Tribunal Criminal Tribunal for the Former Yugoslavia

Page 32153

 1                           Friday, 18 January 2013

 2                           [Open session]

 3                           [The accused entered court]

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

 5             JUDGE KWON:  Good morning, everyone.  We are sitting today

 6     pursuant to Rule 15 bis without Judge Lattanzi.  She is indisposed today.

 7             Yes, Mr. Robinson.

 8             MR. ROBINSON:  Yes, Mr. President.  If I could introduce to the

 9     Trial Chamber Elena Gencheua of Bulgaria who is one of our legal interns

10     who is sitting in during this session.

11             Also, Mr. President, we would like to address a matter in private

12     session before we begin concerning one of our witnesses for next week.

13             JUDGE KWON:  Yes, could the Chamber move into private session.

14                           [Private session]

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

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Page 32154











11  Pages 32154-32162 redacted.  Private session.















Page 32163

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7                           [Open session]

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

 9     you.

10             JUDGE KWON:  Yes, Mr. Tieger.

11             MR. TIEGER:  Thank you, Mr. President.

12             Mr. President, I wanted to raise one matter in connection with

13     the anticipated testimony of Mr. Milosevic next week, who, as the Court

14     is aware, is a significant Defence witness whose testimony is expected to

15     cover a considerable amount of ground.  He's also a witness for whom we

16     have received no draft statement or meaningful 65 ter summary.  We raised

17     that issue with Mr. Robinson repeatedly, as Mr. Milosevic's testimony

18     became increasingly imminent.  As Mr. Robinson explained to us, that

19     arose in -- at least in part from an access issue or a logistical

20     problem, the specifics of which are not significant at the moment,

21     although I will note they will probably need to be addressed for

22     similarly situated witnesses in future so that we don't have a recurrence

23     of this problem.

24             In any event, as we -- we continue to press Mr. Robinson.  We

25     sought as many alternatives as possible that would allow us to undertake

Page 32164

 1     meaningful preparation, including the submission of a list of specific

 2     issues that were expected to be raised with Mr. Milosevic and the

 3     submission of documents that would be used with Mr. Milosevic.  We have

 4     not received a list of issues or any substitute, if you will, for a

 5     65 ter summary.  We have received this -- we have received very recently

 6     a notification of more than a hundred documents, but over half of those

 7     have not been translated.  As a result, we -- despite our hopes to the

 8     contrary, it's pretty clear that we will not be in a position to

 9     cross-examine.  We raised this matter with Mr. Robinson.  He understands

10     and agrees that there is indeed a problem.  He has no objection to the

11     deferral of cross-examination, that is, the Defence would proceed with

12     the examination-in-chief and then there would be a deferral of the

13     cross-examination to give the Prosecution a reasonable opportunity to

14     prepare for it.

15             JUDGE KWON:  Mr. Robinson.

16             MR. ROBINSON:  Yes.  What Mr. Tieger said is entirely correct.

17     We don't have any problem and we think it's only fair that the

18     Prosecution should have ample time to prepare its cross-examination.  The

19     situation arose because we had no access to General Milosevic until he

20     arrived at the Detention Unit, which was only on Sunday.  And

21     Mr. Sladojevic has been proofing him this week and Dr. Karadzic will meet

22     him on Sunday, at which time we will note -- we will provide a proofing

23     note to the Prosecution and give them some information that we've been

24     able to obtain from General Milosevic.  But we realise that's not very

25     long notice.

Page 32165

 1             So we understand, and again we highlight to the Court what

 2     Mr. Tieger alluded to that the problem -- the reason we're in this

 3     situation is because the Tribunal wouldn't allow General Milosevic's

 4     lawyer to receive compensation to participate in any proofing sessions in

 5     the country where he was detained, so we had no ability to interview him

 6     until he arrived here, and the Chamber had set his arrival for only right

 7     before he gave his testimony.  And it would be useful if any efforts

 8     could be made in the future, we have about five or six other witnesses in

 9     the same situation, and the same problem will arise unless we're able to

10     advance the proofing of those witnesses.

11             With respect to the timing, Mr. President, it's -- we have two

12     witnesses scheduled to testify on Monday and we plan to start the direct

13     examination of General Milosevic on Tuesday.  And we don't have any other

14     witnesses coming next week because we're anticipating three days of

15     direct and cross-examination for General Milosevic.  And so, depending on

16     the length of time that the Prosecution might need to prepare after the

17     direct examination, one option might be to have the -- advance the direct

18     examination of General Milosevic to Monday morning and then have the next

19     two witnesses testify after his direct examination, which would give us

20     some time for the Prosecution to be preparing and so they could commence

21     the cross-examination sometime during next week.  However, if they think

22     they will need longer than a few days, then we could stay with the

23     regular order and decide when they -- it is that General Milosevic could

24     be cross-examined.

25             JUDGE KWON:  I take it it's possible on the part of the Defence

Page 32166

 1     to start the examination-in-chief on Monday?

 2             MR. ROBINSON:  Yes.

 3             THE ACCUSED:  With one reservation, I have to see Sunday how it

 4     is going to be conveyed, because I don't have any idea about that.  And

 5     another thing, another possibility, for the others -- for the other

 6     witnesses, probably they could be brought here a little bit earlier than

 7     just one week before testimony.

 8             JUDGE KWON:  I don't follow the second part Mr. Milosevic about

 9     another possibility for --

10             THE ACCUSED: [Interpretation] I better say it in Serbian.

11     Perhaps regarding the witnesses who are upcoming and are in a similar

12     situation, it would be better for them to be transferred here a bit

13     earlier, not immediately before testifying.

14             JUDGE KWON:  Yes.  Mr. Robinson made that point.

15             Yes, Mr. Tieger.

16             MR. TIEGER:  Just a note in response to Mr. Robinson's

17     suggestion, that does raise -- by itself it raises certain logistical

18     issues that would concern us to change the order, but more importantly it

19     neglects the overriding issue of the translation of the documents which

20     is a significant matter for us by way of preparation.  So that's --

21     that's a paramount concern that can't be circumvented by any scheduling

22     adjustments.

23             MR. ROBINSON:  Actually, Mr. President, with respect to the

24     documents, we're reducing --

25             JUDGE KWON:  Yes.  Yes, Mr. Robinson, please continue.

Page 32167

 1             MR. ROBINSON:  Yes, Mr. President.  We are reducing the number of

 2     documents, but so far we're down to about 80, and I think there are 37

 3     which we had sent to translation last week and we're hoping to have very

 4     soon.  But we've given them a dead-line and they may or may not be able

 5     to meet that.  So the situation of translated documents might be a little

 6     better than it is right now, but it may still be a problem.

 7                           [Trial Chamber confers]

 8             JUDGE KWON:  Points have been taken and the Chamber will see how

 9     it evolves as we proceed.  And with respect to the specific order of

10     witnesses, I would leave it to the parties.

11             Then shall we draw the blinds and bring in the witness.

12             With respect to the proofing with the witness who is detained in

13     other facilities, the Chamber once raised the possibility of doing it by

14     written correspondence.  Has it been explored at all?

15                           [The witness entered court]

16             MR. ROBINSON:  Yes, Mr. President.  In fact, we sent that witness

17     a lot of documents and he did manage to review those documents, but it

18     wasn't feasible to send him written questions and get written answers.

19     So we never were able to do that and we don't believe that that's

20     actually feasible to do.

21             JUDGE KWON:  Before we start with the next witness, you could try

22     that well in advance with respect to other witnesses, couldn't you?

23             MR. ROBINSON:  Well, Mr. President, I think proofing a witness by

24     sending him written questions and getting written answers through his

25     counsel is really not a very satisfactory way to do it because you want

Page 32168

 1     to ask questions based on the answers that they give you.  So, I mean,

 2     it's one way to collect some information, but we don't believe that it's

 3     a good way to do it and we would prefer to go to the location where the

 4     witness is with the witness's lawyer, conduct a producer proofing, and

 5     then prepare a 92 ter statement.  And we don't see why that can't be

 6     done.

 7             JUDGE KWON:  But, I take it it could save some time at least.

 8             MR. ROBINSON:  It could save some time, but it would also take an

 9     inordinate amount of time to prepare the questions, run them by the

10     counsel, prepare the answers, run those by the counsel, and then finally

11     get the final result.

12             JUDGE KWON:  I'll leave it there.

13             Good morning, sir.

14             THE WITNESS:  Good morning, sir.

15             JUDGE KWON:  If you could take the solemn declaration, please.

16             THE WITNESS:  I solemnly declare that I will speak the truth, the

17     whole truth, and nothing but the truth.

18                           WITNESS:  KW570

19             JUDGE KWON:  Sir, you will be testifying today under the

20     protective measures of pseudonym and image distortion.  Do you understand

21     that --

22             THE WITNESS:  Yes --

23             JUDGE KWON:  -- what that means?

24             THE WITNESS:  Yes, sir, I do.

25             JUDGE KWON:  If at any point in time you feel like testifying in

Page 32169

 1     private session, don't hesitate to let us know.

 2             THE WITNESS:  Thank you, sir.

 3             JUDGE KWON:  Yes, Mr. Karadzic.

 4             THE ACCUSED: [Interpretation] Thank you.

 5                           Examination by Mr. Karadzic:

 6        Q.   [Interpretation] Good morning, Witness.

 7        A.   Good morning, sir.

 8             THE ACCUSED: [Interpretation] Could we call up in e-court 1D7102

 9     without broadcasting of course.

10             MR. KARADZIC: [Interpretation]

11        Q.   Witness, sir, is the information on the screen before you

12     accurate?  Does the pseudonym match the name?  Is this you?

13        A.   It is, sir.

14        Q.   Thank you.

15             THE ACCUSED: [Interpretation] Can this be tendered under seal,

16     KW570.

17             JUDGE KWON:  Yes, we'll admit it under seal.

18             THE REGISTRAR:  Should be assigned Exhibit D2769, admitted under

19     seal, thank you.

20             THE ACCUSED: [Interpretation] Thank you.

21             MR. KARADZIC: [Interpretation]

22        Q.   Witness, sir, have you given a statement to my Defence team?

23        A.   Yes, I have.

24             THE ACCUSED: [Interpretation] Could we please call up in e-court

25     1D06277.

Page 32170

 1             MR. ROBINSON:  Not to be broadcast.

 2             THE ACCUSED: [Interpretation] Thank you.

 3             MR. KARADZIC: [Interpretation]

 4        Q.   Is this the statement you have given to my Defence team?

 5        A.   Yes, it is.

 6        Q.   Have you signed it?

 7        A.   It should be signed at the bottom, sir.  It is, indeed.  That's

 8     my signature.

 9        Q.   Have you read the statement and does it accurately reflect what

10     you've told the Defence team?

11        A.   I have read the statement and it accurately reflects what I have

12     told the Defence team.

13        Q.   Thank you.  If I were to put the same questions to you today,

14     would your answers be essentially the same as those in the statement?

15        A.   They'd be exactly the same, yes.

16        Q.   Thank you.

17             THE ACCUSED: [Interpretation] Your Excellencies, I now tender

18     this statement under Rule 92 ter and also the redacted part that we've

19     discussed, under seal of course.

20             JUDGE KWON:  First we will admit Rule 92 ter statement under

21     seal.

22             THE REGISTRAR:  Should be assigned Exhibit D2770, admitted under

23     seal.  Thank you.

24             JUDGE KWON:  Mr. Robinson, can the redacted version of his diary

25     be admitted publicly?

Page 32171

 1             MR. ROBINSON:  No, Mr. President, because it does at the very top

 2     reveal information that would lead to disclosing his identity.  So we

 3     would ask that those two associated exhibits be both admitted under seal

 4     and we would also ask that they be added to our 65 ter list as this

 5     witness was added after the 65 ter list was filed.

 6             JUDGE KWON:  Very well.

 7             No objection, Ms. Edgerton?

 8             MS. EDGERTON:  No.

 9             JUDGE KWON:  So that request is granted and we'll admit both as

10     Exhibit D2771 and 2772 under seal.

11             Yes, Mr. Karadzic.

12             THE ACCUSED: [Interpretation] Thank you.  I should now like to

13     read the summary of Witness KW570 in English.  I will read slowly for the

14     sake of the interpreters.

15             [In English] Witness KW570 was deployed to the former Yugoslavia

16     from January until June 1994 as a member of UNPROFOR.

17             Witness KW570 will testify that the Serbs were already being

18     blamed for the Markale market explosion on 5th of February, 1994, before

19     any investigation was completed.  He found it highly unusual that the

20     Serbs would have fired a single round at the market-place.  Normally, the

21     Serbs fired several rounds when seeking to hit a target with their

22     mortars.  Given the height of the buildings and their proximity to the

23     place where the shell landed in the market, it appeared that the shell

24     would have had to come with a very high trajectory, suggesting that it

25     had been fired at close range.

Page 32172

 1             Major John Russell, an artillery officer who served as military

 2     assistant to civilian affairs director Sergio De Mello went to the scene

 3     on the 5th of February, 1994, and stated that he was surprised that

 4     shrapnel and other physical evidence could not be found at the scene and

 5     may have been removed.  Witness KW570 noted this in his diary in an entry

 6     for 7th of February, 1994, where he added that "the whole thing was a bit

 7     suspicious, the whole world was still blaming the Serbs despite lack of

 8     evidence."

 9             UNPROFOR also received information that the shell may have been

10     fired by a Mujahedin group who allegedly missed their target when trying

11     to kill Jews who were leaving Sarajevo at the same time.

12             At a meeting between General Rose and VRS Chief of Staff General

13     Milovanovic at Lukavica barracks on 6th of February, 1994,

14     General Milosevic adamantly -- Milovanovic adamantly denied that the

15     Serbs had fired the shell which landed on the market and offered

16     personally to go to Sarajevo to assist in the investigation of the

17     shelling.

18             On 8th of February, 1994, a meeting was held between General Rose

19     and the leadership of the Bosnian military in Sarajevo.  The Bosnian

20     government forces were represented by Generals Divjak, Hajrulahovic, and

21     Colonel Dakic.  During the meeting, General Rose said that evidence was

22     emerging that the market-place shelling may have been carried out by

23     their side.  There was complete silence after he made this statement.

24     They then produced a number of excuses, which included a claim that they

25     had taped a conversation involving the Serbs to the effect that they had

Page 32173

 1     confessed to the atrocity.  However, the Bosnian government never

 2     produced any such tape nor evidence to demonstrate that the Serbs had

 3     fired the mortar.

 4             The next day when the Bosnian military delegation refused to take

 5     part in meetings to arrange a cease-fire, General Rose once again met

 6     with the Bosnian government leadership.  He told them that unless they

 7     participated in the meetings he would tell the world what he suspected

 8     about the shelling of the market-place.  The Bosnian government then

 9     agreed to participate in the meetings.  All of these circumstances led

10     Witness KW570 to believe that in all probability it was probably not the

11     Serbs who fired the shell at the Markale market.

12             It was his experience in Sarajevo that the Bosnian government

13     pursued a strategy of trying to blame Serbs for atrocities in order to

14     obtain international intervention on their side.  Examples for this were

15     the outgoing fire of mortars from hospitals, schools, and other civilian

16     areas, and from areas adjacent to United Nations positions, which would

17     draw return fire from the Serbs into those areas.  Throughout the

18     subsequent cease-fire for Sarajevo signed by both sides, the Bosnian

19     government military were guilty of the vast majority of the breaches of

20     its terms.  The Bosnian government refused to approve a water system

21     established by American humanitarian activist Fred Cuny on the pretext

22     that the water was not clean enough, because the government did not want

23     to alleviate the suffering of civilians in Sarajevo.

24             Witness KW570 attended meetings at which Radovan Karadzic was

25     present on many occasions during his time in Bosnia and spoke on the

Page 32174

 1     telephone with Dr. Karadzic several times.  He found Dr. Karadzic to be

 2     polite and easy to work with.  He observed that Dr. Karadzic appeared to

 3     be a moderating influence on other members of the Bosnian Serb political

 4     leadership and the Bosnian Serb military.  Dr. Karadzic often tried to

 5     satisfy the demands of the international community.

 6             [Interpretation] That would be the summary, and for the time

 7     being I have no questions for this witness.

 8             JUDGE KWON:  Thank you.

 9             Sir, as you have noted that your evidence in chief in this case

10     has been admitted in writing --

11             THE WITNESS:  Yes.

12             JUDGE KWON:  -- in its entirety and you will be now

13     cross-examined by a member of the Prosecutor.

14             Yes, Ms. Edgerton.

15             MS. EDGERTON:  Thank you.

16                           Cross-examination by Ms. Edgerton:

17        Q.   And good morning, Mr. Witness.

18        A.   Good morning.

19        Q.   Now, when we met on 7 January of this year, at that time I gave

20     you an electronic copy of an information report that had been prepared by

21     a former staff member here at the Tribunal as a result of a meeting with

22     you in 1997.  Do you remember that?

23        A.   I do remember that, yes.

24             MS. EDGERTON:  Could we please call up that information report

25     and of course not broadcast it.  It's 65 ter number 24420.  Could we just

Page 32175

 1     go over to the second page, please.

 2        Q.   And you recognise here, Mr. Witness, the document that we

 3     provided you with in January during our meeting in January?

 4        A.   I do recognise it, yes.

 5        Q.   Now, in addition to the service in Bosnia and Herzegovina you

 6     mentioned in your statement to Dr. Karadzic's Defence, this document also

 7     mentions a further deployment or your initial deployment to the area from

 8     November 1992 to May 1993 as part of the British contingent with

 9     UNPROFOR; correct?

10        A.   That is correct.

11        Q.   And this document also discusses the market-place shelling of

12     5 February 1994.  It details some meetings and negotiations following the

13     incident to achieve a cease-fire and establish and implement the total

14     exclusion zone.  Correct?

15        A.   That is correct.

16        Q.   It also talks about the situation in Gorazde in April 1994, and

17     I'll just list some of the other topics.  Negotiations for cease-fires in

18     the area, the sequence of events surrounding the air-strikes that month,

19     the detention of UN peacekeepers and UNMOs following the air-strikes,

20     your mission to Gorazde as part of the United Nations in the

21     implementation of the eventual cease-fire there, and your travel in June

22     of 1994 to Geneva during further negotiations following the incident.  Do

23     I have that, in essence, correct?

24        A.   You are correct.

25        Q.   And during our interview, you reviewed this document and found --

Page 32176

 1     and commented that you found the information that was set out there to be

 2     accurate as far as you recalled; correct?

 3        A.   That's correct.

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7        A.   That's correct.

 8             MS. EDGERTON:  If we could please move into private session,

 9     Your Honours.

10             JUDGE KWON:  Yes.

11             [Private session] [Confidentiality partially lifted by order of Chamber]

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 32177

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 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14             MR. ROBINSON:  Excuse me, before we do that, Mr. President, we

15     would object to any questions about this incident as being beyond the

16     scope of direct examination and not related to the witness's credibility.

17             JUDGE KWON:  And your basis is?

18             MR. ROBINSON:  Our basis is that the cross-examination is limited

19     to the scope of the direct examination and issues of credibility, and we

20     don't think that the issue of his activity in 1993, which is -- arises

21     from the statement or is related to his credibility.

22             JUDGE KWON:  Ms. Edgerton.

23                           [Prosecution counsel confer]

24             MS. EDGERTON:  Thank you.  Your indulgence.

25             With respect, Your Honour, of course we're entitled to do that.

Page 32178

 1     I mean, this is -- this is -- under Rule 90(H), we are entitled to put

 2     our case -- put our case to the witness.  I could go further, but I think

 3     it's quite obvious.

 4             JUDGE KWON:  Yes, Mr. Robinson.

 5             MR. ROBINSON:  Yes.  Well, if they want to do that, first of all,

 6     they have to put their case to the witness which hasn't been done.  But

 7     secondly, it's our position that on -- that the Prosecution cannot,

 8     during the Defence case, elicit evidence which it didn't elicit during

 9     its case in chief, and therefore improve -- offer additional evidence

10     through the Defence case that's not related to the subject of the

11     witness's testimony or his credibility.  So it's our position that

12     essentially the Prosecution is limited during the Defence case to the

13     materials that are relevant to the witness's testimony or to his

14     credibility and is not allowed to improve its case by questioning Defence

15     witnesses on unrelated topics.  And if they do do that, if you do allow

16     them to do that, then they have to put their case to the witness.

17             JUDGE KWON:  Mr. Robinson, if you read Rule 90(H)(i):

18             "The cross-examination shall be limited to the subject matter of

19     the evidence in chief and matters affecting the credibility of the

20     witness and where the witness is able to give evidence relevant to the

21     case for the cross-examining party to the subject matter of that case,"

22     and their putting the case is limited to (ii) where the cross-examining

23     is putting some contradictory evidence, is it not?

24             MR. ROBINSON:  Well, the way I read -- on your second point, the

25     way I read (ii) is in that third category of evidence described in (i),

Page 32179

 1     "where the witness is able to give evidence relevant to the case of the

 2     cross-examining party," then in that case the "counsel shall put to the

 3     witness the nature of the case of the party," although it does say "which

 4     is in contradiction of the evidence given by the witness."

 5             So it appears to me that either they have to put their case to

 6     the witness in the question or that the witness's testimony has to be

 7     contradictory to the case of the -- they have to have evidence

 8     contradictory to the witness's testimony in order to even elicit evidence

 9     under the third part of number 1, which is relevant to their case.

10     That's my position.

11             JUDGE KWON:  I don't think we need to stay in private session for

12     this debate.

13             Shall we continue in private session?

14             Yes, Ms. Edgerton, would you like to add anything?

15             MS. EDGERTON:  Your Honours, at the end of the day when we

16     receive the transcript, I can review the transcript and mark what could

17     be in public session.

18             Not really, Your Honours, with respect to adding anything.  These

19     are two completely separate provisions and (ii) doesn't modify (i) at

20     all.  I would submit we're -- this man has evidence relevant to the case;

21     it's related to evidence that has come before Your Honours and we should

22     be entitled to proceed.

23             JUDGE KWON:  And what is your response to Mr. Robinson's, albeit

24     belated -- shall we go back to open session, albeit for a brief moment?

25             Could the Chamber move back to open session.

Page 32180

 1                           [Open session]

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

 3     you.

 4             JUDGE KWON:  I think we can lift the confidentiality from line 5

 5     of transcript page 25.  If you have any other opinion, please let us

 6     know.

 7             My question for you, Ms. Edgerton, is:  What do you think about

 8     Mr. Robinson's statement that or argument that the Prosecution cannot

 9     during the Defence case elicit evidence which it didn't elicit during its

10     case in chief and therefore improve or offer additional evidence through

11     the Defence case that's not related to the subject of the witness's

12     testimony or his credibility?

13                           [Prosecution counsel confer]

14             MR. TIEGER:  If I can address that, Mr. President, since it seems

15     to be a slightly wider issue.  Let me say, first of all, that the

16     proposition advanced by Mr. Robinson now is completely at odds with the

17     position they took during the course of the Prosecution case when it

18     served their interest to read 90(H) in just the manner we're advancing

19     now, which is the correct reading of that.

20             90(H)(i) talks about what you can elicit properly so because it's

21     relevant information.  90(H)(ii) talks about the obligation of a

22     cross-examiner to make sure that he or she puts the case to the witness

23     so that you're not dancing around the edges and the witness is given an

24     opportunity to address that part of the case.  Two quite separate

25     provisions as indicated by the very language, one of which talks about

Page 32181

 1     what can be elicited and one of which talks about the responsibilities of

 2     the examiner.

 3             Beyond that the suggestion -- first of all, there's a little

 4     apples and oranges here.  Obviously it's impossible to elicit from a

 5     witness who hasn't been called evidence related to particular aspects of

 6     the case, and so there has been jurisprudence which talks about the

 7     limited circumstances in which the Prosecution in this case is -- may be

 8     precluded from leading certain evidence that was it wasn't -- that it was

 9     in a position to advance in the course of its case, that it failed to do,

10     and the extent of any prejudice it may cause the accused, but to suggest

11     that the Prosecution cannot lead from a witness called by the Defence

12     evidence about matters that were advanced and were discussed and were at

13     issue throughout the course of the case is specious and is at odds with

14     the jurisprudence of this Tribunal, and I'm sure the experience of this

15     Bench, in previous cases.  It has -- it's illogical.  It would preclude

16     the Chamber from hearing the information which witnesses brought before

17     this Chamber have that illuminate issues in the case.  It cannot possibly

18     be a matter that goes to notice or prejudice because the witness is

19     called by the -- by the Defence.  And any suggestion along the lines

20     advanced by Mr. Robinson would be inimical to the interests of justice

21     and would unfairly constrain the information available to this Court

22     which it should have.

23             MR. ROBINSON:  Excuse me, Mr. President, there's actually

24     jurisprudence on this issue from the Appeals Chamber.  Unfortunately my

25     internet isn't working fast enough.  But in the Prlic case there's a

Page 32182

 1     decision on the interlocutory appeal against the Trial Chamber's decision

 2     on the presentation of documents by the Prosecution in cross-examination

 3     of Defence witnesses.  It's dated the 26th of February, 2009.  I am not

 4     able to call up that decision but I have my notes, and the Appeals

 5     Chamber did put some limitations on the right of the Prosecution or

 6     ability to elicit evidence on cross-examination of matters other than

 7     what was covered by the direct or credibility.  So if -- either if we can

 8     pass this issue until the next recess or take a recess early, I think we

 9     would all benefit from being able to look at that.

10             JUDGE KWON:  Before doing that, as regards the provision in

11     Rule 90(H)(ii) which refers to the putting the case to the witness, apart

12     from whether I would agree with it or not, is it not related to the

13     common practice where the parties can -- is stopped from arguing

14     something unless it puts to the witness who could have answered the

15     question?  So it's a bit different from the perspective of Rule 90(H)(i),

16     isn't it?

17             MR. ROBINSON:  Well, Judge Morrison is in the best position to

18     answer that question because the Americans don't use that putting your

19     case business, but the English certainly do.  But I think that you're

20     correct, that was the purpose of Rule -- of (ii), but it does seem to

21     modify or at least it applies to the third part of (i).  So although it

22     may have had that purpose, the issue is still whether or not that's a

23     limitation which applies to any time a cross-examining party wants to ask

24     a witness about things that are outside of credibility and the scope of

25     direct examination.

Page 32183

 1                           [Trial Chamber confers]

 2             JUDGE KWON:  Given the importance of the issue, to make a more

 3     informed decision the Chamber will rise for 40 minutes and resume at ten

 4     to 11.00.

 5                           --- Recess taken at 10.11 a.m.

 6                           --- On resuming at 10.58 a.m.

 7             JUDGE KWON:  For the record, Judge Lattanzi is now sitting with

 8     us.

 9             MR. ROBINSON:  And, Mr. President, may I introduce one more

10     member of our team and that is Francie Derderyan from Armenia who is a

11     legal intern with our team and is joining us during this session.

12             JUDGE KWON:  Thank you.  I hope the courtroom is warm enough for

13     Judge Lattanzi.

14             The Chamber observes that it adopted a consistent practice during

15     the Prosecution case with respect to the interpretation of Rule 90(H)

16     which allowed the Defence to adduce evidence relevant to his case during

17     his cross-examination within the meaning of Rule 90(H).  The Chamber's

18     prima facie reading of the rule and the Appeals Chamber jurisprudence

19     cited by Mr. Robinson is that Rule 90(H) does not preclude the

20     Prosecution from doing the same during their cross-examination of Defence

21     witnesses.  If fresh evidence is being adduced, the Chamber will exercise

22     control over the admission of such evidence on a case-by-case basis to

23     ensure that the interest of justice and the interest of the accused are

24     protected.

25             That said, however, separate from the requirements of

Page 32184

 1     Rule 90(H)(ii), the Chamber considers that it would be very kind of the

 2     Prosecution to inform of the subject matter if it is minded to put

 3     questions not related to the subject matter of the -- in the evidence in

 4     chief for the benefit of witness, parties, and Chamber.

 5             MS. EDGERTON:  Oh, of course, Your Honours, and I -- if I can go

 6     back up in the transcript --

 7             JUDGE KWON:  Yes, probably you were cut off.

 8             MS. EDGERTON:  No, not at all.  I enumerated some of those when

 9     we talked about the contents of the document 65 ter number 24420 which

10     remains on the screen in front of us.  So the topics, if I may, are the

11     initial -- issues related to the initial deployment of the witness in

12     Bosnia and Herzegovina in 1992 and 1993, in particular Eastern Bosnia;

13     the situation in Sarajevo in 1994, including the market-place shelling as

14     well as the shelling incident in Dobrinja the day before that; meetings

15     and negotiations to achieve a cease-fire and implement and establish the

16     total exclusion zone; the situation in and relating to Gorazde in April

17     1994; the detention of UN peacekeepers and UNMOs following the

18     air-strikes that month.  And let me just consult my notes for a minute.

19     I think I've covered everything.

20             JUDGE KWON:  Please proceed, Ms. Edgerton.

21             MS. EDGERTON:  I have.  Thank you.

22             MR. ROBINSON:  Excuse me, Mr. President, before she proceeds,

23     just so I can make sure I make a good record for this issue because I was

24     not -- I hadn't read the Appeals Chamber decision recently when I made my

25     arguments to you, and I was somehow flailing around with using my

Page 32185

 1     instincts more than my jurisprudence.  But it's our position that the

 2     Prosecution -- that to ask questions on these topics would constitute

 3     fresh evidence, and the fresh evidence decided by the Appeals Chamber was

 4     limited to documents.  So we recognise that.  But the issue wasn't raised

 5     directly in the Prlic case about whether or not eliciting evidence on

 6     topics of which the Prosecution was aware and which the Prosecution had

 7     the evidence would constitute fresh evidence in the form of questions to

 8     witnesses.

 9             And in this case, as you've seen from the 1997 interview that the

10     Prosecution displayed at the beginning of its cross-examination, the

11     Prosecution had all of this information in its possession well before it

12     commenced its own case against Dr. Karadzic and could have called that

13     witness and elicited all of that evidence in its case in chief.  And in

14     the Prlic Trial Chamber decision they talked about that the exception

15     under Rule 90(H) is explained by the fact that during the Prosecution's

16     case in chief it doesn't know which witnesses the Defence are going to

17     call, and therefore it's perhaps unaware that these witnesses exist and

18     don't know whether they will be in a position to testify on matters

19     related to its case.  And the Trial Chamber said therefore that if during

20     the testimony of a Defence witness it becomes apparent that the witness

21     has the requisite knowledge to answer the Prosecution's questions, it

22     would therefore be justified to permit the Prosecution to address matters

23     related to its case with that witness.  And that part of the decision was

24     not appealed.

25             So the issue that I just want to make sure that the Trial Chamber

Page 32186

 1     understands and what we're trying to say is that:  We believe under these

 2     circumstances where the Prosecution had all this information back in

 3     1997, that it's -- should not be allowed to elicit fresh evidence from

 4     this witness whether in the form of questions or documents.  Thank you.

 5             JUDGE KWON:  What I said, Mr. Robinson, in the ruling that I just

 6     gave is that if the fresh evidence affects the rights of the accused, the

 7     Chamber would deal with it on a case-by-case basis.  But what you are

 8     arguing now is that fresh evidence should be banned in its totality.  Is

 9     it the case, Mr. Robinson?

10             MR. ROBINSON:  No, not at all, Mr. President.  In fact, I'm

11     asking you to follow the jurisprudence on fresh evidence with respect to

12     oral testimony as well as to documentary evidence.  And the jurisprudence

13     is that the first inquiry about fresh evidence is whether the party could

14     have with reasonable diligence identified that evidence and presented it

15     in its case in chief.

16             So with respect to the item that she -- the specific items that

17     she's mentioned, and we can start with the 1993 events in Konjevic Polje,

18     that evidence was available to the Prosecutor, they had identified it,

19     and they could have presented it in its case in chief, and therefore that

20     evidence should be excluded as well as any other items contained within

21     the witness interview from 1997.

22             JUDGE KWON:  In case of oral testimony, how do you read "fresh

23     evidence"?  If it is not covered by the witness on the stand in its

24     evidence in chief, do you find anything would fall under fresh evidence

25     even if it was covered by other witnesses or dealt with by exhibits that

Page 32187

 1     were already admitted?

 2             MR. ROBINSON:  Yes, I think if it came from this particular

 3     witness and it dealt with other -- things other than credibility or what

 4     was covered in his direct examination, that it would constitute fresh

 5     evidence.

 6                           [Trial Chamber confers]

 7             JUDGE KWON:  Yes, Ms. Edgerton -- oh, yes, Mr. Tieger.

 8             MR. TIEGER:  Just Ms. Edgerton -- and I don't want to pre-empt

 9     what the Court had in mind, was that to proceed or to respond to

10     Mr. Robinson's argument?  Because I'm only rising for the latter purpose

11     obviously, and if the Court had something different in mind I don't want

12     to misunderstand.

13             JUDGE KWON:  Yes, the Chamber wanted to hear from the Prosecution

14     in response to Mr. Robinson's position.

15             MR. TIEGER:  Sure.  Well, I would note preliminarily,

16     Mr. President, that when the Prosecution rose after a break in a

17     discussion to expand on the argument made, it was deemed by Mr. Robinson

18     to be a motion for reconsideration and to rise to the level of a higher

19     standard, and that was partially the basis, if not wholly the basis, for

20     the ruling that ensued.  And now we see, as mentioned previously, another

21     reversal of the Defence position.

22             In connection with this broader issue about what the Prosecution

23     should or should not have adduced, I think it's important to remind the

24     Court about a position taken by the Pre-Trial Chamber in this case,

25     specifically by Judge Bonomy, in the face of the refusal by the Defence

Page 32188

 1     to file a pre-trial brief or to otherwise comply with the Rules in

 2     letting the Prosecution know what the Defence case would consist of and

 3     what issues should be addressed accordingly.  And Judge Bonomy said he's

 4     not -- he wasn't going to order the Defence to file a pre-trial brief

 5     because he thought that might end up being a somewhat nugatory act.  But

 6     instead he would be extremely flexible and lenient in allowing the

 7     Prosecution to adduce evidence during the course of the entirety of the

 8     case that addressed issues that were relevant to the case.  And I can --

 9     the President may recall that exchange, but of course I can draw it out

10     if necessary.

11             The Prlic case, in essence, talks about any tension between 89(C)

12     and 89(D) in attempting to strike a balance of fairness, in attempting to

13     prevent on the one hand a potential "ambush" by the Prosecution; and on

14     the other hand a bizarrely selective eliciting of evidence by the Defence

15     calling a witness and asking him about one narrow portion when that --

16     one narrow portion that advances the Defence case when that witness may

17     have a huge amount of evidence relevant to the entirety of the case that

18     would be precluded by this tactical expedient, which is clearly not

19     envisioned by the Rules.

20             I would note further that cases that followed the Prlic decision,

21     including Stanisic and Simatovic and Stanisic/Zupljanin, Prlic, and

22     others have emphasized, among other things, the enormous size and

23     complexity of these cases, the interest of the Trial Chamber in effective

24     truth-finding, and have essentially found - as this Trial Chamber ruled

25     when it returned from the break - that a Trial Chamber should essentially

Page 32189

 1     strike an appropriate balance on a case-by-case basis between the

 2     interests of 89(C) and (D).  All of the subsequent jurisprudence is

 3     indeed consistent with the position taken by this Chamber and nothing

 4     Mr. Robinson said changes that, even if this wasn't - as he has

 5     previously characterised it - a motion for reconsideration.

 6                           [Trial Chamber confers]

 7             JUDGE KWON:  Mr. -- the Chamber sees no reason to alter its

 8     ruling.

 9             Shall we proceed?  Do we need to go into private session?

10             MS. EDGERTON:  I think so, yes.

11             JUDGE KWON:  Yes, we go back to private session.

12             [Private session] [Confidentiality partially lifted by order of Chamber]

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20             MR. ROBINSON:  Excuse me, Mr. President, I have one objection to

21     this and is that the Prosecution should not be allowed to ask leading

22     questions when eliciting evidence for its own case.

23             JUDGE KWON:  Would you like to respond, Ms. Edgerton?

24             MS. EDGERTON:  I'm -- I have to turn to Mr. Tieger because I have

25     to think of something on this one, Your Honours.  Your indulgence.

Page 32190

 1             MR. TIEGER:  Well, I can point out, as the Court is aware, that

 2     it simply was not the practice during the Prosecution case when the

 3     accused led large amounts of evidence under 90(H) through witnesses

 4     clearly identified with and friendly to the Defence, where such a matter

 5     would be of even greater concern.  So I think that's a belated approach

 6     by the Defence which is tactical in nature.

 7             MR. ROBINSON:  Mr. President, if I -- there's also jurisprudence

 8     of this from the Prlic case, a decision on the mode of interrogating

 9     witnesses May 10th of 2007 at paragraph 13, and also a decision on

10     Prosecution motion on use of leading questions on 4th of July, 2008.  And

11     in the Stanisic and Simatovic case, decision on submissions by Stanisic

12     Defence regarding Prosecution's Rule 90(H)(ii) obligations, 12 June 2012

13     at paragraph 11, and I believe the jurisprudence is that they're not

14     allowed to -- "when eliciting evidence beyond the scope of direct

15     examination for the party's own case leading questions are not

16     permitted."

17             MR. TIEGER:  Well, first of all, it's extremely interesting

18     that --

19             JUDGE KWON:  Just a second, we often forget to put a pause

20     between the statement --

21             MR. TIEGER:  Sorry, Mr. President.

22             JUDGE KWON:  Yes, Mr. Tieger.

23             MR. TIEGER:  Well, first of all, I find it extremely interesting

24     that Mr. Robinson is able to cite this jurisprudence and is aware of it

25     when just a moment ago he was arguing that the Prosecution had no right

Page 32191

 1     to do the very same thing, that is, elicit the evidence that he's citing

 2     here now.  That's a little -- that's just a preliminary matter.  But none

 3     of those cases dealt with the fact that the -- as far as I can tell, that

 4     the Defence was permitted and with -- sought to and in the face of

 5     repeated objections about leading in various forms, engage in precisely

 6     this practice, which is the issue here, the practice of this particular

 7     case.

 8             The Defence in this case wants the benefit of having it both

 9     ways; that should not be permitted.  That was not the ruling in that

10     case.  Had they been prepared to abide by the jurisprudence they cite now

11     and the principles annunciated in those cases, it might be a different

12     matter, but that's not the practice as in the practice of this particular

13     case as established by the Defence.

14                           [Trial Chamber confers]

15             THE ACCUSED: [Interpretation] I believe that it is a shame that

16     this procedure part of the debate has been taking place in closed

17     session.

18                           [Trial Chamber confers]

19             JUDGE KWON:  As compromise, Ms. Edgerton, could you conduct your

20     cross-examination in a not-leading way in the meantime and the Chamber

21     will issue its decision in due course.  As a professional I think you are

22     capable of doing that.

23             MS. EDGERTON:  Of course.  I -- I'll just try and keep an eye on

24     the clock.  It's going to take longer, I suspect, than the allotted time,

25     but I'll move with as much alacrity as I can.

Page 32192

 1             JUDGE MORRISON:  Speaking for myself, Ms. Edgerton, the time

 2     that -- it will necessarily have to be extended bearing in mind the

 3     rather extraordinary circumstances, so I wouldn't worry for myself too

 4     much about that.

 5             JUDGE BAIRD:  Ms. Edgerton, I endorse that.

 6             MS. EDGERTON:  Thank you very much.  And keeping in mind what

 7     Dr. Karadzic raised while Your Honours were deliberating, I wonder if we

 8     may lift from page 37, line 7, in fact, to right now, from private

 9     session.  We've been in private session for this.

10             JUDGE KWON:  Yes, I agree, and Mr. Robinson could have informed

11     the Chamber of the need to go back -- going back to the open session at

12     the time, but let's continue.

13   (redacted)

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Page 32193











11  Pages 32193-32210 redacted.  Private session.















Page 32211

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22   (redacted)

23                           [Open session]

24             THE WITNESS:  Sir, can I just say --

25             JUDGE KWON:  We are in open session, bear in mind that.

Page 32212

 1             THE WITNESS:  This is of course a personal diary that was never

 2     intended to be released, and so the nature of the writing is such that

 3     it's -- it was for my own personal use, so please bear that in mind when

 4     we go through it.

 5             JUDGE KWON:  Thank you, sir.

 6             THE WITNESS:  I've got no issues with the diary being released,

 7     but it's just that it was written as a diary.

 8             JUDGE KWON:  Yes, we are not broadcasting this nor are we

 9     releasing this.  We are -- what we are going to have in public session is

10     to hear debate as to the manner in which the cross-examination is to be

11     conducted.

12             So where were we?  For the benefit of the public, could you

13     repeat the crux of your objection, Mr. Robinson.

14             MR. ROBINSON:  Yes, thank you, Mr. President.  During the

15     cross-examination the Prosecution had put to the witness or put in front

16     of the witness his diary and directed his attention to a particular

17     portion of that diary, and we objected to the use of the diary because

18     under the Prlic Appeals Chamber decision we believe that the use of

19     documents during cross-examination on an area that is outside of the

20     scope of direct examination and not related to the credibility of the

21     witnesses must be evaluated under the test for fresh evidence.  And in

22     this case, that test requires that this evidence had not have been

23     available to the Prosecution to introduce in its own case through the

24     exercise of due diligence.  And so therefore we believe that the diary

25     ought not to be used either as an exhibit or as being put before the

Page 32213

 1     witness and being the subject of leading questions.

 2             JUDGE KWON:  So now you understand, French interpretation has

 3     just been completed.  So we have to put this much a pause between the

 4     question and the answer.

 5             Yes, Ms. Edgerton or Mr. Tieger.  Yes.

 6             MR. TIEGER:  Thank you, Mr. President.

 7             I'll try to put it as simply as possible.  The underlying purpose

 8     of all of the procedural Rules at this institution is to advance fairness

 9     and efficiency and to balance those two when necessary, as Mr. Robinson

10     should be aware.  I won't revert back to my -- I know in this instance,

11     pending a resolution of the arguments made before, we are eliciting

12     evidence in a non-leading fashion, but the expedient that Mr. Robinson is

13     proposing at this moment in this particular case seems to me much more

14     akin to a use of the -- of any principles annunciated in previous cases,

15     as how many angels dance on the head of a pin.

16             The Defence initiated the use of this diary, has introduced

17     portions of this diary.  There's no question, it seems to me, that this

18     witness is trying to be as balanced as possible to both parties in the

19     proceedings and to give as much useful information to the Court as

20     possible.  He's had a chance to review the diary previously.  In

21     balancing the interests of efficiency and fairness here, it's difficult

22     to see -- it's easy to see how efficiency can be lost by an artificial

23     approach to questions related to information that this witness has

24     recently seen and is memorialised in his diary, and difficult to see how

25     given the nature of the witness and the nature of the circumstances in

Page 32214

 1     which the diary was presented to this Court by the Defence, that there's

 2     any loss of fairness.  So I would think, you know, it's simpler and

 3     completely fair to allow in this circumstance a reasonable use of the

 4     diary in the manner that Ms. Edgerton suggested.

 5             JUDGE KWON:  Mr. Robinson, would you like to add anything?

 6             MR. ROBINSON:  Mr. President, I think the most expedient thing if

 7     we're talking about expediency is for her to ask questions about the

 8     events without reference to the diary and see if it's necessary to use

 9     the diary.  She did exactly what everybody's been telling Dr. Karadzic

10     not to do, is to show a witness a document and ask a leading question

11     about it.  So maybe if we just revert to the form and see if she can get

12     the same information without using the diary, we can avoid you having to

13     rule on the legal issue.

14                           [Trial Chamber confers]

15             JUDGE KWON:  Following the compromise we made earlier on, pending

16     the ruling of the Chamber on the manner in which the conduct of

17     cross-examination with respect to subject matter that was not covered by

18     the evidence in chief, I would advise Ms. Edgerton to follow the

19     suggestion made by Mr. Robinson in the meantime.  Let's proceed.

20             We need to go back to private session then, Ms. Edgerton?

21             MS. EDGERTON:  I think we will.  I just need to find my bearings

22     again, Your Honour.  I'm not quite sure I know where we're at right now.

23             JUDGE KWON:  Yes, could we move back to private session.

24                           [Private session]

25   (redacted)

Page 32215











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Page 32222

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20                           [Open session]

21             JUDGE KWON:  Yes, we are now in open session.

22             Ms. Edgerton.

23             MS. EDGERTON:

24        Q.   In your written evidence in this case at paragraph 6 you said you

25     found it highly unusual that the Serbs would have fired a single round at

Page 32223

 1     the market-place and said that normally they fired several rounds when

 2     trying to hit a target with their mortars.  Now, my question is:  Having

 3     come to Sarajevo only some short number of days prior to that, and in the

 4     face of what this Chamber has heard as probably the most effective

 5     cease-fire of the war following the incident, I wonder if you could tell

 6     us what your basis is for this assertion?

 7        A.   A mortar is an indirect fire weapon, so it's not direct fire.

 8     The firer on the whole can't see the target, and therefore -- because

 9     it's susceptible to a number of factors, atmospherics, lack of sight, the

10     actual target before it is hit has to be -- has to be ranged in on and

11     fire then accurately brought to bear on to that target itself.  Before a

12     mortar can be fired, it needs to be bedded in, so that would normally

13     take one or two mortar rounds fired before it can actually fire in any

14     direction.  Mortars on the whole are deployed in up to six mortars in a

15     battery, quite often we would deploy three.  The kill zone of a mortar

16     which, i.e., the effective area where it could achieve its effect would

17     be something like 30 or 40 mortars.  And so mortars would be placed at

18     distances of 30 to 40 metres to be able to achieve an area of destruction

19     of around 100, 120 metres.

20        Q.   Now, if I can just stop you there for one second, to go back to

21     my question and what you said.  You said that normally the Serbs fired

22     several rounds when trying to hit a target with their mortars.

23        A.   Correct.

24        Q.   Do you have experience of this happening on which you base that

25     answer?

Page 32224

 1        A.   I physically, as I testified earlier, have been on the receiving

 2     end of it.  And the day before, according to my notes, five mortar rounds

 3     were fired in order to hit that target.

 4        Q.   All right.  So that clarifies things.  So your assertion is on

 5     the basis of your experiences during an earlier posting in Bosnia and

 6     Herzegovina and your observations of an incident the day before the one

 7     we're talking about?

 8        A.   And obviously throughout the time that we arrived in Sarajevo

 9     we'd constantly heard artillery mortar fire, so it's common practice --

10     you can't with a mortar see a target and expect to hit it with a single

11     round, and if you did it would be extremely lucky.

12        Q.   Now, you've just said that -- your indulgence for a moment.

13     Throughout the time that you arrived in Sarajevo you constantly heard

14     artillery mortar fire.  Was that still the case following the cease-fire

15     of February 1994?

16        A.   Yes.

17        Q.   How so?

18        A.   The actual cease-fire having had the meeting with the Bosnian

19     Serb army and the government forces in Sarajevo established a cease-fire

20     and the very next day -- on the day of the cease-fire itself, there were

21     breaches of the cease-fire.  I think it was on the 11th of February, if I

22     recall - I might be wrong - with small arms fire in the morning, small

23     arms fire throughout the day, and then mortar fire that evening, all of

24     which were perpetrated by the Bosnian government forces.

25        Q.   Now, you told us during our meeting on the 7th of February that

Page 32225

 1     you've not had experience commanding mortar or artillery units; correct?

 2        A.   That's correct.

 3        Q.   But you do have some knowledge of the use of mortars.  I wonder

 4     if you could tell us what you understand harassing fire to be in military

 5     terms?

 6        A.   Harassing fire is basically fire that's directed towards an enemy

 7     designed to cause them inconvenience, to prevent them from establishing

 8     their mission in terms of doing what they want to do, breaking up their

 9     forces.  It's not designed to be accurate in terms of hitting targets

10     themselves, but there is the possibility that they could achieve the same

11     effect if they hit them.  So it's basically a means of breaking up or

12     disrupting an enemy force.

13        Q.   Would it also be intended to undermine morale, for example?

14        A.   Oh, absolutely.  If you're under mortar artillery fire, your

15     morale's pretty low, I'm afraid.

16        Q.   Increase the enemy's stress levels then?

17        A.   Absolutely.

18        Q.   Deny them the opportunity for things like sleep or rest and, like

19     you've just alluded to, probably resupply?

20        A.   Absolutely.  It's all that.  That's, regrettably, the nature of

21     war.

22        Q.   And did you see that happening during your tour in Sarajevo?

23        A.   Throughout the -- we weren't there that long before the

24     cease-fire was signed, and therefore we could -- I could only cite what

25     we saw from the 14th of January through to when the cease-fire itself was

Page 32226

 1     signed following the meeting at the airport on the 9th of February.  So

 2     there was sporadic fire taking place throughout the city, but, you know,

 3     I must stress that it wasn't simply one-way.  There was outgoing fire,

 4     there was incoming fire, you know, and as I've mentioned certainly after

 5     the cease-fire was signed all the fire was outgoing.  So there was a

 6     siege taking place and the aim of a siege is to force the -- those

 7     besieged to come to terms in terms of capitulate or surrender.  The

 8     Bosnian government clearly wished the siege to have an effect whereby the

 9     siege would be broken not by their own forces, because they couldn't do

10     that physically themselves, but for Western intervention, and by

11     delivering aid to the people we achieved a status in Sarajevo where

12     people were kept alive.  And so regrettably the siege was prolonged, and

13     as the siege went on from 1992 through to the cease-fire, it was the

14     people who suffered.

15        Q.   Now, you've just talked about the Bosnian government's -- what

16     you felt to be the Bosnian government's wishes in respect of the siege.

17     Are you in a position to comment similarly on what you felt to be the

18     Bosnian Serb government's objectives as regards the siege?

19        A.   The Bosnian Serb objective would have been to contain the

20     1st ARBiH Corps in Sarajevo, to neutralise it so it wouldn't create

21     problems for it, and then force the Bosnian government to the negotiating

22     table, whereby I suppose a long-term peace negotiation settlement for the

23     future of Bosnia could be worked out.

24        Q.   A peace negotiation that would have given them a portion of

25     Sarajevo; correct?

Page 32227

 1        A.   I imagine it's part of an overall settlement for, you know, what

 2     they intend to do in terms of establishing Republika Srpska as a state

 3     within a state.

 4             MS. EDGERTON:  Your indulgence for one moment.

 5                           [Prosecution counsel confer]

 6             MS. EDGERTON:  It was just to ask or to be reminded of what time

 7     Your Honours had indicated you might take the next break, and we're right

 8     around that time I see.

 9             JUDGE KWON:  Yes.  We are going to have a break now, but for

10     planning purposes could I ask you how much longer you would need -- I'm

11     asking whether we need to release the next witness or not?

12             MS. EDGERTON:  Oh --

13             JUDGE KWON:  Rough -- roughly?

14             MS. EDGERTON:  It's actually touch and go I think, Your Honours.

15             JUDGE KWON:  You spent an hour so far.

16             MS. EDGERTON:  Yes.

17             JUDGE KWON:  And you have half an hour more from the allotted

18     time, but I think you may need a bit more.

19             MS. EDGERTON:  Well -- indeed, yes, Your Honour, so I'm trying

20     to -- I have to take some time to recover my balance now, and I'm just

21     trying to estimate.  I'm not sure yet that you should release the next

22     witness, but after the lunch break, immediately after the lunch break, I

23     would be able to confirm.  Would that be sufficient ?

24             JUDGE KWON:  Fine.

25             I take it Mr. Karadzic also needs some time for his

Page 32228

 1     re-examination?

 2             MR. ROBINSON:  Yes, probably.

 3             MS. EDGERTON:  Ah, well then, no question, Your Honours, I'm

 4     quite sure that the next witness can be released.

 5             JUDGE KWON:  Yes, we'll have a break for 45 minutes and resume at

 6     quarter past 1.00.

 7                           --- Luncheon recess taken at 12.30 p.m.

 8                           --- On resuming at 1.24 p.m.

 9             JUDGE KWON:  Yes, Mr. Robinson.

10             MR. ROBINSON:  Thank you, Mr. President.  I'd like to introduce

11     to the Chamber Nabilah Reza from the Australian National University in

12     Canberra who is one of our legal interns and working on our case.

13             JUDGE KWON:  Thank you.

14             Yes, Ms. Edgerton, please continue.

15             MS. EDGERTON:  Thank you.  And if it hasn't already been

16     instructed, the next witness can definitely be released.

17        Q.   Now, Mr. Witness --

18             JUDGE KWON:  But, Ms. Edgerton, we would like to conclude this

19     witness's evidence today.

20             MS. EDGERTON:  I will do my utmost, Your Honour.

21             JUDGE KWON:  So how long would you need to conclude your cross?

22             MS. EDGERTON:  I hope I can be -- not -- understanding I am to

23     not lead him, I fully expect I would take another hour.

24             JUDGE KWON:  If you could try to conclude in three-quarters of an

25     hour, try your best.

Page 32229

 1             MS. EDGERTON:  Of course.

 2             JUDGE KWON:  Thank you.  Please continue.

 3             MS. EDGERTON:  Thank you.

 4        Q.   Now, Mr. Witness, we left off talking about the Markale I

 5     incident and going back to that you said in your statement to

 6     Dr. Karadzic's Defence that it appeared that the shell would have had to

 7     come in with a very high trajectory, suggesting that it had been fired at

 8     a close range.  Now, is this information that you received from

 9     Major Russell, who you also referred to in your statement?

10        A.   When we visited the site ourselves, the close proximity of the

11     tall buildings to where the explosion had taken place was clearly, you

12     know, very close to those buildings.  And so all the reporting from the

13     various sources including Major Russell was that if it was fired from the

14     direction that we understood it to be fired from, from roughly the

15     north/north-east, that it had to be fired at very close range in order to

16     achieve the elevation, I'm no expert, the elevation, then to come down so

17     close to the building.  When we heard, in terms of the numbers of

18     casualties, we were shocked that a single mortar could deliver that much

19     devastation in terms of 69 killed, nearly 200 wounded.  But of course if

20     it was a tightly packed market-place, then that would be probably

21     understandable.  And again, the view at the time was when one looks at

22     the market square it was almost look a hollow square where you have four

23     parts to it but one was exposed to the road so if a mortar was to be

24     fired to directly hit the market-place, from our perspective it should

25     have been fired potentially from the south in order to have a better

Page 32230

 1     chance of hitting it as opposed to the north-east at closer range.  It

 2     didn't make sense why a mortar would be fired at that market place from

 3     the north-east given the potential obstacles to its flight if it was

 4     fired.

 5        Q.   Now let's just -- on the subject of trajectory, I want to deal

 6     with that for a moment.  Because you have some knowledge of mortars, I

 7     assume you know that mortars can fire on up to six charges?

 8        A.   That's correct, but then the charges themselves are designed to

 9     overlap in terms of range.  So it's down to firer's experience to work

10     out the number of charges to the elevation.

11        Q.   And you know, I would assume, that as the charges increase the

12     distance range of the mortar also increases then?

13        A.   To achieve its maximum range, correct.

14        Q.   You -- do you recall confirming during our interview in January

15     that you can't read a mortar firing table?

16        A.   I'm an anti-tank officer of old.  I'm not a mortar man.

17        Q.   Now, Major Russell actually came here to testify, and he was

18     shown a firing table for the type of mortar that was launched on the

19     market-place that day, and he was shown that the angle of descent for

20     each successive charge remained almost the same.  Did you know that?

21        A.   No.

22        Q.   And you wouldn't know then that on seeing this firing table, he

23     agreed that he had applied an erroneous principle at the time of the

24     incident and come to an incorrect conclusion?

25        A.   I'm not disputing that.  I wasn't aware of that.

Page 32231

 1        Q.   And that's T-29439 to 29440 for the record.

 2             And still with regard to Major Russell, even though -- who you

 3     described as an artillery officer in paragraph 8, did you know that up

 4     until the point of this incident he told this Chamber he'd conducted only

 5     five crater analyses?

 6        A.   That's five more than I ever have.

 7        Q.   That's T-29382.  And in your evidence you also refer to his

 8     remark that the shrapnel and other physical evidence on the scene had

 9     been swept away and that was suspicious, so I assume then that you don't

10     know that before Major Russell went to the scene there had already been a

11     number of investigations on the site?

12        A.   We didn't know that in terms of -- in term of recollection, but

13     we assume it would have happened.  It's just that when he mentioned it,

14     he said there was no evidence in terms of physical evidence on the ground

15     to suggest what type of mortar explosion it was, which then added to the

16     whole theory of conspiracies at the time.

17        Q.   Um, you wouldn't know then, based on what you've said, that the

18     tail fin of the mortar in this case was actually recovered before

19     Major Russell visited the scene?

20        A.   I've never seen that, no.

21        Q.   And were you aware of the fact that a subsequent technical

22     investigation into this incident was ordered and carried out by a team

23     from UNHQ in Zagreb later on that month?

24        A.   We were aware and we understand -- as I understand the deduction

25     was that it could have been fired from either side of the front line.

Page 32232

 1        Q.   And now finally with respect to paragraph 9 of your written

 2     evidence and the report that the mortar might have been fired by a

 3     Mujahedin group who had allegedly missed the target when trying to kill

 4     Jews leaving the city, do you remember confirming during our meeting in

 5     January that the actual only time you had ever heard of the Mujahedin

 6     being physically active in Bosnia was around Maglaj?

 7        A.   That's correct.  Immediately after the incident took place when

 8     the information started coming through, filtering through, there was

 9     various reporting going on.  One was that it could have been dropped from

10     the top of the building, one that it was Mujahedin, and of course these

11     were just report.  We'd never seen Mujahedin in Sarajevo or in resembling

12     in and around Sarajevo, so it was another possible to solution to how

13     this could have happened, but then after that report we heard nothing

14     more about it.

15             And to be honest with you, in terms of General Rose himself and

16     the headquarters, we weren't really interested ourselves who did it.  We

17     just made sure that this, you know, this tragedy resulted in an

18     opportunity where we could basically do something positive and use that

19     crisis, as I think Mr. Akashi said, you know, using mandarin and Chinese,

20     that every crisis has two meanings:  Danger and opportunity.  And what we

21     were absolutely keen about wasn't -- using this as an opportunity to

22     bring the two sides together in order to end this madness.

23             JUDGE KWON:  Ms. Edgerton, French translation has only now been

24     completed.  Both of you are kindly requested by the interpreters to put

25     pause and to slow down.

Page 32233

 1             MS. EDGERTON:  Absolutely, and my apologies to my colleagues and

 2     thanks for the reminder.

 3        Q.   This -- to move on, this opportunity and the cease-fire that

 4     resulted from the incident, could you tell us what the reaction was of

 5     the civilian population in the city to the cease-fire?

 6        A.   That's quite difficult question to answer because -- even before

 7     the cease-fire was signed we would quite often use opportunity to walk

 8     from the residency to the Presidency for various meetings and meet

 9     people.  But clearly when the cease-fire was signed, it was almost as if

10     a huge yoke had been lifted off their shoulders and people came out onto

11     the streets in an attempt to go about normal business that they'd not

12     been able to do for the last two years, and again that was on both sides

13     of the divide.

14             So, you know, the people in Sarajevo didn't want this war, you

15     know, they wanted it to end as much as we did clearly.  And then there

16     was new hope in Sarajevo at the time because, you know, there was a huge

17     clamour to end this -- as I said, everybody was blaming the Serbs, even

18     though we had our definite doubts.  And of course there was this huge

19     pressure to start bombing the Serbs either to the negotiating table or

20     out of Sarajevo.  So immediately after the cease-fire was signed it still

21     wasn't over because the airport agreements had a cease-fire and then a

22     period of time to allow the Bosnian Serbs and the government forces to

23     withdraw their heavy weaponry.  And if that wasn't achieved, then the air

24     campaign would then begin.

25             And so immediately there was huge, obviously, adulation of the

Page 32234

 1     people, but we then had this period where we just didn't know which way

 2     it was going to go, either, you know, an opportunity or it would be

 3     dangerous.

 4        Q.   So -- now, well, then, to move on into that area, I take it from

 5     what you've just said that you were involved in negotiations with respect

 6     to the establishment of the cease-fire and the definition and

 7     implementation of the total exclusion zone?

 8        A.   Yes, yes, I was.

 9        Q.   Could you -- in your statement you refer to a meeting with

10     Bosnian authorities on the 8th of February, and just to put this in

11     context, perhaps you could tell us about meetings that might have

12     occurred earlier in that day.

13        A.   It was clearly after the incident a whole series of meetings.

14     And on the -- prior to going to see the Bosnians in the -- in the

15     parliament building, General Rose had already been to Belgrade in order

16     to identify what we could do, and then we were then -- we arranged a

17     meeting in Lukavica, where we believed -- we already understood that

18     General Mladic (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 32235

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)  As soon as

 5     we knew the Serbs were willing to meet the very next day to have the

 6     meeting, we then drove to the Ministry of Defence in Sarajevo, where

 7     General Divjak was there as well as General Hajrulahovic, Hajrulahovic

 8     who was the chief of military intelligence and Colonel Dakic.  And we

 9     then said to them that the Serbs were willing to come to the negotiating

10     table.  They had agreed to all the terms that we proposed to them.  But

11     they were reluctant to agree to anything unless effectively political

12     arrangements for a total peace was to be signed --

13        Q.   Now, if I can just stop you there for a moment so we can allow

14     for the French interpretation to catch up.  Thank you.

15             Now, just to put that meeting -- to put the meeting, this meeting

16     with Bosnian officials that you referred to in further context, I take it

17     from what you've just said that the surprise that General Rose sprung on

18     them that you referred to in paragraph 11 of your statement was made in

19     the context of their reluctance to sign up to the cease-fire.

20        A.   That's correct.

21             JUDGE KWON:  Just a second.

22             Ms. Edgerton, I leave it to you as well as Mr. Witness, what to

23     hear in public session and what to hear in private session.  I'm just

24     telling you as a reminder.  Please continue.

25             MS. EDGERTON:  Yes, Your Honour.  I think - and thank you for

Page 32236

 1     that.  I think that from lines on page 80, line 21 up until page -- your

 2     indulgence for a moment.  Up until page 81, line 7, at the end of the

 3     sentence that says -- that ends with the word "terms," perhaps that

 4     should be redacted.

 5             MR. ROBINSON:  Yes, Mr. President, we could maybe do that for

 6     now, but this is also included in the statement so we may be --

 7             JUDGE KWON:  Which is in under seal.

 8             MR. ROBINSON:  Well, even in the summary, though, I think there

 9     was some mention of this meeting --

10             JUDGE KWON:  Yeah --

11             MR. ROBINSON:  -- but we can be refining it later if necessary.

12     Out of an abundance of caution, if we do redact it, it's okay for now.

13             JUDGE KWON:  Yes.  In the summary, I don't think Mr. Karadzic

14     referred to the participants by name.

15             Yes, we'll do that, Ms. Edgerton, and in the meantime please

16     continue.

17             MS. EDGERTON:  Thank you.

18             And the meeting with General Milovanovic was not part of this

19     earlier evidence as well.  Thank you.

20        Q.   Now, with respect to another paragraph of your Defence statement

21     and that's the meeting mentioned at paragraph 13, where you say:

22             "When the Bosnian military delegation refused to take part in

23     meetings to arrange a cease-fire, General Rose once again met with the

24     government leadership and told them that unless they participated he

25     would tell the world what he suspected about the shellings of the

Page 32237

 1     market-place."

 2             I just want to ask you to clarify:  Were you actually at this

 3     meeting where General Rose said this or not?

 4        A.   There was two meetings.  We all arrived at the airport --

 5        Q.   And if I can just caution you.  If you think your answer should

 6     be given in private session, feel free to indicate that.

 7        A.   Okay.  There was two meetings.  We were all at the airport

 8     anticipating both sides to arrive to start negotiations.  As had been

 9     promised, the Bosnian Serb delegation had arrived led by

10     General (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14        Q.   Um, if I could stop the witness there and ask for private

15     session, please, Your Honour.

16             JUDGE KWON:  Yes.

17             MS. EDGERTON:  And a redaction --

18             JUDGE KWON:  Just a second.

19             MS. EDGERTON:  I apologise.

20                           [Private session]

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 32238











11  Pages 32238-32247 redacted.  Private session.















Page 32248

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20                           [Open session]

21             JUDGE KWON:  Yes, we are now in open session.

22             Please continue, Ms. Edgerton.

23             MS. EDGERTON:

24        Q.   So I'll ask the question again.  So in terms of the UNMOs and UN

25     peacekeepers who were not in base, if I can call it that, what was the

Page 32249

 1     Bosnian Serb reaction?

 2        A.   As far as the Bosnian Serbs were concerned following the

 3     air-strikes, we'd now taken sides against them in support of the Bosnian

 4     Muslims, and so not only was there a huge anger on the Bosnian Serb

 5     leadership's part for us carrying out these air-strikes, but then their

 6     soldiers effectively encircled the weapons collection points, there was

 7     threats of once again taking over those weapons, and UNMOs and soldiers

 8     in isolated locations were then surrounded and basically detained.

 9        Q.   And did you learn from any member of the Bosnian Serb leadership

10     under whose direction that operation had taken place?

11        A.   No.  I mean, we could only assume that because the leadership was

12     so angry about the air-strikes that it would have come from either

13     Dr. Karadzic or General Mladic because they now viewed us as no longer

14     being impartial.

15        Q.   And what was the -- did you -- did the General have concerns for

16     the safety of the UNMOs and peacekeepers who had been so detained?

17        A.   Absolutely.  That was in the forefront of General Rose's mind,

18     and of course while this was all going on the attacks against Gorazde

19     were still taking place.  And we then had cause to carry out more

20     air-strikes against the Bosnian Serb tanks and soldiers who were

21     advancing towards Gorazde itself.  As soon as the air-strikes had

22     effectively started, it was at that point that we also had all our

23     relations with the Bosnian Serb leadership completely suspended, which

24     required then Dr. Owen and Stoltenberg to fly into Sarajevo, for them to

25     try and, you know, repair relations between the international community

Page 32250

 1     and the Bosnian Serbs.

 2        Q.   And what were the General's concerns for their safety?

 3        A.   Just in case something happened to them.  At the end of the day,

 4     you know, this was -- we had now gone from opportunity in a crisis to

 5     danger and, you know, General Rose was absolutely adamant that what he

 6     wasn't going to do was stop any air-strikes that needed to be carried out

 7     just because we had soldiers detained.  You know, the two things were

 8     linked but were to be dealt with separately.  And so General Rose was

 9     adamant that the air-strikes would continue, and eventually, you know, as

10     a result of the air-strikes, as a result of the negotiations that were

11     taking place at a much higher level, the Bosnian Serb attack against

12     Gorazde ended and were able to resolve that crisis.

13        Q.   Thank you.  And just one final question to go back to Sarajevo,

14     over the course of your tour there, did you -- and your conversations

15     with civilians in the city, did you understand the conditions to have any

16     psychological effect on them?

17        A.   Absolutely.  At the end of the day, if you are subjected - it

18     doesn't matter who you are, where you live - to the threat or the

19     physical firing of small arms ammunitions from machine-guns or sniper

20     rifles to mortars to heavy artillery to tank ammunition, if that was

21     always hanging over you, psychologically, you know, that would be

22     damaging.  That's the nature of warfare and regrettably siege warfare as

23     we witnessed in Sarajevo and as we've seen in conflicts more recently in

24     Iraq and Afghanistan, where you fight amongst the people.  Yes, you are

25     primarily targeting the military, but the civilians regrettably tend to

Page 32251

 1     bear the greatest burden.

 2             MS. EDGERTON:  Your indulgence for just one moment, Your Honour.

 3                           [Prosecution counsel confer]

 4             MS. EDGERTON:

 5        Q.   I just want to go back before closing actually to one point that

 6     you've just made with respect to -- or the issue we were just discussing

 7     with respect to the detention of the UN peacekeepers and the hostages.

 8             MS. EDGERTON:  And at this point, Your Honours, I would like to

 9     invite the witness to turn to his diary.  And it's 65 ter 24422.

10        Q.   And to ask you to have a look at the entries for 14 April 1994.

11             MR. ROBINSON:  Well, I think there has to be a question first

12     before doing this to establish that it's necessary for him to refresh his

13     memory or some other legitimate use of this.

14             JUDGE KWON:  That's the modality we are -- talked about, but,

15     Mr. Witness has looked at his diary already.

16             MR. ROBINSON:  But he's done that when it was necessary to

17     refresh his memory.

18             JUDGE KWON:  Yes.

19             MR. ROBINSON:  But I don't -- this is a leading question,

20     obviously, as you've told Dr. Karadzic many times, putting a document

21     before the witness before asking a question is leading.

22             JUDGE KWON:  Yes, we agreed, or at least I told the parties to

23     follow that proceedings or regime, but -- sir, have you read the --

24             THE WITNESS:  I have, yes.

25             JUDGE KWON:  He has read the diary already.

Page 32252

 1             So what is your question, Ms. Edgerton?

 2             MS. EDGERTON:  I'm sorry, I could have rephrased the question,

 3     and I apologise, but the question is:

 4        Q.   Now, you described these UN personnel as being detained, but I

 5     note that on page 50 in the third and fourth paragraph you used the word

 6     "hostage," saying this was potentially a hostage situation.  And at page

 7     55 and page 56 you also used the term "hostage" to describe their status.

 8     And yet you haven't used that word now and I'm wondering why.

 9        A.   I can't answer that question.  I mean, we talk about detention,

10     they're detainees.  A hostage is exactly what they were in that respect

11     in terms of they were being held in order to elicit a deal or something

12     as a result, the idea being, you know, the Bosnian Serbs deliberately

13     took these people because they believed that we were now enemies because

14     we'd bombed them, with a view that if the bombings continued that

15     potentially something might happen to them.  I don't use the term -- I

16     use the term "hostage" in my diary, I didn't use it then, there was no

17     reason why I shouldn't have used it, but there was no malicious intent

18     intended.

19        Q.   Thank you very much for that clarification.

20             MS. EDGERTON:  I have nothing further, Your Honours.

21             JUDGE KWON:  Before giving the floor to Mr. Karadzic for his

22     re-examination, could we go back to private session briefly.

23                           [Private session]

24   (redacted)

25   (redacted)

Page 32253

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 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20                           [Open session]

21             JUDGE KWON:  Yes, we are now in open session.

22             Mr. Karadzic, I'd like to know for planning purposes how long you

23     would need to conclude your re-examination.

24             THE ACCUSED: [Interpretation] Until when do we work today?

25             JUDGE KWON:  Originally we are to adjourn at quarter to 3.00.

Page 32254

 1             THE ACCUSED: [Interpretation] I'll do my best to finish by then,

 2     but I would beg for a bit of flexibility, perhaps until 3.00?  But I hope

 3     I will finish before that.

 4             JUDGE KWON:  Thank you.

 5                           Re-examination by Mr. Karadzic:

 6        Q.   [Interpretation] I'll start with last things first.  Witness,

 7     according to what you know, was the NATO air force precise in shelling

 8     the Serbian positions near Gorazde?  Were there any hits, in other words?

 9        A.   The --

10             JUDGE KWON:  Just a second.

11             Yes, how --

12             MS. EDGERTON:  I did raise the subject of the air-strikes

13     generally, but this I think goes far outside what I did raise in the

14     cross-examination.

15             JUDGE KWON:  Could you explain to us, Mr. Karadzic, how it arose

16     from Ms. Edgerton's cross-examination in terms of precision of NATO

17     strike?

18             THE ACCUSED: [Interpretation] Well, I'm going to reveal more than

19     I wanted.  How precise were they?  Were there any persons who guided the

20     shelling?  Were there hostages or were there prisoners?  Please trust me

21     with that.  I know what I'm aiming for, but I don't want to put leading

22     questions to the witness.

23             JUDGE KWON:  Very well.  Please continue.

24             THE WITNESS:  The NATO air-strikes on Gorazde conducted over what

25     was very difficult terrain.  Anybody's who's been to Gorazde will know

Page 32255

 1     how difficult it is moving very quickly in terms of the flight path to

 2     engage potentially moving or static targets.  The NATO aircraft were

 3     clearly doing a number of overflights, taking reconnaissance images of

 4     known Bosnian Serb positions, but we also had the capability because of

 5     the forces in terms of the Joint Commission observers to direct fire

 6     directly onto targets.

 7             MR. KARADZIC: [Interpretation]

 8        Q.   In other words, there were people on the ground and they took an

 9     active part in the shelling; right?

10        A.   The nature of the quality of the Joint Commission observers meant

11     that they could revert from, as soldiers, a peacekeeping role to a war

12     fighting role.  So as soon as we were in a position because of the UN

13     Security Council Resolution 836 to use self-defence or force to protect

14     the safe areas, General Rose then directed that that action take place.

15        Q.   Thank you.  Did you have an occasion to see me personally

16     requesting that a distinction be established between close air support

17     and air-strikes?  We accepted close air support but we did not want

18     air-strikes.  We actually thought that air-strikes would be a direct

19     involvement and interference in the war?

20             MS. EDGERTON:  I --

21             JUDGE KWON:  Are you feeding the witness with answers?  Could you

22     reformulate your question?

23             THE ACCUSED: [Interpretation] Yes, I can.

24             MR. KARADZIC: [Interpretation]

25        Q.   Just a while ago you stated that General Rose thought that

Page 32256

 1     [In English] self-defence or force to protect the safe areas.

 2             [Interpretation] Was it part of your mandate to militarily

 3     protect the protected areas?  I'm not -- I'm talking about your forces.

 4     Was it part of your mandate to take an active part in the war in case

 5     protected areas came under attack?

 6        A.   General Rose interpreted this as part of UN Security Council

 7     Resolution 836.  Close air support would be in direct support of or in

 8     defence of our own forces.  Air-strikes were targeted against Bosnian

 9     Serb tanks, observation posts, artillery, and forces to prevent them from

10     further advancing into Gorazde.

11        Q.   Thank you.  Just a while ago you stated that in Serbian

12     perception you became their enemy.  What would you call a member of an

13     enemy formation who was captured?  Would he be a hostage or would he be a

14     prisoner of war?

15        A.   In the state of war in the regard that you describe, then it

16     would be a prisoner.  But we didn't see ourselves as being at war with

17     the Bosnian Serb people.  And throughout this whole process on the

18     telephone to General Mladic and other leaders, one thing I had to confirm

19     on every occasion that we weren't taking sides and we were, therefore,

20     only doing this in re post.

21        Q.   Thank you.  Perhaps the Serbian people did not perceive you in

22     that way; however, how did the Serbian army perceived you in view of the

23     NATO air-strikes which were directed by soldiers who were on the ground?

24     Did they perceive you as an enemy?

25             MS. EDGERTON:  Your Honour, Dr. Karadzic is talking about

Page 32257

 1     something that is, I think, a year outside of this witness's tour of duty

 2     and was not part of the cross-examination.

 3             THE WITNESS:  I can only comment about the air-strikes in 1994.

 4             JUDGE KWON:  Yes.

 5             What's the basis?  You say that it's a year outside?

 6             MS. EDGERTON:  NATO air-strikes were in September 1995,

 7     August/September 1995, and not in 1994, Your Honour.

 8             JUDGE KWON:  Just a second.  Just a second.

 9             THE ACCUSED: [Interpretation] Maybe I can be of assistance.

10             JUDGE KWON:  He talked about the detention of UNMOs,

11     Ms. Edgerton.  What year was it, Mr. Witness?

12             THE WITNESS:  I think the issue is that Dr. Karadzic views the

13     use of force in Gorazde to prevent the Bosnian Serb army entering the

14     town as air-strikes or we're using that term.  What the Prosecution are

15     suggesting is actually in 1994 that was termed close air support, whereas

16     the actual air-strikes were in 1995.

17             JUDGE KWON:  Thank you.

18             Let's move on, Mr. Karadzic.

19             THE WITNESS:  But to answer the question, obviously, the Bosnian

20     Serb military were not happy with the fact that we had started bombing

21     them and very much viewed us as the aggressor and viewed us as an enemy

22     at that time, which is something that we didn't perceive ourselves to be.

23             MR. KARADZIC: [Interpretation]

24        Q.   Thank you.  How did the relationship between the Bosnian Serb and

25     UNPROFOR develop after the air-strikes in Gorazde?  And I am talking

Page 32258

 1     about both military and political authorities on the Serbian side.

 2        A.   Initially all our relationships with both the military and the

 3     political leadership were completely severed, and then over time through

 4     the work of Owen Stoltenberg we were able very quickly to re-establish

 5     civilian-only communications channels with Dr. Karadzic.  There was no

 6     military -- there was no formal military negotiations take place.  A

 7     whole series of meetings then took place between Yasushi Akashi and

 8     Dr. Karadzic in an attempt to resolve the crisis.  At the forefront of

 9     everybody's mind was to end the hostage situation with, as we referred

10     it, or the detainees or the prisoners.  And Dr. Karadzic was very

11     supportive of that.  And this is where we then had arguments between

12     Dr. Karadzic and the military.  The military weren't keen to release

13     these individuals, whereas Dr. Karadzic - realising how this was being

14     perceived and broadcast around the world - was very keen to end the

15     crisis.

16             The formal military negotiations only then took place once the

17     air-strikes, close air support, had been concluded, we were then able to

18     implement the agreement to formally establish a cease-fire and exclusion

19     zone in Gorazde.

20        Q.   Thank you.  With regard to what Madam Edgerton said about

21     air-strikes in 1994 and in 1995, how many air-strikes, NATO air-strikes,

22     in Bosnia there were against the Serbs there, was it just once or was it

23     more than once?

24             MS. EDGERTON:  Your Honour.

25             JUDGE KWON:  Yes.

Page 32259

 1             MS. EDGERTON:  It's outside of the cross-examination.

 2             THE ACCUSED: [Interpretation] I want to clarify things.

 3     Madam Edgerton thought that I was talking about hostages which were taken

 4     in 1995 and we are talking about air-strikes that happened near Gorazde

 5     in 1994, and in 1994 there were more air-strikes, not only those in

 6     Gorazde.

 7                           [Trial Chamber confers]

 8             JUDGE KWON:  The Chamber allows the question to be put.

 9             THE WITNESS:  There was a number of air-strikes or planned

10     missions against various targets in Bosnia at that time.  In fact, the

11     first mission that we intended to conduct was actually against the

12     Bosnian Croats, with -- a few of them who were holding up a convoy

13     further to the south of Sarajevo, but then word got the out to the Croats

14     that we were intending to do this, probably from our own headquarters,

15     and that mission was called off.  Over Gorazde, off the top of my head I

16     think we carried out five, maybe six separate missions, and there was an

17     aborted mission also in Bihac when the Serbs around the same time again

18     were responding to incidents in the north.

19             MR. KARADZIC: [Interpretation]

20        Q.   Thank you.  How many times did UNPROFOR request missions to be

21     carried out against the Muslim army and how many times was that

22     implemented, as far as you know?

23             JUDGE KWON:  How is this relevant to cross-examination,

24     Mr. Karadzic?

25             MR. ROBINSON:  Well, Mr. President, if I can just address that.

Page 32260

 1     The Prosecution elicited how angry the Bosnian Serbs were concerning the

 2     air-strikes that were directed against them.  I think this is a

 3     legitimate element of that.

 4                           [Trial Chamber confers]

 5             JUDGE MORRISON:  Well, let me understand you, Mr. Robinson.

 6     You're saying that part of the anger might have been because they did not

 7     perceive that there were strikes carried out against the Muslim army?

 8             MR. ROBINSON:  Exactly, that they were targeted unfairly.

 9             JUDGE KWON:  Very well.

10             Can you answer the question.

11             THE WITNESS:  At no stage were air-strikes or any sort of

12     offensive action targeted against the Bosnian Muslims for any of the

13     breaches that they conducted anywhere around Bosnia, irrespective of on

14     the front line or a safe area.  And politically it wouldn't have been

15     sanctioned because, of course, whilst General Rose could request the

16     air-strikes, ultimately it was a NATO mission that would be called to

17     support his request.  And we viewed that politically this would be

18     unacceptable.

19             MR. KARADZIC: [Interpretation]

20        Q.   Thank you.  We shall leave this subject now.  I will not talk

21     about a particular occasion, but you did confirm that you had an

22     opportunity to review the situation in Dobrinja.  In Dobrinja, did you

23     notice any presence of the BH army, trenches, installations, artillery

24     weapons?

25        A.   There was a brigade of the 1st Sarajevo Corps based in Dobrinja,

Page 32261

 1     so needless to say that the forward edges of the -- of the area were for

 2     the trenches and they had obviously small arms to the fore, and in

 3     amongst the rear they had their mortars and other heavy weaponry, so they

 4     were operating monastery the people, yes.

 5        Q.   Thank you.  You have said earlier today that it was in the

 6     interest of the Muslim side for fighting to continue and for the

 7     situation to look as bad as possible for the purpose of involving NATO

 8     and the West generally into the war on their side.  As far as the

 9     fighting in Sarajevo is concerned and the demilitarisation of Sarajevo,

10     what were the interests of Serbs in that area?  And what position did

11     General Milovanovic take concerning this crisis and concerning the

12     demilitarisation?

13        A.   General Milovanovic had the full authority from yourself and

14     General Mladic to come to an agreement with us to formally end the

15     conflict in and around Sarajevo without any caveats on that agreement.

16     I -- we all knew that from a, you know, Bosnian Serb perspective, the

17     ongoing siege around Sarajevo and the fact that there was artillery,

18     mortars, machine-guns, sniper fire taking place was doing their cause

19     horrendous damage, which is why one thing that annoyed General Rose was

20     the fact that the Bosnian government side resisted all our attempts to

21     try and end this.  And so that's why the opportunity of the market

22     massacre was such that we were now in a position with the Serbs under

23     pressure from air-strikes, because they were being blamed for this, and

24     with the Bosnian government being under pressure to act because we

25     effectively fought them to a corner, we therefore had the opportunity to

Page 32262

 1     finally end the destruction that was taking place in Gorazde -- wrong, in

 2     Sarajevo.

 3        Q.   In line 7 on this page you mention horrendous damage.  How did

 4     the general fighting in Sarajevo impact on the interests of Serbs and the

 5     Serbs' position, in your opinion?

 6        A.   I mean, it's obvious that the Bosnian Serb population in the

 7     suburbs, places like Gorazde, Vogosca, Ilidza, they themselves had been

 8     subjected to fire from the Bosnian side.  But at the end of the day, the

 9     amount of fire directed the other way was far greater than the fire

10     directed towards the Bosnian Serb side.  If you're under fire, you're

11     under fire, you still live under the same psychological or threatening

12     conditions.

13        Q.   Did you know how far the confrontation lines were from each other

14     and what the situation was on the hills around Sarajevo vis-a-vis the

15     confrontation lines?

16        A.   The confrontation line was very different depending on where you

17     went.  In places around Ilidza, the confrontation line at some stage

18     could be as far away as a hundred metres away from each other through to,

19     when we visited one position, 5 metres.  Places around Grbavica in one

20     case just to the east of Grbavica there was a building known as the red

21     house, and they were literally separated by only a wall within the same

22     building.  Further away, out of -- once we left the built-up area of

23     Sarajevo and then you went into open ground, because it would have been

24     suicidal for any of the sides to fight in open ground, the Bosnian Serb

25     line was then further to the rear where they obviously could dominate the

Page 32263

 1     ground and dominate -- or prevent any infantry assaults, of which were

 2     there many, in the period that we were there before the cease-fire with

 3     their superior heavy weaponry.  So, you know, the front line could have

 4     been as close as one, you know, 1 foot through to, you know, 1 kilometre,

 5     in terms of the difference between the two forces.

 6        Q.   Thank you.  Did the BH army have its own positions on those same

 7     hills around Sarajevo?

 8        A.   I don't recall them dominating any high ground around Sarajevo,

 9     but there was high ground within Sarajevo that they had their positions

10     on.  Obviously then immediately around Sarajevo you then had a mixture of

11     Bosnian Croats and Bosnian Muslim positions.  The only time we were aware

12     of any mortars being fired from the area of -- the other side of the

13     airport into Sarajevo was on one particular day when our prime minister

14     was visiting.

15        Q.   Which side fired that day a mortar?

16        A.   Yes, it was the Bosnian government forces fired on that day.  One

17     of the trends that we very quickly realised was taking place in Sarajevo

18     was whenever there was any high-level negotiations or business taking

19     place, then the Bosnian government side quite frequently would fire

20     mortars, let's say from the rear of where we were towards the Presidency

21     or in this case from their controlled area to the west of Sarajevo into

22     Sarajevo, with a view of -- well, provoking Serb fire.  And of course,

23     you know, whenever we had a high-ranking visitor, they would hear the

24     fire going on, a news reporter was there, and, of course, on the whole,

25     just where I suspect your question is leading me, on the whole this was

Page 32264

 1     reported in the media.  But of course it was always reported as the Serbs

 2     firing at the time of this visit as opposed to being provoked, which was

 3     what was happening.

 4        Q.   Thank you, Witness.  You were asked on page 71 about harassing

 5     fire and the types of harassment against an enemy aimed at lowering his

 6     combat morale, et cetera.  Are these unlawful war methods or are they

 7     allowed?

 8        A.   Under the normal rules of war, fire against an enemy in terms of

 9     the combatants can take a number of forms and harassing fire against

10     enemy combatants is one of those forms which is accepted.  The problem in

11     Sarajevo was that the Bosnian government forces were located in amongst

12     the people, and therefore inadvertently -- well, in reality we therefore

13     had harassing fire potentially fired against the combatants.  We had also

14     had individuals who were probably deliberately targeting and were

15     targeting civilians which in itself was psychological warfare against the

16     civilian population.

17        Q.   Thank you.  What would you say, on whom lies the responsibility

18     to demilitarise a civilian area?  Was the VRS, the Army of

19     Republika Srpska, bound to do that or the BH army?  Who is responsible

20     for removing their own civilians from the fighting?

21             JUDGE KWON:  I don't think it's a proper question for this

22     witness.  Please move on.

23             THE ACCUSED: [Interpretation] Thank you.

24             MR. KARADZIC: [Interpretation]

25        Q.   You have mentioned - speaking of Konjevic Polje - and I'm not

Page 32265

 1     going to say anything specific, but you said that mines had been set and

 2     they had to be removed in order to pass through.  Whose minefield was it,

 3     if you know?

 4        A.   Yes, we'd asked the Bosnian Serbs to remove those mines from the

 5     Zvornik Brigade.  They said they weren't their mines because they didn't

 6     have the mapping in terms of how the mines were laid, they couldn't help

 7     us.  So they were Bosnian government mines that we were clearing.

 8        Q.   You have mentioned - and I'll avoid being specific again in order

 9     for us to stay in open session - that General Morillon had a time window

10     of 12 hours in which he did not manage to complete the mission so he

11     stayed overnight.  And then on the way back the UN team had another 12

12     hours.  Who approved the other 12 hours?

13        A.   The 12-hour dead-lines were agreed between the UN forces and the

14     Bosnian Serb army in the area, i.e., we had 12 hours to complete the

15     missions.

16        Q.   Did the Muslim side, Oric and his men, know about this time

17     allowance of 12 hours?  Were they informed?

18        A.   Yes, they were informed, and therefore when the 12-hour dead-line

19     had ended we knew therefore that at any stage after the 12 hours that the

20     Bosnian Serbs would then recommence their attack at that stage, which is

21     why the forces in the pocket at that time were pleading with the people

22     who surrounded the vehicles and the soldiers who were there also, to

23     release those soldiers in order they can get out of the pocket before the

24     attack went in.

25        Q.   Thank you.  Bearing in mind that 12 hours were granted in

Page 32266

 1     advance, was the renewed attack by the Republika Srpska army legitimate?

 2        A.   You could argue that it was legitimate, yes.

 3             JUDGE KWON:  It's not for the witness to say what's legitimate or

 4     not legitimate.

 5             How much longer do you need, Mr. Karadzic?

 6             THE ACCUSED: [Interpretation] I will conclude in time.

 7             JUDGE KWON:  Thank you.

 8             MR. KARADZIC: [Interpretation]

 9        Q.   Just one more question, Witness, as regards information released

10     to the media and to international officials, how would you assess what

11     the Muslim side put out about Cerska, Gorazde, and Sarajevo?

12        A.   The Bosnian government very frequently, almost in every occasion,

13     whenever there was a crisis, would right from the beginning almost

14     exaggerate the situation that was being faced on the ground.  This was

15     then broadcast in the media, which then put us under great pressure to

16     act.  But of course the information that we were then receiving from

17     these places from our own people quite often contradicted those claims.

18             But whenever we put the truth out, in reality that was already

19     too late and the oversensationalisation of the circumstances in

20     international media took preference.  So there's, you know, there was a

21     huge amount of disinformation taking place, and ultimately from a media

22     perspective the media was very sided against the Serbs and very

23     pro-Bosnian government.  So, you know, the Bosnian government would use

24     the circumstances to put pressure on the international community,

25     particularly the Americans, to come in on side -- on their side in order

Page 32267

 1     to end the siege and to bomb the Serbs.

 2        Q.   Thank you.  The last subject.  You mentioned that somebody from

 3     the United Nations carried out an investigation into the incident of the

 4     4th February 1994 in Dobrinja.  Was that a French officer named Verdy who

 5     did also the 5th February analysis that was rejected by the

 6     United Nations.

 7             THE ACCUSED: [Interpretation] Can we see P01597, P01597.

 8             MR. KARADZIC: [Interpretation]

 9        Q.   Is that the one you meant?  Was there one analysis or two

10     analyses on behalf of the United Nations?

11             JUDGE KWON:  Just a second.

12             Yes, Ms. Edgerton.

13             MS. EDGERTON:  Well, first of all, the witness gave the name

14     earlier in the transcript.  Second of all, the way the question is

15     phrased is inappropriate and should be rephrased.

16             JUDGE KWON:  You meant the accused.  I'm sorry, yes, I was

17     mistaken.

18             MS. EDGERTON:  No, the name of the individual, the name of the

19     officer, the witness has already provided that today in the transcript.

20     I'll just try and find that for Dr. Karadzic.

21             JUDGE KWON:  What is your question, Mr. Karadzic?

22             MS. EDGERTON:  And, if I may --

23             JUDGE KWON:  Yes, Ms. Edgerton.

24             MS. EDGERTON:  I apologise, I believe the name of the officer was

25     in the diary that we weren't permitted to refer to.

Page 32268

 1             MR. KARADZIC: [Interpretation]

 2        Q.   My question was whether there were one or more analysis on behalf

 3     of the United Nations; and if there was only one, was it this one?  Which

 4     one did the witness refer to?

 5        A.   I'm only aware of the one analysis that took place and the

 6     individual who we saw at the site is the releasing officer on this form

 7     that you've got in front of me.  I have a picture of the actual analysis

 8     taking place, if it helps.

 9        Q.   Thank you.  Did this officer collaborate with the investigators

10     of the Bosnian government on this job?

11        A.   I have no knowledge of that whatsoever.  I don't know of the

12     officer that you refer to, I've never heard his name mentioned before.  I

13     only know the releasing officer on the actual form itself.

14        Q.   Could we agree -- could we scroll down a little.  The angle of

15     approach, 2.000 mils.  Do you know which system was applied here, the one

16     that has 6.000 mils or 6400 mils?

17        A.   I don't understand the question, to be honest with you.

18             MS. EDGERTON:  And --

19             JUDGE KWON:  Yes, Ms. Edgerton.

20             MS. EDGERTON:  -- I don't think it's a question for this witness

21     either.

22             THE ACCUSED: [Interpretation] All right.

23             MR. KARADZIC: [Interpretation]

24        Q.   Would you, Witness, as a military person like to see in this

25     report also the minimal range?

Page 32269

 1             JUDGE KWON:  Mr. Karadzic, I'm not sure whether the witness has

 2     expertise enough to answer that kind of question.

 3             Why don't you conclude then?

 4             THE ACCUSED: [Interpretation] Thank you.  Never mind.

 5             MR. KARADZIC: [Interpretation]

 6        Q.   Do you know that this same officer worked on an analysis the next

 7     day at Markale and that one was rejected by the United Nations?

 8             MS. EDGERTON:  Not an appropriate question, Your Honours.

 9             JUDGE KWON:  Please conclude your re-examination, Mr. Karadzic.

10             THE ACCUSED: [Interpretation] Thank you.  I will do just that

11     after expressing my gratitude to the witness for coming here, testifying,

12     and being prepared to stay beyond the time he expected to leave.

13             JUDGE KWON:  Thank you, Mr. Karadzic.

14             Unless my colleagues have a question for you, that concludes your

15     evidence, sir.

16             THE WITNESS:  Thank you, sir.

17             JUDGE KWON:  On behalf of the Chamber, I thank you for your

18     coming to The Hague to give it.

19             THE WITNESS:  Thank you, sir.

20             JUDGE KWON:  Please have a safe journey back home.

21             THE WITNESS:  Thank you.

22             JUDGE KWON:  Before the witness could be excused, there are a

23     couple of matters I would like to deal with.  Shall we draw the blinds

24     and let the witness be excused first.  That may be safer.

25             MR. ROBINSON:  As far as I'm concerned the witness can stay and

Page 32270

 1     hear any of that unless it's a private session --

 2             JUDGE KWON:  Yes, we need to go into private session.  So let's

 3     draw the curtains.

 4             Thank you.

 5                           [The witness withdrew]

 6             JUDGE KWON:  Has any agreement been made as regards the order of

 7     witnesses on Monday and Tuesday?

 8             MR. ROBINSON:  No, Mr. President, so I think we'll just stay with

 9     the present order of calling three witnesses prior to General Milosevic.

10   (redacted)

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20             JUDGE KWON:  Oh, I'm sorry.  I should have dealt with this in

21     private session.  We will redact this.  My apology.  With the blinds I

22     was mistaken.

23             Shall we go to private session briefly.

24                           [Private session]

25   (redacted)

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24                           [Open session]

25             JUDGE KWON:  Yes, we are now in open session.  The hearing is now

Page 32272

 1     adjourned.  We'll resume on Monday at 9.00.

 2                           --- Whereupon the hearing adjourned at 2.57 p.m.,

 3                           to be reconvened on Monday the 21st day of

 4                           January, 2013, at 9.00 a.m.