Tribunal Criminal Tribunal for the Former Yugoslavia

Page 7279

 1                           Thursday, 24 January 2013

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.34 a.m.

 5             JUDGE ORIE:  Good morning to everyone.

 6             Madam Registrar, would you please call the case.

 7             THE REGISTRAR:  Good morning, Your Honours.

 8             This is the case IT-09-92-T, The Prosecutor versus Ratko Mladic.

 9             JUDGE ORIE:  Thank you, Madam Registrar.

10             The Chamber was informed that the Prosecution would like to raise

11     two preliminary matters, and the Defence one.

12             Mr. Groome.

13             MR. GROOME:  Good morning, Your Honours.

14             First a very simple matter.  General Smith has asked if he could

15     have a hard copy of his statement as well as some blank paper to make a

16     few notes, if necessary, regarding questions.  I've shown this to

17     Mr. Ivetic.  He has no objection.  So with the Court's permission, I

18     would ask the usher to place this on the table.

19             JUDGE ORIE:  Permission is granted.

20             MR. GROOME:  Secondly, Your Honour, yesterday at transcript 7273,

21     the Chamber expressed that it was still troubled by the discussion

22     surrounding the legal status of the protocol attached to a memorandum

23     from Akashi dated 16 August 1994 and now in evidence as D112.  Lest any

24     confusion take root, I want to direct the Chamber to Prosecution

25     Exhibit P631 which is a second memo from Akashi which specifically

Page 7280

 1     references the 16 August memo by number, Z1256.  In P631 [realtime

 2     transcript read in error "613"], Akashi makes a clear statement of the

 3     legal status of the protocol the Defence has suggested had been accepted

 4     and had legal effect:

 5             "The attached protocol in contrast is a Bosnian Serb proposal

 6     that was never accepted by us, the protocol was sent to us in error, and

 7     was forwarded to you without a full examination."

 8             Akashi attached to this correspondence an assessment of the

 9     document from the UNPROFOR senior legal advisor which unequivocally

10     stated:

11             "Draft that had been prepared and submitted by the Bosnian Serb

12     negotiators but was found acceptable -- unacceptable by the UNPROFOR

13     negotiators and was never signed.  Accordingly, it cannot be regarded as

14     having any legal standing."

15             Your Honour, this fact is also corroborated by the evidence of

16     RM163 at transcript page 6175, RM055 at transcript page 7225, and

17     General Rose at transcript page 6976.

18             Your Honours, it is the Prosecution's position that P613 is

19     dispositive of the legal status of the protocol proposed by the Bosnian

20     Serbs in D112.  However, we stand ready to explore the matter further

21     should the Chamber take a different view.

22             JUDGE ORIE:  Mr. Ivetic -- well, Mr. Groome, whether this

23     resolves all the problems is still to be seen.  But at least you have now

24     pointed at what you consider to be the relevant sources for the Chamber

25     to make an assessment on the legal status.  Mainly, also documents which

Page 7281

 1     came months and months after the protocol apparently was drafted.

 2             Mr. Ivetic.

 3             MR. GROOME:  Your Honour, if I could just correct the record.  On

 4     page 2 at line 14 I'm recorded as having said "613," I intended "631."

 5     Thank you.

 6             JUDGE ORIE:  Yes, that's what I jotted down on my piece of paper.

 7             Mr. Ivetic.

 8             MR. IVETIC:  Just briefly to respond to the arguments presented

 9     by counsel, I wasn't aware we were at that stage of the proceedings, but

10     I would ask Your Honours to keep an open mind and examine all the

11     evidence as indeed I believe even the testimony of this witness who is

12     coming today will be illustrative on the fact of the protocols and how

13     they were viewed by those on the grouped on both sides on UNPROFOR and on

14     the side of the combatants, the combatting parties.

15             But I rise for another matter, Your Honours.

16             As a preliminary matter to this witness --

17             JUDGE ORIE:  One second, please.

18             MR. IVETIC:  Yes.

19             JUDGE ORIE:  Yes.  Please proceed.

20             MR. IVETIC:  As a preliminary matter to this witness being

21     brought in, it is my duty to rise and bring to your attention a matter

22     relating to the list of exhibits for this witness.  Your Honours have

23     issued a guidance whereby the initial list of exhibits for a witness are

24     to be given seven days in advance of their testimony.  In this case, we

25     did receive such a list and it was, indeed, a very lengthy list of

Page 7282

 1     documents, some three binders' worth once printed.  Your Honours have

 2     also stated that upon proofing the list can be amended with a reasonable

 3     number of documents which arise during proofing.  Here, the proofing of

 4     the witness was on the 8th of January, 2013.  At least that is according

 5     to the information report which we have received.  That information

 6     report which we received the 18th of January, 2013 was dated the 11th of

 7     the January, 2013, and did not list any new documents arising from the

 8     proofing.

 9             Now, just one day before the witness was scheduled to testify,

10     that is, on the 22nd of January, and almost a full two weeks after the

11     witness's proofing session, we all of a sudden receive notice of some

12     seven new documents that are being added to the Prosecution list for this

13     witness with no explanation of where they came from, and I have to say

14     granted upon review we now note that four are extracted from existing

15     documents that were on the list but three are completely new.

16             Unless there was a new and undisclosed to us proofing of this

17     witness, we do not know how and why these new documents arise just before

18     the day that a witness of this complexity is scheduled to testify,

19     especially since they were all on the Rule 65 ter list previously and

20     apparently did not arise during proofing.

21             I need to know, and the members of the Defence team need to know,

22     for purposes of knowing how to best represent and protect the rights of

23     our client, in light of Your Honours' previous guidance, and the

24     established practice of the Prosecution to date, what exactly is the law

25     of the case as to the addition of documents to the direct examination

Page 7283

 1     list for a witness?  What are the methods of enforcement and what are the

 2     remedies?  Because we still don't have a clear answer to these questions

 3     or a clear ruling from the Chamber on the degree of notice that our

 4     client and his Defence team are entitled to for Prosecution witnesses,

 5     even if this may be for future witnesses and not this particular witness.

 6             I thank you for your time.

 7             JUDGE ORIE:  Thank you, Mr. Ivetic.

 8             Mr. Groome, three entirely new documents, because that's the core

 9     of the argument.

10             MR. GROOME:  Could I ask Mr. Ivetic to tell us -- I'm unaware of

11     three new documents, Your Honour.

12             MR. IVETIC:  By way of e-mail, January 22nd, 9.47 a.m., we

13     received 65 ter numbers 2227M, 22270P, 22270S, 01691A, 01624A, 05258,

14     27625, and P38.

15             It is my understanding that the last three --

16             JUDGE ORIE:  Mr. Ivetic, yes.  I asked for the three.  But the

17     last three ones are entirely new in your view?

18             MR. IVETIC:  That's my understanding, Your Honours.  I don't have

19     the break down of the documents in front of me, but it's -- three of

20     those documents are entirely new.  I can tell from looking at them that

21     the first four appear to be ones that were extracted from an existing --

22     existing audio recording that was on the list.

23             JUDGE ORIE:  Mr. Groome.

24             MR. GROOME:  Your Honour, more than a week before this witness

25     testified the Defence was provided with a list, a very detailed list of

Page 7284

 1     the exhibits that would be used.  With respect to 2270, over the course

 2     of the week we limited -- it's a set of intercepts.  We limited the

 3     number of intercepts and we gave specific information about that.

 4             With respect to P38, that is an original UNPROFOR report that

 5     appears in 3535, 65 ter 3535.  We -- Prosecution gave notice that we

 6     would also be using P38, which is the same as that, but that we would

 7     also be asking the witness to look at that.

 8             The other two, Your Honour, I would have to take a look in

 9     e-court.  I believe they are intercepts, and I believe that we did give

10     notice of them.  I'm sorry, 5258 is a map of the Srebrenica area, and I

11     can indicate now I will not use that with the exam.  But it was simply a

12     map.

13             JUDGE ORIE:  5258, yes.

14             MR. GROOME:  And 2765 is an intercept that I will not be using

15     today as well.

16             I believe --

17             JUDGE ORIE:  Mr. Groome, we have 27625 mentioned by Mr. Ivetic.

18     Is that the same?

19             MR. GROOME:  That's the same one, I misspoke.

20             JUDGE ORIE:  Yes.

21             MR. GROOME:  So I will not be using that today, Your Honour.  I

22     believe it was part of a larger collection of intercepts as well, but I'm

23     not going to use that today, so I don't believe there is any exhibits

24     that I'm using today that the Defence did not have more than a week's

25     notice that I would use.

Page 7285

 1             JUDGE ORIE:  Mr. Ivetic, when did you receive those new

 2     documents, you said?  Let me see.  The 22nd, which --

 3                           [Trial Chamber confers]

 4             JUDGE ORIE:  Yes.  And then I take it you immediately contacted

 5     the Prosecution, asked them, What are you doing now coming with entirely

 6     new documents isn't it.

 7             MR. IVETIC:  No, Your Honour, because it's happening with every

 8     witness.  So I don't do that.  I look at the documents and see whether

 9     it's a problem with this witness --

10             JUDGE ORIE:  Mr. Ivetic, next time -- we're talking seven

11     documents, some of them clearly linked to other ones.

12             MR. IVETIC:  Correct.

13             JUDGE ORIE:  Next time you're hereby invited, if you want to

14     be -- raise these matters, with the weight, with the heaviness, you do it

15     first one call to the Prosecution.  Because here you say it happens with

16     every witness.  Here it apparently did not happen entirely with this

17     witness.  If you look at the map, and if it's just a map of the

18     Srebrenica environment and the area, then, of course, before asking a

19     ruling from the Chamber on what remedies, I would say, well, we have a

20     map, which now, by the way, is not used and that, of course, confuses.

21     That's clear.

22             Mr. Groome, if you sent lists of documents you say you're not

23     going to use, I think it is better not to do that, but perhaps you'd

24     still have to make up your mind.

25             Mr. Ivetic, if you look at it, give a call to Mr. Groome and say,

Page 7286

 1     What are you doing now?  Because the first thing the Chamber would ask is

 2     what is the type of the document.  If it is simply a map of Srebrenica

 3     area, then there may not be that much reason for the strong language you

 4     used.

 5             We move on.

 6             The Chamber will consider your request.

 7             If there's nothing else to be raised, then could the witness be

 8     escorted into the courtroom.

 9                           [Trial Chamber confers]

10                           [The witness takes the stand]

11             JUDGE ORIE:  Good morning.

12             THE WITNESS:  Good morning.

13             JUDGE ORIE:  Good morning, Mr. Smith.  Before you give evidence,

14     the rules require that you make a solemn declaration.  The text is now

15     handed out to you.  I'd like to invite you to make that solemn

16     declaration.

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

18     whole truth, and nothing but the truth.

19             JUDGE ORIE:  Thank you, Mr. Smith.  Please be seated.

20             When I address you as "Mr. Smith" without title and rank, it's

21     not out of disrespect but for us witnesses of the truth are irrespective

22     of titles and ranks.

23             Mr. Groome, you may start your examination of the witness.

24             Mr. Smith, you will first be examined by Mr. Groome.  Mr. Groome

25     is counsel for the Prosecution.

Page 7287

 1                           WITNESS:  RUPERT SMITH

 2                           Examination by Mr. Groome:

 3        Q.   Sir, can I ask you to begin your testimony by stating your full

 4     name for the record.

 5        A.   My full name is Rupert Anthony Smith.

 6        Q.   Now, General Smith, it's important that the Chamber have an

 7     understanding of your military background, something which is covered in

 8     detail in paragraphs 3 to 5 of your statement which I will tender for

 9     admission in a few minutes.

10             Can I ask you to simply, at this stage, state how long was your

11     military career and what was the highest rank that you achieved?

12        A.   I served for just under 40 years, and I was a full general in the

13     British Army.

14        Q.   Could I ask that 65 ter 28631 be brought to our screens.  It is a

15     statement of General Smith given on several different dates and signed on

16     the 21st of September, 2009.

17             General while your statement is being brought to our screens, can

18     I ask you to tell us whether you ever served in Bosnia-Herzegovina and,

19     if so, tell us in what capacity and during what period.

20        A.   I served in Bosnia-Herzegovina in 1995 for most of that year,

21     from early January -- I'm sorry, late January to the end of the year,

22     just before Christmas.  And I was the commander of the UN forces with the

23     title of commander UNPROFOR.

24        Q.   Who was your immediate superior?

25        A.   My immediate military superior was General Janvier and the

Page 7288

 1     Force Commander in Zagreb.

 2        Q.   Who did you succeed?

 3        A.   General Michael Rose had been my predecessor as commander

 4     UNPROFOR.

 5        Q.   Now, General Smith, we can see the document before you.  Can I

 6     ask that you look at this first page and tell us whether you recognise

 7     any of the signatures in the bottom right-hand corner?

 8        A.   I recognise at least two of them; that is, mine and of a lady

 9     called Carolyn Edgerton underneath that.

10        Q.   And what is the document that we are looking at?

11        A.   The witness statement that was signed and made -- made by me and

12     signed.

13        Q.   Can we now go to the last page, please.

14             JUDGE ORIE:  Could we slow down slightly.  You are both speaking

15     the same language and therefore a short pause between question and answer

16     and answer and question would be appreciated by our interpreters and

17     transcriber.

18             MR. GROOME:

19        Q.   Do you recognise any of the signatures there?

20        A.   Yes, the same two.

21        Q.   Before testifying today, did you have an opportunity to read and

22     review this statement?

23        A.   Yes.  I was able to read it and review it, yes.

24        Q.   In that process, were two typographical errors identified?

25        A.   Yes, they were.  Although I can't remember where they were in the

Page 7289

 1     document.

 2        Q.   Can I ask that we go to paragraph 62.  On e-court, that is 15 in

 3     the original and 12 in B/C/S.

 4             The third line in that paragraph contains an 8-digit evidence

 5     reference number of a document you referred to in your statement.  The

 6     first four digits of that number are incorrectly recorded in the

 7     statement as 0632, when, in fact, they should be 0362; is that correct?

 8        A.   Correct, yes.

 9        Q.   Can we now go to paragraph 75.  In e-court, this is 18 in the

10     original, 14 in the translation.

11             And more precisely, to the second line in that paragraph, which

12     refers to a document ending in ERN number 9398, purportedly dated

13     28 March 1995.

14             Have you now learned that the translation of this document you

15     were shown had a typographical error and that the date of this document

16     is, in fact, 26 March, and, hence, this should be considered in reading

17     this paragraph?

18        A.   Yes, I have learned that.

19        Q.   If the Chamber were to consider your statement in conjunction

20     with these two corrections, would it have an accurate record of your

21     evidence?

22        A.   Yes, it would.

23        Q.   If I were today to ask you questions similar to those you were

24     asked in the taking of the statement, would you give the same answers, in

25     substance?

Page 7290

 1        A.   Yes, I would.

 2        Q.   Sir, now that you have taken the solemn declaration, do you

 3     affirm the truthfulness and accuracy of your statement?

 4        A.   Yes, I do.

 5             MR. GROOME:  Your Honours, having established the foundational

 6     requirements necessary, the Prosecution, at this time, tenders 65 ter

 7     28631 into evidence, pursuant to Rule 92 ter as a public exhibit.

 8             JUDGE ORIE:  Mr. Ivetic.

 9             MR. IVETIC:  Your Honours, the Defence would at this time object

10     to the tendering of this statement and would refer Your Honours to our

11     filing of 1 January 2013, wherein we objected not only to the number of

12     associated exhibits, 56, we objected to certain non-tendered associated

13     exhibits being quoted from verbatim in the statement.  We also objected

14     to multiple associated exhibits that were not integral to the statement

15     pursuant to Your Honours' rulings in prior instances with other

16     witnesses, and we objected to some, I believe, 19 paragraphs containing

17     improper expert opinion that had not been qualified under the appropriate

18     criteria of Rule 94 bis.  To my knowledge we have not received a decision

19     on this motion, so we would suggest that pursuant to our objections that

20     can be MFI'd until Your Honours reach a final determination as to these

21     issues.

22             Thank you.

23             JUDGE ORIE:  Mr. Groome, anything -- the Chamber usually decides

24     on admission at the end of the testimony and then also will consider

25     the -- the associated exhibits and the non-associated exhibits.  Apart

Page 7291

 1     from those used during the testimony.  That's a different matter.

 2             MR. GROOME:  Your Honour, I have no objection to proceeding in

 3     that way.

 4             JUDGE ORIE:  Madam Registrar, the number assigned to the

 5     statement of the witness, 65 ter 28631.

 6             THE REGISTRAR:  Will receive number P785, Your Honours.

 7             JUDGE ORIE:  And is marked for identification.

 8             You may proceed, Mr. Groome.

 9             MR. GROOME:  Your Honour, despite the fact that the statement is

10     in evidence, may I summarise the evidence contained therein for the

11     record.

12             JUDGE ORIE:  Yes.  We'll hear the evidence and the questions

13     anyhow, so, therefore, you may summarise it, although it should also be

14     clear on the record that it's not yet admitted.

15             Please proceed.

16             MR. GROOME:  Thank you, Your Honour.

17             A summary of the evidence of General Rupert Smith.

18             General Rupert Smith was commander of UNPROFOR in Bosnia and

19     Herzegovina from January 1995 until the end of the conflict.  In this

20     capacity, he held numerous meetings with Bosnian Serb political and

21     military leaders, including Mladic, Karadzic, and Krajisnik.  Based on

22     this interaction as well as other observations, General Smith provides

23     evidence about the nature and function of the VRS.  His evidence

24     addresses VRS interference with humanitarian assistance and the resupply

25     of UN personnel, the taking of UN personnel hostage, events during 1995

Page 7292

 1     related to Sarajevo, Srebrenica; in particular, the massacres in

 2     Srebrenica and the second shelling of Markale market.  He provides

 3     evidence of his interaction and meetings with General Mladic and

 4     describes an occasion when he and the Secretary-General's Special

 5     Representative were shot at as they landed in Sarajevo airport and

 6     another occasion when his helicopter came under fire.  General Smith also

 7     provides evidence of his meeting with General Mladic on the 15th of July,

 8     1995.

 9             Your Honours, that concludes a brief summary of General Smith's

10     evidence.  Of course, should the Chamber admit his statement, it will be

11     available to the public as well.

12             May I proceed with some additional questions, Your Honour.

13             JUDGE ORIE:  You may proceed.

14             MR. GROOME:  Could I ask that 65 ter 23867 be brought to our

15     screens.

16        Q.   General, over the course of my examination of you here this

17     morning, I will ask you to provide additional detail regarding portions

18     of your statement, as well as to invite you to make observations on

19     documentary evidence.

20             We're calling up now 23867.

21             THE REGISTRAR:  The document is not in e-court, Your Honour.

22             MR. GROOME:  We'll come back to that.  We'll investigate if

23     there's a problem with that.

24        Q.   In paragraph 30 --

25             MR. GROOME:  I'm sorry, there was a mistake there.  It is there

Page 7293

 1     now.  If I could ask the Court Officer to try again.

 2             And could I ask that we go directly to page two in both

 3     languages.

 4        Q.   General Smith, I would ask you to take a look at the document on

 5     the screen.  It is an UNPROFOR report dated 14 February 1995, recording

 6     what occurred at a meeting between you and General Mladic on the same

 7     day.  Did you have an opportunity to review this document in preparation

 8     for your testimony?

 9        A.   Yes, I did.

10        Q.   Was this your first meeting with Mladic?  If you recall.

11        A.   I'm not entirely sure.  It -- I think it was my second.

12             MR. GROOME:  Can I ask that we go to point 6 in the report.  It

13     is on e-court page 3 in both languages.  And this is the portion of the

14     report that is of greatest relevance to this case, and I want to read it

15     to you:

16             "Evacuation from enclaves, Mladic repeated his offer of an

17     evacuation of 450 people, each from Srebrenica, Zepa, and Gorazde.  This

18     was a gesture of good faith, and the old, the young, and the women of

19     university age would be selected.  This is an offer which has been made

20     previously to the Force Commander.  We propose to tread carefully here,

21     bearing in mind the pitfalls associated with this idea."

22             Can I ask you to explain to the Chamber what the phrase "we

23     propose to tread carefully here" referred to?

24        A.   There -- we were -- we were in -- there were three things that I

25     think was behind that sentence.  The first is that we, the UN, were a

Page 7294

 1     third party in this, and I wasn't about to make a set of agreements that

 2     I didn't have an understanding of the other parties' position in these

 3     matters.  And frequently during the story of UNPROFOR in Bosnia, we, the

 4     UN, had found ourselves making agreements that we couldn't then discharge

 5     because the other party wouldn't agree with us in this triangular

 6     relationship.

 7             The second, was that there was a danger of us, if you like,

 8     conducting ethnic cleansing ourselves by moving people out of these

 9     enclaves and so on and so forth.

10             And, thirdly, and perhaps, that you weren't sure that the -- the

11     basis of the deal that the -- that necessarily you would get the return

12     on -- that was being offered on us being able to take people out of an

13     enclave or some other set of circumstances.

14             MR. GROOME:  Your Honours at this time the Prosecution tenders

15     23867.

16             MR. IVETIC:  No objection from the Defence as to this document.

17             JUDGE ORIE:  Madam Registrar.

18             THE REGISTRAR:  Document 23867 receives number P786,

19     Your Honours.

20             JUDGE ORIE:  And is admitted into evidence.

21             Mr. Smith, women of university age is a concept not -- I'm not

22     familiar with.  Could you explain.

23             THE WITNESS:  At this distance, while I may have understood what

24     that meant then, I'd be pressed to be sure of what we meant.  I imagine

25     young women in their 18-to-22 age group.  But I wouldn't --

Page 7295

 1             JUDGE ORIE:  Yes.  Which would mean that women of -- well, let's

 2     say, anything between 25 and 50 would be excluded.

 3             THE WITNESS:  Indeed.

 4             JUDGE ORIE:  Yes.  Thank you.

 5             MR. GROOME:  Thank you.

 6        Q.   If I could now draw your attention to paragraph 35 of your

 7     statement, P785, marked for identification.  This can be found in 9 of

 8     the original and 7 of the translation.

 9             In this paragraph you provide evidence about the inability of

10     UNPROFOR to access the Srebrenica enclave.  My particular question, in

11     addition to what you have in this paragraph -- in this particular

12     paragraph, is are you able to estimate the number of times you or your

13     staff requested access to the UN safe area in Srebrenica and were denied

14     such access?

15        A.   It -- I certainly asked to be able to do this when I first -- I

16     think I first met the Bosnian Serb leadership at Pale.  And I know my

17     staff were pursuing this request, and I would have thought that we'd --

18     it was probably raised two or three times in the first few weeks of my

19     time in Bosnia.

20        Q.   Can you enumerate the reasons, if any, that you and your staff

21     were given when you were denied access to the safe area?

22        A.   From memory, they were -- it wasn't safe.  You -- we couldn't

23     secure your presence because the -- there were -- the Bosnians were

24     attacking out of these enclaves and so forth.  That it -- they couldn't

25     provide escorts, or you were just not given a reason.  You were just

Page 7296

 1     told, No.

 2        Q.   Now, when you mentioned that it wasn't safe, can you be specific?

 3     It wasn't safe for who?

 4        A.   It wasn't safe, it was said, for me and my party.  The Bosnian

 5     Serbs could not guarantee my security.

 6        Q.   In consideration of these repeated denials of access and the fact

 7     that permission was eventually provided by Mladic himself, did you

 8     understand Mladic to be personally controlling access to the enclave?

 9        A.   Yes.

10             JUDGE ORIE:  Mr. Ivetic.

11             MR. IVETIC:  Objection, Your Honour.  I think it's speculation

12     and I believe that Mr. Groome is testifying in the question.

13             MR. GROOME:  I certainly didn't mean to testify.  I will rephrase

14     the question.

15             JUDGE ORIE:  Please do so.

16             MR. GROOME:

17        Q.   General Smith, who did you understand to be personally

18     controlling access to, if anyone, to the safe area?

19        A.   Access by me was being controlled by General Mladic.

20             MR. GROOME:  Could I ask that 65 ter 3822 be brought to our

21     screens.  It's a record of a meeting between Generals Smith and Mladic,

22     held on 5 March 1995.  The first page is simply a cover sheet, so could I

23     ask that we go to e-court page 2 immediately.

24        Q.   When you are able to see the document, can I first ask you

25     whether it is a document you had an opportunity to examine in preparation

Page 7297

 1     for giving evidence.

 2        A.   Yes, I recognise the document, yes.

 3        Q.   In paragraph 37 of your statement, you provide testimony of this

 4     5 March 1995 meeting in Jahorina.  Can I draw your attention to

 5     paragraph 3, and that's 3 in the original and in B/C/S, in particular,

 6     the first two sentences which read:

 7             "General Smith questioned General Mladic on the reason for the

 8     upsurge sniping attacks in Sarajevo.  General Mladic cited recent Serb

 9     casualties from BiH attacks."

10             Can you explain this particular sentence?

11        A.   The background is that we still have this Cessation of

12     Hostilities Agreement in being, and the -- there had been a steady rise

13     in incidents around Sarajevo and elsewhere, but this is considering the

14     Sarajevo one.  And I'm trying to understand the Serb position in the --

15     Bosnian Serb position in this rise of incidents, as to what it was behind

16     them, we were not clear at that stage, the motivation of these attacks,

17     although I was becoming clearer as the weeks went by.

18        Q.   Did General Mladic acknowledge that his troops were responsible

19     for an upsurge in sniping incidents?

20        A.   He is explaining that -- he is saying they're reacting to the

21     upsurge in the Bosnian sniping but, then, yes, they are involved as well,

22     yes.

23        Q.   And did he seem informed about the activity of snipers in -- in

24     the Sarajevo area?

25        A.   He certainly understood that this was going on.  This was no --

Page 7298

 1     no surprise to him.

 2        Q.   Now, in paragraph 39 of your statement, that's ten in the

 3     original, 8 in the B/C/S, you say:

 4             "He," referring to Mladic, "He threatened a complete blockade of

 5     all enclaves including Sarajevo if sanctions were not lifted.  I took the

 6     threat seriously.  He had the demonstrable ability to do what he had

 7     threatened."

 8             I would like you to further explain this last statement when you

 9     said that he had the demonstrable ability.  What you did mean precisely?

10        A.   First of all, his forces controlled the route into these

11     enclaves, and every convoy, every truck, had to be -- go through Bosnian

12     Serb check-points.  So that was one control.

13             Secondly, the UN had in previous years accepted that UN convoys

14     were searched, that convoys were -- you had to list what you were putting

15     in the vehicles before the convoy was given clearance, if it was given

16     clearance at all, and so all -- all of those controls, if you like,

17     administrative controls, were in place as well.

18             And then, finally, we, the UN, and the troop contributing nations

19     had shown no interest in forcing a convoy through.  So we were unlikely

20     to fight our way through in order to get a convoy into, for example,

21     Sarajevo.

22             MR. GROOME:  Your Honour, the Prosecution tenders 3822 as a

23     public exhibit.

24             MR. IVETIC:  No objection to this document, Your Honours.

25             JUDGE ORIE:  Madam Registrar.

Page 7299

 1             THE REGISTRAR:  Document 3822 becomes Exhibit P787, Your Honours.

 2             JUDGE ORIE:  P787 is admitted.

 3             MR. GROOME:

 4        Q.   In paragraphs 54 to 58 of your statement, you describe your

 5     meeting with Mladic in Vlasenica on the 7th of March.  I would like to

 6     direct you to paragraph 57.  It is 14 in the original, 11 in the

 7     translation, where you describe Mladic telling you that he had restricted

 8     the amount of food, medicine, and fuel for the enclaves, and your reply

 9     that an attack on the UN Safe Areas would risk a response by NATO.  You

10     then say:

11             "This brought forward a tirade of threats of counteraction from

12     Mladic."

13             Can you tell us with as much detail as you recall the threats

14     that General Mladic made as well as his demeanour when he made these

15     threats?

16        A.   I don't remember the threats in any great detail.  They -- they

17     were largely centred, as I recall, on British -- the threat was being

18     made against British forces on the grounds, I understood, that I was a

19     British officer, and that people would have their throats cut and so on.

20        Q.   Could I ask now that we have 65 ter 1624 brought to our screens.

21             Your Honours, the military notebook recovered from the Mladic

22     home are already in evidence.  In addition to these books a collection of

23     audiotapes was also recovered from the same location.  They're on the

24     Prosecution list, based on an initial review which indicated many of them

25     were likely recordings made by General Mladic of events relevant to the

Page 7300

 1     indictment.  A more detailed analysis has taken place, and the

 2     Prosecution is now in the process of drafting a bar table.  I will work

 3     with several of them today which relate to General Smith but will only,

 4     at this stage, ask that they be marked for identification.

 5             And if I -- I'm sorry, if it could be 1624A.  I misspoke.

 6             General, when you can see 1624A on the screen before you, can I

 7     ask you to look at it and tell us whether it is a document that you had

 8     an opportunity to review in preparation for your testimony?

 9        A.   Yes, I did see it.  Yes.

10        Q.   Having read the transcript, did you recognise the subject matter

11     being discussed in this tape?

12        A.   Yes.

13        Q.   What did you recognise the subject matter from?

14        A.   I can -- he is talking about this meeting in Vlasenica.  It

15     appears to be a conversation about a day after the meeting.  And he is

16     explaining what he said to me --

17        Q.   Now --

18        A.   -- in the bottom of the page.

19        Q.   If I could draw your attention specifically to that, about

20     three-quarters of the way down the page, we can see Mladic say:

21             "I will cut Smith off.  I won't give him any food until this can

22     go in a normal way."

23             Do you recall him threatening to impede the supply of food to UN

24     personnel?

25        A.   Oh yes.  The -- the -- at that point in the meeting in Vlasenica,

Page 7301

 1     there was this -- the whole argument, if you like, or point that he was

 2     making, was that we were supplying more than was absolutely necessary.

 3     They were under sanctions.  We should be under sanctions.  And that had

 4     been said as well at Jahorina some two days before that.

 5        Q.   At the bottom of the page we can read the following:

 6             "Since you are English and threatening, and he said, I am the

 7     United Nations, then I'll take your Englishmen from Gorazde and in front

 8     of cameras cut one head off for each threat.  Publicly.  And I'll show it

 9     to CNN, and don't think that I won't do this."

10             My first question is do you recall Mladic making threats along

11     the lines of this to you?

12        A.   Yes.  Although I suspect what reached me in translation wasn't

13     necessarily quite as he is explaining it to -- in this telephone call.

14        Q.   Do you know what the phrase "Englishmen from Gorazde" refers to?

15        A.   Yes.  There was British battalion in Gorazde.

16             JUDGE ORIE:  No consultations, Mr. Mladic.  You can write down

17     whatever you want.  Pass a note to counsel and that's it.

18             MR. GROOME:  Your Honour, I'd ask that 65 ter 1624 be marked for

19     identification pending a written application to admit it.

20             MR. IVETIC:  No objection to that procedure being followed for

21     this document.

22             JUDGE ORIE:  Madam Registrar.

23             MR. GROOME:  Your Honour, I'm sorry.  It's 1624A again.

24             JUDGE ORIE:  Yes.  Madam Registrar, the number would be?

25             THE REGISTRAR:  Document 1624A receives number P788, Your

Page 7302

 1     Honours.

 2             JUDGE ORIE:  And is marked for identification.

 3             Please proceed.

 4             MR. GROOME:

 5        Q.   In paragraph 63 of your statement, that's in 15 -- page 15 and

 6     page 12 respectively in e-court, you recount your flight into Sarajevo

 7     with Mr. Akashi and the Force Commander on the 12th of March and describe

 8     how it was hit by heavy machine-gun fire.  Can I ask you to describe the

 9     plane, in particular the outer markings on the plane?

10             JUDGE ORIE:  Before you do so, Mr. Ivetic is on his feet.

11             MR. IVETIC:  Yes, Your Honour.  I've received a note from my

12     client asking for a break.  I do not know the reasons since I'm not

13     allowed to consult with my client.

14             JUDGE ORIE:  We'll have a -- your client can write down the

15     reasons for which he wants a break and pass it onto you.

16             Mr. Ivetic, I'm not amused by your physical expression of

17     discontent with the Chamber's ruling.

18             I would leave it to that.

19             MR. IVETIC:  I would take exception with Your Honour's comments.

20             JUDGE ORIE:  We'll take a break in seven minutes.  If there's any

21     specific reason, Mr. Mladic can write a little note and we'll hear what

22     the reasons are.

23             Mr. Ivetic, I emphasise that this regime was imposed after

24     repeated abuse by Mr. Mladic, and that is the reason why it is there.

25     Nothing else.

Page 7303

 1             Mr. Smith, you may answer the question.

 2             THE WITNESS:  The aircraft was a Russian YAK.  It was the type of

 3     aeroplane.  It was a small, we might call it a commuter jet.  And it was

 4     run by Ukrainian organisation on contract to the United Nations, and the

 5     airplane was painted -- certainly had UN markings on and was, as I

 6     recall, painted white.

 7             MR. GROOME:

 8        Q.   Was notice given to -- to the parties to the conflict about the

 9     expected arrival of this flight?

10        A.   That would have been the standard procedure, yes.

11        Q.   Did the Army of Bosnia and Herzegovina have an air force?  In

12     other words, did any military aircraft belonging to the ABiH use Sarajevo

13     airport if you know?

14        A.   No, they didn't have an air force, and no they didn't have

15     aeroplanes flying into Sarajevo.

16        Q.   At the end of paragraph 63, you say:

17             "My recollection is that the incident was almost immediately

18     protested and faced with this protest, Mladic agreed that it had been his

19     people who had fired."

20             By "people," did you intend -- was it intended that people were

21     the troops under Mladic's control?

22        A.   Yes.

23        Q.   You had additional meetings --

24             JUDGE ORIE:  These little pauses, Mr. Groome.

25             MR. GROOME:  Sorry.

Page 7304

 1        Q.   You had additional meetings with Mladic after this event.  Did he

 2     ever inform you of any disciplinary action he took with respect to the

 3     troops involved or describe an investigation he ordered into this event?

 4        A.   I don't remember him doing either of those things.

 5        Q.   Paragraphs 78 to 96 of your statement records your evidence with

 6     respect to events in April 1995.

 7             Can I draw your attention to paragraph 79, that's 19 in the

 8     original, 15 in the translation of your statement, there you describe a

 9     private meeting you had with Dr. Karadzic on the 5th of April, 1995, at a

10     hotel near Pale.

11             The penultimate sentence in that paragraph reads:

12             "I took the step of contacting Karadzic because at this stage

13     General Mladic refused to ... speak with me on the telephone, and my

14     letters to him requesting meetings went unanswered."

15             JUDGE ORIE:  Mr. Groome, your quote was not complete.  You left

16     out refused to meet or speak.

17             MR. GROOME:  Yes --

18        Q.   Can I ask that you place this sentence in context and perhaps

19     explain what you meant in greater detail?

20        A.   The -- I mean, I'm not sure I can expand on it.  He wasn't

21     communicating with me.  The context of the -- of the -- the situation at

22     that time was that the Cessation of Hostilities Agreement had more or

23     less broken down by this stage.  It was breaking down.  The -- the -- we,

24     the UN, were being seen increasingly as -- by the Bosnian Serbs as

25     irrelevant, a nuisance in the way rather than anything that was going to

Page 7305

 1     be of use to them, and on top of that, there was a particular cause in

 2     that in the Cessation of Hostilities Agreement, there was a -- a

 3     requirement for each side to place liaison officers with the UN, and the

 4     Bosnian Serbs had provided two liaison officers who were with the British

 5     headquarters at Sector South-west.  But by the virtue of the agreement

 6     breaking down, this -- these arrangements were useless and the -- the two

 7     liaison officers were sitting in the headquarters at Gornji Vakuf and

 8     were an embarrassment as much to us -- to themselves as they were to the

 9     UN.

10             And Mladic knew I wanted to get them back to the -- but he wasn't

11     going to relieve me of this embarrassment and didn't want to talk to me,

12     and subsequently I sent them back, which became a cause for another round

13     of -- of disagreements between us.

14             MR. GROOME:  Your Honour, I will be guided by the Chamber whether

15     there's time for one more question or not.

16             JUDGE ORIE:  Yes.  We have one minute left.  So please proceed,

17     with one last question before the break.

18             MR. GROOME:

19        Q.   Paragraph 94 of your statement, and that's at 23 in the original,

20     18 translation, it describes an incident on 21st of April during which

21     the US and German members of the contact group were effectively detained

22     by the Bosnian Serb army at Sarajevo airport.

23             You go on to assert that you believe the decision to do this was

24     a military one in which Mladic was personally involved.

25             My question is:  Can you tell us why you came to this conclusion.

Page 7306

 1        A.   Because it was -- Mladic's people who were -- had, in effect,

 2     created the situation, and it was with them that we were having to

 3     negotiate.  And every time you got Professor Koljevic moving towards a

 4     solution to this problem, then he just came up against an inability to

 5     persuade Mladic.

 6             MR. GROOME:  I have no follow-up to that particular answer.

 7             JUDGE ORIE:  Thank you.  Thank you, Mr. Groome.

 8             Could the witness be escorted out of the courtroom.  We'll take a

 9     break of 20 minutes, Mr. Smith.

10             THE WITNESS:  Thank you.

11                           [The witness stands down]

12             JUDGE ORIE:  We take a break, and we resume at ten minutes to

13     11.00.

14                           --- Recess taken at 10.30 a.m.

15                           --- On resuming at 10.55 a.m.

16             JUDGE ORIE:  May the witness be escorted into the courtroom.

17                           [The witness takes the stand]

18             JUDGE ORIE:  Mr. Groome, please proceed.

19             MR. GROOME:  Thank you, Your Honour.  Could I ask that 65 ter

20     5518 be brought to our screens.  It's an order from the VRS Main Staff,

21     issued on 27 May 1995.

22        Q.   General Smith, your statement, at paragraphs 118 and following,

23     addresses NATO air-strikes at the end of May 1995 and the taking of UN

24     personnel as hostages.  When the English version of this order comes to

25     the screen before you, could I ask you, have you had a chance to review

Page 7307

 1     this document prior to today?

 2        A.   Yes, I have.  Yes.

 3        Q.   The document states "I hereby order," and then sets out 9

 4     paragraphs of specific orders.  The first directs that captured UNPROFOR

 5     staff be placed "at the warehouses, in the areas of command posts, firing

 6     positions, and other potential targets that may come under the

 7     air-strike."

 8             The second paragraph sets out the specific number of hostages to

 9     be sent to four different corps.

10             What, if anything, does this document indicate about the level at

11     which the decision to use UNPROFOR personnel as human shields was made?

12             MR. IVETIC:  Object.  Calls for speculation for an expert opinion

13     for which this witness has not been qualified.

14             JUDGE ORIE:  Let me re-read the question.

15             The witness may answer the question.

16             The objection is denied.

17             MR. GROOME:

18        Q.   Do you recall the question?

19        A.   Yes, I do, thank you.  It shows that it's from the Main Staff,

20     that they're controlling this, and because I've seen the document, you

21     showed it to me, it is signed by Mladic, if I recall correctly.

22        Q.   Can we advance to the second page of the document just to be sure

23     there's no mistake.

24        A.   No, I'm wrong.  By the chief of -- the deputy commander.

25             MR. GROOME:  Your Honour, the Prosecution tenders 5518 as a

Page 7308

 1     public exhibit.

 2             MR. IVETIC:  No objection to the document being tendered in that

 3     manner.

 4             JUDGE ORIE:  Madam Registrar.

 5             THE REGISTRAR:  Document 5518 becomes Exhibit P789, Your Honours.

 6             JUDGE ORIE:  P789 is admitted into evidence.

 7             Mr. Ivetic, may I take it when your microphone was not activated

 8     that you had said what you wanted the Chamber to listen to?

 9             MR. IVETIC:  Yes, Your Honour, and I believe I had activated it

10     after to say I had no objection to it being tendered in that manner, as a

11     public exhibit.

12             JUDGE ORIE:  Yes.  Thank you.

13             Please proceed.

14             MR. GROOME:  Could I ask that 65 ter 27615 be brought to our

15     screens.  It is an intercept dated 26 May 1995 at 1105 hours.

16        Q.   General Smith, in your statement beginning at paragraph 123 you

17     describe three long telephone conversations with Mladic.  In preparation

18     for your evidence, did you have an opportunity to review the transcript

19     which is now being brought to our screen, which purports to be a record

20     of one of these conversations?

21        A.   Yes, I saw this transcript.

22        Q.   And did you read it in -- when you --

23        A.   Yes, I did.

24        Q.   Does it accurately reflect the conversation between you both on

25     the 26th of May 1995 as best as you can recall?

Page 7309

 1        A.   Yes, as best as I can recall.

 2        Q.   In the transcript, we can see midway down the page you say the

 3     following:

 4             "I must remind you that using these prisoners as a human shield

 5     is against the Geneva Convention.  Those other" --

 6             JUDGE ORIE:  Mr. Groome, could I again ask everyone to slow down

 7     and to make these pauses as the court reporter asks us to do.

 8             MR. GROOME:  I apologise.  I'll pick it up from "after

 9     Geneva Convention."

10             "... those other armies and the UN colours represents the

11     violation of a protocol and the threat to kill, not only does it violate

12     the Geneva Convention but also, besides the shelling of Tuzla, ... Tuzla

13     is another violation ..."

14        Q.   In this passage, you are informing General Mladic that his

15     conduct is a violation of international law.  Did you form an impression

16     during your conversation whether or not he appreciated this fact?

17        A.   I don't think he appreciated me telling him this.  Whether he

18     understood what I had said, I think he probably did, but I'm not -- my

19     impression at the time was that that wasn't very important to him at all.

20             MR. GROOME:  Could I ask that 27613 be now be brought to our

21     screens.  It is an intercept dated 26 May at 1446 hours.

22        Q.   General Smith, once again, once you are able to see the document

23     on your screen, can you tell us whether it's one you've had an

24     opportunity to review in preparation for your evidence today?

25        A.   Yes, I reviewed this.

Page 7310

 1        Q.   And after having reviewed it, does it accurately reflect the

 2     conversation between yourself and General Mladic on the 26th of May as

 3     best as you're able to recall?

 4        A.   Yes.  Yes, it does.

 5        Q.   About midway down the page, we can see Mladic refer to something

 6     called a "HRIPE-1."  Do you recall him saying something along those

 7     lines?

 8        A.   Yes.  My particular memory is that I didn't understand it, and

 9     we -- it -- we later learnt that it meant something like death rattle.

10     Or -- that's what we understood.

11        Q.   You go on to say:

12             "The air-strikes took place because of those decisions you

13     yourself took personally."

14             Can you tell us what decisions you are referring to and upon what

15     basis did you believe General Mladic took them personally?

16        A.   This is the -- can you give me the line?  I'm just looking for

17     where I go on to say that.

18        Q.   It's further down.  I think it's in the lower half.  Let me

19     see ...

20             Sorry, it's about midway.

21        A.   I'm so sorry.

22        Q.   Do you see?  It says:

23             "The camera will tell him," then it has S, "as I explained to

24     you."  Just under HRIPE.

25        A.   Yeah.  Yes.  My -- I -- what I think I'm explaining there or

Page 7311

 1     trying to get across to him is that it is he that has taken the decisions

 2     not -- well, first, to remove weapons from the weapon control points or

 3     to use the weapons in the weapon control points, and then to -- and to --

 4     and then when the ultimatum had been given to stop doing that and to put

 5     them back into weapon control points, this was ignored.

 6             If the -- he had not made the decision to use the weapons against

 7     the exclusion zone regime and had then accepted the ultimatum, then none

 8     of the air-strikes would have taken place.

 9             MR. GROOME:  Your Honour, at this time the Prosecution tenders

10     27615 and 27613 as public exhibits.

11             MR. IVETIC:  Your Honour, we would object based upon the lack of

12     showing us the provenance of these documents and how they were prepared

13     and, in particular, if there is any audio or video material upon which

14     they are based.  This witness has given his evidence so I would suggest,

15     therefore, that these be marked for identification pending resolution of

16     those issues.

17             JUDGE ORIE:  Mr. Groome.

18             MR. GROOME:  Your Honour, the Prosecution submits -- or I can

19     first make the representation that there are no audiotapes.  There it's

20     the -- the transcript that we have.  And I submit that adequate

21     foundation has been laid before you.  You have the person who was one

22     party to the telephone conversation has reviewed this and says that they

23     accurately reflect the conversation as best as he can recall.  So I

24     believe there is sufficient foundation for their admission.

25             JUDGE ORIE:  Mr. Ivetic, any need for further comments?

Page 7312

 1     Especially on the presence of the witness who testified to the accuracy

 2     of these transcripts.

 3             MR. IVETIC:  No, Your Honours.  He has testified as to portions

 4     that have been presented to him.  Whether this is the entirety of the

 5     conversation or not, I don't know.  And therefore it is important to have

 6     the individuals who created this document to identify how they took the

 7     document, whether in fact it is a true and complete copy or if it is an

 8     extract, I don't know.  All I have is a piece of paper with no heading

 9     indicating words from -- with no signatures, with no seals, that purports

10     to be a conversation.  I mean, this could have been printed up on a

11     computer, and if portions of it are consistent with the witness's memory,

12     that doesn't mean that the entirety is consistent with the witness's

13     memory.

14             If we're going to be using documents as evidence in a court of

15     law, those documents need to have some weight to them, they need to have

16     some reliability factors to them, and with this type of document there is

17     none, respectfully, Your Honours.

18             JUDGE ORIE:  Mr. Groome, could you, perhaps, especially on the

19     matter of whether this is all of it, that this is this part, or --

20     respond to that.

21             MR. GROOME:  Perhaps it's best if I ask the witness whether he

22     recalls whether -- this entire conversation.

23             JUDGE ORIE:  Please do so.

24             MR. GROOME:

25        Q.   General Smith, when you reviewed this, did you note that there

Page 7313

 1     was any portion of the conversations that you had with Mr. Mladic that

 2     was not included in these documents, recognising that they're not

 3     verbatim transcripts?

 4        A.   This brought to mind those conversations that I had in that year,

 5     in 1995, and as I -- as I recall them, they are -- represent what the

 6     conversation that took place on that day.

 7             JUDGE ORIE:  Yes, Mr. Groome, any further information as to how

 8     they were created?

 9             MR. GROOME:  Yes, Your Honour.  Could we go into private session

10     for that, please.

11             JUDGE ORIE:  We move into private session.

12                           [Private session]

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 7314

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7                           [Open session]

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

 9             JUDGE ORIE:  Thank you, Madam Registrar.

10             The Chamber denies the objections raised.

11             Madam Registrar, the numbers to be assigned to the two

12     intercepts.

13             THE REGISTRAR:  Document 27615 receives number P790; and document

14     27613 receives number P791, Your Honours.

15             JUDGE ORIE:  P790 and P791 are admitted.

16             You may proceed, Mr. Groome.

17             MR. GROOME:  Your Honours, could I now ask that 65 ter 3529 be

18     brought to our screens.  It is a letter purporting to be from

19     General Smith to General Mladic, dated 26th June, 1995.

20        Q.   And again, General, once you are able to see the document on your

21     screen, can you tell us whether it is a document that you have reviewed

22     recently, and if so, tell us what it is.

23        A.   This is -- as it says, a letter from me to General Mladic, and I

24     recognise it as the -- as one I looked at beforehand.

25        Q.   The introductory paragraph states:

Page 7315

 1             "I write further to the letter signed by my Chief of Staff on my

 2     behalf concerning Srebrenica.  I wish to express my increasing concern

 3     about a sequence of very serious incidents."

 4             Can I ask you to explain to the Chamber in greater detail what it

 5     was you were attempting to communicate to General Mladic.

 6        A.   Throughout June, the enclaves, including Sarajevo, had come under

 7     increasing pressure, and this was particularly the case in the eastern

 8     enclaves:  Zepa, Gorazde, and Srebrenica.  The -- the precise incidents I

 9     don't recall, but there was an increasing crescendo of incidents or a

10     crescendo was building up.  The -- and I'm trying to get Mladic to

11     understand that this the -- the safe area and the exclusion zones, which

12     system, the exclusion zone system had already broken down as a result of

13     what had happened in May, but that we were -- now the safe areas system

14     was breaking down.  We were not being able to feed the people inside them

15     properly, and this was getting worse and worse, and I wanted to get this

16     quite clearly laid out for him, at that stage.

17             MR. GROOME:  Your Honour, the Prosecution tenders 3529 as a

18     public exhibit.

19             MR. IVETIC:  No objection, Your Honour.

20             JUDGE ORIE:  Mr. Ivetic.

21             MR. IVETIC:  No objection, Your Honours.

22             JUDGE ORIE:  Madam Registrar.

23             THE REGISTRAR:  Document 3529 becomes Exhibit P792, Your Honours.

24             JUDGE ORIE:  And is admitted into evidence.

25             Mr. Groome, to the extent there would be a better legible

Page 7316

 1     original, especially the lower part, apparently the translators have once

 2     had a copy which they could read.

 3             MR. GROOME:  I will investigate that, Your Honour.  But let me,

 4     while the witness is here, take advantage of his presence --

 5             JUDGE ORIE:  Yes.  He has said that this is a document he

 6     recognises and he has looked at, so therefore --

 7             MR. GROOME:  I was going to ask him whether you recognise

 8     anything missing or --

 9             JUDGE ORIE:  Well, yes.

10             MR. GROOME:

11        Q.   The portion of the page which seems to be damaged, that's

12     blacked, do you recall whether there's anything under there?

13        A.   Well, it looks like the top of my signature.  So apart from

14     the -- something saying General Rupert Smith underneath it and possibly

15     a -- a -- recording that a copy has gone to somebody, I don't expect to

16     find anything else under there.

17             MR. GROOME:  Your Honour, we will try to see if we can find a

18     better copy.

19             JUDGE ORIE:  Please proceed.

20             MR. GROOME:  Could I ask that we now see P363.  And if we go to

21     page 7 in the original, and page 4 in the English.

22        Q.   General, I would now like to move to that portion of your

23     evidence which concerns July 1995.  I would like to begin by asking you

24     to you take a look at an entry from General Mladic's military notebook

25     for 15 July.

Page 7317

 1             In this entry, General Mladic recorded a meeting in Dobanovci on

 2     15 July 1995 and indicates that you were one of the attendees.  Do you

 3     recall meeting Mladic on 15th of July?

 4        A.   Yes, I do.

 5             MR. GROOME:  Can we advance to the next page, please.

 6        Q.   The note from the meeting purports to record a conversation

 7     between you and General Mladic, in which he notes:

 8             "Treatment of the population in Srebrenica and Zepa.  There are

 9     rumours" --

10             JUDGE ORIE:  Do we have the right page in B/C/S on our screen?

11             MR. GROOME:  In fact, Your Honour, could I ask that we use the

12     actual photocopy of the diary of the notebook itself, if that's possible?

13             JUDGE ORIE:  Whatever, but the corresponding page.  The original

14     is fine if you have the page number.

15             MR. GROOME:  And page 7 in the original --

16             JUDGE ORIE:  Handwritten version.

17             MR. GROOME:  -- digital image handwritten version is -- is the

18     e-court page 7.

19        Q.   "There are rumours about atrocities, massacres, and rape" --

20             JUDGE ORIE:  What we need is also an English version.  So the

21     handwritten version should replace the transcribed version, and then next

22     to it I'd like to have English.

23             MR. GROOME:  English is on page 4 in e-court.

24        Q.   While that is being brought up, do you recall during this meeting

25     on the 15th of July telling Mr. Mladic or discussing with him information

Page 7318

 1     you had regarding Srebrenica?

 2        A.   Yes.

 3        Q.   I will ask you to provide more detail about this meeting in a few

 4     minutes, but I would like to return to the days prior to the meeting so

 5     that the Chamber has an understanding of what information you had and the

 6     UN had prior to this meeting.

 7             In paragraphs 149 and 151, you state that you went on leave from

 8     the 1st of July and returned to BiH in the evening of the 12th.

 9             Do you recall what time you returned to Bosnia?

10        A.   Not so much to Bosnia but it was late in the evening.  It was

11     certainly dark.  We were in the middle of summer, so it would have been

12     late on the night of the 12th.  And that was getting into Sarajevo.

13        Q.   In paragraph 149, you state that while you were away, you were

14     accompanied by a radio operator to communicate with your command.  Did

15     you remain in contact with your command and receive briefings about the

16     situation in Bosnia while you were on leave?

17        A.   Yes, I did.

18        Q.   Once you returned on the 12th, were you briefed on developments

19     in Bosnia?

20        A.   Yes, I was.

21        Q.   In paragraph 152, you summarise your assessment of the situation

22     as follows:

23             "Firstly, there was a major refugee problem, up to 35.000

24     refugees had already started to arrive in the Tuzla area.  Secondly, I

25     had to recover the Dutch Battalion.  The whereabouts and fortunes of the

Page 7319

 1     Bosnian defenders of Srebrenica were unknown to me, although I was aware

 2     that captured men were being separated from the refugees and I had

 3     received reports of abductions and murders from the Bosnians but as yet

 4     these were unconfirmed."

 5             General, my question for you is whether you know the source of

 6     the information that you are provided with at this point in time, the

 7     12th of July.

 8        A.   From memory, the reporting that my briefing would have been

 9     taken -- would have been -- would have come from my staff and their

10     reports from DutchBat in Srebrenica, although there were also reports

11     going into Zagreb and to the -- to The Hague, to the capital, and they

12     would have received informing from that direction as well, I suspect.

13             In addition, the Bosnian government in Sarajevo were

14     communicating with my headquarters.

15             MR. GROOME:  Your Honours, could I ask that 65 ter 3535 be now

16     brought to our screens.  It is a series of UN documents all from around

17     the period of the massacres in Srebrenica.  They were recovered from the

18     UN archive by the OTP as a packet of material and some markings on the

19     documents suggest they were transmitted as a single packet, and so I will

20     preserve that characteristic of the exhibit as it may be relevant to the

21     Chamber's consideration of them.  There are seven documents in the

22     packet, and I am able if the Chamber would be assisted to enumerate those

23     documents now for the record, or I can just deal with them in turn.

24             JUDGE ORIE:  I think that it would be preferable that you deal

25     with them in turn.

Page 7320

 1             MR. GROOME:

 2        Q.   General, your evidence with respect to the series -- this series

 3     of documents will be more easily understood if we examine them in

 4     chronological order of their creation rather than in the order in which

 5     they were assembled in this packet of documents.

 6             MR. GROOME:  Could I ask that we go to e-court page 9 in the

 7     original, and 11 in the B/C/S.

 8        Q.   The first document is a report of a meeting you had with BiH

 9     Prime Minister Silajdzic on 13 July 1995.  Have you had a chance to

10     familiarize yourself with this and the other documents in this packet of

11     materials?

12        A.   Yes, I have.

13        Q.   General, the first sentence of the report of the meeting states

14     as follows:

15             "General Smith met Prime Minister Silajdzic at the Presidency at

16     1420 hours on 13 July 1995.  They discussed the current situation in

17     Srebrenica, the refugee crisis, and unconfirmed reports of atrocities."

18             Do you recall who raised the topic of the refugee crisis?  Was it

19     you or was it the prime minister?

20        A.   My memory is that I led on the refugee crisis, and -- because I

21     wanted the -- the Bosnian government was trying to use this situation --

22     in their eyes the UN had failed and failed utterly, and that the UN

23     should sort of the refugee problem that was a consequence of that

24     failure.  The -- however, we couldn't cope with that, unless the Bosnians

25     played an active part in housing these people and so forth, and I was

Page 7321

 1     trying to get the prime minister's co-operation in this matter.

 2        Q.   Did the prime minister provide you with additional information to

 3     that information you already possessed regarding the refugee crisis?

 4        A.   I don't recall a particular volume of information, no.

 5        Q.   Who raised the reports of atrocities?

 6        A.   I think that would have been Silajdzic.

 7        Q.   The last sentence in paragraph 4 - and if we could advance to the

 8     next page of B/C/S - of the report states:

 9             "Thirdly, he requested the UN to provide medical and food aid and

10     shelter to the refugees at Tuzla airport."

11             Can you explain to the Chamber what was the refugee crisis at the

12     Tuzla airport.

13        A.   The -- the refugees were coming over the -- the entry point

14     across the confrontation line, between the Bosnians and the Bosnian

15     Serbs, was, if I recall, correctly, at Zvornik, and some way south of

16     Tuzla.  And the -- the only place where we had any area in which to move

17     these refugees that was under UN control was Tuzla, and so we started to

18     move the refugees there as they arrived.

19             But there were no facilities for them there.  They were in range

20     of Serb artillery, and there was -- we had only a very limited amount of

21     tents and cooking facilities and so forth with which to start building a

22     camp.

23        Q.   At this point in time, had anyone made the observation that

24     able-bodied men were generally not among this group of refugees?

25        A.   I don't recall it being made as specifically as you state it, but

Page 7322

 1     it was generally understood, yes, that these were women and children and

 2     old men that -- only.

 3        Q.   Can I draw your attention now to paragraph 152 of your statement.

 4     In particular, sentence 4, which begins:

 5             "By the end of July -- of 13 July, I believed there to have been

 6     a breakout by the defenders.  In what numbers and with what success, I

 7     was not clear, and the ABiH were not telling me.  We thought that some

 8     2.000 male prisoners had been taken by the Bosnian Serbs and were being

 9     held in the vicinity of Bratunac."

10             What was your source for this information, if you recall?

11        A.   I don't recall specifically.  The -- it would have been part of

12     my briefings.  It would have been a conversation which I think I had with

13     the CO of the Dutch Battalion.  And it would also have been me looking at

14     the map and trying to understand the -- forming a picture of what had

15     been happening on the information that I had available.  A -- a defence

16     doesn't collapse just like that without the defenders either being dead,

17     and there was no evidence that they were, or captured, and we could only

18     account for about 2.000 people, so where were the others?  And my

19     assumption, I suspect at that stage, is that they had broken out.

20             MR. GROOME:  Could I ask that we return 65 ter 3535 to the

21     screens and that we go to the second document I would like to use.  And

22     that can be found at e-court page 11 in the original and 14 in the

23     translation.

24        Q.   And, again, once you see the document, can you tell us, did you

25     have an opportunity to review it.

Page 7323

 1        A.   Yes.  And I wrote it.

 2        Q.   And can you just briefly tell us what it is that you wrote; and

 3     can you orient us to the purpose and context of this document.

 4        A.   In situations such as this, it has been my habit as a commander

 5     to write out what I think the situation is and what the -- and what the

 6     options are that might present themselves and then to distribute this,

 7     if -- if it's suitable to do so, to my subordinates so that we all have a

 8     common picture of what the situation is and an idea of the priorities

 9     that I might be setting and the boundaries, if you like, of any future

10     action.

11             This, of course, gets updated as events unfold, but this was me

12     doing this at the end of that day, in fact, the first day I'm back in

13     Sarajevo.

14        Q.   Could I ask that the Court Officer assist us by turning the

15     document upside down and focussing on the bottom edge of the document.

16             And, General, in preparation for your evidence today, did I ask

17     you to study this marking and interpret it for us, if possible?

18             JUDGE FLUEGGE:  The document should be turned.  It's now upside

19     down.

20             THE WITNESS:  Yes, yeah.

21             MR. GROOME:  No.  Can we --

22             THE WITNESS:  No, no.

23             MR. GROOME:  I'm sorry, Your Honour.  I did want it to be upside

24     down.  There is a portion of text which is upside down which can be more

25     easily read if the document is turned upside down.

Page 7324

 1             So could we turn the document upside down?  And focus in ...

 2        Q.   General, are you able to interpret that text?

 3        A.   Yes, I can.  It only -- it's telling you that this was

 4     transmitted at 2331, whether that's local time or Greenwich Mean Time,

 5     I'm not sure, but I suspect it's local time, and on the 13th of July, and

 6     it's the -- the -- the accounting system, as it were, of the electronic

 7     machinery that's transmitting this copy, I imagine, to Zagreb.

 8        Q.   And the term BH command crypto?

 9        A.   It's my headquarters signals detachment, and it's their

10     cryptographic.

11        Q.   And that would be in Sarajevo?

12        A.   In Sarajevo, yes.

13             MR. GROOME:  Could I ask that we turn the document right side up

14     again.

15        Q.   Now, General, the Chamber will be able to read the document for

16     themselves, but I want to draw your attention to two portions to ensure

17     the Chamber has a full understanding of what you're communicating.

18             First, can we look at paragraph 2(a).  In this paragraph, you use

19     the acronym RRF.  Can you tell the Chamber what that acronym stands for?

20        A.   This is the Rapid Reaction Force.  And it begins as a -- as a

21     force in the aftermath of the events at the end of May, where I form a --

22     a small element mainly based on -- in fact entirely based on the British

23     and French detachments in Bosnia.

24             The -- this finds favour with the -- specifically Britain and

25     France and subsequently other troop-contributing nations and is

Page 7325

 1     reinforced.  And during June, it becomes, if you like, an officially

 2     sanctioned reality, and other elements are supplied by France and Britain

 3     and ultimately the Netherlands, which are starting to deploy in

 4     June into -- and July, into the theatre.

 5        Q.   Now, the first sentence of paragraph 3 states:

 6             "The Bosnian Serbs are 'cleansing' Srebrenica."

 7             Cleansing is placed in quotation marks.  Can you describe what

 8     your intent was by placing "cleansing" in quotation marks?

 9        A.   Well, it was a -- the word had become jargon in the theatre,

10     which is probably why I put it in inverted commas, and it implies that

11     the people in that place, which, in this case, is Srebrenica, are being

12     driven out to some other destination, but the area is being cleaned of

13     them.

14        Q.   The paragraph continues to describe unconfirmed reports of

15     abductions and murders.

16             Can I ask you to describe what was your understanding of the

17     magnitude of any abductions or murders at this stage.

18        A.   I'd start by saying that these reports were, at this stage, in

19     the main, coming from the Bosnians, and they would be saying that,

20     wouldn't they?  So I'm -- everything that's being told to me, I'm taking

21     with a quite a lot of -- of salt at the time, wanting to see some

22     evidence to support it.

23             Secondly, we knew that this -- that the Bosnian Serbs practiced

24     this ethnic cleansing, as it was called.  We knew that people would be

25     separated and that -- that's what happened in this war.  And that -- and

Page 7326

 1     you do get in these circumstances incidents of people being killed and so

 2     forth.

 3             So with -- in a disaster such as the collapse of the defence of

 4     Srebrenica, I'm not surprised to find some incidents occurring and being

 5     reported.  They're regrettable, they don't want to happen, and you don't

 6     went them to continue, but it wasn't a huge surprise to be hearing some

 7     of these reports, and I had no sense of -- of their magnitude at that

 8     stage.

 9        Q.   We can now go to the third document that I wish to work with.

10     This can be found on 14 -- the original packet of documents and 18 in the

11     translation.

12             Can I now draw your attention to a report by Major Fortin dated

13     13 July 1995.  This document reports on a meeting between VRS liaison,

14     Lieutenant-Colonel Indic, and UNPROFOR representatives on 13th.  If I can

15     draw your attention, in particular, to paragraph 6.  I believe we'll need

16     to advance the page.  It's on 15 and 19 respectively.  It states:

17             "Next, they discuss the return of stolen UNPROFOR weapons ..?"

18             JUDGE ORIE:  We wait a second until we have it on our screen.

19             MR. GROOME:  I ask that we go to the next page and see if the

20     paragraph carries over.  It should be 15 in e-court.  So this is

21     General Smith's letter.

22             If we could move to the next document, please.  I believe it

23     follows immediately after this.  And to the next page.  I think we have

24     it now.

25             JUDGE ORIE:  It's paragraph 6.

Page 7327

 1             MR. GROOME:  Yes, Your Honour.

 2             JUDGE ORIE:  Third full paragraph on this page.

 3             Please proceed.

 4             MR. GROOME:

 5        Q.   In that paragraph we see:

 6              "Next they discussed the return of stolen UNPROFOR weapons.

 7     Lieutenant-Colonel [sic] Indic said they could let us inspect small arms

 8     to demonstrate that they were not used, but he could not return them

 9     without Mladic's approval."

10             Can you comment on this particular passage.

11        A.   Yes.  I wouldn't -- it doesn't surprise me.  I -- I would have

12     been very surprised if Indic was prepared to do anything without Mladic's

13     approval.  He was Mladic's liaison officer.

14        Q.   And, specifically, what weapons are being referred to here?

15        A.   These, I think, are the French weapons that had been taken in the

16     aftermath of the bombing in -- in -- at the end of May and -- and had

17     been used -- and in the -- when prisoners were taken at the Vrbanija

18     bridge.

19        Q.   Can we now go to the next document.  It is a public statement by

20     Akashi on the 13th of July.  And it can be found on page 17 and 21

21     respectively.

22             MR. GROOME:  Again, the Chamber will be able to read the

23     document.

24        Q.   I simply want to draw your attention to the last sentence in the

25     second paragraph which reads:

Page 7328

 1             "In compliance with Resolution 1004, unanimously adopted last

 2     night by the United Nations Security Council, I demand that the Bosnian

 3     Serb civilian and military authorities immediately allow unimpeded access

 4     to the United Nations High Commissioner for Refugees and other

 5     international agencies."

 6             Can you set out the reasons why it was so important for the UN to

 7     gain immediate unimpeded access to Srebrenica.

 8        A.   Well, at this stage, there were -- the bulk of the refugees were

 9     still in the vicinity of Srebrenica.  They were not all across the border

10     into Bosnian territory.

11             Secondly, we didn't know what had happened to the rest of the

12     population and how many casualties there were and so on.  And until we

13     got some access and got some idea of what was going on, we couldn't help

14     anybody.

15        Q.   What role, if any, did Mladic play in the UN's ability or

16     inability to gain access throughout Srebrenica after this resolution was

17     passed?

18        A.   I don't think he made any attempt to let anybody into the area.

19             MR. GROOME:  Could I now ask that we go to the first document in

20     this packet.  It can be found on e-court page 1 in both languages.  And

21     it is a code cable from Akashi to the Secretary-General dated 14

22     July 1995.

23             THE INTERPRETER:  Could the witness kindly speak into the

24     microphone, please.  Thank you.

25             JUDGE ORIE:  Mr. Smith, you are kindly requested to speak into

Page 7329

 1     the microphone.

 2             THE WITNESS:  Okay.

 3             MR. GROOME:

 4        Q.   General Smith I want to spend some significant amount time on

 5     this code cable and the reports attached to it and incorporate it into

 6     it.  Have you had an opportunity to carefully review this document?

 7        A.   I have.  I have.

 8        Q.   The last sentence on page 1 states:

 9             "An UNMO patrol into the town of Srebrenica reports that the town

10     is deserted and BSA soldiers were looting the town.  The report also

11     touches on the rumours circulating among the DPs of maltreatment" of "the

12     Bosnian Serb army."

13             JUDGE ORIE:  You take "by."  You read "of."

14             MR. GROOME:  Oh, I'm sorry.

15        Q.   And it continues:

16             "In view of the position of the UNMOs, we recommend that the

17     source of any information released in this report be kept confidential."

18             Can you explain that last portion of what I've read.

19        A.   Yes, I think I can.  The UNMOs are not under my command, but --

20     and so exactly where these -- this UNMO team has come from, I'm not sure.

21     They -- there was certainly an UNMO team or more than one in the

22     Srebrenica area, and to the best of my knowledge, they were with the

23     Dutch Battalion in Potocari.

24             It -- it would seem that they had, in one way or another, been

25     able to leave Potocari and -- and tour around the area, but they may have

Page 7330

 1     come from another direction, for all I know.

 2             The fact that they had been able to do this is, I suspect, why

 3     Mr. Akashi is saying that this -- their ability to collect this

 4     information should be kept confidential at this stage.

 5             MR. GROOME:  Can we now turn to e-court page 4 in both languages.

 6        Q.   There are now five pages that appear very similar to this

 7     particular page.  Can you tell us what is the document that we are now

 8     looking at?

 9        A.   This is the -- again, UNMO reporting in a daily situation report.

10     And they're reporting these -- this particular, that, on the -- at 8.00

11     local time on the 13th, there's a medical convoy stopped at Kladanj,

12     et cetera.

13        Q.   Can I draw your attention to what appears as a subheading in the

14     document, which states: "Srebrenica Update: DTG 130800B Jul 95."  Can you

15     interpret this for the Chamber?

16        A.   Yes I can.  DTG stands for date, time, group.  The date is the

17     13th, the time is 0800 time zone Bravo, which is two hours plus of

18     Greenwich mean time, in July 1995.

19        Q.   Was Bravo time the local time in Bosnia?

20        A.   Yes, it is.

21        Q.   Can I confirm my understanding of your evidence by asking would I

22     be correct to conclude that the very next subheading pertains to an

23     update from 1100 hours on the 13th of July 1995?

24        A.   Correct.

25        Q.   Now under this second heading we read in the seconds sentence:

Page 7331

 1             "General Mladic gave assurances that the convoy was acceptable,

 2     so there should not be any problem with that convoy in Zvornik and at

 3     yellow bridge."

 4             What does this indicate to you about the level of Mr. Mladic's

 5     personal involvement at this stage?

 6        A.   Well, he is the one dealing with -- and here I'm making an

 7     assumption, the -- the UNMO team who's sending this update, and that he

 8     is the person that is in control of -- who comes and goes into the

 9     Srebrenica area.

10             MR. GROOME:  Can we go to e-court page 5 in both languages.

11        Q.   Now, further down in this particular report, from 11.00 on the

12     13th, the report continues:

13             "The number of BiH soldiers those are taken POW by the Bosnian

14     Serb army is not known yet, but General Mladic told the UNMO team and the

15     CO DutchBat that the BiH have several hundred dead soldiers in the area

16     of the Bandera Triangle.  He also asked the CO DutchBat to contact BiH

17     soldiers and inform them that it is not the general's intention to kill

18     any more soldiers of the BiH.  They only have to surrender and hand over

19     their weapons.  The UNMO team and DutchBat are not allowed to enter that

20     area because of safety, therefore can't investigate the numbers."

21             Now my first question is:  This report is from 11.00 in the

22     morning of the 13th, and Mladic is recorded as having stated there are

23     several hundred BiH soldiers dead in the Bandera Triangle.  Do you recall

24     at this point in time an area around Srebrenica that was referred to as

25     the Bandera Triangle?

Page 7332

 1        A.   No, I don't.

 2        Q.   Do you know from where in the enclave a column did break out and

 3     head for Tuzla?

 4        A.   It -- my understanding at the time and is -- and is now is that

 5     the breakout occurred on the -- to the north-west of the enclave.  In the

 6     general direction of the north-west.

 7        Q.   Could I ask that we look at P0038 on our screens?

 8             JUDGE ORIE:  While waiting for that, Mr. Groome, we're close to

 9     the time where we'd take a break.

10             Could you tell us where you are?  We had a late start today.

11             MR. GROOME:  Your Honour, I think I'm approximately halfway

12     through my examination given the number of -- by just by looking at the

13     number of questions.

14             JUDGE ORIE:  And you asked for two hours.

15             MR. GROOME:  I think that I will have to be revising that

16     estimate upwards somewhat, Your Honour, given the importance of this

17     witness's evidence.  I might -- would be in a better position at the

18     beginning of the next session to advise the Chamber how much I think

19     additional time I would require.

20             JUDGE ORIE:  Yes.  Then perhaps we first take a break.

21             MR. GROOME:  Could I perhaps just deal with this document, Your

22     Honour.

23             JUDGE ORIE:  Yes.

24             MR. GROOME:  It's a very small point I want to make with this.

25             JUDGE ORIE:  Please do so.

Page 7333

 1             MR. GROOME:

 2        Q.   General, can you please take a look at P38 on our screens.  Do

 3     you recognise this document?

 4        A.   Yes.

 5        Q.   And what's the relationship between this document and the one we

 6     just looked at, the report we just looked at?

 7        A.   I think this is the source document, if you like, of the summary

 8     that's in the annex of the previous one.

 9        Q.   There are several headings at the top of that document.  What is

10     the significance of the heading: 13 July 1995 09:11:29?

11        A.   I'm sorry.  I'm -- I need to --

12        Q.   Just at the very, very top, and it looks like someone has

13     hand-circled the original.

14        A.   Oh right, it's there.  That would be -- I don't know why it was

15     circled.  But it's -- it's the date it was sent and originated -- I'm

16     sorry, date it was sent on -- at 9.11.  And then this is the date, time,

17     group, [indiscernible].  Yes.  I'm not sure.  I'm not sure I can tell you

18     the significance of that line.

19        Q.   Okay.

20             MR. GROOME:  Your Honour, if we can please take the break.

21             JUDGE ORIE:  Yes.  Then we'll take a break.

22             Could the witness first be escorted out of the courtroom.

23                           [The witness stands down]

24                           [Trial Chamber and Legal Officer confer]

25             JUDGE ORIE:  We'll resume at quarter past 12.00.

Page 7334

 1                           --- Recess taken at 11.57 a.m.

 2                           --- On resuming at 12.18 p.m.

 3             JUDGE ORIE:  Could the witness be escorted into the courtroom.

 4             Mr. Groome, you've used one hour and 40 minutes.  Just as the

 5     Chamber yesterday easily agreed to the request of the Defence to -- not

 6     to sit extended hours and not to limit time in relation to what seems to

 7     be an important witness, the Chamber allows you to go beyond the time of

 8     your estimate, but there are certain limits there.

 9             If you could conclude in one hour and 30 minutes from now, that

10     would give you almost double the time as have you used -- and -- the same

11     time as you have used until now.

12             MR. GROOME:  That is much appreciated, and I have re-examined my

13     examination, and I think there are some of these documents that perhaps

14     I'll just rely on the tendering of them as associated exhibits.

15             If I may continue, now, Your Honour.

16                           [The witness takes the stand]

17             JUDGE ORIE:  Please do so.

18             MR. GROOME:

19        Q.   General Smith, before I leave P38, I just want to inquire whether

20     perhaps over the break it had come to you whether can you help us in

21     understanding that endorsement that has the circle around it?

22        A.   No, I'm afraid it can't -- I don't.

23        Q.   Are you able to assist the Chamber after having looked at the

24     documents related to this report on the Bandera Triangle, to assist the

25     Chamber in understanding the parameters of when that report was likely

Page 7335

 1     made recording Mladic's statement?

 2        A.   Well, I think it's being made quite early in the morning on the

 3     13th.  But I'm -- I'm ...

 4        Q.   And what is that based on?

 5        A.   Well, this -- we go back to this date, time, group at the top.

 6     The date, time, group, is, you've got is recorded as 1100 Bravo.  That's

 7     on the -- on the -- you can see to and from, to TX from TA.  I don't know

 8     what those are, but there's -- date, time, group there is 1100 Bravo on

 9     the 13th.  But you've got another time listed at the one with the circle

10     around it where it says 13th of July, and then the time there is at 9.00

11     in the morning -- yes, 9 hours, 11 minutes, 29 seconds.

12        Q.   And based on that you believe this report was made on the morning

13     of the 13th?

14        A.   Yes.  And it said the information in it is even earlier than

15     that.

16        Q.   Now the Chamber has taken judicial notice in adjudicated facts

17     1530 and 1531 that the massacres of large numbers of men in Srebrenica

18     commenced on the afternoon and evening of the 13th.  If you assume for

19     the purposes of my question that the Bandera Triangle was located in the

20     west, south-west area of the enclave, is Mladic's statement recorded on

21     the morning of the 13th, that hundreds of soldiers had been killed there,

22     accurate?

23        A.   Just let me read that again.

24             MR. IVETIC:  Your Honours, I'm reading the question again.  I

25     will have to pose an objection as it calls for speculation.  It assumes

Page 7336

 1     facts not in evidence.

 2             MR. GROOME:  Your Honour, perhaps I can ask it another more

 3     direct way.

 4             JUDGE ORIE:  Please rephrase then your question.

 5             MR. GROOME:

 6        Q.   General Smith, either at this time or any time after this, did

 7     you ever learn that hundreds of BiH soldiers had been killed in this

 8     west, south-west portion of the Srebrenica enclave at some point prior to

 9     the morning of the 13th?

10        A.   No, I don't.  It -- certainly not at stage.  And you've said did

11     I learn about it afterwards?  I did learn that lots of people had been

12     killed.  The exact location of those killings, I don't recall at all.

13        Q.   Now further down in paragraph 5 of this report we see the

14     following sentence:

15             "DutchBat are not allowed to enter that area," this is a

16     reference again to Bandera Triangle, "because of our safety.  We can't

17     investigate the number."

18             Do you know if the determination that it was too unsafe for

19     DutchBat to move around the enclave was a decision taken by DutchBat or a

20     restriction placed on their movement by the VRS?

21        A.   My understanding at the time is they were being restricted in

22     their movement by VRS.

23        Q.   Can I now ask that we go to page 7 in the original, and nine in

24     the translation of this document, and to the subheading entitled:

25     "Refugee Situation at Kladanj DTG-13 2300, July 1995."

Page 7337

 1             Now if I can draw your attention to the portion of that report

 2     which states:

 3             "The important point to note at the transfer point is there are

 4     no men over the age of 16, bar a few over 60."

 5             Would DutchBat have been the source of this report?

 6        A.   At Kladanj, no.  I wouldn't have thought they were the -- I mean,

 7     that wasn't part of their --

 8        Q.   Are you able to assist us --

 9        A.   Yeah, I'm not actually -- hang on a minute.  I would have to --

10     one minute.

11        Q.   And tell us if you want to advance a page or go back a page?

12        A.   I would like -- I don't mind -- go to back, if you see what I

13     mean.

14        Q.   Go back one page?

15        A.   Yes, please.

16             MR. GROOME:  Could I ask that that be done.

17             THE WITNESS:  Yeah.  I think they're still looking -- are we

18     still looking at an UNMO report?

19             MR. GROOME:

20        Q.   Perhaps if we could go to the first page in this document which

21     is at e-court page 4 in both languages.  So this is a series of five

22     pages and this is now the first page that we're bringing to the screen.

23        A.   Yes.  This is -- this is the annex to the UNMO daily sitrep.

24             Now if we go back to the one you first showed me.

25        Q.   That's page 7 in the original and 9 in the B/C/S, please.

Page 7338

 1        A.   And I think it -- this is UNMO reporting.

 2        Q.   And that would be -- are you able to say where the UNMOs would

 3     have been based?

 4        A.   No, I wouldn't know where those -- I just don't know at this

 5     stage.  I might have known at the time, but I can't remember now.

 6        Q.   Okay.

 7             MR. GROOME:  Your Honours, at this time, the Prosecution tenders

 8     65 ter 3535 as a public exhibit.

 9             MR. IVETIC:  Well, Your Honours, the witness has discussed it as

10     detailed, but it's based on a number of assumptions and I'm not quite

11     sure between this document and the other document how much of this was

12     known to the witness before reviewing these documents when presented by

13     the Office of the Prosecutor.  So on that bases, I would object to their

14     admission as not being -- not being tied to the knowledge of this

15     witness.  Both this document and the one that we did prior, which has not

16     been tendered yet.

17                           [Trial Chamber confers]

18             JUDGE ORIE:  Objection is denied.

19             Madam Registrar.

20             THE REGISTRAR:  Document 3535 receives number P793, Your Honours.

21             JUDGE ORIE:  P793 is admitted into evidence.

22             MR. GROOME:

23        Q.   General, now having looked at what information was known on the

24     13th and 14th of July, could I ask you to now return to your meeting with

25     Mladic on the 15th.

Page 7339

 1             Before you describe the meeting and the substance of the meeting,

 2     can I ask you to, as it were, set the stage, give the Chamber some idea

 3     of the context, the format, the location of the meetings.

 4             Could you please do that.

 5        A.   Yes.  The -- from my point of view, this starts on the -- on the

 6     14th with a request for me to get myself to Belgrade.  We get out of

 7     Sarajevo.  We go down to Split.  We fly to Belgrade -- I beg your pardon.

 8     We fly to Zagreb.  We fly to Belgrade.  The meeting is the first time for

 9     a long time that I saw -- there was the -- the negotiating, political

10     negotiating level of Carl Bildt; Stoltenberg; together with Akashi;

11     General De La Presle; Stoltenberg's military advisor; the Force

12     Commander, for -- everybody was in the same place, and the catalyst, if

13     you like, of this event was the collapse of the Srebrenica safe area and

14     the refugees.  I don't think anybody understood what had actually

15     happened there at this stage.

16             The -- we start with a meeting amongst ourselves and then we move

17     to meet Milosevic.

18        Q.   When did you actually arrive at this meeting?

19        A.   I got there - let me think - I think about noon on the - what day

20     would it be.  The 15th.

21        Q.   And when you arrived there had any meetings taken place before

22     your arrival that you were made aware of?

23        A.   Oh, I think that Carl Bildt had met with Milosevic and that --

24     all -- with the Akashi and I and the Force Commander, General Janvier, we

25     had all arrived together.  But I think the others had met beforehand.

Page 7340

 1        Q.   And can you describe the first meeting you had upon your arrival.

 2     First let's start by can you describe who you met with.  Name all the

 3     participants.

 4        A.   There was Stoltenberg, de La Presle, Janvier, Akashi, myself.  I

 5     had a Colonel Baxter with me.  General De La Presle had a Colonel Elliot

 6     with him.  And I can't remember who was supporting the other principal

 7     actors.

 8        Q.   And did there come a time when you were asked to have a smaller

 9     meeting with Mr. Mladic himself?

10        A.   Yes.  We all met at the hunting lodge, and very soon after we had

11     all gathered around, and Mladic and Milosevic were there when we arrived.

12     The -- it -- we -- we, General Mladic and I, were told to go away and

13     sort out the, if you like, the modalities of Srebrenica in relation to

14     the refugees and the extraction of the Dutch battalion.

15        Q.   And --

16             JUDGE ORIE:  This is of course is found in 157, to that extent

17     repetitious.  If you are short in time, would you please keep that in

18     mind.

19             MR. GROOME:

20        Q.   Where precisely was this particular meeting held?

21        A.   In a room.  The -- everyone else -- we had all met on a sort of

22     patio outside the building.  The, if you like, the military members,

23     General Mladic and I, we went to some anteroom actually in the building,

24     and the remainder of the meeting stayed on the patio.

25        Q.   Now in paragraph 162 of your statement you say quote, referring

Page 7341

 1     to Mladic:

 2             "He warned me that his troops in the Gorazde area were awaiting

 3     his orders to attack and claimed a significant victory in the Treskavica

 4     mountains near Sarajevo."

 5             Was it your understanding that he was presently and actively

 6     giving orders to his subordinates while at that meeting?

 7        A.   Yes.

 8        Q.   Did he say or do anything which indicated to you that he had

 9     given another person temporary direct authority to issue orders while he

10     attended that meeting?

11        A.   No, I don't think he ever said that.

12        Q.   Did you consider that you yourself, while at that meeting, were

13     in actual command of the troops under your command?

14        A.   Yes.

15             MR. GROOME:  Can we now please return to P363, General Mladic's

16     military notebook, and if we could go, once again, to 7 in the digit

17     image of the notebook, and 4 in the English translation.

18        Q.   While that is being brought up, General Mladic records you as

19     saying three things, and I want to put them to you and ask you to

20     explain.

21             If we could go, I'm sorry, to the next page, please, in both.

22     And once again, if we could please call up the digital image of the

23     actual notebook.

24             While that is being down I will read the text and you can confirm

25     it when you see it on the screen.

Page 7342

 1             The first thing he records you as saying is:

 2             "I will use the force when the UN forces come under attack on the

 3     road or at the camp."

 4             Do you recall saying something along these lines to Mladic?

 5        A.   Yes, I do.

 6             MR. GROOME:  Sorry, with respect to the -- I'm sorry.  If I could

 7     just get the right English page up here.  With respect to the English, it

 8     should be page 5 in the English, in e-court.  I think that's it there

 9     now.  Okay.  So now we have it.  Okay.

10             I'm sorry, I interrupted you.  Can you please --

11        A.   The forces I think I was referring to is -- is the air force,

12     the -- the -- you know, use air-strikes.

13        Q.   And what's the camp that you're referring to?

14        A.   I suspect the camp at Gorazde, if that was the -- it -- it -- I

15     don't remember the connection, but if we are talking about a threat to

16     the British battalion or the Ukrainian forces in Gorazde, then it would

17     have been if their camp was attacked.

18        Q.   The next note records you as saying:

19             "Treatment of the population in Srebrenica and Zepa - there are

20     rumours about an atrocities, massacres, and rape."

21             JUDGE FLUEGGE:  Mr. Groome, I think we should have the

22     corresponding page in the original.

23             MR. GROOME:  Thank you, Your Honour.

24             Could we advance the original copy one page.

25        Q.   And, General Smith, my question to you is do you say -- do you

Page 7343

 1     recall saying something along those lines to General Mladic?

 2        A.   Yes, I do.

 3        Q.   Do you recall whether you used the word "rumours"?

 4        A.   I don't remember that specifically, no.

 5        Q.   The last note in this notebook entry, and if we could advance the

 6     translation at this stage, regarding you as:

 7             "It would be good if you would allow the UNHCR and International

 8     Committee of the Red Cross as soon as possible."

 9             Do you recall saying something along these lines?

10        A.   Yes.  I'm trying to get access.  We're -- we, that is, I, the

11     UNHCR, and the ICRC, are still looking for what we think are some 2.000

12     prisoners of war plus, and we don't know how many the plus is.

13             MR. GROOME:  Can we now please go to 01935.  It's 65 ter number.

14             Now, during the course of this meeting with Mladic, did you begin

15     to develop a draft agreement?

16        A.   Yes, we did.

17        Q.   Now, 65 ter 1935 is on the screen.  Did you have a chance to

18     review this document before testifying here today?

19        A.   Yes, I did.

20        Q.   Do you recognise the substance that's discussed or written in

21     this particular document?

22        A.   Yes.

23        Q.   And Your Honours so the Court has some understanding, this is

24     also a document recovered with one of the notebooks.

25             Item number 3 indicates that representatives of the UNHCR will be

Page 7344

 1     allowed to enter Srebrenica by 18 July 1995 at the latest.

 2             Did Mladic explain why he would not agree to immediate access?

 3        A.   To the best of my memory, the -- this was all to do with the

 4     security of people and that they were -- you know, there were still

 5     Bosnian soldiers about that my be creating incidents and so forth.

 6             MR. GROOME:  Your Honour, the Prosecution tenders 65 ter 1935 as

 7     a public exhibit.

 8             MR. IVETIC:  No objection to this document being tendered.

 9             JUDGE ORIE:  Madam Registrar.

10             THE REGISTRAR:  Document 1935 becomes Exhibit P794, Your Honours.

11             JUDGE ORIE:  And is admitted into evidence.

12             You may proceed.

13             MR. GROOME:  Now could I ask that we please bring to the screen

14     65 ter 5729.  This is a document dated 19 July 1995 from

15     Lieutenant-Colonel Baxter and entitled: "Meeting, General Smith,

16     General Mladic, 19 July 1995."

17             My first question to you is:  Do you recall meeting, again, with

18     General Mladic on the 19th of July.

19        A.   Yes, I do.

20             MR. GROOME:  Can I ask that we go to page 3 in the original and 4

21     in the translation.

22        Q.   And in paragraph 3(c) it states:

23             "General Smith explained that it was particularly important for

24     UNHCR to have immediate access to Srebrenica in order to assess

25     requirement for future aid convoys.  Mladic agreed to this without

Page 7345

 1     difficulty."

 2             My question to you is:  When would be the first time UNHCR would

 3     gain access to Srebrenica.

 4        A.   I'm sorry, I can't find that bit on the paper [Overlapping

 5     speakers] ...

 6        Q.   I'm sorry, it's 3(c).  If you look at the very top there.

 7        A.   I don't see anything where I'm saying about access.  In the --

 8        Q.   "It seems that in the discussion General Smith explained that it

 9     was particularly important" -- [Overlapping speakers] ...

10        A.   Sorry, got you.

11        Q.   Sorry.

12        A.   Yeah.  Yes.  The -- I don't think UNHCR ever got access in the

13     end to the Srebrenica area.

14        Q.   Did Mladic ever give an explanation as to why they were not given

15     access?

16        A.   Not in my memory, no.

17        Q.   The last sentence on the original, and if we could advance to

18     page 5 in the B/C/S, states with the word "he," referring to Mladic:

19             "He said he engaged himself personally in this operation and

20     organised as much food and water for the refugees as possible."

21             My question to you is:  Do you recall General Mladic stating that

22     he had been personally involved in VRS operations in Srebrenica?

23        A.   Yes, I do.

24             MR. IVETIC:  Objection.  It misstates the document, Your Honour.

25     It's testifying and it misstates the document and calls for speculation.

Page 7346

 1             JUDGE ORIE:  Mr. Groome, let me have -- you were quoting exactly

 2     from -- let me see where it is on the -- on the top, yes.

 3             MR. IVETIC:  The bottom of page 2, Your Honour.

 4             JUDGE ORIE:  May I take it that you understand this language to

 5     be that he took part or that -- let me ...

 6             MR. GROOME:  Your Honour, and that was my next question with the

 7     witness to clarify his understanding.

 8             MR. IVETIC:  He only talks about the organisation of food and

 9     water for the refugees.

10             JUDGE ORIE:  It's not this operation.

11             Witness, where it reads here that Mr. Mladic would have said that

12     he engaged himself personally in this operation, which is described to

13     you a minute ago, and organised as much food and water for the refugees

14     as possible, how did you -- how do you interpret this language?  Is that

15     Mr. Mladic was exclusively engaged in this operation, as far as food and

16     water is concerned, or whether it was to be understood in a wider sense,

17     and, if so, on what basis?

18             THE WITNESS:  I understood it on the wider basis, that he was

19     engaged personally on this operation, and indeed I'd seen television

20     footage of him being engaged personally on this operation in the streets

21     of Srebrenica and around Potocari.

22             So that was my understanding at the time, and -- and that is how

23     I continued to read that paragraph.

24             JUDGE ORIE:  Please proceed, Mr. Groome.

25             MR. GROOME:  Could I ask that we now go to paragraph 5.  This can

Page 7347

 1     be found on 4 in the original, and page 5 in the B/C/S.

 2        Q.   The portion I want to draw your attention says:

 3             "Mladic described how on the night of 10/11 July 1995, a

 4     significant number of BiH troops broke through the lines in the direction

 5     of Tuzla.  He explained that he had opened a corridor to let these troops

 6     go.  He accepted that some skirmishes had taken place with casualties on

 7     both sides and that some 'unfortunate small incidents' had occurred."

 8             That's the end of the quote of that.

 9             My question to you is:  What did you understand him to mean when

10     he said "unfortunate small incidents"?

11        A.   It would have been things like people trying to surrender,

12     getting shot, people -- people who weren't armed being shot.  Those sorts

13     of things.  Which I can envisage happening in those sorts of

14     circumstances.

15             MR. GROOME:  Your Honour, the Prosecution tenders 5729 as a

16     public exhibit.

17             MR. IVETIC:  No objection to this document, Your Honour.

18             JUDGE ORIE:  Madam Registrar.

19             THE REGISTRAR:  Document 5729 becomes Exhibit P795, Your Honours.

20             JUDGE ORIE:  P795 is admitted into evidence.

21             MR. GROOME:  Can I ask that we now go to 65 ter 5733.  And this

22     is notes on a meeting between Generals Smith and Mladic on 31st of

23     July 1995.

24        Q.   General, did there come a time when you met General Mladic on the

25     31st of July?

Page 7348

 1        A.   Yes.

 2        Q.   Was there anything memorable about your travel to that meeting?

 3        A.   Yes, my helicopter was shot up.

 4        Q.   And was it hit?

 5        A.   Yes.

 6        Q.   And was your helicopter shot on the way to the meeting?

 7        A.   It was -- it was engaged on our way to the meeting as we crossed

 8     from Bosnian-held bits of Sarajevo and into the Bosnian Serb area.

 9        Q.   Can you describe the outer markings of the helicopter.

10        A.   It was a UN marked helicopter of the British Sea King, it was the

11     type of helicopter, with UN markings.

12        Q.   Was your trip announced to both sides.

13        A.   Yes, it was.

14        Q.   Were you travelling in daylight?

15        A.   It was in daylight and it wasn't so much as announced.  We had

16     been given clearance for this meeting and this journey by Mladic's

17     headquarters.

18        Q.   Can I draw your attention to paragraph 8 and that can be found on

19     the third page in both languages, which is entitled: "UNHCR Aid to

20     Sarajevo."  The last sentence of this paragraph summarising the

21     discussions related to Sarajevo states, referring to Mladic:

22             "He then offered to take measures to open Sarajevo airport and

23     return all Sarajevo utilities if UNPROFOR removes the BiH from the Igman

24     DMZ, suggesting that we had the forces in place to do this."

25             Did you understand during the course of this meeting for Mladic

Page 7349

 1     to represent that he had the personal capacity to control the inflow of

 2     utilities into Sarajevo?

 3        A.   Yes, I did.  It -- it -- and the -- the -- this offer is

 4     indicative of it, but it is also that if I'd agreed to that, I was

 5     assuming, which was not a safe assumption, that the Bosnians would permit

 6     me to, in fact, shot down the Igman trail, he would then be entirely in

 7     control of the enclave.

 8        Q.   Now if I draw your attention to a meeting on the 22nd of

 9     August 1995 and ask you to take a look at paragraph 194 of your

10     statement, and this is P785, MFI, page 49 and 38 respectively.  It says:

11             "Later in the meeting, I tackled Mladic on Srebrenica and the

12     allegations of atrocities.  It was clear by now that these massacres had

13     taken place."

14             Can you explain this portion of your meeting with as much

15     precision as possible, including what you said to Mladic and he to you.

16        A.   The -- just let me, for a moment, just refresh my memory of the

17     earlier paragraphs in that statement.  Yeah.

18             During this meeting, I'm trying to explain the -- the political

19     situation, the international political situation and the progress of

20     the -- what had come to be called the Holbrooke peace talks.  And trying

21     to get him to understand, the -- that the -- that repeatedly the Bosnian

22     Serbs had put themselves into positions where their -- the impression

23     they gave was so revolting to public opinion, that their position, their

24     argument that they were trying to advance was being dismissed before

25     they'd been able to make their argument because of their actions as seen

Page 7350

 1     on television and so forth.  And I'm trying to get that across at this

 2     time.

 3        Q.   I'd like to change to a different subject now.  In paragraphs 189

 4     to 210 of your statement concerns events in August 1995 and includes the

 5     shelling on the market-place in Sarajevo on 28 August.

 6             Your evidence is comprehensive on this point.  I do want to draw

 7     your attention to paragraph 201.  That can be found on page 51 and 40

 8     respectively in e-court.

 9             In your statement, you say:

10             "There was an acoustic system called HALO that didn't pick up any

11     firing from within the city, which told us that it was out of range of

12     acoustic system."

13             Can I ask you to explain to the Chamber what is H-A-L-O or HALO

14     and explain it in the context of this sentence?

15        A.   HALO was an acoustic target acquisition system.  It has a number

16     of sensors.  The -- it -- a weapon is fired.  It hears the firing of the

17     weapon.  The sensors all produce a direction and you -- you -- each one

18     is compared to the other -- excuse me, one minute.  And then you can

19     begin to get a direction of where the weapon was fired from.

20             In addition to this form of information, and as said in this

21     paragraph, there is the Cymbeline radar, and then finally you had the

22     observation posts around the confrontation line of -- in Sarajevo and

23     they, too, are part of your acoustic system in that the people can hear a

24     weapon being fired.

25        Q.   Can I ask that 10244 be brought to our screens.  It is a document

Page 7351

 1     entitled "Final and Comprehensive Report on the 28 August 1995 Mortar

 2     Incident," dated 8 September 1995.

 3             Once it's on the screen, I'd ask you whether you have had a

 4     chance to examine this document in preparation for your evidence today.

 5        A.   Yes, I have.

 6        Q.   And can you tell us what it is we are looking at.

 7        A.   The -- this is a collection of documents put together by my

 8     military assistant and as to the background to our understanding and how

 9     we reached our understanding of what had happened.

10             MR. GROOME:  Your Honour, the Prosecution tenders 10244 as a

11     public exhibit.

12             MR. IVETIC:  No objection to the tendering of this document.

13             JUDGE ORIE:  Yes.

14             Mr. Groome, is it correct that you did not tender 65 ter 5733?

15             MR. GROOME:  I may not have, Your Honour.  I apologise and thank

16     you for the reminder.  It is my intention to tender that document,

17     Your Honour, and I would do so at this time.

18             JUDGE ORIE:  Mr. Ivetic.

19             MR. IVETIC:  5733.  No objection to the document being tender.

20             JUDGE ORIE:  Madam Registrar, 65 ter 5733 would receive.

21             THE REGISTRAR:  Number P796 Your Honours.

22             JUDGE ORIE:  P796 is admitted.

23             Then we have 65 ter 10244.

24             THE REGISTRAR:  Receives number P797 Your Honours.

25             JUDGE ORIE:  And is admitted into evidence.

Page 7352

 1             MR. GROOME:  Your Honours, the next three -- well, let me ask

 2     General Smith something first.

 3        Q.   After the Markale bombing, you had a number of phone calls with

 4     General Mladic; is that correct?

 5        A.   Yes.

 6             MR. GROOME:  Your Honours, 65 ter, and the core number -- is the

 7     root number is the same for all the suffix differs, 22270M suffix P and

 8     suffix S are tape recordings of phone calls -- of these phone calls made

 9     by General Mladic and they were recovered from him.  I asked Mr. Ivetic

10     to consider whether he would consent to their admission, and if he makes

11     his position known, perhaps I can save some time and not have the general

12     look at them here in court.

13             MR. IVETIC:  If I could have a minute to consult with my client

14     on this issue.

15             JUDGE ORIE:  Yes.  If you want to take instructions.

16             MR. IVETIC:  Yes, I do, Your Honour.

17                           [Defence counsel confer]

18             MR. GROOME:  Perhaps while that's being done, could I ask that a

19     document be brought to our screen, and it's 3548.  And in fact, Your

20     Honour, as I see Mr. Ivetic is coming back, perhaps he can make his

21     position known and I will proceed.

22             MR. IVETIC:  Yes, Your Honour.  My client has instructed that he

23     does not object to the admission of these documents so long as they are

24     read and presented in their entirety so that the public gets the true,

25     full picture of what was discussed and we get to the truth of the matters

Page 7353

 1     that are of interest to these proceedings finally.

 2             JUDGE ORIE:  Yes.  Access of the public to these proceedings is a

 3     matter the Chamber will deal with.  I do understand that Mr. Mladic does

 4     not object to their admission, and we'll take care that the public is

 5     informed as it usually is.

 6             Madam Registrar, 22270, and -- suffix P.

 7             THE REGISTRAR:  22270M, first, will receive number P798,

 8     Your Honours.

 9             JUDGE ORIE:  P798 is admitted into evidence.

10             Mr. Mladic, no talking allowed at this moment.

11             THE REGISTRAR:  And 222 ...

12                           [Trial Chamber confers]

13             JUDGE ORIE:  The next one, Madam Registrar.

14             THE REGISTRAR:  Document 22270P receives number P799,

15     Your Honours.

16             JUDGE ORIE:  And is admitted into evidence.

17                           [Trial Chamber confers]

18             JUDGE ORIE:  And is there the third one is the suffix S?

19             MR. GROOME:  Yes, Your Honour.

20             JUDGE ORIE:  Madam Registrar.

21             THE REGISTRAR:  And document 22270S receives number P800,

22     Your Honours.

23             JUDGE ORIE:  P800 is admitted into evidence.

24             MR. GROOME:  Your Honour, with respect to three --

25             JUDGE ORIE:  Mr. Ivetic is on his feet.

Page 7354

 1             MR. IVETIC:  Yes, Your Honours.  I did have to consult with my

 2     colleague about the additional instructions to reiterate that Mr. Mladic

 3     expects that these are to be read or heard in their entirety in the

 4     courtroom.  And in so as far there are audio --

 5             JUDGE ORIE:  Mr. Ivetic.  Mr. Ivetic.

 6             MR. IVETIC:  Am I not allowed to make a record, Your Honour?

 7             JUDGE ORIE:  First of all --

 8             MR. IVETIC:  Am I not allowed to make a record, Your Honour?

 9             JUDGE ORIE:  Will you please calm down, Mr. Ivetic.  And, well,

10     immediately.

11             MR. IVETIC:  Am I allowed to continue making my record, Your

12     Honour, of what my client has instructed me to do.

13             JUDGE ORIE:  You are interrupted by me at this moment and you

14     have to accept that because I wanted to say something first, and then I

15     will allow you to complete what you intended to say.

16             What I wanted to say is that it may be clear to you that an

17     objection to admission cannot be conditional.  The Chamber does not

18     accept conditions before it admits something.  The Chamber understands

19     the condition Mr. Mladic intended to impose as an expression of concern

20     for the public character of this trial.  That is a matter the Chamber

21     will look at seriously, as it always does.

22             That is what I wanted to say.

23             If you now want to complete what you said, you're free to do so.

24             MR. IVETIC:  Yes, Your Honour.  And first I thank you for your

25     comments and your understanding.

Page 7355

 1             Mr. Mladic also wanted to bring to the attention of the Chamber,

 2     as I understand it, that these are apparently from dictaphone cassettes

 3     which should be in the possession of the Prosecution and which can be

 4     played and can be heard, so we would ask that those cassettes be also

 5     entered into evidence, not just the transcripts.

 6             JUDGE ORIE:  Mr. Mladic -- Mr. Groome, are there any cassettes

 7     which could be --

 8             MR. GROOME:  We have them prepared and they are here in court.

 9     That was our full intention to tender them as public exhibits, Your

10     Honour.

11             JUDGE ORIE:  Yes.  Therefore, the cassettes, the audio is part of

12     the -- is it already?  If not, is it uploaded?

13             MR. GROOME:  Your Honour, I'm informed that the digital audio has

14     already been transferred over to the Registrar and the transcripts have

15     been uploaded.

16             JUDGE ORIE:  We'll take care that they are part of the record of

17     these proceedings so it's not only text but also audio.

18             Madam Registrar, how are we going to deal with that technically?

19     Do we have to add something to the e-court records?

20             THE REGISTRAR:  No, Your Honours.  This is standard procedure.  I

21     have been provided with copies and DVDs, the Chamber staff was provided

22     with copies as well, and transcripts are uploaded in the e-court as I can

23     see now.

24             JUDGE ORIE:  Yes.  Therefore, Mr. Ivetic, everything is part of

25     the record now, including audio.  And I think we could then proceed.

Page 7356

 1             MR. GROOME:  Your Honour, just so the record is clear, what's

 2     been transmitted to the Chamber has not been edited in any way by the

 3     Prosecution.  It is the entire content of the conversation.

 4             JUDGE ORIE:  Thank you for that information.

 5             You may proceed, Mr. Groome.

 6             MR. GROOME:

 7        Q.   General, do you recall if during these conversations

 8     General Mladic was proposing that a joint commission be established to

 9     investigate the second Markale bombing?

10        A.   Yes, he did propose this.

11        Q.   In due course the Prosecution will adduce evidence about that

12     these recordings were recovered from General Mladic.  My question to you,

13     at this point, when the conversation took place, were you aware that he

14     was recording your conversation?

15        A.   No, I was not aware of it.

16             MR. GROOME:  Could I ask -- Your Honour, the next exhibit I want

17     to work with is 3548.  I only intend to tender the last two pages, pages

18     9 and 10, and have taken the liberty of creating a sub-exhibit, 3548A.

19     If the Chamber permits, I will use that instead.

20             JUDGE ORIE:  Let's first ask Mr. Ivetic whether there's any

21     objection against using two pages only of this document as a separate

22     exhibit.

23             MR. IVETIC:  Well, I did not have an objection to the entire

24     exhibit coming in.  I don't have it in front of me right now to give an

25     immediate response as to extract of.  Since there are many documents that

Page 7357

 1     were disclosed for this witness, I don't have them at instantaneous

 2     recall.

 3             JUDGE ORIE:  Then I suggest the following, that we follow the

 4     suggestion by Mr. Groome, and if you want the entire exhibit, the entire

 5     original exhibit to be in evidence, Mr. Ivetic, that we hear from you.

 6             MR. IVETIC:  That would be appreciated, Your Honour.

 7             JUDGE ORIE:  Mr. Groome, sub-Exhibit 3548A is the one you want to

 8     work with at this moment?

 9             MR. GROOME:  And that's what is on the screen now, Your Honour.

10        Q.   General Smith, did you have a chance to review this document?

11        A.   Yes, I did.

12        Q.   Can you tell us what it is.

13        A.   This is a -- an account of the conversations I had with Mladic,

14     those -- on those two days, the 28th and 29th.

15        Q.   The entry in the middle of the page for 1823 hours on the 28th,

16     it's reported that Mladic claimed that an examination of the casualty

17     list and the circumstances of the incident would provide the truth and

18     vindicate his forces.

19             Did he explain to you how the identity of the victims would

20     vindicate the involvement of his forces?

21        A.   No, he didn't.

22             MR. GROOME:  Your Honour, the Prosecution tenders 3548A as a

23     public exhibit.

24             JUDGE ORIE:  Yes.  With reference to what I said earlier,

25     Madam Registrar, this exhibit would receive number.

Page 7358

 1             THE REGISTRAR:  Document 3548A receives number P801,

 2     Your Honours.

 3             JUDGE ORIE:  And is admitted into evidence.

 4             MR. GROOME:  Your Honour, my final line of questioning should

 5     only be a few minutes.  Could I ask that 65 ter 17494 be brought to our

 6     screens.  It is an order from Dr. Radovan Karadzic, president of the

 7     republic, strictly confidential number 1538-2/95, dated 26 March 1995.

 8        Q.   General Smith, have you had an opportunity to familiarise

 9     yourself with this document?

10        A.   Yes, I have.

11        Q.   I'm not as interested in the substance of the document as the

12     procedure that was followed.  But can I ask you to briefly summarise your

13     understanding of this order issued by President Karadzic.

14        A.   It's an order issued in -- on 26th of March, ordering the

15     mobilisation of the state of -- of Republika Srpska, and the -- it --

16     it -- and it's all the organs of the state.  This isn't just military.

17     It's making sure that the whole of the state's effort is devoted to

18     the -- to -- to the purpose of the mobilisation.

19             MR. GROOME:  Can we please now see 65 ter 7661.

20        Q.   It's an order from the Main Staff dated the same date and

21     type-signed by General Ratko Mladic.  And, again, General, once you can

22     see this document, can you tell us whether you have recently familiarised

23     yourself with it.

24        A.   Yes, I have.

25        Q.   Can you summarise its purpose in military terms.

Page 7359

 1        A.   Well, this is the military chain of command taking the

 2     political --

 3             MR. IVETIC:  I will interject and object to this opinion

 4     testimony coming in.  The witness has not been qualified as an expert

 5     witness, and in fact has been disqualified on the topic of being an

 6     expert witness by other Trial Chamber as to the VRS.  He can talk in

 7     general terms but he cannot apply his facts and conclusions specifically

 8     to the VRS.  This has never been presented as an expert under 94 bis.

 9     This is constantly happening, Your Honours.

10             JUDGE ORIE:  Are you finished, Mr. Ivetic?

11             Mr. Groome, would you please rephrase the questions.

12             MR. GROOME:  Your Honour, I'm simply asking the witness, who has

13     40 years of a military officer and his experience as a commander of a

14     multinational force, if he recognises what the purpose of this document

15     would be.  I'm not asking him to express any opinion about the

16     effectiveness of a chain of command or anything like that, but simply

17     what would be the purpose of such a document.  I believe that's well

18     within his realm of personal and professional experience.

19                           [Trial Chamber confers]

20             JUDGE ORIE:  The witness may answer the question.  We'll then --

21     and the witness is invited not to avoid from any speculation and just to

22     base his answer on experience preferably well explained so that the

23     Chamber understands exactly what the basis for your comments is.

24             THE WITNESS:  Can we go back to the original, please.

25             MR. GROOME:

Page 7360

 1        Q.   That's the one signed by Dr. Karadzic?

 2        A.   Correct, yes.

 3             MR. GROOME:  Could we please have once again on the screen 17494.

 4             THE WITNESS:  Yeah.  We can see in the original that there --

 5     there is a strictly confidential number.  It starts 01 in the top

 6     left-hand corner.  And the next order, the one -- if we could down the

 7     chain, as it were, to --

 8             MR. GROOME:  Could we please now have 7661.

 9        Q.   And you're asking us to note the --

10        A.   That number at the top.

11        Q.   Okay.

12             MR. GROOME:  Can we now please see 7661.

13             THE INTERPRETER:  Kindly slow down for the interpreters.  Thank

14     you.

15             THE WITNESS:  And you now see the Main Staff of the army

16     referring to this order in the second paragraph, "we received this

17     strictly confidential order number," et cetera, the same number as the

18     previous one, and we then see the order being repeated.  And if it turns

19     over the page, will probably tell you to obey it.

20             MR. GROOME:

21        Q.   It's only one page in the -- okay.

22        A.   Yep.

23             MR. GROOME:  Can we now look at 65 ter 13045.  This is a document

24     dated the next day, 27 March 1995, from the command of the Drina Corps.

25        Q.   And, again, once you can see it, have you recently familiarised

Page 7361

 1     yourself with this document?

 2        A.   Yes, I have.  And I'd only point out that the -- well, let me

 3     look at it.

 4             And there, again, at the -- in -- on my screen, the paragraph at

 5     the bottom of the page:

 6             "We've received an order from the RS president ... number 01,"

 7     et cetera.

 8             And it repeats it and passes it on down the chain of command.

 9             MR. GROOME:  Finally can we look at 65 ter 13035.

10        Q.   It's a document of the 1st Podrinje Light Infantry Brigade dated

11     29 March, 1995, entitled in part:  "Delivery of the Order of the

12     President of Republika Srpska."

13             Again, when can you see it, have you recently familiarised

14     yourself with it?

15        A.   Yes, I have.  And here we see the subordinate formation of the

16     Drina Corps commander repeating the order number that begins with 01 and

17     repeating the order to their subordinates.

18        Q.   And finally can we go to the last page in the English

19     translation, the last sentence of the document which states:

20             "The battalion commands are duty-bound to make known the contents

21     of the order of the president of the republic through their company

22     commanders to every soldier an officer so that they may be informed and

23     acquainted with the application of regulations during a state of war ..."

24     and it continues.

25             Do you have any observations about that last sentence?

Page 7362

 1        A.   Other than the -- that there is this -- if you like, there's the

 2     threat of punishment if you don't understand these orders and carry them

 3     out.

 4        Q.   Okay.  Thank you.

 5             MR. GROOME:  Your Honour, before I tender these documents, I want

 6     to point out something with respect to 7661 and 13045.

 7             The English translation of 7661 records the VRS document number

 8     as 3/4-480.  In 13045, which refers to this document, records the number

 9     as 03/4-490.  It is the Prosecution's case that given the poor quality of

10     the original identified as 7661, the translator has understandably

11     misread the number 490 as 480.

12             Since the original is illegible, I think asking for the

13     translation to be verified will not resolve the matter but, rather, it

14     will be for the Chamber to ultimately consider the related documents and

15     come to its own view about what the real reference number is in fact.

16     And with that, Your Honour, the Prosecution would tender 17494, 7661, 65

17     ter 13045, 65 ter 13035 as public Prosecution Exhibits.

18             MR. IVETIC:  Your Honour, the Defence would object.  I have heard

19     no testimony from this witness giving any personal factual knowledge of

20     either the matters contained in these documents or of having received the

21     documents during the relevant time-period.  What we've had here is trying

22     to get an opinion testimony through the backdoor through a witness who

23     has not had any personal knowledge to gain as to these documents and

24     therefore we would object to the introduction of these three documents on

25     this basis.

Page 7363

 1             JUDGE ORIE:  Mr. Ivetic, would there be any objection against

 2     having them admitted through the bar table because what the Prosecution

 3     apparently wants to establish, and almost everyone can read in those

 4     documents, is that an order is going down the line of the hierarchical

 5     military line.

 6             MR. IVETIC:  When they make a submission via the bar table we

 7     will examine it and we will give our position.

 8             JUDGE ORIE:  Mr. Groome, would you extend the tendering to

 9     alternatively tendering them from the bar table.

10             MR. GROOME:  Yes, Your Honour.

11             JUDGE ORIE:  Then we'll ask Madam Registrar to mark them for

12     identification, and we'd like to hear from you, Mr. Ivetic, well, let's

13     say still this week.

14             Madam Registrar, can you please assign numbers to the documents.

15             THE REGISTRAR:  Document 17494 receives number P802,

16     Your Honours.

17             Document 07661 receives number P803, Your Honours.

18             Document 13045 receives number P804, Your Honours.

19             And document 13035 receives number P805, Your Honours.

20             JUDGE ORIE:  Thank you, Madam Registrar.  P802 up to P805,

21     because the last one is missing on the transcript, but I think it was

22     13035 which receives exhibit number P805.

23             Therefore, P802 up to and including P805 are marked for

24     identification.

25             MR. GROOME:  Your Honour, that concludes my examination.

Page 7364

 1        Q.   Thank you, General Smith.

 2             JUDGE ORIE:  Thank you, Mr. Groome.

 3             We take another break, and we'd like to see you back in 20

 4     minutes, Witness.  Could you please follow the usher.

 5                           [The witness stands down]

 6             JUDGE ORIE:  We take a break, and we resume at a quarter to 2.00.

 7                           --- Recess taken at 1.23 p.m.

 8                           --- On resuming at 1.48 p.m.

 9             JUDGE ORIE:  Mr. Mladic, you are supposed not to speak aloud once

10     the Chamber has entered the courtroom, which it has done by now.

11             I would like to have, Mr. Ivetic, at the end of this session,

12     seven minutes to deliver some guidance.

13             Meanwhile, can the witness be escorted into the courtroom.

14             Mr. Groome, I already can announce what I'll read at the end of

15     this session.  That is, a statement regarding the Rule 94 bis filing of

16     expert report of Witness Theunens.  It could be that you want someone

17     else to listen in as well.

18                           [The witness takes the stand]

19             THE WITNESS:  Thank you.

20             JUDGE ORIE:  Mr. Smith, you'll now be cross-examined by

21     Mr. Ivetic.  Mr. Ivetic is a member of the Defence team of Mr. Mladic.

22             THE WITNESS:  Thank you.

23             JUDGE ORIE:  Mr. Ivetic, you may proceed.

24             MR. IVETIC:  Thank you, Your Honour.

25                           Cross-examination by Mr. Ivetic:

Page 7365

 1        Q.   Good day, sir.

 2        A.   Good day.

 3        Q.   I wish to take the opportunity to remind you that in so far as we

 4     both will be speaking the English language, we need to ensure that there

 5     is a pause between my question and your answer to allow for the

 6     interpretation to complete and, thus, make the job of the court reporter

 7     easier.

 8             Is that fair and understood, sir?

 9        A.   Yes.

10        Q.   Sir, I would begin by focussing just briefly on your career and

11     education and training.

12             I would like now to move to the time-period before you were

13     deployed to the former Yugoslavia.  First of all, in your years of

14     training and education to become a member of the British armed forces,

15     did you ever have a course of study with a focus on the structure or

16     doctrine of the Yugoslav People's Army or the Yugoslav All People's

17     Defence system?

18        A.   Not a specific course, no.  But in my general training, the --

19     the structure of the -- the -- in the Yugoslavian army was addressed, but

20     only in fairly general terms.

21        Q.   You've mentioned the Yugoslavian army.  Can I ask you now to

22     focus with regard to the Army of the Republika Srpska, the Armija BiH, or

23     the Croat Defence Union.  Did any of your study or training to become a

24     member and officer of the British armed forces involve courses or

25     relative to the structure or doctrine of these entities?

Page 7366

 1        A.   Not in my -- not in the -- it wasn't -- it wasn't part of one's

 2     basic training, no.  But in the job I did before I was deployed to

 3     Bosnia, I began to learn how these organisations were operating.  But it

 4     wasn't a course of instruction.

 5        Q.   Can I take it from your answer that you began to learn that this

 6     was an independent study on your own part rather than a formal part of

 7     your employment?

 8        A.   No, it was my job.  We were -- we were sending people to these

 9     places, and I needed to understand what was going on.

10        Q.   And what was the precise nature of your activities to begin to

11     learn how these organisations were operating?

12        A.   I was the assistant chief for the Defence Staff for operations

13     and security in the Ministry of Defence in London.

14        Q.   On what sources did you rely to begin to learn how these

15     organisations were operating?

16        A.   On the reporting that we were receiving, at that time, from the

17     people we'd had deployed there and so forth.

18        Q.   Were you able to, at the time of your deployment, speak the local

19     language or any of the local languages of the former Yugoslavia, or did

20     you always rely upon an interpreter?

21        A.   I couldn't speak, and don't speak, any of those languages.

22        Q.   Can you please provide us with some details relating to the time

23     when you were deployed as a member of UNPROFOR?  Did you at that time

24     receive any specific training, instruction, or briefing as to the

25     operation function of the army BiH, Army of Republika Srpska, or the

Page 7367

 1     Croat Defence Union?

 2        A.   Yes, I was briefed by the headquarters when I took over.

 3        Q.   How long did such a briefing take place?

 4        A.   The initial one was probably about an hour and a half but this

 5     was a continuous process.  It wasn't just a one -- one event.

 6        Q.   Did any part of your briefing deal substantively with the

 7     locations of military storage facilities and military formations of the

 8     armija BiH within and around Sarajevo?

 9        A.   If you -- by that you mean the Weapons Collection Points and so

10     forth, yes.  In so far as we knew them.

11        Q.   Would I be correct that the briefings were only related to the

12     Weapons Collection Points and not any suspected unreported caches of

13     weapons and/or munitions?

14        A.   I don't recall there being an unreported or suspected cache, but

15     if there had been I would expect I would have been briefed about it.

16        Q.   Now I want to go into some more details about your career before

17     you assumed command of UNPROFOR BH command in January of 1995.  I'm

18     looking at your statement, which is P785, marked for identification, and

19     paragraph 4 of the same, which would be in page 2 of the English, and

20     page 2 of the B/C/S as well.  And I think you've already identified the

21     position.  The period I'm focussing on is from 1992 to 1993 when you

22     served as the assistant chief of the UK Defence Staff for operations and

23     security.

24             And did you, as part of that entity within the Ministry of

25     Defence of the United Kingdom, as part of your duties plan or assist in

Page 7368

 1     activities relating to covert British assets operating in

 2     Bosnia-Herzegovina, whether as part of UNPROFOR or NATO or stand alone?

 3        A.   In my -- the covert operations would not have been conducted in

 4     that way.

 5        Q.   Thank you, sir.  Now can I get an answer to my question.  Did you

 6     plan or assist in any form the operations of covert British assets in

 7     Bosnia-Herzegovina during this time-period?

 8        A.   I was operating as a British officer and now I'm here as a UN

 9     officer.

10             JUDGE ORIE:  You're here as a witness of the truth, Mr. Smith.

11             THE WITNESS:  Okay.  In which case --

12             JUDGE ORIE:  And therefore --

13             THE WITNESS:  -- I would rather I didn't answer that question

14     without some advice.

15             JUDGE ORIE:  Well, you're supposed to answer questions that are

16     put to you here.  You're under a duty to testify.  There's no Rule 70

17     restriction, Mr. Groome, is there?

18             MR. GROOME:  There is, Your Honour.  Could I ask that the

19     questions be deferred to tomorrow so I can have an opportunity to review

20     the Rule 70 paperwork on this.  But I believe that this witness is here

21     pursuant to Rule 70.  This witness has testified here many many times, so

22     there's -- if I could just have till the morning to review that

23     paperwork.

24                           [Trial Chamber confers]

25             JUDGE ORIE:  Yes, you'll be given time until tomorrow.

Page 7369

 1             And, Mr. Ivetic, could you then proceed at this moment and then

 2     we'll revisit this matter tomorrow, if need be.

 3             MR. IVETIC:  Absolutely, Your Honours.  Not a problem.

 4        Q.   I'd like to look at a document in e-court about some of the work

 5     you were behind while at this Ministry of Defence position as the

 6     assistant chief.

 7             MR. IVETIC:  Toward that end I would call up 65 ter number 25916

 8     which is a transcript of the 12 January 2000 interview which you gave to

 9     the Dutch authorities, and I think the selection I want is at page 8,

10     paragraph 30, of the same.

11             I believe the English is page 8 and paragraph --

12             THE REGISTRAR:  Your Honours, there's no English version visible

13     in e-court.

14             MR. IVETIC:  Ah.

15             JUDGE ORIE:  Is there any Dutch version of this document?

16             MR. IVETIC:  I don't know, Your Honour.  I thought we had an

17     English version but [Overlapping speakers] ...

18             JUDGE ORIE:  Apparently you have not.  Well, then you have both

19     something to consider before it is tomorrow, Mr. Ivetic.

20             If by tomorrow if you could also find out whether there's an

21     original Dutch version of this document, that would be appreciated.

22             MR. IVETIC:  My recollection is that there is a Dutch version.

23     The English version was the question mark that I had.  This is a

24     Prosecution document, of course, but I do believe that I have seen a

25     Dutch version.

Page 7370

 1             JUDGE ORIE:  Yes, that would be appreciated if that would become

 2     part of e-court as well.

 3             Please proceed.

 4             MR. IVETIC:  Thank you.  I will skip this and we'll get back to

 5     that.

 6        Q.   Sir, focussing on that time-period of 1993, was the British

 7     Ministry of Defence already at that time making plans to engage either by

 8     air-strikes or by artillery in combat actions against the Bosnian Serbs,

 9     and, if so, could you tell me if it was within the auspices of NATO or

10     the United Nations?

11        A.   The British Ministry of Defence was not making those plans, no.

12        Q.   Was the British Ministry of Defence participating with others who

13     were making those plans?

14        A.   They -- the UN, at one stage, had a -- an element, an artillery

15     element, held offshore in 1993, I think it was, and subsequently NATO

16     established the no-fly zone, and after the no-fly zone the safe areas,

17     and that involved the prospect or use of air power.

18        Q.   And you say that there was an artillery element held offshore.

19     Am I correct that we're talking about British artillery pieces there

20     on boats?

21        A.   On a ship, yeah.

22        Q.   Am I also correct, sir, that at that time in 1993 it was your

23     personal proposal and position these artillery pieces should be brought

24     onto the ground in Bosnia-Herzegovina to be used against the Bosnian

25     Serbs?

Page 7371

 1        A.   No, it wasn't to be used against the Bosnian Serbs.  And it was

 2     my personal opinion that our battle group should have that capability.

 3     But it was in defence of our people, rather than to act against anybody,

 4     unless they attacked us.  It was also in response to the Bosnian Serbs

 5     shelling a British position, somewhere in the south.  I can't remember

 6     the location.

 7        Q.   And is it correct that you came into conflict or confrontation

 8     with your superiors about your will to use force against the Serbs at

 9     this time?

10        A.   No.  They agreed and we put the guns on the ships.  The UN didn't

11     want them in the end.

12        Q.   Is it your evidence that you never came into confrontation with

13     your superiors about your will to use force?

14        A.   Not in those terms, no.

15        Q.   Okay.  With regard -- with regard to the decision not to bring

16     the British artillery on the ground and have it potentially used, am I

17     correct that you were upset about this decision by your superiors?

18        A.   I don't recall being upset about it, no.

19        Q.   Am I correct, sir, that in 1993 and 1994 whilst at the Ministry

20     of Defence in London, you were already, at that time, involved in

21     discussions between NATO headquarters in Brussels and the UN headquarters

22     in New York regarding the use of NATO air-strikes in Bosnia-Herzegovina

23     against the Serbs?

24        A.   Yes.  I wasn't working.  I was the -- the British representative

25     in these discussions in both headquarters.  I wasn't co-ordinating

Page 7372

 1     between the UN and the NATO headquarters.

 2        Q.   Okay.

 3             JUDGE ORIE:  Mr. Ivetic, I said I would need seven minutes.  We

 4     have [Overlapping speakers] ...

 5             MR. IVETIC:  I defer to you, Your Honours.  You can --

 6             JUDGE ORIE:  Yes.

 7             Mr. Smith, there's not much chance that we would conclude your

 8     testimony tomorrow, so we were informed that you would still be available

 9     on Monday.

10             THE WITNESS:  I would need to make a couple of telephone calls to

11     be absolutely sure of that.

12             JUDGE ORIE:  Well, then Mr. Groome informed us not completely.

13             MR. GROOME:  Your Honour, I believe I said with difficulty.  I

14     mean, he's being very co-operative, but it wasn't without difficulty

15     so ...

16             JUDGE ORIE:  Yes.  We tried, Mr. Smith, to see whether we could

17     conclude your testimony this week.  Unfortunately we were unable and we

18     would not like to cut the parties down on your testimony, which I hope

19     you will understand as well.

20             We'd like to see you back tomorrow morning at 9.30 in this same

21     courtroom.  But I'd first like to instruct you that you should not speak

22     or communicate in any other way with whomever about your testimony,

23     whether given already today or still to be given tomorrow or any other

24     day to follow.

25             If, in relation to the matter Mr. Groome will further explore

Page 7373

 1     what we call Rule 70; that is, confidentiality, if that raises a matter,

 2     and if you, as you said, you would have to consult someone, you first

 3     need the approval of the Chamber for that.

 4             THE WITNESS:  I understand, yes.

 5             JUDGE ORIE:  Then we'd like to see you back tomorrow morning.

 6             You may follow the usher.

 7                           [The witness stands down]

 8             JUDGE ORIE:  Then I would like to deliver the Chamber's statement

 9     regarding Rule 94 bis filing of expert report of Witness Theunens.

10             The Prosecution filed its notice of disclosure of expert report

11     of Reynaud Theunens, pursuant to Rule 94 bis, on the 8th of January of

12     this year, informing the Chamber of the disclosure of Theunens' expert

13     report to the Defence on the 5th of October, 2012.  According to the

14     Prosecution, the report provides for an expert military analysis of the

15     documentary evidence related to the existence and the purpose of the

16     overarching joint criminal enterprise alleged in the indictment.

17             At the outset, the Chamber notes that the current English version

18     available in e-court under 65 ter number 28612 seems to have various

19     pages in disorders.  For example, page 184 of the document in e-court

20     seems to be parts of a table of contents, followed by page 185, which is

21     normal text again.  This mix between table of contents pages and usual

22     page -- usual text pages continues for about 19 pages.

23             Similarly, page 213 of the document in e-court seems to be a

24     cover page, then followed by a page that continues the text, which

25     started on page 212.

Page 7374

 1             There are a manifold of other examples in the current version on

 2     the e-court.  The Chamber expected the Prosecution to upload a proper

 3     version of the report.  As this was not done, the Chamber requests the

 4     Prosecution to correct such mistakes when it uploads a new version and to

 5     inform the Defence and Chamber once it has done so.

 6             Further, the Chamber notes that "Part I: Background of the

 7     Report," comprises of a section covering three subsections that give a

 8     general summary of the SFRY armed forces, its military laws, and the

 9     conflict in Croatia between 1991 and 1992.  The section in total amounts

10     to 180 pages of the 686-pages-long document.  In light of the substance

11     covered by these pages, the Chamber expects the Prosecution to clearly

12     explain the relevance of this section of the report.

13             Part II of the report discusses the time-frame from 1992 to 1995.

14     In this regard, the Chamber noted various areas of overlap between the

15     report and the adjudicated facts in this trial.  A couple of examples

16     would be:  The proclamation of the Serb Autonomous Districts, (report

17     page 294), covered by adjudicated fact 56; the fact that the VRS could

18     rely on personnel and equipment by the JNA (report page 334), covered by

19     adjudicated facts 303; the declaration for a general mobilisation by the

20     Bosnian Serb Presidency (report page 340), covered by adjudicated fact

21     306; or the proclamation of the constitution of the Serbian Republic of

22     BiH (report page 301), covered by adjudicated fact 128, to only name a

23     few.  The Chamber reminds the Prosecution that it insists on no, or a

24     minimum of overlap of tendering of evidence, and, therefore, asks the

25     Prosecution to properly review the report again and to redact any overlap

Page 7375

 1     with adjudicated facts in this case.

 2             In light of the above, the Chamber requests the Prosecution to

 3     take the steps outlined above and make a new filing, pursuant to Rule 94

 4     bis of the Rules.

 5             And this concludes the Chamber's statement.

 6             We adjourn for the day, and we'll resume tomorrow, Friday, the

 7     25th of January, at 9.30 in the morning, in this same courtroom, III.

 8                            --- Whereupon the hearing adjourned at 2.15 p.m.,

 9                           to be reconvened on Friday, the 25th day of

10                           January, 2013, at 9.30 a.m.