130503ED

Page 10618

1 [The witness takes the stand]

2 MR. IVETIC: I'll try to do so, Your Honour.

3 JUDGE ORIE: Good morning, Mr. Nicolai.

4 THE WITNESS: Good morning, Your Honour.

5 JUDGE ORIE: You're still bound by the solemn declaration you've

6 given yesterday at the beginning of your testimony.

7 WITNESS: CORNELIS HENDRICK NICOLAI [Resumed]

8 [Witness answered through interpreter]

9 JUDGE ORIE: Mr. Ivetic will now continue his cross-examination.

10 MR. IVETIC: Thank you, Your Honour.

11 Cross-examination by Mr. Ivetic: [Continued]

12 Q. Good day, General. And I'll begin with my questions right away

13 to try and be as efficient as possible. I'd like to first talk about

14 something that was contained in a proofing information report which we

15 received from the Office of the Prosecutor that indicates:

16 "The witness confirmed that he had relatively regular contact

17 with General Mladic from the beginning of his deployment in February 1995

18 through the fall of the Srebrenica enclave with the departure of the

19 Dutch Battalion in July 1995. The witness stated that his contact with

20 General Mladic was mostly by telephone and occasionally in writing."

21 First of all, sir, is this information that I've been provided

22 and which I've now read back to you true and correct?

23 A. Ninety per cent of my contacts with the headquarters of BSA were

24 with my counterpart, Chief of Staff, Milovanovic. Incidentally, I would

25 get other persons on the phone, including General Mladic at times.

Page 10619

1 Q. And with that clarification, now, is the rest of what I read

2 accurate and truthful?

3 A. Well, I also wrote letters on a number of occasions and they in

4 all cases addressed General Mladic.

5 Q. Okay. Let me break it down. On occasions when you had

6 telephonic contact with General Mladic, would those have almost always

7 have been with the same Croatian translator Svetlana that we talked about

8 yesterday?

9 A. Well, as I stated before, in almost all cases, this was Svetlana

10 the Croatian interpreter. On occasion, if unexpectedly something would

11 happen and Svetlana was not present, I would use one of the military

12 interpreters that were present there at the headquarters.

13 Q. Okay. Fine. And now I want to talk about the written letters

14 that were sent to General Mladic. Did you always send a Serbo-Croatian

15 translation of the letter and, if so, who was responsible for translating

16 the document into Serbo-Croat?

17 A. Translations were always sent along and they would be made by one

18 of the interpreters, those translations.

19 Q. Okay. Now, the proofing information report from the Prosecution

20 also indicates that one of the topics which you discussed with

21 General Mladic was in relation to VRS complaints about Armija BiH attacks

22 on Serb territory originating from within the Srebrenica enclave; is that

23 accurate?

24 A. Yes. That's correct.

25 Q. Okay. Then I would like to spend a few moments talking about

Page 10620

1 this before we return to some more general items. Do you recall, sir,

2 how many times or at least how frequently the VRS was complaining to

3 UNPROFOR about the Armija BiH undertaking attacks originating from within

4 the Srebrenica enclave and attacking Serb territory?

5 A. Well, I can't be really sure. I wasn't keeping track of that,

6 but if I were to make an estimate, I would think about five times in the

7 period that I was Chief of Staff.

8 Q. And, sir, on these occasions, did you receive such complaints

9 directly or were they forwarded to you by DutchBat or some other UNPROFOR

10 unit?

11 A. In a number of cases, I received them direct. However, I can't

12 rule out that incidentally we would receive a warning indirectly through

13 DutchBat and the headquarters and from there to Tuzla.

14 Q. And did you also receive complaints from the VRS about the

15 Armija BiH forces conducting military attacks originating from within

16 Bihac or any of the other UN protected areas attacking Serb territories

17 surrounding those protected areas?

18 A. Well, yes. I actually think that that is what this discussion is

19 about, so I'd have to say yes.

20 Q. All right. I'd like to focus for the time being on the safe area

21 of Srebrenica. First of all, if we can return to your Rule 92 ter

22 statement, which is P1165 marked for identification, and if we could turn

23 to paragraph 8 which is at the top of page 3 in the English and also in

24 the B/C/S. Here you state that during a meeting with Mr. Silajdzic of

25 the Bosnian Muslim side, you reminded him that you could use air support,

Page 10621

1 you being UNPROFOR, against the Muslim side if they used their weapons in

2 breach of Security Council Resolutions 824, 836 and 844. And I want to

3 ask you, sir, did you or anyone else at BH command ever threaten to use

4 air support against the Armija of BiH in Srebrenica for these attacks

5 that took place from within the enclave of Srebrenica?

6 A. I very clearly remember this one instance and it was I who made

7 that actual comment. It might be because there was a meeting later on

8 with representatives of BiH that this was repeated, but I dare not say

9 with certainty, but no more often than that.

10 Q. And just so that we are clear, this meeting that's discussed in

11 paragraph 9 with Mr. Silajdzic, that occurred sometime early in

12 May of 1995; is that correct?

13 A. That is correct.

14 Q. And how about Bihac? Did you or anyone else at BH command of

15 UNPROFOR ever threaten to use close air support against the

16 Bosnian Muslim side under these same UN Security Council resolutions as

17 to attacks they conducted from within the Bihac enclave attacking Serb

18 territories surrounding the enclave?

19 JUDGE ORIE: Mr. Ivetic, you refer to paragraph 9, but I thought

20 it was in the same discussion with Silajdzic and that is in 8, isn't it?

21 MR. IVETIC: I apologise, Your Honours, it is 8.

22 JUDGE ORIE: Yes, then please proceed.

23 MR. IVETIC:

24 Q. Sir, in relation to Bihac, did you or anyone else at BH Command

25 ever threaten the use of air support against the Bosnian Muslim side

Page 10622

1 under these same UN Security Council resolutions relating to attacks

2 which they conducted from within the Bihac enclave?

3 A. No. I can't recall that. And actually I deem it very unlikely

4 because deploying air attacks against military that exfiltrate and often

5 during the night would conduct attacks on villages outside an enclave, it

6 would be very hard to use a weapon against that.

7 Q. Okay. At that time, what was your understanding and was it the

8 similar understanding of the BH command as to these three

9 Security Council resolutions? Did they apply equally to the Armija BiH

10 violations as well as to the VRS violations?

11 A. Yes.

12 Q. And was there a consensus of what was to be considered a

13 violation and what was not a violation, again at the level of the BH

14 command?

15 A. Well, in the Security Council resolutions, it states very clearly

16 that air attacks can be used for attacks on positions of UN military as

17 well as in situations where the civilian population is being attacked.

18 JUDGE ORIE: Mr. Ivetic, I take it that your previous questions

19 about equally being applied requires a bit more of an analysis of what is

20 exactly found in the resolutions, but if your question was: Where armed

21 forces are addressed or governments are addressed in those resolutions

22 without further specification, that it would apply to both parties? Is

23 that what you intended to ask?

24 MR. IVETIC: Yes, Your Honour.

25 JUDGE ORIE: And is that how you understood that question,

Page 10623

1 Mr. Nicolai?

2 THE WITNESS: [Interpretation] This is how I understood the

3 question, Mr. President.

4 JUDGE ORIE: Mr. Ivetic, you are aware that the Chamber is

5 very -- wants to be very precise in analysing these international texts,

6 what obligations are found in it and what tasks are given in it,

7 et cetera. But for the time being we can proceed.

8 MR. IVETIC: Thank you.

9 Q. General, I'd like to focus with you on Srebrenica. Was it your

10 understanding from these resolutions along with other documents and

11 agreements from the time period in 1993 that the enclave of Srebrenica

12 was supposed to be demilitarised such that no combatants were supposed to

13 be left armed in the enclave itself?

14 A. Yes. I know that that was the idea, yes.

15 Q. And did such a regime apply to the other safe area enclaves such

16 as Zepa, Gorazde, Bihac and Sarajevo?

17 A. Yes. Definitely. And it's also true that for all those

18 enclaves, the heavy arms which are also most easily identified were

19 stored at so-called weapon collection points, and these were also under

20 the control of the UN. However, it is evident that it be much harder

21 with individuals that have very light hand arms to track them down

22 because those weapons are so much easier to hide.

23 Q. Well, let's digress from Srebrenica into Sarajevo, sir. Were any

24 efforts actually made by BH command to enforce the demilitarisation as to

25 infantry weapons in Sarajevo where the weapons were not so difficult to

Page 10624

1 find?

2 A. When military were found or Muslim fighters were found with

3 weapons and they would be disarmed but it's an illusion to suppose that

4 in a city you would not be able to hide any hand arms, so that there be a

5 situation where you could disarm everybody is truly a mission impossible.

6 Q. But, sir, were the Muslim fighters in Sarajevo really hiding

7 their weapons from UNPROFOR, their infantry weapons?

8 A. Well, not always. And there were times that there were fierce

9 fighting at the borders of the enclave between Muslim fighters and the

10 Serb fighters with heavy firing of hand arms. However, these are moments

11 at which it's not very easy to start disarming either one of the parties,

12 and I'm sure that's clear.

13 Q. It is. I'd like to look at some documents with you. And the

14 first I would like to look at is 65 ter number 17956, and I would like

15 the first page in e-court so we can look at it together. And I can tell

16 you that this is an April 18 1993 agreement signed by Generals Halilovic,

17 Mladic and General Wahlgren of the UNPROFOR, and I would like to look

18 at - once it comes up - paragraph 4 of the same.

19 JUDGE ORIE: While waiting for it, Mr. Ivetic, exactly that

20 happened what I was concerned about, that is that you put the

21 demilitarisation in Sarajevo at exactly the same footing as any of the

22 others, whereas we've seen many instruments which make a distinction

23 between the two. But I'll let you go, but that's what I tried to avoid

24 and that's what nevertheless happened. Please proceed.

25 MR. IVETIC: Thank you, Your Honour.

Page 10625

1 Q. Sir, first of all, let me direct you to the part that I would

2 like to read from paragraph number 4 for you and ask you about it:

3 "All weapons, ammunition, mines, explosives and combat supplies

4 except medicines inside Srebrenica will be submitted, handed over, to

5 UNPROFOR under the supervision of three officers from each side who --

6 with control carried out by UNPROFOR. No armed persons or units except

7 UNPROFOR will remain within the city once the demilitarisation process is

8 complete. Responsibility for the demilitarisation process remains with

9 UNPROFOR."

10 Sir, I want to ask you, at the time that you were deployed to be

11 Chief of Staff at BH command in Sarajevo, was this document or the

12 requirements of this provision one of the things that you were briefed on

13 and made aware of when assuming your position?

14 A. The document as such, I never had before me. But the fact that

15 in the enclaves, and in this case specifically in Srebrenica, the

16 fighters had to be demilitarised, that was something I knew.

17 Q. Okay. And now I'd like to look at I believe it's Exhibit P00023

18 in e-court. And this is again an agreement relating to Srebrenica signed

19 by General Halilovic, General Mladic and General Morillon this time of

20 UNPROFOR dated 8 May 1993. And, again, if we could have the first page,

21 sir, if you could take a moment to look at the title of this page in the

22 English version that is before us, do you believe that such a document

23 was of the type that you were made aware of upon your deployment to

24 Sarajevo in February of 1995?

25 A. I first have to read it.

Page 10626

1 I've read it and the document itself, I don't know. The content,

2 however, has more or less the same purport as the earlier quote that you

3 read to me.

4 Q. Okay. I'd like to ask you about specific parts of it, see if

5 that comports with what you understood the regime to be in Srebrenica.

6 First I'd like to look at Article 2, which is at the bottom of the first

7 page in English and it's at pages 2 to 3 of the B/C/S version in e-court.

8 And, sir, if you could follow along with me from the English, it says as

9 follows:

10 "On the ground, the demilitarised zone shall be marked by

11 UNPROFOR by means of boards on which is stated in English, Serbian and

12 Bosnian, written in Cyrillic and Latin as follows: Demilitarised zone,

13 any military operation is strictly forbidden. Article 60 Protocol I

14 additional to the Geneva Conventions."

15 Sir, does this comport with your understanding and recollection

16 of the safe area regime that was supposed to be in effect in Srebrenica

17 during the time that you were Chief of Staff to General Smith at the

18 BH command?

19 A. The statement about the boards that were supposed to be -- to be

20 placed there is not something I know about and I don't know to what

21 extent this actually happened. But the fact that this -- these were the

22 agreements that there would be no military operations inside those

23 borders. Those demarcations, well, naturally I know about that.

24 Q. Thank you, sir. I'd like to ask you was it your recollection

25 that the definition of a demilitarised zone was according to -- was

Page 10627

1 supposed to be according to Article 60 of Protocol I of the additions to

2 the Geneva Conventions?

3 A. Honestly, no.

4 Q. I'd like to now turn to page 2 in the English and page 3 in the

5 B/C/S to briefly look at Article 3 to again see if this provision is

6 consistent with the knowledge and understanding that you had of the

7 regime when you were Chief of Staff to General Smith in 1995:

8 "Every military or paramilitary unit will have either to withdraw

9 from the demilitarised zone or submit, hand over their weapons,

10 ammunition, mines, explosives and combat supplies in the demilitarised

11 zone will be handed over, submitted to UNPROFOR."

12 Sir, is this provision something consistent with your

13 understanding of what the safe area regime was supposed to be in

14 Srebrenica in 1995?

15 A. Yes. Entirely.

16 Q. And if we could scroll down this page to Article 5 of the same in

17 both languages, and, sir, again I'd like to ask you to follow along as

18 I read, and my question will again be the same, if it's consistent with

19 your understanding of the regime that was in place:

20 "UNPROFOR shall control the demilitarised zone. To be able to

21 implement this, an UNPROFOR unit and UNMOs with sufficient strength to

22 control the area shall be present in the demilitarised zone. Until the

23 contracting parties agree otherwise, the UNPROFOR strength shall be of at

24 least a company group with command and supplying elements in each

25 demilitarised zone. In order to be able to resupply, and rotate the

Page 10628

1 unit, UNPROFOR shall have freedom of movement to and from the

2 demilitarised zone. Non-combatants who are in or who are willing to

3 enter the demilitarised zone except members of UNPROFOR are not permitted

4 to have in their possession any weapon, ammunition, or explosives.

5 Weapons, ammunition and explosives in their possession shall be seized by

6 UNPROFOR. Combatants will not be allowed to enter or to be in the

7 demilitarised zone."

8 Is this provision consistent with your knowledge and

9 understanding of the safe area regime that was supposed to be in place in

10 Srebrenica in 1995 when you were Chief of Staff to General Smith?

11 A. Yes. It definitely comports with that. And I'd like to add

12 right away that all those provisions, also the first one listed here

13 about free access from and to the enclave, that against all those

14 provisions there were violations.

15 Q. I'd like to ask you, sir, would you agree with me that the safe

16 area of Srebrenica enclave that in fact was never demilitarised such that

17 the Armija BiH forces within the enclave remained armed and active in

18 1995 all the way up until the fall of Srebrenica in July of 1995?

19 A. Well, I don't quite agree with you. Where you say they were

20 never completely demilitarised I must say you're right. However, there

21 were considerable quantities of weapons seized. I saw the weapon

22 collection point with my own eyes and there was quite a store there.

23 Q. Thank you, sir. And the weapons collection point was primarily

24 or was entirely heavy weapons; is that accurate?

25 A. Yes. Mainly. But also a considerable quantity of hand weapons.

Page 10629

1 Q. Did you, as Chief of Staff of BH command in 1995, understand that

2 the demilitarisation of UN declared safe areas, including Srebrenica,

3 extended to infantry or small arms in addition to heavy weapons?

4 A. Yes. I was informed about that, yes.

5 Q. Now, I'd like to confront you with something that

6 General Rupert Smith testified about at transcript page 7524, line 20, to

7 7543, line 2, at this trial at which time he testified that he didn't

8 think that the exclusion zone and agreements, demilitarisation agreements

9 did not cover small arms. Was he right about that or are you right that

10 infantry and small arms were part of the demilitarisation agreements as

11 to the safe areas?

12 A. Well, in as far as I know, this also applied to small arms.

13 Q. Thank you, sir. Now, what information or knowledge did the BH

14 command of UNPROFOR have at that time when you were Chief of Staff to

15 General Smith as to the number of armed -- excuse me, of Armija BiH

16 fighters that were still present in the enclave of Srebrenica?

17 A. Well, yes, we were given regular information about that, and

18 I think it must have been from 2.000 to 3.000 BiH military that were in

19 the enclave. To what extent they were still all armed at that time, I

20 cannot say.

21 Q. And how about in the enclaves of Gorazde, Bihac and Zepa? Did

22 you have any information as to the amount of BiH fighters that were still

23 present in those safe areas?

24 A. Yes. That information was absolutely available. However,

25 I can't recall it now.

Page 10630

1 Q. That's fair enough, sir. I'd like to -- I'd like to go through

2 something which you testified about in the Tolimir trial.

3 MR. IVETIC: And for that purpose, I'd like to call up 65 ter

4 1D931 which is a transcript from the 17th of August, 2010, and the

5 e-court page is 18 at the bottom, continuing on to page 19, and that

6 comports to transcript page 3990 through 3991.

7 Q. And if we could look at line 21 - I apologise - and if you could

8 follow along with me, sir, I'd have a question after I read this section:

9 "Q. Then, please, General, tell us whether you had reports about

10 the activities of the Muslim forces from the protected areas of

11 Srebrenica and Zepa which they conducted immediately prior to the

12 operation that took place in Zepa and Srebrenica? And we are talking

13 about the month of June and July. Thank you. So did your command have

14 that? Thank you.

15 "A. When Muslim troops tried to carry out actions outside the

16 limits of the enclave, and it was observed by UNPROFOR, then of course it

17 would be reported. Now, we did receive some incidental reports about

18 that but except for noting that they had, we couldn't do anything besides

19 note that they had crossed the borders of the enclave because we had no

20 means to observe outside the limits of the enclave because we were denied

21 access to the Serb territory. So we couldn't see what they were doing

22 there. And as I've stated at previous hearings, the means and

23 opportunities for UNPROFOR units to observe properly were greatly

24 complicated by, first, the lack of fuel which made it impossible to carry

25 out motorised patrols, and because some of the UNPROFOR soldiers were

Page 10631

1 blocked by Serb troops and unable to return from leave which had

2 seriously compromised the numbers of our troops and they were no longer

3 able to perform their duties properly. So the number of observations was

4 therefore undoubtedly more limited than what was actually happening."

5 Now, sir, first I have to ask you: Do you stand by this

6 testimony that you gave in this other case as being both truthful and

7 accurate as to the section that I have just gone through with you?

8 A. Yes. I think this is a fine reflection.

9 Q. Thank you. Now I'd like to ask you about specific portions of

10 it. First of all, when you say that the -- you had no way of -- you were

11 denied access and couldn't see what was going on there, am I correct that

12 BH command had at its disposal the resources of NATO and the NATO

13 overflights in particular, both manned and unmanned flights, with the

14 capability of -- with a camera recording what was happening in a

15 particular village or what a particular village looked like? Am I

16 correct that you had that ability?

17 A. The UN as such did not have these means or resources but it could

18 ask NATO to do exploratory flights or use drones to survey specific

19 areas.

20 Q. Did BH command ever ask NATO to do so?

21 A. Undoubtedly.

22 Q. Yesterday you told us that the G-2 at BH command had a direct

23 link to the HQ in Naples of NATO and had access to satellite and other

24 surveillance. Was that utilised in relation to the complaints of Muslim

25 forces burning villages surrounding Srebrenica?

Page 10632

1 A. Well, in relation with these specific complaints I do not know.

2 Moreover, at a time that such a complaint comes in, the fact has usually

3 already taken place. So the only thing that one might be able to observe

4 in retrospect is whether there was any destruction inflicted and then

5 it's always very much the question when and by whom that was inflicted.

6 So in retrospect it is very hard to ascertain that with those specific

7 means.

8 Q. Okay. Now I'd like to focus on the parts of this answer that

9 dealt with the inability to carry out duties because of the forces that

10 were not permitted to return from leave. We had a member of the DutchBat

11 testifying here last week, Mr. van Duijn, who at transcript page 10341,

12 lines 1 through 8, testified that as to the DutchBat deployment, even

13 before Dutch troops went on leave, there still was not a sufficient

14 amount of forces sent to the enclave to demilitarise an area the size of

15 Srebrenica. Is it your contention that the original deployment size was

16 sufficient to perform duties to demilitarise the Srebrenica enclave?

17 A. I am absolutely convinced that from the start, there was

18 absolutely insufficient troops present in the enclave to be able to do

19 that task adequately. I think that instead of some 600, we would have

20 needed around 6.000 to perform those tasks adequately.

21 Q. Thank you, sir. And now I want to ask you about the part of your

22 prior answer where you talked about not being able to see what the Muslim

23 forces were doing on Serb territory. I'd like to present you with

24 something that Mr. van Duijn testified about at transcript page 10346

25 through 10347 answering Judge Orie. And I think I will read it out for

Page 10633

1 you in full so that you have the benefit of that when listening to my

2 question. It begins at line 12 and goes through line 2 of the next page:

3 "Judge Orie: Mr. Ivetic, I'm a bit puzzled by one of the

4 previous answers. The question was whether you ever found out about or

5 hear stories about Muslim soldiers going out from the Srebrenica enclave

6 burning down Serb villages. Your answer was, 'I've heard stories about

7 that, yes, in other areas that were not under my responsibility but in

8 the enclave.' Did you want to say that you heard it in the enclave or

9 that it happened in the enclave because the question was about going out

10 of the enclave.

11 "The witness: It did not happen in the enclave. I heard it from

12 other commanders, colleagues of mine from DutchBat, that were responsible

13 for other areas and that had seen from their observation posts or patrols

14 or from Muslim commanders in the area that they would leave the enclave

15 and enter the Serb area and then burn down villages.

16 "Judge Orie: Yes, thank you."

17 Now, sir, the question I have for you is: Do you recall if you

18 had reports from DutchBat commanders that they could see from their own

19 observation posts and also heard from the Muslim commanders that the

20 Muslims were leaving the enclave and burning down Serb villages?

21 A. What I remember concretely is that there were notifications that

22 it was observed from the OPs that Muslim combatants would leave the

23 enclave, but from those OPs they were not able to see what subsequently

24 happened or was done by those combatants in that territory, on Serb

25 territory.

Page 10634

1 Q. Okay, sir. I'd like to look at Exhibit P1182 which was a

2 document that the Prosecution used with you yesterday. If we could have

3 that up in e-court. And if you recall, this was a letter that you wrote

4 to General Mladic on the 26th of June, 1995. And I'd like to ask you

5 about the first paragraph which reads as follows:

6 "In response to your letter number 06/17-441 of 24 June 1995,

7 with reports on several attacks from the safe area of Srebrenica,

8 I ordered an immediate investigation. That investigation made me

9 recognise that at the times and places mentioned in your letter, combat

10 activities by BiH troops had really occurred."

11 Now, I want to ask you, after conducting an investigation and

12 after confirming that the complaints made by General Mladic were

13 confirmed by facts, what did BH command do in relation to the BiH

14 Muslims?

15 A. Well, your question is more or less twofold. The investigation

16 that was conducted was unable to confirm this, simply for the reason that

17 those observations were not there, that events had in fact taken place as

18 had been alleged by General Mladic. Nevertheless, we did get in touch

19 with the BiH command, we informed them about these complaints, and gave

20 them severe warning that were they to conduct such activity, this would

21 be deemed provocation for BSA with possible consequences in the shape of

22 acts against the population in the enclave.

23 Q. Well, sir, correct me if I'm wrong, but you were able to confirm

24 that combat operations were conducted by the BiH. Was that not a

25 violation of the Srebrenica safe area regime that no military operations

Page 10635

1 were to be conducted?

2 A. Yes, obviously, it was part of the agreement that those troops

3 could most definitely not go outside the enclave. However, we were not

4 able to prevent this in each and every case.

5 Q. Now, I want to ask you, in your previous answer to my question

6 you said that you complained to the BiH command, the Bosnian Muslim

7 command, that these would be considered provocations. Isn't it correct

8 that you never complained to them about these being actual violations of

9 the accords that were in place as to Srebrenica?

10 A. Oh, but I did, with some regularity, this was a point of

11 discussion on all levels, both Colonel Karremans spoke to the

12 representatives present in Srebrenica, but also on other levels we

13 repeatedly insisted that it was absolutely necessary for all parties to

14 comply with the agreements that had been made.

15 Q. Was there a consensus under -- within the BH command originating

16 from General Smith, that military air strikes against the Bosnian Muslims

17 were off the table?

18 A. I never heard somebody say that this was not possible.

19 Q. Okay. I'd now like to ask you about something slightly different

20 in relation to demilitarisation of Srebrenica. Mr. van Duijn last week

21 also testified about what happened when Observation Post Echo fell in

22 1995; that is transcript page 10348 through 10349. First of all, sir, do

23 you recall during your tenure that there was a time period when one of

24 the observation posts, Echo, was taken over?

25 A. I'm sorry, I don't understand the question.

Page 10636

1 Q. Do you recall a time period during your tenure as Chief of Staff

2 when one of the observation posts in Srebrenica code named E, or Echo,

3 fell, was taken over?

4 JUDGE MOLOTO: Maybe if we can correct the record -- oh, thank

5 you, it has now been corrected.

6 THE WITNESS: [Interpretation] And by whom was that observation

7 post allegedly taken over?

8 MR. IVETIC:

9 Q. By the Serb forces.

10 A. Well, I can't really recall that.

11 Q. Fair enough, sir. Without being able to fix the date of that,

12 I do want to ask you about what Mr. van Duijn testified about at 10349,

13 transcript lines 13 through 17. At that time he said that he received a

14 communication from his DutchBat superiors which he viewed as a directive

15 to turn a "blind eye" to the Bosnian Muslims' weapons in Srebrenica. Did

16 BH command of UNPROFOR know of any such directive having been given to

17 DutchBat personnel within the enclave of Srebrenica?

18 A. No, I know nothing about that, and it sounds absolutely absurd.

19 Q. Do you believe that such a directive would have been consistent

20 with the obligations of UNPROFOR and the mission, as you understood it,

21 as to Srebrenica?

22 A. No. Of course, it is absolutely opposed to the actual task we

23 were there to fulfil. I would understand if a patrol on foot, five men,

24 would get to a platoon, 40 men that were also armed, that they would not

25 be able to demilitarise that group of 40. However, the least they could

Page 10637

1 do is report the fact that this incident took place, where the incident

2 took place, et cetera, and why no action was taken. But looking the

3 other way intentionally is something I can't imagine took place.

4 MR. VANDERPUYE: Thank you, Mr. President. I'm sorry, I switched

5 channels by mistake. I think it would be helpful if Mr. Ivetic read the

6 quote that he read to Lieutenant-Colonel van Duijn which I think would

7 put this matter in perspective and in context in framing the question to

8 General Nicolai, and that can be found at the page that Mr. Ivetic

9 referred to except he didn't read it.

10 JUDGE ORIE: Mr. Ivetic.

11 MR. IVETIC: Well, Your Honour, I believe that I accurately --

12 JUDGE ORIE: Well, let's not debate. Isn't it true, but help me

13 if I'm wrong in my recollection, that this happened according to that

14 witness in the days immediately preceding the moving in of the Bosnian

15 Serb troops?

16 MR. IVETIC: Correct, after Operation Post Echo fell which is

17 what I asked him --

18 JUDGE ORIE: Yes, but -- but you said you can't give an exact

19 time. I don't know whether it was clear from your question to the

20 witness that the testimony was about that point in time. So when he says

21 it's absurd, it may be that the timing is relevant for the judgement you

22 asked him as a matter of fact to give. You were not asking for facts but

23 you were asking for judgement. Perhaps you could make that part of the

24 context for which you asked that judgement of this witness.

25 MR. IVETIC: I'm confused because my question very specifically

Page 10638

1 dealt with the fall of Observation Post Echo and at that time that this

2 was said to Commander van Duijn, so how much clearer can I be?

3 JUDGE ORIE: But I think the witness said he didn't know when

4 that happened, isn't it?

5 MR. IVETIC: Okay I understand.

6 JUDGE ORIE: So therefore he's totally lost as far as time is

7 concerned, he has more than six months available. The fall of

8 Observation Post Echo was, I think it was around 8 July, it was then that

9 happened what Mr. van Duijn said happened. Would that cause your answer

10 to be the same or would that change anything?

11 THE WITNESS: [Interpretation] No. That doesn't change anything

12 of my answer.

13 JUDGE ORIE: Please proceed.

14 MR. IVETIC: Thank you, Your Honour.

15 JUDGE ORIE: Mr. Vanderpuye, I take it that this was the context

16 you were seeking, isn't it?

17 MR. VANDERPUYE: It is, Mr. President, but there was a specific

18 quote that Mr. Ivetic read to Lieutenant van Duijn.

19 JUDGE ORIE: If there is anything specific in that quote you can

20 do that in re-examination.

21 Please proceed.

22 MR. IVETIC: Thank you.

23 Q. One other thing Mr. van Duijn testified about was situations when

24 he witnessed what he believed to be helicopter flights into Srebrenica

25 and DutchBat patrols finding remnants of US military emergency rations at

Page 10639

1 the same time when Serbs claim that the Americans were arming the

2 Bosnian Muslims in Srebrenica. And he testified at transcript page 10350

3 that his requests for AWACS support to identify if there were any such

4 flights was not able to be completed because coincidentally the AWACS

5 were said to be not available. Did you obtain reports of such things

6 from the Dutch Battalion in Srebrenica?

7 JUDGE MOLOTO: Is the question "do you" or "did you"?

8 MR. IVETIC:

9 Q. Did you?

10 A. All that is asserted here, I am reading now for the first time

11 and I have never heard about this before.

12 Q. Thank you, sir. Am I correct that at the time in 1995, that the

13 Americans were operating the AWACS planes that were providing support to

14 UNPROFOR and the NATO missions in Bosnia at that time?

15 A. Yes. There was, and I would assume that this is known, an

16 operation deny flight where NATO air fighters would try to prevent all

17 other air flights above the territory, and that operation was ongoing

18 also at that time.

19 Q. Thank you, sir.

20 MR. IVETIC: Your Honours, I believe we are at the point for the

21 first break.

22 JUDGE ORIE: We are, Mr. Ivetic.

23 Could the witness first be escorted out of the courtroom. We

24 will take a break of 20 minutes, Witness.

25 [The witness stands down]

Page 10641

1 MR. IVETIC:

2 Q. I'd like to ask you about a document, sir, Exhibit D140 and I'd

3 like to call it up in e-court and look at the same with you. I think

4 when the first page comes up we will see that it originated from within

5 the BH command, and if we can turn to the next page of the document we

6 will see it's an English rendition of a letter received by General Smith

7 from General Mladic, and it states in the first section as follows:

8 "Dear general, we are gravely concerned over the frequent use of

9 Tuzla airport by the Muslim side. The aircrafts are bringing weapons,

10 ammunition and war materials for their needs. Unfortunately this pirate

11 activity of their aircraft is enabled by the NATO air force and the

12 Muslim army does not allow your forces to control the loads. I am sure

13 you share my opinion that these activities are seriously jeopardising the

14 signed agreements and represent a serious breach of the truce and of

15 relevant Security Council resolutions. I ask you to take urgent measures

16 to stop these peace-threatening activities, otherwise we will be

17 compelled to take the necessary measures regarding the Muslim side's

18 violations of the Tuzla safe area which is in the presence of your forces

19 turning into a war base for Islamic countries."

20 Now, given the date of this letter being just before your

21 deployment, were you briefed about such complaints pertaining to the use

22 of the Tuzla air base at the time of your arrival as Chief of Staff to

23 BH command?

24 A. To start, let me point out to you that this letter dates from

25 before my arrival or the commencement of my position as Chief of Staff at

Page 10642

1 UNPROFOR, it dates to 13 February, and I did not arrive until late

2 February in Sarajevo. However, I did indeed hear that --

3 JUDGE ORIE: I invite you to carefully listen to the question

4 because the question started with "date of this letter being just before

5 your deployment," so that was already part of the question. But please

6 proceed with your answer.

7 THE WITNESS: [Interpretation] I apologise, Your Honour.

8 I did indeed hear that allegedly there had been resupplies

9 through the airport of Tuzla and I know that investigations were started

10 and everything was done to prevent that that sort of things would happen.

11 MR. IVETIC:

12 Q. I'd like to move to a second document, D142 an exhibit in

13 e-court, and it is again a communication from General Mladic complaining

14 to General Smith of an incident a little closer in time to your

15 deployment, I believe on the 23rd of February, and I'll direct your

16 attention to the part that reads as follows:

17 "On 23 February 1995, at about 2010 hours, a transport plane with

18 weapons and military equipment landed again at Tuzla airport's secondary

19 runway. It was escorted by two NATO fighter aircraft which were

20 protecting it during flight and offloading. Unfortunately, this has been

21 repeated lately in front within sight and hearing of NATO and UNPROFOR

22 forces, both in the air and at Tuzla airport itself. These forces are

23 doing nothing to prevent the violations of the relevant

24 UN Security Council resolutions prohibiting the import of weapons and

25 military equipment."

Page 10643

1 Now, again, were you briefed of this specific type of incident

2 where it is alleged that NATO aircraft provided escort or support to

3 flights bringing military weapons to the Bosnian Muslim side in late

4 February 1995, albeit again a few days before your deployment?

5 A. I heard that this had allegedly happened, and I repeat what

6 I just said. UNPROFOR took measures to prevent that this would be

7 repeated, and as far as I know, during my period there it never did

8 happen again.

9 Q. What did you, as the person with command over the G-2

10 intelligence officer Lieutenant-Colonel Powers within BH command do

11 vis-a-vis your ability to contact NATO to confirm or deny whether in fact

12 NATO aircraft had participated in such an arming campaign?

13 A. Well, I don't know exactly what happened there because it did

14 take place before I came onboard, but I take it that at the highest level

15 the authorities of UNPROFOR and NATO got in touch so as to insist that

16 this sort of activity would be ceased, and at the airport of Tuzla, was

17 also the headquarters of the north-east sectors, and so I think it was

18 within our possibilities to actually have control over this.

19 Q. To your knowledge, either directly or indirectly, did anyone at

20 BH command ever attempt to get confirmation from NATO of whether NATO had

21 been involved or NATO aircraft or aircraft of NATO member nations had

22 been involved in this arming these convoys, these air convoys, into Tuzla

23 airport?

24 A. The only thing I recall, as far as that is concerned, is that

25 indeed it was seen that aircraft landed there, their nationality was not

Page 10644

1 ascertained at that time. But I cannot but conclude, in view of the

2 control that NATO had over the air territory, that that would have

3 happened at least with the permission or consent of NATO.

4 Q. Thank you, sir. Now I'd like to return and focus with you on the

5 6th of July, 1995, in Srebrenica. And I think at your 92 ter statement

6 which is P1165 marked for identification, we need to look at page 9 in

7 both languages, at paragraph number 41, where you're talking about this

8 day. And you talk first about of how around the 6th of July in the

9 morning there was heavy fighting between the VRS and the ABiH. You say

10 that the VRS were using between five to ten tanks and heavy artillery,

11 the shelling was mostly directed at military targets and not directly

12 against the civilian population. And that day -- you say:

13 "That day I talked with the commander of DutchBat about using air

14 power, I explained to him that day of the policies of General Janvier and

15 Smith. I said that according to the actual guidelines the use of air

16 power was permitted for the self-defence of UNPROFOR soldiers or in case

17 of deliberate attacks on the civilian population."

18 I want to ask you, sir, first of all, during this time period,

19 6th of July, am I to understand that the Armija BiH from within

20 Srebrenica enclave was firing or was exchanging fire with the Serb forces

21 located around Srebrenica?

22 A. I don't exactly recall but, yes, yes, it says it here in the

23 report that there was fierce fighting between the army and the ABH so

24 that must have been the case.

25 Q. And now, looking at paragraph 42 of your statement, which is on

Page 10645

1 the next page in both languages, it is recorded that the 7th of July,

2 Friday, was a rather quiet day, probably because of the bad weather

3 conditions. I want to ask you: Did this assessment relate to both the

4 activities of the VRS and the Armija BiH in Srebrenica and around

5 Srebrenica on that day?

6 A. Yes. That's correct. I just know that it was a relatively quiet

7 day, which is not to say that nothing happened. However, in comparison

8 with the day before, confrontations were less fierce.

9 Q. And with respect to the 8th of July, which is also detailed in

10 your statement, would it be fair to summarise it that again, both sides

11 were still militarily active and fighting?

12 A. Yes, that's correct.

13 Q. And I want to focus on paragraph 45 of your statement, in the

14 middle part of the same, which is on this same page that we have here and

15 it's the part that starts with:

16 "Zagreb made it clear that General Janvier did not want to use

17 this ultimate solution without DutchBat having first used their weapons.

18 He wanted a step to be taken before the calling in of air attacks.

19 According to the results of these consultations, we gave orders to

20 DutchBat to take blocking positions south of Srebrenica town so that if

21 the VRS attacked the town this would not only be an attack on the

22 civilian population but also an attack on UNPROFOR troops. In this case

23 all the conditions for using air power would be met. This order was

24 carried out by DutchBat?"

25 I want to ask you, sir, am I correctly interpreting this that the

Page 10646

1 order for DutchBat to take blocking positions in Srebrenica was in

2 essence to create the pretext for the ability to call in close air

3 support against the Serb forces?

4 A. Yes. That is correct, and formally it was not absolutely

5 necessary based on the council Resolution A 24 and 36 because they

6 offered ample opportunity already to be able to use air space. However,

7 because of the additional restrictions imposed from the headquarters in

8 Zagreb concerning the use of air support, General Janvier explicitly

9 wanted that first the UNPROFOR troops would react with other means to the

10 attack of the BSA before he was willing to deploy the air arms, the air

11 weapon.

12 JUDGE ORIE: From the answer, which by the way I listened to in

13 English, it's unclear to me whether the witness has well understood your

14 question. It being a pretext that it is that they were seeking a reason

15 to start air strikes but that the blocking positions were ordered in

16 order to create such a situation. Was that the case? Or was it, and

17 that seems to be your explanation, that only in last resort, until other

18 means had been used, that only in last resort Zagreb was willing to order

19 air strikes. Which of the two is it? Or any third explanation is of

20 course welcome as well.

21 THE WITNESS: [Interpretation] Well, given the fact that the

22 quantity of troops still available to halt any attack from the BSA was

23 absolutely insufficient, this order was very consciously given so as to

24 create a situation in which there would be both an attack on UNPROFOR and

25 on the city of Srebrenica. And in that case, there was no doubt

Page 10647

1 whatsoever about the legitimacy of the deployment of air strikes.

2 JUDGE ORIE: That seems to be a third explanation, that the

3 blocking positions were ordered in order to provoke more or less an

4 attack on the town, which then would justify air strikes. Is that well

5 understood?

6 THE WITNESS: [Interpretation] Well, not to provoke the attack.

7 It was intended to draw a clear line in the sand up to this point, but no

8 further. Then if you come further we will deploy air strikes. And so

9 obviously BSA had the choice to withdraw its troops then and to say,

10 Okay, if that is your position, we will go, we'll halt our attacks.

11 JUDGE ORIE: Please proceed, Mr. Ivetic.

12 MR. IVETIC: Thank you.

13 Q. And, sir, these blocking positions that were ordered on the

14 9th of July, am I correct that Armija BiH forces, armed Armija BiH

15 forces, were deployed alongside the DutchBat APCs and fired upon the Serb

16 troops that were approaching?

17 A. Well, they were not deployed by UNPROFOR. It is true that they

18 were in position close to the blocking positions and whether they

19 actually fired is not something I have any information on. You would

20 have to ask the witnesses that were in Srebrenica at the time. However,

21 they held positions close to the blocking positions, it is true.

22 Q. What clear message did UNPROFOR, BH command, think that would

23 send to the Serbs, deploying blocking positions at or near the places of

24 deployment of Armija BiH forces?

25 A. I have no opinion on that. We had a very written -- clear

Page 10648

1 written statement in which we said that UNPROFOR would take a position

2 there and if it were to be attacked, that position, this would lead to

3 deployment of air strikes. And what BiH would do at the same time is not

4 something that we had any announcements about. We did not know in effect

5 what they would do.

6 JUDGE ORIE: Mr. Ivetic, was actually your question: Wouldn't

7 send this the message that UNPROFOR was siding with the forces? Why not

8 directly ask it? I mean that's a clear issue, takes less time if you put

9 it in one question. Mr. Ivetic wanted to know whether you do not think

10 that this would send a message that UNPROFOR was siding with the

11 Army of the BiH, and whether you would share such a view.

12 THE WITNESS: [Interpretation] No. I absolutely do not share such

13 a view. UNPROFOR had orders to protect the civilian population, and this

14 is what they attempted to do from those blocking positions, and if the

15 forces on the ground were not enough, then they would use forces in the

16 air. There was absolutely no support to the Army of the BiH.

17 JUDGE ORIE: But the question was whether by allowing the ABiH

18 forces so close to the blocking positions, whether there was not a

19 serious risk that it would be understood as siding. Mr. Ivetic, I take

20 it that is what you were aiming at.

21 MR. IVETIC: Correct.

22 JUDGE ORIE: So irrespective of the intentions, what the effect

23 might have been.

24 THE WITNESS: [Interpretation] Well, yes. That might possibly

25 have been the case. However, it was hard enough to free up troops to

Page 10649

1 take up those blocking positions and UNPROFOR absolutely did not avail of

2 additional means to prevent that the BiH would take positions close to

3 those blocking positions.

4 MR. IVETIC: Thank you, Your Honours.

5 Q. Now, I want to ask you, we've come to the 9th of July, and you've

6 previously said that you did not know of any order to turn a blind eye to

7 the Bosnian Muslim weapons at this time. I'd like to move to 10 July.

8 Am I correct that by the 10th of July, BH command had made a decision and

9 ordered DutchBat to make available to the Armija BiH the heavy weapons

10 that were in the weapons collection point at one of the DutchBat company

11 compounds?

12 A. Yes, that is correct. The BiH incidentally did not use them.

13 Q. Now, I want to ask you: What was the rationale or authority for

14 permitting the BiH side to be offered to take back their heavy weapons

15 from the weapons collection points in Srebrenica or was this again

16 something that could amount to taking sides in a conflict, given the

17 overall picture?

18 A. Well, you know, this is putting the world on its head, isn't it?

19 There was actually one party to wit the BSA who had for some days

20 attempted to use every means they had to attack the enclave, including

21 the Muslims that were inside it, and I don't think it's anything more

22 than reasonable, and actually UNPROFOR I think waited long enough, where

23 one party is violating agreements to such an extent that also the other

24 party is given the means to resist this with all possible means.

25 Q. Then I have a question for you, sir, about the weapons collection

Page 10650

1 points in Sarajevo where the Serbs had heavy weapons stored. Did they

2 also have a right to take back those weapons to defend themselves in case

3 of an attack by the BiH side that UNPROFOR was unable to stop under the

4 regime and the agreements of the weapons exclusion zones that were in

5 place, as you understood them, and in particular I'm talking about the

6 time period of May 1995?

7 A. Just a moment. I'm just reading the question again in the

8 transcript in English. Yes. I think I understood the question. In

9 May 1995, in Sarajevo, there was definitely not a matter of the use by

10 heavy arms by BiH vis-a-vis the Serb forces, and also no cause, then, to

11 give permission to the Serb forces to take their heavy arms that had been

12 stored at those weapon collection points.

13 Q. I'd like to now switch back to Srebrenica and 9th of July, 1995,

14 and I want to take a look at P1152, which is the warning and press

15 release that you discussed yesterday in direct examination, sent on

16 9 July to General Mladic and I guess to the world. And if we could have

17 the second page of the same, and the text of this was shown to you

18 yesterday and you confirmed having a role in generating this, and I think

19 it is clear. Now I want to ask you about this because this document says

20 that the Serbs resumed attacks on 7 July 1995. Will you agree with me,

21 given your testimony today, that this press release and warning is

22 factually not entirely correct as to the 7th of July, in that it was

23 deemed a quiet day and thus the Serbs -- that the actions of the Serbs

24 could not be described as they are described in this press release?

25 A. Well, yes. That is a little curious, that after all those years

Page 10651

1 you now point this out to me for the first time. It should have been

2 6th July to be exact, but I never noticed it before now that you indicate

3 it to me.

4 Q. And the document also claims that they fired indiscriminately

5 into the safe area and directly targeted UN facilities causing several

6 civilian deaths. Am I correct that the reference to several civilian

7 deaths in this warning and press release is also not entirely correct?

8 A. That I doubt very seriously because I know there were

9 notifications that there were lethal casualties and we actually knew this

10 because of the UNMOs' observations, among other things.

11 Q. Now, do you recall who made the decision to include the not

12 entirely correct allegation about the 7th of July, 1995, in this press

13 release?

14 A. Well, the entire text of this warning is the result of extensive

15 telephone consultations between the headquarters in Sarajevo and the

16 headquarters in Zagreb, and ultimately the responsibility for the text is

17 with General Janvier or Mr. Akashi.

18 Q. But it was sent to General Mladic and I take it it was a warning

19 or, rather, a rationale for why air strikes might be considered against

20 his forces, am I correct?

21 A. Yes, that is absolutely correct.

22 Q. And it was not sent to the Armija BiH side, which according to

23 your prior testimony was engaged on the 6th of July, heavily fighting

24 with the Serbs, exchanging fire with the Serbs, also a violation of the

25 agreements; isn't that correct?

Page 10652

1 A. Yes. But what we deemed much more serious was that the Serbs

2 were attacking both the civilian population and the UNPROFOR forces,

3 which was not the case with the activities of the BiH.

4 Q. I want to now move to the issue of the evacuation of refugees

5 from the Srebrenica enclave, and I'd like to look at page 13 in English

6 of your Rule 92 ter statement, P1165, and paragraph 59 of the same and

7 it's also page 13 in the B/C/S.

8 JUDGE ORIE: Mr. Ivetic, while waiting for the text to come on

9 our screens, you were talking about violation of the agreements, plural.

10 Which ones did you have in mind?

11 MR. IVETIC: I had in mind the -- we have been talking with this

12 witness about the regime of the safe areas as he understood it under the

13 various Security Council resolutions and the various demilitarisation

14 agreements which I went through with this witness and which he said he

15 did not recall the actual documents. But the particular provision that

16 I had read were ones that he was familiar with as applying to the overall

17 regime in the safe area of Srebrenica. That's my --

18 JUDGE ORIE: Yes. You were talking about agreements but you put

19 two agreements to the witness, that those are the ones that you're

20 talking about, okay. Please proceed.

21 MR. IVETIC:

22 Q. At this paragraph, and I think we are talking about the

23 11th of July at this point in time, and I will read it for you it says:

24 "Colonel Karremans commenced negotiations with General Mladic

25 that night and I was advised for the first time that Mladic was on the

Page 10653

1 ground there. The next day, the negotiations were to continue with

2 Mladic. We were instructing Colonel Karremans on what he had to do

3 during those negotiations -- these negotiations by telephone and in

4 writing. We instructed him to stay with the civilian population so that

5 he and his men could observe the evacuation in order that it would be

6 carried out within the international rules. Directly after we stopped

7 the air attacks we realised that the civilian population would have to be

8 evacuated from Srebrenica. There was no food, enough medical care or

9 even protection from the weather for the people there. We had hoped to

10 do this under the cover of the UNPROFOR troops and even use UNPROFOR

11 trucks if necessary. On the 11th of July, I had informed the Dutch

12 minister of defence of the planned evacuation and our intention to use

13 UNPROFOR trucks, and he had agreed to this."

14 Now, just so that we are clear here, I want to make sure that I'm

15 clear in understanding this as meaning that UNPROFOR BH command had

16 instructed and ordered Colonel Karremans to negotiate with General Mladic

17 to permit the evacuation of refugees from Srebrenica as early as

18 11 July 1995.

19 A. No. No. That would have been absolutely impossible because as

20 you may recall, the end of the deployment of the air force was later that

21 afternoon, and not until then was there contact between Mladic and

22 Colonel Karremans and were there negotiations started about the

23 conditions for evacuation. And I think, if I recall clearly, it was

24 around 6.00 at the end of the afternoon, I was in touch with the

25 Ministry of Defence in the Netherlands, and told the minister that we

Page 10654

1 intended such an evacuation, but it may be clear that it takes some time

2 to organise something like that. It's not simple. You have to get means

3 of transport from somewhere to start an evacuation. And definitely we

4 wouldn't have been able to do this on the same day. In the most

5 favourable case we would have succeeded to do this on the next day.

6 Q. Well, then I ask for you to explain to me the section that says:

7 "Directly after we stopped the air attacks, we realised that the

8 civilian population would have to be evacuated from Srebrenica."

9 Is this not "we," referring to UNPROFOR, making a decision that

10 the evacuation of refugees from Srebrenica was a necessity before there

11 was any contact with General Mladic on the ground?

12 A. Yes. We didn't need General Mladic's advice to be able to

13 conclude that the situation of the refugees in those circumstances was an

14 untenable one.

15 Q. And thus I suppose, sir, that the instructions and orders you

16 sent to Colonel Karremans before he met with General Mladic for the first

17 time would have dealt with the evacuation and the need for the refugees

18 to be evacuated, am I correct?

19 A. Yes. That was -- I no longer needed to explain the necessity of

20 this to Colonel Karremans. He could readily understand this, and it was

21 also simply an order from UNPROFOR to Colonel Karremans that the

22 evacuation would have to take place. However, naturally, we did have to

23 inform him as to how we supposed this might take place before -- because

24 for the execution we needed the co-operation of the Bosnian Serb forces,

25 where he had to negotiate that on the spot.

Page 10655

1 Q. Thank you, sir, for that answer. Now I'd like to leave

2 Srebrenica and talk a little bit more about the situation in Sarajevo

3 during your tenure as Chief of Staff for the UNPROFOR BH command. In

4 your 92 ter statement which is before us, at paragraph 11 of the same

5 which is on page 3 in both languages, you -- I'll wait for it to get

6 there. You talk about the Bosnian Muslim side in Sarajevo using mobile

7 mortars to provoke a retaliation from the Serb side. Now, I do

8 understand that you personally did not witness the actual mortars in

9 question, and I'd like for you to explain for us the bases for your

10 conclusion that the BiH Muslims were using vehicles, civilian vehicles,

11 to launch from around the city with these mobile mortars.

12 JUDGE ORIE: Mr. Vanderpuye?

13 MR. VANDERPUYE: I see that the statement does reflect that

14 mortars were mounted on a vehicle with an open roof. I don't know that

15 there is a specific reference to civilian vehicles. I assume that's the

16 case but I don't know that that's the case based on the statement, and I

17 don't know if Mr. Ivetic does. But to the extent that that informs the

18 answer I would expect Mr. Ivetic perhaps might frame it more accurately.

19 MR. IVETIC: If I could perhaps assist. The 2006 statement

20 prepared by the Office of the Prosecutor signed by this witness in

21 paragraph 18 refers to a civilian car, and I was trying to avoid having

22 to go through that whole statement with the witness to see if he recalled

23 that indication. I make an offer of proof that it's in there and if

24 counsel believes it's otherwise, I could actually read the statement into

25 the record and that's fine.

Page 10656

1 MR. VANDERPUYE: I accept that. That's fine. Thank you.

2 JUDGE ORIE: Yes, therefore the whole debate was unnecessary.

3 Please proceed.

4 MR. IVETIC:

5 Q. Sir, could you tell us the bases for your knowledge because again

6 I do understand that you did not eye-witness the actual mortar itself but

7 I believe you do have personal knowledge that led you to believe that the

8 BiH side was using open-roofed civilian cars to fire mobile mortars

9 around Sarajevo. Could you tell us what that personal knowledge that you

10 have is?

11 A. Well, to start, my knowledge about this stems from reports of

12 UNMOs who actually saw the vehicle with the open roof. And from my own

13 perception, that is limited in this respect to a single incident when

14 very close to our headquarters, behind the building where I had my

15 bedroom, mortars were fired - and you do hear if this is close to your

16 window - and when I approached the window to look out I saw a civilian

17 car driving off. However, this took place in the dark so I couldn't see

18 whether this was the actual vehicle with the open roof. However, that

19 did make it very likely that it was.

20 Q. Thank you, sir. That's precisely what I understood from reading

21 your prior -- other documentation to have been the case. Now --

22 JUDGE ORIE: Mr. Ivetic, the Chamber of course is not aware of

23 what is elsewhere because if it's not in evidence you made the singular

24 plural, civilian cars. Is that also to be found there? And do the

25 parties agree on that? Then it's fine. Otherwise I would like to bring

Page 10657

1 to your attention that at least the statement of the witness which is in

2 evidence does not give any reason to use the plural.

3 MR. IVETIC: Correct, Your Honours. And I believe the witness

4 has confirmed that the singular incident he knows of was one car but he

5 had reports from UNMOs of other such incidents which would therefore make

6 it --

7 JUDGE ORIE: So other such incidents could be this one car still.

8 MR. IVETIC: Agreed. Agreed.

9 JUDGE ORIE: Please proceed.

10 MR. IVETIC: Thank you.

11 Q. Now am I correct that this mobile mortar or a mortar fired in

12 such a manner would leave a plume of smoke which would allow the other

13 side, that is the Bosnian Serbs, to quickly locate the origin of fire and

14 shoot back upon it in self-defence?

15 A. Yes. And that was actually the major problem because those

16 mortars were usually fired from positions in the direct vicinity or

17 environment of UNPROFOR facilities, either the headquarters or the

18 barracks or the headquarters of UNPROFOR. And it is clear that then this

19 can be traced back to the place from where the mortars were fired. The

20 risk that UNPROFOR facilities are hit is very real.

21 JUDGE ORIE: Is there any dispute about these matters? We have

22 heard some quite evidence about mobile mortar, a mobile mortar or mobile

23 mortars, being fired from within the city with the risk of return fire.

24 MR. VANDERPUYE: Indeed we have, Mr. President. I'll leave that

25 to your discretion. It's not a matter of dispute in the record.

Page 10658

1 JUDGE ORIE: Yes. But of course I would like to know whether

2 it's a matter in dispute and that's not within our discretion. If you

3 say you well have understood the record until now then we can move on.

4 MR. VANDERPUYE: Yes, Mr. President, we can move on [overlapping

5 speakers] ... record.

6 JUDGE ORIE: Mr. Ivetic, I tried to convince you that it's --

7 there is no reason to present repetitious evidence, no reason to present

8 evidence on matters which are not in dispute, but it seems that you have

9 difficulties in understanding it.

10 Please proceed.

11 MR. IVETIC: Thank you, Your Honour.

12 Q. I want to ask you something relative to the UNPROFOR monitoring

13 that was underway in Sarajevo at the time. And at paragraph 13 of your

14 statement, the 92 ter statement which is on the screen, at page 4 in both

15 languages you talk about the radar detection equipment that you describe

16 as being not completely accurate in the early days. And I want to make

17 it clear, for the record, that this inaccurate radar detection equipment

18 you're talking about is the so-called Cymbeline system.

19 A. Yes. That's correct. That was what I saw as a somewhat outdated

20 mortar-tracking radar system that the French used and which naturally

21 allowed you to conclude that mortars were being fired. But the exact

22 source of those grenades, for the identification of that exact source,

23 they were not very accurate, contrary to, in fact, the equipment that was

24 implemented on Mount Igman in the course of July.

25 JUDGE ORIE: Mr. Ivetic, was there any dispute about this? We

Page 10659

1 have heard quite a bit of evidence in detail about these matters.

2 Cymbeline system inaccuracy, any dispute?

3 MR. IVETIC: I'm sorry. It's a charged incidents in the

4 indictment, Your Honours.

5 JUDGE ORIE: I'm not asking -- I mean, that's not an answer to my

6 question. My question was whether there is any dispute about this, about

7 the system being the Cymbeline system and it being inaccurate, to some

8 extent. We have heard detailed evidence about that. Should we hear from

9 every witness the same evidence because it's part of the indictment,

10 Mr. Ivetic? That is what you suggest apparently.

11 MR. IVETIC: That's not what I suggest, Your Honours. We have

12 had a charged indictment where the sole evidence for it is -- the major

13 evidence for it based upon the reliability of the Cymbeline system. And

14 we have a witness who has very specific direct individual knowledge about

15 it that I'm trying to elicit because its towards a direct charge in the

16 indictment that is being charged against my client, which I believe in

17 every court of law you are entitled to present evidence contrary to a

18 charged indictment event, Your Honours. Please correct me if I'm wrong.

19 JUDGE ORIE: Not if it is repetitious, if it's not challenged.

20 MR. IVETIC: Then, Your Honours, are they dropping that from the

21 indictment? Is the Prosecution willing to drop that from the indictment?

22 That's my question.

23 JUDGE ORIE: No, no. Your questions are about facts, Mr. Ivetic.

24 If you question a witness, you do not ask a witness: Is the charge in

25 the indictment accurate or not? You're asking him about facts. And

Page 10660

1 those facts have been dealt with in detail before this Court and seems in

2 respect of the matters you're raising in your questions, seems to be not

3 in dispute and repetitious, and that's the reason why I intervened.

4 Please proceed.

5 MR. IVETIC: Thank you.

6 JUDGE ORIE: Mr. Vanderpuye, if you want to ...

7 MR. VANDERPUYE: There's just a couple of things, Mr. President.

8 Paragraph 13 is what Mr. Ivetic was referring to in the statement. The

9 witness states that the mortar detection equipment was not completely

10 accurate, and at paragraph 14, in the last line of that paragraph, he

11 specifically refers to --

12 JUDGE ORIE: Cymbeline.

13 MR. VANDERPUYE: -- the Cymbeline system.

14 JUDGE ORIE: Yes. That of course, Mr. Vanderpuye, there was no

15 need to repeat what I already brought to the attention of Mr. Ivetic.

16 Cymbeline was mentioned by the witness.

17 MR. IVETIC: But, Your Honours --

18 JUDGE ORIE: And we are not going to enter into a debate. This

19 is not a debating club. This is a court of law.

20 You may proceed.

21 MR. IVETIC: It is, Your Honours. And for the record, so that

22 the record is abundantly clear, this paragraph also talks about another

23 radar system. The witness has mentioned another radar system, so I'm

24 perfectly entitled to try to determine whether Cymbeline is the one that

25 is inaccurate or it is the other system that he's talked about and to get

Page 10661

1 that information so we have a full picture of what happened in August of

2 1995 when General Smith decided to call for air strikes against the

3 Serbs, which is a critical point to the reliability of General Smith and

4 all his evidence that has been presented by the Prosecution.

5 JUDGE ORIE: Put a focused question on that saying: You're

6 talking about the Cymbeline system, you're talking about another system,

7 was that other system or was it only the Cymbeline system which was

8 inaccurate or were both inaccurate. Then you have a clear, focused

9 question which meets all the needs of the Defence and gives clear

10 answers.

11 MR. IVETIC: And which would have been a compound question.

12 JUDGE ORIE: Mr. -- Mr. -- I said no debating club.

13 Please proceed.

14 MR. IVETIC: Thank you.

15 Q. Am I correct, sir, that with respect to the Cymbeline system it

16 had to be switched on after you first hear the firing start and that you

17 had to manually move around the radar to have that system function?

18 A. I have no knowledge of this. I know that the French used it.

19 I don't have specific knowledge of how the system worked.

20 Q. Is your -- is the system that you talked about on Mount Igman, am

21 I correct that that was specifically aimed at the Bosnian Serb positions

22 to track for purposes of the rapid reaction force located thereupon to

23 track any potential mortar rounds coming from Bosnian Serb forces?

24 A. I think that the radar covered the entire area but I don't know

25 in detail. I think at any rate that the radar covered the air space over

Page 10662

1 Sarajevo.

2 Q. And to be clear now if we can dilate upon the incident known as

3 the Markale II shelling which occurred in late August of 1995 and the

4 final report prepared by BH command, authorised by General Rupert Smith,

5 your superior, that conclusively determined that the shells must have

6 come from the Serb side were relying upon this Cymbeline radar detection

7 system which you have identified as being inaccurate?

8 A. At the same time there was also another radar system that was

9 present, and I take it that also the results of this were jointly

10 considered.

11 Q. Sir, the report references the Cymbeline radar system. I believe

12 the other radar system was not called the Cymbeline radar system, am I

13 correct?

14 A. That at any rate is correct.

15 Q. Do you know if the other radar system that was specifically aimed

16 at the Serb artillery was ever consulted for purposes of determining the

17 source and origin of fire for the Markale II incident that occurred in

18 August of 1995?

19 A. I don't recall whether in the report it said anything about

20 observations with the other radar system. However, you should look at

21 the report. I'm sure that would state it if it was there. I don't

22 recall that.

23 JUDGE ORIE: Mr. Ivetic, where the witness has -- if the witness

24 has no knowledge about details, then we should focus on those sources

25 which could provide us with the details of all this. Would you please

Page 10663

1 keep this in mind.

2 MR. IVETIC: Yes, Your Honour.

3 Q. I'd like to focus on this incident known as the Markale II

4 incident in August of 1995 and the subsequent UNPROFOR investigation or

5 investigations, as the case may be. I'd like to focus on your Rule

6 92 ter statement from 1996, which is in e-court, and that is P1165 MFI,

7 and page 4 in the English and the B/C/S and paragraphs 13 through 14.

8 And here you talk about a -- about one of the five shells striking a roof

9 of a building and the results that occurred. And I want to ask you, am I

10 correctly interpreting your statement as implying that one of the shells

11 detonated above ground after striking the roof of a building sending

12 shrapnel down from a great height? Is that accurate as to your

13 understanding of this incident?

14 JUDGE ORIE: Could we first ask a different question to the

15 witness. If you could stop -- if you would stop for a second. Do you

16 have any personal knowledge about this incident, beyond what you may have

17 read in the reports that were written about it?

18 THE WITNESS: [Interpretation] Yes. The incident happened at the

19 time I was in the staff building at Sarajevo, so actually on the day

20 itself I was immediately informed about it. And also the UNMOs of the

21 headquarters and the head of UNMO was immediately ordered to do a

22 thorough inquiry into this, and so to that extent I am informed about

23 this. And also in the consultations in response to the report issued by

24 the head of UNMO, that was something I was participant in as well. So

25 I was informed in that sense. Other than the retrospective observations

Page 10664

1 of the damage to the building, I did not have an immediate experience of

2 this.

3 JUDGE ORIE: Mr. Ivetic. Let's keep this in mind for after the

4 break because we are at the time of the break, to know where the source

5 of knowledge of the witness lies.

6 Witness, you're invited to follow the usher. We take a break of

7 20 minutes.

8 [The witness stands down]

9 JUDGE ORIE: We take a break and we resume at quarter past 12.00.

10 --- Recess taken at 11.57 a.m.

11 --- On resuming at 12.16 p.m.

12 JUDGE ORIE: Before we continue, Mr. Vanderpuye, as matters stand

13 now, how much time do you think you would need for re-examination?

14 MR. VANDERPUYE: Thank you, Mr. President. Good afternoon. As

15 things stand right now it seems to me it would be 15 or 20 minutes.

16 [Trial Chamber confers]

17 JUDGE ORIE: Mr. Ivetic, the Chamber has considered the way in

18 which the cross-examination developed. We have another break. The

19 Chamber expects you to finish at 2.00 and then there will be 15 minutes

20 left for Mr. Vanderpuye, and as matters stand now at this moment the

21 Chamber has no questions. Of course, that could change.

22 Then could the witness be escorted into the courtroom.

23 Meanwhile, I use the --

24 [The witness takes the stand]

25 JUDGE ORIE: The witness is there already.

Page 10665

1 You may proceed, Mr. Ivetic.

2 MR. IVETIC: Thank you, Your Honour.

3 Q. General, I'd like to clear up the issue of what actually you

4 reviewed, what reports you reviewed since we have been using general

5 terms, and I think that the Chamber might be under the misapprehension

6 that you actually reviewed the written reports for Markale. I think the

7 easiest way to do this is to look at your 2006 statement, which is

8 65 ter 1D00917, and it's page 5 of the same in English, page 9 in the

9 B/C/S, and it's paragraph 23 that I would like to go over with you.

10 An if you can follow along with me, sir, I'll read into the

11 record the relevant portion:

12 "I have read documents numbered R 001-5992 to R 001-6013 which

13 pertain to the shelling of Markale market on 28 August 1995. I had not

14 read all these reports before, and I had based my opinion stated in

15 paragraph 14 of my statement on my recollection of a verbal briefing by

16 the chief UNMO in Sarajevo. I seem to recall that briefing was addressed

17 to our small circle of senior staff that included General Smith, myself,

18 the heads of G-3 and G-2, and the respective military assistants. G-2

19 was the head of the intelligence branch and the G-3 was head of the

20 operations branch. I think we discussed the preliminary results of the

21 investigation. I further believe that the direction of fire was

22 discussed because not only the distance matters. I have checked my notes

23 of that day and I have recorded that I was briefed that the shell came

24 from the south south-west. I also have recorded that one of the shells

25 hit a roof. In any event, I have no reason to doubt anything in the

Page 10666

1 reports that I've just read. I'm providing a photocopy of the relevant

2 pages of my notes to accompany my statement."

3 Now, sir, I hope I've been accurate and complete in reading the

4 entirety of this so that we can have agreement. Would you stand by this

5 paragraph of your 2006 written statement to the Office of the Prosecutor

6 as being truthful and accurate, and would you so testify today subject to

7 the solemn declaration that you have taken?

8 A. Yes. I still do.

9 Q. And now, apart from this oral briefing from the chief UNMO, do

10 you recall that upon instruction of General Smith, there was a cumulative

11 or final report that was prepared by the BH command undertaken by, I

12 believe, the G-2 officer, Colonel Powers, into the Markale II incident

13 that we have been discussing?

14 A. I know that also a written report was made of that.

15 Q. And by the way, in this 2006 report which is not in evidence, it

16 indicates or you indicate that your background is infantry and you have

17 experience with mortar units having commanded formations as high as a

18 division and specifically you commanded the 1st Division of the Dutch

19 army from 1996 to 1998, a unit that was comprised of four brigades and a

20 total of 12.000 soldiers and officers. Is that true and accurate, sir?

21 A. All of this is correct, but let me emphasise that my knowledge of

22 mortars does not stem specifically from my experience as divisional

23 commander because that is more from a distance. However, as

24 first lieutenant, I was in a support company and that company availed of

25 mortars and so I was trained in mortars and hence stems my specific

Page 10667

1 knowledge of mortars.

2 Q. Thank you, sir. Did Colonel Powers have any experience in

3 mortars, if you know?

4 A. I have no idea.

5 Q. Were there other experienced officers in the BH command with

6 experience and training in mortars, such as yourself?

7 A. Yes, I know that at any rate there was one specialist who was

8 also engaged by head of UNMO in the investigation, and somebody who had

9 knowledge of and experience with doing so-called crater analyses based on

10 which one might detect from which direction a mortar was fired.

11 Q. Now, sir, at transcript page 7451, lines 10 through 20, actually

12 lines 13 to 20, General Rupert Smith testified subject to the solemn

13 declaration of this Tribunal, answering why he selected

14 Lieutenant-Colonel Powers of the intelligence division to do the report

15 on Markale, testified as follows and I'll read it for you so you can get

16 it in a language you understand and follow:

17 "Q. Why do you -- why did you select him to do this second

18 reiteration of investigation and analysis? Didn't you have trained

19 artillery officers under your command.

20 "A. Not in my headquarters, I didn't. I can't -- I can't

21 remember why I chose him in particular.

22 "Q. Were there trained artillery officers in either your

23 subordinate command or in your superior command, UNHG Zagreb.

24 "A. There might have been but there weren't in my headquarters."

25 Is General Smith's testimony that there were no trained officers

Page 10668

1 in artillery in the BH command accurate?

2 A. There was no artillery specialist among the officers in the

3 command, and to that extent General Smith was undoubtedly right. I do

4 know that the head of UNMO had somebody in his team, this is unlikely to

5 have been an officer, however, with the experience that I just pointed

6 out for doing crater analyses.

7 Q. And we keep talking about the chief of UNMO. I want to ask you,

8 sir, is it your recollection, that in fact the chief the UNMO was part of

9 the investigative team that came up with the definitive report that was

10 authorised by General Smith as to the Markale shelling, Markale II

11 shelling?

12 A. Well, what I know is that the head of UNMO was given the orders

13 to do that investigation and I do assume that it was also he that was in

14 charge of that.

15 Q. Do you know or recall if anyone from Sector Sarajevo of UNPROFOR

16 was included in this investigation?

17 A. I don't recall, but I don't rule it out either.

18 Q. Do you recall a Colonel Demurenko, the Chief of Staff of Sector

19 Sarajevo of UNPROFOR?

20 A. I recall that name, yes.

21 Q. Do you recall if he was consulted and if he had any role in the

22 investigation that was authorised by General Smith and carried out by

23 Lieutenant-Colonel Powers?

24 A. I have no recollection of that.

25 Q. Okay. Now, if we look at paragraph 24 at the bottom of the page

Page 10669

1 in the English of the 2006 statement that we have up on our screens in

2 e-court, it's it starts off as follows, sir:

3 "I recall that it was very important that the source of fire be

4 determined because we did not rule out any possibility including the

5 possibility that the Bosniaks had shelled their own people. I have never

6 seen or have any evidence that the Bosniaks shelled their own people,

7 although I heard from my predecessor, General van Baal, that it might

8 have happened during his time.

9 "And elements to be considered were that if there was no sound to

10 be heard, the shell must have been fired from far away. And the fact

11 Cymbeline did not pick up anything meant the trajectory was very low.

12 I remember that the investigation brought us to the conclusion that it

13 was the Serb forces who did the shelling, I don't remember the names of

14 all the investigators, but I do remember that the chief UNMO was part of

15 the team."

16 And now I ask you, sir, is this selection that I've just read

17 from your 2006 statement truthful and accurate to the matters contained

18 therein such that you would testify the same today?

19 A. Yes. And I would still support that statement.

20 Q. And I want to first ask you about the predecessor,

21 General van Baal, and his knowledge of incidents that might have happened

22 during his time. Did he provide any specifics for you, and did one of

23 those incidents involve the Markale marketplace?

24 A. As to what General van Baal told me, he said in his period there

25 was also a shooting in the centre of Sarajevo or it was fired, and that

Page 10670

1 in retrospect impressions were strong that they were done by the Muslims

2 themselves. And so he warned me that should something like that ever

3 happen again, where this was a possibility that would normally be very

4 unlikely was still a possibility to be thoroughly investigated.

5 Q. Thank you, sir. Now here you mention again the fact that the

6 firing of the round was not heard. And the question I have for you, sir,

7 is -- and again if you don't know, then please tell me. But if the

8 firing shot is not heard, how does one know to turn on the Cymbeline

9 system to therefore then check if there is any low trajectory or high

10 trajectory shots? In one doesn't hear the round how is the Cymbeline

11 system known to be turned on at all?

12 A. Well, yes, that's a question I cannot answer. However, let me

13 try and clarify, if I may. First of all, taking the direction from which

14 the mortars were fired, if they had been fired from the city, we would

15 have heard it, because the distance between the marketplace and the

16 border of the enclave that was such a limited distance we could have

17 heard it even in the headquarters. And that was not the case. And also

18 the UNMOs did not hear the shots. The Cymbeline was always oriented

19 to -- well, oriented in such a way that the majority of the area over the

20 air space of Sarajevo was covered. It did not pick up on the mortar

21 fire. However, it is equally likely that the mortars were actually fired

22 from a larger distance.

23 Q. Now, sir, I'd like to show you what has been marked as 1D607

24 which is a video which we have a transcript of in the e-court system.

25 It's 13 minutes in total, and I think it will show both verbally and

Page 10671

1 visually the matter contained therein which is the analysis of a

2 Colonel Demurenko of Sector Sarajevo as to this incident. And I'd like

3 to ask you to follow that, sir, and then I'll have some questions as to

4 the items that the gentleman is talking about, again based upon your

5 knowledge of both mortars and of your knowledge of the investigation that

6 was carried out and the conclusion that were reached by the BH command.

7 MR. IVETIC: And, Your Honours, I don't know -- are we going to

8 need to play this one twice?

9 JUDGE ORIE: If we have to depend on text, we have to. I have

10 one additional question, Mr. Ivetic. We have spent quite a lot of time

11 on technical details of the 28th of August, 1995, event. This appears to

12 be now new evidence? It has not been dealt with with the previous

13 witnesses who testified about those details? Is that --

14 MR. IVETIC: Are we talking about the video? That's correct the

15 video has not been shown yet in the proceedings.

16 JUDGE ORIE: And you have received it recently or ...

17 MR. IVETIC: We had it on the list to be used with General Smith,

18 but as Your Honours might recall I was not permitted to finish the --

19 I was limited in my cross-examination of General Smith and this video was

20 not able to be shown at that time.

21 JUDGE ORIE: Yes. You had chosen at that time to rather ask

22 other questions rather than show the video, if I understand you well.

23 Then let's have a look at the video.

24 MR. IVETIC: Thank you.

25 [Video-clip played]

Page 10672

1 MR. IVETIC: I don't know why we have the garbling.

2 [Video-clip played]

3 MR. GROOME: Your Honour, if it assists, if Mr. Ivetic provides

4 us with a DVD we can try it on our system. There is obviously something

5 very wrong here.

6 JUDGE ORIE: Yes, I can follow it but with some difficulty, I

7 must admit.

8 MR. IVETIC: It should be much clearer. The version I was

9 viewing last night was much clearer, but perhaps we can try it with the

10 DVD with the assistance of the usher.

11 JUDGE ORIE: Yes. Could the usher assist? Perhaps meanwhile you

12 already continue to the extent possible because otherwise ...

13 MR. IVETIC: Yeah, no problem.

14 Q. Sir, I'd like to ask you: Are you familiar from your experience

15 as an officer trained in mortars that mortars come with what's called

16 firing tables as to the number of charges that can be placed on a mortar

17 shell and the distances that a particular shell or round will travel

18 based upon those charges?

19 A. Yes. With a mortar, at any case at 120-millimetre mortars you

20 can put different charges or loads on it and they would determine the

21 reach of that specific mortar.

22 Q. Thank you, sir.

23 MR. IVETIC: Now with the assistance of Ms. Stewart I would ask

24 that the video be played first one time through for the interpreters and

25 then afterwards a second time through with interpretation.

Page 10673

1 THE INTERPRETER: Interpreter's note: We did not receive the

2 transcript.

3 JUDGE ORIE: The interpreters have not received the transcript,

4 they tell us, Mr. Ivetic. Is it true that I saw one on my screen a

5 second ago? Otherwise, could they be printed out and provided to the

6 interpreters and meanwhile we will proceed?

7 MR. IVETIC: Let me consult, Your Honours.

8 [Defence counsel confer]

9 JUDGE ORIE: Mr. Ivetic, let's try to take care that the pages

10 will be printed, four or five pages, for all the booths and then we can

11 look at it in a more meaningful way.

12 MR. IVETIC: Agreed, Your Honour, and I've asked for my

13 colleagues to assist me to have that printed. In the interim I propose

14 to go to another topic so that we can return and make use of our court

15 time.

16 JUDGE ORIE: Yes, let's do that.

17 MR. IVETIC:

18 Q. Sir, I'd like to move to a topic that you discussed in some

19 detail yesterday, the issue of humanitarian convoys and the enclaves.

20 I want to ask you, sir, first of all, given the prevailing situation on

21 the ground, did you at BH command consider that the parties had a right

22 to ensure that weapons and other materials were not smuggled as part of

23 humanitarian convoys according to your understanding of the regimes and

24 the agreements that were in place?

25 A. Well, yes, it's clear that the convoys were not intended for the

Page 10674

1 smuggling of arms, and the UNPROFOR command was definitely clear that if

2 you were to violate that rule, that approval for further convoys would be

3 much endangered so that you better never do that.

4 Q. Now, do you recall during your tenure in Sarajevo that there were

5 repeated incidents of smuggling of weapons into the enclaves by way of

6 humanitarian convoys and into Sarajevo by way of the Butmir tunnel and

7 the Igman road?

8 A. Ah, well, these are two questions again. I remember one instance

9 where there were weapons found in what I believe was a UNHCR convoy, but

10 at any rate a humanitarian convoy, and this was given much play by the

11 media. And the only thing I can say about it was that it was such a

12 coincidence, much of a coincidence that these arms were discovered while

13 there were television crews presents. But, yes, I recall that incident.

14 And the second question, this was a tunnel that had been dug below the

15 airport of Sarajevo and through the tunnel it is true goods were smuggled

16 into the city. I take it that this was generally food but I can't rule

17 out that also weapons were smuggled into the city that way.

18 Q. This tunnel ran underneath the airport, that is to say ran

19 underneath the area that was held and occupied by UNPROFOR forces in

20 Sarajevo; is that correct?

21 JUDGE ORIE: Mr. Ivetic, any dispute about this? We have heard

22 about this tunnel, where it is, several times.

23 Mr. Vanderpuye, is there any dispute about this? Is there any

24 dispute about a televised incident of weapons having been found in a

25 humanitarian convoy?

Page 10675

1 MR. VANDERPUYE: Mr. President, I think we've seen that in the

2 record of the proceedings so far. We don't dispute that.

3 JUDGE ORIE: No dispute about that. Let's focus on what is not

4 in dispute. Any follow-up questions, any new information, please

5 proceed. But let's not ask this witness where the tunnel was. We've

6 heard that five or ten times where it's not in dispute.

7 MR. IVETIC: Your Honours, yesterday for approximately one hour

8 and ten minutes, the Prosecution asked this witness about --

9 JUDGE ORIE: Mr. -- Mr. -- Mr. Ivetic --

10 MR. IVETIC: May I for the record state my position, Your Honour?

11 JUDGE ORIE: Mr. -- Mr. --

12 MR. IVETIC: Are you preventing me from making a record,

13 Your Honour?

14 JUDGE ORIE: Mr. Ivetic, I prevent you from interrupting me. May

15 that be clear. You may proceed, you may put your next question to the

16 witness, and if at the very end you want to put something on the record

17 you're invited to do so. Please proceed.

18 MR. IVETIC:

19 Q. In paragraph 67 of your statement you talk about having to leave

20 Sarajevo via the Igman road at the conclusion of your tour of duty. Is

21 it a fact that the Bosnian Muslims had a method for transporting fuel via

22 a pipeline on that road from Igman to Sarajevo?

23 A. I have no knowledge of the existence of that pipeline.

24 Q. You mentioned yesterday the fuel situation in the enclave -- in

25 enclaves in relation to the discussion of the humanitarian convoys.

Page 10676

1 I want to look at a Prosecution document with you that is numbered

2 65 ter 25915, and unfortunately since we still only have a B/C/S version

3 of it I will have to read its contents to you. Before I switch languages

4 I will note that it is dated the 12th of May, 1995, from the command of

5 the 1st Brcanska Infantry Brigade and is an order of Colonel Andric of

6 the VRS.

7 And now I will switch to B/C/S to read you the title of this

8 document and the first two paragraphs of the same, with the assistance of

9 the translators:

10 [Interpretation] "Prevention of smuggling of fuel of the UNPROFOR

11 UNHCR -- by the UNPROFOR, UNHCR and others. Order. Pursuant to

12 available information, UNPROFOR, UNHCR and members of other international

13 organisations are transporting illicitly fuel for the needs of the

14 Muslims in the Sarajevo, Gorazde, Zepa and Srebrenica enclaves. The fuel

15 is being smuggled in double-bottom tanks, and large volume tanks on

16 combat and non-combat vehicles which are then being emptied within the

17 enclaves, whereas the tanks are left with small quantities of fuel

18 sufficient to return from the enclave to the territory of the

19 Federal Republic of Yugoslavia and the Republika Srpska."

20 [In English] Sir, did you have occasion to hear about complaints

21 and incidents of this nature where excess fuel was smuggled into the

22 enclaves for the use of the Bosnian Muslim forces within those enclaves?

23 A. No. This is the very first time I hear about this, and never was

24 a complaint received about this at the headquarters in Sarajevo in the

25 period that I was there.

Page 10677

1 Q. Would you agree with me that such concerns on the parts of any

2 side in the conflict would constitute a legitimate reason to inspect and

3 limit humanitarian convoys relating to fuel into the enclaves?

4 A. If humanitarian convoys were indeed being abused for that

5 purpose, I could imagine that this would be a reason to inspect them.

6 However, I never heard from even a single situation in which this was the

7 case.

8 Q. I'd now like to move to another document, number 19538, again a

9 Prosecution document, dated January 1996 from the Bosnian MUP SDB Tuzla.

10 And if we could first look at the first page of that to see what this

11 document purports to be, I would then, after that -- well, let me read

12 it, the part that I'm focusing on in the English. If we could see here,

13 sir, this document says:

14 "Here enclosed please find an overview of the available

15 information on murders and criminal acts, prostitution and the like in

16 the area of Srebrenica during the period leading up to the occupation of

17 this safe area."

18 And now I'd like to turn to page 6 in both languages to present

19 you with a finding of this document. And it is in the middle of the

20 page, in the English, the precise middle of the page, and I'll read it to

21 you, sir. It says:

22 "In addition to what has been said so far, in our conversations

23 with refugees from Srebrenica, we also recorded information on a number

24 of criminal offences committed by members of the 28th Division and

25 certain leaders of the municipal organs of Srebrenica. These contributed

Page 10678

1 to the de-establishment of the overall situation and affected the

2 security of this enclave. These criminal activities involve persons

3 close to the aforementioned categories and represented one of the links

4 in the chain of the sale of humanitarian aid and oil on the black market,

5 the illegal sale of weapons, and so on. Such a situation reflected

6 largely on the relationship between the military and civilian

7 authorities, it has already been mentioned that in all of that, a key

8 role was played by the command cadre of the 28th Division who did their

9 best to discredit and thwart by threats and coercion the work of the

10 civilian organs, judiciary, the SJB, et cetera."

11 And then this document goes on to list specifics of the charges

12 against Naser Oric and many others detailing various black-marketeering

13 and smuggling related to humanitarian aid and fuel. Sir, did UNPROFOR

14 have such information as to what was going on in Srebrenica at the time

15 that you were Chief of Staff of the BH command?

16 A. If you expect an answer from me about this, I absolutely have no

17 knowledge of this, nor was anything like this ever reported to me. If

18 something like this had happened and there was knowledge about it within

19 UNPROFOR, then that should have been with the UNMOs or the members of

20 DutchBat. They never reported to Sarajevo about anything like that.

21 Q. Would you agree with me that this, and again this is information

22 from the Bosnian Muslim SDB, if such information -- if such activities

23 were ongoing or were suspected to be ongoing, would that also be a

24 legitimate reason to inspect convoys and/or restrict convoys going into

25 the enclaves of Srebrenica?

Page 10679

1 A. I think that this would only be justified if there were clear

2 indications that those goods had been smuggled in with the help of UNHCR

3 convoys.

4 Q. And now a couple of times you've mentioned UNHCR convoys. As far

5 as UNHCR convoys are concerned, is it correct that UNPROFOR did --

6 neither had a role nor authority to inspect these convoys and thus had no

7 responsibility or knowledge as to what was actually in them?

8 A. No. No. That was not one of the tasks of UNPROFOR to check that

9 but UNHCR is an organisation which was very much aware that their own

10 credibility would be harmed if they were to abuse their authority.

11 Q. And the one incident that you do recall where ammunition was

12 found in a convoy was an UNHCR convoy, am I accurate in that

13 recollection?

14 A. As far as I can recall, yes.

15 Q. Okay. Thank you.

16 [Defence counsel confer]

17 MR. IVETIC: Your Honours, with the assistance of the usher

18 I would like to present the printed transcripts of the video, 1D607, to

19 be distributed to the booths.

20 JUDGE ORIE: Could the usher assist?

21 MR. IVETIC: Your Honours, I have eight copies. I'm told that

22 should be enough for even the Judges and the witness to have in front of

23 them as it might assist.

24 JUDGE ORIE: Yes, it's primarily for the booth. They have to

25 read it. For the Judges if it's in e-court we always can have it on our

Page 10680

1 screens. But ...

2 MR. IVETIC: I will assume that's going to take a few moments so

3 I will go on with [overlapping speakers]

4 JUDGE ORIE: Yes, if you continue with the remainder then.

5 MR. IVETIC:

6 Q. I want to ask you about the bombings that occurred -- excuse me,

7 the NATO action that occurred against the Bosnian Serb Army in May of

8 1995. And you discussed this at paragraph 30 of your Rule 92 ter

9 statement, which is P1165 marked for identification, page 7 in the

10 English and page 7 in the B/C/S. Now, we've already touched upon this,

11 and it started when the Serbs took and fired weapons from the weapons

12 collection points. And I want to ask you, sir, isn't it true that when

13 we talked earlier about your discussions with Minister Silajdzic where

14 you said that the Muslims were provoking the Serbs and you warned about

15 potential air strikes against the Muslim side that this is again the same

16 month and the same time period when all this is happening?

17 A. It's at any rate the same month. The stealing of the weapons

18 from the weapon collection point happened late May, the discussion with

19 Minister Silajdzic was, as I recall it, halfway through May.

20 Q. Thank you, sir. And if we look at paragraph 29 of your

21 statement, which is on this page I believe at the top, indeed the ABiH

22 had been shelling with heavy weapons against the Serbs, and you and

23 General Smith convinced them to stop, and the Serbs stopped. And then it

24 says, in this paragraph, that after about one week, both sides started

25 shelling again. So the question I have for you, sir: Does this appear

Page 10681

1 to be, again, a continuation of the discussions that you had with

2 Mr. Silajdzic where the Muslims were provoking fire and that this is

3 again a situation, a week or two after that, when again both sides are

4 firing at one another when the decision was made to strike the Serbs with

5 NATO air forces?

6 A. I know that after the first consultation with Minister Silajdzic,

7 there was a period of about a week in which the number of incidents

8 drastically receded, but after about a week it became increasingly more

9 serious and it was soon at the old -- at the former level again.

10 Q. Thank you, sir. Now the question I have for you is: If the

11 Muslims were the ones provoking the fire, if after a week both sides

12 resumed shelling one another, why was the decision made only to subject

13 the Serb side to actual air strikes? Who made that decision and why?

14 A. Undoubtedly because it was the Serbs who were using the heavy

15 arms.

16 Q. But correct me if I'm wrong here, sir, your paragraph 29 ends

17 with the phrase:

18 "I was not pleased for very long, as within one week the shelling

19 started again from both sides."

20 Does that refresh your recollection as to whether the

21 Bosnian Muslim side was also using heavy weapons, sir?

22 A. I know that the firing back and forth was resumed. I don't

23 recall, however, whether from the Bosnian side heavy weapons were used

24 and the only time that something like that may have happened, it was very

25 incidental, where maybe a mortar was gotten out of hiding and then fired

Page 10682

1 and then quickly hidden away again. Definitely if this was from a

2 residential area that that happened, it would have been very hard to

3 identify exactly where; and secondly, it would be very hard to act

4 against this because then one would run the risk that the civilian

5 population would become a victim. And it was different with a purely

6 military BSA setups outside the environment of civilian population, at a

7 time that heavy artillery is used there. This was simply with a purpose

8 to the air strikes.

9 Q. So the BH command decided to do air strikes against the

10 Bosnian Serbs because it was easier for them to do so even though both

11 sides had violated the accords, is that what you're telling us?

12 A. No. That is not what I'm telling you. You're putting links

13 between answers that I gave and that I didn't intend like that in my

14 mouth. The air strikes were done purely and only because heavy arms had

15 been stolen from the weapon collection points that were under the UN

16 control, and the BSA did this, not the BiH, and subsequently the BSA also

17 was asked to return those weapons within a certain deadline, and this

18 instruction was not followed up, and therefore air strikes were started.

19 Q. Thank you.

20 MR. IVETIC: If I can inquire, have the booths received the

21 transcript of the 1D607?

22 JUDGE ORIE: Yes, they have been distributed.

23 MR. IVETIC: With the assistance of Ms. Stewart, I'd like to

24 switch gears back to August of 1995 and have the viewing of this video.

25 [Video-clip played]

Page 10683

1 JUDGE ORIE: The quality --

2 MR. IVETIC: If we can stop it, I'd like to try one other thing.

3 I really have no idea for why the quality is like that.

4 JUDGE ORIE: Is there another way, Mr. Ivetic? We have now a

5 written transcript. I do not know what is shown in the video, if it's

6 just Mr. Demurenko speaking.

7 MR. IVETIC: It is not.

8 JUDGE ORIE: It's not. Okay. Then my solution that came to my

9 mind might not work. Another way of dealing with it is that we all read

10 it during the next break and that you show the portions where there is

11 anything explained and then we don't have to play it twice.

12 MR. IVETIC: Your Honour, except it's through the entirety of it

13 that it is. I'm trying to get my original up on the screen in front of

14 me. If Your Honours will bear with me, I think that one should be the --

15 MR. VANDERPUYE: If I could just interject, we will try to play

16 it through Sanction and see if we can resolve the problem relatively

17 quickly, Mr. President.

18 [Video-clip played]

19 JUDGE ORIE: Seems to be the same problem.

20 MR. IVETIC: I believe I now have it coming in through --

21 JUDGE ORIE: Okay, let's try it again.

22 Mr. Ivetic, I suggest that you try to prepare it during the break

23 and -- unless there is any reason to believe that we have it on our

24 screens within the next 15 to 20 seconds.

25 MR. IVETIC: No, Your Honour, the computer over there is not

Page 10684

1 co-operating with me. It seems to be stalled, so I'd like to go back to

2 asking other questions.

3 JUDGE ORIE: And still we could -- if it would work I think we

4 could read it during the break.

5 MR. IVETIC: I think we have it up on the screens now,

6 Your Honours.

7 JUDGE ORIE: We have the statement of the witness on our screens

8 at this moment.

9 MR. IVETIC: The video, it should be being shown.

10 [Video-clip played]

11 MR. LUKIC: It's still the same audio, Your Honours. I'd like to

12 go back to asking questions and try to resolve it during the break.

13 JUDGE ORIE: Yes.

14 MR. IVETIC:

15 Q. Now, sir, if we could return back to May 1995, am I correct that

16 the hostage taking that you talked about in your statement and in your

17 direct examination, the alleged hostage taking by the Bosnian Serbs of

18 UNPROFOR personnel, only occurred after NATO started bombing persistently

19 the Bosnian Serb positions?

20 A. I wouldn't call it an alleged hostage taking. It was very

21 clearly a hostage taking, but, true, it happened after the air strikes

22 had been done.

23 Q. Am I correct that not a single UNPROFOR casualty resulted from

24 their detention?

25 A. Yes. I can confirm that.

Page 10685

1 Q. Am I correct that for the most part, personnel were merely

2 confined to their quarters and placed under armed guard except for a few

3 incidents where they were put in public places?

4 A. Yes. Both happened.

5 Q. And am I also correct that the air strikes of NATO aircraft were

6 called down or guided by forward air controllers who were embedded with

7 the various UNPROFOR units throughout Bosnia?

8 A. No. The latter is absolutely incorrect. I'm not speaking of

9 close air support here. Close air support is led by forward air

10 controllers but these were air strikes, so targets bombed on predestined

11 locations, pilots using their own navigational means.

12 Q. Well, let me ask you this, sir: Was it a known fact that

13 UNPROFOR made known that as part of its units out in the terrain, there

14 were forward air controllers, including members of the SAS and even

15 Unit 108 of the DutchBat, that were embedded with the UNPROFOR units out

16 in the terrain whose role could have been to direct NATO strikes against

17 targets on Bosnian Serb territory?

18 A. Yes. I know that in a number of locations, inter alia the

19 enclave of Srebrenica, had forward air controllers present who could be

20 used for close air support, but 1st May there was a very different

21 situation. These were predetermined targets on Serb territory, so not

22 inside the enclaves, and so not places where forward air controllers were

23 being used.

24 JUDGE ORIE: Mr. Ivetic, could I ask one additional question?

25 What was -- had UNPROFOR provided assistance to NATO to define those

Page 10686

1 targets on Bosnian Serb territory?

2 THE WITNESS: [Interpretation] Yes. The targets that were

3 targeted were determined at UNPROFOR headquarters in Sarajevo and that

4 information was subsequently relayed to NATO with a request to fire

5 there.

6 JUDGE ORIE: Please proceed, Mr. Ivetic.

7 MR. IVETIC:

8 Q. Would you agree that once NATO undertook these actions UNPROFOR

9 had essentially taken a side in the conflict and entered as a combatant

10 force?

11 A. Well, that's a tricky question. It is true that at the time

12 the -- to deploy resources you become a party to the conflict because

13 you're using armed forces, and that was the case with UNPROFOR at that

14 time. But this is irrespective of the fact whether one chooses to side

15 with one or the other party. This is deployment of means to punish a

16 party that is breached specific agreements.

17 Q. I'd like to try and resolve any doubt by looking at a document

18 from this time period from General Smith, P1176, we can have that up in

19 e-court, it is dated 29 May 1995, and it is entitled, "Post air strike

20 guidance." And at paragraph 2, it said that the objective of the air

21 strikes has not been achieved. When we get that up, sir, I'll ask you if

22 you're familiar with this document that is now up on our screens in

23 e-court.

24 A. Yes. I know it very well.

25 Q. And if we look at items 4, A through C, at the bottom of the

Page 10687

1 English and they are on the next page in the B/C/S, I believe, and I'd

2 like to ask you about these, and it's -- item A says:

3 "UNPROFOR no longer have a peacekeeping relationship with the

4 BSA. It has lost the consent of one of the parties. B, UNPROFOR is very

5 close to being an ally of the Bosnian government. It is very nearly no

6 longer impartial. Item C, UNPROFOR has used force to enforce a mandate.

7 There is now potential for confusion between force being used in

8 self-defence and for enforcement."

9 Do you agree with General Smith's own assessments as detailed

10 herein arising out of the use of force against the Bosnian Serbs in

11 May 1995?

12 A. Yes. That was the direct cause for him to write this assessment,

13 and he says, Well, you know, a border has been crossed, and this might be

14 interpreted as though UNPROFOR actually chose to be a party along with

15 one of the parties.

16 Q. Would you agree with me that his concerns existed from the moment

17 that the NATO air strikes began and thus created a legitimate reason for

18 the VRS to react as it did, given that it could be viewed that UNPROFOR

19 was no longer having consent of the party to operate and was viewed as

20 being close to an ally of the Bosnians?

21 JUDGE ORIE: Mr. Vanderpuye?

22 MR. VANDERPUYE: Thank you, Mr. President. I'm unclear as to

23 what Mr. Ivetic means by the BSA acting as it did, I don't know if he's

24 referring to the hostage taking or he's referring to other actions and

25 I think it would be better if he could clarify that for the record.

Page 10688

1 MR. IVETIC: Referring to the hostage taking.

2 JUDGE ORIE: Mr. Ivetic, it's a very composite question you have

3 put to the witness. You're asking for a judgement. I'm not going to

4 stop you from doing that although the Chamber usually expects witnesses

5 to focus on facts.

6 MR. IVETIC: Okay.

7 JUDGE ORIE: But you're invited to split it up and to make it

8 clear for the witness.

9 MR. IVETIC:

10 Q. Would you agree with me, sir, that these concerns that were

11 voiced by General Smith after the bombings also would have been -- could

12 be understood and divined from the beginning of the bombings themselves,

13 that is to say that these were things in everyone's mind at the beginning

14 of the NATO bombings in May of 1995?

15 A. Well, I still believe this is not a very clear question, or this

16 may just be me.

17 JUDGE ORIE: If it assists you, Mr. Ivetic, what you would like

18 to know, I think, is: Whether you could not easily foresee this to

19 happen at the beginning of the bombing.

20 MR. IVETIC: And whether BH command did, indeed --

21 JUDGE ORIE: Yes, well that's.

22 MR. IVETIC: That's the second follow-up.

23 JUDGE ORIE: Okay. Let's first ask the second one: Did the BH

24 command, UNPROFOR BH command, foresee that this likely would be the

25 result of the bombing they would undertake?

Page 10689

1 THE WITNESS: [Interpretation] We did foresee that this might

2 yield a risk for UN personnel in the territory of the Serbs. However, we

3 deliberately close to do the air strikes anyway because doing nothing,

4 not sanctioning violations of the treaties also wasn't an option. So we

5 consciously took that risk.

6 JUDGE ORIE: If you don't mind to interrupt you there, I think

7 the question by Mr. Ivetic was not whether you had foreseen that this

8 could create a risk but whether you foresaw that you would -- there was a

9 likelihood that you lose your peacekeeping relationship with the

10 Bosnian Serb Army and that it would bring you close to being an ally, and

11 that the --

12 MR. IVETIC: The confusion of the --

13 JUDGE ORIE: Yes, the confusion of your role as self-defence

14 against enforcement. That was the question. Whether that was foreseen

15 as a likely result of bombing.

16 THE WITNESS: [Interpretation] Well, I can't look in

17 General Smith's mind, but that the Serbs would interpret this as our

18 choice for one or the other party, I don't think that we foresaw that.

19 JUDGE ORIE: Mr. Ivetic, I am looking at the clock.

20 MR. IVETIC: I suggest we take the break now so I can try and get

21 this video sorted out and also have time for Mr. Vanderpuye's redirect.

22 JUDGE ORIE: By the way the last few lines, as far as the volume

23 on the English channel, were different, so -- well, at least it was for

24 me but I see it's my headphones.

25 We will first invite the witness to follow the usher and take a

Page 10692

1 the witnesses but probably we will try to do our best to fit in.

2 JUDGE ORIE: Yes, and I take it that appropriate measures will be

3 taken so that Mr. Mladic will not be without food, perhaps, because if we

4 are sitting until 7.00 or 8.00 that of course changes the situation.

5 MR. LUKIC: Thank you, Your Honour.

6 JUDGE ORIE: Therefore the UNDU should be properly informed.

7 [The witness takes the stand]

8 JUDGE ORIE: Mr. Ivetic you may further proceed.

9 MR. IVETIC: Thank you, Your Honour. I propose to show a segment

10 of the video 1D00607. For the record it's the segment going from 1

11 minute and 48 seconds to 9 minutes and 48 seconds. On the transcript of

12 the document in e-court, on the English, the part starts with the

13 beginning of the fourth paragraph on the first page, on the B/C/S,

14 I presume it is also that part which is "Firstly, if you know the main

15 serious facts for us is the following." And I propose we play it through

16 twice per procedure in this courtroom and then I'll have some follow-up

17 questions. Here is the first playing.

18 [Video-clip played]

19 MR. IVETIC: I apologise, we don't seem to have audio, at least

20 I don't.

21 [Video-clip played]

22 JUDGE ORIE: I don't have audio.

23 MR. IVETIC: I don't know what to do to get audio.

24 JUDGE FLUEGGE: Could it be that --

25 [Video-clip played]

Page 10693

1 "Firstly, if you know the main serious facts for us is following.

2 This is a material, maybe one portion of whole material of UN specialist

3 about the shelling. This is a -- such report with -- stated on French

4 language but with a very strange conclusion. This is a conclusion

5 include idea about this shelling was from Serbian side, I mean

6 Bosnian Serbs. This is a small picture which explained angle on the

7 street, Marshal Tito, and angle which was between ground and shell,

8 mortar shell. It's very important for us. I will explain it following

9 afterwards. This is a copy of photo pictures of this place. This is the

10 street. This is a place where is exploded from the shell. This is very

11 important for us, picture. As you can see, this is a direction of fire.

12 This is place of explosion. And in accordance with investigation,

13 direction of fire was 176 degrees, or in accordance with French custom,

14 2976 mils. Really, this is a south-east area. It's very important for

15 us also. This is a picture about -- it's very interesting this material

16 of Bosnian police. I mean, government Bosnian police about angle between

17 ground and shell. As you can see, 70 degrees. And the last paper is --

18 this is small slice of copy from map. This is my idea which I can

19 explain all this paper.

20 "In accordance with this material, I believe that specialist

21 which was participated in the investigation was very professional and

22 honest people. As before, in accordance once again with this official

23 investigation and material we have any picture. It's symbolic, you know.

24 This is Sarajevo. This is a confrontation line, green. This is a two

25 building and place where is explodes this shelling. In accordance with

Page 10694

1 this material, direction of fire was 100 -- 106 degrees. In accordance

2 with another material it's once again very interesting question why in UN

3 we have two different material of investigation but no different and one

4 conclusion. But in accordance with another material of investigation,

5 they set about another angle. About first. In accord -- once again, we

6 know what was used, and so 120-millimetres mortar shell. It's really

7 former Yugoslavian weapon and before it was Soviet system. I know it

8 very well because I am field commander, like a professional soldier.

9 Many times I participated in real practical shelling and manage them, I

10 mean my artillery officers. In accordance with main documents for this

11 system, this is a table with whole data about characteristics of the

12 system. We can see that --"

13 MR. VANDERPUYE: If I may interject.

14 JUDGE ORIE: Could we stop it for a second. Mr. Vanderpuye,

15 apparently it's so urgent that you stop it.

16 MR. VANDERPUYE: Yes, I have an objection to this particular line

17 of questioning, this particular video. It seems to me in the

18 circumstances that what we have here is a person that's effectively

19 testifying about information that they received concerning investigation

20 of the shelling incidents which Mr. Ivetic is inquiring about. It's not

21 clear yet what the question will be to the witness but I expect it will

22 relate to this, what appears to be expert evidence, which is not yet been

23 put before the Chamber according to the process that is defined in the

24 rules, and it also seems to me in the circumstances that it would be

25 inappropriate to the extent that this witness hasn't been qualified as an

Page 10695

1 expert to respond to this.

2 JUDGE ORIE: We do not know. Perhaps the question will be about

3 the age of Mr. Demurenko is. I do not know what the question will be.

4 I think we all agree that this is expert evidence. I put this clearly on

5 the table because at least what Mr. Demurenko tells us on the video,

6 because there seems to be a great sensitivity with Defence about what is

7 expert evidence "yes" or "no." I have no problem in listening to it at

8 this moment. But of course whether we would accept any conclusions and

9 whether we want to be provided with every material that is presented by

10 this witness and why it should not be verified by someone who qualifies

11 as an expert of course is a totally different matter. Mr. Ivetic,

12 I suggest that we just go on and listen to it. Let's do so, and we are

13 fully aware of your concerns you've expressed Mr. Vanderpuye.

14 Please proceed, Mr. Ivetic.

15 [Video-clip played]

16 "For the system normally used six standard charges. And in

17 accordance with this angle, 70 degrees, and this is a direction, 176, we

18 can after comparison with the standard data see on following map. First

19 explosion it could be in accordance with this, once again, this degrees

20 and this degrees. In this area 900 metres, next this area, this is a

21 1400, next one 2000, really this is on confrontation line. Theoretically

22 it could be from Serbian, theoretically. I will once again explain it.

23 And next three of the 2700, 3000, and the last church they can use for

24 3600.

25 "Today, personally, with my special -- not special, very small

Page 10696

1 investigation group including artillery officers, we was on this place.

2 This place, this and this and this. Really by my foot. And I can

3 affirm, absolutely without or beyond any doubts, this is place

4 unacceptable or unsuitable for firing position mortar shell. No

5 perspective stay on this position and shell on this area. And therefore

6 conclusion of material of investigation was wrong.

7 "Now I said only about terrain where is located Serbian troops

8 and special without my proposals about his area. This is not my job. I

9 am soldier. I am colonel. And this is a business for special group,

10 like maybe for this group necessary include criminal prosecutors, members

11 of court marshal, I don't know, maybe it's a ballistics personnel and so

12 on and so on. But really for us it's necessary understand it that it was

13 wrong.

14 "About another direction. This is a distance between place of

15 explosion and place of fire position 2100 metres. Same. I was here

16 today absolutely no perspective locate firing battery or platoon or even

17 one mortar for this area. Because this is a really rock slope and

18 forest. And no perspective fired from this position. I can affirm it

19 and I will have today photo picture about each of these places."

20 MR. IVETIC:

21 Q. Okay, now, sir, first of all, do you recognise the individual on

22 the screen as being Colonel Demurenko who was the Chief of Staff of

23 Sector Sarajevo in Sarajevo?

24 A. I really wouldn't know any more. I met him maybe once or twice

25 but so long ago that I don't recognise him but I have no reason to doubt

Page 10697

1 it.

2 Q. And in relation to the technique that he has described that he

3 employed to determine a potential fire locations of the mortar as a

4 person trained in the use of mortars, does it make sense to you as a

5 technique that a trained officer would use?

6 JUDGE ORIE: Mr. Vanderpuye.

7 MR. VANDERPUYE: This is where I thought Mr. Ivetic was going

8 with the question, and I don't think it's an appropriate question for

9 this witness.

10 JUDGE ORIE: Let's first establish whether the witness thinks

11 he's qualified to give a judgement on the solidity of the methods

12 apparently used by Mr. Demurenko.

13 THE WITNESS: [Interpretation] I can't give you a definitive

14 conclusion but I might make a number of remarks. At any rate, a number

15 of comments which lead me to the conclusion that I'm not yet convinced by

16 his argumentation. So let me tell you why. If the direction is known

17 from where the shot was fired, then theoretically at any point on the

18 line within the maximum reach of that specific mortar, the position of

19 impact might have been because the scope, the range, of a mortar is

20 determined partly, on the one hand, by the charge affixed to it and

21 secondly by the angle under which the firing takes place, so there is an

22 indefinite number of places that it could have been fired from. As

23 I seem to understand somewhat from the argumentation of the colonel, you

24 can be a little more precise once you know the angle of impact and they

25 speak of 70 degrees as an angle. I'm not that conversant with that, but

Page 10698

1 I would be curious to know how reliable within what sort of band width

2 that 70 degrees might have been determined. Could it have been 60 or 80

3 degrees? It raises some doubt vis-a-vis this whole story.

4 JUDGE ORIE: Do I understand your testimony that in itself

5 efforts to define where a shell comes from on the basis of angle of

6 descent and the direction from where it comes, that that is in itself not

7 a wrong approach to try to find further data about the origin of the

8 shell? Is that, in short, summarised what -- but that you need details

9 to draw any conclusions?

10 THE WITNESS: [Interpretation] Yes. By itself, the approach where

11 you know the direction and also the angle, one might draw a conclusion

12 from that about the possible position from where it was fired in the

13 first place.

14 JUDGE ORIE: Next question, yes, Mr. Vanderpuye, we have seen

15 here several times that persons who had some knowledge of mortars have

16 testified about even not always called as experts. I would suggest

17 Mr. Ivetic puts his next question because he has only three minutes left

18 and you will get your 15 minutes after that.

19 MR. VANDERPUYE: With respect to Mr. Ivetic 's time, Mr.

20 President, I must tell you that I don't plan to conduct any redirect

21 examination. But with respect to this particular issue, I think it is

22 important because Mr. Demurenko has testified in another proceeding and

23 he's been challenged specifically on the methods that he's used that

24 Mr. Ivetic is now showing this witness and he's made certain admissions

25 with respect to the manner in which he conducted those investigations

Page 10699

1 which are not known to the witness and not depicted in the evidence now

2 before the Chamber.

3 JUDGE ORIE: Of course the Chamber was not aware of that. What

4 I would suggest, then, is that Mr. Ivetic, who wants to rely on

5 Mr. Demurenko, agrees with you perhaps from the bar table to provide to

6 the Chamber relevant portions of the evidence Mr. Demurenko has given.

7 This is at this moment just a video, and I have not expressed myself on

8 behalf of the Chamber in any other way that I did not disallow the

9 Defence to present it to us for us to look at at this moment. That is as

10 far as it goes now. Yes.

11 JUDGE MOLOTO: Just for the record I don't see this as a witness.

12 I see this as a video playing for us, so this person is not being called

13 before this Court, this Chamber, to testify. He's not a witness.

14 JUDGE ORIE: That underlines I think my previous observation.

15 Please proceed, Mr. Ivetic, and you have a bit more time.

16 MR. IVETIC: Thank you.

17 Q. Sir, based upon the briefing that you received from the chief

18 UNMO in relation to the report that was carried out by BH -- under the

19 auspices of BH command into the Markale incident, do you know if they

20 employed range tables and/or visited sites of potential firing positions

21 once they knew the direction and the angle of descent of the mortar round

22 that landed at Markale?

23 A. No. No tables were used to determine the possible mortar

24 positions, and in my view that is actually almost not doable unless you

25 know a hundred per cent accurately what the angle of descent was, but if

Page 10700

1 you don't then the number of possible firing positions is almost endless,

2 as long as they are along the line of the firing direction, and the

3 number of positions at which you might place a mortar I don't think there

4 are hardly any restrictions to that unless it is a very uneven, very

5 forested position or a very steep slope, but any other position would do.

6 MR. IVETIC: And I'd like to turn to P797 which is an exhibit in

7 this case and it is the final report issued by General Smith's office

8 signed by Colonel Baxter, the MA to the BH commander.

9 JUDGE ORIE: Mr. Ivetic, may I have one question before you put

10 the -- -

11 MR. IVETIC: Yes, absolutely.

12 JUDGE ORIE: Have we seen -- we saw Mr. Demurenko with a lot of

13 paperwork. Is all of that in evidence at this -- before us, apart from

14 what he draws at that moment on his board?

15 MR. IVETIC: I believe everything except for -- it's P797.

16 I think that's a 22-page document and I think the majority of that is

17 there except for the book that he had from 1970 which was the --

18 JUDGE ORIE: Tables.

19 MR. IVETIC: -- tables. Correct.

20 JUDGE ORIE: Firing table is not and the one document with --

21 from the local police, from the BH police?

22 MR. IVETIC: That one I'm note sure whether it's contained within

23 P797 or not. I honestly don't recall.

24 JUDGE ORIE: I'll have a look at that.

25 Please proceed.

Page 10701

1 MR. IVETIC: Thank you. If we can turn P797, which is the --

2 listed as the report. Do you see on the first page this appears to be

3 the final and comprehensive report of the Sarajevo mortar incident of 28

4 August 1995. I would like to turn to Annex B of this document, which is

5 at page 9 of 21 in the English and page 9 of 24 in the B/C/S.

6 Q. And at the top we see that this is an UNMO daily sit-rep, and it

7 says released by Lieutenant-Colonel Oien, the SMO. Does that refresh

8 your recollection that this is the chief UNMO officer that verbally

9 briefed you and other members of the BH command as to the results of the

10 preliminary results of the investigation that they performed?

11 A. The name doesn't really ring a bell or spur my recollection. But

12 SMO stands for senior military observer, as far as I know, so that must

13 have been the rank or position. The name is not familiar to me.

14 Q. If we look at item 1 on this document it appears to reference the

15 Markale attack and says that the final report will follow this daily

16 sit-rep. Now, I'd like to turn to the next page in both languages and

17 the bottom of the page in English. And we will see, first of all, that

18 the middle column is always for origin, if we look on the English, and

19 the bottom entry has been marked and the middle column says unknown. Do

20 you recall, sir, at the time of your briefing of the preliminary results,

21 that the UNMO finding was that the source of the shells was unknown?

22 Does that comport with your recollection?

23 A. Yes. The source or the location from which the mortars were

24 fired could not be ascertained until after the investigation had been

25 carried out so this is unlikely to have been on the 28th itself.

Page 10702

1 Q. And if we turn to page 15 in English and page 16 in B/C/S, we

2 will see the updated situation report dated the 29th of August, and if we

3 look at item 1, it lists that the full report of the central city

4 shelling is below, and if we turn to page 17 in English and page 19 in

5 B/C/S, under subsection (b), I think we will find the full final report

6 of the Markale market shooting. Would you agree with me, sir, having a

7 glance at what is item number (b) on this page that is now before us in

8 e-court in English?

9 A. Ah, I see the text before me. To ask whether I agree to be able

10 to answer that question, I would have to read the text. So if you'll

11 indulge me.

12 Q. Sir, my question was does this appear to be relating to the

13 Markale incident. This was my -- I thought what my question was.

14 A. Oh, yes. Well, then I misunderstood you. I'm sorry. This is

15 undoubtedly to do with the aforementioned incident.

16 Q. And the conclusions are on the second page, the next page. If we

17 could turn to that page, sir, I would direct your attention to -- that

18 would be I guess page 16 in both languages. And do you see there, sir,

19 the comment section just before crater analysis. It says, "Comment,

20 UNMOs are unable to confirm which WF fired the rounds." And, sir, the

21 first question I have for you: Is "WF" an abbreviation for warring

22 faction?

23 A. That sounds very plausible to me.

24 Q. And, sir, if WF stands for warring factions it would appear that

25 the UNMOs were unable to confirm which warring faction fired the round.

Page 10703

1 Does that comport to your recollection of what you were orally told in

2 the briefing by the chief UNMO in the presence of General Smith and the

3 other members of the BH command that you previously identified?

4 A. The conclusion that we drew there was that we really ruled out

5 that the mortar had been fired from Bosnian territory, because that would

6 have been such a distance that the noise, the bangs, would have been

7 heard in the city.

8 Q. Thank you for that, sir. I think you've testified to that in

9 that paragraph of your statement. My question was: Is this conclusion

10 from the UNMOs the same conclusion that you were orally advised of in the

11 briefing by the chief UNMO in the presence of General Smith,

12 Colonel Baxter, Colonel Powers, and the other individuals that you

13 identified in the BH command?

14 A. I would assume so, because I don't know on what grounds, for what

15 arguments we would have to diverge from the conclusions of the UNMOs.

16 I did know -- I do know there were discussions about the possibilities

17 from whence they might have come and I'm not quite sure about the

18 contribution of the UNMO chief and the others who was in that discussion.

19 But reasoning out the facts that had been put forward, we concluded that

20 the mortars had to have been fired from a great distance.

21 JUDGE ORIE: But I think that what Mr. Ivetic is mainly

22 interested to know is that, following up on your last answer, whether the

23 report you received from the chief UNMO, whether that report was

24 different from the conclusions you provisionally had drawn as to the

25 origin of fire being from Serb-held territory rather than from

Page 10704

1 Federation-held territory. Do you have any recollection that you

2 differed?

3 THE WITNESS: [Interpretation] I cannot recall that we took a

4 position that diverged from what the chief UNMO had advised us about.

5 MR. IVETIC: Perhaps just one follow-up, Your Honours, with your

6 leave.

7 Q. Is this conclusion that's in writing here from the UNMO, is that

8 identical to the conclusion that was orally given to you by the chief

9 UNMO as you recall it at the time that you were briefed?

10 JUDGE ORIE: Mr. Vanderpuye?

11 MR. VANDERPUYE: Mr. President, I think the witness has already

12 answered the question a couple of times.

13 JUDGE ORIE: I think he has. Apart from whether it's a

14 conclusion or not written, unable to determine, it's only the conclusion

15 that that person -- so, but the answer -- the question has been asked

16 several times and has been answered. Any other question? I'm looking at

17 the clock, Mr. Ivetic. It's now 17 minutes past 2.00 and we are already

18 working with the indulgence of interpreters.

19 MR. IVETIC: I believe that was my last question for this witness

20 so I was finished.

21 JUDGE ORIE: Mr. Vanderpuye, the situation remains as it was?

22 MR. VANDERPUYE: Yes, Mr. President, it remains the same.

23 JUDGE ORIE: Thank you. Mr. Nicolai, this concludes your

24 testimony. I would like to thank you very much for coming to this

25 courtroom and for having answered all the questions that were put to you