, the

25     one is superimposed upon the other in a spatial sense, but they are


Page 11801

 1     separate in their political direction and command structures.

 2             The -- I said that there were one or two members of NATO in

 3     Bosnia.  The ones that -- the one that I can remember with great clarity

 4     is the liaison officer, and I think there may have been two other people

 5     with him, in my headquarters that was a direct link to the NATO

 6     headquarters in Naples, which was the overall command for the, what NATO

 7     called the southern command, essentially the Mediterranean area.

 8             Neither was in command of the other.  This was a relationship

 9     that required co-ordination and co-operation and it was in -- and this

10     was the significance of the two keys because if you've got two

11     organisations conducting operations in and over the same space, operating

12     to different political direction, there needed to be some means of

13     bringing this together.  And the North Atlantic Council when considering

14     this command and control problem arrived at some time in early 1994, as I

15     recall, but it may have been in late 1993, with this idea that you had

16     the two keys that had to be turned but particularly in the case of the

17     safe areas and exclusion zones.

18             Does that answer the question?  Or I can develop it further if

19     you need me to, but if you would like to take me where you want to go,

20     I'll try and follow.

21             JUDGE NYAMBE:  Let's see whether for the time being if I

22     understand you correctly I'll ask you my second question.  And now it's

23     in the context of the document on the screen, where it says:

24             "NATO air attacks can only be used against confirmed heavy

25     weapons within the TEZ that are not withdrawn on order or endangering the


Page 11802

 1     security of UNPROFOR personnel."

 2             THE WITNESS:  Yes, I see that.

 3             JUDGE NYAMBE:  In your position as UNPROFOR commander, although

 4     you are not the author of this document, is that a correct

 5     categorization?

 6             THE WITNESS:  I think that was the situation in August 1994.

 7     This was how UNPROFOR understood the arrangements.  But I recall that

 8     there was considerable tension between the NATO and UN as to this

 9     interpretation of these ideas at the time.  So I think this is a -- and

10     I'm -- that is what the staff in this headquarters, and I presume that

11     this was being conducted in order to brief the then-commander

12     General Rose, but it is as you can see at the back a discussion document.

13     And the author of the document is recommending further discussion as to

14     how this is managed and dealt with.

15             JUDGE NYAMBE:  How was it eventually developed; do you know?

16             THE WITNESS:  Yes.  You can see that by the time, nearly a year

17     later, you have -- and I think air power has been used in the latter part

18     of that year, the understanding of how to do this between NATO and the UN

19     has improved, and it gets used at least two more times during the latter

20     part of 1994.  You then get the cessation of hostilities agreement and

21     then I arrive on the scene.  And as far as I'm concerned, these sorts of

22     issues don't get raised to me again.  This is one of the reasons I wanted

23     to read the whole document is that I wasn't familiar with the -- I

24     couldn't recall anything like this sort of discussion in my headquarters.

25             JUDGE NYAMBE:  Thank you very much for your clarification,


Page 11803

 1     General Smith.

 2             JUDGE FLUEGGE:  Mr. Tolimir, please carry on your examination.

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

 4     you, Judge Nyambe.

 5             Could we please show paragraph 5 on page 6 in the English version

 6     and the appropriate paragraph in English.  My legal assistant says that

 7     it is actually on the screen right now.

 8             MR. TOLIMIR: [Interpretation]

 9        Q.   I'm going to read this out in Serbian:

10             "The protocol to the WCP agreement in Sarajevo recognizes the

11     Bosnian Serbs' legitimate need for self-defence.  If their battle

12     positions along the confrontation line and the Serb civilian population

13     were attacked, it is assumed that UNPROFOR would be required to intervene

14     and use all necessary measures to stop the BiH attack," that's

15     Bosnia-Herzegovina, "or to allow the Serbs to use their heavy weapons to

16     defend themselves."

17             And now this further interpretation that this person is

18     providing:

19             "The preferred option is to allow the Serbs to remove their heavy

20     weapons from the TEZ either in total or in part initially and to allow

21     their use from outside the TEZ."

22             Now, this is my question:  Since you said a moment ago that fire

23     was coming from both sides, did the Serbs then have the legitimate right

24     to take weapons for self-defence, as the drafter of this paragraph 5 on

25     page 6 says?


Page 11804

 1        A.   The -- first of all, I repeat, this is a discussion document.

 2     This has no authority as such.  It is an internal discussion document

 3     within a headquarters.  Secondly, I have already said that there was a

 4     recognition that there was a need for the -- for both parties to have

 5     weapons in case there was a need for self-defence.  There is nothing in

 6     this that states that the weapons were to be taken without clearance by

 7     UNPROFOR.

 8        Q.   Please, why did you bomb the Serbs, then, and not the Muslims in

 9     order to stop these attacks?  Thank you.

10        A.   I told you both at the time and in this court that in -- the

11     bombing in Pale was to have the weapons put back into the weapons

12     collection point from which they had not been released by UNPROFOR and

13     were being used within the exclusion zone to shell the civil population

14     in Sarajevo.

15        Q.   Thank you.  Were the positions of the Army of Republika Srpska

16     being attacked from Sarajevo in these so-called total exclusion zones?

17     Thank you.

18        A.   There was fighting along the confrontation line, yes.

19        Q.   Does that mean that the Serbs then had the right to use their

20     very own weapons for self-defence that they had placed under your control

21     of their own volition, provided that there are no attacks launched

22     against them?  Thank you.

23        A.   I repeat:  The weapons were removed from the weapons collection

24     point without any clearance by me or from UNPROFOR and they were being

25     used to shell the civil population.


Page 11805

 1        Q.   Thank you.  Does the protocol not say that the parties can take

 2     their weapons back for self-defence?  Thank you.

 3        A.   My recollection was that UNPROFOR could release the weapons in

 4     cases where they were needed for self-defence.

 5        Q.   Thank you.  Well a moment ago you said that there was fighting

 6     along the confrontation line.  If there is fighting, is there not a need

 7     for self-defence?  Thank you.

 8        A.   No, that does not necessarily follow when you have other forces

 9     available to you.

10        Q.   Thank you.  Answer this then:  Did you bomb the Serbs although

11     they had the right to take weapons from weapon collection points for

12     self-defence?

13        A.   I'll repeat myself, I fear.  I bombed the ammunition depot at

14     Pale in -- because the weapons had been removed without any clearance

15     from UNPROFOR from the weapon collection points and were being used to

16     shell the civil population.

17        Q.   Thank you.  How can you claim that it was used to target

18     civilians when military targets were actually being hit in Sarajevo?  And

19     we will see later on in documents that they were carrying out their

20     spring offensive from the entire zone of Sarajevo and you knew that full

21     well.  Thank you.

22        A.   Is that a question?

23             JUDGE FLUEGGE:  I think so.  "How can you claim" was the

24     beginning of the sentence.

25             THE WITNESS:  Right.  Yes, I see that.  Yes, yes.  I thought it


Page 11806

 1     was a statement thinly disguised as a question.

 2             Because I was there and saw what was going on.

 3             MR. TOLIMIR: [Interpretation]

 4        Q.   Thank you.  Now, could you please look at document 1D660 and then

 5     I'm going to put a question to you so that we don't spend all this time

 6     on Sarajevo because we have quite a few other questions regarding Zepa

 7     and Srebrenica.

 8             THE ACCUSED: [Interpretation] Could the Trial Chamber please

 9     admit into evidence this document 1D686 because the witness recognised

10     it.

11             JUDGE FLUEGGE:  The witness testified about it.  He didn't state

12     that he recognised it.

13             THE WITNESS:  I did not recognise it, no.

14             JUDGE FLUEGGE:  It will be received.

15             THE REGISTRAR:  Your Honours, 65 ter document 1D686 shall be

16     assigned Exhibit D190.  Thank you.

17             THE ACCUSED: [Interpretation] Thank you.  Could 1D660 please be

18     displayed in e-court.  Here it is on the screen.

19             MR. TOLIMIR: [Interpretation]

20        Q.   What we see here is that it was written on the

21     15th of June, 1995, information on the combat situation in the area of

22     responsibility of the Drina Corps.  It is being sent to all the units of

23     the Drina Corps, and the first paragraph says:

24             "The spring Muslim offensive is still underway.  The Army of

25     Republika Srpska has successfully stopped enemy break-throughs throughout


Page 11807

 1     the territory of the republic and created" --

 2             "The Muslim spring offensive is still underway.  The Army of

 3     Republika Srpska has successfully stopped enemy break-throughs throughout

 4     the territory of the republic and created appropriate conditions for

 5     launching counter-offensives in certain operational axes."

 6             Now, this is my question -- oh, sorry, this is a bit too loud.

 7     Did you have any knowledge about the spring offensive that the Muslims

 8     were carrying out in 1995 including the date of the 15th of June when

 9     this combat report was written?  Thank you.

10        A.   I knew that they were conducting an offensive, yes.

11        Q.   Thank you.  Please look at the second paragraph from the bottom,

12     the last sentence there.

13        A.   It's not in English or anything, it's in -- you'll have to read

14     it and have it translated.

15        Q.   Thank you.  I'm going to translate the entire paragraph then:

16             "Along all other axes, our forces took energetic action and thus

17     the enemy sustained major losses and was returned to their initial

18     positions.  On this occasion, as in the case of the incursion by the

19     sabotage group in the area of Trovrha, Debelo Brdo, and Borak hill, in

20     the zone of responsibility of the 5th Gorazde Brigade, when the commander

21     of the Brigade personally led the operation of breaking up the sabotage

22     tactical group, so in the combat operations yesterday, the commanders of

23     brigades Colonel Andric and Lieutenant-Colonel Pandurevic and the chiefs

24     of staff of the 1st Vlasenica Light Brigade Major Sargic and the 1st

25     Bircanska Brigade Lieutenant-Colonel Vlacic personally led the combat


Page 11808

 1     operations in the most endangered areas (Vis, Sokolina, Memici)."

 2             My question is the following:  Did you see from this document

 3     that this spring offensive had to do with attacks from the entire part of

 4     Central Bosnia against the Drina Corps?  Thank you.

 5        A.   I don't know necessarily.  I recognise most of those names as

 6     being around -- and I'm not even sure of that now.  I'd have to look at a

 7     map to be sure that I could agree with you.

 8        Q.   Thank you.  In that case, in order for me not to read any further

 9     documents about the losses, et cetera, and not to get maps out, tell us

10     what you remember from that period and what you remember the Muslims

11     having attacked during that spring offensive of theirs.  Thank you.

12        A.   My recollection is that the spring offensive starts in March with

13     two large attacks, one in the west and one in the north-east.  These are

14     not particularly successful, if they are successful at all.  And the next

15     large event, in my memory, is an attack out of Sarajevo, which is

16     occurring at about this time, middle of June.

17        Q.   Thank you.  Tell us, then, the bombing of the depot in Pale, was

18     that de facto co-ordinated action with the Muslims who were attacking

19     along the entire front line, because the NATO air force destroyed the

20     ammunition and the reserves of the Army of Republika Srpska in that part

21     of the front line near Sarajevo?  Thank you.

22        A.   No, it was not.

23        Q.   Thank you.  Do you know what you exactly destroyed in Pale during

24     that bombing?  Or, rather, if you could tell the Trial Chamber what it

25     was that you had targeted.  Thank you.


Page 11809

 1        A.   I think I've already done this.  We attacked the ammunition depot

 2     near Pale which consisted of a number of bunkers, each in a protected

 3     band.  I don't recall how many bunkers there were in the whole of the

 4     depot.  The first attack was on two of the bunkers, if my memory is

 5     correct, furthest from Pale.  The second was on two or maybe four, again,

 6     I can't recall, the next closest ones to Pale itself.

 7             The reason the target was chosen was that it was a military

 8     target of something that I considered and the NATO command considered was

 9     of value to the Bosnian Serbs and that it would be most unlikely, being

10     an ammunition dump, to have any civilians in its vicinity.

11        Q.   Thank you.  Could you please say whether it is advisable to

12     destroy all ammunition reserves to one side when the other side is

13     attacking them from all sides along the front line and from Sarajevo?

14        A.   I wasn't interested in your relationship with another side.

15     My -- this was an attack upon the Bosnian Serbs because they had broken

16     the exclusion zone and I wanted to see, as I've explained, the shelling

17     of the civilian population to stop and the weapons put back into the

18     weapon collection points.

19        Q.   Thank you.  It seems that what I said has been misinterpreted.  I

20     said whether it is necessary to destroy all the fuel and weaponry and

21     ammunition of one warring party when it is being attacked by the other

22     warring party; is this what the Security Council authorised you to do or

23     not?  This is something I've just added to my question now.  Thank you.

24        A.   Well, we weren't attacking the fuel or at that point the

25     weaponry.  It was what I was authorised to do.


Page 11810

 1        Q.   Thank you.  Could you please just say -- you said a moment ago

 2     that you had been authorised, was that authority from the

 3     Security Council or from NATO?

 4        A.   I've explained it was from the Security Council.

 5        Q.   Thank you.  Can you tell the Trial Chamber on the basis of which

 6     resolution the Security Council approved of that attack that you carried

 7     out against the ammunition depot near Pale?  Thank you.

 8        A.   I can't recall the number of the specific Security Council

 9     resolution.  I think there were some 74 that covered my -- the whole of

10     my operation.  The -- and no Security Council resolution is as specific

11     as naming targets and time of attacks.

12        Q.   Thank you.  As concerns all the activities of NATO and UNPROFOR

13     vis-ā-vis Republika Srpska, is that something that you managed to do on

14     your own or did you have to have a Security Council resolution regarding

15     each and every point in respect of every one of the warring parties?

16     Thank you.

17        A.   I cannot speak for NATO.  I'm talking of myself as a UN

18     commander.  And I was operating within the Security Council resolutions

19     that had formed the force and given its and decided its purpose.

20        Q.   Thank you.  Could you please tell us whether the attack against

21     Pale was retaliation or humanitarian bombing, like the one that is being

22     applied now in NATO air-strikes against Libya?  Thank you.

23        A.   I am not going to make any comparisons with Libya.  This is

24     occurring some 16 years ago.  It was as I have said, to achieve the

25     cessation of the bombing -- of the shelling of the civil population in


Page 11811

 1     the safe area of Sarajevo and for the return of the weapons into the

 2     weapon collection point.

 3        Q.   Thank you.  We saw in item 5 that the side that is under attack

 4     had the right to withdraw their weapons from the collection points in

 5     order to defend itself.  How does that tally with your decision to bomb

 6     the same side?  Did you bomb the Muslim positions used to target Serb

 7     civilians and RS territory?

 8             JUDGE FLUEGGE:  Mr. Tolimir, as we have only the B/C/S text on

 9     the screen and this is from the command of the Drina Corps, I'm not sure

10     that this statement is really correct which you put to the witness.

11             Mr. Thayer.

12             MR. THAYER:  And in any event, Mr. President, I've lost count of

13     how many times this question has been asked and answered.  It's been

14     asked in different forms, different ways, from different directions, but

15     is it the same question and the same answer has been provided innumerable

16     times.

17             JUDGE FLUEGGE:  Mr. Tolimir, I'm quite sure that you will receive

18     always the same answer to your questions on this specific matter.  You

19     should be aware of the time you have at your disposal for concluding your

20     cross-examination.  Please carry on.

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

22             MR. TOLIMIR: [Interpretation]

23        Q.   Did you carry out humanitarian bombing of the RS in the period of

24     time when you bombed Pale?

25        A.   I do not understand what you mean by "humanitarian bombing."


Page 11812

 1        Q.   Thank you.  Well, you said that you wanted to protect the

 2     civilian population but from that very area where the civilians lived,

 3     attacks came against the RS.  Did you, therefore, justify your decision

 4     by humanitarian bombing, much as is done nowadays when NATO is justifying

 5     its bombing of Brindisi [as interpreted] and [as interpreted] Libya, and

 6     this also includes the forces of France?

 7             JUDGE FLUEGGE:  Mr. Tolimir, this is not a correct way of

 8     conducting your cross-examination.  You should stop comparing the events

 9     in Bosnia with nowadays events in other parts of the world.  The witness

10     answered your question several times about the reason why the bombing on

11     the ammunition depot near Pale was carried out.  Please go ahead with

12     your questions and move to another topic.

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

14     the link is very strong because all bombings carried out by NATO in

15     Republika Srpska and in Serbia and in Iraq and in Libya and in

16     Afghanistan have to do with --

17             JUDGE FLUEGGE:  I have to interrupt you, Mr. Tolimir.  I gave you

18     this guide-line yesterday and today again.  That might be your position.

19     That is a fair point.  You may deal with that but not to put this area

20     and these historical events to this witness.  He is testifying here about

21     the events in Bosnia-Herzegovina and nothing else.  Please carry on and

22     move to another topic.

23             THE ACCUSED: [Interpretation] We will then move to Bosnia and

24     Herzegovina.

25             MR. TOLIMIR: [Interpretation]


Page 11813

 1        Q.   Did the forces which carried out the bombing of RS -- of the

 2     RS support Bosnia-Herzegovina's secession from the then joint state of

 3     Yugoslavia?

 4        A.   Are you referring to NATO?

 5        Q.   Thank you.  Well I think the bombing was carried out by UNPROFOR,

 6     and NATO merely used its military force.

 7        A.   That's what I want to understand.  So you're asking me whether

 8     the United Nations supported the secession of Bosnia-Herzegovina from

 9     Yugoslavia; is that your question?

10        Q.   I asked you whether the forces which bombed the RS supported

11     Bosnia's secession from the federal state of Yugoslavia to which

12     Bosnia-Herzegovina belonged prior to the secession.

13        A.   The forces I represented and commanded in Bosnia in 1995 had no

14     political position whatsoever.  We were there, amongst other reasons, to

15     conduct the safe area policy, the exclusion zones, and so forth in

16     Bosnia-Herzegovina.

17        Q.   Thank you.  Then perhaps you can tell us why only the Serbs were

18     bombed in Bosnia-Herzegovina and in all of Yugoslavia which existed

19     before this secession.  Why were only the Serbs bombed and not the rest?

20        A.   Because the Bosnian Serbs gave cause by attacking the civil

21     population in the safe areas and by removing their weapons from the

22     weapon collection point.

23        Q.   Thank you.  Yesterday you said that you were on official business

24     in NATO when the people of Serbia were bombed.  Can you tell us why

25     Serbia was bombed for 78 days?  Why?  I certainly wouldn't like others to


Page 11814

 1     enjoy the same fate.

 2        A.   This was -- you are now referring to the Kosovo operation; is

 3     that what I am to understand?

 4        Q.   Thank you.  Yes, you understood it well.  You bombed all of

 5     Yugoslavia, Zemun, the bridges over the Danube, which had nothing do with

 6     Kosovo.

 7             JUDGE FLUEGGE:  I have to remind you, Mr. Tolimir, that the

 8     witness is here to testify as a representative of the United Nations at

 9     the time in Bosnia-Herzegovina in 1995.  Not to testify in his later

10     position as a NATO official in 1999.  This is a waste of time to deal

11     with the Kosovo conflict here in this trial.  Please carry on.

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

13     important to point out the continuity of bombing Serbs as a nation.  It

14     is very important.  If only the Serbs are being bombed in Bosnia and then

15     in Serbia, then there must have been a reason for doing so.

16             JUDGE FLUEGGE:  Mr. Thayer.

17             MR. THAYER:  Again, Mr. President, our position is we don't have

18     any objection to this line of questioning, given General Smith's

19     experience, if the answer -- or the question isn't asked 18 times.  If we

20     have -- we have no objection to it being answered once.  And if it's

21     answered, then it's left alone, and then it's not repeated over and over

22     and over again with the same answer being elicited.

23             JUDGE FLUEGGE:  Mr. Tolimir, please carry on.

24             THE ACCUSED: [Interpretation] Thank you, Mr. President.  In that

25     case, I won't ask any further questions.  I wanted to ask this of the


Page 11815

 1     witness because he held a position in the North Atlantic Treaty

 2     Organisation during the bombing of Yugoslavia and Serbia.  It wasn't by

 3     accident that I asked him that, but because he held that position.

 4             I seek to tender this document pending translation.  Thank you.

 5     It refers to the Muslim spring offensive which was confirmed by the

 6     witness.  And if we admit that, I won't have a need to go into the number

 7     of casualties and the areas covered by the offensive specifically.

 8             JUDGE FLUEGGE:  Can we please see the next page of this document.

 9     What is the basis, Mr. Tolimir, to tender this document which we can't

10     read, that is one point, during the examination of the

11     Witness Rupert Smith?  He explained his and he told us his knowledge

12     about the spring offensive and what he recalled.  We don't see any

13     relation to this document to this witness.  I have a problem with that.

14     You may call other witnesses to testify about that.  At least we should

15     have first a translation so that we can judge on that, otherwise we

16     should only mark it for identification and we will wait for a later time

17     to check it.  Are you in agreement with that?

18             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I wish

19     to continue.  I would like to ask e-court --

20             JUDGE FLUEGGE:  It will be marked for identification.

21             THE REGISTRAR:  Your Honour, 65 ter document 1D660 shall be

22     assigned Exhibit D191 marked for identification pending translation and

23     further identification.  Thank you.

24             JUDGE FLUEGGE:  Mr. Tolimir.

25             THE ACCUSED: [Interpretation] Thank you.  Could we please look at


Page 11816

 1     1D655.  It is General's statements provided on the 12th of January, 2005.

 2     He provided that information to the Dutch Institute for War

 3     Documentation, or the NIOD.  We're interested in page 1, paragraph 2, in

 4     which the General says the following.  Paragraph 2, we have it.

 5             MR. TOLIMIR: [Interpretation]

 6        Q.   The General says:

 7             "It is obvious that some information came by way of national

 8     channels, but he specified that there was no national prioritization of

 9     tasks and that is why there was no optimal national input.  The only

10     source Smith had at his disposal were the JCOs.  His personnel or staff

11     was dysfunctional because the members of the staff received orders from

12     their --"

13             THE ACCUSED: [Interpretation] Could we turn to the next page.

14             MR. TOLIMIR: [Interpretation]

15        Q.   -- "from their capital cities."

16             My question is this:  Could you explain to the Chamber how you

17     verified or checked such data received through national channels to see

18     whether they are credible and whether they reflected the interest of the

19     providing nations participating in the UN operation?

20        A.   Can I see the whole of the paragraph in the English, please.

21        Q.   Thank you.  Have a look at the rest of paragraph 2 of your

22     statement.

23        A.   This report is -- is someone summarising a long conversation that

24     I had with the team that visited.  It's their -- if you like, their

25     product from these -- this conversation, and I haven't -- I've seen it


Page 11817

 1     before, but I never saw it before it was printed and produced.  You

 2     are -- the question was, again?  Yes.  I draw a distinction here, and

 3     this is, I think, comes out in that paragraph.  I'd like to draw a

 4     distinction between information and intelligence.  And I've used and am

 5     in the habit of using the two words differently.  Intelligence being a

 6     subset, if you like, of information.  And you did get information from

 7     capitals; you were visited by people from capitals; your

 8     troop-contributing nations or the representatives of those

 9     troop-contributing nations would visit you, well, the military, and so

10     forth; and you had information in that -- from those sources.  And of

11     course, all of this was put in the balance and checked with what was

12     going on around us, just as we were briefing back to the -- these people

13     when they were visiting us but also to the -- our own superior

14     headquarters in Zagreb.

15             The -- and the more a specific a nation was about its interest,

16     and I've referred to the British in Gorazde, the more you tended to hear

17     about that interest and that particular place because they had a

18     detachment or a -- or a unit in that vicinity.

19        Q.   Thank you.  Did members of the staff at UNPROFOR command receive

20     or could they receive orders from their capitals? because it says here

21     that they did.  It was the last sentence of my quote in the first

22     paragraph or the first part of the paragraph.

23             JUDGE FLUEGGE:  Can we go back to the previous page, please.

24             THE WITNESS:  I don't think it did say that.  I specifically

25     state that there was no national tasking.


Page 11818

 1             MR. TOLIMIR: [Interpretation]

 2        Q.   Thank you.  Please look at paragraph 1.  It says here that "Smith

 3     received intelligence from the US and NATO."  Here they have in mind

 4     specific intelligence.  Could you please explain the entire sentence,

 5     bearing that in mind?

 6             JUDGE FLUEGGE:  Unfortunately we have two paragraphs number 1.

 7     Are you referring to the first number 1 or the second number 1?

 8             THE ACCUSED: [Interpretation] Thank you.  I think I said that we

 9     should look at paragraph 1 where we see the mention of NATO and the US.

10     I meant the first first paragraph.

11             JUDGE FLUEGGE:  It is that sentence which is marked by, yes, the

12     cursor.  Thank you.

13             THE WITNESS:  Again, I'm not the author of this or nor did I sign

14     it or see it when it was written, but it seems to me that the author is

15     running together answers to a number of questions that that were

16     specifically to -- or the answers were specific to certain times in my

17     time in Bosnia rather than a more general observation.  And to explain:

18     A, you can see the point I've made already that I think there's a

19     difference between intelligence and information.  That the -- and as I've

20     said, NATO was the organisation doing the targeting, that is to say, the

21     specific business of working out how to attack a target, what it looked

22     like so that the pilots and so forth could be briefed.  And that then I

23     think he's run something else together in that, as the Court knows, I was

24     involved in the British Ministry of Defence, and the job I had before I

25     went to Bosnia I was the -- on the staff in the Ministry of Defence and


Page 11819

 1     one of my responsibilities was the British contribution to this operation

 2     in the Balkans, to the UN operation in the Balkans.

 3             And so I'm now saying, I think, that -- and what he's run

 4     together into one paragraph, is that I had some understanding of what was

 5     happening from British sources when I was sitting at my desk in London.

 6     This was not available to me by the time I get into Bosnia in 1995 in

 7     January.  And I then build up this hypothesis which you've heard about.

 8             MR. TOLIMIR: [Interpretation]

 9        Q.   Thank you.  In that case, please look at paragraph 3.

10             THE ACCUSED: [Interpretation] I'd like to ask e-court to show us

11     paragraph 3.

12             MR. TOLIMIR: [Interpretation]

13        Q.   It reads:

14             "At our repeated insistence, supported by examples to the effect

15     that there was available intelligence at Codeword Cobalt level (by the

16     way, he made a note of this), Smith asserted it decidedly:  'There were

17     no forewarnings regarding an imminent attack on Srebrenica.'"

18             My question is this:  Did you receive warnings and available

19     intelligence as you said here as part of Codeword Cobalt?  And perhaps

20     you can explain to the Chamber what it stands for.

21        A.   It doesn't say I received forewarnings in this paragraph.  It

22     says the opposite.  And to this day I don't know what Codeword Cobalt is

23     or means.

24        Q.   Thank you.  In that case, can you tell us this:  When we look at

25     paragraph 2 where you mentioned the JCO, please explain to the Bench what


Page 11820

 1     it stands for, what its role was as part of UNPROFOR.

 2        A.   The JCOs were part of UNPROFOR.  They were deployed -- they were

 3     a British unit deployed from -- in -- sorry, not from, in 1994, I think.

 4     And they -- their name stands for -- the -- there was a Joint Commission,

 5     and I can't remember which of the cease-fires it was that this first --

 6     this phrase joint title, this Joint Commission, becomes used, but these

 7     people were initially employed to act as the observers and to inform a

 8     Joint Commission over the efficacy and the handling of the cease-fire

 9     that had been agreed.  As I say, this occurred in 1994 in the time of my

10     predecessor General Rose.

11             They -- their role developed and they were -- because they

12     travelled and were able to move across the confrontation lines, they were

13     a useful source of information, particularly as they were also talking on

14     a fairly regular basis to the Bosnian Serbs again in particular around

15     Sarajevo.

16        Q.   Thank you.  Since it was a British unit, was it answerable to the

17     British armed forces or only to the British UNPROFOR commander?

18        A.   They were answerable to the UNPROFOR commander.

19        Q.   Thank you.  Was Mr. Wood a member of the unit?

20        A.   It depends what time we're asking.  He was certainly a member of

21     the JCOs, and I think you're referring to a Major Wood at the time, in --

22     during the summer of 1995.  I can't remember when his tour ended.

23        Q.   Thank you.  Can you tell us whether he received his salary from

24     the British forces, since it was a British unit, or for from the UN?  And

25     also, who would pay any indemnity or benefits should anything have


Page 11821

 1     happened to him?

 2        A.   Perhaps it would help if I answered this, this command and

 3     control question, fairly fully.  Every -- the position of the UN when it

 4     wants to form -- the Security Council had decided to form the force is

 5     that it appeals to the member nations of the UN to provide forces.  These

 6     forces rest that they provide, they then become called the

 7     troop-contributing nations or a nation.  Of course, the forces that they

 8     provide owe their standing, their origins, and their legal position as a

 9     soldier to that state and its laws.  And that state is responsible for

10     them as a soldier, as a profession.  They would pay him or her and so

11     forth.

12             The UN, in cases where a nation finds it extremely difficult to

13     provide the forces because of the state of their economy, will provide

14     funds that help pay the soldier for this foreign service and the

15     alliances and so forth.  But in a military sense, this is understood by

16     the use of a certain nomenclature and principles.  And we talk, in the

17     military, and this would apply to most nations, they will -- the words

18     might change slightly, but generally the command rests with the

19     legal-founding authority.  And therefore the command in a full sense of

20     the word for his discipline, welfare, payment, and ultimate purpose rests

21     with the state that he comes from.

22             And you then hand either command or control to the other

23     authority that you've handed them to, and there's whole gradations of

24     this as to how much you hand over in the specific purposes.  And from my

25     memory, the troop-contributing nations were placing their forces under


Page 11822

 1     the UN command under the heading of operational control, by which it

 2     means that you can assign missions to them, tell them what to do and they

 3     are to do it, but they -- but the authorities for paying them,

 4     disciplining them, and so forth remains with the parent state.

 5             JUDGE FLUEGGE:  Thank you for that.  We must have our first break

 6     now -- second break now.  And we will resume five minutes past 1.00.

 7                           --- Recess taken at 12.34 p.m.

 8                           --- On resuming at 1.08 p.m.

 9             JUDGE FLUEGGE:  Mr. Tolimir, please continue.

10             THE ACCUSED: [Interpretation] Thank you.

11             MR. TOLIMIR: [Interpretation]

12        Q.   Mr. Smith, we discussed the JCOs; and in relation to this, my

13     question is:  Were you the only one who issued orders to Mr. Wood in his

14     position of the commander of the unit in order for him to be able to

15     perform his duties and carry out his tasks?  Thank you.

16        A.   Yes.  To carry out his duties and tasks in relation to UNPROFOR,

17     I was the one who gave him the orders, yes.  Or they came from me, the

18     orders that he received.

19        Q.   Thank you.  Your superior in Zagreb, was he able to issue orders

20     to him?  Or on the other hand, was maybe one of your subordinates able to

21     issue orders to him, such as Gobillard?  Or did all orders have to come

22     from you?

23        A.   My superior would have, if he wanted something done, he would

24     have requested that of me and I would have decided who and how it was

25     done.  General Gobillard when he was acting as my deputy in my absence


Page 11823

 1     could give orders to the JCOs because he was acting as commander of

 2     UNPROFOR.  And if I had placed a JCO detachment into someone else's

 3     command, then in the way I have described of how one can pass your

 4     formation, your organisations, down the hierarchy of command, then in

 5     those particular -- for those particular circumstances that commander

 6     could have given orders to a JCO detachment.

 7        Q.   Thank you.  Since you call them Joint Commission Observers, could

 8     you tell us, were they the only ones within the UNPROFOR structure who

 9     guided the planes in order for them to reach their targets?  Thank you.

10        A.   No.  There were forward air control parties for this purpose.

11        Q.   Thank you.  Were they also used to guide the planes?  Thank you.

12        A.   JCOs could and did act as forward air controllers.

13        Q.   Thank you.  And one more question on the same subject.  When they

14     were in a situation to guide the planes, were the land observers,

15     including the JCOs, in a formation with the planes, military speaking, or

16     could we say that they were the eyes and ears of the planes on the

17     ground?

18        A.   I'm not clear who these land observers you are including with the

19     JCOs; who are they?

20        Q.   Thank you.  If people who were the members of JCOs were in a

21     situation where they could guide the plane, engage in an action against,

22     say, a Serbian tank in Gorazde or Srebrenica, did they have then a direct

23     relation to targeting devices who were actually performing the targeting?

24     Thank you.

25        A.   If they were acting as a forward air controller, yes, they were


Page 11824

 1     communicating with the aircraft or, rather, with the pilot in the

 2     aircraft.

 3        Q.   Thank you.

 4             THE ACCUSED: [Interpretation] In order to act expeditiously, I

 5     would like to tender this document.  It's 1655.  His statement given to

 6     the NIOD.  Thank you.

 7             JUDGE FLUEGGE:  This is the wrong number.  It is 1D655.  This

 8     document will be received.

 9             THE REGISTRAR:  Your Honours, 65 ter document 1D655 shall be

10     assigned Exhibit D192.  Thank you.

11             THE ACCUSED: [Interpretation] Thank you.  Can we now have in

12     e-court D147.  174, I apologise.  D174.  It's a memo sent by Mr. Akashi

13     to Mr. Annan, and among the recipients we find the name of General Smith.

14     I would like to look at paragraph 2.  More precisely, 2(b).

15             MR. TOLIMIR: [Interpretation]

16        Q.   The subject is UNPF policy and information for the

17     Security Council.  Thank you.

18             Mr. Smith, this document is dated the 11th of July.  You received

19     it.  And it defines the UNPROFOR policy; we can find that in the subject

20     line.  Were all the structures within UNPROFOR bound to act in accordance

21     with the policy defined here?  Thank you.

22        A.   Can we go to the beginning of the document.  I'd like to know

23     what is -- it is.  Thank you.

24             JUDGE FLUEGGE:  And could it be, please, enlarged a bit.

25             THE WITNESS:  Okay, you can turn.


Page 11825

 1             THE ACCUSED: [Interpretation] Thank you.

 2             MR. TOLIMIR: [Interpretation]

 3        Q.   Can you give us your answer based on the first page.  And the

 4     question was:  Were all the UNPROFOR structures bound to act in

 5     accordance with this policy?  Thank you.

 6        A.   I'm still trying to understand what the policy is, so I can't

 7     answer your question.  And what it appears, from the preambular

 8     paragraph, is that this is informing Annan of what -- as to his

 9     intentions.  I don't know what these intentions fully are yet until

10     you -- I'm allowed to read the second page, please.

11        Q.   Mr. Smith, if you permit me, I'm going to ask questions based on

12     what I can read.  Because if you're going to read the whole document, we

13     are going to lose lots of time.  It's a large document, similar to many

14     other documents from UNPROFOR.

15        A.   Yeah, but you're asking me to talk about a policy.  I can't

16     answer your question till I know what the policy is and therefore can

17     then answer the question as to whether or not everyone was bound to act

18     by it.

19             JUDGE FLUEGGE:  Mr. Thayer.

20             THE ACCUSED: [No interpretation]

21             JUDGE FLUEGGE:  Mr. Thayer.

22             MR. THAYER:  Mr. President, I'd simply ask that General Smith be

23     given the courtesy that every other witness before this Trial Chamber

24     has.  He's asked to have an opportunity to read a document which the

25     accused wishes to put to him.  And if he needs extra time to do that,


Page 11826

 1     then we can perhaps give General Smith some more homework that he can do

 2     at a break.  And when he's had an opportunity to read it, he can then

 3     answer the question.  But to blame General Smith and then claim he

 4     doesn't have a lot of time, I think, is not helpful.

 5             JUDGE FLUEGGE:  Mr. Tolimir.

 6             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I have

 7     nothing against General Smith reading all the documents tendered by me.

 8     But I simply thought because, for instance, here my question is based

 9     solely on the subject where it says the UNPROFOR policy and that's all

10     that my question pertains to, nothing else.

11             JUDGE FLUEGGE:  The witness answered:

12             "But you're asking me to talk about a policy.  I can't answer

13     your question unless I know what the policy is and therefore can then

14     answer the question," and so on.

15             You received this answer.  It's not helpful just to repeat it but

16     you should rephrase it or give the witness the opportunity to read the

17     whole document whenever this is possible.  Please continue.

18             THE ACCUSED: [Interpretation] Thank you.  Then I'm going to move

19     to my following question.

20             MR. TOLIMIR: [Interpretation]

21        Q.   Was UNHCR bound to observe the UN policy?  Did this policy also

22     pertain to UNHCR?  Thank you.

23        A.   UNHCR are mentioned.  And, of course, if the UN has a policy,

24     then its subordinate organisations are trying to follow it.  But as I

25     pointed out at the beginning, this document looked like, from the


Page 11827

 1     preambular paragraph, a -- more a discussion as to what Mr. Akashi

 2     intended to do than an expression of UN policy.

 3             And we can turn again.  Thank you.

 4             On this one very quick read, I don't think this is in itself a

 5     policy document.  It is a discussion document about policy, and

 6     Mr. Akashi is reporting to his superior in New York the situation on the

 7     ground as at 11th of June.  He is describing the problems that he faces,

 8     and he's proposing or suggesting that he might do certain things.  And if

 9     this is to be done, he would like the Security Council to take certain

10     actions which he lists.  And he then -- and he finishes by asking for

11     the -- all business of the safe areas to be reconsidered or in the

12     United Nations and their commitment to this idea.

13             And he has sent this to his subordinates, of which I am one, so

14     that we understand the nature of the debate as to our future that is

15     going on around us.  To that extent, I for one when I read this, which I

16     imagine I did although I don't recall doing so, would have taken my own

17     decisions in the knowledge that this debate was going on and what

18     Mr. Akashi was proposing to Mr. Annan.

19             JUDGE FLUEGGE:  May I draw your attention to item 6 on the

20     screen, the last paragraph.

21             THE WITNESS:  Yes.

22             JUDGE FLUEGGE:  Does it show which kind of document this is?

23             THE WITNESS:  I think it does.  It is a discussion document in

24     the sense of informing his superior.  He's going to keep him closely

25     informed both of developments on the ground as well as how our thinking


Page 11828

 1     develops in Sarajevo.

 2             JUDGE FLUEGGE:  Mr. Tolimir.

 3             THE ACCUSED: [Interpretation] Thank you.

 4             MR. TOLIMIR: [Interpretation]

 5        Q.   Can you now take a look at item (b) on page 2.  I'm going to read

 6     the relevant part.  You can see it now, and it says:

 7             "UNHCR reports that 80 to 90 per cent of the population of

 8     Srebrenica (total population is 40.000) are displaced persons who fled

 9     fighting earlier in the war.  Thus they do not have long-standing ties to

10     homes and property in the enclave and will probably be interested in

11     leaving for Tuzla.  A UNHCR local staff member in Srebrenica reported

12     today that virtually everyone in the enclave wishes to leave.  The

13     UNHCR SE will discuss this issue as well as immediate humanitarian

14     requirements in a meeting tomorrow in Tuzla with the Bosnia Minister for

15     Refugees Mr. Cero.  Following consultations with the Bosnian government

16     and in order to avoid the continuing humanitarian catastrophe, agreement

17     will be solicited from the Bosnian Serbs to allow all residents of

18     Srebrenica, including all men, to leave for Tuzla if they so wish.  The

19     Dutch will be instructed to remain in the Srebrenica enclave at least

20     until arrangements have been negotiated and finalised with Bosnian Serb

21     authorities for the departure from the enclave of those people.  Ideally,

22     UNPROFOR will maintain an armed and substantial presence in the enclave

23     at least until the departure from the enclave of all those wishing to

24     leave has been completed.  This preference will need to be balanced ..."

25             And so on and so forth.


Page 11829

 1             My question is:  Did UNPROFOR command have this information by

 2     UNHCR which, as we can see, was sent by Akashi to you?  So did you

 3     receive information contained within this paragraph, more specifically,

 4     that all the inhabitants wished to leave Srebrenica?  Did you know about

 5     that?  I mean, you people who were deciding about the events that were to

 6     follow.

 7        A.   As I've said, I'm sure we received this document, and while I

 8     don't recall the precise figures or anything like that, I'm -- I was

 9     quite clear that the population wished to leave Srebrenica after the

10     enclave had collapsed.

11        Q.   Thank you.  Do you know whether VRS or, more specifically,

12     General Mladic was requested to permit the evacuation of all the

13     inhabitants of Srebrenica?  Did anybody from UNPROFOR request that?

14     Thank you.

15        A.   I don't recall that.  And it may have happened before I got back

16     from leave.

17        Q.   Thank you.

18             THE ACCUSED: [Interpretation] Well, in that case, can we take a

19     look at P991.  It's the Srebrenica video that I want to see, from

20     46:29 -- from 46:23 to 48:29.  Thank you.

21             JUDGE FLUEGGE:  Mr. Tolimir, we have still on the screen the

22     document D174.  That is not an exhibit yet.  It was tendered through the

23     Witness Edward Joseph.  It was at that time marked for identification and

24     you were given the opportunity to tender it through the current witness,

25     Mr. Smith.  Are you tendering it now?


Page 11830

 1             THE ACCUSED: [Interpretation] Of course.  Thank you,

 2     Mr. President.  But we should also keep it close at hand because we are

 3     going to use it later on again.  Thank you.

 4             JUDGE FLUEGGE:  It will be received as an exhibit, as D174.

 5             Mr. Tolimir, you may continue.

 6             THE ACCUSED: [Interpretation] Can we now have the Srebrenica

 7     video, from 46:23 to 48:29.  That's P991.  Thank you.

 8                           [Video-clip played]

 9             THE ACCUSED: [Interpretation] Thank you.

10             MR. TOLIMIR: [Interpretation]

11        Q.   You were not present there, but you now had the opportunity to

12     see it.  My question is:  Did Colonel Karremans in accordance with the

13     orders that he mentioned, orders that came from the UNPROFOR command for

14     Bosnia and from the UNPROFOR command for Sarajevo, was he tasked to take

15     care of the refugees and also to get in contact with the Serbian side in

16     relation to their situation?  Did he do that in accordance with your

17     instructions?  Thank you.

18        A.   What date was this record -- this video made?

19        Q.   Thank you.  The video was made in the evening hours of the 11th.

20     That's when Mr. Karremans invited General Mladic.  Thank you.  And you

21     saw that at the beginning General Mladic said, Here I am, what do you

22     want?  You requested me to come here.

23        A.   Yes, I did.  I saw that bit.  I wanted to know what the date was.

24     He is clearly saying that he received those orders.  I have said to you I

25     wasn't present in my headquarters on that day and I don't know in any


Page 11831

 1     great detail what orders were issued by the Bosnian -- I'm sorry, the

 2     headquarters in Sarajevo, the UN headquarters in Sarajevo.

 3        Q.   Thank you.  Please, from the moment when General Mladic accepted

 4     what Karremans had asked him for, why did the UN change its rhetoric?

 5     Why did they say that it was Mladic who carried out forcible movements of

 6     the population and when all of this is written in all the documents that

 7     Mr. Annan and you and everybody else in UNPROFOR commands knew about, and

 8     in the UN?  Thank you.

 9        A.   All of what is written?  That Mladic forcibly removed the

10     population?  Or that Karremans said this to camera on the 11th of July?

11        Q.   This is what I'm asking you.  Is Karremans telling General Mladic

12     on behalf of the civilians that they had requested to be evacuated; yes

13     or no?

14        A.   My memory of the video is that he, Karremans, is asking to

15     negotiate, or asked, for the conditions for the -- to get the people out.

16        Q.   Thank you.  Now, because it is that way, why was the rhetoric

17     changed later by UNPROFOR?  And why is it being said all the time that

18     Mladic arbitrarily carried out this evacuation from Srebrenica, of the

19     Muslims from Srebrenica, whereas he was the one who had asked him to do

20     that?  Thank you.

21        A.   Can you show me where everybody is saying that this didn't happen

22     and Mladic forcibly evacuated everybody?  What I think everybody is

23     saying, to the contrary, is that Mladic carried out this attack that led

24     to this situation.

25        Q.   Thank you.  Did the attack from this demilitarised zone against


Page 11832

 1     Mladic's population and army cause that attack and he as commander was

 2     supposed to protect that population and his own troops?

 3        A.   It was one of the reasons for carrying out the attack.  It was

 4     a -- it could be understood as the proximate cause of the attack.

 5        Q.   Thank you.  That's why I'm asking you, why was the rhetoric

 6     changed?  If in the beginning UNPROFOR is asking for evacuation, why is

 7     it later on being replaced by the term "deportation" or something like

 8     that when it was actually what UNPROFOR had been asking for?  I'm asking

 9     you, why this change in the rhetoric?

10        A.   I can't answer the reason for the -- what you call the rhetoric.

11     I would need to be given an example of what you're talking about.  But

12     what I can say is that UNPROFOR is asking for an evacuation because of

13     the consequences of the attack by Mladic's forces and the mass refugees

14     it had created specifically around the Dutch position at Potocari.

15        Q.   Thank you.  Please tell us whether you heard in this part of the

16     video when Mr. Karremans says that the Dutch would be given instructions

17     to stay in the enclave until the departure of these people from the

18     enclave is organised?  Thank you.  Did you hear that part?  Did you hear

19     him speaking about that?

20        A.   I don't remember that bit in the video, but that, indeed, as you

21     can see from the other document you've shown me, was what Mr. Akashi had

22     wanted.

23        Q.   Thank you.  In that case, I don't want us to go through all these

24     documents yet again, but could you just please tell us whether an

25     instruction had been issued to the Dutch Battalion to stay in the enclave


Page 11833

 1     until they are given other instructions?  Thank you.

 2        A.   I don't think it was couched in those terms.  The instructions

 3     were to look after the refugees and see to their -- to their evacuation

 4     with Mladic, and then your, the Dutch, evacuation would be considered.

 5        Q.   Thank you.  In that case, tell us, please, did anyone in UNPROFOR

 6     ever look at the following possibility:  That members of UNPROFOR in

 7     Srebrenica, in this case the Dutch, stay on in Srebrenica together with

 8     the civilian population after the army, as we had seen, left Srebrenica,

 9     and was that option ever offered to the population, to the Army of

10     Republika Srpska, and UNPROFOR?  Thank you.

11        A.   No, the option wasn't.  It was a wholly impractical option.  We

12     couldn't have fed all those refugees or housed them.

13        Q.   Thank you.  Wouldn't have been -- wouldn't it have been

14     reasonable for these people to have stayed at their homes and in the

15     territory where they had lived and then to have the Army of

16     Republika Srpska and UNPROFOR protect them? because, after all, the Army

17     of Republika Srpska had asked for the demilitarisation of Srebrenica.

18     Was that ever offered?  Thank you.

19        A.   The people in -- those refugees did not want to be protected by

20     the Bosnian Serb army.  They did not trust the Bosnian Serb army.  They

21     were very frightened of the Bosnian Serb army, which is why they were all

22     clustered around the Dutch base in Potocari.

23        Q.   Thank you.  Perhaps I misspoke or perhaps I was misinterpreted.

24     Was this variant ever looked at:  That UNPROFOR protect the population in

25     the territory where they lived, in their villages and houses, whereas the


Page 11834

 1     Army of Republika Srpska would not enter the zone because they had

 2     actually asked for its demilitarisation?  Thank you.  Would that have

 3     been one of the reasonable solutions, as I think it would have been?

 4     Thank you.

 5        A.   Again, I think that would have been wholly impractical in the

 6     circumstances of 11th of July and thereafter.

 7             JUDGE FLUEGGE:  Mr. Tolimir, we must come to an end for the day.

 8     Could you give us your estimation of the remaining time you need for

 9     concluding your cross-examination?  I think you used 9 hours and

10     40 minutes, approximately the time during cross.

11             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I think

12     that I'm going to finish within the time that we had asked for.  I don't

13     think I'm going to ask for any extension of time, which is not to say

14     that that will never be the case with other witnesses.  Thank you.

15             JUDGE FLUEGGE:  Thank you.

16             Sir, yesterday I asked you if you would perhaps be available next

17     week for continuation of your examination.

18             THE WITNESS:  As promised, I've made some -- I've rearranged

19     things.  I can be here for all of Monday afternoon's session.  But I'm

20     not available, at least not with any ease, for the rest of the week.

21     I've pushed the events of -- planned events of Monday into Tuesday and

22     then I'm supposed to be in another country altogether on -- at the end of

23     this week.

24             JUDGE FLUEGGE:  The Chamber appreciates your co-operation.  Thank

25     you for that.  I think I can promise you that your testimony will be


Page 11835

 1     concluded the next day of the hearing, that means on Monday.

 2             THE WITNESS:  Thank you very much, Mr. President.

 3             JUDGE FLUEGGE:  If there's nothing else -- no.  Mr. -- I see

 4     Mr. Gajic on his feet.

 5             MR. GAJIC: [Interpretation] Mr. President, I would just have a

 6     small request for the Trial Chamber.  I think that yesterday or the day

 7     before yesterday you did have some praise for Courtroom I in view of

 8     these proceedings.  The Defence would kindly ask that this courtroom be

 9     used only if it is absolutely necessary.  I think we have strong reasons

10     for that.  As for this place where Mr. Tolimir is sitting and also the

11     place where he spends his time during the break, he is handcuffed and a

12     different procedure is applied.  I've had the opportunity of seeing that

13     yesterday.

14             Also, the climate, as it were, is a bit unpleasant in this seat

15     where Mr. Tolimir is sitting.  So if the Trial Chamber accepts our

16     suggestion that we go on in Courtroom III or in Courtroom II, well, of

17     course if necessary we can conduct hearings in Courtroom I, we will not

18     be opposed to that.  Thank you.

19             JUDGE FLUEGGE:  Thank you very much for this submission.  We will

20     take that into account.  But at the moment there is no need for any

21     decision in this respect because we are scheduled to sit in Courtroom III

22     in the next week and the following weeks, as I am aware of.

23             Thank you very much to everybody.  And we have to adjourn now and

24     resume on Monday, 2.15, in Courtroom III.

25                           [The witness stands down]


Page 11836

 1                           --- Whereupon the hearing adjourned at 1.49 p.m.,

 2                           to be reconvened on Monday, the 28th day of

 3                           March, 2011, at 2.15 p.m.

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