Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5172

1 Thursday, 7 December 2006

2 [Open session]

3 [The accused entered court]

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

5 JUDGE AGIUS: All right. We seem to be full house today. I see

6 that the witness is not yet in the courtroom. Is that a signal that there

7 are preliminaries? Yes, Mr. Ostojic.

8 MR. OSTOJIC: Good morning, Mr. President, Your Honours. I don't

9 think preliminaries, but we have the exhibits to clean up. We will do it

10 in the order the Court desires.

11 JUDGE AGIUS: Okay. So let's call the case first.

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

13 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.

14 JUDGE AGIUS: All right. Thank you.

15 All right. Let's finalise -- let's finalise the exhibit business

16 relating to the witness we finished with yesterday.

17 You will have noticed, in the meantime, that we have Judge Kwon

18 missing this morning. He is away with the president and others today. He

19 will be back with us on Monday. So we are invoking, of course, the

20 provisions of Rule 15 bis.

21 Yes. Now, documents that the Prosecution wishes to tender with

22 the testimony of PW-130? Yes, Madam Fauveau.

23 MS. FAUVEAU: [Interpretation] Mr. President, just before the

24 mentioning of the exhibits regarding this witness, I would like to mention

25 to the Trial Chamber that I received the translation of the document

Page 5173

1 5D142, 5D152 and 5D153 that I presented to the witness 131 during the

2 cross-examination. I want to inform you that the translation into English

3 is in the e-court system and I would like to ask you to admit these

4 documents into the file.

5 JUDGE AGIUS: All right. That was the previous -- not this last

6 one we finished yesterday, the previous one.

7 MS. FAUVEAU: [Interpretation] Yes, that's right, Mr. President.

8 It was the previous witness.

9 JUDGE AGIUS: I remember we had left three documents in limbo. So

10 these three documents, it's 5D142, 5D152 and 5D153, which were marked for

11 identification only when they were tendered, have now reached maturity age

12 and will be admitted as full documents. Full exhibits. Thank you.

13 So let's now go to PW-130. Mr. Nicholls.

14 MR. NICHOLLS: Good morning, Your Honours.

15 First, which I think we've already dealt with is P02313 which

16 was -- I'm sorry, we didn't --

17 JUDGE AGIUS: 2313 is the testimony, his previous testimony in

18 Krstic.

19 MR. NICHOLLS: Yes, Your Honour. 2314, the pseudonym sheet.

20 JUDGE AGIUS: Yes. Now these two will both go under seal.

21 MR. NICHOLLS: Yes, thank you. Now, running through the contents

22 of the packet which was passed out, the intercepts, 1138A, 1138B, 1138C,

23 under seal, please. 1138D, also under seal. And 1138E. That is tab 1.

24 Next, 1357A, 1357B, and 1357C. That is tab 2.

25 Next, 1392A, 1392B, and 1392C, which is tab 4, and A and B under

Page 5174

1 seal, please.

2 Then 1395A, B, C, D, E and F, if I can say it that way, with A and

3 B under seal, please. That is tab 5.

4 Next would be P02298, 2299 and 2300, which were photographs of

5 antennas. 2301, 2302, 2303 and 2304 which are more photographs. 2306,

6 and 2307, photographs of tape recorders. 1925, although that may have

7 already been -- that has not been tendered. 1926, again photographs.

8 2315, which is handwritten intercept notebook number 231. 2316, which is

9 handwritten notebook number 98. And then we have PIC 00055 and 56, which

10 were photographs marked by the witness in court.

11 And, Your Honours, what you should also have and the Defence,

12 which I passed out at the end yesterday, is an index to the packets to

13 make it a little bit more easy to navigate what the different versions

14 are. This includes tab 3 because it is in the packet which had already

15 been passed out, but as I said at the beginning, that was an error. That

16 was not one of the intercepts by 130.

17 JUDGE AGIUS: I thank you so much, Mr. Nicholls. Any objections

18 from any of the Defence teams? Mr. Ostojic.

19 MR. OSTOJIC: Thank you, Mr. President. We do have an objection,

20 Your Honour. First of all, to maybe to do it in an organised fashion with

21 respect to Exhibit P 02298, 99, 300, 301, 302, 303 and 304, as well as

22 P 02306 and 2307, including P 02315 and 2316 we have an objection. This

23 was not produced to us in the past and, as reflected in the Prosecutor's

24 very own confidential exhibits to tender list, that does not bear a 65 ter

25 number, so we are objecting on that basis.

Page 5175

1 With respect to the other exhibits, if I may, we do have an

2 objection to the inaccurate and non-specific translation that was

3 performed with respect to the English translation, specifically in

4 P 01138, identified as the 65 ter number 1138A, and 1138D. Further on,

5 P 01357, identified as 65 ter number 1357A. P 01392, identified as 65 ter

6 number 1392A and then Prosecution Exhibit P 01395 identified as 1395A and

7 1395C.

8 Your Honour, all of us believe, as the Prosecutor himself said

9 yesterday, on page 57, lines 22 through 23, that although he tried to

10 dissuade the CLSS section to interpret the words from the logbook and

11 instead to translate those words, we insist that those specific documents

12 be translated, not interpreted, the way perhaps CLSS believes they should

13 be interpreted or the way the Prosecutor believes they should be

14 interpreted. We believe that the documents, especially those which are

15 not only perhaps significant but important in this case, should be given

16 again to the CLSS and that the Court reserves its right. And I know they

17 are marked only for identification because we have our pending motion with

18 respect to the chain of custody of those issues, but that we get a very

19 clean copy with respect to those specific translations. There are errors

20 that we believe we do not just bring out for the Court; some we did in the

21 translation, but there were additions made on it and of course they were

22 innocently made we think by the CLSS. But nonetheless, for the Court to

23 have a complete record and to ensure that our clients get a fair trial, we

24 think that those exhibits should not be introduced into evidence at this

25 time, but rather tendered back to CLSS, so that they can do a proper

Page 5176

1 translation and not interpretation of those very exhibits. Therefore, we

2 object to those specifically, Your Honour.

3 JUDGE AGIUS: Okay. For the time being, I will not ask for other

4 objections from other Defence teams. One moment. I'll ask Mr. Nicholls

5 to address this objection, which seems to be divided into two types of

6 objections. Yes, Mr. Nicholls or Mr. McCloskey; I don't know who is going

7 to deal with this.

8 MR. NICHOLLS: First, Your Honours, 2298 and onwards, the

9 photographs, those we sought to put on the exhibit -- on the -- those were

10 disclosed by EDS back in April, I believe. It turned out that there had

11 been a problem, that a surrogate sheet was put on EDS, that was brought to

12 our attention by Ms. Fauveau recently. We printed out copies of that. I

13 think there should have been an objection made at the time I was showing

14 them to the witness and we could have dealt with it then, rather than

15 having no objection whatsoever to me having them marked, put in. But

16 there has been no prejudice whatsoever from that. The witness identified

17 those photos, the Defence had plenty of notice in advance that I planned

18 to use those exhibits. They were on my list from early on, so I think the

19 objection is untimely and there is no prejudice whatsoever. The photos I

20 think are helpful in showing the type of equipment that was used and this

21 is a type of objection that should be made earlier, when the evidence is

22 shown to the witness or when it's put on my list and there is a complaint.

23 So I think this is just a little bit too little too late. There has been

24 no prejudice and it's untimely.

25 JUDGE AGIUS: Does that -- I can understand that to refer to 2298,

Page 5177

1 to the photographs of the various antenna and to photograph of the tape

2 recorder.

3 MR. NICHOLLS: Yes. It's 2298, 2299 and 23 --

4 JUDGE AGIUS: But does if also apply, what you just stated to 2315

5 and 2316, in other words, the two handwritten intercept notebooks?

6 MR. NICHOLLS: I didn't -- I don't have it on my screen, but yes,

7 that is correct. I'm not sure there was an objection to the notebooks.

8 There was.

9 JUDGE AGIUS: Yes, there was of course. I mean the objection was

10 on the same basis. I just want to --

11 MR. NICHOLLS: It applies as well. Those have clearly been part

12 of this from the beginning; they have been available to the Defence. And

13 it's the -- it's the -- those are helpful to the Court because those are

14 the originals of the photocopy that we are putting in. So it's the same

15 documents. Those were disclosed on the 16th of June, 2005. And again,

16 they were on my list to be used from the beginning. I think it's -- my

17 response is the same.

18 JUDGE AGIUS: Now, the other category of documents objected to,

19 namely the 1138, 11 -- 1357, 1392 and 1395, what's your position on --

20 MR. NICHOLLS: I believe Mr. McCloskey wants to address you on the

21 translations issue.

22 JUDGE AGIUS: All right. Thank you. Mr. McCloskey.

23 MR. McCLOSKEY: Mr. President, Mr. Ostojic and I have, I think, in

24 the past, spoken briefly about CLSS's efforts to -- in translation

25 sometimes they do a little analysis like the case I remember here, I don't

Page 5178

1 know which exhibit it is, but they put in the village I think it's Caparde

2 or Pasarde which is an actual village as opposed to the indistinguishable

3 word that was in the notebook. As I mentioned, we have been talking with

4 them about that and as these -- if -- as we notice these things happening

5 and as counsel notices them, we'll try to -- I think we will probably

6 agree on most of these and I think we can -- before these intercepts

7 actually get finally offered, I think we can have those problems all

8 worked out among ourselves. We are just -- point out the ones they are

9 most concerned with. There are some 2 to 300 of these intercepts and we

10 have got two or three months to work them out. So I think between us, we

11 can work this out. But CLSS is just trying to be helpful. There is

12 nothing really very prejudicial in them, but counsel is correct, these are

13 unlike some other documents. They should really stand for the words that

14 are there and they -- we shouldn't really have a lot of analysis like that

15 from the translation unit.

16 JUDGE AGIUS: Yes. Let's deal with this. Mr. Zivanovic, let me

17 finish, please, with Mr. Ostojic's --

18 [Trial Chamber confers]

19 JUDGE AGIUS: So we agree that, again, these categories -- these

20 exhibits or documents do indeed fall into two separate categories and

21 need more or less to be treated differently, somewhat differently,

22 according to their specificity. The thing is and we are in agreement on

23 this, I think the admission of documents is so vital to any case that I

24 wouldn't even dare start discussing it with my two colleagues present here

25 in the absence of Judge Kwon. I think it's a matter that each challenged

Page 5179

1 document must be thoroughly discussed between all of us and a decision

2 taken by all of us, preferably unanimously, because, as I said, each

3 document may be vital to the case.

4 So I will start with 2298, 2299, 2300, 2301, 2302, 2303, 2304,

5 2306, 2307, 2315, 2316. These -- yes, Mr. Nicholls.

6 MR. NICHOLLS: Sorry, could I make one more point, please, on the

7 notebooks. 2315 and 2316, which is that the Defence actually asked that

8 those be used with the witness, asked that he be shown them and asked that

9 he flipped through them so they also made use of them.

10 JUDGE AGIUS: That happens with many challenged documents. You

11 don't need to address that. We have been dealing with such problems, if

12 you can call them problems, all our legal lifetime. So don't worry about

13 that. These documents, you did not also mention 1926, didn't you, which

14 is another photo?

15 MR. OSTOJIC: That is correct, Your Honour, because that number

16 does bear a 65 ter number. But if I can just add in the proper framework

17 for just one minute, Your Honour, I think the onus is not on the Defence

18 in order to advise the Prosecution during their case in chief when they

19 should or should not follow the Rules of Procedure and Evidence that are

20 prescribed in this Tribunal. And secondly, we are not to advise them

21 during their case in chief whether they should or should not follow the

22 rules handed down by yourself, Mr. President, in identifying documents and

23 giving us those documents.

24 Instead, I think failing to do so should not be something that

25 they should argue that we were waived during the process. We did not

Page 5180

1 waive the right. We think the procedure here was to allow the Court to

2 hear the evidence to allow those exhibits and then we are going to have a

3 debate about those exhibits. If in fact the rules have changed and the

4 Court would like before a witness testifies for us to go through each

5 exhibit and set forth our objections to those exhibits, we will be glad to

6 do it. But I think the failing to do so should not, and it's misguided

7 with all due respect to my learned friends, to suggest that we have

8 waived. In fact, they have failed to follow not only the rules of the

9 Tribunal, but also this Court's order when and whether or not they can

10 produce documents. And they could have asked for leave of court, but they

11 failed to do so, not that the Defence failed to make an objection in a

12 timely manner. We believe the objections are, in fact, timely when we

13 bring them up when the Court instructed us earlier how to proceed.

14 JUDGE AGIUS: Thank you, Mr. Ostojic. All these documents that I

15 have referred to will, for the time being, be marked for identification

16 purposes, pending further deliberations by the Trial Chamber in due

17 course.

18 Now, coming to 1138A, 1138D, 1138 -- 11 -- 1357A, 1392A, 1395A,

19 1395C, these are all intercepts. More or less, we have already given you

20 a clear cut indication that since intercepts are all being challenged,

21 basically we will be marking them for identification for the time being

22 until the matter is determined. Probably the matter will be determined in

23 the course of the proceedings and not at the end of the proceedings. But

24 for the time being, these that I have mentioned, together with the others

25 that were not mentioned by Mr. Ostojic, will be, for the time being,

Page 5181

1 marked for identification purposes only and then we'll ultimately decide

2 whether to admit them at all at a later stage.

3 All right?

4 That disposes of the Prosecution documents. Now, Mr. Zivanovic.

5 MR. ZIVANOVIC: [Interpretation] I also have an objection, Your

6 Honour, linked to the documents submitted by the Prosecution. Of course,

7 in addition to the general remarks that have already been heard in the

8 proceedings and about which the Trial Chamber will rule, I would like in

9 particular to indicate that I oppose to the admission of Prosecution

10 numbers 1395E and 1395F. This is an intercepted conversation dated the

11 2nd of August, 1995 at 1300 hours. And on the list, it is indicated that

12 it is an audio tape. We did not hear the audio tape here. We heard a CD

13 or a DVD, I don't know exactly which.

14 Secondly, it is not indicated here that it is a copy, and it is

15 not indicated what the source was, what the original from which the copy

16 was made. So I think an erroneous decision could create an erroneous

17 impression that we are admitting an original audio tape. Furthermore,

18 when an original audio tape has not been produced in open court, and also

19 in view of the fact that the other party has it and has listened to it

20 together with the witness as the witness has confirmed in the proceedings,

21 I think that the admission of such evidence would be undermining the

22 integrity of these proceedings, because what this Chamber should know,

23 they should know exactly whether this is the original and whether the copy

24 that is being tendered corresponds to the original, especially in a

25 situation when someone is challenging it.

Page 5182

1 JUDGE AGIUS: Thank you. I think again there are two aspects to

2 this. The first point made by Mr. Zivanovic, I think, was covered by

3 myself when I was dealing with the intercepts challenged by Mr. Ostojic,

4 the same argument or the same reasoning applies.

5 With regard to the second point made in relation to whether this

6 is an audio or audio tape that's a copy, whether it's not, I think it will

7 remain a submission for the time being and we will -- I don't know if Mr.

8 McCloskey or Mr. Nicholls want to intervene now, but I don't think that

9 it's in our powers to say any more on it than what Mr. Zivanovic has. I

10 don't think we ought to say anything on it. We will take it as a

11 submission made which will be considered later when we weigh the pros and

12 cons or the plus and minuses in admitting this document or not admitting

13 it. Yes, Mr. Nicholls.

14 MR. NICHOLLS: That's right, Your Honour. I think that's fine.

15 There are just a few of these audio intercepts that we have and we can

16 deal with that. I would just point out that the witness authenticated the

17 recording that we heard in court, that it was the same and it was the one

18 that he had heard on August 2nd and transcribed.

19 JUDGE AGIUS: All right. Incidentally, Mr. Zivanovic, you don't

20 seem to have asked the -- or expect or demand from the Prosecution the

21 production of the original audio, do you? We had an indication from

22 Mr. -- I don't know who, I think Mr. McCloskey, two days ago that the

23 original is in the vault, so it is available. I understand it was made

24 clear. I don't interpret your objection as amounting to a request that

25 the Prosecution bring forward this original audio. I didn't understand

Page 5183

1 you that way any way. I understood you as objecting to the tendering of

2 what we have here, what the Prosecution is seeking to tender. Yes.

3 MR. ZIVANOVIC: [Interpretation] Correct. I made an objection

4 here, among other things, to the admission of what the Prosecutor has

5 tendered. However, even back then, I wanted clarification, and when the

6 Prosecutor offered to show me the tape in the Office of the Prosecutor, I

7 understood you to say then that that can be done only in this courtroom.

8 If the Court -- if the tape needs to be heard at all. And I relied on

9 that. I think that was perfectly appropriate, and I have no interest in

10 listening to the tape on my own. My interest is in having the tape heard

11 in the courtroom.

12 JUDGE AGIUS: The objection or the point with the Prosecution at

13 the time, it's you, and of course, it was rather unusual, unorthodox, to

14 hear suggestion that it be played to you privately and not to everyone

15 here to be able to follow. I mean, because others may pick up things from

16 it that, upon which they can build arguments in relation to other

17 intercepts and other recordings. So we do not give instructions to the

18 Prosecution on what documents or what exhibits to bring forward. It's up

19 to you. All right.

20 So the position as it is now, it seems that you are objecting to

21 1395E and F, on the basis of what you explained. Your objection being

22 countered amongst other things by the Prosecution saying that this was --

23 this tape copy was confirmed as authentic by the witness. So we leave it

24 at that. It will also be marked with the rest of the 1395 sections of

25 that document, marked for identification and we will later on decide on

Page 5184

1 the admissibility of that document.

2 All right. Any other objections in relation to the proposed

3 documents to be tendered by the Prosecution? I hear none. So the rest

4 are so admitted.

5 Now, there are some documents which I understand the -- some of

6 the Defence teams would like to tender. The Popovic Defence team made use

7 of several documents. Do you wish to tender any of them?

8 MR. ZIVANOVIC: [Interpretation] I have submitted a list of those

9 documents, Your Honour.

10 JUDGE AGIUS: I will go through it myself, then. It's 1D82, 1D83,

11 1D86, 1D93, and then 5D146, paragraph 4, subparagraph 1, which will need,

12 of course, to be given a different number. Now it will be 1 -- I don't

13 know, 1D, 5D, I don't know how you would --

14 THE REGISTRAR: Yes, Your Honour, 1D5D146.

15 JUDGE AGIUS: Yes, Mr. Zivanovic.

16 MR. ZIVANOVIC: [Interpretation] Just one small correction. I

17 said, speaking of 5D146, it was not paragraph 4. It was page 4,

18 subparagraph 1, because the record says paragraph 4.

19 JUDGE AGIUS: It's paragraph 4 and may have been my mistake. It's

20 5D146, page 4, subparagraph 1, subparagraph 1. Whatever that means,

21 subparagraph.

22 MR. ZIVANOVIC: [Interpretation] That is precisely the passage

23 marked by number 1 and it's at the bottom of the page.

24 JUDGE AGIUS: All right. Okay. I think it will be clear from --

25 any objection from anyone, Prosecution or other Defence teams? Yes, Mr.

Page 5185

1 Nicholls.

2 MR. NICHOLLS: No objection, Your Honour, just one point. We

3 didn't receive the list which would be nice to get in advance if they are

4 sending it out, a courtesy copy. And second, just in terms of the

5 statement and the subparagraph, I also think it's more helpful just to put

6 the whole document in rather than paragraphs of a document so that the

7 context is clear.

8 JUDGE AGIUS: Yes, Mr. Josse.

9 MR. JOSSE: Could I make it clear that, particularly in relation

10 to this statement, we object to that vigorously. We relied on the fact

11 that only that part of the statement was cross-examined in by my learned

12 friend, Mr. Zivanovic. And, Your Honour, were the whole of this statement

13 to go in, it would really change the goal post quite substantially.

14 [Trial Chamber confers]

15 JUDGE AGIUS: We are fully in agreement that it should be only

16 this subparagraph from this document that will be tendered by

17 Mr. Zivanovic on behalf of his client.

18 Now, yes, Mr. Nicholls.

19 MR. NICHOLLS: Your Honour, our position -- you made your decision

20 is that the whole document should come in when it's so short, it's just a

21 few pages, but otherwise, I don't see any reason for just the subparagraph

22 to come in because, again, he read from it, he quoted it and he made his

23 record pretty clear on the record, so I don't see any reason to put in

24 just a subparagraph of a document like that.

25 JUDGE AGIUS: I think it's quite clear why we should actually, in

Page 5186

1 the circumstances, but that's the position.

2 May I ask, Mr. Zivanovic, to refresh your memories? 1D82, 83, 86

3 and 93, are they still without a translation?

4 MR. ZIVANOVIC: [Interpretation] Your Honour, unfortunately I think

5 we don't yet have a translation, but it will probably be available by the

6 end of the day. In fact, no, no, it's not certain when we will have it.

7 JUDGE AGIUS: Okay. Yes, Madam Fauveau.

8 MS. FAUVEAU: [Interpretation] [No interpretation] Same as we do

9 have a translation in e-court, 5263.

10 JUDGE AGIUS: Of which document?

11 MS. FAUVEAU: [Interpretation] Document 1D83 is the same document

12 as 5D153.

13 JUDGE AGIUS: Do you agree with that? I mean, I can't confirm or

14 deny. But usually Madam Fauveau is correct, most of the time. I don't

15 want to give you --

16 MR. ZIVANOVIC: [Interpretation] I will have to check again, Your

17 Honour, but I don't think that's the case. I think it was 1D83.

18 JUDGE AGIUS: Okay. Let's play it safe. I would rather not take

19 risks. These four documents, 1D82, 83, 86, 93, will, as we have done in

20 the past with other documents, and hitherto untranslated, will be marked

21 for identification and will become full documents, full exhibits, once we

22 have confirmation that the translation has been completed as -- and

23 introduced in the records.

24 As regards 5D146, it's only subparagraph 1 on page 4 indicated by

25 Mr. Zivanovic that will be admitted.

Page 5187

1 Now, would anybody else like to tender documents in relation to

2 the testimony of PW-130? Madam Fauveau.

3 MS. FAUVEAU: [Interpretation] Just a document 5D150.

4 JUDGE AGIUS: And is it translated?

5 MS. FAUVEAU: [Interpretation] Yes, it is.

6 JUDGE AGIUS: Any objections? So it is so admitted.

7 I understand that the Nikolic team also had an intention or -- no,

8 no, but that's -- I see the Nikolic team here, but it is 5D150. It's

9 obviously a mistake. It should be the Miletic team.

10 Yes, Mr. Zivanovic.

11 MR. ZIVANOVIC: [Interpretation] I'm sorry, Your Honour. I think

12 1D94 has been omitted, although it was used in cross-examination. It was

13 not included in the list. So with my apologies, I would kindly ask you to

14 tender that. It's dated 4th August, 1995.

15 JUDGE AGIUS: All right. Any objection to that? We did not have

16 it on our list. So 5D -- sorry, 1D94 is also -- is it translated, Mr.

17 Zivanovic?

18 MR. ZIVANOVIC: [Interpretation] No, but it has been given to the

19 CLSS along with all the others.

20 JUDGE AGIUS: It will be treated just like the others have been

21 treated. It will be marked for identification purposes only for the time

22 being, and then once the translation is made and introduced in the

23 records, we will upgrade the document to an exhibit. That concludes the

24 tendering procedure in relation to PW-130. There doesn't seem to be any

25 further business to transact.

Page 5188

1 Let's bring in witness, Major Rutten, please.

2 [The witness entered court]


4 [Resumed]

5 JUDGE AGIUS: Good morning to you, Major Rutten, and welcome back.

6 THE WITNESS: Good morning.

7 JUDGE AGIUS: We are going to proceed with the cross-examinations

8 and hopefully finish today. I think there was only one or two

9 cross-examinations left. Three? There is Madam Fauveau. Who else?

10 MR. HAYNES: There's two and a half, Your Honour. I think

11 Ms. Condon and then Madam Fauveau and then me.

12 JUDGE AGIUS: Okay. Who wishes to go first? I think it was

13 Ms. Condon who was going first upon our request, actually, so -- yes, go

14 ahead, Ms. Condon, please.

15 MS. CONDON: Thank you, Your Honour.

16 Cross-examination by Ms. Condon: [Continued]

17 Q. Major Rutten, I want to take you back just briefly to the evidence

18 of Monday in relation to -- I asked you about some meetings that took

19 place at Potocari with Muslim leaders. You recall that?

20 A. Yes, I do.

21 Q. Perhaps if the witness could be shown P 02103, Your Honour. It's

22 photograph 7. You have that photo in front of you?

23 A. Yes.

24 Q. Perhaps if Madam Usher could assist with the -- if the witness

25 could mark this photograph. Now, just before I proceed, is this a better

Page 5189

1 photograph than the one that I showed you on Monday?

2 A. Yes.

3 Q. Mark the house, you're able to do that with this photo?

4 A. Yes, I am.

5 Q. Okay. So perhaps could you mark, if you can identify from that

6 photo, the house, houses or the area of where these meetings took place?

7 A. [Marks]

8 Q. All right. Now I'll get to you initial that, please.

9 A. What initials do I --

10 Q. Your initials.

11 A. Okay. [Marks]

12 Q. All right. Now can you -- how many meetings took place at that

13 house?

14 A. The exact amount of meetings, I don't know. Exactly, no.

15 Q. Can you give me an estimate?

16 A. A rough estimate could be six or seven times.

17 Q. And in what period did these meetings take place?

18 A. In the period throughout February until June.

19 Q. No meetings in July?

20 A. No, no meetings in July.

21 Q. All right. Now, I've concluded with that photo. So perhaps if

22 that photo could be saved, Your Honour.

23 JUDGE AGIUS: Yes, Madam Registrar. Go ahead.

24 MS. CONDON: Thank you, Your Honour.

25 Q. Now, I also asked you some questions on Monday in relation to the

Page 5190

1 second role of film that -- from which you had taken photos. You recall

2 those questions?

3 A. Yes.

4 Q. And in particular, there was a reference in your Assen debriefing

5 statement to having taken photos of some Muslim leaders. Do you recall

6 that?

7 A. Yes, I do recall.

8 Q. Now the Muslim leaders that you took photographs of, are they the

9 two gentlemen that we referred to on Monday, Mr. Mandzic and

10 Mr. Sabanovic?

11 A. Yes.

12 Q. Now, I presume that you took those photos in your capacity as an

13 intelligence officer; is that correct?

14 A. Yes.

15 Q. You didn't take them for our own personal reasons?

16 A. No.

17 Q. All right. Now, knowing that these photographs were on that

18 second roll of film, why didn't you hand over that second roll of film to

19 the Dutch Ministry of Defence?

20 A. They never asked for it.

21 Q. But, Major Rutten, you obviously appreciate the significance of

22 the roll that you had as an intelligence officer, the information

23 gathering role, you agree with that?

24 A. Yes.

25 Q. So you telling me that simply because they failed to ask for that,

Page 5191

1 you didn't have the wherewithal to hand over that?

2 A. No, sorry. I have to --

3 JUDGE AGIUS: One moment, one moment. Mr. Nicholls. Mr. Thayer,

4 sorry.

5 MR. THAYER: Good morning, Your Honour. This ground was covered

6 on Monday with respect to questions that were or were not asked about the

7 film that was or was not turned over and the expectations that Major

8 Rutten had about being asked certain questions and not being asked certain

9 questions.

10 JUDGE AGIUS: He did go into details and he explained how he told

11 them that he would eventually hand down the other film and how actually he

12 handed it within our 24 hours or within -- even mentioned the time and to

13 whom he handed it when he was eventually asked to hand it over. So why go

14 over the details again?

15 MS. CONDON: Your Honour, just in my submission, that's not

16 correct what the learned Prosecutor said. I did not ask any questions

17 about the decision not to hand over the second roll of film.

18 JUDGE AGIUS: You just asked him why didn't you land over the

19 second roll of film to the Dutch Ministry of Defence?

20 MS. CONDON: But these questions haven't been asked before.

21 JUDGE AGIUS: Of course they have been answered before. Of course

22 they have been answered before. He went into great detail because this

23 matter was dealt with pretty thoroughly.

24 MS. CONDON: May I proceed, Your Honour, in relation to --

25 JUDGE AGIUS: But not asking the same question again.

Page 5192


2 Q. Now, you also indicated, Major Rutten, that in relation to the

3 second roll of film, that it referred to happenings in and around Potocari

4 on the 12th and 13th of July. That was your evidence on Monday.

5 A. Yes.

6 Q. Well, can you be a little bit more specific, please, because I

7 didn't ask you that. What do you mean when you say that those photographs

8 related to happenings in and around Potocari on the 12th and 13th of July?

9 A. Those photos that I already gave to this Court in the Krstic case

10 were the photos with the detailed photos that I had of 12th and 13th July

11 and that were, for instance, the photos of the pile of IDs burning and

12 that I took from the compound in Potocari in front -- in the picture that

13 was in front of the "White House".

14 Q. Yes. But you mentioned seven or eight photographs around the

15 period. We don't have seven or eight photographs in this trial that -- of

16 photographs that you've taken.

17 A. No, but they were offered to me in the Krstic case and it's not my

18 obligation, I think, that which one are offered to this Court or not or in

19 which trial or not.

20 Q. No, no. I appreciate that, Major, but the fact is is that in

21 particular -- well, in particular, on this second roll of film, were there

22 any photos in relation to observations of the role that DutchBat was

23 playing insofar as the transport of the refugees were concerned? Any

24 photos of that nature on this second roll of film? I didn't ask you that

25 on Monday.

Page 5193

1 A. No.

2 Q. No?

3 A. Those pictures were only on the first roll.

4 Q. Right. Well, now that we are on this topic of the role of

5 DutchBat in terms of the transport of the refugees, it's your evidence in

6 this trial, and in Krstic, is it not, that at no stage were the DutchBat

7 soldiers working with the refugees at the point where the men were being

8 separated from the women; is that correct? Perhaps, shall I read out a

9 particular part of your summary in this trial --

10 A. Yes.

11 Q. -- just so that you understand what I'm referring to. This is at

12 page 47, Your Honour, lines 23 to 25, and this is at the point where you

13 and Lieutenant van Duijn have your difference of opinion. Yes?

14 A. Yes.

15 Q. All right. "He told this to Van Duijn who had a different point

16 of view. On the other side of the line at the buses, Serb soldiers were

17 carrying out the separation of men from their families. UN soldiers were

18 not working with the refugees at the point where the men were being

19 separated from the women." Is that correct?

20 A. That is correct.

21 Q. That's your evidence?

22 A. Yes.

23 Q. Yes? And is it the case that you have always, Major Rutten,

24 maintained that position that at no point were DutchBat in any way

25 involved with assisting or collaborating with the separation?

Page 5194

1 A. No, no.

2 Q. You haven't, have you? You've had a different view point about

3 that, haven't you?

4 A. Yes, I had a different view point, yes.

5 Q. Right. Well, you're on your oath in the Krstic trial, as you are

6 here. So you're telling the truth to this Trial Chamber?

7 A. Yes.

8 Q. Yeah? So on those occasions where you've had a different point of

9 view, has that not been the truth?

10 A. I don't understand your question.

11 Q. Right?

12 JUDGE AGIUS: Let me explain. It's being put to you that while to

13 this Trial Chamber you have indicated that to your knowledge that DutchBat

14 personnel were at no time involved in separating the two genders, men from

15 women. In other instance, and it's as I understand Ms. Condon, she is

16 referring to your testimony in the Krstic trial, you did not exactly say

17 so. You maintained a different position. She is actually suggesting to

18 you that if what you have told this Trial Chamber, as you say, is the

19 truth, what you may have told another Chamber, that's the Krstic trial,

20 may not have been the truth. This is what is being proposed to you. Did

21 I put it right?

22 MS. CONDON: Half right, Your Honour, if I can be so bold.

23 Q. Perhaps if I actually specifically put to Major Rutten the other

24 occasion that I am referring to. It's the case, is it not, that you were

25 interviewed in August of 1998 by Nova television?

Page 5195

1 A. Yes.

2 Q. And that was a controversial television interview?

3 A. Yes.

4 Q. The subject -- the ramifications of it were controversial, you

5 agree with that?

6 A. Yes, I agree with that.

7 Q. Yeah. And the reason why it was controversial, was it not, was

8 because in the context of Lieutenant Van Duijn's actions, you accused him

9 of having collaborated with the Serb soldiers in the process of separation

10 of the men and the women, is that not correct?

11 A. Yes, that is correct.

12 Q. Yes. So you were telling the truth, were you not, when you were

13 interviewed by the Nova television?

14 A. Yes.

15 Q. Yes? And it's clear, in that context, that in your mind, there

16 was no doubt that the DutchBat were assisting in the process of the

17 separation of the men and the women?

18 A. Now are you making a total different point because I had a -- I

19 was arguing with my colleague about what he was actually doing on the

20 road, and that looked like collaboration. He had a different point of

21 view on that. And I tried to explain to my colleague what he was actually

22 doing at that point, and you are saying something completely different, to

23 my view.

24 Q. Alright. I'll rephrase it, then, Major Rutten. Is that -- is it

25 the case that the view you expressed on Nova television in August of 1998,

Page 5196

1 that the DutchBat were collaborating insofar as the separation of men and

2 women are concerned, is that correct?

3 A. No, no. You're rephrasing it again. And you are saying something

4 different than what I am saying at the moment. I'm only saying that the

5 Lieutenant Van Duijn, at the way he worked on that road, he didn't realise

6 what I saw through the image through the camera from the photos that I

7 made on there and that is the position that I had. And I tried to

8 convince my colleague at that point what that picture looked like. That

9 is the only thing I explained. And that looked like if we were taking

10 part in evacuation of the Muslim population.

11 Q. But correct me if I'm wrong, did you not at some stage as well,

12 when you were interviewed by the NIOD report, specifically the way it's

13 presented, is that you accused Major -- Lieutenant Van Duijn of aiding and

14 abetting in relation to this process of separation. Is that not correct?

15 A. You are saying that I am accusing him. I never accused him. I

16 said only that he --

17 Q. All right. I'll move on, Your Honour.

18 JUDGE AGIUS: Okay. But aiding and abetting is a very precise

19 legal term with its own legal connotations.

20 MS. CONDON: I appreciate that, Your Honour.

21 JUDGE AGIUS: And if you are suggesting that he accused him of

22 aiding and abetting, I think you need to face him with chapter and verse.

23 MS. CONDON: I will, Your Honour.

24 JUDGE AGIUS: All right. Okay.

25 MS. CONDON: I'm reading from -- I don't have it on the e-court,

Page 5197

1 Your Honour, but I can read from the document.

2 Q. I'm reading from part 4, chapter 4, section 28 of the NIOD report.

3 We've already established you're familiar with this document.

4 A. I haven't got all lines in my mind.

5 Q. But Major, you were interviewed for this report?

6 A. Yes, in 2000, yes.

7 Q. And there is a specific chapter that's headed "Suspicions and

8 Dilemmas," Van Duijn and Rutten. You, no doubt, have read this chapter?

9 A. Yes, years ago.

10 Q. Let me remind you of a specific aspect of it. This appears at the

11 bottom of page 2. Page 2, "It was clear to Rutten what fate awaited the

12 men since the discovery of the bodies and his visit to the "White House".

13 He tried to convince his colleagues of this and demanded that they cease

14 to assist the deportation. Rutten in particular found that Van Duijn went

15 too far in his attempts to appease the VRS troops and was engaged

16 in 'aiding and abetting.'" Now, is that information that you provided to

17 the NIOD report, yes or no?

18 A. It is information that I provided, but I never used those words

19 that are mentioned there.

20 Q. Aiding and abetting?

21 A. No.

22 Q. That's their interpretation?

23 A. Yeah, it's a historic report, so they are using their own terms.

24 They are not to my --

25 Q. But we have established, just to make it clear, that you used the

Page 5198

1 word "collaboration" in the Nova television programme?

2 A. Yes.

3 Q. Yes. And not only that, you indicated on Monday that the

4 management report presented some difficulties for you in terms of

5 providing a completely candid account of what had gone on in and around

6 Potocari on those two days in July. You recall that?

7 A. Yes.

8 Q. And part of the reason for that was that you had some personal

9 difficulties about incriminating fellow soldiers who may find themselves

10 exposed to criminal proceedings should you give a full account; is that

11 right?

12 A. I explained that on Monday, yes.

13 Q. But what I'm suggesting to you is when it came to the time to

14 provide -- to give this interview to Nova television in 1998, would it be

15 fair to say that you didn't have those same concerns, insofar as

16 Lieutenant Van Duijn was concerned?

17 JUDGE AGIUS: Mr. Thayer.

18 MR. THAYER: Objection, Your Honour. That's improper question.

19 That's irrelevant to this witness's testimony. He's answered this version

20 of the question four or five different ways and this is not helpful to the

21 Court respectfully, Your Honour.

22 JUDGE AGIUS: Agreed. Yes, objection sustained. Let's move on to

23 something different, Ms. Condon.

24 THE WITNESS: Sorry, sir, if I may say something.

25 JUDGE AGIUS: You don't need to say anything for the time being,

Page 5199

1 only what you are asked and when you are asked, Major Rutten. Be patient

2 with us.

3 MS. CONDON: May I proceed, Your Honour?

4 JUDGE AGIUS: Go ahead.


6 Q. Major, I want to just take you back to this question of the

7 intelligence that you received prior to your mission to Srebrenica. You

8 indicated on Monday that you did in fact receive names of officers from

9 both sides that you were expecting to come into contact with you. You

10 recall that evidence?

11 A. Yes.

12 Q. Yeah? And no doubt -- well, obviously, that means that you

13 received names from officers from the VRS; is that correct?

14 A. Some, yes.

15 Q. Yeah, some. In particular, no doubt you were informed in advance

16 as to the relevance of the Drina Corps in terms of the area that you were

17 going into?

18 A. Yes.

19 Q. Yeah? Well let me ask you this: What particular names did you

20 receive?

21 A. Last week, you heard one name, Jovic. There was in the northern

22 part Nikolic, in the southern part, we had to deal with a man called

23 Colonel Vukovic. These are some names I do recall now.

24 Q. That you received before you went there?

25 A. Yes.

Page 5200

1 Q. The ones that you were told these are people that you would be

2 expected to deal with?

3 A. Yes.

4 Q. And in particular, I want you to focus your mind on -- in the

5 intelligence area, because obviously that was something that was

6 complementing your role. What names did you give -- were you given in so

7 far as the intelligence functions?

8 A. I don't recall those names any more. No, I don't know.

9 Q. You just have no memory?

10 A. No.

11 Q. What about the security functions of any individuals within the

12 Drina Corps?

13 A. No, I have no recollection.

14 Q. No?

15 A. No.

16 Q. What about the name Popovic? Was that ever --

17 A. It never came up.

18 Q. Then?

19 A. No.

20 Q. No. But it has subsequently?

21 A. Yes, during --

22 Q. We'll get to that. Now, after your debriefing, and I don't

23 propose to go through the same questions again. What I want to ask you is

24 this: Is that it's unclear to me from your evidence on Monday whether or

25 not you were specifically asked, in your debriefings from the Dutch

Page 5201

1 Ministry of Defence, to provide any information that you had gleaned as an

2 intelligence officer. Because I'll just give the references. At page

3 45 -- I'd ask my learned friend before he objects, Your Honour, that I can

4 give the page references.

5 JUDGE AGIUS: Yes. Mr. Thayer.

6 MR. THAYER: Your Honour, I'll wait to see the references. Thank

7 you, Mr. President.

8 JUDGE AGIUS: All right.

9 MS. CONDON: At page 45, lines 10 to 15, I asked you, "Were you

10 not asked to provide in those debriefings any information that you had

11 gleaned as a results of being an intelligence officer?" And your answer

12 was, "Yes, I was asked to, but the problem was we had almost no photos

13 whatsoever." That's one answer. And then at page 47, lines 1 to 8, I put

14 to you, "But you agree that were you in fact questioned to provide

15 information in relation to the intelligence that you gathered from your

16 time in Srebrenica to the Dutch Ministry of Defence?" And your answer

17 was, "There were no specific questions, as I remember, on specific

18 intelligence matters themselves."

19 So, perhaps, just can you clarify for me, were you asked questions

20 or not? It's a simple matter, Your Honour.

21 JUDGE AGIUS: Yes, Mr. Thayer.

22 MR. THAYER: Your Honour, it was a simple question that was asked

23 on Monday and he answered it quite simply. I think we are just wasting

24 time going over old ground.

25 JUDGE AGIUS: He has already -- I mean -- I don't know what you

Page 5202

1 feel about it. He explained on Monday how poor intelligence was, how poor

2 intelligence was. He's explained also and to what extent he was an

3 intelligence officer and he has explained what questions were put to him

4 and what answers he gave. What else can we get from this?

5 MS. CONDON: Well, Your Honour, with respect, in my submission, it

6 is unclear from those two sets of questions and answers. It's a simple

7 question.

8 JUDGE AGIUS: But it's a repetitive question. You asked this

9 question and others asked this question before. So next question, please.


11 Q. When you -- I'm going to return to some answers that you gave in

12 relation to your proofing session, Major Rutten, with Mr. Harmon, the

13 Prosecutor in the Krstic trial. You indicated that how it was that these

14 videos and then photos were shown to you were that you had asked about

15 some people that were still in Serbia. Do you recall that?

16 A. Yes.

17 Q. Yeah? And your specific evidence was that you asked, where were

18 they at the moment and you and Mr. Harmon talked about that. You recall

19 that?

20 A. Yes.

21 Q. Yeah? Now, these -- obviously these weren't people generally that

22 we are talking about, were they, they were specific names that came up?

23 A. Names were never mentioned. That was the thing I told on Monday

24 too, about the photographs.

25 Q. So your -- what you're saying is that you did not specifically

Page 5203

1 mention any names, but Mr. Harmon then said to you, that you might be

2 interested in some pictures of people?

3 A. I explained this on Monday already.

4 Q. But there must have been hundreds of people that you would have

5 seen in that period in and around Potocari on those two days; is that

6 correct?

7 A. Yes. I see, daily, hundreds of people.

8 Q. Yes.

9 A. Yes.

10 Q. So no names at this stage came up between you and Mr. Harmon; is

11 that correct?

12 A. That is correct, yes.

13 Q. Yeah? But you indicated just before that the name Popovic did

14 come up at some stage.

15 A. Yes, but you asked that question in relation to something else.

16 Q. Yes.

17 A. You asked that question just before about my period during my

18 mission in Srebrenica.

19 Q. Yes, yes.

20 A. So now you're, to my opinion, you're relating something --

21 Q. No, no, no.

22 A. -- totally different.

23 Q. No, no, no.

24 A. Or you have to ask me another question.

25 Q. I haven't asked --

Page 5204

1 JUDGE AGIUS: Please don't argue with counsel, please. If you

2 want to make a submission to the Trial Chamber in relation to any

3 question, you're free to do so. You have every right to do so and we'll

4 direct you. But, please, no -- don't engage into a direct confrontation

5 and argument with Defence counsel, who is doing her job here. Yes.

6 MS. CONDON: Thank you, Your Honour.

7 Q. So in relation to this process with you and Mr. Harmon and the

8 people that you were still interested in, is that a fair assessment, that

9 you were still wanting to know if these people were still in Serbia; is

10 that correct?

11 A. That question didn't came up. He came up himself because he heard

12 about my plan to go abroad for a new mission, and that was his -- so he

13 said, okay, then I have to talk to someone else. He spoke on the phone to

14 someone else and he never gave any names.

15 Q. But what about you? At any stage, did you identify particular

16 people that you said, well, is such and such still in Serbia?

17 A. No.

18 Q. No, never?

19 A. No.

20 Q. No? Was there any discussion at all about -- from Mr. Harmon,

21 about people that might be of interest in the context of the Krstic trial,

22 people that the Office of the Prosecution were still interested in

23 investigating?

24 A. I told you on Monday that I tried to establish some -- some Serbs

25 from the video stills that I saw and that is the only thing I did.

Page 5205

1 Q. All right. Now, in relation to the video, we've already

2 established that when you saw the video, you made no identification of

3 anybody; is that correct?

4 A. Yes, that is correct.

5 Q. Yeah. And what you said to me on Monday was that after you'd seen

6 the stills from the video, that Mark showed you a book of photographs. Do

7 you recall that?

8 A. Yes.

9 Q. And from that book of photographs, you made an identification?

10 A. Yes.

11 Q. Is that right? Now, just before we get to the book of

12 photographs, what you've indicated today is that in the course of your

13 mission in Srebrenica, the name Popovic was a name that was familiar to

14 you; is that correct?

15 A. Yes. During my mission, yes, it was told once we spoke about the

16 name in the battalion.

17 Q. All right. And when that name was spoken of, it's correct, is it

18 not, that that was in the context of the function that that person

19 performed? I'll rephrase that. That was clumsy. That when his name was

20 spoken of, you were made aware of whether or not what area he was in,

21 whether or not it was intelligence, whether or not it was in security; is

22 that correct?

23 A. No, that's not correct. We never made the -- we had a very poor

24 intelligence situation in the battalion as well and they said these are

25 familiar names to us and they never made a relations to the functions

Page 5206

1 those persons had.

2 Q. Is that a serious question?

3 JUDGE AGIUS: In what context was his name -- did his name come up

4 or was mentioned?

5 THE WITNESS: It was one of the known names on the Serbian side

6 and that's the only thing I heard.

7 JUDGE AGIUS: Yes, Mr. Thayer.

8 MR. THAYER: Your Honour, I was just objecting to the question put

9 to the Major Rutten by my learned friend.

10 MS. CONDON: I withdraw that; it was a comment.

11 Q. You keep on, Major Rutten, emphasising this poor intelligence.

12 A. Yes.

13 Q. Yeah? You no doubt consider yourself to be a professional about

14 what you do?

15 A. Yes.

16 Q. You take pride in your job?

17 A. Yes.

18 Q. Yeah? You've been what promoted -- what rank were you when you

19 were in Srebrenica?

20 A. Lieutenant.

21 Q. And you're now a Major; is that right?

22 A. Yes.

23 Q. Yeah? So I take it from that that you would not be proud, if

24 somebody were to accuse you of not being a good intelligence officer?

25 JUDGE AGIUS: Yes, Mr. Thayer.

Page 5207

1 MR. THAYER: Your Honour, this is wasting time, it's irrelevant,

2 and, frankly, it is getting argumentative and disrespectful to Major

3 Rutten.

4 MS. CONDON: That's not.

5 JUDGE AGIUS: Let's move to the next question. Because who

6 wouldn't? Who wouldn't?

7 MS. CONDON: With respect, Your Honour, this witness --

8 JUDGE AGIUS: Please don't argue, Ms. Condon. Move to your next

9 question. It's almost a facetious question that you put to Major Rutten.

10 Please, your next question.

11 MS. CONDON: Play I proceed, Your Honour, in so far as the

12 relevance has come about by this witness indicating the poor intelligence.

13 May I pursue that?

14 JUDGE AGIUS: Of course you can pursue that. You can just ask him

15 one simple question, what do you mean by that? And we'll see what he has

16 to answer. But incidentally, do you intend to refer Major Rutten to any

17 allegations made by others that he fell short in his duties or performance

18 as an intelligence officer?

19 MS. CONDON: No, Your Honour.

20 JUDGE AGIUS: Then why did you ask the question? That's why I

21 told you it was a facetious question.


23 Q. Major Rutten, just in relation to this issue about the poor

24 intelligence that you seem to rely upon insofar as the DutchBat was

25 concerned, was that due to the personnel or what was the reason for that?

Page 5208

1 A. We received almost no information; in fact, none whatsoever

2 through the UN chain of command in referring intelligence at all. The

3 only intelligence we had and that's also in different reports, was what we

4 had in the line of our sight. So that's why we tried to patrol to the

5 borders of the enclave because then it was in our line of sight somewhat

6 further to have any view of what was happening just around the enclave.

7 We didn't hear nothing, nothing at all during our whole period.

8 Q. Let me put this to you, then: What you say, just so that I

9 understand it, is that in the context of this name that you received of

10 Popovic, you received that without any information as to what position

11 this person held; is that correct?

12 A. I already answered that question.

13 Q. I'm just -- so it's fair to say, is it not, that insofar as

14 intelligence is concerned, that's a useless piece of information?

15 A. No. I don't think so.

16 Q. All right.

17 JUDGE AGIUS: Yes, Mr. Thayer.

18 MR. THAYER: I'll sit down, Your Honour.


20 Q. Now, just going back to this book of photographs that we were

21 talking about before, that Mark Harmon showed you, can you just give me an

22 indication as to how many -- can you recall how many photos were in this

23 book of photographs?

24 A. No. A lot, but I don't know.

25 Q. M'hm. And do you have any recollection of whether or not, prior

Page 5209

1 to looking at the photographs, there was an index provided as to the

2 photos?

3 A. I only saw the photos.

4 Q. M'hm. Perhaps if I could have some assistance from Madam Usher,

5 Your Honour. Perhaps, could you have a look at this, please.

6 JUDGE AGIUS: We need to see it too. Put it on the ELMO, Madam

7 Usher.

8 MS. CONDON: Just the first page to begin with. No, no. Just the

9 first page.

10 JUDGE AGIUS: Can you remove the plastic cover, please.


12 Q. You see that, do you, Major?

13 A. Yes.

14 Q. Yes? Now, is this the book of photographs that you were shown in

15 your proofing session with Mark Harmon?

16 A. No.

17 Q. No?

18 A. No.

19 Q. No?

20 A. I only saw the photos. I never saw a written text. I only saw

21 photos.

22 Q. If you just flip over to the next page, please. Was -- just so

23 that we make sure, if you open up that, that wasn't part of the book of

24 photographs that you were shown?

25 A. No.

Page 5210

1 Q. Okay. Perhaps if we can move on, then, and flip to number 1,

2 please. Is this now the book of photographs that you were shown?

3 A. Yeah, could have been one of them I was shown. I don't know

4 exactly if he was --

5 JUDGE AGIUS: Let's make this clear. What Ms. Condon is obviously

6 after, whether you were just shown a photo or whether you were shown also

7 a photo with the name or an indication of the name of whoever is

8 supposedly shown on the photo in any characters, Latin or Cyrillic. Yes,

9 Mr. Thayer.

10 MR. THAYER: Mr. President, maybe I missed it, but if Major Rutten

11 could have an opportunity to flip through the binder, that might help this

12 procedure along just a bit.

13 MS. CONDON: He can do that.

14 JUDGE AGIUS: We need to know that, whether the photos you saw --

15 you were shown, had the name superimposed or whether they were just clean

16 photos of an individual and you were asked whether you could identify

17 them.

18 THE WITNESS: Those were the photos without names I saw.


20 Q. All right. Just so that we establish this, it's the same photo

21 book - don't get rid of it yet - it's the same photo book, but without,

22 you say, the index at the front, that we saw on the ELMO before? Perhaps

23 if that could be shown again.

24 JUDGE AGIUS: I don't think we need to waste time like this. He

25 has already said that he never saw any writing.

Page 5211

1 MS. CONDON: All right.

2 Q. Just tell me, Major, underneath tab 6, how many photos are there?

3 A. Two photos.

4 Q. Two photos. And one of those photos is the photo from which

5 you've made an identification in this trial; is that correct?

6 A. Yes, that is correct.

7 Q. Yes? And that second photo that's under that tab, that formed

8 part of the same photo book that you were shown in the Mark Harmon

9 proofing session; is that correct?

10 A. Yes, that is correct.

11 Q. All right. Now, I want to know, please, when you made that

12 identification of that photo, was it the case that you said to Mr.

13 Harmon, "Oh, yes, that's similar. That looks like the man that I saw

14 outside the 'White House,' that's similar to the man that I saw outside

15 the 'White House'"?

16 A. I don't know whether I've used those words that you are saying

17 now.

18 JUDGE AGIUS: What do you remember saying to Mr. Harmon? There is

19 the whole thing.

20 THE WITNESS: I remember that I said those are the men that I

21 probably saw at the"White House".


23 Q. Thank you. Probably saw. Because the fact of the matter is, is

24 that when -- so you're not sure about that, if you say that's probably who

25 I saw -- Your Honour.

Page 5212

1 JUDGE AGIUS: Yes, Mr. Thayer.

2 MR. THAYER: Your Honour, my learned friend has the answer from

3 the witness.

4 JUDGE AGIUS: She is perfectly entitled to ask him whether he's

5 sure about his assessment or not. So please proceed with your question,

6 Ms. Condon.

7 MS. CONDON: Thank you, Your Honour.

8 THE WITNESS: Could you --

9 JUDGE AGIUS: Do you -- go ahead. It's your question. I'm not

10 going to repeat it.


12 Q. When you say that you said that's probably the person that I saw,

13 that's because you're not 100 per cent sure that it was?

14 A. That was my first answer then. You asked me what I said to Mark

15 Harmon. That was my answer then to Mark Harmon and later on by flipping

16 again through the photos, looking again, looking again more clearly, I

17 identified that man that was on the photo.

18 Q. Right. Okay. So it took you a number of processes before you

19 did?

20 A. No, no.

21 Q. All right.

22 A. By flipping again, that's not a number of processes. By flipping

23 again, just what I said.

24 Q. Okay. Let's go back to what happened on the 28th of November,

25 which is last Tuesday, in the proofing session with Mr. Thayer, because

Page 5213

1 the fact of the matter is, is that when you were first shown this photo

2 that you have in front of you in that proofing session, your words were to

3 Mr. Thayer, "I cannot be certain if I recognise him now." Is that

4 correct?

5 A. That is correct.

6 Q. Yes. And, again, I'd suggest to you -- you don't have to agree

7 with it -- that that's because in the same way that you first saw it, you

8 said that's probably the man, it's because you simply cannot be sure that

9 the man in the photo is in fact the man you saw outside the "White House"?

10 A. I'm not agreeing with you.

11 Q. All right. So let's go to this person that you say that you saw

12 outside the "White House".

13 MS. CONDON: Your Honour, I'm about to move to a final topic. I

14 see the time.

15 JUDGE AGIUS: That's what we will do. We'll have -- you still

16 have about one hour or 45 minutes, Ms. Fauveau?

17 MS. FAUVEAU: [Interpretation] Yes, Mr. President.

18 JUDGE AGIUS: And Mr. Haynes?

19 MR. HAYNES: Ms. Condon has covered very much of my

20 cross-examination. I don't think I'll have more than 10 or 15 minutes.

21 JUDGE AGIUS: So we'll have a 30-minute break, then. Thank you.

22 --- Recess taken at 10.27 a.m.

23 --- On resuming at 11.00 a.m.

24 JUDGE AGIUS: Ms. Condon, please.

25 MS. CONDON: Thank you, Your Honour.

Page 5214

1 Q. Major Rutten, I was just turning to the question of this person

2 that you say you saw outside the "White House". Now, we've already gone

3 through in considerable detail about your activities in terms of this

4 second visit to the "White House". You recall that evidence on Monday?

5 A. Yes.

6 Q. Now, if the witness could be shown P1535, please.

7 Now, that's a photo in front of you, of the "White House"; is that

8 correct?

9 A. Yes.

10 Q. Now, perhaps if Madam Usher could assist the witness. The first

11 event that you gave evidence about on Monday was that you saw two Dutch

12 soldiers stationed outside the "White House"; is that correct?

13 A. That is correct.

14 Q. I'd like you to mark on there, please, where those Dutch soldiers

15 were.

16 A. [Marks]

17 Q. Right. Now, when you arrived, we've established that you walked

18 around to the left side of the house; is that correct?

19 A. Yes, that is correct.

20 Q. Yeah? And what about Major De Haan? Where was Major De Haan on

21 this second occasion to the "White House"? Because remember that we've

22 established that although you had forgotten that he was in fact the -- I

23 reminded you that in his statement he said he was there on the second

24 time.

25 A. Yes.

Page 5215

1 Q. Is that funny? You smiled then. Is that funny, is it?

2 A. Sorry, I don't understand that.

3 JUDGE AGIUS: Please, Ms. Condon and Major, your question again,

4 please.


6 Q. Could you please mark where Major De Haan was?

7 A. I cannot mark that because Major De Haan was in front of the

8 compound just at the opposite of the "White House".

9 Q. All right. Now --

10 JUDGE AGIUS: One question, because that X that you've marked may

11 be a little bit insufficient to explain to us the exact position of the

12 two Dutch soldiers. You put an X there. How -- can we have more or less

13 an indication of the location. How far -- what's the distance to -- to

14 the building itself?

15 THE WITNESS: From the road to the building it's almost 30 metres,

16 I think. And there were the soldiers who were standing. It's not on the

17 road, the paved road you see. There is not a paved road behind the fence

18 and there were the two soldiers.

19 JUDGE AGIUS: I think that explains it better.


21 Q. Perhaps the X that you've marked now was the way the two Dutch

22 soldiers were; is that correct?

23 A. That is correct.

24 Q. Perhaps, could you just do DS to -- next to this so that we know,

25 initials DS for Dutch soldiers?

Page 5216

1 A. [Marks]

2 Q. All right. We've then established that you walked around the

3 house to the left side; is that correct?

4 A. Yes.

5 Q. Yeah? So is that the left where the aerial -- the tower is, yes,

6 and then you went to the back of the house?

7 A. Yes.

8 Q. Yes? And then you went back to the front of the house which is

9 when you saw the balcony filled with the refugees; is that correct?

10 A. Yes.

11 Q. All right. I want you to mark for me the point where you were

12 at -- exactly at the front of the house where you saw the balcony filled

13 with the refugees.

14 A. [Marks]

15 Q. All right. And we established that that all -- that process that

16 we've just gone through, in your evidence you said on Monday, took about

17 15 minutes, you agree with that?

18 A. Yes.

19 Q. Yeah? This is on the second visit to the "White House". And then

20 you've said that you spoke to the two Dutch soldiers about the

21 deutschmarks being forced. You agree with that?

22 A. Yes.

23 Q. I also just want to remind you that at this time you agreed that

24 there were enormous amount of people around this house at the time, that's

25 what you said on Monday, there were a lot of people around?

Page 5217

1 A. Yes.

2 Q. And you not only that -- you said there was a lot on your mind at

3 this time, you agree with that?

4 A. Yes.

5 Q. Yeah. Now this person that you say was not the plain soldier,

6 where did you first observe this person. Please mark him.

7 A. It was on the paved road next to the "White House", the first road

8 that I saw, and this road here. And I saw him here halfway, halfway that

9 road.

10 Q. M'hm. All right. Well, perhaps if you can do an actual mark,

11 please, an X, and right the initials PS.

12 A. [Marks]

13 Q. Should be actually NPS, not plain soldier, all right? Can you put

14 N there for me.

15 A. Oh, yes. [Marks]

16 Q. Do you have that there? Right. Now, we've established that in

17 the first 15 minutes Major you are moving around a lot, around the house;

18 is that correct?

19 A. Yes.

20 Q. Yeah? So the first time that you see this person is that --

21 that's after you've already been there for 15 minutes; is that correct?

22 A. Yes, that is correct.

23 Q. Yeah? And it is not a case at all, is it, that you at any stage

24 had this person under surveillance for a period of time?

25 A. No.

Page 5218

1 Q. You weren't observing them for the whole time were you?

2 A. No.

3 Q. At best, it would be a fleeting observation; is that correct?

4 A. No. We were sometime at the opposite of the "White House", in

5 front of the gate. There was the situation that I spoke about with some

6 colleagues at the opposite of the "White House". We had some conversation

7 over what was going on, and there, we watched what happened at the

8 opposite of the road, yes.

9 Q. All right. So when you say then, when you were making these

10 observations, it was not in fact at the front of the "White House" that

11 you were making these observations, it was over the road; is that correct?

12 A. Yes.

13 Q. Yeah? And so that was from what, around near the entrance area to

14 the compound, the Potocari compound?

15 A. Yeah, we were standing next to the road, 50 metres.

16 Q. 50?

17 A. 50, yeah.

18 Q. 50 metres away?

19 A. It's 30 metres to the road, so the other side of the road.

20 Q. So a considerable distance, 30 to 50 metres observing this person?

21 A. Yes.

22 Q. Yeah? And you would agree that there it was absolutely nothing

23 distinctive about this person that you describe as not a plain soldier,

24 was there? Well --

25 MR. THAYER: Sorry, Your Honour. My robe is caught on the chair

Page 5219

1 unfortunately.

2 JUDGE AGIUS: Ms. Condon is glad to hear that.

3 MS. CONDON: I'm glad, Your Honour. Very.

4 MR. THAYER: It's really stuck.

5 MS. CONDON: I don't know whether to believe him, Your Honour.

6 MR. THAYER: Thank you, Madam Usher. This is what we call a

7 wardrobe malfunction, back home. Your Honour, the -- if I could just have

8 the last question there.

9 JUDGE AGIUS: Well, her last question was [Microphone not

10 activated].

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

12 JUDGE AGIUS: I'm sorry. And so she said, would you agree that it

13 was absolutely nothing distinctive about this person that you describe as

14 not a plain soldier, was there? Well, and then I noticed you standing up

15 or trying to stand up. And I think Ms. Condon interrupted her question

16 there.

17 MR. THAYER: Yes, Mr. President. It's a twofold objection. The

18 first is it's vague in terms of the term "nothing distinctive" and

19 secondly, he has testified previously about this person that he observed

20 and frankly certain memorable things about this individual that he

21 retained in his memory. So it's been asked and answered to that extent as

22 well.

23 JUDGE AGIUS: I think you need to rephrase your question. You can

24 rephrase it very easily apart from the description that you have already

25 given us. Major Rutten, is there anything else that you could say about

Page 5220

1 this individual that would be distinctive in -- as to his description?

2 THE WITNESS: Earlier I said the thing that was distinctive was

3 that he was in command and not a plain soldier. That was what my -- arose

4 my attention.


6 Q. I'll rephrase my question, Your Honour, because what I'm putting

7 to you, Major, is this: That insofar as the appearance, the physical

8 appearance of this individual is concerned, you would agree that there was

9 nothing distinctive about this person.

10 A. I agree with you.

11 Q. Yes. And that stands to reason, does it not, because you simply

12 gave, as we've already established, no description of this person in any

13 of your statements.

14 A. That is also correct.

15 Q. So I want to ask you about your observation that you made in your

16 proofing session on the 28th of November with Mr. Thayer, where you made

17 this specific comment that this was a person who you considered to be in

18 command and authority. That's what you said to Mr. Thayer.

19 A. That's correct.

20 Q. Yeah? And you would agree that you made absolutely -- in that

21 regard at the proofing session with Mr. Thayer, you made no reference

22 whatsoever to the fact of this person having given direct instructions to

23 other Serb soldiers. Do you agree with that?

24 A. That's -- that's difficult for me to say.

25 Q. All right. Let me ask you this: What you said -- what -- I'll

Page 5221

1 remind you of what you said on the 30th of November. This is at page 5,

2 lines 12 to 13, Your Honour. You said that you had a specific

3 recollection of this person giving direct instructions to other Serb

4 soldiers. You accept that was your evidence --

5 A. Yes.

6 Q. -- in this trial? What I am putting to you is that you made,

7 first of all, no reference in your evidence in Krstic, when you were asked

8 about this, to this specific issue of giving direct instructions. Do you

9 agree with that?

10 A. Yes.

11 Q. Yeah? And again, you made no reference in your proofing session

12 to Mr. Thayer about this person giving direct instructions. You agree

13 with that?

14 A. Yes.

15 Q. Yeah? And we've already established, have we not, on Monday, that

16 your memory ten years later could not be improved as to the details of

17 what you recall about this day on the 13th of July 1995, could it?

18 A. No, it won't be improved. No.

19 Q. And we've already established, have we not, that you can't speak

20 B/C/S, Bosnian Serbo-Croatian?

21 JUDGE AGIUS: Yes, Mr. Thayer.

22 MR. THAYER: Your Honour, we are continuing to repeat prior

23 testimony.

24 MS. CONDON: Your Honour, I object to this objection. I'm leading

25 somewhere in my cross-examination and I object to my learned friend's

Page 5222

1 continual objections without foundation.

2 JUDGE AGIUS: He's been successful in almost all of them except

3 one.

4 MS. CONDON: Well --

5 JUDGE AGIUS: Yes. I think this question --

6 MS. CONDON: I'm leading somewhere.

7 JUDGE AGIUS: This question was asked of him, so you don't need to

8 remind the witness each time of each question that was put to him and how

9 he has answered it. Go straight to the point, Ms. Condon.

10 MS. CONDON: All right.

11 Q. As to exactly what transpired between this person that you

12 describe as not a plain soldier and the Serbian soldiers, you simply could

13 not say, as to whether or not direct instructions were being given. You

14 agree with that, you cannot say that?

15 A. No.

16 Q. Why? It's entirely a matter of presumption on your part, is it

17 not?

18 A. No, it's not presumption. It's a professional overview, and you

19 described me earlier as a professional, so I would give it back to you. I

20 am a professional and I am seeing what I'm seeing and I'm observing quite

21 well, I think, and I can make a distinction between a normal or plain

22 soldier and someone who is in command. That's not only what I've learned

23 but that's also the case through 25 years of experience, what I've seen

24 and what I cannot see at a soldier and what he is doing. And I can see

25 that from a certain distance because I've done that in several missions

Page 5223

1 before.

2 Q. Well, if I just remind you of what you said in Krstic. This is at

3 page 2152, lines 18 to 25, you're asked question: Now what did you

4 observe him doing? This is the -- not a plain soldier. And your answer

5 was: He was talking to the soldiers of the Bosnian Serb army. To me he

6 looked like not a plain soldier because he spoke to everyone who was

7 around. Do you agree that was your evidence?

8 A. Yes.

9 Q. So the words that you used there were that he was talking and he

10 was speaking to people. Is that right?

11 A. Yes.

12 Q. Yeah. Now, speaking of your powers of observation, Major Rutten,

13 I'd like you to have a look, please, at -- perhaps if we -- before we get

14 rid of this photo, could you please initial this photo at the bottom and

15 we'll save that.

16 A. [Marks]

17 Q. All right. Now, if P02103 could be brought up again, please?

18 THE REGISTRAR: Sorry, which page?

19 MS. CONDON: P01936 is the 65 ter number. That was the photo we

20 just had up before. Sorry, got the -- perhaps we can use the ELMO again

21 with this photo if there is some difficulty, Your Honour. All right.

22 Q. Now, just looking at this photo again. And I want you to focus --

23 perhaps it can be moved over to the left a little bit, Madam Usher. Thank

24 you. I want to focus your attention on the gentleman on the right. Now,

25 what you've said in relation to this photograph is, well, first of all,

Page 5224

1 you say you can recognise this individual on the right, do you?

2 A. Yes.

3 Q. From behind?

4 A. Yes.

5 Q. Yeah? Is that because you'd seen photos of this person many times

6 before?

7 A. No. It's kind of a characteristic, if you look at the back of the

8 head, you remember that, seeing that.

9 Q. You'd appreciate it's often very difficult to make an

10 identification of somebody from behind. I'm not being facetious. You

11 would appreciate it's difficult to identify somebody from behind?

12 A. Yes.

13 Q. Yes? So you say that it's not because you'd seen photos of this

14 person before?

15 A. No.

16 Q. No? Not in the photo book that I -- that I showed you before,

17 that's still in front of you?

18 A. Yes.

19 Q. Well, that's what I'm asking you, were there other photos of that

20 individual in that photo book that you were shown by Mr. Harmon?

21 A. Yes, from the first man also from the front side, yes.

22 Q. M'hm, there were?

23 A. Yes.

24 Q. Yeah. And did you see those photos of the man on the right before

25 you came to this photo in the photo book? Do you recall where they were

Page 5225

1 in the sequence?

2 A. I don't recall that.

3 Q. No?

4 A. No.

5 Q. All right. Now, you said that in Krstic, this was a person who

6 was in command on the 12th and 13th of July in and around Potocari, is

7 that right?

8 A. Yes.

9 Q. Yeah? Well, just let me ask you about the 12th of July. Tell me,

10 where did you see him on the 12th of July?

11 A. Do you mean the man on the right.

12 Q. The man on the right. I'm not interested in the man on the left

13 any more. I'm focusing your mind on the gentleman on the right.

14 A. On the road to Potocari. Sorry, on the road to Srebrenica.

15 Q. And in what circumstances?

16 A. Talking with his men.

17 Q. With his men?

18 A. Yes.

19 Q. How many times did you see him on the 12th of July, can you

20 recall?

21 A. Once.

22 Q. And on the 13th of July, it's your evidence that this man on the

23 right was also around the "White House"?

24 A. Yes.

25 Q. Is that correct?

Page 5226

1 A. Yes.

2 Q. Yes. Because what you've even said in this trial was that - this

3 is at page 40, lines 10 and 11 today - is that the photo were the men that

4 you probably saw at the "White House"?

5 A. Yes.

6 Q. Is that correct? So tell me, on what occasion did you see the man

7 on the right at the "White House"? Was it on the first time you went

8 there, was it on the second time, was it on the third time?

9 A. It was during the time that we spent with the -- at the opposite

10 of the road standing there with the Major De Haan and Rave where he had

11 the discussion and at that moment I was seeing him there.

12 Q. Again, I know I've asked you this already, but can you give me

13 some specific time?

14 A. I already told you about the specific time.

15 Q. I appreciate it. It was in the afternoon; is that right?

16 A. Yes, it was in the afternoon.

17 Q. Yeah? And you just simply cannot say whether or not it was 2, 3

18 or 4.00?

19 A. No.

20 Q. Tell me this, was at the time that you saw the man on the right,

21 was that the same time frame that you saw the person that you described as

22 not a plain soldier?

23 A. Yes.

24 Q. In exact -- at the same time, but not in the same -- both in the

25 vicinity of the "White House"?

Page 5227

1 A. No it was not at the same time. It was in the vicinity of

2 the "White House", yes. They were not together.

3 Q. Right. But it was in the same time frame?

4 A. Yes, it was during the afternoon.

5 Q. All right. Now, I've already asked you about your career

6 advancement, Major. Can I just get some specifics as to what year you

7 were promoted from Lieutenant to Captain?

8 JUDGE AGIUS: Yes, Mr. Thayer.

9 MR. THAYER: Your Honour, I would appreciate hearing what the

10 relevance of this line of questioning is going to be.

11 JUDGE AGIUS: Yes. What's the relevance of your question, Ms.

12 Condon?

13 MS. CONDON: Your Honour, in the context in which I cross-examined

14 this witness as to his promotions and his commitment to his mission at

15 Srebrenica, that is relevant to matters of his credit insofar as his

16 willingness to cooperate with the many investigations that have been in

17 relation to the fall of Srebrenica. In my submission, matters that go

18 arguably to his credit.

19 [Trial Chamber confers]

20 JUDGE AGIUS: Yes, Mr. Thayer.

21 MR. THAYER: Your Honour, respectfully, unless my learned

22 colleague has a good faith basis on which to imply that this witness has

23 any other motive to testify here other than the truth, then that line of

24 questioning is frankly outrageous.

25 MS. CONDON: Well, I object to that categorisation.

Page 5228

1 JUDGE AGIUS: Stop, stop. We'll stop this. But it's obviously

2 hidden behind your desire to put the question is the idea you may have

3 entertained in your mind already that the promotion is tied up with his

4 willingness to cooperate with whichever authorities there may have been

5 asking him or us -- asking him to come forward and answer questions.

6 Which we will not allow. If you have got any evidence that that is so,

7 then, yes, please let us know what the evidence is in his absence and we

8 will decide to -- whether to authorise you to go ahead or not. But in the

9 absence of concrete knowledge of such alleged or abuse, we will not let

10 you do that.

11 MS. CONDON: As Your Honour pleases. Just pardon me one moment,

12 Your Honour.

13 [Defence counsel confer]

14 MS. CONDON: Your Honour, I have no further questions.

15 JUDGE AGIUS: I thank you so much.

16 Madam Fauveau.

17 Cross-examination by Ms. Fauveau:

18 Q. Major, when you testified in the Krstic trial, and we are talking

19 about the transcript of the 5th of April, page 2104, 2105, you stated that

20 one of your missions was to deliver humanitarian aid to the enclave.

21 Could you please explain to us what was this humanitarian help that the

22 DutchBat was supposed to deliver?

23 A. The humanitarian aid consisted that we assisted also in repairing

24 schools, the water supply, we assisted therein, for the enclave. We

25 assisted on the UNHCR convoys that came in in the enclave, to the

Page 5229

1 warehouse, and so on and so on.

2 Q. Talking about the UNHCR convoy, and you've stated on page 2105 in

3 the Krstic trial, that there were a lot of formalities that had to be

4 accomplished with the Serbs. What were these formalities that you had to

5 do?

6 A. There were no formalities that I had to do by myself. There were

7 going through the battalion and it -- there were a lot of problems before

8 an UNHCR convoy came through OP Papa and reached the enclave. I spoke to

9 some drivers of that UNHCR convoys and they all told me that they had been

10 quite a while on the road before entering the enclave.

11 Q. If I understood you correctly, you personally have not taken part

12 in these formalities that were happening at the OP observation post, OP

13 Papa observation post?

14 A. No.

15 Q. When you talked about the drivers of the convoys, did you also

16 talk about the situation that existed elsewhere, on other fronts in

17 Bosnia-Herzegovina?

18 A. On some occasions, we spoke with them and they -- all drivers told

19 us that there were problems of entering the enclaves because there was no

20 freedom of movement whatsoever.

21 Q. Do you have knowledge of a major Muslim offensive that took place

22 in the spring of 1995?

23 A. I don't know what you are referring to.

24 Q. I'm talking about the Sarajevo front, amongst other fronts.

25 A. That happened a lot, so you have to be more specific.

Page 5230

1 Q. I was talking to you about the Sarajevo surroundings, the

2 offensive surrounding Sarajevo, the Muslim offensive around Sarajevo?

3 A. The only thing that we heard about it in the enclave were through

4 the news channels. We got nothing, only a partly report about the

5 surrounding of Sarajevo and that was it through the UN channels.

6 Q. So if I understand you correctly, you have no knowledge of the

7 security on the roads where the convoys were passing, which were caused by

8 the combat operations that may have taken place there?

9 A. That could have been, but the drivers of the UNHCR convoys were

10 speaking specifically of entering the enclave because we were talking

11 about our situation and that was the situation that caused a lot of time.

12 I was well aware of the fact that there were also other check-points

13 throughout Bosnia. Yes, there were.

14 Q. And in fact, these other check-points that existed in Bosnia,

15 amongst these check-points, there were also check-points of the ABiH army,

16 right?

17 A. Yes, in the areas that they controlled. There were, yes.

18 Q. You arrived in Srebrenica in the month of January 1995. Can you

19 tell us how many UNHCR convoys arrived in the enclave in the month of

20 January 1995?

21 A. Again, only a rough estimate, but I think two probably.

22 Q. And in the month of February?

23 A. It's also an estimate, two, one or two.

24 Q. And do you know what was the situation in March?

25 A. In March, it was by the end of March because we had then reports

Page 5231

1 about the total minimised situation in the enclave, also within the

2 battalion. So yeah, we spoke a lot about it and in the end of March I

3 came -- I think it was the end of March, I'm not quite sure, came another

4 convoy, another UNHCR convoy, I mean.

5 Q. And in the month of April, were there any convoys from the UNHCR?

6 A. To my recollection, not.

7 Q. Are you absolutely certain that there were no UNHCR convoys -- are

8 you certain that you're talking about those convoys and not the convoys

9 that were supposed to come and bring supplies to the DutchBat?

10 A. I refer to UNHCR convoys, and if I'm talking to logistics for the

11 battalion, then I will address that as such.

12 Q. Very well. So you're stating that there were no UNHCR convoys in

13 the month of April?

14 A. I said to my -- I already answered that question, I think. To my

15 recollection, not.

16 Q. And then in the month of May, what happened then?

17 A. Are you again asking about the convoys?

18 Q. Yes, Major.

19 A. It's also again an estimation, probably one, because there came in

20 some late one and we were surprised that there still was coming in one or

21 two but probably it was one because we -- there was always a group on a

22 reaction stand-by, if there was a convoy coming in through OP Papa, we

23 assisted that convoy to the warehouse in Srebrenica. So -- and to my

24 recollection, only -- and that is what to my recollection is, once in May.

25 Q. And do you recall that any convoys arrived in June?

Page 5232

1 A. No, to my recollection, not.

2 Q. So you have absolutely no recollection of the problems that UNHCR

3 convoys encountered with the DutchBat who were searching the convoys?

4 A. We never searched the convoys. We had a clear eye on the drivers,

5 because -- and that was already happened before they entered the enclave,

6 by the Serbs. They were searching the convoys as well before they came

7 in. But we searched as well, and we kept an eye on them as they were

8 unloading next to the warehouse because a lot of the drivers could bring

9 something along that we didn't want to have in the enclave.

10 JUDGE AGIUS: Madam Fauveau, I need to leave the courtroom for a

11 couple of minutes. Please continue. Judge Prost will take over. I'll be

12 back in a moment. Thank you.

13 MS. FAUVEAU: [Interpretation]

14 Q. The search that you carried out for the UNHCR convoys, you were

15 doing that on behalf of the army of the ABiH; is that right?

16 MR. JOSSE: Your Honour, I'm not sure this is lawful under Rule 16

17 bis because Judge Kwon is not here either. I may need a moment to look at

18 it but sorry to interrupt.

19 JUDGE PROST: We will just take a moment here, thanks.

20 [Trial Chamber confers]

21 JUDGE PROST: Mr. Thayer, did you have a comment on that

22 particular point?

23 MR. THAYER: On my learned colleague Mr. Josse's point or on the

24 previous question?

25 JUDGE PROST: No. On Mr. Josse's point.

Page 5233

1 MR. THAYER: Until I consulted myself on Rule 15, Your Honour, I

2 think the Prosecution's position is we --

3 JUDGE PROST: I think the problem is solved. Thank you.

4 [Trial Chamber confers]

5 JUDGE AGIUS: All right. If you have doubts about that,

6 Mr. Josse, Madam Fauveau can repeat the question and it can be answered.

7 Madam Fauveau, you haven't put the question as yet in any case, so, all

8 right, Love's Labours Lost and we proceed with your next question.

9 MS. FAUVEAU: [Interpretation]

10 Q. Major, whether you carried out the UNHCR convoy searches, was it

11 on behalf of the ABiH army?

12 JUDGE AGIUS: Yes, Mr. Thayer.

13 MR. THAYER: Yes, Mr. President. I don't believe that's an

14 accurate characterisation of his testimony. I think he testified that

15 they search the driver but not the convoy itself. So I think that's an

16 inaccurate phrasing of the question.

17 JUDGE AGIUS: We are not 100 per cent on this but I think you are

18 right. I stand to be corrected, however. Ms. Fauveau.

19 MS. FAUVEAU: [Interpretation] I will reiterate my question.

20 Q. When you were searching the drivers of the convoys, was it on

21 behalf of the ABiH army?

22 A. No. It was under our own authority there because we wanted that

23 they, as I stated before, that they bring nothing in the enclave that we

24 wouldn't have there.

25 Q. Do you recall some -- of some problems in the month of June and

Page 5234

1 that UNHCR representatives threatened to stop everything that were -- all

2 the convoys precisely because the DutchBat was searching them?

3 A. To my knowledge, that never was a point, and I also got through

4 the battalion that there was never the point. So I don't understand that

5 question.

6 Q. You've stated on the 29th of November, on page 4807 of the

7 transcript, that you obtained the information that there were -- that the

8 reserves were depleting in Srebrenica, where the humanitarian aid was

9 stocked. Did you go and see yourself to see what was left in the

10 warehouse?

11 A. There was -- we were patrolling during a social patrol in

12 Srebrenica, and with my patrol commander, I was at the warehouse and there

13 was almost nothing left in the warehouse at the end of June.

14 Q. Witness, you've stated on the 30th of November, page 4869 of the

15 transcript, that you heard that there was a black market in Srebrenica.

16 Did you or had you heard that the ABiH army was using goods that were

17 warehoused in the warehouse of Srebrenica?

18 A. There was a black market. That was known to us. We knew also

19 that there was a kind of trade going on but we never could figure out

20 whether it came from the warehouse or not, or it were goods that people of

21 Srebrenica got and they traded it on to other people in the enclave.

22 Q. Sir, do you know that the Medecins Sans Frontieres organisation

23 was in the enclave when you were there?

24 A. Yes.

25 Q. And do you know that there were some problems between the

Page 5235

1 municipal authorities of Srebrenica and the MSF?

2 A. Not that I know of.

3 Q. In the Krstic trial, on page 2174, you've stated that you knew

4 that the ABiH army was supplied by the southern route. Is it right to say

5 that this supply also included military equipment?

6 A. Yes, you could say that.

7 Q. And the DutchBat had -- did the DutchBat have an observation post

8 on the southern part of the enclave?

9 A. There were more observation posts on the command of the Bravo

10 Company in the southern part of the enclave.

11 Q. And how was it possible that this military equipment was able to

12 get into the enclave?

13 A. It was a hidden operation by the ABiH, probably, and we noticed

14 that it happened later on, because we saw the goods during night-time.

15 Q. To your opinion, was the DutchBat sufficiently armed?

16 A. No.

17 MS. FAUVEAU: [Interpretation] Could the witness be shown Exhibit

18 3D44, please. Page 3.

19 Q. Sir, do you see, under the heading "Operational Activities," you

20 said [In English] "immediate superior, he considered that they were

21 sufficiently armed."

22 [Interpretation] Sir, is this your statement, is this what you've

23 stated?

24 A. This is a statement of the debriefing in Assen, as I see it here,

25 and it was a rewritten what I also addressed last week, a rewritten

Page 5236

1 statement by the ministry. There were discussions before we went to the

2 enclave to have our APCs, and that discussion is also laid down in the

3 NIOD report, that we had a large discussion on the armament of the APCs.

4 We wanted to have the APCs with a 25-millimetre canyons on it. We only

5 got the ones with us with .50 gun on it. So sufficient or not, or

6 insufficient armed, it means that we had almost no -- no ammunition or

7 checked ammunition left or there came only a few percentage in the enclave

8 with the first battalion DutchBat 1, and afterwards, almost nothing came

9 in. The things that came in were hidden in some convoys of DutchBat

10 convoys, logistics convoys, I mean now, and that was a very small amount

11 of small armament or devices to check our antitank missiles.

12 Q. Sir, are you telling us that the things you said in Assen is

13 inexact, that everything that was written in this document is inexact

14 during your Assen debriefing? Is this what you're telling us today?

15 A. Not -- I addressed it also last week.

16 JUDGE AGIUS: Yes. He's just stated he has addressed that and

17 more or less asked us to disregard almost in its entirety or their

18 entirety, his statements he made in Assen. But of course that has already

19 been stated, but if you want to be specific as to identify the parts from

20 that statement and ask him to be more specific, then you may of course go

21 ahead. But try to keep it as brief as possible because more or less this

22 has been dealt with already, even with regard to the ammunition. He

23 stated that there was a difference between when they first arrived and

24 later periods. So we try to avoid as much repetition as possible, please.

25 MS. FAUVEAU: [Interpretation] Very well.

Page 5237

1 Q. You've stated that there was a difference between what happened

2 when you arrived and later. Now, regarding ammunition, where was it

3 spent?

4 A. It wasn't -- almost none of the ammunition was spent, because we

5 weren't in the position to spend any.

6 JUDGE AGIUS: You still need to give us an explanation. If, as it

7 seems to be the case, at a certain point in time, according to you, the

8 amount of ammunition available left much to be desired, then there must

9 have been a reason. It's being put to you that this reason is that this

10 ammunition that you had available before had been made use of. Is that

11 the case or is there any other explanation?

12 THE WITNESS: There is another explanation.

13 JUDGE AGIUS: So please can you give us the other explanation.

14 THE WITNESS: A lot of the ammunition we couldn't use any more

15 because it came in with DutchBat III and it wasn't usable any more because

16 there was a lot of risks to it to use that ammunition. So we stashed it

17 in our warehouse on the compound itself and we didn't use it.

18 JUDGE AGIUS: Yes. Sorry, Mr. Thayer.

19 MR. THAYER: Not at all, Mr. President. Just a clarification for

20 the record, the transcript indicates that it came in with DutchBat III. I

21 don't know if that was a misstatement or not.

22 JUDGE AGIUS: I think he said DutchBat III. That's what I heard

23 him say. If he wishes to correct that, then let him come forward and

24 correct it. But that's what he said, for sure.

25 THE WITNESS: No. It came in -- I didn't say that. It came in

Page 5238

1 with DutchBat 1. With DutchBat 1, the ammo came in and then later on

2 there came almost no ammo in.

3 JUDGE AGIUS: All right. Thank you.

4 MS. FAUVEAU: [Interpretation]

5 Q. Witness, while you were in the enclave, did you ever hear that

6 there was an offer given to the Serbs that they supply the enclave?

7 A. No. I'm not aware of it.

8 Q. I think that maybe there is a mistake in the interpretation. I

9 asked you if you were aware that an offer was made by the Serbs that they

10 should be the ones supplying the enclave.

11 A. No, I'm not aware of that.

12 Q. You've stated on the 4th of December, on page 4960 of the

13 transcripts, that you were regularly seeing the military personnel of the

14 army of the ABiH. You were seeing soldiers wearing -- carrying arms. Did

15 you not have the obligation to disarm these soldiers?

16 A. Yes. We had that obligation. We made several attempts on that.

17 But every time they fled or they didn't wear the weapons, and they always,

18 the weapons that they had, the small arms and also the light guns, were

19 hidden.

20 Q. When you saw the Muslims who were armed, were they always wearing

21 uniforms?

22 A. They were always wearing uniforms or partly uniforms.

23 Q. But you were able to see soldiers of the ABiH wearing civilian

24 clothes, is that not right?

25 A. On the occasions that I saw that, I already explained that last

Page 5239

1 week.

2 Q. Did you know that the main headquarters of the 28th Division was

3 stationed in Srebrenica?

4 A. Yes, we were aware of that.

5 Q. On the 4th of December, on page 4959 of the transcript, you've

6 stated that the Muslims were using a house in Potocari which was serving

7 as a sort of a headquarters that they were there. The house or the houses

8 that they were using, that the Muslims were using, can we describe those

9 houses as being regular houses?

10 JUDGE AGIUS: Yes, Mr. Thayer.

11 MR. THAYER: Your Honour, he's been asked and he's answered this

12 very question previously. And, in fact, he circled the house on an

13 exhibit in connection with my learned friend Ms. Condon's questions.

14 JUDGE AGIUS: Yes. What do you have to answer to that,

15 Ms. Fauveau?

16 MS. FAUVEAU: [Interpretation] Your Honour, the house to which my

17 honourable confrere is referring to is not the house I'm referring to. My

18 colleague is talking about the house where the meetings took place, but

19 I'm talking about the Main Staff or the headquarters of the Muslim armed

20 forces.

21 JUDGE AGIUS: I think -- I think she is -- Madam Fauveau is right.

22 Please proceed. You are 100 per cent right. The house that he was asked

23 to indicate before was the one where the meetings took place.

24 MS. FAUVEAU: [Interpretation]

25 Q. Major, the houses that were used in Potocari and around Potocari

Page 5240

1 by the Muslim forces, these houses, were they just regular houses?

2 A. If -- yeah, if there were houses that they were using, then it

3 were regular houses, yes.

4 Q. You've stated a few moments ago that you have experience, which I

5 do not doubt, but would you say that the headquarters of a brigade or a

6 division is a military target?

7 A. Yes.

8 Q. You've stated on the 29th of November, and you've confirmed it on

9 the 30th of November, page 4820 of the transcript of the 30th of November,

10 that the Serbs were bombing houses on the Budak hill. Before those

11 shellings or bombings, were you able to go and see those houses? Were you

12 ever in a position to do so?

13 A. The days before the shelling, almost all houses were left because

14 they were in the shooting range from Burici hill, so it was quite

15 dangerous to have there, to have there your HQ of brigades or whatsoever

16 because you're quite an easy target.

17 Q. This was not my question. This is not what I'm suggesting either.

18 I wanted to know if you had ever gone to those houses.

19 A. No.

20 Q. So you cannot confirm that these houses were not used to store

21 weapons or ammunition for the ABiH army?

22 A. I'm not sure but the houses were on constant surveillance of the

23 post of the entrance of the compound. So they could see, literally see,

24 what was happening on that hill. And that post on the entrance of the

25 compound was constantly manned by personnel from DutchBat.

Page 5241

1 Q. And in fact, the southern border of the enclave was also under the

2 surveillance of the DutchBat that was there?

3 A. Yes, but then you're speaking about a much larger area where the

4 lines of sight are -- were through the hilly terrain, were quite narrow or

5 quite bordered. So you couldn't identify what was happening until five, 4

6 or 500 metres.

7 Q. On the base of Potocari, where these houses were situated, was

8 there any power, electricity?

9 A. The only electricity that we had was through generators of

10 DutchBat.

11 Q. Therefore, during night, it was quite dark, wasn't it?

12 A. Yes.

13 Q. Do you recognise that you couldn't see exactly what was going on

14 during night in those houses?

15 A. We had also a platoon of 108 Commando Company aboard, and a lot of

16 soldiers from 108 were outside of the compound during night-time, so we

17 had quite a real estimate of what was going on during night-time.

18 Q. But the military of the DutchBat, which were in the southern part

19 of the enclave, had also patrols, no?

20 A. Yes. Yes, they had also patrols, but always the patrols were

21 during day-time because there was also a UN rules of engagements and

22 protocol that the posts on the -- the observations post should be lighted

23 throughout the night with the blue flag marked on the observation post.

24 So you could quite good -- quite see us, but if you have to look from out

25 the light into the darkness, it's quite difficult.

Page 5242

1 Q. Do you know that your Lieutenant Colonel Karremans, on the 10th

2 July, had about 1700 men armed in Srebrenica?

3 A. This is totally new to me.

4 JUDGE AGIUS: Mr. Thayer.

5 MR. THAYER: This may be a transcript issue, Your Honour.

6 JUDGE AGIUS: That's why I didn't notice you because I was looking

7 at it and I was saying this I could understand more than one way, because

8 as it is in the transcript, it seems to hint that the DutchBat itself --

9 MS. FAUVEAU: [Interpretation] [No interpretation]

10 JUDGE AGIUS: So I suggest that you repeat your question and we'll

11 get fresh interpretation. Because I was looking at it and I was saying,

12 does she know what she is asking? Yes, Madam Fauveau.

13 MS. FAUVEAU: [Interpretation]

14 Q. Do you know that your commander, Lieutenant Colonel Karremans,

15 saw, in the evening of the 10th of July, about 1500 armed men in

16 Srebrenica?

17 A. This is a question you have to raise to Lieutenant Colonel

18 Karremans and not to me.

19 Q. I'm not asking if he had seen it. I'm asking you if you have

20 knowledge, if you're aware of that. Did you hear about it?

21 A. No.

22 Q. You said in the Krstic case, on the 11th of July 1995, the Serbs

23 shelled the column which was going from Srebrenica to Potocari. Is it

24 true that on the 11th of July 1995 you were in the bases of Potocari?

25 A. Yes.

Page 5243

1 Q. And, personally, you haven't seen the shelling of the column?

2 A. That is correct. But last week I also explained that I had two

3 sets of radio with me and now I'm explaining it again.

4 Q. This is not my question. My question is, did you see?

5 A. No.

6 Q. You said in the Krstic case, page 2111, that on the Tuesday

7 morning, it would have been 11 July 1995, you were in the shelter because

8 of the shelling. Is it not true that you were indeed inside the shelter

9 because you heard the air attacks against the Serbs?

10 A. I also explained last week that I spent almost no time in the

11 shelter. I was always outside, being with the group of men, or somewhere

12 else around on the compound or outside of the compound. So shelter, we

13 had no shelter, the shelter that we had was just the factory itself,

14 inside the factory, and that was our shelter.

15 Q. Isn't it true that on the Tuesday morning, I'm talking about the

16 members of the DutchBat and not you personally, you received an order to

17 go into the shelter? Isn't it true?

18 A. Yes, that is true.

19 Q. Isn't it true that indeed this order was given because the air

20 attacks on the position -- Serb positions were expected?

21 A. Yes.

22 Q. In the Krstic case, page 2108, you said that the Serbs -- I'm

23 talking about July, on the attack, 1995, you said that the Serbs were

24 trying to confine you in your bases, so -- in your compound, so that you

25 couldn't go out. Are you aware of the fact that the DutchBat was supposed

Page 5244

1 to help the army of Bosnia-Herzegovina in case of an attack on the

2 enclave?

3 A. We had no such orders whatsoever.

4 MS. FAUVEAU: [Interpretation] Could the witness be shown P2263.

5 Could this document be shown in English, please.

6 Q. This is an order sent by the -- to Captain Groen by Major Franken.

7 A simple question first. Have you seen this order before today?

8 A. No.

9 Q. Did you know this order was -- had been given?

10 A. No. Because this was an order given out to the B Company. It was

11 a separated order. And if there was a separate order to the other

12 company, my company commander was there, the one that had the knowledge of

13 that, but I didn't have the knowledge of this one.

14 Q. Are you -- do you agree that on this order you can see --

15 [Previous translation continues]

16 MR. THAYER: Your Honour, just for sake of clarification, I'm not

17 a B/C/S reader, but I'm looking at the document that's posted on the right

18 in B/C/S and I'm just not sure whether it's the same document that's

19 appearing in English, and I don't know if my learned colleagues who can

20 read B/C/S can help us out. I just want to make sure there is no

21 confusion for anybody here.

22 JUDGE AGIUS: Even at the --

23 MS. FAUVEAU: [Interpretation] It is definitely not the same

24 document.

25 JUDGE AGIUS: But previously we had two pages, both in B/C/S, and

Page 5245

1 that's when Madam Fauveau said, "Could we see the English version?" So

2 from then onwards, I was following the English version of course because I

3 can't read B/C/S. So what's --

4 [Trial Chamber and registrar confer]

5 JUDGE AGIUS: I don't want the accused to be deprived from -- of

6 the possibility of looking at this document. So could we upload this

7 document also in B/C/S and we've seen it any way, and I suppose that Madam

8 Fauveau is interested in the section, this seriously intended green

9 assignment. But can we have it in B/C/S as well, please.

10 What we have on the right is a translation of this document, but

11 it's certainly not the same page. But can we go to the first page of this

12 document. Of the B/C/S, yeah. But it's certainly not the same one. I

13 have no doubt in my mind. I mean, I don't understand the language or -- I

14 understand very little of it, but it's -- even -- you don't even need to

15 understand the language to realise that it's not the same document.

16 MS. FAUVEAU: [Interpretation] Mr. President, may I continue? May

17 I suggest we continue, because the objection was made by the Prosecutor.

18 It's not my fault if they didn't show the proper document in B/C/S in the

19 system. For the moment, we only need the English.

20 JUDGE AGIUS: Thank you.

21 MS. FAUVEAU: [Interpretation]

22 Q. Major, can you see on this document the sentence, "This is a

23 serious intended green assignment"?

24 A. Yes.

25 Q. And when such a sentence appears on an order of the United Nations

Page 5246

1 forces, could you explain what this means?

2 A. It means that we, as a UN unit, we go into combat.

3 Q. And this means in general, at least in such a situation here,

4 because if you look at paragraph which is just before, that you're taking

5 part for one part in the conflict?

6 A. No. We are not taking part in the conflict. There is a serious

7 threat coming from the south side, from the Serb side, and we have to

8 engage that threat and staying impartial and not taking up for the

9 Bosnia-Herzegovina army, for the ABiH. But for safety reasons, we have to

10 go into a green role, as we say that, but we go into a green role with

11 blue helmets and white APCs, so there is a slight problem there.

12 Q. I will reformulate or rephrase my question. You don't take

13 parties for a party in the conflict, but you certainly take a party

14 against one of the parties to the conflict?

15 A. Yes, because one of the parties is taken up an aggressive act to

16 the area that we have to -- to have to safety.

17 Q. Did you know about a meeting which took place in the night between

18 10 and 11 July 1995 between the representatives of civil powers and

19 military Muslims and representatives of the DutchBat, in particular,

20 Boering and Colonel Karremans?

21 A. Yes, I was aware of the meeting.

22 Q. Do you know that action was discussed, a joint action, of

23 Bosnia-Herzegovina and the DutchBat was discussed during this meeting? Do

24 you know about that?

25 A. Not at that period of time. Later on, I heard it.

Page 5247

1 Q. Do you know that before July 1995, to be precise, in May 1995, the

2 representatives of military and civil powers in Srebrenica had had a

3 meeting with Major Franken and that meeting was about the defence of the

4 enclave?

5 A. During the morning meetings with the battalion, we heard there

6 were several meetings with the Bosnian army where they tried to -- to,

7 yes, more or less convince us to take part in the defence of the army on

8 the side of the ABiH, but we never did so.

9 Q. When the army of Bosnia-Herzegovina came out of the enclave and

10 attacked the villages, southern villages around, you never defended those

11 villages, did you?

12 A. We weren't aware of the fact what was happening outside of the

13 borders of the enclave.

14 Q. But being inside, you never tried to prevent the military of --

15 the military of Bosnia-Herzegovina to go out of the enclave. You never

16 tried to prevent them to go out of the enclave?

17 A. They didn't tell us aforehand what they going to plan to and it

18 was known to us whether they did so. So we also could nothing prevent.

19 Q. But you knew that the military equipment which came into the

20 enclave, that you didn't prevent it either?

21 A. I already addressed that question.

22 JUDGE AGIUS: I think he's --

23 MS. FAUVEAU: [Interpretation] I withdraw my question.

24 JUDGE AGIUS: Mr. Thayer, I think you were going to object.

25 MR. THAYER: Yes, Mr. President.

Page 5248

1 MS. FAUVEAU: [Interpretation]

2 Q. You said on 30 November, page 4884 of the note, that members of

3 DutchBat were assisting the population of Srebrenica to go to Potocari.

4 This is on the 11th of July. Is it true that the trucks and the APCs

5 belonging to the DutchBat were being used to transport the population?

6 A. No.

7 Q. What was the means of transportation of the population in

8 Srebrenica to Potocari on the 11th of July 1995?

9 A. On the 11th, as I recall it, the first came in but not with our

10 APCs. And only at the late evening or afternoon, some -- afternoon, yes,

11 I think, some trucks from the B Company brought and also from the

12 battalion itself, brought in some refugees from Srebrenica, but not using

13 any APCs for carrying Muslim people to Potocari.

14 Q. Is it true that some of these APCs actually ran over some people?

15 Or made them fall?

16 A. I'm not aware of that fact. There were a lot of rumours those

17 days and I'm don't know at this point whether that was rumours or did

18 happen, because most of the APCs of the B Company stayed and also of the

19 battalion, stayed at the south side on the 11th. Only later on they moved

20 on towards the northern part, so towards Potocari.

21 MS. FAUVEAU: [Interpretation] Could the witness be shown 3D50,

22 with a Dutch version 3D49.

23 THE REGISTRAR: [Microphone not activated] -- documents at the same

24 time in the system, so it will be one and then after, the other.

25 JUDGE AGIUS: I suggest what we can do, we can have one on the

Page 5249

1 system and one on the ELMO and we try to work out that way. If that is

2 helpful. I don't know.

3 MS. FAUVEAU: [Interpretation] Well, if I could see the Dutch

4 version, please.

5 JUDGE AGIUS: Do we have the Dutch version in the system? This is

6 the -- this is the other document that we had before. What I see on the

7 screen now is what allegedly was page 1 of that -- so ...

8 MS. FAUVEAU: [Interpretation] Could page 23 of the English

9 version be shown? And Major, to help you, it is page 11 of the Dutch

10 version.

11 Q. In the last paragraph of that page 23 in English, you can read,

12 [French translation coming over English channel] ... "armoured personnel

13 carrier ran over some people and that there were a set of circumstances.

14 I said then I think the application of criminal sanction in order to find

15 these people but do something about it."

16 [Interpretation] Major, I'm not at all interested in a question of

17 liability. What I'm interested in is simply the fact: Do you know as a

18 fact that the APCs would have run over certain people?

19 A. The situation that I have in front of me is something different

20 from what you're asking, because you're asking me about the 11th of July,

21 of the people that are fleeing from Srebrenica towards Potocari, and what

22 we here read is the situation that what I'm talking about, and that's not

23 exactly in this piece of paper, but that's the situation that the group of

24 personnel from DutchBat, from OP Mike or OP November had to fall back

25 because of the shelling. There were some problems with the ABiH because

Page 5250

1 they hated it that DutchBat left those OPs. At a certain stage, the OP

2 commander said to his personnel to get into the APC and he then had to

3 move because of the shelling towards -- from November towards Potocari.

4 And there is a very narrow road in the mountainous area, and there

5 probably have been people ran over and that was part of an investigation

6 later on on the Dutch side. And that's the reason why I mentioned it here

7 because one of the medical personnel was one of -- one of the soldiers out

8 of my platoon and he told me later on. So I addressed that to my company

9 commander and later on, in the management report, as we heard it before,

10 and that's the reason why I told it here in the van Kemenade report.

11 Q. Thank you very much for these clarifications. Could you tell us

12 the date of this incident?

13 A. This is all OPs, almost at the northern part, were left at the --

14 at the 11th, late in the evening, 11th or at night towards the 12th of

15 July.

16 Q. Is it true that the great majority of people coming to Potocari

17 were women and children?

18 A. Mostly women and children, boys and older men, yes.

19 Q. Could it be said that most of the able-bodied men did not go to

20 Potocari?

21 JUDGE AGIUS: I think it is in a most direct manner implied in his

22 answer. You don't need to answer -- ask the question again.

23 MS. FAUVEAU: [Interpretation] I agree with you, Mr. President.

24 Q. Is it true that since women and children, boys and elder people

25 came to Potocari while able-bodied men did not go to Potocari, could it be

Page 5251

1 said that indeed there was a separation between the males and females, the

2 non-military who went to Potocari and the military population who did not

3 go to Potocari?

4 JUDGE AGIUS: Yes, Mr. Thayer.

5 MR. THAYER: Your Honour, we had extensive question and answering

6 on this very issue with my learned colleague Mr. Lazarevic's

7 cross-examination of Major Rutten.

8 JUDGE AGIUS: Would you agree to that, Ms. Fauveau? Because I

9 think that was more or less covered even along the same line of

10 questioning that -- and formulation that you have just adopted.

11 MS. FAUVEAU: [Interpretation] It's just one question I want and

12 then I'll pass to another subject immediately.

13 JUDGE AGIUS: All right. Let's hear what the question is but

14 please don't try to repeat a question that someone else, one of your

15 colleagues, has put.

16 MS. FAUVEAU: [Interpretation]

17 Q. Would you agree that indeed there was a separation between the

18 female population and non-military population arrived in Potocari while

19 the military population did not come to Potocari? That's the question

20 I've just asked. It's the same question.

21 JUDGE AGIUS: He answered that. He has answered that already,

22 when he was being questioned by -- Mr. Thayer suggested it was Mr.

23 Lazarevic, but to be honest with you, I don't remember who it was.

24 MS. FAUVEAU: [Interpretation] If Mr. Thayer thinks it was so

25 clear, could he then perhaps tell me what is the page or transcript or

Page 5252

1 line of note where it appears?

2 JUDGE AGIUS: No, Ms. Fauveau. If you are not happy with the --

3 we are assuring you that that question was put. We are assuring you that

4 that question was answered. If you want to pursue the matter, insofar as

5 you think that the witness's answer was not complete and that you would

6 like to elicit more information from him, you can put to him his previous

7 answer, then put your next question and we'll proceed accordingly.

8 MS. FAUVEAU: [Interpretation] I'm sure that the witness never

9 answered this question but I will proceed.

10 JUDGE AGIUS: Answering this question --

11 MS. FAUVEAU: [Interpretation] Could we agree with the Prosecution

12 that the witness answered yes to that question? Can we agree with this,

13 Prosecution?

14 MR. THAYER: Your Honour, I will stand corrected on one issue,

15 that is, the questions came from my learned colleague, I believe Mr.

16 Josse. And this question was asked and answered. That's as far as I'm

17 going to agree to anything. Let's, please, move on. This is wasting

18 time.

19 MS. FAUVEAU: [Interpretation] It was Mr. Lazarevic, now it's Mr.

20 Josse. I'm sure there was no answer to that question.

21 JUDGE AGIUS: I was more precise in telling you I couldn't

22 remember who it was, but I do remember the question being asked, maybe not

23 in exactly the same formulation as yours, and answered.

24 MS. FAUVEAU: [Interpretation] I agree with you that it was asked

25 indeed, but I'm not in agreement with the rest. And the answer. But I

Page 5253

1 will continue, of course, if you order me to continue or to go to another

2 subject.

3 JUDGE AGIUS: Your choice, Madam Fauveau, but if you want to

4 pursue this matter, it's only insofar as you refer him directly to his

5 previous answer and if you're not happy with it, you want to get more

6 information or some clarification from the witness, you can certainly do

7 that, but otherwise, move to your next area of questions.

8 MS. FAUVEAU: [Interpretation] Mr. President, I believe that it is

9 time to take the break.

10 JUDGE AGIUS: Yes. And for you to find the transcript, now that

11 we know, or at least we think we know that it was Mr. Josse that put the

12 question. I mean, Mr. Josse's cross-examination wasn't a long one and we

13 can go there. We'll have a -- how much more time do you have, do you

14 require, Ms. Fauveau? Madam Fauveau? How much more time do you require?

15 MS. FAUVEAU: [Interpretation] About 15 minutes, Mr. President.

16 JUDGE AGIUS: Okay. We are safe. And you're still in the region

17 of a few minutes, I suppose?

18 MR. HAYNES: I'm tempted to say that really depends on how much

19 Mr. Thayer interrupts me, but, yes, ten to 15 minutes.

20 JUDGE AGIUS: Mr. Thayer is already interrupting. Yes,

21 Mr. Thayer.

22 MR. THAYER: I'm not making an objection. I was just standing

23 because I see Madam Usher, that's all.

24 JUDGE AGIUS: Oh, I see. So we'll have a 30-minute break starting

25 from now.

Page 5254

1 --- Recess taken at 12.31 p.m.

2 --- On resuming at 12.59 p.m.

3 JUDGE AGIUS: Okay. Madam Fauveau.

4 MS. FAUVEAU: [Interpretation]

5 Q. Witness, on the 30th of November, 2006, page 4835, my colleague

6 asked you if, regarding Potocari, there was a natural separation made

7 between women and children, and you've indicated that on the map. My

8 question is slightly different. What I'm asking you is to find out the

9 following: Was there a separation between able-bodied men and the

10 non-military population that was not in Potocari but that was there before

11 the non-military population arrived in Potocari?

12 JUDGE AGIUS: Yes, Mr. Thayer.

13 MR. THAYER: Your Honour, the specific question to which my

14 learned colleague is referring was specific as to natural separation

15 taking place between men and women. That question was answered. A

16 different version of the question was then asked later on in which Major

17 Rutten described Muslim men departing the area to the area of Buljim which

18 he in fact marked on an exhibit. This question has been asked and

19 answered with great specificity both in the question and in the answer.

20 JUDGE AGIUS: I quite agree with you, Mr. Thayer. Let's move to

21 the next question, Madam Fauveau.

22 MS. FAUVEAU: [Interpretation]

23 Q. Witness, are you saying that only the non-military population came

24 to Potocari?

25 JUDGE AGIUS: Yes. I think I can anticipate your objection. He's

Page 5255

1 already answered that. He's said on a previous occasion but --

2 MS. FAUVEAU: [Interpretation] [No interpretation]

3 JUDGE AGIUS: There were some and they left towards the mountain

4 or the hills or whatever they are.

5 MS. FAUVEAU: [Interpretation]

6 Q. Since only the non-military population came to Potocari, do you

7 know where the non-military population went?

8 JUDGE AGIUS: Yes, Mr. Thayer.

9 MR. THAYER: Twofold objection, Mr. President. The first is that

10 wasn't his testimony and secondly, he's already answered to the best of

11 his ability, given the previous questions, the second part of that.

12 JUDGE AGIUS: I couldn't agree more. I think I suggest you move

13 to something different, because you keep hammering this in different forms

14 and from different angles and it boils down to the same thing, that you

15 are asking the witness to repeat what he has already explained to us. And

16 one draws the obvious conclusions from what he has stated earlier on.

17 MS. FAUVEAU: [Interpretation] Very well. I will go to another

18 topic.

19 Q. Is it exact to say that you left approximately 5.000 people in the

20 Potocari compound belonging to the UN in Potocari?

21 A. Yes.

22 Q. Is it exact to say that you left 5.000 people?

23 A. First, you asked me the question approximately and now you're

24 asking me exact. I didn't count them.

25 Q. Maybe there is an interpretation error. My question is the

Page 5256

1 following: Is it exact to say that you could have left more than 5.000

2 people in the Potocari compound?

3 A. The reason that -- I put it like this: We could shelter 5.000,

4 approximately 5.000, into the old factory. We could have let in more

5 people on the compound but then they were in the open air and we saw that

6 as a risk.

7 Q. And where they were outside, they were not under -- they were not

8 in open air?

9 A. Yes, but they were under surveillance of the DutchBat troops

10 there. And not only that, but from the hills of Purici, you couldn't

11 exactly see the total environment of the bus compound, but you could see

12 the total environment of the compound from DutchBat in Potocari.

13 Q. Talking about the bodies that you've discovered, the nine bodies

14 that you discovered, you said this on the 30th of November on page --

15 THE INTERPRETER: The interpreter didn't get the page.

16 Q. -- that you examined the bodies. Could you describe to us what

17 were the injuries that you were able to notice?

18 A. I already explained that in an earlier statement.

19 Q. Sir, can you or, rather, were these people dressed, those bodies

20 that you discovered? Were they dressed?

21 A. I also explained that earlier. They were dressed in civilian

22 clothes.

23 Q. And when you examined the bodies, did you take off their clothes?

24 Did you undress the bodies that you found?

25 A. No.

Page 5257

1 Q. How can you then tell us that you were able to see the injuries?

2 A. We saw the holes of small arms weapons in the bodies because they

3 were shot through the clothing.

4 Q. Were you able to see the holes in the clothes or were you also

5 able to see the injuries on the bodies themselves?

6 A. We could see the holes in the clothes, the blood and the -- and

7 partly the injuries in the -- on the bodies itself.

8 Q. So the injuries, you've seen them only partially, if I'm not

9 mistaken. What was the size of the injuries that you were able to

10 observe, if you were able to measure the size of the wounds?

11 A. As I said before, it were shot wounds from small calibre weapons,

12 in-shot wounds and they are very clearly what they call and what they

13 inflict on the human bodies.

14 Q. This was not my question. I just wanted to know what was the size

15 of the wounds or the injuries and not with what those injuries were

16 caused.

17 A. The size was an in-shot hole, what you see on a body if you were

18 having a shot wound on it.

19 JUDGE AGIUS: By in-shot, we mean entry wound.

20 THE WITNESS: Sorry, yes, an entry wound. Yes.

21 MS. FAUVEAU: [Interpretation]

22 Q. Sir, I would like to know what was the size. Could you please

23 talk to me in centimetres or can you use also another type of measure if

24 you wish, but tell us how wide or how big were those injuries?

25 A. The size of a pinky.

Page 5258


2 MR. THAYER: We just need some clarification, Your Honour.


4 THE WITNESS: A small, a very small -- the size of a finger, a

5 small finger, yeah.

6 MS. FAUVEAU: [Interpretation]

7 Q. Is it exact to say that you do not know if those bodies belonged

8 to men who, before they were killed, were the same men who were in the

9 Potocari base?

10 JUDGE AGIUS: I think, if I remember well, but I think I do

11 remember, that he was asked the question whether he recognised those men

12 and he said no, never seen them before. So I suppose he can't answer your

13 question. Do I remember well, Major?

14 THE WITNESS: Yes, you're right on it.

15 JUDGE AGIUS: Thank you.

16 MS. FAUVEAU: [Interpretation]

17 Q. And you do not know if these men were members of the ABiH army?

18 A. No, because they were unknown to me.

19 Q. Talking about the refugees that were in Potocari, is it exact to

20 say that the population in Potocari, that came to Potocari on the 11th of

21 July, was not able to stay in Potocari for a very long time?

22 A. Yes.

23 Q. And can we say that those people, at any rate, did not wish to

24 stay in Potocari?

25 A. Yes.

Page 5259

1 Q. Sir, this is my last question. Could the witness be shown

2 evidence 3D50. It is the exhibit that we cannot see at the same time in

3 Dutch and in English. In English, we are talking about page 8 and in

4 Dutch it's page 4.

5 JUDGE AGIUS: Let's adopt the same procedure as before. The Dutch

6 version will be placed on the ELMO and on the screen we'll have the

7 English translation thereof.

8 MS. FAUVEAU: [Interpretation]

9 Q. In the middle paragraph in English, you've stated, and I

10 quote, [In English] "I see the big picture. We are also a part of it

11 because we were on positions where we could be taken hostage. We had seen

12 it in the previous period. And then I saw that Krajina was overrun by the

13 Croats, in the meantime, heavily armed by the Americans. And then I saw

14 that the English silently left Gorazde. The situation was such that there

15 was no possibility of a good peace agreement. Eventually it did come."

16 [Interpretation] Sir, were you under the impression that the fall

17 of Srebrenica was a consequence of a political agreement?

18 JUDGE AGIUS: Yes, Mr. Thayer. One moment.

19 [Trial Chamber and registrar confer]

20 JUDGE AGIUS: Just in order to make sure that the transcript does

21 indeed reflect what Madam Fauveau read, there is a mistake in lines 11 and

22 12 of the transcript that says "the situation was such that there was no

23 possibility of a good peace agreement." While the text says exactly the

24 opposite, the situation was such that there was a possibility of a good

25 peace agreement.

Page 5260

1 Yes, Mr. Thayer. That's for the record, but I suppose

2 Mr. Thayer --

3 MR. THAYER: Your Honour, Mr. President, that was the first reason

4 for my rising. The second one is with respect to the answer which we are

5 being shown here, I think it would be helpful to place it in the proper

6 context in which that answer was being given, which is the question on the

7 prior page. And I think once that is done, it will be clear that this

8 answer that is being shown here is irrelevant and frankly is not -- is not

9 being fairly characterised or tied to the Srebrenica enclave and its fate.

10 JUDGE AGIUS: I think it's a clear cut question that is not really

11 dependent on what the previous statement of Major Rutten on that occasion

12 was the result of or a consequence of. I think there is a simple

13 question. He is being asked, I don't know how and to what extent he can

14 answer it, but Major Rutten, were you under the impression that the fall

15 of Srebrenica was a consequence of a political agreement? Do you know

16 anything about that? Can you give us an answer?

17 THE WITNESS: The moment I gave that statement in the van Kemenade

18 report --

19 JUDGE AGIUS: Forget the other statement, please. Let's

20 concentrate on this question.

21 THE WITNESS: No. It was not -- at that time I was in the

22 enclave, I could not make such a --

23 JUDGE AGIUS: Conclusion.

24 THE WITNESS: Conclusion, yes.

25 JUDGE AGIUS: And have you changed your mind since then?

Page 5261

1 THE WITNESS: Later on during the van Kemenade, we had more news

2 on TV and then the puzzle for me, at least, was clarified that there were

3 a lot of steps made on the political scene that there was a situation,

4 that we were on a position that was not the best position to be in in

5 Bosnia-Herzegovina.

6 JUDGE AGIUS: Yes. Thank you, Major. Yes, Madam Fauveau.

7 MS. FAUVEAU: [Interpretation] I have no further questions, Mr.

8 President.

9 JUDGE AGIUS: Thank you for that, Madam Fauveau.

10 Mr. Haynes now will be the last Defence counsel to cross-examine

11 you. Go ahead. I don't know how long you anticipate cross-examining the

12 witness. We need about four, 2, 3 or 4 minutes for the tendering of the

13 documents and I don't know if there is going to be re-examination and I

14 haven't asked my colleagues whether we are putting questions to the

15 witness. So basically, do you anticipate re-examination?

16 MR. THAYER: I don't believe there will be any, Your Honour.

17 JUDGE AGIUS: All right. Yes, Mr. Ostojic.

18 MR. OSTOJIC: Your Honour, we were given a report from the witness

19 last Friday after we concluded our cross-examination and it was my

20 understanding, obviously, we want to wait to see what other questions are

21 asked, that we would be given the liberty to ask questions limited in

22 their nature that was not included in the report, since we didn't have the

23 benefit of the report during our cross-examination. So we may have some

24 but we will be able to inform the Court accordingly once the

25 cross-examination is concluded by my learned friend.

Page 5262

1 JUDGE AGIUS: Okay. Thank you, Mr. Ostojic. Provided we conclude

2 with this witness today. Yes, Mr. Haynes.

3 Cross-examination by Mr. Haynes:

4 Q. Major Rutten, just to ground the next few questions that I'm going

5 to ask you, you were at the base at Potocari between Monday the 10th and

6 Friday the 14th of July, that's correct, isn't it?

7 A. Yes.

8 Q. And during that period of time, you were both in the compound and

9 outside and you patrolled fairly widely?

10 A. That's also correct, yeah.

11 Q. And during that period of time, through your various functions,

12 you received sources of intelligence and information from those who you

13 were working with?

14 A. That's also correct.

15 Q. I'd like, if I can, pretty briefly, to try and place into a time

16 frame, and ask you to clarify, some of the incidents that you witnessed

17 and were aware of, okay?

18 A. Yes.

19 Q. At some stage during that time period, you saw some Serb militia

20 looting houses. Can you help us as to when that was?

21 A. The question that -- the question that was asked earlier was that

22 there were civilians looting the houses near the compound, and I don't

23 recall that I said Serb militia was looting the houses. Serb militias

24 were looting our personal belongings behind the bus remise, I said.

25 Q. Well, in that event, Serb civilians looting houses. When was

Page 5263

1 that? That's really what I want to know, when it was.

2 A. Later on in the evening, at the 12th and 13th, 14th and so on, the

3 days afterwards, yeah.

4 Q. Thank you very much. You also saw some dead bodies [Microphone

5 not activated].

6 You also saw some dead bodies and I think you've told us that that

7 was in the afternoon of the 13th of July. You'd agree with that, would

8 you?

9 A. Yes.

10 Q. And you also saw a pile of personal effects being burned and I

11 think you'll agree that that was on the 14th of July?

12 A. Yes. It already started on the 13th but it was still burning on

13 the 14th, yes.

14 Q. Was it on the 14th that you took the photograph that we've seen?

15 A. Yes.

16 Q. Thank you. Now, you also went to a house where men were being

17 held. Did you only go to one house?

18 A. No.

19 Q. Thank you. Did you go to houses on more than one day?

20 A. During the night, during the 12th and 13th, I visited several

21 houses.

22 Q. Well, what I'm interested in is whether you went to one house or

23 more than one house where men were being questioned.

24 A. In the "White House", the men were being questioned. In some

25 other houses near the road on -- if you're standing with your back to

Page 5264

1 Srebrenica, on the left-hand side of the road, there were some other

2 houses where men were held, but there were a lot of Serbs around so we

3 couldn't enter that house -- those houses. Other houses we checked but

4 there were no Serbs or Muslim men around in that -- in the other houses.

5 Q. I hate to labour the point, but did you visit a house other than

6 the "White House" where men were being questioned?

7 A. No.

8 Q. And you were not aware that any other house was being used for men

9 to be questioned?

10 A. Yes. We were aware of that but we, as I said before, we couldn't

11 enter them.

12 Q. Thank you. You also saw the screening of military-aged men. Did

13 you see that on one day or more than one day?

14 A. I saw that on more than one day.

15 Q. And was the screening of men taking place in the same place -- at

16 the same place on those days or in different places?

17 A. In different places.

18 Q. Thank you very much. The reason I asked you about these events,

19 these are all events that you photographed, you've told us.

20 A. Not all of these events that I just told you about. It wasn't

21 always possible to photograph freely.

22 Q. You took these photographs I think with your own personal camera,

23 a Fuji 35 millimetre?

24 A. Yes.

25 Q. You only had one camera, did you?

Page 5265

1 A. Yes.

2 Q. And your experience was it was easy to load, easy to use?

3 A. Yes.

4 Q. Consistently produced good photographs?

5 A. Yes.

6 Q. Do you recall now what size of film you were using, 24 exposures,

7 36 or what?

8 A. 36.

9 Q. Now, as I understand your evidence, you used two separate films

10 during the period we are talking about. Do you recall now when you

11 changed the film?

12 A. No, not exactly, but during the -- during the 13th.

13 Q. Thank you very much. You said this morning, when you were being

14 cross-examined by Ms. Condon, at page 19, lines 1 to 16, that you had some

15 photographs of Muslim leaders. I assume you took those before the 10th of

16 July when you were working in the enclave.

17 A. Yes.

18 Q. I want to understand, please, the development of these films.

19 There were only two that failed to be developed in late July of 1995, were

20 there?

21 A. No. I had some more films but there were also personal films from

22 colleagues on the compound, and also some films about the photos that I

23 made of the Muslim leaders were also on another roll than the two you

24 mentioned.

25 Q. Right. But you had two films which concerned the events of the

Page 5266

1 12th and the 13th?

2 A. Yes.

3 Q. And the 14th?

4 A. Yes.

5 Q. I'm not clear what you did with them. Did you hand them over,

6 both of them, to your superior officers in Holland?

7 JUDGE AGIUS: I think, at least in my mind, it is clear because

8 he's told us exactly what happened with one and with the other.

9 MR. HAYNES: With respect, this is the first time we've heard that

10 there were more than two.

11 JUDGE AGIUS: No. I understand your question to be limited to the

12 two films that go to the 13th, 12th, 13th and 14th, in other words, the

13 events that were unfolding during those three days. This is how I

14 understand your question.

15 MR. HAYNES: I'll put one simple question.

16 JUDGE AGIUS: If I have misunderstood you, then of course please

17 correct me and put the question to the witness.


19 Q. When being cross-examined by Ms. Condon this morning, you told her

20 that the photographs of the Muslim leaders came from the so-called second

21 roll. Is that right or wrong?

22 A. That is wrong, because the Muslim leaders were on the first --

23 were on another roll because they couldn't have been on the second roll

24 because I made them earlier, together with other photos, and they didn't

25 belong on the second roll of -- they couldn't be on the second roll

Page 5267

1 because I made them much earlier. But the total package of photos I had

2 later on, that's true, yes.

3 Q. That's why I asked you the question, because it appeared to me

4 that you had developed a photograph from way before the 11th of July and

5 the only other photographs that you had back came from the 14th of July

6 and I wondered how that could be but you have now explained it. There

7 were more than two films.

8 The photographs that you received back - I know this is very

9 difficult and I know you have been asked a similar question - but how many

10 were returned to you in total?

11 A. I don't understand your question. Which photographs are you

12 referring to now?

13 Q. From the two rolls which you submitted to your superiors for

14 development.

15 JUDGE AGIUS: Yes, Mr. Thayer.

16 MR. THAYER: Your Honour, the record is clear as to the fate of

17 the rolls he brought out of the enclave with him. I don't think it could

18 be any clearer than it already is in the transcript.

19 JUDGE AGIUS: Right, but the question is basically somewhat

20 different. How many or which of these two rolls were, if at all, returned

21 to him? This is the question and he can answer that.

22 THE WITNESS: Okay. The -- there is one roll that I never got

23 back. That is that I gave to the Major De Ruiter. The other roll I never

24 handed in. I also told that before, because I let them develop myself

25 because there was never asked for. And that was I -- what I stated

Page 5268

1 earlier as well.


3 Q. Thank you. In fact, what you said earlier was that you had seven

4 or eight photographs that related to Potocari. I wanted to know how many

5 you got back in total. It was a full roll?

6 A. Yes, a full 36 roll. Is that the question?

7 Q. That's it. That's why I used the phrase "in total."

8 A. Okay.

9 Q. Now, you handed the film over on the 24th of July and a day later

10 you had a conversation with commander Bloemen [phoen], didn't you?

11 A. Yes.

12 Q. The context of that conversation was such that you believed that

13 he had seen the films or the film fully developed, didn't you?

14 A. Yes. It was my understanding then on what he said that it could

15 have been the case, yes.

16 Q. And you're the best evidence we're going to get on this. You

17 loaded the films, you took the photographs, you took the film out, you

18 handed it over. You have the conversation with Mr. Bloemen. Your

19 understanding of the position is that that film was deliberately

20 destroyed.

21 A. I cannot say that because I -- I have no evidence on that. But I

22 have some thoughts about that but no evidence.

23 Q. Well, you had a conversation with commander Bloemen in which he

24 talked about the implications of these photographs. Did you think he'd

25 seen them?

Page 5269

1 A. Yes.

2 Q. So they, to your understanding, had been developed?

3 A. That was my understanding because of what he said, yes.

4 Q. Well, I'm asking you as you sit there now, do you think that roll

5 of film was deliberately destroyed?

6 A. I can't say that.

7 JUDGE AGIUS: I think he's answered that.

8 MR. HAYNES: I'll leave it there.

9 JUDGE AGIUS: Yes, Mr. Thayer. I suppose that your objection

10 would have been exactly the same as I would have.


12 Q. The photographs that were not developed, you didn't think they

13 looked very good, did you?

14 A. I explained that earlier.

15 Q. Well, you thought they didn't show the whole picture. What did

16 they show?

17 A. They did show the whole picture and the whole picture was that led

18 to the discussion with my colleague Van Duijn.

19 Q. Did you have doubts about Mr. Van Duijn on the 12th and 13th of

20 July?

21 JUDGE AGIUS: Yes, your objection?

22 MR. THAYER: Your Honour, this is territory we have covered in

23 great detail, the encounter between Major Rutten and then Lieutenant Van

24 Duijn. It's been asked and answered.

25 JUDGE AGIUS: Mr. Haynes, would you rephrase the same question

Page 5270

1 using the word reservations instead of doubts?

2 MR. HAYNES: Certainly.

3 Q. Did you have reservations about the actions of Mr. Van Duijn

4 during the 12th and the 13th of July?

5 JUDGE AGIUS: Let him answer the question. I know that he has

6 given --

7 MR. HAYNES: Your Honour, it's in Mr. Thayer's hands. This

8 witness can come back tomorrow if he carries on like this.

9 JUDGE AGIUS: Please answer the question. Mr. Thayer, let's see

10 what the witness can tell us in conclusion on his colleague Van Duijn.

11 THE WITNESS: As I said before, looking through the camera I saw a

12 situation that didn't look very good, and then I went to my colleague and

13 I said, or at least I tried to convince him that he -- what it looked like

14 through the camera. And it looked like if we were assisting in evacuating

15 the refugees.

16 JUDGE AGIUS: Let me put the final question on this and we can

17 move to something else. Between having doubts about Lieutenant Van Duijn,

18 having reservations about Lieutenant Van Duijn and having a disagreement

19 with Lieutenant Van Duijn, which one would best describe your attitude

20 towards him at the time?

21 THE WITNESS: My attitude was from a somewhat older colleague to

22 convince him that he is -- he was putting himself to an awkward position.

23 JUDGE AGIUS: I think we can leave it at that and move to

24 something.

25 MR. HAYNES: Yes, I've got two questions that follow on from that

Page 5271

1 and they really will be two questions.

2 Q. One of the things, in fact, probably the main thing that concerned

3 you about Mr. Van Duijn was that on the morning of the 13th of July, he

4 took an initiative in organising the evacuation of people at Potocari,

5 didn't he?

6 A. You can best ask Van Duijn himself because I wasn't directly

7 present, only the Lieutenant Koster was around then and he tried -- he

8 spoke with Lieutenant Van Duijn.

9 Q. Well, I don't want to unnecessarily call up documents, but do you

10 recall saying to the van Kemenade inquiry, that on the morning of the 13th

11 of July, Mr. Van Duijn organised your colleague saying, shall we begin,

12 the sooner we start, the sooner we finish, before any Serb officers got

13 there?

14 A. Yes, and that was what he explained to the -- my colleague, the

15 Lieutenant Koster and we discussed that later on and that's what -- that's

16 how I learned about this situation.

17 Q. And did you not consider the organisation of the evacuation to be

18 part of your duty pursuant to a UN order?

19 A. No.

20 Q. Well, then I am going to have to ask you to have a little look at

21 a document. It's 3D50, page 25. And in the interests of the economy of

22 time, would you be happy just to read that in English, Major Rutten? It's

23 the large paragraph at the bottom of the page. It's the first sentence,

24 Major Rutten. Would you read it to yourself.

25 A. "The orders of Lieutenant Koster and these orders came from the UN

Page 5272

1 as well, were to provide support for the transport of refugees. What does

2 that mean?"

3 Q. That's all I want to you read. I want you to think about my last

4 question again. Did you think it was a UN order that you assisted in the

5 evacuation of the refugees?

6 A. It wasn't a direct UN order. It was something that came down from

7 the Lieutenants on the ground and later on Major Franken clarified that

8 but we hadn't -- we had to provide support. And support means to get the

9 humanitarian aid to the refugees that were around but not assisting, and

10 that's something else, to my opinion, in the evacuation of the refugees.

11 Q. In acting in the way he did on the morning of July 13th, was

12 Mr. Van Duijn acting alone or was he receiving support from other soldiers

13 within your battalion?

14 A. He was -- he had a part of his platoon around.

15 Q. What was the attitude of the members of your platoon towards the

16 Muslim fighters by the 13th of July?

17 A. My platoon was divided amongst the other platoons. I had the

18 antitank platoon, but I was --

19 Q. I'm going to interrupt you. I asked you a bad question, then. I

20 meant what was the attitude of the members of the Dutch Battalion

21 generally towards the Muslim fighters.

22 A. There were -- I don't know -- I cannot answer this question

23 because I don't understand it.

24 Q. Well, were any of the soldiers upset with the Muslim fighters?

25 A. Not the ones that I came by, near Potocari.

Page 5273

1 Q. You weren't aware of people who were aggrieved about having

2 property stolen?

3 A. The property, the people that were -- or the persons of my group

4 that were losing their personal belongings were aggrieved because that

5 happened by Serbs. So that's the reason what I said I don't understand

6 your question.

7 Q. I'll move on. Were you aware of any members of your battalion who

8 had been kidnapped by a Muslim fighter?

9 A. Not at that stage, no.

10 Q. How widely was it known by the 13th of July that private Rensen

11 had been shot and killed?

12 A. It was known by the whole battalion.

13 Q. And you believed he had been shot in the back of the head with a

14 dum-dum bullet, didn't you?

15 A. That specific as you are now -- we weren't aware of but that he

16 was shot, that was clear, yes.

17 Q. Just a couple more questions. I'm going to make this a brief one

18 lest I get accused of asking you something that's been asked before. But

19 in 1998, when you were interviewed by Mr. van Kemenade, just before you

20 went on the Nova television programme, you were heavily critical of some

21 members of your battalion and the role in which they played in the

22 evacuation of refugees from Potocari, weren't you?

23 A. Yes.

24 Q. Are you still heavily critical of the members of your battalion

25 and the role they played in the evacuation of people from Potocari?

Page 5274

1 A. What I stated then is still my position now.

2 Q. You're still heavily critical of them?

3 A. I have answered that question.

4 Q. Thank you.

5 JUDGE AGIUS: Okay. Thank you. Mr. Ostojic, do you have any

6 further questions?

7 MR. OSTOJIC: I do, Your Honour, unfortunately.

8 JUDGE AGIUS: How long.

9 MR. OSTOJIC: A couple minutes, five at most.

10 JUDGE AGIUS: Please, can you make it two minutes?

11 MR. OSTOJIC: Sure, Your Honour.

12 Further Cross-examination by Mr. Ostojic:


14 Q. If I can direct your attention, sir, to Exhibit 3D50 and just so

15 we can move quickly, page 28 of that document, when it's shown here. Sir,

16 on November 30th, I asked you for my learned colleague on page 50, lines 3

17 through 21, issues about illegal trading and black marketing and here in

18 this report ... [French translation coming over English channel] ... and

19 in this report here, that's dated the 19th of August, 1999, you have an

20 interview. And in that interview, in the second or lower portion of that

21 page, you discussed three things that were potentially being investigated

22 against DutchBat III, namely, the issue of running people over, providing

23 assistance to the Serbs in the evacuation process, in Potocari, and three,

24 into the issue of money transactions and so on. Sir, does this help

25 refresh your recollection as to what money transactions were being

Page 5275

1 investigated against DutchBat III after the fall of Srebrenica in 1995?

2 A. Yes. The money transactions refer to the situation, that during

3 the periods of leave of DutchBat soldiers, some were contacted by Muslim

4 men to take money along to Holland and that could have been picked up

5 later with them at home by members of the family or someone else.

6 Q. And isn't it true, sir, that these Muslim people were giving

7 DutchBat personnel, DutchBat III, the money stuck in coffee bags or coffee

8 containers, do you recall that?

9 A. I'm not aware of that, but I was aware that was something that was

10 happening and we saw that as a serious risk for DutchBat soldiers and

11 their families.

12 Q. Well, can you list for me, sir, in your answer here, when you say

13 some of them would prefer things not to be stirred up, others would bear

14 responsibility -- would want an investigation. Can you list out for me,

15 sir, who in your opinion, were the people who would not prefer to have

16 things stirred up and who were those that, in your mind, bear

17 responsibility for some, if not all of the three illegal activities that

18 DutchBat was accused of?

19 JUDGE AGIUS: Yes, Mr. Thayer, it's a compound question.

20 MR. THAYER: Yes, Your Honour.

21 MR. OSTOJIC: In the interests of time, I could break it down.

22 JUDGE AGIUS: Let's suggest -- let's see if the witness can answer

23 it.

24 MR. THAYER: Frankly, Your Honour, it's irrelevant to the subject

25 matter of Major Rutten's testimony before this Tribunal.

Page 5276

1 [Trial Chamber confers]

2 JUDGE AGIUS: Let's put it like this: Can you very briefly

3 pinpoint the responsibility that Mr. Ostojic is referring to on anyone in

4 particular, without going into details, please?

5 THE WITNESS: No, I cannot, because I don't know who was behind

6 it -- that the management report -- and that was in fact the thing that

7 got put away in a drawer. Who did that and if there is something known to

8 that and it's in the NIOD report, I think, and it's not of my knowledge

9 now.

10 Q. Fair enough. Isn't it true though that even if your colleague

11 did do something wrong, you wouldn't be able to testify against them,

12 correct?

13 JUDGE AGIUS: I don't think he needs to answer that question.

14 He's been very critical from Karremans downwards, several of his

15 colleagues.

16 MR. OSTOJIC: With all due respect, Your Honour, I would insist on

17 that answer or have him see page 11 of -- page 15 of that same document.

18 JUDGE AGIUS: Answer that question. Is there any obstruction that

19 is in the way to criticise any of your colleagues?

20 THE WITNESS: No. It wasn't then and it isn't now.


22 Q. Let me turn to page 15 of that same exhibit, 5D -- 3D50, page 15.

23 Sir, on the bottom of that page you why asked a question, in this same

24 conversation on the 19th of August 1998, and I just want to have this to

25 have a full understanding. In answer to a question regarding a hopeless

Page 5277

1 situation, you answer, "And then even if your colleague did something

2 wrong, are you prepared to tell it? I don't know. I don't think so," is

3 your answer. Correct?

4 A. I'm reading the piece out in what context I said that.

5 JUDGE AGIUS: Context is in whether it was the case of instituting

6 or collecting evidence for criminal investigation or prosecution purposes.

7 THE WITNESS: That was the reason, and I stated that before, that

8 I asked the Kodak team to put it in a kind of report to investigate that

9 matter thoroughly.


11 Q. Sir, I know you've had some criticisms about some of the reports

12 and investigations that have gone through. I want to just -- if you could

13 explain to me your answer on page 11 of the same exhibit, 3D50. If we

14 could just turn to page 11 quickly and you say it as follows, sir, and

15 I'll just read it and have -- maybe you could help me with this. In

16 answer to some questions, you state: "If the same people investigate the

17 case again and again, then you are not very impartial as an organisation."

18 With respect to that, sir, is that your belief and is that the criticism

19 that you have of the investigations with DutchBat III?

20 A. This question came up by van Kemenade because the same men of the

21 military police were investigating in about three times, I think, the

22 situation about the film roll and that was the reason I said that.

23 Q. And one last question, if I may, Your Honour. On page 29 of your

24 recent document that we just received ... [Microphone not activated].

25 On page 29 of the same document, sir, you talk about a minister

Page 5278

1 striking -- you say it is "striking to realise that the minister suddenly

2 takes -- suddenly talks a lot about career protection." Do you see that?

3 A. Yes.

4 Q. Which minister was strikingly starting to talk a lot about career

5 protection for DutchBat III personnel?

6 JUDGE AGIUS: What's the relevance of this, Mr. Ostojic?

7 MR. OSTOJIC: Well, Your Honour, I think it goes to relevance not

8 only of his testimony, but all of DutchBat, if there is evidence here to

9 suggest that the ministry was seeking to somehow shape their testimony in

10 any way, I would like to know who the minister is and, in fact, if he was

11 giving them career protection.

12 JUDGE AGIUS: Yes, Mr. Thayer.

13 MR. THAYER: Your Honour, first of all, that is not a fair

14 implication from this answer that Major Rutten gave and it's irrelevant to

15 the subject matter of this witness's testimony before this honourable

16 Tribunal.

17 JUDGE AGIUS: You can make a submission out of it and in due

18 course, Mr. Ostojic but --

19 MR. OSTOJIC: That's what I only need is the name of the minister

20 so that I can make the submission.

21 JUDGE AGIUS: I will not ask the witness to give the name of the

22 witness.

23 MR. OSTOJIC: Thank you, Your Honour.

24 JUDGE AGIUS: Is there re-examination?

25 MR. THAYER: No, Your Honour.

Page 5279

1 JUDGE AGIUS: No questions. Major, your testimony ends here. I

2 wish to thank you for having come again here to finish your testimony.

3 Wherever you're going, we wish you a safe journey back home. Thank you.

4 THE WITNESS: Thank you.

5 JUDGE AGIUS: Let's very quickly do the exhibits. May we have the

6 lists, please, or should we leave it to Monday because we have got four

7 pages.

8 MR. McCLOSKEY: Mr. President, just a bit of housekeeping for next

9 week. We have a number of witnesses and witness estimates. If we could

10 get a little guidance on that, so we can end on a --

11 JUDGE AGIUS: Guidance on what?

12 MR. McCLOSKEY: Well, we can call four witnesses and we may not

13 make it if Defence counsel takes the four hours on each operator witness

14 that they are asked. I think there is a very good chance that they may

15 not take four hours for each of these simple operator witnesses, in which

16 case we may get left with some time that we have not used up. I think if

17 we go for three, that's probably a pretty good average, but I just wanted

18 to warn you that was -- that's the situation. It's so hard to estimate

19 how long these folks will take.

20 JUDGE AGIUS: If it's hard for you, you can imagine how much

21 harder it is for us, not knowing or not having any liaison or dialogue

22 ongoing with either of you.

23 So let's try to conclude this. The Prosecution exhibits, you have

24 the list. I suppose, you've been provided with a list, Defence teams?

25 All right. Are there any objections to any of those documents? I hear

Page 5280

1 none, so they will all be admitted as per the list which I am signing and

2 handing to Madam Registrar.

3 Then there is the Gvero Defence team. Sorry, if I'm not

4 necessarily following the same order. There are two documents.

5 MR. JOSSE: That's right.

6 JUDGE AGIUS: 65 ter number 63D436 and IC 54.

7 MR. JOSSE: Yes, please.

8 JUDGE AGIUS: Any objections?

9 MR. THAYER: None, Your Honour.

10 JUDGE AGIUS: Okay. They are so admitted. The Borovcanin Defence

11 team, the ICTY questionnaire. Any objections?

12 MR. THAYER: None, Mr. President.

13 JUDGE AGIUS: Okay. So admitted.

14 Popovic team, there are two documents with no ERN. The two

15 photos. Yes, any objections? Without an ERN number.

16 MS. CONDON: They don't have ERN numbers yet, but they will have

17 them.

18 MR. THAYER: Actually, one of -- just for the record, I don't

19 think this was done but this exhibit, which my learned friend Ms. Condon

20 showed the witness was marked as OTP Exhibit 28 in the Krstic case, just

21 so the record is clear. I think we have an agreement on that that it is a

22 binder of photographs which was referred to in the prior testimony in

23 Krstic of Major Rutten. Again, it's OTP Exhibit 28.

24 JUDGE AGIUS: But I think we all know which photographs these are,

25 and therefore they are so admitted. We will resume on Monday. If you

Page 5281

1 could kindly try to liaise a little bit with Mr. McCloskey as to whether

2 we will have four or three witnesses in the course of next week, I think

3 three would be a safer guess, a safer guess. Yes, Mr. Ostojic.

4 MR. OSTOJIC: Thank you, Mr. President. I apologise. We also

5 request that Exhibits number 37 and 41 be admitted into evidence. We had

6 used those and for some reason they didn't make it through the system.

7 JUDGE AGIUS: Are they your own 2D documents or?

8 MR. OSTOJIC: I have them as 3D37 and 3D41, Your Honour.

9 JUDGE AGIUS: All right, so they are not yours. They are the

10 Nikolic team. All right. No objections?

11 MR. THAYER: No, Your Honour.

12 JUDGE AGIUS: Okay. So they are so admitted. Thank you,

13 Mr. Ostojic.

14 I think that concludes the sitting for today. Again, I wish to

15 thank everyone for having overstayed with us for these last seven minutes.

16 We won't have a sitting tomorrow. We'll resume on Monday morning. Thank

17 you.

18 --- Whereupon the hearing adjourned at 1.52 p.m.,

19 to be reconvened on Monday, the 11th day of

20 December, 2006, at 9.00 a.m.