Tribunal Criminal Tribunal for the Former Yugoslavia

Page 21072

 1                          Wednesday, 6 February 2008

 2                          [Open session]

 3                          [The accused entered court]

 4                          --- Upon commencing at 2.19 p.m.

 5            JUDGE AGIUS:  Good afternoon.  Mr. Registrar, would you please

 6    call the case.

 7            THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon to

 8    everyone in the courtroom.  This is case number IT-05-88-T, the Prosecutor

 9    versus Vujadin Popovic et al.

10            JUDGE AGIUS:  Thank you.  For the record, all the accused are

11    here.  From the Defence teams, I notice the absence of Mr. Meek and

12    Mr. Bourgon.  That's about it.  For the prosecution, I see Mr. McCloskey,

13    Mr. Thayer, and Mr. Mitchell.

14            All right.  I understand there is some preliminary.

15            Yes, Mr. Thayer.

16            MR. THAYER:  Good afternoon, Mr. President.  Good afternoon, Your

17    Honours.  Good afternoon, everyone.

18            Just a brief preliminary with respect to the next witness, and if

19    we may move into private session just for a moment, please.

20            JUDGE AGIUS:  Let's go into private session for a short while.

21                          [Private session]

22  (redacted)

23  (redacted)

24  (redacted)

25  (redacted)

Page 21073











11    Pages 21073-21074 redacted. Private session















Page 21075

 1  (redacted)

 2  (redacted)

 3  (redacted)

 4  (redacted)

 5                          [Open session]

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

 7            JUDGE AGIUS:  Yes.  Let's bring the witness in.

 8            Incidentally, we are going to give our ruling on yesterday's Gvero

 9    Defence team submission for certification.

10            So we are seized with an oral Gvero Defence team submission for

11    certification to appeal the oral decision on the Prosecution motion --

12    Trial Chamber's oral decision on the Prosecution motion of 1st of

13    February, 2008, to wit to add Ms. Emma Sayer to the 65 ter list and

14    Prosecution reply.

15            We will not address the submissions related to the alleged errors

16    in the Trial Chamber's decision, which of course is not relevant to the

17    test under the Rules.

18            With respect to the first prong of the test, the Gvero Defence

19    team emphasizes the import of the issue as acknowledged by the Trial

20    Chamber, which makes --

21            MR. JOSSE:  Sorry, Your Honour, I'm somewhat unhappy the witness

22    hearing this.

23            JUDGE AGIUS:  All right, okay.

24                          [The witness entered court]

25            JUDGE AGIUS:  Ms. Sayer, if you could leave the courtroom for a

Page 21076

 1    while, please.  I think you're right, Mr. Josse.

 2                          [The witness stands down]

 3            JUDGE AGIUS:  With reference to the first prong of the test, the

 4    Gvero Defence team emphasizes the importance of the issue, as acknowledged

 5    by the Trial Chamber, namely, that -- which makes the issue one which

 6    would significantly affect the outcome of the trial. The Trial Chamber

 7    notes that while the proposed evidence of Ms. Sayer goes indeed to an

 8    important issue in terms of the trial, that does not automatically mean

 9    that the issue for certification is one which would significantly affect

10    the outcome of the trial.  The Trial Chamber, in fact, is of the opinion

11    that given the limited scope of this issue and the manner in which the

12    Trial Chamber has proposed to address any fair trial concerns in its

13    decision, the first aspect of the test has not been met.

14            While not strictly necessary, we are also dealing with the second

15    prong, with regard to which we note that the standard to be met under Rule

16    73(b), the Gvero Defence team submits that an immediate resolution by the

17    Appeals Chamber will affect the Defence case and that it would clarify the

18    case to be made by the Defence, and in particular if it is necessary to

19    recall the witnesses who have testified already for the Prosecution.

20    However, the Trial Chamber finds that the Gvero Defence team has not shown

21    how this may materially advance the proceedings.

22            We therefore hold that the standard in Rule 73(b) has not been met

23    and deny certification.

24            So I apologise to you, Mr. Josse.  Actually, while I was reading,

25    I was thinking precisely on whether she should be here or not, but,

Page 21077

 1    anyway --

 2            MR. JOSSE:  Thank you.

 3            JUDGE AGIUS:  -- thanks for raising the matter.

 4            So let's bring her in again, please.

 5            Mr. Thayer.

 6            MR. THAYER:  I was just standing for the witness, Mr. President.

 7            JUDGE AGIUS:  All right.  Thank you.

 8                          [The witness entered court]

 9            JUDGE AGIUS:  Ms. Sayer, good afternoon to you.  Welcome to this

10    Tribunal.

11            THE WITNESS:  Good afternoon.

12            JUDGE AGIUS:  You're about to start giving evidence. Incidentally,

13    you are also the last witness in the Prosecution case in chief, in this

14    case.  Our intention is to finish with your testimony today so that you

15    can return back to your work.

16            Now before you start your testimony, madam, you are required,

17    under our rules, to give us a solemn undertaking -- make a solemn

18    undertaking that you will be testifying the truth.  That's the equivalent

19    of an oath in your jurisdiction.  Madam Usher is going to hand you the

20    text of our solemn declaration.  Go ahead, read it out aloud, and that

21    will be your solemn undertaking with us.

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

23    whole truth, and nothing but the truth.

24                          WITNESS:  EMMA SAYER

25            JUDGE AGIUS:  I thank you so much, ma'am.  Mr. Thayer will go

Page 21078

 1    first, and then you will be cross-examined by some or all of the Defence

 2    teams.

 3            Mr. Thayer.

 4            MR. THAYER:  Thank you, Mr. President.

 5                          Examination by Mr. Thayer:

 6       Q.   Good afternoon, ma'am.

 7       A.   Good afternoon.

 8       Q.   Would you please state your full name for the record.

 9       A.   My full name is Emma Lucinda Sayer.

10       Q.   And how old are you, ma'am?

11       A.   I am 37 years of age.

12       Q.   Would you tell us just a little about your educational background,

13    briefly, please?

14       A.   I have a degree, a first degree, from Nottingham University in

15    Russian and Serbo-Croat after following the normal U.K. education system

16    until that time.

17       Q.   And allow me just briefly to summarise your military service

18    history, and correct me at any point if I've misstated anything.

19            Your service in the British Army began with a year at Sandhurst,

20    after which you volunteered for a six-month tour of duty in Vitez and

21    Gornji Vakuf; is that correct?

22       A.   That is correct.

23       Q.   And that was in 1993 and 1994?

24       A.   Yes.

25            THE INTERPRETER:  Kindly pause between question and answers for

Page 21079

 1    the sake of the interpreters, please.

 2            MR. THAYER:  Yes, I'm sorry.

 3            JUDGE AGIUS:  Please comply.  Go ahead.

 4            THE WITNESS:  Yes.

 5            MR. THAYER:

 6       Q.   Subsequent to that tour, you returned to the U.K. and debriefed

 7    refugees and returning soldiers and liaison officers from the former

 8    Yugoslavia; is that correct?

 9       A.   That is correct, yes.

10       Q.   During this time, you received additional language training?

11       A.   Yes, I did.

12       Q.   After that, you were posted in the U.K. to run an army domestic

13    security unit; is that correct?

14       A.   Yes, that's correct.

15       Q.   And then in June of 1995, you began serving as a liaison officer

16    and interpreter, working for General Rupert Smith at UNPROFOR

17    Bosnia-Herzegovina Command in Sarajevo?

18       A.   Yes, that's correct.

19       Q.   You served there until 1996, after which you were deployed to

20    Saudi Arabia in connection with monitoring the no-fly zone over Southern

21    Iraq?

22       A.   Yes, that's right.

23       Q.   1997, you were deployed in Northern Ireland as adjutant with the

24    Force Intelligence Unit?

25       A.   Yes, that's correct.

Page 21080

 1       Q.   In 1998, you were deployed in New York, where you worked at the UN

 2    Special Commission on Iraq as a member of a identification team or a site

 3    identification team regarding weapons of mass destruction?

 4       A.   Yes, that's also correct.

 5       Q.   And in 1999, you returned to Northern Ireland, and then served in

 6    Kosovo as a media officer?

 7       A.   Yes, that's right.

 8       Q.   And you left the army in 2000 at the rank of captain?

 9       A.   Yes, that's correct.

10       Q.   Okay.  Turning your attention now to your service with General

11    Smith in Sarajevo, can you briefly describe what were your duties and

12    responsibilities?

13       A.   My primary role was the liaison officer and interpreter for the

14    Armija BiH and Bosnia civilian politicians within Sarajevo.

15       Q.   Okay.  And who worked with the Serb civilian and BSA side in your

16    role?

17       A.   Captain Tom Dibb held that role.

18       Q.   And would you, on occasion, attend meetings with the Serb side?

19       A.   I only very occasionally was required to attend meetings with the

20    Serb side when Captain Dibb was deployed on alternate duty or was on

21    leave.

22       Q.   Okay.  Now, I want to get right to July of 1995, ma'am.  At that

23    time, what surname were you using?

24       A.   My surname at that time was "Bliss."

25       Q.   And do you recall accompanying General Smith to Zepa at some time

Page 21081

 1    in July of 1995?

 2       A.   Yes, I do.

 3       Q.   Do you recall the exact dates on which you travelled to Zepa? With

 4    General Smith?

 5       A.   Yes, I do.

 6       Q.   And what were those dates, ma'am?

 7       A.   The 25th, 26th, and 27th of July were the primary dates.

 8       Q.   Okay.  Now, I just want to briefly show you a couple of reports

 9    from that period of time, not to discuss them in substance, but just to

10    tie in these dates that you've just recited for the Court.

11            MR. THAYER:  May we see P02747, please.

12       Q.   Do you see the document in front of you, ma'am?

13       A.   I do, yes.

14       Q.   In the summary portion, it indicates that this is a report of a

15    meeting between General Smith and Generals Mladic and Gvero at the Jela

16    Restaurant on the 25th of July.  Were you present for this meeting?

17       A.   Yes, I was present for this meeting.

18       Q.   Was this the first time you recall meeting General Gvero in

19    person?

20       A.   I believe it was the first time I had met General Gvero, yes.

21            MR. THAYER:  Now, if we could just scroll down a little bit and

22    give you an opportunity briefly to -- if we could scroll all the way down,

23    just to reacquaint yourself.  And if we could go to page 2, please, and

24    this is of both versions.

25       Q.   The report indicates that Zepa dominated the two-hour meeting and

Page 21082

 1    that the meeting was then resumed in Zepa.  With respect to the meeting at

 2    the restaurant, was there anything that stood out or still stands out in

 3    your mind about that meeting that can place it for you and place yourself

 4    there?

 5       A.   Yes.  I particularly recall the conversation about Bihac, which is

 6    annotated in paragraph 6 on, I believe, page 2.

 7       Q.   Okay.  Now --

 8            JUDGE AGIUS:  One moment.  I think the Serbo-Croat version, we

 9    need to go to the next page.

10            MR. THAYER:  Thank you, Mr. President.

11       Q.   Ma'am, did you accompany General Smith when this meeting

12    reconvened at the check-point in Zepa?

13       A.   I did, yes.

14            MR. THAYER:  Okay.  If we could see 6D00108, please.  And we'll

15    just wait until the B/C/S is up.

16       Q.   This is a report dated the 26th of July regarding the situation in

17    Zepa.  Have you seen this report, ma'am, recently?

18       A.   Yes, I have seen this report.

19       Q.   And although it is dated the 26th, having reviewed it, what

20    date -- what is the date of the events which this report memorialises?

21       A.   The events summarised in this report occurred on the 25th of July,

22    so the day preceding the date at the top of page 1.

23            MR. THAYER:  Now, if we could just scroll or flip to the next

24    page, please.  There we have the heading of the report of the various

25    meetings between General Smith and Mladic in Zepa.

Page 21083

 1       Q.   Is there anything about the events of this day that particularly

 2    sticks out in your mind, as you've had a chance to review these reports

 3    again?

 4       A.   I particularly remember reconvening in Zepa and also the meeting

 5    between General Smith and Mr. Torlak.

 6       Q.   And was there anything in particular about that meeting that

 7    sticks out in your mind?

 8       A.   Yes.  Specifically, Mr. --

 9            JUDGE AGIUS:  One moment.  One moment, madam.

10            Mr. Josse.

11            MR. JOSSE:  Yes.  An objection.  This doesn't fall within the

12    ambit of the evidence that this witness has been asked to come here and

13    testify about.  It falls outside of 65 ter, in short.

14            JUDGE AGIUS:  Yes, Mr. Thayer.

15            MR. THAYER:  Mr. President, as I said, I'm really trying to nail

16    down these dates through specific recollections that the witness has of

17    specific events that stick out in her mind from these meetings.  That's

18    why I'm -- I'm not going in any great detail, I'm just asking her, "Is

19    there anything particular about this meeting that sticks out in your mind

20    today?"  This was put in a proofing note which was distributed to my

21    friends.  It's not in the 65 ter summary.  Some of these details came out

22    in proofing.  And in fact, actually, it's in the witness statement, I'm

23    sorry, not the proofing note, so it's actually been disclosed much

24    earlier.  But, again, it's simply to try to tie down her recollection to

25    these specific days and events, because I imagine that the dates and the

Page 21084

 1    sequence are going to be a matter of some discussion.  And I'm trying to

 2    move through it as quickly as possible.

 3                          [Trial Chamber confers]

 4            JUDGE AGIUS:  Yes.  Having heard you, Mr. Thayer, although we do

 5    understand the point raised by Mr. Josse, I think we can safely proceed,

 6    provided you restrict yourself -- you limit yourself to what you said and

 7    the witness also keeps that in mind.

 8            So do you wish to repeat the question, Mr. Thayer, or --

 9            MR. THAYER:  I'll just follow up on it very quickly.

10       Q.   Ma'am, you mentioned a conversation between General Smith and

11    Mr. Torlak.  What is it about the conversation that sticks out in your

12    mind?

13       A.   Specifically, during that conversation General Smith asked

14    Mr. Torlak whether there was anybody that wished to remain within the

15    enclave of Zepa, and I distinctly recall the look of shock or disbelief on

16    Mr. Torlak's face, and he replied that, no, nobody was wanting to stay in

17    the enclave because they were afraid.

18            MR. THAYER:  Okay.  And if we can just flip to the next page,

19    please.

20       Q.   And we see here this summarises the meeting that General Smith had

21    with Mr. Torlak.  What role did you play, if any, in creating or writing

22    this report?

23       A.   I authored the majority of this report.

24            MR. THAYER:  And if we could just flip to the very last page,

25    please.  Next page, and all the way at the bottom.

Page 21085

 1       Q.   And do we see a signature there that you recognise at the bottom?

 2       A.   Yes.  That is my signature.

 3       Q.   Okay.  Now, there was a reference at paragraph 11 in this report

 4    to returning to Zepa the next day, a discussion about a plan to return on

 5    the 26th.  Do you recall whether or not General Smith returned to Zepa, in

 6    fact, the next day, the 26th of July?

 7       A.   Yes, I do recall that we returned on the 26th.

 8            MR. THAYER:  Okay.  Moving along, if we may see P02946.  This is a

 9    report describing the situation in Zepa, summary, as at 0800 hours, 28

10    July 1995.

11       Q.   Now, having reviewed this report recently, ma'am, what is the date

12    of the events that are summarised in this report?

13       A.   The date of the events summarised in this report is the 27th of

14    July, 1995.

15       Q.   And were you present for the events that are described in this

16    report happening in Zepa?

17       A.   I was present with General Smith in Zepa when we met with the

18    three members of the War Presidency.

19       Q.   And, again, is there anything that stands out in your mind which

20    ties this date of the 27th to your recollection of being there?

21       A.   Yes.  Specifically annotated in paragraph 4 was the use of the

22    word "liquidate" by General Mladic when discussing what would happen to

23    the men left in Zepa who refused to surrender their weapons after the

24    deadline that he had set of 1800.

25       Q.   Okay.  Now, to the best of your recollection, ma'am, was this day,

Page 21086

 1    the 27th of July, the last day on which you accompanied General Smith to

 2    Zepa or did you go down on another day at some point after that?

 3            JUDGE AGIUS:  Yes, Mr. Josse.

 4            MR. JOSSE:  That's an appallingly leading question on an essential

 5    part of this witness's evidence, the use of the words "last day."

 6            JUDGE AGIUS:  Yes, you are correct.  Could you rephrase your

 7    question, Mr. Thayer, please?

 8            MR. THAYER:  Mr. President, I asked her whether this was the last

 9    day or whether there was another day after that, whether or not she went

10    down.  I can simply ask, "Do you recall what day was your last day in

11    Zepa," if that helps.

12            JUDGE AGIUS:  Yes, I think that would be better, not that it makes

13    much difference.

14            THE WITNESS:  My final day in Zepa with General Smith was the 27th

15    of July, 1995.

16            MR. THAYER:

17       Q.   Okay, ma'am.  Where was Tom Dibb, to your knowledge, during these

18    days when you were in Zepa?

19       A.   Actually, the only reason I was in Zepa was because Tom Dibb had

20    been reassigned to work with Colonel Coiffet, who was deputy chief of

21    staff of the UNPROFOR headquarters, and he was actually in Zepa and

22    involved with Colonel Coiffet throughout that period within the enclave.

23       Q.   Okay.  Now I want to ask you about an encounter you had at a

24    check-point.  I don't think it's any surprise what I'm asking you about.

25    So can you just tell us about -- about this encounter you had at this

Page 21087

 1    check-point?  Just take it -- take it from the top.  Please tell the Court

 2    as much as you can remember about what happened.

 3       A.   On the final day in Zepa, so the 27th, we had had this meeting

 4    with the Zepa War Presidency, and we had agreed that we would take the

 5    message that they had signed the agreement back to Sarajevo and report

 6    what had happened that day to Minister Muratovic and President

 7    Izetbegovic, so my recollection is we left quite late, you know, sort

 8    of -- I can't say exactly what time, but sort of very -- sort of early

 9    evening would be my recollection.  And as we were -- as we left the

10    enclave on our way back to Sarajevo, we went past a number of different

11    check-points, and at one of them we met General Gvero.  And our vehicle

12    stopped, and there was a very short exchange between ourselves and General

13    Gvero.

14       Q.   Now, can you describe just the number of people that you recall

15    being in General Smith's party on this occasion?

16       A.   We were travelling in two vehicles, and my recollection is that

17    there were between seven and eight of us on that occasion.

18       Q.   And do you recall whether or not Colonel Baxter was among these

19    individuals?

20       A.   I'm afraid I don't recall that General Baxter was there.

21       Q.   Okay.  Do you recall whether there were any members of General

22    Smith's security team with you at this time?

23       A.   Yes, I recall there being at least three members of his security

24    team there.

25       Q.   Do you recall the names of any of them?

Page 21088

 1       A.   Yes, I do.

 2       Q.   Okay.  And what is the name of the one person you recall?

 3       A.   The person that I recall being there was Ginge Davidson.

 4       Q.   And is there any reason, in your mind, why you don't recall the

 5    names of anybody else on the security detail?

 6       A.   Because of the nature of our visits to Zepa, the normal bodyguard

 7    team had been supplemented, and it wasn't always the same team that

 8    accompanied us.  So Ginge Davidson was the senior member of that team, so

 9    he was always there, and the other members of the team varied.

10       Q.   Okay.  Now, would General Smith typically travel with any

11    communications officers, in general?

12       A.   Yes, that was his practice.

13       Q.   And without referring to any nationality or particular unit, do

14    you recall there being any communications officers at this encounter?  And

15    if so, how many?

16       A.   I believe there were two communications officers present on this

17    occasion.

18       Q.   Now, without referring to any nationality or unit, were there any

19    other personnel that you recall travelling with General Smith on this

20    occasion?

21       A.   No.

22       Q.   Okay.  Now, can you take us step by step, as best as you can

23    remember, what happened when you actually arrived at this check-point?

24       A.   It was our practice that the interpreter/liaison officer would sit

25    in the front of the vehicle, and their role was to get out of the vehicle

Page 21089

 1    and negotiate any issues that we encountered getting through check-points.

 2    So my recollection is as we approached this check-point, there was a

 3    rather smart-looking dark car, and we came to a halt.  And I got out of

 4    the vehicle and had a short exchange with General Gvero.

 5       Q.   And can you recall, to the best of your ability, what that

 6    exchange involved?  What did he say to you, what did you say to him,

 7    please, as best as you can recall?

 8       A.   To the best of my recollection, he asked me whether we were

 9    finished, whether that was us done in Zepa and was there anybody left. I

10    recall taking that to mean whether any UNPROFOR headquarters personnel

11    left in the enclave.  And I recall saying that we were on our way back to

12    Sarajevo and that Colonel Coiffet and Captain Dibb remained in the

13    enclave.  And -- and there was an exchange where I had the impression that

14    he was going into the enclave and would then expect to see Colonel Coiffet

15    and Captain Dibb.

16       Q.   And based on this conversation that you had with General Gvero,

17    did you gain any impression of what his purpose was in heading into Zepa?

18       A.   My impression was that he was going to see what was left, you

19    know, what was going on, what the situation was at that time in Zepa.

20       Q.   Do you recall General Smith being present or a party in any sense

21    to this conversation?

22       A.   My recollection was that as was normal at check-points, it was

23    very rare for General Smith to actually leave the vehicle because of the

24    security risk, so my recollection is that I was relaying these exchanges

25    through an open door in the back of the vehicle.

Page 21090

 1       Q.   Okay.  Just a couple more questions, ma'am.

 2            MR. THAYER:  May we see P02947.  This is a report of a meeting

 3    held in Mrkonjic Grad on the 31st of July at the Balkana Motel.

 4       Q.   Were you present for this meeting, ma'am?

 5       A.   Yes, I can confirm I was present at this meeting.

 6       Q.   And do you recall General Gvero being present for this meeting?

 7       A.   Yes, I -- I clearly recall General Gvero being present for this

 8    meeting, as he actually met us initially, because General Mladic was very

 9    late joining us, and we had a long conversation that I interpreted about

10    ploughing and scything with a plough, because -- and the reason I recall

11    is because I didn't know the Serbian name for a scythe, and General Gvero

12    got one of the motel employees to actually go and fetch one so that he

13    could explain that the area was very noted for its competitions.

14       Q.   Do you recall when the last time was when you saw General Gvero in

15    person?

16       A.   This was -- the 31st of July was my final encounter with General

17    Gvero.

18       Q.   Now, during this conversation at the check-point with General

19    Gvero, or at any time thereafter, do you recall General Gvero saying that

20    he was in command or in charge of the Zepa operation?  Do you remember him

21    ever saying anything to that effect?

22       A.   No, I don't recall him using the term "I'm in command in Zepa," or

23    I don't recall it coming up in conversation on the 31st of July in

24    Mrkonjic Grad.

25       Q.   Or how about during the encounter or at any time from the

Page 21091

 1    encounter at the check-point on; do you recall ever hearing that?

 2       A.   No.  My recollection, from our exchange at the check-point on the

 3    27th, was that he was going into the enclave, but I don't recall him

 4    saying he was going to take command.  I recall -- you know, the impression

 5    I had was that he was going to ascertain the situation on the ground.

 6       Q.   The last couple of questions I have are with respect to a video

 7    clip which you've seen in the last couple of weeks.

 8            MR. THAYER:  May we see P02491, please.

 9            JUDGE AGIUS:  For the record, the video seems to start at one hour

10    two minutes and 40.6 seconds.

11            MR. THAYER:  Thank you, Mr. President, and we can roll any time.

12                          [Videotape played]

13            JUDGE AGIUS:  So the video stopped at one hour two minutes and

14    50.5 seconds.

15            MR. THAYER:  Thank you, Mr. President.

16       Q.   Do you recognise anybody in this still?

17       A.   Yes, I do.

18       Q.   And if you could describe, moving from right to left on the frame.

19       A.   The people in uniform, moving from the right of the frame to the

20    left as I'm looking at it, General Gvero, General Smith and General

21    Mladic, and you can just see me in between -- sort of right behind General

22    Mladic and General Smith.

23            MR. THAYER:  Thank you.  Let's keep rolling, please.

24                          [Videotape played]

25            MR. THAYER:  We've stopped at one hour two minutes 58.1 seconds.

Page 21092

 1       Q.   Do you recognise anyone in this frame?  And if you do, if you

 2    would describe who they are, moving from left to right on the frame.

 3       A.   Yes, I do.  And moving from left to right, the man standing,

 4    taking his jacket off, is Colonel Baxter.  Just in front of him, the man

 5    taking his seat is General Rupert Smith.  And that's the view of the back

 6    of my head, already seated, at the front of the frame.

 7            MR. THAYER:  Thank you.

 8                          [Videotape played]

 9            MR. THAYER:  And we've paused it at one hour three minutes and

10    00.6 seconds.

11       Q.   Do you recognise anybody in this frame?

12       A.   Yes, I do.  Looking across the table from the window, on the

13    right-hand side of the window is General Gvero, and then to his left is

14    General Mladic, sort of almost sitting opposite General Smith.

15            MR. THAYER:  Thank you.

16                          [Videotape played]

17            MR. THAYER:  Finally, we are pausing at one hour three minutes 5.2

18    seconds.

19       Q.   Who do you recognise in this frame, ma'am?

20       A.   Moving from the left to the right of the frame is General Mladic

21    on the far left, and then behind him, partially obscured, is Colonel

22    Baxter.  In the middle of the frame is myself, and to the right of the

23    frame, with the blue beret on, is General Smith.

24            MR. THAYER:  Thank you, ma'am.  I have no further questions at

25    this time.

Page 21093

 1            JUDGE AGIUS:  Thank you, Mr. Thayer.

 2            Who is going first, Defence teams?

 3            Okay, Mr. Zivanovic, do you have a cross-examination for this

 4    witness?

 5            MR. ZIVANOVIC:  No, Your Honours, I do not have questions for this

 6    witness.

 7            JUDGE AGIUS:  Thank you, Mr. Zivanovic.

 8            Mr. Ostojic.

 9            MR. OSTOJIC:  Thank you, Mr. President, Your Honours.  I do have a

10    couple of minutes, but I'll defer to my learned friend, if he'd like to go

11    first, or I can just ask.

12            JUDGE AGIUS:  Who is your friend?

13            MR. OSTOJIC:  They all are, but Mr. Josse is who I'm referring to

14    at the moment.

15            JUDGE AGIUS:  Yes, Mr. Josse.  You seem to be everybody's friend

16    today.  Mr. Thayer referred to you as "my friend," my Ostojic also as his

17    friend.  Would you like to go first?

18            MR. JOSSE:  Well, the courtesy is appreciated and much needed

19    today.  I would rather not go first.

20            JUDGE AGIUS:  Okay, thank you.  I thought so.

21            Mr. Ostojic, go ahead.

22            MR. OSTOJIC:  Thank you, Mr. President.

23                          Cross-examination by Mr. Ostojic:

24       Q.   Good afternoon, ma'am.  My name is John Ostojic.  I represent

25    Mr. Beara in this case.  I have a couple of questions that came up from

Page 21094

 1    your direct examination that I did not anticipate asking you, so thank you

 2    for coming and for answering my questions.

 3            You said that in 1998, you spent some time in New York, working

 4    specifically on the issue of weapons of mass destruction.  Do you remember

 5    that?

 6       A.   I do, sir, yes.

 7       Q.   Can you tell me specifically what your job duties and

 8    responsibilities were in connection with that?

 9            JUDGE AGIUS:  What's the relevance of the question?  What's the

10    relevance of the question?  What does it change?

11            MR. OSTOJIC:  I'm asking the question, Your Honour, although I'll

12    say it in front of the witness, in connection with the aerial images that

13    we'll be discussing today or tomorrow and her involvement on them, and I

14    think it's important for the credibility of this witness as well as for

15    the other aerial images that the Prosecution is seeking to bring into

16    evidence.

17                          [Trial Chamber confers]

18            JUDGE AGIUS:  Our answer is an emphatic "no," Mr. Ostojic.

19            MR. OSTOJIC:  Thank you, Mr. President.  May I proceed and then --

20            JUDGE AGIUS:  Yes.

21            MR. OSTOJIC:  Or are you barring all questions on this issue?

22            JUDGE AGIUS:  No, of course -- we are barring only questions that

23    we see have absolutely no relevance to what we are discussing here.

24            MR. OSTOJIC:  Well, it may go to credibility, Your Honour, as

25    well, but I'll ask the question and --

Page 21095

 1            JUDGE AGIUS:  Credibility, you're asking her what kind of work she

 2    did in New York in relation to --

 3            MR. OSTOJIC:  To lay the foundation, Your Honour, I was, but I'll

 4    proceed and ask a direct question.

 5            Thank you, ma'am, and thank you, Mr. President.

 6       Q.   Were you ever involved in examining and reviewing aerial images in

 7    connection with your work with respect to the weapons of mass destruction

 8    in 1998?

 9            JUDGE AGIUS:  Yes, Mr. Thayer.

10            MR. THAYER:  Mr. President, this really is way outside the bounds.

11    Even if it's being proffered to go to credibility --

12            JUDGE AGIUS:  I like fishing, Mr. Ostojic, and all fishing

13    expeditions, but I think you have embarked on one which I don't like at

14    all.

15            MR. OSTOJIC:  Well, I'm sorry the Court is not pleased with it,

16    but I don't think it's a fishing exercise, to be quite candid with the

17    Court.  I think it's important to show that these aerial images could have

18    been and were from time to time --

19            JUDGE AGIUS:  Mr. Ostojic --

20            MR. OSTOJIC:  -- manipulated and distorted.

21            JUDGE AGIUS:  -- we are dealing with some aerial images and not

22    any others, and it was categorically made clear that the way those aerial

23    images were taken, the whole process was not our business.  And if that

24    was not our business, I don't see why any other aerial images and madam's

25    expertise or lack of it in relation to aerial images have got any

Page 21096

 1    relevance for what we are discussing, so let's move to pastures new.

 2            MR. OSTOJIC:  Thank you, Mr. President.

 3            Thank you, ma'am.  I hope to get an answer to some questions.

 4       Q.   Now, ma'am, could you tell me exactly if you could rate the level

 5    of knowledge and experience you have with respect to the Serbo-Croatian

 6    language as you knew it in 1995?

 7       A.   Yes.  Prior to my deployment in 1995, I had recently obtained an

 8    interpreter-level qualification by the Institute of Linguists in Croatian.

 9       Q.   What level was that?

10       A.   It's interpreter level -- there are a number of different levels

11    recognised by the institution -- Institute of Linguists, and my piece of

12    paper said that I had passed that interpreter level.

13       Q.   Is there a level above or below that interpreter's level with that

14    institute?

15       A.   Yes, I believe there's one above that will allow you to do

16    simultaneous translation, so I am not sufficiently skilled in Croatian to

17    interpret at that level.

18       Q.   So was the language that you studied specifically Croatian or was

19    it Serbo-Croatian?

20       A.   At my university in England, the title of the degree was "Russian

21    and Serbo-Croat," and you had to choose which you were examined in.  So I

22    had chosen the Croatian dialect.

23       Q.   Thank you.  And how long was that course study before you passed

24    and got the level that you just shared with us, the interpreter's level?

25       A.   My degree course was four years, and I did an additional period of

Page 21097

 1    study for about two months prior to taking the exam, and that was an

 2    intensive course with native speakers in order to improve my translation

 3    level.

 4       Q.   Were you just strictly conversational, or were you also able to

 5    read and write the Croatian language?

 6       A.   I was able to do reading, writing, and conversation.

 7       Q.   Did you know, because you studied some Russian, the Cyrillic

 8    script as well?

 9       A.   Yes, I am proficient in Cyrillic script.

10            MR. OSTOJIC:  Thank you very much, ma'am.  That's all I have.

11            JUDGE AGIUS:  Thank you, Mr. Ostojic.

12            Madam Nikolic.

13            MS. NIKOLIC: [Interpretation] I will have no questions of this

14    witness, Your Honour.

15            JUDGE AGIUS:  Thank you, madam.

16            Mr. Lazarevic.

17            MR. LAZAREVIC:  No cross-examination, Your Honours.

18            JUDGE AGIUS:  Thank you, Mr. Lazarevic.

19            Madame Fauveau.

20            MS. FAUVEAU: [Interpretation] For the time being, we don't have

21    anything, Your Honour.

22            JUDGE AGIUS:  Merci beaucoup, madame.

23            You see, it was a short-lived expectation, but Mr. Haynes --

24            MR. HAYNES:  I might as well just get this out of the way.  I put

25    no minutes on the schedule, and that's what I meant.  I don't wish to

Page 21098

 1    cross-examine this witness.

 2            JUDGE AGIUS:  Okay.  Thank you.  So back to you, Mr. Josse.

 3            MR. JOSSE:  Thank you, Your Honour.

 4                          Cross-examination by Mr. Josse:

 5       Q.   Ms. Sayers, my name is David Josse, and with the gentleman who

 6    sits to my left, we jointly defend General Gvero in this trial, and it

 7    won't surprise you to know that I do have quite a number of questions for

 8    you, in light of your evidence.

 9            We were provided yesterday, very helpfully by Mr. Thayer, with

10    what is called a proofing note, and it gives some background as to how you

11    come to be here today, and I want to explore that with you a little bit,

12    if I may.

13            You received e-mails, as I understand it, from both General Smith

14    and Mr. Dibb in the relatively near past; correct?

15       A.   Yes, that is correct.

16       Q.   Let's take them in turn, if we may.  Firstly, General Smith. Have

17    you been in contact with him regularly or at all in the last ten years?

18       A.   Over the last ten years, there have been a couple of occasions

19    where we have served in the same location, primarily in Northern Ireland,

20    when I was the adjutant for the Force Intelligence Unit, and I did see him

21    from time to time then when he was the general officer commanding in

22    Northern Ireland.  And outside of that, we have met on perhaps two or

23    three separate occasions, certainly in Kosovo when he visited Kosovo, and

24    I was the media -- one of the media officers, and on a couple of social

25    occasions since then.

Page 21099

 1       Q.   How many e-mails has he sent you in the last ten years?

 2       A.   Less than -- less than ten.

 3       Q.   So this wasn't the only e-mail he has sent you, the one that

 4    relates to your being here today?

 5       A.   No.  The one prior to that that I had received was him

 6    establishing an e-mail contact after my wedding in November.  Previous to

 7    that, we had lost contact, and a mutual friend attended the wedding and

 8    had passed my e-mail address on to him.

 9       Q.   That -- that really deals with my next question, which is how he

10    came to have your e-mail address.  That's very helpful, thank you.

11            Let's deal with Mr. Dibb.  A similar question.  A brief resume of

12    your dealings with him over the last ten years.

13       A.   We -- I have met with Captain Dibb on a number of occasions in the

14    last ten years.  However, since leaving the army in 2000, they became

15    fewer and fewer, especially after he became involved in his de-mining

16    activities and spent large time -- large lengths of time abroad.  But we

17    have in fairly regular e-mail contact, I suppose.

18       Q.   So when you heard from them, you were not particularly surprised;

19    correct?

20       A.   Yes, yeah, that's correct.

21       Q.   Dealing strictly and only with matters pertaining to this case,

22    what did General Smith say to you, please?

23       A.   Both the e-mails from both of them arrived within a day or so of

24    each other, and I actually received Captain Dibb's first.  And General

25    Smith's e-mail said:  "I've been asked by the MOD if I know where you are.

Page 21100

 1    Do you want to be found?"

 2       Q.   And what did General Smith say?

 3       A.   No, that was -- that was General Smith.  I apologise.

 4       Q.   It's my fault.  What did Dibb say then, please?

 5       A.   Tom e-mailed that Mr. Thayer had been trying to locate me and also

 6    asked if I wanted to be found.

 7       Q.   And we have heard that the United Kingdom authorities apparently

 8    had made sustained efforts in the last two or three months to find you.

 9    They don't have your details, is that right, the Ministry of Defence?

10       A.   I think the Ministry of Defence were slightly confused by my

11    change of surname.  I am required, being a member of the regular reserve,

12    to return a form every year, telling them my current address and details,

13    and I do that every year.

14       Q.   So you're still in the reserve, are you?

15       A.   Every regular officer remains on the reserve until the age of 55.

16       Q.   It shows you what I know about the British Army.  But, anyway,

17    that's my fault.  Thank you.  And presumably you're in receipt of some

18    sort of pension as well, are you?

19       A.   I'm rather too young to be in receipt of pension.

20            JUDGE AGIUS:  Is that relevant?

21            MR. JOSSE:  I'm -- I'll move on.

22            JUDGE AGIUS:  Yes, I think so.

23            MR. JOSSE:

24       Q.   Did you talk to either Mr. Dibb or General Smith after you had

25    received their e-mails pertaining to this case?

Page 21101

 1       A.   No, I did not.

 2       Q.   Did they communicate with you further?  Presumably, you e-mailed

 3    back and said you were prepared to be found or whatever.  Did either of

 4    them communicate with you further thereafter?

 5       A.   I believe I received e-mails from both of them, saying that they'd

 6    passed my contact details on to the -- respectively from Mr. Dibb to

 7    Mr. Thayer and from General Smith to an MOD lawyer, and I then directly

 8    made contact with the MOD lawyer and directly made contact with

 9    Mr. Thayer.

10       Q.   You made direct contact with Mr. Thayer?

11       A.   Yes, using the information that had been given to me.

12       Q.   And you had no idea why it was that Mr. Thayer wanted to talk to

13    you at the point you first made contact with him; correct?

14       A.   When we were planning -- when I was planning my wedding last

15    autumn, I had made contact with Mr. Dibb to see whether he was going to be

16    in the U.K., and he had mentioned that he wouldn't be in the U.K. because

17    he'd recently been here in The Hague, and that was the extent.  So I knew

18    that -- that Tom had been to The Hague to testify in a trial.  I didn't

19    know what the trial was, or who was involved, or how long he'd been here.

20       Q.   And so at the point that you first made contact with Mr. Thayer,

21    you didn't know which of the accused in this case the Office of the

22    Prosecutor were interested in your helping them with?

23       A.   No, absolutely not.

24       Q.   We were told, in the proofing note, that, and I quote here, and

25    I'll read it out slowly:

Page 21102

 1             "Smith stated that he had testified in several trials, and she

 2    should not expect people to know exactly how UNPROFOR worked."

 3            What did you understand him to mean by that?

 4       A.   When I had had the e-mail conversation around the time of the

 5    wedding with Tom, he had -- he had stated that he felt that it wasn't

 6    clear how UNPROFOR had operated, and that was the only comment he made.

 7    And when I responded to General Smith that I was happy to be found, I must

 8    have referenced that in some way.

 9       Q.   And did he explain it at all?

10       A.   I'm sorry, could you clarify?

11       Q.   Yes.  Perhaps it's my not understanding it.  The comment that I've

12    just read out came originally from Mr. Dibb, as I understand what you've

13    said.  Is that right?

14       A.   That is correct, yeah.

15       Q.   You returned that comment, so to speak, to General Smith, or

16    passed it on, in effect; is that what you're saying?

17       A.   I may have referenced it in some way, that's correct.

18       Q.   And what I'm asking you is:  Did General Smith seek to clarify the

19    remark that you had referenced?

20       A.   In the e-mail he sent me that said he'd passed on my details to

21    the MOD lawyer, he made -- there was a sentence that said something like:

22    "It's not ICTY's role to understand how UNPROFOR worked."

23       Q.   And what did you understand him to mean by that?

24       A.   That the mechanics of how UNPROFOR operated on the ground were not

25    the sole purpose of ICTY.

Page 21103

 1       Q.   I'll move on, if I may, to Mr. Baxter.  We know that he retired

 2    from the army relatively recently as a brigadier general.  Have you had

 3    any dealings with him over the last ten years?

 4       A.   The only time I've met Brigadier Baxter was in Macedonia, where he

 5    was employed by the military when I was working for OCE, so that would

 6    have been 2000 and -- actually shortly after the Ohrid Agreement.  2002?

 7    I don't recall specifically, I'm afraid.

 8       Q.   Are you aware of any efforts, either by Smith, Dibb, or by the

 9    Prosecution in this case, to contact Mr. Baxter recently?

10       A.   I have no knowledge of General Smith or Mr. Dibb trying to contact

11    him, but I believe that the Ministry of Defence were trying to contact

12    him.

13       Q.   And do you have any knowledge as to whether the Ministry of

14    Defence were successful?

15       A.   No, I don't.

16       Q.   You don't.  And you don't know whether the Office of the

17    Prosecutor have or have not spoken to him?

18       A.   I'm not aware of that.

19       Q.   What about Mr. Dibb, any knowledge as to whether they have --

20    whether he's been spoken to either by the Ministry of Defence or by the

21    Office of the Prosecutor subsequently about these events?

22       A.   Could you clarify "subsequently"?

23       Q.   Yes.  Subsequent to his giving evidence.

24       A.   I have no knowledge.

25       Q.   Thank you.  I'd now like to turn to the approach that you received

Page 21104

 1    from the Office of the Prosecutor.  You've, in fact, explained very

 2    helpfully that it was you who contacted them initially. Presumably, they

 3    made it clear to you that they wished to speak to you.  Did you have any

 4    form of conversation as to the substance of your evidence prior to your

 5    meeting in London on, I think, the 25th of January of this year?

 6       A.   I did speak to Mr. Thayer on the telephone prior to the actual

 7    interview, just setting up the date.

 8       Q.   I'll correct myself.  It was the 24th of January, the day of the

 9    interview.  Any discussion as to the substance of your evidence? That's

10    really all I'm curious about.

11       A.   No.

12       Q.   No.  So you set up a meeting, and you were interviewed by

13    Mr. Thayer and by an investigator called Mr. Janc, I think, that's J-A-N-C

14    for the record, on the 24th of January of this year; that's right?

15       A.   I don't have a diary in front of me, but on the Thursday, yes.

16       Q.   Take it from me, and I just want to be absolutely clear about

17    this.  That was the first time you had any idea as to what anyone was

18    interested in what you had to say about the war in Bosnia?

19       A.   When I arrived at the MOD, I was given a list of questions that

20    had been -- had been sent by the MOD lawyer, and that was the morning of

21    the meeting.  I had been sent a packet of documents that arrived on

22    Wednesday, and I'd had a short while to look at some of these documents

23    overnight on the night before the interview.

24       Q.   The documents had come from the Ministry of Defence or from the

25    Office of the Prosecutor?

Page 21105

 1       A.   I believe they came from the Office of the Prosecutor.  I'm --

 2    they had a -- I didn't keep the package.

 3       Q.   So you can't tell us which documents this package included?

 4       A.   Oh, yes, I can tell you which documents were included in the

 5    package, but I didn't -- I didn't include the -- I didn't keep the

 6    envelope is what I meant.

 7       Q.   I understand.  Tell us, please.

 8       A.   There were a number of meeting reports memorialising meetings over

 9    a period of 1995, and they included meetings with Bosnian civilian

10    politicians and the reports that we've reviewed today in court.

11       Q.   I'm going to change the subject.  I may come back to what I was

12    asking you about in a few moments' time.

13            Notes that you kept at the time, please.  Did you keep any form of

14    diary or notebook of contemporaneous events?

15       A.   No, I did not.

16       Q.   None whatsoever?

17       A.   None.

18       Q.   And subsequently, did you make any attempt or have you made any

19    attempt, perhaps I should say, to write anything about your experiences in

20    Bosnia in 1995?

21       A.   No, I have not.

22       Q.   Did you undergo any form of debriefing in 1995 after you left

23    Bosnia?

24       A.   Excuse me.  Could you clarify what you mean by "debriefing"?

25       Q.   Yes, debriefing presumably by some form of British or perhaps

Page 21106

 1    United Nations official, who asked you to tell them anything about your

 2    experiences.

 3       A.   When -- the only experience that I had that may suit that moniker

 4    would be every person, when they're serving by themselves, i.e., not

 5    attached to a formal unit, and talks to -- gets debriefed by a sort of

 6    psychological -- for psychological reasons when they leave theatre.  I

 7    think it's to make sure that, you know, that you're okay to be sent back

 8    to your unit.  That was my understanding of its purpose.

 9       Q.   The reason I'm asking you these questions is to clarify that the

10    events that you're describing today in court, you have not thought

11    about -- well, correction.  You have not discussed with anyone or written

12    down in the 12 years since they've happened; is that correct?

13       A.   Yes, that's correct.

14       Q.   And obviously 12 years is quite a lot of time and a lot of water's

15    passed under the bridge.  That goes without saying, doesn't it?  But I ask

16    you that all the same.

17       A.   I'm not really sure what the point of your question is.

18       Q.   Okay, I'll -- well, the point's neither here nor there.

19       A.   I don't understand the question.

20       Q.   I'll move on.

21            JUDGE AGIUS:  Not exactly neither here nor there, it's -- usually

22    that's the question or the point made to a witness when one is trying to

23    challenge his or her memory.  So go ahead, Mr. Josse.

24            MR. JOSSE:  Well, yes.  But, Your Honour, I don't need to tell the

25    witness why I'm asking a particular question.  It wasn't a very good

Page 21107

 1    question.  That I certainly accept.

 2            JUDGE AGIUS:  I agree, so let's move ahead.

 3            MR. JOSSE:  Inelegantly and clumsily put.

 4       Q.   You, as you told the Trial Chamber, primarily were responsible for

 5    dealing with the Muslim side, and Mr. Dibb, I think, was primarily

 6    responsible for liaising with the Serb side in the dispute?

 7       A.   That's correct.

 8       Q.   And your role in these events was primarily because Mr. Dibb was

 9    physically stationed in Zepa for a few days?

10       A.   That's correct.

11       Q.   Now, you've been asked about your dealings with General Gvero, and

12    I'm not going to ask you specifically about them again, but you are

13    confident that your first meeting with him was on the 25th of July of

14    1995?

15       A.   Yes, I believe so.

16       Q.   Had you had any dealing with him at all prior to that day?

17       A.   I do believe we had met before that day.

18       Q.   Had you had any dealing with him, other than face to face, prior

19    to that day?  Any telephone conversation with him is specifically what

20    I've got in mind.

21       A.   That was not normally part of my role, no.

22       Q.   It wasn't normally part of your role.  If a senior UNPROFOR

23    officer needed to speak to an officer of the VRS or, indeed, an officer --

24    well, let's deal with the VRS for a moment, who would act as a translator

25    for that UNPROFOR officer?

Page 21108

 1       A.   Ordinarily, that would have been Captain Dibb.

 2       Q.   Would you translate telephone conversations between senior

 3    Bosniaks, civilian or military leaders, and senior UNPROFOR figures?

 4       A.   Yes, I would.

 5       Q.   And you did that quite regularly?

 6       A.   On a fairly regular basis, yes.

 7            JUDGE AGIUS:  One moment, Mr. Josse.  Just to clarify this from

 8    the transcript, at line 6 on the previous page, page 37, your

 9    question: "Now, you have been asked about your dealings with General

10    Gvero, and I'm not going to ask you specifically about them again, but you

11    are confident that your first meeting with him was on the 25th of July of

12    1995?"

13            And Ms. Sayer answered:   "Yes, I believe so."

14            Then your question:

15            "Had you had any dealings with him at all prior to that day?" "

16            And her answer is:  "I do believe we had met prior to that day,"

17    which is contrary to what she had previously stated.  My understanding is

18    that prior to the 25th of July, she had never met with General Gvero, but

19    her answer on line 12 indicates exactly the contrary.  I don't think she

20    said that or she meant to indicate that she had met with General Gvero

21    before the 25th of July.

22            MR. JOSSE:  Well, that's very beady-eyed of Your Honour, because I

23    certainly hadn't spotted that.

24       Q.   Perhaps you can clarify.  Occasionally there are transcription

25    errors.  Is that right, madam?

Page 21109

 1       A.   May I clarify?

 2            JUDGE AGIUS:  Yes, please, and please draw a distinction between

 3    having met him before and having dealings with him before, because the

 4    question itself was not directed as to whether you had met him before but

 5    whether you had dealings with him before the 25th of July.

 6            THE WITNESS:  I do not believe that I had dealings with General

 7    Gvero before the 25th of July, yeah.

 8            JUDGE AGIUS:  Yes, Mr. Josse, you can pursue the matter or jump --

 9            MR. JOSSE:  I'm going to pursue it in one moment.

10       Q.   But just before I do that, as a lead-in to it, could I ask you

11    this:  You were based where in Sarajevo?

12       A.   We were -- I was based with Command of UNPROFOR in a building

13    known as the residency in the center of Sarajevo.

14       Q.   And so that was not the building that General Gobillard was in;

15    correct?

16       A.   That is correct, apart from the time that General Gobillard

17    covered for General Smith earlier in that month.

18       Q.   It was the first two weeks of July, wasn't it --

19       A.   That's correct.

20       Q.   -- approximately?  And General Gobillard, was he someone you met?

21       A.   I did meet General Gobillard, yes.

22       Q.   And were you present when Generals Gobillard and Smith

23    communicated with one another, spoke to one another?

24       A.   Occasionally.

25       Q.   What language did they use?

Page 21110

 1       A.   There were -- it would depend at the level of conversation.  We

 2    worked in a big office, so the liaison officer and interpreters were in a

 3    big office outside, and so when General Gobillard came to meet with

 4    General Smith, they would greet each other in English and exchange a few

 5    words in English, and then the meetings would happen in General Smith's

 6    office, and I was not at those meetings.  So I can't answer the question

 7    fully.

 8       Q.   Do you remember the name of General Gobillard's military

 9    assistant?

10       A.   I can describe him facially to you, but I can't recall his name.

11       Q.   Do that.

12       A.   He is -- we met again in the UN, when I was working in the UN in

13    New York.  He has fairly dark skin and dark eyes, with dark hair.

14       Q.   What nationality is he?

15       A.   He was French.

16       Q.   And at what period of time was this man General Gobillard's

17    military assistant?

18       A.   Well, I'm talking about the period in -- while I was in Sarajevo.

19    I have no knowledge of any other period other than that.

20       Q.   Because I'm going to suggest you're wrong about this.  His

21    military assistant was a French-Canadian who in fact had fair hair, a man

22    called Fortin, Louis Fortin.  Does that ring any bells?

23       A.   Excuse me, sir, I may be mistaken.

24       Q.   What was the name of General Smith's chief of staff?

25       A.   General Nikolai.

Page 21111

 1       Q.   And he was Dutch, wasn't he?

 2       A.   Yes, he was Dutch.

 3       Q.   What language did you speak to him in?

 4       A.   I spoke to General Nikolai occasionally in English.

 5       Q.   You say "occasionally."  Did he not require your interpretive

 6    skills?

 7       A.   I never worked with General Nikolai.

 8       Q.   Even though he was based in the residency as well; correct?

 9       A.   Yes, that's correct.

10       Q.   Did you ever work with or for General Gobillard?

11       A.   The occasion I recall working -- or was really receiving a

12    telephone conversation when General Gobillard was covering for General

13    Smith, and on that occasion I took a -- I recall taking a telephone

14    conversation from Minister Muratovic.

15       Q.   Was that the only conversation that you recall performing that

16    function for Gobillard?

17       A.   I don't recollect.

18            MR JOSSE:  Right.  Let me come to the point.  Let's have a look at

19    P2968, please.

20       Q.   Now, this is quite a long document, and I think you may need to

21    read it all, but it purports, when it comes up on the screen, to be a

22    record made by a Major Fortin of a telephone conversation.  You have it, I

23    see.  We don't.

24            Yes, we've got it now.  A telephone conversation between General

25    Gobillard and General Gvero on the 11th of July at 1810 hours.

Page 21112

 1            I think it would be advisable were you to read it.

 2            JUDGE AGIUS:  Yes, Mr. Thayer.

 3            MR. THAYER:  Mr. President, I haven't objected yet to the somewhat

 4    wide-ranging nature of the cross-examination.  You know, I think my friend

 5    ought to be allowed some latitude, given the circumstances.  But we are

 6    now getting into an area which is a record of a telephone conversation

 7    regarding somebody that the witness didn't work with, didn't serve as an

 8    interpreter for --

 9            JUDGE AGIUS:  Let's wait for the question.

10            MR. THAYER:  -- and I'm just concerned we're really moving far

11    afield.

12            JUDGE AGIUS:  Yes, but let's wait for the question.  What

13    surprises me is that Mr. Josse, for two days or three days running, had

14    complained that he would not have enough time to prepare for his

15    cross-examination, and now he is mounting a really humongous

16    cross-examination.  So you found the time, Mr. Josse.

17            MR. JOSSE:  I found the time, and they teach us to be tough at the

18    English Bar, Your Honour.

19            JUDGE AGIUS:  Yes, I know that.  The same in my country.

20            MR. JOSSE:

21       Q.   As I say, madam, I think you might need to read this, because I'm

22    going to ask you, in due course, whether you were involved in this

23    conversation at all.  So I suspect the only way you might recall this is

24    by reading the substance of it.

25            When you get to the end of that page, say so, and the Registrar

Page 21113

 1    will turn the page for you.

 2       A.   I'm at the end of the page.

 3       Q.   Having read it, does it ring any bells?

 4       A.   I'm afraid it doesn't ring any bells.  I don't recollect it.

 5       Q.   The reason I'm asking you this is:  On the 28th of November, in

 6    this courtroom, at page 18382 of the transcript, Major Fortin was giving

 7    evidence about this conversation, and he said this:

 8             "Well, as far as I recall, the interpreter would talk to General

 9    Gvero in Serbo-Croatian.  He would reply.  She would translate to me in

10    English.  I would translate to General Gobillard in French.  He would give

11    me his reply in French.  I would tell it in English to the interpreter,

12    and she would then translate for the person at the other end.

13            "Q.   And the interpreter you are referring to is Captain Bliss?

14            "A.  I'm quite sure it was Captain Bliss."

15            What do you say about that, please?

16       A.   I can't say anything about it.

17       Q.   Is he wrong?

18       A.   There -- there were a number of interpreters who spoke Serbo-Croat

19    in the residency at the time.  I can't -- I can't say that he was wrong,

20    but I do not have -- all I can comment is that I don't have a recollection

21    of having interpreted this conversation.  And ordinarily, when I was

22    involved in an interpretation of a telephone conversation, I made notes,

23    and this is -- does not have the hallmark of my notes.  But I believe you

24    said it was created by Mr. Fortin.

25            MR. JOSSE:  Perhaps that would be a convenient moment, Your

Page 21114

 1    Honour.

 2            JUDGE AGIUS:  Thank you.  We'll have a 25-minute break.  Thank

 3    you.

 4                          --- Recess taken at 3.47 p.m.

 5                          --- On resuming at 4.15 p.m.

 6            JUDGE AGIUS:  Mr. Josse, before you proceed, I've been informed

 7    that Ms. Sayer would like to make a statement in relation to some answer

 8    that she has given.

 9            Ms. Sayer, please go ahead.

10            THE WITNESS:  Thank you, sir, thank you.

11            I just wanted to clarify.  You asked me if I recalled a certain

12    person, and I described the person.  The person I described was the MA to

13    a French general but not General Gobillard, and I did realise that when

14    I -- as soon as you responded to me, but I didn't feel that I had the

15    opportunity to comment at that stage.

16            MR. JOSSE:

17       Q.   If I may, Your Honours.  So what you're saying, Ms. Sayer, is that

18    the person you described was a military assistant to another French

19    general, not General Gobillard?

20       A.   Yes, that's correct.

21       Q.   It may have been General Janvier, was it?

22       A.   It was General Janvier.

23       Q.   Yes.

24            THE INTERPRETER:  Would the speakers kindly not overlap for the

25    interpreters.

Page 21115

 1            JUDGE AGIUS:  Thank you, and we'll try to comply.

 2            MR. JOSSE:  My apologies.  I will try and speak particularly

 3    slowly.

 4            JUDGE AGIUS:  Thank you, Mr. Josse.  You usually do, so you're not

 5    usually a problem.

 6            MR. JOSSE:

 7       Q.   I'm going to ask you a little later about this Major Fortin, as he

 8    was at the time.  He's now a colonel, and as I say, he gave evidence here

 9    in November.  You have no recollection of him at all?

10       A.   I recall when General Gobillard and his team moved in for a very

11    short period earlier that month into the residency, there were lots of new

12    faces, and it had not been part of my role to liaise with Sector Sarajevo

13    before that time, so all of these people were new to me.

14       Q.   I'll go straight to the point now.  I'm going to suggest to you

15    that Major Fortin was in Zepa on the evening of the 27th-28th of July.  Is

16    it possible that you weren't aware of UNPROFOR officers who were in Zepa

17    that night?

18       A.   On every occasion when we were in Zepa, we stayed at the

19    check-point at the top of the enclave, so it is possible that he was not

20    there, or indeed it's possible that he was there and I don't recall seeing

21    him.

22       Q.   I'll explore that in a moment.  But what was that check-point

23    known as, the one that you stayed at?

24       A.   OP-2.

25       Q.   Okay.  I'll come to that in a moment, if I may.  25th of July, I'd

Page 21116

 1    like to turn to first of all.  Had you ever been to the Jela Restaurant

 2    before, before that day?

 3       A.   On one occasion, yes.

 4       Q.   Where is it?

 5       A.   It's in the region of Sokolac.

 6       Q.   Behind you, and don't look at it quite yet, is a very large map of

 7    the area, and I'm going to ask you to put various marks on it over the

 8    next half an hour or so.  If you can, and if you can't, say so, a few

 9    places, Zepa, Sokolac, Rogatica, have been highlighted in the map to help,

10    but otherwise it's unmarked.  Coincidentally, it's actually a Ministry of

11    Defence -- British Ministry of Defence map dated 1995.  Could you mark on

12    that map, please, where you say the Jela Restaurant is?  If you can't,

13    say.

14       A.   I'm not sure I can.  I wasn't the driver, so -- I'll try.  I'm

15    sorry.  Beyond being -- beyond saying it's in the region of Sokolac, I

16    would not feel confident in marking it on the map.

17       Q.   Do you know why it was chosen as a meeting place?

18       A.   No.

19       Q.   How did you get there on that day, the 25th of July?

20       A.   In an UNPROFOR vehicle.

21       Q.   From where?

22       A.   From Sarajevo.

23       Q.   Do you recall the route that you took?

24       A.   I'm afraid I don't recall the route.

25       Q.   Where was the nearest check-point to the restaurant?

Page 21117

 1       A.   On leaving the residency, I recall going through a number of

 2    check-points, but I can't recall the exact location of -- of them.

 3       Q.   Where was the nearest check-point to the restaurant?  If you don't

 4    remember, say so.

 5       A.   I don't recall.

 6       Q.   Who was in your entourage that day? General Smith's entourage,

 7    that is.

 8       A.   I was the interpreter/liaise officer, and I recall Mr. Davidson

 9    being the chief bodyguard, and I recall we were in two vehicles and that

10    there were approximately seven or eight of us.

11       Q.   Who, if anyone from the VRS, was there to greet you when you

12    arrived at the restaurant?

13       A.   My recollection is that General Tolimir was at the restaurant.

14       Q.   Alone?

15       A.   There were other officers or other personnel in uniform around,

16    but I couldn't name them.

17       Q.   Did Gvero arrive there with Mladic?

18       A.   I'm not sure.  My recollection is that that is what happened, but

19    I'm not sure.

20       Q.   How did Mladic get to the meeting?

21       A.   My understanding was that he came by helicopter.

22       Q.   Was General Gvero in that helicopter with him?

23       A.   I did not see it land, so I can't say.

24       Q.   Mladic was late for the meeting, wasn't he?

25       A.   Yes, yes.

Page 21118

 1       Q.   It in fact says that in the minute that we looked at earlier.

 2    What happened in the 30 minutes that you were waiting for Mladic?

 3       A.   As was normal, we were offered hospitality in the form of a drink

 4    or coffee.

 5       Q.   Anything else?  Did Tolimir say anything to you?

 6       A.   I don't -- I don't recall the specific nature of any

 7    conversations, apart from normal sort of pleasantries.

 8       Q.   I want to suggest to you that in fact it was General Gvero who

 9    greeted you when the arrived at the Jela Restaurant on the 25th of July,

10    and he started to talk to General Smith about the British political

11    system.  He mentioned the House of Commons, the House of Lords, the prime

12    minister.  Any recollection of that?

13       A.   No.

14       Q.   And then he mentioned various British philosophers, for example,

15    J.S. Milne, Bertram Russell.  Any recollection of that?

16       A.   No, however it is possible that I didn't interpret this.

17       Q.   If you weren't interpreting, who would, please?

18       A.   If I wasn't physically interpreting --

19       Q.   Yes.

20       A.   -- there was normally an interpreter from the Serb side present.

21       Q.   Have you any recollection whether there was an interpreter from

22    the Serb side present for that meeting and who that interpreter was?

23       A.   No, I'm sorry.  They varied.

24       Q.   During the actual meeting after Mladic had arrived, did you

25    interpret the substance of the meeting?

Page 21119

 1       A.   Not on that occasion, no.

 2       Q.   Did you attend the substance of the meeting?

 3       A.   Yes.

 4       Q.   Did Gvero say anything during the meeting?

 5       A.   My major recollection of the time that we were actually at the

 6    restaurant centers on the conversation about Bihac, and that primarily

 7    occurred between General Smith, who was asking a number of questions and

 8    to try to move the conversation on to Bihac, and General Mladic

 9    responding.

10       Q.   What was Tolimir's contribution to the meeting?

11       A.   I have no real recollection.

12       Q.   Are you sure that Tolimir was there?

13       A.   Yes.

14       Q.   You've got a picture in your mind's eye of General Tolimir being

15    at this meeting, have you?

16       A.   That is reinforced or was reinforced by my reading of the meeting

17    note.

18       Q.   Now, you have told the Trial Chamber that you went to Zepa on the

19    25th, the 26th and the 27th of July.  Has that always been your

20    recollection since you were asked about these events, bearing in mind

21    you've only been asked about it for the last two or three weeks?  Has that

22    always been your recollection?

23       A.   That's been my recollection since it happened?

24       Q.   All right.  We'll turn to that in a moment.  Perhaps before I do

25    that, I should have asked you about the 25th of July, Ms. Sayers.  We know

Page 21120

 1    that Mladic goes off to Zepa, thereafter, he goes in a helicopter;

 2    correct?

 3       A.   Yes.

 4       Q.   What do you do, you personally?

 5       A.   Get into two vehicles.

 6       Q.   And go where?

 7       A.   Go to Zepa.

 8       Q.   And you're in the same vehicle as General Smith, a separate

 9    vehicle?

10       A.   Yes, that's right.

11       Q.   The same or a separate vehicle?

12       A.   The same vehicle.

13       Q.   Where does General Gvero go; any idea?

14       A.   I can't recall.

15       Q.   I go back to what I asked you a minute ago.  You are saying that

16    since you were first asked about these events on the 24th of January of --

17    I beg your pardon -- yes, the 24th of January of this year, you have

18    always maintained you were in Zepa on the 25th, the 26th, and the 27th of

19    July; correct?

20       A.   When I made my statement on the 24th, my recollection -- in fact,

21    it's -- I believe it's in the statement, was that we spent two or three

22    days in Zepa.  And then towards the end of the statement, when, after

23    reviewing the meeting notes, because there are some discrepancy on the

24    dates on the notes, it was my recollection that there were three days

25    rather than two to three.

Page 21121

 1       Q.   Why didn't you say that when I asked you the question two or three

 2    minutes ago?

 3       A.   I'm sorry, I don't understand.

 4       Q.   Well, two or three minutes ago, and I could go to the question if

 5    it would help you, madam, I asked you the following -- I will go to the

 6    question:

 7             "Now, you've told the Trial Chamber that you went to Zepa on the

 8    25th, 26th, and 27th of July.  Had that always been your recollection

 9    since you were asked about these events, bearing in mind you've only been

10    asked about it for the last two or three weeks?  Had that always been your

11    recollection?"

12            Answer:  "That's been my recollection since it happened."

13            That's not true, is it?

14       A.   I'm sorry, I'm not sure I understand the question.

15       Q.   Well, let's have a look at your witness statement and see if that

16    helps.

17            JUDGE AGIUS:  I don't think you need to.  I'll explain it to the

18    witness.

19            What's being put to you is the following, madam:  When you

20    answered the question that Mr. Josse has just read out to you, your answer

21    is tantamount to confirming that your recollection has always been that

22    you were three days in Zepa, the 25th, 26th, and 27th. Mr. Josse is

23    putting to you that that is not correct, because later on you, yourself,

24    referred to your statement to the Office of the Prosecutor whereby at one

25    stage you are not sure whether it was three days, in fact you said "two or

Page 21122

 1    three days," and it's only later that you realise that it was three days

 2    and not two or three days.  So it's being put to you that it's not true,

 3    it's not correct, that your recollection has always been uniform and

 4    constant, in the sense that it was three days and not something different.

 5    This is what is being put.  This is what is being put.  If I have

 6    misinterpreted your position, Mr. Josse, please correct me.

 7            MR. JOSSE:  Your Honour hasn't, and I'm going to go to the witness

 8    statement, in any event.

 9            JUDGE AGIUS:  I'm not going to stop you.

10            MR. JOSSE:  I'd be grateful if the witness could answer the

11    question.

12            JUDGE AGIUS:  Yes, Ms. Sayer.

13            THE WITNESS:  Oh, I'm sorry, I thought there was a witness

14    statement coming.

15            JUDGE AGIUS:  Yes.  Would you like to explain the apparent

16    discrepancy between your previous answer and what transpires from your

17    statement?

18            THE WITNESS:  It's a matter of recall.  During the course of the

19    interview that I had with the Prosecution in London, I was asked a number

20    of questions in terms of dates, and I could not recall the exact dates.

21    And when I was originally asked the question, I answered, "Two or three

22    days."  Then having reviewed the documents, many of which I authored,

23    parts of those meeting notes, and thinking about it over a -- over a

24    break, I was able to confirm that it was three days rather than two or

25    three.

Page 21123

 1            JUDGE AGIUS:  Thank you.  So you are, in actual fact, conceding

 2    Mr. Josse's proposition that it is not exactly correct when you state that

 3    your recollection, ever since the events happened, has always been that

 4    you were three days in Zepa, that in other words you came back to realise

 5    that it was three days after you were given the opportunity to go deeper

 6    into what was being shown to you?

 7            THE WITNESS:  Yes, although at the time, that summer, when

 8    discussing, you know, with my family, who had obviously seen what was

 9    going on on the television, I have said to them, "Oh, yes, it was an

10    interesting three days," so it's -- forgive me -- so, you know, at some

11    level, three, rather than two to three, has been in my mind for some time.

12            JUDGE AGIUS:  Yes.  Mr. Josse, I think you can safely proceed to

13    your next question.

14            MR. JOSSE:  Thank you.

15       Q.   In the same witness statement, in the next paragraph, and I can

16    show it to you if it would help, I'm going to read paragraph 10 to you:

17            "I recall General Mladic, Tolimir, and Gvero being in Zepa area

18    during this time."

19            And then there is a passage that has been blanked out, which we

20    don't need to worry about.  I don't know what it says, and that's been

21    dealt with elsewhere.

22            "I saw General Mladic at the Jela Restaurant, then at the

23    check-point overlooking Zepa.  I saw General Gvero at the Jela Restaurant

24    on 25 July and think I may have seen him again that day, passing him on

25    the road, but I'm not sure because these days are difficult to

Page 21124

 1    distinguish."

 2            And I'll finish the paragraph:

 3            "I recall seeing General Tolimir with Tom Dibb and Colonel Coiffet

 4    at the check-point in Zepa on 25 July."

 5            Nothing in your evidence hitherto, Ms. Sayers, about "these days

 6    are difficult to distinguish."  Why not?

 7       A.   My evidence to the questions you've asked me --

 8       Q.   Well, Mr. Thayer asked you, more to the point.  You didn't tell

 9    this Trial Chamber, "Well, to be honest with you, these days are difficult

10    to distinguish.  I'm not sure if there were two or three days."  You've

11    come in here and you've given the clear impression that you're absolutely

12    confident in what you said.  It's different to what your witness statement

13    says, isn't it?

14       A.   Yes, it is different, I suppose, but I would like to clarify

15    that --

16       Q.   That's why I'm giving you an opportunity to do exactly that.

17    Please clarify it.

18       A.   That I hadn't seen any written evidence relating to that time for

19    the last 12 years, so ...

20       Q.   What about the packet that you received the day before?

21       A.   Well, obviously until that time, as I've explained already today,

22    I received the packet of documents that was provided to me the day before

23    I met with Mr. Thayer and his colleague in London.

24       Q.   Let there be no doubt about it.  You received this packet before

25    you wrote this witness statement, before you said the days were difficult

Page 21125

 1    to distinguish.  What changed subsequently for you to say that the days

 2    are no longer difficult to distinguish?

 3       A.   My memory has not been exposed to any questioning since these

 4    things happened, and I have not thought, you know, in any great way about

 5    the events, so in my opinion there is a level of clarity that comes with

 6    giving a level of thought and examination to the memories in one's mind.

 7       Q.   Is your evidence at this moment in time that the days are

 8    difficult to distinguish?

 9       A.   As I -- as I said earlier, I'm quite clear in my mind now that

10    there were three visits to Zepa on the days that we have discussed.

11       Q.   Now, you didn't ever go into Zepa town; is that correct?

12       A.   That is correct.

13       Q.   Where did you remain?

14       A.   At the check-point at the top.

15       Q.   Why?

16       A.   Because my role was to stay with General Smith and be of use when

17    I was needed.

18       Q.   He went into the town on occasions?

19       A.   I did not accompany him in the town.

20       Q.   Next question with the map:  Are you able to indicate

21    approximately, looking at the map, where the enclave boundary is?  Would

22    you be able to draw an approximate line 'round Zepa as to where the safe

23    area was?

24       A.   I should clarify, I've never seen an unmarked map before, so I'm

25    not sure I would get it in the right place.

Page 21126

 1            Not with any confidence, sir.

 2       Q.   All right.  I'll come back to that in a moment.  Can you mark

 3    where you say the check-point was, OP-2; in other words, where you

 4    remained whilst Smith did his business in Zepa?

 5            JUDGE AGIUS:  Mr. Josse, sorry to interrupt you, but where does it

 6    get you?

 7            MR. JOSSE:  I'm going to --

 8            JUDGE AGIUS:  Is it going to change anything?  The check-point has

 9    always been where it has been, and --

10            MR. JOSSE:  I'm anxious to test --

11            JUDGE AGIUS:  Is it important to know whether the witness knows

12    the exact location of the check-point and pinpoint it with precision on

13    the map or without precision on the map?  What is it going to change if

14    she doesn't know the boundaries or if she doesn't know the exact location?

15            MR. JOSSE:  I'm certainly not going to persist, Your Honour, and

16    if the witness doesn't know, I'm quite content to accept that answer. But

17    as is apparent, I'm testing her recollection of all these events as best I

18    can.

19            JUDGE AGIUS:  I understood that.

20            MR. JOSSE:  It's the only armoury I have in my possession.

21            JUDGE AGIUS:  Yes, I understood that, but again these are petty

22    issues which have very little bearing at all as to recollection, because

23    they are topographical things and she's already made that clear.  She was

24    driven there, she's never seen an unmarked map, so it's all complicated to

25    her.

Page 21127

 1            MR. JOSSE:  I'll move on.

 2       Q.   Just before I move to the 27th of July, one other thing I'd like

 3    to ask you about --

 4            JUDGE AGIUS:  You have an assistant here, you've got help.

 5            Yes, General Gvero.

 6            MR. JOSSE:  I need a leader.

 7            THE INTERPRETER:  Microphone, please.

 8            THE ACCUSED GVERO: [Interpretation] With all due respect for the

 9    Court, I wanted to say, and with the full respect for the witness, that

10    the witness has been repeating for the umpteenth time that she was in Zepa

11    for three days.  Since the control or check-point was not in Zepa and it

12    was not in the protected area of Zepa, I believe it is important to note

13    that fact.

14            Thank you.

15            JUDGE AGIUS:  I'm sure Mr. Josse is thankful for that observation

16    and that he will take it into consideration in his next questions.

17            Mr. Josse.

18            MR. JOSSE:  Yes, thank you, Your Honour.

19       Q.   Just before we turn to the check-point situation within the

20    enclave itself, I just want to go back to the part of your witness

21    statement that I read to you about the 25th of July.  The relevant bit is

22    as follows:

23             "I saw General Gvero at the Jela Restaurant on 25 July and think

24    I may have seen him again that day, passing him on the road, but I'm not

25    sure because these days are difficult to distinguish."

Page 21128

 1            What did you mean when you say that you may have passed him again

 2    on the road?  What's your recollection about that, please?

 3       A.   My recollection is that on driving to the check-point and coming

 4    out to the check-point, there was quite a lot of traffic.  There were

 5    numerous vehicles that we passed.  And the point I was making is that I

 6    may have seen him in one of these vehicles, but I could not be sure.

 7       Q.   Which check-point are you referring to?

 8       A.   I was referring to our journey from the Jela Restaurant to Zepa,

 9    to the place that I have described as the check-point OP-2.

10       Q.   So you're referring again to OP-2, are you?

11       A.   Yes.

12       Q.   So you are saying that in your estimation, there's a chance that

13    you saw Gvero again in the Zepa area after the Jela Restaurant meeting?

14       A.   That's -- that's my belief, yes.

15       Q.   How high would you place that possibility?

16       A.   In comparison to my certainty of seeing him on the 27th, it is not

17    as strong.

18       Q.   And there was no conversation on the 25th of July, if you saw him

19    at all; is that what you're saying?

20       A.   There wasn't -- that's correct.

21       Q.   And I think I've already asked you this, but you do not recall how

22    he left the meeting at the Jela Restaurant, what mode of transport he

23    took?

24       A.   I believe you have asked that before, and I don't -- I don't

25    recall.

Page 21129

 1       Q.   Because I want to suggest he didn't get into the helicopter with

 2    Mladic, he eventually got into a car.  It may have been you'd left by

 3    then, but he didn't get into the helicopter, did he?

 4       A.   As I have said twice now, I -- I don't recall seeing how General

 5    Gvero departed.

 6       Q.   When -- this encounter you're not sure about at OP-2 on the 25th

 7    of July, what car was Gvero in?

 8       A.   I didn't say it was at OP-2.

 9       Q.   I've misunderstood you, then.  Where was it?

10       A.   It may have -- my recollection is that it was en route, not

11    necessarily at the OP-2 check-point.

12       Q.   Are you able to help us at all as to whereabouts on the route it

13    was?

14       A.   I'm sorry, I -- I was just a passenger in those vehicles.  I -- I

15    couldn't give any certainty as to where it may be.

16       Q.   You don't know how near or far from the boundary of the enclave

17    this encounter on the 25th of July was; is that what --

18       A.   No, sir.

19            MR. JOSSE:  If I could just have a moment.

20            I think it would be easier if you had a look at your witness

21    statement for the next set of questions.

22            Your Honour, it's not been put into e-court, but we've got a copy

23    for the ELMO and indeed one for the witness as well so she's got a hard

24    copy.

25            JUDGE AGIUS:  Thank you, Mr. Josse.

Page 21130

 1            MR. JOSSE:  We've also got a few B/C/S copies which have been

 2    provided by the Prosecution, which we thought could be shared amongst the

 3    accused in the dock.

 4            JUDGE AGIUS:  Certainly.  Thank you.

 5            MR. JOSSE:  I wasn't -- they weren't intended for the Bench.  They

 6    were intended for the accused, because it's not in e-court and therefore

 7    they won't be able to follow it in their own language.  So --

 8            JUDGE AGIUS:  Had they been in e-court, we would have been able to

 9    see them.

10            MR. JOSSE:  So I provided you with your own copy there,

11    Ms. Sayers.

12            THE WITNESS:  Thank you.

13            MR. JOSSE:  There we are.  It's paragraph 12 that I want to

14    concentrate on.

15       Q.   And we can see that it begins:

16            "You asked me if I recall stopping at a check-point in the Zepa

17    area on my last day there and seeing a nice car."

18            What happened during your meeting, so far as this was concerned?

19    Why have you used the words "you asked me if I recall"?

20       A.   Because I was responding to a question.

21       Q.   In other words, you didn't volunteer the information; correct?

22       A.   I was -- I believe I was responding to a question about, "Describe

23    what happened on your final day in Zepa."

24       Q.   This, in terms of the chronology of the witness statement, goes

25    after the bit that I have read relating to the 25th of July; in other

Page 21131

 1    words, you had volunteered that encounter?

 2       A.   I responded to questions.

 3       Q.   Is there any reason why it says:  "You asked me if I recall ..."?

 4       A.   No.

 5       Q.   What about the use of the words "check-point in the Zepa area on

 6    my last day there and seeing a nice car"; in other words, that idea had to

 7    be put into your head, you didn't volunteer that information?  Is that

 8    correct?

 9       A.   I recall the term "a nice car" being used.

10       Q.   Did you volunteer the information prior to being asked this

11    leading question?  That's really what I'm asking you.

12       A.   My recollection is that we had had quite a long conversation or

13    interview about this period, and I'd been asked to -- some specific

14    questions on the different reports that are identified, and then a number

15    of questions testing -- testing my recollection of the period were asked

16    to me.

17       Q.   Because of course the reports don't help at all on the encounter

18    with Gvero, do they?

19       A.   No, they're not minuted in the reports.

20       Q.   And in fact the reports don't really take the main reason you're

21    here, which is to describe this encounter, one jot further, do they?

22    Would you agree with that?

23       A.   The reports are what they are.  They're a record of -- of events

24    as they were recorded at that time.

25       Q.   And the check-point you're referring to is which one?

Page 21132

 1       A.   As we were leaving Zepa, there are a number of times where we

 2    would stop or be waved through as we're coming on the very long journey

 3    back to Sarajevo.  My recollection is that it took a good time.  You know,

 4    hours were spent travelling on those days, and indeed on the first day, it

 5    was a very late evening because of the amount of time it had taken us to

 6    travel back before we then met with people at the Presidency.

 7       Q.   Which check-point are you referring to in the first sentence of

 8    paragraph 12, if you know?

 9       A.   I don't know the name of the check-point.  In fact, I don't --

10    other than "OP-2," I don't know the names of any of the check-points on

11    what was then BSA territory.

12       Q.   It was not OP-2; correct?

13       A.   No, that's correct.

14       Q.   Do you know whether this check-point was in fact within the Zepa

15    enclave?

16       A.   I can't say that with any certainty.

17       Q.   It may not have been?

18       A.   It was on the road from Zepa back to Sarajevo.

19       Q.   By all means, have a look at the map behind you.  It may help.

20    It's extremely detailed.  And see if that helps your recollection as to

21    where this check-point was.

22       A.   I'm sorry, I couldn't be certain where the check-point is.  I

23    recall the route back being through an area with lots of trees, and one of

24    the -- at this check-point is where I remember it being.

25       Q.   I just want to see if I understand what you're saying, Ms. Sayer,

Page 21133

 1    in the answer you gave at the beginning of page 62 of our transcript of

 2    today.

 3            You described travelling for a long period.  Of course, this was a

 4    day trip from Sarajevo to Zepa and then back again.  Are you saying that

 5    it was a long time after leaving Zepa that you had this encounter with

 6    Gvero on the 27th?

 7       A.   No, that's not what I'm saying.

 8       Q.   How long had you been travelling after you had the encounter with

 9    Gvero?

10       A.   It would be hard for me to be specific, but I would say, you know,

11    20, 30 minutes, maybe.  It was relatively -- relatively soon after we left

12    check-point 2.

13       Q.   Where -- I think you've said your recollection is that General

14    Smith didn't come out of the vehicle.

15       A.   I have no clear recollection of him actually leaving the vehicle,

16    because it -- because of a security situation.  The bodyguards didn't --

17    weren't very comfortable with -- with the principal getting out of the

18    vehicle when we were between places.  It was not the common practice at

19    all.

20       Q.   Your witness statement, which you've got in front of you,

21    paragraph 12 still, about five lines up, says:

22             "I believe that General Smith was a party to the conversation,

23    possibly speaking through an open door at his vehicle."

24            Why did you use the word "believe" and "possibly"?

25       A.   Because of the stature of General Gvero, it wouldn't have been

Page 21134

 1    very -- it wouldn't have accorded with our protocol for me to be having a

 2    direct conversation with him.  I would be, you know, the conduit for the

 3    conversation between the generals.

 4       Q.   Now, it's common ground that you, in common with all other

 5    UNPROFOR personnel, made no record whatsoever of this encounter.  That's

 6    right, isn't it?

 7       A.   Yes, that's right.

 8       Q.   Again, in the witness statement, you say that had you heard Gvero

 9    say that he was taking command or charge, you would have put it in the

10    report.  And then you go on to explain that because they were the three

11    busiest days of your deployment, not everything made it into an official

12    record.  What was it that would have been significant about him saying

13    that he was in charge to merit that going in a report, rather than the

14    encounter itself?

15       A.   The reports that we wrote, the meeting notes, they were solely

16    designed as a summary, and you will, I hope, appreciate that over the

17    course of these days, there were many interactions between a variety of

18    different people, and the primary ones were summarised, what we thought to

19    be salient facts at the time, so that they could then be recorded and sent

20    up to Zagreb.

21       Q.   And so a salient fact would have been a senior officer saying he

22    was taking charge, but the actual encounter wouldn't have been

23    sufficiently salient; is that right?

24       A.   Yes, that's -- that would be a fair statement.

25       Q.   And you base that on the instructions that you had received over

Page 21135

 1    the time you had been working with General Smith as to what should and

 2    shouldn't go in the report?

 3       A.   Yeah, there was an aspiration that we would be as accurate as

 4    possible in all of our note-taking, but there was an acceptance that when

 5    things were moving at a very fast pace, that we would have to make choices

 6    about what was recorded and what wasn't.  Otherwise, the meeting note

 7    summaries would be 15 pages' long.  So ...

 8       Q.   And I don't want to belabour this point, but you are saying that

 9    you have no real idea where, in relation to Zepa, this encounter took

10    place; is that fair?

11       A.   My -- I'm not sure it's totally fair, no, because my recollection

12    is that we were on the road from check-point 2 back to Sarajevo, and it

13    happened in a fairly short period in comparison to the length of the

14    journey back to Sarajevo, after our departure from check-point 2.

15       Q.   Let me try it one other way.  Had you passed Rogatica?

16       A.   No, I don't believe we had passed Rogatica.

17       Q.   Definitely not?

18       A.   I don't believe so.

19       Q.   Okay.  The 31st of July, you have told the Chamber that you again

20    saw my client, and you have described him talking about scything?

21       A.   Yes, that's correct.

22       Q.   Did he mention anything else to you that sticks in your memory?

23    Again, Mladic -- let me start again.  Mladic was late, wasn't he, yet

24    again?

25       A.   Yes.

Page 21136

 1       Q.   Yes.  General Smith was preoccupied, wasn't he?

 2       A.   I would have said General Smith was angry rather than preoccupied.

 3       Q.   Yes, he was angry.  He was angry because someone had taken a shot

 4    at the helicopter that you were in?

 5       A.   Actually, several shots, but yes.

 6       Q.   Right.  And he made that plain to Gvero, did he?

 7       A.   Yes.  The interaction was fairly heated.

 8       Q.   And at some point, General Gvero mentioned the scything.  Did he

 9    also mention that in fact he was a local of Mrkonjic Grad and had

10    particular local knowledge; do you remember that?

11       A.   I believe that's how we got on to the subject of scything.

12       Q.   I'm curious.  Tell me if this is a false or bad point, but when

13    you were asked about this by Mr. Thayer a little time ago, at page 19,

14    line 14 of the transcript, you were asked by Mr. Thayer:

15            "And do you recall General Gvero being present for this meeting?"

16            And you said:

17            "Yes, I -- I clearly recall General Gvero being present."

18            Why did you use the word "clearly" there?

19       A.   Because there's no -- there's no doubt in my mind that General

20    Gvero was there, and because this was one of the very few occasions where

21    I was called upon to act as the primary interpreter for this meeting, and

22    hence my -- my issue with the word for size.  You know, it was not

23    something that I had come across before.

24       Q.   Have any awareness as to what Gvero's case is in relation to these

25    various meetings; in other words, has anyone said to you Gvero accepts he

Page 21137

 1    was at this meeting but not at that meeting; do you have any idea?

 2       A.   There's been no conversation in that regard at all.

 3       Q.   So have you no idea?

 4       A.   No.

 5       Q.   Before I put General Gvero's case to you in a moments time, does

 6    the name Rajko Kusic mean anything to you?

 7       A.   No.

 8       Q.   Nothing at all.  So it clearly follows from that you wouldn't be

 9    able to describe Rajko Kusic and you wouldn't know whether you'd had an

10    encounter with him?

11       A.   As I explained, it wasn't common practice for me to have these

12    interactions with the BSA officers, so outside, you know, the very few

13    officers I was personally introduced to, I have very little knowledge of

14    who they were.

15       Q.   Let me be plain, Ms. Sayer.  General Gvero accepts that he was at

16    the meeting on the 25th of July in the Jela Restaurant and the 31st of

17    July in Mrkonjic Grad.  He does not accept that he had an encounter with

18    General Smith at the check-point on the 27th of July. That's the day --

19    that's the day you placed it.  Can I be clear about that?  You're saying

20    it was definitely the 27th of July; you're now sure about that?

21       A.   Yes, I am, sir.

22       Q.   And you're sure about that for what reason, the date?

23       A.   Because the final day that I was in -- at check-point -- at OP-2

24    was the final day we had the conversation with the War Presidency, and it

25    was on that occasion, on our route back into Sarajevo, which was the final

Page 21138

 1    time that I made that journey, that this interaction and meeting at this

 2    particular check-point with General Gvero occurred.

 3       Q.   And one or two questions about what General Smith did immediately

 4    prior to leaving Zepa.

 5            You wouldn't know, is that right, because you were not with him?

 6    You stayed at OP-2 and he went about doing whatever he did in Zepa; is

 7    that right?

 8       A.   My recollection is that because Tom Dibb was on the ground with

 9    Colonel Coiffet, there was a distinction between what we were asked to do

10    at check-point 2.

11       Q.   Did you leave check-point 2?

12       A.   To go into Zepa itself?

13       Q.   Yes.

14       A.   No.

15            MR. JOSSE:  Could I have a moment.

16       Q.   Yes, I'd like you to have a look, please, at 6D155.

17            MR. JOSSE:  Your Honour, could we pause for a moment?  We'll need

18    to go into private session for that.

19            JUDGE AGIUS:  Let's go into private session, please.

20            MR. JOSSE:  And before it's --

21                          [Private session]

22  (redacted)

23  (redacted)

24  (redacted)

25  (redacted)

Page 21139











11    Pages 21139-21141 redacted. Private session















Page 21142

 1  (redacted)

 2  (redacted)

 3  (redacted)

 4  (redacted)

 5  (redacted)

 6  (redacted)

 7  (redacted)

 8  (redacted)

 9  (redacted)

10  (redacted)

11  (redacted)

12                          [Open session]

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

14            JUDGE AGIUS:  I thank you, sir.  We are back in open session.

15    Mr. Josse has just finished his cross-examination.

16            Mr. Thayer, I understand you have a few questions on

17    re-examination.

18            MR. THAYER:  Briefly, Mr. President.

19            JUDGE AGIUS:  Go ahead.

20            MR. THAYER:  Thank you.

21                          Re-examination by Mr. Thayer:

22       Q.   Good afternoon again, ma'am.

23            Do you recall the names of any female interpreters who were on

24    staff at UNPROFOR BiH headquarters in Sarajevo or at Sector Sarajevo; do

25    you recall the names of any female interpreters, if any, that were

Page 21143

 1    employed during your period of service there?

 2       A.   I can't recall names, but there was an interpreter pool, and there

 3    were British military interpreters as well as locally-employed civilians

 4    who were within the interpreter pool.  So there was certainly

 5    education-core related, U.K. military personnel, who acted as interpreters

 6    for a range of staff within the headquarters.

 7       Q.   There were some questions about the documents that you received

 8    from the Office of the Prosecutor, and received the day before our

 9    meeting.  Do you have that packet with you, by any chance, here at the

10    witness box or not?

11       A.   It's not with me here, but it is in the support room.

12            MR. THAYER:  Okay.  Well, with the assistance of Madam Usher, I

13    just want to show you a packet of materials.  Thank you.

14            JUDGE AGIUS:  Is the intention to prove that these are the same

15    documents that she received from MOD?

16            MR. THAYER:  If we do have a couple more minutes --

17            JUDGE AGIUS:  Because I think the safer way of going about it is

18    to give her an opportunity to go to the room, fetch them, and we can have

19    a look at them.

20            MR. THAYER:  If we have the time, Mr. President, that would be my

21    preference as well.

22            JUDGE AGIUS:  Yes, Mr. Josse.

23            MR. JOSSE:  We would appreciate that.

24            JUDGE AGIUS:  Yes, exactly.  I think that's the way we should go

25    about it.

Page 21144

 1            Don't you agree?  All right.

 2            So, madam, we are giving you sufficient time -- the usher knows

 3    where they are.

 4            THE WITNESS:  Yeah, she does.  Thank you.

 5            These are the documents, sir.

 6            JUDGE AGIUS:  Who wishes to have a look at them?  I suppose there

 7    is nothing about aerial imagery and weapons of mass destruction, so

 8    Mr. Ostojic probably won't show an interest, but Mr. Josse probably will.

 9            MR. JOSSE:  Yes, Your Honour, but I'm more than happy for the

10    re-examination to proceed, particularly if Mr. Thayer is going to deal

11    with it.

12            JUDGE AGIUS:  Yes, exactly.  Okay.  In the meantime, could you

13    hand them over to Mr. Josse, and you proceed with your re-examination.

14            MR. THAYER:

15       Q.   Ma'am, do you remember the approximate time frame that the reports

16    contained in that packet covered?

17       A.   Yes.  They cover a time frame from sort of May through to the end

18    of -- end of July, that sort of time frame.

19       Q.   And do you remember the nature of the meetings that they

20    memorialised, in terms of who these meetings were with, for example?

21       A.   Yes.  There are a number of meetings that I was able to say

22    categorically that I didn't attend, and there are a number of meetings

23    that I was able to say categorically that I did attend, and I remember

24    drafting or authoring the minutes that were included in the packet.

25       Q.   And do you recall whether or not these reports included meetings

Page 21145

 1    with both Bosnian Muslim as well as Bosnian Serb officials and officers?

 2       A.   Yes.  There were a range of meetings, including meetings with

 3    Dr. Ganic and Prime Minister Silajdzic, and meetings with President

 4    Izetbegovic.

 5       Q.   And how many tabs are there?  In other words, how many reports

 6    were included in that -- in that packet?

 7       A.   Thirty-three.

 8       Q.   And how long would you say that you were able to spend reviewing

 9    those reports before we actually sat down and spoke on the 24th of

10    January?

11       A.   I received them on the Wednesday morning at our head office in

12    London on my way to a training session that lasted all day, so I first was

13    able to open the packet at 7.30 that evening, and I'm able to be quite

14    precise, because when I returned to my car at the railway station, the

15    battery was flat and I actually read the majority of these documents by

16    the light of a street lamp while I was sitting in the car, waiting for the

17    RAC to turn up.

18       Q.   You can submit that bill to the OTP and we'll try to take care of

19    it.

20            Now, the -- and forgive me, I think I failed to ask you:  How are

21    you employed now?  You mentioned your head office, and if you would, just

22    tell the Trial Chamber what you do for a living now.

23       A.   I work for the Heritage Lottery Fund, and I run their regional

24    office in the East Midlands.  We give out grants to heritage projects

25    across the U.K.

Page 21146

 1       Q.   And do you recall whether or not, in any of the communications

 2    that you had prior to our meeting, whether from General Smith, Mr. Captain

 3    Dibb, representatives from the U.K. Foreign Office or MOD, or in any of

 4    the conversation -- or in the conversation that you and I had before we

 5    met on the 24th of January, was there any mention of any specific person,

 6    individual, officer, mentioned to you at any time during any of those

 7    contacts?

 8       A.   No.

 9       Q.   How about in the questions that were given to you by the MOD?

10       A.   No, and I actually have the list of questions with me.

11       Q.   Okay.  That will be my last -- second-to-last question.  If you

12    could put those up on the ELMO, we'll just take a moment.

13            JUDGE AGIUS:  Yes, Mr. Josse.

14            MR. JOSSE:  Before they're put on the ELMO, might we have an

15    opportunity to look at these?  They've been -- they weren't disclosed. I

16    appreciate that my questions allow this line of re-examination, but there

17    again they weren't -- they weren't disclosed in any form prior to my

18    asking the questions.  My questions were speculative.  Perhaps I could

19    have a look at them and then decide --

20            JUDGE AGIUS:  I see no reason for any objection.

21            MR. THAYER:  I have a couple of extra copies.

22            JUDGE AGIUS:  Yes.  And my understanding is, Mr. Thayer, that

23    these were provided by you to MOD -- MOD or MOD's counsel, upon their

24    request, I imagine.

25            MR. THAYER:  That's correct, upon their demand, Mr. President.

Page 21147

 1            JUDGE AGIUS:  I would have understood it that way.

 2            THE WITNESS:  I actually only received the questions half an hour

 3    before I met with Mr. Thayer and his colleague.  The MOD gave them to me

 4    when I arrived for the interview.

 5            JUDGE AGIUS:  Thank you.

 6            MR. JOSSE:  No objection.

 7            JUDGE AGIUS:  Thank you, Mr. Josse.

 8            Yes.  Can we have them on the ELMO, please, Madam Usher.

 9            Yes, we have them on the ELMO.

10            THE WITNESS:  Perhaps it might be helpful, sir, if I explain that

11    the MOD's printer doesn't allow for any Serbo-Croatian marks, so that's

12    why there's -- "Zepa" is actually rather bizarrely spelled.

13            JUDGE AGIUS:  Yes.  Your question?

14            MR. THAYER:  And I think -- well, I'll just put it to you.

15       Q.   Do you see any reference in this document to any particular

16    individuals, by name, and --

17            JUDGE AGIUS:  Do you need to ask the question, because the

18    document speaks for itself.

19            MR. THAYER:  Yeah, and I just --

20            MR. JOSSE:  We're happy for this to be admitted into evidence in

21    due course and be given a number.

22            JUDGE AGIUS:  Thank you.

23            MR. THAYER:  That suffices for my purposes, Mr. President.  I just

24    have one final question.

25            JUDGE AGIUS:  Yes, go ahead.

Page 21148

 1            MR. THAYER:

 2       Q.   Ma'am, you were asked some questions by my friend, challenging the

 3    clarity of certain of your recollections of these events.  How would you

 4    compare the clarity of your recollection of the discussion you had with

 5    General Gvero about scything to the clarity of your recollection of

 6    encountering General Gvero at this check-point some, you said, 20 minutes

 7    outside of check-point 2?

 8       A.   I would say they are at the same level.

 9            MR. THAYER:  Thank you, ma'am.  I have no further questions.

10            JUDGE AGIUS:  Thank you.

11            Do you have any questions, Judge Prost?  Judge Stole?

12            Madam, you'll be glad to hear that your ordeal is over.  On behalf

13    of the Trial Chamber, I wish to thank you for having come over at such a

14    short notice, and on behalf of everyone I wish you a safe journey back

15    home.

16            THE WITNESS:  Thank you, sir.

17            JUDGE AGIUS:  Thank you.

18                          [The witness withdrew]

19            JUDGE AGIUS:  Exhibits, Mr. Thayer.

20            MR. THAYER:  Mr. President, all the exhibits on our exhibit list

21    distributed are already in evidence, with the exception of this list of

22    proposed questions which just became an issue.  We have given that --

23            JUDGE AGIUS:  Well, I think it never became an issue.

24            MR. THAYER:  Yes.  We have given that the number 3247, and we can

25    have that uploaded into e-court.

Page 21149

 1            JUDGE AGIUS:  Thank you.

 2            Any objections?  No objections.  They are so admitted.

 3            Mr. Josse, would you like to tender any exhibits or documents.

 4            MR. JOSSE:  We didn't use any documents that hadn't hitherto

 5    been --

 6            JUDGE AGIUS:  Not even the markings on the map?

 7            MR. JOSSE:  Your Honour, I of course haven't -- thank you for

 8    reminding me, and indeed I got a helpful message from one of the Court

 9    staff about that a moment ago.  I don't mind having a look at it.  I

10    haven't really had a chance to examine the mark.

11            JUDGE AGIUS:  Neither have we.

12                          [Trial Chamber and registrar confer]

13            JUDGE AGIUS:  I'm told that apparently she didn't make any

14    markings at the end of the day, but please feel free to approach the map.

15            MR. JOSSE:  Now?

16            JUDGE AGIUS:  Yes, of course.

17                          [Trial Chamber confers]

18            MR. JOSSE:  That's right, she clearly didn't mark the map.  I'm

19    slightly astonished, because I rather thought she had, but she hadn't.

20    It's a map that therefore has no value at this juncture.

21            JUDGE AGIUS:  Thank you.  And there are no further documents that

22    you wish to tender?

23            MR. JOSSE:  No.

24            JUDGE AGIUS:  All right, thank you.

25            That concludes Emma Sayer's testimony.

Page 21150

 1            I propose we have the break now, and then could I invite you to

 2    make an effort -- there's a lot to discuss, but could I invite you to make

 3    an effort to try to finish today, rather than have to come again tomorrow.

 4            Twenty-five minutes.

 5                          --- Recess taken at 5.30 p.m.

 6                          --- On resuming at 5.58 p.m.

 7            JUDGE AGIUS:  Let's try to move.

 8            I propose to deal first with the exhibits relating to Witness

 9    Butler.  The understanding is the following:  That having gone through the

10    Defence motion, we will not be dealing today with 65 ter number 685 and

11    686, which are the subject of that motion.  We'll be dealing with the

12    rest.

13            There is a whole list of Prosecution documents proposed to be

14    tendered.  Are there any objections, or do you wish to make a review of

15    them or explain them, Mr. McCloskey?

16            MR. McCLOSKEY:  I don't think so, Mr. President.  I believe I went

17    over all of them or made reference to a big bunch that Ms. Fauveau has

18    agreed to come in, so I don't think there's any -- any particular issues

19    that I'm aware of.

20            JUDGE AGIUS:  Okay, all right, let's see if there are.

21            Any objections to the proposed list, with the exception barring

22    those two?

23            Yesterday, I got the impression that Mr. Bourgon mentioned three,

24    but going through the motion, I can only decipher two.  If I am wrong,

25    please correct me.

Page 21151

 1            Yes, Mr. Ostojic.

 2            MR. OSTOJIC:  Thank you, Mr. President.

 3            Mr. President, Your Honours, first I want to sincerely apologise

 4    if you felt that my questions with the last witness were inappropriate,

 5    but we'll address that at the proper time when we address that specific

 6    issue.  Thank you.

 7            With respect to, I think the third category of documents, it was

 8    very difficult to get a handle on it at such a late stage.  That would

 9    have been -- since we're only objecting to the two narratives, as set out

10    in our motion, we feel that the exhibits that are only included in the

11    brigade, corps, and Main Staff analysis that Mr. Butler did should be

12    acceptable.  The documents that are not in those three exhibits, but are

13    included in the narratives that we object to, should be excluded as

14    documents as well.

15            We tried, although we had our hands full on many other issues, as

16    the Court will hear, when we make another application, so that's our

17    general position on this third group of documents.

18            JUDGE AGIUS:  All right.

19            MR. OSTOJIC:  We're trying to work it out with the Prosecution to

20    see if some, like Ms. Fauveau, would like some of the documents in or has

21    no objection and will pass on those, but that's in essence what the third

22    grouping was.

23            JUDGE AGIUS:  Okay.  All right.  Thank you.

24            So I notice Mr. Lazarevic.  Yes, go ahead.

25            MR. LAZAREVIC:  Yes, Your Honour.

Page 21152

 1            Borovcanin Defence has an objection to the admission of Document

 2    Number 92, 65 ter number 92 from the Prosecution list, on the grounds of a

 3    lack of probative value.

 4            JUDGE AGIUS:  Where is it?  I have 91, but I have not seen 92.

 5    After 91, there is 109.

 6            MR. LAZAREVIC:  Yes, Your Honour.  It was used in re-examination.

 7            JUDGE AGIUS:  Yes, but it should be on --

 8            MR. LAZAREVIC:  It's on page 10 of the list.

 9            JUDGE AGIUS:  Oh, I see.  Yes, yes, okay, all right, I see it now.

10    Okay, yes.  You are objecting to it?

11            MR. LAZAREVIC:  Yes.  We object on the grounds of lack of

12    probative value of this document, and having in mind the provisions of

13    Rule 89(c).  It states that:

14             "The Chamber may admit any relevant evidence which it deems to

15    have probative value."

16            So it is actually also a question of admissibility, not just the

17    question of weight that the Trial Chamber should give to certain evidence.

18            And what we would like to say in our submission, that having in

19    mind that this document is not complete, which we established through

20    cross-examination of Mr. Butler, and had -- that the signature on the

21    document is not by Mr. Borovcanin, it does not have a sufficient probative

22    value to be admitted into evidence pursuant to Rule 98(c).

23            JUDGE AGIUS:  Okay.  Thank you, Mr. Lazarevic.

24            Do you wish to comment, Mr. McCloskey?

25            MR. McCLOSKEY:  I'm really shocked at that.  I thought we had a

Page 21153

 1    stipulation about that document.  That was one of the reasons why we did

 2    not call Mr. Vasic.  I made the stipulation on the record.

 3            However, given that they've withdrawn from that, the document

 4    should come in as -- anyway.  They opened the door by questioning

 5    Mr. Butler quite a bit about the various units and the various dates

 6    related to Mr. Borovcanin.  Mr. Butler talked about this document, had

 7    reviewed it.  It was received from Mr. Vasic as a document from

 8    Mr. Borovcanin.  The document explains the various dates, the various

 9    units, and the door was opened by them.  And even if they're going back on

10    what I believe was an agreement, the door is wide open, it should come in.

11            JUDGE AGIUS:  Yes, Mr. Lazarevic.

12            MR. LAZAREVIC:  Your Honours, I didn't say that Mr. McCloskey was

13    not entitled to use this document in re-examination of Mr. Butler.

14    However, what we agreed upon is that it was not signed by Mr. Borovcanin,

15    it was not dated, and everything -- all the questions that I posed to

16    Mr. Butler, that's what we agreed upon this document. So we don't believe

17    that this document, the way it is, is admissible under Rule 89(c).

18            JUDGE AGIUS:  But isn't that sufficient reason why it should

19    precisely be in the record?  I mean, we are definitely not on the same

20    wavelength on this.

21            MR. McCLOSKEY:  Yeah, exactly.  We talked about it, we agreed

22    about things about it so that you would be able to understand it and fully

23    gauge it, its problems, its pros, and that's what we had an agreement

24    about, so that now they don't want it in is a big shock to me.

25            JUDGE AGIUS:  Our position is as follows, Mr. Lazarevic and

Page 21154

 1    Mr. McCloskey:  We think that ultimately, since this document was used

 2    during the re-examination, and itself is relevant, we also believe that

 3    you cannot rule out probative value the way you have suggested,

 4    Mr. Lazarevic.  Basically, we look at your objection more in the context

 5    of weight that needs to be given to this document, if at all, and that

 6    will be a matter to be decided later on.  In the meantime, it will be

 7    admitted.

 8            Any further objections?  Mr. Josse.

 9            MR. JOSSE:  Well, the Trial Chamber, I suspect, is not going to

10    like, yet again, what I've got to say, because it fits in with the helpful

11    e-mail that we received from Your Honour's senior legal officer earlier

12    today, because 1059 on this list, at page 5, and 45, which is the first

13    document on Mr. Coven's list are of course one and the same.

14            Your Honour, the truth of the matter is the Gvero team have not

15    had time to decide on our submissions in relation to 45 and 1059.  45 was

16    marked for identification originally, I recall, and I suspect 1059 as

17    well, because we challenged the provenance.

18            So the first issue, of course, is the Prosecution need to answer

19    the provenance question.  But -- sorry, I haven't put this very clearly,

20    because in fact I have been able to address, in the last minute, 45 and

21    1059, which I repeat are identical.  Perhaps we can then turn to the

22    remaining documents on Mr. Coven's list at a moments time.  So the

23    questions is provenance in short so far as that's concerned.

24            There is one other document.  Should I deal with that while I'm on

25    my feet?

Page 21155

 1            JUDGE AGIUS:  Yes.  I suppose so.

 2            MR. JOSSE:  That is at page 12 on the list, and it's 3810, and

 3    it's the article allegedly authored by my client called "Silk Cord Alija"

 4    part of which Mr. McCloskey read out with such relish last Friday.

 5            We suggest that's been introduced for prejudice and prejudice

 6    only.  The date, being the 15th of July, 1993, is highly significant,

 7    highly significant, inasmuch as it goes to the prejudice.  It's way

 8    outside the indictment period.  The witness knew nothing about it, as

 9    such.  He was asked, in effect, if it was illustrative of my client's

10    role, views on morale, propaganda, so on and so forth, and that sort of

11    pejorative and unfair prosecuting should not be countenanced by this Trial

12    Chamber.  We do not object to the other documents used in the

13    re-examination that pertain to our client, but we do object to this

14    particular document, because Mr. McCloskey has put it there for one reason

15    only.

16            JUDGE AGIUS:  Yes.  Please refresh my memory.  Did you object at

17    the time this document was used, and was the objection decided?

18            MR. JOSSE:  Could I have a moment?

19            JUDGE AGIUS:  Yes.

20            MR. JOSSE:  I did object, on recollection, but I've got it right

21    here.

22            MR. McCLOSKEY:  I specifically recall the objection.

23            JUDGE AGIUS:  Yes, but if there was an objection, it was

24    definitely decided.

25            MR. McCLOSKEY:  It was.

Page 21156

 1            JUDGE AGIUS:  We don't leave them in the air, hanging in the air.

 2            MR. JOSSE:  Could I help with the page?  It's page 20976 of the

 3    transcript.  I objected, Mr. McCloskey responded, and the Trial Chamber,

 4    after conferring, said, Your Honour -- the learned Presiding Judge said:

 5            "Go ahead.  Have you finished your question?"

 6            So, in short --

 7            JUDGE AGIUS:  We had turned down the objection.

 8            MR. JOSSE:  You turned down the objection.  Of course, whilst that

 9    may lend some weight to the suggestion the document should be introduced

10    into evidence, it doesn't follow, bearing in mind the nature of the

11    objection.

12            JUDGE AGIUS:  All right.  Let me confer with my colleagues for a

13    short while.

14            MR. McCLOSKEY:  Mr. President, may I respond?

15            JUDGE AGIUS:  Yes, yes, of course.  My apologies to you,

16    Mr. McCloskey.

17            MR. McCLOSKEY:  Just to remind you of the situation, he objected

18    that it was beyond the scope --

19            JUDGE AGIUS:  Scope of the indictment, yeah.

20            MR. McCLOSKEY:  And I had to read back to you his questions, where

21    he was grilling Mr. Butler on the difference between morale and

22    propaganda, and hammering Mr. Butler that he paid way too much attention

23    to propaganda.  And --

24            JUDGE AGIUS:  I remember it, yes.

25            MR. McCLOSKEY:  And then we had a morale document drafted by him,

Page 21157

 1    and then we had what we believe was a propaganda document drafted by him,

 2    and this document is extremely important for this case.  This document

 3    would be admissible in this case against any accused in a joint criminal

 4    enterprise like this, because it shows what we believe is clear,

 5    unadulterated racism.

 6            And if they call that prejudice, it's not legal prejudice.  It

 7    certainly harms their case, but it's not legal prejudice.  It's our case

 8    that this shows the propaganda side of things directly in response to the

 9    cross-examination.  This document would be admissible under any -- against

10    any of these accused in this case, where we have genocide and we have

11    persecutions and we have racism as a key element in many of these charges.

12            JUDGE AGIUS:  Okay.  In relation to 1059, Mr. McCloskey, do you

13    wish to respond?  Basically, Mr. Josse has limited it to the question of

14    provenance.

15            MR. McCLOSKEY:  1059, are we talking, I believe, about the

16    somewhat famous 13 July order by General Gvero?

17            JUDGE AGIUS:  Yes.

18            MR. McCLOSKEY:  Okay.  I can tell you that we have received two

19    different versions of this document over the years.  I don't have, you

20    know, all the details, but I can tell you that this was -- this document

21    first came to light in the Krstic case and was provided to us by Nenad

22    Petrusic.  It's my understanding he got it through the RS government based

23    on a request.  He may be able to help me out on that. And we also received

24    it -- it was one of -- I believe one of the documents that Dragan

25    Obrenovic provided early on in the investigation, when he took those

Page 21158

 1    documents from the archive that was in Mali Zvornik.  And so it comes from

 2    two different places, and that's its origins.

 3            JUDGE AGIUS:  Is the other one already admitted, 49?

 4            MR. JOSSE:  45 is not admitted.  Exactly the same, marked for

 5    identification.

 6            Your Honour, could I respond to both of those?

 7            JUDGE AGIUS:  Yes, of course.

 8            THE INTERPRETER:  Kindly pause between questions and answers,

 9    please. Thank you.

10            MR. JOSSE:  I'm having a bad day.  I'm sorry.

11            JUDGE AGIUS:  We all are, Mr. Josse.

12            MR. JOSSE:  Dealing firstly with 3180, I didn't object, when one

13    looks at 2976, on the basis of the scope of the indictment.  I objected on

14    the basis that my cross-examination went to a different emphasis.

15            Your Honour, at no time did I cross-examine Mr. Butler on the

16    question of racism, or my client's intent, or anything of that sort.  If

17    this document is as important as my learned friend suggests, why wasn't it

18    introduced in his case in chief?  Why is it being used in this way at the

19    last moment?  That's the question the Court needs to ask itself.  Is it

20    admissible pursuant to the cross-examination?  Where does it take matters?

21            But, really, what he just said, in my submission, gives the game

22    away, because what he said would support the proposition it should be a

23    primary piece of evidence, not something used in re-examination in its

24    very limited way.  I mean, it's a fairly limited avenue of the case that

25    it was introduced in re-examination, and now Mr. McCloskey, and I'm sure

Page 21159

 1    all of us defending are going to be aware of this from now on, is trying

 2    to open the ambit enormously in relation to a document like that.

 3            So far as the other document is concerned, 1059, could we go into

 4    private session, please?

 5            JUDGE AGIUS:  Yes, let's go into private session, please.

 6                          [Private session]

 7  (redacted)

 8  (redacted)

 9  (redacted)

10  (redacted)

11  (redacted)

12  (redacted)

13  (redacted)

14  (redacted)

15  (redacted)

16  (redacted)

17  (redacted)

18  (redacted)

19  (redacted)

20  (redacted)

21  (redacted)

22  (redacted)

23  (redacted)

24  (redacted)

25  (redacted)

Page 21160











11    Page 21160 redacted. Private session















Page 21161

 1   (redacted)

 2   (redacted)

 3                          [Open session]

 4            MR. McCLOSKEY:  As you know, we've been here for a long time --

 5            THE REGISTRAR:  Your Honours, sorry for the interruption.  We're

 6    back in open session.

 7            MR. McCLOSKEY:  We've dealt with hundreds and hundreds of god

 8    knows how many documents, and every once in a while the Defence objects to

 9    one, and most of the time it finds a way of that objection being

10    withdrawn.  If we do have just a couple of documents that are really in

11    issue here that they want to hear from witnesses on, we're of course ready

12    to do that, but we're not in the Old Bailey.  I can provide the

13    Prosecution's authentication as well as anybody can, and I think we have a

14    document that identifies the source of all Mr. Butler's exhibits, whether

15    they be the Drina Corps collection, the Zvornik collection, or

16    Mr. Petrusic, or somewhere else, and that's just based on, you know,

17    administrative work, and I don't think that's anything that should be a

18    problem.

19            If there's a real issue about something, sure, we can litigate it,

20    and we'll try to avoid calling Mr. Petrusic.  I don't think we need to.  I

21    think we agree how that came in.

22                          [Trial Chamber confers]

23            JUDGE AGIUS:  Let's start with the last one, 3180.

24            Having heard both of you, we come to the conclusion that in light

25    of the circumstances during which this document was used, leaving apart

Page 21162

 1    the question of importance and weight which should or should not be

 2    attributed to it, it needs to be admitted.

 3            In relation to 1059 and, at the same time, 45, I don't see us

 4    finishing today everything that I have to deal with, so what I suggest is

 5    that you meet and come to a conclusion, and we'll reach a decision on that

 6    tomorrow, based on whether there is an agreement amongst you or whether

 7    there's nothing, but I would suggest that you have a look at the

 8    transcript which I have here in front of me of the sitting of the 1st of

 9    June, 2007, to which I refer you.  I think we are in a position to reach a

10    decision now, but we would prefer if you sit down around the table and

11    discuss first amongst yourselves.

12            MR. JOSSE:  Okay, and we are grateful for that.  That is really

13    what we are after.

14            JUDGE AGIUS:  Thank you.

15            Any further objections to -- have we decided yours, Mr. Lazarevic?

16      Yes, we have.

17            Any further objections?  None.

18            We come to the Miletic Defence list.  Are there any objections on

19    the part of the Prosecution?

20            MR. McCLOSKEY:  No, Mr. President.

21            JUDGE AGIUS:  Has number 18, that's P2891, been translated in the

22    same -- and 20, I don't -- and 20, have they been translated into English

23    or don't they need to be?

24            Yes, Madame Fauveau.

25            MS. FAUVEAU: [Interpretation] No, Mr. President, they are not

Page 21163

 1    translated.  Those are the documents of the Prosecution, so even if I have

 2    to translate them myself, I would need the assistance of the Prosecution

 3    to put them on e-court.

 4            JUDGE AGIUS:  And I notice that 8, 9, 10, 11, 12, are also not

 5    translated, so those will be MFI'd, pending translation thereof.

 6            Do you wish to comment on the translation issues in relation to 18

 7    and 20, Mr. McCloskey, or not?  Should we MFI those as well or --

 8            MR. McCLOSKEY:  Anything that's not translated will -- a joint

 9    request to CLSS to fix.

10            JUDGE AGIUS:  All right.  And I also notice that 5D659 doesn't

11    seem to have the corresponding translation in B/C/S, but I would imagine

12    that it exists in B/C/S.

13            Madame Fauveau.  We're talking of the law --

14            MS. FAUVEAU: [Interpretation] I also have a technical problem

15    which I have to see with the Prosecution.

16            JUDGE AGIUS:  And the same with 13, 14 and 15, according to the

17    list provided by you, there doesn't seem to be a corresponding B/C/S

18    translation thereof.

19            So the position, Registrar, is as follows:  Please check this list

20    with the parties, and wherever there is a translation pending, that

21    document or those documents will be marked for identification, pending

22    translation thereof.  All right.

23            Where there is agreement between the parties that there is no need

24    to wait for a translation, then they will be admitted.

25                          [Trial Chamber and registrar confer]

Page 21164

 1            JUDGE AGIUS:  Let's deal with the Gvero Defence team list.

 2            Mr. Krgovic or Mr. Josse, you have just got two documents, 6D223

 3    and 227?

 4            MR. JOSSE:  That's right.

 5            JUDGE AGIUS:  What about 227?  This is a list of selected terms

 6    from the military lexicon.  Does that need to be translated or not?

 7            MR. JOSSE:  No, Your Honour, it doesn't, because 223 translates

 8    it, so to speak, and 227 is not an original document, but it's required --

 9            JUDGE AGIUS:  It's a selection that you made, yourself.

10            MR. JOSSE:  It's required to make sense of the transcript, simple

11    as that.

12            JUDGE AGIUS:  Okay.  Any objections?

13            MR. McCLOSKEY:  No, Mr. President.

14            JUDGE AGIUS:  Okay.  These are admitted.

15            The Nikolic Defence team have got an updated list which has

16    arrived just now.  We're talking of six documents, 65 ter number of which

17    appears on the list itself.

18            Any objections?

19            MR. McCLOSKEY:  Mr. President, I note we've got an e-mail from me

20    to everyone regarding -- I think I was telling them the collections and

21    documents Mr. Butler had had a chance to review.  I -- it wasn't mentioned

22    in the cross or direct, and I don't see it's a real problem, but I just

23    don't understand what the relevance of it is.  These sorts of e-mails are

24    normally something that if I knew they were going to be in court, I would

25    have written it a little differently, but I don't -- I don't know, it may

Page 21165

 1    be a Mr. Bourgon issue.

 2            JUDGE AGIUS:  Do you insist on this document, Ms. Nikolic?

 3            MS. NIKOLIC: [Interpretation] Yes, Your Honour.  I believe that we

 4    have the total of eight documents on the list.  That's why I rose before

 5    Mr. McCloskey.  I believe that this list contains documents 333A and B or

 6    else the confirmation of the indictment from Bosnia-Herzegovina.  My

 7    colleagues tell me now that they haven't received it.

 8            This is an issue that I discussed over the break with Mr. Thayer.

 9            As far as 3D274 is concerned, that's a letter that Mr. McCloskey

10    sent in relation to Mr. Butler's contacts with some witnesses, and it

11    concerns certain documents.  That's 3D274 I'm talking about.

12            JUDGE AGIUS:  All right.  It's still -- okay.  So my suggestion

13    is, if you agree, that --

14                          [Trial Chamber confers]

15            JUDGE AGIUS:  Mr. McCloskey and Ms. Nikolic, I remember quite

16    vividly a reference to an e-mail allegedly sent by you to the parties, and

17    I think I can remember also Mr. Bourgon either mentioning it directly to

18    you or putting a question, in the sense that names were mentioned in this

19    e-mail that you had -- that they had received from you.  Can anyone

20    refresh our memory on this or refer us specifically?

21            JUDGE PROST:  What I'd particularly like to know is was it used

22    with the witness, not whether or not it was used in the course of some

23    arguments or presentations, but was it used with Mr. Butler?

24            MR. McCLOSKEY:  I don't remember it being used, but I would go to

25    your recollection on that, although you've got me a bit disoriented with

Page 21166

 1    the change of people.  I've been looking at the same group here for so

 2    many months that I -- it's done something to my memory.

 3            JUDGE AGIUS:  Yes, Ms. Nikolic.

 4            MS. NIKOLIC: [Interpretation] Your Honours, I will double-check

 5    this, but I do believe it was used with the witness.  I will go through

 6    the transcript once more just to double-check that.

 7            JUDGE AGIUS:  We leave this also for tomorrow.  All right.

 8            The rest of the documents, and the understanding is that there is

 9    also 3D133A and B in addition to 3D133.

10            Now, 3D133, I have an indication "MFI."  Has it been used before

11    and MFI'd?  What do you mean by that, Ms. Nikolic?  In the list that you

12    provided, in the column 65 ter number, under "3D133," you have "MFI" in

13    brackets.

14            MS. NIKOLIC: [Interpretation] Yes, Your Honour.  I was just in

15    touch with my team.  We modified the list because in the meantime we

16    received additional information concerning document 3D133.  The documents

17    which are supposed to confirm the authenticity of 3D133 are documents now

18    numbered 133A and B, and these are confirmations of the indictment from

19    the Court of BiH in the case Bozic et al.  I believe this was touched upon

20    on a number of occasions during cross-examination.  Mr. Thayer, I believe,

21    is aware of this.

22            In the meantime, we managed to obtain the document from the

23    authorities of Bosnia-Herzegovina.

24            JUDGE AGIUS:  Yes, Mr. McCloskey.

25            MR. McCLOSKEY:  I don't have a problem with the indictment. I

Page 21167

 1    think I remember that being used.  But I hear mention of confirmation

 2    materials, and that gets us into a whole another area that I'm not aware

 3    of, so I would be reluctant, unless we hear more information on what we're

 4    talking about.

 5            MS. NIKOLIC: [Interpretation] Apologies.  It may have been a

 6    misinterpretation.  It's not the supporting material with the indictment,

 7    confirming the indictment, it's a formal document whereby the Office of

 8    the Prosecutor of the BiH confirms that this indictment had been issued by

 9    their office.  So this is just a formal way of confirming the authenticity

10    of the document issued by the agency giving that confirmation.  So there's

11    nothing -- no -- we don't have any material that would go to modify the

12    essentials of the document.

13            JUDGE AGIUS:  Okay.

14            MR. McCLOSKEY:  Just an indictment, no problem.

15            MS. NIKOLIC: [Interpretation] Yes, it's just an indictment, Your

16    Honours.

17                          [Trial Chamber confers]

18            JUDGE AGIUS:  So the understanding is, as regards the e-mail

19    correspondence, you're going to -- we're going to postpone that until

20    tomorrow.  The other one goes in, is admitted.

21            I have the Borovcanin Defence team.  I have a list of five

22    documents.  Again, please, Mr. Registrar, check with the party, questions

23    of translation, because, for example, with number 4, the translation is

24    pending.

25            Any objection, Mr. McCloskey?

Page 21168

 1            MR. McCLOSKEY:  No, Mr. President.

 2            JUDGE AGIUS:  So these documents are admitted.

 3            We come to 7D, that's the Pandurevic Defence team.  I have a list

 4    of ten documents.  Correct me if I'm wrong, Mr. Haynes.

 5            MR. HAYNES:  I will not correct you, because you're not wrong. I

 6    simply want to speak to the document in two respects.

 7            The first named document, P181, has already been admitted as part

 8    of the Prosecution list, so can be deleted.

 9            7D480 is, for some reason in the comments margin, MFI'd.  There is

10    absolutely no reason for that at all.  It is translated, and Mr. Butler

11    was cross-examined on the English version of it.  So that's an error.  So

12    the other nine documents I would ask be admitted into evidence.

13            JUDGE AGIUS:  Thank you.

14            Your comments, Mr. McCloskey.  Any objections?

15            MR. McCLOSKEY:  I see the OTP interview of Milan Maric.  I believe

16    that's the subject of a 92 quater motion.  If that will simplify it, I'll

17    knock off one extra workload for everybody and not object to that.

18            And if I could just take a look at -- oh, I guess we went -- we

19    were asking for his interview with the OTP -- sorry, his testimony from

20    the Blagojevic trial.  So if I could take a look a little more closely at

21    the Milan Maric statement and the statement of Sabic, Vejiz, since we're

22    going to be here tomorrow, I would have a better answer for you.

23            JUDGE AGIUS:  So, Mr. Haynes --

24            MR. HAYNES:  We'll sort that out.

25            JUDGE AGIUS:  Yes.  Okay.  So we'll postpone these two until

Page 21169

 1    tomorrow or for tomorrow.  The rest is admitted.

 2            So now let's get to --

 3                          [Trial Chamber confers]

 4            JUDGE AGIUS:  -- the Popovic Defence list.

 5            MR. ZIVANOVIC:  This was first on 31st of January, and it was

 6    confirmed, but the title is wrong, because it is said this was the

 7    documents for potential use during cross-examination, and it is a mistake.

 8    It is -- these are the documents for tendering.

 9            JUDGE AGIUS:  I notice that several of them are not yet

10    translated.  But apart from that, do you have any objections,

11    Mr. McCloskey?

12            MR. McCLOSKEY:  No, Mr. President.

13            JUDGE AGIUS:  All right.  So these are all admitted.  However,

14    those which are still -- which still require translation will be MFI'd.

15            Now, let's start with several other pending matters.

16            We have, as you know, received the Defence motion relating to the

17    Butler narratives to which I referred earlier on.  We've discussed briefly

18    amongst ourselves and came to the conclusion that this definitely needs to

19    be decided before we embark on the Rule 98 bis submissions.  You need to

20    know where you stand.  So we are cutting down -- reducing the time limit

21    which will be available to you, Mr. McCloskey, to file your response, and

22    we will require that by not later than Monday noon.

23            MR. McCLOSKEY:  Yes, Mr. President.

24            JUDGE AGIUS:  Thank you.  So that's -- let me start cancelling,

25    myself, now.

Page 21170

 1            There is also pending a motion seeking certification from our

 2    decision to admit the 18 Prosecution witnesses under Rule 92 bis.  It's

 3    not our intention to decide it prior to the Rule 98 bis process.  It will

 4    be decided in due course whenever we are ready to decide it.  So for all

 5    intents and purposes, our decision stands.  That's also according to the

 6    Rules, even though there is a request for certification, and you need to

 7    keep these 18 witnesses in mind when you make your submissions, if they

 8    are relevant at all for the purpose of Rule 98 bis submissions.

 9            Now, earlier on today, I signed the decision on the Defence motion

10    requesting removal of Momir Nikolic's statement of fact and acceptance of

11    responsibility from the evidence filed on 30th November 2007.  I suppose

12    you are aware of this, so that disposes of the matter.

13            There is also another motion pending which seeks certification to

14    appeal the Trial Chamber's decision to strike the testimony of PW-168,

15    filed on January 2008.  We would like you, Mr. McCloskey, to file your

16    response to this motion as early as possible, possibly by not later than

17    Monday.

18            MR. McCLOSKEY:  Yes, Mr. President.

19            JUDGE AGIUS:  Okay.  All right.

20            Aerial images.  We hinted at this topic yesterday.

21                          [Trial Chamber confers]

22            JUDGE AGIUS:  Can you update the Trial Chamber on any pending

23    issues that remain between you on this matter?

24            MR. McCLOSKEY:  The trickiest issue is about the United States and

25    what was needed.  All that was worked out a long time ago.  I believe

Page 21171

 1    Mr. Ostojic just wants to make his arguments about why they should not be

 2    admissible, and I think that's just where we are.

 3            JUDGE AGIUS:  Mr. Ostojic.

 4            MR. OSTOJIC:  Thank you, Mr. President, Your Honours.

 5            We've objected to the aerial images at the outset, and I think

 6    that if you examine Mr. Butler's testimony when questioning him about

 7    those aerial images, he concedes that no one was able to either change or

 8    alter, or whichever word we wish to use, manipulate those documents.

 9            We saw early on the case 18 months that Mr. Ruez acknowledged that

10    indeed they were inconsistent, some of the aerial images, and I know the

11    Court raised the issue that we should use the word "different" as opposed

12    to "inconsistent" during that testimony.

13            There are differences and then on its face and the Court can

14    observe, there are differences in the testimony from Mr. Butler who says

15    that they were unable to make any alterations, and compared to what

16    Mr. Ruez said that in fact he was able to remove certain dates and perhaps

17    even certain times from those aerial images.

18            We also have tried to show the Court, and I have to say this

19    although the Court restricted me today because it's an argument, that what

20    we and the Court can take at judicial notice is that aerial images were

21    used with the United Nations and the Security Council in 1998 to establish

22    that there were purportedly weapons of mass destruction, unrelated to this

23    case.

24            Ultimately, it has been found that those aerial images were either

25    misrepresented to the United Nations, the Security Council, and the

Page 21172

 1    public, that they did not find the weapons of mass destruction that were

 2    paraded around by the same United States that is telling us, supposedly,

 3    that what is depicted on those aerial images should be accepted as a fact.

 4            When you compare that and if you accept it as judicial notice that

 5    those aerial images can mean one thing to one party and do not necessarily

 6    mean that which a party submits that it shows, I think that they have not

 7    established the proper foundation or authenticity for the documents to be

 8    admitted into evidence.

 9            It's our submission that the documents should be rejected at

10    whole, given alone Mr. Butler's affirmation that no one was able to remove

11    or strike out any portions of those aerial images, which is in direct

12    contravention to what Mr. Ruez said when he acknowledged he removed the

13    date.  And if we remember, there was a specific box underneath the

14    verbiage on the top of the aerial image with just a blank box, and then if

15    we compare that with the specific emblem that's on one, I think, 236, of

16    one of the aerial images, which shows that they could have removed it from

17    time to time.  For those reasons we submit that the aerial images should

18    not be entered into evidence.

19            JUDGE AGIUS:  All right, but do you wish to comment on that,

20    Mr. McCloskey?

21            MR. McCLOSKEY:  Yes, Mr. President.

22            JUDGE AGIUS:  Go ahead.

23            MR. McCLOSKEY:  And could we go to --

24            JUDGE AGIUS:  And could I invite you to restrict yourself, and

25    that applies also to you, Mr. Ostojic, that the purpose of this exercise

Page 21173

 1    at this point in time is in relation to the Rule 98 bis process.

 2    Eventually -- they are MFI'd at the moment, and any document that is in

 3    the record which is MFI'd is still in the record, so eventually what you

 4    have stated may become an issue later, later on, but not necessarily for

 5    the purpose of Rule 98 bis.

 6            MR. McCLOSKEY:  Thank you.

 7            I could just clear up a couple of things that he's brought up.

 8            If we could have 65 ter 2103 brought up, page 218.  Or Janet can

 9    show it, but what that is, as it's coming up -- there it is.  It's 219.

10            As you recall the testimony of Mr. Butler, we were provided this

11    material in a format where we could put -- or he could put and OTP could

12    put markings over the top of it, and that's what he did on this particular

13    diagram.  And if you recall, he testified about this, saying he had looked

14    at the original US material that was provided to him, but he didn't have

15    it in electronic format, so he wrote in some of this material from the

16    original US.

17            I have the now original US, and based on this challenge, I would

18    like to offer it into evidence so that you can see the actual US markings,

19    which are the same as -- in many respects, the same as the witness.

20            And also on just the last point, could we go to the -- it's the

21    picture of the Pilica dom, page 236.

22            Now, I won't take much time on this, but this is just to

23    illustrate to you the difference between the evidence in this case and

24    what Mr. Ostojic has referred to.  Here we have a shot, an aerial image

25    looking down at the Pilica dom.  Now, as you know, the Trial Chamber has

Page 21174

 1    been there, and you may recollect the dom, and I'm sure you'll recollect

 2    the testimony of the witness that was here a day or two ago, Mr. Tomic,

 3    who testified that on the 17th of July, the date of this image, he parked

 4    his truck at an angle to the door that is on this image, and that his

 5    truck became full of bodies and he drove it away.  You may also remember

 6    the other side door that you saw when -- I believe you saw when we went to

 7    the area.  And take a look at those traces, as Mr. Ruez calls them, that

 8    goes around to the side door, traces or tracks from a truck.

 9            You will also remember the 17 July log or log record that shows

10    the -- Mr. Tomic's TAM 130 going and making several trips from, I think it

11    was -- to Pilica and other areas.  So you may also remember the old

12    fellows that I -- one of them, I believe he testified he went to the

13    Pilica dom and was partaking in the loading of bodies.  And that's just

14    what's off the top of my head tonight on one particular photograph.

15            So we can look at this photograph and we can look into this truck,

16    and we know precisely what was in that truck, what was going on, what

17    date.  We have documents, we have witnesses, we've got a plethora of

18    evidence, and I could bring up aerial image after aerial image after

19    aerial image and provide you similar kind of very reliable information.

20            And regarding the altering, Mr. Butler's testified that he -- he

21    blocked out one date on the Bratunac photo because he didn't want the date

22    to be why people looked at this.  He said he did that once and that one

23    time and he was cross-examined on it.  And that's the only part where he

24    used a white block-out to put over the top of a date, and the rest of it,

25    his additions are all done in a colour, usually yellow, and they're very

Page 21175

 1    clear.

 2            So that's what I have to say about aerial images.

 3            JUDGE AGIUS:  Thank you.

 4            Do you wish to respond, Mr. Ostojic?

 5            MR. OSTOJIC:  Yes, and I do take the Court's instruction to

 6    restrict myself, although --

 7            THE INTERPRETER:  Kindly slow down, Mr. Ostojic, please, for the

 8    sake of the interpreters.

 9            MR. OSTOJIC:  -- to restrict myself and speak slower, obviously.

10            I don't think he addressed the issue, Your Honour, when it comes

11    to the reliability or authenticity of the document.  He can wave to us

12    what he purports to be an original document.  I think if you look -- and

13    for us, based on your request, we're looking at the July 14th, 1995,

14    aerial image which purports to have an approximate time of 1400 hours.  I

15    suggest because my learned friend says he has an enormous amount of

16    documents on all these issues, that this would be simply additional

17    information that is unnecessary for the Court and doesn't assist the Court

18    at all, given what both Mr. Ruez and Mr. Butler have said.

19            If he indeed does have all that evidence, then this is certainly

20    surplus that is unnecessary and cumulative for this trial.  We do object

21    to all the aerial images on the same grounds, but particularly those that

22    involve the 14th of July, 1995, in answer to the Court's specific

23    question.  We don't believe it purports to indicate what they claim it

24    does.  They can argue that they have witnesses that should suffice for

25    their purposes.  We don't believe that that is one of the only aerial

Page 21176

 1    image that purports to have the time, whereas the other ones don't.

 2            With that in mind, I just want to remind the Court that they

 3    didn't address the objection as to whether it was authentic, or reliable,

 4    or the inconsistency between Mr. Butler's testimony and Mr. Ruez's

 5    testimony, so for those same reasons we would ask that the Court not

 6    accept this into evidence in regard to the 98 bis or at any time during

 7    this trial.

 8            Thank you.

 9            JUDGE AGIUS:  Yes.  Does anyone else from the Defence team object

10    to the aerial images or, for that matter, insist on their admission?  I'm

11    not trying to put one against the other, but since extensive use has been

12    made with various witnesses of these aerial images, or some of them, both

13    by the Prosecution and by various Defence teams, I think the question is

14    very pertinent.

15            Absolute silence.

16            Yes, Mr. McCloskey.

17            MR. McCLOSKEY:  Mr. President, I don't believe we have any aerial

18    images from the 14th of July, so there may be another date that he's

19    concerned about.  The 13th of July is when all those people are along the

20    road, if that's what he's concerned with.

21            JUDGE AGIUS:  All right.  I think we need to stop here today.

22    There are several other matters that we need to discuss tomorrow, but

23    tomorrow I suppose we'll be here for a limited time.

24            Yes, Ms. Nikolic and then Mr. Haynes, and very quickly, please,

25    very briefly.

Page 21177

 1            Yes, Ms. Nikolic.

 2            MS. NIKOLIC: [Interpretation] Briefly, Your Honour, there is one

 3    request pursuant to 92 quater that some of the other teams back as well.

 4            In view of the short time limits and the decision of the Trial

 5    Chamber with regard to the bearing of two 92 quater applications onto 98

 6    bis motions, we would like an extension by seven days to respond to 92

 7    quater.  We consulted with our learned friends from the OTP, and they do

 8    not oppose this, and can therefore our response to that filing be filed by

 9    the 20th of February, at the latest?

10            JUDGE AGIUS:  Is it just you or other Defence teams?

11            MR. JOSSE:  It's all of us, Your Honour, and indeed we are

12    endeavouring to do this as a combined effort.  So though we can't promise

13    this, the likelihood is there will only be one filing from all seven

14    accused.

15            JUDGE AGIUS:  Yes.

16            Mr. McCloskey.  Thank you, Mr. Josse.

17            MR. McCLOSKEY:  Yes, I think that's correct.  Given that you've

18    taken this group out of play, the time frame for us was not an issue.

19            JUDGE AGIUS:  Okay.  Permission granted.  Time extended to the

20    20th of February.

21            Mr. Haynes.

22            MR. HAYNES:  I was simply going to ask that before we arrive here

23    at 2.15 tomorrow, we've got some sort of agenda as to what we've got to

24    talk about.  There are a lot of issues floating out there.  It can be

25    circulated by e-mail, Your Honours, to save the trouble tonight.

Page 21178

 1            JUDGE AGIUS:  Yes.  We'll do that first thing tomorrow morning.

 2            MR. HAYNES:  Thank you very much.

 3            JUDGE AGIUS:  Part of it you already have.

 4            MR. HAYNES:  Yes, I understand that.  I've made some notes.

 5            JUDGE AGIUS:  Okay.  There isn't much more, but there's the Rupert

 6    Smith matter that needs to be decided and a few other things.

 7            So have a nice evening.  See you tomorrow afternoon at 2.15.

 8                          --- Whereupon the hearing adjourned at 7.00 p.m.,

 9                          to be reconvened on Thursday, the 7th day of

10                          February, 2008, at 2.15 p.m.