Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10499

 1                           Monday, 28 February, 2011

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.17 p.m.

 5             JUDGE FLUEGGE:  Good afternoon to everybody in the courtroom.  We

 6     received a message from the Prosecution about some translations which are

 7     uploaded.  Mr. Elderkin, good afternoon.

 8             MR. ELDERKIN:  Good afternoon, Your Honours.  Yes, there are four

 9     translations that have been uploaded.  If I could just read out the

10     numbers of the exhibits which are previously marked for identification.

11     P1309, P1362, P1463, and P1571B.

12             JUDGE FLUEGGE:  Thank you very much.  They will now be exhibits

13     with these numbers.  If there are no other matters to raise before the

14     witness is entering the courtroom?

15             MR. ELDERKIN:  I'd just like to ask the Court if this witness

16     could be given a Rule 90(E) warning, and I understand his protective

17     measures have been announced but he is a witness who has a pseudonym and

18     image distortion.

19             JUDGE FLUEGGE:  Thank you very much.  To enable the witness to

20     enter the courtroom, we go into closed session.

21                           [Closed session]

22     (redacted)

23     (redacted)

24     (redacted)

25     (redacted)


Page 10500

 1                           [Open session]

 2             THE REGISTRAR:  We are in open session, Your Honours.

 3             JUDGE FLUEGGE:  Thank you very much.  Again, welcome to the

 4     courtroom, sir.  Would you please read aloud the affirmation on the card

 5     which is shown to you now.

 6             THE WITNESS: [Interpretation] I solemnly declare that I will

 7     speak the truth, the whole truth, and nothing but the truth.

 8             JUDGE FLUEGGE:  Thank you very much.  Please sit down and make

 9     yourself comfortable.  Like in the last trial when you were present as a

10     witness, there are protective measures in place for you.  You will be

11     addressed by a pseudonym and nobody outside the courtroom will recognise

12     you by face.

13             On the request of the Prosecution, I would like to caution you.

14     We have in our rules of procedures and evidence the Rule 90(E) which I

15     would like to read out to you so that you know about your rights.  I

16     quote:

17             "A witness may object to making any statement which might tend to

18     incriminate the witness.  The Chamber may, however, compel the witness to

19     answer the question.  Testimony compelled in this way shall not be used

20     as evidence in a subsequent Prosecution against the witness for any

21     offence other than false testimony."

22             Did you understand that, sir?

23             THE WITNESS: [Interpretation] I understood it.

24             JUDGE FLUEGGE:  Thank you very much.

25             Mr. Elderkin, your examination in chief, please.

Page 10501

 1             MR. ELDERKIN:  Thank you, Mr. President.

 2                           WITNESS:  PW-059

 3                           [Witness answered through interpreter]

 4                           Examination by Mr. Elderkin:

 5        Q.   And good afternoon to you, witness.  As you know my name is

 6     Rupert Elderkin, before we get started just like to ask you to speak

 7     slowly and leave a pause as necessary for the interpreters to keep up

 8     with your answers.  And if there's anything that I ask you that's

 9     unclear, then please let me know and I'll do my best to rephrase my

10     question.

11             MR. ELDERKIN:  Could we please see 65 ter 7206.  And that should

12     not be broadcast.

13        Q.   Sir, without saying aloud what is written on the screen, please

14     can you confirm if that is your name?

15        A.   Yes.

16             MR. ELDERKIN:  Your Honours, I'd like to ask for the pseudonym

17     sheet to be admitted under seal, please.

18             JUDGE FLUEGGE:  It will be received under seal.

19             THE REGISTRAR:  65 ter number 07206, the pseudonym sheet would be

20     assigned P01942 under seal.

21             MR. ELDERKIN:

22        Q.   Sir, do you recall testifying at this Tribunal during the course

23     of two days in April of 2007?

24        A.   Yes.

25        Q.   Have you had a chance to review that testimony recently?

Page 10502

 1        A.   Yes.

 2        Q.   Does your testimony fairly and accurately reflect what you would

 3     say if you were to be examined here today and if you were asked the same

 4     questions?

 5        A.   As far as I know, it was all correct, yes.

 6             MR. ELDERKIN:  Your Honours, I'd at this point ask to have the

 7     witness's prior testimony admitted, and that's 65 ter numbers 6634 which

 8     is the confidential testimony under seal, and 6635, the public

 9     transcript, along with the associated exhibits which were indicated in

10     the exhibit list for this witness.  And if necessary I can read out their

11     65 ter numbers as well.

12             JUDGE FLUEGGE:  We'll start with the two transcripts, they will

13     be received.  The first one 6634 under seal.

14             THE REGISTRAR:  That, Your Honours, would be assigned P01943

15     under seal.  And the other transcript under 65 ter number 06635 would be

16     assigned P01944.

17             JUDGE FLUEGGE:  Now we turn to the five documents previously

18     admitted in the previous trial.  6636 through 6679, they will be received

19     as well, the first one under seal.

20             THE REGISTRAR:  Your Honours, 65 ter number ...

21                           [Trial Chamber and Registrar confer]

22             THE REGISTRAR:  65 ter number 06636 would be assigned P01945

23     under seal, 65 ter number 03380 would be assigned P01946.  65 ter number

24     06637 will be assigned P01947, 65 ter number 03379 will be assigned

25     P01948.

Page 10503

 1             JUDGE FLUEGGE:  Mr. Elderkin, please continue.

 2             MR. ELDERKIN:  Thank you.  And if I may now read a short summary

 3     of the witness's evidence, and this can remain in open session.

 4             The witness, who is of Serb ethnicity, was a member of the VRS

 5     Zvornik Brigade's Military Police Company in 1995.  The company commander

 6     was Lieutenant Miomir Jasikovac.  One day in July 1995, the witness was

 7     on duty at the Sepak border crossing.  At around 11.00 a.m. he received a

 8     telephone call from Lieutenant Jasikovac to go to Rocevic.  He went there

 9     in a private vehicle and found two or three of his colleagues already

10     there.  He was told to set up a check-point on the road leading towards

11     the school, to check passing vehicles and keep civilians away.  When the

12     witness arrived, there was a group of around 20 to 30 Serb civilians, who

13     the witness kept away from the school.  There were other soldiers at the

14     school, where a group of Muslim prisoners from Srebrenica were being

15     held.  The Serb civilians were swearing and shouting.  They wanted to

16     enter the school for revenge.

17             While the witness was at the check-point a couple of vehicles

18     passed by, coming from the direction of the main road.  One of the cars

19     stopped.  The witness heard later that the Zvornik Brigade security

20     officers Drago Nikolic and Trbic (presumably Captain Milorad Trbic) had

21     come and told the soldiers that everything must be kept under control.

22     The witness did not personally see Drago Nikolic, but he did see Trbic

23     across from the check-point in the school-yard.

24             The witness left Rocevic at around 1700 hours.  Later, at the

25     Zvornik Brigade headquarters, at around 1830 hours, the witness saw some

Page 10504

 1     people upstairs wearing camouflage uniforms.  He asked who they were and

 2     was told, "Well, the commander has a meeting with Popovic and Beara."

 3             While the witness and his colleagues were talking,

 4     Lieutenant Jasikovac was present and he said, "What do you need to know

 5     who is up there?  None of your business."  And told them to quieten down.

 6     The witness saw that Popovic had a mustache, but he did not see Beara.

 7     The witness only went to Rocevic on one day in July 1995.  He believes

 8     that the date was the 11th of July.

 9             Your Honours, I'd like to ask the witness now a few additional

10     questions, if I may.

11             JUDGE FLUEGGE:  Yes, please.

12             MR. ELDERKIN:

13        Q.   Sir, please tell us who was the Military Police Company

14     administrative clerk in 1995?

15        A.   You are asking me?

16        Q.   Yes, sir.

17        A.   All right.  Now, I don't know whether he was the non-commissioned

18     officer or what, but it was Stevo Kostic, he was the officer of the the

19     company.

20             MR. ELDERKIN:  I'd like, please, to have Exhibit P1754 on the

21     screen.  And that should not be broadcast.  And if we could go to the

22     second page of this document.  Or in fact, sorry, page 3 even, in

23     e-court.  The second page is a blank page.  And if possible, if we could

24     zoom in on the top left-hand corner of that, just so we can see the names

25     more clearly.

Page 10505

 1        Q.   Sir, do you recognise this document?

 2        A.   Yes.

 3        Q.   What is it?

 4        A.   Well, this is the daily log of the presence at duty.

 5             MR. ELDERKIN:  And if we could just scroll across to the top

 6     right-hand corner.

 7        Q.   Can you tell us for what period is this the daily log?

 8        A.   It says July 1995 here.

 9             MR. ELDERKIN:  I'd like to ask at this time if the witness could

10     be shown the original of the document.  A lot of the markings on the

11     paper are in pencil and they are much easier to see in the original.

12     Also offer that at this time if the Defence, or also Your Honours, would

13     like to scrutinise the document.  I've, indeed, also brought a

14     magnifying-glass.

15             JUDGE FLUEGGE:  It should be given to the Defence first with the

16     assistance of the court usher, and then to the witness.

17             MR. ELDERKIN:  Your Honours, for your information there is an

18     English translation of this document in e-court but after the first page

19     where it comprises just a list of names, then I'm not sure that it would

20     assist.  It maybe easier simply to have the B/C/S on screen.

21        Q.   Sir, if you could please turn to the page of the document which

22     I've marked with the sticker number 1, so I think it should be the second

23     of the pages in front of you.  And that should now be the same as the

24     page which we had on the screen a moment ago.  Sir, do you see your

25     company commander's name on this list?

Page 10506

 1        A.   Yes.

 2        Q.   Tell us where it appears on the list, please?

 3             JUDGE FLUEGGE:  Mr. Tolimir.

 4             THE ACCUSED: [Interpretation] Thank you, Your Honour.  I actually

 5     only wanted for the list to be moved on the screen but now it was already

 6     done.

 7             JUDGE FLUEGGE:  Thank you very much.

 8             Mr. Elderkin.

 9             MR. ELDERKIN:

10        Q.   Sir, can you tell us, please, where your company commander's name

11     appears on this list?

12        A.   It's number 1.

13        Q.   And you also just mentioned a moment ago Stevo Kostic as the

14     company's administrative clerk.  Can you tell us, please, if you see his

15     name on this list?

16        A.   It's number 3.

17        Q.   Thank you.  And would you please now look across the line of

18     markings to the right of the company commander Miomir Jasikovac.  So

19     underneath the numbers we have there 1, 2, 3, 4, et cetera.  And I'd like

20     to ask you to look carefully, please, at the entry under the date for the

21     15th.  Can you tell us, first of all, what is marked there under the 15th

22     for Jasikovac?

23        A.   I see a letter T, but what it means I wouldn't know.

24        Q.   Now looking carefully, can you see if something was written there

25     before the T was put on?  If you need to use the magnifying-glass, please

Page 10507

 1     do so as well.

 2        A.   I can see R in Latin alphabet or something like that.

 3        Q.   Okay.

 4             MR. ELDERKIN:  And could we now please have page 7 of the

 5     document in e-court on the screen.

 6        Q.   And for you, sir, that would be the sticker number 2 that is

 7     marked on the copy you have in front of you.  So again without reading it

 8     out loud, can you see your name on this page?

 9        A.   There is.

10        Q.   Can you tell us which number of the list it appears at, please?

11        A.   79.

12        Q.   Sir, could you now look across at the entries written across to

13     the right of your name.  First of all, could you tell us what are the

14     entries indicated for your name between the 1st and the 11th?

15        A.   I think it's number 6 but I wouldn't know what it means.

16        Q.   Then, sir, after the 11th, could you just tell us what are the

17     next few entries for your name?

18        A.   Letter T, just as the others that you can see above.

19        Q.   Do you see the letter T for the entries under 12, 13, 14 and 15?

20        A.   Yes.

21        Q.   Now, could you look closely please at the entry under 15 against

22     your name, and can you see if something was written there before?  Again,

23     please feel free to use the magnifying-glass if necessary.

24        A.   It's similar.  It's similar to other corrections.  It seems that

25     there may have been an R there before.

Page 10508

 1        Q.   Okay.

 2             MR. ELDERKIN:  And could we now please see the next page in

 3     e-court, page 8.  And this time it might help to have the English

 4     translation alongside if that's possible, and that would be page 5 of the

 5     English translation.

 6        Q.   And, sir, that's the back of the page that you are looking at if

 7     you just turn over that page.  Mr. Witness, if you turn over the page in

 8     front of you.  And there you should see some pencil writing on the

 9     left-hand side of the sheet.

10             Sir, you've just identified some of the markings that were beside

11     your name including the number 6 and the letter T, can you see from this

12     page what those letters mean on the log?

13        A.   It probably means that he, the administrative clerk, used some

14     sort of abbreviations in order for to know who was there or something

15     like that.

16        Q.   Can you see what the abbreviation T represents according to this

17     page in front of us?

18        A.   Some sort of a field duty.

19        Q.   And how about the number 6?

20        A.   I don't know.  I wouldn't be able to say that.

21        Q.   Sir, do you see the word "batagoni" next to a large bracket about

22     halfway down the list?

23        A.   Yes, I can see it.

24        Q.   And can you tell what it says to the left of that, please?

25        A.   It's numbers from 1 to 7.

Page 10509

 1        Q.   Sir, can you see beneath the letter T for "teren" what appears to

 2     be a blank space on the list?  Underneath the T, "teren," and then if you

 3     look beneath that you see TZ, "teren Zepa."  Between "teren" and

 4     "teren Zepa" do you see a blank line?

 5        A.   Yes, there is a bit more space here.

 6        Q.   I'd ask you again, please, to look carefully at that space, if

 7     necessary with a magnifying-glass, and see whether you can identify

 8     anything that was previously written in that space?

 9        A.   Well, it looks something like O, and then there's a dash, and

10     then Orahovici or Orahovica or something to that effect.

11        Q.   Anywhere on this list that you can see what the code letter R

12     represented?

13        A.   Well, I can't see it on this page, there is no R.

14        Q.   Do you know what it represented?

15        A.   Well, I can't really speculate.  I don't know what this

16     administrative officer meant by it, administrative clerk.  I don't know.

17        Q.   Could it mean Rocevic?

18        A.   Well, it's possible.  It could.  But it doesn't appear on the

19     list anywhere whereas we see that all the other field duties do appear on

20     the list.

21        Q.   Sir, could you please take a moment to look through the three

22     pages, so the back, the other side of the page you are currently looking

23     at, and the other two pages which have names on them and see if you

24     recognise the names of any of your colleagues who were with you the day

25     in July of 1995 when you were on duty at Rocevic?

Page 10510

 1        A.   Well, there are a lot of names here and it's really hard to

 2     remember each one of them here now.

 3        Q.   Well, sir, did you see any of the following MPs while you were on

 4     duty at Rocevic.  First, Dragoje Ivanovic?

 5        A.   I can't recall.  I really can't recall the first names of these

 6     people.

 7        Q.   How about Predrag Ristic?

 8        A.   Well, that name is completely unfamiliar.  I don't know.

 9        Q.   How about Zeljko Stevanovic, was he with you the day you were at

10     Rocevic?

11        A.   Well, anything I say now I could go wrong.  I really can't

12     remember the names.

13        Q.   If I may, I'd just like to say the last names as well,

14     Milomir Simic, Stanoje Bucakovic, Sladjan Jokic, were any of those men

15     with you or were they -- any of those men at Rocevic the day you were

16     there?

17        A.   Probably they were.  There were some other three men but I can't

18     really recall their names, so I can't tell you specifically whether they

19     were the ones.

20        Q.   Sir, did you see Lieutenant Jasikovac while you were on duty that

21     day at Rocevic?

22        A.   No, I didn't.

23             MR. ELDERKIN:  Your Honours, could we go into private session,

24     briefly, please.

25             JUDGE FLUEGGE:  Yes, private.

Page 10511

 1                           [Private session]

 2     (redacted)

 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 10512

 1     (redacted)

 2     (redacted)

 3     (redacted)

 4     (redacted)

 5     (redacted)

 6                           [Open session]

 7             THE REGISTRAR:  We are in public session, Your Honours.

 8             JUDGE FLUEGGE:  Thank you.

 9             Mr. Elderkin, please continue.

10             MR. ELDERKIN:  In fact, Your Honours, and witness, that concludes

11     my examination-in-chief.  I don't have any further questions at this

12     time.

13             JUDGE FLUEGGE:  Thank you very much.

14             Mr. Tolimir, now it's your time for commencing the

15     cross-examination.

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

17     there be peace in this house for all those present and may God's will be

18     done in these proceedings, and may the outcome be as God wishes and not

19     as I wish.  And I also would like to wish a safe journey home to this

20     witness, and just to add that I have no questions for this witness in

21     view of the fact that Mr. Elderkin explored all the issues that I would

22     have explored.

23             Thank you, Mr. President.  I am done with this witness.

24             THE WITNESS: [Interpretation] Thank you.

25             JUDGE FLUEGGE:  Thank you very much.

Page 10513

 1             Mr. Elderkin, there's no room for re-examination, I suppose.

 2             MR. ELDERKIN:  Based on the absence of any cross-examination,

 3     Your Honours, absolutely not.

 4             JUDGE FLUEGGE:  Sir, surprisingly early, you will be pleased to

 5     realise that this concludes your examination here in the courtroom.

 6     Thank you very much that you came to The Hague again and to provide us

 7     with your knowledge.  Now you are free to return to your normal activity

 8     and the court usher will assist you.

 9             We go into closed session to enable you to leave the courtroom.

10                           [Closed session]

11     (redacted)

12     (redacted)

13     (redacted)

14     (redacted)

15     (redacted)

16     (redacted)

17                           [Open session]

18             THE REGISTRAR:  We are in open session, Your Honours.

19             JUDGE FLUEGGE:  Mr. Elderkin.

20             MR. ELDERKIN:  Your Honours, I understand that the next witness

21     is currently being brought over from his hotel so unfortunately he is not

22     able to start immediately, and I would ask whether we might be able to

23     take a break now, that's enough time for him to get here, and also given

24     the slightly more cramped surroundings, it might make the change-over for

25     the Prosecution team slightly easier.

Page 10514

 1             JUDGE FLUEGGE:  I think this is a reasonable suggestion.  What do

 2     you think, when can we start again?

 3             MR. ELDERKIN:  Would a 20 minute break be possible, and then I

 4     understand that should be fine?

 5                           [Trial Chamber confers]

 6             JUDGE FLUEGGE:  I think it would be reasonable to have the normal

 7     first break now and we will resume at half past 3.00, then we will manage

 8     to finish at 7.00 as well.

 9             MR. ELDERKIN:  Thank you very much, Your Honours.

10                           --- Recess taken at 2.57 p.m.

11                           --- On resuming at 3.31 p.m.

12             JUDGE FLUEGGE:  Good afternoon, Mr. Thayer.  Welcome to the

13     courtroom.  Is the next witness ready?

14             MR. THAYER:  Good afternoon, Mr. President.  Good afternoon to

15     Your Honours.  Good afternoon to the Defence, everyone in the courtroom.

16             Yes, the witness is ready.  We snatched him from the hotel to

17     bring him over.

18             JUDGE FLUEGGE:  He should be brought in.

19                           [The witness entered court]

20             JUDGE FLUEGGE:  Good afternoon, sir.  Welcome to the courtroom.

21             THE WITNESS:  Thank you.

22             JUDGE FLUEGGE:  Could you please read the solemn declaration on

23     the card which is shown to you now.

24             THE WITNESS:  Yes.  I solemnly declare that I will speak the

25     truth, the whole truth, and nothing but the truth.

Page 10515

 1             JUDGE FLUEGGE:  Thank you very much.  Please sit down and make

 2     yourself comfortable.  Mr. Thayer for the Prosecution has questions for

 3     you.

 4             Mr. Thayer.

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

 6                           WITNESS:  EDWARD JOSEPH

 7                           [Witness answered through interpreter]

 8                           Examination by Mr. Thayer:

 9             MR. THAYER:

10        Q.   Good afternoon, sir.

11        A.   Good afternoon.

12        Q.   Could you please just state your name for the record?

13        A.   Yes, my name is Edward Paul Joseph.  My last name is Joseph.

14        Q.   Do you recall testifying in this building for a little over two

15     days in August of 2007?

16        A.   I do.

17        Q.   Did you recently read that testimony?

18        A.   I did.

19        Q.   Can you attest that the transcript that you read accurately

20     reflected what you said during that testimony in that prior case, the

21     Popovic case?

22        A.   Yes, I can.

23        Q.   We speak the same language, so I'll try to slow down a little bit

24     first and also we need to leave a pause between my questions and your

25     answers and I think that will be helpful to everybody.

Page 10516

 1             Now, sir, can you attest that were you asked the same questions

 2     today, which you were asked back in August of 2007, that your answers

 3     would be the same.

 4        A.   I can so attest that my answers would be --

 5                 MR. THAYER:  Mr. President, the --

 6             THE WITNESS:  Within -- within the bounds of reason.  I can't say

 7     that verbatim my words would be a hundred per cent identical, but the

 8     meaning, I believe, would be the same.

 9        Q.   Understood.

10             MR. THAYER:  And Mr. President, the Prosecution would tender

11     65 ter 7194.

12             JUDGE FLUEGGE:  It will be received.

13             THE REGISTRAR:  And that, Your Honours, will be assigned P01949.

14             MR. THAYER:  Mr. President --

15             JUDGE FLUEGGE:  I think this is a mistake.  It should be 1950.

16     We have received with the last witness the last one ...

17                           [Trial Chamber and Registrar confer]

18             JUDGE FLUEGGE:  Everybody told me I was wrong, so it is the

19     correct number.

20             THE WITNESS:  Sir, if I could just one small qualification, but

21     these are serious formal proceedings so I want to be very, very precise.

22     There were, as I reviewed my testimony, there were occasional cases where

23     my memory wasn't clear and it was refreshed by the presentation to me of

24     various documents, so to answer the question would my answers have been

25     the same, my answers would be the same with the benefit also of having my

Page 10517

 1     memory then refreshed with various documents.  So at certain times I

 2     might have said well, gee, I don't remember, and then a document was

 3     presented at that time which refreshed my memory.  I just -- to be

 4     absolutely precise to you.

 5             JUDGE FLUEGGE:  Thank you very much for this additional remark.

 6             Mr. Thayer, please continue.

 7             MR. THAYER:  Thank you, Mr. President.  We do have some

 8     associated exhibits to tender through this witness, and I will just go

 9     through our exhibit list.

10             JUDGE FLUEGGE:  Mr. Thayer, to shorten this procedure, we have

11     received this list.  Just tell for the record the first and the last 65

12     ter number, then the Registry will circulate an internal memorandum with

13     the P numbers.

14             MR. THAYER:  Very well, Mr. President.  The -- and I just note

15     for the record, these don't run in sequence, but the first number in this

16     category is 65 ter 7195 and the last number in this category is 65 ter

17     2080.  I note that the very last entry has already been admitted as an

18     exhibit.  And there are, as I see them, three other exhibits on our

19     exhibit list which have previously been admitted just for the record.  We

20     can leave it at that.

21             JUDGE FLUEGGE:  First of all, I would like to ask you, there are

22     three documents 65 ter 7204, 7205, and 7208 which are not on the 65 ter

23     exhibit lists.

24             MR. THAYER:  Yes, Mr. President, those are non-associated

25     exhibits which we had considered using with the witness during his

Page 10518

 1     examination-in-chief today.  I've not had an opportunity yet today to

 2     confer with the Defence.  I shot them an e-mail to see if there would be

 3     any objection to our oral motion to add these to the 65 ter exhibit list.

 4     We haven't had a chance to confer, I don't know what their position is.

 5     And frankly, I'm not even sure whether -- given whatever the witness's

 6     answers might be I'll actually need to use them with the witness, so we

 7     can get their position or we can just wait until my examination proceeds

 8     and we'll see whether we even need them, and if I don't need to use them

 9     then it's a moot issue.

10             JUDGE FLUEGGE:  The Chamber would be in a better position and

11     would appreciate if the Prosecution would not just put a note at the end

12     of the exhibit lists with the leave of the Chamber but would move for an

13     addition to the 65 ter exhibit list.

14             MR. THAYER:  Mr. President, in the interest of saving everybody

15     time and effort, we've proceeded in this way unto now because we've been

16     able, on a occasion, to get feedback in time so that we have a position

17     to present to the Trial Chamber without having to file a motion or spend

18     unnecessary time, but --

19             JUDGE FLUEGGE:  I'm not talking about a written motion.  I'm

20     talking about an oral submission that was sufficient, but just to put a

21     star within a remark is perhaps not the best way to deal with that.

22             Mr. Gajic, I think, is on his feet to comment on that.

23             MR. GAJIC:  [Interpretation] Good afternoon to everyone.  Your

24     Honour, I believe that there is a minor problem here, maybe it's an

25     e-court problem or access that the Defence has to e-court.  The

Page 10519

 1     documents, the 65 ter document 7204, 7205, 7197, 7198, 7199, and a few

 2     others that I haven't really had time to check, unfortunately we have no

 3     access to these documents in e-court.  Maybe they haven't been uploaded

 4     yet or there may be another issue, so if we can just resolve this before

 5     we move on.

 6             And if I may just add that 65 ter 7208, that is a document that

 7     is on the list of Defence documents that the Defence intends to use

 8     during its cross-examination of this witness, but I believe it will

 9     retain the same number, of course, this is the Prosecution number.

10             JUDGE FLUEGGE:  And I see an additional problem, Mr. Thayer.  In

11     the first document you mentioned in this category is 65 ter 7195, I don't

12     have that on my list.

13             MR. THAYER:  I'm not sure what the date of the list to which Your

14     Honour's referring.  We distributed a list on the 28th of February.  It's

15     the first document in that second category of associated exhibits.

16             JUDGE FLUEGGE:  Turns out that I have -- thank you very much.

17     Yes.  Obviously I have a list also of the 28th of March, perhaps a little

18     earlier, or there's something wrong.  If that isn't the case, I was shown

19     it and I think you may proceed and -- thank you very much.  Now I have

20     the updated list.

21             Can you state if all these documents have a translation?

22             MR. THAYER:  Mr. President, we've ...

23             JUDGE FLUEGGE:  Mr. Thayer, it turns out that there are

24     additional problems.  I was told by the Registrar that he can't see some

25     of these documents including the transcript in the Popovic case we just

Page 10520

 1     received into evidence.  It is not accessible.

 2             MR. THAYER:  Mr. President, we are trying to fix that now.  We

 3     are having the same problem at the present, we uploaded all of these

 4     documents last week, so we are not sure what the problem is with getting

 5     access by any party if there's problems with these documents.  It -- I

 6     just don't have an answer for you, Mr. President.  I know Ms. Stewart is

 7     working on working the bugs out.  But there are three -- to answer your

 8     question, there are three documents which currently lack translations.

 9     One of them is the first one Your Honour pointed out, 7195.  Second one

10     is 07196 and 07199.

11             JUDGE FLUEGGE:  Thank you.

12             Mr. Gajic, is the Defence in agreement with the addition of these

13     three documents to the 65 ter exhibit list?

14             MR. GAJIC:  [Interpretation] Mr. President, I've mentioned the

15     fact that we don't have access to e-court in respect of two of these

16     documents.  We haven't had the time this morning to take them off the EDS

17     system, so it's very difficult for us to tell you that, what our position

18     is in relation to these two.  I can only tell you that in relation to

19     7208, it is also on the Defence list of documents so we are happy with

20     that one.  But I'd like to point out that we don't have access to

21     documents 7197, 7198, and 7199 which are again 65 ter documents.  We

22     haven't got access to those either.  Yesterday, we couldn't gain access

23     to 7200, 7201, and 7202 either.

24             JUDGE FLUEGGE:  Mr. Thayer, this situation is very

25     unsatisfactory.  We are now slightly confused.  The Defence must have, of

Page 10521

 1     course, access and the Chamber as well to all these documents, and if we

 2     don't have access we can't decide.

 3             MR. THAYER:  I understand the predicament the Trial Chamber is

 4     in.  What I can do is I can at the very least give the Defence my hard

 5     copies of those documents right now.  I've got those documents.  These

 6     are documents we've tried to place them on as much notice of as possible.

 7     I've got hard copies here.  I can't explain the technical reasons why

 8     people are having problems accessing these documents.  If we need to, I

 9     can arrange to make hard copies of all of these documents for the Trial

10     Chamber and for the Defence.  If I have a list of exactly what the Trial

11     Chamber and the Defence do not have access to at the moment, we can get

12     those in a matter of minutes and it shouldn't take more than that simply

13     to make copies.

14             JUDGE FLUEGGE:  Mr. Thayer, I think it would be more appropriate

15     if the Prosecution would solve this technical problem.  Perhaps these

16     documents are uploaded into e-court but not released.

17             MR. THAYER:  They've been released, Mr. President, for a week,

18     and I've had access, our team has had access, so I honestly cannot tell

19     you what the technical problem is with lack of access by the Defence

20     team.  As I said --

21             JUDGE FLUEGGE:  Not only by the Defence team, also by the

22     Registry.

23             MR. THAYER:  As I said, if hard copies can be used and we can try

24     the case the old fashioned way, we can make the hard copies and

25     distribute them and that will just take a matter of minutes, but as I

Page 10522

 1     said, Ms. Stewart is doing what she can with her people to see if it's a

 2     problem that we have any control of, but unfortunately, it doesn't look

 3     like we do at the moment.

 4             JUDGE FLUEGGE:  I think for the moment, we will of course receive

 5     the documents admitted through the witness in prior proceeding 65 ter

 6     7195 and then through the whole list to the last one which is 65 ter

 7     2080, but those you have indicated which have no translation yet will be

 8     marked for identification pending translation.

 9             MR. THAYER:  And, Mr. President, just so that we can get to work,

10     I can tell you that with respect to those three documents that don't have

11     translations at the moment and with respect to, I think, all but one of

12     the documents which the Defence says it doesn't have access to, I will

13     not be referring to any of those documents during my examination-in-chief

14     and from what I've seen of the Defence list it's not on their list of

15     document, so I don't think these are documents that are going to be at

16     issue in any event, at least the ones that are on the associated exhibit

17     list.  With respect to those that didn't have 65 ter numbers, to the

18     extent I was going to possibly use them they are at the end of my direct

19     examination, so I think we can get started, with the Court's permission,

20     with the witness's testimony and we can deal with those other matters

21     later.

22             JUDGE FLUEGGE:  Indeed.  And if there are problems, they should

23     be raised and then we will deal with them case by case.  The Registry

24     will provide you with P numbers by internal memorandum.

25             Please continue, Mr. Thayer.

Page 10523

 1             MR. THAYER:  Thank you, Mr. President.  I do have a 92 ter

 2     summary for the witness.

 3             In July 1995, the witness was serving in a civilian capacity as a

 4     civil affairs officer with UNPROFOR.  On or about 12 or 13 July, he was

 5     tasked to work with the civil affairs team at the Tuzla airbase where he

 6     saw thousands of mostly women from Srebrenica arrive in buses.  The women

 7     were quite thin, quite distraught, and concerned about the fate of their

 8     men.  He recalls one woman trying to scale a barbed wire fence with her

 9     bare hands because she had heard a rumour that some men from Srebrenica

10     were nearby.

11             The witness stayed in Tuzla for about a week until he and another

12     civil affairs officer, Viktor Bezruchenko were sent to Zepa on 20 July.

13     En route, they passed through a number of VRS check-points, then arrived

14     at OP 2, which was under VRS control.  He saw a number of VRS military

15     vehicles and booming loud-speakers set up around the area in support of

16     psychological operations conveying the message that there was no chance

17     for the population.  They then saw General Mladic with a representative

18     of UNHCR and of ICRC.  They were told to sit down and while lunch was

19     served, a VRS officer filmed the discussions for propaganda purposes.

20     After awhile, firing commenced from VRS cannon positions towards Zepa and

21     they were told to leave.

22             Upon return to Sarajevo, he reported to David Harland at Sector

23     Sarajevo and John Ryan, the senior civil affairs officer.  Meetings

24     concerning the fate of Zepa and the related issue of prisoner exchange

25     were held at the Sarajevo airport.  From the Muslim side, an "all for

Page 10524

 1     all" exchange had to include the missing men from Srebrenica.  From the

 2     Serb side, the status of the men from Zepa was the concern.

 3             The witness and Bezruchenko travelled to Zepa a second time on

 4     25 July.  En route, they stopped by the UNHCR offices to discuss UNHCR's

 5     decision not to participate in the evacuation of the Zepa population

 6     because it did not want to be accused of assisting in ethnic cleansing.

 7     They arrived again at OP2 and met with Mladic who told them to go down

 8     into Zepa town.

 9             They arrived at the Ukrainian compound in the school in Zepa and

10     met with the Muslim leadership, including Hamdija Torlak.  UNPROFOR was

11     the only international presence, as ICRC limited its participation to

12     evacuating the wounded.

13             The next day, 26 July, the witness went to the centre of Zepa and

14     saw a concentration of women huddled with their children.  Following

15     instruction from the UNHCR, the witness and Bezruchenko began asking the

16     women if they were leaving of their own free will, to which they answered

17     yes.  This continued for another 15 to 19 women, until one woman told

18     them that she was not leaving of her own free will and that she wanted to

19     stay but did not know who would protect her.  She then began to cry,

20     after which all the women began to cry.  The witness's clear impression

21     was that Zepa was their home but that they were terrified as to their

22     fate if they stayed.

23             As soon as the vehicles arrived, the transportations began, which

24     was basically the VRS logistical part of the operation.  Vehicles would

25     come down the one-lane dirt road from the steep gorge into Zepa, fill up,

Page 10525

 1     turn around and go back up.  There were not enough peacekeepers to escort

 2     each bus.

 3             Separately from this, an UNPROFOR doctor and a VRS doctor with an

 4     ICRC representative screened the wounded to see who required evacuation,

 5     those deemed seriously wounded were evacuated under French escort.  At

 6     one point, Muslim women who remained in the centre saw the UNPROFOR

 7     convoy leaving, blocked the convoy because they thought it was the last

 8     one and were panic-stricken that they would be left behind.

 9             During the two full days of evacuations, the witness saw

10     Generals Mladic and Tolimir actively gauging what was going on and

11     supervising.  They were the highest ranking VRS officers he saw engaged

12     in the operation.

13             During the transportations, there was a lightly wounded man with

14     his arm in a sling who was acting as a spokesperson for the other lightly

15     wounded and who repeatedly approached the witness and Bezruchenko

16     seeking to be evacuated with the women and children.  The witness met

17     with the accused in town and asked him if the lightly wounded could be

18     evacuated with the last bus.  The accused agreed, and the lightly wounded

19     boarded the bus.  Given that these lightly would you wounded were

20     military-aged men, the witness told the French major to put a peacekeeper

21     on each bus and have an APC follow it.

22             On 27 July, the witness was also present for a meeting between

23     civilian leaders from Zepa and the VRS --

24             JUDGE FLUEGGE:  Could you please slow down a bit.

25             MR. THAYER:  Yes, Mr. President.

Page 10526

 1             -- at which General Smith was also present.  The civilian leaders

 2     appeared ready to sign a capitulation agreement on behalf of the Zepa

 3     Muslims, but the witness was concerned that they lacked the authority to

 4     do so and that any surrender would therefore lack validity, and informed

 5     Smith about his concerns.

 6             On 27 July, after the last convoy had left, the witness saw two

 7     heavily-armed VRS soldiers with aggressive demeanour enter the UNPROFOR

 8     compound at the school in Zepa, grab Avdo Palic, and drive away with him.

 9     The witness and Bezruchenko attempted to follow in their car, but were

10     unsuccessful.  After General Smith left Zepa, the hodza and one or two

11     other Muslims were also taken.

12        Q.   Sir, I want to ask you a couple of questions to follow up on some

13     topics you testified about in the Popovic case and to show you some

14     reports that you were not shown in that case that I think you can help

15     the Trial Chamber with.  Now, the first thing I want to ask you about is,

16     you testified in the Popovic case - and this is at transcript page 14170

17     to -171, for the record - that during the VRS attack on Zepa, both the

18     Bosnian Muslim and Bosnian Serb forces threatened to kill the Ukrainian

19     peacekeepers.  And I think testified that you received information to

20     that effect and we saw that in some memos that were discussed in the last

21     trial.  Do you recall that, sir?

22        A.   I do recall that and that is also in the line of where reports

23     were shown to me that refreshed my recollection of that -- of those

24     threats and my awareness of those threats at the time.

25        Q.   Okay.

Page 10527

 1             MR. THAYER:  Let's look at two documents very quickly along those

 2     lines.  The first one is 65 ter 2154, please.

 3        Q.   And what we can see here, sir, is a sitrep, a situation report,

 4     here it's called a sync rep by the Ukrainians, we can see it's from

 5     UKRBAT and that's Ukrainian battalion; is that correct, sir?

 6        A.   Correct.

 7        Q.   And it's dated the 16th of July, 1995, and I want to turn your --

 8     direct your attention to the portion which begins with the word

 9     "Charlie."  Do you see that there, sir?

10        A.   I do.  It might be easier for me just to read the English, but

11     if --

12        Q.   Sure, just -- do you have the English on your screen, sir?

13        A.   I do, but it would be bigger if I only had the English.  I don't

14     know if it's possible to do that.  But anyway, it's all right.  I can --

15             MR. THAYER:  And for the B/C/S we need to go to page 2.

16             JUDGE FLUEGGE:  We need both versions on the screen to enable the

17     accused to look at the same document at the same time.

18             THE WITNESS:  I understand.  Very well.  Maybe if we could blow

19     up, Charlie, if we could maybe enlarge that a bit.  Thank you.

20             MR. THAYER:

21        Q.   We can see it, and it states:  "Re-establishment communication

22     between base and CP2."

23             JUDGE FLUEGGE:  We don't have the English version on the screen.

24     I don't have.  Sorry, yes, the other way around.

25             MR. THAYER:  It's definitely a Monday, Mr. President.

Page 10528

 1             JUDGE FLUEGGE:  Thank you for this reminder.

 2             MR. THAYER:

 3        Q.   Sir, do you know what the abbreviation "CP2" is?

 4        A.   CP or OP?

 5        Q.   Either one.  If it's OP, tell us what OP2 is, and if it's CP,

 6     tell us what CP2 is.

 7        A.   Well, OP would be observation post, CP could be check point, but

 8     in this context it would be OP2 is what we generally understood the

 9     location that was the designation that UNPROFOR had given that.

10        Q.   Indeed.  So observation posts were referred in your experience to

11     as OPs; is that correct?

12        A.   That's my understanding, correct.

13        Q.   Okay.  As we read on, there's reference to the personnel mounted

14     Defence, the Serbs directed their weapons to the Ukrainian soldiers, and

15     reiterated that if NATO undertakes any actions against them, they will

16     kill the OP or as you read it OP personnel.

17             The question is simple, is this the type of information that you

18     were receiving during this period of time concerning the status of the

19     Ukrainian peacekeepers vis-a-vis the warring parties and how they were

20     being treated?

21        A.   In a -- yes, this is the nature, this is the type of information.

22     Whether I was actually shown this report at the time, I cannot say.  But

23     we were generally aware of the plight of the Ukrainian battalion

24     second-hand, that is through them.  These were not threats that I had

25     received directly from either side there, but to answer your question,

Page 10529

 1     yes, this is in the nature of the information that we would have had at

 2     the time.

 3        Q.   Okay.  Well, to put it even more simply, do you recall receiving

 4     reports that both sides were threatening to kill the Ukrainians?

 5        A.   I think in general we were aware of the difficult situation that

 6     they were in, correct, and that there were threats.

 7             MR. THAYER:  Mr. President, the Prosecution would tender

 8     65 ter 2154.

 9             JUDGE FLUEGGE:  It will be received.

10             THE REGISTRAR:  That, Your Honours, will be assigned P01950.

11             MR. THAYER:  And if we may have 65 ter 7200 briefly, please.

12     Well, this is one of our problematic ones.  I do have a hard copy that we

13     can throw up on the ELMO, and if the Defence needs -- actually, this is

14     one that we don't have a translation for, so if we just throw it up on

15     the ELMO, I think we can look at it the old-fashioned way with the Court

16     Officer's assistance, please.  It's a very, very short report, so I can

17     just read it in and the accused will receive the translation that way.

18        Q.   Okay.  We can mostly see the document on the screen.  The date is

19     20 July, 1995.  It's another Ukrainian battalion sync rep and again next

20     to the entry for "Charlie," I'll just read it into the record, it says:

21             "The commander of Bosnian --" and now I don't have my hard copy

22     so I can't read it on the screen, Bosnian something?

23        A.   BDE.

24        Q.   Oh, brigade, BDE.  Thank you, Witness.

25             "... BDE in Zepa Avdo Palic announced that if the helicopter with

Page 10530

 1     representatives of BHC FWD," and, sir, can you tell us what that

 2     abbreviation is, if you know?  BHC FWD?

 3        A.   Bosnia-Herzegovina command forward.  Bosnia-Herzegovina command

 4     forward.

 5        Q.   Do you remember where that was located, that command?

 6        A.   That command would have been I believe was still -- was then in

 7     Kiseljak.

 8        Q.   Okay.

 9        A.   And forward, these are UN designations.

10        Q.   Right.  And then we see the abbreviation UKRBAT-1, UNHCR, UN ICRC

11     and UNMOs doesn't arrive to Zepa by 21, and then we see some

12     hours: 0800 hours, Bravo 1995, Bosnians will kill Ukrainians.  Again, the

13     question is the same, sir, is this the type of information that you were

14     receiving concerning the treatment of the peacekeepers by both of the

15     warring factions during this period of time?

16        A.   Affirmative.  This is in the nature of the information that we

17     were receiving.

18        Q.   Okay.

19             MR. THAYER:  The Prosecution would tender 65 ter 7200,

20     Mr. President.

21             JUDGE FLUEGGE:  This document will be received, pending -- it

22     will be marked for identification pending translation.

23             THE REGISTRAR:  And that document will be assigned P01951 MFI,

24     Your Honours.

25             MR. THAYER:

Page 10531

 1        Q.   Now, I'd like to spend most of the rest of our time together

 2     doing, sir, is looking at some reports, numerous examples of which you

 3     were shown in the Popovic trial but not these.  May I show you one or two

 4     from the Popovic trial to ask you some more detail but --

 5             MR. THAYER:  And by way of explanation for the Trial Chamber, we

 6     have uploaded an exhibit from the Popovic case which is a collection of

 7     reports from David Harland - and you'll hear a little bit more about

 8     David Harland - up the chain of command within the UN concerning the

 9     events in Zepa.  The Trial Chamber in the last -- in the Popovic trial

10     had asked us to put those into a packet form, which we did in hard copy,

11     and that has been uploaded with tabs in e-court separating the various

12     reports, so it will start with tab 1 and end with tab 18 with a divider

13     sheet in between.

14             We have updated this packet to reflect the current 65 ter

15     numbers.  What is currently uploaded into e-court has the Popovic 65 ter

16     numbers, but we'll have a new and improved version with the appropriate P

17     numbers and exhibit numbers as well, which we can distribute to the

18     parties and to the Trial Chamber in hard copy, which will be a little

19     easier, but in the mean time we'll work with e-court as we move through

20     this packet of documents.  I just wanted to give you that background so

21     you had an idea of the what we are looking at the on the computer.

22             JUDGE FLUEGGE:  And to have it on the record, this is 65 ter

23     2438; is that correct?

24             MR. THAYER:  That's correct, Mr. President.  And we've also

25     furnished the Defence with a translation of this packet.  There are a few

Page 10532

 1     translations that are still outstanding, but they have a mirror image in

 2     B/C/S to work with as well.

 3        Q.   Now, sir, you spoke briefly in the last trial about

 4     David Harland, I think you described his position, and you stated, and

 5     this is at transcript page 14164 to -165, that he was quite methodical in

 6     reporting and that his reports, and this is at 14217 of the prior

 7     transcript, were accurate, contemporaneous recollections of communication

 8     that we had, meaning that you and Mr. Harland had.

 9             What I'd like to ask you is if you can describe for the Trial

10     Chamber in just a little bit more detail the general nature of your

11     communications with Mr. Harland, and I don't mean the substance at this

12     point, but just how you would communicate, how frequently you would

13     communicate during this period of time, when you went down to Zepa twice,

14     returned to Sarajevo, and were witnessing the events that you witnessed.

15        A.   Yes --

16             MR. THAYER:  And I see that Mr. Gajic is on his feet.

17             JUDGE FLUEGGE:  Mr. Gajic.

18             MR. GAJIC:  [Interpretation] Your Honour, I have only one

19     suggestion, the transcript is literally flying in front of our eyes, so

20     the witness begins his answer before the interpretation of the question

21     is finished.  It happens quite often, so I would like to ask both

22     speakers to slow down.

23             JUDGE FLUEGGE:  And especially not to overlap, that happens

24     always in the courtroom.  Please wait with your answer, sir.

25             THE WITNESS:  [No interpretation]

Page 10533

 1             JUDGE FLUEGGE:  This is not very helpful because we don't receive

 2     your interpretation.

 3             THE WITNESS:  Mr. President, I thought the interpreters translate

 4     everything.  My apologies, if they do not.

 5             JUDGE FLUEGGE:  But if one speaker is moving from and switching

 6     from one language to the other this is technically very complicated.

 7             THE WITNESS:  My apologies.

 8             JUDGE FLUEGGE:  Just continue with your answer, please.

 9             THE WITNESS:  Yes, sir.  To answer your question, David Harland

10     and I were long time colleagues, UNPROFOR civil affairs colleagues, in

11     Bosnia, and we had close communication certainly over this period.  The

12     nature of the communication changed, of course, depending on whether I

13     was co-located with him in Sarajevo or when Viktor Bezruchenko and I had

14     gone to Zepa, in which case we were dependent on the technical means that

15     existed, such as they did, for us to communicate there.  But when we were

16     back in Sarajevo, David and I were in close personal communication and,

17     of course, Viktor and I tried to be dutiful about reporting from Zepa to

18     David as best we could.

19             MR. THAYER:

20        Q.   And during the period of time when you were physically in Zepa or

21     en route to Zepa, can you tell the Trial Chamber what activities

22     Mr. Harland was engaged in in Sarajevo pertaining to Zepa and what was

23     happening in Zepa?

24        A.   In addition to the reporting that you can see and all those who

25     have the documents can see, the reporting that David was conveying higher

Page 10534

 1     up in the UN chain, you can also see that David was playing an important

 2     role in communicating with the parties both Serbs and at that time, as

 3     it's referred to in the documents, the Bosnian side, that's how it is

 4     referred to in that document in those days, and David in particular was

 5     present for these negotiations about a prisoner exchange.  So he was, in

 6     Sarajevo, was performing an important role both in reporting and also in

 7     maintaining communication with the interlocutors from the sides.

 8        Q.   And is it fair to refer to those meetings in Sarajevo about the

 9     prisoner exchange as the airport meetings, as a shorthand way of

10     referring to them, because that's where they were occurring?  Is that

11     fair to do?

12        A.   You could refer to them in that way.  I would just say be advised

13     that prior to and subsequent to, there may have been other meetings at

14     the airport.  The airport was the traditional location for such meetings

15     being accessible to both Serbs and the Bosnian side in Sarajevo.

16        Q.   And how would you describe the flow of information between you

17     and Mr. Harland during this period of time, let's focus right now on when

18     you were physically on the ground in Zepa and he was in Sarajevo?

19        A.   It's hard for me to be absolutely precise about the flow.  We --

20     Viktor and I did the best we could to provide information and to stay in

21     some kind of communication, but we were under - and I would emphasise

22     this to all those concerned here - we were under tremendous stress and

23     there was an enormous operation that we had to be physically present for,

24     so -- and also I would call attention to the fact that in those days,

25     this is pre-Internet, pre-e-mail, pre all of that, so it was voice

Page 10535

 1     communication at that time.  We didn't even have ability to send a fax

 2     from Zepa.

 3             So we tried and did what we could to maintain, to communicate

 4     essential matters, but the flow was somewhat intermittent because of the

 5     operational conditions we were working under in Zepa.

 6        Q.   And what kind of communications means did you use when you were

 7     in Zepa?

 8        A.   Once -- I'm pausing here with respect for interpretation.

 9             With -- once the French units had arrived, I recall that they had

10     in their APC that they had means that we used, whether they were radio or

11     radio telephone at this point, I can't recall.

12        Q.   You mentioned that you and Mr. Bezruchenko were under tremendous

13     stress.  What was the source and nature of that stress that you are

14     speaking about?

15        A.   This was a -- this was a very challenging, which is a word that

16     barely describes it.  This was a very difficult and -- operation with --

17     in which we had responsibility and were aware of the potential for loss

18     of life and also the potential for crimes to occur such as rapes and

19     other potential risk.  So Viktor and I were under -- and plus there was

20     an operational pace to keep up here of moving these persons that were

21     permitted to leave Zepa and to try to maintain both the pace and to

22     ensure that it was done under maximum conditions possible of maintaining

23     security and any sort of -- maintaining any humanitarian standard.  So we

24     were under quite tremendous stress, and we were also aware of the context

25     in which this happened, that this isn't just a logistics operation of

Page 10536

 1     moving some people from one place to another.  This is an operation in

 2     which a population is being expelled from their homes in war time and

 3     this -- we were quite aware of the context in which we were operating.

 4             MR. THAYER:  Let's look at this packet of reports, and this is

 5     65 ter 2438.  And just to give Your Honours a quick look, this is just

 6     the cover, the old cover, and this is what we plan to replace.  As we can

 7     see, the Defence has the new and improved version already and will have

 8     the English available and obviously the tab numbers here refer to the

 9     physical tabs that are on the packet of memoranda and reports.

10             So what I'd like to do is go to page 3 in e-court.  And then the

11     next page.  And this is also page 4 in the B/C/S.

12        Q.   What we have here is a 20 July, you can see the date, report from

13     David Harland.  And we see the abbreviation SCvAO.  What does that stand

14     for, sir?  And please, again, pause, and I'll try to do my best as well.

15        A.   That stands for senior civil affairs officer.

16        Q.   Okay.  We can see that the author is David Harland.  And this is

17     going to John Ryan.  I think you described his position in your prior

18     testimony.  Can you just tell us what this acronym DSRSG/CAC is?

19        A.   DSRSG is deputy special representative of the Secretary-General.

20     CAC, civil affairs co-ordinator.  Or, chief civil affairs, I believe

21     civil affairs co-ordinator.  Even now I'm a little hazy, but in any event

22     it means the head of the civil affairs operation in Bosnia.

23        Q.   Okay.  And we can see the subject is:  "Meeting on Prisoners

24     Exchange and Evacuation of Zepa."

25             MR. THAYER:  If we could go to the next page in both versions,

Page 10537

 1     please.

 2        Q.   We can see it's basically the same information, the from and to

 3     lines here.  And it makes reference to a meeting at 2.00 in the afternoon

 4     at the Sarajevo airport.  It was attended by Amor Masovic.  And can you

 5     tell the Trial Chamber what his position was in July of 1995, sir?

 6        A.   At that time he was a representative from, again, what is

 7     referred to then as the Bosnian side on prisoner exchange matters.  As

 8     far as I recall, that was his portfolio.  I don't recall that he had

 9     other portfolio than that.

10        Q.   It says Lieutenant Colonel Indjic represented the Serbs, and can

11     you tell the Trial Chamber who Lieutenant Colonel Indjic was?

12        A.   For UN purposes he was a liaison officer, but his portfolio might

13     have been somewhat different from Mr. Masovic in that he might have had

14     other duties, not just prisoner exchange duties.

15        Q.   And if we look at the next paragraph it refers to four hours of

16     talks, and an agreement in principle that there should be an all-for-all

17     exchange.  And before we go any further, in your experience, sir, what is

18     meant by an all-for-all exchange?  Just generally speaking, what does

19     that mean?

20        A.   Having -- clearly I was not in attendance at this meeting.  I was

21     in Zepa, if I correctly understand the time and date, but I had been

22     present in other such meetings and my understanding was all-for-all meant

23     all those held by one side in exchange are for all those held by the

24     other.

25        Q.   Okay.  And if we read further on it says Harland reports here

Page 10538

 1     that:

 2             "No final agreement was made because the Bosnians were not

 3     satisfied that the Serbs had accounted for all the prisoners taken in the

 4     assault on the Srebrenica enclave.  The Serbs agreed that they would try

 5     to produce a fuller reckoning of the Srebrenica prisoners in the next

 6     several hours."

 7             Can you tell the Trial Chamber how this issue that's reported on

 8     here by Mr. Harland, that the Bosnians were not satisfied that the Serbs

 9     had accounted for the prisoners taken in the fall of -- after the fall of

10     Srebrenica, how that issue played out in your recollection during the

11     time that you were involved in these Zepa events?  Not just on the 20th,

12     but going forward starting from this first meeting on the 20th at the

13     airport.  Understanding your caveat before that you were reporting as you

14     could and so forth, but can you tell the Trial Chamber from your

15     understanding of your communications with Harland and other people how,

16     if at all, this issue played out during the course of these Zepa

17     negotiations, whether it was at the airport or down in Zepa, and we'll

18     get to more specific Zepa documents that you have more personal knowledge

19     of later.

20        A.   With the understanding that when I was on the ground in Zepa,

21     David Harland was not reporting to me.  I might have had the opportunity

22     to ask him some questions about the nature of the prisoner negotiations,

23     but it would have been far more important for me and both my attention

24     and his would have been more on the information from the ground in Zepa

25     that I was passing to David.  So with that caveat, I can say that in a

Page 10539

 1     general sense, the -- we were in general aware that the missing men from

 2     Srebrenica were an impediment to achieving a deal in the talks in

 3     Sarajevo.

 4        Q.   And we'll look at one document in particular later, but can you

 5     tell the Trial Chamber for you personally, can you describe at what point

 6     you had concerns for the fate of the men of Srebrenica?

 7        A.   That -- my concerns about the fate of the men in Srebrenica date

 8     back to the time when I was in Tuzla receiving the buses of women from

 9     Srebrenica, and in the reference by the document you showed earlier, the

10     case of the woman who tried to scale the barbed-wire fence because of a

11     rumour she heard that perhaps the men from Srebrenica were somehow nearby

12     in an adjacent location, and that example was just one that graphically

13     drove home to me the fact that this is a burning issue.  And it was one

14     that I and my civil affairs colleague in Tuzla reported on and were

15     mindful of, that the question of military-aged men being held captive in

16     this context was even then for me, and this is without the knowledge of

17     what is widely understood to have happened since, but even at that time

18     was a major concern of mine and was present in my mind even at that time.

19             MR. THAYER:  Okay.  Mr. President --

20             THE WITNESS:  If I could add -- if I could add that it was

21     present in my mind while we were on the ground in Zepa with respect to

22     the fate of what might happen to the men in Zepa.

23             MR. THAYER:  Just a procedural reality that we need to deal with,

24     Mr. President, as I am sure it hasn't been lost on the Trial Chamber,

25     this is a packet of individual reports, so we did not split this packet

Page 10540

 1     up into 18 separate exhibits.  It is listed with one 65 ter number.  Some

 2     of these documents do have separate 65 ter numbers which we could tender.

 3     We can find out for the record whether the Defence has objections to each

 4     of these reports, and if there are none then we can tender the entire

 5     packet at the appropriate time, or we can wait until later and then deal

 6     with that, but I think it may be worth the time to simply take report by

 7     report, just find out whether there are any objections on the record to

 8     an individual report, and if there are none we can note that, and at the

 9     end of the day when we've gone through all the reports in the packet then

10     we can tender it.  Otherwise, we'll have to go back and discuss every

11     single report out of context months from now.

12             JUDGE FLUEGGE:  I think it's a good proposal to do that.  For a

13     better understanding of the whole package we saw at the beginning the

14     front page, that was related to the Popovic case.  Did I understand you

15     correctly that you will replace that page by another page in relation to

16     this case?

17             MR. THAYER:  Exactly, Mr. President, with this case's 65 ter

18     numbers and caption and relevant information on the page.

19             JUDGE FLUEGGE:  Thank you very much.  Go ahead, please.

20             MR. THAYER:  In that case, Mr. President, the Prosecution would

21     tender the report in tab 1 of 2438 which, and I can just read the ERNs,

22     is R043-3803 to R043-3804.

23             JUDGE FLUEGGE:  Please check the number again, this is the ERN

24     number, if that is the correct one which we have on the record because

25     your reading was quite fast.

Page 10541

 1             MR. THAYER:  I apologise, Mr. President.  That's R043-3803 to

 2     R043-3804.

 3             JUDGE FLUEGGE:  Thank you very much.

 4             Mr. Gajic.

 5             MR. GAJIC:  [Interpretation] Your Honour, if I understood it

 6     correctly, we are talking about the number of reports bearing one in the

 7     same 65 ter number.  Maybe this is simply a matter of proper organisation

 8     of work, but I think that we should make things easier for us, so if we

 9     are going to tender this whole package, it should also bear one number.

10     If it is already a one single exhibit in e-court it should have one

11     number.

12             MR. THAYER:  Mr. President, I think as I tried to explain, I'm to

13     some degree engaging in a small fiction.  I'm tendering this tab with the

14     understanding that there will be no ruling of ultimate admissibility, we

15     are simply seeking whether there's an a objection to this tab for the

16     time being, this particular report within this one exhibit, so I'm not

17     expecting -- or even though I said we tender tab 1, I guess I can ask are

18     there objections to tab 1 so we can note that for the record, because I

19     don't think the Prosecution's intention is not to tender this whole

20     packet today unless we authenticate it through the witness but -- and if

21     we do then I will tender the entire packet, but I think there may be one

22     or two reports which we'll use with somebody else.

23             JUDGE FLUEGGE:  This is always open for a party to use it --

24     tender an admitted document with another witness.  I understood,

25     Mr. Gajic, that it would be -- the Defence would be in favour to have the

Page 10542

 1     whole package admitted as one document, and I think this is quite

 2     reasonable.

 3             MR. THAYER:  And that's my -- that was, I thought, my

 4     communicated intention was to ultimately tender this as one document, but

 5     in the meantime I think it will be more useful in terms of our time to

 6     deal with these reports one by one on a case by case rather than coming

 7     back to this document after the witness has left the stand and then have

 8     to deal with them out of context.  We've just discussed the document, we

 9     can get the Defence's views on the document, whether they object to it or

10     not, we can note it for the record whether there's an objection or not,

11     and then when we're done we can tender the whole collection.

12             JUDGE FLUEGGE:  If you are able to do that in the two hours you

13     have indicated for examination-in-chief.

14             Mr. Gajic.

15             MR. GAJIC:  [Interpretation] Your Honour, just one clarification

16     about our position.  We are, of course, going to object the admittance of

17     any documents which were not authenticated by this witness.  I was a

18     little while ago talking simply about the procedure of tendering, so now

19     if we have one 65 ter number and then we say tab 1 is exhibit such and,

20     tab 2 is exhibit such and such, I think that this may result in a

21     confusion.  They should be better organised, the exhibits.

22             JUDGE FLUEGGE:  How many documents are in this package?

23             MR. THAYER:  There are 18 tabs, Mr. President, within this packet

24     which again has been organised for the convenience of all parties, so

25     they are in one place in a particular order with an index so that they

Page 10543

 1     are more easily manageable.  I don't see how it helps anybody to chop it

 2     up into 18 separate 65 ter number and ultimately exhibit numbers when

 3     we've got one clean packet that everybody can refer to and which frankly

 4     we are going to be referring to by e-court page number, so it's not going

 5     to help anybody to have it come in as a separate exhibit which will be a

 6     one or two page document where we are going to be dealing with this on

 7     the record in the e-court version which is paginated numerically as one

 8     document.

 9             JUDGE FLUEGGE:  I think you should proceed and try to get through

10     these documents.  We can see if they will be authenticated by this

11     witness and after that we shall discuss the matter if the document in a

12     whole can be admitted into evidence.

13             MR. THAYER:  Again, Mr. President, with respect to tab 1, the

14     question is whether the -- I think the Defence has any objection to this

15     particular tab.  And the authentication.  If they have an issue of

16     authentication for this document, let's deal with it now rather than

17     having to wait until some other time.

18             JUDGE FLUEGGE:  Mr. Tolimir.

19             THE ACCUSED: [Interpretation] Thank you.  May there be peace in

20     this house and may this witness spend his time comfortably here in this

21     courtroom and may God's will be done in these proceedings.

22             Now, if the witness does know something about these documents

23     that were listed under 65 ter, then I would have no objection because we

24     trust that the -- we trust this witness and we believe his words, so that

25     would be all that I have to say.  Thank you.

Page 10544

 1             JUDGE FLUEGGE:  Thank you very much.

 2             Mr. Thayer, please proceed.

 3             MR. THAYER:  And if we may go to page 21 in e-court, please, and

 4     we'll see that this is tab 4.  If we could go to the next page in both,

 5     it's going to be page -- yes, next page in both the B/C/S and the

 6     English.  We can see here same format as the prior report, the date now

 7     is 21 July 1995.  And the subject is: "Zepa Negotiations, Report Number

 8     3."

 9        Q.   Do you see that, sir?

10        A.   I do.

11             MR. THAYER:  And just for the record, Your Honours, the previous

12     report, "Zepa Negotiations Number 2" has already been admitted and is

13     part of the packet, but we don't need to go over old ground so we are

14     just skipping ahead to number 3.

15             If we could go to --

16             JUDGE FLUEGGE:  For the clarity of the record, if you say it was

17     already admitted, under which number?  Do you have the P number?

18             MR. THAYER:  Bear with me, Mr. President.

19             JUDGE FLUEGGE:  If not at the moment, please continue.

20             MR. THAYER:  We'll get back to you, I'll move on, thank you.

21             If we could go to the next page, please.  We can see that this

22     refers to another meeting at the airport about the exchange of prisoners

23     and the evacuation of Zepa.  And Mr. Harland reports that those

24     negotiations collapsed.  The meeting collapsed because the Serbs refused

25     to give any names of prisoners taken when they overran Srebrenica.

Page 10545

 1        Q.   You've already told us about the concerns that you had and the

 2     general concerns of which you were aware that the Bosniaks had about the

 3     fate of the men from Srebrenica and role that that played in these

 4     negotiations, so let's go to the next page if we could save a little bit

 5     of time.  The date of this document was the 21st of July, sir.  And were

 6     you back in Sarajevo by that time?

 7        A.   I believe, yes.

 8        Q.   Okay.  And we see here an assessment that's provided by

 9     Mr. Harland.  And in creating these reports and these assessments, can

10     you describe what your role was without necessarily referring to a

11     particular report, but generally speaking, can you tell the Trial Chamber

12     what your role was, how did you and Mr. Harland work together with

13     respect to his assessments as they are reflected in this report and

14     others that we'll see?

15        A.   David and I worked closely together over this period, and I'm

16     sure that we discussed and exchanged views about what we thought was

17     happening, and I'm sure I shared my views and my own assessment with

18     David.  That being said, as the report purports, and you see his

19     signature there, it is his report in the end, but David and I would have

20     had close conversation about this and about the approach and our views

21     were largely consonant.

22        Q.   And at the risk of asking you to sound immodest perhaps, can you

23     tell the Trial Chamber whether your understanding was that Mr. Harland

24     relied on your consultation and observations when you would discuss these

25     matters?

Page 10546

 1        A.   I -- it's here not a question for the Court being modest or not,

 2     I want to be very accurate for the Court.  David Harland was then and

 3     remains a very capable, highly capable, highly intelligent, and at that

 4     point he and I both were highly experienced in Bosnia, so it would be

 5     inaccurate to suggest that I was the source for David.  David was

 6     perfectly capable of arriving at an assessment, an accurate one, a very

 7     accurate one on his own.  At the same time, did I contribute and share

 8     views and did he and I discuss things in an open and very close way?

 9     Yes, of course.

10        Q.   Now, if we look at this assessment, and let's just jump down to

11     the second paragraph, he says:

12             "It is unlikely that there will be any evacuation of Zepa in the

13     next day or two.  Most likely, the Serbs will now intensify their

14     military pressure on the pocket in an effort to force the local military

15     commander to accept Serb terms.  This might take several days given that

16     they seem reluctant to commit their infantry until the Bosnians are

17     broken by bombardment."

18             Can you tell the Trial Chamber to what extent during this period

19     of time when this assessment was made you shared the assessment that's

20     expressed here?

21        A.   I believe I shared this assessment following our return from

22     Zepa, from the first time we were at Zepa and there when we saw the

23     resumption of bombardment, or heard, I should say heard, the resumption

24     of bombardment to be very accurate.

25        Q.   And was your assessment that this bombardment was targeting the

Page 10547

 1     Muslim military only or the Muslim military as well as the civilian

 2     population?

 3        A.   With artillery and with a location as small as Zepa was, and with

 4     the experience of having been in Sarajevo, I don't think we would have

 5     anticipated that there would have been much of a distinction between

 6     civilian and military targets.

 7        Q.   Can you just tell us a little bit more what you mean when you

 8     say, "I don't think we would have anticipated that there would have been

 9     much of a distinction between civilian and military targets."  Are you --

10        A.   When we heard -- pausing.  When we heard -- for example, when

11     artillery was used in that context, that we were there present, Viktor

12     and I were present for, I don't think we were under any impression that

13     those shells were being directed purely towards, for example, a military

14     barracks if one even existed in Zepa.  This was a small village and the

15     tactics of the war were such, for example, in Sarajevo that bombardment

16     was regularly aimed at targets that were clearly non-military in nature.

17     Military at times, targets, sure might be purely military, but it was a

18     regular feature of this war that artillery, those who had it would use it

19     in -- towards -- in addition to non-military objectives.

20             MR. THAYER:  Mr. President, I see, I think we are at the new

21     break time.

22             JUDGE FLUEGGE:  Indeed we are.  We must have our break now and

23     resume in half an hour at 5.30.

24                           --- Recess taken at 4.59 p.m.

25                           --- On resuming at 5.32 p.m.

Page 10548

 1             JUDGE FLUEGGE:  Yes, Mr. Thayer, please continue.

 2             MR. THAYER:  Thank you, Mr. President.  I just wanted to note for

 3     the record, I believe that the exhibit issues that we were dealing with

 4     earlier have been resolved and all parties have access to all the

 5     documents.

 6             JUDGE FLUEGGE:  This is appreciated.

 7             MR. THAYER:  And also to follow-up on that tab 2 I referred to

 8     which had been previously admitted, that has been admitted but it's

 9     awaiting an assignment of its P number, so I can't give you that right

10     now either unfortunately, but ...

11             And to give you the -- some idea of the timing, I've cut a number

12     of exhibits from my examination given my estimate.  I may need to exceed

13     it slightly, but I have reduced my examination-in-chief to the bare

14     essentials, I think, and I'm working towards that two hours as closely as

15     I can.

16        Q.   Sir --

17             MR. THAYER:  Before we go on to the next document, Mr. President,

18     with respect to tab 4 which is the document we just looked at, again if

19     we could find out from the Defence whether they have any objections to

20     this document being admitted as part of 2438 when the time comes?

21             JUDGE FLUEGGE:  Mr. Tolimir, are you in a position to respond to

22     that?

23             THE ACCUSED: [Interpretation] Thank you, Your Honour.  The

24     Defence does not object to the admittance of any of the documents that

25     relate to the responsibility or that can speak to the responsibility of

Page 10549

 1     the accused.  Thank you.

 2             JUDGE FLUEGGE:  Go ahead, please, Mr. Thayer.

 3             MR. THAYER:  If we may go to page 25 in the document, and we'll

 4     see that that's tab 5, and that's page 23 in the B/C/S version.  Go to

 5     the next page, please, in both versions.  I apologise, there is no

 6     translation for this one yet, so if we can just focus on the English.

 7     We can see that this is another same format as the prior reports we saw.

 8     This one is dated the 22nd of July from Mr. Harland and it's subject is

 9     Zepa negotiations and this is report 4 of the series.  If we could go to

10     the next page, please.

11        Q.   We can see that it deals with a meeting between Mr. Harland and

12     General Gobillard in which Mr. Harland suggests that the UN offer the

13     parties a radical demilitarisation proposal, an idea proposed by

14     Ed Joseph three days ago.  Do you recall testifying about that

15     demilitarisation proposal in the last trial, sir?

16        A.   Yes, I do.

17        Q.   Okay.

18             MR. THAYER:  If we could go to the next page.  Let's focus on the

19     assessment.

20        Q.   And again this is dated the 22nd of July.  Are you back in

21     Sarajevo at this point or are you down in Zepa; do you recall, sir?

22        A.   From my understanding of the sequence, I think I'm back in

23     Sarajevo at this point.

24        Q.   Okay.  And if we focus on the assessment, Mr. Harland writes:

25             "Our proposal for the total demilitarisation of Zepa remains a

Page 10550

 1     long shot.  It is true that the Serbs are reluctant to attack the Zepa

 2     pocket until they have completely worn down its population.  On the other

 3     hand, it is hard to imagine that they would accept any arrangement that

 4     would leave Zepa in Bosnian hands.  I imagine that they will continue to

 5     make life in Zepa as miserable as possible for the local population

 6     until - demoralised by the assault and abandoned by the international

 7     community - they accept the 'evacuation' option being prosed by the

 8     Serbs."

 9             Now, sir, my first question is, in July of 1995 did you share

10     this assessment that the Serbs were reluctant to attack until they had

11     completely worn down its population?

12        A.   Without being 100 per cent pinning me down to whether on that day

13     did I have that assessment, without being microscopically precise about

14     that, I would say yes, that I was aware as were my colleagues that the

15     Serbs were reluctant to do an infantry assault in Zepa because of the

16     likelihood that they would take substantial casualties.

17        Q.   And these references to the population and the local population,

18     are those references to military, Muslim military forces, Muslim

19     civilians only, both, or what is your understanding when Mr. Harland

20     refers to its population and the local population, who or what is he

21     talking about?

22        A.   Again, it's David's document so he is the one who would be

23     categorical about what he meant, but my understanding is it would be

24     both, both the civilian and military population.

25        Q.   And in your experience down there in Zepa during this time, how

Page 10551

 1     was the civilian population being made miserable and worn down as

 2     indicated here?

 3        A.   Isolation, deprivation, and then artillery bombardment.

 4        Q.   Finally, we see here that the word "evacuation," if you look at

 5     the paragraph in the assessment, the last sentence, the word "evacuation"

 6     is in quotations.  Can you tell the Trial Chamber why the word

 7     "evacuation" is in quotation marks?

 8        A.   Repeating my caveat that this is David's report, I would surmise

 9     David and I would probably have shared this view that evacuation is

10     so-called in this context but really what we are talking about is

11     expulsion.  In other words, the forced expulsion of the population, not a

12     evacuation because of as one would do in the case of a flood or a -- some

13     natural disaster.

14             MR. THAYER:  Okay.  I think we are done with this document,

15     Mr. President.  The Prosecution would seek the Defence's position on the

16     admissibility of this document as part of Exhibit 2438.

17             JUDGE FLUEGGE:  Mr. Tolimir, is your previous comment also valid

18     for this document?

19             THE ACCUSED: [Interpretation] It is, Your Honour.  It is valid

20     for this document as well.  Whatever is accepted by the witness will be

21     accepted by us because we know that he wouldn't agree or accept -- agree

22     to or accept something that he hadn't seen.

23             JUDGE FLUEGGE:  Thank you.  Go ahead, please, Mr. Thayer.

24             MR. THAYER:  Thank you.  And if we could go to page 35 in the

25     English, and that will be page 27 in the B/C/S.  We can see we are at tab

Page 10552

 1     7 for the record.  If we could just advance one page in each and I'll

 2     just note that we don't have a translation of the fax cover page that

 3     we've seen on a couple of these.  We do have a translation of the

 4     substantive report that we'll be looking at, so just for the time being

 5     I'm going to note that we can see here this is a similar format report

 6     from David Harland.  The date is the 25th of July, 1995, and this is

 7     subject: "Zepa Negotiations 6."

 8             And if we can go to the next page in the English only and stay

 9     where we are in the B/C/S.  We can see Harland reporting that he received

10     a message from the Ukrainians indicating that the local Bosnians had

11     accepted the terms of surrender and evacuation of Zepa and that he asked

12     Mr. Bezruchenko and yourself to travel immediately there.

13        Q.   My first question is, is this the second trip that you testified

14     about in Popovic and that we've already heard a little bit about today,

15     that you took down to Zepa?  Is that what's reflected here?

16        A.   Yes, it is.

17        Q.   Okay.  I want to direct your attention to the third paragraph

18     where he says that:

19             "At 11.00 a.m. Bezruchenko called Harland and told Harland that

20     he had he seen the elements of an agreement signed by Rajko Kusic and

21     Hamdija Torlak."

22             The question is simply, do you recall that happening?

23        A.   I have a hazy memory, but I have no reason to doubt the accuracy

24     of this record, of this report.

25        Q.   And this reference to Lukavica, what is that, sir?

Page 10553

 1        A.   Lukavica barracks were the Serb military presence nearest

 2     Sarajevo where we would have frequent meetings.

 3        Q.   Okay.

 4        A.   Serb Sarajevo I think even now they refer to that side as.

 5             MR. THAYER:  Mr. President, the Prosecution again would seek the

 6     Defence's position on tab 7.

 7             JUDGE FLUEGGE:  I take it that the response will be the same,

 8     otherwise the Defence will object.

 9             MR. THAYER:  Very well, Mr. President.  I'll try to save time and

10     just keep going.

11             If we could see page 54, please, in e-court, and this will be

12     page 37 in the B/C/S.  We don't have a translation of this one,

13     unfortunately.  And if we could go to the next page, we see we are at tab

14     10 of the document, just for the record.  This is another Harland report

15     dated the 26th of July, the subject is:  "Zepa Negotiations Number 9."

16     If we could just turn the page.

17        Q.   There's a reference to another meeting at the Sarajevo airport,

18     and if we look at the assessment, Mr. Harland reports that:

19             "The Bosnians, recognising the extreme weakness of their

20     negotiating position, seemed to have accepted that they will not get back

21     any significant number of prisoners taken in the Srebrenica operation

22     (these prisoners account for upwards of 90 per cent of all the prisoners

23     held by the Serbs).  The Bosnians will not agree, however, that the men

24     of Zepa should ever fall into Serb hands."

25             My question to you, sir, is let's locus on that last sentence,

Page 10554

 1     the Bosnian's position that the men of Zepa should never fall into Serb

 2     hands.  To what degree did that position figure into the discussions that

 3     you were part of or aware of during your involvement in the Zepa events

 4     in July of 1995?  If you can't remember a specific meeting or

 5     conversation, that's okay, but can you give the Trial Chamber a sense of

 6     in general to what extent this position was evident to you or not.

 7        A.   I'll answer in two parts.  First in terms of the sequence here,

 8     we should bear in mind that I am now back in Zepa.  So my awareness of

 9     evolution or non-evolution of the parties' positions is limited, so I'm

10     not clear now exactly on what I knew relayed to me in Zepa at the time.

11     So there's that limitation on my awareness of the on-going developments

12     in those negotiations and discussions in Sarajevo.

13             That being said, my own awareness was that of course that this

14     was important not only for what is termed there, again I'm using the term

15     as it's used in David's report, "Bosnians," you've used Bosniak, but for

16     the report we at that time were using the term "Bosnians," but this was

17     something that was of concern to us even, I would say, independently of

18     the Bosnian position.  In other words we, and I know myself in my own

19     mind, had a concern about what would happen to the men of Zepa and what

20     modalities there would be to ensure that they would -- if an all-for-all

21     exchange were agreed upon, what modalities there would be to effect their

22     safe transfer from that region to across the lines into the

23     Bosnian-controlled territory.

24             So I think I was generally aware of that position but even

25     independently from any position on the -- even if there were no expressed

Page 10555

 1     concern, I know I had that concern myself.

 2        Q.   And what was that concern based upon, sir?

 3        A.   That concern was based upon three years of experience in the war

 4     and the particular recent memory of the situation in Srebrenica where we

 5     did not know the fate of the men of Srebrenica, and where that was a

 6     giant question mark.

 7        Q.   Okay.

 8             MR. THAYER:  Let's move to page 60.  And for the record, that was

 9     again tab 10 that we just looked at.  And we are now looking at tab 12.

10     This will be page 42 in the B/C/S, please, and there is a B/C/S

11     translation for this document.

12             JUDGE FLUEGGE:  Before you move on, Judge Nyambe has a question.

13             JUDGE NYAMBE:  Yes, I wonder if you can assist me to understand,

14     at page 52, line 19 to 21, you are talking of the forced expulsion of the

15     population and not an evacuation, and you say in explaining -- you say

16     because of -- it's not a flagged or a natural disaster, in this

17     particular I have a question.  Then in the correspondence and the various

18     documents that we have there is frequent reference to evacuation of the

19     population, so in your assessment at what point then does evacuation

20     become forced expulsion?

21             THE WITNESS:  Thank you, Judge.  Very fair question.  I would

22     have to see in the documents the reference to evacuation to know whether

23     that term was being used in the context of a proposal by the Serbs, in

24     other words, that was the term that they used and was reflecting that, or

25     whether it was reflecting an independent use of the term by

Page 10556

 1     David Harland.  So I would respectfully have to look and see what it was.

 2             There was the reference to the assessment of David Harland where

 3     evacuation was put in quotation marks and that I explained the purpose of

 4     those was because it's so-called as they say in Serbian [B/C/S spoken]

 5     so-so called evacuation.  We were -- I should put you at ease, Judge,

 6     that we were under no dilemma whatsoever that this was a forced

 7     expulsion.  I should just simply put the Chamber at ease about that.

 8     There was no -- absolutely no dilemma, no debate whatsoever.  We

 9     understood what this was and I don't think that it was not even a subject

10     of debate, discussion, or dilemma whatsoever.

11             JUDGE NYAMBE:  Okay.  I've asked my question in the context of

12     what is at page 53 today's testimony, lines 16 to 20, and I think it's

13     Mr. Thayer paraphrasing a question where he says:

14             "We can see Harland reporting that he received a message from the

15     Ukrainians indicating that the local Bosnians had accepted the terms of

16     surrender and evacuation of Zepa and that he asked Mr. B and yourself to

17     travel there," in that context.

18             I have asked my question in the context of those words.

19             THE WITNESS:  Thank you, Judge, that's very helpful for me.  And

20     in my understanding would simply be reflecting the -- what it seems to be

21     to me is the Ukrainians are reflecting the use of that term in this

22     agreement that has been made and that that's what's being reflected in

23     the report.  That would be my understanding.  The larger point here,

24     though, I'm trying to convey to the Chamber that there was no debate or

25     impression or I might even use the term, if the Chamber will permit me,

Page 10557

 1     illusion that this was anything other than a forced expulsion and that

 2     not anyone that I would know in the UN side would have any impression

 3     that this was somehow analogous to evacuating people for their safety as

 4     one would do in the nature of a flood or an earthquake.  If that answers

 5     your question, Judge.

 6             JUDGE NYAMBE:  Thank you.  Is there any time then in war when

 7     there is an evacuation or is it just in floods, in natural disaster that

 8     there can be an evacuation?

 9             THE WITNESS:  I suppose that -- I suppose that there could be

10     circumstances in the context of a war where one might -- we see today a

11     good example in Libya.  We see civilian populations being evacuated,

12     British, Germans, others being evacuated from there because of the unrest

13     and the risk there and what is a conflict, if not a war, a conflict in

14     Libya.  So, Judge, you are quite right, those circumstances do exist.  My

15     impression is that that was simply not what we were confronting at that

16     time in Bosnia.

17             JUDGE NYAMBE:  Thank you.

18             JUDGE FLUEGGE:  Mr. Thayer, please continue.

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

20             Okay.  If we could go to the next page in both versions, please.

21     Again, this is tab 12 for the record.  And I note for the record with

22     respect to the prior transcript which has now been received at

23     page 14316, this document was used by the Beara team in its

24     cross-examination but was not admitted at that point, but it's the same

25     document, just for the clarity of the record.  What we have here, as we

Page 10558

 1     can see, is another report, the same format, the date is 28 July, 1995,

 2     from Mr. Harland, and its subject is:  "Zepa Negotiations Number 11."  If

 3     we can go to the next page in both versions, please.

 4        Q.   We can see in the very first paragraph Mr. Harland is reporting

 5     that he spoke with you at about 0800 hours that morning on the 28th and

 6     that you had spoken to General Mladic about Avdo Palic.  The report here

 7     indicates that you told Mr. Harland that Mladic had said that Palic is

 8     dead when you asked him about what happened to Palic.  And I believe you

 9     clarified this in your prior testimony, and this is at transcript

10     page 4207, but just briefly, if you would, can you tell the Trial Chamber

11     whether your recollection is that Mladic actually told you that Palic was

12     dead or did he tell something else, do you think is possible?

13        A.   Let me say that this would inform my entire testimony here and it

14     might be interesting for the Chamber that there are certain things that I

15     have vivid memories of and other things that I have, where 16 years

16     later, almost 16 years later, the memories are much more hazy.  I have a

17     vivid memory of the efforts that Viktor and I made after Colonel Palic

18     was seized by Serb military personnel from the UNPROFOR compound and we

19     were eye-witness to this, including the immediate pursuit to try to

20     locate what happened to him.

21             What I recall is that we didn't see Mladic immediately, but I

22     believe the next day I had a radio conversation with Mladic, this is what

23     my memory is, from our location down in the village and to his location

24     where he was above, and it was at that time that I understood that he had

25     said Palic had been killed, and then subsequent to that what I recall is

Page 10559

 1     that Viktor and I saw later Mladic's interpreter and asked her to confirm

 2     that he had said that and my memory is that she, in some ways, had

 3     confirmed that.  What is a possibility to me is that there could have

 4     been either a mistranslation or misunderstanding where it's possible that

 5     Mladic might have said in Serbian "pobjegao" instead of something that

 6     might have come across at "ubio" or "ubio ga" something like that.  It

 7     might have been "pobjegao," in other words, he might have said he had

 8     escaped.  So that is a possibility that remains.  So that's my

 9     recollection of that communication.

10        Q.   Okay.  Let's look at the next paragraph on this page, second

11     paragraph.  Harland reports that:

12             "Ed also stated that he had met with General Tolimir

13     yesterday ..."  so that would be the 27th of July, "... and Tolimir had

14     told him that the Serbs would accept an arrangement under which the

15     Bosnian fighters in the hills could be transported by UNPROFOR to central

16     Bosnia as a part of the all-for-all exchange deal being negotiated at

17     Sarajevo airport."

18             My question to you is, given what Mr. Harland is reporting here

19     that you told him, did it appear to you that General Tolimir was

20     knowledgeable about what was going on at the Sarajevo airport or not

21     given that he is referring to the negotiations there?

22        A.   I would say yeah, based on the conversation that we had that it

23     was certainly apparent that General Tolimir was aware that these

24     negotiations were proceeding, I can't specify to what precision his

25     information was or how specifically he had awareness of where those

Page 10560

 1     negotiations were, but in general terms he was -- the context would have

 2     been one in which he would have been aware of the -- of those

 3     negotiations and what the general positions were of the sides.

 4        Q.   Okay.

 5             MR. THAYER:  I'm moving through my two hours, Mr. President.  I

 6     think at this point I have just three more documents.  I've cut the rest

 7     from my list and if I could have a couple of more minutes to spend with

 8     Mr. Joseph on these three documents I'd be helpful.

 9             JUDGE FLUEGGE:  Go ahead, please, Mr. Thayer.

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

11             If we could go to page 64, please, in the English and this would

12     be page 46 in the B/C/S.  Again we don't have a translation of the cover

13     page, the fax cover page, but we do have a translation of the substantive

14     memo of the report.  So for the record we can see we are at tab 13.  If

15     we could go to the next page, please.  We can see here in the English

16     only it's dated the 29th of July, 1995, another report in the same format

17     from Mr. Harland, the subject is:  "Zepa Negotiations 12."  And if we

18     could go to the next page in both versions, please.  We can see the same

19     information about the date, 29 July.

20        Q.   What I want to draw your attention to is on the next page, if we

21     could go to the next page in both versions -  the middle paragraph where

22     it says "also during the afternoon" we can see Mr. Harland reports:

23             "Also during the afternoon, I received a message from Ed Joseph

24     in Zepa who indicated that the Serbs were apparently planning to seise a

25     number of Bosnian fighters, ('war criminals') regardless of what

Page 10561

 1     agreement was reached.  He noted that the Serbs seemed to be using

 2     UNPROFOR to entice the Bosnians to give up their weapons, and were

 3     perhaps using UNPROFOR to give the Bosnians a false sense of security."

 4             If you would, can you just focus on that one paragraph, I know

 5     it's got a couple of points to it, but if you could take a moment and

 6     just explain to the Trial Chamber what you were communicating to

 7     Mr. Harland in this conversation you had with him that he is

 8     memorialising in this report?

 9        A.   I recall a conversation I had with General Mladic in which I

10     asked him was he going to permit -- if there were an agreement in

11     Sarajevo, was he going to permit the Bosnian men, Bosnian as we called

12     then, today we would probably say Bosniak, to continue on, and continue

13     on their way.  And the reason I asked this was because I had concerns in

14     this regard, and as I recall he said oh, yes, we will let them go except

15     for the war criminals, and I took that to mean that General Mladic and

16     his forces would exercise quite a bit of discretion as to whom they would

17     actually -- of the men of Zepa whom they would actually permit to leave

18     and whom they would not.  And that discretion might be very wide indeed.

19     That's what was the way I read and understood that.  And that would have

20     been what I -- in all likelihood this is what David is referring to.

21             The second part with using UNPROFOR to entice Bosnians to give up

22     their weapons, false sense of security, I think here reflects my own

23     skepticism, and I'm sure David sharing that and aware of that, of the

24     actual limitations of UNPROFOR to truly secure populations and number of

25     examples of that inability or failure.

Page 10562

 1        Q.   And let's focus on the men of military age who are implicit, I

 2     think, in this paragraph, correct me if I'm wrong, when you say that you

 3     were expecting that the VRS would exercise wide discretion in who they

 4     characterised as, to use the terms in the document, war criminals.  What

 5     concerns, if any, did you you have about what would happen to those men

 6     who General Mladic told you would be characterised as war criminals?  And

 7     if you had concerns, what were those concerns based on?

 8        A.   I would have concerns as to -- as to their safety.  I would --

 9     those were the concerns that I had, as to whether they would -- had been

10     promised freedom, would actually see that.  At that time we did not know

11     about the developments in Srebrenica, but as I said, the fact that so

12     many men were still missing was certainly something that was quite

13     present in my mind, and we also -- I understood that from the Serb

14     perspective these were -- these were fighters, these were their enemy,

15     and to permit a sizeable number of their enemy to continue across the

16     lines only to then be re-engaged against them, I did not -- I was not

17     convinced that the Serbs would simply permit that to happen.

18        Q.   Okay.  I'm going to press you just a little bit.  When you say

19     you have -- you said you had concerns as to their safety.  I mean, war is

20     a dangerous time, that area is a dangerous place just to drive a car.

21     When you are talking about safety, what are you referring to, sir, if you

22     could be more specific?

23        A.   I have to be careful here because we are talking about -- I'm

24     trying to be as precise for this Chamber as I can be about my awareness

25     at the time.  The problem, of course, is its a matter of record of what

Page 10563

 1     transpired in Srebrenica, so I'm trying to be as precise as I possibly

 2     can to disregard what we've all come to know transpired in Srebrenica

 3     from what my state was at the time.

 4             I had -- I had a great amount of fear that at least some of these

 5     men might well be killed.  So I had a fear that they -- some of them

 6     might well be executed.  Did I -- at that time was I convinced or worried

 7     that all of them would be executed?  I don't know.  I don't know

 8     necessarily that I was, but I had certainly a concern that some of them

 9     would be in mortal danger if they fell into General Mladic's control.

10        Q.   Okay.

11             MR. THAYER:  Let's move to page 69 in e-court for the last two

12     documents.  This is tab 14 for the record.  We don't have a translation

13     unfortunately in B/C/S, so if we could just focus on the next page in

14     English, please.  We can see it's also dated the 29th of July, another

15     report in the same format from Mr. Harland, the subject here is:

16     "Zepa Negotiations Report Number 12."  And I think everybody will agree

17     shortly that this is a typo and it should be 13 as we'll see from the

18     next page.  If we could go to the next page, please.  We can see here the

19     subject is:  "Negotiations on Zepa, Report 13."  What I'd like to do is

20     go to the next page and focus on the portion that involves yourself.

21        Q.   Mr. Harland is reporting on a conversation that he had with

22     Mr. Bezruchenko and then you.  We see in the paragraph just before the

23     assessment, Mr. Harland reports:

24             "Ed then spoke and repeated that General Tolimir had told

25     General Gobillard that UNPROFOR could evacuate the men of Zepa directly

Page 10564

 1     if the Bosnians would accept an all-for-all prisoner exchange."

 2             My question is casting your memory back to this time, did you

 3     draw any conclusions at all about General Tolimir's intentions from this

 4     conversation that you had with him where he expressed what's being

 5     reported here?

 6        A.   Could you clarify the word "intentions" please.

 7        Q.   Sure.  Did you take what General Tolimir told you at face value,

 8     let me ask it that way?

 9        A.   I'm not sure that I can say right now without reference to other

10     documents or -- I can say I know that from our standpoint and from my

11     standpoint we were looking, and always as UN personnel, were always

12     exploring and looking for any possibility of striking an agreement that

13     could save lives and alleviate a stand-off and so -- but precisely an

14     inference as to a specific intention, I don't know from that paragraph if

15     I can say.  Sorry.

16        Q.   Let me ask you this, and I'll pause just for a second:  On the

17     29th of July, where were the men of Zepa?

18        A.   From our knowledge that we had, they were above us hiding in

19     these dense forests, in these steep hills and dense forests.

20        Q.   Okay.  And did UNPROFOR or the VRS have any custody or control

21     over those men at that point?

22        A.   No, we did not.  Neither we nor did the Serbs.

23        Q.   You just testified that General Mladic told you that they would

24     permit all of the men from Zepa to simply walk to free territory, and

25     you've told us about your concerns for their safety.  So my question is,

Page 10565

 1     when General Tolimir told you that these men could be evacuated directly,

 2     if they accepted an all-for-all, was that part of the context in which

 3     you had this conversation or not or if you can't remember that's fine

 4     too, just trying to get your best recollection of what you -- let me put

 5     it this way, to use the phrase "took away" from that conversation with

 6     General Tolimir?  Not asking you to try to read his mind.  You don't have

 7     that degree, but just asking you what you took away.

 8        A.   Absolutely.  You have to please understand, and if the Chamber

 9     would understand, that there is an obligation on our part doing in effect

10     mediation to reflect the formal position that a senior responsible party

11     like General Tolimir conveyed to us.  So the fact that he conveyed that

12     position we had an obligation, regardless of whether we felt it

13     ultimately credible or not, but that this reflected in any event a

14     position that he as a senior and authoritative interlocutor would tell

15     us.

16             That being said, if you ask separately, was I somehow assured

17     that, unlike with General Mladic, that General Tolimir having said this

18     that oh, that that would somehow assure that these men would arrive

19     safely, my answer to that is no.  My answer to that is my same

20     preoccupation for the ultimate safety of those men remain the same with

21     what General Tolimir had told me or and what General Mladic had told me,

22     that in either case had such a deal -- my mind was concerned that in fact

23     they would come to an agreement and that how we would, as UNPROFOR,

24     create the modalities so that these men would not be snatched in the

25     midst of it, and that apprehension and preoccupation applied with

Page 10566

 1     equality whether with respect to General Mladic or General Tolimir.

 2             MR. THAYER:  Okay.  The last document I wanted to use is actually

 3     on the Defence's list of exhibits, it's 65 ter 7208.  I'll stop here,

 4     Mr. President, and if the Defence picks up that document then fine, if

 5     not, that's fine too, and that concludes my examination-in-chief.

 6             JUDGE FLUEGGE:  I take it that you are tendering the whole

 7     package 65 ter 2438?

 8             MR. THAYER:  It's a little premature right now, Mr. President.

 9     There are a couple that I cut out that we'll use with another witness, so

10     we'll just let it lie for now and we'll tender it at another time.

11             JUDGE FLUEGGE:  Thank you.

12             Mr. Tolimir, you may commence your cross-examination now.

13             THE ACCUSED: [Interpretation] Thank you, Mr. President.  Good

14     afternoon to everyone yet again.  May there be peace in this house and

15     may God's will be done in these proceedings and not mine.

16                           Cross-examination by Mr. Tolimir:

17             MR. TOLIMIR:  [Interpretation]

18        Q.   Good afternoon to the witness again.  I'd like him to answer my

19     questions as he remembers them and based on his knowledge, not on

20     assumptions.  After all, I think that the Prosecutor did seek some

21     speculative answers from the witness, what would have happened had the

22     case been such and such, and I will not venture there.  I would like us

23     to stick to the facts.

24             Let's start from the last document, page 66, line 5.  It says,

25     the Prosecutor told you, you said that General Mladic said that everyone

Page 10567

 1     should cross over to free territory and were guarantees any different

 2     when Tolimir told you this, and then you said on page 66 that it didn't

 3     matter really whether it was General Mladic or I that told you this, you

 4     felt preoccupied for these men and you wanted to see the agreement

 5     carried out without the Muslims being taken away by the Serbian Army.

 6     Please tell me this, do you recall, did most of the combatants, those

 7     wounded who were really in combat, and were known to be in combat, were

 8     wounded, were they allowed to leave without any conditions and based on

 9     the agreements that I gave to you and Palic?  Thank you.

10             JUDGE FLUEGGE:  You should switch off your microphone,

11     Mr. Tolimir, during the discussion with your legal advisor.

12             THE WITNESS:  Thank you, let me return the wishes here about the

13     proceedings, and let me state that; that is, the answer to the question

14     were the seriously wounded permitted to be evacuated, the answer to that

15     is yes, they were.  This was a subject, this was part of the agreement,

16     and it was respected.  There was -- there were specific conditions

17     applied.  There was a doctor from the Serb army and an UNPROFOR doctor,

18     and the two of them examined the men and determined which ones were in a

19     serious condition such that they had to be medivaced out and I believe

20     ICRC was there, so the answer to the question is yes, those -- those men

21     were evacuated, those soldiers.

22             THE ACCUSED: [Interpretation]  Thank you.  Please let us look in

23     e-court, document D55 page 29 in Serbian, let's look at that.  Thank you.

24             MR. TOLIMIR: [Interpretation]

25        Q.   I'll read the relevant paragraph to see what the number of the

Page 10568

 1     wounded was really since you couldn't remember it.  And I'm quoting:

 2             "On the 25th of July, UNPROFOR started the evacuation from Zepa.

 3     The French battalion Sector Sarajevo sent a convoy to Zepa for the

 4     evacuation of the wounded.  On the following morning, the convoy returned

 5     to Sarajevo with 151 people, 29 were seriously wounded and immediately

 6     treated by the medical staff at the Sarajevo hospital.  Around midnight,

 7     around 1.000 people were evacuated by the VRS with their own buses and

 8     they were take to the confrontation line near Kladanj," and so on and so

 9     forth, end of quote.

10             This is my question:  Based on this, is it not obvious that the

11     Army of the Republika Srpska fulfilled the terms of the agreement without

12     placing any subsequent conditions that had not been previously included

13     into the agreement?  Thank you.

14             JUDGE FLUEGGE:  Mr. Tolimir, for the record and for the sake of

15     the witness, it would be helpful if you could indicate from which

16     document you are reading and which document is it we have on the screen.

17             THE ACCUSED: [Interpretation] Thank you, Mr. President.  This is

18     Viktor Bezruchenko's report and he was with Mr. Joseph in Zepa.  Upon

19     their return, he drew up this report for the purposes of the Prosecution

20     as their witness, so in other words, it's Mr. Bezruchenko's own report;

21     therefore, a gentleman who was -- who went on this mission together with

22     Mr. Joseph.  Thank you.

23             THE WITNESS:  Shall I answer?

24             JUDGE FLUEGGE:  Yes, please.

25             THE WITNESS:  Okay.  I would answer with three points.  I say

Page 10569

 1     three so I remember to address all three.  The narrow answer to the

 2     question put to me is yes.  The seriously wounded, as is reported in what

 3     General Tolimir has referred to as Mr. Bezruchenko's report, is correct,

 4     that the seriously wounded were evacuated.  The people, it says "people,"

 5     but we are talking about women and children there, were evacuated, and

 6     that is true.  Because the question was posed to me in the context of my

 7     view about what would have happened to the men who were hiding in the

 8     hills, I can tell you that the fact that these seriously wounded were

 9     evacuated and the fact that the women and the children were evacuated,

10     neither now nor then at all affected my apprehension for the safety of

11     those men and this would be borne out when we discussed the question of

12     the lightly wounded men who my understanding was were not permitted

13     safe -- who were given permission to me to pass but were in fact seized

14     by VRS shortly after they exited Zepa.

15             THE ACCUSED: [Interpretation] Thank you.  We will come back to

16     that question later as to why they were kept and subsequently exchanged.

17     Let's leave that for later.  Let's look at document D51, please.  Thank

18     you.

19             MR. TOLIMIR: [Interpretation]

20        Q.   We have the document before us entitled "Agreement on the

21     disarmament of the Able-bodied Population in the Zepa Enclave."  We can

22     see that it was agreed to on the 24th of July, 1995, between Rajko Kusic

23     who was the commander of the VRS Brigade and Hamdija Torlak on the other

24     who was the president of the executive committee of Zepa in the presence

25     of the UNPROFOR representative Semjon Dudnjik.  Let's look at item 1

Page 10570

 1     which says that a cease-fire should be forthwith established between the

 2     warring parties.  So my question for you is:  Was a cease-fire

 3     immediately established in view of your arrival on the 24th when, as you

 4     say, you came across those women in the centre?  Thank you.

 5        A.   Two answers to this question.  The first is, yes, there appeared

 6     to be no firing, and a cease-fire, yes, did appear to be in place in

 7     there, yes.  And part two to my answer is this agreement was not

 8     something that we thought we were implementing.  I think there was

 9     reference to another document in which I had raised to General Smith the

10     question of the validity of a local civilian conveying a surrender of

11     military forces, and I had raised the question according to laws of war

12     as to whether that had effect.

13             And for example, this paragraph 5 that Commander Palic shall

14     start disarming his units immediately.  This is something that this

15     document and such a paragraph, this had absolutely no bearing on what we

16     were doing there.  We were there to, yes, an understanding that a

17     cease-fire was in place, but we were there to effect the -- this

18     transport as safely and securely and humanely as we could of initially

19     the civilian population and perhaps in time of the male population as

20     well, whether they be military or civilian.  Thank you.

21             JUDGE FLUEGGE:  Mr. Thayer.

22             MR. THAYER:  Mr. President, just so there's no confusion on the

23     record, and I don't think there will be any dispute from the Defence on

24     this, I think the witness's testimony has been clear and consistent that

25     he arrived for the second time on the 25th of July, not the 24th as

Page 10571

 1     General Tolimir may have misspoken in his question.  So I just wanted to

 2     clarify that for the record, again I don't think there's any dispute but

 3     just so we have a clear record.

 4             JUDGE FLUEGGE:  The witness can help us with this.

 5             THE WITNESS:  Mr. President, for that I refer to the documents.

 6     And I believe the documents do show that Viktor and I returned on the

 7     25th.  I believe that that's the case.  Again, relying with reference to

 8     documents.

 9             JUDGE FLUEGGE:  Thank you very much.

10             Mr. Tolimir, please continue.

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

12             MR. TOLIMIR: [Interpretation]

13        Q.   Please, as soon as you feel that I misstate certain facts in

14     relation to either documents or your knowledge of them, please draw my

15     attention to that, I am not opposed to that at all.

16             Let's look at item of the agreement which reads that:

17             "The civilian and able-bodied population of Zepa shall assemble

18     around the UNPROFOR base in Zepa which will be a sign to the army that

19     the units under the command of Avdo Palic have accepted a truce and will

20     not try to take advantage of it."

21             When you got there, did you see around the UNPROFOR base women,

22     children, and civilians?  Thank you.

23        A.   Yes, I did.

24        Q.   Thank you.  Let's look at item 5 that you've just referred to,

25     that Avdo Palic shall commence disarming his units and that all the

Page 10572

 1     weapons shall be handed over to the VRS representatives in the UNPROFOR

 2     base this Zepa.  Was it realistic, the request put forth by the Muslims,

 3     that the army should be disarmed, the army under the command of

 4     Avdo Palic, and that the weapons be surrendered to the UNPROFOR base?

 5     Thank you.

 6        A.   Perhaps the -- I was not listening to you -- to the accused in

 7     Serbian, but I think there might have been a mistake perhaps in the

 8     translation.  Is -- "was a Serb demand."  You said was -- it was

 9     translated as "a Muslim demand," but you were asking whether the Serb

10     demand was reasonable.  Is that your question, General?

11        Q.   Thank you.  In order to avoid any confusion, this is an agreement

12     in which both sides agree on several things, among them that Avdo Palic

13     shall commence disarmament of his units, and that all weapons should be

14     handed over to the representatives of the VRS in the UNPROFOR base in

15     Zepa.  So is this one of the stipulations of this agreement agreed to by

16     both parties?  It certainly wasn't only the view of the Serbian side

17     because if the Muslims didn't agree with that, they could have said it

18     and there would be no agreement then.  So you took part in the

19     negotiations and in the signing of this agreement, do you consider that

20     this was a one-sided view or that this was indeed an agreement signed by

21     both parties?  Thank you.

22        A.   Thank you for restating and clarifying the question.  I need to

23     be very, very clear for the Chamber.  I was not present for the signing

24     nor was I present and nor did I or Viktor have any role whatsoever in the

25     negotiations for this document.  Again, if you can see, it's dated 24

Page 10573

 1     July and we returned to Zepa on the 25th.  These were presumably, not

 2     something I know, but presumably these were discussions, General, that

 3     your side had with these -- this civilian leader and I think there were

 4     other civilian leaders including the hodza who then went missing.

 5     Then -- so we were not witnesses or privy to this document.  That's

 6     number one.

 7             I don't want to speak too fast for the translation.

 8             JUDGE FLUEGGE:  I think it's fine.

 9             THE WITNESS:  Okay.  Then the other point I want to underscore is

10     that we -- I do not recall us in any respect thinking that we were

11     implementing or assisting in the implementation of this document.  It

12     was -- we were there as I said, to as humanely and safely as possible to

13     be in a co-ordinating role for the transport of this population.  And as

14     I restated, there was a question even then, General, that General Smith

15     understood and when I conveyed it to him about the validity of this, so

16     that -- that's all being said.

17             Now, if you want my opinion on the Serb position, if you want my

18     opinion on whether it was reasonable to ask for the Muslim side to

19     disarm, in the context, this was a common demand as we know.  This had

20     been done in Srebrenica back with General Morillon in 1993 and there

21     was -- this was a frequent and common demand was demilitarisation.  So

22     that's as far as I think I need to go on that.

23             THE ACCUSED: [Interpretation] Thank you.  Can we now move the

24     page upwards in e-court in both languages so that you could see the

25     signatures in both languages.  Thank you.  Yes, English as well.

Page 10574

 1             MR. TOLIMIR: [Interpretation]

 2        Q.   There are no signatures in the English version, but you can here

 3     see, oh, yes, yes, on the second page you can see the signatures.  And

 4     you can see that it was signed in the middle by Semjon Dudnjik.  Can you

 5     tell the Trial Chamber who was Semjon Dudnjik and who was it who he

 6     represented during the drafting of this agreement?  Thank you.

 7        A.   General Tolimir, wishing to truly be as helpful and co-operative

 8     as I can be, I can't tell you the answer to that question.  As I said, I

 9     was not present for that, and I honestly and genuinely don't recall him.

10     I do recall meet Mr. Torlak.  I have a memory of him.  It's possible I

11     met Mr. Dudnjik, but I -- at this time I simply can't answer your

12     question.  I apologise.

13             JUDGE FLUEGGE:  One moment.  One moment, please.  Judge Mindua

14     has a question for the witness.

15             JUDGE MINDUA: [Interpretation] Yes, Mr. Registrar, can we please

16     go back to the previous page in English.

17             JUDGE FLUEGGE:  And it should be enlarged a bit.  Thank you.

18             JUDGE MINDUA: [Interpretation] There we go.  Very well.

19             Witness, today in the transcript on page 74, line 21, following a

20     question that was put to you by General Tolimir, you said that it is

21     quite usual that a party requests of another party to give back the --

22     render the weapons, surrender weapons, and this had already happened in

23     1993 while General Morillon was present.  If we go back to the document

24     that's on the screen, in the fifth paragraph - and I will translate it in

25     French, but you can read it in English - it says:

Page 10575

 1             "Avdo Palic shall start disarming his units immediately and all

 2     the weapons should be handed over to the VRS representative in or of the

 3     Army of Republika Srpska at the UNPROFOR base in Zepa," end of quote.

 4             I would like to ask you the following:  When we talk about those

 5     weapons, they were supposed to be handed over really to the

 6     representatives of the VRS or were they supposed to be handed over to the

 7     UNPROFOR?  Can you therefore explain to us what was going on exactly with

 8     respect to the handing over of the weapons or, rather, by the

 9     demilitarisation of the enclave and the handing over of all the weapons

10     of the UNPROFOR -- to the UNPROFOR.  Thank you.

11             THE WITNESS:  Judge, I understand your question and what I can

12     tell you is my understanding at the time was that there was no agreement

13     on demilitarisation.  I will -- [French spoken].

14             [Interpretation] And if you will, I will answer in French if you

15     want me to.

16             JUDGE MINDUA:  [Interpretation] That's very good.  Thank you very

17     much, yes.

18             THE WITNESS:  But the point to emphasise here is that this

19     provision on demilitarisation had no validity as far as the UN was

20     concerned as far as I know.  This was an agreement that a civilian

21     representative who had -- civilian representatives who, my understanding

22     is, had no authority to make commitments with respect to weapons had

23     made, and I would presume - I'm going to underscore presume - that they

24     made this agreement under great duress.  The person in Zepa who had

25     authority to agree to demilitarisation and surrender of weapons was

Page 10576

 1     Colonel Palic, who was the military commander.  And he is the one who had

 2     the authority to make such a commitment.

 3             So -- and these -- I should add, Judge, for the context, you

 4     know, the UN was very familiar with agreements on demilitarisation and

 5     was not necessarily legally a party but a witness to such agreements and

 6     where the UN assumed obligations, it was with very careful awareness and

 7     involvement of UNPROFOR military, and that was not the case.  This was,

 8     as I understand it, this was a document that was negotiated presumably

 9     under great duress by these civilian leaders trying to avert the

10     continued bombardment of the town.  And again, I can only emphasise to

11     you that this provision about demilitarisation had -- it was not

12     something that we were in the slightest implementing, monitoring, and I

13     recall no discussion among UNPROFOR military either.  This had simply

14     no -- was not a -- valid in that sense.  It conveyed an intention

15     basically to give up but it was not -- this is not the document under

16     which we were there in Zepa.

17             JUDGE MINDUA: [Interpretation] Thank you very much indeed.

18             JUDGE FLUEGGE:  May I draw your attention to the first paragraph

19     of this agreement, the top of this page.  You see there:

20             "On the 24th of July, 1995, the following agreement was reached

21     between Rajko Kusic on one side and Hamdija Torlak on the other, in the

22     presence of UNPROFOR representative Semjon Dudnjik."

23             Perhaps that rings a bell.

24             THE WITNESS:  Thank you, Mr. President.  It does not ring a bell

25     in terms of the -- thank you for pointing that out.  It does not ring a

Page 10577

 1     bell in terms of that oh, now I remember this individual, I do not, but

 2     now what I presume is that this was the Ukrainian senior officer of the

 3     Ukrainian battalion, and that he was indeed present there.  I can tell

 4     you though from my perspective as a UN civil affairs officer, we did not

 5     believe that we were there, or simply we did not have copies of this and

 6     were carrying out a provision, paragraphs of this.  My memory of this is

 7     that we did not operate from this document as valid, notwithstanding the

 8     fact that there was this Ukrainian officer who was present.  As I

 9     mentioned, this came up in a subsequent meeting when General Smith who

10     was the overall commander was there as to whether or not this was valid,

11     and I pointed out to General Smith that there's a question as to whether

12     a civilian representative, Mr. Torlak, had authority to surrender weapons

13     on behalf of his military which he did not.

14             But you are quite right, Mr. President, absolutely, to point out

15     that there presumably was an UNPROFOR representative.  That being said,

16     at no time do I recall us in any way carrying out, monitoring, accepting

17     weapons or even really that being a matter of discussion.

18             JUDGE FLUEGGE:  Have you any information about the authority of

19     Mr. Dudnjik to sign such an agreement not as a part of the negotiations

20     but on behalf of UNPROFOR to state his presence during this assignment?

21             THE WITNESS:  Completely valid question and I -- I simply do not

22     know whether he had sought and obtained authorisation to witness this and

23     to be a part of this.  I don't know that and I'm sure if General Smith

24     comes and testifies, he can attest to that.  But this was not the

25     document that we felt we were there to do, and again I don't recall any

Page 10578

 1     discussion and there would have been, and there of would have been.

 2     General Smith, I had spoke to him, he had personally originally directed

 3     us to go there, and we would have been made aware, as would the French

 4     military when they arrived that, oh, there would have been modalities set

 5     up for collecting these weapons and centralising them and those

 6     discussions.  It was simply not an issue.  We were focussed on this

 7     population transport.

 8             JUDGE FLUEGGE:  Thank you very much.  The next question by Judge

 9     Nyambe.

10             JUDGE NYAMBE:  Is it your position then that you don't recognise

11     the validity of this agreement then or now?

12             THE WITNESS:  Judge, speaking about events that took place 16

13     years ago, I do not recall that we, Viktor Bezruchenko and I, the civil

14     affairs officers who were there to co-ordinate the evacuation, I do not

15     recall that we operated from the basis of this document at all.  And it

16     would be very unusual for us to go into such a situation where there were

17     a document that was presumably what was to be implemented and then sort

18     of disregard it and not pay attention to it.  To the contrary, any

19     time -- we took very seriously any agreements and documents, and I do not

20     recall that we at all referred to such a document.  We were there, we

21     understood that there had been an agreement for the women and children to

22     be evacuated.  That's what we understood.  And that there was a question

23     about what would happen to the men was -- was up in the air, and with

24     respect to their arms, I simply don't recall any reference to this

25     whatsoever, Judge.  I hope I've answered your question, Judge.

Page 10579

 1             JUDGE NYAMBE:  Thank you.

 2             JUDGE FLUEGGE:  After this round of questions by the Judges, we

 3     have reached the time-limit of today.  It is 7.00, we have to adjourn,

 4     and we ask you for your patience, you have to come back tomorrow in the

 5     afternoon.  We are sitting in Courtroom III again at 2.15.  Thank you

 6     very much.  We adjourn.

 7                           --- Whereupon the hearing adjourned at 6.59 p.m.

 8                           to be reconvened on Tuesday, the 1st day of March,

 9                           2011, at 2.15 p.m.