Tribunal Criminal Tribunal for the Former Yugoslavia

Page 4121

 1                           Thursday, 19 August 2010

 2                           [Open session]

 3                           [The accused entered court]

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

 5             JUDGE FLUEGGE:  Good morning again to everybody.  I can't count

 6     the days with this witness, but I think again we have witness Nicolai and

 7     he should be brought in.

 8             MR. THAYER:  And Mr. President, if I may.

 9             JUDGE FLUEGGE:  Mr. Thayer.

10             MR. THAYER:  Good morning to you and Your Honours.  Good morning,

11     General Tolimir, Mr. Gajic.  Good morning, everyone.  I just wanted to

12     let the Court know that the Prosecution is prepared to respond orally if

13     the Court wishes to devote a little time at the end of one of the

14     sessions to addressing both the issues of the intercept operator about

15     whom we spoke yesterday, with the Rule 70 issue, as well as the pending

16     motion to add or convert two other intercept operators who are currently

17     on the schedule.  We've received responses from the accused on both

18     counts.  I'm prepared to address both orally to save time and expedite

19     the proceedings if the Court so desires at any time.

20             JUDGE FLUEGGE:  Thank you very much.  The Chamber has not

21     received yet application by Mr. Tolimir about the witness concerned, the

22     intercept operator, but we are looking forward to your application.  I

23     haven't seen anything yet.  Have you sent something to the Chamber?

24     Okay.  Mr. Gajic.

25             MR. GAJIC:  [Interpretation] Your Honours, in the course of

Page 4122

 1     yesterday, we did send a copy of that request linked to protective

 2     measures.  We provided it to the Registrar, to Mr. Thayer, and the court

 3     assistants, and it was officially filed and registered today.  I think it

 4     will be registered in a couple of minutes time actually just now.  Thank

 5     you.

 6                           [The witness takes the stand]

 7                           [Trial Chamber and Registrar confer]

 8             JUDGE FLUEGGE:  Mr. Gajic, thank you very much.  I was informed

 9     that indeed we received, as agreed yesterday, an e-mail and we will deal

10     with this very fast and during today, I think.  But I'm not very

11     optimistic and it's not very likely that this witness we are talking

12     about will be in the position to testify this week.  We have some doubt

13     that this is possible.

14             Nevertheless, we should start with the current witness.

15             Good morning, sir.

16             THE WITNESS:  Good morning, sir.

17             JUDGE FLUEGGE:  Welcome again to the Tribunal, and again, let me

18     tell you the affirmation to tell the truth still applies.  And

19     Mr. Tolimir has some more questions for you.

20             Mr. Tolimir.

21             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I'd like

22     to greet all those present and may peace reign in this house.  And may

23     God's will be done and not necessarily my own will.  I'd like to say good

24     morning to General Nicolai and to welcome him amongst us once again.

25     Thank you.

Page 4123

 1                           WITNESS:  CORNELIS NICOLAI [Resumed]

 2                           [Witness answered through interpreter]

 3                           Cross-examination by Mr. Tolimir:  [Continued]

 4        Q.   [Interpretation] Now, General, we were discussing freedom of

 5     movements yesterday -- freedom of movement yesterday, and the

 6     Bandera Triangle and the Muslim forces did not allow your forces to move

 7     around.  Now, I'm going to show you a map so that you can see where the

 8     general area is.

 9             But first of all, I'm going to tell you what General Franken said

10     at this trial so you can bear that that mind and then we can hear your

11     opinion.  It's the transcript of the 30th of June, 2010, page 3383,

12     lines 21 to 24.  He was speaking about the so-called Bandera Triangle and

13     Mr. Franken said the following, and I quote:

14             "It was an area where we did not have freedom of movement.  We

15     attempted to establish a regime in the sector but when we tried to do

16     that, the United Nations withdrew their order and said all right, let

17     that go."

18             Now on the 1st of July transcript, 2010, on page 3410 and 3411,

19     we see mention of negotiations and Colonel Franken was not a participant

20     in the negotiations, but he said:

21             "During those negotiations, the UN withdrew the order for

22     establishing freedom of movement."

23             Now, in response to a question that he was asked, what he

24     understands by the United Nations --

25             THE INTERPRETER:  Could the speaker kindly slow down, thank you.

Page 4124

 1             MR. TOLIMIR: [Interpretation]

 2        Q.   -- he referred to the higher echelons.  And I'll try and explain

 3     that.  Sarajevo --

 4             JUDGE FLUEGGE:  Mr. Tolimir, you are too fast again.  The

 5     interpreters can't catch what you are saying.

 6             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I

 7     apologise to the interpreters.  I'll bear that in mind.  I'll try and

 8     slow down.

 9             MR. TOLIMIR: [Interpretation]

10        Q.   Now in response to the question of what he understood that the

11     United Nations meant, in 3411, Colonel Franken said:

12             "I would like to refer you to the higher echelons and I'll try to

13     explain this.  In that case, Sarajevo became involved directly and it is

14     customary that our superior echelons be the north-east sector, although

15     Sarajevo usually took on the role of making decisions."

16             I'll stop there because I see that Mr. Thayer is on his feet.

17             JUDGE FLUEGGE:  Indeed, and Mr. Tolimir, if you see the space on

18     the record, you see there's no question yet, it is a very long statement

19     and a report about another witness.

20             Mr. Thayer.

21             MR. THAYER:  Mr. President, it just might help the witness,

22     particularly the interpreters, and I think everybody if we just, like we

23     did yesterday, put the portion of the transcript on e-court so everybody

24     can follow along.  I think it will just help the proceedings if we could

25     do that again.

Page 4125

 1             JUDGE FLUEGGE:  Indeed, that would be very helpful.  I think,

 2     Mr. Tolimir, you are quoting from different parts of the transcript.  Can

 3     you call up, please, the relevant part so that the witness can see what

 4     the other witness, Colonel Franken, told the Court.

 5             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I've

 6     said what he stated but it is the 1st of July -- or rather, the

 7     30th of June transcript, 2010.  Page 3383, lines 21 to 24.  So may that

 8     be called up on e-court so that we can all take a look at it.

 9             MR. TOLIMIR: [Interpretation]

10        Q.   If you've had a chance to look at the transcript there, the next

11     transcript page on the 1st of July --

12             JUDGE FLUEGGE:  We've just received the transcript.  You can see

13     it as well.  Give the appropriate time for the witness and wait a moment.

14             THE ACCUSED: [Interpretation] Yes.  Thank you, Mr. President.

15             JUDGE FLUEGGE:  Mr. Thayer.

16             MR. THAYER:  I think the Defence will agree the relevant portion

17     begins a little further up on page 3382.  In fact, that may have been

18     where General Tolimir was quoting, but I think the relevant portion

19     starts a little bit up there.

20             JUDGE FLUEGGE:  Which line, if you know?

21             MR. THAYER:  Beginning about line 12 is where the

22     Bandera Triangle portion begins, Mr. President.

23             MR. TOLIMIR: [Interpretation]

24        Q.   Have you had a chance to read through that portion, General?

25     Yes?

Page 4126

 1        A.   Yes, I have.

 2        Q.   Take a look at the transcript of the 1st of July, 2010, and the

 3     page there is 3410 and 3411.  And reference is made to negotiations

 4     between the United Nations and the BH Army.  And I just quoted one

 5     sentence from that portion.  3411, lines 9 to 13.  That's where I was

 6     quoting from.  Please tell us when you finish looking through it.

 7        A.   I've read it.

 8        Q.   Thank you.

 9             THE ACCUSED: [Interpretation] Now, may we have on e-court D65,

10     which is a map, so that the General can see the area this refers to where

11     freedom of movement was banned.  D65, please.  Thank you.

12             MR. TOLIMIR: [Interpretation]

13        Q.   While we are waiting for that to come up, I'm going to ask the

14     General the following:  Did you receive the information, General, about

15     the enclave from two sources, directly from DutchBat and the sector whose

16     headquarters were in Tuzla?  Thank you.

17        A.   Yes, ordinarily we received all information regarding the sector

18     from the Tuzla headquarters, the north-east sector, but as I've said

19     previously, sometimes I was in direct contact with Colonel Karremans, but

20     not about this matter.  I'd like to make that clear from the outset.

21        Q.   Thank you, General.  You can see the map now and the triangle is

22     in blue with the numbers 1, 2, and 3, and the arrows that was drawn in by

23     Colonel Franken in his own hand.  So that's the zone while you were in

24     authority there, UNPROFOR forces were not allowed to move around.  Do you

25     see that?  Do we need to zoom in?

Page 4127

 1        A.   Yes, I can see that.

 2        Q.   My question is as follows:  Since the sector issued the order to

 3     establish a check-point here at number 1, as indicated by the Colonel,

 4     and when the Muslims forbid that, was it customary for your command,

 5     superior command, to have been informed about the activities of units in

 6     the area, in the sector?  Would you have had to have known about that and

 7     been informed about it?  The UNPROFOR command in Sarajevo, I mean.

 8        A.   Well, I think so.  If their operations were being impeded, they

 9     undoubtedly would have reported that, but I assume that this took place

10     before I arrived in Sarajevo.

11        Q.   Thank you, General.  It took place before you arrived, that's

12     true, but it went on while you were there, your forces were not allowed

13     to move around in that triangle.  And the order came, as Colonel Franken

14     said, from Sarajevo that UNPROFOR forces should not be given freedom of

15     movement in that area.

16             Now my question this:  If the UNPROFOR forces controlled the

17     demilitarised zone in Srebrenica, then the agreement we saw yesterday,

18     did it allow freedom of movement in the zone?  Thank you.  And we read

19     out the conditions in that agreement.

20        A.   Once again, I'm not aware of any restrictions on freedom of

21     movement, let alone that that order was issued from Sarajevo.  In any

22     case, that did not happen during my term as Chief of Staff.  Conceivably

23     that might have happened earlier, but then it's strange that my

24     predecessor didn't notify me about that.  If such a restriction on

25     freedom of movement did apply, then I would imagine that it wasn't

Page 4128

 1     reiterated when I was Chief of Staff and I assume that in practice during

 2     that period, it wasn't really such an issue because, as already

 3     mentioned, there was a serious fuel shortage and the only possible way of

 4     patrolling was on foot.  So in practice, that restriction on freedom of

 5     movement won't really have been such a problem in that period.

 6        Q.   Thank you, General.  I have understood you.  This was the

 7     activity that Colonel Franken testified about and he said that they

 8     didn't dare move around because that was the order issued by Sarajevo.

 9     So I put that to you now and I put to you the passage in the transcript

10     and his testimony, so what can you tell us about that?  Or rather, did

11     higher echelons have the right to restrict UNPROFOR, its movements,

12     following a request from the side that they are, in fact, controlling, in

13     this case, it was the Muslim side?  Thank you.

14        A.   Yes, of course, a higher echelon can impose restrictions, but the

15     question is whether it's wise to do so.  To me it's inconceivable.

16     Yesterday, I already said that freedom of movement is essential for a

17     peacekeeping mission to perform its duties.  I can hardly imagine them

18     issuing instructions to impose restrictions.  In any case, I was not

19     informed in any way at all about that and I can't say anything else about

20     that.

21        Q.   Thank you, General.  Now, Colonel Franken said here that there

22     was an order from the north-east sector on the restriction of movement in

23     this Bandera Triangle that we see on the map.  Now, can you explain to us

24     whether you as the command of the sector were duty-bound, or your

25     predecessors, to inform the command of Sector North-east that you went

Page 4129

 1     against their order to establish freedom of movement in the

 2     Bandera Triangle?  Thank you.

 3        A.   Well, if I had been aware of those restrictions on freedom of

 4     movement, then I certainly would have investigated the reason for them

 5     and would have discussed this with the north-east sector and have tried

 6     to reverse that.  But I repeat once again that I had no idea whatsoever

 7     about this and it still surprises me.

 8        Q.   Thank you, General, I understand.  But tell me this:  This

 9     situation, was that the situation when you were the chief as well?

10        A.   What do you mean by "this situation"?

11        Q.   Was it forbidden for UN soldiers to move around the triangle

12     marked 1, 2, and 3, throughout 1995 until the very end, until they stayed

13     in Srebrenica and while you were on duty there?  Thank you.

14             JUDGE FLUEGGE:  Mr. Tolimir, I think this question is a problem

15     because the witness said he doesn't know anything about these

16     restrictions in the Bandera Triangle.  How can he say something about the

17     existence of this triangle during his period of service?

18             THE ACCUSED: [Interpretation] Yes, thank you, Mr. President.  But

19     that's why I showed the General statements and documents where his

20     subordinates speak about this situation.  So if he didn't know about it

21     before, he knows about it now, so I'm asking him what he thinks about

22     this, whether it's customary, the usual thing, and whether it was still

23     on-going while he was on duty there.  Whether that was the situation

24     while he took up his post.

25             JUDGE FLUEGGE:  These are two different questions.  The first one

Page 4130

 1     is a new one and the second one is -- you asked him already but he can't

 2     answer this question.  You have got everything you can get from this

 3     witness about this point.  You should carry on but not insist on this

 4     point.  If the witness says, "I was not aware of the situation," how can

 5     he say anything about that further?  You should carry on.

 6             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I'm

 7     asking about this situation, the phenomenon.  And may we now have 1D240

 8     called up, please.  It's a report from the command of the 28th Division,

 9     dated the 29th of April, 1995, sent to the 2nd Corps command.  And this

10     was the period when the General was on duty there.  Thank you.

11             Since there's no English translation, I'm going to read it and

12     I'm going to read the second paragraph which starts with "1000 hours ..."

13     You can see the numbers, "At 1000 hours ..." And we are talking about the

14     24th of April.

15             MR. TOLIMIR: [Interpretation]

16        Q.   "At 1000 hours," it says, "on the same day," that is to say, the

17     29th of April, that's my comment, "a meeting was held of the

18     representatives of the command of the 28th Division and organs of the

19     civilian authorities with representatives of the United Nations liaison

20     officers and military observers.  At the meeting" --

21             JUDGE FLUEGGE:  Mr. Tolimir, please slow down again because

22     there's no English translation.  It's very difficult for the

23     interpreters.  Very slow, please.

24             THE ACCUSED: [Interpretation] Thank you, Mr. President.  Let me

25     repeat.

Page 4131

 1             MR. TOLIMIR: [Interpretation]

 2        Q.   This event took place and the 29th of April, and I'm reading from

 3     paragraph 2.  "At 1000 hours" --

 4             JUDGE FLUEGGE:  No, Mr. Tolimir, this is on the record already.

 5     Starts with the words:  "At the meeting ..."

 6             THE ACCUSED:  Okay.

 7             JUDGE FLUEGGE:  Everything is fine up to that point.

 8             THE ACCUSED: [Interpretation] Yes, Mr. President, thank you.

 9             MR. TOLIMIR: [Interpretation]

10        Q.   "At the meeting, the participants discussed problems linked to

11     the establishment of an observation post in the locality of Lozina and

12     our position was presented in conformity with your order.  The

13     United Nations representatives attending the meeting took the position

14     that as far as that observation post was concerned, they should install

15     it because they had an order to do that from their superior command.  And

16     they explained that it was been their mandate and it was used by both

17     sides and that it would serve the exclusive interests of the enclave."

18             Now I'd like to read paragraph 4 and it begins with the

19     following:

20             "Our side -- our side insisted that the UN representatives

21     unconditionally cease further engineering on construction work of this

22     observation post and that they should withdraw from that location,

23     withdraw all their men until a solution to the problem is found.  Our

24     proposal was fully supported by the head of the military observers,

25     Mr. Romilton from Brazil, while the UN liaison officer resolutely

Page 4132

 1     accepted the proposal, or rather, he agreed that he stop further

 2     construction of the observation post and to keep the people there using

 3     the location for observation until a suitable solution is found."

 4             So from what I've just read out from this document, we can see

 5     that the problem was an on-going one and it lasted, in fact, for four

 6     months and that construction work was under way during that time.  So

 7     resources had to be set aside for this, and funds, so there must have

 8     been an order about this.  So should the command in Sarajevo have known

 9     about it -- this and is it possible that it wasn't receiving information

10     from this sector for four months while you were on duty there as well?

11     Thank you.

12        A.   Yes, that should be clear from the fact that this is the first I

13     hear of it.  Undoubtedly, the north-east sector was involved, but in

14     Sarajevo I never heard anything about this issue.

15        Q.   Thank you.

16             THE ACCUSED: [Interpretation] Can we go back to the first

17     paragraph, I need it in order to be able to put another question to the

18     General.

19             MR. TOLIMIR: [Interpretation]

20        Q.   The first paragraph is here in front of you and I'm going to read

21     the first sentence.

22             "You sent us a document under the following number and date in

23     which you sent us an order to stop the construction works on the

24     observation post of the United Nations in the Lozina village sector."

25             And now could you please answer my question.  Do you know that

Page 4133

 1     there was a corridor between the demilitarised zone of Zepa and

 2     Srebrenica?  Thank you.

 3        A.   No, I'm not aware of the existence of such a corridor.

 4        Q.   Thank you, General.  Do you know that there was a meeting,

 5     referred to in this document, on the 29th of April, and were you informed

 6     about the discussions that took place during that meeting?

 7        A.   No, I was not aware of that, but please understand that there

 8     were dozens of battalions that all had their local discussions with the

 9     authorities, so it wasn't possible to notify the headquarters in Sarajevo

10     about all those meetings' discussions.

11        Q.   Thank you, General.  Could you kindly explain what you meant.  We

12     are talking about the restriction of movements through a zone that

13     UNPROFOR was supposed to supervise.

14        A.   Would you please be more specific in your question because at

15     this point it's so general that I can't respond.

16        Q.   Thank you, General.  I will rephrase my question.  The

17     Bandera area that we saw on the map is within the demilitarised zone of

18     Srebrenica.  According to the agreement on the demilitarisation, the

19     United Nations were duty-bound to control whether that agreement was

20     implemented and that's why they had to have freedom of movements across

21     the entire zone.  Was it customary for the command of UNPROFOR in

22     Sarajevo not to be informed that all of a sudden the movement of troops

23     was restricted in a certain part of the zone, in this case two villages,

24     one of them being the village of Lozina and the other the village of

25     Suceska?  Thank you.

Page 4134

 1             There are several villages, as a matter of fact.  You saw the map

 2     and you saw how many villages there were in that demilitarised zone.

 3        A.   With all due respect, General Tolimir, I am aware that I already

 4     answered this question.  I think it's highly unusual for an area that was

 5     under UNPROFOR control, there would have been restriction on freedom of

 6     movement for UNPROFOR, and if I had known about this, I certainly would

 7     have objected.  But I'm saying now for the last time, I was not aware of

 8     this so I cannot elaborate any further.

 9        Q.   Thank you, General.  And what about your previous answer, what

10     did you mean when you said that there were a lot of battalions there?

11     Did you mean the battalions within the Muslim armed formations or,

12     rather, battalions within the framework of UNPROFOR?

13        A.   No, of course, I was referring to the UNPROFOR structure.  We had

14     three sectors and there were several battalions that reported to each

15     sector, so obviously not all those battalions reported to Sarajevo

16     exactly what they discussed with the local authorities.  It was only if

17     there was a serious problem that could be resolved only at the highest

18     echelons that something like that would be reported, and otherwise, those

19     people solved their own problems.

20        Q.   Thank you, General.  Colonel Franken testified here and said that

21     the issue was referred to the superior command in Sarajevo, but let me

22     ask you this:  You saw that there was reference to Mr. Romilton who

23     accepted that there wouldn't be patrols in the area.

24             This person, Romilton, did he belong to a different structure?

25     Did he report to a different structure or was he duty-bound to abide by

Page 4135

 1     UNPROFOR's guide-lines and was he duty-bound to report to the UNPROFOR

 2     command?  We are talking about the head of military observers,

 3     Mr. Romilton from Brazil.  Thank you.

 4        A.   If Mr. Romilton was the head of the military observers in

 5     Srebrenica, then he had to report to the head of the UNMO sector of the

 6     north-east sector headquarters in Tuzla, which in turn reported to the

 7     head of the UNMO sector in Sarajevo.  Of course, intensive consultation

 8     took place between the UNMOs and the rest of UNPROFOR despite the absence

 9     of a direct command relationship, but I can't imagine that the UNMOs

10     would have gone against the UNPROFOR policy by accepting restrictions on

11     freedom of movement.  And had that been the case, then in any case, I am

12     particularly unhappy about that.

13        Q.   Thank you, General.  Was my quotation correct or are you saying

14     that this didn't happen at all, that Romilton didn't accept things as it

15     is stated herein?  Are you saying that what I read out does not reflect

16     the situation on the ground?

17        A.   I can't allege that because I have no knowledge of this matter,

18     so I can't allege that it didn't happen.  So I'm not questioning your

19     allegations, all I'm saying is that if it happened, then I deeply regret

20     that.

21        Q.   Thank you, General.

22             THE ACCUSED: [Interpretation] Could the document please be

23     admitted into evidence and the document is 1D246, the one that we quoted

24     from that was on the screen.  Could it please be admitted into evidence.

25             JUDGE FLUEGGE:  Is that really 1D246 or 1D40?

Page 4136

 1             MR. THAYER:  It's 1D240, Mr. President.  Sorry, I spoke before

 2     being recognised.

 3             JUDGE FLUEGGE:  Okay.

 4             MR. THAYER:  And just for the record, per our usual policy, we

 5     have no objection to the admission of the document, recognising, of

 6     course, that this witness repeatedly has stated that he has no

 7     familiarity with the underlying circumstances, much less the document

 8     itself.

 9                           [Trial Chamber confers]

10             JUDGE FLUEGGE:  This document will be marked for identification.

11     In this case, not pending translation, but because this witness was not

12     able to identify the authenticity of the content.

13             THE REGISTRAR:  65 ter 1D240 will be Exhibit D82, marked for

14     identification.

15             JUDGE FLUEGGE:  Thank you.  Mr. Tolimir, please carry on.

16             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I would

17     kindly ask you to allow me to say a sentence.  I want things to be

18     evidence of events and phenomena.  It doesn't really matter whether the

19     witness was an eye-witness to the events.  He was on duty, and the

20     previous evidence prove that there were violations in the demilitarised

21     zone and that UNPROFOR was prevented from performing their duty in a

22     corridor, in a zone.  And this is why I tendered the document into

23     evidence.  We had a witness who testified here who was a participant in

24     the events.  He told us what had happened and he told us that he had

25     delegated the matter to the command in Sarajevo, and that's why I asked

Page 4137

 1     this witness about the entire matter because the problem prevailed for

 2     almost a year.  Thank you.

 3             JUDGE FLUEGGE:  Mr. Tolimir, this was a very long sentence

 4     indeed, but I see your point.  There are different ways to tender

 5     documents.  One is through a witness, but this is the wrong witness.

 6     Perhaps there will be another witness, the Chamber doesn't know that, and

 7     there's a possibility to move for admission of documents from the bar

 8     table.  That could happen as well, but it's up to you which way you are

 9     choosing.  In this case today, it is not possible to admit this document

10     into evidence.

11             Please carry on.

12             THE ACCUSED: [Interpretation] Thank you, Mr. President.  Could

13     the court please produce 1D242.  Thank you.  We have it on the screen

14     now.  Again there's no English translation.  The order was issued on the

15     29th April 1995, which means that the witness was on duty at the time

16     when this order was issued.

17             MR. TOLIMIR: [Interpretation]

18        Q.   I will read from bullet point 2 since there's no translation.

19     And I quote:

20             "In our contacts with the representatives of the Dutch Battalion,

21     we should strictly adhere by the position that the distribution of

22     observation points has been agreed in the agreement on the

23     demilitarisation of Srebrenica and Zepa at the level of the Main Staff of

24     the Army of Bosnia-Herzegovina and the UNPROFOR command for

25     Bosnia-Herzegovina, and that any change has to be confirmed in the same

Page 4138

 1     way and at the same level.  Every change has to be confirmed by the same

 2     level."  I said "in the same way" and I misspoke.  I apologise.  End of

 3     quotation.

 4             My question to you, sir, is this:  Do you know anything about

 5     this event that happened in the month of April?  Do you know anything

 6     about the fact that the commands of the BiH Army and the command of the

 7     UNPROFOR in Bosnia-Herzegovina had agreed as to how the observation

 8     points would be distributed and how control would be implemented in the

 9     demilitarised zones?  Thank you.

10             JUDGE FLUEGGE:  Mr. Thayer.

11             MR. THAYER:  Mr. President, I don't have the English translation,

12     so I can't speak with any authority on this, but just from what I

13     understand from LiveNote, that's not what this document purports to

14     state, that there was any agreement between the General Staff of the army

15     and UNPROFOR.  In fact, I think it reflects the opposite, that the

16     General Staff of the ABiH was telling its subordinate command to adhere

17     to the prior demilitarisation agreement and that there was no agreement

18     about the new observation post that the UN was trying to impose in this

19     area.  Again, I don't have the English but that sounded to me like an

20     incorrect recitation of what General Tolimir himself quoted from the

21     document.

22             JUDGE FLUEGGE:  Mr. Thayer, the Chamber would prefer to hear this

23     answer from the witness himself.

24             Mr. Nicolai, could you comment on that?

25             THE WITNESS: [Interpretation] The locations of the observation

Page 4139

 1     posts as they were when I entered my position were the same as when the

 2     enclave was taken into use over one year earlier.  I'm not aware of which

 3     agreements were reached at that time, but one thing is beyond any doubt,

 4     during my term no proposals were made to set up new observation posts.

 5     So everything in this document is news to me.

 6             MR. TOLIMIR: [Interpretation]

 7        Q.   Thank you, General.  Do you know if ever at the level of UNPROFOR

 8     forces in Srebrenica and the command of the BiH Army there were

 9     agreements about the deployment of UNPROFOR forces and was their movement

10     restricted in any way by those agreements?

11        A.   In my previous answer I just stated that I'm not aware of

12     agreements made about this and that answer still applies.

13        Q.   Thank you, General.  And can you now answer the following

14     question:  Yesterday you saw an agreement, the agreement on the

15     demilitarisation of Zepa and Srebrenica.  According to that agreement,

16     were the BiH Army command forces those that determined the locations of

17     the UNPROFOR observation posts within the demilitarised zone?  Thank you.

18        A.   Well, that seems exceptionally unlikely to me, but I can't

19     remember reading that in any agreement yesterday.

20        Q.   Thank you.  That means that the BiH Army could not determine

21     those locations, yes or no?

22        A.   Well, as far as I know, the BiH certainly did not determine that.

23     It's possible that consultations took place about that, but I can't

24     imagine that they determined that.  That sounds particularly strange that

25     one of the parties concerned would have the final say in that.

Page 4140

 1        Q.   Thank you, General.  My next question is this:  Did you

 2     personally control the Sector North as a superior command and the

 3     communication with the Dutch Battalion, and did you inquire with

 4     Karremans about the presence of the BiH Army and its activities within

 5     the demilitarised zone?

 6             THE INTERPRETER:  Interpreter's correction:  Sector North-east.

 7             THE WITNESS: [Interpretation] Well, this question is so general

 8     that it's particularly difficult to answer.  If there was a report about

 9     activities of the BiH Army in the demilitarised zone, then I may very

10     well have asked a question about that at some point.  But if you can't be

11     more specific about what you mean, then there's little point to that

12     answer.

13        Q.   Thank you, General.  I'll try and be more specific in my

14     question.

15             When it comes to the Dutch Battalion, was it duty-bound to report

16     about the presence and activities of the BiH Army in the enclave to its

17     higher command, to its superior command?  Thank you.

18        A.   Yes, that seems obvious to me.  That's the main responsibility of

19     UNPROFOR in its area of responsibility.

20        Q.   Was it you who read their reports or was it another service

21     within your sector that did that?

22        A.   Well, as is customary in any army, reports are compiled within

23     the staff ultimately after approval by the Chief of Staff and the

24     commanders.  Such reports are submitted to the next level up which

25     summarises and in turn reports to its superior.  Such a report then

Page 4141

 1     arrives with the corresponding sector, usually G3, the operations sector

 2     of that headquarters.  And at the daily briefings the most important

 3     matters that have been brought to the attention are reported at the staff

 4     meeting, and if people are interested, they can read the reports.  I

 5     didn't read the reports from each individual battalion but I did read the

 6     daily reports by the three underlying sectors within UNPROFOR, and I

 7     believe that procedure must sound very familiar to you.

 8        Q.   Thank you, General.  In addition to regular reports by the

 9     military bodies, were there also reports by intelligence services?  To

10     add to that question, let me ask you if you know whether there were

11     intelligence services present in the demilitarised zone of Srebrenica?

12        A.   The UN did not have its own intelligence services.  Let me state

13     that from the outset.  That doesn't mean that no intelligence was

14     gathered.  I know, for example, that English Special Forces were active

15     in the area, that moreover did not report via UNPROFOR lines but via

16     national English lines, and information that was relevant to UNPROFOR's

17     actions arrived via our headquarters.  Exactly where these people were

18     positioned was not disclosed to me.

19        Q.   Thank you, General.  Did General Smith inform you about that?

20     Did General Smith send you information, and as the Chief of Staff, were

21     you informed in turn about these special services?  Thank you.

22        A.   If the services had information that was relevant to UNPROFOR's

23     actions, then I would have been informed of such.

24        Q.   Thank you, General.  Would you now look at transcript page 3384,

25     line 16 to 19, from the testimony given by Mr. Franken.

Page 4142

 1             THE ACCUSED: [Interpretation] Once we have the transcript on our

 2     screens, I'll read the excerpt I want us to focus on.

 3             JUDGE FLUEGGE:  Can you tell the date of the testimony of

 4     Mr. Franken?

 5             THE ACCUSED: [Interpretation] The 30th of June.  Thank you.

 6     Lines 16 to 19.

 7             MR. TOLIMIR: [Interpretation]

 8        Q.   Those are the lines that I'll read out.  It says:

 9             "... my superior command never asked me details about the

10     presence of the BH Army, which should have been logical, but awhile ago I

11     already told that you the whole intelligence cycles didn't work within

12     UNPROFOR."

13             Now, my question is this:  Did the command of the sector, or

14     rather, the UNPROFOR command, was it interested in knowing about the

15     situation in the demilitarised zone and what was going on there or not?

16     Because from what Mr. Franken says, it would appear that it was not

17     interested.  Thank you.

18        A.   Well, I don't know whether Mr. Franken understood the question

19     properly at the time, but obviously within their area of responsibility,

20     UNPROFOR troops report everything relevant about what the parties are

21     doing in that area.  And if there are incidents or if troops are found

22     that are armed or if there are restrictions on freedom of movement, then

23     those are all examples of things that should be reported.

24        Q.   Thank you, General.

25             THE ACCUSED: [Interpretation] May we now have document 1D241

Page 4143

 1     called up, please.  Thank you.  Since we don't have the English

 2     translation, I'm going to read it out, read paragraph 2 out.

 3             MR. TOLIMIR: [Interpretation]

 4        Q.   And the document is dated the 9th of June, 1995.

 5             "The weapons were handed over to UNPROFOR during the

 6     demilitarisation process.  We haven't picked it up yet and divided it up

 7     in the units.  We reached an agreement with the UNPROFOR command that if

 8     the aggressor carries out an infantry attack on the protected area, then

 9     at that instance, the warehouse in which UNPROFOR is storing our weapons

10     will be open for us and the weapons will be at our disposal.

11             "After this agreement, we sent our young guys to the weapons

12     depot.  They cleaned the weapons, separated the cleaned out barrels, and

13     what was not working properly they separated and completed the pieces so

14     that, in a way, we undertook preparations to take over the weapons should

15     the need arise."

16             And my question is the following:  General, did you know that

17     the -- there was this agreement between the UNPROFOR command and the

18     Muslim forces in Srebrenica and that they had access to weapons, the kind

19     of weapons described here in this warehouse?  Thank you.

20             JUDGE FLUEGGE:  Before we hear the answer of the witness, we

21     would like to know something about the document.  You only indicated that

22     it is dated the 9th of June, 1995.  But what kind of document is it?  We

23     would like to have any identification.

24             THE ACCUSED: [Interpretation] Yes, thank you, Mr. President.

25     This is a document written by the command of the 28th Division in

Page 4144

 1     Srebrenica on the 19th [as interpreted] of June, 1995, and it was sent to

 2     the command of the 285th Light Infantry Brigade in Zepa, Avdo Palic.  He

 3     was subordinated to that command so that he would have this information.

 4     And then further on, although I didn't insist upon that, it says, I

 5     suggest you do the same thing we did for the whole of Bosnia, and many

 6     greetings.  Much salaams or many greetings.

 7             JUDGE FLUEGGE:  We just wanted to know the kind of document.

 8     Mr. Nicolai, please try to answer this question.

 9             THE WITNESS: [Interpretation] Yes, that's not so difficult.

10     Previously in this hearing, I've stated that it was customary for the

11     parties that had surrendered weapons to weapon collection points were

12     permitted to do the maintenance.  Everything in this text that they did

13     that corresponds with the official agreements, and I am aware of

14     agreements that in cases of dire emergencies, so if a party was attacked

15     in a protected area, then they would be permitted to remove their weapons

16     from the weapon collection points.  And in the case of Srebrenica, at the

17     final stage, around 10 July, the parties were offered this option, but

18     they didn't use this option.  I think that my answer is a bit more

19     detailed than the question General Tolimir put to me.

20             MR. TOLIMIR: [Interpretation]

21        Q.   Thank you, General.  I asked you this question since you deal

22     with this question in your report, and it was a subject that was dealt

23     with during the examination-in-chief.

24             THE ACCUSED: [Interpretation] Now, 1D242, 1D241, I should like

25     those documents to be tendered into evidence because they speak for

Page 4145

 1     themselves, they show what the situation was like.  Thank you.

 2                           [Trial Chamber confers]

 3             JUDGE FLUEGGE:  Mr. Tolimir, we are in the same position as with

 4     previous documents.  They will be marked for identification, and you have

 5     the choice to tender them with another witness or file a motion from --

 6     for admission from the bar table.

 7             THE REGISTRAR:  65 ter 1D242 will be Exhibit D83, marked for

 8     identification.  65 ter 1D241 will be Exhibit D84, marked for

 9     identification.

10             THE ACCUSED: [Interpretation] Thank you, Mr. President.  Now may

11     we have D67, please.  Thank you.  It's a document written by Mr. Delic.

12     It says the Republic of Bosnia-Herzegovina, General Staff of the army,

13     and he sent it via the 1st Corps to the president of the Presidency,

14     Mr. Izetbegovic, and he sets out all the things he undertook and did in

15     the Srebrenica zone.  And I'm going to quote the first paragraph, and we

16     do have the English translation so you can follow.

17             MR. TOLIMIR: [Interpretation]

18        Q.   He says:

19             "Dear Mr. President, in view of the situation of our enclaves

20     during the preceding period, the army General Staff has undertaken a

21     series of military activities and procedures to organise the members of

22     the BH Army in the enclaves and prepare them for possible developments,

23     primarily the defence of the existing free territory and planned

24     engagement and preparations for future joint operations and planned

25     operations."

Page 4146

 1             And now I'm going to read the second bullet point.  It says:

 2             "17 helicopter flights were carried out in each of which a

 3     helicopter was hit."

 4             Then I'm going to quote from the fourth bullet point lower down

 5     the page, please.

 6             "In preparations for future operations, the joining up of the

 7     enclaves, we brought in four brigade commanders, two brigade chiefs of

 8     staff, and the 26th Division Chief of Staff.  The division commander who

 9     was meant to go on the next helicopter flight did not return.  After the

10     final flight ended tragically, Naser remained."

11             Now, let's look at the columns lower down and the first sentence

12     above that.  It says the attached table shows exactly what MTS was

13     delivered, materiel and technical equipment, that is, to Srebrenica and

14     Zepa.  And then we have numbers 1 to 8 specifying the amounts of

15     ammunition and the types of bullet supplied, hand-grenades, lasers, bombs

16     and so on.  If you look through the columns further down, you'll see that

17     there's quite a lot of heavy weapons, mines for mortars, shells for

18     mortars and for multiple-barrelled rocket-launchers and hand-held

19     rocket-launchers, RPGs, et cetera.  And this was signed by General

20     Rasim Delic.

21             My next question, if you've looked through all this, is the

22     following -- or, rather, tell me when you finish looking through the

23     document.  Thank you.

24        A.   I saw a list pass by very rapidly which -- with an extensive

25     inventory and I wasn't able to read through it all at that pace.

Page 4147

 1        Q.   Thank you, General.  Well, look at the list again and look at

 2     number 10.  It says rocket-launcher, 107 millimetres.  Number 10.  And

 3     then look at number 11, 107-millimetre rocket-launcher, or rather,

 4     rocket.  Then look at 16 and 17, 60-millimetre Commando mortars, rounds

 5     for 60-millimetre mortars, 85 of those.

 6        A.   Yes, I've seen those, and those are both -- rockets and mortars

 7     were considered heavy arms.

 8        Q.   Thank you, General.  You can look for yourself, I'm not going to

 9     insist, but look at number 51 and 52, 82-millimetre rounds and

10     120-millimetre rounds delivered, and then 20-millimetre bullets for

11     anti-aircraft machine-guns and so on.

12             Now, my question is this:  Bearing in mind that this was written

13     on the 30th of July, 1995, and that it was sent throughout the period

14     until the action in the enclave started, from looking at this, can you

15     see that the Muslims, as you noted yourself, did in fact have heavy

16     weapons which they brought in through that corridor to the area where

17     they forbid UNPROFOR's presence, or in some other way, brought in in some

18     other way?

19        A.   Well, I'd like to check the date first.  30 July 1995 sounds

20     exceedingly unlikely to me.

21             JUDGE FLUEGGE:  Can we see the first page.

22             THE WITNESS: [Interpretation] Excuse me, in the text I read

23     30 July.  If it's 30 June, that would seem more plausible.

24             MR. TOLIMIR: [Interpretation]

25        Q.   I don't know where you found the 30th, General, but this document

Page 4148

 1     was sent on the 13th of July, 1995, from the Main Staff via the 1st Corps

 2     command to the president, Mr. Izetbegovic, informing him what deliveries

 3     were made to Zepa and Srebrenica.

 4        A.   I'm reading the English text of the report of what's stated here

 5     in this courtroom.  If this document is dated 13 July, then I don't know

 6     when these items listed in this report were supplied to the enclaves.

 7     But it certainly was not on 13 July because, in any case, the enclave of

 8     Srebrenica had fallen by then and Zepa was about to fall.

 9        Q.   Thank you, General.

10             THE ACCUSED: [Interpretation] Now, for you to see this, may we

11     have D63 called up next, please.  It's about the air bridge that was

12     constantly present between Tuzla and Zepa and bringing in weapons to

13     Srebrenica.

14             JUDGE FLUEGGE:  Before we move to the next document, I think we

15     should give Mr. Thayer the opportunity to address the Chamber with his

16     response about the protective measures for the witness concerned we spoke

17     about earlier.  And then we must have a break.  It should be an extended

18     break because I was told that there's a need for some technical matters,

19     so that we have a break now with the cross-examination.

20             Thank you, Mr. Nicolai, again.  You are allowed to leave the

21     courtroom now because we have some procedural matters to discuss.

22                           [The witness stands down]

23             JUDGE FLUEGGE:  Mr. Thayer, are you prepared to respond to the

24     motion of Mr. Tolimir we received in the meantime in the written official

25     form?  If you are prepared, we should move into private session.

Page 4149

 1             MR. THAYER:  Yes, Mr. President.

 2                           [Private session]

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 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 4150











11 Pages 4150-4156 redacted. Private session.















Page 4157

 1   (redacted)

 2                           [Open session]

 3             THE REGISTRAR:  We are now in open session.

 4             JUDGE FLUEGGE:  As I indicated earlier, this break has to be

 5     extended by ten minutes, so that we adjourn now and resume 11.25.

 6                           --- Recess taken at 10.47 a.m.

 7                           --- On resuming at 11.30 a.m.

 8             JUDGE FLUEGGE:  Mr. Tolimir -- oh, no, sorry, Mr. Thayer.

 9             MR. THAYER:  Sorry, Mr. President.  Good afternoon.  I just

10     wanted to make one correction.  I misspoke during my argument and I can

11     do this in open session.  It's at page 29 of the LiveNote, line 3, I

12     referred to the public's right to a fair trial.  Clearly, I meant to say

13     the public's right to an open trial and that was the sole ground set

14     forth in the response.  I just wanted to clarify that for the record.

15             JUDGE FLUEGGE:  That was my impression that you were referring to

16     the right of the public session.

17             Mr. Tolimir, now you have the opportunity to respond to the

18     arguments of Mr. Thayer.

19             THE ACCUSED: [Interpretation] Thank you.  Now, my legal advisor

20     will answer the legal portion of what Mr. Thayer presented and I will

21     deal with something that I don't think stands, in my opinion.  Because he

22     says the accused challenges the intercepts but yet refers to them.

23             Now, I'd like to say that I did not refer to them but I didn't

24     want to obstruct the proceedings and I took part in the work of the court

25     normally and examined -- cross-examined the witnesses you brought in.

Page 4158

 1             Now, the other sentence that was added by Mr. Thayer is this:  He

 2     said that the accused, while he was speaking about respect for the

 3     rulings of the Court, and he says the accused asked that the decisions

 4     under 92 bis takes on board the rulings of the Trial Chamber.  I don't

 5     challenge them.  So there's a big difference.

 6             And I'd like to be given a little time for comments by me, but

 7     first of all by my legal advisor.  Thank you.

 8             JUDGE FLUEGGE:  Mr. Tolimir, you are aware that needs permission

 9     by the Chamber if Mr. Gajic gets the right to address legal arguments to

10     the Chamber.

11             THE ACCUSED: [Interpretation] That's why I asked with the Court's

12     permission.

13             JUDGE FLUEGGE:  Thank you.

14             THE ACCUSED: [Interpretation] Because we said everything in our

15     submissions, in our motions, but since this is an -- it's not an

16     extraordinary case.  We have already dealt with it.  Thank you.

17                           [Trial Chamber confers]

18             JUDGE FLUEGGE:  Your request is granted, and, Mr. Gajic, you get

19     the floor, but I have a request, not to repeat the arguments we know

20     already by your written submission.  But if there's anything to add, you

21     have the floor.

22             MR. GAJIC: [Interpretation] Your Honours, I precisely wanted to

23     say what you've just said.  We are not going to repeat our arguments.

24     I'd just like to underline one point and that is this:  It's not proper

25     practice for the Prosecution to call a witness to come to The Hague while

Page 4159

 1     we are waiting for a Trial Chamber decision.  So I think that this is a

 2     practice which is disadvantageous to the Defence.  It puts us in a

 3     difficult position and I think it puts the Trial Chamber in rather a

 4     difficult position too.  Thank you.

 5             JUDGE FLUEGGE:  Thank you very much.  The Chamber will take this

 6     into account as well.

 7             The witness should be brought in now.

 8                           [The witness takes the stand]

 9             JUDGE FLUEGGE:  Thank you very much, Mr. Nicolai, for your

10     patience.  We had some matters to discuss in your absence.  Now the

11     cross-examination will continue.

12             Please, Mr. Tolimir.

13             THE ACCUSED: [Interpretation] Thank you.

14             MR. TOLIMIR: [Interpretation]

15        Q.   General, can you tell us whether you gave permission to your

16     forces in Srebrenica to fight the Army of Republika Srpska within these

17     enclaves; and if so, tell us what you were guided by and when you gave

18     this order in terms of time?  Thank you.

19        A.   First I'd like to make clear that the troops did not need my

20     direct permission to fight if they were being attacked.  Their area of

21     authority was sufficiently clear so that if they were being attacked,

22     they were in a position to decide on their own whether they wanted to

23     fight back.  I can elaborate on that.  In the period from 9 to 11 July,

24     the situation was such that DutchBat was fully entitled to retaliate, but

25     General Janvier, the force commander, emphasised that before deploying

Page 4160

 1     air force, he wanted to respond at a lower level of violence.  So we

 2     brought about a situation in which if the Serb troops, and I'm referring

 3     to the blocking position, that if the position taken by DutchBat were

 4     attacked, then DutchBat had instructions to open fire on the approaching

 5     troops.

 6        Q.   Thank you, General.

 7             THE ACCUSED: [Interpretation] Now, may we look at the transcript

 8     of the 1st of July, page number is 3453, lines 25 -- 24 and 25, where

 9     Mr. Franken explains how he received the order from you.  Thank you.

10             MR. TOLIMIR: [Interpretation]

11        Q.   We have the transcript on our screens.  3453, line 25 --

12             THE ACCUSED: [Interpretation]3483 and 3484.  I'd like page 3483.

13     I don't see that.  Now we have it, line 25 and 3484, line 3.

14             MR. TOLIMIR: [Interpretation]

15        Q.   And I quote:

16             "... my mandate was changed significantly the very moment the UN

17     ordered me to defend Srebrenica, and that was the cause why I gave that

18     green order ..."

19             Thank you.  And now my question:  Did he receive specific orders

20     from you when to enter into battle with the Army of Republika Srpska, and

21     if so, as of what date?  When to engage with the Army of Republika

22     Srpska.

23        A.   Well, let me state first of all that this was not about staging

24     an attack.  Aside from what Major Franken alleged, he was consistently

25     entitled in the event of self-defence to use violence, and pursuant to

Page 4161

 1     the UN resolutions, he was also entitled to use violence to defend the

 2     local population.  That was a given.  He didn't need to request specific

 3     permission for that.  It was customary, however, to do so with great

 4     caution.  The UN is expected to avoid becoming a party to a conflict and

 5     will therefore postpone resorting to violence as much as possible.  If

 6     there's no choice, however, for self-defence or to protect the local

 7     population, they were entitled at any time to resort to violence.

 8             In this specific case, however, he received additional directives

 9     to bring about a situation where it would be clear to the entire

10     international community that UNPROFOR was being attacked and the local

11     population was being attacked, and what I mean here is adopting the

12     blocking position east of Srebrenica.

13        Q.   Thank you, General.

14             THE ACCUSED: [Interpretation] Now, would you show General the

15     statement that he gave to the Prosecution on the 16th -- the 18th of

16     November, 1996.  Page 11, please, paragraph 5, lines 11 and 12.  Thank

17     you.

18             JUDGE FLUEGGE:  Can you please give the Court Usher the document

19     number.

20             THE ACCUSED: [Interpretation] D70 first, the General's statement

21     given to the OTP, and the interview was conducted in October and the

22     18th of November, 1996.  Page 11, lines 1 to 12 -- 11 and 12, para 5.

23             THE INTERPRETER:  Microphone, please.

24             MR. TOLIMIR: [Interpretation]

25        Q.   Thank you.  We can see paragraph 5 there.  And the last sentence

Page 4162

 1     is this:

 2             "He told me to forward the message to the soldiers of the Dutch

 3     Battalion which I did."

 4             THE ACCUSED: [Interpretation] In English it's on the following

 5     page, page 11, the first two lines.  And it's the discussion between --

 6     with General Janvier.  So let's look at the first sentence.

 7             MR. TOLIMIR: [Interpretation]

 8        Q.   "At about 1200 hours, I was told that combat air support was not

 9     given permission for and was not authorised, and the staff took

10     three hours to make its decision."  Those are the first two lines of

11     paragraph 5.

12             THE ACCUSED: [Interpretation] In the English it's on the previous

13     page.

14             THE WITNESS: [Interpretation] I've read it.

15             THE ACCUSED: [Interpretation] Thank you.  Mr. Thayer is on his

16     feet, so shall we hear him.

17             JUDGE FLUEGGE:  Mr. Thayer.

18             MR. THAYER:  Thank you, Mr. President.  Just for the record,

19     because, again, I don't know if this page of the statement will actually

20     end up being tendered, we are talking about 10 July, just so we can

21     orient ourselves down the line when we are reviewing the transcript.

22             JUDGE FLUEGGE:  Thank you.  Mr. Tolimir, your question, please.

23             THE ACCUSED: [Interpretation] Thank you, Mr. Thayer.  Yes, this

24     statement is already as an exhibit and I'm quoting from paragraph 5,

25     lines 1 and 2, and lines 11 and 12.  So if Mr. Thayer wants this to go on

Page 4163

 1     the record, I don't mind.  It can be recorded.

 2             MR. TOLIMIR: [Interpretation]

 3        Q.   And my question is this:  From this, can we see that you did not

 4     receive permission for air support from Zagreb, and that you had to

 5     convey this, pass this message on to DutchBat and that you did that?

 6     That's what you say in the last sentence.

 7        A.   What happened at that point in time, and I've stated that here,

 8     is that DutchBat had requested air support because there was an exchange

 9     of fire with approaching Serb troops and all the conditions for

10     requesting the air support had been met, and UNPROFOR approved the

11     request from Sarajevo and transmitted it to Zagreb because that's where

12     the authority was to deploy air support.  And over there, extensive

13     deliberations took place as to whether or not to deploy air support, and

14     again, it's unclear to me why it took so long, but because it took so

15     long, dusk fell and given that the troops were extremely close together,

16     General Janvier believed that the risk of collateral damage was too

17     serious to deploy air support at that point.  So he said, I can't approve

18     it at this time, and he then agreed that from the next morning at 6 a.m.,

19     the airplanes would be available over the Adriatic, from where it's only

20     a few minutes to the enclave.  And depending on the situation, they would

21     re-assess whether deploying air support was necessary.

22        Q.   Thank you.  And my next question is based on what you've just

23     said.  For air support, once you did not get permission the first time,

24     did you create conditions on the ground for it to be authorised a second

25     time around?  Thank you.  Did you prepare the ground in anticipation of

Page 4164

 1     getting permission ultimately?

 2        A.   Yes, we had done that previously.  On Sunday, 9 July,

 3     General Janvier had assigned us to order DutchBat to adopt a blocking

 4     position east of the town of Srebrenica, and the purpose was that if the

 5     troops were attacked there, it would be clear that in that situation both

 6     UNPROFOR and the local population were being threatened, and it would be

 7     more than obvious that deploying air support was justified.

 8        Q.   Thank you.  Thank you for that very sincere answer.  So you did

 9     create conditions on the ground conducive to that.  Now, I'm going to

10     show you a statement you gave in the Popovic trial.

11             THE ACCUSED: [Interpretation] And it is P6403.  Page 18481,

12     lines 13 to 17.  On e-court, it is page 27.

13             MR. TOLIMIR: [Interpretation]

14        Q.   So Exhibit P6403, so that you can tell us again what you said.

15             JUDGE FLUEGGE:  Mr. Tolimir, I think there is no document P6403.

16     We don't have so many yet in this trial.  Which is the right number?

17             Mr. Thayer, can you assist us?

18             MR. THAYER:  Mr. President, I think the --

19             THE ACCUSED: [Interpretation] 6403.

20             MR. THAYER:  Negative, Mr. President.  I think the correct

21     exhibit number is P674.  If we are referring to the Popovic trial

22     transcript of 29 November 2007 and transcript page 18481, that is P674.

23             JUDGE FLUEGGE:  Thank you very much.  Always very helpful to get

24     your assistance.

25             Mr. Tolimir.

Page 4165

 1             THE ACCUSED: [Interpretation] Thank you, Mr. Thayer.

 2             MR. TOLIMIR: [Interpretation]

 3        Q.   Could the witness take a look at this now, please, to see what he

 4     said in the broader context, from lines 3 to 17.  And I'm just going to

 5     quote part of the discussion with General Janvier about activities to be

 6     undertaken by DutchBat.  I'll give the General a few moments to read

 7     through the passage up to line 17, and when he is finished, would he let

 8     me know.

 9             It says:

10             "Towards that time, General Janvier gave instructions that part

11     of DutchBat should take up blocking positions, by DutchBat, to the south

12     of Srebrenica.  First of all, the object of this was to block the passage

13     for Serb troops; and secondly, it was intended to create a situation that

14     if they attempt to proceed, they would find themselves in the situation

15     with no other way out but to attack."

16             My question is as follows:  Was this the kind of situation that

17     was supposed to create conditions for calling for air support and

18     General Janvier granting permission for air support because he asked you

19     to pass it on to DutchBat?

20        A.   To avoid all misunderstandings, according to UN regulations, the

21     rules for deploying air support had been met.  UN Resolution 824 and 836

22     entitle UNPROFOR to use air support if either the local population or

23     UNPROFOR troops are under attack, and that was the case before that point

24     already.  But General Janvier found it difficult to resort to extreme

25     measures without violence at a lower level already and that's why he

Page 4166

 1     asked DutchBat to adopt a position so that it needed to be -- they would

 2     need to be attacked if the Serbs wanted to continue, and then it would be

 3     so obvious and we could start by responding to that attack with DutchBat

 4     arms.  And if that was insufficient to stop the attack, then it would be

 5     overly obvious that the situation was so serious that air force needed to

 6     be deployed.

 7             THE ACCUSED: [Interpretation] 18471 is the transcript number.  I

 8     misspoke, so could that be corrected.

 9             MR. TOLIMIR: [Interpretation]

10        Q.   And following on from the General's answer, my next question is

11     this:  Did that create political conditions for the use of -- for air

12     support rather than the situation on the ground?

13        A.   No.  I don't believe that there were political conditions in this

14     case, but as you know, I've made a statement previously about what was

15     known as post air-strike guidance where force commander General Janvier

16     advocated great caution in deploying air force and he was trying to

17     encourage bringing about a situation.  Once again, the situation was

18     caused primarily because of the Serb armed forces situation that would

19     eliminate any possible doubt that deployment of this extreme measure was

20     necessary.

21        Q.   Thank you, General.

22             THE ACCUSED: [Interpretation] And now I would kindly ask you to

23     look at D70.  This is the witness's statement, page 9, paragraph 3.

24     Line 3.  Thank you.

25             MR. TOLIMIR: [Interpretation]

Page 4167

 1        Q.   We will see page 9, paragraph 3, line 3, in a minute, and 4, and

 2     so on.  Thank you.  Now we can see both versions, Serbian and English,

 3     and we have paragraph 3.  I'm reading from line 3 -- actually, we'll

 4     start reading from line 1:

 5             "The situation leading to the fall of Srebrenica started

 6     developing around the 6th July.  On that morning, there was heavy

 7     fighting between the VRS and the ABiH.  The VRS were using between five

 8     to ten tanks and heavy artillery.  The shelling was mostly directed at

 9     military targets and not directly against the civilian population."

10             JUDGE FLUEGGE:  This is in fact paragraph 4, not paragraph 3.

11             THE ACCUSED: [Interpretation] Thank you, Mr. President.  In the

12     Serbian it's paragraph number 3.  It is possible that in English it's

13     paragraph number 4.  Thank you.

14             JUDGE FLUEGGE:  Yes, it is.

15             MR. TOLIMIR: [Interpretation]

16        Q.   General, does it transpire from your statement that the civilians

17     did not come under attack although there was fierce fighting, as you

18     stated yourself?

19        A.   What is your question?

20             THE INTERPRETER:  Off mike.

21             MR. TOLIMIR: [Interpretation]

22        Q.   Was the civilian population targeted during that particular

23     attack or not?

24        A.   As far as I know, not yet on 6 July.  What I was referring to in

25     that context were attacks on DutchBat units.

Page 4168

 1        Q.   Thank you.  In the statement we read that the fighting involved

 2     the BiH Army and the VRS.  There's no reference to the Dutch Battalion.

 3     Did you just misspeak when you said Dutch Battalion or are you saying

 4     that the Dutch Battalion was already at the time involved in the

 5     conflict?

 6        A.   By 6 July was already the first fight between DutchBat and the

 7     Bosnian Serb troops.

 8        Q.   The fighting was carried out pursuant to the so-called green

 9     alert by the commander or the deputy commander, or was the fighting

10     conducted spontaneously?  Thank you.

11        A.   Are you talking about the fighting between the Bosnian Serb

12     troops and the ABiH, or are you talking about the fighting between the

13     Bosnian Serb troops and UNPROFOR?

14        Q.   Well, I'm talking about you, what you stated in paragraph 3 and,

15     as the President said, in paragraph 4 in the English version.  I read out

16     from the first four lines and you are not talking about an engagement

17     involving the VRS and UNPROFOR, or rather, you are saying that there was

18     heavy fighting between the VRS and the ABiH.  I've taken note of your

19     additional statement that before that the VRS opened fire on the

20     DutchBat, as you have just stated now.

21        A.   Well, I don't remember how it figured in the course of the day.

22     In this statement what is being referred to is fighting between the VRS

23     and the ABiH, and what can happen there is that Dutch -- what could have

24     happened is that DutchBat may have looked at it but not done anything

25     about it.  On that same day, there was also an attack on one of the

Page 4169

 1     DutchBat OPs, but I don't think that's addressed yet in this section.

 2        Q.   Thank you, we'll come to that a bit later.  We are now looking at

 3     the fifth line in the Serbian language and in the fourth line -- or,

 4     rather, the fourth paragraph in the English version, and I'm quoting:

 5             "I explained to him the day of the policy General Janvier and

 6     Smith," and you are referring to the commander of the DutchBat.  "I

 7     explained that according to the actual guide-lines the use of air power

 8     was permitted for the sole Defence of UNPROFOR soldiers or in case of

 9     deliberate attacks on the civilian population.  This discussion came up

10     because some of the soldiers in the DutchBat operation posts in the south

11     of the enclave felt threatened by the close presence of the VRS troops.

12     Colonel Karremans wanted air presence to demonstrate to the VRS that he

13     had the capability to use these aircraft.  I did not give permission for

14     the use of air presence ..." and so on and so forth and the end of

15     quotation.

16             My question is this:  Since in this paragraph you said that there

17     was no direct attack against the civilian population despite the heavy

18     fighting between the VRS and the Army of Bosnia-Herzegovina, can you tell

19     us, since you are talking about heavy fighting, does that mean that the

20     BiH Army also had weapons from which it could open fire?

21        A.   Yes, apparently they did, and I've said earlier we never

22     succeeded in fully disarming the ABiH.

23        Q.   Thank you.  Since you did not approve the presence of air force

24     and since you've said that there was no direct attack against the

25     civilians and since you said that there was heavy fighting between the

Page 4170

 1     BiH Army and the VRS, was the situation later created for UNPROFOR to

 2     become target of the VRS attacks?  You say in this statement that

 3     UNPROFOR was threatened by the presence of the VRS and they were not

 4     threatened by the presence of the Muslim Army.  Where does the difference

 5     come from?  How do you count for the difference in those two approaches?

 6        A.   Well, the presence of ABiH armed forces was not so threatening to

 7     DutchBat because the ABiH had only handguns.  The VRS armed forces,

 8     however, had heavy weapons, heavier weapons than DutchBat had.  That's

 9     why they were somewhat fearful of them.

10        Q.   General, you say that they did not have heavy weapons.  How do

11     you explain heavy fighting?

12             THE ACCUSED: [Interpretation] And while you are answering, I

13     would like the court to produce D63 which will show you that they did

14     have heavy weaponry that UNPROFOR was completely unaware of.

15             THE WITNESS: [Interpretation] I think that General Tolimir has

16     basically already provided the answer.  If you are not aware that a party

17     has heavy weapons, then you can't be afraid of that either.

18             MR. TOLIMIR: [Interpretation]

19        Q.   Thank you, General.  We have the document in front of us dated

20     17 February 1995, and the title is:  "Final analysis of the Srebrenica

21     and Zepa air-lift."  And just awhile we saw a report from Delic to

22     Izetbegovic as to what had arrived in Srebrenica.

23             THE ACCUSED: [Interpretation] Can we please look at the second

24     page of this document.

25             MR. TOLIMIR: [Interpretation]

Page 4171

 1        Q.   I'm going to read the first paragraph under the word

 2     "Introduction," where it says:

 3             "Between the 27 February 1993 and the 7th May 1995, there was an

 4     air-lift from the territory of the Republic of Bosnia and Herzegovina to

 5     meet the needs of the enclave of Srebrenica, Zepa, and Gorazde.  The main

 6     objective of introducing and maintaining the air-lift was to transport

 7     and ensure combat equipment, evacuation of the wounded, the functioning

 8     of government," and so on and so forth.

 9             And then under 2, please look at the following paragraph, the

10     first bullet point says:

11             "The main tasks of establishing and maintaining the air-lift were

12     the following:  Transport of weapons and military equipment, transport of

13     combatants and passengers, transport of materiel to enable the

14     functioning of military and civilian authorities," and so on and so

15     forth.

16             THE ACCUSED: [Interpretation] Now can we go to the following

17     page.

18             MR. TOLIMIR: [Interpretation]

19        Q.   We saw that the whole operation lasted until the month of July,

20     1995.  You were on duty at the time.  Thank you.

21             THE ACCUSED: [Interpretation] Can we please turn to the following

22     page of the final analysis which speaks about the existence of air-lift.

23             JUDGE FLUEGGE:  B/C/S or English?

24             THE ACCUSED: [Interpretation] Well, I would need the exact page

25     in B/C/S as well in order to be able to comment upon what I read.  Thank

Page 4172

 1     you.

 2             MR. TOLIMIR: [Interpretation]

 3        Q.   Look at the title "Losses," where it says in the last paragraph:

 4             "One helicopter was involved in an accident, the crew slightly

 5     wounded and the cargo was not damaged."

 6             THE ACCUSED: [Interpretation] Can we move on to the following

 7     page.  Thank you.

 8             JUDGE FLUEGGE:  Mr. Tolimir, I have a problem to follow.  Perhaps

 9     it's my personal problem, but you should clearly indicate from which page

10     and which paragraph you are quoting.  I can't follow in this way, just to

11     say, "Following page, following page," I don't know where you are at the

12     moment.  Please be a little bit more precise.

13             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I said

14     that the air-lift, as I read in the introduction, until the month of May.

15             JUDGE FLUEGGE:  Please tell me which part of this document you

16     are referring to.  Which page, which paragraph?  This is necessary.

17             THE ACCUSED: [Interpretation] Thank you.  We have to show the

18     witness what happened from the time when the demilitarised zone was

19     established and when UNPROFOR moved in what weapons arrived --

20             JUDGE FLUEGGE:  Mr. Tolimir, I asked you for an indication which

21     part of this document you want to have on the screen and you are quoting

22     from.  No other explanation is wanted.

23             THE ACCUSED: [Interpretation] Thank you, Mr. President.  Can we

24     now look at the table of the weapons and materiel that were air-lifted

25     during the relevant period that I have already specified for everybody

Page 4173

 1     concerned.

 2             JUDGE FLUEGGE:  Again, Mr. Tolimir, can you tell me, please,

 3     perhaps I'm not capable enough, can you tell me, please, which part of

 4     this document you referring to, exactly the page number and the

 5     paragraph number and the line number.  Otherwise we are all lost.

 6     Especially the witness needs it.

 7             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I read

 8     the text that I was supposed to read, that needed to be read to show how

 9     long the air-lift was present during the time when Srebrenica was a

10     demilitarised zone, and now I'm asking for the table.

11             JUDGE FLUEGGE:  Mr. Tolimir, you will have realised that I

12     stopped you.  Tell me the page -- I see something on the screen, that's

13     correct, but I want to know which page.  We must have a clear transcript

14     so that we -- later on we can follow what we are looking at.  The page

15     number, the paragraph number, and the line number again.  Please do it.

16             THE ACCUSED: [Interpretation] Thank you.  Can the court please

17     produce page 10.

18             MR. TOLIMIR: [Interpretation]

19        Q.   Could the General please look at lines 1, 2, 3, 4, 5, 9 and 10,

20     and can he also look at the totals demonstrating how many tonnes of

21     lethal weapons were brought to Srebrenica.  Thank you.  We can see that a

22     total quantity of lethal weapons was 10 tonnes.

23        A.   We have to see what we have in front of us.

24             JUDGE FLUEGGE:  Mr. Thayer.

25             MR. THAYER:  Just for the record, Mr. President, the table to

Page 4174

 1     which General Tolimir is referring appears on pages 9 to 10 of the

 2     English translation, so I think for the total that General Tolimir is

 3     referring to, which would be line number -- below line number 10, we'd

 4     have to go to the next page, which would be page 10, assuming

 5     General Nicolai has had an opportunity to review what is on page 9 in the

 6     English before him.

 7             JUDGE FLUEGGE:  Thank you very much.  That was exactly what I'm

 8     asking for, Mr. Tolimir.

 9             THE ACCUSED: [Interpretation] Thank you.  Now we can see it in

10     English, segregated by months, February --

11             JUDGE FLUEGGE:  Now you are in the position to put a question to

12     the witness.  Carry on, please.

13             MR. TOLIMIR: [Interpretation]

14        Q.   General, sir, you see a table in front of you depicting an

15     overview of all the materiel that were brought to Srebrenica during 1995,

16     and later on we will see all the other lines after 10.  You see here what

17     lethal weapons were brought in and when from Tuzla to Srebrenica.

18             My question is this:  Were you ever informed about the arming of

19     Muslims in Srebrenica and Zepa by means of air-lift and by means of land

20     roads?  Did your forces on the ground ever inform you about that?  Thank

21     you.

22        A.   Yes, despite the fact that according to me I still don't have the

23     same page in front of me, I think you are referring to a table that you

24     displayed earlier this morning about arms and munition that was brought

25     in.  I think I can still answer the question.  First, I'd like it to be

Page 4175

 1     said that you are referring to an air-lift that took place from

 2     February 1993 until May 1995, so that's a very long period of which only

 3     a very small part was during my term in Sarajevo.  Aside from that, the

 4     UN was certainly aware of the fact that supplies were being brought to

 5     those enclaves by air and that was the reason for an action known as

 6     Operation Deny Flight in which the NATO air forces that were available to

 7     the UN tried to block all air traffic above the Bosnia-Herzegovina

 8     territory, and that considerably reduced the number of such flights.

 9             On the other hand, we realised, and this was also clear from

10     reports also by UNMOs that we received now and then, that we never fully

11     succeeded in blocking that air traffic.  If you know the area, and you

12     know the area, then you know that it's very hilly and mountainous

13     terrain, and if you are flying through the valleys in helicopter at

14     night, then it's very difficult for fast jet planes to discover a

15     helicopter and if necessary shoot it down there.  That's why we never

16     succeeded entirely in discontinuing this, but we certainly reduced it

17     considerably.

18        Q.   Thank you, General.  I showed you the air-lift information

19     because you asked about the weapons that Delic wrote about to

20     Izetbegovic.  Now, let's go back to your statement.

21             THE ACCUSED: [Interpretation] D70, page 10, paragraph 5.  Thank

22     you.  The last paragraph, please.  Now we can see it.  I would like to

23     read and then we can discuss the paragraph.

24             MR. TOLIMIR: [Interpretation]

25        Q.   "On the 9th July had a series of telephone calls with

Page 4176

 1     General Tolimir of the VRS.  The first call at 1230 hours, see annex"

 2     under a certain number.  "I first of all expressed my gratitude for the

 3     co-operation of the VRS.  During the night they had surrounded two of our

 4     observation posts.  Our troops had not wanted to withdraw to the ABiH

 5     lines due to the events of the previous day.  Our troops had negotiated

 6     with the VRS troops who offered them an opportunity to withdraw through

 7     the VRS lines safely.  Our troops actually handed over the OPs to the VRS

 8     in exchange for a safe passage from the area.  The UN guide-lines were

 9     that if our troops were inferior to the attackers, they had to surrender

10     their positions without fighting to the end."  And so on and so forth.

11     The end of quotation.

12             My next question this:  From what we can see here, you yourself

13     have stated that -- and could you please answer for the Trial Chamber,

14     were your units, were your troops allowed to pass through the VRS

15     territory and was that the reason for you to thank me, as you stated

16     yourself in your statement?  Thank you.

17        A.   No.  It would have been particularly strange if I were to thank

18     you for the fact that you attacked my OPs.  So, the reason I thanked you

19     was for the assistance or co-operation you provided in -- with respect to

20     the -- with respect to transporting the corpse of the soldier who had

21     been killed the day before, Raviv van Renssen, so that he could be

22     repatriated.

23        Q.   Thank you, General.  Last time we had Mr. Thayer showing you

24     Fortin's notes and at one point you said to me, in a conversation, to

25     pass something on to Srebrenica.

Page 4177

 1             THE ACCUSED: [Interpretation] And now could we look at D65 or the

 2     Prosecutor's 65 ter number 02209.  Thank you.  We have both English and

 3     Serbian versions on the screen.  Actually, we can't see them yet.  D65 or

 4     the Prosecutor 65 ter number 02209.  The document has been admitted into

 5     evidence through this witness.  Thank you.

 6             My legal advisor has just corrected me.  The document has not

 7     been admitted through General Nicolai but through another witness.

 8     65 ter 02209 is the number.  The number that I mentioned before was

 9     wrong, I apologise, and I repeat.  65 ter number 02209.  That's the

10     Prosecutor's 65 ter number.  The ERN number is 0 --

11             THE INTERPRETER:  Could Mr. Tolimir repeat the number slowly.

12             THE ACCUSED: [Interpretation] 0425-8626 is the ERN number if that

13     will help the Court find it.

14             MR. TOLIMIR: [Interpretation]

15        Q.   While we are waiting for the document to appear on the screen, I

16     would like to tell you that the document was sent to the command of the

17     Drina Corps from the Main Staff by me personally and everything you said

18     is covered in this document.  Based on the document, the Prosecutor

19     claimed that I did not convey words but that I deceived you.  I'm going

20     to show you the document and we can see it now --

21             JUDGE FLUEGGE:  Just a moment, Mr. Tolimir.  Mr. Thayer.

22             MR. THAYER:  I think we found it now.  I just -- there's -- it's

23     actually 2290A -- 2209A, for the record.

24             JUDGE FLUEGGE:  Thank you very much again.

25             MR. TOLIMIR: [Interpretation]

Page 4178

 1        Q.   Since we've lost a lot of time and time flies, I will read this

 2     document.  I sent it on the 9th of July.  Very urgent, to the command of

 3     the Drina Corps, the forward command post of Pribicevac to General Krstic

 4     personally.  And I quote the contents:

 5             "The Chief of Staff of the UNPROFOR command, General Nicolai, has

 6     delivered a message with the following content:"  And I quote:  "I'm

 7     calling because of the great concern about the Srebrenica enclave.  Your

 8     forces have penetrated into the demilitarised zone by more than 4

 9     kilometres.

10             "Your units are 1 kilometre away from the town of Srebrenica.  We

11     consider this to be an attack on a safe area, and this will compel us to

12     defend the safe area with all the means at our disposal.  This is in

13     neither your interest nor in ours.  I request an explanation of such

14     behaviour and demand that your forces withdraw 4 kilometres to the

15     south."  And so on.

16             Our time is up so I can't quote any more, but I also tell the

17     commanders here in this order that you should report every hour about the

18     situation on the battle-front for me to be able to communicate with

19     UNPROFOR which will enable you to continue working along the plan and so

20     on, end of quotation.

21             Now, my question is this:  Did I properly convey what you and

22     General Janvier told me in our talks?  Did I convey this properly to the

23     command engaged in the Srebrenica area?

24        A.   Yes, you conveyed that accurately, but the response from the

25     troops or, rather, the expected response from the troops was never

Page 4179

 1     forthcoming.

 2        Q.   Thank you, General.

 3             THE ACCUSED: [Interpretation] I'd like to tender this document

 4     into evidence.

 5             JUDGE FLUEGGE:  It will be received.

 6             THE ACCUSED: [Interpretation] Thank you.

 7             THE REGISTRAR:  As Exhibit D85.

 8             JUDGE FLUEGGE:  Mr. Tolimir, perhaps this is the convenient time

 9     for the second break before you move to another topic or another

10     document.

11             THE ACCUSED: [Interpretation] Yes, thank you, Mr. President.

12             JUDGE FLUEGGE:  Mr. Tolimir, are you in the position to indicate

13     how much time you will need for finishing your cross-examination?

14             THE ACCUSED: [Interpretation] Well, I don't know what the

15     requirements of the Court are or the accused.  As far as I'm concerned, I

16     can reduce the time and I'll accept anything you decide because I'm not

17     here to defend myself.  I'm here to present the actual facts as they

18     happened on the ground, what the real situation was.

19             JUDGE FLUEGGE:  This is a misunderstanding, Mr. Tolimir.  I just

20     asked you for an indication of the time you will need.  That's all.  No

21     decision by the Chamber, nothing, no time pressure.  Just tell us, what

22     is your estimation?

23             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I said

24     this with every good intention, no other things in mind.  I can wind up

25     during the next session, thank you.  After the break.  Thank you.

Page 4180

 1             JUDGE FLUEGGE:  Very well.  We will have the second break now and

 2     resume five minutes past 1.00.

 3                           --- Recess taken at 12.37 p.m.

 4                           --- On resuming at 1.12 p.m.

 5             JUDGE FLUEGGE:  The Chamber is in the very unsatisfactory

 6     situation.  Mr. Tolimir at the outset indicated that he needs 11 hours

 7     for cross-examination, if I recall correctly.  He has used a little bit

 8     more than nine hours up to now.  He indicated that he will be able to

 9     finish his cross-examination perhaps during this session.

10             Mr. Thayer, you have indicated you need some more time for

11     re-examination and perhaps there are questions of the Judges.

12             Under these circumstances, it was discussed to have an extended

13     sitting today, but this, in fact, is not possible, because of other

14     commitments this afternoon by members of the -- by the whole Trial

15     Chamber.  Therefore, we have, and this is a bad and sad message for the

16     witness, if we can't finish today, we have to call him again for another

17     day with a Dutch interpreter because I was told the Dutch interpreter is

18     not available tomorrow, and this is a question of good and satisfactory

19     preparation of the such a trial.  Everybody should have been aware of the

20     situation, especially with problems we face with two witnesses scheduled

21     next.  And we need to render one decision at the end of today's hearing

22     about one witness, PW-049, to clarify the situation which witness should

23     be heard next.

24             This is a very unsatisfactory situation, but this is the

25     situation.

Page 4181

 1             Mr. Tolimir, please carry on with your questioning of the

 2     witness.

 3             THE ACCUSED: [Interpretation] Thank you, Mr. President.  If we

 4     all co-operate, I think we can get through it today.  I'll ask the

 5     General to give brief answers and I'll do my best.  So we are going to

 6     show a footage now, first, a film.  And then on the basis of that, I have

 7     a few questions.

 8             This is video 1D38.  And we have 1D239, the transcript material

 9     which is in Serbian and was provided to the interpretation booths, so we

10     hope there won't be any problems to ensure interpretation for those who

11     do not know Serbian.

12             Let's look at the film now.  It's very brief.  It was publicly

13     broadcast on the 9th of July, 2010, and it is available to everybody

14     through the website of Radio Television Serbia.  Thank you.

15             We can play the tape, Mr. President, thank you.

16             JUDGE FLUEGGE:  Yes, please proceed.

17                           [Video-clip played]

18             THE INTERPRETER:  [Voiceover] "A meeting was held by the -- of

19     the commanders of the Dutch Battalion and representatives of the

20     28th Division.  Karremans arrived in the meantime and asked for a

21     meeting, and I said, 'Five more minutes, we need to reach an agreement.'

22     We received him and he says that he was told by NATO that the next

23     following day at half past 5.00, the death zone in Srebrenica was

24     determined.  Everything that moved around on two legs, four legs, two

25     wheels, four wheels, 100 wheels, would be destroyed, and that they should

Page 4182

 1     return to the position of Zeleni Jadar or they would be bombed at 6.00.

 2     The number of planes they said that would come in to bomb will be between

 3     70 and 40.  The bombing didn't begin at 6.00 in the morning but at

 4     2.00 in the afternoon.  The positions of the Republika Srpska Army were

 5     not bombed by 40 planes but by two planes."

 6             MR. TOLIMIR: [Interpretation]

 7        Q.   Well, we've seen that footage.  Now, General, the plan of the

 8     Wartime Presidency who spoke first, and Mr. Karremans' interpreter was

 9     there, he was the second person speaking, speaking about the number of

10     planes and the so-called death zone.

11             Now, I want to ask you this:  Did you have communication with

12     General Karremans on the 11th, and did you give him instructions for this

13     preparation which on the 10th in the evening, he carried out together

14     with the Muslims in order to co-ordinate and create some sort of zone to

15     be bombed?  Thank you.

16        A.   I did not instruct Colonel Karremans to organise such a meeting.

17        Q.   Thank you.  But do you know that such a meeting was nevertheless

18     held and that Colonel Karremans informed the Muslims that there would be

19     hits on the Republika Srpska Army positions, which is what these two men

20     were talking about in the footage?

21        A.   I did not know that he was going to convene this meeting, but I

22     can easily understand that he did this to avert unnecessary casualties.

23        Q.   Thank you, General.  So later on you realised that he discussed

24     co-ordination with the Muslims and reached an agreement to avoid the

25     consequences of an air-strike, which would be massive, on the 11th, as we

Page 4183

 1     see here?  Thank you.

 2        A.   That massive air-strikes would be conducted is the conclusion

 3     that Colonel Karremans reached himself.  He did not hear this from me.  I

 4     imagine that he heard from his air controllers how many planes were

 5     available, but that does not mean that the same number of planes would be

 6     deployed in the attack.  In any case, getting some planes into the air

 7     and protecting them and tracking targets requires a lot of escorting

 8     planes.  Moreover, not all planes available will necessarily be in the

 9     air at the same time.

10        Q.   Thank you, General.  Can you tell us whether you were told that

11     NATO would carry out such a large number of attacks, mass attacks, since

12     you describe this in your statement?  I don't want to quote it.  You said

13     that they asked them to return, and I'm sure you remember what you said,

14     but were you told any of this, that this would happen on the 11th?

15        A.   I apologise if I've misunderstood you, this question sounds

16     unclear to me.  Maybe it's because of me.  I know how many planes were

17     available for this action, but I don't really understand the rest of the

18     question.

19        Q.   Thank you.  Can you tell us how many airplanes were planned, and

20     on page 12 of your statement, paragraph 2, you say that that number of

21     plains withdrew by 10.00 because the NATO command asked for permission to

22     withdraw the planes to refuel and change the crews.  So do you know how

23     many planes?

24        A.   Yes, I know that, if I remember correctly, something like

25     40 planes were available through the entire operation, and at 10.00 we

Page 4184

 1     granted permission to withdraw them to resupply them.  This was because

 2     up to that point, at least from the perspective of the headquarters in

 3     Sarajevo, it was relatively quiet in the enclave and they said, okay,

 4     they are not -- there won't be an attack yet so we'll withdraw the planes

 5     from the air.

 6        Q.   Thank you.  After that information, as Mr. Fortin says in

 7     document P585, General Gobillard, on the 11th of July at 0900 hours asked

 8     for a meeting with General Tolimir.  Now, was that put off because the

 9     air force was being deployed on that day?  Is that why there were no

10     meetings on the 11th?  Thank you.

11        A.   Well, based on previous statements from you, I understood that

12     there was an arrangement to meet on July 12th, but once again, I have no

13     recollection of that.  Clearly though, even if there was an arrangement

14     to meet on the 11th --

15        Q.   Thank you.

16        A.   -- you don't convene meetings at the moment that you are planning

17     to have an air-strike at a certain site at the same time.

18        Q.   Thank you, General.  I asked you because I owed you an answer

19     from yesterday.

20             THE ACCUSED: [Interpretation] Mr. Thayer wanted me to be specific

21     about the date.  He can look at document P585, page 115 in Serbian, where

22     Mr. Fortin speaks about the time and place when the meeting was held.

23     Thank you.

24             MR. TOLIMIR: [Interpretation]

25        Q.   And my next question is this.

Page 4185

 1             THE ACCUSED: [Interpretation] Can the court please produce your

 2     statement which is D70.  Page 13, paragraph 5, lines 10 through 14.

 3     Thank you.  Thank you, I'm now reading the lines that I specified.

 4             MR. TOLIMIR: [Interpretation]

 5        Q.   "On the 11th of July, I informed the Dutch minister of defence

 6     about the planned evacuation, our intention to use UNPROFOR trucks, and

 7     he agreed with that.  The evacuation started at 1200 hours on Wednesday,

 8     the 12th of July.  Mladic ensured a lot of buses for this process.  It

 9     was all very well prepared."

10             And my question is this, thank you:  General, is this true, what

11     you stated in your statement?  That's one question.  And the second

12     question is, did you inform Mr. Karremans, as he stated in one video-clip

13     that we are not going to watch now, that the civilian population would be

14     evacuated from Srebrenica?  Thank you.

15        A.   What the statement -- as the statement reads is correct, and it's

16     also correct that I notified General Karremans about that.

17        Q.   Thank you, General.  Do you know that Mladic learned of that from

18     Karremans and that Karremans told him, I have just spoken with

19     General Nicolai and he is in favour of evacuation?  Was that video-clip

20     shown to you by the Prosecution?  Did Karremans inform you about that

21     meeting with Mladic?  Thank you.

22        A.   I did not see the video-clip, but I spoke to Karremans before he

23     entered the negotiations with General Mladic, and after the meeting I

24     spoke with him as well regarding the outcome of it.

25        Q.   Thank you, General.  So much about the evacuation and how it

Page 4186

 1     started.

 2             THE ACCUSED: [Interpretation] And can the court now please

 3     produce the transcript dated 23 June, page number 3133, lines 3 through

 4     15.  That's Colonel Fortin's testimony before this Trial Chamber.

 5             MR. TOLIMIR: [Interpretation]

 6        Q.   You can read it for yourself, I believe.

 7        A.   If you tell me which paragraph is involved, I'll read it as

 8     quickly as possible.

 9        Q.   From 3 to 15, everything he answered to the questions put to him

10     will be said here.  I don't want to read everything because then the

11     interpreters will have to interpret and you can read it for yourself from

12     3 to 15.  And now --

13        A.   [Previous translation continues] ...

14        Q.   -- I would just like to quote from 11 to 15 and then I will have

15     a question for you.  This is his answer.  As far as I can remember --

16             JUDGE FLUEGGE:  Mr. Tolimir, the witness has read this portion.

17     Just go ahead and put your question.

18             THE ACCUSED: [Interpretation] Thank you.

19             MR. TOLIMIR: [Interpretation]

20        Q.   Was it an UNPROFOR policy to punish only the Serbs as Mr. Fortin

21     says in lines 11 through 15, and did UNPROFOR consider the Serbs the only

22     aggressor in the war?

23        A.   I don't know exactly what Fortin said but it was definitely not

24     UN policy to punish only the Serbs.  We punished only those who at a

25     certain point attacked UNPROFOR.  The Serbs were definitely not the only

Page 4187

 1     aggressor in that war but they were the only ones who attacked UNPROFOR,

 2     and that's the reason why they were the only ones who had to fear

 3     air-strikes.

 4        Q.   Thank you, General, sir.  If you have read lines 3 to 15

 5     properly, I ask them how come the Muslims had not been punished for

 6     attacking the demilitarised zone on Mount Igman and when they attacked

 7     Serbian villages across that zone and killed the civilians.  He answered

 8     me that the Muslims could not be bombed because they used the same space

 9     as you did, and that the air-strikes that were undertaken were intended

10     for Serbs only.  Thank you.

11        A.   I'll repeat what I just said.  The Security Council Resolutions

12     allow each of the -- allow each of the parties that either attacks

13     UNPROFOR or deliberately shells the civilian population, they allow air

14     force to be used against such parties.  And if the situation gives cause,

15     then the air force will be deployed, and that could also be the case

16     against the Bosnian troops.

17        Q.   Thank you, General, sir.  And my last question for you, I invite

18     you to comment the following answer:

19             "As far as I can remember, we punished only Serbs because we

20     considered them aggressor during the war."

21             Could you please comment upon that.  I leave it to you whether

22     you will or whether you won't.  If you don't want to comment, then my

23     cross-examination is over.  Thank you.

24        A.   My answer is brief.  That remark is nonsense.

25             THE ACCUSED: [Interpretation] Thank you, General.  I apologise to

Page 4188

 1     you and to Mr. Thayer who said yesterday that my behaviour was

 2     inappropriate.  I apologise to the Trial Chamber and the interpreters for

 3     having spoken too fast.  And I particularly apologise to my legal advisor

 4     who had to suffer my inappropriate behaviour.  So apologies to all.  This

 5     brings my cross-examination to an end.  Thank you.

 6             JUDGE FLUEGGE:  Thank you very much for your very kind words,

 7     especially for your legal advisor.

 8             Mr. Thayer, is there any merit in starting the re-examination

 9     now?

10             MR. THAYER:  Yes, there is, Mr. President.  I think I can finish

11     possibly in five minutes.  I've greatly reduced my redirect in the hopes

12     earlier that we could get General Nicolai home.

13                           Re-examination by Mr. Thayer:

14        Q.   Just a couple of quick questions for you, General.  The first one

15     is:  You used the term "displacement of convoys" a number of times.  It

16     may be a translation issue, can you just briefly tell the Trial Chamber

17     when you say "displacement of convoys," just what are you talking about?

18     What does that word itself mean?

19        A.   I mean carrying out convoys by displacing, transporting a group

20     of vehicles.

21        Q.   Okay.  You also used the term "handgun" a number of times, at

22     least that's how it's been interpreted.  You've mentioned that while the

23     Muslim fighters didn't have heavy weapons, you certainly didn't rule out

24     the fact that or the information that they still had handguns.  Where I

25     come from back in the States, a handgun literally means something that

Page 4189

 1     you hold in your hand like a pistol.  Did you mean that they only had

 2     pistols or did you mean something else when we use that term "handgun"?

 3        A.   I'm happy you are asking this question.  There were discussions

 4     previously about the meaning of heavy weapons.  Hand fire-arms, handguns

 5     were all weapons not identified as heavy weapons.  I mean not only

 6     pistols or revolvers, I also mean guns.  All other things, mortars,

 7     missiles, air defence, artillery and tanks are considered to be heavy

 8     weapons, regardless of the calibre.

 9        Q.   Now, yesterday you were asked some questions by General Tolimir

10     and you spoke a little bit about the concept that things weren't always

11     as they seemed, as you learned during your time in Bosnia.  And in

12     particular, and this is at transcript page 4050, you were asked about

13     what Colonel Karremans was reporting to you, and you allowed for the

14     possibility that some of the information that he was relating to you

15     deviated from what was actually happening on the ground.  And then you

16     used the example from your time in Sarajevo to illustrate your point.

17             My question to you is, and I'll pause for a second to let the

18     interpreters catch up.  First, regarding the humanitarian situation in

19     the Srebrenica enclave, do you have any evidence to suggest that what

20     Colonel Karremans was transmitting to you, the information he was

21     reporting to you, in the months leading up to and including the attack on

22     Srebrenica regarding the humanitarian situation, was inaccurate?

23        A.   No.  The information was accurate, and I'm thinking of other

24     sources such as the UNMOs as well as information that arrived via other

25     intelligence channels that confirms this.

Page 4190

 1        Q.   And same question, do you have any evidence to suggest that the

 2     information that Colonel Karremans was reporting to you concerning the

 3     effects of the VRS convoy restrictions on DutchBat's capabilities was

 4     inaccurate?

 5        A.   No.  Even without information from Colonel Karremans, I could

 6     personally ascertain that the situation had deteriorated considerably.

 7        Q.   And my last question to you, General, is:  During the

 8     time-period, the events between, say, 6 July and 12 July, during the VRS

 9     attack on the enclave, do you have any evidence to suggest that the

10     information that Colonel Karremans was transmitting to you about what was

11     happening on the ground was inaccurate?

12        A.   No, definitely not.

13             MR. THAYER:  General, I thank you.  And I have no further

14     questions.

15             JUDGE FLUEGGE:  Thank you very much, Mr. Thayer.

16             Due to the very appreciated co-operation by the parties, you,

17     Mr. Nicolai, will be pleased to hear now it concludes your examination

18     after a long period before the summer recess and now this week.  Thank

19     you very much.  We all have to thank you for your attendance here, for

20     your information you were able to provide, and we wish you all the best.

21     You are free now to return to your normal activities.  And I would like

22     to thank you again on behalf of the whole Chamber and the parties.  Thank

23     you.

24             THE WITNESS: [Interpretation] Thank you.  It was my pleasure to

25     contribute in this case.

Page 4191

 1             JUDGE FLUEGGE:  Thank you.

 2                           [The witness withdrew]

 3             JUDGE FLUEGGE:  Surprisingly, we have some minutes left.  It was

 4     not expected.  We were dealing these days with several matters with the

 5     following witnesses.  In respect to Witness PW-070, we don't have a

 6     decision yet.  The Chamber will try to render a written decision as soon

 7     as possible, but it will not be before the outset of the -- before the

 8     beginning of the hearing of tomorrow.  Therefore we can't start with that

 9     witness.

10             Furthermore, the Chamber is presently seized of the Prosecution's

11     motion for leave to amend the witness list, admission of evidence

12     pursuant to Rule 92 ter, and protective measures, which was filed on the

13     15th of July, and hereby renders its partial decision thereon.

14             The Prosecution submits that this motion was prompted by a recent

15     review of its intercept evidence, wherein it was noted that the

16     conversations intercepted by PW-049 and another proposed witness are, in

17     the view of the Prosecution, sufficiently proximate to the acts and

18     conduct of the accused to warrant both PW-049's and the other proposed

19     witness's appearances in court for the purposes of cross-examination.

20     Given the urgent nature of the motion, the Chamber finds it most

21     expedient to first address the Prosecution's motion in relation to PW-049

22     and will render a decision on the motion in relation to the other witness

23     as soon as it is practicable.

24             In relation to PW-049, the Prosecution specifies that this

25     witness's prior testimony has already been admitted by the Chamber

Page 4192

 1     pursuant to Rule 92 bis (A), along with two exhibits which were admitted

 2     through PW-049 in the prior proceeding, the Popovic et al. case.

 3     However, the Prosecution recently identified this witness as the operator

 4     who recorded and transcribed two additional intercepts listed on its

 5     Rule 65 ter exhibit list.  One of these additional intercepts mentions

 6     the accused, and it is on the basis -- on this basis that the Prosecution

 7     now moves to admit his Popovic testimony and associated exhibits pursuant

 8     to Rule 92 ter, to call PW-049 to appear for cross-examination and to

 9     supplement PW-049's Rule 92 ter package with the addition of his

10     statement dated 26th of February, 2007.

11             The Prosecution submits that the accused will not be prejudiced

12     in any way by the admission of PW-049's evidence pursuant to Rule 92 ter,

13     as the accused has had notice of the Prosecution's intent to rely on the

14     additional intercepts, which were listed in the Prosecution's 65 ter

15     exhibit list, and has been aware of the material which the Prosecution

16     proposed for admission through this witness since the Prosecution's

17     filing of its 92 bis submission which occurred in February 2009.  The

18     Prosecution emphasises that this impetus behind the motion is to allow

19     the accused the opportunity to fully cross-examine this witness, which

20     will advance the interests of justice.

21             However, the accused objects to the admission of PW-049's

22     evidence pursuant to Rule 92 ter for several reasons.  First, the accused

23     submits that the Chamber reached the appropriate decision when it decided

24     to admit the witness's evidence pursuant to Rule 92 bis A, and notes that

25     the Prosecution has not advanced any argument that the Chamber erred in

Page 4193

 1     making this determination.  The accused suggests that a more appropriate

 2     avenue for challenging the Chamber's determination in the Rule 92 bis

 3     decision would have been to request leave to appeal the decision.

 4     Second, the accused submits that the timing of the motion does not leave

 5     him sufficient time to prepare for cross-examination should the Chamber

 6     grant the motion.

 7             I'm now referring to the oral submissions by the parties earlier

 8     today and I don't want to repeat it because of the time restraints.

 9             The Chamber shares the concern of the accused regarding the

10     practice of the Prosecution in scheduling the appearance of witnesses

11     before the Chamber has taken a decision on pending motions regarding such

12     witnesses's appearance.  In the Chamber's view, this practice is not

13     satisfactory and I add it creates many problems this week.

14     Notwithstanding the unfortunate timing of this motion, the Chamber notes

15     that, contrary to the assertion of the accused, the Prosecution filed the

16     motion on the basis of having recently identified PW-049 as the operator

17     who recorded and transcribed two additional intercepts which were not

18     included in the Prosecution's 92 bis motion.  Moreover, the motion is

19     aimed at providing the accused with an opportunity to cross-examine

20     PW-049 which the accused, in fact, requested in his response to the

21     92 bis motion.

22             Nevertheless, the Chamber is mindful that the prior testimony of

23     this witness along with the exhibits which were admitted through him in

24     the Popovic case were already admitted pursuant to the Chamber's 92 bis

25     decision under Rule 92 bis A.  Accordingly, the question before the

Page 4194

 1     Chamber is whether this witness's prior testimony in the Popovic case

 2     along with the associated exhibits as well as his statement dated the

 3     26th of February, 2007, should be now admitted pursuant to Rule 92 ter.

 4     For the reasons outlined by the Prosecution, the Chamber is convinced

 5     that they should.

 6             With regard to the two additional intercepts recently identified

 7     by the Prosecution, the Chamber notes that although they are not proposed

 8     for admission pursuant to Rule 92 ter, the Prosecution remains free to

 9     use these additional intercepts with the witness when he appears for

10     cross-examination.

11             The Trial Chamber therefore decides that the transcript of

12     PW-049's testimony in the Popovic case along with the associated exhibits

13     as well as the witness statement dated 26th February 2007 shall be

14     admitted pursuant to Rule 92 ter pending the witness's fulfillment of the

15     conditions set out in Rule 92 ter.

16             As regards the question of the timing of the witness's testimony,

17     the Chamber reiterates its concern that the accused have sufficient time

18     to prepare for cross-examination.  However, in the instant case, the

19     Prosecution notes that the accused has been on notice of the

20     Prosecution's motion to convert the witness to a Rule 92 ter witness

21     since the 6th of August, 2010, when the motion was provided to the

22     accused in a language which he understands.

23             Moreover, the additional intercepts proposed by the Prosecution

24     number only a few pages, and the accused has already had occasion to

25     review the witness's testimony in the Popovic case in connection with its

Page 4195

 1     response to the Prosecution's Rule 92 bis motion, which was filed

 2     approximately one year ago.  Accordingly, under these exceptional

 3     circumstances, the Chamber will permit the witness to testify as

 4     scheduled, that means likely tomorrow.  However, if the accused considers

 5     himself so ill prepared as a result of the timing of the motion that he

 6     is unable to conduct cross-examination, the Chamber may consider a

 7     request to reschedule the remainder of his testimony.

 8             Mr. Thayer.

 9             MR. THAYER:  Mr. President, just so the Trial Chamber knows, that

10     witness is -- will be available on Monday to resume or to begin

11     cross-examination depending on the circumstances.  So he is already on

12     notice that he may need to be available for Monday as well.  And with

13     respect to the prior witness, should the Trial Chamber so decide, that

14     witness, the one that had the Rule 70 issues, is still available to

15     testify should the Court so order.

16             JUDGE FLUEGGE:  Mr. Thayer, we should start with the witness

17     PW-049 tomorrow morning, this is the best way.

18             MR. THAYER:  Yes.

19             JUDGE FLUEGGE:  You can't be sure and we can't -- there's a lot

20     to consider in relation to the other witness and you can't be sure that

21     this will be done in the course of today.

22             MR. THAYER:  Yes.  Understood, Mr. President.  I just meant to

23     say that certainly the witness will be available to begin his -- to do

24     his direct tomorrow, PW-049.  I just meant to say should the accused need

25     more time, he will definitely be available on Monday for that.

Page 4196

 1             JUDGE FLUEGGE:  This is very helpful.  Thank you very much,

 2     Mr. Thayer.

 3             Do you want to comment on that, Mr. Tolimir?

 4             THE ACCUSED: [Interpretation] I wish to say this:  In his

 5     explanation, the Prosecutor said that he testifies about acts.  There's

 6     no problem to hear his testimony because he can't speak of any acts.

 7     There were no acts at all, so we will in any case see and hear all that

 8     during his testimony.  Thank you.

 9             JUDGE FLUEGGE:  In that case, we will hear first tomorrow the

10     witness PW-049.  Thank you very much for your contribution to be able to

11     finish the hearing of today.  We adjourn and resume tomorrow morning in

12     this courtroom at 9.00.

13                           --- Whereupon the hearing adjourned at 1.55 p.m.,

14                           to be reconvened on Friday, the 20th day of August,

15                           2010, at 9.00 a.m.