Tribunal Criminal Tribunal for the Former Yugoslavia

Page 7470

 1                           Monday, 28 January 2013

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.33 a.m.

 5             JUDGE ORIE:  [French on English channel].  Yes.  I think most

 6     of -- we -- first of all, we have French on channel 4, which is -- I'm

 7     pleased to hear it, but rather on channel 5, and apart from that, our

 8     headphones are plugged in in the wrong socket.

 9             Do we -- I think we now have English on channel 4, and we have

10     French on channel 5.  And then the only thing I have to check is -- and

11     B/C/S is on channel 6.

12             There are some preliminaries, but let me first see whether --

13     yes, the case has not yet been called.  At least it's not on the

14     transcript.

15             Mr. Registrar.

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

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

18             JUDGE ORIE:  Thank you, Mr. Registrar.

19             We were informed that the Prosecution would have some

20     preliminaries to be raised.

21             MR. GROOME:  Good morning, Your Honours.  May I ask that we

22     please go into private session for this.

23             JUDGE ORIE:  We move into private session.

24                           [Private session]

25   (redacted)


Page 7471











11 Pages 7471-7474 redacted. Private session.
















Page 7475

 1   (redacted)

 2                           [Open session]

 3             THE REGISTRAR:  Your Honours, we're in open session.  Thank you.

 4             JUDGE ORIE:  Thank you, Mr. Registrar.

 5             Any matter to be raised in open session, Mr. Groome?

 6             MR. GROOME:  No, Your Honour.

 7             JUDGE ORIE:  Same for you, Mr. Ivetic.

 8             MR. IVETIC:  That's correct, Your Honour.

 9             JUDGE ORIE:  Then could the witness be escorted into the

10     courtroom.

11                           [The witness takes the stand]

12                           WITNESS:  RUPERT SMITH [Resumed]

13             JUDGE ORIE:  Good morning, Mr. Smith.

14             THE WITNESS:  Good morning, Your Honours.

15             JUDGE ORIE:  Needless to say that you're still bound by the

16     solemn declaration you've given at the beginning of your testimony.

17             We briefly will move into private session before we continue with

18     your cross-examination.

19                           [Private session]

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 7476











11 Pages 7476-7477 redacted. Private session.















Page 7478

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 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14                           [Open session]

15             THE REGISTRAR:  Your Honours, we're back in open session.

16             JUDGE ORIE:  Thank you, Mr. Registrar.

17             Mr. Ivetic, if you're ready, you may continue your

18     cross-examination.

19             MR. IVETIC:  Thank you, Your Honours.

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

21        Q.   Good day, sir.

22        A.   Good morning.

23        Q.   If we can, I'd like to return to the Markale II event that we

24     left off at last week on Friday.  In that regard, I'd like to talk with

25     you about the HALO findings upon which you relied in preparing your final


Page 7479

 1     and comprehensive report or I should say having Lieutenant-Colonel Baxter

 2     prepare the final comprehensive report.  Would you first agree with me

 3     that in --

 4             JUDGE ORIE:  Mr. Ivetic, could you assist us.  It is in evidence,

 5     I think, under number --

 6             MR. IVETIC:  I apologise.  The --

 7             JUDGE ORIE:  So that we can follow the document on our screens.

 8             MR. IVETIC:  One moment.  P797, Your Honours.

 9             JUDGE ORIE:  Thank you.  Perhaps we could have it on our screens.

10             MR. IVETIC:

11        Q.   Now, the question I have for you, sir, is first of all, you, I

12     believe, had mentioned HALO at some point in time.  Is that system

13     separate and apart from the Cymbeline system which is identified, for

14     instance, on the third page of this document in the English at item

15     number 4?

16        A.   Yes.  The HALO system was separate.

17        Q.   And I'd also like to ask you, sir, with respect to a

18     120-millimetre mortar, would you agree with me that the same in flight

19     produces a rather loud noise signature?

20        A.   Not particularly loud in flight.

21        Q.   When you say not particularly loud, would it be loud enough that

22     it ought to trigger the HALO sound detection system if said system is

23     operating properly?

24        A.   My memory of the system was it's designed to pick up the firing

25     point as opposed to the projectile in flight.

Page 7480

 1        Q.   Okay.

 2        A.   And the noise at the firing point is -- is loud.

 3             MR. IVETIC:  I would like to now move to 5D -- pardon me, 1D596

 4     and page 54 of the same in e-court.

 5        Q.   While we wait for that, sir, this is a selection from the

 6     transcript of proceedings in the Karadzic case in which you discuss the

 7     situation in 1995 leading up to the decision -- after Markale II, leading

 8     up to the decision to use force, and I'd like to focus on line 8 and

 9     following on this page.  And if you can follow along, sir.

10              "That's your first conversation, and then you're looking for

11     details.  He's asking for time to ask his people.  You say you already

12     have reports from your people.

13              "And on page 3, we see that you said you were under pressure,

14     and you were asking General Mladic to appreciate that.  I'm now asking

15     you to explain to the Trial Chamber who it was who was able to exert

16     pressure on the UN force commander in Bosnia-Herzegovina.

17             "A. I think I'm using the phrase as much as a -- explaining the

18     significance and importance of the situation, as much as personal

19     pressures, as it were.  Nevertheless, there was a pressure for me to make

20     a decision that was required of me, if not now, very soon.  The people in

21     Zagreb, the Bosnian government, and a bit later, I think it was, the NATO

22     headquarters in Naples are communicating me -- with me and asking me what

23     I'm going to do."

24             Now, first of all, sir, I'd like to ask you does this accurately

25     and truthfully depict the knowledge that you have as to the question of

Page 7481

 1     who it was that was exerting pressure on the UN force commander in

 2     Bosnia-Herzegovina at this time prior to the commencement of the bombs in

 3     August and September 1995?

 4        A.   Yes.  The pressure, as I say, was for me to make a decision, and

 5     there were people asking me what my decision was going to be and those

 6     I've listed there, yes.  Listed and you read them out.

 7        Q.   And now the question I have for you, sir:  This decision -- first

 8     of all, would it be the decision whether to initiate the bombings or not?

 9     Is that the decision that we're --

10        A.   Whether -- yes, whether this amounted to an attack on a safe

11     area.

12        Q.   Had that decision already been made by you at the time that you

13     were having the first and the second telephonic conversations with

14     General Mladic?

15        A.   No.  I don't think I had made the decision at that stage.  The

16     decision has been made at some point when I tell General Mladic, and I

17     can't recall whether -- immediately whether that's in the second or third

18     of these telephone conversations - I think there's only three - that I've

19     established beyond reasonable doubt that this attack has come from the

20     Bosnian Serb area.

21        Q.   And I'd like to finish reading the second half of this starting

22     at line number 22 and going on to line 6 on the next page of this

23     Karadzic transcript.  If you could follow along with me, sir.

24        A.   Mm-hmm.

25        Q.   Quote:

Page 7482

 1             "Q. Well, General, Mladic is not asking you to do anything here.

 2     He's only asking you to conduct an investigation, and he's offering and

 3     suggesting a mixed investigative commission consisting of the UNPROFOR,

 4     the Muslims, and the Serbs.  Why was that unacceptable?

 5             "A. Because it was me, not a joint commission --"

 6             JUDGE ORIE:  Well, we are -- when the question was read, too

 7     quickly we moved to the next page.  Now since we are at the answer, we

 8     are moving back to the previous page, which is now corrected.  We are now

 9     having the answer on our screen on page 11531.  Please proceed.

10             MR. IVETIC:

11        Q.   "A.Because it was me, not a joint commission that had to make

12     this decision in the first place.  And, secondly, as I thought about it

13     more, it was going to be impractical to carry it out, because I didn't

14     anticipate the Bosnia government would tolerate any -- a joint commission

15     on this issue.  But, primarily, this was a decision I had to make, and I

16     was getting on with making it."

17             And, sir, does this accurately and truthfully record the answer

18     that you would give to this question if asked it again today.

19        A.   Yes, it does.

20        Q.   Okay.

21             MR. IVETIC:  I want to call up 1D00573 in e-court.

22        Q.   And while we wait for that, sir, this is a document dated the

23     28th of August, 2003, and it is an information report generated upon a

24     meeting between yourself and the Office of the Prosecutor of this

25     Tribunal, and I'd want to first ask -- while we're -- while we've got

Page 7483

 1     this document, a preliminary matter not related to the Markale incident,

 2     but since we have page 1 on the screen I'd like present it to you, and

 3     it's the section that is entitled: "The Relationship Between Milosevic

 4     and Mladic," and it's the first part -- about the first half of this

 5     paragraph.  And if you could follow along, it's stated here:

 6             "It is important to understand how power was exercised in the

 7     Balkans in a general sense since it is quite different from how it is

 8     done in Western Europe.  For example, power was passed down absolutely.

 9     An individual operating a roadblock had complete responsibility and

10     unlimited power, and might, for instance, choose to confiscate goods."

11             Does this section accurately and truthfully reflect your

12     observations during the time period that you were BH commander?

13        A.   I was forming this view during that time.  I expressed it when --

14     in August 2003, some eight years later.

15        Q.   With regard to this -- with this view or thesis of yours, can we

16     conclude that the VRS according to your observations was not run as

17     either a NATO or Soviet model?

18        A.   No, I wasn't -- you can't conclude that at all.  I'm talking

19     about how power's exercised amongst that group of people as I understood

20     it.

21        Q.   Fair enough.  I'd like to turn --

22             JUDGE MOLOTO:  Just before you do that, can we just repeat the

23     65 ter number?

24             MR. IVETIC:  1D00573.

25             JUDGE MOLOTO:  Thank you.

Page 7484

 1             MR. IVETIC:  And if we could turn to the third page of this

 2     document in e-court.

 3        Q.   And if we could focus on the middle of the page, I believe, sir,

 4     here we are again dealing with the Markale investigation and the efforts

 5     of yourself which lead to the production of the final and comprehensive

 6     report that we looked at earlier, which was P797, and I'd like to have

 7     you follow along with me in the second half of the paragraphs that begins

 8     "the UNMOs..."  The part I'd like to focus on begins as follows:

 9              "I told a member of my intelligence staff to obtain information

10     from other sources as well, such as the units operating acoustic and

11     radar equipment, and observers stationed at the front line.  This person

12     was Lieutenant-Colonel Powers.  I had known Powers since his arrival in

13     theatre.  He was the senior US army officer in my HQ.  This linked us

14     into the NATO intelligence, and to some extent to the US intelligence

15     community."

16             Now, on Friday we'd already discussed Colonel Powers, and we

17     talked about the fact that he linked you into NATO intelligence.  Is this

18     correct that he also linked you into the US intelligence community?

19        A.   Only insofar as the US is a member of NATO.

20        Q.   Am I correct that the US intelligence community was behind the

21     so-called black flights of C-130 planes into Tuzla airport to arm the

22     Serbs [sic] during the time-period that you were the BH commander?

23        A.   I don't know if you're correct at all.

24        Q.   Do you have an opinion on that?

25        A.   No.

Page 7485

 1        Q.   Would you agree that the position of the United States was to

 2     support the BH Muslims even if it meant violating the arms embargo to do

 3     so?

 4        A.   I'm not able to speak for the United States in these

 5     circumstances.  I don't know what their understanding and policy was in

 6     this respect.

 7        Q.   Okay.  If we can turn to page 5 of this document and focus on the

 8     last paragraph on that page.  And, sir, here the information reports as

 9     follows:

10              "Neither party obeyed the conventions of war in their

11     battles --"

12             JUDGE ORIE:  Mr. -- Mr. Ivetic, could you have a look at page 15,

13     line 12 for me.  You are asking - and it doesn't affect the answer, but

14     when you were asking about the black flights of C 130 planes into Tuzla

15     airport to arm the Serbs, as it appears on the transcript.

16             MR. IVETIC:  I apologise.  If I said Serbs, I misspoke.  I meant

17     to arm the Muslims.

18             JUDGE ORIE:  Yes.

19             MR. IVETIC:  But given the answers of this witness, I don't think

20     it matters.

21             JUDGE ORIE:  Well, it always -- it matters to have a good record.

22             MR. IVETIC:  Correct.

23             JUDGE ORIE:  Please proceed.

24             MR. IVETIC:  Thank you, Your Honour.

25        Q.   Sir, if we could follow along now the paragraph that is listed

Page 7486

 1     here on the information report.  It reads as follows:

 2              "Neither party obeyed the conventions of war in their battles,

 3     Geneva or otherwise, except when it suited them.  The terrorisation of

 4     the civilian population was part of the modus operandi.  The UN

 5     Resolution creating safe areas meant that shelling was not permitted into

 6     these areas.  One side would have to show that an attack was developing

 7     from that place, before shelling would be permitted.  That is from a

 8     purely strict rule sense.  The reality was different, in that more often

 9     than not, the UN just allowed it to happen."

10             First of all, sir, can you verify that this paragraph accurately

11     and truthfully represents the information that you provided to the Office

12     of the Prosecutor during this meeting on this particular topic?

13        A.   I'm not confident in saying -- agreeing with that at all.  I'd

14     like to see what else is written below it.

15        Q.   Sir, this is the last page of the document.  There is nothing

16     else written below.

17        A.   And I don't think I ever saw this.  It might -- I'm quite sure

18     this conversation took place.  In fact, I can remember at least the first

19     named of those in this meeting, but I don't recall making -- I'm sure we

20     had this conversation.  I'm not sure that I said it quite like that or

21     some of the other things I can see being written here being said quite

22     like that.

23        Q.   Well, let's focus on this paragraph, because that's the one that

24     I asked you about.  Could you identify for me, sir, whether in fact you

25     agree with the statement that neither party obeyed the convention of war

Page 7487

 1     in their battles, Geneva or otherwise, except when it suited them?

 2        A.   Yes, I'd go along with that as a general observation.

 3        Q.   And when you say neither party, are we talking about both the BiH

 4     Muslims, the VRS, and the Croat component in Bosnia?

 5        A.   Oh, I think I was probably referring to all three, yes.

 6        Q.   And do you agree with the following sentence, that the

 7     terrorisation of the civilian population was part of the modus operandi?

 8        A.   Yes.

 9        Q.   And again would that apply to all three combatants?

10        A.   Probably.  But we're now needing to get some specific cases for

11     me to be rather more precise about it.  I couldn't recall the

12     conversation back in 2003 whether I was referring to a particular case or

13     gave three examples.  I don't remember.

14        Q.   Okay.  Now let's move on to the next sentence:

15             "The UN Resolution creating safe areas meant that shelling was

16     not permitted into these areas."

17             Do you agree with that statement?

18        A.   Yes.  That's certainly not against civilian population in those

19     areas.

20        Q.   Let us now look at the following sentence:

21             "One side would have to show that an attack was developing from

22     that place before shelling would be permitted."

23             Do you agree with that proposition?

24        A.   Not entirely, no.  And it's this last -- it's that bit and

25     afterwards where I'm not sure that I was either understood or actually

Page 7488

 1     said what I'm purported to have said in quite the way it's written down

 2     there.

 3        Q.   Okay.  Let me see if I can assist you.

 4             MR. IVETIC:  While we keep this up on the screen, I'd like to

 5     call up -- I'd like to call up 1D596 on the other half of the monitor,

 6     and perhaps I can assist the witness with sorting through this, and we'll

 7     be looking at page 1 and leading on to page 2 of 1D596, which should be

 8     the transcript of proceedings from the Karadzic case of 10 February 2011,

 9     and the first page should correlate to 11477 of that trial's transcript.

10     And I'd like to focus on line 19 through 25 on the first page.

11        Q.   I think, sir, that the issue is the discussion of shelling.

12     Would you agree that perhaps what you were talking about was the right of

13     one side to show that they were under attack so that they could take

14     weapons back from the collections points and use them in the exclusion

15     zone to defend themselves?  Is that perhaps the distinction that you're

16     trying to make?

17        A.   I have no idea what I was trying to explain in the document on

18     the right of my screen, the one -- the first one you brought up.  I -- I

19     don't recall the conversation at all.

20             The -- you've -- you've referred me to -- give me the lines

21     again.

22        Q.   19 to 25.  Perhaps --

23        A.   Thank you.

24        Q.   Perhaps so that everyone can follow --

25        A.   They've now been expanded.  I can now read them.

Page 7489

 1        Q.   Okay.  I was going to read them into the record, sir --

 2        A.   Okay.

 3        Q.   -- so that we can have this as part of the proceedings, and if

 4     you can follow along I will give you an opportunity to comment on this.

 5        A.   Mm-hmm.

 6        Q.   So it begins as follows:

 7             "Do you recall that when the agreement on the total exclusion

 8     zone was reached the Serb side retained the right to take its weapons out

 9     and defend itself and that this was regulated by the relevant protocol

10     and that this was also recognised at each and every meeting that was

11     held?

12             "A. I recall that in 1994, that something like that was in the

13     agreement, yes.  I don't remember the details.

14             "Q. Thank you.  May I remind you that at meetings with

15     Ambassador Akashi and with General Rose, as well as in the protocol

16     itself, it was specified that if the United Nations cannot prevent or

17     stop an attack that is already underway against the Serbs, the Serbs have

18     the right to take their own weapons and defend themselves.  Afterwards,

19     they're supposed to return the weapons.  My thesis is that -- is that

20     that is something that is well known among the officers there or, rather,

21     the armed force of the UN."

22             Do you agree with that?

23        A.   Well, I say I was in the evidence you read out, don't I?  That

24     there was some such agreement.  Whether I remember it as a protocol or

25     not, that I don't recall.

Page 7490

 1        Q.   Fair enough.  But with regard to the rest of what I've read out,

 2     first of all we have to follow the formality.  Is it truthful and

 3     accurate as to what is --

 4        A.   I'm -- yes.

 5        Q.   And would you agree with me, sir, that at this stage, this many

 6     years later, you cannot recall the modalities of how such a return of

 7     weapons was to be conducted?

 8        A.   I would need to see the bits of paper as we're saying in here.  I

 9     don't recall any of the details or seeing the bit of paper.  I might well

10     have done, but I don't recall seeing it.

11             JUDGE ORIE:  Mr. Ivetic, there's a bit of a problem to say,

12     "Well, do you recall the rest?"  It was all a long question by

13     Mr. Karadzic, to know exactly, because the answer of the witness was, "I

14     don't remember the details, not much more, much not less.  That there was

15     this set of protocols.  He's talking in the plural.  So therefore it

16     would be important to know exactly what the witness now confirms and what

17     he is unable to confirm, and then a reference to the rest of it seems to

18     be a bit --

19             MR. IVETIC:  Your Honours, I'm referring to the rest of this

20     section of the transcript and whether it is truthful and accurate.  That

21     is what I was referring to before the witness cut me off and answered.

22             JUDGE ORIE:  Yes.  That's exactly what I mean, the rest.  If you

23     just want to ask the witness whether this was said by Mr. Karadzic, then

24     of course there's no problem.  But I think you asked him --

25             MR. IVETIC:  Well, Your Honours, more than what was said by

Page 7491

 1     Mr. Karadzic --

 2             JUDGE ORIE:  If you would just --

 3             MR. IVETIC:  If I may, Your Honour, but the answer of the witness

 4     is clear.

 5             JUDGE ORIE:  If you would not interrupt me, that would be

 6     appreciated.

 7             You asked the witness -- the witness answered, "I said I was in

 8     the evidence you read out, that there was some such agreement.  Whether I

 9     remember it as a protocol or not, that I don't recall."

10             Then your question was:

11             "Fair enough.  But with regard to the rest of what I've read out,

12     first of all we have to follow the formality, is it truthful and accurate

13     as to what --"

14             Now, your question was limited to whether this is what was said

15     during the Karadzic proceedings?

16             MR. IVETIC:  Whether the answers provided by this witness in the

17     Karadzic proceedings were truthful and accurate, Your Honour, the two

18     answers to the two questions that I read out, with now the caveat that

19     the witness has again reaffirmed that he does not know the details which

20     I accept and which is why I was not going to go through the actual

21     protocol document with him.

22             JUDGE ORIE:  If you ask is it truthful and accurate, then if you

23     have quoted the whole long question by Mr. Karadzic, then there may be

24     some confusion as to whether the witness agrees that what Mr. Karadzic

25     said was truthful and that he confirms that, or whether he confirms the

Page 7492

 1     answers he gave.  That was a bit unclear, and that was the matter I

 2     wanted to raise.

 3             Please proceed.

 4             MR. IVETIC:  Thank you.  Perhaps then I should ask the witness

 5     again.

 6        Q.   With respect to your two answers from this selection, perhaps we

 7     should do them in -- in sequence, if we can look on what's on screen

 8     right now, lines 8 through 9:

 9             "A. I was aware that there was this set of protocols.  Again,

10     without seeing them, I cannot recall the detail."

11             Do you agree that this answer given by you in the Karadzic

12     proceedings is truthful and accurate.

13        A.   Yes.

14        Q.   And if we can turn back to the previous page of that document on

15     the left side of the screen 1D596.  And if we could focus on lines 23

16     through 24.

17             And, sir, now I'd like to ask you the same question in relation

18     to this answer you gave, which was:

19             "A. I recall that in 1994 that something like that was in the

20     agreement, yes.  I don't remember the details."

21             Would that be a truthful and accurate answer?

22        A.   Yes, it is.

23        Q.   Thank you.

24             JUDGE ORIE:  Could I then ask you in addition to that when you

25     said there was some such agreement what exactly did you understand the

Page 7493

 1     agreement even without the details to be?

 2             THE WITNESS:  It was broadly as we've been discussing, that if

 3     the situation reached the point that the -- that the Bosnian Serbs were

 4     being attacked and losing, as it were, they could -- would be permitted

 5     to get their weapons back from the weapon collection points.

 6             JUDGE ORIE:  Yes.  And that is in the protocols or agreements as

 7     put on paper or --

 8             THE WITNESS:  No.  Again, I do not -- I cannot recall the

 9     documents or the details or the whether the UN had to permit it first or

10     any of that -- those elements of it.

11             JUDGE ORIE:  So whether they had the right or not to take their

12     weapons back, whether that was --

13             THE WITNESS:  I think that --

14             JUDGE ORIE:  -- part of the agreement and what conditions there

15     were under which they could get their weapons back you say you are not

16     certain about.

17             THE WITNESS:  I think from my memory you get the exclusion zone

18     regime is a subsequent event to the establishment of the safe areas.

19     In -- when the exclusion zones are established, the UN is -- spells out

20     and produces a document as to what is involved with this new regime and

21     the development of the weapons collection points and so forth.

22             At some later point as I am recalling it, there is this letter,

23     protocol, annex, I don't know what it is or what we call it, in which the

24     eventuality of -- of, as my memory is of it, of an attack developing to

25     the point that the Bosnian Serb forces were in extremis, then the weapons

Page 7494

 1     would -- could go back.

 2             What I don't recall is whether this was the definition of the

 3     situation and what that was called, how that was defined, if it was

 4     defined, and secondly, who made the judgement, whether the UN was making

 5     this judgement or the Bosnian Serbs.  I just don't remember what that

 6     was, if it was recorded at all.

 7             JUDGE ORIE:  Thank you.  Please proceed, Mr. Ivetic.

 8             MR. IVETIC:  Thank you.

 9        Q.   Just one -- one or two more follow-ups on this area before moving

10     back.  Would you agree with me that during the time period that you were

11     force commander at BH command that the Bosnian Muslim forces, the ABiH,

12     was, in fact, staging attacks from within the safe areas of Sarajevo,

13     Gorazde, Srebrenica, Zepa, and Bihac, and was attacking the Serbs from

14     within those areas?

15        A.   As a matter of fact, I wasn't the force commander, that was

16     General Janvier, but, yes, attacks were made by the Bosnian Muslim forces

17     from those safe areas.

18        Q.   I would like to -- I would like to move on.  At paragraph 16 of

19     your statement, which is P785, marked for identification, and it would be

20     page 5 of the English and page 4 of the B/C/S, you are discussing the

21     situation in your headquarters at the BH command.

22        A.   Mm-hmm.

23        Q.   The part I want to ask you about is the section that begins:

24             "Additionally, a certain amount of national support was available

25     to the headquarters, in my case from the British MOD."

Page 7495

 1             And I'd like you to first answer the question of what is this

 2     national support that you have identified in this paragraph?

 3        A.   The national support that -- for example, I had a small account

 4     on the basis of -- from Britain that allowed me to conduct a certain

 5     amount of my -- of entertainment and so forth.  There's that sort of

 6     national support.  There was my -- I had a soldier as a bat man who was

 7     there and on the national account, and so on.

 8        Q.   So are we just talking here about pecuniary or financial support,

 9     sir?

10        A.   There was that sort of support, yes.

11        Q.   Okay.  I want to now look at an item that was not included in

12     your full and comprehensive report on Markale II, and that would be

13     65 ter number 10439.  And while we wait for that document, I can advise

14     you that it is an UNMO patrol report of a Lieutenant-Corporal Konings, I

15     believe.  First of all, sir, do you agree with me that

16     Lieutenant-Corporal Konings was one of the teams -- was a member of one

17     of the teams that investigated the Markale II incident on behalf of

18     UNPROFOR?

19        A.   No, I don't.  I have no memory of this -- immediately of this man

20     or -- or of the UNMO teams.  They were not under my command, as you know.

21        Q.   Correct.  Looking at the document that is now up on the screen,

22     in particular the English on the right-hand side, do you recall having

23     received this report?

24        A.   No, I don't.

25        Q.   Do you recall either of Lieutenant-Corporal Konings, 1st

Page 7496

 1     Lieutenant Carbonne or captain -- or excuse, 1st Lieutenant Higgs or

 2     Captain Carbonne.

 3        A.   No, I don't.

 4        Q.   I want to look at item number 2 in both languages.  And if we

 5     could focus on that handwritten portion I can read it out as follows:

 6              "The bearings in combination with the estimated angle of impact

 7     could give no evidence on the origin of fire since not is known with

 8     which charge the projectile has been fired."

 9             Does this conclusion accurately correspond to the UNMO

10     conclusions that were made known to you and reported to you at the time

11     that you were examining the Markale II incident?

12        A.   Well, it's not a conclusion, it's an observation.

13        Q.   Was that observation made known to you and/or reported to you at

14     the time that you were examining the Markale II incident?

15        A.   No, I don't recall this report, and it doesn't surprise me that

16     somebody is making another observation at the time -- when he's writing

17     this report?  On the 28th.

18        Q.   If we can --

19        A.   1900, yeah.

20        Q.   If we can turn to the next -- excuse me, page 3 of the

21     document -- or pardon me, I'm sorry.  The next page, item number 3.  So

22     it would be the page 2, item number 3.  On the bottom of the document.

23             "The investigation team tried very hard to prove that the attack

24     came from the Serb side due to the normal use of heavy mortars.  That is

25     likely, but there is no hard proof on this fact."

Page 7497

 1             Can you tell me, sir, do you have a recollection, and is it

 2     accurate that the UNMO team was asked to try to prove that the attack

 3     came from the Serb side?

 4        A.   No, it wasn't accurate that they were asked to make that proof,

 5     at least to my knowledge, and I don't recall, as I've said, seeing this

 6     report.

 7        Q.   Okay.  Would this report, that you didn't see before, have an

 8     effect on your statement that you gave to General Mladic on that day and

 9     which you repeated earlier today that you had proof beyond a reasonable

10     doubt that the mortar that landed at Markale in August of 1995 came from

11     the Serb side?

12        A.   No.  As I've said before and in my statement, we carried out more

13     than just this investigation and put all together and with everything

14     else I, who was the man required to come to a decision, came to the

15     decision that you're aware of.

16             MR. IVETIC:  Thank you, Your Honours.  I would ask that this

17     document be tendered into evidence as the next available Defence exhibit

18     number.

19             MR. GROOME:  No objection, Your Honour.

20             JUDGE ORIE:  Mr. Registrar.

21             THE REGISTRAR:  Your Honours, 65 ter 10439 shall be assigned

22     Exhibit D138.  Thank you.

23             JUDGE ORIE:  D138 is admitted into evidence.

24             Mr. Ivetic, I'm --

25             MR. IVETIC:  I see the clock is --

Page 7498

 1             JUDGE ORIE:  Yes.  We'll take a break.

 2             Mr. Smith, you may follow the usher.  We'd like to see you back

 3     in approximately 20 minutes from now.

 4                           [The witness stands down]

 5             JUDGE ORIE:  We will resume at 5 minutes to 11.00.

 6                           --- Recess taken at 10.33 a.m.

 7                           --- On resuming at 10.57 a.m.

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

 9                           [The witness takes the stand]

10             JUDGE ORIE:  Mr. Ivetic, please proceed.

11             MR. IVETIC:  Thank you, Your Honour.

12        Q.   Sir, I'd like to call up 65 ter number 10239 at this time, and I

13     believe once it comes up we'll see that it is a report made by the same

14     UNMO team, but this time from 29 August 1995, a day after D138, which we

15     just looked at.  And if we look at the first page of the same, it details

16     additional meetings and specifically states that it is related to the

17     first report.

18             Can we then also turn to the next page.  And there again the

19     first -- the first selection details meetings that were held with BiH

20     personnel, and I want to ask you, sir, is it correct that the UNPROFOR

21     investigators continued to meet exclusively with the BiH side after you

22     turned down General Mladic's suggestion to have a joint investigative

23     team looking into this matter?

24        A.   You're asking -- first of all, these -- these are UNMOs, and I

25     repeat, I'm not running the UNMOs.  So I'm not necessarily privy to what

Page 7499

 1     they're doing or I certainly don't know what their instructions are.  So

 2     if this report is correct, then they are recording that they have met

 3     with the BiH.  I don't know that that says that UNPROFOR was doing --

 4     having these meetings as well.

 5        Q.   Well, sir, the full and comprehensive report prepared by

 6     Lieutenant-Colonel Baxter relies upon UNMO reporting for reaching its

 7     conclusions, does it not?

 8        A.   Indeed.

 9        Q.   And am I correct that you relied upon UNMO reporting in reaching

10     your decision --

11        A.   I -- they were -- the UNMO reports were part of that

12     investigation.  I haven't said that that wasn't the case.  You asked me

13     whether UNPROFOR were carrying out these meetings, and I'm pointing out

14     that the UNMOs were not in themselves UNPROFOR.

15        Q.   Fair enough.  Looking at this document that is on the screen, do

16     you recall having had access to this document during the time period that

17     you concluded beyond reasonable doubt that the mortar shell landing at

18     Markale II in August of 1995 came from the Bosnian Serb side?

19        A.   No, I don't recall seeing this report.

20        Q.   If we could focus for a moment on item number 3 on this page that

21     is on the screen right now, at the bottom, I apologise, the second number

22     3, which will be under the sub-heading "Patrol leaders remarks," and it

23     says:

24             "All the facts inserted in the first report remain unchanged and

25     valid."

Page 7500

 1             Do you recall, sir, if, in fact, you had information at the time

 2     that even after follow-up meetings with the BiH side this UNMO team

 3     confirmed its prior report which stated there was no hard proof that the

 4     shelling question came from the Bosnian Serb side?

 5        A.   You're busy conflating two different things.  He, the author of

 6     this second report that you've got on the screen, is reporting about

 7     facts, not necessarily his judgement.

 8        Q.   I am confused by your answer, sir.  I did not use the word

 9     "judgement."  I just -- I asked --

10        A.   No, I did, because what you -- in the other report there are

11     facts and his judgement, and you're asking me to run the two together,

12     and I'm not about to do so.

13             JUDGE ORIE:  Mr. Ivetic, your question was, since the witness

14     said he had not seen this document at that time, whether he had

15     information at the time that even after the follow-up meetings that the

16     UNMO team confirmed its prior report which stated that there was no hard

17     proof that the shelling question came from the Bosnian Serb side.

18             That is a assessment or a judgement, would you agree with that,

19     whereas under 3 what you read to the witness is all the facts inserted in

20     the first report remained unchanged and valid.

21             MR. IVETIC:  Your Honour, if I may.  The witness in answering

22     about the last document clearly corrected me that this part that we're

23     talking and calling a judgement was factual observation by the UNMO in

24     question.

25             So I don't know.  If we want to play games with the words, we can

Page 7501

 1     do that, but I'm trying to get at the situation where this witness had

 2     proof beyond a reasonable doubt, and now we can't get a simple answer on

 3     a simple question:  Did he have this information when he reached the

 4     decision or did he not.

 5             JUDGE MOLOTO:  Mr. Ivetic [Microphone not activated].

 6             MR. IVETIC:  Your Honour, microphone.  Oh, I apologise.  It might

 7     be me.

 8             JUDGE MOLOTO:  And the other one too.  This witness has been

 9     telling us so many times this morning that he hasn't seen this report

10     before, the UNMOs are not under him.  You're confronting him with

11     information that is -- look at your question.

12              "Do you recall, sir, in fact you had information at that time,

13     that even after follow-up meetings with BiH side with this UN -- this

14     UNMO team confirmed its prior report."

15             If he hasn't seen this report before and he hasn't -- the UNMOs

16     were not under him, he doesn't know whether they met or didn't meet with

17     the BiH Army people, what are you really asking him to confirm here?

18             MR. IVETIC:  Apart from the report, Your Honours, whether he had

19     the information of the nature that is contained in the report.  Again, I

20     must stress P797, authored by the office of this witness, references that

21     it is relying upon the investigation by the UNMO patrol from

22     Sector Sarajevo.

23             JUDGE MOLOTO:  Sir, put 797 on the screen and question the

24     witness about the contents of 797.

25             MR. IVETIC:  Let's see if we can -- we'll keep the English

Page 7502

 1     version of this document on the right side of the screen.  If we can call

 2     up P797, and if we can turn to the second page of that in English and

 3     keep it on the left side of the screen, perhaps we can get some progress

 4     made.

 5        Q.   And, sir, you have now repeatedly tried to disavow any

 6     connection --

 7             JUDGE ORIE:  Would you please ask a question, Mr. Ivetic.

 8             MR. IVETIC:  Yes.

 9             JUDGE ORIE:  Isn't it -- you are focusing on the UNMO report to

10     be at the basis of the -- how is it called, the extensive report, which

11     is now to the left of our screen.  Okay.

12             MR. IVETIC:  Yes.  If you look -- if you look at --

13             JUDGE ORIE:  I think what Judge Moloto asked you to do is to

14     clearly see where we find what exactly is found in that comprehensive

15     report about relying on the UNMO report --

16             MR. IVETIC:  Yes.

17             JUDGE ORIE:  -- I think.  So can we take that step-by-step.

18             MR. IVETIC:  Number 1.

19             JUDGE ORIE:  Yes.

20             MR. IVETIC:

21        Q.   "Following the mortar attack on the Markale market Sarajevo at

22     1110 hours, 28 August 1995, UNPROFOR completed a three-stage

23     investigation which was briefed verbally to command UNPROFOR late on the

24     evening of 28 August.  A written report was submitted to him at 0800

25     hours 29 August 1995."  The investigations were -- and number two of the

Page 7503

 1     investigations that your office has been identified as being conducted by

 2     UNPROFOR is an investigation by UNMOs, sir.  Did you have access --

 3             JUDGE ORIE:  Okay.  The investigations were investigations by

 4     UNMO patrol from Sector Sarajevo.  The full UNMO report is at Annex B.

 5     Let's have a look at what -- apparently what UNMO report was among the

 6     investigations.  Could you tell us where Annex B is, at what page,

 7     Mr. Ivetic.

 8             MR. IVETIC:  Yes, Your Honours.  Page 9, I believe, is the

 9     beginning of the summary of the UNMO reports.

10             JUDGE ORIE:  Page 9.

11             MR. IVETIC:  The sitrep.

12             JUDGE ORIE:  Yes.  Well, apparently in this comprehensive report

13     reference is made to the investigation by an UNMO patrol as annexed to

14     that report.  We see that.  That is actually starting, I think, at page

15     9.  I would agree with you.  So we -- apparently we have to --

16             JUDGE FLUEGGE:  Can we have that on the screen.

17             JUDGE ORIE:  Yes, we have that on the screen.

18             MR. IVETIC:  On the left side, actually.

19             JUDGE ORIE:  Apparently -- no, Mr. Ivetic, if you would listen to

20     what Judge Fluegge is asking to see exactly what UNMO report is referred

21     to as Annex B on page 9, because we -- what we should try to avoid is

22     that UNMO report, UNMO reports, an UNMO report, an UNMO investigation.

23     We should clearly identify what is there, because apparently your

24     position is that UNMO reporting was included.  So let's see, where the

25     witness has said he has not seen the handwritten report of the 28th and

Page 7504

 1     the handwritten report of the 29th, to see what exactly it is then in the

 2     UNMO reports that is at the basis of the comprehensive report drawn up by

 3     Mr. Baxter.  That is the situation --

 4             MR. IVETIC:  Yes, Your Honours.

 5             JUDGE ORIE:  -- which needs a clear factual answer.

 6             MR. IVETIC:  I believe I prefaced my questions with regard to

 7     these two documents by saying let's look at these that are not included

 8     in your full and comprehensive report.

 9             JUDGE ORIE:  I think that I explained clearly what would assist

10     the Chamber at this moment on these matters, because there is quite a bit

11     of criticism in your questions that this witness has not taken into

12     account reports where the Baxter report refers to UNMO investigations.

13     That is the reason why we have to find out exactly what the Baxter report

14     refers to and to know exactly what the witness has seen at the time.

15             Please proceed.

16             MR. IVETIC:  Thank you.

17        Q.   Looking at this report which I believe last week you had

18     identified as one that you did recognise, the report now being the one on

19     the left-hand side of the screen, which is Annex B, I believe, of the

20     full and comprehensive report, would you agree with me that this type of

21     report is the summary daily sitrep that will be prepared by the UNMO

22     headquarters, not by the actual patrol teams that were out in the field?

23        A.   It would tend, yes, to be a summary of other reporting.

24        Q.   Who in your office made the decision to look at the summary and

25     to exclude the actual source materials of persons who first-hand

Page 7505

 1     conducted the investigation into the Markale incident?

 2        A.   I don't recall the processing of this -- of who was the specific

 3     person processing these bits of paper at the time.

 4             MR. GROOME:  Your Honour, I'm not sure it's even been established

 5     at this point that General Smith's office even received these original

 6     source reports.

 7             JUDGE ORIE:  That came to my mind as well, but I think that

 8     Mr. Ivetic will pay attention to that.  To exclude, Mr. Ivetic, suggests,

 9     and that should perhaps be an explicit suggestion then, that something is

10     available but that you put it aside and not use it, and that first part

11     of my definition of what excluding is has not been established as far as

12     I'm aware of, but please correct me if I am wrong.

13             MR. IVETIC:

14        Q.   Sir, the instructions that you gave to your subordinates were to

15     prepare a full and comprehensive report of all --

16             JUDGE ORIE:  Mr. Ivetic, I think I said what was important to

17     assist us to establish.  So if you --

18             MR. IVETIC:  I'm going towards that, Your Honour.

19             JUDGE ORIE:  -- if you ignore that, I'll do it myself.

20             Mr. Smith, could you tell us whether these handwritten reports

21     you said you didn't see at the time, that is the one of the 28th and the

22     one of the 29th by Lieutenant Konings, whether they were received in

23     your -- by your team.

24             THE WITNESS:  I don't expect they were.  I think they would have

25     been held within the UNMO headquarters itself.

Page 7506

 1             JUDGE ORIE:  You do not know --

 2             THE WITNESS:  But I can't say for absolute certain at all.

 3             JUDGE ORIE:  Yes.  Please proceed, Mr. Ivetic.

 4             MR. IVETIC:

 5        Q.   In the tasking that you gave your subordinate officers to prepare

 6     a full and comprehensive report outlining the results of investigations

 7     into Markale II, did you instruct them to ask all of the other UN

 8     entities in Bosnia-Herzegovina for all their documents so as to have a

 9     full and comprehensive picture of the same?

10        A.   I doubt I went into that detail, but I cannot remember the

11     precise instructions that were made on that day.

12        Q.   So, sir, you made a decision to initiate combat with an armed

13     force based upon information that was hastily received and was not

14     complete.  Would you agree with that?

15        A.   No, I don't.

16        Q.   Okay.  Do you believe, sir, that it was in the interests of

17     UNPROFOR to get a full picture of the event before acting, before

18     engaging in combat with another armed force?

19        A.   I'm -- don't agree that I was about to engage myself directly in

20     combat with another armed force at that stage, but I would agree also

21     that it is in my business at the time to make a decision and to gather

22     information in order to do so.

23        Q.   I'm sorry, sir.  I'm confused by your answer.  Were you not the

24     commander of the Rapid Reaction Force --

25        A.   You have made -- you have made two -- in your questions you are

Page 7507

 1     asserting that I am about to do something.  I am arriving at a decision

 2     before I decide what to do, and I am not agreeing with the way you have

 3     constructed that question.

 4        Q.   Was the Rapid Reaction Force directly under your command and did

 5     you personally conduct artillery attacks, i.e., combat fire missions,

 6     against the Bosnian Serb army selecting targets yourself?

 7        A.   Subsequent to making this decision I conducted such operations,

 8     and before that and during that time, I was in command of the

 9     Rapid Reaction Force.

10        Q.   Thank you.  Before we lose sight of it Your Honours, I believe

11     the document on the right-hand side of the screen, 65 ter 10239, has

12     still not been tendered.  At this time I would tender it into evidence as

13     the next available Defence exhibit number.

14             MR. GROOME:  No objection, Your Honour.

15             JUDGE ORIE:  Yes.  You tender it as -- from the bar table,

16     Mr. Ivetic?

17             MR. IVETIC:  No, Your Honour.  I've confronted the witness with

18     it, and I believe as a document being confronting of a witness that it --

19     it gets introduced as a matter of cross-examination, but if we need to do

20     it as a bar table, I will make a submission as to a bar table.

21             JUDGE ORIE:  No, I'm making this observation because the witness

22     hasn't seen it ever, so -- there is no objection at the same time so

23     there seems to be no real problem, but the witness cannot say anything

24     about it, apparently hasn't seen it at the time, only now sees it.

25     Therefore, it is a document which describes events about which the

Page 7508

 1     witness testified and that I think in the standing practice of this

 2     Chamber there is justification for admission from the bar table not later

 3     but immediately.

 4             Under those circumstances, Mr. Registrar.

 5             THE REGISTRAR:  Exhibit D139, Your Honours.

 6             JUDGE ORIE:  D139 is admitted into evidence.

 7             MR. IVETIC:  Thank you.  Now with Your Honours' leave I would

 8     like to take a moment to listen to the audio recordings of two of the

 9     intercepts that the Prosecution introduced into evidence last week.

10     Since these are already admitted by Your Honours as exhibits and insofar

11     as I have conferred with my client and with the Office of the Prosecutor,

12     and we are all in agreement that the transcripts that were admitted with

13     the -- with these audio recordings do appear to comport to the actual

14     text -- actual words spoken, I would propose that we play the selection

15     one time through rather than doing it twice for purposes of saving time.

16     It is approximately -- I think this one is a 16 minute clip, and again

17     these are already into evidence, so.

18             JUDGE ORIE:  Yes.  If we play them, the -- in evidence is also

19     the English translation of those, so therefore we can rely on those

20     English translations.

21             Now --

22                           [Trial Chamber confers]

23             JUDGE ORIE:  Mr. Ivetic, the Chamber wondered why we have to

24     listen to them, because the witness -- I don't know what -- what language

25     is spoken, I don't remember that.  Is that English or ...

Page 7509

 1             MR. IVETIC:  Ah, good point.  Actually it's B/C/S is the

 2     language.

 3             JUDGE ORIE:  So we ask the witness now to listen to a language he

 4     is not familiar with, and apparently the parties agree that the English

 5     text is in evidence and is accurate.

 6             MR. IVETIC:  Yes, Your Honours.  And I believe that the procedure

 7     has been in the past where a video has been in B/C/S to have English

 8     speaking persons follow the English transcript.  Are we departing from

 9     that procedure?

10             JUDGE ORIE:  No.  That is when I think -- usually that's done

11     when a document is not yet in evidence and that we -- but here I leave it

12     to you whether you want to play the whole 16 minutes in whatever

13     language.  It's all in evidence.  If you have provided the booth with the

14     accurate translations, then that might save time and not listen to it

15     twice.

16             Have you provided the booth can with the English transcripts?

17             MR. IVETIC:  They're in e-court, Your Honour.  They're not my

18     exhibits, so I did not --

19             JUDGE ORIE:  Well, if you want to use them, it's common that

20     you -- if you have the English language, why not put the relevant

21     portion.  If the witness has any problem in acknowledging that these are

22     the words spoken at the time we'll hear from him, and otherwise we can

23     rely on the text as it is in evidence.  And you can put whatever portion

24     you like.

25             MR. IVETIC:  I can, Your Honour, except I'm receiving specific

Page 7510

 1     instructions from my client that he is desirous of having the actual

 2     audio heard so that the public can confirm his actual words.

 3             JUDGE ORIE:  Well, if the parties do not disagree on it, then

 4     whether the public agrees with it seems to be not a relevant issue, and

 5     the -- of course the way how we proceed here is -- is determined by the

 6     Chamber.

 7                           [Trial Chamber confers]

 8             JUDGE ORIE:  Where there are very specific instructions,

 9     Mr. Ivetic, if you manage to consult with your client in, well, let's

10     say, in one minute, that the Chamber would not oppose it if it's done in

11     low voice.  Otherwise, we would proceed and you could do it during the

12     break, but if you want to do it now short, that's accepted.

13             MR. IVETIC:  Let me try to do it shortly, Your Honours.

14                           [Defence counsel and accused confer]

15             MR. IVETIC:  Your Honours --

16             JUDGE ORIE:  Mr. Ivetic.

17             MR. IVETIC:  -- what I propose after consultations is that I

18     leave this part for the next session in which time I will be able to then

19     get transcripts into the hands of all the booths.

20             JUDGE ORIE:  Yes.

21             MR. IVETIC:  And I will do so for the --

22             JUDGE ORIE:  But first of all, whether we need to listen to it at

23     all for 16 minutes.  If there are specific portions you want to put to

24     the witness, you can do that on the basis of the transcript just by

25     reading it.

Page 7511

 1             Now, we heard an explanation a minute ago that Mr. Mladic

 2     apparently seeks his -- his voice to be heard.  Now, if that is the real

 3     problem, then of course the Chamber would not oppose having a small

 4     portion of 15 or 30 seconds being played so that it's -- it's clear that

 5     Mr. Mladic is speaking here, but we want to be very practical.  There's

 6     no disagreement between the parties, and we can best work on the basis of

 7     the transcript, and that's how the Chamber would be inclined to proceed,

 8     and it's finally the Chamber who is supervising the conduct of the

 9     proceedings.  This is already for your consultations.

10             MR. IVETIC:  I agree, Your Honour.  I would only add to that that

11     listening to the audio shows the demeanour of General Mladic while making

12     the comments and the manner of how -- of the seriousness of the

13     situation, and therefore goes to highlight a difference in the behaviour

14     of General Mladic as is evidenced in the audio and the -- the manner in

15     which it is presented within the witness's statement and the --

16             JUDGE ORIE:  If you want to select one or two portions where that

17     clearly appears, well, let's say then we don't have to listen for the

18     whole 16 minutes on matters which we can -- a small portion you selected

19     carefully, well let's say anything between 30 or 60 seconds or perhaps

20     one and a half minutes and then we would proceed in that way.

21             Mr. Groome.

22             MR. GROOME:  Your Honour, I rose just to inform Defence counsel

23     that last week we provided transcripts to the booths of many of these

24     tapes.  It may be the ones -- I'm not sure of the ones he wishes to play,

25     but it may be that the booth already has the transcripts.

Page 7512

 1             JUDGE ORIE:  It could be.  It's something to be explored during

 2     the next break.  You may proceed, Mr. Ivetic.

 3             MR. IVETIC:  Thank you.

 4        Q.   I would like to take a moment to look at something from your

 5     book, sir, and it's 65 ter number 25919 in e-court.  And if we can call

 6     up page 162 of the same.  And I would like to ask you about the last

 7     paragraph of page 317 on the right-hand side of the page in e-court.  And

 8     the selection is the last paragraph of the page on the right.  If we can

 9     zoom in on that and have all of us follow along as I present the same.

10             "However, the opponent I ultimately came to fight, the Bosnian

11     Serbs, were operating in company and battalion groupings supported by

12     artillery - and so to have any prospect of wining, I needed under my hand

13     battalions from single nations that I could manoeuvre together with an

14     artillery group.  As events in that year unfolded, these assets were

15     provided by France, Britain, and the Netherlands."

16             First of all, sir, is it correct that the Rapid Reaction Force

17     that was under your hand was provided by NATO Member Nations?

18        A.   Yes.  Those nations are members of NATO, yes.

19        Q.   And am I correctly interpreting this to mean that you came to

20     Bosnia with the ultimate aim to fight the Bosnian Serbs?

21        A.   No.  I don't understand how you can ask that question.

22        Q.   Well, it depends on the interpretation of "I ultimately came to

23     fight," and that's why I was asking you to comment upon --

24        A.   Well, if we could just remind me what chapter we're in in this

25     book.

Page 7513

 1        Q.   This is page 317 of your book, sir.  I'm not familiar with the

 2     precise chapter --

 3        A.   Well, if --

 4        Q.   -- [overlapping speakers] --

 5        A.   -- we can zoom back or out, I can then and we can turn some

 6     pages.

 7             JUDGE ORIE:  Could it assist at the --

 8             MR. IVETIC:  Chapter 8.

 9             JUDGE ORIE:  -- top of the -- the top of the page reads

10     "Direction:  Setting the Purpose for the Use of Force."

11             THE WITNESS:  Yes.  I think that's a separate chapter, but I'm --

12     I'm not -- I wasn't sure, and I'd then like to turn over the page because

13     I think I'm using this as an example of a -- of discussing another point

14     entirely.

15             JUDGE ORIE:  But whatever it is, Mr. Ivetic has asked you the

16     question.  You say you can't ask this question on the basis of this.

17     Mr. Ivetic has said that depends on the interpretation.  Apparently your

18     interpretation is one which does not allow to draw such a conclusion.

19             THE WITNESS:  That is correct, yes.

20             JUDGE ORIE:  Let's proceed.

21             MR. IVETIC:

22        Q.   I would like to turn to page 184 of this document, which is page

23     360 on the left-hand side, also from your book.  And the selection

24     begins:

25              "Having made the threat, we could be sure Mladic would take

Page 7514

 1     measures to counter it.  I explained I was quite happy to fight the

 2     Bosnian Serbs but not on only one pretext, defence of the British, and in

 3     the one place where they had the initiative, and I was unable to

 4     reinforce and had no weapons other than airpower in range."

 5             Now, I wanted to make sure that I didn't misinterpret this, but

 6     is it correct that you said that you were quite happy to fight the Serbs,

 7     that this was at the time of the London Conference which was several

 8     years prior to your eventual deployment as BH commander of UNPROFOR --

 9        A.   No.  You've got it quite wrong.  The London Conference is what

10     I'm talking about, and the London Conference in question is 21st or

11     thereabouts of July of the year 1995.  Perhaps someone can help me with

12     the date, but I think it's about then.  And this is conversation that is

13     being discussed here is in the evening before that conference.

14        Q.   Okay.  Thank you for clarifying that.  I'd like to turn again to

15     your testimony from the Karadzic trial, 1D596 in e-court.  1D00596, and

16     page 59 of the same, which correlates to transcript page 11535, and here

17     you are being talked about page 366 of your book.  Which for purposes of

18     the record would be page 187 of the book in e-court, 65 ter number 25919

19     if anyone needs to check later.  And I begin with line 1, which is the

20     question, which is citing to you a portion of the book.

21             "'All the bombing was aimed at undermining him as a commander,

22     but I also sought to attack specifically his needs to control.  An

23     example of such a target was a military facility in the village where his

24     parents were buried.  I was --"

25              "Pardon.

Page 7515

 1              "' ... where his parents were buried.  It was attacked

 2     repeatedly, in the knowledge that in Mladic's culture, a failure to

 3     protect the bones of one's ancestors is something of a shameful

 4     dereliction of family duty.  Matching these attacks, and to increase the

 5     pressure, we told the Bosniak press that Mladic could not look after his

 6     parents' remains.'

 7             "General, which mandate allowed you to attack a culture in this

 8     way and inflict such humiliation?

 9             "A. Again, the mandate was that that flowed from the security

10     zones -- exclusion zones and the safe areas and the London Conference,

11     and the -- if General Mladic was humiliated, all he had to do was to

12     stop."

13             If we can go on to the next page.  I apologise.  That's it.

14             Sir, does this selection that we have now reviewed truthfully and

15     honestly depict your knowledge and testimony and your answer to the

16     question that was posed?

17        A.   Yes, it does.

18        Q.   Would the statement that all the bombing was aimed at undermining

19     him as commander refer to General Mladic?

20        A.   Yes.

21        Q.   And was it in fact UNPROFOR or NATO that is the "we" in your

22     answer when you say:

23             "We told the Bosniak press that Mladic could not look after his

24     parents' remains"?

25        A.   That was UNPROFOR in my headquarters.

Page 7516

 1        Q.   Okay.  Do you actually -- let me ask you this, sir:  Did you

 2     view -- did you view the air strikes and the artillery strikes against

 3     the Bosnian Serbs in August and September of 1995, as a personal

 4     engagement between you and General Mladic, on a personal level?

 5        A.   On -- as I say in the same block of evidence that you're drawing

 6     these quotes from, it was personal in the sense that I am trying to get

 7     him, the commander, to change his mind.  The -- it wasn't personal in any

 8     other way.

 9        Q.   Would you agree with me that the mentioning in the Bosniak press

10     of the bombing of the location near a grave site amounts to war

11     propaganda?

12        A.   No.

13        Q.   Was it your intelligence that General Mladic's parents were

14     actually buried in that cemetery?

15        A.   He told me they were.  That may have been a lie, but he told me

16     they were at the meeting we had in Belgrade.

17             MR. IVETIC:  I would like to now call up 1D00575 in e-court, and

18     we'll start with the first page in both languages.

19        Q.   And first of all, if we look at the first page, I think you'll

20     see that this is dated the 4th of September, 1995, and it is sent to

21     General Janvier personally, and if we need to we can turn to it, but I

22     put to you, sir, that the last page shows this to have been issued by

23     General Mladic himself.  The question I have for you is do you recall,

24     even though you were not personally listed as a recipient, having

25     received such a letter written by General Mladic on the 4th of September,

Page 7517

 1     1995, on the topic of the bombings by the NATO forces and the

 2     Rapid Reaction Force?

 3        A.   I'm not sure I ever saw a copy of this.  I was certainly told of

 4     its existence and the general spirit of the letter, if you like.

 5        Q.   Let's take a look at some of those items that are contained in

 6     the letter.  It begins:

 7             "Dear General, I have received your letter of 3 September 1995 in

 8     which you inform me that you have rejected my letter and that this will

 9     be your reason for renewed bombing of Republika Srpska."

10             Now, he is of course referring to General Janvier, your superior.

11     Do you or did you have knowledge that General Janvier rejected a letter

12     from General Mladic and called for renewed bombings?

13        A.   Yes.

14        Q.   Let's continue.

15             "Due to the conditions you have imposed, I am unable to reply to

16     you in the usual manner, and bearing in mind that you have breached our

17     agreement and made public my reply to your previous letter, which you

18     accepted in full at our meeting in Zvornik on 1/2 September 1995, I am

19     forced to respond publicly to your latest letter and inform the public of

20     the following facts."

21             First of all, sir, do you recall that this particular letter was

22     published by the media?

23        A.   No, I don't remember that.

24        Q.   I'd like to continue.

25             "I have never heard of or even read in literature about a case

Page 7518

 1     that correspondence between two generals can be used in the international

 2     community as the reason for an ultimatum, blackmail, and pressure on one

 3     side in a conflict - and ultimately for bombing of a people.  I wonder

 4     why this is so.  Perhaps the answer lies in the fact that the Serbian

 5     people are still kept in total isolation and that a public image of the

 6     Serbian people has been created which suits the Serbs' enemies and their

 7     mentors.  At the same time, Muslim and Croatian representatives are in

 8     daily contact with representatives of the international community, with

 9     universal assistance of your forces and other bodies of the international

10     community, which extend numerous services to them."

11             Is it correct, sir, that during this time period UNPROFOR was

12     continuing to have daily contact with representatives of the BiH and the

13     Bosnian Croat factions?

14        A.   In Sarajevo, yes.

15        Q.   Did those daily contacts continue after the BiH Muslims and the

16     Bosnian Croats started their offensive against the Bosnian Serb side?

17        A.   Yes.

18        Q.   If we could return to the letter.

19             "With your letter you have created conditions for an additional

20     media campaign and pressure on the Serbian people and Republika Srpska,

21     thus preventing the representatives of our people from actively

22     participating in the peace process and creating for yourself conditions

23     to justify the brutal aggression of NATO and the forces under your

24     command against Republika Srpska.

25             "At the same time, a number of details important for the complete

Page 7519

 1     and accurate understanding of the whole situation and the balance of

 2     forces in the conflict, and all the factors relevant for the latest

 3     escalation of the conflict, have for incomprehensible reasons remained

 4     obscure.

 5             "Why did you not tell the public the real truth about the

 6     Markale II incident on 28 August 1995?"

 7             First of all, sir, while we wait for the next page to come up,

 8     would you agree with me that thus far the language and tone of the letter

 9     is rather reasonable considering the fact that your forces had been

10     bombing and artillery barraging the Serbs now for approximately four to

11     five days by the time of this letter?

12             JUDGE ORIE:  Mr. Groome.

13             MR. GROOME:  Your Honour, if the witness is going to be asked to

14     comment on the characterisation of the letter, it's a six-page letter, I

15     would ask that he be given the opportunity to read the entire letter

16     before he makes such a statement.

17             JUDGE ORIE:  Perhaps, Mr. Ivetic, whether against this and that

18     background the witness considers it reasonable or not may be a matter

19     rather for the Chamber to assess and determine, unless there's any

20     specific reason why you want the witness's opinion, because that's what

21     you're asking about it.

22             MR. IVETIC:  Why don't we wait for that opinion until the next

23     section which relates directly to conversations between General Mladic

24     and General Smith.  If we can turn to the second page in the English and

25     also -- this is the beginning -- the end of the first page in B/C/S and

Page 7520

 1     will bleed on to page 2 in the B/C/S.  The first paragraph is contained

 2     on the first page and the remainder is on the second page.  So if you

 3     could follow along, sir.

 4             "Why have you not informed the public about the content of the

 5     two telephone conversations I had with General Rupert Smith in connection

 6     with this serious incident of which there is an audio recording?

 7             "Why did a mixed commission of experts not inspect the site, as

 8     General Smith and I had agreed?

 9             "Why did UNPROFOR forces and the Muslim side not allow neutral

10     ballistic experts to inspect the site?

11             "Why are you not informing the public about the role of the

12     Muslim side and intelligence service experts of a foreign power in

13     staging the Markale II incident?

14             "Why has the public never been given true information about the

15     scenario of Markale I?

16             "Are you hide from the public the truth about Markale I and

17     Markale II so that you can justify the aggression of NATO and forces

18     under your command against Republika Srpska?"

19             I'd like to ask you, sir, now isn't General Mladic correct that

20     your full and comprehensive report was specifically given with

21     instructions not to allow public scrutiny of your findings?

22        A.   I -- that was suggested on its covering letter, yes, to the -- to

23     the Zagreb headquarters, yes.

24        Q.   Was that a decision that you made?

25        A.   I told you when you asked this the other day.  I didn't want a

Page 7521

 1     whole lot of sort of expert commentary going on with people dining a la

 2     carte off the evidence.

 3        Q.   Isn't it also accurate that you didn't want people questioning

 4     your justification for air strikes and artillery strikes against the

 5     Bosnian Serbs?

 6        A.   No.  I've -- I was quite confident and remained confident in my

 7     decision.

 8        Q.   If we can read the next two paragraphs:

 9             "Are you doing it to justify the brutality of the aggression,

10     which went further than a response to Markale II?  Even if your

11     accusations about the Markale had been correct, in response to one

12     120-millimetre mortar shell (and you know the truth about that) you fired

13     thousands of high explosive artillery projectiles and engaged more than

14     500 fighter planes, which unloaded their lethal cargo on various, mostly

15     civilian, targets.

16             "Why do you not inform the public that the targets of your and

17     NATO forces were several dozen, and in some cases more than 100

18     kilometres from Sarajevo, and why have you fired indiscriminantly on

19     civilian and military targets, ranging from village stables, civilian

20     settlements, scientific, educational, and medical institutions, churches,

21     and warehouses to military features."

22             Is General Mladic correct that you -- or that -- pardon me, that

23     the NATO forces used more than 500 fighter planes to bomb the Bosnian

24     Serbs after you initiated the procedure with Admiral Smith to initiate

25     air strikes against the Bosnian Serbs in August and September of 1995?

Page 7522

 1        A.   I don't think that's the correct figure, but it would be easy

 2     enough to check, I would think, in the record.

 3        Q.   Is it correct that the RRF, the Rapid Reaction Force under your

 4     command, and the NATO forces under the command of Admiral Smith struck

 5     targets, dozens, and even more than 100 kilometres away from Sarajevo?

 6        A.   There were some more distant targets from Sarajevo, yes.

 7        Q.   Okay.

 8        A.   But those were not attacked by the RRF.  The RRF were in the

 9     vicinity of Sarajevo.

10        Q.   If we could finish off the last four paragraphs of this page.

11             "Are you aware that many of the targets were passive and could

12     not in any way have provoked the Markale II scenario - and that your

13     mandate did not give you the right to fire on them?  On the contrary,

14     according your mandate you should have protected them.

15             "I would remind you, General, that we are familiar with the

16     mandates of UNPROFOR, the rapid reaction forces, and NATO aviation from

17     numerous contacts with you and your predecessors.

18             "According to the UN Security Council resolution, the rapid

19     reaction forces have a mandate to protect UNPROFOR units in case they are

20     attacked; they are not intended for the destruction of infrastructure,

21     civilian targets, or the military capacities of one party to the

22     conflict.

23             "According to UN Security Council resolutions, NATO aviation has

24     a mandate only within the context of the deny flight and safe area

25     missions, to prevent direct attacks on United Nations' forces in the

Page 7523

 1     course of their humanitarian mission, and to prevent combat flights and

 2     neutralise combat equipment who's movement or fire threatens the

 3     population in safe areas.  NATO aviation does not have a mandate to fire

 4     on stationary targets and military features, particularly in the depth of

 5     the territory which do not in any way threaten the safe areas.  Nor does

 6     it have the right to retaliate and destroy the infrastructure and

 7     economic and military capacities of one of the warring parties in order

 8     to change the balance of forces and their operational and tactical

 9     position."

10             Sir, do you find fault with the matters that General Mladic

11     brought to the attention of General Janvier?  I mean, are these very

12     appropriate questions to be raised?

13        A.   Well, it's completely failing to remember that the

14     London Conference had altered the situation.  He is not including any of

15     that in this letter.  And the result of the London Conference to my

16     almost certain knowledge was briefed to him and the leadership of the

17     Bosnian Serbs by a group of senior air force officers from Britain,

18     America, and I think France before the end of August.  So he either

19     didn't pay attention or didn't understand what was being told to him at

20     that time or has carefully left it out in writing those paragraphs.

21             JUDGE ORIE:  Mr. Ivetic, I'm looking at the clock.  If this would

22     be a suitable time for the break.

23             MR. IVETIC:  It would, Your Honour.  The section I have next

24     takes longer than two minutes.

25             JUDGE ORIE:  Yes.  Mr. Smith, you may follow the usher.  We'll

Page 7524

 1     take a break.

 2                           [The witness stands down]

 3             JUDGE ORIE:  Mr. Ivetic, how much time would you still need?

 4             MR. IVETIC:  The way I'm looking at -- through my questions, I

 5     believe I will still need approximately maybe as much as two hours.

 6             JUDGE ORIE:  Yes.

 7                           [Trial Chamber confers]

 8             JUDGE ORIE:  Mr. Ivetic, the Chamber has carefully considered --

 9     Mr. Groome.

10             MR. GROOME:  I was going to simply ask whether we should keep the

11     next witness here in the building or release him for the day.

12             JUDGE ORIE:  The next witness can be released for the day.

13             Mr. Ivetic, the Chamber has carefully followed the development of

14     the cross-examination as -- has looked at what areas you wanted to

15     explore in much, much detail, what you wanted to do as far as listening

16     for 16 minutes to a portion of a transcript which is already in evidence.

17     We have also considered that a number of questions you wanted to put to

18     the witness were read out but they were not answered.  That saves time.

19     The Chamber has decided that you have one hour left for your

20     cross-examination, which will start in -- the remainder will start in 20

21     minutes from now after the break.

22             MR. IVETIC:  Can I remind Your Honours that the Prosecution was

23     granted additional time even though they didn't ask for it?  And I would

24     like for there to be equality of arms, Your Honours.  All these questions

25     are relevant.  All these matters are relevant.  There's not a single

Page 7525

 1     portion that I have gone through that is not precisely relevant to this

 2     case and the witness's credibility or our allegations of his lack of

 3     credibility.

 4             JUDGE ORIE:  As I have said before, the Chamber has considered

 5     the way in which you conducted your cross-examination, has, of course,

 6     included the relevance, the level of relevance, the time spent on certain

 7     matters, the time also spent on matters where the witness apparently was

 8     totally unaware of.  Not to say that that's always irrelevant, but this

 9     is the decision the Chamber has taken on the matter.

10             We'll take a break and we'll resume at 20 minutes past 12.00.

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

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

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

14             Mr. Lukic, I see you're on your feet.  I'd like to say one more

15     word before the witness comes into the courtroom.  If Mr. Ivetic wants to

16     draw our attention to the fact that the Baxter report may have ignored

17     relevant information which was available, which is a relevant point to

18     raise, and if he will suggest in the questions that the witness was to be

19     blamed for relying on such a report, that can be done in seven minutes

20     instead of taking ages and ages for that.  That is the major issue apart

21     from a few others I mentioned.

22             Mr. Lukic.

23                           [The witness takes the stand]

24             MR. LUKIC:  Thank you, Your Honour.  Still, I know that

25     Mr. Ivetic has a lot of documents to go through with this witness, and we

Page 7526

 1     were leaning on your guidances, Your Honours.  Respectfully, you have

 2     said for 92 ter witnesses that the Prosecution has half an hour.  We know

 3     that the Prosecution for this witness used 2 hours and 43 minutes.  If we

 4     go in maths, it would be more than 12 hours for our cross-examination.

 5     All we ask is to have the remaining of these two hours so Mr. Ivetic can

 6     go through all the documents he has to go through.  And there is one

 7     video he has to go through.

 8             The Prosecution was able to introduce some audios by just

 9     proposing them, but we have to ask the witness about this video, and we

10     are not going to go through the audios we mentioned before, but if you

11     allow us, we can shorten the time as well by having this video played

12     only once if it's possible to have it translated immediately.

13             JUDGE ORIE:  That, of course, depends on the situation, but --

14     Mr. Groome.

15             MR. GROOME:  Your Honour, if it assists the Chamber, as it stands

16     now I have no redirect for this witness.

17             JUDGE ORIE:  No redirect, which certainly gives some additional

18     time, which ...

19                           [Trial Chamber confers]

20             JUDGE ORIE:  We are now aware that there would be more time

21     available, which depending on how the time is used may become available

22     to Mr. Ivetic.  So the ruling stands at this moment, but there's a fair

23     chance that the extra time remaining may become available to Mr. Ivetic.

24             MR. LUKIC:  Thank you, Your Honours.

25             JUDGE ORIE:  Nevertheless, my initial observation stands firmly,

Page 7527

 1     if I could say so.  It's a matter of how to point at issues you want to

 2     make.

 3             Mr. Ivetic, you may proceed.

 4             MR. IVETIC:  Thank you, Your Honour.

 5        Q.   I wish to move along to another topic, humanitarian convoys.  At

 6     paragraph 41 of your statement, which is P785 MFI, page 10 in the

 7     English, page 8 in the B/C/S, you talk about how General Mladic demanded

 8     reciprocity in the delivery of aid, i.e., that for every convoy allowed

 9     into the enclaves, one should be equally delivered to the Serbs.

10             Why were you and UNPROFOR treating the parties differently as to

11     the distribution of aid so as not to agree to an equal distribution as

12     proposed by General Mladic?

13        A.   UNPROFOR did not distribute aid.  That was the UNHCR.  UNPROFOR's

14     business was to -- to protect the convoys and see -- and see that they

15     got delivered.

16        Q.   I wish to take a look at -- well, various points of your

17     statement.  For instance, at paragraph 50, which is page 12 in the

18     English, and page 8 in the B/C/S, you complain of detailed searches of

19     aid vehicles.  Would you agree with me that given the concerns of

20     smuggling, such searches were appropriate and justified by the Bosnian

21     Serb authorities?

22        A.   I'm just looking at where I'm supposed to have complained.

23        Q.   Paragraph 50, sir.  "I can't remember whether it was on my way

24     out or in --"

25        A.   I've got it.

Page 7528

 1        Q.   Okay.

 2        A.   The -- I can understand very well while -- why the -- Mladic and

 3     his forces wanted to search the convoys.  Nevertheless, that caused

 4     considerable delay and in some cases things, material and so forth, was

 5     taken off them by the searchers.

 6        Q.   Were you aware that arms were reaching the ABiH forces through

 7     humanitarian aid convoys?

 8        A.   I was aware that it had happened.  Whether it happened in the

 9     year I was in command, I don't know, and I don't think it did.

10             MR. IVETIC:  Okay.  If we can look at 1D605.

11        Q.   And as we wait for that document to come up on the screen, I

12     think we'll see it as a one-page document.  From the date it is the 29th

13     of May, 1993.  From the stamp on the bottom left it is from the Bosnian

14     embassy in Zagreb to the commander of the BiH 5th Corps in Bihac.  The

15     document discusses various military gear that is listed, and it is

16     identified that it will be sent via a vehicle identified as UNHCR 103709.

17             First of all, sir, looking at this list of -- of military

18     materiel and ammunition, would you agree that the amounts are rather

19     significant?

20        A.   There's plenty of ammunition there, yes.

21             JUDGE ORIE:  Do we have a time frame for this?

22             THE WITNESS:  It's 1993, I believe.

23             MR. IVETIC:  1993, yes.

24             JUDGE ORIE:  So that's outside the scope of -- that the amount is

25     significant, the Chamber can see that.  I mean, has the witness any

Page 7529

 1     knowledge about this incident?  Then we can ask him questions about it.

 2     He said, "I know that it happened in the past."  He's not aware of it

 3     happening during his tenure.

 4             Is there any disagreement, Mr. Groome, about this document as

 5     that this reported, apart from whether it arrived or not.

 6             MR. GROOME:  Your Honour, I can't find any record of this

 7     document in my our system, so I'd be unprepared to agree to the

 8     information contained in it.

 9             JUDGE ORIE:  But let's -- let's try to elicit from the witness

10     evidence he can give rather than whether 3.570 pieces of EKs is

11     significant, yes or no.  That's --

12             MR. IVETIC:  Thank you.

13             JUDGE ORIE:  It seems high number.  Yes.  Bullets, 50.000, yes.

14     Please proceed.

15             MR. IVETIC:

16        Q.   Sir, a few moments ago you told me that you did have knowledge

17     of -- that it happened prior to your time.  Would this be the type of

18     information that you had of incidents prior to your tenure as BH

19     commander when UNHCR vehicles were utilised by the ABiH to smuggle

20     weapons into its forces in the enclaves?

21        A.   No, I had no such information such as and this doesn't actually

22     say it happened.  The -- the -- I think what I had been told was

23     something to the effect that it had happened and this was one of the

24     reasons why the UN in the past had agreed to convoys being searched.

25        Q.   I would like to look at something from your time period.  It is

Page 7530

 1     65 ter number 25915.  It is a Prosecution 65 ter document for which

 2     unfortunately in e-court I could not find the English translation,

 3     although I do know that one exists as I have seen one, but I would like

 4     to just read for you the first paragraph and ask you about this.  This

 5     is, first of all, 12th of May, 1995, and the first paragraph in B/C/S

 6     reads as follows, and hopefully you'll get the translation:

 7             [Interpretation] "Based on the available information, the members

 8     of UNPROFOR, UNHCR, and other international organisations are illegally

 9     transporting fuel for the needs of the Muslims in the following enclaves:

10     Sarajevo, Gorazde, Zepa, and Srebrenica.  They smuggled the fuel in

11     double-bottom tanks and tanks which are bigger than usual in combat and

12     noncombat vehicles.  They then empty these tanks in the enclaves and

13     leave smaller amounts of fuel in the tanks which is sufficient for the

14     return from the enclaves into the territory of the FRY and the RS."

15             [In English] Sir, were these kinds of allegations brought to your

16     attention during your tenure as BH commander?

17        A.   I don't recall this particular correspondence at all.

18        Q.   Sir, if I can direct you to paragraph 92 of your statement.  You

19     seem to identify that General Gvero had complained to you that the UN in

20     Srebrenica were supplying fuel to the defenders.  I'm asking about this

21     type of information, not this document?

22        A.   I see.  Then, yes, I can -- that -- that this was alleged to have

23     happened I heard, yes.

24        Q.   Did you undertake any steps to try and stop such activities?

25        A.   Certainly.  I set out to find out whether it was happening or

Page 7531

 1     not, and I don't recall that I found any evidence that it was.

 2        Q.   Okay.  If I can look at paragraph 32 of your statement, which is

 3     P785 MFI'd --

 4             JUDGE MOLOTO:  Before you do that, just some clarification from

 5     you, please.  At paragraph -- at page 57, line 15 to 16, you asked the

 6     question:

 7             "Were you aware that arms were reaching the ABiH forces through

 8     humanitarian convoys," and in support of that you showed this exhibit

 9     that's on the screen coming from Embassy of Bosnia and Herzegovina.

10             Now, I do not see from the document, and if you could help me I'd

11     appreciate it, from the face of the document how it is linked to being --

12     to this consignment being transported through aid convoys.

13             MR. IVETIC:  Your Honour, the -- the vehicle identified has a

14     UNHCR number.  The witness had testified the UNHCR was doing the aid

15     convoys, and perhaps we can ask the witness if, in fact, the UNHCR

16     vehicles, as part of convoys, would have had these designations as UNHCR

17     registration numbers.

18             JUDGE MOLOTO:  And the UNHCR number, is it here on this document?

19             MR. IVETIC:  Yes, it is, Your Honour.

20             JUDGE MOLOTO:  This --

21             MR. IVETIC:  At the end of the list.  At the end of the list it

22     says the vehicle has UNHCR registration number which I read out.

23             JUDGE ORIE:  Yes.

24             MR. IVETIC:  10379.

25             JUDGE ORIE:  Isn't it true that we were not shown the second

Page 7532

 1     page?  This is on the second page.

 2             JUDGE MOLOTO:  I'm looking at the page that we are looking at.

 3             JUDGE ORIE:  Yes.

 4             MR. IVETIC:  I apologise.  I had that it was a one-page document

 5     in my notes.

 6             JUDGE ORIE:  Your suggestion is that it was a UNHCR vehicle which

 7     was used and, for example, not false plates being used on another

 8     vehicle.  That's -- Mr. Ivetic, I'm just trying to understand your

 9     questioning and the probative value of this document.

10             MR. IVETIC:  Well, Your Honours, this is a document that I

11     haven't tendered because this witness said he didn't have knowledge of

12     this particular incident.  I was exploring his --

13             JUDGE ORIE:  I was asking whether it was part of the suggestion

14     in your question that the mentioning of this number would be that UNHCR

15     vehicles were used or that you also considered the possibility that false

16     plates were used.

17             MR. IVETIC:  There are other possibilities as well, Your Honour.

18             JUDGE ORIE:  Yes.  Okay.  Fine.  Then that's clear to me.  Please

19     proceed.

20             MR. IVETIC:

21        Q.   If we're -- I apologise.  I intended to call up your statement,

22     P785, marked for identification, paragraph 32, which is page 8 in the

23     English and page 7 in the B/C/S.  And I will be dealing with the English

24     wherein you state:

25             "The Bosnian Army was making open preparations to fight on in the

Page 7533

 1     spring.  UNPROFOR observed and were told by the Bosnian Serbs that one

 2     the air trips at Tuzla was being used at night.  Mladic alluded to this

 3     during the course of the meeting.  Investigating these events caused a

 4     degree of friction between NATO and the United Nations."

 5             What I want to ask you is what was the friction between NATO and

 6     the United Nations about?

 7        A.   About what we'd seen.  The argument that was going on was that

 8     the -- NATO no-fly zone was a -- should have been able to see these

 9     aircraft, and so why didn't we know about them.  We'd seen one at least

10     either just landing or -- I think it was just taking off.  I can't

11     remember the exact situation.  And as it was about the same time as this

12     meeting with General Mladic had taken place and we'd -- and he'd told me

13     these things were happening.  And we were being told that they -- it

14     was -- then we hadn't seen any aeroplanes.  What we were seeing was

15     lights of aeroplanes going in to land at Belgrade and other things, and

16     there was this disagreement running between the organisation on the

17     ground and the organisation in the air, if you like.  Between the UN on

18     the ground and NATO in the air.

19        Q.   Was it also part of the observations of the UN observers that the

20     Bosnian Muslim forces utilising helicopters which they had painted white

21     to mimic UNPROFOR helicopters were then transporting arms and munitions

22     from Tuzla airport to the enclaves of Srebrenica and Zepa?

23        A.   No.  I don't think we did observe that, and we didn't observe any

24     helicopters other than our own painted white.

25        Q.   If we can look at 1D601 briefly.  And while we wait for that, I

Page 7534

 1     believe it's dated the 14th of February, 1995, and the cover page

 2     indicates it's a letter from General Mladic to commander -- or pardon me,

 3     for General Smith.  If we can go to the second page of the same.  And if

 4     we could take a look at it.  This indicates:

 5             "Dear General, we are gravely concerned over the frequent use of

 6     Tuzla airport by the Muslim side.  The aircrafts are bringing weapons,

 7     ammunition, and war materials for their needs.

 8             "Unfortunately, this pirate activity of their aircraft is enabled

 9     by the NATO Air Force, and the Muslim army does not allow your forces to

10     control the roads -- the loads," pardon me.

11             "I'm sure you share my opinion that these activities are

12     seriously jeopardising the signed agreements and represent a serious

13     breach of the truce and of relevant Security Council Resolutions.

14             "I ask you to take urgent measures to stop these

15     peace-threatening activities, otherwise we will be compelled to take the

16     necessary measures regarding the Muslim side's violations of the Tuzla

17     safe area, which is, in the presence of your forces, turning into a war

18     base for Islamic countries."

19             If I can ask you, sir, do you recall having received this protest

20     letter from General Mladic?

21        A.   Yes, I do.

22        Q.   And do you believe that these complaints from General Mladic were

23     substantiated?

24        A.   Yes.  We saw it.  I just told you this.  We -- we -- at about the

25     time this letter is arriving, I am receiving reports of an aeroplane

Page 7535

 1     having been seen and so forth.

 2             MR. IVETIC:  Your Honours, I would tender this document as the

 3     next available 1D exhibit number.

 4             MR. GROOME:  No objection.

 5             JUDGE ORIE:  Mr. Registrar.

 6             THE REGISTRAR:  Your Honours, 1D601 shall be assigned Exhibit

 7     D140.  Thank you.

 8             JUDGE ORIE:  D140 is admitted.  Please proceed.

 9             MR. IVETIC:

10        Q.   When you mentioned strife between NATO and the UN, am I correct

11     that there was a particular party within NATO that was more vociferously

12     supporting calls for arming the Muslims and that that was the

13     United States of America?

14        A.   No.  I didn't say strife.  I said a degree of friction between

15     NATO and the United Nations, and I am not referring to their political

16     bodies.  I am referring to the deployed elements of those forces in and

17     over Bosnia.

18        Q.   If we can call up 1D600 in e-court.  While we wait for that, sir,

19     I think you'll see this to be dated the 12th of February, 1995, from

20     the -- I believe from the Norwegian battalion of UNPROFOR.  Am I correct

21     that the -- there was a Norwegian battalion of UNPROFOR at Tuzla air

22     base.

23        A.   It was a mixed, if I remember correctly, a Nordic battalion.

24     There were Danes, Norwegians and Swedes in the grouping.

25        Q.   If we could turn to the second page of this document, and the

Page 7536

 1     general overview I'd like to focus on the middle of the paragraph and the

 2     portion that begins:

 3             "Late Friday night an aircraft was observed flying at low

 4     altitude over the area east of Tuzla with every indication it was going

 5     to land.  It was assumed this would happen in Tuzla east where there

 6     is --"

 7             JUDGE ORIE:  Would you please slow down.

 8             MR. IVETIC:

 9        Q.   "... where there is an extended highway stretch.  The UN APCs

10     which were sent out to investigate the matter were prevented by the BiH,

11     Bosnia-Herzegovina army, from doing so.  It therefore cannot be confirmed

12     whether the aircraft actually landed or not or whether a load was dropped

13     at low altitude."

14             Sir, you indicated that your forces had seen -- is this the same

15     incident that you recall or is it a different one?

16        A.   Yes.  I think this is the indent I'm referring and it's

17     coincidental with the letter that you showed me earlier.

18        Q.   Did UNPROFOR lodge any complaints with the BiH side as to the

19     actions of its soldiers in preventing UNPROFOR from investigating?

20        A.   Yes, I'm sure we did.

21        Q.   Did you threaten air strikes against the BiH soldiers?

22        A.   Not on that occasion, no.

23        Q.   How often it during your tenure did events like this one occur as

24     to -- as to Tuzla airport?

25        A.   I can't remember one where other than this one, but there were, I

Page 7537

 1     think, one or two other cases in -- with airstrips in the general area of

 2     south of Tuzla.

 3             MR. IVETIC:  Your Honours, if I could tender this document as the

 4     next exhibit.

 5             MR. GROOME:  No objection, Your Honour.

 6             JUDGE ORIE:  Mr. Registrar.

 7             THE REGISTRAR:  65 ter number 1D600 shall be assigned

 8     Exhibit D141, Your Honours.

 9             JUDGE ORIE:  And is admitted into evidence.

10             MR. IVETIC:  I wish to call up 1D603.

11        Q.   And while we wait for that, sir, I believe the date of this

12     document is the 24th of February, 1995, so several days after the one

13     that we just looked at.  And this appears to be sent to -- sent by the --

14     by the UNMOs to their UNMO headquarters, and it is identified as a

15     protest letter for General Mladic, and it is sent to General de Lapresle

16     and General Smith.

17             Having looked at this, do you recall having received this protest

18     letter during your tenure?

19        A.   But this isn't the protest letter.  I'm not -- I'm not

20     understanding.  Does this cover a protest letter, or is this in front of

21     me the protest letter?

22        Q.   It's my understanding that this is the protest letter.

23        A.   Okay.

24             JUDGE ORIE:  Could would have a look at the top.  It reads:

25     "Note:  Signature is not General Mladic.  BSA headquarters only advised

Page 7538

 1     us that it is the signature of another General ..." which seems to

 2     indicate that this may be just a copy sent, but when -- I interpreted

 3     this wrong, then please explain what -- could we have a look at the

 4     remainder of this document.

 5             MR. IVETIC:  What I believe is this is a retransmission of a

 6     translation of a document that would have been originally in B/C/S sent

 7     through the UNMO structure to make its way to the various identified

 8     recipients, but we can ask the witness.

 9             JUDGE ORIE:  Well, if he knows.  I think --

10             THE WITNESS:  I am -- I am confident that I would have seen this.

11     I just don't remember.  Letters such as this would have been shown to me.

12             MR. IVETIC:  If I can ask for the top of the document to be shown

13     perhaps that could help assist us.

14        Q.   The fax header indicates -- whoops.

15             MR. IVETIC:  We can stay on that page.  That's fine.

16        Q.   The fax header indicates BH FWD com send.  Would that be BH

17     forward command centre?

18        A.   Yes, but it's gone into the UNMOs, as I see it, and then being

19     asked to pass to commander -- BH command's office, and I'm sure they did

20     it.

21        Q.   Okay.

22        A.   I don't see why they wouldn't have done.

23        Q.   Fair enough.  With regard to this document, if we can look at

24     what is detailed therein.

25              "On 23 February, 1995, at about 2010 hours, a transport plane

Page 7539

 1     with weapons and military equipment landed again at Tuzla airport's

 2     secondary runway.  It was escorted by 2 NATO fighter aircraft which were

 3     protecting it during flight and off-loading.

 4              "Unfortunately, this has been repeated lately in front (within

 5     sight and hearing) of NATO and UNPROFOR forces both in the air and at

 6     Tuzla airport itself.  These forces are doing nothing to prevent the

 7     violation of the relevant UN Security Council Resolutions prohibiting the

 8     import of weapons and military equipment."

 9             Do you recall hearing of this type of incident where the planes

10     were actually being escorted by NATO fighter jets?

11        A.   No.  That was never part of the -- my understanding of what had

12     been happened, what I'd been told had been going on.  And I -- and I only

13     remember, as I've said to you before, the one case of the aeroplane

14     appearing to be about to land or having just taken off from Tuzla.  Maybe

15     other ones were heard in the vicinity.  I don't know.  Maybe it would

16     have occurred on other days.  Again, I don't know.

17             MR. IVETIC:  Your Honours, I would tender this document as the

18     next available 1D exhibit number.

19             JUDGE ORIE:  Mr. Registrar.

20             MR. GROOME:  Your Honour, can I just reserve my position for a

21     few minutes?  I'll perhaps rise at a convenient moment and --

22             JUDGE ORIE:  Then a number should be assigned to it.  We'll then

23     delay the decision on admission.

24             Mr. Registrar, the number reserved for this document?

25             THE REGISTRAR:  Your Honours, 1D603 shall be assigned D142.

Page 7540

 1             MR. GROOME:  Your Honours, I apologise.  I can say now we do not

 2     object.

 3             JUDGE ORIE:  D142 is admitted.

 4             Please proceed.

 5             MR. IVETIC:

 6        Q.   I want to now return to your statement, P785 MFI'd, paragraph 23,

 7     which is at page 6 of the English and page 5 of the B/C/S.  And here,

 8     sir, the selection I want to focus on is the part that says:

 9             "The federation forced back into a relatively small area was

10     beginning to gain strength.  Their numerical superiority and the arms

11     they were now getting would give them an advantage if they started to

12     fight again."

13             And I want to ask you, sir, your reference to the arms they were

14     now getting, what is this a reference to?

15        A.   They were getting weapons in that I was aware of over the

16     Dalmatian coast and were -- and were being fairly open about it too.

17        Q.   Was this -- well, first of all, what kind of arms are we talking

18     about, both heavy and infantry weapons?

19        A.   No.  My understanding was that they were primarily infantry

20     weapons.  They were not heavy weapons.

21        Q.   Were they coming from somewhere outside of the former Yugoslavia?

22        A.   I was never very clear about their provenance, but they were -- I

23     understood that they were coming up out of Dalmatia.

24        Q.   With respect to the weapons coming from the Dalmatian coast and

25     the suspected shipments coming through Tuzla airport.  What did

Page 7541

 1     Lieutenant-Colonel Powers, your intelligence officer with links to the

 2     both NATO and US intelligence communities, have to say about these

 3     rumours or these allegations?

 4        A.   I don't recall it.  He collated the information and so forth.  I

 5     think this was collected by us observing the improvement in the weapons

 6     of the Bosnian Army.

 7        Q.   Do you feel that you had an affirmative duty to try and keep

 8     weapons from coming into Sarajevo to the ABiH?

 9        A.   No, I didn't have a duty to do that.

10        Q.   How about the enclaves like Srebrenica?  Do you feel you had an

11     affirmative duty to keep weapons from coming into the enclaves to the BiH

12     forces?

13        A.   I didn't have a duty to interfere directly with any of the armed

14     forces provided they were not preventing me in carrying out my mandate of

15     the delivery of humanitarian aid and so forth.  And secondly, the safe

16     area and exclusion zone policies.

17        Q.   Okay.  How about the ABiH forces inside safe areas and enclaves.

18     Do you consider that UNPROFOR had an affirmative duty to demilitarise

19     those forces and those zones?

20        A.   No, they didn't.  What they did was when the exclusion zone

21     regime was established, weapon collection points for both sides were

22     established, and they were established within Sarajevo and in Srebrenica

23     where there were some -- not many, but some heavier weapons, and these

24     were collected into weapon collection points.

25             MR. IVETIC:  If we can call up 1D581 in e-court.  This is another

Page 7542

 1     document that appears to have been communicated via the UNMO structure to

 2     the office of General Smith.  It appears to be dated the 10th of July,

 3     albeit being transmitted by the UNMOs the 11th of July, 1995, and it

 4     purports again to be a letter from General Mladic.

 5        Q.   And I'd like to read for you the first paragraph and see if you

 6     recall this document.

 7             "I have received your letter from 9 July 1995.  The Srebrenica

 8     enclave has not been demilitarised according to the agreements of 19

 9     April and 8 May 1993.  The Muslims have not handed over the weapons,

10     mine/explosive and combative means to UNPROFOR.  The Muslim forces have

11     abused the special status of the safe area and presence of your forces

12     for preparing and performing of terrorist and other fighting activities

13     against Serb population and the territory of the Republic of Srpska."

14             Do you recall having received this letter during your tenure?

15        A.   I remember seeing this letter, yes.

16        Q.   In the next paragraph, General Mladic details the killings of

17     various civilians in the surrounding villages of the safe area by the

18     Muslim forces.  Did you have knowledge and information about these

19     attacks by the Muslims from within Srebrenica?

20        A.   No.  We were not allowed into the Bosnian Serb territory to

21     investigate anything such as this, so, no, I did not.

22        Q.   Did you threaten air strikes against the ABiH forces for their

23     violations of the demilitarisation agreement?

24        A.   No.  And the air strikes -- and this agreement that you refer to

25     I'd have to check, but I don't think that has anything to do with the --

Page 7543

 1     with the exclusion zones, and the exclusion zones did not cover small

 2     arms.

 3        Q.   The last paragraph of this document indicates that several --

 4     that UNPROFOR members -- that one UNPROFOR soldier was killed by the

 5     Muslims.  Are you aware of that incident, sir?

 6        A.   Yes, I am.

 7        Q.   Were air strikes considered and/or threatened in self-defence by

 8     UNPROFOR against the ABiH forces for the killing of the UNPROFOR soldier?

 9        A.   Not at that time.

10             MR. IVETIC:  Your Honours, I would ask for this document to be

11     introduced into evidence as the next exhibit number.

12             MR. GROOME:  No objection.

13             JUDGE ORIE:  Mr. Registrar.

14             THE REGISTRAR:  Your Honours, 1D581 shall be assigned

15     Exhibit D143.  Thank you.

16             JUDGE ORIE:  And is admitted.

17             MR. IVETIC:  Thank you, Your Honours.  I would call up 65 ter

18     number 17956 from the Prosecution list.

19        Q.   And while we wait for that, sir, this is an agreement for the

20     demilitarisation of Srebrenica which is from April of 1993.  April 18th

21     is the date that it was signed per the second page wherein we have

22     signatures of General Halilovic, General Mladic, and General Wahlgren.

23             First of all, are you familiar with General Wahlgren?  Was he a

24     predecessor within UNPROFOR?

25        A.   I don't know, and I'm not sure.  Did he follow General Morillon?

Page 7544

 1     I'm not -- I can't remember.

 2        Q.   I believe he was there around the same time as General Morillon.

 3     If I could direct your attention to item number 4.

 4             "The demilitarisation of Srebrenica will be complete within 72

 5     hours of the arrival of the UNPROFOR company in Srebrenica (1100 hours 18

 6     April 1993, if they arrive later this will be changed).  All weapons,

 7     ammunition, mines, explosives, and combat supplies (except medicines)

 8     inside Srebrenica will be submitted/handed over to UNPROFOR under the

 9     supervision of three officers from each side with control carried out by

10     UNPROFOR.  No armed persons or units except UNPROFOR will remain within

11     the city once the demilitarisation process is complete.  Responsibility

12     for the demilitarisation process remains with UNPROFOR."

13             Sir, looking at this agreement, would you agree that it places an

14     affirmative responsibility upon UNPROFOR with respect to the

15     demilitarisation process in Srebrenica?

16        A.   Can I see the rest of the document, please?

17        Q.   You mean the second page?

18        A.   Yes, please.

19        Q.   If we could turn to the second page.

20        A.   And was this agreement -- I don't recall the history at this

21     time.  Was this agreement ratified --

22        Q.   Sir, I'm asking you --

23        A.   -- by the -- by Halilovic's superiors?

24        Q.   I'm asking you, sir, whether this document and its language the

25     responsibility for the demilitarisation process remains with UNPROFOR,

Page 7545

 1     whether it presents an affirmative responsibility on the part of UNPROFOR

 2     with respect to the demilitarisation process of Srebrenica?

 3        A.   And I'm not answering you --

 4             JUDGE ORIE:  Mr. Ivetic, the witness says, "I would like to know

 5     whether this is was what the status of this agreement is."  There are two

 6     questions.  The first one is does the text say?  We can read that.  It's

 7     fine if the witness agrees with us on what the text reads.  The question

 8     you put was not limited to the text but whether it imposes an affirmative

 9     duty, and there the witness says not knowing exactly the status of this

10     document, I have difficulties in answering your question.  And then to

11     say to the witness, "I asked you this.  Answer that," seems not to be

12     fair to the witness.

13             MR. IVETIC:  Your Honour, that's not what the witness said.  If

14     you're going to interpret what the witness said, I can do that as well.

15             JUDGE ORIE:  Let me see.

16             MR. IVETIC:  I was asking my question.  If the witness has that

17     to say, let him answer it, Your Honours.  The witness said -- asked me a

18     question.  I believe witnesses are not allowed to ask counsel questions,

19     Your Honour.  If I'm wrong, please correct me.

20             JUDGE ORIE:  If the witness needs further information before he

21     thinks he can answer a question, then he certainly is allowed to ask

22     further information.  He is not questioning you, Mr. Ivetic, but let me

23     read literally again what he said in the transcript.  He said, "Was that

24     agreement," and he then he said, "I don't recall the history of this.

25     Was this agreement ratified by Halilovic's superiors?," which can

Page 7546

 1     reasonably only be understood as information the witness needs before he

 2     can answer the question.

 3             That is my reading of the witness's answer.  Is that what you

 4     intended to say, Mr. Smith?

 5             THE WITNESS:  Yes, Your Honour.  I'm trying to establish -- here

 6     we have three parties to this agreement.  Everybody has to be in

 7     agreement for this agreement to be operative, and I wanted to know

 8     whether that was the case before answering the question.

 9             JUDGE ORIE:  Yes.  That's how I understood your answer.

10             Mr. Ivetic.

11             MR. IVETIC:  And, Your Honours, the previous document we looked

12     at referenced this agreement.  General Smith says he received the

13     previous document.  So the person that asked for the --

14             JUDGE ORIE:  Mr. Ivetic, you may put your next question to the

15     witness.  You have an opportunity to do now because you're limited in

16     your time.  Please proceed.

17             MR. IVETIC:

18        Q.   Sir, have you seen this document before?

19        A.   I don't recall seeing the document you've got up on the screen at

20     the moment.

21        Q.   It was referenced in the letter from General Mladic sent to you

22     on the 10th of July, 1995.  Would it have been your course and conduct as

23     BH commander when a warring party indicated a violation of a particular

24     agreement, would you not have investigated within your office to obtain a

25     copy of agreement and to obtain all the history of the agreement to see

Page 7547

 1     whether in fact it was in force or not?

 2        A.   I think at the time this document was received I am dealing with

 3     the aftermath of the collapse of the Srebrenica pocket, first point.

 4     Second point is that I would have asked the same question of this

 5     document that was referenced if I had seen it at the time.  What is its

 6     status?

 7        Q.   Were you advised when you assumed command of BH command that the

 8     enclaves were supposed to be demilitarised?

 9        A.   No, I wasn't.

10        Q.   If we can --

11        A.   And they weren't.

12             MR. IVETIC:  If we can call up P023, an exhibit tendered by the

13     Prosecution.  And while we wait for that, sir, we will see that it is

14     dated the 8th of May, 1993.  So it's after this document that we looked

15     at, and it relates to the demilitarised zone of Srebrenica.  If we were

16     to look at the last page of the same, we would see that it is signed by

17     Generals Mladic, Halilovic, and Morillon.  You had earlier mentioned --

18     asked me if the other document was related to General Morillon.  Are you

19     familiar with this document that is signed by General Morillon?

20        A.   What I asked you is whether General Wahlgren had succeeded

21     General Morillon, and you thought he was there at much the same time.

22     This one, can I see the front page?  You've given me the back page.

23        Q.   I apologise.  If we can go back to the front.

24        A.   And your question was?

25        Q.   Are you familiar with this document?

Page 7548

 1        A.   Not immediately, no.  Let me read it.

 2        Q.   When you're ready to move on to the second page, I'd like to

 3     focus on that page and the matters contained therein.

 4        A.   Mm-hmm.  You can turn now.

 5        Q.   If we can turn to the next page.  And in particular I'd like to

 6     focus on Article 3.  "Every military or paramilitary unit will have to

 7     either withdraw from the demilitarised zone or submit/hand over their

 8     weapons, ammunition, mines, explosives, and combat supplies in the

 9     demilitarised zones will be handed over/submitted to UNPROFOR."  Then it

10     gives times for that, and Article 5 again says UNPROFOR shall control the

11     demilitarised zone.  The last two paragraphs of that article.

12     "Noncombatants who are in or who are willing to enter the demilitarised

13     zone, except members of UNPROFOR, are not permitted to have in their

14     possession any weapon, ammunition or explosives.  Weapons, ammunition,

15     and explosives in their possession shall be seized by UNPROFOR."

16             The question I have for you, sir:  You had said earlier that you

17     didn't believe that the -- that in the zones small arms were included.

18     Does this agreement, not getting into now whether in fact it was being

19     enforced, but does this agreement cover or seem to cover small arms in

20     addition to heavy weapons?

21        A.   Yes, it appears to.

22        Q.   Okay.

23        A.   But again, I question the status of the agreement.

24        Q.   I understand that you do, sir.  During -- let me ask you this

25     way:  During the time-period when you were BH commander, were DutchBat

Page 7549

 1     units in Srebrenica tasked with attempting to demilitarise the area of

 2     Srebrenica according to your knowledge and information?

 3        A.   No, they weren't.

 4        Q.   Okay.  In that case, I'd like to ask you to take a look at

 5     Exhibit P57, the statement of one of the DutchBat who was in Srebrenica

 6     Eelco Koster.  And if we can turn to the sixth page of the same in the

 7     English.  My questions will be very brief.  The third paragraph from the

 8     top is dealing with the situation in mid-June and the patrols in

 9     Srebrenica, and the second half of that paragraph reads as follows:

10             "It struck me that each time we turned out there were more Muslim

11     fighters in the town than before.  At that time we were no longer able to

12     fulfil the policy requirements of the demilitarised zone.  By this I mean

13     that there were so many Muslim fighters walking about armed that we UN

14     soldiers were incapable of disarming these people."

15             Does that refresh your recollection, sir, that there was some

16     kind of demilitarisation agreement that the DutchBat in Srebrenica were

17     supposed to be enforcing?

18        A.   No.  I mean, I don't -- it was -- the -- the Bosnian forces

19     inside the safe area, I don't recall at any stage in my time being

20     expected to be demilitarised.  Their heavy weapons, such as they were,

21     were held, and were in Srebrenica, held in a weapon or weapon collection

22     points, but -- and I don't recall that the safe areas were ever expected

23     to be -- have completely disarmed people other than the UN inside them.

24     That might have been a goal in 1992 or 1993, but it certainly wasn't the

25     case at the beginning of 1995.

Page 7550

 1             JUDGE FLUEGGE:  Mr. Ivetic, may I ask the witness for one

 2     clarification.

 3             MR. IVETIC:  Of course, Your Honour.

 4             JUDGE FLUEGGE:  For his observation.  We have seen two

 5     agreements, both signed by General Mladic and General Halilovic.  And

 6     then we saw on the bottom "Witnessed by," and then there was the

 7     signature of an UNPROFOR general, Morillon and Wahlgren.  What is your

 8     understanding of the word "witnessed by"?  What status had, with respect

 9     to these documents, UNPROFOR has to play?

10             THE WITNESS:  Thank you very much.  That's perhaps how I should

11     have answered an earlier question in that my understanding is that there

12     are three parties to this agreement.  There are the two making the

13     agreement and the UNPROFOR general, in each case a different one, is

14     witnessing this agreement.  He can -- in other words, he can only carry

15     out those duties that appear to be laid upon him provided the other two

16     are playing their part in this agreement.  He -- his activity is utterly

17     dependent upon the agreement of the other two.  That's what I understood

18     those documents to be signed as and hence my question about their status.

19             JUDGE FLUEGGE:  Thank you very much.

20             MR. IVETIC:  Thank you, Your Honours.

21        Q.   Sir, if we could return to the witness statement of Mr. Koster.

22     You had indicated, I believe, that this might have been from an earlier

23     period but certainly not the beginning of 1995.  If I can refer you to

24     the first page -- pardon me, the second page of this document in e-court,

25     we see that Mr. Koster was deployed 21st January, 1995, to Srebrenica,

Page 7551

 1     and so the entirety of this witness statement would relate to the time

 2     period after the 21st of January, 1995.  And I want to ask you based upon

 3     what you knew on the ground, apart from being ordered to do so, where

 4     would Mr. Koster as part of DutchBat have gotten into his head the notion

 5     that he was supposed to be demilitarising Srebrenica?

 6        A.   I'm not sure he's saying that.  And if I understood the -- if we

 7     can go right back to the beginning, I'd want to know who he is.  What's

 8     his role in this -- in his force?

 9        Q.   I believe it says right there, sir.

10        A.   Ah, he's a lieutenant.  Right.  And he's a logistic officer.

11     Yes.  Okay.  I can -- I don't know him.  I don't know how this was

12     recorded, and I don't read Dutch, so I can't do it in the original, but

13     he may have just been using the word "demilitarised zone" in a very

14     general sense to describe the safe area or exclusion zone.

15        Q.   Okay.

16             MR. IVETIC:  While we still have the English version of the

17     statement up of Mr. Koster up on the screen, I'd like to call up on the

18     other half of the screen Exhibit P00038, which was discussed with the

19     witness on -- last week during direct examination.  And once that

20     document is up on the -- on the left, if you could focus on the first

21     page and item number 5.

22             Sir, if you might recall, you were asked about this document and

23     the paragraph 5, and you indicated that the DutchBat were not allowed

24     into the Bandera Triangle by the VRS.  I would like to further explore

25     this with you, and I want to first read the relevant portion of paragraph

Page 7552

 1     5 with -- yes?

 2             JUDGE ORIE:  Mr. Groome.

 3             MR. GROOME:  Your Honour, it would make me a few minutes to find

 4     the transcript reference, but my recollection of the witness's evidence

 5     was he wasn't sure where the Bandera Triangle was.

 6             MR. IVETIC:  That is correct.  That is also correct.

 7             JUDGE ORIE:  It doesn't -- okay.  Please --

 8             MR. IVETIC:  Let me -- let me perhaps put it this way:

 9        Q.   You had -- I believe you indicated you weren't sure where the

10     Bandera Triangle was, and when you were asked by Mr. Groome about this

11     section where it says DutchBat not allowed to enter the area for their

12     safety, you said you suspected that it was due to the Bosnian Serbs.

13     Perhaps that's a more accurate recollection.

14             JUDGE ORIE:  I suggest the following, that we take a break and we

15     look at the source exactly what the witness said so that we have the

16     transcript ready.

17             Mr. Smith, you are invited to follow the usher.

18                           [The witness stands down]

19             JUDGE ORIE:  Mr. Groome, before we take the break, as matters

20     stand now, still no need for re-examination of the witness?

21             MR. GROOME:  Possibly one question.

22             JUDGE ORIE:  Possibly one question.  I might have one or two

23     questions as well, which means that after the break, Mr. Ivetic, you

24     would have most of the time but not all of it.

25             MR. IVETIC:  I'll keep that in mind, Your Honours.

Page 7553

 1             MR. GROOME:  Your Honours, I want to say something quickly with

 2     respect to the next witness.  On the 23rd of January I raised a

 3     disclosure issue at transcript page 7275 to 76.  I want to inform the

 4     Chamber and Defence counsel that the three documents that I mentioned we

 5     have permission now to disclose them and they will be disclosed within

 6     the hour.  Thank you.

 7             JUDGE ORIE:  Thank you.  We take a break and we will resume at 17

 8     minutes to 2.00.

 9                           --- Recess taken at 1.22 p.m.

10                           --- On resuming at 1.42 p.m.

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

12                           [The witness takes the stand]

13             JUDGE ORIE:  You may proceed, Mr. Ivetic.

14             MR. IVETIC:  Thank you, Your Honours.

15        Q.   I have during the break located the transcript reference.  And,

16     sir, I will read for you and hopefully you can follow in today's

17     transcript the exact words used.  In your direct examination questioning

18     by Mr. Groome at page 7336 of the transcript, from line 13 through line

19     22, it is recorded as follows:

20             "Q. Now, further down in paragraph 5 of this report, we see the

21     following sentence:

22             "'DutchBat are not allowed to enter that area,' this is a

23     reference again to Bandera Triangle, 'because of our safety.  We can't

24     investigate the number.'

25             "Do you know if the determination that it was too unsafe for

Page 7554

 1     DutchBat to move around the enclave was a decision made by DutchBat or a

 2     restriction placed on their movement by the VRS?

 3             "A. My understanding at the time is they were being restricted in

 4     their movement by the VRS."

 5             Now, that was your testimony in the direct examination.  I would

 6     like to have that in mind while we re-read paragraph 5 of this document

 7     in its entirety.

 8             "The number of BiH soldiers that are taken POW by the BSA is not

 9     known yet, but General Mladic told the UNMO team and the CO of DutchBat

10     that the BiH are having several hundreds of dead soldiers in the area of

11     the Bandera Triangle.  He also asked the CO of DutchBat to contact those

12     BiH soldiers and inform them that it is not the general's intention to

13     kill any more soldiers of the BiH.  They only have to surrender and hand

14     over their weapons, because we, the UNMO team and DutchBat, are not

15     allowed to enter that area because of our safety.  We can't investigate

16     the numbers.  The CO of DutchBat told the general that he will try to

17     contact the BiH through the HQ Sector North-east because the CO has no

18     more contact with the BiH anymore."

19             Now, in your direct examination, the assumption was the soldiers,

20     the BiH soldiers in the Bandera Triangle were dead.  I ask you, sir,

21     wouldn't it then be illogical for General Mladic to tell the DutchBat and

22     the UNMO to inform these soldiers in the Bandera Triangle to turn over

23     their weapons, and would not a more logical reading of this be that there

24     are still armed soldiers, perhaps dead, perhaps also live ones, in the

25     triangle and that these are the ones that are being asked to turn over

Page 7555

 1     their weapons?  Would you permit that that was a more logical reading of

 2     this paragraph than you and Mr. Groome had indicated during the direct

 3     examination?

 4        A.   I agree that it is illogical, as written, that he's -- it says

 5     that there are dead there, and then it says contact these soldiers.  Now,

 6     whether this is someone writing in his second language, I don't know.  It

 7     probably is, but I'm -- I don't know the author of the report.  But there

 8     was a statement that -- and this place, the Bandera Triangle, there are

 9     several hundreds of dead soldiers.  That seems to be one idea.  And then

10     there is an idea that there should be a contact with BiH soldiers.  Now,

11     whether these are in the triangle, wherever that is or was, or whether

12     they are scattered amongst the dead ones and are still alive, I don't

13     know.  And I don't know enough of the author and his circumstances to be

14     sure of how to interpret it any further.

15        Q.   And there's one more concept and it's the concept of the

16     inability of the UNMO and the DutchBat to enter that area, i.e., the

17     Bandera Triangle because of their safety, and your answer said that it

18     was your understanding at the time that they were being restricted in

19     their movements by the VRS.  Do you have a basis for that or were you

20     just merely making a supposition?

21        A.   No.  That I am -- understand that that was the case once they

22     were all holed up in Potocari and the -- the enclaves had collapsed.

23        Q.   While we still have the witness statement of Mr. Koster on the

24     right, I direct your attention to the last paragraph of this page, which

25     continues on through the next page, and I'll read it for you so that we

Page 7556

 1     it all in the right line -- frame of thought.  It says:

 2             "At the end of January 1995, the Muslim fighters wanted us to

 3     keep out of a certain part of the enclave.  Major Franken and eight

 4     soldiers of the Reconnaissance Platoon endeavoured to enter this area in

 5     order to enforce the conditions of freedom of movement.  When they did

 6     so, they were taken hostage.  I believe that Zulfo, a subordinate

 7     commander in the Muslim forces, was responsible for this hostage-taking.

 8     I never saw this 'Zulfo.'  He was one of Naser Oric's commanders.  I

 9     later heard that there was an internal power struggle between these two

10     men.

11             "When this happened, Major Boering and van Alphen went to

12     negotiate and were also taken hostage by BiH fighters.  In total about 75

13     to 100 men were taken hostage.  These men were taken hostage when they

14     were on stand-by near what is known as the Bandera Triangle.  This was in

15     the western part of the enclave."

16             Sir, do you recall hearing a reporting of such incidents

17     occurring in the Bandera Triangle during your tenure as BH commander?

18        A.   No, I don't.

19        Q.   Would you agree with me that this reference in paragraph 5 of the

20     document on our left could be a reference to the fact that since this

21     incident from January of 1995, both the UNMOs and the DutchBat stayed out

22     of the Bandera Triangle due to their own safety not because of the VRS

23     but because of what the army BiH had done in January?

24        A.   No, I wouldn't draw that conclusion.  The situation had

25     materially changed.

Page 7557

 1        Q.   Well, you had testified that there was a breakout of -- attempted

 2     break out of BiH forces --

 3             JUDGE ORIE:  Could you please -- you're supposed not to interrupt

 4     the witness if he's in the middle of his answer.  The situation had

 5     materially changed you said, Mr. Smith.

 6             THE WITNESS:  In January you have one situation, and by the time

 7     when the paragraph 5 of the report -- UNMO report is being drafted, the

 8     enclave has fallen and there are several hundreds of dead soldiers being

 9     reported in this area.

10             MR. IVETIC:

11        Q.   And, sir, do you recall your testimony during your examination by

12     Mr. Groome that there had been an attempted breakout of armed BiH

13     soldiers from the enclave in the direction of the north-west?  And this

14     is from transcript page 7331 and 7332 of our trial transcript.

15        A.   Yes.

16        Q.   Yet at that time you didn't know where the Bandera Triangle is.

17     Now, knowing from Lieutenant Koster that's in the western part of the

18     enclave, do you now permit that the possibility that the forces that were

19     attempting to break out, the BiH forces were actually in the Bandera

20     Triangle and were still there, or do you perhaps not know?

21        A.   First of all, we -- the Bandera Triangle, I don't know where it

22     is.  I don't recall it being a phrase or description being used at all in

23     my time in command.  It's introduced to me for the first time in this

24     examination.  The breakout not only was attempted but it occurred, and it

25     occurred in my memory to the north-west.

Page 7558

 1        Q.   Fair enough.  I'd like to move to another document, and I'd like

 2     to turn to -- first of all, in your statement, at paragraph 86 of the

 3     same, you indicate that you were personally involved in getting some Serb

 4     liaison officers out of Gornji Vakuf.  That would be page 21 of the

 5     English, page 17 of the B/C/S of P785, marked for identification.  Do you

 6     recall that, sir?

 7        A.   I was certainly said it was to happen.  I wasn't personally

 8     involved in their movement, no.

 9        Q.   Was the -- was the idea of such an action positively or

10     negatively received by General Mladic?

11        A.   Negatively.

12        Q.   I would like to call up 1D576 briefly.  While we wait for that,

13     sir, that is a document from the state security department centre of the

14     Ministry of Interior of the MUP of Republika Srpska, dated April 18,

15     1995, and I have to present to you the information of the second

16     paragraph that appears to relate to the same incidents.

17             First of all, was the Gornji Vakuf incidents you are talking

18     about in April of 1995?

19        A.   Yes.  Yes, it was about then, yes.

20        Q.   Here in this document, the second paragraph says as follows:

21             "During his stay in Kiseljak, our source heard from a Croat from

22     Novi Travnik who was on a visit to Kiseljak that the withdrawal of VRS,

23     Army of Republika Srpska, liaison officers from Vakuf, which is under the

24     control of the army of the Republic of Bosnia and Herzegovina, had been

25     ordered by the commander of UNPROFOR forces in the former Yugoslavia,

Page 7559

 1     General Smith.  This was done in order to make it possible for the

 2     Croatian Army Main Staff to provide assistance in military hardware to

 3     the so-called Army of the Republic of Bosnia-Herzegovina.  More

 4     precisely, to bring ten VBR multiple rocket launchers and five or six

 5     tanks from Croatia for the needs of an offensive by the army of the

 6     Republic of Bosnia and Herzegovina on the general area of Vlasic during

 7     that period as well as for further offensive operations by the Muslim

 8     army aimed at linking up the zones of responsibility of the 5th and

 9     7th Corps of the army of so-called Republic of Bosnia and Herzegovina."

10             Did in fact or do you have information that upon your actions to

11     remove the VRS liaison officers, these heavy weapons were transferred by

12     the army of Croatia to the ABiH?

13        A.   I have no knowledge of this happening at all and that wasn't the

14     reason I returned the liaison officers.

15        Q.   Can you exclude the possibility that the army of Croatia in fact

16     did undertake to take advantage of your actions and to make this

17     transfer?

18        A.   I can't exclude the possibility, no.

19        Q.   Was any complaint about this ever brought to your attention while

20     you were at BH command?

21        A.   What, that I returned the liaison officers or that the -- there'd

22     been this --

23        Q.   The transfer?

24        A.   -- the transfer of equipment?

25        Q.   The transfer of equipment.

Page 7560

 1        A.   No, I don't recall a complaint.

 2             MR. IVETIC:  Your Honours, I would seek to tender this document

 3     at this time as the next available 1D exhibit number.

 4             MR. GROOME:  No objection.

 5             JUDGE ORIE:  Mr. Registrar.

 6             THE REGISTRAR:  Your Honours, 1D576 shall be assigned

 7     Exhibit D144.  Thank you.

 8             JUDGE ORIE:  D144 is admitted.

 9             MR. IVETIC:  Thank you.

10        Q.   I would like to call up 1D579 briefly.  And while we wait for

11     that, sir, this is a document authored by Brigadier General Nikolai sent

12     to General Rasim Delic of the BiH forces the 9th of July, 1995, and I'd

13     like -- first of all, do you recall one of your subordinates sending such

14     a letter to General Delic?

15        A.   I -- I saw this letter subsequently.  I didn't -- I wasn't there

16     when this was initiated.

17        Q.   Okay.  If we can look at the last two paragraphs and it says:

18             "Our main consideration is the safety of the peacekeeping forces.

19     Our forces will not retake the observation posts until the UNPROFOR Staff

20     considers it safe to do so.  The attempts of your forces to keep the

21     observation posts in their place and attack the members of the

22     withdrawing peacekeeping forces have only rendered the already dangerous

23     and unstable situation even more complicated."

24             Do you recall, sir, that during this time period you had

25     information that the BiH forces had attacked UNPROFOR that were

Page 7561

 1     attempting to disengage from observation posts in the Srebrenica enclave?

 2        A.   Yes.

 3        Q.   And was it in terms of that type of activity that one UNPROFOR

 4     soldier was actually killed by the ABiH forces?

 5        A.   I believe so.  Just let me finish reading the letter.

 6        Q.   Absolutely.

 7        A.   Yes.  That's covered in the first paragraph.

 8        Q.   And if you can clarify for us.  The last paragraph seems to imply

 9     that during this time period air strikes were called against the Serbs

10     for the self-defence of UNPROFOR personnel but had not taken place due to

11     target identification.  Do you recall that situation?

12        A.   I -- I don't recall.  As I say, I wasn't there.  But it doesn't

13     say it's against the Serbs at all.

14        Q.   Well, sir, it says in response to your two other requests, I can

15     inform you that NATO air support was provided during combat.  Do you

16     suppose --

17        A.   I think you can deduce that, yes.

18        Q.   Yeah.  And do --

19        A.   I mean, I'm assuming that's two other requests for information as

20     opposed to requests for air support.

21        Q.   I guess both readings are possible, sir.  Do you recall if the --

22     if the BiH forces were ever threatened with air strikes following this

23     set of instances?

24        A.   I don't recall, no.  And I don't think they were.

25             MR. IVETIC:  Your Honours, I would ask that be introduced as the

Page 7562

 1     next 1D exhibit number.

 2             MR. GROOME:  No objection.

 3             JUDGE ORIE:  Mr. Registrar.

 4             THE REGISTRAR:  65 ter number 1D579 shall be assigned

 5     Exhibit D145.

 6             JUDGE ORIE:  And is admitted into evidence.  You've got five

 7     minutes left, Mr. Ivetic.

 8             MR. IVETIC:  Thank you, Your Honours.

 9        Q.   If I can call up P792, and this is a document authored by you

10     which was discussed in direct examination and sent to the Serb side

11     protesting, and it's dated the 26th of June, 1995.  Once we receive the

12     same, I would like to focus on the middle -- or the one, two, three --

13     fourth paragraph from the top.  And here, sir, you are protesting the

14     attacks on the civilian population and also attacks on observation posts

15     by the Serbs, and you say in the next paragraph:

16             "I cannot tolerate attacks on my troops, and I want to remind you

17     once again that I will not hesitate to respond in self-defence."

18             And the question I have for you, sir, is we've talked now these

19     last few days and we've seen during this same time-period the ABiH was

20     attacking observation posts, performing attacks attacking the civilian

21     population in Serb villages around Srebrenica.  Why is it that you, sir,

22     are only threatening the Bosnian Serb side for activities that the

23     Bosnian Muslim side is doing as well?

24        A.   You're not entirely correct in what you've stated.  My memory of

25     the killing of the Dutch soldiers as they were trying to withdraw from

Page 7563

 1     the observation posts.  It wasn't that the observation posts were being

 2     attacked by the ABiH.  And the point about the threat to the attacking of

 3     civilian areas, it goes straight back to the exclusion zones and the safe

 4     area policy.  The area that I was responsible for with the civilians in

 5     it was the safe area, and that was where I -- my focus, if you like, was.

 6             And finally, we were not allowed into the Bosnian Serb areas and

 7     had no knowledge other than Bosnian Serb reporting of actions that were

 8     taking place there.

 9        Q.   Am I correct that during this time period the only casualties in

10     Srebrenica on the part of UNPROFOR were the soldier that was killed by

11     ABiH fire and that none were casualties of the VRS?

12        A.   I believe that to be the case.

13        Q.   Okay.  If we can go back to Markale just briefly.  Do you recall

14     a Colonel Demurenko who was Chief of Staff of Sector Sarajevo and who

15     presented a press conference basically challenging the official version

16     of the Markale II incident?

17        A.   Yes, I do.

18        Q.   Did your office take any steps upon that press conference to

19     investigate the claims made by Colonel Demurenko and to further

20     supplement its own findings as to the Markale II incident that we've

21     talked about?

22        A.   We disagreed with him, yes.

23        Q.   Did you take any steps to investigate Colonel Demurenko's

24     findings and to --

25        A.   My -- again, my recall is that argument was supplied to us and we

Page 7564

 1     disagreed with it.  It was, as I remember, an example of not including

 2     all the evidence to arrive at a result.

 3        Q.   Isn't it also a fact, sir, that Colonel Demurenko visited all the

 4     sites where your -- where the UNMO team's bearings would have been the

 5     firing locations based upon the various potential charges that could be

 6     attached to a 120-millimetre mortar shell?

 7        A.   Yes.  I don't recall that he did that, no.

 8        Q.   Do you recall that he claimed that he did that?

 9        A.   No, I don't remember that particular bit either.

10        Q.   Did any of the teams performing investigations for either you or

11     any other UN entities in reaching the determination for Markale attempt

12     to go and locate and visit potential firing positions to determine if the

13     mortar shells could possibly have been fired from there?

14        A.   I don't think we were allowed to do that by the Bosnian Serbs but

15     I couldn't produce you --

16        Q.   Sir I put it --

17        A.   -- the chapter and verse of that.

18        Q.   Isn't it true that in your telephone conversation with

19     General Mladic he invited you to form a joint commission to investigate

20     everything and he turned it down?

21        A.   I did.  It was my business to make the decision.

22        Q.   So it's not a matter of the Serbs not permitting you, it was you

23     not permitting the Serbs to have the investigation?

24             MR. GROOME:  Your Honour, could Mr. Ivetic please assist me with

25     the reference in the telephone call where Mr. Mladic invited

Page 7565

 1     General Smith to visit the specific locations?  I don't recall that.

 2             JUDGE ORIE:  It seems to be that it's the interpretation

 3     apparently of inviting to form a joint committee would entail, would

 4     include, Mr. Ivetic, that is what I understand, that that joint

 5     commission would then have to -- yes.  There appears to be a problem as

 6     far as Mr. Mladic is concerned.

 7             MR. IVETIC:  Apparently there is a problem with the translation,

 8     Your Honours.  I --

 9             JUDGE ORIE:  We will verify that.  If we slow down, Mr. Ivetic,

10     that may assist the translation as well.

11             It seems, Mr. Groome, that it's a different interpretation of

12     what it means to invite for a joint commission which would then most

13     likely result in going to the area and there is no literal permission

14     given to enter the Bosnian Serb territory.  That seems to be the issue.

15             MR. IVETIC:  That's correct, Your Honours.  That's what I

16     intended.

17             JUDGE ORIE:  Then Mr. -- you've past your last minute more or

18     less, Mr. Ivetic.

19             MR. IVETIC:  Can I get an answer to my last question that was

20     posed then, Your Honours?

21             JUDGE ORIE:  Yes.  Please put it again to the witness.

22             THE WITNESS:  I'm sorry.  I'm lost.

23             MR. IVETIC:

24        Q.   Let me read it back to you.  It's at line 10, 11:

25             "Am I correct, sir, it's not a matter of the Serbs not permitting

Page 7566

 1     you, it was you not permitting the Serbs to have that investigation?"

 2        A.   That's not the same thing, is it?  I don't think we were allowed

 3     to travel independently into Bosnian Serb territory and that's not the

 4     same thing as a joint commission.  And finally, I make the point that a

 5     mortar is a mobile weapon and it can be easily moved after it is fired.

 6             JUDGE ORIE:  Yes.

 7             MR. IVETIC:

 8        Q.   Thank you, sir.

 9             MR. IVETIC:  Your Honours, I'm done.

10             JUDGE ORIE:  Mr. Ivetic.

11             Mr. Groome, you said one or two questions.

12             MR. GROOME:  Just one question.

13                           Re-examination by Mr. Groome:

14        Q.   General Smith, can you explain to the Chamber why it was you did

15     not pursue General Mladic's suggestion that the investigation of

16     Markale II be done in a joint commission?

17        A.   If I can just take a moment to make a couple of notes, to make

18     this as brief as possible.

19                           [Trial Chamber and Registrar confer]

20             THE WITNESS:  I suppose I divide it into the following:  The

21     first is that it was in my experience and reading the experience of my

22     predecessors a common tactic of all parties, not only the Bosnian Serbs,

23     when faced with these situations to arrive at some joint commission in

24     which the whole thing would descend into yes, he did, no, he didn't, type

25     of debate going long into the future if it arrives at a result at all.

Page 7567

 1             Secondly, as a result of the London Conference, the situation had

 2     changed as far as the exclusion zone regime was concerned, and the

 3     decision lay in equal part with the two military commanders, NATO and the

 4     UN, and at the time, I was the man for the UN, and I was required to make

 5     a decision.  And at the London Conference, the decision to bomb had

 6     already, in effect, been made.  It required that an attack by -- on a

 7     safe area.  And so I was needing to establish whether this had actually

 8     occurred, and if so, who had attacked it.

 9             MR. GROOME:  Thank you.  Nothing further, Your Honour.

10             JUDGE ORIE:  I would have a few questions for you in relation to

11     the Markale II incident.

12             Could we have on the screen P785, English page 51, B/C/S page 40.

13     That is paragraph 201 is of your statement, Mr. Smith.

14             THE WITNESS:  I've got my pages in a muddle.  One minute.  201.

15                           Questioned by the Court:

16             JUDGE ORIE:  Paragraph 201.  Especially the end.  Could you

17     please read for yourself the last five, six, lines on from the Cymbeline

18     ray car.

19        A.   "In a built-up area --"

20             JUDGE ORIE:  No, no.  It's --

21        A.   I'm sorry.

22             JUDGE ORIE:  Just read it for yourself.

23        A.   Okay.  Yeah.  Yes.

24             JUDGE ORIE:  Yes.  I understood this part of your statement to be

25     that if you fire in a built-up area, that you need a very high trajectory

Page 7568

 1     which would certainly have crossed the cut of the Cymbeline radar,

 2     whereas if you fire from a longer distance that you might have stayed

 3     below of that.  Is that well understood?

 4        A.   Yes, that's my understanding.

 5             JUDGE ORIE:  Could I then in order to visualise it, could a

 6     sketch be put on the ELMO.  I'm not a good sketcher, Mr. Smith.  It

 7     should appear on your screen.

 8             I don't see it on my screen yet.  There it is.  Could you adjust

 9     it in such a way that ...

10             I see it on the screen with the Registrar but not on my screen

11     under the ELMO button.

12             I apologise to all of those assisting us for the -- I asked it to

13     be ready when I would put the questions, but for one reason or another.

14        A.   Ah, we have it.

15             JUDGE ORIE:  Do we also have it?  I have it under the video

16     button at this moment, although could we focus and exclusively look on

17     the screen despite whatever instructions do exist that we see the picture

18     I so desperately tried to produce.  Yes.  I have it now on my screen and

19     nothing else should be on our screen at this moment.

20             Mr. Smith, I tried to make a sketch of a shell being fired in an

21     urban area from nearby and from further away.  You said you need a high

22     trajectory.  My question to you is what do you need?  Do you need a steep

23     trajectory or do you need a high trajectory?

24        A.   Let me start.  The point I think I was trying to make in this bit

25     of the statement was that in a built-up area, you have to get the round,

Page 7569

 1     if I can point at the screen, to go up between the houses.  Otherwise,

 2     you hit the houses on your way out, which isn't a good idea.

 3             So this would give you a more vertical shoot, because to make

 4     it -- to oversimplify, the maximum range is achieved at 45 degrees, and

 5     you can shorten the range by --

 6             JUDGE ORIE:  Yes.  If you do not mind if I interrupt you.  I

 7     understand all that.  At the same time, you used -- I want this to remain

 8     on the screens.  Yes.

 9             You said a high trajectory was an explanation why it should have

10     been --

11        A.   Yeah.

12             JUDGE ORIE:  -- caught by the Cymbeline.  Now, on this sketch I

13     do agree with you that you need a rather steep trajectory, first of all,

14     to get out of the built-up area, and of course a corresponding steep

15     angle of descent so that it lands not against the wall of a house but in

16     a street, for example.

17        A.   Mm-hmm.

18             JUDGE ORIE:  Would you agree with me that the steepness rather

19     than the elevation is the real issue?

20        A.   Yes, it is.  It's the verticality of it.

21             JUDGE ORIE:  Yes.  Do you also agree with me that if I have a cut

22     of the Cymbeline higher up that it doesn't make that much of a difference

23     as shown in this sketch, that if you fire with a steep trajectory with a

24     low charge because it doesn't have to travel very long, that it might

25     well remain under the radar if it cuts a higher part of the area as

Page 7570

 1     shown -- as demonstrated in this sketch?

 2        A.   That would depend upon the charge.

 3             JUDGE ORIE:  Yes.  Yes.  But you have not included the charge as

 4     an element of --

 5        A.   I didn't include the charge.  All I was talking about was the --

 6     the -- I'll call it the steepness, yes, of the trajectory.

 7             JUDGE ORIE:  Yes.  And for it to be caught by the radar, the

 8     elevation, the height is rather relevant than the steepness as we see

 9     here.

10        A.   Yes.

11             JUDGE ORIE:  Yes.  Could we now have the other sketch on the

12     ELMO.

13             Now, the scale here is slightly different, as you see it.  What I

14     did is make a sketch of a longer distance firing, because the suggestion

15     was if you fire from a longer distance, the trajectory may be flatter and

16     may not be caught by the radar.  Would you agree with me that with such a

17     flatter angle of firing, and of course a corresponding angle of descent,

18     that the chance of landing in a street is by far lower because there's a

19     fair chance that you hit roofs and/or other buildings, not landing in a

20     street?

21        A.   Yes, there is a higher chance of that, and indeed if I remember

22     the reporting right, one of the rounds was thought to have hit something

23     on its entry.

24             JUDGE ORIE:  Yes.  Now, I have a last question for you.  The 170

25     degree for the one which was hitting the Markale market and four others

Page 7571

 1     at 220 and 240 degrees, it was said there was an anomaly.  Therefore,

 2     number five must have been fired from 220 to 240 as well.  We saw that in

 3     one of the reports.

 4             Now, what is the anomaly apart from that it's a different outcome

 5     of a measurement?  What other reasons were there not to accept the 170

 6     degrees and say being an anomaly compared to the others we make it 220

 7     and 240?

 8        A.   The -- it -- it was the -- if I remember correctly from the

 9     reporting, it -- it was a re-examination of the fuse furrows and the

10     evidence that it had hit the side of a building or an edge of a roof or

11     something on entry that had affected the line of that particular crater,

12     if I remember the report.

13             JUDGE ORIE:  And would you agree with me that if it had hit

14     something else and had ricochetted from there, that it is very difficult

15     then to say from which direction it exactly came before it ricochetted

16     and then ended up at a certain spot.

17        A.   It would be that much more difficult, yes.

18             JUDGE ORIE:  Yes.  I have no further questions for you.

19             I think we have dealt with these pictures, so perhaps we should

20     put them in the hand of the Registrar so that they become exhibits, but

21     perhaps Chamber exhibits.  Could they be taken from the ELMO and could

22     they be returned to the --

23             Mr. Groome, have the questions of the Chamber triggered any need

24     for further questions?

25             MR. GROOME:  Yes, Your Honour.  I'd like to ask one question.

Page 7572

 1             JUDGE ORIE:  One question.  I tried my utmost best to have

 2     everything perfectly ready for putting the questions to the witness.

 3     Unfortunately, it was not.

 4             One question, and I'm apologising to those assisting us.  Yes,

 5     Mr. Groome.

 6                           Further Re-examination by Mr. Groome:

 7        Q.   General Smith, my question, only if you know, in a low trajectory

 8     shot of a mortar, is the angle of ascent always the same as the angle of

 9     descent to the target?

10        A.   I believe it gets steeper on the entry.  On the downward track.

11     A greater amount of gravity is involved than charge.

12             MR. GROOME:  Thank you.  No further questions.

13             JUDGE ORIE:  Then I have two follow-up questions on that.

14                           Further questioned by the Court:

15             JUDGE ORIE:  Do the tables consider both the angle of firing and

16     the angle of descent so that you know exactly how much steeper it lands

17     than it has been fired to your knowledge?

18        A.   I don't think they do, but I'm -- it's been a long time since I

19     looked at tables.

20             JUDGE ORIE:  Okay.  Then the second question is does the

21     elevation from where a shell is fired have may have an impact there as

22     well so as to say that if you fire from a higher position landing at a

23     lower position, that even the angle of descent will be more different

24     from the angle of firing?

25        A.   It would probably mathematically anyhow, it would affect it, yes.

Page 7573

 1             JUDGE ORIE:  Thank you.  I have no further questions.

 2             Mr. Lukic.

 3             MR. LUKIC:  Thank you, Your Honour.  I just want to use the

 4     opportunity with your leave to have at least two minutes from this audio

 5     that was requested by our client so the general can recognise whether it

 6     was the voice of General Mladic or not.

 7                           [Trial Chamber confers]

 8             JUDGE ORIE:  One minute should be sufficient --

 9             MR. LUKIC:  Thank you, Your Honour.

10             JUDGE ORIE:  -- to give an opportunity to Mr. Smith to see

11     whether he recognises the voice of Mr. Mladic and his own voice I take

12     it.

13             MR. LUKIC:  We can in a few seconds.

14                           [Audiotape played]

15             THE INTERPRETER:  "[Voiceover] The general assumes that you have

16     already heard about the incident in Sarajevo this morning.

17             "I heard about it five minutes ago, but I don't know for certain

18     what it is about.

19              "Well --"

20             JUDGE ORIE:  That's it.  If we want the witness to recognise the

21     voice of Mr. Mladic, everyone should switch to channel 6.  Could the

22     witness be assisted in moving to channel 6.  And then we play 30 seconds.

23     We do not need translation at this moment, I would say, because it's

24     recognition of a voice.

25             Could you restart the portion you would like to play.

Page 7574

 1                           [Audiotape played]

 2             JUDGE ORIE:  This should be enough to --

 3             Do you recognise the voice, Mr. Smith, you heard on channel 6?

 4        A.   Sorry.  One minute.  I'm --

 5             JUDGE ORIE:  Yes.  You are now back on 4.  Did you recognise the

 6     voice as the person with whom you spoke at the time.

 7        A.   Not clearly, no.

 8             JUDGE ORIE:  Not clearly.

 9        A.   I recognise the interpreter's voice more clearly, but I think

10     that's just the quality of the --

11             JUDGE ORIE:  Yes.

12        A.   -- recording and that I am going deaf.

13             JUDGE ORIE:  Yes, that's.  Mr. Lukic, if you want to consult for

14     a second you can do that because we're at the very end of the testimony

15     of this witness, but please do it quickly.  And not -- at a low voice.

16                           [Defence counsel and accused confer]

17             Mr. Mladic, low voice.  Low voice, I said.  Mr. -- Mr. --

18             Mr. Lukic.

19             MR. LUKIC:  We cannot ask for more from this witness.  If he can

20     recognise the voice of Mr. Mladic that would be fine, but if he doesn't.

21     And if he can explain who is the translator, if he recognises the

22     translator's voice.

23             JUDGE ORIE:  Could you tell us who was the translator?  Was it

24     your translator or was it --

25        A.   The one I could hear was known as Darko.

Page 7575

 1             JUDGE ORIE:  And he was translating on your behalf.

 2        A.   Yes.

 3             JUDGE ORIE:  He was your translator you say.

 4        A.   Yes.

 5             JUDGE ORIE:  So you would expect him to be involved in a

 6     telephone conversation you would have with a B/C/S-speaking person.

 7        A.   Yes.

 8             JUDGE ORIE:  Yes.  Any further questions?  Then, Mr. Smith, this

 9     concludes, although a little bit in a chaotic way, your testimony.  I

10     would have to instruct you again that you should not communicate with

11     anyone, whether Prosecution, Defence, or whomever apart from those we

12     permitted you to speak with about your testimony because we cannot

13     exclude under all circumstances that there will not be a continuation.  I

14     leave it to that at this moment.  But I already would like to thank you

15     very much for coming to The Hague and for having answered all the

16     questions that were put to you by the parties and by the Bench.  Thank

17     you.

18             THE WITNESS:  Thank you very much.

19             JUDGE ORIE:  You may follow the usher.

20                           [The witness withdrew]

21             JUDGE ORIE:  Mr. Lukic, the only thing you are expected to do is

22     to check anything which is so urgent that we could not deal with it

23     tomorrow.

24                           [Defence counsel and accused confer]

25             JUDGE ORIE:  Mr. Registrar, would you please assign numbers to

Page 7576

 1     the two sketches used during the examination of the witness.

 2             THE REGISTRAR:  Exhibit C2, and Exhibit C3, Your Honours.

 3             JUDGE ORIE:  Yes.  And they are both in evidence.  If there's

 4     nothing else, we adjourn for the day.  I would like to apologise again to

 5     the -- all those assisting us.

 6             I -- before adjourning, I also put on the record that this

 7     Chamber will not sit in the week of the 11th of March and also not in the

 8     week of the 18th of March in response to a request by the Defence.  We

 9     adjourn for the day and we will resume tomorrow, the 29th of January, at

10     9.30 in the morning -- it will be at 9.00.

11                           --- Whereupon the hearing adjourned at 2.31 p.m.,

12                           to be reconvened on Tuesday, the 29th day

13                           of January, 2013, at 9.00 a.m.