Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11383

 1                           Wednesday, 9 February 2011

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.02 a.m.

 5             JUDGE KWON:  Good morning, everyone.

 6             Good morning, Mr. Robinson.  You have something to raise?

 7             MR. ROBINSON:  Yes, I do.

 8             Thank you very much, Mr. President, and good morning.

 9             Mr. Tieger and I have been discussing this morning the issue of

10     Rule 70 and its application to the testimony of General Smith as it

11     relates to the events on the 27th of May, and we think that we should

12     probably go into private session for this part of the discussion, if

13     that's okay.

14             JUDGE KWON:  Yes.

15   [Private session]  [Confidentiality lifted by order of the Chamber]

16             JUDGE KWON:  Yes.  I wanted to note that we are sitting without

17     Judge Lattanzi, who is not with us, due to urgent matters, for the rest

18     of the week.

19             Yes, Mr. Robinson.

20             MR. ROBINSON:  You recall that yesterday an issue came up

21     concerning -- whether testimony about the incident at the Vrbanja Bridge

22     on the 27th of May, 1995, had to be heard in private session.  And this

23     morning, Mr. Tieger has given me a copy of a letter that was sent to us

24     on the 5th of February, 2010, and it may be that the Chamber would also

25     benefit from seeing this letter if, during the course of my remarks, you

Page 11384

 1     think it's a good idea, I can hand up my copy.  But in the letter, it

 2     says that the witness statement of Rupert Smith, dated the

 3     22nd of October, 2009, is being disclosed to us, and there is one

 4     condition, and that is that under paragraph 134 of the statement, we're

 5     not to disclose that to any other third parties.  And I haven't seen that

 6     statement yet, but I assume that paragraph 134 relates to the events of

 7     the Vrbanja Bridge.  But we don't believe that, first of all, this means

 8     that any testimony by General Smith about this topic is covered by this

 9     Rule 70 agreement.

10             We note that we subsequently received an amalgamated statement

11     earlier this year, and it contains several paragraphs relating to the

12     result of the Vrbanja Bridge, and no condition was placed on our

13     disclosure or dissemination of the information concerning that.

14             In addition, the incidents at the Vrbanja Bridge are covered by

15     numerous documents that we intend to use during our cross-examination

16     that have been disclosed to us by the United Nations with no Rule 70

17     conditions, and so we don't -- while this witness statement that was

18     covered by Rule 70, we don't intend to use that, and maybe that -- any

19     questions about that witness statement should be in private session.

20             We don't think that the Rule 70 provider is entitled to or has,

21     even, insisted that all discussion of this Vrbanja Bridge incident be

22     held in private session.  And if they did, then we believe that that

23     would be a condition that would infringe upon the right of the accused,

24     and we would ask for an exclusion of General Smith's testimony as a

25     result of that, because essentially you're allowing the evidence that the

Page 11385

 1     Bosnian Serbs took hostages and keeping from the public evidence that the

 2     UN also took four Serbs as prisoners and negotiated their exchange.  So

 3     we don't think that that would be fair, to have that kind of slanted

 4     presentation for the public about the events that are the subject of

 5     Count 11.

 6             Thank you.

 7             JUDGE KWON:  Can we have a copy of that letter, in the meantime.

 8             Yes, Mr. Tieger.

 9             MR. TIEGER:  This is relatively straightforward and, I believe,

10     is being unduly complicated by the Defence at this point.

11             A couple of points of clarification.

12             First of all, it's not a Rule 70 agreement.  Information was

13     provided on that basis, and the Rule 70 provider, as the Court is well

14     aware, frequently places restrictions on the information that it

15     releases.

16             Secondly, this is a trial, not a public relations effort, and the

17     reality is the Court will be fully informed about the events, to the

18     extent that it's possible through witnesses, by virtue of the fact that

19     this information has been released so that it can be discussed with the

20     Court, albeit in private session.

21             The distinction that Mr. Robinson attempts to draw between the

22     nature of the release with respect to the witness statement, at a time

23     when it was anticipated that the witness's testimony would be given in

24     this fashion is a specious one.  It's quite clear that we believe, from

25     reading this, that the restriction is as stated on the information

Page 11386

 1     related to that narrow topic, and we're simply attempting to abide by the

 2     provider's restrictions.

 3             In any event, the impact on the fairness of this trial is not

 4     only negligible, it's non-existent, and this is, I think, a highly

 5     unrealistic attempt to inflate this issue into something it's not.

 6             As Mr. Robinson noted, this matter will be -- to the extent it's

 7     important, it's going to be raised by the Defence.  They'll be talking

 8     about it.  There's no restriction on what they can talk about.  They will

 9     have the benefit, in fact, of whatever information this witness may have

10     to provide the Court, and can rely on that to whatever extent they think

11     is useful, and can refer to it in an appropriate fashion, since it would

12     have been elicited in private session.  But to the extent it's

13     significant that the -- to the Defence that they alert the public to this

14     issue, they're going to do so.  There's no restriction on discussing the

15     incident to the extent they're aware of it.  The only restriction here is

16     on citation to this witness's evidence and identification of or release

17     of that information in public.

18             As the Court is well aware, the Tribunal deals with this issue

19     constantly, and references are made in final arguments and in closing

20     briefs to propositions that are supported by information elicited in

21     private session, but the subject-matter of which is openly discussed

22     generally, and the citations are appropriately safeguarded.

23             This is not a problem and shouldn't be inflated into one.

24             JUDGE KWON:  I'm not sure I'm following this in its entirety.

25             What information is it that was provided pursuant to Rule 70?

Page 11387

 1             MR. TIEGER:  Well, this witness is a Rule 70 witness, and --

 2             JUDGE KWON:  I don't follow that this witness is a Rule 70

 3     witness.  Is this witness provided by the United Nations?

 4             MR. TIEGER:  Yes, Your Honour, and we had to -- we have to seek

 5     clearance for such witnesses from the UN, and we do so.  And the only

 6     restriction on this witness's information and testimony is the one

 7     indicated.  Other restrictions by the provider could have been imposed,

 8     or presumably, you know, much more significant than the narrow one we're

 9     considering at the moment.

10             JUDGE KWON:  So in order to hear the evidence of this witness,

11     you had to get the clearance of the United Nations, and the

12     United Nations put that condition?

13             MR. TIEGER:  Yes, Your Honour.

14             JUDGE KWON:  And that condition being -- could you repeat what

15     the condition was?

16             MR. TIEGER:  It relates to information -- information regarding

17     the detention of four individuals by UNPROFOR, which in this case refers

18     to the --

19             JUDGE KWON:  Because we don't have that paragraph, we don't have

20     the statement.

21             MR. TIEGER:  Well, that information regarding the -- regarding

22     the detention of the four individuals is contained in the paragraph, but

23     the paragraph is broader than that, so it's sort of a reference point for

24     that.  And the statement says:

25             "We held --"

Page 11388

 1             In the middle of the paragraph, it states:

 2             "We held four Bosnian Serb prisoners, and they held hundreds of

 3     ours.  They had surrounded who were people besieged ...," et cetera, as

 4     he goes on to other parts of the information in the paragraph which are

 5     not the subject of this restriction.

 6             JUDGE KWON:  Could you clarify what you meant when you said

 7     there's no restriction on discussing the incident to the extent they are

 8     aware of it?

 9             MR. TIEGER:  The Defence can ask other witnesses for whom there

10     are no restrictions about it.  They can call witnesses about this

11     incident.  They can argue the incident.  I mean, this restriction

12     wouldn't impose any barriers on that.  This is a restriction related to

13     the information provided by this witness only.

14             And before I -- I would also note that with respect to the

15     document that gave rise to this discussion, that was also provided on

16     condition it be used in private session.

17             But with respect to other witnesses, and for whom there are no

18     related similar restrictions, of course, the issue can be probed to the

19     extent the Defence considers appropriate.  And Mr. Robinson has also --

20     has already alluded to the fact that he's aware of documents that don't

21     have such restrictions and will come in publicly.

22             JUDGE KWON:  Do we have that witness statement dated

23     22nd of October in e-court?  Can we up-load it so that we can -- or could

24     you hand over the copy so that we can take a look, if it is okay.

25             MR. TIEGER:  I think it's in e-court, Your Honour.  For the

Page 11389

 1     Registrar's benefit, it would be 22686.

 2                           [Trial Chamber confers]

 3             JUDGE KWON:  This one is dated as 25th-26th June and

 4     September 21st.  It has no comment about Vrbanja Bridge incident at all.

 5             MR. TIEGER:  No.  I wanted to clarify that, Your Honour, in a

 6     sense.

 7             So there's no -- there's no restriction on discussion of the

 8     Vrbanja Bridge incident.  That's quite correct.  However, in this -- the

 9     restriction is with regard to four persons detained.  But parsing that

10     out is rather difficult.  So certainly someone alerted to those

11     restricted guided by questions which took account of that distinction

12     could ask questions publicly about the Vrbanja Bridge incident.  But

13     since that would -- that might well quickly lead into the eliciting of

14     information that four persons were detained as a result of and the

15     aftermath of that incident, it's quite difficult to imagine precisely

16     how -- or in what context that would be discussed without intruding upon

17     the issue of the four detained persons.  But clearly, theoretically and

18     in the abstract, there's no restriction on discussing the incident at the

19     Vrbanja Bridge.  The concern would be the extent to which you could do

20     that without then entering into a discussion of or eliciting information

21     about the four detained persons.

22             So I think the Court's quite right, there is a distinction.  But

23     in a practical sense, it might be a hard one to --

24             JUDGE KWON:  It's difficult, what the condition was, actually.

25             Having read this paragraph -- before that, why was it that the

Page 11390

 1     Court was not notified of such condition before we started hearing

 2     evidence of this witness?

 3             MR. TIEGER:  Well, both parties --

 4             JUDGE KWON:  So the one option was not to hear this witness's

 5     evidence at all, if the Court was to find that that condition is not fair

 6     and in the interests of justice.

 7             MR. TIEGER:  Well, you've heard our position on its fairness.  We

 8     would have expected to be alerted to any view to the contrary by the

 9     Defence, having had possession of this information for approximately

10     one year, so this was not and could not have been anticipated as any kind

11     of problem, nor should it be a problem.

12             I agree, it's a matter that the Court, under other circumstances,

13     might need to resolve, but there was no indication here that there was

14     such a problem that needed to be brought to the Court's attention.  And I

15     still consider that it is not a problem of any -- of such magnitude that

16     it should be taking as much time as it is.  In other words, it was only

17     belatedly brought to our attention that the Defence had any concerns

18     about this.

19             JUDGE KWON:  According to this correspondence from the

20     Prosecution to the Defence, it says like this:

21             "Please be advised that the statement of this witness is provided

22     under the following conditions which relates to information regarding the

23     detention of four individuals by UNPROFOR contained in para 134 of said

24     statement."

25             So as far as these four individuals are concerned, that should be

Page 11391

 1     discussed under Rule 70 conditions.  That's all what you were told by the

 2     United Nations; nothing else about -- which is contained in 134; for

 3     example, the first sentence -- or second sentence?

 4             MR. TIEGER:  That's correct, Your Honour.

 5             MR. ROBINSON:  Excuse me.

 6             JUDGE KWON:  Yes, Mr. Robinson.

 7             MR. ROBINSON:  This is very imprecise, and I think we would all

 8     be aided by seeing the written correspondence between the United Nations

 9     and the Prosecution in which they placed the condition on -- the first

10     question I think that I asked Dr. Karadzic to ask about this topic was

11     did they have the consent of the Bosnian Serbs, and this is also covered

12     by this paragraph.

13             So this is very vague as to what exactly the Rule 70 provider has

14     requested as a condition.  I think you ought to see some documentation on

15     that so we know exactly, first of all, what is the scope of the requested

16     condition so you can enforce that, and then you can, secondly, decide

17     whether enforcing that would make the trial unfair and deprive

18     Dr. Karadzic of his right to a public trial.

19             MR. TIEGER:  Your Honour, please --

20             JUDGE KWON:  In this regard, I usually take the words of the

21     Prosecution.  But as indicated by Mr. Robinson, it was the condition

22     which was put in relation to this witness doesn't seem to be clear to the

23     Court.  So could you reiterate what the condition was?

24             MR. TIEGER:  It's regarding the information regarding the

25     detention of four individuals by UNPROFOR in that paragraph.  As you see

Page 11392

 1     in the paragraph, Your Honour, the disclosure of that information is

 2     strictly limited to the accused, his counsel and expert advisors, and the

 3     Tribunal, and the accused's counsel and expert advisors are prohibited

 4     from divulging that information to the media or any third party.  And in

 5     the event that the witness statement comes into evidence, the reference

 6     in that paragraph should not form part of the public trial record.

 7             We're now in trial, eliciting information for the record, and

 8     that's why we sought to move into private session, in accordance with

 9     that condition.

10                           [Trial Chamber confers]

11             JUDGE KWON:  We are not clear - Mr. Tieger and Mr. Robinson could

12     help us - how the Vrbanja Bridge incident and the detention of

13     four individuals are related.

14             MR. TIEGER:  Well, I think you'll see the backdrop in -- well,

15     the backdrop is contained, in fact, in this witness's amalgamated

16     statement, as well as others.  But there was an incident during which

17     Bosnian Serb soldiers attacked a French contingent on the Vrbanja Bridge,

18     during which some French soldiers were wounded and killed.  Then there

19     was a re-taking of the bridge, during which the Bosnian Serb -- some

20     Bosnian Serb soldiers who had taken that position were then detained.

21     And as Mr. Robinson previously indicated, that occurred on the

22     27th of May.  And during the telephone call between the witness and

23     General Mladic on the 28th of May, which we began to look at

24     yesterday - that was 65 ter, I think, 0315 or something - there is

25     reference to both the incident and to the detained Serb -- Bosnian Serb

Page 11393

 1     soldiers.

 2                           [Trial Chamber and Legal Officer confer]

 3             JUDGE KWON:  Mr. Tieger, can we discuss paragraph 128 in public

 4     session?  Do you have it?

 5             MR. TIEGER:  Well, Your Honour, I understand what the Court is

 6     pointing to.  I think it would be unfair to the -- and I looked at that

 7     and considered all those possibilities, but I think it would be unfair to

 8     the provider to suggest that the reference to paragraph 134, by way of

 9     identifying the issue, was -- did not encompass any other references to

10     the same information.  I appreciate there may be -- there may seem to be

11     an inconsistency there, but I don't think we would -- we could consider

12     it a fair interpretation of the condition to suggest that the manner in

13     which they identified the information which needed to be restricted, and

14     which I think they identified it clearly, is trumped by another reference

15     to the same information that they didn't happen to mention.

16             JUDGE KWON:  Your suggestion is to hear this evidence in

17     private session?

18             MR. TIEGER:  I believe that's in keeping with the provider's

19     restriction.  And we, of course, try to abide by that.

20             JUDGE KWON:  Thank you.

21                           [Trial Chamber confers]

22             JUDGE KWON:  While we are sort of disappointed to be informed of

23     such condition that existed, depriving -- being deprived of any

24     opportunity to clarify or rectify to a certain extent, but for a

25     practical solution the Chamber finds it best to proceed under that

Page 11394

 1     condition; i.e., we hear any questions and answers about the

 2     Vrbanja Bridge in private session.  And then we'll see whether we can

 3     make some parts of those portions public; for example, the transcript

 4     that does not mention any of the four Serbs being detained by the

 5     UNPROFOR.  And then we'll see whether we can do anything about this later

 6     on.

 7             JUDGE MORRISON:  Mr. Tieger, was there simply the fact that

 8     four soldiers were detained not already in the public domain as a result

 9     of being reported at or about the time that it happened?

10             MR. TIEGER:  Yes, I believe that's correct, Your Honour.

11             JUDGE MORRISON:  So that the mere fact that four people were

12     detained, and the time which they were detained, is already, as it were,

13     in the public domain?

14             MR. TIEGER:  Yes, that's correct.  And if I'm not mistaken, it

15     may already be part of the public record in this case, at least to some

16     extent.

17             JUDGE MORRISON:  That's what I'm thinking.  Without having the

18     opportunity to check it, I wanted to see if it accorded with your

19     recollection.

20             MR. TIEGER:  Yes.

21             JUDGE MORRISON:  Thank you.

22             JUDGE KWON:  So I take it the parties understood the Court's

23     intention.  We'll hear --

24             THE ACCUSED: [Interpretation] Can I just say, for the record, one

25     thing?

Page 11395

 1             It seems to me "quod licet iovi, non licet bovi" and I do not

 2     feel equal at all.

 3             JUDGE KWON:  Mr. Karadzic, you're not prohibited from asking any

 4     question.  That part should -- all the condition -- all of the condition

 5     is that we have to hear that in private session.

 6             Yes, let's go back to open session.

 7                           [Open session]

 8             JUDGE KWON:  For the record, I'm stating again that we are

 9     sitting pursuant to 15 bis, in the absence of Judge Lattanzi, who had to

10     be away for urgent matters.

11             Let's bring in the witness.

12             While I'm cautious, because we are in public session, so,

13     Mr. Karadzic, what is clear is that you can discuss it in public with any

14     other witness, but not with this witness in public session.  That's all.

15     That's everything about the condition.

16                           [The witness takes the stand]

17             JUDGE KWON:  Shall I return this statement to the Prosecution?

18             Good morning, General.  I'm sorry for your inconvenience.  There

19     were some administrative matters to deal with in your absence.

20             MR. TIEGER:  Your Honour, while we're -- while the witness is

21     getting settled, perhaps I could raise two matters quickly that the Court

22     raised yesterday.

23             First, you asked about the -- when we admitted 65 ter 04754, the

24     agenda book for 1995, there was a -- the Court suggested that the agenda

25     books be admitted in their entirety and asked whether they were

Page 11396

 1     encompassed by that 65 ter number.  In fact, it appears that there is an

 2     agenda book for 1994 and one for 1996.  1994 is 65 ter 21460.  1996 is

 3     65 ter 21459.  So in accordance with the Court's inquiry, I wanted to

 4     alert you to that.

 5             And, secondly, you raised a question about the date of a

 6     document, but I'll clarify that if you're satisfied with the information

 7     provided with respect to the other exhibits.

 8             JUDGE KWON:  Yes.

 9             MR. TIEGER:  And that question was with respect to 65 ter,

10     I think it was, 03145.  In any event, it became, I think, P2249.  That

11     was a Main Staff document.  The transcript indicated that the date was

12     identified as the 28th.  You quite alertly looked to the date on the

13     underlying document.  And, in fact, both the underlying document and the

14     B/C/S, and the English translation in e-court, both indicate a date of

15     the 26th of March.

16             JUDGE KWON:  We don't have to admit the other agendas at this

17     moment.  We'll admit them when tendered.

18             Thank you, Mr. Tieger.  Let's proceed.

19             MR. TIEGER:  Thank you, Mr. President.

20                           WITNESS:  RUPERT SMITH [Resumed]

21                           Examination by Mr. Tieger: [Continued]

22        Q.   Good morning, General Smith.

23        A.   Good morning.

24             MR. TIEGER:  At this point, Your Honour, should we move into

25     private session.

Page 11397

 1             JUDGE KWON:  Yes.

 2             Before we do that:  Yes, Mr. Robinson.

 3             MR. ROBINSON:  Yes.  Once we're in private session, if I could

 4     just address you very briefly.

 5   [Private session]  [Confidentiality lifted by order of the Chamber]

 6             JUDGE KWON:  Yes, we're now in private session.

 7             MR. ROBINSON:  I just want to make a motion for the record to

 8     exclude the testimony of General Smith, which is, I think, something

 9     formally we have to do so that later on, if this issue isn't resolved in

10     any other way, we've preserved our objection.

11             I would also ask the Prosecutor be directed to contact the

12     United Nations again about this condition and ask them if they're really

13     insisting, in light of the record and what was already public about this

14     incident.  They're usually very reasonable and place very few conditions.

15     In fact, this is the only one that I'm aware of about public testimony at

16     this trial.  And I think if they understand the context, they might

17     withdraw that condition, and that would be the best solution.  So if that

18     could be done.

19             But failing all that, and if the testimony ends up being in

20     private session throughout the duration of these proceedings, we feel

21     that that's an infringement on Dr. Karadzic's right to a public trial and

22     should result in the exclusion of the testimony.

23             Thank you.

24             JUDGE KWON:  With all due respect, Mr. Robinson, I have to say

25     that motion is too much belated.

Page 11398

 1             Yes, let's proceed.

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

 3             If we could call up 65 ter 01345.

 4             JUDGE KWON:  Excuse me, Mr. Tieger, I have to interrupt.

 5             To be clear, you don't suggest that we suspend the proceedings

 6     right now and consider your motion?

 7             MR. ROBINSON:  I would prefer that, actually.  Yes, that would be

 8     the preferable thing to do, at least suspend the testimony with respect

 9     to this issue until it can be clarified whether the provider really

10     insists.  But that would be a very good suggestion, indeed.

11                           [Trial Chamber confers]

12             JUDGE KWON:  Mr. Tieger, do you have any response?

13             MR. TIEGER:  Well, I didn't know if it would be necessary to

14     respond, and I'm pleased that there was a delay between hearing the

15     motion to exclude and my response so I can be more temperate in my

16     response, to what I will still say is a bizarrely overbroad motion, given

17     the nature of the issue.

18             If the question is whether the provider can be contacted before

19     the Prosecution concludes its examination-in-chief, that's a physical

20     impossibility, given the time difference.

21             I will also indicate that while we're always prepared to assist

22     the Court, we did seek reconsideration of this restriction previously.

23     Now, whether or not the current circumstances and the extent to which the

24     incident has been or is anticipated to be raised in public record -

25     otherwise, it would have an impact on the provider - is another story,

Page 11399

 1     but that would seem to impact on the very practical ruling that the Court

 2     made, that should such restriction be lifted, then the testimony can

 3     become -- can then become public record.  There's no -- it's difficult to

 4     see what advantage is -- under these circumstances is gained by not

 5     moving forward in the very practical way the Court just identified,

 6     parsing out thereafter what can be released publicly, even with the

 7     maintenance of the condition, and determining whether or not a full

 8     lifting of any condition can be obtained, thereby resulting in the

 9     complete release for public dissemination of the information.

10             And the point of an adjournment would seem to be only delay.  And

11     I would again underscore that a motion to exclude this witness's

12     testimony in its entirety based on this modest, limited condition is so

13     far from well grounded as to be questionable in its intention.

14             JUDGE KWON:  The Chamber will rise for 15 minutes to consider

15     this matter.  We will resume at 10.00.

16                           [The witness stands down]

17                           --- Break taken at 9.43 a.m.

18                           --- On resuming at 10.09 a.m.

19             JUDGE KWON:  Shall we go into private session.  Oh, we are in

20     private session.

21             This is what my colleague Judge Baird said to me, that there's

22     never a dull moment.

23             The Chamber has listened to the argument raised by the Defence,

24     as well as the position taken by the Prosecution, and it's surprised by

25     the particular restriction being placed upon General Smith's testimony by

Page 11400

 1     the United Nations, particularly in light of the fact that the

 2     information about the four Serbs being taken prisoner appears to be

 3     already in the public domain.  It may be in evidence in public in other

 4     cases and, indeed, in this case.

 5             Therefore, the Chamber encourages the Prosecution to immediately

 6     communicate with the United Nations concerning this restriction and to

 7     ask that it be lifted, given these circumstances.

 8             However, as the parties are aware, the Chamber can only accept

 9     the Rule 70 conditions placed on witness's testimony or exclude that

10     testimony where it considers that the conditions imposed would undermine

11     the need to ensure a fair trial and, subsequently, outweigh the

12     testimony's probative value.  The Chamber does not consideration that

13     exclusion is warranted here, and, therefore, we will deny the motion and

14     proceed to hear General Smith's evidence, going into private session when

15     necessary to discuss the taking of these four Serb prisoners.

16             However, as I indicated, once the testimony is completed, the

17     Chamber will review the transcript and, in consultation with the

18     Prosecution, may make certain portions public where it considers

19     appropriate.

20             Once again, it is our sincere hope that the United Nations will

21     consent to the lifting of this particular restriction upon

22     General Smith's testimony, and we ask that the Prosecution convey to the

23     United Nations our concerns in this regard.

24             Should the Rule 70 condition be lifted, the transcript can then

25     be made public in its entirety.

Page 11401

 1             Mr. Tieger, we'll be expecting a progress report on your

 2     communication with the United Nations in due course.

 3             So we go back into open session and bring the witness in.

 4                           [Open session]

 5             THE REGISTRAR:  We're now in open session, Your Honours.

 6             JUDGE KWON:  Thank you.

 7                           [The witness takes the stand]

 8             JUDGE KWON:  My apologies again.  Please make yourself

 9     comfortable.

10             JUDGE MORRISON:  General Smith, we're all sorry for the delay.

11     I'm reminded, and perhaps you will understand that it is not just the

12     British Army that fights all its battles uphill, at night, in the rain,

13     at the junction of two maps.

14             THE WITNESS:  Indeed.

15             JUDGE KWON:  Yes, Mr. Tieger.

16             MR. TIEGER:  Thank you, Mr. President.

17             Welcome back, General.

18             And, once again, I ask that we move into private session.

19     [Private session]   [Confidentiality lifted by order of the Chamber]

20             MR. TIEGER:  And may we call up 65 ter 01345.

21        Q.   And, General, while we're waiting for that document to come on

22     screen, I'll just mention that, as a backdrop, we were discussing the

23     hostage-taking and had earlier discussed a series of -- a number of phone

24     calls you received during that period, and we are now turning to a record

25     of phone calls from the -- a phone call from the 28th of May, 1995.

Page 11402

 1             We'll be briefly in private session because of a current

 2     restriction that may or may not be lifted, but it should have no impact

 3     on your testimony.  And during the course of your cross-examination,

 4     there may be a further requirement to move into private session to

 5     discuss the detention of four Bosnian Serb prisoners, but that will be

 6     addressed as it arises.  Meanwhile, I wanted to discuss with you,

 7     briefly, this telephone conversation between you and General Mladic on

 8     the 28th of May, 1995.

 9             And if we could turn the page, please.

10             Just quickly running down some of the points there, and I want to

11     give you a chance to review that:  The document indicates that you

12     initiated a 35-minute telephone conversation with General Mladic.  Among

13     the points discussed were the threats by the Bosnian Serbs to kill

14     French soldiers unless the four Serbs detained following the incident on

15     Vrbanja Bridge were released.  You made a point, according to the

16     document, that you would discuss exchange of all men detained once

17     satisfied that Mladic had ceased threats to murder UN soldiers and that

18     you had proof that UN personnel were not being used as human shields.

19             We see, in the third paragraph, what appears to be an

20     acknowledgment by General Mladic that it was true that some UN personnel

21     were held at locations that were potential targets.  And later in the

22     discussion, there's a reference to Gorazde during a portion of the

23     conversation, when General Mladic appears to be pressing for letters of

24     condolence, and stating if you send them, you would be giving a chance

25     for survival to the UK soldiers in Gorazde.

Page 11403

 1             And, finally, toward the end of the discussion, also noted an

 2     explanation by you to General Mladic that you were not in command of

 3     NATO, nor directing them, but was one of those responsible for

 4     recommending that an attack take place.

 5             General, I don't mean to usurp your recollection of that

 6     discussion or your identification of the salient points within that

 7     document, but wanted to touch on them briefly, as you were looking at it.

 8             Let me ask you first if, to the best of your recollection, this

 9     is generally a summary of that -- an accurate summary of that meeting and

10     its salient points.

11        A.   Yes, it is.

12             I just want to be clear about one thing you said.  You said

13     "UN shields."  Did you mean the UN was being used as a shield, those

14     soldiers that had been detained were being used as a shield?

15        Q.   I think I said UN soldiers were not being used as human shields.

16        A.   Ah, my --

17        Q.   But it was certainly a reference to the document, and --

18        A.   It was somewhere early on in what you said, and I wasn't sure

19     what you meant by it.

20        Q.   And I think that would have been a reference to the middle of

21     paragraph 2, which indicates:

22             "General Smith restated his offer to discuss the exchange of all

23     men detained once he was satisfied that Mladic had ceased his threats to

24     murder UN soldiers and once he had proof that UNMOs and others were no

25     longer used as human shields."

Page 11404

 1        A.   Right.  I was just looking for the bit in the document.

 2             Yes, it is a -- it is as I recollect that conversation.

 3        Q.   And since it's been the subject of some discussion:  What was the

 4     incident on Vrbanja Bridge?

 5        A.   In the early hours of that morning, I think it was, the -- an

 6     element of the Bosnian Serbs, dressed in French uniforms, that, I mean, I

 7     understood had been taken from men who had been captured earlier,

 8     approached the French position on the Vrbanja Bridge and attacked it --

 9     took it by surprise, attacked it, captured some more men, and then there

10     was a counter-attack shortly afterwards - I don't remember how long that

11     took to mount - in which, I think, two French soldiers were killed,

12     two Bosnian Serbs were killed, if recall correctly, and a number of

13     wounded and two unwounded Bosnians were -- Bosnian Serbs were captured.

14     I think there were two Bosnian Serb soldiers wounded, which gives you the

15     four you've mentioned.  There was then -- and this is in the aftermath.

16             There's then -- a bit later on in the day, we get the threats to

17     kill captured French soldiers unless the Bosnian Serb soldiers returned,

18     and we start this -- then this telephone conversation comes from that,

19     after that stage.

20             MR. TIEGER:  Your Honour, I would tender this document under

21     seal.

22             MR. ROBINSON:  Yes, Mr. President.

23             We don't object to it being admitted.  We note that it's been

24     admitted already as a public document, P342, in the Dragomir Milosevic

25     case, and it's our position it shouldn't be under seal.  But we

Page 11405

 1     understand your ruling.  Thank you.

 2             JUDGE KWON:  One clarification.

 3             Since we discussed it in private session, one may think that

 4     there should be no problem admitting this as a public document.

5             MR. TIEGER:  No, Your Honour, I understand that -- and, again,

 6     I'm aware of the apparent discrepancy and inconsistency, but there is a

 7     condition on this particular document as well.  It's not simply

 8     related -- it's independent of the testimony.  And we will raise that as

 9     well.

10             JUDGE KWON:  My point is this:  There's no public record which

11     shows that General Smith talked about this in public hearing, but when

12     other witnesses are coming, for example, A or B, can discuss this

13     document in public session?

14             MR. TIEGER:  No, Your Honour, not at the moment.  And I attempted

15     to make the distinction clear earlier that there was -- the two matters

16     were, in fact, dealt with separately by the provider, the document and

17     the testimony.

18             And, by the way, I understood the Court's encouragement to the

19     Prosecution to embrace both, and we'll be raising both.

20             JUDGE KWON:  We'll think about this later on.  Just I'll give you

21     a very extreme example.

22             Let's suppose just General Mladic is coming as a witness, which

23     means that he cannot discuss it, this document, in public session.

24             So we'll consider the matter later on.  We'll proceed.

25             We'll admit this under seal, and then we'll consider whether that

Page 11406

 1     status should continue later.

 2             THE REGISTRAR:  Your Honour, that's Exhibit P2269, temporarily

 3     under seal.

 4             MR. TIEGER:  If we could next call up 65 ter -- I'm sorry, we

 5     should move into open session, Your Honour.

 6             JUDGE KWON:  Yes.

 7                           [Open session]

 8             JUDGE KWON:  Yes, we are now in open session.

 9             MR. TIEGER:  If we could next call up 65 ter 21984.

10        Q.   General, this is a document dated 29 May 1995, which is signed by

11     you and appears to be titled "Post Air-Strike Guidance," and indicates in

12     the first paragraph that you were writing the paper for two purposes: to

13     provide an idea of the debate that is going on about you or around you,

14     and, second, for direction.

15             General, do you have this document, and can you indicate to the

16     Court what it is about?

17        A.   I do recall the document.  It -- you know, in the aftermath of

18     the air-strikes, there was -- and the hostage-taking, there was a

19     considerable debate developed, as it were, in Zagreb, New York, and the

20     capitals of all those troop-contributing nations affected by this --

21     these events, and, of course, the North Atlantic Council of NATO.  Much

22     of this was not in my hearing, as it were, or I wasn't rung up about it

23     or anything like that, but I was aware that it was going on and I was

24     receiving quite a lot of information about it.  And this -- and I was

25     trying to see the way forward at the same time.  So this document

Page 11407

 1     probably started as a mind-clearing exercise of my own, which I then

 2     thought might be more useful if I then distributed it.

 3             And I think I used the word "about" to mean it in both its

 4     senses, both about us, UNPROFOR, and around us, as UNPROFOR, in

 5     Bosnia-Herzegovina.  And I used the -- as I say, the -- it then became a

 6     way of directing people's activities in the immediate future.

 7        Q.   And did you, in the course of that paper, identify short-term,

 8     medium-term, and long-term possibilities or objectives?

 9        A.   I think I do.  Certainly for the short/medium term, I think I do

10     in that document.

11             MR. TIEGER:  And if we could turn to, first, page 2 and then

12     page 3.

13             THE WITNESS:  Could we make it one click bigger, please.  Thank

14     you.

15             MR. TIEGER:

16        Q.   And, General, feel free to control the scrolling of the document,

17     as well, as you need it.

18        A.   Well, you see in that paragraph 5 that I'm -- an example of what

19     I understand is the argument going on behind us and above us.

20             And then you see, in paragraph 7, that I have received some

21     direction that is explicit and says that I am -- that my -- that the

22     execution of the mandate I've been given is secondary to the security of

23     UN personnel.

24             And if we go on down.  And there you see a list of our -- in the

25     short term, what I propose to do.

Page 11408

 1             And then there's a third page, I'm sure.  And I then list certain

 2     instructions.

 3             And I've already made a decision, on my own account, that we must

 4     start to reduce our exposure to the potential of the -- of having

 5     isolated detachments in that -- in the Bosnian Serb territory, and I am

 6     giving people the authority to abandon positions should the opportunity

 7     occur.  I can't remember how many, but we had a number of little

 8     detachments at that stage still stuck in weapon collection points and

 9     surrounded.  And I also have started to form a reaction force - I don't

10     call it that then, but that's what it becomes - to -- and you see me here

11     telling the sectors what to do and telling Sector South-West to prepare a

12     battle group from their forces that they have under their command, with a

13     particular task to prepare for, which is one of those weapon collection

14     point detachments that's surrounded at that time.  And then finally

15     making the point that everyone's got to keep the pressure on the

16     Bosnian government not to take advantage of these circumstances and,

17     therefore, escalate the situation further.

18             In the more medium term, I'm keen to establish some freedom of

19     movement, and I tell the sector headquarters to prepare plans to use the

20     forces that I've started to get them to assemble should they -- these

21     opportunities occur -- to be used and should the opportunity occur.

22             And then if we turn over.

23             And I'm back with the eastern enclaves, and then I make the point

24     that at this point of considerable stress on the force, with the

25     troop-contributing nations getting very exercised about their own

Page 11409

 1     individual package of forces in the command, and the commanders of

 2     those -- the national commanders of those packages paying as much

 3     attention to their capital as they were to me, I finish by making clear

 4     that we've got to hang together here and be -- and although we're on the

 5     back foot at the moment, we must be prepared to be rather more offensive

 6     in the future.

 7             MR. TIEGER:  Thank you, General.

 8             Your Honour, before I proceed, I know the schedule is disrupted

 9     today.  I don't know exactly how the Court wishes to proceed, if it

10     wishes to get back on the normal schedule or do something different.

11             JUDGE KWON:  How about taking a 20 minutes' break for the first

12     time.  So we'll break in five minutes' time.

13             MR. TIEGER:  That's fine, Your Honour.  Thanks.

14             General, you -- first of all, Your Honour, I tender this

15     document.

16             JUDGE KWON:  This is admitted.

17             THE REGISTRAR:  As Exhibit P2270, Your Honours.

18             MR. TIEGER:

19        Q.   And, General, you indicated that paragraph 7 reflects directions

20     you received, that the execution of the mandate was secondary to the

21     security of the UN personnel.  Was that a response to the hostage-taking,

22     and did that mean, in your view, that the hostage-taking had worked?

23        A.   Yes -- yes to both questions.

24        Q.   And you indicated yesterday that you had been advised at the

25     outset and throughout that detained or captured UN personnel would be

Page 11410

 1     killed if air-strikes continued.  Was it your understanding that that was

 2     the understanding throughout the UN about the plight of the hostages and

 3     what would happen to them?

 4        A.   I don't know precisely.  I know we sent -- transmitted those

 5     threats back up our chain of command.

 6        Q.   And was it your understanding that that's what was -- that's what

 7     the Bosnian Serb authorities were trying to convey to you?

 8        A.   Oh, I have no doubt that the threats were being made, yes.

 9             MR. TIEGER:  I'd like to look quickly at two exhibits.  The first

10     is 65 -- these are two intercepts, Your Honour.  The first is

11     65 ter 30892.

12             This is a conversation between Momcilo Vinkovic and Mr. Krajisnik

13     on the 3rd of June, 1995.  And looking at the first page, we see Vinkovic

14     saying:

15             "As long as you have hostages, you also have a trump card in your

16     hands.  Once you don't have them, you're finished."

17             Later on on that page, he says:

18             "I think that this played a great role, because they have stated

19     and are openly writing and saying that they cannot do anything to you as

20     long as you're holding hostages.  They can't make a normal plan that

21     they'll follow because every plan that they want to follow implies the

22     use of military force, and they cannot do that because they'll endanger

23     the lives of these hostages.  Therefore, the hostages are of vital

24     importance to you, regardless of what anyone else may be telling you."

25             Krajisnik:

Page 11411

 1             "My dear man, we let some go and we captured some others."

 2             Vinkovic:

 3             "Keep doing that.  That's all right, only you have to have some

 4     hostages at all times."

 5             Krajisnik:

 6             "All right, namesake.  Everything is excellent, no doubt."

 7             And on the next page, if we scroll down a bit, Vinkovic again:

 8             "But, look, hold on to the hostages.  That's a fantastic card.

 9     Don't ever forget that Saddam got destroyed when he released the

10     hostages."

11             Krajisnik:

12             "Yes, yes.  We're doing that.  We have an excellent method.  We

13     always have an ace up our sleeve."

14             And, very quickly, one more before we break.  That's

15     65 ter 30890, and I'll be tendering them both to be marked for

16     identification, Your Honour, in just a moment.

17             First, let's look at 30890.

18             THE ACCUSED: [Interpretation] May I have a say about this?

19             JUDGE KWON:  Yes, Mr. Karadzic.

20             THE ACCUSED: [Interpretation] About the admission, I hope you

21     will give me an opportunity, before your decision, to state my opinion

22     about this intercept.

23             JUDGE KWON:  Yes.

24             MR. TIEGER:  If we turn to page 2, we see, at the top, a

25     reference to Kozyrev and the -- as the interlocutor Momcilo says to him,

Page 11412

 1     Mr. Krajisnik:

 2             "Yes, he says that you are barbarians because you tied the

 3     blue helmets to the bridges ...," et cetera.

 4             And then as the conversation continues, in the middle of the

 5     page, Momcilo urges negotiating everything, just not the hostages:

 6             "The holding of hostages is a new way of waging war.  You hold

 7     hostages as protection.  Don't believe any promises.  They have lied

 8     before, they will lie again.  Therefore, the hostages are a

 9     guarantee ..."

10             And, finally, quickly turning to the next page, toward the

11     bottom:

12             "I saw a tied-up UNPROFOR coward."

13             This is Momcilo speaking:

14             "They asked him how they were being treated.  He said, 'Very

15     well,' that they were taken to sleep at night and then brought back

16     during the day.  In fact, he told NATO that the targets were unprotected

17     at night and that they could strike."

18             Momcilo:

19             "Yes, yes, but tomorrow we'll ..."

20             Momcilo:

21             "Look, put them into eight-hour shifts.  They are rotten, they

22     have very good devices for night-time bombardment."

23             Krajisnik:

24             "Good.  I think that they saw clearly what would happen to them

25     so that they have to take care."

Page 11413

 1        Q.   General, are those conversations involving Mr. Krajisnik

 2     consistent with your understanding of the threats to the safety of the

 3     hostages that were presented to you if the air-strikes did not cease?

 4        A.   They are of a piece, yes.

 5             MR. TIEGER:  I tender those documents, Your Honour, for

 6     identification at this point, of course.

 7             JUDGE KWON:  Yes, Mr. Karadzic or Mr. Robinson.

 8             Yes, Mr. Karadzic.

 9             THE ACCUSED: [Interpretation] First of all, I'd like to say that

10     in addition to our very well-known position about intercepts, I think it

11     would be very useful for Mr. Tieger to inform us who the collocutors are,

12     whether this is an official conversation, et cetera.  It is of crucial

13     importance, who Krajisnik is trying to impress and who the collocutors

14     are.  And, if necessary, I can assist him.

15             MR. TIEGER:  Your Honour, well, if -- I'm happy to receive

16     information from Mr. Karadzic, through Mr. Robinson, on that score.

17     However, this is not the time for arguing the weight to be given these

18     intercepts.  They should be admitted in the customary fashion, and the

19     accused will be free, at a more appropriate time, to argue his view of

20     what weight it should be given.

21             JUDGE KWON:  Yes, I agree with you, Mr. Tieger.  But it's

22     important to find out who the interlocutors are, and we'll be assisted to

23     know who they are, but it's not at this time.

24             We'll mark it for identification, both of them.

25             THE REGISTRAR:  As MFI P2271 and MFI P2272, respectively,

Page 11414

 1     Your Honours.

 2             JUDGE KWON:  We'll rise for a break, and we'll resume at

 3     five past 11.00.

 4                           --- Recess taken at 10.45 a.m.

 5                           --- On resuming at 11.07 a.m.

 6             JUDGE KWON:  Yes, Mr. Tieger.

 7             MR. TIEGER:  Thank you, Mr. President.

 8             Let me turn next to 65 ter 19294.

 9        Q.   And, General, I wanted to direct your attention to a record of a

10     meeting involving General Janvier with General Mladic on the 4th of June,

11     1995.

12             THE REGISTRAR:  Mr. Tieger, I guess the document needs to be

13     released, please.

14             MR. TIEGER:  Thank you, Mr. Registrar.

15        Q.   General, you now see before you the document, which indicates at

16     the outset that there were four main discussion points:  UN personnel

17     being held as hostages; replenishment of the eastern enclaves;

18     UN ascendance; and Serbian air-space.  And let me just quickly direct

19     your attention to a couple of those before I ask any questions.

20             The first page reflects General Janvier addressing the

21     UN personnel as hostages issue, and characterising it at the outset as

22     unacceptable; in the second paragraph indicating to General Mladic that

23     he is practically -- that the Bosnian Serbs are practically banishing

24     themselves from the international community, referring to one of the

25     consequence, both direct and irreversible, being the imminent arrival of

Page 11415

 1     the multinational brigade to increase security for the blue helmets; the

 2     third paragraph further discussing the discrediting impact of the action

 3     and comparing it to Saddam Hussein.

 4             If we move on to the second page.

 5             There is -- General Janvier continues talking about the hostages,

 6     but then moves into the subject of replenishment of the eastern enclaves,

 7     and begins by noting that the eastern enclaves are in urgent need of

 8     replenishment:

 9             "The situation has become intolerable.  Soldiers located there

10     are in need of food and fuel."

11             And he continues, in the later paragraph, stressing the urgency

12     of the circumstances and the need for imminent advancement, noting, at

13     the bottom of that page:

14             "This is a matter of such urgency that a significant advancement

15     must be made within the next two or three days."

16             The third point, which is titled "UN Ascendancy," addresses

17     weapons collection points as a particular problem falling under that

18     category, noting that the withdrawal of armament by the Bosnian Serbs

19     from the positions they occupy is irreversible, but the armament must be

20     taken out of the exclusion zone.

21             And then the fourth point deals with air-space.

22             We'll note, as we turn the page, that General Mladic's positions

23     are then reflected later in the document.

24             General Mladic stresses at the outset, according to this

25     document, the need for a guarantee regarding air-strikes and their

Page 11416

 1     cessation, not only then, but permanently and in the future.

 2             As we continue down the page, in the penultimate paragraph on

 3     that page, it also reflects General Mladic's insistence on the lifting of

 4     sanctions of all Serbian people in the world, liberation of all detained,

 5     the de-blocking of assets, and so on.

 6             First of all, General Smith, let me ask you if you were aware of

 7     this specific meeting or the discussions that took place at the meeting

 8     at the time.

 9        A.   I was aware of the meeting that was going to take place and that

10     it took place.

11        Q.   And do the positions outlined in this document accord with your

12     understanding of the positions of the UN and the positions of

13     General Mladic or the Bosnian Serbs at that time?

14        A.   Yes, it does.

15             MR. TIEGER:  Your Honour, I tender --

16             THE WITNESS:  Oh, rather, yes, they do.

17             MR. TIEGER:  I tender this document, Your Honour.

18             JUDGE KWON:  Yes.

19             THE REGISTRAR:  As Exhibit P2273, Your Honours.

20             MR. TIEGER:  I'd like to turn to -- in light of the discussion

21     about urgent need for replenishment and the continuing issue of convoys

22     and convoy restrictions, can I turn quickly to two documents in late

23     June.  The first would be 65 ter 11339.

24             Sorry, General, just one moment.

25             Perhaps we could try 11338.  Thank you.

Page 11417

 1        Q.   This is a document, an inter-office memo, dated the

 2     26th of June, 1995, reflecting a meeting that you had with Colonel Meille

 3     on that date, and begins by noting that Colonel Meille explained that for

 4     the third time that morning, a French convoy on Igman was engaged by a

 5     Serb cannon and a tank:

 6             "The Serbs seemed determined to prevent us from using this road

 7     by constantly harassing our convoys."

 8             And then there's a discussion about possible response, and

 9     limitations on that response.

10             MR. TIEGER:  And if we could turn the page so the General could

11     see the full document.

12        Q.   General, I don't know if you recall this specific incident, but

13     can you tell us whether or not this is a continuation of the problem that

14     you have been describing regarding efforts to provide resupply and/or

15     humanitarian assistance for the civilian population to either of the

16     enclaves of Sarajevo?

17        A.   Yes.  In June, after the air-strikes, the only route into

18     Sarajevo available to bring supplies in was over the Igman trail, and

19     this was how we were moving ourselves and escorting in UNHCR convoys.  I

20     can't remember when it started, but over June, the incidence of these

21     convoys being engaged by fire from Bosnian Serb positions increased.  And

22     this is a -- I've gone down and I'm clearly in the French -- in the

23     sector headquarters -- Sector South-West headquarters, and we were

24     discussing where we'd go next.  We've tried various methods, and this is

25     a discussion of what now to do.

Page 11418

 1             The reference in the document on the screen to the UNTF, A and B,

 2     are those two battle groups that I ordered being formed in that document

 3     that I was shown before the break.

 4             MR. TIEGER:  Thank you, General.

 5             I tender this document, Your Honour.

 6             JUDGE KWON:  Exhibit P2274.

 7             MR. TIEGER:  I'm sorry, Your Honour.  This is in evidence.  It's

 8     Exhibit P2116.

 9             JUDGE KWON:  Thank you.

10             MR. TIEGER:

11        Q.   General, we're about to move into late June and early July.  I

12     wanted to ask you one additional question about the restriction on

13     humanitarian aid or resupply convoys.

14             Yesterday, we addressed -- or you addressed a number of meetings

15     you had with Dr. Karadzic or with General Mladic where the issue of

16     convoy restrictions and freedom of movement was discussed.  I think it

17     was at 11321.  You also looked at a section of the Supreme Command

18     directive issued in March 1995 by Dr. Karadzic, which outlined a policy

19     of restricting resupply convoys to UNPROFOR and humanitarian aid to the

20     Muslim population.  And there, you said:

21             "It's clearly a central direction.  Here is a high-level order

22     being issued to carry this -- these actions out."

23             I wanted to ask you who you understood was ultimately

24     responsible -- that is, what political or military figure was ultimately

25     responsible for this policy of convoy restrictions.

Page 11419

 1        A.   At the time, I understood it as being General Mladic.  And the

 2     person who is dealing with General Mladic at that time, because I wasn't

 3     because of the hostages being taken, was General Janvier.  And if I

 4     recall correctly, either as a result of the meeting you've -- we've

 5     discussed already or another one, a convoy was organised from Serbia into

 6     the enclaves, but I may have got that -- it may have been at a later

 7     date, but I think it happened in June.

 8        Q.   And the numerous meetings you held with Dr. Karadzic, what was

 9     the purpose of those meetings and what did you consider his role in the

10     issue of convoy restrictions?

11        A.   I don't recall meeting him in June.

12        Q.   No, I'm sorry, I was referring to the entire --

13        A.   Oh.

14        Q.   Referring to the discussions yesterday, the meetings we were

15     talking about yesterday, the entire subject of convoy restrictions,

16     beginning from the time that you undertook your command to the end.

17        A.   I'm clearly -- I mean, we discussed the business of supplying the

18     enclaves, that's Dr. Karadzic and I.  And if -- I had an understanding in

19     the -- that the policy was emanating from the whole -- the top of the

20     Bosnian Serb leadership, which would have included the president and

21     Mladic, but the operative restrictions and, therefore, the -- and the

22     person who had to sort of give -- whose forces were the controlling

23     element that one needed to deal with was General Mladic.

24        Q.   Thank you, General.  There's an "if" in that answer that I'm not

25     sure that was intended, so let me see if I have a correct understanding

Page 11420

 1     of what you just said.  And that is:  The policy emanated from the top of

 2     the Bosnian Serb leadership, meaning Dr. Karadzic, and along with

 3     General Mladic as the operative controller of that policy, the person who

 4     was implementing that policy that emanated from the top; is that correct?

 5        A.   Indeed, that the -- the point of call, as it were, for dealing

 6     with convoys was through Mladic.

 7             MR. TIEGER:  Thank you, General.

 8             I'd like to turn next to 65 ter 01356.

 9        Q.   As we can see on screen, General Smith, this is a letter dated

10     the 26th of June, 1995, to General Mladic, and signed by you.  And at the

11     beginning, indicating that you're writing further to a letter sent by

12     your chief of staff concerning Srebrenica, and wishing to express your

13     increasing concern about a sequence of very serious incidents.

14             And you refer, in paragraph 2, to the fact that on an almost

15     daily basis, you were receiving reports of shelling of the populated

16     areas of Bihac, Srebrenica, Gorazde, and Sarajevo, and refer to what

17     happened the previous day in Sarajevo, with nine civilians, among them

18     five children, being killed due to sniping and shelling.

19             You also provide a reminder about the safe area regime, pursuant

20     to the Security Council resolution.  And in addition to your concern

21     about the attacks on the civilian population, you also note an increasing

22     number of reports of direct targeting of UNPROFOR locations and vehicles

23     in various locations.

24             Do you recall sending this, General, do you recall the

25     circumstances at the time, and do you recall what response, if any, you

Page 11421

 1     received from General Mladic?

 2        A.   I don't recall -- I remember sending this letter, and I -- but I

 3     don't recall the response that it received.  And I'm -- and I think I

 4     must have been trying to put in one document the situation as it was

 5     towards the end of that month and the -- and wanted to be clear, just

 6     because we'd been in circumstances where the resolution about safe areas

 7     couldn't be discharged, that didn't mean to say that continuing to attack

 8     the people in the safe areas was permissible.

 9        Q.   General, I appreciate that after this period of time, you may not

10     be expected to recall the specific response you received from

11     General Mladic.  Let me ask you this:  Can you tell us whether you

12     received any indication from General Mladic, in response to your

13     expression of concerns about these serious matters, that there would be a

14     reversal of what had been happening and that the attacks on the civilian

15     population and upon UNPROFOR locations and troops would stop?

16        A.   No, I don't remember that being -- occurring at all, no.

17             MR. TIEGER:  Your Honour, I tender this document, please.

18             JUDGE KWON:  Yes.

19             THE REGISTRAR:  Exhibit P2274, Your Honours.

20             MR. TIEGER:  Thank you.

21        Q.   General, we're moving into July, in terms of our time-frame, and,

22     therefore, close to the time of Srebrenica.  I understand that you were

23     on leave at the beginning of July.

24        A.   Yes, I was.

25        Q.   And although in contact via radio link, you weren't in theatre,

Page 11422

 1     at the least at the beginning of the month?

 2        A.   No.

 3        Q.   Do you recall how you began to be apprised of events developing

 4     in Srebrenica at the beginning of July and as it moved into the

 5     commencement of the attack on the enclave and the taking of Srebrenica by

 6     the Bosnian Serbs?

 7        A.   My memory is that the -- I was recalled off leave to go to Geneva

 8     in the -- of the two weeks I was on -- planned to be on leave at the

 9     weekend -- the middle weekend of this -- of that period.  And we flew up

10     to Geneva, where the Secretary-General was discussing the report on the

11     UNPROFOR in the Balkans.

12             During that meeting, I think right at the end, we were told that

13     an attack was developing on Srebrenica and a Dutch soldier had been

14     killed.  The understanding of what was going on that was transmitted to

15     us was that this was a local attack in response to a raid that had been

16     conducted by the Bosnians a day or two before, in which a number of

17     Bosnian Serbs had been killed and, I seem to recall, sheep and so forth

18     had been stolen.  I was told that I didn't need to return and I was to go

19     back off on leave, so I did.

20             At some point, I think, on the Monday, which from my memory was

21     the 10th, the -- things had begun to reach a point, in that I was being

22     rung up very frequently, or, rather, radioed very frequently as to what

23     was going on.  And on the 11th, I was -- came back off leave and started

24     the fairly prolonged process of getting back into Sarajevo.  I think I

25     arrived on the morning -- very early hours of the morning of the 13th.

Page 11423

 1             I had, either on -- I think it was in the morning of the 11th or

 2     evening of the 11th, I had a number of telephone calls with people,

 3     because I was going through Split at that time.  I may have got my date

 4     wrong by one day either way, but I think that's correct.

 5        Q.   I would -- I don't know if this refreshes your recollection

 6     and -- well, we can check.  There's a reference in your amalgamated

 7     statement to:

 8             "I arrived back at BH Command in the early hours of the evening

 9     12 July."

10             But it seems like the time-frame is roughly --

11        A.   Yes.

12        Q.   General, let me show you a document that was issued from UNPROFOR

13     Command HQ on the 9th of July, and that would be 65 ter 03923.

14             It indicates that they have sent it as a CapSat to General Mladic

15     and will issue it as a press statement.

16             And if we could turn the page, please.  It's entitled:  "Warning

17     to the Bosnian Serbs, attacks against the Srebrenica safe area."

18             And commences:

19             "The Bosnian Serb Army resumed attacks against the Srebrenica

20     enclave on Friday, 7 July 1995, firing indiscriminately into the safe

21     area and directly targeting UN facilities, causing several civilian

22     deaths."

23             And it goes on to describe what happened following the concerted

24     attack against the UN OP at Zeleni Jadar on the 8th and so on.

25             The second paragraph indicates that:

Page 11424

 1             "This attack against a UN-declared safe area is totally

 2     unacceptable and represents a grave escalation of the conflict."

 3             And demands that the advance stop and that the Bosnian Serb Army

 4     withdraw to the perimeter of the demilitarised zone.

 5             And the document has a time code, it appears at the top, of

 6     2220 hours.  That would be 10.20 in the evening, I take it.  And there's

 7     a fax indication of 2232 above.

 8             General, were you aware of the issuance of this warning to the

 9     Bosnian Serbs on that date?

10        A.   I'm sure I was told about it in one of those radio calls, but

11     I -- I don't remember its substances in this document.

12        Q.   This is part of the process of receiving information and

13     responding to it during the time-frame that you describe?

14        A.   Yes, indeed.

15             MR. TIEGER:  Your Honour, I tender this document, please.

16             JUDGE KWON:  Yes.

17             THE REGISTRAR:  As Exhibit P2275, Your Honours.

18             MR. TIEGER:  Excuse me, Your Honour, one moment.

19             I want to direct your attention to something that happened at

20     approximately the same time on the 9th of July.  That's 65 ter 01903.

21        Q.   That's also dated the 9th.  As you can see, it emanates from the

22     Main Staff of the army, signed by -- or General Tolimir's name appears at

23     the bottom.  And from the stamp at the top, it indicates that it was not

24     only the 9th of July, but sent at 2350 hours, so around the time or

25     approximately an hour and a half after that document we looked at a

Page 11425

 1     moment ago.  And it refers -- is sent to the Drina Corps Command, refers

 2     to the fact that the president of Republika Srpska had been informed of

 3     the successful combat operations that achieved results, enabling the

 4     units of the Drina Corps to occupy the very town of Srebrenica; that the

 5     president is satisfied with the results of the combat operations and has

 6     agreed with the continuation of operations for the take-over of

 7     Srebrenica, disarming of Muslim terrorist gangs, and complete

 8     demilitarisation of the Srebrenica enclave.

 9             And then it goes on to describe the president's order regarding

10     the follow-up com -- operations, including protection for UNPROFOR

11     members and the civilian Muslim population, and refraining from

12     destroying civilian targets unless forced to do so, et cetera, et cetera.

13             First of all, General, do you recall whether UNPROFOR Command was

14     aware of not necessarily the specific document, but the continuation of

15     operations beyond the occupation of the very town of Srebrenica?

16        A.   At the time, I don't think people understood that this attack, in

17     my headquarters, would lead to the complete collapse of the pocket or

18     enclave.

19             MR. TIEGER:  Thank you, General.

20             I tender this document, Your Honour.

21             JUDGE KWON:  Mr. Robinson.

22             MR. ROBINSON:  Yes.

23             We're happy to have this admitted.  Thank you.

24             JUDGE KWON:  That will be admitted.

25             THE REGISTRAR:  Exhibit P2276, Your Honours.

Page 11426

 1             MR. TIEGER:

 2        Q.   And, General, just before I leave this document:  Note, at the

 3     bottom of the document, Tolimir directing that:

 4             "In accordance with the order of the president of

 5     Republika Srpska, you must issue an order ... to offer maximum protection

 6     and safety ... order subordinate units to refrain from destroying

 7     civilian targets ... ban the torching of residential buildings, and treat

 8     the civilian population and war prisoners in accordance with the

 9     Geneva Conventions ..."

10             I wanted to ask you, if a commander is -- in order to ensure

11     compliance with the Geneva Conventions or if the commander is concerned

12     about non-compliance with the Geneva Conventions, is the issuing of an

13     order sufficient to address that ?

14             MR. ROBINSON:  Excuse me, Mr. President.

15             I object to that, both as for calling -- for invading the

16     province of the Chamber on a legal issue and calling for expert testimony

17     for which this witness has not been authorised.  Thank you.

18                           [Trial Chamber confers]

19             JUDGE KWON:  Yes, Mr. Tieger.  Do you have a response to this?

20             MR. TIEGER:  Yes, Your Honour.

21             I mean, it certainly doesn't invade the province of the Court,

22     and this institution has welcomed and invited the assistance of witnesses

23     who bring to the Chamber a mixture of fact and experience and can shed

24     light on operative events, documents, and so on.  And I think that this

25     falls well within the ambit of that jurisprudence.

Page 11427

 1             JUDGE KWON:  Not as an expert.  Based upon his experience, the

 2     Chamber is of the view that the witness can express his view, if he can.

 3             THE WITNESS:  I don't find it remarkable that an instruction such

 4     as that, to pay attention to the Geneva Conventions in this case, appears

 5     in an order.  I can think of lots of occasions when that has or something

 6     similar has occurred.  But an order is only an order.  It has to be

 7     executed and supervised.

 8             JUDGE KWON:  Thank you.

 9             MR. TIEGER:  Thank you, Your Honour.

10             If we could turn next, please, to 65 ter 2119 -- 21119, if I

11     missed a 1.

12        Q.   General, as you see, this is a document dated the

13     13th of July, 1995, and reflects a meeting that you had with

14     Prime Minister Silajdzic on the 13th of July, during which the situation

15     in Srebrenica, the refugee crisis, and unconfirmed reports of atrocities,

16     were discussed.

17             And if I could turn your attention quickly to point 6 of this

18     document.  That indicates that both the prime minister and

19     Minister Muratovic raised concerns about the as-yet unconfirmed reports

20     of atrocities in the Srebrenica area, in particular rape of young women

21     and murder of a bus-load of refugees.  And they also expressed, as we see

22     later in that paragraph, concern about reports of refugees being

23     segregated into groups, and men between the ages of 16 and 60 being sent

24     to different locations.

25             General, do you recall hearing concerns at this time about

Page 11428

 1     atrocities and information about the separation of military-age men from

 2     others?

 3        A.   Yes.  These -- we were beginning to hear such accounts, yes, and

 4     not -- we had reports other than the ones in this document.

 5             MR. TIEGER:  And if we could turn next to -- oh, I ask this

 6     document be admitted, Your Honour.

 7             JUDGE KWON:  Yes.

 8             THE REGISTRAR:  Exhibit P2277, Your Honours.

 9             MR. TIEGER:  If we could turn next to 65 ter 01689.

10             This is the -- contains the commander of UNPROFOR -- that is,

11     your assessment and recommendations arising from the fall of Srebrenica.

12             And if we could turn the page, please.

13             It indicates at the outset that in the aftermath of the fall of

14     Srebrenica, issue arise; and the two immediate matters, in particular,

15     the reception and care of refugees and the recovery of DutchBat.

16             You note in paragraph 2 that:

17             "The Bosnian Serbs are intent on moving fast to present a

18     fait accompli.  They wish to remove the enclaves, inter alia, to free

19     their rear area, to provide troops for a decisive blow and possibly to

20     counter the Rapid Reaction Force."

21             In paragraph 3, you indicate that the Bosnian Serbs are, quote:

22             "... 'cleansing' Srebrenica.  DutchBat are doing what they can to

23     monitor to the situation, but reports of abductions and murder,

24     unconfirmed as yet, are beginning to be heard.  Men of military age are

25     being separated from the refugees."

Page 11429

 1             You go on, in the next page, about the need to recover DutchBat,

 2     and then talk about, below that, available options.

 3             And if we could scroll down so the General can see the entire

 4     document.  And turn the page, which contains the small remainder of the

 5     document.

 6        Q.   General, as always, you're free to look at any portion of the

 7     document or peruse it for whatever time needed.  But let me ask you if

 8     you recall preparing this document and what it reflected.

 9        A.   Yes.  Could I see the front page?  I just -- my memory is that I

10     dictated it fairly late on the 13th.  So it went out, yes, just before

11     midnight.

12             I am -- this is the end of my first day back in Srebrenica, and

13     I'm trying to get a grip of the situation and inform the -- and to try

14     and inform the process of deciding what we, the UN, are going to do about

15     this by telling Mr. Akashi, and the force commander and so forth, how I

16     see the situation and what the immediate concerns are.

17             At that time, those are what I think are the immediate concerns,

18     and I am particularly trying to get across at one stage that the

19     Bosnian government is endeavouring to load, if you like, the whole

20     problem of dealing with the refugees on us, and that we are going to have

21     to set up a base to handle all these people - again, we didn't know the

22     numbers at this stage - and so on.  And then there's the -- as to how we

23     deal with the DutchBat, who are stuck with a number of people detained by

24     the Bosnian Serbs, as well as the whole battalion still stuck in

25     Sarajevo, how do I get them out.  And the commanding officer of the

Page 11430

 1     battalion is the -- is not really in a position to negotiate this, since

 2     he's, as it were -- I think I used the phrase somewhere in there "he is

 3     talking from the jail," he is inside the problem, not on the outside.

 4        Q.   And --

 5        A.   And I then describe what I think are the alternatives before us,

 6     and that if we don't act, ourselves, it will be -- events will just fall

 7     into what I seem to recall I called lying back.

 8        Q.   And I believe that reference to talking from the jail can be

 9     found in the third sentence of paragraph 4.

10             General, you noted earlier that by the 13th you were beginning to

11     hear accounts of atrocities and the separation of military-age men from

12     others, and you said:

13             "We had reports, other than the ones in the document we were

14     looking at."

15             Do you recall some of those other reports?

16        A.   The -- I'm making reference to the reports from DutchBat, which

17     were limited, but that's the only other place, other than the

18     Bosnian government, that I recall receiving those reports from.

19        Q.   By the -- by the end of -- by July 13th or by the end of that

20     date, did you understand, from the information you'd been receiving,

21     whether or not there had been a break-out by defenders, irrespective of

22     the particular numbers involved?

23        A.   I think I did, and I'm not -- I don't know whether I make

24     reference to that in this document.  What we know is we can't account for

25     the defenders.  I think we have an understanding that there's -- there is

Page 11431

 1     a group of some 2.000 people who we know have been moved to a football

 2     pitch, but I -- that may have come in the following 24 hours.  I'm not

 3     sure of my times in that.

 4        Q.   And do you recall the location where the 2.000 people you

 5     referred to were moved to?

 6        A.   Bratunac, I think.

 7             MR. TIEGER:  Your Honour, if I could tender the document we were

 8     just reviewing.

 9             JUDGE KWON:  Yes.

10             THE REGISTRAR:  Exhibit P2278, Your Honours.

11             MR. TIEGER:  General, I'd like to move to the 15th and to an

12     entry in the Mladic note-books that reflects a meeting with

13     General Mladic, President Milosevic, and others that we will see.  That's

14     P1488, page 4 in the English and page 6 in the B/C/S.

15        Q.   General, here we see a meeting -- the title is:  "Meeting with

16     UN and Milosevic."  It's dated Saturday, 15July 1995, and indicates that

17     those present were Stoltenberg, Akashi, Bildt, General De Lapresle and

18     yourself.  Do you recall that -- and that there was a separate meeting

19     with De Lapresle and General Smith?

20        A.   Yes, I do recall it.

21             MR. TIEGER:  If we can scroll down, I wanted to ask you some

22     questions about what's contained there.  I'm sorry, the next page,

23     please.

24        Q.   Now, there's a reference there to:

25             "Allow access to all prisoners for ICRC."

Page 11432

 1             Was there a push by yourself and other UN officials for the ICRC

 2     to get access to the prisoners?

 3        A.   Yes.  We were -- we were -- we wanted access for the ICRC and

 4     UNHCR to all the detained people.

 5        Q.   And that was conveyed to General Mladic at that meeting?

 6        A.   Yes, indeed.

 7        Q.   Looking down further in the page, there's a reference, under your

 8     name, to the treatment of the population in Srebrenica and Zepa and to

 9     the rumours about atrocities, massacres and rapes.

10             If we look further on the page -- the next page, rather, it

11     continues:

12             "It would be good if you would allow the UNHCR and

13     IRC/International Red Cross as soon as possible."

14             General, did you and/or others at the meeting convey your

15     concerns about information you were getting concerning massacres and

16     atrocities against the Bosnian Muslims, and continue to press for ICRC

17     access to determine whether that was accurate, and to protect the

18     prisoners?

19        A.   Yes, we did.  And I'm confident I didn't use the word "rumour."

20     I'm much more likely to have said "it is alleged" or, "I have received

21     reports that ..."

22             MR. TIEGER:  Thank you, General.  Let's turn next to

23     65 ter 01690.

24        Q.   This is an outgoing code cable dated the 17th of July, 1995, and

25     it has attached the summary of some of the main points discussed at the

Page 11433

 1     meeting, indicating also that you and Mladic had a long bilateral

 2     discussion.

 3             If we could turn to the next page, please.

 4             And looking at the fourth point under the Srebrenica section, it

 5     indicates:

 6             "ICRC to have immediate access to 'prisoners of war,'" that's in

 7     quotes, "to assess their welfare, register, and review procedures at

 8     Bosnian Serb reception centre in accordance with the Geneva Convention."

 9             Is this a further reflection, General, of the importance that you

10     and other international officials attached to the need to get the ICRC in

11     to see what was happening and to protect those who were prisoners?

12        A.   Yes, it is.

13        Q.   One of the things it indicates here is "register the prisoners."

14     Does that mean that there would be a listing of those -- individually of

15     those persons who were held so that their presence and existence could be

16     noted and they could be tracked thereafter?

17        A.   Yes.

18             MR. TIEGER:  Thank you.

19             Your Honour, I tender this document.

20             JUDGE KWON:  Yes.

21             THE REGISTRAR:  Exhibit P2279, Your Honours.

22             MR. TIEGER:  If we could turn next to 65 ter 03892.

23             And if we could turn the page, please.

24        Q.   General, this document has a summary of a meeting that you had

25     with General Mladic on the 19th of July, 1995, at Restaurant Jela in

Page 11434

 1     Han Kram, and we'll move on to a number of meetings that you had with

 2     General Mladic during July and August, but if we could -- it indicates

 3     that, first of all, General Mladic was accompanied by General Tolimir and

 4     Lieutenant-Colonel Indic; that the issues covered during the meeting

 5     included the withdrawal of DutchBat, included Zepa, freedom of movement,

 6     and so on.

 7             If we could look further down the page to item 3, the discussion

 8     of the draft agreement and some of the major points.

 9             It indicates, in paragraph 1, references to:

10             "... POWs or detainees were removed since each wanted one or the

11     other.  It was also decided that it was not correct for the generals to

12     make an agreement on what ICRC should do in Srebrenica and Zepa."

13             And if we go on to item C on the next page.

14             It appears to reflect you emphasising, again, in this case the

15     importance of UNHCR to have immediate access to Srebrenica.

16             Let me ask you, General, in -- since there's a reference to the

17     ICRC in the previous portion of the document we looked at, was the

18     international community, UNPROFOR and others still attempting to ensure

19     that the ICRC got access to Srebrenica to protect the prisoners and see

20     what had happened?

21        A.   Yes, it was.  The difference, I think, reflects the different

22     functions of those two organisations rather than any difference of

23     purpose.

24        Q.   Thank you, General.  There's a heading -- there's a portion of

25     the document also entitled "Srebrenica," and that's contained on the

Page 11435

 1     second -- the Registrar has anticipated that.  It indicates that you

 2     asked General Mladic for an account of the activities of the

 3     Bosnian Serb Army, in the aftermath of the fall of Srebrenica, and

 4     General Mladic was at pains to point out that Srebrenica was "finished in

 5     a correct way."

 6             General, why did you raise the issue of what the

 7     Bosnian Serb Army troops had done in the aftermath of the fall of

 8     Srebrenica?

 9        A.   We still didn't know.  I was still trying to find out what had --

10     what had happened.

11        Q.   And by this time, what were your concerns and what were your --

12     what information were you continuing to receive?

13        A.   Well, there was this -- we were -- we'd had those earlier

14     reports, which in no way had been discounted.  The refugees were

15     beginning to arrive at Tuzla, and their debriefing added to these -- our

16     concerns, reinforced our concerns.  And the -- we just didn't have an

17     account of, at that time, something like 2.000 men that we understood

18     were -- had been separated and taken away, and no one knew where they

19     were and had not had access to them.  And we knew we'd been feeding more

20     people than that.  We were starting to count the refugees in, and we were

21     still missing a number of male bodies, and we didn't know where they were

22     and what they were doing.

23        Q.   And turning the page to the last paragraph of the document

24     reflecting the Srebrenica discussion, it indicates that:

25             "Mladic described, on the night of 10 and 11 July 1995, a

Page 11436

 1     significant number of BiH troops broke through the lines in the direction

 2     of Tuzla.  He explained that he had opened a corridor to let these troops

 3     go.  He accepted that some skirmishes had taken place, with casualties on

 4     both sides, and that some 'unfortunate small incidents' had occurred."

 5             You had noted earlier that General Mladic was -- or the summary

 6     noted earlier that General Mladic was at pains to point out that

 7     Srebrenica was finished in a correct way.  Aside from the acknowledgment

 8     that some unfortunate small incidents had occurred in the context he

 9     described, did General Mladic try to present or present to you a

10     depiction of what happened in Srebrenica that characterised everything as

11     completely correct, and did it account for the prisoners that the

12     international community -- the fate of which the international community

13     was still unaware of?

14        A.   No.  There's this large number of men unaccounted for, which --

15     which -- and his explanation didn't make that -- didn't make -- give a

16     reason for that, other than there is a group of them moving somewhere,

17     and has been for some time, between Srebrenica and to the north -- and to

18     the north-west towards Tuzla.  The -- and nor does it really explain by

19     now the volume of reports that we're getting of people being killed and

20     so forth.

21        Q.   And I'm just trying to get -- to amplify this:

22             "... at pains to point out that Srebrenica was finished in a

23     correct way."

24             Did you understand that General Mladic was trying to convey to

25     you that there was no need for the international community to be

Page 11437

 1     concerned or to take action to find out what had happened?

 2        A.   Not in so many words.  But, equally, I probably understood it on

 3     the basis of, He would say that, wouldn't he?

 4             MR. TIEGER:  Your Honour, I tender this document.

 5             JUDGE KWON:  Yes.

 6             THE REGISTRAR:  Exhibit P2280, Your Honours.

 7             MR. TIEGER:  I'd like to turn next to another meeting on the

 8     26th of July this time.  That's 65 ter 03728.

 9        Q.   General, this document reflects a summary of a meeting that took

10     place on the 25th of July, at the same location; that is, Jela and

11     Han Kram.  And the note indicates the meeting was at your request.

12     Although the discussion about Zepa dominated the meeting, there was

13     also -- and further that you spent four hours in Zepa with

14     General Mladic, I wanted to draw your attention first to a reference

15     toward the bottom of that first page to the earlier meeting and the

16     discussions you had.

17             Now, again, General, did the issue of ICRC access come up?  Had

18     the ICRC been provided with access to Srebrenica by that time?  And what

19     was your position on it and what was Mladic's position on it?

20        A.   As I recall the meeting, we went through the document, and the

21     ICRC had not visited these people and had not had access yet.

22        Q.   And you were still trying to find out the fate of the --

23        A.   And we still didn't know what had happened in Srebrenica.

24        Q.   And by that time, by late July, what is your understanding of

25     what had happened in the aftermath of the fall of Srebrenica?

Page 11438

 1        A.   I was taking Mladic's account and what I'd understood from the

 2     Dutch Battalion.  I had an understanding that we'd -- there had been --

 3     the defence had been much weaker than we'd understood the Bosnians could

 4     mount in the Srebrenica enclave, that the defence had collapsed, and they

 5     had broken out roughly in the direction to the north-west, and that there

 6     had then been a -- and we were -- by this time, people were coming into

 7     Bosnian territory through the front-lines and into the Tuzla area.  And

 8     although we never had any access to these people, we began to hear

 9     accounts of their -- of their break-out.

10             So I had this picture of this body of men breaking out and being

11     chased by the Bosnian Serbs up through towards the front-lines and then

12     having to get through the front-lines.  And to some extent, that

13     accounted to me for why there were these reports of casualties and so

14     forth.  By this time, someone had reported they'd seen bodies beside the

15     road and so on.  But it still didn't account for the vast -- you know,

16     the numbers didn't make sense.  There was still at least 2.000 people we

17     couldn't account for and we hadn't seen, and I didn't know where they

18     were.

19        Q.   And hence your continued push for ICRC access?

20        A.   Indeed.

21        Q.   And as you noted, by that date, still no ICRC access?

22        A.   Correct.

23             MR. TIEGER:  Your Honour, I tender that document, please.

24             JUDGE KWON:  Yes.

25             THE REGISTRAR:  Exhibit P2281, Your Honours.

Page 11439

 1             MR. TIEGER:  And if we could turn to 65 ter 03492.

 2             This is a code cable from Mr. Akashi to New York, reporting about

 3     various issues, including, as we see toward the bottom of the page, Zepa,

 4     indicating at the beginning that:

 5             "The Bosnian Serb Army entered the town of Zepa yesterday and now

 6     have control over most, if not all, the towns and villages inside the

 7     enclave ...," et cetera.

 8             As we continue to the next page, we see that:

 9             "Military-age men have not as yet surrendered.  Their fate is the

10     subject of ongoing negotiations being mediated by UNPROFOR, both at the

11     local level in Zepa and at the central level in Sarajevo."

12             It refers to discussions that you and General Mladic had the

13     previous day, and I wanted to ask you specifically about a portion of the

14     document reflected in item B, and that is a proposed prisoner of war

15     exchange meeting which at that point looks as if it will not take place.

16     It says:

17             "The Serbs are insisting on an 'all for all' exchange, but refuse

18     to give details about the men taken in Srebrenica."

19        Q.   I wondered if you might be able to explain that for us, General.

20     Is it correct that although there is an insistence that every prisoner

21     held be released for every prisoner held by the other side, that the

22     Bosnian Serbs are still refusing to provide details on what happened to

23     the men in Srebrenica?

24        A.   I recall -- I mean, this was going on within the -- there was a

25     body that handled prisoner exchanges that met at the airport, and I think

Page 11440

 1     it's referred to here.  The Exchange Commission, POW Exchange Commission.

 2     This had been -- this whole process had been stalled ever since the

 3     Cessation of Hostilities Agreement had started to break down, and I don't

 4     recall the specifics of this debate.  I remember that the -- you know,

 5     just what is "all," and whether Srebrenica's prisoners were part of "all"

 6     as part of this, and I assessed the whole thing as an endeavour to stall

 7     what was going on around Zepa at the time rather than to make it work.

 8             MR. TIEGER:  Your Honour, I tender this document, please.

 9             JUDGE KWON:  Yes.

10             THE REGISTRAR:  Exhibit P2282, Your Honours.

11             MR. TIEGER:  And if we could turn to 65 ter 03492.

12             THE REGISTRAR:  Would you repeat the number, please, Mr. Tieger?

13             JUDGE KWON:  That's the number of what we saw already.

14             MR. TIEGER:  You're right, Your Honour.  Excuse me.

15             I believe the correct number is 03895.  That's a document I'll be

16     calling up, I believe, Your Honour, but I wanted to move chronologically,

17     if possible, and so let me ask Mr. Reid for some assistance.

18             I'll straighten that out at the break, Your Honour.

19             Meanwhile, we can move to -- quickly to the same document that

20     the Registrar just called up before, if it's still on the screen.

21     I think that was 3895.

22        Q.   This is a summary of the situation in Zepa as of 28 July 1995,

23     General, indicating the evacuation of the civilian population almost

24     complete.  What I wanted to bring to your attention and ask you about is

25     another reference to the Exchange Commission and whether or not at this

Page 11441

 1     time, and looking at paragraph 2, there was continued insistence on the

 2     "all for all" exchange, and, again, whether or not that included any

 3     information provided on the men from Srebrenica, and whether or not the

 4     fate of those men at that time was known.

 5        A.   We didn't know the fate of the people in Srebrenica, and I don't

 6     remember it, from where I was sitting, as being part of the debate in

 7     Zepa about the -- about the prisoners.

 8        Q.   General, just before we break:  We noted in a number of

 9     documents, and you testified about repeated promises by General Mladic

10     during the course of your meetings, that the ICRC would be provided

11     access to the prisoners of Srebrenica.  By late July, what was your view

12     of these promises?

13        A.   I think by the very end of July, the ICRC had actually gone to

14     Bratunac, or the general area of Bratunac, and been shown some empty

15     buildings, but nobody had been shown any prisoners.  And I was thinking I

16     had -- you know, as far as I was concerned, these promises were pretty

17     hollow by now.

18             MR. TIEGER:  And in connection with that, if we could look

19     quickly at 65 ter 02365, page 89.

20             JUDGE KWON:  Have we admitted this "Situation in Zepa"?

21             MR. TIEGER:  Thank you, Your Honour.

22             JUDGE KWON:  Yes.  That will be Exhibit P2283.

23             MR. TIEGER:  If we could begin at the very bottom of page 89 on

24     the right side, which states, and that's paragraph 409:

25             "Illustrative of his frustration, ICRC had not been granted

Page 11442

 1     access to the Srebrenica area to ascertain the fate of the missing until

 2     a few days after the London meeting.  Once granted access by the

 3     Bosnian Serb Army to the Batkovic Camp in North-Eastern Bosnia, ICRC was

 4     only able to register 164 prisoners from Srebrenica and 44 from Zepa.

 5     The ICRC representatives were told that no other prisoners were being

 6     held, and were accordingly shown a number of empty detention centres in

 7     the Bratunac area."

 8             And then it goes on to note the number of individuals who

 9     remained unaccounted by November of 1999.

10        Q.   General, is that consistent with and a reflection of what you

11     mentioned a moment ago about --

12        A.   I think the thing I'm talking about is the -- when they went to

13     Bratunac.

14             MR. TIEGER:  Thank you.

15             Your Honour, I'm happy to tender that document, although I

16     appreciate we've only discussed a small portion of it.

17             JUDGE KWON:  That will be admitted as Exhibit P2284.

18             I note the time, Mr. Tieger.  It's time to have a break.

19             But before we rise, I wanted to ask you:  How much longer would

20     you need for your direct examination?

21             MR. TIEGER:  These estimates are always a little bit uncertain,

22     but I believe approximately a half hour is what I hope to be able to

23     conclude it in.  But --

24             JUDGE KWON:  Thanks to the understanding and indulgence of the

25     staff, interpreters, stenographers, and all the other Registry members,

Page 11443

 1     I think we would be able to sit for some extended hours tomorrow and the

 2     day after tomorrow.

 3             We'll be sitting until 4.30 on Thursday and until 3.45 on Friday,

 4     when means we have an additional one hour and forty-five minutes extra.

 5     But if you take about half an hour, that would mean that Mr. Karadzic

 6     will have a bit less than 12 hours which is allotted to him.

 7             So we'll see how it goes, but I wanted to make a heads-up to the

 8     parties that Sir Rupert may have to come back again sometime next week.

 9             MR. TIEGER:  Your Honour, I simply want to note that, first of

10     all, I'm moving as quickly as I can, within reason, so the Court gets the

11     benefit of -- I don't want to move too precipitously.

12             I also wanted to note that the scheduling did -- it was quite

13     precise and didn't allot any time for redirect examination, although part

14     of the accused's basis for requesting a fairly extraordinary amount of

15     time, given this is a viva voce witness, is that he wants to elicit

16     information for his own case, which the Prosecution would have no

17     opportunity to address.  So not only would we not get classic redirect,

18     we wouldn't be able to address the new information that the accused is

19     attempting to seek.  So I wanted to note that some of that time should be

20     considered for the normal purposes of redirect and for the obviously

21     potentially expanded purposes of the examination by the Prosecution under

22     the circumstances here.

23             In addition, I think we've already seen an example of the kind of

24     areas that the accused will be pursuing when Mr. Robinson put his case

25     yesterday, and I think the Court should keep an eye on the value of some

Page 11444

 1     of the explorations that are undertaken by the accused during the course

 2     of the allotted time.

 3             JUDGE KWON:  In any event, considering all the circumstances, the

 4     Chamber has allowed the accused to have 12 hours for his

 5     cross-examination, and we'll see how we can get on with it.

 6             Shall we go into private session briefly.

 7                           [Private session]

 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                           [Open session]

21             JUDGE KWON:  Yes.  We have a break for half an hour and resume at

22     five past 1.00.

23                           --- Recess taken at 12.36 p.m.

24                           --- On resuming at 1.07 p.m.

25             JUDGE KWON:  Yes, Mr. Tieger.

Page 11445

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

 2             Can we turn back to P2282.  And go first to page 11 of e-court, I

 3     believe.

 4        Q.   General, as you can see, this is a document dated the

 5     26th of July, 1995.

 6             And if we turn to the summary of meetings on the next page,

 7     please.

 8             This, again, reflects a meeting between yourself and

 9     General Mladic, during which the situation in Zepa was discussed.  I

10     wanted to draw your attention quickly to two portions of that document.

11     First, scrolling down the page to item 6, that indicates that you

12     explained to General Mladic that to meet his demands for an "all for all"

13     POW exchange, a meeting would have to take place between both parties.

14     You also cautioned Mladic that it was vital to get ICRC on the ground

15     into Zepa as soon as possible to avoid some of the allegations that had

16     emanated from Srebrenica.

17             General, is that a reflection of the fact that ICRC still hadn't

18     been permitted access at that point into either Srebrenica or Zepa, and

19     the mounting information that you were receiving about what had happened

20     in Srebrenica?

21        A.   Yes, it is.

22             MR. TIEGER:  And if we could turn to item 10 on the next page.

23     That's a reflection of the discussion, as indicated on the top of the

24     page, involving General Smith, Mladic, Torlak -- Torlak is identified as

25     a civil representative of the population in Zepa who signed the agreement

Page 11446

 1     on the 24th of July, 1995.  That's a reference we see at the top of the

 2     page, if we could scroll up briefly.

 3             And going back down to item 10.

 4        Q.   In the middle of that paragraph, it indicates:

 5             "Torlak stated that if the men in the enclave," again referring

 6     to the Zepa enclave, "were more confident that the Bosnian government

 7     would agree to the POW exchange, the mood of fear would immediately

 8     alter."

 9             General, can you tell the Court what you understood about that

10     mood of fear and what its sources were?

11        A.   The general atmosphere within Zepa of the people who'd been

12     living there was fearful.  Some of the -- there had been people from

13     Srebrenica reaching Zepa, so they'd heard some of the stories as well.

14     And I think it was that, as much as anything, that was the atmosphere

15     that I'm -- I understood that Torlak is reporting to me in this

16     conversation.

17             MR. TIEGER:  Thank you, General.

18             I'd like to turn next to 65 ter 03896.

19        Q.   This is a document that is dated 31st of July, 1995, and reflects

20     another meeting between you and General Mladic.  I just wanted to give

21     you a chance to look that over.

22             And if we could turn to the next page, please.

23             Looking at item 7, it indicates that:

24             "There was little progress made on the Zepa issue, as the matter

25     is clearly not high on Mladic's current agenda."

Page 11447

 1             I believe we saw, in the first part of the document, that the

 2     first part of the meeting was dominated by Mladic's description of the

 3     military and humanitarian situation in Livno, Glamoc and Grahovo as a

 4     result of HV-HVO offensives.

 5             And it indicates in item 7(a) and (b) that:

 6             "Mladic will make no concessions on a prisoner of war exchange.

 7     Any exchange must be on his terms, which will require the BiH to

 8     surrender and hand over their arms to the Bosnian Serb Army.  He is

 9     clearly no longer concerned to get an 'all for all' exchange."

10             And I take it, General, that reflected an abandonment of the

11     insistence on an "all for all" exchange after continued pressing by

12     UN officials for information on the Srebrenica prisoners.

13        A.   I'm not sure -- I'm not sure what -- if that was a part of that

14     reasoning.  The other thing was happening was that he now needed -- he

15     was now concentrating on this crisis in -- on the Livno-Glamoc direction

16     and couldn't afford the forces that he'd had around Zepa remaining around

17     Zepa.

18        Q.   Item B indicates that Mladic -- maintaining that the evacuation

19     of the civilian population is complete, claiming that the BiH have

20     started to break out of the pocket on three routes, and denying your

21     request for UNPROFOR to patrol into the pocket to locate any remaining

22     civilians.  Why did you want to gain access for UNPROFOR to patrol into

23     the pocket?

24        A.   I wanted to be sure that all the civilians had been -- were out

25     and clear.  And if there were military left, as I believe there were, up

Page 11448

 1     in the more mountainous area, then I would have been able to make contact

 2     with them.

 3        Q.   During that same period, was UNPROFOR allowed to patrol into the

 4     Srebrenica area to --

 5        A.   No, no, we were not.

 6             MR. TIEGER:  Thank you, General.

 7             I'd tender this document, Your Honour.

 8             JUDGE KWON:  Yes.

 9             THE REGISTRAR:  As Exhibit P2285, Your Honours.

10             MR. TIEGER:  Can we call up 65 ter 03898, please.

11        Q.   General, please take a look at this document.  This is dated --

12     it's the 22nd of August, 1995, again reflecting a meeting between

13     yourself and General Mladic.

14             Now, as indicated in the document, the meeting lasted some

15     five hours, a number of issues that were discussed.

16             And if we turn to page 2, and toward the bottom of the page, it

17     seems to indicate that you were exploring Mladic's political positions

18     and ambitions, and he insisted that the international community had to

19     speak to the Bosnian Serbs, and stated:

20             "I am a war criminal, but you have to talk to me, as I am the

21     only one who can allow you to leave Gorazde."

22             He indicated that he wants to assist, but wants to be clear that

23     he's only a soldier, that's his role, and doesn't want to do anything to

24     discredit his government or the Assembly.

25             Do you recall that discussion, General, and was that part of your

Page 11449

 1     assessment of Mladic's relationship with the other aspects of the

 2     Bosnian Serb political and military leadership?

 3        A.   I do recall the meeting and the discussion during the meeting,

 4     the -- and the general thrust described there of this conversation.

 5        Q.   You also discussed Srebrenica at this meeting, and that's

 6     contained in the following page at item 9.  According to this reference,

 7     you referred to the concern about and allegations of atrocities, the

 8     refusal of the Bosnian Serbs to allow access for ICRC, and referred to

 9     "an own goal."  What were you indicating to and speaking about to

10     General Mladic, and what response did you get?

11        A.   The conversation about Srebrenica, if I recall correctly, flowed

12     from those that were discussing the perception of the Bosnian Serbs,

13     which I think is in the previous -- yes, in the previous paragraph.  I'm

14     not for the first time trying to get across that they -- the perception

15     of the Bosnian Serbs was seriously to the disadvantage of the

16     Bosnian Serbs, and they were bringing this about in their careless way in

17     their handling their position, and their actions and so forth were only

18     contributing to the perception of the world -- that the world had of them

19     as being the cause of the -- and perpetrators of the problems in the

20     Balkans, and the -- to which he was interested and so forth.  But you

21     then get the not-unusual response on these occasions where these are

22     actually allegations of those who are against us, anyhow, and are the

23     consequence of other things.  I didn't believe the point that's recorded

24     at the end, since the allegations of the atrocities had started before

25     the Krajinas -- the Croats had cleared the Krajinas.

Page 11450

 1        Q.   And what about the allegation that the ICRC hadn't been allowed

 2     access because their organisation was full of "foreign agents"?

 3        A.   Well, it's not true, but it -- that was -- again would be a

 4     fairly typical response.

 5        Q.   And when it's noted here that Mladic was clearly discomforted by

 6     the mention of Srebrenica, in what ways, other than the ones described in

 7     this text, were you -- was that evident, and how did he express it?

 8        A.   I don't remember how it was evident, but it wouldn't have been

 9     recorded if it wasn't.  And, again, other than the responses recorded,

10     I've got -- I can't remember how he expressed the discomfort.

11        Q.   And do you recall whether he tried to explain what had happened

12     in Srebrenica and in some manner?

13        A.   I don't remember if he did.

14             MR. TIEGER:  Your Honour, I tender this document.

15             JUDGE KWON:  Yes.

16             THE REGISTRAR:  As Exhibit P2286, Your Honours.

17             MR. TIEGER:  And if we can turn next to 65 ter 13734.

18        Q.   General, this is a document dated the 22nd of August, 1995, which

19     reflects meetings with the Bosnian Serb leadership on August 21st.  As it

20     indicates in the beginning of the message, that there were two meetings

21     in Pale with the Bosnian Serb leadership, first with Koljevic and later

22     with President Karadzic and three of his associates, Momcilo Krajisnik,

23     Aleksa Buha, and Jovan Zametica.

24             And if we could turn quickly to the third page in e-court.

25             Now, General, as we saw in the previous document, as you

Page 11451

 1     explained to us, when you met with General Mladic, which would have been

 2     the following day, you attempted to impress on him, as fully as possible,

 3     the impact of the mounting international concern over what had happened

 4     in Srebrenica, and to impress upon him at that time its negative

 5     consequences.  Here, it indicates that you reminded Mr. Karadzic that, in

 6     accordance with directives of UN Resolution 1010 concerning reports of

 7     grave violations of International Humanitarian Law by the Serbs in and

 8     around Srebrenica, the SRSG had written to him on the 12th of August to

 9     request access and co-operation for UNPROFOR to investigate the

10     allegations.  And to date, the SRSG had not received Karadzic's response,

11     nor had the letter reacted in any positive manner to the request.

12             How long had this effort to obtain access and how consistently

13     had that effort been pushed since the fall of Srebrenica?

14        A.   Well, you've seen, on the military side, trying to do this in

15     the -- from the meeting -- certainly from the meeting in Belgrade in --

16     on the 15th of the previous month, that we'd been asking for this and

17     raising this matter for some time.  To the -- I can't be sure of what was

18     going on in Zagreb, to the frequency of their requests, but I know they

19     kept raising them.  And here you have, into August, the -- he's writing a

20     letter on the 12th of August, so he can't have -- that won't have just

21     come out of the blue.  It would have -- it would have been preceded by

22     other requests of some -- at some interval.

23             MR. TIEGER:  And let me pause for a moment, then, and ask the

24     Registrar to call up 65 ter 1372.

25             JUDGE KWON:  The previous document hasn't been admitted.  We'll

Page 11452

 1     admit this.

 2             THE REGISTRAR:  As Exhibit P2287, Your Honours.

 3             MR. TIEGER:  I'm sorry, we -- there we go.

 4        Q.   This document, General, is a document dated the

 5     14th of August, 1995, from Mr. Akashi to Mr. Annan, and the subject is:

 6     "The missing population from Srebrenica."  And this reflects efforts to

 7     obtain access to determine the fate of those who had been detained in the

 8     aftermath of taking Srebrenica, as well as Zepa, and various promises.

 9             And if you look at item 2, it states:

10             "In addition to various efforts made at the field level to gain

11     access by UNPROFOR and others to the Srebrenica missing, I have sent the

12     attached letter to Dr. Karadzic.  All of our efforts thus far have not

13     produced the desired results.  The simple fact is that, without

14     Bosnian Serb consent, neither UNPROFOR, ICRC, UNHCR, or any other

15     organisation is going to get access to those detained or to the sites

16     where mass graves are alleged to exist.  The required consent is unlikely

17     to be provided, most of all to the alleged grave-sites."

18             And if we turn the page, we can see the letter that was sent,

19     expressing the Security Council's deep concern, referring to -- in

20     particular to the allegation of the existence of a mass grave identified

21     by the Government of the United States of America, and urging, as a

22     matter of urgency, co-operation with UNPROFOR to investigate, immediate

23     access for representatives of UNHCR, the ICRC, and other international

24     agencies.

25             This, General, was part of the press by the international

Page 11453

 1     community arising from the concern of the fate of those in Srebrenica and

 2     trying to get access?

 3        A.   Yes, indeed.

 4             MR. TIEGER:  If that can be admitted, Your Honour.

 5             JUDGE KWON:  Yes.

 6             THE REGISTRAR:  Exhibit P2288, Your Honours.

 7             MR. TIEGER:  And turning back quickly to P2287, and again to the

 8     third page.

 9        Q.   And after reminding Mr. Karadzic of the directive of the

10     UN resolution and the specific request by the SRSG, what -- and urging

11     Mr. Karadzic independently to give urgent considerations to the SRSG's

12     request, what response did you get?

13        A.   Well, I can only read it.  I wasn't there.

14        Q.   I'm sorry.  What response was received?  My apologies.

15        A.   We'd hadn't had a response.

16        Q.   Okay.  This document indicates that Karadzic claimed that he had

17     lately been preoccupied with the crisis in Banja Luka and other areas and

18     promised to look into the matter.  General, was that, the response as you

19     see it here, consistent with the responses you'd received from

20     General Mladic and the general resistance to permitting access into

21     Srebrenica to find out what had happened?

22        A.   Mladic wouldn't -- had made the promise.  He just never honoured

23     it.  He never claimed that he hadn't paid attention to the request, but

24     the results are the same.

25             MR. TIEGER:  Thank you.

Page 11454

 1             JUDGE KWON:  By the way, is this report not written by

 2     General Smith?

 3             THE WITNESS:  No.

 4             MR. TIEGER:  Written by --

 5             JUDGE KWON:  Can we see the first page?

 6             THE WITNESS:  It was my new political advisor.

 7             JUDGE KWON:  Thank you.

 8             THE WITNESS:  And I think his first trip up to Pale.

 9             JUDGE KWON:  Thank you.  The "COM" means "Chief of Mission"?

10             THE WITNESS:  Yes.

11             MR. TIEGER:  If we could turn next to 65 ter 03899.

12        Q.   General, I want to speak to you in the remaining minutes about an

13     event that took place in the latter part of August 1995 in Sarajevo.

14             MR. TIEGER:  My apologies, Your Honour.  Just a moment.  That's

15     fine.

16             If we could move to the next page of that document, please -- the

17     third page of that document, rather.

18        Q.   General, this reflects a series of phone calls that you had with

19     General Mladic on the 28th of August, 1995, commencing, according to the

20     time code there, at 1413 Bravo, then at 1823, and then a conversation on

21     what appears to be August 29th at 10.00.  And as indicated in the first

22     conversation, you spoke for approximately 10 minutes concerning the

23     shelling of Sarajevo that morning, and you reported that between 11.10

24     and 11.20 that morning, five to six shells landed in the vicinity of the

25     market-place, killing in excess of 30 people and wounding more than 40.

Page 11455

 1             General, I'd like you to take a quick look at this series of

 2     conversations and ask if you recall those discussions in connection with

 3     what became known as the Markale II incident, and if you can amplify what

 4     is reflected in the notes about the conversations.

 5        A.   Yes, I recall the conversations, and they concerned the

 6     Markale II -- the shelling of the market-place and then the events that

 7     followed from that.

 8        Q.   And, briefly, if you can describe for the Court what happened and

 9     what your exchanges with General Mladic were about, what you were trying

10     to advise him, what he was trying to advise you, and how they progressed.

11        A.   The -- this incident occurred in which some 30 people were killed

12     by mortar fire into the market-place.  That's the start of the events.

13             The -- there is this earlier call.  The first call is me trying

14     to make contact, because we must -- perhaps I should backtrack a moment

15     and say that ever since the London Conference at the end of July, the

16     rules, as it were, of the safe areas had changed slightly to the point

17     that not only did the military commanders hold the key to requesting

18     air-strikes, but the air-strikes were pursued until attacks had been --

19     and the exclusion zone had been wholly established; and, secondly, that

20     it was -- that any attack would trigger such an event.

21             All of this had been explained certainly to Mladic and, I

22     believe, President Karadzic by a visit of senior officers from the

23     British, French, and, I think, American states.  The -- so I am very keen

24     to talk to Mladic and establish what he thought had happened when this

25     attack occurred and whether they were involved or not.  So that's the

Page 11456

 1     first call.  And at the same time, I'm trying to find out, from the

 2     analysis of the people on the ground, what we think has happened.  And we

 3     arranged to call again later in the afternoon.

 4             The investigations go on all afternoon, and that I am -- I report

 5     to him broadly where we are at that stage in the investigation.  And by

 6     this time, other -- more firing is going on, albeit on the front-line, on

 7     the confrontation line.

 8             General Mladic is wanting a joint commission, and I am not

 9     inclined to agree to that, since it just prolongs the process, and we

10     needed to know what had happened with some dispatch.  And I arranged to

11     call again the next day in the forenoon.

12             And then you see the next call, during which time I explained

13     that we -- that I have decided, beyond reasonable doubt, that the shells

14     had come from the Bosnian Serb -- a Bosnian Serb Army firing position and

15     the -- and that the attack was a Bosnian Serb attack.  I had, by this

16     stage, turned my key and requested the NATO to start to conduct its

17     prepared operation against this eventuality, or, rather, such an

18     eventuality, because I didn't know that this, precisely, would happen.

19        Q.   A couple of questions, General.

20             First of all, was your rejection of the call for a joint

21     investigation only because of the timing or did you have any views about

22     the purpose and eventual use of a joint investigation?

23        A.   Oh, I -- to get a joint investigation, you'd have had to have had

24     the Bosnians there -- government people there as well, and they weren't

25     going to agree to it, so this would -- there would have been a long spell

Page 11457

 1     arguing between the parties as to whether this thing would have happened

 2     or not.  Secondly, the -- there would be a great delay while this was

 3     conducted.

 4        Q.   Did the significance of the attack have an impact on your

 5     determination to ensure that you received the best information possible

 6     and were certain about the results before you acted?

 7        A.   Oh, most -- not only did I want to be sure of the circumstances

 8     as to what had -- where these rounds had been fired from, but the

 9     consequence of deciding was going to be different to before because of

10     the decisions of the London Conference.  Either I was going to say --

11     turn my key or not.  There wasn't a middle ground.  So I wanted to be

12     quite sure, myself, as to what had happened.

13        Q.   And do you recall some of the factors that underpinned your

14     confidence that the shells had been fired by the Bosnian Serb forces?

15        A.   In -- there were a number of things to make a judgement about.

16     There was the examination of the craters.  That, while indicating a

17     general direction towards the south, didn't give us an absolute clarity

18     of where the round or -- one particular round had come from.  A later

19     examination clarified the anomaly round, if you like, and included it

20     with the other ones.  And then I had someone -- because both of these

21     investigations -- I should explain.

22             The UNMOs had a responsibility to investigate, but it was also in

23     the area of Sector Sarajevo, and they reported -- they were my

24     subordinates, and they, too, investigated.  And that is where we got the

25     two slightly different reports, but they were both -- and, as I say,

Page 11458

 1     eventually largely reconciled.  They were both of the actual craters and

 2     the immediate vicinity of the explosions.  When these were produced to

 3     me, I not only wanted them to be -- the engineer report to be -- go back

 4     and look at the crater again, but, secondly, to bring into the judgement

 5     all the other systems that we had, the radars, the acoustics, and the

 6     observation posts and so on that we had in the area.  And the most

 7     significant bit of the information, amongst the other things they showed

 8     us, was that nobody had heard these rounds being fired from within the

 9     proximity of the -- of Sarajevo.  And this, to me -- since people were

10     used to hearing things being fired and then hearing the explosions, this

11     wasn't -- the fact that nobody heard this helped in the analysis of

12     the -- all the information and led to my judgement that the rounds had

13     been fired from outside the Sarajevo defended area and had come from the

14     Bosnian Serb area or Bosnian Serb territory.

15        Q.   Thank you, General.  And for those who may not have personally

16     experienced or heard the sound of such projectiles being fired, perhaps

17     you can give us some indication of how subtle or obvious that might be.

18        A.   A mortar round, being fired from its barrel, makes a substantial

19     noise.  If you see people firing mortars, usually they have some form of

20     hearing protection on.  And even if they don't, you see them duck their

21     heads below the mortar barrel as the round is fired in order to avoid the

22     worst of the sound waves and the shock of the explosion.

23             MR. TIEGER:  Thank you, General.

24             Your Honours, in light of the time, that concludes my

25     examination-in-chief.  I thank you.

Page 11459

 1             JUDGE KWON:  Thank you.

 2             Shall we admit the last document --

 3             MR. TIEGER:  Yes, of course.

 4             JUDGE KWON:  -- as an exhibit?  Yes.  That will be Exhibit P2289.

 5             Very well.  Thank you, Mr. Tieger.

 6             Mr. Karadzic, it's now for you to cross-examine the General.

 7             THE ACCUSED: [Interpretation] Thank you.

 8             Good afternoon to all.

 9                           Cross-examination by Mr. Karadzic:

10        Q.   [Interpretation] Good afternoon, General.

11        A.   Good afternoon.

12        Q.   I'm pleased to see you in good health, and I see that you are not

13     aging.  And I also see that your memory is very fresh.

14             Please, did you refresh your memory regarding most of these

15     events by resorting to some notes of your own?

16        A.   No.  I went through the proofing process that you're aware of.

17        Q.   Thank you for having met up with Mr. Robinson, my legal advisor.

18     However, you have mentioned something.

19             Did you keep any notes or did you keep a diary?

20        A.   No, I didn't keep a diary.

21             THE ACCUSED: [Interpretation] I'm a bit puzzled by that, because

22     we have some information to that effect.

23             Can I have 1D315 [as interpreted] in e-court.  1D3195.

24             Yes, that could be it.  Can we have page 9 now, page 9 in

25     English.

Page 11460

 1             MR. KARADZIC: [Interpretation]

 2        Q.   Yes.  Could you please focus your attention on the beginning of

 3     paragraph 34.  You have recognised the document, haven't you?  It's --

 4     you remember this interview with the Dutch Institute?

 5        A.   Yes, I do.

 6        Q.   Have a look at 34:

 7             [In English] "... Smith has not deposited any archives in Oxford;

 8     all he has are copies of coded cable, a diary, just an A5-sized notebook

 9     and a reviewed version of it."

10             [Interpretation] Could we somehow get a hold of these notes of

11     yours?

12        A.   I -- I don't remember the A5 notebook.  What I can remember is I

13     had a pocket diary, if that's what you meant.  I thought, when I answered

14     the question, a pocket diary like that [indicates] or similar.  Where

15     that is, I have no idea.  And I don't know what a reviewed version of it

16     submitted is.  What does that mean?  Perhaps they -- they took it, I

17     don't know, or I gave them a copy of it.

18             THE ACCUSED: [Interpretation] Thank you.

19             Could we have a look at 1D3137.  1D3137.

20             This is material from the Dutch Parliament, or their

21     Parliamentary Commission, about Srebrenica.

22             While we're sorting things out with e-court, perhaps we can have

23     this placed on the ELMO, just a brief paragraph.

24             All right, we have it in e-court now.  Yes, page 10 now.

25             Could you zoom in a bit.

Page 11461

 1             MR. KARADZIC: [Interpretation]

 2        Q.   Would you please have a look at the answer you gave that is on

 3     the right-hand side, and then towards the middle of that paragraph:

 4             "It is not even in my diary ..."

 5             [In English] "... because it ceased to be something to recall."

 6        A.   Can we make it a little bigger, please?

 7             JUDGE KWON:  Yes, let's show it.

 8             MR. KARADZIC: [Interpretation]

 9        Q.   It's on the right-hand side, that longest answer that you gave,

10     and it's around the middle of that answer.

11             Have you found it now?

12        A.   Yes, I have.

13        Q.   Again you're referring to your diary; right?

14        A.   In that case, the diary I'm referring to was, as I say, a

15     pocket diary of dates.  And I have no idea where that is, nor am I clear

16     whether that and the diary mentioned in the previous document are the

17     same things.  In fact, you would have to tell me.  I remember this

18     interview taking place, but I can't be sure when it did.  I think

19     sometime in around about 1999.

20        Q.   Thank you.  We'll be going back to all of these documents.

21             You came to Sarajevo to assume that command in January, and will

22     we agree that the so-called Carter Cease-Fire Agreement was in force for

23     about a month at that point in time?

24        A.   Yes.

25        Q.   All right then you noted that this cease-fire agreement had been

Page 11462

 1     brought into question and that violations of that cease-fire agreement

 2     started from the Muslim side or, rather, the Bosnian side, as you call

 3     them?

 4        A.   I remember that they were -- that we'd had incidents.  I don't

 5     recall the list or who started them.

 6             THE ACCUSED: [Interpretation] Thank you.

 7             Could we please ask for 65 ter 22686.  Can we have that in

 8     e-court.  That is the consolidated or amalgamated statement of

 9     General Smith.  65 ter 22686.  Yes, that's it.

10             Yes.  Have a look at paragraph 28 on page 7.

11             MR. KARADZIC: [Interpretation]

12        Q.   This paragraph clearly states that it was the Bosnian side that

13     largely initiated all this trouble; right?

14        A.   It says it broke down, largely initiated by the Bosnian side.

15             THE ACCUSED: [Interpretation] Thank you.

16             Can we have the next page, please, paragraph 32.

17             MR. KARADZIC: [Interpretation]

18        Q.   As you alluded to above, as you say, by the middle of February it

19     was becoming evident that the Bosnian side did not want a cessation of

20     hostilities agreement unless the Bosnian Serbs would accept the

21     Contact Group map.  Do you remember that this cease-fire agreement had

22     been limited to four months, because that is what they had requested?  We

23     wanted to have a permanent cease-fire, whereas they asked for four months

24     only, and then we were supposed to sign the Contact Group Plan, which, in

25     fact, was a peace agreement, not a cease-fire agreement?  Do you remember

Page 11463

 1     all of that?

 2        A.   I wasn't present at the negotiations of the Cessation of

 3     Hostilities Agreement, but I do remember it had to be reviewed in

 4     four months' time.

 5        Q.   Thank you.  It is evident that already by then, you had become

 6     aware of the fact that the preparations of the Bosnian Army, or, rather,

 7     the Army of Bosnia-Herzegovina was making open preparations to fight on

 8     in the spring, a spring offensive; right?

 9        A.   Yes.

10        Q.   Thank you.  You also say here that the Serb side had informed you

11     about abusing the Tuzla Airport.  We'll go back to that, the question of

12     arming and abuse of the Tuzla Airport by the Army of Bosnia and

13     Herzegovina and some other powers.  But I would like to ask you now

14     whether you were personally aware of the extent of the fighting around

15     Sarajevo that was started by the Muslim side.

16        A.   Which fighting?  When are we talking about?

17        Q.   Well, say from mid-March onwards, this spring fighting.  And

18     actually you noted that preparations were underway, and that is what you

19     say in paragraph 32.

20        A.   In March, I was aware of the two Bosnian Army offences.  They

21     were not around -- specifically around Sarajevo at that time.

22             THE ACCUSED: [Interpretation] Thank you.

23             Can we now have 1D -- actually, D182.  It has already been

24     admitted.  Let us show some of the documents of the Bosnian side.

25             We'll deal with this very briefly.  Let us just see some of the

Page 11464

 1     key things that were being done by the 1st Corps.  Actually, it was the

 2     12th Division by then, and then it's the 12th Division that's part of the

 3     1st Corps of the Army of Bosnia-Herzegovina.

 4             MR. KARADZIC: [Interpretation]

 5        Q.   Can you have a look at this, what it says down here, "The

 6     Division's Task":

 7             [In English] "... carry out an attack from the zone of defence of

 8     our" something, "division along favourable axes and towards favourable

 9     targets, with the task of inflicting on the enemy the greatest loss

10     possible in manpower and MTS ..."

11             [Interpretation] So it was the task of this division to attack us

12     as forcefully as possible and to inflict as much loss as possible on us.

13     Do you agree that they were stationed in Sarajevo, the 10th Division?

14        A.   I cannot remember the -- where all the units and formations were

15     at that time of either army.

16             THE ACCUSED: [Interpretation] Thank you.

17             Can we have the next page.  We're in a hurry, so we will just

18     look at this very briefly just to get some basic insight.

19             MR. KARADZIC: [Interpretation]

20        Q.   If I jog your memory by saying that the 1st Corps consisted of

21     three divisions, the 12th, the 14th, and 16th respectively, the 12th was

22     in the town, itself, and the 14th and the 16th were on the outskirts of

23     town, and they were attacking us from this ring around the city, would

24     you agree with that?

25        A.   I can't agree with something that you've told me, what -- where

Page 11465

 1     these -- you've told me the divisions were there, and you're now asking

 2     me to agree that they were.  I don't remember where the divisions were of

 3     any army around and in Sarajevo.

 4             I quite agree there were Bosnian forces within Sarajevo, and

 5     during that time fighting took place, but those weren't the two big

 6     offences in March.

 7        Q.   Thank you.  Could you please have a look at this, the tasks of

 8     the units.  And then 5.1, that's the 101st Brigade.  And then under 5.2,

 9     the 115th Brigade.  And, I mean, this refers to their artillery, to their

10     headquarters.

11             THE ACCUSED: [Interpretation] Can we see the next page?

12             THE WITNESS:  It went on.  Let me read it.  Can we go back?  I

13     can't read at that speed.

14             MR. KARADZIC: [Interpretation]

15        Q.   Do you agree that they were deployed in various streets, so it's

16     street-fighting that is part of their tasks?  You see the street

17     references?

18        A.   I can see that.

19        Q.   115th is at the university in Beogradska Street, then attacking

20     the building of Metalka, the Stara Pivara, and so on?

21        A.   Yes, I can read that.

22             THE ACCUSED: [Interpretation] Thank you.

23             Can we have a look at the next page.

24             MR. KARADZIC: [Interpretation]

25        Q.   The 152nd Brigade - that is under 5.3 - do you agree that it also

Page 11466

 1     refers to various neighbourhoods in the city, itself, and then the

 2     105th Brigade, that refers to Panjina Kula, Orlovac, Mala Kula,

 3     Duboki Potok, et cetera?  Further on, the 111th -- please, could you just

 4     have a look at their deployment, and could you see what these brigades

 5     are doing?

 6        A.   I can see that all of these brigades have been given a zone, if

 7     you like, and -- and I recognise some of the names of places in Sarajevo,

 8     and they are being told to defend that zone.

 9        Q.   To defend them from counter-attacks, but also to attack.  It's

10     their task to attack; isn't that right?

11        A.   No.  I haven't seen a word there that says "attack."  It says "to

12     defend the zone of defence," and -- et cetera.

13             THE ACCUSED: [Interpretation] Can we then go back to page 1 just

14     for a moment, very briefly.

15             MR. KARADZIC: [Interpretation]

16        Q.   Number 2, the first row:

17             "Carry out an attack --"

18             [In English] "... from the zone of defence of our [indiscernible]

19     division along favourable axes and towards favourable targets, with the

20     task of inflicting on the enemy the greatest loss possible in manpower

21     and MTS ..."

22             [Interpretation] So this is an order, if you look at the

23     first page.  This is an order to launch an offensive, an attack.  This is

24     an offensive operation.  It's not a single incident or a single attack,

25     it's an operation.  Don't you agree?

Page 11467

 1        A.   What I've read so far, from the points you've pointed me to, is

 2     that the division's task is to carry out an attack, but the commander

 3     appears to be telling all his brigades to defend in those zones.  I

 4     haven't read the whole document, so I can't tell you why there is this

 5     apparent contradiction.

 6             THE ACCUSED: [Interpretation] Thank you.

 7             Page 3 again, please.

 8             MR. KARADZIC: [Interpretation]

 9        Q.   So that you, as a strategist and a general, can have a look at

10     this and so that you can see what kind of support these forces are

11     receiving, please have a look at number 6, "Support Forces."

12             Do you agree that there is a mixed artillery regiment there that

13     consists of 122-millimetre howitzer batteries, two howitzers are there,

14     actually, and one is a B-30, and then a 105-millimetre howitzer battery,

15     then a rocket battery, eight rocket-launchers, two T-55 tanks from Hum,

16     122-millimetre howitzer battery, Mojmilo Brdo, Mrijesce Brdo and

17     Zmajevac.  Then the Zica factory.  That is where the artillery will have

18     its command post.

19             Are you familiar with all of these localities?  You are, aren't

20     you?  And you know that they're all in the centre of town, in the Muslim

21     part of the town; right?

22        A.   I'm familiar with some of them, and those I recognise as being in

23     the, yeah, in the centre of Sarajevo.

24        Q.   The centre of Sarajevo, does it include the total exclusion zone

25     of 20 kilometres?

Page 11468

 1        A.   Yes, and I think some of these -- I have to see a list.  It does

 2     include the exclusion zone, but I'd have to see the list of what was in

 3     the weapons collection point to compare it with that list to be sure

 4     that -- and then I'd understand if there was a discrepancy.

 5        Q.   With all due respect, General, this is what the commander has,

 6     apart from what was handed over to you, and he has all of this at his

 7     disposal without you knowing about it; right?

 8        A.   No, I don't know that that is the case.  I know that there was a

 9     weapons collection point in Sarajevo in which there were weapons, some of

10     which are of a type that I recognise is in that list.  But I couldn't

11     tell you which list was which without seeing them all.

12             THE ACCUSED: [Interpretation] Thank you.

13             Can we now have D184 to see how many artillery pieces the

14     1st Corps had without asking you.

15             We have to skip certain things because we don't have much time,

16     so we've already reached the 16th of May.

17             The 16th of May, regular combat report of the 1st Corps, the

18     Command of the 1st Corps.  Now, we can see that at 1520 hours --

19     actually, can we have a look at the second page.  They call us the

20     aggressor.  We are the aggressor, as far as they are concerned.  So now

21     we'll see what they say on page 2.  It seems to be the last page in

22     English, so could we have that, please.

23             MR. KARADZIC: [Interpretation]

24        Q.   While we're waiting for this:  General, who provided you with

25     information, on the whole?  Did you see certain things for yourself or

Page 11469

 1     did you have certain services that sent information to you?

 2        A.   When I say -- when you asked me do I see it for myself, do you

 3     mean that I, and only I, went to see -- I might have been accompanied by

 4     people, but I saw them with my own eyes or I was relying on reports from

 5     my subordinates?

 6        Q.   Yes, yes.  How was it that you received information, and how did

 7     you infer certain things, how did you make conclusions about what was

 8     going on in Sarajevo; I mean, these developments in Sarajevo?  I'm not

 9     talking about Markale.  I'm talking about this, mid-May.

10        A.   In most cases, I was relying on reports from my subordinates.

11     Occasionally, I went to see something myself.

12        Q.   Thank you.  General, could you please focus on this now.

13             On the 16th of May, look at what the Muslim Army used as they

14     were firing from the centre of town.  The 16th Division is also firing at

15     us.  They're firing at our total exclusion zone, but they are free of

16     that responsibility.

17             Look at this.  1.560 explosions in a single day, not taking into

18     account 12.7, only explosives.

19        A.   Where does it say that?  I don't see that figure as an --

20        Q.   Here it is.

21             JUDGE KWON:  Just a second.  Let us see the previous page, the

22     bottom of it.  It says "Daily Consumption."

23             THE WITNESS:  Oh, I understand.  You've added up the mortar

24     rounds and --

25             JUDGE KWON:  Yes.  Let's go back, yes.

Page 11470

 1             THE WITNESS:  Now I understand.

 2             THE ACCUSED: [Interpretation] Yes.  And now the next page, again,

 3     right.

 4             MR. KARADZIC: [Interpretation]

 5        Q.   120 millimetres, 76; 82 millimetres, 466; and so on and so forth.

 6     The total is 1.565 explosions in the Serb part of the town of Sarajevo.

 7             Did they inform you of that?  Did they inform you of the fact

 8     that the fighting was that intense?

 9        A.   No, we were not given account of it bang by bang, but we were

10     there and could hear what was going on in most cases.

11        Q.   Thank you.  All of these explosions, General, were in the total

12     exclusion zone, and we were being fired at from the total exclusion zone,

13     hundreds of shells.  And outside the total exclusion zone, 601 rounds

14     were fired at us within the zone during the course of a single day.  Is

15     that not pretty heavy fire, General?

16        A.   The -- we -- to argue whether it was heavy or not, I would need

17     to know the area it's falling on.  But the -- and they were being fired

18     in the whole exclusion zone, yes.

19             THE ACCUSED: [Interpretation] Thank you.

20             Can we now see D185 to see what this looked like on the

21     24th of May, the day before we would be shelled -- sorry, bombed.  It's,

22     again, an original Muslim document, and the document has been admitted

23     into evidence already.

24             MR. KARADZIC: [Interpretation]

25        Q.   So this is the command of the BH Army division.  Again, fire

Page 11471

 1     comes from outside the total exclusion zone onto the total exclusion

 2     zone.  Not counting bullets, there were 1.764 explosions.  1.764 shells

 3     of different calibres landed on us.

 4             Were you informed at the time of all this?  Do you know the

 5     reason why they took their weapons back?  Do you know what kind of

 6     misfortune and dire necessity made them recover the weapons they had

 7     surrendered into your supervision?

 8        A.   Can I -- you showed -- you're telling me of explosions, but I

 9     can't see the list there.

10        Q.   I'll try to help.  Rifle grenades, 362; mortars --

11        A.   I can see it now.

12        Q.   When you have seen all of this, look at the shells of different

13     calibres; 11, 25, et cetera.

14             Can we now see the next page.

15             60-millimetre shells, 516; 82-millimetre shells, 507;

16     120-millimetre shells, 74.  Commander Brigadier -- commander of the

17     12th Division, Fikret Prevljak.

18             We can also call up the original document.

19             If you had known about this, would you have ordered air-strikes

20     against the Serbs?  Or perhaps you did know and you still ordered them.

21        A.   I was there.  I knew this fighting was taking place, and -- as,

22     indeed, the events of the 16th I would have known was taking place.

23     I think that's associated with what I referred to as the Butmir Tunnel

24     incident.  And, yes, I would have -- I knew that was going on, and I

25     would have done what I did on the day.

Page 11472

 1             THE ACCUSED: [Interpretation] Thank you.

 2             In your statement, page 29, paragraph 113, you say that you were

 3     aware that we were being provoked, and you said the provocations were

 4     pretty obvious, but it was clear that the Bosnian Army was shelling Serb

 5     positions from within the city on a regular basis.

 6             Can we see the previous document, 22686.  That's the 65 ter

 7     number.  22686, page 29, paragraph 113.

 8             Can we sit five minutes longer today just to wrap up this topic?

 9             JUDGE KWON:  It's not possible.  We should not encroach on the

10     Appeals Chamber's time.

11             THE ACCUSED: [Interpretation] Thank you.

12             MR. KARADZIC: [Interpretation]

13        Q.   Look at this passage, where you say:

14             [In English] "The provocation was not always obvious, but it was

15     also clear that the Bosnian Army was shelling positions from within the

16     city on a regular basis."

17             [Interpretation] Is it the case that the centre of the city is

18     within the exclusion zone?

19        A.   The -- it is at the centre of the exclusion zone.

20        Q.   And from that area, they were shelling us on a regular basis, on

21     a daily basis, so to speak, and it was the task of the UNPROFOR to

22     supervise that exclusion zone and to stop any attacks, if they are

23     already underway, and to try to prevent them; is that correct?

24        A.   The task of UNPROFOR was to, first of all, deliver the

25     humanitarian aid and then to oversee the exclusion zone.  It was not the

Page 11473

 1     duty of UNPROFOR to stop the fighting.

 2             THE ACCUSED: [Interpretation] Thank you, General.

 3             It seems we have to end for today.  We'll continue tomorrow.

 4             JUDGE KWON:  Very well.

 5             We will rise for today.  We'll resume tomorrow at 9.00.

 6                           [The witness stands down]

 7                           --- Whereupon the hearing adjourned at 2.27 p.m.,

 8                           to be reconvened on Thursday, the 10th day of

 9                           February, 2011, at 9.00 a.m.