071109ED

Page 17753

1 Friday, 9 November 2007

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 9.07 a.m.

6 JUDGE AGIUS: Buenos dias, Madam Registrar. If you could call the

7 case, please.

8 THE REGISTRAR: Good morning, Your Honours. This is case number

9 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.

10 JUDGE AGIUS: I could have continued in Spanish, Madam Registrar,

11 but it's not one of the languages of the Tribunal so I stopped it after

12 saying good morning. For the record all the accused are here. From the

13 Defence teams I only notice the absence of Mr. Ostojic, and Sarapa and

14 Mr. Petrusic, would always be behind the column, so I couldn't notice his

15 absence too.

16 The Prosecution same composition as yesterday. The witness is

17 already in the courtroom. Good morning to you.

18 THE WITNESS: Good morning.

19 JUDGE AGIUS: And welcome back. We are going to proceed with

20 Mr. Josse's cross-examination, hoping that he will finish today.

21 MR. JOSSE: I will finish today.

22 JUDGE AGIUS: Thank you.

23 WITNESS: RUPERT ANTHONY SMITH [Resumed]

24 Cross-examination by Mr. Josse: [Continued]

25 Q. The issue, Sir Rupert, that I wish to begin with this morning

Page 17754

1 relates to a matter that we touched on yesterday, and I said that I would

2 return to today, and that is the distinction between NATO and UNPROFOR in

3 relation to your command activities. Were you the NATO commander in

4 Bosnia in, shall we say, July of 1995?

5 A. No.

6 Q. Who was?

7 A. There wasn't a NATO commander in Bosnia.

8 Q. To what extent did you have a say over the deployment of purely

9 NATO rather than UNPROFOR troops and/or missions?

10 A. They had to be coordinated with me, and since NATO was operating

11 in the sky as opposed to on the ground, this was usually a matter of time

12 rather than place.

13 Q. You've already explained to us about the dual key procedure, so

14 I'm not going to go through that again. All the ground troops from, shall

15 we say, United Kingdom and France were UNPROFOR troops under your command;

16 is that right?

17 A. When they were placed by their nation under the UN command, then

18 they came under my command, yes, in Bosnia.

19 Q. And the airplanes in the sky were all under NATO control or --

20 A. We must be careful of the words.

21 Q. Please.

22 A. The air space was controlled by NATO but not all the airplanes

23 were commanded by NATO. So there were helicopters from various --

24 helicopter units from various nations that were part of the UN force and

25 there were some UN contracted - I think was the relationship - airplanes

Page 17755

1 from the Ukraine, but their movements and so forth were under the NATO

2 control as they moved around in that air space and that had to be the case

3 because of the no-fly zone.

4 JUDGE AGIUS: One moment, Mr. Josse. Following this series of

5 questions, I think some clarification is called for. General, you said

6 there wasn't a NATO commander in Bosnia. Was there a NATO command or a

7 NATO and a NATO commander anywhere in the territory of ex-Yugoslavia at

8 the time.

9 THE WITNESS: I don't think there was. The forces of NATO were

10 commanded from Naples and Vicenza. They were -- where are we, in the

11 middle of 1995? Yes. They were doing the air operations.

12 JUDGE AGIUS: So they had no base in Bosnia or anywhere else in

13 the territory of ex-Yugoslavia.

14 THE WITNESS: No.

15 JUDGE AGIUS: Okay. All right. Thank you.

16 MR. JOSSE:

17 Q. In relation to this, I would like to examine one sentence in your

18 book "The Utility of Force," 6D186 and it's page 345. Whilst that is

19 being done, let me just ask you one question. The only aircraft involved

20 in combat activity were under the command of NATO, not UNPROFOR; is that

21 correct?

22 A. If by that you mean dropping bombs or firing cannon, those were

23 NATO airplanes.

24 Q. Why might the expression combat activity cover --

25 A. Well, if you were carrying troops, that might be considered as a

Page 17756

1 combat activity.

2 Q. Thank you. So far as this is concerned, page 345, about ten lines

3 down --

4 A. I can't see which is it the left or right.

5 Q. It's right.

6 A. Okay.

7 Q. It's in vision at the moment.

8 A. M'hm.

9 Q. It's about ten lines down and the sentence that begins,

10 "Technically." I'll read it very slowly, yes, the icon is on it:

11 "Technically, both NATO and the UN were in confrontation with the Bosnian

12 Serbs, but NATO was focused only on the Bosnian Serbs whilst UNPROFOR was

13 dealing with all sides to the conflict and their respective positions."

14 What does the word "focused" mean there?

15 A. In the sense that if you've shined the light on it you focus the

16 light on that thing. In this case NATO was focused on the Bosnian Serbs.

17 Q. Were NATO, as far as you were concerned, in confrontation with

18 either of the other two parties to the war?

19 A. No. Their activities were all focused on the Bosnian Serbs.

20 Q. And whose decision was that?

21 A. Originally, if you go back, it's both the NATO council, North

22 Atlantic Council, and then where necessary it is then covered by Security

23 Council resolutions, and it's the safe area, the exclusion zone -- sorry,

24 the no-fly zones and the exclusion zone.

25 Q. And I just want to be clear about this. You are not suggesting

Page 17757

1 that you were not involved -- sorry it's a double negative -- you accept

2 that you were involved to a degree in NATO decision-making; is that right?

3 A. Not in at the level of North Atlantic Council and so forth. As I

4 said, my business was that of coordination and so forth at this stage in

5 the year.

6 Q. The rapid reaction force, what was its relationship to NATO?

7 A. The rapid reaction force was a UN force. It was -- it came from

8 NATO nations or nations who were in NATO, and it came -- it was forming up

9 during this period of June and July, and was a UN force once its elements

10 had been passed to the command of the United Nations by the countries who

11 found them.

12 Q. Could we look at page 355 of this book, please? This is a

13 sub-chapter that's headed, "We fight so as to preserve the force" and at

14 the bottom of 354, which I'm not going to read out, you deal with the

15 aftermath of the hostage taking of May 1995, how the idea of the rapid

16 reaction force gathered momentum, and then going on to 355 at the top, you

17 describe how it was going to be formed, and then about five lines down, it

18 says, "The force was not to adopt the UN blue helmets or paint their

19 vehicles white. It was an unmarked UN force. This was fine by me, they

20 were to fight, and I did not want them to look like the UN.

21 "I particularly wanted the guns. In comparison with aircraft,

22 guns with appropriate target locating and fire control systems apply fire

23 as accurately, can maintain the fire for longer, are not

24 weather-dependent, and would be under my command. They could, in the

25 right quantities, and deployment, defeat the Bosnian Serb artillery."

Page 17758

1 So in your mind, this was a force with which to fight Mladic.

2 Would that be fair?

3 A. To fight whoever was getting in my way, yes.

4 Q. Well, Bosnian Serb artillery was under the command of Mladic,

5 wasn't it?

6 A. They were the ones who were shelling me at the time, yep.

7 Q. Well, we'll come to that in a few minutes time but the -- let me

8 go on. "If this RRF were to be used successfully, its employment had to

9 come as a surprise and yet its deployment was going to be in full view.

10 It seemed to me, therefore, that I should avoid being seen as the

11 commander of the force, it should be thought of as being under the hand of

12 others, NATO, the nations, or even the UNHQ in Zagreb.

13 "If Mladic had thought the force was under my hand, especially

14 after the bombing in May, he would have made sure he had potential

15 hostages at hand to seize and guns in range of vulnerable UN positions. I

16 decided to share this understanding with no one and played my cards

17 accordingly."

18 No one means no one? Not a soul?

19 A. No, I don't think I did discuss it with anybody. No. That was my

20 own idea.

21 Q. And so the idea was what, to lull Mladic or the VRS into a false

22 sense of security?

23 A. No. It wasn't a sense of security. It was, as I've said there,

24 to conceal that this force was under my hand.

25 Q. And you were fairly open about the deployment of this force with

Page 17759

1 both the Croat and Bosniak leaders, would you agree with that proposition?

2 A. And with everybody else. There was no -- it was -- it was

3 generally known. It was in all the press. It was published -- there was

4 a Security Council resolution about it, et cetera.

5 Q. But the problem you faced, among other things, was a certain

6 amount of reticence on the part of Dr. Izetbegovic, the Croat leadership,

7 would that be right?

8 A. Oh, we had to deploy it through Dalmatia and into Bosnia, and the

9 other parties were suspicious of it as well.

10 Q. By the other parties, you mean?

11 A. I mean the Federation as well, yes.

12 Q. In your mind, as the extract I have just read out makes clear,

13 this rapid reaction force was only ever going to be deployed against one

14 party in the dispute. Would you agree with that?

15 A. The most probable party was the Bosnian Serbs, yes.

16 Q. Now, the force, as I think you told us in your evidence-in-chief,

17 consisted of British, French and some Dutch troops; that's right, isn't

18 it?

19 A. Yes. I think that's the -- was the makeup. I don't think there

20 were any other nations involved.

21 Q. In terms of the commanders, who was the British contingent in the

22 command structure in 1995?

23 A. The battle group was commanded by a Colonel Cook, if I recall

24 correctly. The artillery was a Colonel Applegate, and the air mobile

25 brigade that was held down on the coast was a Brigadier Brims, I think it

Page 17760

1 was.

2 Q. Thank you. Can you ask you about the involvement first of all of

3 an officer called Pennyfeather? I'm not sure his rank.

4 A. He was a Major General.

5 Q. Yes?

6 A. They deployed later, as a -- as a separate headquarters, to

7 stand -- after the London Conference, to connect better the actions of the

8 rapid reaction force with those of NATO, so that there was a headquarters

9 that pulled those two organisations together that was in -- in Bosnia, and

10 would act as my reserve headquarters should I be -- my headquarters is in

11 Sarajevo, should that be attacked.

12 Q. What about a Major General Wilcox?

13 A. I think Wilcox is the Chief of Staff of the headquarters called a

14 NATO headquarters, the Allied Command Europe Reaction Corps is I think is

15 its title. Hang on a minute. I think it's just reaction corps, ARC is

16 the acronym.

17 Q. And what in a sentence, if you can, was their role?

18 A. I'm not sure at the time that they had had a formal role. They

19 were certainly the headquarters that, if -- that came in to

20 Bosnia-Herzegovina in 1996 or very late 1995, and -- but depending where

21 we are in the time scale, I don't think certainly not in June that they

22 had a -- anything other than a watching brief in NATO parlance, and I just

23 don't know what their -- they were doing.

24 Q. And finally, last name in this list, a General Michael Walker?

25 A. He's the commander of that corps.

Page 17761

1 Q. Of that corps?

2 A. Wilcox is his Chief of Staff.

3 Q. On the 7th of November, at page 17653 of the transcript of this

4 trial, you were being cross-examined by my learned friend representing

5 General Miletic, and she asked you the following: "Did you ever think of

6 taking stronger action against the Bosnian side to prevent such attacks

7 from happening?" And you asked for clarification of that. And she said,

8 "Did you take any measures at all after you received such reports?" You

9 then said, "When we had a particular case, we would pursue it, and in many

10 cases these would be protested and so forth in much the same procedure as

11 was carried out with, to the Bosnian Serbs, when other things happened

12 from that side."

13 Question: "But on various cases, force was used against the

14 Serbs? Did you ever think of using force against the Bosnian side?"

15 Answer as follows, and this is what I'm going to need to ask you

16 concentrate on at the moment: "There was no case where that I can recall

17 in my time when the Bosnians attacked my forces, so I had no cause to use

18 force in defence of myself or my forces."

19 Did you mean what you said in that answer?

20 A. Yes. I'm trying to think of a case when there was an attack on my

21 forces that -- at all, let alone one that one considered using force in

22 response to it, but I can't think of one immediately.

23 Q. Well, let's see if I can help you a little bit over the next few

24 minutes. First, and some would perhaps say foremost, relates to a time

25 where I accept that you, Sir Rupert, were on leave, and that was the

Page 17762

1 unfortunate killing of the Dutch soldier, Private Renssen, on the 8th of

2 July of 1995 in Srebrenica by armed Bosniak men. Do you recall that?

3 A. Yes, I do, yes. And yes, I think it was done by the Bosnians, and

4 if I -- now you're reminding me, I think the Dutch forces withdrawing

5 through the Bosnian line in those -- in that set of circumstances.

6 Q. That may be right. I want to put -- I think the best thing is to

7 put this on the ELMO, Your Honour, because we are not sure of the number

8 and we can sort this out later, but I've got one unmarked copy here.

9 It's a letter, Sir Rupert, from General Janvier to General Delic,

10 dealing with this incident, again relating to a time when you were on

11 leave. I'm not going to read it all out, but we see that he begins by

12 saying that he deeply shocked to learn of the Bosnia-Herzegovinian army

13 hostile action against an UNPROFOR armoured personnel carrier on the 8th

14 of July, and he expressions his deepest indignation with regard to what he

15 describes as the murder of a Dutch soldier in the area of Srebrenica.

16 This second paragraph describes the incident, third paragraph the

17 same, the fourth paragraph says, and I'll go a little slower, "There is no

18 question that the fire came from your soldiers." General Janvier

19 describes it as a flagrant and totally unnecessary action against my

20 soldiers.

21 A. I'm sorry, I've moved this. There we go. Is that better?

22 Q. Thank you.

23 A. Sorry, I was just --

24 Q. If you would like to read?

25 A. No, no. I was wanting to see what date he sent it.

Page 17763

1 Q. 10th of July.

2 A. Yes.

3 Q. If you'd like to read the whole letter, feel free, but I think

4 that's the essence of it.

5 A. I was just looking for the date.

6 Q. Was this discussed at Geneva?

7 A. That, that the man had been killed was discussed or reported at

8 Geneva. I don't think we had -- I don't recall any of those facts as laid

9 out in that -- in that letter, being explained at the time.

10 Q. And it's right, isn't it, that I clearly had to show you this in

11 order to jog your memory about this, about the incident?

12 A. Indeed.

13 Q. Excuse me a moment.

14 [Defence counsel confer]

15 MR. JOSSE:

16 Q. Yes. The next item in relation to the same issue is best dealt

17 with by us having a look at 1D44 in e-court, please. This, Sir Rupert, is

18 a witness statement from a Lieutenant in the Dutch Brigade, and we are

19 only going to look at a very small portion of it. I can see my learned

20 friends looking through our list. These aren't on our list. This is a

21 result of very recent work done yesterday as a result of cross-examination

22 by my learned friend Madam Fauveau, and so we have not disclosed the use

23 of these documents. It's a decision that we literally made overnight,

24 Your Honour. That's what happens in cross-examination.

25 JUDGE AGIUS: Go ahead, Mr. Josse.

Page 17764

1 MR. JOSSE: Second page, please.

2 Q. At the bottom of that page, Lieutenant Koster says, "At the end of

3 January 1995, the Muslim fighters wanted us to keep out of a certain part

4 of the enclave." And I think this was the part that was called the

5 Bandera Triangle, stopping there. But anyway I'll go on.

6 "Major Franken and eight soldiers of the reconnaissance platoon

7 endeavoured to enter this area in order to enforce the condition of

8 freedom of movement. When they did so, they were taken hostage. I

9 believe that Zulfo, a subordinate commander in the Muslim forces, was

10 responsible for this hostage-taking. I never saw this Zulfo. He was one

11 of Naser Oric's commanders. I later heard that there was an internal

12 power struggle between these two men. When this happened, Major Boering

13 and van Alphen went to negotiate and were also taken hostage by BiH

14 fighters. In total, about 75 to 100 men were taken hostage. These men

15 were taken hostage when they were on stand-by near what is known as the

16 Bandera Triangle. This was in the western part of the enclave.

17 So according to Lieutenant Koster, this was in late January after

18 you had taken up your command. Do you have any recollection of this going

19 on?

20 A. I don't and I'm not sure that I necessarily was there then. But

21 if I had been, it was right on the time I was taking over and I don't

22 recall a briefing of this issue. I can -- I knew that things were not

23 easy and relationships were not good in Srebrenica. It's one of the

24 reasons I'd been trying to get there in the subsequent weeks, but I don't

25 remember that particular case laid out there.

Page 17765

1 Q. All right. Well, let's try again. 6D132, please. This is an

2 UNPROFOR sit-rep for the 17th of July of 1995. And it appears to relate

3 to events in Gorazde at that time. I'll read it in a moment. Were you

4 aware that there were difficulties in Gorazde at the time of the

5 Srebrenica-Zepa events?

6 A. Oh, yes.

7 Q. You were?

8 A. Oh, yes.

9 Q. Let's look at this, then. According to the information received

10 from BritBat through the SAT phone call in the night from 15 to 16 July

11 1995, the Bosnians took as hostage UKRCOY --

12 A. Ukrainian.

13 Q. Ukrainian command Lieutenant-Colonel Bakolic [phoen] and demanded

14 to give them up all weapons, equipment, and ammunition and threatened to

15 kill commander in an hour when negotiations failed. 60 men from Special

16 Forces and 100 from regular troops penetrated the Ukrainian enclosure and

17 confiscated all weapons, military equipment, vehicles, ammo, and

18 medicines. BiH supported their actions by fire at the Ukranian compound,

19 only four vehicles left and I'm not going to read out the rest."

20 Do you remember this?

21 A. Yes, I do.

22 Q. But you clearly didn't remember it a few moments ago?

23 A. No, I don't count that as the same heading, if that's what you --

24 I can give you another example of that and it happened even later.

25 Q. Well --

Page 17766

1 A. Let me try and help you by answering what I think is your

2 question.

3 Q. Go ahead.

4 A. I had authorities to use military force in self defence. I had it

5 over -- for the exclusion zones at this stage in the -- that year. The

6 case of the soldier killed by the Bosnians in Srebrenica, the case -- this

7 case, it -- by the time you knew about them, by the time it was over, you

8 were no longer within the parameters of any of those authorities to use

9 force, even if you'd wanted to, you were outside that particular set of

10 boundaries, and I thought you were asking me about the questions of where

11 one might have used it.

12 Q. And do you want to explain why this was outside the boundary of

13 your power?

14 A. Because by the time that is over, anyone knew about it, you were

15 no longer in a position to defend the Ukrainians.

16 Q. And these boundaries or perimeters were defined by whom, the

17 Security Council, by UNPROFOR itself, explain?

18 A. The rules of engagement in terms of self-defence and so forth came

19 down, if not directly from the Security Council, certainly from UN

20 headquarters, through the Zagreb, and each country had slightly -- each

21 contributing nation had slightly different interpretations of those as

22 well.

23 Q. Now, bearing in mind you now know where I'm going, perhaps you

24 would tell us other examples that come to your mind, in particular ones

25 that occurred later than this incident --

Page 17767

1 A. The one I recall is -- was in Bihac. Whether it's

2 October-November, I'm not sure, but it was later in the year, when the

3 Bangladesh contingent had a similar experience to the Ukrainians.

4 Q. And why couldn't you do anything there?

5 A. For exactly the same reason. It was over and done with by the

6 time one had discovered it.

7 Q. Do you have any recollection of any similar type of events in

8 Zepa?

9 A. Yes. I think the -- it occurred, much of what you've just

10 described there is happening in Zepa as well.

11 Q. I could show you some documents but Avdo Palic, does that name

12 mean anything to you?

13 A. He was the, if I recall correctly, the commander of the Bosnian

14 forces in Zepa.

15 Q. Yes, that's sometimes called the Zepa Brigade, that's right?

16 A. Yes.

17 Q. And he threatened to kill the Ukrainians, didn't he?

18 A. So it is said, yes.

19 Q. Yes. In an UNPROFOR document?

20 A. Yes, oh, yes.

21 Q. And UNPROFOR documents also reveal that Palic's men attacked the

22 Ukrainian compound?

23 A. I don't remember that, but if that's what it says, then they did.

24 Q. Let's just have a quick look at 6D92, please.

25 This is the 20th of July, ABiH is firing at Ukrainian company --

Page 17768

1 JUDGE AGIUS: [Microphone not activated]

2 MR. JOSSE:

3 Q. -- with heavy machine-guns, Bosnian soldiers have thrown several

4 grenades into the Ukrainian enclose. Ukrainian personnel took a defensive

5 position but didn't respond yet. Situation is extremely critical.

6 And your answer presumably would be that this had all passed by

7 such time as you could have done anything and therefore you weren't

8 mandated to try and take control of the situation?

9 A. Do the documents show what happened next?

10 Q. Not the ones that I have to hand. I'm more than happy to receive

11 any help from my learned friends in that regard.

12 JUDGE AGIUS: Yes, Mr. Thayer?

13 MR. THAYER: Mr. President, we can spend a lot of time showing

14 General Smith the same situation reports which show threats and attacks by

15 the VRS forces, attacks by the BiH forces, specific death threats from VRS

16 forces if NATO were used, and we can spend hours doing that. I'm happy to

17 go up and get those documents and bring them down, but I'm not sure it's

18 going to be productive.

19 MR. JOSSE: Your Honour, that's not the point. That's not the

20 point of this at all. The point of this arises from the answer that this

21 witness gave in cross-examination earlier, and indeed I think the question

22 that General Smith just asked is what happened immediately after this, as

23 to whether he would have been in a position to do anything about it. I'm

24 confessing that I don't know the answer off the top of my head. So what

25 my learned friend said is really not the point at all in my submission.

Page 17769

1 JUDGE AGIUS: Yes. Let's proceed, perfectly legitimate question

2 and I don't think one correlates to the other, Mr. Thayer. As Mr. Josse

3 said, this is the aftermath or sequel to the question which Madam Fauveau

4 had asked and which the general had answered.

5 Yes, Mr. Josse. We are at a point where the General Smith was

6 about to possibly tell us what happened after this. Are you in a position

7 to -- you asked whether there were documents --

8 THE WITNESS: I just wanted to know if the document went on or

9 anything like that to explain what happened next. I -- I would expect

10 that Sector Sarajevo would have started to get on to their opposite

11 numbers in the Bosnian army, possibly telling my headquarters and my

12 headquarters doing the same, to ask what the hell was going on and to stop

13 it. I don't know whether it stopped or if those attempts were overtaken

14 by events, but I know that in -- at about this time, there is this event

15 in which, if not a lot of weapons, some weapons were taken from the

16 Ukrainians by the defenders in Zepa. And I suspect this is the event, but

17 I don't know. That's why I was asking the question.

18 JUDGE AGIUS: Thank you. Yes, Mr. Josse.

19 MR. JOSSE: I am going to return to it a later in another guise,

20 but I'm going to move on to another topic if I may at the moment.

21 Q. You have been asked a fair amount already about the failure of

22 UNPROFOR to demilitarise the enclaves, and you would accept that UNPROFOR

23 did not demilitarise the enclaves. Let's start with that.

24 A. No, we didn't. Nor do I think it was -- that UNPROFOR's business,

25 and I'm going back into the 1993-94 time, was not understood that they

Page 17770

1 were the ones to demilitarise it, as in take all the weapons away and so

2 forth. It was the understood, I think, as that they were there as it

3 were, in an observer, in a -- role, rather than the executive role. But I

4 quite agree it wasn't demilitarised.

5 Q. Would you accept that there were constant complaints from

6 Bosnian-Serb military and political leaders that the enclave was not

7 demilitarised? And when I say complaints, I mean complaints to UNPROFOR.

8 A. I -- they had been happening, yes. They were much -- they were--

9 much more before my time than in my time, but, yes, that had been

10 happening.

11 Q. And we could look at some documents where Karadzic complained to

12 you and more particularly complaints were constantly made by the Bosnian

13 Serb liaison officer, Lieutenant-Colonel Indic in meetings he had with his

14 counterpart. You're probably aware of that?

15 A. I quite agree. That was going on.

16 Q. My question to you, Sir Rupert, is why did you do nothing about

17 it?

18 A. I've explained. My -- the understanding originally was that this

19 was a business between the parties to demilitarise: The UN was there in

20 its standing-in-the-middle role and that was the situation that I was in

21 in the Cessation of Hostilities Agreement when I arrived. And so the

22 basis on which I was operating was that -- was from the situation when I

23 arrived. I wasn't going to be able to turn the clock back.

24 Q. I'd like to examine with you the answer you gave to this question

25 or a similar question when posed at the Dutch parliamentary inquiry, small

Page 17771

1 extract of which you've already been asked about. It's 5D489. And it's

2 page 680 at the bottom. At the bottom of the page, you in fact say, your

3 question --

4 JUDGE AGIUS: One moment, which column, Mr. Josse?

5 MR. JOSSE: Far right-hand column where the cursor is at the

6 moment.

7 Q. Your question is should we have forced the Bosnians to disarm?

8 And the questioner clarifies that by saying, yes, that is right, but I do

9 not mean that in moral terms. And this is your answer, and I should add

10 that the questioner in his original question had made clear that this

11 related to Srebrenica or Zepa.

12 "Leave aside whether we should have done so or not. In principle

13 terms and in practical terms, the argumentation for not taking that action

14 was that we were impartial. We did not use force on either party because

15 it was their agreement. It was up to them either to stick to it or not.

16 Secondly, there were considerable other pressures to arm the Bosnians and

17 to encourage them, from the United States" --

18 JUDGE AGIUS: Because we are moving to the next page, trying to

19 follow.

20 MR. JOSSE:

21 Q. --"and others. All of us faced another set of pressures, me,

22 Zagreb, the Security Council, all whatever. The Serbs demanded that we

23 should police the other side in this agreement. That was precisely how

24 the Bosnian Serbs were approaching the UN. 'You, UN, have agreed to this

25 and you agreed that they would be disarmed. Why do you not disarm them?'

Page 17772

1 "However, the Bosnians were equally saying, 'You agreed to this

2 and you were supposed to be able to supply us but you are not. Since you

3 are not able to supply us, we will now go to fight for supplies.'

4 "We entered this argument in which the UN finished up as a shield

5 of one and a hostage to the other, to be punished by either of them

6 because we were not doing what they wanted to do."

7 Do you stand by that answer?

8 A. Yes.

9 Q. Did you relay that answer at the time to Karadzic and Mladic?

10 A. Not those terms, no.

11 Q. Why not?

12 A. Because they were part of that answer.

13 Q. Well, explain that, please.

14 A. They were part of my problem. I'm now outside it to explaining it

15 to somebody else. I'm explaining what was going on at the time.

16 Q. I don't mean -- perhaps, let me be clear. I don't mean the

17 hostage and shield point. More the point that you were impartial and it

18 was their agreement, and therefore really it was their problem. That's

19 what it amounts to; isn't that right?

20 A. I explained that when you got the situation such as you describe

21 of people complaining about they hadn't disarmed, I cannot recall exactly

22 how I answered the specific question at the time, and I would have

23 certainly explained that the UN were in no position to do anything about

24 it, yes.

25 Q. And did you make it clear that it was their agreement and

Page 17773

1 therefore their problem? That's my question.

2 A. I don't remember doing it in those terms, no.

3 Q. Because if it was their problem, they had to do something about it

4 in the Bosniak case, they needed to get more supplies into the enclave.

5 You say as much in your answer, correct?

6 A. I say that's what they were doing. I don't remember telling them

7 that that's what they should do.

8 Q. And so far as the VRS is concerned --

9 A. And I certainly never told anybody to attack Srebrenica.

10 Q. Well, no. But that's a logical consequence, isn't it?

11 A. No, not if I'm sitting in my position in the UN, not at all

12 logical.

13 Q. Well, isn't it -- if you're saying to these parties, you've got to

14 police your own agreement, it's accepted -- let me finish, it's accepted

15 that the Serbs, I beg your pardon, that the Bosniaks, are conducting

16 military activity from within the enclave, the logical conclusion is that

17 the VRS are going to do something about it?

18 A. I don't accept that logic, from my position as the UN commander,

19 and I didn't tell them that they had to police their own agreement.

20 Q. Let me try again. Isn't that the logical conclusion to the answer

21 you gave the Dutch parliamentary inquiry?

22 A. It does not, if an agreement isn't being followed through, it

23 doesn't follow that you, the other party to the agreement, then carry out

24 your own actions to put it right. That doesn't follow at all. It doesn't

25 follow in any setting. If you and I were on the street and had an

Page 17774

1 agreement, you would go to law and not to attack me on the street, just

2 because I wasn't doing what you were doing.

3 Q. I thought you might say that, Sir Rupert, but you're the soldier

4 and I'm the lawyer. Soldiers don't behave like lawyers, do they? Live in

5 the real world is what I'd suggest to you?

6 A. I think you should join the real world discover --

7 THE INTERPRETER: Could counsel and witness please slow down for

8 the interpreters, please?

9 JUDGE AGIUS: Yes. Let's -- Mr. Josse and General Smith, please,

10 get back to question and answer, please, and avoid such -- such

11 interludes, however entertaining they might be. But your next question.

12 And slow down as well.

13 MR. JOSSE: My fault.

14 Q. Could you just repeat why you say I need to live in the real world

15 because the interpreter interrupted understandably because we were both

16 going too fast.

17 A. Because soldiers have to operate within the law as well.

18 MR. JOSSE: Could I have a moment, please, Your Honour?

19 [Defence counsel confer]

20 MR. JOSSE:

21 Q. Since UNPROFOR were unable to do anything about the

22 demilitarisation of the enclave or were unprepared to do anything about

23 it, what options were open to the VRS? Lawful options, of course.

24 A. Oh, they had every opportunity to continue the blockade of -- the

25 military blockade as opposed to the humanitarian blockade of the enclave.

Page 17775

1 Q. And you accept, don't you, that weapons were being smuggled in?

2 A. Yes.

3 Q. So that that in itself was a possibility, not a very easy thing to

4 do, when you've got lorries full of food, buried somewhere within the

5 lorries are contraband weapons?

6 A. That appears to have happened at least once, yes.

7 Q. Well, at least once, yes. Let's have a quick look at 6D179,

8 please. This is a Muslim document. We'll have the English up in a

9 moment, I'm sure, but to help it comes from a Dr. Esad Hadzic who

10 describes himself as the 2nd Corps assistant commander for intelligence,

11 and it's to the command of the 28th Division. And it's dated the 26th of

12 June of 1995 and it says, "In the morning hours of 26 June 1995, our

13 forces attacked from the Srebrenica area and set fire to the village of

14 Visnjica. According to as yet undetermined information, the Chetniks had

15 casualties among the civilian population." Were you aware of that attack?

16 A. Not in that specific specificity, but I remember that towards the

17 end of June, there was at least one, if not more, attacks out from

18 Srebrenica.

19 Q. And didn't it become inevitable at that point in time that the VRS

20 would take military action to stop their civilians being massacred in this

21 manner?

22 A. Inevitable, no. That it didn't surprise me that there then

23 followed a series of operations and indeed you've already seen documents

24 with me saying that I'm expecting this to happen.

25 MR. JOSSE: Your Honour, could we go into private session, please?

Page 17799

1 A. That is correct. Was he chief? Yes, he was.

2 Q. And in fact he was subsequently ennobled and is Lord Walker of

3 Aldringham; do you agree with that?

4 A. I think he is.

5 Q. Yes. I have nothing else. Thank you very much.

6 JUDGE AGIUS: Thank you, Mr. Josse. May I have confirmation first

7 that there is no other Defence team that wishes to cross-examine General

8 Smith?

9 MR. HAYNES: I certainly don't. Thank you.

10 JUDGE AGIUS: Anyone who wishes to -- no, we hear none. One

11 moment. Re-examination, Mr. Thayer?

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

13 Re-examination by Mr. Thayer:

14 Q. Good morning, General.

15 A. Good morning.

16 Q. General, I'd like to show you a couple of documents and this will

17 address some questions that Mr. Josse had for you, and I will need the

18 assistance of Madam Usher. This was an area he just brought up towards

19 the end of his examination. I want to show you a sit-rep dated the 16th

20 and 17th of July. The relevant portion will be from the 16th of July.

21 And if we could -- it's not in e-court. If we could just scroll up just a

22 little bit, or just push it, there we go.

23 General, you can see there it's the 16th and 17th of July, and

24 we're at the 16th of July for the purposes of that middle column. Do you

25 see that, General?

Page 17800

1 A. Yes.

2 Q. Okay. If we slowly scroll down, do you see the numerous entries

3 for UKRBAT, that's the Ukrainian Battalion in Zepa?

4 A. Yes.

5 Q. And there is a column of times on the left. Now, if we could

6 kindly turn the page, please, Madam Usher? Do you see the entry at 19.55

7 hours? It's the very last entry coming from the Ukrainian company in

8 Zepa?

9 A. Yes.

10 Q. Can you read that, please?

11 A. "The Serbs arrived to check-point 2, grid reference 481654 and

12 threatened the Ukrainian company personnel that they will shoot them in

13 case that the NATO aircraft strikes over the BSA positions again.

14 Q. Let me just put another document. I'll identify these for the

15 record by the ERNs in a moment. It's a sit-rep dated the 16th of July.

16 And if we could move it up just a little bit, I'm sorry, scroll down,

17 please. There is an entry under Charlie. Would you read that, please?

18 A. Just the high-lit bits or the whole of Charlie.

19 Q. If you could start with the first line, please.

20 "Re-establishment..."

21 THE INTERPRETER: Could you please read into the microphone.

22 A. I was just finding it easier for the -- "Re-establishment to

23 communications between base and check-point 2, 481654, reported. The

24 personnel of this check-point mounted defence. The Serbs directed their

25 weapons to Ukrainian soldiers. The Serbs," re -- I'll -- reiterated spelt

Page 17801

1 wrong, "That if NATO undertakes any actions against them, they will kill

2 check-point personnel."

3 Q. Okay. Thank you, General. I think that's it for the ELMO for the

4 moment. And for the record, this second document was R 043-4743. And

5 we'll give it the 65 ter number of 2959 for the record. The first

6 document is ERN 0365-4126 to 4127. And that will be P02958 for the

7 record.

8 Now, if we may have 65 ter 2340 E which will be the English and B,

9 which will be the B/C/S, displayed, please? General, while we are waiting

10 for the B/C/S, this is an intercept taken by Muslim army intercept

11 operators of VRS channels on the 16th of July, and we can see there at

12 1731 hours is the time that they have intercepted this conversation.

13 If we could scroll down on the English a little bit, please, as

14 well? There is a reference first of all to the boss, the boss received

15 it, "Call the UNPROFOR command in Sarajevo up there if you can, and tell

16 them that we'll destroy UNPROFOR forces here in Zepa if they engage in air

17 strike." And towards the bottom you see there is a reference, there is a

18 statement, "Threatened them that we'll shell them as we did."

19 General, do you recall whether this order to communicate this

20 threat to kill UNPROFOR forces by the VRS was communicated to you in

21 Sarajevo? Do you have a recollection of that?

22 A. I don't recall that being -- this incident, I don't recall it at

23 all, or the threat.

24 Q. Now, if we may have 65 ter 528 on e-court, please, and we'll be

25 looking at page 51 to begin with. And again we are just going to be

Page 17802

1 looking at a couple of things in connection with something that Mr. Josse

2 brought up today. You remember some questions he had based on an ABiH

3 document about the raid on the 26th of June, it's the village of Visnjica;

4 you remember that?

5 A. Yes.

6 Q. I want to talk a little about some of the activities that were

7 going on earlier in the months. If we look at paragraph 223 we will have

8 to scroll up to the top please, there we go. We are talking about the

9 right-hand corner.

10 It says, "In June 1995, the period of relative military inactivity

11 came to an end. On 1 June a Serb raiding party entered the enclave

12 ambushed and reportedly killed a number of Bosniak civilians. On the same

13 day the BSA instructed UNPROFOR to move observation post Echo and UNPROFOR

14 position on the southern boundary of the enclave," and then later on it

15 says, "On 3 June the Serbs attacked the position with hand held weapons,

16 mortars, and anti-tank weapons.

17 General, do you recall the military activity beginning to pick up

18 on or about the 1st of June, do you recall that?

19 A. Yes. It's all wrapped up in my memory with the May, the end of

20 May bombings and the hostage taking. But I can remember that and the loss

21 of the OP.

22 Q. And if we turn the page, please, to page 52, at paragraph 225, you

23 see there is a description of the attack, "During the attack in the early

24 morning of 26 June, several houses were burned and either two people were

25 killed according to Bosniak sources or four according to the Serb sources.

Page 17803

1 "The attack although relatively minor in comparison to the Serb

2 attacks which preceded it led to strong Serb condemnations." There is a

3 description of a protest by General Mladic, and then at the very end,

4 "Mladic failed to mention what UNPF had reported to United Nations

5 headquarters three days prior to the raid on Visnjica, namely, that the

6 BSA had apparently fired 20 shells into Srebrenica town killing one woman

7 and injuring another two civilians."

8 General, do you remember these events as described here?

9 JUDGE AGIUS: One moment, before you answer, General, yes,

10 Mr. Josse?

11 MR. JOSSE: Highly selective reading in my submission. The whole

12 paragraph certainly got to be read by the witness.

13 MR. THAYER:

14 Q. By all means, General, if you -- feel free to read the whole

15 paragraph?

16 JUDGE AGIUS: General Smith, the whole paragraph.

17 THE WITNESS: The whole 225?

18 MR. THAYER:

19 Q. To yourself, if you like, sure.

20 A. Not all of them, just that paragraph.

21 JUDGE AGIUS: Or any other paragraph you think might be relevant

22 after having read that.

23 THE WITNESS: And this is still in early June. No, during -- this

24 is late June, yeah. My memory of the whole of the period from May through

25 to July was there was this -- these attacks and incidents going on. We

Page 17804

1 were in -- we UNPROFOR were increasingly powerless because we had these

2 people taken hostage. The use of air power had been withdrawn, the keys

3 had been taken away from the military commanders. And we were -- and

4 these events were happening. The precise order of them and so forth, I

5 don't remember with any great clarity.

6 MR. THAYER:

7 Q. Now, yesterday you were shown some of the demilitarisation

8 agreements that had been entered into. I want to show you one document in

9 connection with those. And with the Court's indulgence -- may we have

10 2951 on e-court, please? And if we could just scroll up just a little bit

11 more on the English, please, little bit more. Just a tad more. There we

12 go. Thank you.

13 As you can see, this is a report or submission by Colonel Palic

14 dated 9 July to the Armija General Staff, the 2nd Corps and 28th Division.

15 He refers to it being the fifth day of the VRS attack on Zepa, civilians

16 wounded, among two children, 30 houses destroyed.

17 There is a specific reference here to: "If this situation

18 continues, we have the approval of the commander of the Ukrainian unit to

19 take back from them the weapons that we surrendered. Since we are a

20 demilitarised zone, we ask for your views on this issue."

21 You've already heard some references to demands for weapons from

22 weapon collection points or otherwise. My question to you is simply:

23 Would that be a violation of any of these agreements to agree to hand back

24 the weapons to the Bosnians under these circumstances?

25 A. I don't -- I don't remember the -- the basis of the original

Page 17805

1 negotiations where that -- if that agreement existed, it would have been

2 in there. The -- I have a better, slightly better memory of the weapon

3 collection points that came into being when NATO declared these exclusion

4 zones, and there, there was an understanding that they -- the weapons

5 would all be collected. But if it was necessary to -- for them to be made

6 available for self defence, then they could be. And that -- and that, if

7 I recall it, was true of all the weapon collection points for both sides.

8 Now, whether this is wrapped up in that or not, I don't know.

9 Q. Okay. You were asked some questions yesterday by Madam Fauveau

10 about when you knew what General Miletic's position was, and your answer

11 at page 17621 was, "What I can't tell you is just how much I knew before I

12 saw those documents and how much I'd forgotten and so forth."

13 I want to show you a document, General, that I haven't shown to

14 you before because we didn't have Rule 70 clearance when I met you for

15 your proofing session. And this is 2952, please.

16 JUDGE AGIUS: Yes, Madam Fauveau?

17 MS. FAUVEAU: [Interpretation] Your Honour, I don't object to the

18 witness seeing and commenting on the document, but I'd like the answer to

19 this document would be limited to the time when this document was written

20 and this is completely outside the indictment.

21 JUDGE AGIUS: What's your comments to, to that, Mr. Thayer?

22 MR. THAYER: Again, Mr. President, this is not completely outside

23 the time of the indictment, and I think we're entitled to show the

24 document to General Smith and see how it refreshes or does not refresh his

25 recollection as to what he knew about General Miletic's position during

Page 17806

1 there period of time.

2 JUDGE AGIUS: All right. Let's proceed and then we regulate the

3 questions and answers accordingly, if it is necessary, if it becomes

4 necessary.

5 MR. THAYER:

6 Q. Do you see the document, General?

7 A. Yes.

8 Q. And we is see that that the date is 19 September 1995?

9 A. M'hm.

10 Q. And it's described as the notes from the meeting between Generals

11 Smith, Bashale [phoen] and Generals Militic and Milosevic, and I don't

12 think there is any disagreement that these are the more specific notes

13 that were referred to in P02908 which was another document memorialising

14 this meeting on the 19th of September, we've already talked about that.

15 If we could go please to the second page of the document, the very first

16 sentence states that "Following further discussions between the Holbrooke

17 team and president Milosevic, another meeting was held between General

18 Smith and Bashale and Generals Milosevic and Miletic (Miletic is Mladic's

19 DCOS..." how do you read that?

20 A. Deputy Chief of Staff.

21 Q. "And today was the first time we had seen him in the flesh.)"

22 Does this refresh your recollection at all, General, as to what your

23 knowledge was of General Miletic's position during the period in time?

24 A. I can't be sure. What it tells me is that Baxter knew it, so if

25 I'd asked him he'd have told me. That I can be sure but I -- I couldn't

Page 17807

1 say that it improves my memory to any great degree.

2 Q. Now, the day before yesterday you were asked by Madam Fauveau, and

3 this is at page 17624 of the transcript, "So you just said that the Armija

4 and the VRS didn't have the same organisation, so is that correct that it

5 is quite possible that there are significant differences in the importance

6 of different positions in the two armies?"

7 And your answer was: "I think it's probably fair to say that this

8 is coloured by the personalities holding the positions rather than the

9 positions as they stood in some organisational chart."

10 And you were also asked if you agree that the organisation of

11 western armies could be described as functional as opposed to the more

12 linear organisations of the Soviet bloc. I just wanted to follow up very

13 briefly on those two ideas that were put out to you. To what degree, if

14 any, did the size of the VRS Main Staff from your observations and

15 dealings with them affect how it operated?

16 JUDGE AGIUS: Yes, Madam Fauveau?

17 MS. FAUVEAU: [Interpretation] Before the witness answers, one

18 should ask him if he really knows the size of the Main Staff of the army

19 of the Republika Srpska.

20 JUDGE AGIUS: Yes. Taking into account Madam Fauveau's remark, or

21 comment, or suggestion, General, can you answer Mr. Thayer's question?

22 THE WITNESS: I was -- I was about to answer with another

23 question, which is its size in comparison to what?

24 MR. THAYER:

25 Q. Well, let me ask it this way: In your experience and observations

Page 17808

1 of the VRS Main Staff, can you describe whether -- actually let me ask you

2 with respect to the VRS in general. From your observations and dealings

3 with them, what was the -- the availability to it of an experienced

4 officer corps?

5 A. In my understanding of what I was looking at and seeing and

6 dealing with is that the Bosnian Serb army had a great deal more

7 professional and trained officers than the other two, the Bosnian and the

8 Federation armies. In comparison, they had a shortage of manpower. That

9 would be the, I think, the primary difference between the two in answer to

10 your question. I can go on expanding if you want me to but...

11 Q. Well, let me try to focus it a little bit. And based on your

12 observations and interactions with the VRS Main Staff, in the context of

13 your discussion of the capability and practice of the Main Staff to detach

14 its forward commanders or its assistance commanders forward in the field,

15 to what degree, if any, was that a product of the availability of high

16 level commanders, specifically within the Main Staff?

17 JUDGE AGIUS: Yes, Mr. Josse?

18 MR. JOSSE: My objection is how does this arise? Now it's no

19 question it doesn't arise from anything I asked. The question is whether

20 it arises from anything that Madam Fauveau asked. I would suggest it

21 doesn't. She cross-examined the witness about some general propositions

22 to do with western and eastern armies. She was very careful to avoid this

23 sort of specifics, and the original question in re-examination was perhaps

24 permissible, but very quickly, my learned friend has strayed away from the

25 areas that Madam Fauveau cross-examined upon, and it is extremely

Page 17809

1 important, bearing in mind, I certainly made a decision not to

2 cross-examine on this area, that the Court determine whether this is a

3 proper line of re-examination. I submit it does not arise.

4 JUDGE AGIUS: Yes, Mr. Thayer?

5 MR. THAYER: Mr. President, this is also bound up in questions

6 that may have had a generic sense to them but were clearly aimed at trying

7 to identify or characterise General Miletic in a particular way. The

8 questions about rank, about having commensurate rank at certain positions,

9 were all clearly designed to focus on the role of her client. And if I

10 may be permitted to put one portion of a meeting to the general, I think

11 that the question will be precisely focused and that will be my last

12 question on this issue.

13 JUDGE AGIUS: Madam Fauveau?

14 MS. FAUVEAU: [Interpretation] Your Honour, I firmly object to such

15 a characterisation of things because when my colleague was asking

16 questions that was part of the expert statement of this witness, it was

17 clearly -- it was clearly meant to be linked to the accused here.

18 However, I don't think it should be a basis to ask questions on the VRS

19 and with the point of view that he speaks as an expert.

20 MR. THAYER: Mr. President, just to be clear, I will be asking

21 General Smith based on his observations how is what I would like to put to

22 him consistent or inconsistent with his observations and that's as far as

23 I wish to go, no expert testimony to be elicited.

24 JUDGE AGIUS: Why don't you go straight to the question?

25 Dispensing of this one, because if it's -- it's supposedly a question that

Page 17810

1 you're putting so that the next one becomes more clear, I think we can

2 hear your question straight away.

3 MR. THAYER: Absolutely.

4 JUDGE AGIUS: And I think you can frame it to incorporate what you

5 had in mind in the first place.

6 MR. THAYER: Thank you, Mr. President. If we may be shown 2953,

7 and we'll be looking at pages -- or page 35 of the English and 29 of the

8 B/C/S, please. With the Court's indulgence. May we try page 44 and see

9 if we have better luck, please, with the English, and page 37 of the

10 B/C/S. There we are.

11 Q. Now, General, these are -- this is a transcript of the minutes and

12 tape recording of the 52nd session of the National Assembly of the

13 Republika Srpska held on 6 August 1995. This is a portion of a statement

14 made by General Tolimir on this occasion to the National Assembly. And if

15 we look at the first full paragraph, it reads, "It has been said here that

16 the General Staff was holding long meetings. I just want to say the

17 following thing. We are the smallest General Staff in the world among all

18 General Staffs either in peace or war, and all the officers of the General

19 Staff are at the front. General Miletic is currently in the General Staff

20 and it was always so. General Milosevic will not be left alone as he

21 never was.

22 "We are always sending someone from the General Staff and we are

23 still doing it. There is a forward command post that is stronger than his

24 command is and it is located in that part of the Sarajevo front. There

25 are two forward command posts of the General Staff in his zone. We have

Page 17811

1 been keeping General Milovanovic as the most experienced commanding

2 officer as well as General Mladic. Pardon me," and that's Tolimir

3 speaking. "Maric. At Grahovo Glamoc front and in line with a part of the

4 Main Staff and the operations for four to five months, and I think that it

5 cannot be accepted, being a member of the General Staff, I cannot accept

6 this statement because we do not hold the meetings at all. We make expert

7 analyses, we prepare directives, and based on those directives we all go

8 in the field and work in accordance with the assignments that we receive.

9 We carry out the assignments in accordance with our capabilities.

10 Our manpower now is just -- I should not say the number. It might be a

11 shame for me to say it and for other people to hear it since some

12 journalists are present here."

13 General, my question to you is having just heard that statement

14 from General Tolimir, is that consistent or inconsistent with your

15 personal observations of how the VRS Main Staff operated?

16 A. That is broadly consistent, yes.

17 JUDGE AGIUS: Yes, Mr. Josse?

18 MR. JOSSE: Well, it's happened now, but I'm going to mention that

19 that is an outrageous leading question. To use a document like this which

20 the witness has absolutely no connection with, never seen before, to ask a

21 question is it consistent or inconsistent is not the way to conduct a

22 re-examination.

23 MR. THAYER: Well, if I may be permitted to follow-up given the

24 answer we can find out.

25 JUDGE AGIUS: But it was a direct question and re-examination

Page 17812

1 you're still in the same position as you are when you are examining a

2 witness in chief. And the practice here, throughout this trial, is that

3 when there is an objection to the use of direct or leading questions, you

4 avoid using them. So --

5 MR. THAYER: I'll continue, Mr. President.

6 JUDGE AGIUS: Go ahead and keep that in mind please that you have

7 a standing objection from Mr. Josse at the moment.

8 MR. THAYER:

9 Q. Now, General, when I asked you whether it was inconsistent or

10 consistent your answer was it was broadly consistent. Can you be more

11 specific as to what you mean by that?

12 A. Yes. He is describing the establishment of these forward

13 headquarters alongside subordinate headquarters and that they shift them

14 from point of effort to point of effort, and there is a shortage of

15 manpower.

16 Q. And what is inconsistent in that statement with what your

17 observations were of how the VRS Main Staff operated?

18 A. I -- and this may be in the terminology -- if he's referring to

19 the Main Staff as just the main headquarters, then the inconsistency is

20 that I understood and saw all their command arrangements as being part of

21 the Main Staff as opposed to the main headquarters.

22 Q. Okay. Now, I want to move on to another topic quickly, General.

23 Madam Fauveau showed you an excerpt from the NIOD report

24 concerning the level of medical supplies in Srebrenica in early April and

25 you had some disagreement about whether what was being talked about in

Page 17813

1 that section had to do with DutchBat medical supplies or the situation in

2 Srebrenica itself and that was at page 17662 to 663 of the transcript.

3 And she read to you a section which ended with the statement by the Dutch

4 Minister of Defence having to do with the state of affairs on April 10th.

5 I want to direct your attention to a section of NIOD just a couple

6 of pages later in that same chapter, General, and this is at 2954. And if

7 we could turn to the next page, please? And we will be focusing on the

8 right-hand column, please. General, do you see the paragraph beginning

9 with "The field dressing station treated"?

10 A. Yes.

11 Q. Okay. You see it refers to the field dressing station treating a

12 Bosnian woman for seven weeks in the months of April and May of 1995. And

13 it goes on to describe why she was there. "The consumption of medical

14 supplies required for her heavy demands on the stock." If we move down a

15 little bit, "Since the hospital staff were unacquainted with this type of

16 case and Medecins Sans Frontieres had almost run out of medical supplies,

17 an appeal was made to the know how of DutchBat's surgical team.

18 "The hospital had asked DutchBat for a second opinion on 5 April

19 after which the patient was transferred to the compound in Potocari where

20 she was stabilised and prepared for transport to Sarajevo. Although

21 permission had already been granted for this transport, the Bosnian Serbs

22 at Zvornik refused passage from the unit to the Norwegian medical

23 detachment in Tuzla which was to fetch the woman.

24 "Since the woman would die if she was not given medical

25 treatment, DutchBat decided to continue to look after her. An entire team

Page 17814

1 was needed for her intensive care which meant that the programme of

2 humanitarian operations had to be completely stopped."

3 Now, if we move down just a little bit in that paragraph, it

4 states that the materials required for her treatments had been in short

5 supply to start with and were soon exhausted --

6 THE INTERPRETER: Could you please slow down for the benefits of

7 the interpreters, thank you.

8 MR. THAYER: My apologies. I'll slow down.

9 Q. "The medicaments she needed then had to be smuggled in by convoys

10 of DutchBat personnel returning from leave. Oxygen had to be made from

11 atmospheric air and her nutrition had to be improvised. After six weeks

12 treatment, however, the woman died of an internal -- of an intestinal

13 infection which had affected many people in the compound from time to

14 time. One of the things that had to be smuggled into the enclave for the

15 woman's treatment was a particular type of muscle relaxant. The

16 Norwegians in Tuzla --

17 JUDGE AGIUS: Slow down because the accused are having problems

18 with interpretation.

19 MR. THAYER:

20 Q. "The Norwegians in Tuzla did not have it in stock, and so would not

21 have been able to supply it even if they had been allowed access to the

22 enclave."

23 Now, if we just turn to the next page, please, and we will be

24 focusing on the left side, "Since the woman's general health and her

25 prognosis after Krdic [phoen] were good, intensive care was continued.

Page 17815

1 However, as mentioned above, her care up to the time of her death made

2 great demands on the medical supplies. Dopamine and intravenous

3 antibiotics were completely used up, as were the drip feed supplies,

4 though the pharmacist managed to make up a replacement mixture from tinned

5 Protifar obtained by making an appeal to all body builders in DutchBat and

6 peanut butter.

7 General, did you ever hear in your command in Sarajevo about this

8 case of this woman who was treated by DutchBat and the effects it had on

9 their supply?

10 A. I don't recall that case at all.

11 Q. And do you recall being made aware that the DutchBat medical

12 supplies in April had been depleted to the point described there?

13 A. I certainly knew they were short of medical supplies. That I

14 knew. Along with other things. But the -- the degree, I don't recall how

15 depleted.

16 Q. Now, you were asked a lot of questions about food resupply to the

17 enclaves. Just briefly, what was your understanding as to how much or how

18 little the civilian populations of Srebrenica and Zepa depended on the

19 food and other supplies being delivered by UNHCR and other NGOs?

20 A. Again, this is memory. They depended -- they needed the resupply,

21 and particularly after the winter. There was a capacity to -- there was a

22 certain capacity within the pockets to feed themselves and so forth, but

23 a -- but extra food particularly the bulk things like flour and so forth

24 was necessary. I can't remember the exact quantities or anything like

25 that.

Page 17816

1 Q. Now, General, in answer to one question, you said that the

2 DutchBat soldiers, when you visited them in March, certainly weren't

3 starving. And I want to show you a sector Sarajevo report from June 3rd.

4 That's 2956, please. And there is the cover page, General, do you see

5 that?

6 A. Yes.

7 Q. If we could go to page 3 of the document, just want to briefly

8 draw your attention to one paragraph, it's at the bottom. It's headed

9 "Zepa Supply Crisis UN Soldiers cut Down Their Rations." "The supply

10 situation in Zepa has reached a critical point. There have been no fuel

11 convoys to Zepa since 7 March which compelled the Ukrainian company there

12 to stop running generators.

13 "Consequently, refrigerators are not suitable for food storage.

14 Since 23 May the company is on dry rations which will last only for a few

15 days. The soldiers are cutting down their rations consuming only two

16 meals per day. The problem of resupply convoys for Zepa should be

17 urgently addressed at the highest level."

18 My question, General, is do you recall receiving this report of

19 the situation of the Ukrainian soldiers in Zepa?

20 A. Not that specific report, no. But I know that as I've said,

21 the -- after May, particularly, the situation was getting more and more

22 difficult in those -- in those enclaves.

23 Q. Okay. If we may be shown 2497, please? Now, General, do you

24 still have the document before you?

25 A. Yes, I do.

Page 17817

1 Q. Okay. We can see that this is a document dated 18 June 1995 from

2 the VRS Main Staff. Regarding the approval of certain UNPROFOR convoys.

3 If we look at paragraph 1, do you see the reference to a convoy whose

4 destination is Zepa on 20 June?

5 A. Yes.

6 Q. And the cargo is a container with dry and fresh food, eight

7 tonnes, one container with ten tonnes of water, and one ten tonnes cistern

8 with fuel, and I don't think there is any dispute that the signatory on

9 this, just to save some time, is then Colonel now General Miletic.

10 Now, if we could look at another Sarajevo sector situation report,

11 2957, and we'll link up these two documents, General.

12 JUDGE AGIUS: Yes, Madam Fauveau?

13 MS. FAUVEAU: [Interpretation] Your Honour, just to answer my

14 colleague, I don't contest the fact that my client's name is on this

15 document. However, I challenge the fact that he did write it.

16 JUDGE AGIUS: Okay. Thank you, Madam Fauveau. Yes, Mr. Thayer?

17 MR. THAYER: Understood, Mr. President.

18 Q. Now, General do you have the document in front of you?

19 A. Yes. Dated 4th of June.

20 Q. It's sector Sarajevo weekly situation report. If we could go to

21 the fifth page of the document, please, and we will be focusing on the

22 bottom paragraph.

23 "After 16 weeks without fuel convoy and after having run out of

24 food altogether, the Ukrainian company in Zepa finally received a resupply

25 convoy this week. The convoy reportedly carried 525 kilograms of

Page 17818

1 ketchup," and I won't go into the rest, but it says, "It did not include

2 any meat, salt, sugar, flour, oil, pasta, et cetera, et cetera."

3 General, had you heard that the Ukrainians had run out of food?

4 A. I don't recall this incident, no. Or that they had actually run

5 out of food by the end of -- of this -- this is late June.

6 Q. You saw the previous document listing the tonnage of cargo. Had

7 you heard reports of shipments, UNPROFOR resupply shipments, arriving

8 without their cargo or with only portions of the cargo?

9 A. The -- by this stage in June, these convoys are with I think only

10 one exception, all run out of Zagreb through Serbia, and I -- and there

11 were cases where, I think, if I remember rightly, where what was supposed

12 to arrive didn't arrive, and this would appear to be one of them. But I

13 don't know -- I think we thought this was -- in Sarajevo I think we

14 thought this was a failure of organisation in Zagreb.

15 Q. Okay. Well, let's look at another document and that's 2496.

16 This is a communication from commander Major Rajko Kusic. Does that name

17 mean anything to you, General?

18 A. No. I don't remember.

19 Q. Okay. It's dated the 23rd of June 1995, attention of the Main

20 Staff, General Mladic. It refers to document 06/18-249, 18 June 1995, and

21 that's the first document we looked at in this series.

22 A. M'hm.

23 Q. Refers to the ten tonnes of oil which were approved to pass

24 through together with other provisions. And then goes on to state that

25 "We are informing you that in agreement with the commander of the

Page 17819

1 Ukrainian units we have taken five tonnes, that is half of the authorised

2 quantity for the needs of our brigade."

3 General were you aware of any such agreement?

4 A. No.

5 Q. And had you heard in the past of VRS demands for half or a portion

6 of the fuel?

7 A. Oh, those had been put to me at some stage, I think as -- in

8 either March or April. Yes, I think it was April probably.

9 Q. And how did you regard such demands?

10 A. Well, they should -- you know, I wasn't interested in falling in

11 with them.

12 Q. Why not, General?

13 A. Because it was fuel for my people, not for anybody else.

14 Q. Now, I want to go back in time just a little bit, and we'll be

15 finishing up shortly. I may need a couple of minutes after the break,

16 Mr. President, but we are nearing the end.

17 JUDGE AGIUS: You still have seven minutes.

18 MR. THAYER: Yes.

19 Q. If we could look at 65 ter 2531. General, we can see that this is

20 a document from the Main Staff of the VRS, it's dated 10 March 1995.

21 First line says, "we hereby inform you that we have approved the following

22 UNPROFOR convoys." Do you see at paragraph 1 there is a reference to a

23 convoy to Zepa on 11 March?

24 A. Yes.

25 Q. And if we turn the page, there is a note, "we did not allow the

Page 17820

1 transport of 30 litres of electrolyte, tires, 24 volt headlights, 20 spark

2 plugs, 4 break cylinders, 1 battery and 1 transmission set for an armoured

3 vehicle."

4 If we could go to page 3 of the document, please, and this is

5 going to be the second page of the B/C/S. Do you see the note at the top

6 of the page regarding the items that were not allowed on the convoy for

7 Gorazde, fruit, butter, honey, ham, drinks. The next paragraph 4 refers

8 to a convoy to Srebrenica on 11 March. Do you see the note where it says,

9 "we did not allow the following, three tankers and five trailer trucks"?

10 And if we look at the very bottom of the page, please, "we did not

11 allow 36 cubic metres of diesel fuel, ten crates of dry food, frozen food,

12 cold food, and there is other materials and spare parts," and so forth?

13 A. M'hm.

14 Q. And if we turn the page to page 4 of the English, and this is

15 still on page 2 of the B/C/S, under paragraph 5, again there is a note,

16 "Did not allow the transport of 15 gas cylinders." Paragraph 6, the

17 bottom of paragraph 6, "We are talking about in addition to these

18 requests, the following requests were submitted for which we did not grant

19 them our permission." And the first item is a convoy to Zepa consisting

20 of, among other things, one fuel tanker, and then on item 2 there, another

21 fuel tanker, and if we turn the page in English, we'll see that that was

22 supposed to transport petrol to Sarajevo.

23 A. M'hm.

24 Q. And I'll just if you can read 3, 4, 5 to yourself you'll see there

25 are other references to fuel, tankers, diesel, petrol, oil, not being

Page 17821

1 permitted.

2 A. M'hm.

3 Q. Now, the other documents we showed indicated foodstuffs being

4 called for but then not arriving at the destination. Here we have a

5 document which indicates that certain things were not permitted to begin

6 with. Was that reported to you, General, that there were certain items

7 that were prohibited or things that were not approved at all into the

8 enclaves?

9 A. Oh, not in the detail of this document, but the general

10 restriction on the free supply of the contingents in the enclaves was -- I

11 was aware of that fairly early on and certainly by March. All of that was

12 part of why I started to think the thoughts I thought and arrived at what

13 I've called the thesis.

14 Q. Now, I just have one more question on this document, General, and

15 then we'll have to take the break. If we could go to the next page of

16 this English document, and that will be the last page of the B/C/S, page 3

17 of the B/C/S. And we'll have to scroll all the way down on the English,

18 please.

19 Do you see where it states, "Discuss the information on unapproved

20 convoys with check-points, do not tell third persons, and do not give any

21 explanations to UNPROFOR representatives (Pretend that you did not get

22 them.) If a convoy shows up at a crossing points, return it to the place

23 of departure."

24 And if we turn the next page of the English we will see who the

25 signatory is on this. And you can see it on the B/C/S, do you see who

Page 17822

1 that is, General?

2 A. Yes, it's Miletic, General Miletic.

3 Q. Now, General, did you have reports of convoys just simply being

4 turned back without explanation? Do you recall those incidents?

5 A. I'm not -- certainly convoys and a convoy could be just one or two

6 vehicles wanting to go and visit somebody, not getting through a

7 check-point. I don't remember, and the end of that document, I don't

8 remember a specific case of a convoy that had been cleared being stopped.

9 That doesn't come to mind. But that you didn't have freedom of movement,

10 that I was definitely a problem from pretty well the -- as soon as I got

11 there.

12 Q. Thank you, General. I just have one more document, and then I'll

13 be done with my redirect.

14 JUDGE AGIUS: So we'll have a 25-minute break. Thank you.

15 --- Recess taken at 12.32 p.m.

16 --- On resuming at 12.58 p.m.

17 JUDGE AGIUS: Yes, Mr. Thayer?

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

19 Q. General, just one more document. The last one we looked at was

20 dated the 10th of March, and you testified about a 5 March meeting you had

21 with General Mladic in which you concluded or from which you concluded

22 that a high level meeting had just occurred. I think you testified about

23 observations of Mr. Stanley and your own personal observations, and then

24 you also spoke about a meeting in Vlasenica with General Mladic in which

25 you described how he would shrink the boundaries of the enclaves and why

Page 17823

1 he was imposing certain restrictions.

2 If we may see P5 on in e-court and if we could go to page 2 in the

3 English. And I'm pretty sure that's going to be page 1 of the B/C/S.

4 Yes. We have a document headed directive for further operations number 7.

5 And its date is 8 March 1995.

6 General, I just want to draw your attention to a couple of

7 sections in this document. If we could go to page 10 of the English and

8 that's page 15 of the B/C/S, please.

9 If we could scroll down on the English, please, and the B/C/S is

10 good where it is. A little bit more to the bottom of the English. Thank

11 you. Under the paragraph headed "Drina Corps," I just want to draw your

12 attention to the section that reads, "While in the direction of Srebrenica

13 and Zepa enclaves, complete physical separation of Srebrenica from Zepa

14 should be carried out as soon as possible, preventing even communication

15 between individuals in the two enclaves. By planned and well thought out

16 combat operations, create an unbearable situation of total insecurity with

17 no hope of further survival or life for the inhabitants of Srebrenica and

18 Zepa."

19 General, based on your meetings with General Mladic and your

20 observations and your development of your thesis based on those

21 observations, can you tell the Court how this section of the document

22 either fits or doesn't fit, support, doesn't support, your thesis?

23 JUDGE AGIUS: Before you answer, General, Madam Fauveau, please.

24 MS. FAUVEAU: [Interpretation] Your Honour, I don't see to what

25 part of the cross-examination this question refers to or flows from. It

Page 17824

1 is my colleague from the Prosecution who spoke of the various meetings

2 during the examination-in-chief.

3 JUDGE AGIUS: Thank you, Madam Fauveau. Mr. Josse?

4 MR. JOSSE: I certainly support that objection and invite my

5 learned friend to identify how it arises, but I make the same objection

6 that I made earlier that this is really a leading question. If the

7 witness was an expert, then I could see my learned friend being allowed to

8 put this document in front of him and asking him that question. But

9 bearing in mind he's a fact-based witness, to put this assertion in front

10 of the witness and then ask him to comment upon it is leading in a direct,

11 not a veiled form.

12 JUDGE AGIUS: Yes, Mr. Thayer. Thank you, Mr. Josse.

13 MR. THAYER: Mr. President, we heard extensive cross-examination

14 of General Smith about the justifications for actions taken by the VRS, by

15 motivations of the VRS for taking actions that they took, for the -- with

16 respect to the timing of certain events that occurred and the motivation

17 for certain things that happened at certain times. I am asking General

18 Smith for again based on his experience, his observations, the development

19 of his thesis, based on those personal observations, whether what he is

20 reading here, whether it is consistent, inconsistent, supports, or doesn't

21 support, what he was seeing on the ground.

22 JUDGE AGIUS: Thank you, Mr. Thayer. I need to confer with my

23 colleagues.

24 [Trial Chamber confers]

25 JUDGE AGIUS: Our position, having discussed amongst ourselves,

Page 17825

1 Mr. Thayer, is that the excerpt from this document that you read out to

2 General Smith doesn't really require his opinion on it or whether it

3 tallies or doesn't tally with what he has stated here on oath to be his

4 position on the events on the ground at the time. So we don't think that

5 the question is necessary in the first place.

6 MR. THAYER: And just so I understand, when Mr. President you say

7 his position, you mean including his factual observations? And if that's

8 the case, then I'll that concludes my examination.

9 JUDGE AGIUS: He's told us what his factual observations were. He

10 spent days at length here telling us that. It's true that he's been

11 contested by both Mr. Josse and Madam Fauveau on some of his observations,

12 but what's this going to change? I mean, it's a document which speaks for

13 itself and which doesn't really need anyone to explain it, except maybe

14 the person who drew it up or knew more than General Smith knew.

15 MR. THAYER: Thank you, Mr. President. In that case, General, I

16 have no further questions, thank you.

17 JUDGE AGIUS: Thank you. Yes, Madam Fauveau?

18 MS. FAUVEAU: [Interpretation] Your Honour, could I be allowed to

19 ask some further questions to the witness on two documents that my learned

20 friend from the Prosecution has shown to the witness during his questions?

21 It will take only five minutes. One of the questions will have to do with

22 the NIOD report excerpt. I believe three lines from that excerpt have not

23 been read by my learned friend and I believe they should be because they

24 are significant, and the other question will have to do with a document

25 dated the 10th of March on convoys.

Page 17828

1 the end of your testimony. You were scheduled to return on the 23rd of

2 this month but I don't think there is need for that. On behalf of the

3 Trial Chamber, my colleagues, Judge Kwon, Judge Prost and Judge Stole, I

4 would like to thank you for having come over to give testimony, and we all

5 wish you a safe journey back home.

6 THE WITNESS: Thank you very much, Mr. President.

7 [The witness withdrew]

8 JUDGE AGIUS: Shall we go through this, Prosecution exhibits? We

9 have a whole list here. I haven't counted them. Any objections,

10 Mr. Josse?

11 MR. JOSSE: Yes. I'm afraid there are two objections,

12 particularly to the third entry on the second page, where my learned

13 friend seems to be trying to get the whole of the expert statement of July

14 2006 into evidence. These are my observations, that if there are passages

15 which he says that he in effect took as read, because let me stop there I

16 accept that he conducted his examination in a way that sensibly assumed

17 the Court had read the document because we know the Court had read the

18 document prior to its previous ruling.

19 If there are passages which fit in with the expertise permitted by

20 the Trial Chamber's order and/or by observation of the witness, then I'm

21 quite prepared to look at those and consider whether they should be

22 admitted into evidence. They need to be identified clearly, and frankly

23 we need to be given a little bit of time then to consider whether we

24 accept the admission of those passages, but the admission of the whole

25 document I oppose vigorously.

Page 17829

1 JUDGE AGIUS: Thank you. Mr. Thayer?

2 MR. THAYER: Mr. President, we do think there is a basis for

3 admitting the entire document at this point. As Mr. Josse has said, at

4 the very least, the section concerning the importance history function of

5 a Main Staff which is approximately the first ten pages of the document is

6 separate from the rest in which he is being shown various VRS documents

7 for the most part.

8 The Defence questioned General Smith on the issue of you never

9 said in your witness statement such and such about my client. And I think

10 it's important for the Court to be able to, in order to judge whether that

11 is fair or accurate or give whatever weight to that assessment, the Court

12 should have access to the entire document. I think we can trust the

13 Court, given the Court's clear order, of what is permissible for

14 consideration in terms of his fact versus his expert testimony.

15 I think to be efficient, it just makes sense for the whole

16 document to go in, particularly with all the references to western versus

17 Soviet model armies, many, many topics which are dealt with in the expert

18 statement were addressed, and given where Defence counsel went in some of

19 its examination, it's important for the Court to be able to at least see

20 and read the entire document and give those portions that are dealing with

21 his examination, for example, of certain VRS documents, whatever weight

22 the Court deems appropriate given the Court's clear order that we, I

23 think, tried very hard to abide by with General Smith's testimony. I

24 think to try to redact it or chop it is not going to be possible, frankly,

25 given the way some of the examination was conducted.

Page 17830

1 JUDGE AGIUS: Thank you. Yes, I don't think we need to discuss

2 this much further but Madam Fauveau?

3 MS. FAUVEAU: [Interpretation] Your Honour, I fully support the

4 objection raised by my colleague from the other Defence team.

5 JUDGE AGIUS: Of course. Thank you, Madam. I need of course to

6 confer with my colleagues, yes, Mr. Josse?

7 MR. JOSSE: Bearing in mind Your Honour's comments. I won't

8 respond to what Mr. Thayer said. There is one other objection, perhaps I

9 could deal with that now. That's 2953 which are the five pages in

10 English, seven in the original, from the National Assembly minutes of the

11 6th of August 1995. The one page that was put to the witness, I won't

12 object to, although it was read out in full. The rest of it I see no

13 reason why it should go in.

14 JUDGE AGIUS: Thank you, do you wish to comment?

15 MR. THAYER: My friend is entirely correct. I cut down the

16 examination. So we are really talking about only the first entry.

17 JUDGE AGIUS: Okay.

18 MR. THAYER: Now the entire document is in e-court should there be

19 a need to refer to it later.

20 JUDGE AGIUS: Madam Registrar, are you in a position to identify

21 the first entry? I think it's the one pages 35 to 45 or just one page,

22 4296. Someone needs to identify exactly the first -- the page that you

23 made use of. I think you can do that.

24 MR. THAYER: Certainly. Mr. President, if I might add, Richard

25 Butler, for example, will be talking about this exhibit.

Page 17831

1 JUDGE AGIUS: All right. But let's leave that. All I'm saying is

2 that since you agree that it's only this excerpt that needs to go into the

3 record as an exhibit, it needs to be identified. As regards the other

4 one, I need to confer with my colleagues.

5 [Trial Chamber confers]

6 JUDGE AGIUS: Okay. The position is as follows, Mr. Josse,

7 Mr. Thayer, and Madam Fauveau, for the time being, we will mark document

8 6D00183 for identification purposes, limitedly for a period of a week.

9 That's until today week, by which time, Mr. Josse, you need to indicate to

10 the Trial Chamber or detail your objection in relation to parts. It

11 doesn't mean to say that we are agreeing beforehand that we will

12 eventually admit this statement, witness statement, with redactions. It

13 doesn't mean -- by no means saying that, but we are giving you the

14 opportunity to explain yourself better by reference to the parts that you

15 object to and then we will take a decision.

16 After one week, obviously, the statement will be admitted with or

17 without redactions depending on what we decide. Depending on what we

18 decide.

19 MR. JOSSE: So the onus is on --

20 JUDGE AGIUS: The onus is on you.

21 MR. JOSSE: I understand.

22 JUDGE AGIUS: You can do it of course together with Madam Fauveau.

23 MR. JOSSE: And to file this and with an argument, Your Honour?

24 Or --

25 JUDGE AGIUS: No, no, no. The argument you have made. What we

Page 17832

1 are interested in knowing is which parts specifically you are referring to

2 and objecting to. That's all. The argument he has made already. He's

3 saying if this document is to be admitted, it has to be admitted into

4 conformity with our previous decision that there should be no inclusion in

5 it of any expert opinion on matters that we decided he was not to be an

6 expert witness upon.

7 MR. JOSSE: Well, that's right and the submission is that weight

8 doesn't really come into it, unless the Trial Chamber are going to admit

9 it for a very specific purpose; for example, the one that Mr. Thayer

10 raised in relation to my cross-examination on non-mention of Gvero. But I

11 personally see no need for that but if it's going to be admitted on a very

12 limited basis at least we would know where we stand, but I understand the

13 ball is in our court to say which parts we specifically object to in

14 accordance with the previous decision of the Trial Chamber.

15 JUDGE AGIUS: Okay. Thank you. And is a week enough?

16 MR. JOSSE: I would rather have two weeks.

17 JUDGE AGIUS: Okay. All right. Yes. You will have two weeks.

18 MR. JOSSE: Thank you.

19 JUDGE AGIUS: Thank you. So the -- no objections in relation to

20 the other documents? So all the other documents will be admitted. There

21 are -- there is one at least that will be MFI'd, that's the intercept, in

22 accordance with our previous decisions. Yes, Mr. Thayer?

23 MR. THAYER: I just wanted to let the Chamber know that we have no

24 objections to either tender sheet submitted by either Defence team.

25 JUDGE AGIUS: All right. And to be precise, at least for the

Page 17833

1 record, I have a list from the Miletic Defence team and I have a list from

2 the Gvero Defence team which you have all seen. No objections from the

3 Prosecution. Are there any objections from any of the Defence teams? The

4 other Defence teams? None. So these documents are also admitted.

5 However, I notice that there are a few that are still awaiting translation

6 and until that arrives, they will be MFI'd. Madam Registrar will identify

7 them.

8 Okay.

9 MR. JOSSE: Sorry, the very last entry in our list, we didn't have

10 a number for. I don't know whether Madam Registrar can assist. We need

11 to assign it. Apparently we will do that, thank you.

12 JUDGE AGIUS: The Akashi report. We have got barely 15 minutes

13 left if you want to discuss --

14 [Trial Chamber confers]

15 JUDGE AGIUS: Certainly not beyond 2.00, and I need the okay from

16 the staff. I can't see behind the dark glasses, check for me, please.

17 Yes, Mr. McCloskey?

18 MR. McCLOSKEY: Yes. We shouldn't take too much time,

19 Mr. President, but this is just to report to you on your order or

20 suggestion that we get together with the Defence and try to work out some

21 of the timing and logistic issues related to especially the 98 bis issues.

22 We've done that. And we have some agreements which I will try to go over,

23 and I'm sure I'll be corrected if I'm wrong on anything.

24 These are of course suggestions to the Trial Chamber as -- from us

25 on ideas that we agreed to would be appropriate.

Page 17834

1 We agreed that 98 bis submissions would occur one week after the

2 close of the Prosecution's case. We agreed that each Defence team would

3 have one and a half hours to argue and that they could time share with

4 each other if they found that others would take more than one and a half

5 hours; that the Prosecution would have up to two days, if needed, to

6 respond; that both sides could supplement their oral submissions with

7 written submissions of a reasonable length and identification, simple

8 identifications of areas of fact and law.

9 The item we disagreed with was on who should go first. The

10 Prosecution would like it if the Defence would go first so that we could

11 respond to their arguments that thereby hopefully limiting our time to

12 what the Defence brings up, and as I had mentioned to the Trial Chamber

13 before, we would appreciate any guidance on any particular issues the

14 Trial Chamber would like us to address.

15 And of course, the Defence would like the Prosecution to go first.

16 There is also a somewhat related logistical area that everyone

17 agreed the importance of Serbian Orthodox Christmas, and -- which is 7

18 January. There are no flights from Belgrade on 8 January. So Defence

19 counsel from Belgrade would be flying back 9 January. So 10 January

20 everyone agreed would be an appropriate start date, which would be in

21 accordance with, we were here, as you recall, last Christmas.

22 JUDGE AGIUS: Also on the 9th we will be engaged with the exchange

23 of new years greetings with Her Majesty here.

24 MR. McCLOSKEY: So everyone is fine on that and I believe the

25 Defence will address you on the amount of time they would like between the

Page 17835

1 end of the Prosecution's case and the beginning of their case, and the

2 Prosecution stands neutral on that point and would leave that up to the

3 Trial Chamber and the Defence.

4 JUDGE AGIUS: Merci. Who is going to be the "spokesman," quote

5 unquote, for the Defence teams on what Mr. Haynes -- Mr. McCloskey has

6 just mentioned? Yes, Mr. Haynes?

7 MR. HAYNES: Well, I'll be the spokesman insofar as it relates to

8 confirming the discussion we had yesterday. I wouldn't go as far as

9 saying we had a disagreement as to who should go first. We are really in

10 your hands as to which procedure you think would be more helpful, and it

11 did seem to us that the suggestion from the Prosecution that there would

12 be forms of skeleton argument in which they wanted to identify relevant

13 areas of law and fact tended to point towards them going first rather than

14 us.

15 And I would also just mention, in that regard, that if you look at

16 the amount of time that this procedure might take, in our view, it would

17 take less time for there to be one speech from the Prosecution, seven in

18 response from the Defence, and maybe one reply from the Prosecution than

19 it would the other way around which would make for 15 separate speeches.

20 But we are not going to fall out about that. We had a very open and good

21 discussion. And we are in your hands as to what you think is the best

22 procedure to adopt.

23 The collective view of the Defence is that a break after the

24 determination of the 98 bis arguments of three months would be appropriate

25 and necessary, and I'm perhaps the worst to argue this point sitting as I

Page 17836

1 do at number 7 in the indictment, and so, as it were, the white heat of

2 starting my case is not perhaps as great as it is for, for example, for

3 Mr. Zivanovic. We believe that a greater period at the conclusion of the

4 98 bis proceedings and before the commencement of the Defence cases would

5 make for greater economy of time in the long run, because it would enable

6 us to filter and edit our cases, to prepare more evidence to be admitted

7 to the Court through Rule 92, whether it be bis or ter. And so on and so

8 forth. There are also a number of cooperative expert issues which are

9 some way from being ready to be filed at the moment. We understand the

10 pressure of time that the Trial Chamber is under but that is our request.

11 And I will put it no higher than that. We are of course in your hands.

12 Is there anything else I can help you with?

13 JUDGE AGIUS: Just let me check whether we have covered

14 everything, Mr. Haynes. I think that covers practically everything that

15 we had discussed as well. Yes, Mr. McCloskey? I'm sorry, I didn't see

16 you.

17 MR. McCLOSKEY: One more point. Mr. Nicholls provided me with

18 something that we are tending to guide ourselves by in this, and you may

19 recognise the words from the Oric case, where you, I believe, said, that

20 "we do not wish to hear any submissions by you in particular trying to

21 explain why you believe that you have proved your case with a 98 bis

22 standard for each and every area. If an area is contested to you by the

23 Defence, then do so by all means. You will respond and try to contest and

24 make submissions."

25 I won't go on. But that is something that we are guiding our 98

Page 17837

1 bis submissions by and if that's still appropriate, we intend to do so.

2 JUDGE AGIUS: All right. Yes, precisely. I think we direct you

3 to what the rule says. Basically, reading through that rule, you should

4 know what the exercise ought to be. I think it's pretty straightforward.

5 Yes.

6 [Trial Chamber confers]

7 JUDGE AGIUS: Yes. I think that covers all except for two things.

8 We already had a hint from you during very short exchange on this

9 a few days ago on whether, who should go first, whether it's the

10 Prosecution or Defence. We have discussed it amongst ourselves and our

11 position is that the Defence should go first. We are not going to

12 intervene or interfere as to who should go first amongst yourselves, and I

13 think we can safely say that you can also agree amongst yourselves to make

14 use of any disposable leftover time that remains, accepting that you will

15 have an hour and a half each. We'll come back to you on another point

16 that was mentioned by Mr. McCloskey, whether you would be allowed or asked

17 to supplement with -- you mentioned two things, submissions as well,

18 indicators both as regards fact also as regards law. We'll come back to

19 you on that. We have discussed that amongst ourselves as well, but we'll

20 come to a decision later on. Paragraph.

21 [Trial Chamber confers]

22 JUDGE AGIUS: I think that's enough for today. And we'll also

23 confirm to you that we'll respect as we did last year the Orthodox

24 Christmas but that's to be confirmed. That's to be confirmed later.

25 Which would mean basically that we would start in January on the 10th and

Page 17838

1 not on the 7th. Okay. Thank you.

2 --- Whereupon the hearing adjourned at 1.41 p.m.,

3 to be reconvened on Monday, the 19th day of

4 November, 2007, at 9.00 a.m.