Tribunal Criminal Tribunal for the Former Yugoslavia

Page 7376

 1                           Friday, 25 January 2013

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.37 a.m.

 5             JUDGE ORIE:  Good morning to everyone in and around this

 6     courtroom.

 7             Mr. Registrar, would you please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  This is the case

 9     number IT-09-92-T, the Prosecutor versus Ratko Mladic.

10             JUDGE ORIE:  Thank you, Mr. Registrar.

11             The Chamber was informed that the Prosecution would wish to raise

12     a preliminary matter.  Can we do it in open session, Mr. Groome, or

13     should we move into private session?

14             MR. GROOME:  I would request private session, Your Honour.

15             JUDGE ORIE:  We move into private session.

16                           [Private session]

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 7                           [Open session]

 8             THE REGISTRAR:  Your Honours, we are in open session.  Thank you.

 9             JUDGE ORIE:  Thank you, Mr. Registrar.

10             Mr. Ivetic, please proceed.

11             MR. IVETIC:  Thank you, Your Honours.

12                           Cross-examination by Mr. Ivetic: [Continued]

13        Q.   Good morning, sir.  How are you?

14        A.   Good morning.

15        Q.   At the beginning of today I would like to again remind you since

16     we are both speaking English that we will need to pause between question

17     and answer and that way everyone who is following our work today can do

18     their work.  Is that understood again today, sir?

19        A.   Yes, yes.

20        Q.   I would like to take up and discuss your actual deployment to the

21     BH command as part of UNPROFOR, and I am going to start off with some

22     general questions first.

23             During the entirety of your tenure as the BH commander, did you

24     ever threaten to use deadly force by way of air strikes or artillery

25     strikes against either the BiH forces, that is the Bosnian Muslim forces,

Page 7393

 1     or the Bosnian Croat armed forces; and, if so, how many times?

 2        A.   I can't think of a particular incident when I made such a threat,

 3     and I'm not sure that other than in the general measures of the safe

 4     areas and no-fly zone, and so forth, that the matter was -- that I talked

 5     about such threats.

 6        Q.   And for the sake of completeness, how about the army of the

 7     Republic of Croatia?  During the entirety of your tenure as the BH

 8     commander, do you recall ever having to threaten to use deadly force by

 9     way of air strikes or artillery against this armed formation?

10        A.   No.

11        Q.   And for the record, will you agree or did you have knowledge that

12     the Croatian army had troops which had crossed into the

13     Republic of Bosnia and Herzegovina, crossed the international boundary

14     between them and were situated in and engaging in combat operations on

15     the territory of Bosnia and Herzegovina during your tenure?

16        A.   During it or was there a -- are you giving me a time or at any

17     time?

18        Q.   I was going to ask you -- let's go with more general, any time.

19     Are you aware of any such operations by --

20        A.   Towards the end of the year of 1995, yes, there were

21     Croatian army forces in the western areas of Bosnia, as I recall.

22        Q.   Am I to take then from your testimony that you are unaware of any

23     actions of the Croatian regular army within Bosnia and Herzegovina, apart

24     from what you have said towards the end of the year 1995?

25        A.   I don't remember any other case, no.

Page 7394

 1        Q.   Then if we can focus on the time-period towards the end of the

 2     year of 1995.  At that time did UNPROFOR, either yourself or any other

 3     organs of UNPROFOR, take any measures to protest these actions in

 4     relation to the Croatian regular army being both within

 5     Bosnia-Herzegovina and engaging in these actions?

 6        A.   I can't recall anyone.  I didn't.  And I can't recall if any

 7     other -- the people in Zagreb or anyone did it.  It would be more likely

 8     to have happened from Zagreb than from Sarajevo.

 9        Q.   You say it would have been more likely to have happened from

10     Zagreb than from Sarajevo.  What about in the instance where Croatian

11     regular army troops were attacking Bosnian Serb villages within your zone

12     of responsibility?

13        A.   As I said, I don't recall that that was happening except at the

14     very end of that period, and Zagreb -- the UN headquarters in Zagreb was

15     clearly the one collocated with the capital -- in the capital of Croatia

16     and it would have been where any political action, such as a protest,

17     would have taken place.

18        Q.   Do you recall, sir, if during your tenure, the Bosnian Serb side

19     had complained to you of military actions being undertaken by the regular

20     army of Croatian forces on the territory within your zone of

21     responsibility?

22        A.   At the time we are talking about, the back end of 1995, no such

23     complaint was made to me.

24        Q.   Okay.  And just to finish off the statistics -- or strike that.

25     Did you have occasion to hear or have information of any either

Page 7395

 1     allegations or confirmed incidents where the Croats had fired artillery

 2     shells into the city of Sarajevo during the course of your tenure as

 3     BH commander?

 4        A.   I don't think there is an artillery piece in existence that could

 5     range Sarajevo from Croatia.

 6        Q.   I apologise.  I misspoke with my question.  I meant to say the

 7     Bosnian Croats located within the territory of the former Republic of

 8     Bosnia-Herzegovina.  Did you have any occasion to have information that

 9     these forces had fired artillery shells into Sarajevo?

10        A.   No, I have no information to that effect.

11             JUDGE MOLOTO:  May I just get clarity, Mr. Ivetic.

12             When you say Bosnian Croats, are these Bosnian citizens of

13     Croatian origin?

14             MR. IVETIC:  Yes, Your Honours, I believe so.  I was -- perhaps

15     should have made reference to the HVO, the Croat Defence Union, which was

16     an armed formation on the territory of the former

17     Republic of Bosnia-Herzegovina.

18             JUDGE MOLOTO:  Thank you.

19             MR. IVETIC:  And perhaps I should ask the witness.

20        Q.   Having this clarification, does that change your answer in any

21     way?

22        A.   No, it doesn't.  I understood you to be referring to the HVO.

23        Q.   If we can look at your written statement.

24             MR. IVETIC:  And that would be P785 marked for identification.

25        Q.   And I believe you still have your hard copy in front of you, sir.

Page 7396

 1        A.   Yes, I have.

 2        Q.   I would like to focus on paragraph number 12 to start with.

 3             MR. IVETIC:  Which is to be found at page 4 in the English and

 4     page 3 in the B/C/S versions in e-court.

 5        Q.   And, sir, I would like to ask you to further discuss the mandate

 6     of UNPROFOR during the time of your deployment as BH commander.  And here

 7     in your statement it says:

 8             "Our rules of engagement were wholly reactive.  The UN initiated

 9     nothing in terms of the use of force.  We were reacting to a situation in

10     which force was being used.  If force was used, under the rules of

11     engagement we could respond in self-defence."

12             And I want to ask you, sir, these rules of engagement that you

13     have identified here, did they stay in place during the entirety of your

14     tenure as BH commander or do you believe that they changed at some point

15     in time?

16        A.   The formal rules of engagement document existed throughout my

17     time in -- in command.  The -- I can't recall whether these were amended

18     at any stage.  In the -- during that year, the document was -- I think it

19     was amended, but I cannot recall when or at what stage.

20        Q.   Perhaps you could assist us by identifying this document, by

21     telling us which document you refer to?  As in, who gave you this

22     document, who drafted it, et cetera.

23        A.   There was a United Nations document.  I can't -- it would have

24     been a part of the military orders of the force which spelt out the rules

25     of engagement.  These were -- came down the chain of command from

Page 7397

 1     New York.  They stipulated the circumstances of when weapons and what

 2     weapons could be used.

 3        Q.   And, sir, these rules of engagement which you have summarised in

 4     your evidence in this paragraph and I supposed sourced from this document

 5     that you have now identified for us, did these apply to the role of

 6     UNPROFOR in a peacekeeping nature or did they also apply to UNPROFOR in

 7     the role of a peacemaker?

 8        A.   I think you would have to talk to those who drafted them.  I --

 9     they applied in -- they were to apply in those circumstances.  I don't

10     know what the drafters thought the situation was.

11        Q.   Well, sir, what did you as a commander who was expected to apply

12     within and abide by these rules, how did you understand them to apply to

13     the situation that you were on the ground looking at?  Were they to apply

14     in situations of -- as a role of peacekeeper as well as a peacemaker?

15        A.   No, I've said in that -- in my statement they were reactive.  You

16     were there to -- you could use force in self-defence.  Now we are talking

17     about it, I seem to remember that later in the year the orders were

18     changed to the extent that force could be used to fulfil the mandate.

19     But again, I'd need to see some documents to be sure of this -- that --

20     when that happened and if it actually happened or it was just my memory

21     of a discussion.

22        Q.   And do you recall, sir, if the rules of engagement that were

23     provided for you by the UNPROFOR chain of command dealt with a concept

24     called "legitimate defence"?

25        A.   No, I don't recall that concept.

Page 7398

 1        Q.   Let me see if I can refresh your recollection or perhaps we are

 2     talking about two different things.  There was another UNPROFOR officer,

 3     whose name I will not give because of -- the identity is to be protected,

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10   (redacted)

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15             Sir, irrespective of the -- of the connotation of a legitimate

16     defence or not, does this situation that this officer spoke of ring a

17     bell as -- with you as to the procedures that were in place and the rules

18     of engagement that you were expected to operate under?

19        A.   It doesn't ring any bells, no.  I think he is trying to explain

20     the basis of self-defence.  If you are directly threatened or attack you

21     may respond, and that was the basis of the rules of engagement and that

22     was the -- what I mean about them being wholly reactive.

23        Q.   And for purposes of clarifying your answer, when you say "if you

24     are directly threatened," the "you" in that instance would be UNPROFOR;

25     is that correct?

Page 7399

 1        A.   No, that is the individual in the -- in the -- the rules of

 2     engagement are for the individual in the -- did not the -- it is not for

 3     the force of the whole.  It is for the individual in that particular set

 4     of circumstances.  No, the individual might be a commander of a group of

 5     people in that situation but it's not the force as a whole, as those

 6     types of orders are written.

 7        Q.   Do you recall or do you know, upon assuming your position at BH

 8     command, whether you were advised if that mission was operating under

 9     chapters 6, 7, or 8 of the UN charter?

10        A.   I knew which it was at the time, and I think though it's -- it

11     was -- heavens, I'd have to -- wait a minute.  Can you remind me which

12     is -- which of -- 6, of 6 and 7?

13        Q.   I believe it was probably under 7 but I've heard other witnesses

14     say 6.  That's why I was hoping you could assist us.  I don't want to

15     direct your answer.

16        A.   I see.  Which -- all right.  I'd have to go and read this to be

17     absolutely sure, but from memory --

18             JUDGE ORIE:  Mr. Ivetic will help you by just giving the titles

19     of chapter 6, 7, and 8.  Isn't it, Mr. Ivetic, so that the witness has

20     the guidance he needs?

21             THE WITNESS:  That's the sort of thing I am looking for, yes.

22             JUDGE ORIE:  Even Mr. Ivetic has to consult a piece of paper for

23     that so ...

24             MR. IVETIC:

25        Q.   If I can refresh your recollection, sir, under my understanding

Page 7400

 1     chapter 6 is entitled: "Specific Settlement of Disputes."  And chapter 7

 2     is entitled: "Action with Respect to Threats to the Peace, Breaches of

 3     the Peace and Acts of Aggression."

 4        A.   The -- now I've heard those descriptions, we were operating under

 5     7 for the resolutions that -- the more recent of the resolutions.  I

 6     think the very early resolutions that led to the deployment into the

 7     Balkans and into Bosnia specifically were under chapter 6, and

 8     subsequently they were under chapter 7.

 9             JUDGE ORIE:  Mr. Ivetic, I am looking at the clock.  We'll soon

10     take a break.  But there is one matter which I would like to briefly put

11     on the record.

12             When you asked about legitimate defence and when the witness

13     answered questions in that respect, he referred to being attacked or

14     being under threat.  Now, comparing the answer of this witness with what

15     the previous witness you referred to said, is that he seemed to emphasise

16     very much that there should be a smoking gun.  You could not react up

17     till the moment that, to say it short, you had been fired at.

18             So where Mr. Smith referred to -- that he thought that it was

19     about self-defence, what that witness said, there is a clear distinction

20     that Mr. Smith included a situation of threat which does not yet require

21     a gun being fired.  I just would like to put this on the record because

22     nothing further was asked about it.

23             Mr. Smith, when you more or less qualified the evidence of the

24     other witness I think you may have missed an important difference between

25     what you said and what he appeared to have said.

Page 7401

 1             THE WITNESS:  Thank you.

 2             JUDGE ORIE:  Which I've just explained.

 3             THE WITNESS:  Thank you.

 4             JUDGE ORIE:  We take -- Mr. Groome.

 5             MR. GROOME:  Just a matter in private session, Your Honour.

 6             JUDGE ORIE:  Yes.  We will -- do we need -- could the witness

 7     already take his break?

 8             MR. GROOME:  Yes, Your Honour.

 9             JUDGE ORIE:  Then, Mr. Smith, you are invited to follow the

10     usher.  We would like to see you back in a little bit over 20 minutes.

11                           [The witness stands down]

12             JUDGE ORIE:  Before taking the break we will turn into private

13     session.

14                           [Private session]

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22                           [Open session]

23             THE REGISTRAR:  Your Honours, we are in open session.  Thank you.

24             JUDGE ORIE:  Thank you, Mr. Registrar.

25             MR. IVETIC:  Thank you, Your Honours.

Page 7410

 1        Q.   Sir, I would like to next take a look at something you said in

 2     the Perisic proceedings and ask you to provide further details on the

 3     same.

 4             MR. IVETIC:  I would like to call up 1D00594 in e-court, and I

 5     would like to call up page 48 of the same, which should correlate to

 6     transcript page 6299 of that Perisic transcript.  And if we could focus

 7     in on line 17 and onwards.

 8        Q.   And if you could follow along with me, sir, I will read into the

 9     record this selection:

10             "Q.  Okay.  Part of what I'm trying to understand here is the

11     function of UNPROFOR.  We have heard testimony that UNPROFOR's role was

12     that of a peacekeeper, which you have rejected.

13             "So I'm trying to get a sense of how you would characterise

14     UNPROFOR's presence in Bosnia-Herzegovina, at least at the time that you

15     were there.

16             "A.  I rejected the title of peacekeeper on what you might think

17     rather narrow grounds, that there wasn't a peace to keep.  And much of

18     the concept of being a peacekeeper, particularly at the time and in the

19     United Nations, was that you were, as it were, standing between two

20     people who were agreed, given your presentation, to remain at peace.

21     Perhaps an example would be Cyprus and the UN deployment there for some

22     decades.

23             "Q.  That certainly wasn't the case that you were dealing with.

24             "A.  Exactly.  And that is why I said we weren't peacekeepers.

25     However, there is a very large number of people at the time in particular

Page 7411

 1     who understood what we were doing and why they had sent us there, and so

 2     forth, to be more in that example, the spirit, if you like, that you're

 3     not involved in the fighting as much.  You're there to assist and

 4     ameliorate the condition of refugees and so on and so forth."

 5             First of all, sir, can you -- or do you stand by this selection

 6     of your prior testimony from the Perisic case as being accurate and

 7     truthful as to these matters that were discussed?

 8        A.   I -- I recognise this -- this discussion.  I'd like to see it,

 9     the beginnings of it a bit more, and see where it goes to understand it,

10     remember it fully.

11        Q.   Okay.

12             MR. IVETIC:  If we can go back to the prior page and to the top

13     of the page.

14             THE WITNESS:  You don't have to read it to the Court.  It's just

15     for me to ...

16             MR. IVETIC:

17        Q.   Correct.  I --

18        A.   And now to the follow-up.

19             MR. IVETIC:  If we can have the next page and the selection after

20     line 11 and onwards so the witness can review the same.

21             THE WITNESS:  And go on.

22             MR. IVETIC:  If we could have the next page for the witness.

23        Q.   Are you now in a position --

24        A.   Yeah.

25        Q.   Are you now in a position, sir?

Page 7412

 1        A.   Yeah, I now recall the thing more clearly, yeah.

 2        Q.   And now can you answer my question as to if you can confirm --

 3        A.   Perhaps you could repeat the question.

 4        Q.   Of course.  Can you confirm for me, sir, if you stand by this

 5     selection that we have read as being truthful and accurately depicting

 6     your testimony as to these questions that were raised?

 7        A.   Yes, I can.

 8        Q.   And now as a follow-up question:  Is it your position that within

 9     the role of UNPROFOR at the time that you were BH commander, that the

10     UNPROFOR in Bosnia was never a peacekeeper?

11        A.   I'd go back to the testimony in the case you've put in front of

12     me.  There I am trying to explain that there were many people who thought

13     we were doing such a thing and couched their expectations and

14     instructions to us, and so forth, accordingly.  I'm making that same

15     point again, if you want me to, that in a narrow sense you cannot be a

16     peacekeeper if there isn't an agreement to make peace.

17        Q.   And you've indicated that these people were couching their

18     expectations and instructions to you.  First of all, can you identify who

19     are "these people" that you are referring to?  In --

20        A.   Oh --

21        Q.   -- general terms --

22        A.   -- I'm sorry, I was connecting the two statements.  This is the

23     basis -- largely the basis upon which the United Nations force had been

24     deployed by Security Council and so forth.

25        Q.   And so by "these people," are you referring to the

Page 7413

 1     Security Council and so forth?

 2        A.   Yes.

 3        Q.   Okay.  And what was your understanding of the mandate that the

 4     Security Council, and so forth, had given to you and to the UNPROFOR

 5     mission in Bosnia-Herzegovina?

 6        A.   As I say in my statement, that it was to protect and ensure the

 7     delivery of humanitarian aid and subsequently to carry out the

 8     instructions based on -- from the Security Council based on the decisions

 9     about the exclusion zones and the safe areas.

10        Q.   And I'd like to now deal with -- with you -- with the -- for

11     purposes of the record, the remainder of this page, beginning at line 12

12     onward.  And I'll read for you:

13             "Q.  I understand what you said, and perhaps you can be of some

14     assistance here, and this may be because I'm naive, but I've heard there

15     is a distinction between being a peacekeeper and being a peacemaker.  And

16     by that I mean, when one has the mandate of being a peacekeeper [sic],

17     then they can engage in active behaviours --

18             JUDGE ORIE:  You are reading peacekeeper where it says

19     peacemaker, Mr. -- and since you are [overlapping speakers] difference

20     between the two is relevant here.

21             MR. IVETIC:  Thank you, Your Honours, for catching that.

22        Q.   I will begin again then from line -- the end of line 14:

23             "... and by that I mean, when one has the mandate of being a

24     peacemaker, then they can engage in active behaviours, such as offensives

25     or bombings in order to achieve an objective which is distinct from that

Page 7414

 1     of being a peacekeeper.

 2             "A.  I'd -- you may not -- I don't want to connect -- I don't

 3     agree with your direct connection of offensives or bombings and being a

 4     peacemaker.  They are not necessarily a connection to be made there.

 5             "Q.  Do you see a distinction between the function of

 6     peacekeeping and peacemaking?

 7             "A.  Clearly, if you have made -- if you had been party to making

 8     a peace, then you might, indeed, find yourself being party to keeping it.

 9     So ...

10             "Q.  With regard to making the peace, what different activities

11     would exist, if any, in your mind?  And I'm speaking militarily.

12             "A.  If -- if you -- if a political entity wishes to use its

13     military to create a condition of peace, then it can be done.  But in

14     doing that, you have to decide what it is you want your military to do."

15             And now with respect to this selection, sir, do you stand behind

16     this testimony as being truthful and accurate as to this topic that is

17     discussed therein?

18        A.   Yes.

19        Q.   And for the sake of completeness, let's just finish lines 9

20     through 17 as well:

21             "Q.  With regard to UNPROFOR's presence was - in your mind -- in

22     your mind in understanding - the United Nations's wish that the military

23     be used to create a condition of peace, as you have just stated?

24             "A.  No.  Our military actions were all couched in the

25     understanding that they were there for self-defence, and then a bit later

Page 7415

 1     on, defence increasing defence, if you like, of refugees and so forth

 2     within the safe areas.

 3             "Q.  And that was the function of UNPROFOR?

 4             "A.  Correct."

 5             And now, sir, with respect to these items from line 9 through 17

 6     of this page of the Perisic transcript, do you affirm and stand behind

 7     this testimony as truthful and accurate?

 8        A.   Yes, I do.

 9        Q.   And now, sir, can you explain for us what it was that you meant

10     when you were utilising the terminology "defence increasing defence"?

11     Are you trying to say that this was an extension of self-defence?

12        A.   It was the defence, as I go on to say in that sentence, of the

13     people within the safe areas, and that we now had with the safe area

14     regime and then the seclusion zones the -- this was a -- the -- the

15     requirement was placed upon UNPROFOR to become part of the safe area and

16     exclusion zone process - if that's quite the right word for it, I'm not

17     sure - but the process would end ultimately if these regimes were not

18     respected with the calling upon and activating the threat of NATO air

19     power being used against whomsoever violated those regimes.

20        Q.   I take it from your answer, sir - and please correct me if I'm

21     wrong - that the threats of action again violators of the regime within

22     the safe areas would apply equally to any side in the conflict?

23        A.   As the -- the -- as I recall the papers, the resolutions, and so

24     forth, that were the basis on which these -- this regime was established,

25     yes, it applied to anybody who violated them.

Page 7416

 1        Q.   And for instance, then, sir, when the BiH Muslim forces engaged

 2     in offensive actions from within either the enclaves or Sarajevo, in your

 3     mind, was this a violation of the regime that required yourself and/or

 4     NATO to threaten or use air strikes?

 5             JUDGE ORIE:  Mr. Ivetic, I consulted with my colleagues.  All

 6     these questions on the abstract level are not what we -- what assists

 7     this Chamber very much.  So if you have -- if you want to deal with that,

 8     do it, please, on the factual level rather than on an abstract level.

 9     The "ifs" and the "ands" are too numerous at this moment.  And that may

10     have been true for the previous testimony as well, but the Chamber would

11     like to hear questions and answers that assist it.

12             MR. IVETIC:  Okay.

13        Q.   If I can ask you for a specific question, sir, to be clear.  Am I

14     understanding the testimony then as being:  In addition to self-defence

15     that there was a second ground for air strikes which was to enforce the

16     exclusion and demilitarisation zones in Sarajevo and the enclaves?

17             JUDGE ORIE:  This is not a concrete question either, Mr. Ivetic.

18     It is again on the abstract level.  "The second ground for air strikes,"

19     which air strike?  When?  How?  What?

20             MR. IVETIC:  I am referring to the witness's testimony, that

21     there was two rationales for air strikes.  One, self-defence; and one

22     which was defence, as he stated it [overlapping speakers]

23             JUDGE ORIE:  It was not without reason that I said that the

24     previous testimony may have suffered from the same and that the Chamber

25     wants to avoid at least that it happens in this case as well.

Page 7417

 1             Please proceed.

 2             MR. IVETIC:  Thank you.

 3        Q.   I'd like to turn to the air strikes which you recommended against

 4     the Serb side, sir.

 5             MR. IVETIC:  And to begin I'd like to look at 1D00596, page 30 of

 6     that in e-court which would correlate to page 11506 of the Karadzic

 7     transcript.  And I'd look at lines 9 through 15 of the same.

 8        Q.   "Q.  Thank you, but at the time you already knew -- or actually,

 9     you took part in making the plans for using force against the

10     Army of Republika Srpska, and what was being awaited was just a good

11     opportunity; right?

12             "A.  It wasn't a question of waiting for the opportunity.  It was

13     the question of waiting for the event to occur.  We had to have an attack

14     on a safe area first."

15        A.   Can you tell me when we are talking about?  Where are we in the

16     chronology of that year?

17        Q.   If you can look on the page -- if I can direct your attention to

18     the first line, it appears we are talking of the 25th of August.  That

19     was the questions leading up to --

20        A.   Oh, okay.

21        Q.   -- this question.

22        A.   Right.

23        Q.   So I believe we are talking about the Markale -- leading up to

24     the end of the year, the second air strikes that were initiated.  Is

25     that -- is my recollection accurate?

Page 7418

 1        A.   Yes, I'm now -- I'm now, as it were, in that month.

 2        Q.   Can I ask you then, sir, can you confirm that your statements

 3     made in response to Mr. Karadzic's questions are truthful and accurate as

 4     to that question that was posed to you?

 5        A.   Yes.

 6        Q.   And in reference to this time-period and that answer, am I

 7     correct that you did not have in mind a particular event that could be

 8     comitted by the other parties to the conflict, that is the Bosnian Croats

 9     and the Bosnian Muslims, which would trigger air strikes, but you did

10     have an event in mind which would trigger air strikes against the Serbs?

11     Am I understanding your testimony correctly?

12        A.   No, I don't think you are understanding it correctly.  My -- what

13     I'm answering is a specific question.

14        Q.   And am I understanding your answer to that question to be that

15     you were waiting for a particular incident on the part of the

16     Bosnian Serbs to bomb the Bosnian Serbs?

17        A.   This is in the context after the London Conference where the

18     nature of the safe areas and the safe area regime has been explicitly

19     stated again as a threat, this time specifically to the Republika Srpska.

20     The -- and it applies to all the safe areas.

21        Q.   But it only applies to one party to the conflict; is that

22     correct, sir?

23        A.   After the London Conference, that -- the case, if the

24     Bosnian Serbs attacked a safe area, then this -- the threat placed in

25     front of the Bosnian Serbs would be enacted.  That was a decision of the

Page 7419

 1     London Conference and that's the basis, I think, of the quote that I --

 2     being taken out of the book I wrote, that is the basis of this question.

 3        Q.   And for the record, sir, at the time that the incident occurred

 4     in Markale in August of 1995, General Janvier was out of the zone, and

 5     thus the key to turn for commencement of NATO strikes was in your hands;

 6     is that accurate?

 7        A.   That is correct.

 8        Q.   And if we can go backwards in time and focus on the beginning of

 9     May, at that time you had also wanted to start air attacks against the

10     Serbs, but that decision was countermanded by UN HQ in Zagreb by

11     General Janvier; is that accurate?

12        A.   I am not sure that he was the one countermanding it.  It was

13     certainly not agreed with by that headquarters.  I can't -- I'd have to

14     refresh my memory from my statement as to the exact details of that.

15        Q.   I believe that's at paragraph 103 of your statement, sir.

16        A.   Thank you.

17             MR. IVETIC:  And that, for purposes of the rest of us, is page 25

18     and 26 of the English version in e-court; and it should be page, I

19     believe, page 22 and page 23 of the B/C/S.

20        Q.   And I have some further documents that might assist you as well.

21     First of all, if we can focus on this instance where the strikes were

22     countermanded, am I correct that the flare point for this --

23        A.   Can I just respond.  They weren't countermanded.  It wasn't mine

24     to make the decision.  I requested it and it was denied.

25        Q.   Fair enough, sir.  I apologise for my lax terminology.  The flare

Page 7420

 1     point or issue that started off the request for the strikes on this

 2     occasion was a shell that had struck both military and civilian targets

 3     in front of a tunnel in Butmir, a suburb of Sarajevo, killing nine

 4     persons and wounding 15, am I correct?

 5        A.   Whether those -- let me look at it.  Whether that's the absolute

 6     numbers in my statement, I don't know.

 7             JUDGE MOLOTO:  Mr. Ivetic, that's not what the statement of the

 8     witness says.  The witness, at paragraph 103 which you referred us to,

 9     clearly distinguishes between the shelling of the people in uniform and

10     shelling of civilians later on the 7th and 8th.  I think that's an

11     embellishment of the statement of the witness.

12             MR. IVETIC:  I believe I said the flare point when he started --

13     I believe in the statement he said he decided --

14             JUDGE MOLOTO:  Yes, but that's not the flare point.

15             MR. IVETIC:  Okay.

16             JUDGE MOLOTO:  He says that during that day, I have to say I'm

17     talking about the mortars that killed 11 people in Butmir entrance to the

18     tunnel, some of whom were in uniform.  And then he goes on to say that:

19             "During that day, pressure for air strikes grew, but on a balance

20     I decided not to request a strike at that time because I considered this

21     was part of the fighting between two sides and there were people in

22     uniform involved."

23             And something else happens on the night of the 7th and 8th May,

24     which was the shelling of civilians.  That's when you request.

25             MR. IVETIC:  Thank you, Your Honour.

Page 7421

 1        Q.   And if we could return to the prior incident in Butmir.  First of

 2     all, the Butmir tunnel, are we talking about the tunnel under the airport

 3     being used by the ABiH forces to supply their city and their forces

 4     within the city with various items, including munitions, weapons, and

 5     personnel?

 6        A.   I don't know what came down the tunnel but that was where the

 7     tunnel came out in -- under the airport.

 8        Q.   In your -- your -- in paragraph 103, the selection that the

 9     Honourable Judge Moloto had read for us, you indicated that pressure was

10     increasing.  Could you identify for us from where.  What parties were you

11     receiving pressure to engage in bombing activities against the VRS at

12     that time?

13        A.   I can't recall the -- specifically, but amongst others there

14     would be people ringing up from embassies asking what was happening.

15     And -- and whether this was an incident that would warrant such activity.

16     The Bosnian government would have had a -- a -- would be making

17     suggestions and so forth.

18             MR. IVETIC:  If we can now take a look at 1D00578 in e-court.

19        Q.   And while we wait for that, sir, I can tell you that it is an

20     outgoing code cable from Akashi to Annan, dated 8th May, 1995, with the

21     subject line of "Air strikes."  And I would direct you first to the first

22     page and the selection that states there:

23             "As requested, please find attached the request from Sarajevo.

24     General Smith has just informed me that he regrets having made the

25     request.  The official copies will be sent tomorrow through the normal

Page 7422

 1     channels."

 2             The question I have for you, sir, is can you enlighten us as to

 3     what this phrase means?  What kind of regrets did you convey to the

 4     author of this document?

 5        A.   I don't recall regretting making the request.  I might have --

 6     I'm trying to think why I might have said I regretted it.  It may have

 7     been that the -- that it was very late in the day and that we had not

 8     requested anything and said we weren't going to for the reasons I put in

 9     my statement that I decided that this was part of the fighting.  And then

10     there was this apparent change of mind.  It may have been that that is

11     what he -- I was saying I'm sorry that I had changed my mind, rather than

12     that I had informed -- that I'd made the request at all.

13             MR. IVETIC:  If I could have the assistance of the court

14     personnel to turn to the fourth page in e-court.

15        Q.   And here, sir, we have a section entitled: "Collateral Damage."

16     And I'd like to ask you, we see here in under civilian buildings that for

17     1 and 2 there are civilian inhabited instructions 200 metres from 1 and

18     2.  Are 1 and 2 projected targets or targets that you supplied for the

19     air strikes, proposed?

20        A.   I can't recall.  I'd have to have a bigger file than you're

21     showing me here to give you -- to have an idea of what those are

22     referring to.

23        Q.   Okay.

24             MR. IVETIC:  If we can look at -- if we can look at page 2 of

25     this document.

Page 7423

 1        Q.   Does that refresh your recollection of whether 1, 2, and 3 are

 2     targets that you proposed for this set of air strikes?

 3        A.   I can see that 1, 2, and 3 are listed as proposed targets.  I do

 4     not recall the -- whether that is actually the ones that we did and so

 5     forth.  That's too long ago.

 6        Q.   What I'm asking, sir, is from these documents are these the ones

 7     that were proposed, not the ones that were actually hit.

 8     [Overlapping speakers] air strikes --

 9        A.   Oh, clearly, 1, 2, and 3 of paragraph 2 refers to the 1, 2, and

10     3s of the first page you showed me.

11        Q.   Okay.  Then can we return to page 4 so I can have a follow-up.

12     Does this selection under "Collateral Damage" accurately reflect your

13     assessment as to the potential for collateral damage from these air

14     strikes that you sought?

15        A.   Yes, I suppose it did at the time.  Yup.

16        Q.   Is it your position that striking military targets located within

17     200 metres of civilian inhabited structures was appropriate or

18     acceptable?

19        A.   It was -- it was at that time and the -- and if you look at my

20     recommendation I want them recce'd in order to confirm their current

21     situation.

22        Q.   And with respect to target number 3, am I correct that they had

23     absolutely no information as to the location of potential civilians near

24     that -- that target?

25        A.   Indeed.  And again, I'd point out I'm asking for reconnaissance.

Page 7424

 1             MR. IVETIC:  And if we can turn to the second-to-last page of

 2     this document.

 3        Q.   We see here that it's not authorised, and it's, I believe, signed

 4     by General Janvier.  Does that refresh your recollection as to who denied

 5     your request for the air strikes?

 6        A.   As I say I don't recall.  And now you've shown me that.  It's not

 7     a recollection.  Now I see that he's signed the document.  I don't

 8     suppose I ever saw this document returned.

 9        Q.   Were you ever given a reason by your superiors in UNPROFOR as to

10     why these particular air strikes you sought in the beginning of May 1995

11     were denied?

12        A.   I can't recall a specific set of reasons, no.

13             MR. IVETIC:  Your Honours, if I can ask for this document to be

14     admitted as the next available Defence exhibit.

15             MR. GROOME:  No objection.

16             JUDGE ORIE:  Mr. Registrar.

17             THE REGISTRAR:  Your Honours, 65 ter 1D578 shall be assigned

18     Exhibit D135.

19             JUDGE ORIE:  D135 is admitted.

20             MR. IVETIC:  Thank you.

21        Q.   Now if we can return to events leading up to Markale 2 in

22     August of 1995, and I'd like to first discuss with you 65 ter 25919,

23     which is your book, "The Utility of Force," and I'd like to turn to

24     page 186 in e-court which should correlate to page 364 in that book.

25             MR. IVETIC:  And again we're looking for page 186 in e-court

Page 7425

 1     which should be page 364 -- there we go.

 2        Q.   And at the top of the page is what I'm focussing on, sir.  And it

 3     reads as follows:

 4             "The RRF continued to deploy and, after considerable obstructions

 5     placed by the Croats and Bosniaks had been overcome, we had an artillery

 6     group on Mount Igman overlooking Sarajevo.  The French were still adamant

 7     that their artillery units were there to support the French units.  Since

 8     the French were all in Sarajevo and I had only enough helicopters to lift

 9     elsewhere from the British artillery regiment, one six-gun battery and

10     supply it with ammunition, the place I could have a fight and employ the

11     greatest fire-power was in the Sarajevo area.  So in the end, the

12     decision taken at the London Conference came down to this:  If I was to

13     use the forces available to me, NATO and the RRF, to best effect, I had

14     to seize the first opportunity presented by an attack on Sarajevo and, if

15     at all possible, ignore attacks on the other safe areas.  Having done the

16     planning with NATO, I was aware there were only so many targets suitable

17     for air strikes.  The more we could mix the mode of attack - air,

18     artillery, and the battle groups - the greater our options and effect; by

19     a wide margin this was achieved best around Sarajevo."

20             And I want to ask you, first of all, RRF is referring to the

21     Rapid Reaction Force?

22        A.   That is correct, yes.

23        Q.   Am I to understand that the decision to attack just the

24     Bosnian Serbs around Sarajevo had been made at the time of the

25     London Conference well in advance of any shelling incidents in August of

Page 7426

 1     1995?

 2        A.   No, you can't understand that.  That is not correct.

 3        Q.   Then when you say here that "the decision taken at the London

 4     Conference came down to this," what decision are you referring to then,

 5     sir?

 6        A.   At the risk of reading you the whole book, the London Conference

 7     lays down that any attack by the Bosnian Serbs on any safe area would be

 8     met by air attacks.  Furthermore, the authority to call these air attacks

 9     in was removed from the Secretary General who was holding it at the

10     time -- Secretary General of the UN who was holding it at the time and

11     given to the commander of UNPROFOR -- or, I'm sorry, the force commander,

12     General Janvier, and the NATO commander, the NATO commander in Naples.

13        Q.   And --

14        A.   As I say, this required an attack before this threat would be

15     initiated or put into effect.

16        Q.   And so, again, I ask you my original question, which was:  And

17     the decision to attack just the Bosnian Serbs had been made at the time

18     of the London Conference; that is to say, they excluded the possibility

19     of attacks on any of the other warring factions?

20        A.   That wasn't your question.  Your question included Sarajevo.

21             THE INTERPRETER:  Kindly slow down for the interpreters.  Thank

22     you.

23             MR. IVETIC:  I apologise to the interpreters.

24        Q.   Here you state that you were planning with NATO -- having done

25     the planning with NATO.  At this time were you operating as a UN officer

Page 7427

 1     or as a NATO officer?

 2        A.   I was the commander UNPROFOR.  I was a UN officer.

 3        Q.   And my question to you was:  At this time were you operating as a

 4     UN officer or as a NATO officer?  Please answer the question, sir.

 5        A.   I have.

 6             MR. GROOME:  Your Honour, he has answered the question.

 7             JUDGE ORIE:  Mr. Smith, did I understand your answer well that

 8     when you were asked whether you were operating as a NATO officer or as a

 9     UN officer that when you said, "I was the commander of UNPROFOR," I

10     understood that to be:  I acted as such?

11             THE WITNESS:  Yes.

12             JUDGE ORIE:  Yes.  That's the common --

13             THE WITNESS:  Yes.

14             JUDGE ORIE:  -- understanding of this language.

15             Mr. Ivetic, even if you have a different understanding, and even

16     if you want to make that clear, then the tone you used is not the

17     appropriate one.  You could have asked:  Do I have to understand your

18     question -- your answer to be A or B.

19             We take a break after the witness has left the courtroom and has

20     followed the usher.

21                           [The witness stands down]

22             JUDGE ORIE:  We resume at 20 minutes past 12.00.

23                           --- Recess taken at 11.58 a.m.

24                           --- On resuming at 12.22 p.m.

25             JUDGE ORIE:  Could the witness be escorted into the courtroom.

Page 7428

 1                           [The witness takes the stand]

 2             JUDGE ORIE:  Mr. Ivetic, you may proceed.

 3             MR. IVETIC:  Thank you, Your Honour.

 4        Q.   Sir, the Rapid Reaction Force that we just discussed, when it

 5     engaged in strikes against the Serbs in August and September of 1995, was

 6     it under your direct command and apart from the NATO chain of command?

 7        A.   It was under my command.

 8        Q.   And then am I also correct then that in that time-period when

 9     NATO planes were striking at the Serbs and the RRF artillery under your

10     command was striking the Serbs, that the Bosnian Muslim and Bosnian Croat

11     forces a couple days later also initiated an offensive also against the

12     Serbs?

13        A.   Sorry, was that a question or a statement?

14        Q.   It was a question.  Am I correct that in the time-period when

15     NATO planes were striking at the Serbs and the RRF artillery under your

16     command are striking the Serbs, that the Bosnian Muslims and

17     Bosnian Croats a couple of days later initiated an offensive also against

18     the Serbs?

19        A.   Yes, that happened.

20        Q.   Am I correct that at that time also the BiH Muslim forces

21     actually identified specific Serb targets for the NATO air strikes to

22     hit?

23        A.   No, I don't think they did do that.

24             MR. IVETIC:  I'd like to take a moment to look at document

25     1D00584.

Page 7429

 1        Q.   And while we wait for that, sir, it's a letter dated the

 2     4th of September, 1995, from General Delic of the ABiH, directed to you,

 3     sir, General Smith.  And can we look at the top of the document where it

 4     says that the recipient of the document.  Would you agree that that would

 5     appear to be addressed to yourself?

 6        A.   Yes.  Yes.

 7        Q.   If we can turn to the last page of the document, does it appear

 8     to have originated from the General Rasim Delic?

 9        A.   Yes.

10             MR. IVETIC:  If we can return to the first page.

11        Q.   Am I correct that the items identified in these pages are being

12     asked by General Delic of you to be sent to NATO for their action against

13     these identified Bosnian Serbs targets?

14        A.   Yes.  I don't see any marking that I ever received this document

15     or it was processed in my headquarters.

16        Q.   Let me ask you a more general question:  Do you receive -- do you

17     recall receiving any similar documents of this nature from the ABiH

18     during the time-period of the bombing?

19        A.   No, I said I don't.

20        Q.   Okay.  Do you know or can you tell if any of the identified

21     targets listed in this document originating from the ABiH were actually

22     targeted by either the RRF or the NATO forces engaging the Serbs?

23        A.   No, I don't.

24        Q.   Did you consider the ABiH to be your allies or on the same side

25     as the RRF and the NATO forces during the duration of these air strikes?

Page 7430

 1        A.   No, I didn't, and I made a specific representation to the

 2     Bosnians to make it clear that I didn't expect them to take advantage of

 3     this situation right at the beginning of starting those air strikes.

 4        Q.   But you will agree with me that they did take an advantage

 5     launching an offensive using heavy weapons; is that correct?

 6        A.   They didn't do that around Sarajevo.

 7             THE INTERPRETER:  Kindly pause between questions and answers.

 8     Thank you very much.

 9             THE WITNESS:  I'm sorry, interpreter.

10             MR. IVETIC:

11        Q.   Were the actions of the BiH side in violation of the

12     Cessation of Hostilities Agreement?

13        A.   If it had been existent, yes.

14        Q.   Did the actions of the ABiH warrant warnings of use of force

15     against them for violation of the various agreements that were on the

16     ground?  And when I say the actions of the ABiH, I mean the

17     counter-offensive, including the use of heavy weapons, which was

18     initiated against the Bosnian Serbs at the same time that the NATO and

19     RRF forces were also striking at the Bosnian Serbs?

20        A.   As I said, they didn't do that around Sarajevo.

21        Q.   Sir, did your mandate extend only to Sarajevo or did you cover

22     the entirety of Bosnia-Herzegovina?

23        A.   No.  But Sarajevo was a safe area.

24             MR. IVETIC:  I wish to tender this document at this time.

25             JUDGE ORIE:  Mr. Groome.

Page 7431

 1             MR. GROOME:  The Prosecution objects, Your Honour.  It's being

 2     tendered to suggest that this request was made to General Smith.  This

 3     document was recovered from ABiH, and there is no evidence that I'm aware

 4     of that it ever made it to UNPROFOR, so on that basis we do object to its

 5     admission for the purpose it's being admitted for at this time.

 6             JUDGE ORIE:  I do not know yet what the purposes are.  The

 7     witness has said that he's not aware that it ever reached him.  Would you

 8     just tender it in order to demonstrate that it existed, Mr. --

 9             MR. IVETIC:  Correct, Your Honour.  Correct, Your Honours, and to

10     give a bases to the questions that I asked and the answers that the

11     gentleman made as to this document.

12             MR. GROOME:  No objection for that limited purpose, Your Honour.

13             JUDGE ORIE:  Mr. Registrar.

14             THE REGISTRAR:  Your Honours, 65 ter 1D584 shall be assigned

15     Exhibit D136.

16             JUDGE ORIE:  And is admitted into evidence.

17             MR. IVETIC:  Thank you.

18        Q.   Sir, now I want to take a step back to take a closer look at the

19     incident, the Markale incident, in August of 1995 which precipitated all

20     these actions at the end of August and beginning of September.  At

21     paragraph 198 and onwards in your written statement, which is P785,

22     marked for identification.

23             MR. IVETIC:  And for those following it's page 50 in e-court in

24     the English and page 39 in the B/C/S where this discussion begins.

25        Q.   And in paragraph 198, you identify that there had been a pattern

Page 7432

 1     of random shelling of a few rounds a day by the Serbs.  And I'd like to

 2     ask you, would you agree with me that you have left out from your

 3     analysis the fact that the BiH government or Muslim forces had also

 4     engaged in a random shelling of a few rounds a day during this same

 5     time-period according to the UNMO records?

 6        A.   I haven't left it out of an analysis.  I might not have put it in

 7     the statement.

 8        Q.   Could you help me understand your answer.  Were you aware of the

 9     fact that the BiH government or Muslim forces had also engaged in the

10     random shelling of a few rounds a day during this same time-period?

11        A.   I probably was.

12        Q.   Okay.  If -- if we could focus for a moment on a document that

13     you handled in direct examination.

14             MR. IVETIC:  If we can call up Exhibit P797.  And again, this is

15     the final and comprehensive report, at least that's how it's presented on

16     the cover page of this document, prepared by your MA,

17     Lieutenant-Colonel Baxter.

18        Q.   And I'd like to focus for the moment on the first page.  And the

19     section 2 or item number 2 on the first page, wherein

20     Lieutenant-Colonel Baxter states:

21             "We must continue to be cautious about revealing our evidence and

22     data to public scrutiny."

23             First of all, did you, sir, order such precautions or did

24     Lieutenant-Colonel Baxter come up with them of his own accord?

25        A.   I am quite happy to take responsibility for that statement, yes.

Page 7433

 1        Q.   Could you explain for us, sir, why it was that your command was

 2     not desirous to have the conclusions and investigations subjected to

 3     public scrutiny?

 4        A.   I will read you what the rest of that paragraph said:

 5             "We reaffirm that we have nothing to hide, but by declaring our

 6     information we risk entering an expert argument which alleges," there

 7     should have been a "to" there, I think, "which led to a judgement.  Other

 8     so-called experts have been and will continue to be selective in what

 9     evidence they choose to consider and adduce to support their judgements."

10        Q.   Did you have faith in the findings and the methods used to reach

11     the conclusions presented in this report?

12        A.   Yes.

13        Q.   And you identify here other so-called experts have been and will

14     continue to be selected.  To whom are you referring?

15        A.   There had been one case in particular where a -- the deputy

16     commander of sector Sarajevo, I think it was, had given a press interview

17     in which he'd explained his understanding of what had happened.

18        Q.   Okay.  If we could stay within the confines of this report now,

19     this comprehensive report, one thing that struck me as odd, sir, is that

20     it lacks items that I had become familiar with from other similar

21     investigations or crater analyses, such as:  First, a description of the

22     crater site, photographs of the ordinance remnants, especially the tail

23     fin, a photo or drawing of the crater itself, notations as to temperature

24     and wind conditions, and a description of the precise technique used to

25     determine the bearing measurements.  Can you explain for me, sir, why

Page 7434

 1     this comprehensive report lacks such rudimentary features?

 2        A.   My suspicion is that they wouldn't have gone on a fax machine.

 3        Q.   Would you agree with me, sir, that the factors that I have

 4     recounted indeed are what you would expect to be found in a properly done

 5     crater analysis report?

 6        A.   This was a properly done crater analysis report, and I am

 7     satisfied with its -- with the investigations conducted by my teams on

 8     the ground.

 9             THE INTERPRETER:  Kindly pause between questions and answers.

10     Thank you.

11             MR. IVETIC:  I wish to turn to the sixth page in English in the

12     document and the sixth page in the B/C/S.  And this will correlate to

13     what was identified, I believe, as annex A of the original document.

14        Q.   First of all, sir, do you recall Lieutenant-Colonel Mougey and

15     what unit or structure he was operating under at the time of this report?

16        A.   He was a French officer, if I recall correct, in sector Sarajevo.

17        Q.   If we look at the last paragraph of this one page, this annex A,

18     can you focus on the description of the munition as being unmarked and

19     unpainted.  And if I'm reading this correctly, we are talking about the

20     tail fin of the mortar shell, am I correct?

21        A.   What he states in that paragraph is the munition is of a Serb

22     manufacturer, being unmarked and unpainted with a brush steel finish,

23     which matches current Bosno-Serb war design.

24        Q.   And can we look at the paragraph before that, sir.

25        A.   Yes.

Page 7435

 1        Q.   Does the reference there relate to the examination of a tail fin?

 2        A.   Yes.

 3        Q.   And would that be "this munition" referred to in the paragraph

 4     that you just recited?

 5        A.   Here it is stating that this is -- what he says is the munition.

 6     We might deduce - but I didn't write the report - that what he meant from

 7     looking at the tail fin, that he then deduced that this -- that the

 8     description of the tail fin was that of the munition.

 9        Q.   Okay.  Fair enough.  And would you agree with me, sir, that the

10     munition being unmarked and unpainted would seem to indicate that this

11     round was newly manufactured rather than regular pre-war stock?

12        A.   No, I wouldn't necessarily arrive at that deduction.

13        Q.   Would you expect that for regular or standard munitions one would

14     find designations on it; it's either stamped or painted including batch,

15     lot number, type of ordinance.

16             JUDGE ORIE:  Mr. Groome.

17             MR. GROOME:  Can Mr. Ivetic specify whether he's talking about a

18     munition before it has exploded or after it has exploded?

19             JUDGE ORIE:  Mr. Ivetic.

20             MR. IVETIC:  I will then break up my question.

21        Q.   Would you expect a munition of this type, a mortar shell of

22     120 millimetres, before it has been exploded, to be painted and marked in

23     such a way so as to identify the type of munition, the batch, et cetera,

24     either by stamping or by painting?

25        A.   That is the practice in many armies, yes.

Page 7436

 1        Q.   Would you expect that such a munition, if so stamped and marked,

 2     if it was then utilised with the remnants of the ordinance, perhaps have

 3     but not necessarily the same markings visible?

 4        A.   It might.

 5        Q.   In this instance the gentleman upon whom you are relying says

 6     that the remnants of the mortar shell that caused this incident were

 7     unmarked; is that correct?

 8        A.   That's what he put in his report.

 9        Q.   Was that your conclusion that you accepted?

10        A.   I accepted it, yes.

11        Q.   What can -- can you tell me about this report and does it apply

12     to the other four rounds that fell as part of this incident?  Were these

13     munitions also recovered and were they similarly determined to be

14     unmarked in the manner that this individual has identified of this

15     particular munition?

16        A.   I'd have to read the report again.

17        Q.   Okay.

18             JUDGE ORIE:  Mr. Ivetic, is there any reason why not to agree on

19     whether this report covers all five or just four?  I mean --

20             MR. IVETIC:  There is, Your Honour.

21             JUDGE ORIE:  There is.

22             MR. IVETIC:  There is.  It's very critical to this case.

23             JUDGE ORIE:  No, but on whether it covered by the report?  I

24     mean, what you find in the report --

25             MR. IVETIC:  I see what you're saying.

Page 7437

 1             JUDGE ORIE:  -- is there any reason why not you can agree with

 2     Mr. Groome, whether true or not, that what is found in the report.

 3             MR. IVETIC:  I think the problem is with the report.  We're

 4     talking about two reports.  We are talking about this report that is

 5     contained within the comprehensive report that Mr. Baxter put together at

 6     the behest of the witness.

 7             JUDGE ORIE:  Yes.  Well, your question was about this report and

 8     does it apply to the other four rounds, where I now understand that you

 9     are referring to another report.

10             MR. IVETIC:  I'm asking --

11             JUDGE ORIE:  This report, does it apply to the other four rounds

12     that fell.

13             MR. IVETIC:  Yes, Your Honour.

14             JUDGE ORIE:  Now, is there -- is it mentioned somewhere?  I take

15     it, then, it applies to the extent the other four rounds are mentioned.

16             MR. IVETIC:  The other four rounds are mentioned in other

17     portions of this comprehensive report.

18             JUDGE ORIE:  Okay.  So therefore then you can agree with

19     Mr. Groome that the other four rounds are mentioned somewhere else in

20     this report.

21             MR. IVETIC:  I am asking for the witness to clarify with respect

22     to this document, this sub-report that is on our screen, whether it

23     applies.  That's where I believe the confusion arises, Your Honour.

24             JUDGE ORIE:  Yes, yes.  That's where the confusion arises from.

25     I agree with that.

Page 7438

 1             MR. IVETIC:

 2        Q.   Sir, if I could just ask you once again to clarify now, when we

 3     are dealing with this document that's up on the screens, this annex to

 4     the original report, do you know or did you take any steps to determine

 5     whether this analysis conducted by this French officer of sector Sarajevo

 6     applied to all of the munitions recovered from the site of the so-called

 7     Markale II incident?

 8        A.   I can't -- I'd need to read the whole report again and its

 9     covering document as to whether or not -- whether he is basing his latter

10     paragraph on only the discovery of the one tail fin and whether that --

11     and which round that tail fin came from to answer that question.  I -- I

12     would certainly at this range of time from this incident, I can't recall.

13        Q.   Could you tell me, sir, did UNPROFOR have knowledge that both

14     sides were manufacturing ordinance during wartime often at improvised

15     factories for the use of their forces?

16        A.   I think we suspected it rather than had knowledge of it.

17        Q.   Fair enough, sir.  I will accept that.  Could you please tell me,

18     sir, if you know, what method was employed by this member of the

19     engineering cell of sector Sarajevo to differentiate this unpainted and

20     unmarked ordinance from any unpainted and unmarked ordinance produced and

21     used by the Bosnian government forces so as to exclude the same from this

22     analysis?

23        A.   I don't know.

24        Q.   Do you know or would you agree with me, sir, that, in fact, this

25     report by a Lieutenant-Colonel Mougey is operating backwards, starting

Page 7439

 1     with the assumption that the shell came from the Bosnian Serb positions,

 2     and thus merely examining whether this type of munition was used by the

 3     Serbs, not analysing comprehensively to determine without doubt the

 4     manufacturer of this particular round?

 5             JUDGE ORIE:  Mr. Groome.

 6             MR. GROOME:  If it's asking whether -- for General Smith to

 7     speculate about what Lieutenant-Colonel Mougey was thinking about when he

 8     wrote this report, which I am not sure he was able to do.

 9             JUDGE ORIE:  Could you, please -- the question is, apart from

10     speculation, is so composite, Mr. Ivetic.

11             MR. IVETIC:  I agree.

12             JUDGE ORIE:  I think it's better to take it down in portions.

13             MR. IVETIC:  Yes, Your Honour.

14        Q.   Sir, did this report, this examination, by lieutenant-colonel who

15     was in a subordinate unit in sector Sarajevo, was it initiated by your

16     command?

17        A.   It was the business of the -- the sector, wherever it was, to

18     carry out an investigation of these incidents.  So it was initiated by

19     the incident and the sector headquarters would have reacted to it and

20     sent the appropriate team.

21        Q.   In including this sub-report by Lieutenant-Colonel -- it's either

22     Mougey or Mougey -- in including it in the comprehensive report sent by

23     your MA, Lieutenant-Colonel Baxter, was the intent of BH command to rely

24     upon this report?

25        A.   Not in its -- not only this report.  We had the UNMO report and

Page 7440

 1     then I had a further investigation done in order to rationalise the two

 2     sets of reporting.

 3        Q.   Did you, prior to asking for the commencement of air strikes,

 4     take any steps to verify what method was used by this individual

 5     preparing this report which you intended to -- to rationalise with other

 6     reporting to reach a decision or to support a decision?

 7        A.   I was satisfied that he was competent to make such an

 8     investigation, if that's what you mean by that question.

 9        Q.   Did you take any steps to determine his competency or the methods

10     used?

11        A.   No, he was -- as I say, I was satisfied that he was competent.

12     He's an engineer of a NATO army.

13             MR. IVETIC:  We can now move to annex B of the comprehensive

14     report offered by Lieutenant-Colonel Baxter.  And I believe that's three

15     pages later in e-court.

16        Q.   Sir, does this appear to be a daily situation report from UNMO

17     sector Sarajevo from the day of the incident, or a summation of -- of a

18     sitrep summation of the report?

19        A.   Yes, it's such a report.

20        Q.   Now we talked about your paragraph 198 of your statement, and you

21     did -- you did clarify that you perhaps did know of -- of random

22     shellings attributed to the ABiH forces.  Looking through these pages of

23     this annex we see various fire reports either increp or outgoing that are

24     attributed to the ABiH forces.  Would those be the type of incidents that

25     you were referring to when you answered my previous question?

Page 7441

 1        A.   Could we turn the page?

 2        Q.   Absolutely.  And would you agree with me that there are various

 3     entries that are identified as either originating from the ABiH positions

 4     or with the comments "fired ABiH"?

 5        A.   Yes.

 6             MR. IVETIC:  If we can look at page 13 in the English and 14 in

 7     the B/C/S, and item number D of the same which starts at the bottom of

 8     the page in English and bleeds over onto the next page.

 9        Q.   Would you take a glance at that, sir, and would you confirm for

10     me that, in fact, this appears to be a discussion of the Markale II

11     incident which we have been examining?

12        A.   Is this in this comprehensive report?

13        Q.   Yes, sir.

14        A.   We're still with that document?

15        Q.   Correct.

16        A.   Yes.

17             MR. IVETIC:  If we could have the next page for the witness to

18     look at.

19        Q.   And if you could give me an indication of when you're ready to

20     proceed, sir.

21        A.   Yes, we can go.

22        Q.   Now looking here, sir, would you agree with me that this UNMO

23     report identifies that one mortar tail fin was recovered and that it had

24     a batch marking of MK/M74/KB 93020?

25        A.   I think it's a 7, but otherwise yes.

Page 7442

 1        Q.   I apologise.  It is a 7 at the end.  How would you explain the

 2     fact that the report by the French UNPROFOR engineer we just looked at

 3     said that the munition he recovered and reviewed was unmarked?  Would you

 4     agree that there's a major discrepancy between these two investigations

 5     of the same incident?

 6        A.   If he's referring, we've only deduced that his comments about

 7     marking is about that tail fin.  It doesn't actually say that.  So I

 8     wouldn't make that complete -- that direct connection.

 9        Q.   If we can refer to this UNMO report, it would seem to indicate

10     that there was only one tail fin recovered or am I reading it

11     incorrectly?

12        A.   No, the UNMO report says that the tail fin and it has that

13     marking on, but as my memory of the document you first showed me, we

14     the -- the comments about whether the thing is marked or not is not

15     directly connected to the tail fin.  We in discussion just now deduced

16     that it might be.  But since I'm not the author of the report and it's a

17     along time ago, I can't be sure it's a connection we can make.

18        Q.   Fair enough, sir.  Can we deduce from this UNMO report whether or

19     not the remaining four rounds were recovered at the scene or not?

20        A.   They'd exploded so they wouldn't have been recovered.  Whether

21     people picked up the bits and pieces that might be left, I don't know.

22        Q.   Okay.

23             MR. IVETIC:  If we could turn to page 18 of this document in

24     e-court in English and page 19 in the B/C/S.  And first of all, we see

25     the comment that the UNMOs are unable to confirm which WF fired the

Page 7443

 1     rounds.

 2        Q.   Could you assist us with this abbreviation?  Is WF warring

 3     faction?

 4        A.   Where does it say that?

 5        Q.   At the top of the page under "comment."

 6        A.   Ah, I see.  I would expect that that's probably what that means.

 7        Q.   Does this comment or conclusion by the UNMOs comport with your

 8     recollection of the UNMO position as to this incident?

 9        A.   I don't remember their final position, but at the time everyone's

10     trying to work it out, so what we think has happened, so it doesn't

11     surprise me that in a report such as this they don't confirm one way or

12     the other.

13        Q.   And if we look down at the item marked crater analysis, for

14     item (a) we see a type of weapon identified as a 120-millimetre mortar,

15     batch number MK M74KB9307; is that correct?

16        A.   That's what I read there, yup.

17        Q.   Now that is a completely different number than the number that

18     was recorded at page 13 of this report, which had KB 93070?

19             JUDGE ORIE:  Mr. Groome, you're on your feet.

20             MR. GROOME:  I'm not sure completely different is a fair

21     characterisation of the number.  Can the witness be shown both numbers so

22     he isn't asked to try and recall that.

23             MR. IVETIC:  Sure.  I just gave him the number.  But sure we can

24     put up page 13 as well.

25        Q.   Is it a different number?  I apologise.  The number from page 13

Page 7444

 1     that we had just discussed had at the end KB 93070, as I recall.  And as

 2     I recall you corrected me on that number.  And this one has KB 9307.  Was

 3     that a discrepancy that your office followed up on prior to engaging in

 4     air strikes against the Serbs?

 5        A.   Just let me -- yes.  One's got a "not" on the end and the other

 6     hasn't.  That's what we're saying.  So on the assumption that this is --

 7     I don't think anybody was arguing about whether -- what the number was on

 8     the end.  I can't remember that being raised at the time.

 9        Q.   If you could take the time --

10             JUDGE MOLOTO:  May I intervene.

11             MR. IVETIC:  Yes, Your Honour.

12             JUDGE MOLOTO:  I just wanted to find out, I see that under (a)

13     we've got that MK M74KB9307.  We have the same number under (b).  Is this

14     the same thing, or are these two different munitions if I may use the

15     term that's been used?

16             MR. IVETIC:  Let's ask the witness.

17             THE WITNESS:  If -- I think what you're reading here is the --

18     oh, hang on a minute.  Just let me read again.

19             MR. IVETIC:  And if I can assist, Your Honour, (b), (c) and (d)

20     and (e) all have the same notation on the following -- on the next pages.

21             THE WITNESS:  Ah, this is each -- this is, as I understand this

22     bit of the report is each specific crater, so there is a crater A, a

23     crater B, a crater C.

24             JUDGE MOLOTO:  Is this type of weapon with markings of MKM 74, is

25     that a marking of some mortar?

Page 7445

 1             THE WITNESS:  My understanding of this is that this is the --

 2     they are referring to the tail fin batch number on the mortar round as

 3     opposed to the mortar itself.

 4             JUDGE MOLOTO:  Thank you so much.

 5             MR. IVETIC:

 6        Q.   Now the question I have for you sir that we've preluded to now,

 7     here, this report, for this portion of the UNMO report, this portion of

 8     your comprehensive report, now talks about all of the tail fins being

 9     recovered and all bearing these batch numbers which we have discussed.

10     Did you note this discrepancy between now three parts of the same report

11     and did you undertake any efforts to illuminate the matter before

12     reaching a decision to ask for air strikes against the Bosnian Serbs?

13        A.   There was a third set of reporting when I had my intelligence

14     officer take both sets of reports and conduct his own survey of the

15     situation, analysis of the situation, in that I cannot recall at this

16     range.  But it would be those -- I wanted to make sure that these two

17     sets of reports had been compared with each other and so forth.

18        Q.   And you've just identified your own intelligence officer.  We've

19     had evidence of multiple UNPROFOR witnesses at this trial that UNPROFOR

20     did not have intelligence and did not gather intelligence.  Could you

21     clarify who you mean by your intelligence officer?

22        A.   He -- it was by -- I've forgotten his nomenclature.  S -- no,

23     it's G, isn't?  No, he's G2, an officer, which is an intelligence branch,

24     and he was responsible for the information that we collected, which is --

25     I draw a distinction between the collection of intelligence by secret

Page 7446

 1     means.  And he was the one that I asked to do this particular job for me.

 2        Q.   Can I ask if that individual has a name?

 3        A.   Yes, it's in my statement.  Colonel Powers.

 4        Q.   Okay.  I just wanted to make sure we are talking about the same

 5     person.  Now, am I correct that -- well, strike that.  Here we have

 6     listed a bearing for the first shell of 170 degrees magnetic.  We

 7     actually had testimony here the other day, at transcript page 7154 and

 8     7169, including the videotape of the officers making the measurements

 9     wherein it was determined that it was 160 degrees.  Do you know how and

10     why your full comprehensive report now has this changed to 170 degrees?

11        A.   Because -- I think you'll find that that's in one of the reports,

12     and you've also got people using a different -- not degrees but mils, a

13     different measure of arc.

14        Q.   Was the decision made by your command to evade public scrutiny

15     for this comprehensive report based upon the fact that there were these

16     discrepancies which you could not explain?

17        A.   We -- the purpose of the third investigation which I told you

18     about --

19             JUDGE ORIE:  Which discrepancies are you referring to at this

20     moment, Mr. -- is it about the degrees and the ...

21             MR. IVETIC:  No, the first report indicating one tail fin,

22     unmarked.  These -- the first UNMO report indicating one tail fin marked

23     with a particular number.  The third UNMO indicating four tail fins

24     recovered each with marks and a different number than the --

25             JUDGE ORIE:  We are still talking about the tail fins?

Page 7447

 1             MR. IVETIC:  Correct.

 2             JUDGE ORIE:  Yes.  That was not clear to me.

 3             MR. IVETIC:  I apologise.  Yes, correct.

 4             THE WITNESS:  I thought we were talking about the bearings.

 5             MR. IVETIC:  And the bearing I guess, now.

 6             JUDGE ORIE:  Okay.  Let's split that up.  Let's clearly make a

 7     distinction between the two.

 8             MR. IVETIC:

 9        Q.   Let's focus on the tail fins, sir.  Was that a reason why your

10     command wanted this report to be exempt from public scrutiny?

11        A.   No.

12        Q.   And now let's talk about the differences in the degrees, although

13     I believe your report is --

14        A.   No, I told you at the beginning of this bit of evidence the

15     reason that I wanted it so that public scrutiny wasn't immediately -- we

16     didn't start a -- so as to avoid starting a sort of argument in the media

17     as to where people were being experts without actually being there on the

18     ground and using partial bits of information that they were -- they were

19     collecting off my reports.

20        Q.   Well, sir, had you been on the ground?  Or were you also relying

21     on partial bits of information in making your determination and seeking

22     to turn the key to initiate air strikes against the Serbs?

23        A.   I had a competent staff whose business -- and subordinates, whose

24     business was to carry out these investigations on my behalf.  I

25     conducted -- they conducted two of them.  I caused a third to be

Page 7448

 1     conducted and then arrived at a decision, which was my business to do.

 2             JUDGE ORIE:  Mr. Ivetic, talk about the bearings.  That's one of

 3     the inconsistencies you referred to.  I think we had 2800 mils and we

 4     find in other documents 2.850 mils.

 5             MR. IVETIC:  Correct.

 6             JUDGE ORIE:  Here we find 170 plus or minus 5.  May I take it

 7     that you have looked at tables what 2.800 mils exactly is in degrees?

 8             MR. IVETIC:  The French standard is actually -- in this document

 9     it's identified as 2.850 for the French.  As for the UNMOs, I'm not sure

10     what their --

11             JUDGE ORIE:  But my simple question is:  What is 2.850 mils in

12     degrees on a 360-degrees circle?  I mean, that's -- if you are talking

13     about inconsistencies, of course we have to carefully look at what the

14     numbers exactly tell us.  If you'll -- I'll find it for you if you --

15     that's --

16             MR. IVETIC:  Your Honours, the point is that these are all

17     questions that experts would have to undertake.

18             JUDGE ORIE:  No, Mr. Ivetic.  If you are talking about

19     inconsistencies you first have to establish that there are

20     inconsistencies.  That's what we start with before we ask questions.

21             The other question you would like to ask is:  Why have you not

22     changed -- okay, that's an interesting question, not the core of this

23     case, why have you not expressed it in another numeric system as you did.

24     And then I can imagine what the answer of the witness is:  My experts

25     used their own usual numbers.

Page 7449

 1             So for us it is to find out exactly whether there are

 2     inconsistencies.  If they are there, we certainly have to pay attention

 3     to it.  But if you say, I have not checked what 2.850 mils is in degrees

 4     or 2.800, then we'll do it over the break and then we'll have perhaps a

 5     better basis for any inconsistencies.

 6             MR. IVETIC:  It depends on which standard of mils is being

 7     applied.  The French use one, the British use one, the Soviets use

 8     another.

 9             JUDGE ORIE:  Yes.  So we have to not only look at one system of

10     mils but we have to look at the various system of mils which apply, as is

11     done in other cases, and they we'll analyse all that and then see what

12     the outcome is.

13             MR. IVETIC:  Correct.

14             JUDGE ORIE:  Which is apply as is done in other cause case, and

15     then we'll analyse all that and then see what the outcome is.

16             I take it, Mr. Smith, are very familiar with the different

17     systems in mils because they are not uniform?

18             THE WITNESS:  I think with the possible exception of the

19     Russians, those who use mils, it's a standard unit.  There are 6.400 of

20     them to a circle of which there are also 360 degrees, so it's roughly 17

21     mils to the degree.

22             JUDGE ORIE:  Yes.  That's the mils system you're familiar with.

23             THE WITNESS:  Yes.  And I believe that is the one that was being

24     used there.

25             JUDGE ORIE:  Yes.

Page 7450

 1             Mr. Ivetic, please proceed.

 2             MR. IVETIC:

 3        Q.   If we could turn to annex C of this report which is the --

 4     annex C of your comprehensive report which is the last page in e-court in

 5     both versions of this document.  And this appears to be the third

 6     investigation that you indicated was conducted by

 7     Lieutenant-Colonel Brian Powers, a G2?

 8             JUDGE ORIE:  Mr. Groome.

 9             MR. GROOME:  I don't believe the witness referred to it as a

10     third investigation.

11             MR. IVETIC:  There -- all right.  Third.

12        Q.   How would you refer to this document, sir?

13        A.   What did I do in my initial statement?

14             JUDGE ORIE:  Why not focus on the document and then ask questions

15     about it.

16             MR. IVETIC:  Yes, that's fine.

17             JUDGE ORIE:  It's third, whatever.

18             MR. IVETIC:  Okay.

19             JUDGE ORIE:  Third report.  Let's look at the document.

20             MR. IVETIC:

21        Q.   It says at the beginning:

22             "Following an investigation and analysis of all evidence ..."

23             So now I have to ask you because the other side has raised this

24     issue, was there a third investigation or not?

25        A.   I think I called it a second iteration of this investigation.

Page 7451

 1        Q.   Okay.  Fair enough.  Lieutenant-Colonel Brian E. Powers, your G2

 2     investigation officer, am I correct that he was an American officer?

 3        A.   Yes, he was.

 4        Q.   Am I correct that he was an American intelligence officer?

 5        A.   I don't recall his branch that he came from.  He was in the staff

 6     branch for intelligence in my headquarters, yes.

 7        Q.   Is he the same Lieutenant-Colonel Powers that you identify in

 8     your book as being your link to NATO intelligence?

 9        A.   That is correct.

10        Q.   Thank you, sir.  Now, Lieutenant-Colonel Powers, can you tell me

11     what, if any, experience he has in terms of artillery weapons?

12        A.   I don't remember.

13        Q.   Why did you select him to do this second reiteration of

14     investigation and analysis?  Didn't you have trained artillery officers

15     under your command?

16        A.   Not in my headquarters I didn't.  I -- I can't remember why I

17     chose him in particular.

18        Q.   Were there trained artillery officers in either your subordinate

19     command or in your superior command, UN HG Zagreb?

20        A.   There might have been, but there weren't in my headquarters.

21        Q.   Okay.  Did Lieutenant-Colonel Powers perform any of the analysis

22     as to bearings that were reflected in his report or was he merely

23     relaying what others had determined?

24        A.   Again, at this distance I can't remember precisely how he

25     conducted the report that -- conducted the investigation that led to this

Page 7452

 1     report.

 2        Q.   Can you please tell me whether and which of the accepted methods

 3     of crater analyses were utilised either by Lieutenant-Colonel Powers or

 4     those he was relying upon for this report?  Was it fuse furlough, centre

 5     of crater analysis, side-spray method, splinter-groove method or some

 6     other method?

 7        A.   I can't remember the precise details of the methodology used.

 8        Q.   Okay.  If we look at the -- if we can turn back to the second

 9     page of this comprehensive report --

10             MR. IVETIC:  I apologise.  It's page 2 in the English and also in

11     the B/C/S.

12        Q.   And in item number 1, General, there is a reference to a written

13     report about this incident having been given to him at 0800 hours,

14     29 August 1995.  Would "him" refer to command UNPROFOR?

15        A.   It -- I read that as, yes, that I, commander UNPROFOR, received a

16     written report at 8.00 on the 29th.

17        Q.   And do you recall receiving a written report?

18        A.   Not as precisely as it's written there, but I'm sure I did.

19        Q.   Okay.  I have not seen that written report specifically

20     identified in this comprehensive report.  Would it be one of the ones

21     that we've gone through or would it be a report in addition to the three

22     reports that we've gone through?

23        A.   I don't know.

24        Q.   Fair enough.

25             MR. IVETIC:  If we can turn to the next page of this --

Page 7453

 1        Q.   First of all, am I correct that this part we are looking at now

 2     authored by Lieutenant-Colonel Baxter would be a summation of the

 3     supporting materials that we have now gone through?

 4        A.   I'm sorry, the page has just changed.  I am not sure what I'm

 5     looking at.

 6        Q.   This is page 2 of the final and comprehensive report, authored

 7     8 September --

 8        A.   Right.

 9        Q.   -- 1995.

10        A.   Okay.

11        Q.   Okay.  Would you agree with me that Lieutenant-Colonel Baxter did

12     not engage in any investigation, measurements or analysis, but was merely

13     summarising what the source documents that we just went through reported?

14        A.   Yes, that's my understanding of this document.

15        Q.   And we see here the Cymbeline radar is identified at number 4.

16     Would you --

17        A.   Well --

18        Q.   Am I correct that this is a British radar system?

19        A.   Well, not on that page.

20             JUDGE ORIE:  Could we go to next page.

21             MR. IVETIC:  I apologise.  Next page.

22        Q.   And if I could direct your attention to number 4, the Cymbeline

23     radar is identified.  Am I correct that this was a British manufactured

24     system originally known as field artillery 15 or number 15?

25        A.   The unit is certainly British.  What it was originally known as,

Page 7454

 1     I don't know.

 2        Q.   Fair enough.  Am I correct that this system was first introduced

 3     in 1975 and already considered obsolete by most militaries who used the

 4     system as of 1995?

 5        A.   I don't know if you're correct or not about what other people

 6     considered, and I don't know when it was introduced into service.

 7        Q.   Do you know what variant of the Cymbeline system was employed in

 8     Sarajevo in 1995?  Was it the MK 1 or the MK 2?

 9        A.   I don't remember.

10             JUDGE ORIE:  Mr. Ivetic, I am looking at the clock.  I think it's

11     time for a break.

12             MR. IVETIC:  Yes, that'd be great, Your Honours.

13             JUDGE ORIE:  Could the witness be escorted out of the courtroom

14     first.

15                           [The witness stands down]

16             We resume at 20 minutes to 2.00.

17                           --- Recess taken at 1.19 p.m.

18                           --- On resuming at 1.47 p.m.

19             JUDGE ORIE:  Could the witness be escorted into the courtroom.

20                           [The witness takes the stand]

21             JUDGE ORIE:  Mr. Ivetic, you may continue.

22             MR. IVETIC:  Thank you, Your Honour.

23        Q.   Sir, I neglected to ask you earlier in regards to the

24     comprehensive report that we've been looking at whether, in fact, anyone

25     had performed any inquiry or investigation as to the marked tail fins,

Page 7455

 1     whether those batch number and origin markings correlated to any

 2     manufacturer within the arms system of the former Yugoslavia?

 3        A.   I don't remember if that had been done.

 4        Q.   Do you remember that if any of the teams that were employed by

 5     UNPROFOR at any time to investigate this incident took into account

 6     hand-held grenade launchers, such as the RBM-57 which could also have

 7     been utilised to fire rounds of that calibre?

 8        A.   Again, I -- I'm not familiar with the weapon in -- that you --

 9     that you've given me a description of, and I don't know if they looked at

10     other weapons.

11        Q.   Okay.  Let's then turn to what your report did use, and that

12     would be the Cymbeline radar again.  Do you recall, sir, irrespective of

13     which model it was, the Cymbeline radar that was in place in Sarajevo and

14     upon which your report relies, did it have the capability to record and

15     playback data memory or was it one that had to be first-hand observed by

16     the operator in situ?

17        A.   I don't recall what it's capabilities were in that respect.

18        Q.   Am I correct, sir, that for the functioning of the Cymbeline

19     radar system, the -- in order for it to track and locate the source of a

20     mortar fire position, that the operator would have to mark his screen at

21     each bomb position and change the beam angle, and then it would have to

22     place electronic markers against his marks representing the bomb's

23     position on the horizontal plane such that operator intervention was

24     required to track any projectiles?

25        A.   It's been a very long time since I watched a Cymbeline operator

Page 7456

 1     at work, and I can't recall.

 2        Q.   Then I'll skip a few questions and ask you:  Do you recall if at

 3     time-period of this incident there were actually three Cymbeline

 4     positions set up throughout Sarajevo, some operated by the British, some

 5     operated by the French?

 6        A.   I don't remember the deployment of the system, no.

 7        Q.   Was the system such that it covered all of Sarajevo or were there

 8     other gaps or holes in the --

 9        A.   No, I didn't -- I just can't recall that degree of detail at this

10     distance.

11        Q.   Do you know if the practice was for the Cymbeline radar operators

12     to physically monitor the devices 24/7?

13        A.   Again, I can't remember how the -- that degree of detail of

14     the -- how the operation was conducted.

15        Q.   All right.  If we can turn to your statement, again.

16             MR. IVETIC:  Again, this would be P785, marked for

17     identification.  And page 52 in English, page 41 in the B/C/S.  And -- I

18     apologise, did I say the paragraph?  No, paragraph 205.

19        Q.   And here, sir, is a reference to your first telephonic

20     conversation or discussion with General Mladic after the occurrence of

21     this incident known as Markale II, and I would direct your attention to

22     the part that reads as follows.  It's in the middle of the paragraph:

23             "Mladic claimed that this was a Muslim attack designed to

24     discredit the BSA.  I had heard those claims before.  And at the time I

25     was in the theater at no stage had I ever been shown any evidence to

Page 7457

 1     support such an assertion."

 2             And the question I have for you:  Am I understanding you

 3     correctly to say that you did not have any information tending to show

 4     that in prior instances Muslims had fired upon their own?

 5        A.   What I'm saying is that I had heard that the Muslims had attacked

 6     the Serbs and I had never been shown any evidence to support such an

 7     assertion.

 8        Q.   Perhaps I'm misreading this, but I thought here you were talking

 9     about a Muslim attack against their own, against persons within Sarajevo.

10     That was what Markale --

11        A.   I'm sorry, yes.

12        Q.   [Overlapping speakers]

13        A.   [Overlapping speakers] My mistake.  I'm -- I'm saying it wrong.

14     That the Muslims had attacked themselves in order to discredit the Serbs.

15        Q.   And my question -- and my question to you, sir, was to clarify

16     these -- these things that you had heard about Muslims attacking

17     themselves, were they in relation to other incidents, i.e., predating

18     Markale, is what I'm asking you?

19        A.   Yes.  These had been -- this had been said on other occasions.

20             MR. IVETIC:  And if we can turn to paragraph 202, which would be

21     on the prior page in English, I apologise.

22        Q.   Here -- here you outline the factors or evidence that you relied

23     upon to conclude that it must have been the Serbs who fired that round at

24     Markale.  Would your lack of -- of confirmed knowledge of prior instances

25     where the Muslims were found to have fired on themselves also be included

Page 7458

 1     on this list as factors that convinced you?

 2        A.   No, I was dealing with this as a -- as -- otherwise why would I

 3     have done these -- this investigation for itself?

 4             MR. IVETIC:  If we can look at the one part of this paragraph

 5     that reads:

 6             "And finally, it is my experience of being in a siege that rounds

 7     that fall on the inside of the siege tend to come from outside the

 8     siege."

 9        Q.   Now, sir, would you agree with me that this isn't really a method

10     of proof, is it?

11        A.   No, and that's perhaps why I put it as separate.

12        Q.   Okay.  Now, I put it to you, sir, although you've said that you

13     have no -- you've heard claims made before but had not been shown any

14     evidence to support such assertions, I'd like to put to you two factors

15     that we have in evidence.  We have two instances that occurred either

16     during the time-period of your tenure or around the time-period of your

17     tenure wherein there is strong indications that the Bosnian Muslim forces

18     attacked their own.  I'd like to ask if you've heard these.

19             The first instance was the UN GOFRS personnel, John Jordan.  He

20     testified at transcript page 1.805 of this case of a July 1995 incident

21     wherein his vehicle was targeted by BiH forces and his vehicle was

22     perforated.  Now, do you recall Mr. Jordan being in theater during the

23     time-period that you were BH commander and did you hear of this incident?

24        A.   Not immediately.  Who was John Jordan?

25        Q.   He was the leader of the UN GOFRS fire-fighting squad?

Page 7459

 1        A.   What is a UN GOFRS?

 2        Q.   They were the volunteer fire-fighters operating in Sarajevo,

 3     putting out fires and helping assist the local fire department in

 4     performing their duties.  They later became called the UN fire

 5     department, I believe.  UN fire-fighting force.

 6        A.   Uh-huh.

 7             JUDGE ORIE:  Could I interrupt you.

 8             Mr. Ivetic, this is what happens if you give a long story and

 9     then say, Do you know John Jordan?  Shall we do it from the other side.

10     First, try to find out what the witness knows.  Because then the witness

11     says, Who is it, what happened, et cetera.  And then, of course, you are

12     invited to again five the story.  Try to find out what the witness knows

13     about John Jordan or GOFRS or fire fighters, and then we hear from him

14     and then we'll [Overlapping speakers].

15             MR. IVETIC:  Let's go closer to home.

16        Q.   Sir, are you familiar with David Fraser?  At the time he was a

17     major and now he's a general retired from the Canadian Armed Forces?

18        A.   Yes.

19        Q.   Am I correct that he served as MA to the sector Sarajevo command,

20     subordinate to you during the time-period that you were in theatre in

21     Sarajevo?

22        A.   I think he was there fairly early in the year, but I'm not --

23             JUDGE ORIE:  Mr. Ivetic, you're developing a speed which really

24     is --

25             MR. IVETIC:  I apologise.

Page 7460

 1             JUDGE ORIE:  -- impossible to follow for -- even for listening

 2     it's not easy.

 3             Please proceed.

 4             MR. IVETIC:  I apologise.

 5        Q.   If I can perhaps assist you, sir.  I believe he was in theater

 6     until May of 1995 as the MA of the sector Sarajevo commander.  Does that

 7     refresh your recollection?

 8        A.   A bit.

 9        Q.   Now we had testimony Mr. Fraser here at transcript page 5.880

10     through 5.881 of an incident wherein some mortar shells landed that were

11     attributed to the Serbs and the BiH Muslim side fired additional mortar

12     rounds at that same location which caused signature casualties amongst

13     the Bosnian Muslim population who had come to view the results -- to view

14     the prior shelling.  And this was said to be confirmed by a UN

15     investigation.  Did you have knowledge of this incident that either

16     predated your command or occurred during your command?  I'm not saying

17     that it did.  I don't know.

18        A.   I don't recall this incident.

19        Q.   In -- was the Cymbeline radar system in place during the

20     time-period prior to Markale; and if so, what time-period prior to

21     Markale?

22        A.   It was in place prior to Markale II, and I think it was deployed

23     after Markale I, but I am not absolutely sure of that.

24        Q.   In -- with respect to this incident that General Fraser

25     discussed, there was no mention of Cymbeline.  Would it be -- would it

Page 7461

 1     be -- would it be interesting for you to have analysed that to determine

 2     if those particular shells were also untracked by the Cymbeline radar

 3     system?

 4        A.   If I might say so, this is so hypothetical.  I have no

 5     knowledge --

 6             JUDGE ORIE:  [Overlapping speakers]

 7             THE WITNESS:  -- of the -- Mr. Fraser is -- I'm sorry.

 8             JUDGE ORIE:  Mr. Smith, you don't have to answer that question.

 9             Mr. -- let's focus not on whether the witness would be interested

10     to find out about a matter he has no knowledge about.  Of course a

11     curious person would have -- and whether a witness is a curious person,

12     yes or no, is not the most important thing to hear today.

13             MR. IVETIC:  Agreed.

14             JUDGE ORIE:  Please proceed.

15             MR. IVETIC:

16        Q.   Let's look at page -- paragraph 208 of your statement.  It's in

17     page 53 in the English and page 41 of the B/C/S?

18             THE INTERPRETER:  Kindly speak into the microphone, please.

19             MR. IVETIC:  I apologise.

20        Q.   And I want to focus on what you said to General Mladic.  And it

21     says:

22             "I informed him that it was now beyond reasonable doubt that the

23     shells had come from BSA territory and the firing pointed had been 3.5

24     to 4 kilometres south-west of the impact point."

25             Now I want to ask you, sir, where is this evidence that you

Page 7462

 1     represented was beyond a reasonable doubt as to the contents of the two

 2     paragraphs that we looked at?  Are we talking about the comprehensive and

 3     full report that we have looked at?  What is it that you are relying upon

 4     when you are making such a strong and bold assertion to General Mladic?

 5        A.   The -- the report that is summarised in that -- that you have

 6     been putting on the screen and the briefings that I'd had associated with

 7     it led me to form the -- the opinion, which was mine to form, the

 8     judgement was mine to make, and that was it.

 9        Q.   If -- and when you say the -- the opinion was yours to form, the

10     judgement was yours to make, am I more correct that the decision to bomb

11     was yours to make and that decision had already been made by you?

12        A.   The decision to bomb was -- had been made.  It wasn't mine to

13     make.  The decision to request the bombing, to turn the key, was mine to

14     make and that's what I subsequently did.

15        Q.   Okay.

16             MR. IVETIC:  If we can look for a moment at document number

17     10231.  This is dated the 18th of August -- pardon me,

18     28th of August, 1995, and is from the Sarajevo Romanija Corps command,

19     signed by a Colonel --

20                           [Trial Chamber and registrar confer]

21             MR. IVETIC:  Signed by a Colonel Sladoje.  And in item 1 it

22     states as follows:

23             "1.  I caution again all the unit commanders regarding my order

24     on restricting fire at the city of Sarajevo without approval from the

25     Corps Command Post."

Page 7463

 1        Q.   Sir, would you agree with me that based upon this document it

 2     would appear that prior to the incident at Markale that the VRS had

 3     banned fire upon the city of Sarajevo by its subordinate units?

 4        A.   What am I to agree with?

 5        Q.   Item number 1.  Would you agree that this would seem to indicate

 6     that prior to the Markale incident there had been an order sent

 7     restricting fire on the city of Sarajevo without the approval of the

 8     commander corps?

 9        A.   Yes.  That's not the same as banned.

10             JUDGE ORIE:  Yes.  The second way of summarising it was slightly

11     different from the first time.  Mr. Ivetic, you added now "without

12     approval," and that is now answered by the witness.

13             Mr. Groome.

14             MR. GROOME:  And also Mr. Ivetic is saying that this order was

15     before the -- the bombing.  Can I ask what that's based on?  Because

16     there would seem to be some endorsements and this would suggest

17     otherwise.

18             MR. IVETIC:  The text on paragraph number 1 --

19             JUDGE ORIE:  Well, may I take it that ...

20             Yes, please proceed, Mr. Ivetic.

21             MR. IVETIC:  Yes, Your Honours.  The item 1 which says:

22             "I caution again all the unit commanders regarding my order on

23     restricting fire at the city of Sarajevo without approval."

24             That's what I'm basing it on.

25             JUDGE ORIE:  The "again" suggests that it was done earlier and

Page 7464

 1     the exact time of this was when Mr. -- when this document -- it's dated

 2     the 28th, but --

 3             MR. IVETIC:  This comes after the incident, because you will see

 4     in the second part they are asking the units if anyone actually fired

 5     during the time-period of the incident --

 6             JUDGE ORIE:  Yes.

 7             MR. IVETIC:  -- because this is what this document is seeking.

 8     So if you look at [overlapping speakers]

 9             JUDGE ORIE:  By 14 hours, and that means that this must be

10     shortly before 1400 hours before this was issued.

11             Yes, please proceed.

12             MR. IVETIC:

13        Q.   If we can read the second part, sir, it says:

14             "You are to inform the Corps Command, in writing, by 1400 hours,

15     whether you have opened fire between 1000 and 1200 hours at Sarajevo.  If

16     you have, inform us when, the target of fire, which calibre and weapon

17     was used and for what reason.  The report is to be submitted for

18     artillery weapons of calibre 80 millimetre and larger."

19             Based upon the time being sought and the date of this order,

20     would you agree that this would appear to be an inquiry to determine if

21     any of their units might have shot at Sarajevo so as to be the source for

22     the Markale II shell or shells?

23        A.   It looks as though that's what the initial -- the order is

24     seeking to find out.

25        Q.   Thank you.  And with respect to -- as an army officer, as a

Page 7465

 1     commander, would you consider this as a reasonable step if a military

 2     commander had not issued any orders for a fire mission to take place?

 3        A.   Would you consider this a -- he's trying -- yes.  He's trying to

 4     find out what it is that's been going on.  Yup.

 5        Q.   And do you consider that this document corroborates what

 6     General Mladic told you on phone, that he was investigating whether any

 7     of his units had engaged in any action that could have resulted in the

 8     Markale incident, the Markale II incident?

 9        A.   His corps commander is, yes.

10        Q.   Okay.

11             MR. IVETIC:  Your Honours, I wish to tender this document at this

12     time; however, now I see where the confusion arises.  There appears to be

13     an error in the translation into English.  The B/C/S original says

14     "zabrana," which would mean "zabrani otvarani vatra [phoen]," which

15     hopefully can get translated.  And I'll say it again, "nardzeni o zabrani

16     otvarani vatra [phoen]," [Interpretation] "order on prohibition to open

17     fire."

18             [In English] So it's a little bit stronger than just a

19     restriction.  But, Your Honours, with that in mind, I would tender this

20     document as the next available exhibit number.

21             MR. GROOME:  No objection.

22             JUDGE ORIE:  Mr. Registrar.

23             THE REGISTRAR:  65 ter 10231 shall be assigned Exhibit D137,

24     Your Honours.

25             JUDGE ORIE:  Thank you, Mr. Registrar.  It is admitted into

Page 7466

 1     evidence.

 2             MR. IVETIC:  I'd like to take a look at one more document and ask

 3     a question or two about that in the time that we have left.  If we can

 4     call up 1D00596 and call up page 9 in e-court.  This should correlate to

 5     a page from the Karadzic transcript of T 11485, and I would like to focus

 6     on lines 14 through 20.

 7        Q.   And while we wait for that -- well, we'll just wait for that.  I

 8     will be brief with it.  And it reads as follows:

 9             "Q.  While we are waiting for this to appear on the screen,

10     General, in the first week of May, you said, and you repeated it in your

11     statement and we shall come back to it, that you were under great

12     pressure that a bombing should take place.  Who was exerting this

13     pressure?

14             "A.  There was pressure from the NATO authorities, who were

15     watching the circumstances in and around the exclusion zones.  There were

16     demands from the Bosnian government in addition."

17             Now this is in relation to the time-period in May of 1995.  First

18     of all, do you affirm the truthfulness and accuracy of this answer that

19     you gave in the Karadzic case?

20        A.   Yes, I do.

21        Q.   The question I want to ask you is -- again, this was dealing with

22     May 1995:  Can we conclude that pressure from the same bodies, that is to

23     say, from the NATO authorities and the Bosnian government, was ever

24     present and perhaps increased in August of 1995 when this Markale II

25     incident was being discussed?

Page 7467

 1        A.   The circumstances by the end of August were quite different to

 2     those in May, and I don't recall the -- the -- let me answer it slightly

 3     different:  As a result of the London Conference and the decisions made

 4     there and announced then, the sense -- my sense of this discord between

 5     NATO and the UN positions had much decreased.

 6             MR. IVETIC:  One more question and then we can break for the day,

 7     if I can, Your Honours?

 8             JUDGE ORIE:  Very short one because we are already beyond quarter

 9     past 2.00.

10             MR. IVETIC:

11        Q.   Sir, did pressure from NATO and the Bosnian government have any

12     role in your decision to employ NATO aircraft and your Rapid Reaction

13     Force in August of 1995?

14        A.   No, it didn't.

15             MR. IVETIC:  Your Honours, we can have the break.

16             JUDGE ORIE:  Thank you, Mr. Ivetic.

17             We will adjourn for the day, Mr. Smith, and we'd like to continue

18     Monday morning at 9.30.  Were you able to arrange for your presence on

19     Monday?  I do understand that you'd very much like to finish on Monday.

20             THE WITNESS:  I -- I -- I will be here on Monday, always assuming

21     the trains are running to schedule.

22             What I'm -- I have also -- it may help the Court to know that I

23     have been able to call London --

24             JUDGE ORIE:  Yes, we have dealt with that in private session.

25             THE WITNESS:  Okay.

Page 7468

 1             JUDGE ORIE:  But for this moment, so you'll be available on

 2     Monday morning.  It seems that Mr. Mladic seeks either to contact with

 3     counsel.  If he wants to writes a little note, of course, we'll wait with

 4     adjourning until he has written it.

 5             Mr. Smith, we briefly do turn into private session for a second.

 6                           [Private session]

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 7469

 1   (redacted)

 2                           [Open session]

 3             THE REGISTRAR:  Your Honours, we are back in open session.  Thank

 4     you.

 5             JUDGE ORIE:  Thank you, Mr. Registrar.

 6             Therefore we'll -- we'd like to see you back on Monday.  And

 7     apart from the discussions we just referred to, you're hereby again

 8     instructed not to speak with anyone about your testimony, whether already

 9     given or still to be given, and we'd like to see you back on the 28th at

10     9.30 in the morning.

11             You may follow the usher.

12             THE WITNESS:  Thank you.

13                           [The witness stands down]

14             JUDGE ORIE:  If there is no urgent matter to be raised at this

15     moment we'll adjourn for the day and will resume Monday, the 28th of

16     January, at 9.30 in the morning.

17                           --- Whereupon the hearing adjourned at 2.18 p.m.,

18                           to be reconvened on Monday, the 28th day

19                           of January, 2013, at 9.30 a.m.