1 Wednesday, 13 December 2006`

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.31 p.m.

5 JUDGE BONOMY: The Chamber will be sitting this afternoon in the

6 absence of Judge Chowhan, who is absent for urgent personal reasons. The

7 other Judges of the Chamber have decided that it's in the interests of

8 justice to do so. The same will be the situation tomorrow. Tomorrow also

9 we will be without Judge Nosworthy, who will quite independently be absent

10 on the ground of urgent personal reasons.

11 Your next witness, Mr. Hannis.

12 MR. HANNIS: Thank you, Your Honour. Our next witness is General

13 Klaus Naumann.

14 [The witness entered court]

15 JUDGE BONOMY: Thank you.

16 Good afternoon, Mr. Naumann.

17 THE WITNESS: [Microphone not activated]

18 JUDGE BONOMY: Could you please make the solemn declaration to

19 speak the truth by reading aloud the document now placed before you.

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

21 whole truth, and nothing but the truth.

22 JUDGE BONOMY: Thank you. Please be seated.

23 We've received a number of documents, including the transcript of

24 your evidence in the previous trial of Slobodan Milosevic. So the Trial

25 Chamber is already fairly well-informed about your evidence; however, you

1 will be examined as a witness who's here as what the Prosecution describe

2 as a live witness. I can't honestly say we've had any dead ones, but

3 we'll in due course be looking at these documents. The extent to which we

4 explore them in court will depend on the way in which the questions are

5 asked but, first of all, to examine you will be on behalf of the

6 Prosecution, Mr. Hannis.

7 Mr. Hannis.

8 MR. HANNIS: Thank you, Your Honours. Before I begin the

9 questions I just want to indicate this witness is being presented as a

10 combination 92 ter and live witness. He does speak to the paragraphs of

11 the indictment noted in the witness notification. For purposes of Rule 92

12 ter, Your Honour, we're proposing both his testimony in Milosevic on the

13 13th and 14th of June, 2002, and the notes and summary of his interview

14 and proofing in June of 1999 and March 2002. And to begin, I would like

15 to hand the witness a hard copy of his trial testimony in Milosevic. For

16 the record, this is Exhibit P2512.

17 WITNESS: KLAUS NAUMANN

18 Examination by Mr. Hannis:

19 Q. Good afternoon, General.

20 A. Good afternoon.

21 Q. Before coming to court today, did you have a chance to review your

22 trial testimony from the Milosevic trial?

23 A. Yes, I had a chance to review it.

24 Q. And in the course of doing that, did you note some corrections

25 that you wanted to make in the transcript?

1 A. Well, there are some typos in it, which we discussed.

2 MR. HANNIS: And if I can hand the witness a hard copy of P2561

3 which is the supplemental information.

4 Q. General, I would ask if you could take a look at that and tell us

5 if you recognise that document.

6 A. I do.

7 Q. And does that contain the changes that you noted with regard to

8 the transcript as well as some additional information you wanted to

9 provide to us regarding your evidence in that transcript?

10 A. These are the changes, and the document reflects properly the

11 additional information.

12 Q. Now, with regard then to your transcript, having made those

13 corrections, are you satisfied and can you attest now to the Court that

14 the transcript as so corrected accurately reflects your evidence and the

15 answers you would give now if asked about the same matters under oath?

16 A. Yes.

17 Q. Thank you. And I have one more document I'd like to show you.

18 This is a hard copy of Exhibit P1767. These are the notes of an interview

19 and proofing notes of you from the 17th of June, 1999, and the 25th and

20 26th of March, 2002, with OTP representatives. Before today, did you have

21 a chance to look over that document?

22 A. Yes, I had a chance.

23 Q. And is -- can you tell us whose signature that is on the bottom

24 right-hand side of each page?

25 A. That's still mine.

1 Q. Okay. And having reviewed those notes, are you satisfied that

2 they are a true and accurate representation of your testimony or the

3 evidence you would give in this case?

4 A. This is an accurate reflection of what I said, yes.

5 Q. And you would give the same answers today if you were asked the

6 same questions regarding those matters?

7 A. Yes, I would.

8 Q. I note in paragraph 36, there is a reference to an attached list

9 of significant Serb and VJ activity. And, General, I should indicate to

10 you that we at the OTP do not currently have a copy of that. I'm aware

11 that that was provided by you at the time, but we've been unable to locate

12 our copy?

13 MR. HANNIS: Your Honours, we're continuing the search, contacting

14 former investigators and Prosecutors, but we do not have that document at

15 the moment.

16 I see Mr. Cepic on his feet, Your Honour.

17 JUDGE BONOMY: Mr. Cepic.

18 MR. CEPIC: [Interpretation] Your Honour, with your leave, it is

19 for these reasons mentioned by my learned friend, Mr. Hannis, it is my

20 humble opinion that this paragraph, paragraph 36, should be redacted,

21 taken out of this exhibit.

22 JUDGE BONOMY: Is that submission based on the absence of the

23 list?

24 MR. CEPIC: Exactly, Your Honour.

25 JUDGE BONOMY: All right. Thank you.

1 Mr. Fila.

2 MR. FILA: [Interpretation] Your Honour, I'm worried by this

3 document, not because I would be concerned about whether Mr. Naumann's

4 thoughts and words are included, but this is what worries me. First of

5 all, it bears the sign of confidentiality; therefore, it should bear a

6 stamp. Second of all, we don't see who drafted the document. There are

7 no signatures there, apart from Mr. Naumann's. The third reason I wanted

8 to state was that since obviously it was not drafted by Mr. Naumann and it

9 wasn't given under oath, it represents an interview, a conversation,

10 between Mr. Naumann and someone else.

11 We see all the paragraphs having headings, subheadings, and

12 conclusions. And if this is to be tendered, I will agree only to the part

13 which refers directly to Mr. Naumann's words and thoughts and whether

14 we -- this is indeed confidential or not and we also need to know who

15 drafted it. There are headings everywhere, all over the place, the role

16 of NATO, for example, paragraphs 29, 35, 40, and everything else that has

17 been said up until now. I am a bit worried about the form of this

18 document. It is rather unusual. I'm not insisting on anything. And I

19 believe Mr. Naumann when he says that he would repeat the same thing now,

20 but in my jurisdiction this would not be an acceptable document.

21 JUDGE BONOMY: I think it's safe to say, Mr. Fila, that in many

22 jurisdictions it wouldn't be seen as an acceptable way in which to present

23 the material. Here, however, the rules are different, and the question is

24 whether a document ought to be before the Trial Chamber in the interests

25 of justice. And unless you can identify something that you think would be

1 contrary to the interests of justice by having this document, it's

2 difficult to see that there would be a basis for excluding. Mr. Cepic has

3 tried to identify one particular reason; and if there are any others, then

4 you should identify them.

5 MR. HANNIS: Your Honour, I understood Mr. Fila to be talking

6 about the notes of interview as a whole --

7 JUDGE BONOMY: Indeed.

8 MR. HANNIS: -- whereas, Mr. Cepic is just referring to --

9 JUDGE BONOMY: Indeed. I understand that.

10 MR. HANNIS: Okay. I'm sorry.

11 MR. FILA: [Interpretation] First of all, I don't know who drafted

12 it. You managed to -- were you able to establish who authored the

13 document. It would be in proper order to inform us who else was there.

14 Second, the headings don't come from Mr. Naumann. I find these things

15 unacceptable whenever there is a heading as of item 1 onwards and

16 specifically items 35 and 40, that's why I object to the entire document.

17 I believe Mr. Naumann though when he says he would repeat the same thing

18 now, but I have objection to the document itself.

19 JUDGE BONOMY: Mr. Naumann, do you consider that these headings

20 accurately reflect the nature of the contents of the paragraphs to which

21 they are headings?

22 THE WITNESS: Your Honour, the headings reflect properly the

23 content of the subparagraphs in the document.

24 JUDGE BONOMY: Thank you.

25 [Trial Chamber confers]

1 JUDGE BONOMY: We shall repel both objections and admit all three

2 documents in their entirety. I hope, Mr. Fila, that the headings to

3 some -- the comment about the headings to some extent reassures you. It

4 is our intention to find out who else was present at the interview in the

5 course of the examination; and as far as Mr. Cepic's objection is

6 concerned, I also can confirm that I was concerned to explore this

7 matter.

8 And it will be explored in the course of the evidence and of

9 course it may affect the weight of what's said, that we don't have the

10 document available. Bearing in mind also that it was cross-examined upon

11 in the previous trial. However, in general, each of the points made by

12 counsel really go to weight, rather than to the admissibility of the

13 document or any part of it.

14 Mr. Hannis.

15 MR. HANNIS: Thank you, Your Honour. I will take up one related

16 matter then.

17 Q. With regard to your notes of interview and proofing, Exhibit

18 P1767, who, General, if you know, was involved in preparing this document?

19 A. This was done by Mr. Ryneveld who was then doing the job which you

20 had in this case.

21 Q. That's correct. Dirk Ryneveld from the Office of the Prosecution

22 and yourself?

23 A. Yes.

24 Q. Anyone else?

25 A. No.

1 Q. Now, General, I would ask you to state your name for the record,

2 please.

3 A. My name is Klaus Naumann.

4 Q. And I understand you are retired from the military. You were a

5 professional soldier in the German army from 1958 until when?

6 A. I served in the German armed forces from October 1958 to the 31st

7 of May, 1999.

8 Q. And what kind of work do you currently do, sir?

9 A. Well, I live up to the many, what I should say non-paid

10 commitments which you have to do after your retirement. One of them, for

11 instance, is to be a member of the supervisory board of the Konrad

12 Adenauer Organisation in Germany, and I could list a couple more of them.

13 And I assumed more recently the chairmanship of the supervisory board of a

14 mid-sized German company called OWR, which is focussed on the equipment of

15 fire brigades and armed forces in the field of NBC defence.

16 Q. And NBC is?

17 A. Nuclear, biological, and chemical defence.

18 Q. Thank you. Could you give the Court, briefly, a background of

19 your career in the military. We don't have that in your notes?

20 A. I joined in 1958, changing my initial ideas to study archaeology

21 under the impressions of the Hungarian uprise in 1956 and became a regular

22 military officer. It began with two years education at the German armed

23 forces war academy, I think would be the proper English translation, and

24 the artillery school. I was in the artillery, then I served in the

25 self-propelled artillery instruction battalion 51 in Germany in various

1 functions, starting from a forward observer to the battalion's fire

2 direction officer.

3 I changed from there to Wetzlar in Hesse to command a 155 battery,

4 self-propelled. From there I was transferred to Duelmen, which I would

5 say is a fortified crossroad somewhere south of Muenster in Germany. And

6 there I served as a regimental fire direction officer in the 7th artillery

7 regiment. From there I was selected to be a student at the general staff

8 and command college for two and a half years in Hamburg. After completion

9 of my course, I had my first assignment in the Ministry of Defence in the

10 long-term planning section before I was picked by the vice Chief of

11 Defence Staff to be his personal staff officer for two years.

12 From there I went on to serve as the G3, which is more or less the

13 Chief of Staff of an armoured brigade in Koblenz, then I commanded a

14 self-propelled artillery battalion, 155, in Hamburg in the northern part

15 of Hesse. After that, I returned to the Ministry of Defence to be

16 responsible for the personnel management of the general staff officers of

17 the German army, then I served in Brussels as a full colonel then in the

18 "polmil" section of the German military representative to NATO. That was

19 from 1981 to 1983. Thereafter, I attended the course at the Royal College

20 of Defence Studies in London. And after this one year, which I still

21 regard as one of the most fascinating experiences in my military life, I

22 was selected to command a mechanised infantry brigade, mechanised infantry

23 brigade 30 garrisoned in Ellwangen in Baden-Wurttenberg.

24 After two years in command, I had to return to the Ministry of

25 Defence under promotion to the rank of brigadier-general and was major

1 responsible for the long-term planning of the German armed forces. This I

2 did until 1998, and then I was appointed to be the -- what the Americans

3 would call a J5, the assistant Chief of Staff for military policy,

4 operations, arms control, nuclear strategy, in the Ministry of Defence in

5 Bonn. Thereafter, I was picked to be the commanding general of the 1st

6 German Corps in Muenster; and following that, I became Chief of Defence

7 Staff of Germany starting this four-star assignment in October 1991 and

8 ending it on the 6th of February 1996.

9 Particularly fascinating period, since in that time I saw the

10 dissolution of the east German armed forces, re-unification of my country,

11 and the first out-of-area deployment of the German armed forces to

12 Somalia, Cambodia, and then to Yugoslavia -- or former Yugoslavia I should

13 correctly say. And in February 1996, I assumed my last military

14 assignment as chairman of the NATO military committee. The job of the

15 chairman is described in the document P1767.

16 Q. Is there any higher military position in NATO than the position of

17 chairman?

18 A. No.

19 Q. And you held that position from when?

20 A. I held it from 14th of February, 1996, until 6th of May, 1999.

21 Q. Is that normally a set period of time, that position?

22 A. It is a period of -- normally, it's a period of three years; and

23 as I discussed earlier, I had been asked to stay a little longer for two

24 reasons. First of all, we had in front of us the preparation of the 50th

25 anniversary summit of NATO in Washington in April 1999 with inter alia a

1 new strategic concept was about to be agreed by the heads of states. And

2 then of course the ongoing crisis in Yugoslavia and in Kosovo led by

3 superiors -- my political superiors at NATO to the conclusion that I

4 should stay on a little longer.

5 Q. And how is one chosen for that position? Who picks the chairman?

6 A. Well, it's a -- as far as I know, it's the only four-star

7 appointment for which you are elected; but in sharp contrast to political

8 life, there is no campaign preceding that. Your colleagues -- well, the

9 chiefs of the defence staff of the then-16 NATO nations look at their

10 colleagues, discuss among themselves, and suddenly someone comes and says,

11 How would you feel? Could you be the next chairman? In my case, I was

12 approached by the British and the American Chief of Defence Staff in 1994.

13 I then went back to ask my government whether they might be

14 willing to agree to that, and this had to be a decision to be taken at the

15 highest political level, say in Germany at the chancellor level. And when

16 Chancellor Kohl agreed to the nomination, I had to throw my gauntlet into

17 the bull pit and was selected I think in October 1994.

18 Q. And those who vote are your fellow military --

19 A. These were the chiefs of defence staff --

20 Q. -- counterpart?

21 A. -- of the 16 nations.

22 Q. Now, General, we know in 1998 or 1999 NATO became involved or

23 engaged in Kosovo. How did that first come about? What brought Kosovo to

24 NATO's attention?

25 A. Well, a defensive alliance such as NATO has the duty and the

1 obligation to look at the situation in its -- I should say strategic

2 perimeter. The former Yugoslavia was not too far away from NATO

3 territory, and after all I think NATO's territory was affected by the

4 tragedy in Yugoslavia since we had hundreds of thousands of refugees in

5 our country.

6 As I remember, for instance, in Germany we had at the peak some

7 400.000 refugees. And when we saw the unrest which started in early 1998,

8 Kosovo was put on the agenda of the foreign ministers' meeting in

9 Luxembourg in April 1998. I think that was the first time NATO really

10 discussed the situation in Kosovo at a political level. Before that we

11 had looked at situation briefings, but this was nothing but a reflection

12 of what was going on based on the information which was available to us.

13 Q. And were you and NATO aware then in April of 1998 of the United

14 Nations Security Council Resolution Number 1160 that had been passed on

15 the 31st of March concerning Kosovo?

16 A. Of course we followed the events of -- in the United Nations as

17 closely as we could, and of course we took note of the resolution.

18 Q. And likewise, the subsequent UN Security Council Resolution in

19 September the 23rd, 1998?

20 A. Yes.

21 MR. HANNIS: And, Your Honours, those are P455 and 456 which are

22 already in evidence by order of the Court.

23 Q. What actions did NATO take in 1998 concerning this problem?

24 A. Well, at the foreign ministers' meeting, NATO did not much more

25 than to express serious and to indicate to the outside world that a

1 continuation of the situation in Kosovo and a further escalation could

2 have been an impact on NATO's security.

3 Q. From your written evidence in your prior testimony, General, we

4 know that you participated in three separate visits to Belgrade in late

5 1998 and early 1999 to meet with Mr. Milosevic about Kosovo. And that

6 first trip was the 15th of October with General Clark and the NATO

7 Secretary-General Mr. Javier Solana. First of all, General Clark, what

8 was his position vis-a-vis your position?

9 A. General Clark was the Supreme Allied Commander Europe. In the

10 hierarchy of NATO, he is -- well, he is a little bit below the Chairman of

11 The Military Committee, also there is no direct line of command. The

12 chain of command runs from the Secretary-general to the Supreme Allied

13 Commander Europe and Atlantic. Also, all political decisions in the NATO

14 council, which is preceded by the -- which is presided by the

15 secretary-general, are translated by the military committee into guidance

16 into supreme allied commanders Europe and Atlantic.

17 Q. Okay.

18 A. But I should say the chairman is not in the chain of command.

19 It's one of the peculiars in an organisation such as NATO.

20 Q. What was the purpose of this first meeting on October 15th?

21 A. Well, it -- it was a direct consequence of Mr. Holbrooke's

22 negotiations with the late Mr. Milosevic. Holbrooke, as you may remember,

23 came back from these meetings with Milosevic in, I think it was on the

24 12th and 13th of October, 1998. He reported on certain progress he had

25 made in the political arena, and he asked NATO to agree on the so-called

1 activation order, the ACTORD.

2 Q. And what is an ACTORD?

3 A. The activation order means that from this moment on -- when the

4 act is agreed, the secretary-general of NATO is entitled to use the forces

5 which are described in the activation order without asking the nations for

6 further political agreement. So at this moment he has the key to use

7 force in -- it's a delegation of the NATO nations to the

8 secretary-general.

9 Q. And was anyone else with you, other than Clark and Solana?

10 A. Yeah, Mr. Michael Durkee, the -- I think the American's call it

11 the POLA, the Political Advisor of Supreme Allied Commander Europe.

12 Q. And he worked for General Clark?

13 A. He worked for General Clark, but please don't ask my whether he is

14 working on a NATO bullet or an American national bullet. I simply don't

15 know.

16 Q. Anyone else?

17 A. We had -- of course, we had a couple of our collaborators with us,

18 but they were not part of the discussions which took place with Mr.

19 Milosevic.

20 Q. You tell us in your -- your written evidence at paragraph 4 that

21 General Perisic and Mr. Milutinovic were present with Mr. Milosevic during

22 that four- or five-hour meeting on the 15th of October. Were both of them

23 present when you, Clark, and Solana warned Mr. Milosevic about the use of

24 disproportionate force against ethnic Albanians and that it had to stop in

25 Kosovo?

1 A. Yes. I think they were -- they both were present.

2 Q. Were those conversations in English, or were they being

3 translated?

4 A. The entire conversation took place in English.

5 Q. Did General Perisic speak English?

6 A. Well, I don't know. I suspect he was able to understand English.

7 Q. Okay.

8 A. But he did not speak -- yes. He spoke English, since in -- at a

9 later meeting we were sitting in his office and he spoke English.

10 Q. How about Mr. Milutinovic?

11 A. Well, I -- as far as I recall, Mr. Milutinovic speaks fluent

12 English.

13 Q. Okay. You say in these discussions that you, NATO

14 representatives, presented some evidence to Mr. Milosevic about what NATO

15 considered excess deployment of MUP or police and VJ forces in Kosovo.

16 And in your transcript at page 6969 beginning at line 22, you mention that

17 the numbers of police units and the numbers of VJ units. In that

18 particular paragraph, does "numbers" refer to how many police officers and

19 soldiers there were, or are you referring to unit identifiers?

20 A. We -- I think we covered in this discussion both. We covered unit

21 identifiers; and when we spoke of total personnel strength, we spoke of

22 deployed police officers or deployed forces.

23 Q. Okay. All right.

24 MR. HANNIS: Could we show the witness Exhibit P454 in e-court.

25 Q. Before we move on to the next meeting, General, I'd like to show

1 you a document and see if you can tell us what that is. It may take a

2 moment to come up on your screen. Now, I see that appears to be a French

3 version.

4 A. No problem, I can read it.

5 MR. HANNIS: Can we go to the next page, perhaps. And one more --

6 I thought I had an English version, Your Honour.

7 Q. Well, I apologise, General. I think I've identified the wrong

8 number. I'll try and locate the English later. Oh, okay. Now I see

9 something. I don't know if you've seen this document before or not.

10 Would you like us to scroll down to the document of the page?

11 A. I've seen this document before, but not in the court proceedings.

12 Q. Okay. Can you tell us what it is.

13 A. It's a verification agreement which General Clark and, I believe,

14 General Perisic or the Minister of Defence of the former Yugoslav -- of

15 the former Yugoslavia had worked out in -- more or less in -- in the

16 execution of the Holbrooke agreement.

17 Q. Okay. And was this something that was discussed with or arrived

18 at during that October 15th visit?

19 A. It was not discussed in detail, no.

20 Q. Okay. Let me then move on to the next meeting. You returned to

21 Belgrade on the 24th and 25th of October, 1998, according to your prior

22 evidence?

23 A. Yes.

24 Q. What happened to cause you to go back so soon?

25 A. Well, the NATO council had decided to send us back to more or less

1 deliver a last warning to the Yugoslav leadership, to respond to the

2 requests of NATO to reduce the excess police and military force in Kosovo,

3 and to explain, if I may say so, to Mr. Milosevic and his team which

4 authorities NATO was given with the activation order and what this could

5 mean for Yugoslavia.

6 Q. Okay. And I guess you may have answered my next question already.

7 Why were you and Clark chosen for this job?

8 A. There was a long discussion in NATO about this. The NATO council

9 came to the conclusion that it might be -- it might add additional

10 credibility to the, if I may say so, the ultimatum which NATO was about to

11 deliver if two military officers came and explained to the Yugoslav

12 leadership what the activation order could mean.

13 Q. And can you tell us in simple terms, I guess, what was the nature

14 of the ultimatum that you and Clark were going to give to Mr. Milosevic?

15 A. Following the habits of military, we used, I should say,

16 straightforward language and told Mr. Milosevic that within 48 hours NATO

17 could bomb the former Yugoslav republic, unless we saw a tangible and

18 verifiable reduction of the deployment of additional forces to Kosovo and

19 an end to hostilities.

20 Q. Did you discuss with him the existence of an activation order and

21 what that meant?

22 A. Well, he -- Mr. Milosevic was fully aware that the activation

23 order existed. I think he was aware when we met on the 15th of October

24 that the activation order was agreed. And I also believe, at least

25 according to what Mr. Solana told me, in debriefing me on his bilateral

1 with Mr. Milosevic, at which I was not present and Clark was not present,

2 he explained to Mr. Milosevic what the activation order means and what the

3 consequence of noncompliance could be.

4 Q. In your transcript at page 6977, beginning at line 9, you tell us

5 that you and Clark arrived in Belgrade. You met with Ambassador Miles

6 and Shaun Byrnes from US-KDOM, and then you met to a meeting at Bijeli

7 Dvori, the white palace. Who else was there from the NATO side? Was Mike

8 Durkee there?

9 A. Mike Durkee was there as well and some of my collaborators. In my

10 case, I was accompanied by my military assistant Colonel Bischof [phoen].

11 Q. You mention on page 6993 at line 7 of your transcript and

12 paragraph 26 of your interview notes that at this meeting Mr. Sainovic was

13 introduced to you as "the man responsible for Kosovo." Do you recall who

14 introduced him to you in that capacity? Who said that about him?

15 A. To the best of my recollection, it was Mr. Milosevic himself who

16 introduced him in that way.

17 Q. Was that said in English?

18 A. Yes.

19 Q. Was this the first time you had met Mr. Sainovic?

20 A. Yes.

21 Q. So he had not been at the 15th October meeting, as far as you

22 recall?

23 A. As far as I recall, not.

24 Q. All right. At paragraphs 12 and 13 of your notes of your OTP

25 interview, you -- you tell how you as a group explained to Mr. Milosevic

1 that the only way to avoid NATO intervention was to reduce the numbers of

2 police and VJ in Kosovo and to stop the use of disproportionate force

3 versus the civilian population. And you told him he only had 48 hours in

4 which to accomplish that. Who had set the deadline of 48 hours, and what

5 did that relate to?

6 A. The deadline of 48 hours was set by the NATO council. And, of

7 course, if you try to understand the situation as it existed then, the

8 NATO nations were running a little bit out of patience. They had

9 threatened again and again that they might use force in order to enforce

10 an end of hostilities, but to no -- there was no result. And so they

11 eventually decided, Okay, we will issue an ultimatum, and that was our

12 task to deliver this message.

13 Q. In your written evidence at paragraph 18 and in your transcript at

14 page 6973 and 697 -- well, 6973 at line 2 and on, you describe the efforts

15 that you all went to to try and hammer out some sort of agreement.

16 MR. HANNIS: Can we show the witness Exhibit P395. This is

17 already in evidence, Your Honour. And in connection with the transcript,

18 our Exhibit 395 is the same as Milosevic Exhibit 94, tab 3, which is

19 referred to at page 6985, line 14 and 15.

20 Q. So after spending the night, basically, you went back with the

21 next morning and had an agreement to be signed; correct?

22 A. Yes, that's correct.

23 Q. Do you recognise that document that's on the screen now, General?

24 A. Yeah. I recognise this document very well, yes.

25 Q. And is your name on that document?

1 MR. HANNIS: If we can scroll down and look at the rest of the

2 signatures.

3 THE WITNESS: Yeah. My name is down on the left bottom side.

4 MR. HANNIS:

5 Q. Did you see all the other people who signed at that time?

6 A. Yes.

7 Q. Whose signature is that with no signature block?

8 A. That is the signature of Mr. Milosevic.

9 Q. And you describe in your evidence --

10 A. I think I described how it came about and why we insisted on him

11 to sign this document.

12 Q. That is my question. Why were you and General Clark so insistent

13 that he be a signer?

14 A. Well, based on all we had learned in our involvement in this

15 Kosovo crisis, and Clark of course earlier on in the -- during his

16 involvement in the Dayton negotiations, we knew that -- well, our

17 assessment was that an agreement had only a chance to be executed and

18 implemented if it was personally accepted by Mr. Milosevic. And for that

19 reason, we insisted that he should sign it.

20 MR. HANNIS: Could we show the witness next Exhibit P394 --

21 JUDGE BONOMY: If you're moving to something else --

22 MR. HANNIS: Yes.

23 JUDGE BONOMY: -- there's a couple of things I would like to

24 clarify about this.

25 MR. HANNIS: Certainly.

1 JUDGE BONOMY: Going back to the 48-hour question, is 48 hours the

2 period it would take to actually activate the ACTORD or does it relate to

3 something else?

4 THE WITNESS: No. The reaction time, if you mean this, Your

5 Honour, the reaction time would have been shorter than 48 hours.

6 JUDGE BONOMY: So what was the 48-hour period?

7 THE WITNESS: It -- we had seen the number of forces which were in

8 the province of Kosovo, and we had made let's say an estimate how long it

9 would take to restore these forces, since we didn't want to impose

10 anything on the Yugoslav side which was not possible to be executed. And

11 so we said 48 hours should be sufficient to redeploy these forces from

12 Kosovo to Serbia proper; and for this purpose, the 48 hours had been

13 established.

14 JUDGE BONOMY: And was that period mentioned at the meeting on the

15 24th of October or had it arisen on the 15th of October?

16 THE WITNESS: No. This was the first time mentioned on the 24th

17 of October.

18 JUDGE BONOMY: It's just the way that it's phrased here it says

19 "You have had 48 hours to deliver," which doesn't sound as though it's an

20 accurate reflection of what had happened. It's sounds as if you're saying

21 you have 48 hours to deliver.

22 THE WITNESS: We said at the meeting on the 24th, Your Honour, you

23 have 48 hours to deliver.

24 JUDGE BONOMY: Now, in paragraph 15 which follows that paragraph

25 12, you say that you told Milosevic of the contents of a report about the

1 shelling of a village with artillery. Can you recollect which village

2 that was?

3 THE WITNESS: No, Your Honour. I can't recollect. I know that I

4 got the information on the flight to Belgrade, and it was corroborated

5 NATO intelligence at the time. And for that reason, I mentioned it as an

6 example for disproportionate response.

7 JUDGE BONOMY: That sort of information would come to you from

8 which sources? I don't require you to be specific. It's just the nature

9 of the sources I'm anxious to establish.

10 THE WITNESS: I wouldn't be able to tell you the exact source, but

11 NATO depends in its intelligence on the information provided by the member

12 nations. A member nation reports without telling us whether this is -- us

13 is NATO, without telling NATO whether this is the result of human

14 intelligence or technical intelligence or overhead imagery. But the habit

15 is also that we never believe in one nation reporting alone. We then ask

16 others whether they have similar information. Only when we have the

17 corroboration by another nation, we accept it as a NATO-agreed

18 intelligence.

19 JUDGE BONOMY: Would evidence of the shelling of a village include

20 evidence from human sources who had been passing their personal experience

21 to NATO members, and would it also include overhead imagery?

22 THE WITNESS: If overhead imagery would have been able to detect

23 the shelling of a village, it would include it.

24 JUDGE BONOMY: That was to be my main question here. How do you

25 detect that a village has been shelled?

1 THE WITNESS: Well, you have, I should say, a wider way of human

2 intelligence available. You may have people on the ground. You may have

3 diplomatic observers. At this time the KDOM was in the country. You may

4 also get information by the one or the other citizen living in this area

5 telling the KDOM people, Look, this happened. And in the one or the other

6 case, we might see indications for shelling on overhead imagery, but it's

7 not necessarily the case that we -- that we could monitor all villages and

8 cities in Kosovo with overhead imagery.

9 JUDGE BONOMY: Thank you.

10 Mr. Hannis.

11 MR. HANNIS: Thank you, Your Honour.

12 Q. In connection with that report in paragraph 13 you say, It was

13 possible that Perisic might not have yet been aware of this because it

14 was -- it had only just occurred. So this was a fresh incident.

15 A. It was, as I had stated earlier on, it was given to us during the

16 flight to Belgrade as an incident which had happened. And when I say in

17 my statement that it might be possible that Mr. Perisic didn't know about

18 it, I referred to the experience gained in my own military life that not

19 all information on a single evidence is immediately brought to the

20 attention of the Chief of the General Staff.

21 Q. And then Judge Bonomy's earlier question in paragraph 12 at the

22 bottom of page 3, it's quoted as Mr. Milosevic was being told. "Mr.

23 President, the hammer is cocked, the clock is ticking, and you have had 48

24 hours to deliver." Is it your testimony that should read "and you have 48

25 hours to deliver?"

1 A. Yeah. I think that would be more correct, since we already told

2 him it's -- we still have 48 hours.

3 MR. HANNIS: Could we show the witness Exhibit 394 next.

4 Q. In addition to this statement you just saw on the screen you

5 signed and Mr. Milosevic signed, among others, were there additional

6 agreements reached over this weekend of the 24th and 25th?

7 A. There was an agreement -- an additional agreement on the number of

8 check-points, which I think Mr. Shaun Byrnes had worked out.

9 MR. HANNIS: And Exhibit 394 on the screen, Your Honours, is the

10 Milosevic exhibit 94, tab 4.

11 Q. Was this the document you were referring to, General?

12 A. Yes.

13 MR. HANNIS: Could we have a look at P432?

14 Q. General, do you know who -- I'm not sure if I'm pronouncing it

15 right, Mr. Geremek or Jovanovic are? This is on a document to come up.

16 A. Okay.

17 Q. In a moment.

18 A. I know who Geremek is. He was the Polish Minister of Foreign

19 Affairs and Jovanovic was the Minister of Foreign Affairs of the former

20 republic Yugoslavia.

21 Q. And we have heard an agreement that's referred to sometimes as the

22 Geremek/Jovanovic agreement. Were you familiar with that?

23 A. It was the verification of the Kosovo Verification Mission.

24 Q. Have you seen that agreement before?

25 A. I have seen the agreement before.

1 Q. And does this document on the screen appear to be that screen?

2 A. Yes, yes.

3 Q. Thank you. One more, General, before I move on to some other

4 questions, and I think this may be the English version of what I asked you

5 about earlier. P440, if we could have that on the screen.

6 This appears to be a cover letter.

7 MR. HANNIS: And if we could go to the next page.

8 Q. Do you recognise what that is?

9 A. Yeah. That is the Clark, I think, Perisic agreement.

10 Q. And that related to the aerial surveillance?

11 A. To the aerial surveillance, yes.

12 Q. Was that entered into before this weekend, do you recall?

13 A. That was, to the best of my recollection, worked out on the 15th

14 of October, 1998.

15 Q. All right.

16 A. So before the weekend.

17 Q. Now, in paragraph 25 of your interview notes and at page 6991 of

18 your testimony, you describe an incident after that agreement was signed

19 with Mr. Milosevic, Mr. Sainovic, and General Djordjevic, yourself, and

20 Clark, when Mr. Milosevic said words to the effect that it would -- that a

21 solution to the Kosovo problem would be found in the spring.

22 Can you tell the Court what you recall about how that came up.

23 It's described in your written evidence, but if you can tell us today what

24 you remember.

25 A. That was after we had asked Mr. Milosevic to sign the agreement,

1 which we had worked out throughout the night, and then Mr. Milosevic

2 offered us a form of drink. In the earlier proceedings, I learned it was

3 not slivovitz as was my recollection, but it was some form of peach

4 brandy. But I'm definitely not an expert on alcohol, so you may forgive

5 me this slight incorrectness.

6 Q. I think, previously, he said pear brandy, but I am not sure.

7 A. I don't know. It was -- whether it was pear or peach, I don't

8 know. Anyway, I think it's not so important. The -- then he mentioned,

9 more or less in passing and a little bit as a surprise to all of us, that

10 he was really determined to find a solution to this problem with the

11 Kosovars, which he did not call with -- in a very friendly way. He used

12 words like "murderers," "bandits," "rapists," and to the best of my

13 recollection, he said, I'll find a final solution in spring next year or

14 spring 1999.

15 And you can imagine what the word "final solution" means for a

16 German. I got a little bit -- really, a little bit nervous and he said --

17 I asked him, What do you mean by "final solution"? And he said, We'll do

18 to them what we did to them in, I think he said in 1946 in Drenica.

19 Q. Did you know what he was talking about?

20 A. No, I had no idea. I -- it's -- I have often stated, thereafter,

21 that it was one of our biggest -- one of our mistakes in western Europe

22 that we did not look into the history of this part of Europe. Also, it

23 was so close to our doorsteps. So I didn't know, and we asked and he

24 explained to us. And if I recall it properly, he said it was quite

25 simple. We got them all together and we shot them.

1 Q. Now, you and Clark were present when this was said. Who else was

2 there?

3 A. As far as I recall, it was -- but I'm not entirely sure. It could

4 also be that Mike Durkee was there.

5 Q. And on the Serb side, anyone else?

6 A. On the Serb side I believe it was General Djordjevic, Mr.

7 Milutinovic, not so -- not entirely sure whether it was Mr. Sainovic, but

8 I could imagine.

9 Q. Okay. Was there any reaction from those who heard this comment?

10 A. No, no reaction which I recall.

11 Q. No one said anything?

12 A. That was, in most cases, their usual attitude that they did not

13 say anything when Mr. Milosevic spoke.

14 Q. Okay.

15 A. Mr. --

16 JUDGE BONOMY: Mr. Hannis --

17 THE WITNESS: Unless they were asked to say something.

18 JUDGE BONOMY: Mr. Hannis.

19 MR. HANNIS: Yes, Your Honour.

20 JUDGE BONOMY: Do you have a page in the transcript for this

21 subject which --

22 MR. HANNIS: Yes, Your Honour. I think page 6991 is where it's

23 discussed. I can double-check. Yeah, beginning I think at line -- line 8

24 as a good starting point. Does Your Honour find that?

25 JUDGE BONOMY: I have found it.

1 Do you have your -- or does the General have in front of him the

2 interview notes of the --

3 MR. HANNIS: He does, Your Honour.

4 JUDGE BONOMY: -- 17th of June and then proofing notes?

5 MR. HANNIS: He does.

6 JUDGE BONOMY: Could you look, please, Mr. Naumann, at paragraph

7 24 of that document.

8 THE WITNESS: Yeah.

9 JUDGE BONOMY: Where someone has recorded -- where I think you

10 claim were the actual words used, the parts in quotation marks. Now --

11 THE WITNESS: That, Your Honour, is my recollection of this

12 incident.

13 JUDGE BONOMY: Well, the interpretation has recorded your

14 recollection rather differently today on the transcript, and I'm wondering

15 if there is some misunderstanding in today's transcript.

16 THE WITNESS: How can I scroll back the --

17 JUDGE BONOMY: Well, I can tell you what it says. You're quoted

18 as saying that he said: "I'll find a final solution. And you can imagine

19 what the word 'final solution' meant for a German."

20 THE WITNESS: Yeah.

21 JUDGE BONOMY: Now, that doesn't appear in this statement, and it

22 doesn't appear in the Milosevic transcript either.

23 THE WITNESS: Of course, it was eight years ago and I believe and

24 I don't know why I didn't mention it then. I believe he said a"final

25 solution."

1 JUDGE BONOMY: It's such a striking thing at this minute. It

2 appears quite surprising that you wouldn't have mentioned it earlier.

3 THE WITNESS: Perhaps I mentioned it and I overlooked it when I

4 got the written documentation of the interview.

5 JUDGE BONOMY: In the cross-examination by Milosevic, the issue

6 arose over whether there had been any earlier reference made by you or

7 Clark to this, and there was some discussion of Clark's book. One of the

8 unfortunate features of this whole business is that everybody involved

9 seems to have written a book.

10 Have you written one?

11 THE WITNESS: Not on Yugoslavia.

12 JUDGE BONOMY: Well, that's reassuring. But so far as you

13 personally are concerned, had you ever on any earlier occasion raised this

14 comment anywhere?

15 THE WITNESS: I had given, Your Honour, a speech in, I think in

16 fall 1999 [Realtime transcript read in error "4/1999"] at the German

17 General Staff and Command College in Hamburg reflecting on my experiences

18 in this Kosovo crisis and the lessons learned from that.

19 JUDGE BONOMY: When was that? Sorry, I think we've got the wrong

20 date here.

21 THE WITNESS: I think it was in fall 1999. Not 4, fall, autumn.

22 JUDGE BONOMY: What about the report back of the events that had

23 occurred? Was this not something that was reported to NATO?

24 THE WITNESS: We reported this when we -- when we came back. We

25 reported it to the secretary-general orally. And we also reported in the

1 NATO council orally that we gave the impression that the crisis was not

2 over with this agreement, and a solution to the Kosovar problem was about

3 to be solved.

4 JUDGE BONOMY: Were the terms of this conversation, though, not

5 reported back to NATO specifically?

6 THE WITNESS: I think the terms of the conversation were reported

7 to the secretary-general, yeah.

8 JUDGE BONOMY: Mr. Hannis.

9 MR. HANNIS:

10 Q. And was that report to him an oral report?

11 A. That was an oral report.

12 Q. Just you and Clark?

13 A. Yeah, and the head of the private office.

14 Q. And who would that be, or can you say?

15 A. That was a Spaniard called Domek [phoen], family name Domek.

16 Q. Okay. So after this agreement was signed, you returned to

17 Brussels. And at page 6994, line 4 and following, and page -- or

18 paragraph 28 of your notes, you tell us you returned to Brussels, you

19 reported on what had happened, the decision was made to not implement the

20 ACTORD at that time. And as a matter of fact, the Serbs initially

21 complied and withdrew how many policemen? 6.000?

22 A. Somewhere between 5.000 and 6.000.

23 Q. Okay. But then you tell us at page 6995, beginning at line 15,

24 you note the compliance didn't last for too long, and that as of November

25 you saw again reports of violations. Can you tell us what was the nature

1 of the violations that were being reported? Did it have to do with the

2 numbers of forces present in Kosovo, or did it have to do with

3 disproportionate force being used?

4 A. It was both. We saw disproportionate use of force, we saw

5 establishment, I think, of additional check-points, and we saw some

6 redeployments. But in most cases - and I think I have stated this

7 before - the incidents were not triggered by the Yugoslav side. They were

8 triggered by the Albanian side or the Kosovar side, who tried to

9 explore -- take advantage of the vacuum left by the Serb side, who had

10 withdrawn in accordance with the agreement; and then they moved in, in

11 some cases acting rather provocatively as indicating that this was part of

12 the -- of a Republic of Kosovo or something like this.

13 And the Serb side reacted to that, I think in a way which -- the

14 reaction as such was understandable to us. What was not understandable to

15 us was from time to time the way in which they reacted. So we saw -- we

16 were suddenly again in a spirit of force and counter-force which was

17 military reinforcing and led to escalation.

18 Q. And what was it about the way in which they reacted that you found

19 not understandable?

20 A. Well, we -- it was -- as we have often seen and often said in

21 these various conversations, it was a heavy-handed approach in which they

22 used ways and means in response to unrest, which was not in -- which we

23 simply did not know from our countries. We -- when we had a terrorist

24 activity or a criminal activity, we tried to respond to that by using

25 police forces, but not by moving in military or paramilitary forces which

1 were using relevant brute force to suppress unrest. And that, I think,

2 disproportionality was again and again a fact we had to note.

3 Q. And --

4 JUDGE BONOMY: Was the extent of the terrorist threat here,

5 though, not a much greater one than other western European nations have

6 experienced in their own domestic circumstances?

7 THE WITNESS: I think it was different from the terrorist threat

8 which we have seen in other European countries, perhaps with the exception

9 of the situation in Northern Ireland and in the Basque part of Spain.

10 And, for instance, what we had seen in my country were terrorist

11 activities were -- were nothing like this. In our case there were

12 terrorist acts against individuals, but never the attempt to more or less

13 be in control of a part of the country.

14 JUDGE BONOMY: The various agreements that had been reached,

15 though, left or provided for no avenue to deal with the KLA. Now, was

16 there any NATO plan as to how the KLA might be dealt with in the

17 environment you were trying to create, which was an environment of

18 mediation?

19 THE WITNESS: That, Your Honour, was our Achilles' heel, if I can

20 say this. We had made a -- I'm saying this quite openly and bluntly, and

21 I hope straightforward -- in a straightforward way. We had made a

22 mistake. We, I mean the political leadership of NATO in spring 1998 when

23 we called the KLA a group of terrorists. That you find in NATO documents

24 like the foreign ministers' meeting. And having stated that the KLA is a

25 group of terrorists, we had I think inadvertently paralyzed our own

1 instrument to cope with them, since in NATO was the -- there is no --

2 there was never any hope at all to contact terrorists directly.

3 You need -- for a decision, you need for the consensus of, at this

4 time 16 nations. And since some of the nations had a terrorist problem at

5 their hands, they simply and flatly refused that we should ever talk to

6 terrorists. And that was our Achilles' heel. We had simply no instrument

7 to rein-in the KLA. We had to do it. We tried to do it by asking the one

8 or the other NATO nation to take advantage of contacts which may exist.

9 But the instrument which we used in the case of the Yugoslavs; namely, to

10 threaten military action, was not applicable to the Kosovars. That was

11 our -- our mistake.

12 JUDGE BONOMY: Thank you.

13 Mr. Hannis, just before I forget, this is something quite

14 distinct.

15 MR. HANNIS: Yes.

16 JUDGE BONOMY: In paragraph 22 where you're dealing with the

17 various documents, and one is the

18 Clark-Naumann-Milosevic-Djordjevic-Sainovic agreement, that that was made

19 up of two parts. There was a statement --

20 MR. HANNIS: Correct.

21 JUDGE BONOMY: -- which contained a detail. Does that have an

22 exhibit number?

23 MR. HANNIS: Yes, Your Honour --

24 JUDGE BONOMY: It's all part of Exhibit 440, I think you --

25 MR. HANNIS: It's 395.

1 JUDGE BONOMY: It's 395, so are there two numbers for that

2 combined document or is it all 395.

3 MR. HANNIS: 395 contains both the signature page and the

4 agreement.

5 JUDGE BONOMY: Thank you very much.

6 MR. HANNIS: Thank you.

7 Q. So, General, if I understand then, part of the problem, as you see

8 it, is because NATO has earlier declared KLA a terrorist group. By NATO's

9 own rules, then you couldn't negotiate with them or have discussions with

10 them?

11 A. That's correct. We had to ask nations, individual nations, to

12 contact them.

13 Q. Okay. And if I could just check something on the transcript to an

14 answer you gave earlier at page 31, line 19, I think I heard something

15 differently than was recorded on the transcript. And you were talking

16 about how you tried to respond in your country to terrorist activity with

17 police forces, and not by moving in military or paramilitary forces which

18 was using relevant brute force. I thought I heard you say "relatively

19 brute force?"

20 A. Relatively brute force, yeah.

21 Q. And what is an example of the relatively brute force you saw in

22 Kosovo by the Serbs against the KLA?

23 A. We saw it occasionally, and I think we mentioned it to our Serb

24 interlocutors that they moved a tank company in front of a village,

25 started to shell the village, and then went in. And that is something

1 which I think is disproportionate, if you deal with unrest of a -- let's

2 say of a terrorist nature.

3 Q. Okay. And you had a lot of experience in your military career

4 with the artillery; correct?

5 A. That's fair to say, yeah.

6 Q. Okay. So if you have an incident, say, of a single sniper

7 shooting at a police convoy or a group of military convoys --

8 A. If --

9 Q. -- what's the appropriate response?

10 A. If you have an individual sniper, you try to take out the sniper

11 at the maximum, by using, let's say, an APC gun or an individual tank, but

12 you never move -- you move use an entire company.

13 Q. Now, as a result of this information you were getting in

14 November/December of 1998 about non-compliance, you made a third trip to

15 Belgrade to see Mr. Milosevic on the 19th of January --

16 A. That's correct, yes.

17 Q. -- 1999. Who went besides you and General Clark on this third

18 trip?

19 A. The -- on our side, the composition was more or less the same, but

20 in Belgrade we met Ambassador Walker, who was then the head of the OSCE

21 verification mission.

22 Q. Had he been declared persona non grata at this point in time?

23 A. Before that point, he had been declared a persona non grata, yes,

24 because he had spoken up in the Racak event in a way which, as Mr.

25 Milosevic later explained to us, was very and utterly unacceptable to him.

1 Q. Okay. So who went to see Milosevic, you and Clark and Mike

2 Durkee, was he along on this meeting?

3 A. Yes.

4 Q. Anyone else as you recall? Was your aid with you?

5 A. He was sitting in the anteroom.

6 Q. And who was there on the Serb side with Mr. Milosevic?

7 A. I think, again, Mr. Milutinovic, Mr. Sainovic.

8 Q. I think in your written evidence, you mentioned another individual

9 who took notes.

10 A. Yeah. A man who was in the personal staff of Mr. Milosevic, I

11 think Bugarcic or something like this.

12 Q. Okay. At paragraph 36 of your statement and at page 7007

13 beginning at line 11, you tell us that you guys told Milosevic about the

14 excess numbers of police being brought back into Kosovo --

15 A. Yeah.

16 Q. -- about disproportionate use of force by both police and

17 military, and about armoured units being outside of their garrison. And

18 you said, in connection with this, you gave Mr. Milosevic a list of you

19 think it was ten incidents of violations. We're still trying, as I said,

20 to locate that list. Do you recall any of the incidents that were on that

21 list?

22 A. We had -- this was a list which had been established in NATO

23 headquarters, and in which we really had picked the most significant

24 incidents and violations which we had seen or NATO intelligence had seen

25 in the time-frame December to January 1999. So we had -- we had more, but

1 in the intelligence files. But we had picked I think there were ten or so

2 incidents and listed them, since they were really examples of, in our

3 view, clear-cut violations of the agreement.

4 Q. Was Racak on that list, or was that a separate item?

5 A. Racak was I think -- was on -- I think it was on the list, but

6 please don't name me down on that.

7 Q. Okay. How about Podujevo in December 1998, do you recall if that

8 was on the list?

9 A. Podujevo I think was on the list.

10 Q. And do you recall what that incident was about?

11 A. I've -- I have to admit, it's a rather faint recollection. I

12 think it was, again, a disproportionate use of force.

13 Q. Okay. In paragraph 39 of your notes, there are transcribed some

14 of your handwritten notes from that last meeting in January 1999, and you

15 mentioned that issues discussed included ICTY, OSCE, and HOM. Can you

16 tell us what HOM stands for in that context.

17 A. Yeah, head of mission.

18 Q. And that's the KVM --

19 A. That was the head of mission, Mr. Walker, since we wanted to

20 make -- we tried to persuade Mr. Milosevic that Ambassador Walker should

21 stay in the country.

22 Q. There's another note farther down called compliance. "Not one

23 incident triggered by MUP/VJ reacted 25 October agreement." Do you recall

24 what that was about?

25 A. Yeah. It's -- it reflects what I had stated earlier on, that the

1 incidents were in -- triggered by the KLA and not by the Yugoslav armed

2 forces were, for which VJ stands, and the police was, for which MUP

3 stands.

4 Q. And what was the source of your information for that, that not one

5 incident had been triggered by MUP or VJ?

6 A. That was --

7 Q. Was that NATO information?

8 A. It was information primarily based on observations by the OSCE

9 verifiers and the KDOM people who were still to some extent operating

10 independently.

11 THE INTERPRETER: Please pause between question and answer.

12 MR. HANNIS:

13 Q. I'm sorry, I'm not pausing for the interpreters. There was a

14 note: "Will not comply on ICTY and not now in compliance." Do you recall

15 what that referred to?

16 A. Yeah. ICTY -- we had asked to admit Judge Arbour, who was waiting

17 in Skopije and Macedonia, to enter Yugoslavia and to -- to start an

18 independent inquiry on the Racak event. And my notes there simply say we

19 will not indicate -- he refused to admit Judge Arbour to come to

20 Yugoslavia, so he does not agree on the involvement of the ICTY. And I

21 think "not in noncompliance" I think that refers to, in my impression -

22 and that was my note - the former Republic of Yugoslavia was not in

23 compliance with the 25 October agreement.

24 Q. Okay. And that was the last time you met with Mr. Milosevic?

25 A. That was the last time, yes.

1 Q. Thank you --

2 A. Yeah. No, sorry. I met Mr. Milosevic here in court.

3 Q. Correct. I guess I forget about that as being a meeting.

4 General, I think the rest of your evidence is in your written materials.

5 MR. HANNIS: I have no other questions at this time, Your Honour.

6 Thank you.

7 JUDGE BONOMY: Thank you, Mr. Hannis.

8 Mr. Naumann, in these various notes you've made, there is

9 reference to a heading "Compliance, not one incident triggered by MUP or

10 VJ." And then it goes on: "Admitted not to be in compliance but

11 expressed desire to gradually return to it in step-by-step approach, no

12 chance now since Podujevo increasingly ethnically cleansed."

13 Now, is that a reference to something that happened at the 25th of

14 October meeting?

15 THE WITNESS: We have -- I think my notes reflect my impression

16 that the Serb side expressed they might return to the 25 October agreement

17 over time, but they needed a little bit more time in -- in order to cope

18 with the situation, as they saw it. But the reference to Podujevo

19 indicates that they -- that they also had started a process of -- well,

20 what we called ethnic cleansing of some villages. And the numbers, which

21 I think were given to us, were that 18 villages had already been more or

22 less cleansed and -- or cleaned. And the total of villages was 72.

23 That's my recollection of this note.

24 JUDGE BONOMY: But if this happened on the 19th of January, it's

25 inconsistent with what you've said about Milosevic's attitude, which was

1 to deny that there were any breaches or that there was any responsibility,

2 does it not?

3 THE WITNESS: I don't see -- I don't see the inconsistency, Your

4 Honour. He denied that there was any misbehaving on the side of the Serb

5 military or police force in the Racak event and accused us of having used

6 force information when we talked about Racak.

7 JUDGE BONOMY: But this idea of -- that from the Serb side came a

8 desire to gradually return to compliance in a step-by-step approach is

9 surely inconsistent with the attitude you were experiencing from

10 Milosevic, which was to deny that there was any disproportionate use of

11 force and to deny that the forces were in any way acting inappropriately.

12 But -- and to explain that the increase in troop movement was necessary.

13 THE WITNESS: Your Honour, I -- again, with all due respect, I do

14 not see the inconsistency. We -- if you looked at the final paragraph of

15 the so-called Naumann-Clark agreement where we talk about the right of

16 self-defence, then you find the key to the solution of your observation.

17 We had accepted in this final paragraph the right of self-defence, which

18 is quite normal and understandable for every state, but we obviously had

19 a -- I should say a different interpretation of what proportionality

20 means --

21 JUDGE BONOMY: I understand -- I think you misunderstand my

22 question, Mr. Naumann. It's -- your statement in your note"admitted not

23 to be in compliance," now who admitted noncompliance?

24 THE WITNESS: I think what my note says is that he admitted the

25 noncompliance in terms of numbers, since there were more forces in Kosovo

1 than it was stated in the 25 October agreement. We -- but we had not any

2 agreement at all on the question of proportionality.

3 JUDGE BONOMY: Well -- the other matter I want to ask is this:

4 The -- I know that February was occupied partially by negotiations which

5 ultimately failed, but there's a leap in your account of events from the

6 19th of January directly to the 23rd of March and a decision to take

7 action. Was the decision actually taken around the 19th of January?

8 THE WITNESS: No.

9 JUDGE BONOMY: Well, what was it then that triggered the decision

10 on the 23rd of March?

11 THE WITNESS: Your Honour, the gap in my account is, I think,

12 explainable since after -- more or less after Racak the decision -- the

13 political decision was taken that NATO should no longer be in the driving

14 seat, but the contact group, the new established contact group should take

15 the lead. And this led to the negotiations of Rambouillet and Paris in

16 which NATO did not participate.

17 We were kept informed, but we had no responsibility whatsoever for

18 the contents of these negotiations. When the negotiations failed - and I

19 think the final moment of failure was the last visit of Ambassador

20 Holbrooke to Belgrade on the 23rd of March - then NATO came again into the

21 game. But we were left with no option, so we simply had to execute after

22 the politics had failed to achieve a peaceful solution.

23 JUDGE BONOMY: What I'm really trying to find out is whether there

24 was another assessment made of the situation within the former Yugoslavia

25 before ultimately a decision was made to carry out the threat.

1 THE WITNESS: It was a -- Your Honour, this was a process of

2 permanent assessment, and of course the NATO council was -- remained

3 involved in discussions -- discussing of the situation. But as I tried to

4 say, they were not in the driving seat at this time, which by the way was

5 not extremely helpful in terms of maintaining the coalition of the

6 alliance and the contact group, which contained at the time four NATO

7 nations; namely, United States, United Kingdom, France, and Germany, and

8 as a non-NATO nation Russia.

9 The establishment of this group had triggered quite a series of

10 not always pleasant discussions among the allies, since the one or the

11 other failed to be an underprivileged member. So they -- the noncontact

12 group members still had to contribute to the execution of an eventual

13 decision to use force in Kosovo. So we had I think some rifts in the --

14 in the alliance at this point in time, but we continued to -- to look into

15 the situation of -- in the former Yugoslavia, and it was not as if we had

16 a pause of, let's say, six weeks. But we were not actively involved in

17 the discussions. We had tried, I can also say. We had tried to be

18 involved. Since we knew had there been a peaceful agreement at

19 Rambouillet or Paris, NATO would have been asked to take on some elements

20 of the implementation. But there was no agreement -- no political

21 agreement that NATO should be involved, and so we couldn't do anything.

22 JUDGE BONOMY: Thank you, Mr. Naumann.

23 It's a convenient time for us to have our break, which we have to

24 have. So could you, while we have the break, go with the usher, and we

25 shall see you when we resume.

1 [The witness stands down]

2 MR. ZECEVIC: I'm sorry, Your Honour.

3 [Trial Chamber confers]

4 JUDGE BONOMY: Mr. Zecevic.

5 MR. ZECEVIC: Just one thing in the transcript, I believe 39 --

6 page 39, 24, it says: "And accused us of having used force information."

7 I actually think that the witness said "false information." That is the

8 only thing. Thank you very much.

9 JUDGE BONOMY: Thank you, Mr. Zecevic.

10 We will resume at 25 minutes past 4.00.

11 --- Recess taken at 4.03 p.m.

12 --- On resuming at 4.27 p.m.

13 JUDGE BONOMY: Mr. O'Sullivan, the order of cross-examination.

14 MR. O'SULLIVAN: Your Honour, the order will be: General Ojdanic,

15 General Pavkovic, General Lazarevic, Mr. Sainovic, General Lukic, and Mr.

16 Milutinovic.

17 [The witness takes the stand].

18 JUDGE BONOMY: Thank you.

19 The first counsel to cross-examine will be Mr. Sepenuk on behalf

20 of Mr. Ojdanic.

21 Mr. Sepenuk.

22 MR. SEPENUK: Thank you, Your Honour.

23 Cross-examination by Mr. Sepenuk:

24 Q. General, as Judge Bonomy said, I'm Norman Sepenuk and I'm an

25 attorney for General Ojdanic. Good afternoon, sir.

1 A. Good afternoon.

2 Q. General, I want to start with what you said on June 7th, 2000,

3 when you were testifying before the House of Commons Defence Select

4 Committee as part of its inquiry into the lessons of Kosovo. And that by

5 the way -- what you said is in Defence Exhibit 3D777, and if I can just

6 read it to you, sir. You said:

7 "I think it is fair to say that Milosevic honoured the commitment

8 which he had made to General Clark and myself on October 25, 1998. He

9 withdrew the forces and he withdrew the police. There may have been some

10 difference as to whether there were 200 or 400 policemen more or less, but

11 that does not really matter. More or less, he honoured the commitment,

12 then the UJK [sic] or KLA filled the void, the withdrawn Serb forces had

13 left, and they escalated. I have stated this in the NATO council in

14 October and November repeatedly. In most cases, the escalation came from

15 the Kosovar side, not from the Serb side."

16 And I take it, sir, that you remember those words and those are

17 indeed your words? You have to answer yes or no.

18 A. Yes. I remember these words, and I think that is also in line

19 with what I said earlier on when I was asked more or less in the same

20 direction.

21 Q. Yes. And, General, since you were not on the ground yourself in

22 Kosovo, I take it you were not on the ground in Kosovo?

23 A. That's correct.

24 Q. I also take it that based -- that you based your statement, the

25 one I've just read, for example, on reports that you received from those

1 on the ground, and as I understand it, initially from KDOM and later from

2 the Kosovo Verification Mission. Is that fair?

3 A. That's correct, Mr. Sepenuk.

4 Q. And at the Milosevic trial you stated that during November and

5 December of 1998, there were again reports of violations of the cease-fire

6 agreement by both Serb and KLA forces, yes?

7 A. Yes, correct, Mr. Sepenuk.

8 Q. And that in the Milosevic trial at page 6995, you stated as

9 follows, with respect to this November/December period. You said:

10 "I should really say in all fairness to the best information I got

11 from the reports on the ground from KDOM, and later on from the Kosovo

12 verification regime, many of the incidents were triggered by the UCK, who

13 obviously tried to exploit the vacuum created by the withdrawn Serb

14 security forces and who then sneaked in to take control of regions or

15 areas. They also, I think, launched provocations and they were not free

16 of violence doing that."

17 Is that -- that was your testimony, I take it, in the Milosevic

18 case?

19 A. That's correct, again.

20 Q. Okay. And, General, as the year 1998 drew to a close, is it fair

21 to say - and I'm picking up on something that Judge Bonomy asked you a

22 little while ago - is it fair to say that neither the OSCE nor NATO nor

23 Ambassador Hill, nor anybody else for that matter, had been successful in

24 successfully stopping KLA provocations?

25 A. Yeah, that was my impression at the time.

1 Q. And is it also fair to say that the prospect of KLA provocations

2 in the future was even more likely considering that it was common

3 knowledge, at least at this time, December 1998, it was common knowledge

4 that the KLA was threatening to kill any Albanian who signed any

5 agreements negotiated by US-KDOM Ambassador Hill. Do you remember that,

6 sir?

7 A. That I cannot remember, in that clarity as you just stated.

8 Q. The reason I asked you that is we had a witness here General

9 Drewienkiewicz, who I take it you know. Do you know General DZ?

10 A. No.

11 Q. You don't know General DZ?

12 A. No. Who is that?

13 Q. General Drewienkiewicz, does that ring a bell? He was the number

14 three man --

15 A. That was the British database.

16 Q. British guy --

17 A. British general who was a deputy in the Kosovo Verification

18 Mission.

19 Q. Exactly. He was the chief of operations.

20 A. Now I remember his nickname, yes.

21 Q. Which was what just for the heck of it?

22 A. DZ.

23 Q. He testified here and he submitted a statement that said precisely

24 that, that it was public at the time - this is December 1998 - that the

25 KLA was threatening to kill anyone who signed any agreements with

1 Ambassador Hill. But that was not in your frame of knowledge; correct?

2 A. Correct. And I should also say in all fairness to use his own

3 words, that they never reported in such clarity to NATO.

4 Q. Okay. That's fine. And by the end of the year, the prospects of

5 the KLA limiting their provocations became even more remote when the KLA

6 declared "1999 as the year of independence for Kosovo." Do you remember

7 that, sir?

8 A. I do not remember that they quoted this at the end of 1999, but it

9 was their aim all the time. That is quite obvious.

10 Q. That their aim --

11 A. And it is today by the way.

12 Q. And it was certainly back then, independence for Kosovo?

13 A. Yeah.

14 Q. And then moving into early January 1999, I want to ask you a

15 series of questions - and I'm going to bring you January until the time

16 the war started - to determine your knowledge of the -- of your source, I

17 should say. I think earlier today you stated, at least right before the

18 break, you stated page 37, lines 22, 23, the source of your information

19 that an -- as to whether an incident had been triggered by the MUP or the

20 VJ, were the OSCE verifiers and KDOM, who was still operating effectively

21 in the field. Is that a fair statement?

22 A. Yeah, that's correct.

23 Q. So what I want to do is go to those sources and see how much you

24 really knew in reaching a conclusion about -- the conclusions you've

25 reached; disproportionate use of force and that kind of thing. I want to

1 be able to determine whether the extent of your knowledge concerning KLA

2 provocations, so we can determine the reasonableness of a conclusion you

3 reached about disproportionate use of force. And I'm asking you this,

4 General, with respect because you were a very high figure, a four-star

5 general at the very top, a very exulted position. And I want to see how

6 much you were in touch with those people on the ground. You may have been

7 very closely in touch, but that is going to be the point of my questions.

8 All right, sir?

9 I would like to go to the beginning of the year. We've talked

10 about November/December, and I want to go to 2 January 1999. We can put

11 any of these up on the screen, if you would like or the Prosecutor would

12 like or anybody else, but I will read from the exhibit. I have the

13 assessment from 2 January 1999 and this is the KVM --

14 MR. HANNIS: Can we have a reference to the document.

15 MR. SEPENUK: Yes, Prosecution Exhibit 407, page 100.

16 If you could put that up on the screen, please. No, that's not

17 it. P407, 100. It's from the blue book, the Prosecution blue book. We

18 just checked this again last night, so I think we're right on this or else

19 heads will role, Your Honour.

20 THE REGISTRAR: This is Exhibit P407.

21 MR. SEPENUK: All right. Well, at this point I'd like to -- do

22 you have that, Mr. Hannis?

23 JUDGE BONOMY: Mine says assessment 2 January 1999.

24 MR. SEPENUK: Now we have it.

25 JUDGE BONOMY: I think that's what you're looking for.

1 MR. SEPENUK: That was not what they first put up.

2 Q. Do you have that before you, General?

3 A. Yes, I have it.

4 Q. And this is the assessment of the KVM fusion centre.

5 "There are indications that KLA may be coming more closely unified

6 under a centralised command structure. Units of the KLA are now being

7 identified to KVM patrols by specific unit designation. Areas of

8 responsibility are being adjusted by the KLA, and loosely affiliated

9 groups may be coming under centralised control."

10 Now, do you remember receiving this report?

11 A. I remember receiving similar reports; similar, but not exactly

12 this wording, since you should understand the mechanics in NATO

13 headquarters. When I got the information presented, it was the condensed,

14 corroborated information, which did not only refer to one source but to a

15 couple of sources. But the gist of it, that is, the information I can

16 confirm.

17 Q. Okay. Fine. Just to take -- this is January 2nd, 1999. Just to

18 take a very brief diversion here, we have a document, and I'll read from

19 that document and put it up on the screen if necessary. It's Prosecution

20 Exhibit 2460, and what it is, General, is a report by Colonel Bislim

21 Zyrapi. Do you know who he is, sir?

22 A. No.

23 Q. You don't know who Bislim Zyrapi is?

24 A. No.

25 Q. This --

1 A. I can assure you the name was never mentioned at any NATO

2 intelligence briefing.

3 Q. Well for your information, sir, he was the Chief of the General

4 Staff of the KLA beginning in November 1998, held that position through

5 April. He had a rather responsible position with the KLA, but I take it,

6 again, you don't know who he is.

7 A. And I can -- this is in line with what I said earlier on, we had

8 no contacts with the KLA.

9 Q. But, certainly, you felt it your duty to learn as much about the

10 KLA as possible, did you not, sir?

11 A. About their intentions, capabilities, yes, but not necessarily the

12 personalities.

13 Q. But you had KLA liaisons from OSCE and KDOM out in the field with

14 the KLA did you not?

15 A. The OSCE had contacts with the KLA as well as KDOM, yes.

16 Q. Yes. Okay. So getting back to that exhibit, that's a report of

17 the General Staff as of December 28th, 1998, just a few days before this

18 January 1999 assessment, which talked about becoming more closely unified.

19 And in this report on page 2, it says and -- actually page 3, it says:

20 "Following the enemy offensive," and what he's referring to is the

21 offensive of the Serb forces that culminated in the October 1998

22 agreement. "Following the enemy offensive, the re-positioning of forces,"

23 that means repositioning of KLA forces, "has been carried out in all

24 operative zones. And we can freely say that the territory controlled by

25 our units is now of a greater percentage than prior to the enemy

1 offensive."

2 Does that jive with your recollection that at the beginning -- as

3 of at least the end of the year, the KLA had moved into all of the

4 positions vacated by the MUP and the VJ and, indeed, controlled even more

5 of the country than before? Does that jive with your recollection?

6 A. I would not confirm more, but that they had tried to fill the

7 vacuum that was created by the withdrawal of the Serb forces from certain

8 positions as negotiated in the 25 October agreement, that I had stated

9 before.

10 Q. And then on page 4 of this statement, the -- Colonel Bislim Zyrapi

11 goes on to say -- he's talking about proposals for the use of tactical and

12 operational units for combat activities in the future. And he says: "The

13 following proposals taken from the commander's written reports have been

14 singled out." The first is: "Acting in commando groups in towns and

15 inside the zones where the enemy is active, cutting out enemy supply lines

16 through diversion actions, hitting everywhere the living enemy forces in

17 order to inflict insecurity at all times and everywhere."

18 Now, realising that you didn't get a copy of this report and you

19 didn't deal with Colonel Zyrapi, did your NATO intelligence sources or

20 your KVM or KDOM sources essentially convey to you the gist of what I just

21 read, that the KLA was ready to attack anywhere at any time?

22 A. Well, as I had stated, Mr. Sepenuk, earlier on, I had the

23 impression that in most cases the incidents were triggered by the KLA.

24 Q. Thank you. Now, going on --

25 JUDGE BONOMY: Mr. Sepenuk, can we have an exhibit number for that

1 document?

2 MR. SEPENUK: Yes, that was 24 -- that was --

3 JUDGE BONOMY: Oh, yes, I have it 2460.

4 MR. SEPENUK: 2460. Right.

5 JUDGE BONOMY: Sorry, you did give us it.

6 MR. SEPENUK: At any point -- there's going to be a number more

7 exhibits. If it would clarify anything, I would be happy to put it on the

8 screen, but I didn't think there would be any dispute about it.

9 Q. Going back to the January 2nd assessment, General, which is right

10 before you. It says:

11 "An interesting trend is developing with the VJ becoming more

12 cooperative with the OSCE and its operation, and the KLA becoming more

13 belligerent and uncooperative at their security positions. There are also

14 indications that the KLA is becoming more firm in their goal of a totally

15 independent Kosovo."

16 And letting your memory wander back to early 1999, General, did

17 you receive this kind of information? Is this consistent with what you

18 recall about that period?

19 A. That -- what I recall, Mr. Sepenuk, is that we came to the

20 conclusion that the KLA is more active than the VJ and the MUP were at

21 this time, that they were trying to seize the initiative. Of course, the

22 political objective of gaining independence, that I had stated earlier

23 on. That was something which was printed in all papers more or less every

24 day.

25 But I couldn't fully confirm that we had a full agreement in NATO

1 that this was really the -- I should say the common assessment shared by

2 all nations in the alliance. We presented the situation I think in a very

3 similar way, since after all most of the bases for our information were

4 the OSCE reports, the verification mission reports.

5 Q. And what I read to you was apparently the KVM assessment?

6 A. Yeah.

7 Q. Okay. And then just jumping ahead --

8 MR. SEPENUK: I'm sorry, Your Honour.

9 JUDGE BONOMY: Did these reports come to you or come to NATO

10 direct, or did they come to you through the member states?

11 THE WITNESS: No. The -- we had an agreement with the OSCE that

12 we got the reports directly.

13 JUDGE BONOMY: Thank you.

14 Mr. Sepenuk.

15 MR. SEPENUK: Thank you, Your Honour.

16 Q. And jumping ahead about a week to January 8th, 1999.

17 MR. SEPENUK: And, again, I would ask the usher to put up P407,

18 page 156. Yes.

19 Q. Now, General, what you have before you is, again, a KVM assessment

20 for 8 January 1999, and it talks about a well-executed ambush against a

21 MUP patrol near Suva Reka. And I can tell you that during that ambush

22 three MUP were killed, three members of the police were killed and a

23 number wounded. And it states that it validates the KLA's earlier threats

24 to retaliate against MUP patrols and VJ check-points; and then it says:

25 "It appears the KLA does not acknowledge the cease-fire anymore and will

1 most likely strike again using the same tactics."

2 Now, again, did this information get to you that in effect in

3 substance the KLA was not really acknowledging the cease-fire, and they

4 weren't a party to any agreement and they didn't acknowledge the

5 cease-fire?

6 A. Again, I should say, Mr. Sepenuk, not in this rather general and

7 generalising way. The assessment was presented to NATO. We had

8 information that occasionally and in -- on the one or the other occasion,

9 one could come to the conclusion that the KLA would no longer acknowledge

10 the cease-fire; but then, as it is also by the way written the same

11 assessment, the Serb side reacted by establishing an additional

12 check-point. So we had this spiral of escalation and counter-escalation,

13 and it was a spiral of mutually reinforcing violence. In many cases. It

14 was simply not possible to identify who kicked it off and who reacted.

15 Q. And as you point out, General, in that report it says there was

16 another check-point established; however, once the check-point was

17 established, the KLA seized this as an opportunity to conduct another

18 strike. The subsequent assault by the KLA on this check-point indicates

19 the KLA's high level of confidence and willingness to attack in multiple

20 locations. And is that something that also -- I'm talking about the level

21 of confidence now. We're talking about an organisation that shown -- that

22 showed virtually no inclination not to use violence; correct?

23 A. Again, I should say don't take such an example as the general

24 picture throughout the province. This -- incidents like this happened,

25 that's true, and that's correctly described here, but there were other

1 parts where it was exactly the other way around. And I have the

2 impression of these assessments that they are to some extent rather on

3 point events, and some of the assessments generalise a local event as the

4 description of the situations throughout the province, which is not

5 entirely the truth.

6 Q. Well, rather than comment on that - and thank you for your

7 comment - I think the point might be clarified by the next exhibit which

8 is 3D473.

9 MR. SEPENUK: 3D473.

10 THE REGISTRAR: The document should be released.

11 MR. SEPENUK: It has been released.

12 MR. HANNIS: This is not one that appears on the list of documents

13 I have from you. There's a -- there is a 3D374, but not 473.

14 MR. SEPENUK: We can put this -- yeah. I think I should move on,

15 Your Honour.

16 Q. This is a press release and it's called: "Irresponsible acts by

17 the OSCE," and it's called: "Irresponsible acts by the KLA." It talks

18 about generally meticulously planned ambush, that we have already spoken

19 about.

20 MR. HANNIS: Your Honour, is this 473? I don't have a copy of

21 this. This hasn't been released to us, I don't know what it is.

22 MR. SEPENUK: It's in the system, and, again --

23 MR. HANNIS: It's not one that we received notification was going

24 to be used.

25 MR. SEPENUK: It was my understanding that it had been released.

1 JUDGE BONOMY: Now, what do you want us to do, Mr. Hannis?

2 MR. HANNIS: Well, I'd like to see a copy of it for one thing.

3 JUDGE BONOMY: It's now on the screen.

4 MR. HANNIS: Okay.

5 MR. SEPENUK: Oh, it is on the screen?

6 You found it? Okay. Right. Thank you. Thank you.

7 Q. And the last paragraph of this, General, as you'll notice --

8 actually, the next-to-last paragraph says:

9 "These actions," meaning this ambush by the KLA, "are in direct

10 contradiction to solemn promises of the KLA of showing restraint and of

11 maintaining the cease-fire agreement. KVM wishes to make it clear that it

12 finds the reaction by Yugoslavian authorities to these KLA provocations

13 has been up to this point very restrained. The representatives of the

14 Yugoslavian authorities have shown a willingness to cooperate in the

15 present situation."

16 Now, that seems to me to be an overall comment about generally

17 reactions to KLA provocations, at least that's my submission to you, and

18 not just one little area. Do you disagree with that, General?

19 A. I do not disagree with that, but I should also point out this is

20 an observation made public by the OSCE. And as we tried -- or as I tried

21 to state earlier on and also in the Milosevic case when we presented

22 President Milosevic with cases of disproportionate reaction on the Serb

23 side, we also had examples which presumably could lead, if we take them

24 together, to a similar conclusion just in the opposite direction.

25 Q. Right, but I'm asking you now, sir - and I appreciate your

1 comment - about specific documents and specific statements by the KVM. We

2 could be here all day debating disproportionate use of force, et cetera.

3 I'm asking you because of the limitations of time, I'm confining myself to

4 specific documents here. And I'd like you next to look at Prosecution

5 Exhibit 407, page 158.

6 MR. SEPENUK: Perhaps you can turn it around. Thank you.

7 Q. And the last sentence of that, General, it's an assessment, KVM

8 assessment for 8 January 1999 and it says: "The KLA appears to be taking

9 advantage of OSCE's presence and becoming more provocative in their

10 actions."

11 Wasn't that really a correct view of things?

12 A. Well, it was -- it was a statement, Mr. Sepenuk, which I also

13 heard in a similar way when we went to Belgrade in -- on the 19th of

14 January, 1999. And as I said earlier on, you could easily make the case

15 the other way around. But I admit, one could state it perhaps on this

16 very day; and looking on this day on the incidents reported, the next day

17 it could be the other way around.

18 Q. And this is -- again, you say you heard it in Belgrade. This is

19 not Mr. Milosevic speaking. This is the KVM; this is their statement.

20 A. I know, but I also would like to state that there could have been

21 days, not the 8th of January, but perhaps 10th or 11th, what have you, in

22 which the statement was exactly the other way around, putting the blame on

23 the Serb side.

24 Q. If there could have been -- I think Mr. Hannis will take care of

25 it. Right now I want to deal with the now and the reality of what was

1 going on then. And I'll show you another exhibit P407, page 345.

2 And, General, you'll notice that says -- again, it's a significant

3 events report for 26th January 1999, and it says:

4 "Increased KLA activity. A patrol reports very strong KLA

5 presence and a dramatic increase in the number of KLA fighters in the

6 Prizren district. The KLA's police forces are manning numerous

7 check-points, and KLA leaders expressed their concerns that they have --

8 are having difficulty holding back their fighters."

9 Correct, sir?

10 A. Again, Mr. Sepenuk, this corresponds exactly to what I stated

11 earlier on when I said many of the incidents were triggered by the KLA

12 also. I should add, if you look at the time-frame, this is the time-frame

13 in which we were no longer in the driving seat.

14 Q. Mm-hmm. But you were still getting reports I gather?

15 A. We got reports but we were no longer in the driving seat.

16 Q. No longer in the driving seat, but I'm, again, trying to assess

17 the factual basis for some of your conclusions about disproportionate

18 force. And I want to be able to show the Trial Chamber what the Serb

19 forces were reacting against. That's the point of my question, sir. And

20 turning to the assessment for 14 February 1999, it's 3D374. Okay. And if

21 you would be kind enough to turn that around. Thank you.

22 And, General, this is the KVM assessment for 14 February 1999, and

23 they're talking about the military political situation and says that:

24 "Even with the conduct of small-scale military and terrorist

25 actions in the past several days, Kosovo has remained relatively quiet.

1 The reason for this is probably due to the meeting in Rambouillet. Each

2 side wanted to be seen as favouring peace in the region."

3 Then it goes on to say: "On the same token, some of these

4 incidents can be viewed as acts of provocation mainly by the KLA, trying

5 to provoke reactionary operations by the other, which can then be

6 exploited in the international arena."

7 Is it fair to say that there was a general recognition that this

8 was one of the goals of the KLA, to provoke -- to provoke reactions by the

9 other side and get favourable treatment in the international arena. I

10 take it you would agree with that, sir?

11 A. I would not rule it out, but this was one of the intentions, yes.

12 Q. And then I have one or two other exhibits. The first one is

13 3D179. And this is -- General, this is a background report on compliance

14 by the parties in Kosovo between the end of the Rambouillet talks and the

15 beginning of the second Paris talks. And it covers the period 23 February

16 to 11 March 1999, so we keep moving up here.

17 And it says right in the first paragraph: "Unprovoked attacks by

18 the KLA against the police have continued, and the number of casualties

19 sustained by the security forces has increased." You notice that, sir?

20 A. Yeah. I notice that assessment. I also believe I remember it;

21 but on the other hand, one should also note - and this is in the very same

22 paragraph - that the number of deployed forces outside the barracks had

23 been increased. So we are again back to this question of violence,

24 triggering violence, and causing counter-violence. So it's -- I think it

25 describes pretty fairly that both sides tried to jockey for influence in

1 the international arena.

2 Q. Surely, General, is there any reason you looked over at the

3 Prosecutor, sir, or do I have that wrong? You were looking over at Mr.

4 Hannis. Did I have that right?

5 A. No. I did not, sorry. I'm not getting instructions from them.

6 Q. No, I don't think you are. I think you're way above that.

7 And surely, General, you don't mean to equate the Yugoslav units

8 being out of barracks to attacks on Serb police and violations of the

9 cease-fire, do you, sir?

10 A. I do not equate this, don't misunderstand me. But if you look at

11 the situation in which both sides were - and I'm simply trying to

12 understand both sides. I tried at the time and I'm doing it here again -

13 the one side triggered an incident, the other sides reacts, perhaps a

14 little bit clumsily; and then you go back into the next step of

15 escalation. And that is the spiral I referred repeatedly to, which is

16 obviously both sides were not able to get under control.

17 Q. And, again, I'm just trying to explore the factual basis for some

18 of your conclusions. This report, by the way, General, contains numerous

19 allegations, and I'm not sure there is time to go over it, but there are

20 numerous allegations of cease-fire violations, killings of police, a

21 number of those, a number of abductions of Serb civilians, a number of

22 killings of Albanian-alleged collaborationists. Mr. Hannis can challenge

23 this but I don't know he will, but the report is rife with that. I will

24 ask you only one question regarding this, and that is on page 2 of that

25 report?

1 MR. SEPENUK: If the usher would turn to it.

2 Q. It has -- and by the way before I dismiss, I'm trying to go

3 through this with some dispatch, but didn't you become aware during this

4 period that there were a number of abductions, killings, not only of

5 security forces but of Serb civilians, killings of alleged Albanian

6 collaborationists? Did this come to you in your position in NATO?

7 A. It came to me that we -- that a lot of killings on -- of Serb

8 police officers took place, and I think I have stated this in my evidence

9 which I gave to the Court, that some or other nasty events took place.

10 Q. Including Serb civilians and Albanian-alleged collaborationists?

11 A. Alleged collaborators, I did not state; and Serb civilians, I

12 would also -- well, it's pretty difficult to clear-cut differentiate

13 between a civilian and sometimes a policeman who is working in civilian

14 clothes for police. But what I would -- I think the main point is that

15 there was a lot of violence and cruelty committed by the Albanians towards

16 Serbs in this area.

17 Q. And their fellow citizens?

18 A. That I could not -- I have no evidence regarding that.

19 Q. You don't know of KLA killings of Albanian collaborationists, sir?

20 A. We have heard rumors about this, but this was not a fact that was

21 of crucial importance for our deliberations.

22 Q. It was not a fact that was made apparent to you by any of your

23 intelligence sources?

24 A. As I told you, in the discussion or in the attempt to assess which

25 side got it right and which got it wrong, the killing among the Albanians

1 was not a factor which -- to which we attached the utmost priority.

2 Q. Did you attach any priority to it?

3 A. We saw that in this part of Europe and, unfortunately, a lot of

4 violence took place which was alien to the rest of Europe.

5 Q. Is that another way of saying you did indeed know of killings of

6 Albanian collaborationists or not?

7 A. We heard about it, but we didn't have corroborated intelligence on

8 it.

9 Q. You did hear about it?

10 A. We did hear about it.

11 MR. HANNIS: Asked and answered several times, Your Honour.

12 JUDGE BONOMY: Well, I don't think at any stage that questioning

13 got out of proportion and we now have the answers.

14 Carry on, Mr. Sepenuk.

15 MR. SEPENUK: Thank you, Your Honour.

16 Q. I'll ask you about one matter in this memorandum. It talks on

17 page 2, you'll see, General: "A new area of military engagement became

18 gradually active since February as apparent the KLA from other regions

19 moved to villages south-west of Kacanik near the southern border with the

20 FRY with Macedonia."

21 And it talks about an estimated 2.000 people fled villages in the

22 Kacanik area, some trying to cross at the border to FRY of Macedonia.

23 And, generally, what that paragraph refers to - at least that is what

24 appears to me, General, and I'm suggesting this to you - that the KLA was

25 attempting to provide an access route for a NATO ground invasion through

1 that area, through that Kacanik-Kotlina area, and do you have knowledge of

2 that, sir?

3 A. No. I have no knowledge of that, and I can assure you what is

4 also public knowledge, Mr. Sepenuk, that NATO never had any intention to

5 attack with ground forces from Macedonia into Kosovo.

6 Q. Okay. Was that also the KVM assessment, sir? Was that the

7 assessment of the Kosovo Verification Mission?

8 A. The KVM knew exactly that we did never had this intention; and by

9 the way, NATO's political leadership at all levels stated again and again

10 that we don't use ground forces.

11 Q. Okay. Well, I have information to the contrary, sir. So let me

12 refer you to 3D386. And while that's being put up, this is a statement by

13 Christopher John Clark. And Christopher John Clark was the KVM operations

14 officer for Kosovo. His responsibility was the management and

15 coordination of the Kosovo field patrols. He would task the patrols on a

16 daily basis.

17 MR. SEPENUK: And if the usher would turn to page 8 of that

18 report, I'd be grateful. And could you scroll up, please, go down to the

19 last two lines, please. Thank you.

20 Q. You'll notice beginning at the last two lines, General, this is

21 what Officer Stewart said -- Officer Clark said:

22 "Also in late February/early March 1999, KLA forces infiltrated

23 into the Kotlina area in southern Kosovo. The brigade had not previously

24 been seen in Kosovo and was believed to have been infiltrated across the

25 Macedonian border. After they came into Kosovo, we identified them and

1 placed a team with them."

2 And then he goes on to say at the bottom of the next paragraph:

3 "The KVM assessment at the time was that the KLA was attempting to

4 provide an access for NATO ground invasion through this area."

5 So is it your contention that this gentleman who was on the ground

6 got it wrong?

7 A. He's -- he's speculating about something for which he didn't have

8 any justification at all, since there were no NATO plans to go with ground

9 forces into Kosovo.

10 Q. So you disagree with that?

11 A. I think this -- this statement of this KVM assessment is, in my

12 view, speculation which is absolutely based on nothing.

13 Q. Okay. Thank you, sir. And the last --

14 JUDGE BONOMY: The real issue, I suppose, that we may have to look

15 at is whether the Yugoslav authorities might have been justified in

16 forming a similar view.

17 THE WITNESS: Well, I do not know to which extent this assessment,

18 Your Honour, was shared with the Yugoslav authorities. I suspect it was,

19 since OSCE is a pretty transparent organisation. But the Yugoslav

20 authorities knew from the highest leadership of -- of the NATO nations

21 that we had no political intentions to go with ground forces into

22 Yugoslavia, and they also knew that it was explicitly ruled out that

23 ground forces would be used in a Kosovo contingency operation.

24 JUDGE BONOMY: In the sort of situation that NATO was facing,

25 though, is it common to announce your intentions in that way and expect

1 them to be believed by your potential opponents?

2 THE WITNESS: It is -- Your Honour, it's not common. And I can

3 say in all sincerity here that I, as a military, I was absolutely unhappy

4 with the statement, since you may remember that a famous German general

5 once said that: "In a conflict the best plan is worthless as soon as the

6 first contact with the enemy takes place." That was Mauker [phoen] and

7 this is still true.

8 So all your planning has to be based on the option that one is

9 prepared to see a military operation through. And we, the NATO military,

10 were deprived of that option when the ground forces were ruled out through

11 political decision, but we had to accept it.

12 JUDGE BONOMY: Thank you.

13 Mr. Sepenuk.

14 MR. SEPENUK: Thank you, Your Honour.

15 Q. The last document I want to show you, General, is P641. And,

16 General, this is -- this was an annex to a statement by -- made by General

17 Drewienkiewicz, General DZ, which is subject -- assessment of KLA

18 attitudes as of March 15, 1999. That's about a week or so -- more than a

19 week before the war started, and if you would turn to page --

20 MR. SEPENUK: If the usher would put page 3 up, it's K0078050.

21 Right. And if you would scroll down to the bottom, please. Thank you.

22 Q. And it talks about -- first, it says, and I'll just read it to

23 you. It's not up on the board, but I'll read it because it's brief. The

24 report starts out: "Assessment of KLA attitudes as of March 15, 1999."

25 And by the way, this is a report by David Wilson, who the evidence shows

1 was the OSCE representative to one of the OSCE representatives, General,

2 to the KLA, one of the KVM representatives to the KLA, sort of embedded

3 with the KLA to a certain extent.

4 And he says: "Their lines of command," referring to the KLA, "and

5 control from the General Staff to the zone commanders and below seem to be

6 generally effective." And then he goes on to say says -- that's what you

7 have in front of you: "Recent events." And he talks about Kacanik in

8 southern Kosovo and VJ activity in the border region of Kacanik. "The KLA

9 fighters moved into the area. This inevitably led to clashes with the

10 security forces, and eventually to a plan and thorough military operation

11 to remove them from the area."

12 And he goes on to say: "During the build-up to this operation,

13 the KLA brigade commander in the area refused to let the UNHCR," United

14 Nations high commissioner for refugees, "evacuate the displaced persons,

15 the IDPs from the area. This has been seen as a cynical attempt to use

16 Albanian civilians as a human shield."

17 And he goes on to cite various other events concerning a KLA

18 detaining a VJ soldier?

19 MR. SEPENUK: And if you go to the next page, please, the usher.

20 Q. Detain VJ soldier, a Dulje heights ambush, a Lebane shooting, and

21 then he also talked about kidnap Albanian police employee.

22 He says: "The KLA General Staff admitted that the Albanian police

23 employee was arrested by the KLA security service for being a spy and that

24 he's being held at their information centre. This is the first time that

25 the KLA have admitted to having a region-wide police unit that conducts

1 this type of operation. Again, the General Staff were not willing to

2 acknowledge that this return to terrorist kidnappings was not to their

3 benefit."

4 Now, did this information come to you if not in this form in some

5 other form, General? Did you learn about this?

6 A. Not in this detail I should say, but it fits more or less to what

7 I had also stated in the Milosevic trial, that the KLA tried to fill the

8 vacuum and created more or less semi-territorial authority.

9 Q. So, we're now about a week away from the war, and given that last

10 report and considering we've had testimony here by Colonel Zyrapi, and the

11 substance of that was by the time the war started the KLA had the

12 advantage of moving from a form of guerilla army to a much more organised

13 stronger army with some 17.000 to 18.000 men, combined with, if necessary,

14 a hit-and-run guerilla advantage and with the support of thousands of

15 Kosovar Albanian citizens.

16 Isn't that a fair assessment, General?

17 A. Well, I think it's -- if I look at the events which then unfolded,

18 I wouldn't see it as a fair assessment. I would see it as an expression

19 of hope perhaps on the side of the KLA, but nothing else.

20 Q. So you disagree with --

21 A. I think it's --

22 Q. You don't even know the man?

23 A. I did not know the man, but this fits with -- your statement fits

24 into the theory that some of the KLA regarded NATO as their air-force. We

25 never saw ourselves as the KLA air-force.

1 Q. In fact, General, what I'm suggested to you what happened here is

2 that the Holbrooke agreement and then the Naumann-Clark agreement -- the

3 Naumann-Clark-Milosevic agreement allowed the KLA, which had been under

4 severe pressure in the fall of 1998, to retrieve its position as Yugoslav

5 forces withdrew in fulfilment of the agreement. Instead of maintaining a

6 is it fair to say, as required by UN Security Council Resolution 1199, the

7 KLA went on the offensive. Yugoslav forces responded; and for that,

8 General, Yugoslavia was bombed.

9 MR. SEPENUK: And I have no further questions.

10 MR. HANNIS: He didn't have one there. I object. I move to

11 strike.

12 JUDGE BONOMY: That's the closing argument, is it? I don't think

13 you've required to answer that, Mr. Naumann, unless you particularly feel

14 the need.

15 THE WITNESS: Well, Your Honour, in my view this is an assessment

16 of -- on the side of Mr. Sepenuk, which obviously was not shared by the

17 political leaders of 16 NATO nations.

18 JUDGE BONOMY: Thank you.

19 Mr. Ackerman.

20 MR. ACKERMAN: Thank you, Your Honour.

21 Cross-examination by Mr. Ackerman:

22 Q. General Naumann, my name is John Ackerman. I represent General

23 Pavkovic. I take it you don't know General Pavkovic, and you've never met

24 him. Is that true?

25 A. No. I don't think that I know him.

1 Q. I want to talk a little bit about some things you said in your

2 direct examination and in your just-recently-completed cross-examination.

3 You talked about NATO not having any kind of a plan for a ground attack.

4 Are you familiar with a couple of operations called arrow 1 and arrow 2?

5 A. No.

6 Q. All right. Today you told us that in conversations with

7 Milosevic, you heard him use the words "final solution." Prior to today,

8 you had had at least two opportunities to read through statements, at

9 least one opportunity to read through your testimony in Milosevic and to

10 make corrections. And you made no corrections regarding that. It seems

11 to me those are words that anyone who has studied 20th century history at

12 all would immediately react to as being words that came from the Third

13 Reich and what happened there. And that, I guess you'll agree, would be

14 especially true of someone like General Clark?

15 A. Was that a question?

16 Q. It finally was, I think.

17 A. Well, I do not know to which extent General Clark was familiar

18 with European history, as we Europeans are.

19 Q. Well, the word "final solution" is well-known to the world over,

20 that phrase, isn't it? Isn't it something General Clark would have

21 snapped to immediately?

22 A. For me, as I said today, to me it rings automatically a bell of

23 alert, but I do not know whether this is true for General Clark or not.

24 Q. Well, I think it was true for everybody in this room when you said

25 it today. You got a kind of startled response from everybody today

1 because we all reacted to it, and I think General Clark would have, too.

2 JUDGE BONOMY: Well, Mr. Ackerman, that matter so far as the

3 witness is able to deal with it has been answered. The general point is

4 one on which you can make submissions.

5 MR. ACKERMAN: Thank you, Your Honour.

6 Q. What I find is curious, General, is that General Clark spoke about

7 this incident in some detail quoting Milutinovic in his books, and those

8 words "final solution" don't appear there. Are you aware of that?

9 MR. HANNIS: I'm not sure he quoted Milutinovic, Your Honour.

10 MR. ACKERMAN: I'm sorry, I meant Milosevic. I meant Milosevic.

11 That was a mistake. We all made mistakes.

12 THE WITNESS: I read General Clark's book. I know he did not

13 mention the word "final solution," but being obliged as I -- as this

14 proceeding today started, I can only state my recollection is "final

15 solution." And I regret that I overlooked it, obviously, when I read this

16 statement earlier on.

17 MR. ACKERMAN:

18 Q. Another thing that you talked about briefly today at page 32, line

19 12, you talked about the mistake that had been made by referring to the

20 KLA as a group of terrorists and how that tended to handicap NATO's

21 ability to deal with this situation. And I take it it's your position

22 that it wasn't that they weren't a group of terrorists. But that because

23 of NATO's position, once you had called them a group of terrorists then

24 you were handcuffed. And because of the policy of not negotiating with

25 terrorists, you then couldn't talk to them?

1 A. That's correct, we couldn't talk to them. This doesn't rule that

2 I had agreed with the assessment in -- in April 1998. And as I have also

3 said in this court, I never regarded the KLA as an congregation of angels.

4 Q. And finally, with regard to today's testimony, again, back on this

5 subject of NATO not using ground forces. You said that that

6 unfortunately was a decision that was made by -- as a result of NATO

7 members, and I take it that that decision had to do with an unwillingness

8 to risk the lives of NATO ground forces in this situation?

9 A. That is -- that's your assessment. The nations never shared with

10 us the reason why they took this decision.

11 Q. All right. I want to ask you about several matters relating to

12 the NATO approach to the Kosovo issue. I think you would agree with me

13 first of all that a sovereign state has an absolute right to maintain law

14 and order within its boundaries?

15 A. Fully agreed.

16 Q. And that a group of terrorists or terrorist insurgents trying to

17 take over and make independent a portion of a state are in violation of

18 the law and legitimate target of efforts to restore law and order?

19 A. This, I think, is an assessment which presumably cannot be shared

20 in all cases. It depends very much on the attitude of a state to -- in

21 which way he treats his citizens. If a state uses repression and

22 suppression of citizens, then it might lead to reactions on the side of

23 the suppressed citizens, which the state who acts in such a way, in such

24 an illegal way, may see as terrorist activities. But that, I think, is a

25 highly political debate which may differ from country to country.

1 Q. Assuming that I'm correct that there is a legitimate [sic]

2 insurgency, terrorist insurgency, and that a state can maintain law and

3 order by trying to end that insurgency, it really is up to that sovereign

4 state what forces and units it wants to use to accomplish the restoration

5 of law and order, whether military or police or a combination of the two.

6 Isn't that true?

7 A. There again, Mr. Ackerman, we enter a debate which I think -- in

8 which you use an interpretation of national sovereignty which obviously is

9 no longer shared by the United Nations, if I -- if I see correctly what

10 they more recently called the responsibility to protect as a content of

11 modern interpretation of sovereignty.

12 But as I do not belong to the League of International Lawyers who

13 have to judge on the modern interpretation of sovereignty or not, I think

14 we should leave it with that. You referred to an interpretation of

15 sovereignty which allows any head of state and any government to do to its

16 citizens whatever the head of state wishes to do. That is --

17 Q. Well, that -- you've misunderstood me then because that is not

18 what I'm suggesting.

19 A. At least, I would like to say that is not my understanding of

20 national sovereignty.

21 Q. Nor is it mine, and I'm sorry if I misled you in that regard?

22 JUDGE BONOMY: Before you move on, the question attributed to you

23 started with the reference to a legitimate insurgency, terrorist

24 insurgency. I take it you did not mean to say that?

25 MR. ACKERMAN: I did not.

1 JUDGE BONOMY: Thank you.

2 MR. ACKERMAN:

3 Q. What I'm trying to establish with you, General, is that if there

4 is terrorism going on in a country or a terrorist insurgency, as you've

5 sometimes referred to it, it is up to that country, the leaders in that

6 country to determine what combination of forces, police and military, to

7 use to put down that insurgency? I'm not suggesting that they can just

8 start wiping out people right and left and civilians and everything else.

9 But what forces they use is up to them.

10 A. As long as they act in concurrence with established norms of

11 international law and as long as they respond in a proportionate way, I

12 would tend to agree with you.

13 Q. And it's appropriate in the case of what you might call an

14 insurgency-type terrorism to use military forces to accomplish that goal,

15 isn't it?

16 A. That depends on an -- on the individual state. This is a decision

17 which each state has to take individually, and this also depends heavily

18 on the type of forces such a state has available. In many cases police

19 forces might be sufficient.

20 Q. Well, what I just suggested to you were pretty much your exact

21 words in a speech you gave in Israel on September 12, 2005, regarding the

22 use of military forces to combat terrorism, wasn't it?

23 A. I do not know what speech you refer to, and I do not know whether

24 you really put it out of context. I do not belong to those people who

25 believe that military forces are the proper instrument to combat

1 terrorism.

2 Q. This is a speech you gave in Herzelia in Israel 2005. Now, you

3 must remember giving that speech, don't you?

4 A. I remember.

5 Q. And you said in that speech: "The military must be ready to

6 support the police in combatting terrorism when called upon to do so."

7 A. Mm-hmm.

8 Q. Right?

9 A. Yeah. And I would not have the slightest problem with that

10 statement since to support police forces in combatting terrorism is

11 something quite normal. If you imagine for a moment - and I referred to

12 the situation of my own country - that a terrorist attack might be

13 executed in these days as we have seen by using aircraft, the German

14 police forces are not equipped to deal with an attacking aircraft. In

15 such case in accordance with our law, the state would be entitled to ask

16 the military to support the police in the defence of the country.

17 Q. Well, you didn't say anything like that in that speech in Israel.

18 That's just coming out of your mouth today.

19 A. No.

20 Q. There you were talking about -- the title of your speech was: The

21 Proper Use Of The Military To Combat Terrorism. And that's what you

22 talked about, the use of military to combat terrorism. You didn't talk

23 about aircraft attacks.

24 A. Would you kindly also mention that I said - and I think you just

25 quoted that - in support of the police.

1 Q. Absolutely, I did just quote that. I think that was fair to you,

2 wasn't it?

3 A. Then we are -- we might be closer to an agreement.

4 Q. I want to talk to you about your view of what are and are not

5 legitimate military targets. I take it you'll agree in a situation where

6 terrorist activity is going on, and especially the insurgent-type

7 terrorist activity that you talked about in Israel, that if fire is being

8 directed at your forces from a building, that that building then becomes a

9 legitimate military target.

10 A. Not necessarily, Mr. Ackerman. If the police forces are

11 sufficient to cope with that type of threat, then there is no need to

12 include military into the operation.

13 Q. All right. Let me take the word "military" out. It just becomes

14 a legitimate target and it does, doesn't it?

15 A. Then it becomes a legitimate target, that is agreed; then we are

16 in the question of what is proportionate to such a threat and what is not.

17 Q. We're going to get into that. Trust me. We're going to go there.

18 And you agreed also that that would be true, that a building would become

19 a target if it's being used as a place from which to direct fire on your

20 troops, even if it was a mosque or a church?

21 A. Of course, I have to agree, otherwise, I've -- I would deny all

22 the principles which we have used in self-defence for -- throughout my

23 life.

24 Q. What if that building, rather than being used to direct fire on

25 your forces, just had someone in it with a hand-held radio that was

1 providing information about the location of your forces and directing fire

2 from another place, does it become a target then, a legitimate target?

3 A. From a legal point, presumably yes.

4 Q. What if it is a building that has no military personnel in it at

5 all, but civilians who are passing military information along to your

6 opponent forces?

7 A. It might be very difficult to establish the evidence for that in

8 such a way that you can justify the use of lethal force.

9 Q. It might be. It might be. And we'll probably talk about that a

10 little bit later, too. Now, I take it you would agree that we go back to

11 that first example, a building from which fire is being directed at your

12 forces, that it would be appropriate to attack that building with

13 conventional infantry forces; just send the forces down to the building to

14 take out the shooter. That would be a way to do it, wouldn't it?

15 A. That's one way, yeah.

16 Q. And that way would certainly risk the lives of those forces that

17 are sent across toward that building to the extent that they become

18 targets for the shooters, right?

19 A. Could happen, yeah.

20 Q. Another way to attack to at that building and the person shooting

21 from that building would be artillery, direct artillery at that building,

22 wouldn't it?

23 A. I think it would be -- in such a case of not very reliable

24 information, it would be a rather disproportionate way to react to that.

25 Q. Well, the reliable information is that you're getting shot at by

1 people in that building. Now, if you can't direct artillery at that

2 building, then how can NATO bomb from 15.000 feet on the theory that

3 they're saving the lives of their pilots by doing that? How is that

4 legitimate and this one not?

5 A. The question of the legitimacy of NATO's action in Kosovo was

6 subject of various international inquiries; and as far as I recall, the

7 legitimacy of NATO's action was not called into question.

8 Q. Well, and that's the point of my question. It's okay for NATO to

9 bomb from 15.000 feet to protect the lives of their pilots. Why isn't it

10 okay to artillery from a mile away to protect the lives of your soldiers?

11 A. We did not bomb from 15.000 feet to protect the lives of our

12 pilots. We used military aircraft against military targets in order to

13 enforce respect for international law and to reach an end of hostilities

14 and to reach the return of some close to 1.000.000 people who had been

15 expelled. That's, I think, a slight difference.

16 Q. Well, why on earth then did NATO explain to persons who were

17 interested in this that the reason they bombed from 15.000 feet was to

18 keep their pilots from being hit by anti-aircraft fire and missiles? Why

19 would they have explained that if that wasn't the reason?

20 A. I don't know whom you are quoting. In our deliberations in the

21 military side of NATO, this aspect that you've just mentioned was not a

22 decisive element.

23 Q. I'm probably not going to find it as I stand here right now. And

24 if I don't finish with you today, I'll certainly be able to share it with

25 you in the morning.

1 What if you had the capability -- there are several buildings from

2 which people are directing fire at your troops. What if you had the

3 capability to call in an air-strike? That would be okay, wouldn't it?

4 A. You are talking about a ground operation in which you call for air

5 support?

6 Q. Yes.

7 A. Well, this case doesn't play any role in the Kosovo campaign, of

8 which -- about which we are talking, since NATO did not commit ground

9 forces.

10 Q. I'm talking about technically.

11 A. If you are talking about the hypothetical case --

12 Q. Yes.

13 A. -- that ground forces are fighting other ground forces, then it is

14 legitimate to call in air support. That's what we all do.

15 Q. It is a legitimate operation in a military operation, is it not,

16 to try to conduct that operation in a way that protects the lives of your

17 own soldiers and forces?

18 A. You have -- in my understanding, and I think that was the

19 understanding of all NATO nations at the time, of course you do what you

20 can do to protect your own forces. But we also always had in mind to

21 reduce the damage to the people of the nation, which came under military

22 operations, will be protected to the extent possible as well.

23 Q. Well, in protecting the people to the extent possible as well,

24 would probably have suggested low-level -- a low-level air campaign

25 instead of dropping cluster bombs from 15.000 feet?

1 A. You probably have never flown in a low-level aircraft, and your

2 statement would be different in you had did it. It is presumably much

3 easier to direct precision fire if you fly from above 10.000 feet than if

4 you are running in a low-level-flying aircraft in which you may have

5 terrible difficulties to properly identify the target. But you should try

6 to fly one day at 15 metres above the ground and then your statement will

7 be different.

8 Q. Well, I don't think I was suggesting 15 metres, but I think it

9 would be nice if the pilot could verify a target before he destroys it?

10 A. That is his obligation also when he flies at 15.000 feet.

11 Q. Mm-hmm. But he can't see anything.

12 A. Well, he has sufficient other means. He doesn't need his eyes.

13 He has a lot of indications in the cockpit which may allow him to really

14 hit a target quite accurately.

15 Q. Yeah. We'll get to that pretty soon, too. We're coming there.

16 Would you agree with this statement: "A legitimate target is any facility

17 that makes an effective contribution to military action and whose total or

18 partial destruction, capture, or neutralisation in the circumstances

19 ruling at the time offers a definite military advantage?"

20 A. In principle, I would agree. I add, again, the question of

21 proportionality has to be considered.

22 Q. And I think that you'd also agree that the problem with the

23 principle of proportionality is to determine what it means and how it's to

24 be applied?

25 A. That's exactly why I said it has to be considered, yeah.

1 Q. For instance, if you decided to attack a refugee camp because

2 people there are knitting socks for the army, that would be clearly

3 disproportionate. Is that correct?

4 A. I cannot imagine that anyone attacks a refugee camp deliberately.

5 Q. On the other hand, if you're attacking an ammo dump and there

6 happens to be a farmer ploughing a field next door and gets killed in that

7 process, that is a legitimate target and he was collateral damage?

8 A. Mr. Ackerman, to attack an ammunition dump, I think, is absolutely

9 legitimate in an operation.

10 Q. Of course, it is.

11 A. That collateral damages occur is something that nobody regrets

12 more than those people responsible for military operations, but you

13 unfortunately cannot rule it out entirely. But I would invite you to look

14 into the statistics of the Kosovo air campaign to see that the collateral

15 damage is really pretty low. And a lot of independent observers agreed --

16 yeah, testified that NATO took utmost care in avoiding collateral damage.

17 Q. Well, that's another thing we're going to get into as we go along,

18 but you wanted to talk about statistics. And I'm going to find those for

19 you. Unfortunately, my assistant here lost my page.

20 Tell me if you agree with these statistics. During the bombing

21 campaign, NATO aircraft flew 38.400 sorties, 10.484 strike sorties.

22 During those sorties, 23.614 air munitions were released and 500 civilians

23 were killed, approximately. Would you agree with those statistics?

24 A. I know them. And the only thing which I could add is 500

25 civilians are 500 too much.

1 Q. Well, nobody's going to disagree with that, of course. Now, when

2 we were talking about these two extreme examples that I just talked to you

3 about, the knitting of socks for the army and the attack on an ammunition

4 dump, what I was trying to do is give you extreme examples where one is

5 clearly not legitimate or the other clearly is. And, unfortunately, most

6 of the situations that we run across are somewhere in between those two,

7 aren't they?

8 A. That is a -- I think it's an assessment which I wouldn't share.

9 Q. You wouldn't?

10 A. No, I wouldn't. Most of them are in between the two.

11 Q. Well, I guess we'll get to that in a little while also. Would you

12 agree with this: It's much easier to formulate a principle of

13 proportionality in general terms than it is to apply it to a particular

14 set of circumstances because the comparison is often unlike quantities and

15 values. One cannot easily assess the value of human lives as opposed to

16 capturing a particular military objective. Do you agree with that?

17 A. I'm not entirely sure whether I would agree with this generality.

18 I agree that it is extremely difficult to apply the principle for

19 proportionality.

20 Q. Okay. A military barracks housing soldiers of the enemy, even

21 though there are numerous non-combatants there providing logistical

22 assistance, cooking facilities, clothing repair, that sort of thing, it

23 doesn't become a nontarget just because the noncombatants are present,

24 does it?

25 A. A military facility, a military barrack is I think a target which

1 can be attacked. Again, the principle of avoiding unnecessary collateral

2 damage has to be applied.

3 Q. And --

4 A. And we did this, Mr. Ackerman --

5 Q. I understand. And if -- and if, as we see in -- in the current

6 asymmetrical situations that exist in the world today, terrorists will

7 sometimes set up what amounts to barracks in a civilian area. In Kosovo,

8 it was seen in the family compounds in the various villages. And they'll

9 be sleeping there at night; they'll be taking meals there. It's a place

10 that for all practical purposes is a barracks. That's also a legitimate

11 target, isn't it?

12 A. I think we -- I do not recall any target of the way -- of the kind

13 you described that we used as a target in the NATO targeting.

14 Q. A decision to attack such a facility like the one I just talked

15 about has to be based on intelligence, surveillance, something to give you

16 some sense of what the conditions are that prevail there. And I think

17 you'll agree that's what's required of a commander in these situations is

18 that he do his best to obtain reliable information before he acts.

19 A. That's -- you're stating your personal view.

20 Q. And an important question is to what extent is that military

21 commander obligated to expose his own forces to danger in order to limit

22 civilian casualties and correct civilian objects. And that's an important

23 question that always has to be asked by the commander, isn't it?

24 A. True.

25 Q. Now, let's take this hypothetical situation: You have --

1 JUDGE BONOMY: Mr. Ackerman, you've already acknowledged that this

2 whole trial, indeed Tribunal, is beset by problems of time. The review of

3 hypothetical situations and matters which may be matters of legal

4 interpretation don't, at first sight, appear to be the best way of making

5 use of the presence of this witness when there are so many actual factual

6 situations that might be explored of which he has either direct knowledge

7 or has gathered knowledge in the course of his work. Could we not get to

8 the -- more directly to the circumstances of this case?

9 MR. ACKERMAN: Well, Your Honour, I will get there. I do want

10 to -- to suggest to you that, in my view, a significant part of this

11 witness's evidence is his evidence that in his view the actions of Serb

12 forces were disproportionate to the situation, and that is certainly a

13 legal issue, an issue of law. What's disproportionate and what is not

14 disproportionate is really for Your Honours to determine. And so I think

15 I'm entitled to explore with him this issue of disproportionality, and

16 what that is and what that means to him and how he views it.

17 JUDGE BONOMY: But can I give you an example which isn't one that

18 we are considering at this stage, at least in the case. In Racak, for

19 example, you might give the general -- the facts from the Serb side, and

20 then let's hear him tell us what he thinks about it. Now, why is it you

21 dance around the subject in hypothetical questions and don't get to the

22 actual facts that may be relevant to your quest for opinions from him?

23 He's not here as an expert.

24 MR. ACKERMAN: I know.

25 JUDGE BONOMY: And his opinions are only really of significance in

1 relation to matters of which he has some personal experience.

2 MR. ACKERMAN: Well -- and if the Chamber is prepared to ignore

3 his evidence that some of these attacks in his view were disproportionate

4 because he's not here as an expert, then I'm -- I don't have near as much

5 to talk to him about.

6 JUDGE BONOMY: That's because he's got facts in his head on the

7 basis of which he has expressed that view. And if you want to challenge

8 him on that, then I would see not only force in you doing it but the

9 provision of assistance to us, because we lack that information at the

10 moment.

11 MR. ACKERMAN: Well, my next question, actually, Your Honour I

12 think goes where you're suggesting I should go, and that is into things we

13 have heard in this case. It's hypothetical, but it does refer to -- and

14 you'll recognise it immediately, Judge.

15 Q. Assume that you're a commander who has information that there is a

16 village that is engaged in heavy support for your enemy and that enemy

17 forces are quartered there. You decide to attack that village, but you

18 understand there are civilians there. And out of concern for those

19 civilians, you begin by firing artillery over the top of that village, in

20 the hopes that that will frighten that population, that civilian

21 population into abandoning the village and, thereby, having their lives

22 saved.

23 Would that make sense to you to do that?

24 A. No, no. But it wouldn't make sense to me, and I wouldn't do that

25 if I were a military commander. Perhaps -- Your Honour, and you permit me

1 that -- first of all, make two general remarks before I answer your

2 question, Mr. Ackerman, very precisely. The first one is when I state

3 disproportionate use of force, then it was -- I referred to a statement,

4 to an assessment to which the NATO council came by looking at the

5 situation. So it is an agreement -- it was an assessment which already 16

6 NATO nations arrived at, not in -- not only me as a person.

7 Secondly, to clarify the role of the chairman of the military

8 committee in selecting targets, it was not my task to select individual

9 targets nor was it the task of General Clark. What I did was to issue

10 guidance to General Clark that this and this and this category of targets

11 is approved by the NATO council, and then to monitor whether he stayed

12 within the guidance. But I never -- I never looked of -- I never looked

13 into individual targets unless we came to a situation where the risk of

14 collateral damage was too big.

15 To give you an example, since you obviously like precise examples,

16 General Clark approached me on one -- in one situation with the request to

17 bomb the headquarters of the police in central down-town Belgrade. And he

18 had I think ample justification for doing that. I asked him -- then it

19 was the only time that I was involved in an individual targeting. I asked

20 him, Please tell me, how does this target look like in its surrounding? I

21 do not want to see that any collateral damage is done, and please tell me

22 how many munitions you will use to achieve your tactical purpose.

23 He told -- he gave me that information, and I told him, Based on

24 that, I will not recommend to the secretary-general of NATO to give you

25 the authority to do this, since the risk of collateral damage being done

1 to the hospital in Belgrade is by far too big. So go back and do your

2 targeting again and show me that you can do it in a way which will reduce

3 the risk. That was the only time, Mr. Ackerman, that I looked into an

4 individual target. Otherwise, my task was to make sure that we stayed

5 within the political agreed limits and that we did not do anything which

6 was beyond the guidance we had given.

7 Now coming to your wonderful --

8 Q. Well, first of all, let me say that is very commendable and we all

9 applaud you for that decision as the right decision.

10 A. Well, the building was bombed anyway, but there was no collateral

11 damage. That is the thing for which I think I am grateful that it was

12 done in that way.

13 But now to answer your question. If the situation were as such

14 you described it, I would regard the use of artillery in such a situation

15 as the first response of a military officer as being disproportionate.

16 Q. It's not directed at any target.

17 A. If you can take out an objective, I would in such a situation use

18 first infantry forces and attack the village or this group of buildings

19 with infantry forces. The targets which you describe do not require to

20 use tanks or artillery, and that is perhaps our different understanding of

21 what might be proportionate and what not.

22 Q. And how do you protect the civilians in that situation, especially

23 if you know that the insurgents wear civilian clothes, they drop their

24 arms when they see someone coming near? How do you distinguish --

25 A. That is something which is -- I admit, it's extremely difficult.

1 And I can also tell you, I have to do this myself when I was a student at

2 the Royal College of Defence Studies in London. They took us to their

3 training camp where they trained for the Northern Ireland insurgency, and

4 they exposed me exactly to the situation you just described.

5 And every one of us doing individual patrolling with a live-fire

6 rifle, every one of us who hit a civilian target passed the course. So --

7 did not pass the course. So I think we -- I tell you this detail to

8 indicate to you that we tried to educate our soldiers really to avoid any

9 individual -- any collateral damage and that we really tried to punish

10 those who hit the wrong targets.

11 JUDGE BONOMY: On the earlier matter of the bombing of the police

12 headquarters, who had the authority to make the decision to carry out the

13 attack?

14 THE WITNESS: In this case, Your Honour, since it would have been

15 one of the first attacks on down-town Belgrade, the secretary-general of

16 NATO had to agree to that.

17 JUDGE BONOMY: So that must have been agreed --

18 THE WITNESS: At the political level --

19 JUDGE BONOMY: -- but agreed contrary to your advice?

20 THE WITNESS: Based on my advice, yes.

21 JUDGE BONOMY: Thank you.

22 MR. ACKERMAN:

23 Q. Now, this -- this last issue we've been talking about, this

24 village that you would attack with infantry forces basically. As a

25 commander, what do you think is the -- the maximum number of your soldiers

1 you would have be killed before you decide to change your tactic? How

2 many are you prepared to sacrifice to that situation before you use

3 artillery?

4 A. That is, again, Mr. Ackerman, is a decision which you can never

5 take in a hypothetical scenario. You have to see what is happening on the

6 ground.

7 Q. Well, and that's exactly my point, General.

8 A. You have -- I think your desire is always to protect as much human

9 life as possible, and I say deliberately on both sides.

10 Q. I mean, in that situation if you could have this giant

11 loud-speaker and say, Attention, civilians, leave town. We're going to

12 start firing at the troops that are in your town. That might be a way to

13 help protect the civilians there.

14 A. And things like this were done in real war and things like this

15 are done again and again in exercises.

16 Q. And if you did that, the civilians might come to this court and

17 say, They told me if I didn't leave my village they would can I have me?

18 A. You mean the people who were sitting in the village?

19 Q. Whose lives you were trying to save. That could happen, too?

20 A. That could happen as well.

21 Q. If a military organisation of some kind decides to take over a

22 civilian building, a civilian compound, these compounds that existed in

23 Kosovo or do exist in Kosovo, is it not the obligation of that military

24 force then to remove the civilians from that compound to protect them from

25 just the thing we were talking about and not to use them as human shields,

1 for instance?

2 A. To use civilians as human shields is in my view a crime, and under

3 no circumstance -- can in no circumstances be tolerated.

4 Q. Yes.

5 MR. ACKERMAN: Would you like to break now, Your Honour? I see

6 it's 6.00.

7 JUDGE BONOMY: I think it is an appropriate time to break. I'm

8 just considering that last question. You're not going to follow it with a

9 question about the appropriate conduct of the opposing military force when

10 that doesn't happen?

11 MR. ACKERMAN: Probably not, Judge.

12 JUDGE BONOMY: Very well.

13 We've now run out of time for today, I'm afraid, Mr. Naumann. So

14 we will adjourn until tomorrow, and we'll be sitting at 9.00 tomorrow.

15 Meanwhile, as I'm sure you know very well, it's vital that you have no

16 discussion with anyone at all overnight about the evidence, either that

17 you've given or that you may yet give in this case and deal -- talk about

18 other matters entirely. Come back here refreshed, due to recommence at

19 9.00 tomorrow. Now could you please leave the courtroom with the usher.

20 [The witness stands down]

21 JUDGE BONOMY: I suspect we're well out with the guide-lines that

22 have been given in relation to cross-examination, but I hope nevertheless

23 that counsel are all alert to the need to complete cross-examination

24 within the guide-lines as far as possible or as close as you can to these

25 guide-lines. We'll see you again tomorrow at 9.00.

1 --- Whereupon the hearing adjourned at 6.03 p.m.,

2 to be reconvened on Thursday, the 14th day of

3 December, 2006, at 9.00 a.m.

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