1 Monday, 28 February, 2011
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.17 p.m.
5 JUDGE FLUEGGE: Good afternoon to everybody in the courtroom. We
6 received a message from the Prosecution about some translations which are
7 uploaded. Mr. Elderkin, good afternoon.
8 MR. ELDERKIN: Good afternoon, Your Honours. Yes, there are four
9 translations that have been uploaded. If I could just read out the
10 numbers of the exhibits which are previously marked for identification.
11 P1309, P1362, P1463, and P1571B.
12 JUDGE FLUEGGE: Thank you very much. They will now be exhibits
13 with these numbers. If there are no other matters to raise before the
14 witness is entering the courtroom?
15 MR. ELDERKIN: I'd just like to ask the Court if this witness
16 could be given a Rule 90(E) warning, and I understand his protective
17 measures have been announced but he is a witness who has a pseudonym and
18 image distortion.
19 JUDGE FLUEGGE: Thank you very much. To enable the witness to
20 enter the courtroom, we go into closed session.
21 [Closed session]
1 [Open session]
2 THE REGISTRAR: We are in open session, Your Honours.
3 JUDGE FLUEGGE: Thank you very much. Again, welcome to the
4 courtroom, sir. Would you please read aloud the affirmation on the card
5 which is shown to you now.
6 THE WITNESS: [Interpretation] I solemnly declare that I will
7 speak the truth, the whole truth, and nothing but the truth.
8 JUDGE FLUEGGE: Thank you very much. Please sit down and make
9 yourself comfortable. Like in the last trial when you were present as a
10 witness, there are protective measures in place for you. You will be
11 addressed by a pseudonym and nobody outside the courtroom will recognise
12 you by face.
13 On the request of the Prosecution, I would like to caution you.
14 We have in our rules of procedures and evidence the Rule 90(E) which I
15 would like to read out to you so that you know about your rights. I
17 "A witness may object to making any statement which might tend to
18 incriminate the witness. The Chamber may, however, compel the witness to
19 answer the question. Testimony compelled in this way shall not be used
20 as evidence in a subsequent Prosecution against the witness for any
21 offence other than false testimony."
22 Did you understand that, sir?
23 THE WITNESS: [Interpretation] I understood it.
24 JUDGE FLUEGGE: Thank you very much.
25 Mr. Elderkin, your examination in chief, please.
1 MR. ELDERKIN: Thank you, Mr. President.
2 WITNESS: PW-059
3 [Witness answered through interpreter]
4 Examination by Mr. Elderkin:
5 Q. And good afternoon to you, witness. As you know my name is
6 Rupert Elderkin, before we get started just like to ask you to speak
7 slowly and leave a pause as necessary for the interpreters to keep up
8 with your answers. And if there's anything that I ask you that's
9 unclear, then please let me know and I'll do my best to rephrase my
11 MR. ELDERKIN: Could we please see 65 ter 7206. And that should
12 not be broadcast.
13 Q. Sir, without saying aloud what is written on the screen, please
14 can you confirm if that is your name?
15 A. Yes.
16 MR. ELDERKIN: Your Honours, I'd like to ask for the pseudonym
17 sheet to be admitted under seal, please.
18 JUDGE FLUEGGE: It will be received under seal.
19 THE REGISTRAR: 65 ter number 07206, the pseudonym sheet would be
20 assigned P01942 under seal.
21 MR. ELDERKIN:
22 Q. Sir, do you recall testifying at this Tribunal during the course
23 of two days in April of 2007?
24 A. Yes.
25 Q. Have you had a chance to review that testimony recently?
1 A. Yes.
2 Q. Does your testimony fairly and accurately reflect what you would
3 say if you were to be examined here today and if you were asked the same
5 A. As far as I know, it was all correct, yes.
6 MR. ELDERKIN: Your Honours, I'd at this point ask to have the
7 witness's prior testimony admitted, and that's 65 ter numbers 6634 which
8 is the confidential testimony under seal, and 6635, the public
9 transcript, along with the associated exhibits which were indicated in
10 the exhibit list for this witness. And if necessary I can read out their
11 65 ter numbers as well.
12 JUDGE FLUEGGE: We'll start with the two transcripts, they will
13 be received. The first one 6634 under seal.
14 THE REGISTRAR: That, Your Honours, would be assigned P01943
15 under seal. And the other transcript under 65 ter number 06635 would be
16 assigned P01944.
17 JUDGE FLUEGGE: Now we turn to the five documents previously
18 admitted in the previous trial. 6636 through 6679, they will be received
19 as well, the first one under seal.
20 THE REGISTRAR: Your Honours, 65 ter number ...
21 [Trial Chamber and Registrar confer]
22 THE REGISTRAR: 65 ter number 06636 would be assigned P01945
23 under seal, 65 ter number 03380 would be assigned P01946. 65 ter number
24 06637 will be assigned P01947, 65 ter number 03379 will be assigned
1 JUDGE FLUEGGE: Mr. Elderkin, please continue.
2 MR. ELDERKIN: Thank you. And if I may now read a short summary
3 of the witness's evidence, and this can remain in open session.
4 The witness, who is of Serb ethnicity, was a member of the VRS
5 Zvornik Brigade's Military Police Company in 1995. The company commander
6 was Lieutenant Miomir Jasikovac. One day in July 1995, the witness was
7 on duty at the Sepak border crossing. At around 11.00 a.m. he received a
8 telephone call from Lieutenant Jasikovac to go to Rocevic. He went there
9 in a private vehicle and found two or three of his colleagues already
10 there. He was told to set up a check-point on the road leading towards
11 the school, to check passing vehicles and keep civilians away. When the
12 witness arrived, there was a group of around 20 to 30 Serb civilians, who
13 the witness kept away from the school. There were other soldiers at the
14 school, where a group of Muslim prisoners from Srebrenica were being
15 held. The Serb civilians were swearing and shouting. They wanted to
16 enter the school for revenge.
17 While the witness was at the check-point a couple of vehicles
18 passed by, coming from the direction of the main road. One of the cars
19 stopped. The witness heard later that the Zvornik Brigade security
20 officers Drago Nikolic and Trbic (presumably Captain Milorad Trbic) had
21 come and told the soldiers that everything must be kept under control.
22 The witness did not personally see Drago Nikolic, but he did see Trbic
23 across from the check-point in the school-yard.
24 The witness left Rocevic at around 1700 hours. Later, at the
25 Zvornik Brigade headquarters, at around 1830 hours, the witness saw some
1 people upstairs wearing camouflage uniforms. He asked who they were and
2 was told, "Well, the commander has a meeting with Popovic and Beara."
3 While the witness and his colleagues were talking,
4 Lieutenant Jasikovac was present and he said, "What do you need to know
5 who is up there? None of your business." And told them to quieten down.
6 The witness saw that Popovic had a mustache, but he did not see Beara.
7 The witness only went to Rocevic on one day in July 1995. He believes
8 that the date was the 11th of July.
9 Your Honours, I'd like to ask the witness now a few additional
10 questions, if I may.
11 JUDGE FLUEGGE: Yes, please.
12 MR. ELDERKIN:
13 Q. Sir, please tell us who was the Military Police Company
14 administrative clerk in 1995?
15 A. You are asking me?
16 Q. Yes, sir.
17 A. All right. Now, I don't know whether he was the non-commissioned
18 officer or what, but it was Stevo Kostic, he was the officer of the the
20 MR. ELDERKIN: I'd like, please, to have Exhibit P1754 on the
21 screen. And that should not be broadcast. And if we could go to the
22 second page of this document. Or in fact, sorry, page 3 even, in
23 e-court. The second page is a blank page. And if possible, if we could
24 zoom in on the top left-hand corner of that, just so we can see the names
25 more clearly.
1 Q. Sir, do you recognise this document?
2 A. Yes.
3 Q. What is it?
4 A. Well, this is the daily log of the presence at duty.
5 MR. ELDERKIN: And if we could just scroll across to the top
6 right-hand corner.
7 Q. Can you tell us for what period is this the daily log?
8 A. It says July 1995 here.
9 MR. ELDERKIN: I'd like to ask at this time if the witness could
10 be shown the original of the document. A lot of the markings on the
11 paper are in pencil and they are much easier to see in the original.
12 Also offer that at this time if the Defence, or also Your Honours, would
13 like to scrutinise the document. I've, indeed, also brought a
15 JUDGE FLUEGGE: It should be given to the Defence first with the
16 assistance of the court usher, and then to the witness.
17 MR. ELDERKIN: Your Honours, for your information there is an
18 English translation of this document in e-court but after the first page
19 where it comprises just a list of names, then I'm not sure that it would
20 assist. It maybe easier simply to have the B/C/S on screen.
21 Q. Sir, if you could please turn to the page of the document which
22 I've marked with the sticker number 1, so I think it should be the second
23 of the pages in front of you. And that should now be the same as the
24 page which we had on the screen a moment ago. Sir, do you see your
25 company commander's name on this list?
1 A. Yes.
2 Q. Tell us where it appears on the list, please?
3 JUDGE FLUEGGE: Mr. Tolimir.
4 THE ACCUSED: [Interpretation] Thank you, Your Honour. I actually
5 only wanted for the list to be moved on the screen but now it was already
7 JUDGE FLUEGGE: Thank you very much.
8 Mr. Elderkin.
9 MR. ELDERKIN:
10 Q. Sir, can you tell us, please, where your company commander's name
11 appears on this list?
12 A. It's number 1.
13 Q. And you also just mentioned a moment ago Stevo Kostic as the
14 company's administrative clerk. Can you tell us, please, if you see his
15 name on this list?
16 A. It's number 3.
17 Q. Thank you. And would you please now look across the line of
18 markings to the right of the company commander Miomir Jasikovac. So
19 underneath the numbers we have there 1, 2, 3, 4, et cetera. And I'd like
20 to ask you to look carefully, please, at the entry under the date for the
21 15th. Can you tell us, first of all, what is marked there under the 15th
22 for Jasikovac?
23 A. I see a letter T, but what it means I wouldn't know.
24 Q. Now looking carefully, can you see if something was written there
25 before the T was put on? If you need to use the magnifying-glass, please
1 do so as well.
2 A. I can see R in Latin alphabet or something like that.
3 Q. Okay.
4 MR. ELDERKIN: And could we now please have page 7 of the
5 document in e-court on the screen.
6 Q. And for you, sir, that would be the sticker number 2 that is
7 marked on the copy you have in front of you. So again without reading it
8 out loud, can you see your name on this page?
9 A. There is.
10 Q. Can you tell us which number of the list it appears at, please?
11 A. 79.
12 Q. Sir, could you now look across at the entries written across to
13 the right of your name. First of all, could you tell us what are the
14 entries indicated for your name between the 1st and the 11th?
15 A. I think it's number 6 but I wouldn't know what it means.
16 Q. Then, sir, after the 11th, could you just tell us what are the
17 next few entries for your name?
18 A. Letter T, just as the others that you can see above.
19 Q. Do you see the letter T for the entries under 12, 13, 14 and 15?
20 A. Yes.
21 Q. Now, could you look closely please at the entry under 15 against
22 your name, and can you see if something was written there before? Again,
23 please feel free to use the magnifying-glass if necessary.
24 A. It's similar. It's similar to other corrections. It seems that
25 there may have been an R there before.
1 Q. Okay.
2 MR. ELDERKIN: And could we now please see the next page in
3 e-court, page 8. And this time it might help to have the English
4 translation alongside if that's possible, and that would be page 5 of the
5 English translation.
6 Q. And, sir, that's the back of the page that you are looking at if
7 you just turn over that page. Mr. Witness, if you turn over the page in
8 front of you. And there you should see some pencil writing on the
9 left-hand side of the sheet.
10 Sir, you've just identified some of the markings that were beside
11 your name including the number 6 and the letter T, can you see from this
12 page what those letters mean on the log?
13 A. It probably means that he, the administrative clerk, used some
14 sort of abbreviations in order for to know who was there or something
15 like that.
16 Q. Can you see what the abbreviation T represents according to this
17 page in front of us?
18 A. Some sort of a field duty.
19 Q. And how about the number 6?
20 A. I don't know. I wouldn't be able to say that.
21 Q. Sir, do you see the word "batagoni" next to a large bracket about
22 halfway down the list?
23 A. Yes, I can see it.
24 Q. And can you tell what it says to the left of that, please?
25 A. It's numbers from 1 to 7.
1 Q. Sir, can you see beneath the letter T for "teren" what appears to
2 be a blank space on the list? Underneath the T, "teren," and then if you
3 look beneath that you see TZ, "teren Zepa." Between "teren" and
4 "teren Zepa" do you see a blank line?
5 A. Yes, there is a bit more space here.
6 Q. I'd ask you again, please, to look carefully at that space, if
7 necessary with a magnifying-glass, and see whether you can identify
8 anything that was previously written in that space?
9 A. Well, it looks something like O, and then there's a dash, and
10 then Orahovici or Orahovica or something to that effect.
11 Q. Anywhere on this list that you can see what the code letter R
13 A. Well, I can't see it on this page, there is no R.
14 Q. Do you know what it represented?
15 A. Well, I can't really speculate. I don't know what this
16 administrative officer meant by it, administrative clerk. I don't know.
17 Q. Could it mean Rocevic?
18 A. Well, it's possible. It could. But it doesn't appear on the
19 list anywhere whereas we see that all the other field duties do appear on
20 the list.
21 Q. Sir, could you please take a moment to look through the three
22 pages, so the back, the other side of the page you are currently looking
23 at, and the other two pages which have names on them and see if you
24 recognise the names of any of your colleagues who were with you the day
25 in July of 1995 when you were on duty at Rocevic?
1 A. Well, there are a lot of names here and it's really hard to
2 remember each one of them here now.
3 Q. Well, sir, did you see any of the following MPs while you were on
4 duty at Rocevic. First, Dragoje Ivanovic?
5 A. I can't recall. I really can't recall the first names of these
7 Q. How about Predrag Ristic?
8 A. Well, that name is completely unfamiliar. I don't know.
9 Q. How about Zeljko Stevanovic, was he with you the day you were at
11 A. Well, anything I say now I could go wrong. I really can't
12 remember the names.
13 Q. If I may, I'd just like to say the last names as well,
14 Milomir Simic, Stanoje Bucakovic, Sladjan Jokic, were any of those men
15 with you or were they -- any of those men at Rocevic the day you were
17 A. Probably they were. There were some other three men but I can't
18 really recall their names, so I can't tell you specifically whether they
19 were the ones.
20 Q. Sir, did you see Lieutenant Jasikovac while you were on duty that
21 day at Rocevic?
22 A. No, I didn't.
23 MR. ELDERKIN: Your Honours, could we go into private session,
24 briefly, please.
25 JUDGE FLUEGGE: Yes, private.
1 [Private session]
6 [Open session]
7 THE REGISTRAR: We are in public session, Your Honours.
8 JUDGE FLUEGGE: Thank you.
9 Mr. Elderkin, please continue.
10 MR. ELDERKIN: In fact, Your Honours, and witness, that concludes
11 my examination-in-chief. I don't have any further questions at this
13 JUDGE FLUEGGE: Thank you very much.
14 Mr. Tolimir, now it's your time for commencing the
16 THE ACCUSED: [Interpretation] Thank you, Mr. President. May
17 there be peace in this house for all those present and may God's will be
18 done in these proceedings, and may the outcome be as God wishes and not
19 as I wish. And I also would like to wish a safe journey home to this
20 witness, and just to add that I have no questions for this witness in
21 view of the fact that Mr. Elderkin explored all the issues that I would
22 have explored.
23 Thank you, Mr. President. I am done with this witness.
24 THE WITNESS: [Interpretation] Thank you.
25 JUDGE FLUEGGE: Thank you very much.
1 Mr. Elderkin, there's no room for re-examination, I suppose.
2 MR. ELDERKIN: Based on the absence of any cross-examination,
3 Your Honours, absolutely not.
4 JUDGE FLUEGGE: Sir, surprisingly early, you will be pleased to
5 realise that this concludes your examination here in the courtroom.
6 Thank you very much that you came to The Hague again and to provide us
7 with your knowledge. Now you are free to return to your normal activity
8 and the court usher will assist you.
9 We go into closed session to enable you to leave the courtroom.
10 [Closed session]
17 [Open session]
18 THE REGISTRAR: We are in open session, Your Honours.
19 JUDGE FLUEGGE: Mr. Elderkin.
20 MR. ELDERKIN: Your Honours, I understand that the next witness
21 is currently being brought over from his hotel so unfortunately he is not
22 able to start immediately, and I would ask whether we might be able to
23 take a break now, that's enough time for him to get here, and also given
24 the slightly more cramped surroundings, it might make the change-over for
25 the Prosecution team slightly easier.
1 JUDGE FLUEGGE: I think this is a reasonable suggestion. What do
2 you think, when can we start again?
3 MR. ELDERKIN: Would a 20 minute break be possible, and then I
4 understand that should be fine?
5 [Trial Chamber confers]
6 JUDGE FLUEGGE: I think it would be reasonable to have the normal
7 first break now and we will resume at half past 3.00, then we will manage
8 to finish at 7.00 as well.
9 MR. ELDERKIN: Thank you very much, Your Honours.
10 --- Recess taken at 2.57 p.m.
11 --- On resuming at 3.31 p.m.
12 JUDGE FLUEGGE: Good afternoon, Mr. Thayer. Welcome to the
13 courtroom. Is the next witness ready?
14 MR. THAYER: Good afternoon, Mr. President. Good afternoon to
15 Your Honours. Good afternoon to the Defence, everyone in the courtroom.
16 Yes, the witness is ready. We snatched him from the hotel to
17 bring him over.
18 JUDGE FLUEGGE: He should be brought in.
19 [The witness entered court]
20 JUDGE FLUEGGE: Good afternoon, sir. Welcome to the courtroom.
21 THE WITNESS: Thank you.
22 JUDGE FLUEGGE: Could you please read the solemn declaration on
23 the card which is shown to you now.
24 THE WITNESS: Yes. I solemnly declare that I will speak the
25 truth, the whole truth, and nothing but the truth.
1 JUDGE FLUEGGE: Thank you very much. Please sit down and make
2 yourself comfortable. Mr. Thayer for the Prosecution has questions for
4 Mr. Thayer.
5 MR. THAYER: Thank you, Mr. President.
6 WITNESS: EDWARD JOSEPH
7 [Witness answered through interpreter]
8 Examination by Mr. Thayer:
9 MR. THAYER:
10 Q. Good afternoon, sir.
11 A. Good afternoon.
12 Q. Could you please just state your name for the record?
13 A. Yes, my name is Edward Paul Joseph. My last name is Joseph.
14 Q. Do you recall testifying in this building for a little over two
15 days in August of 2007?
16 A. I do.
17 Q. Did you recently read that testimony?
18 A. I did.
19 Q. Can you attest that the transcript that you read accurately
20 reflected what you said during that testimony in that prior case, the
21 Popovic case?
22 A. Yes, I can.
23 Q. We speak the same language, so I'll try to slow down a little bit
24 first and also we need to leave a pause between my questions and your
25 answers and I think that will be helpful to everybody.
1 Now, sir, can you attest that were you asked the same questions
2 today, which you were asked back in August of 2007, that your answers
3 would be the same.
4 A. I can so attest that my answers would be --
5 MR. THAYER: Mr. President, the --
6 THE WITNESS: Within -- within the bounds of reason. I can't say
7 that verbatim my words would be a hundred per cent identical, but the
8 meaning, I believe, would be the same.
9 Q. Understood.
10 MR. THAYER: And Mr. President, the Prosecution would tender
11 65 ter 7194.
12 JUDGE FLUEGGE: It will be received.
13 THE REGISTRAR: And that, Your Honours, will be assigned P01949.
14 MR. THAYER: Mr. President --
15 JUDGE FLUEGGE: I think this is a mistake. It should be 1950.
16 We have received with the last witness the last one ...
17 [Trial Chamber and Registrar confer]
18 JUDGE FLUEGGE: Everybody told me I was wrong, so it is the
19 correct number.
20 THE WITNESS: Sir, if I could just one small qualification, but
21 these are serious formal proceedings so I want to be very, very precise.
22 There were, as I reviewed my testimony, there were occasional cases where
23 my memory wasn't clear and it was refreshed by the presentation to me of
24 various documents, so to answer the question would my answers have been
25 the same, my answers would be the same with the benefit also of having my
1 memory then refreshed with various documents. So at certain times I
2 might have said well, gee, I don't remember, and then a document was
3 presented at that time which refreshed my memory. I just -- to be
4 absolutely precise to you.
5 JUDGE FLUEGGE: Thank you very much for this additional remark.
6 Mr. Thayer, please continue.
7 MR. THAYER: Thank you, Mr. President. We do have some
8 associated exhibits to tender through this witness, and I will just go
9 through our exhibit list.
10 JUDGE FLUEGGE: Mr. Thayer, to shorten this procedure, we have
11 received this list. Just tell for the record the first and the last 65
12 ter number, then the Registry will circulate an internal memorandum with
13 the P numbers.
14 MR. THAYER: Very well, Mr. President. The -- and I just note
15 for the record, these don't run in sequence, but the first number in this
16 category is 65 ter 7195 and the last number in this category is 65 ter
17 2080. I note that the very last entry has already been admitted as an
18 exhibit. And there are, as I see them, three other exhibits on our
19 exhibit list which have previously been admitted just for the record. We
20 can leave it at that.
21 JUDGE FLUEGGE: First of all, I would like to ask you, there are
22 three documents 65 ter 7204, 7205, and 7208 which are not on the 65 ter
23 exhibit lists.
24 MR. THAYER: Yes, Mr. President, those are non-associated
25 exhibits which we had considered using with the witness during his
1 examination-in-chief today. I've not had an opportunity yet today to
2 confer with the Defence. I shot them an e-mail to see if there would be
3 any objection to our oral motion to add these to the 65 ter exhibit list.
4 We haven't had a chance to confer, I don't know what their position is.
5 And frankly, I'm not even sure whether -- given whatever the witness's
6 answers might be I'll actually need to use them with the witness, so we
7 can get their position or we can just wait until my examination proceeds
8 and we'll see whether we even need them, and if I don't need to use them
9 then it's a moot issue.
10 JUDGE FLUEGGE: The Chamber would be in a better position and
11 would appreciate if the Prosecution would not just put a note at the end
12 of the exhibit lists with the leave of the Chamber but would move for an
13 addition to the 65 ter exhibit list.
14 MR. THAYER: Mr. President, in the interest of saving everybody
15 time and effort, we've proceeded in this way unto now because we've been
16 able, on a occasion, to get feedback in time so that we have a position
17 to present to the Trial Chamber without having to file a motion or spend
18 unnecessary time, but --
19 JUDGE FLUEGGE: I'm not talking about a written motion. I'm
20 talking about an oral submission that was sufficient, but just to put a
21 star within a remark is perhaps not the best way to deal with that.
22 Mr. Gajic, I think, is on his feet to comment on that.
23 MR. GAJIC: [Interpretation] Good afternoon to everyone. Your
24 Honour, I believe that there is a minor problem here, maybe it's an
25 e-court problem or access that the Defence has to e-court. The
1 documents, the 65 ter document 7204, 7205, 7197, 7198, 7199, and a few
2 others that I haven't really had time to check, unfortunately we have no
3 access to these documents in e-court. Maybe they haven't been uploaded
4 yet or there may be another issue, so if we can just resolve this before
5 we move on.
6 And if I may just add that 65 ter 7208, that is a document that
7 is on the list of Defence documents that the Defence intends to use
8 during its cross-examination of this witness, but I believe it will
9 retain the same number, of course, this is the Prosecution number.
10 JUDGE FLUEGGE: And I see an additional problem, Mr. Thayer. In
11 the first document you mentioned in this category is 65 ter 7195, I don't
12 have that on my list.
13 MR. THAYER: I'm not sure what the date of the list to which Your
14 Honour's referring. We distributed a list on the 28th of February. It's
15 the first document in that second category of associated exhibits.
16 JUDGE FLUEGGE: Turns out that I have -- thank you very much.
17 Yes. Obviously I have a list also of the 28th of March, perhaps a little
18 earlier, or there's something wrong. If that isn't the case, I was shown
19 it and I think you may proceed and -- thank you very much. Now I have
20 the updated list.
21 Can you state if all these documents have a translation?
22 MR. THAYER: Mr. President, we've ...
23 JUDGE FLUEGGE: Mr. Thayer, it turns out that there are
24 additional problems. I was told by the Registrar that he can't see some
25 of these documents including the transcript in the Popovic case we just
1 received into evidence. It is not accessible.
2 MR. THAYER: Mr. President, we are trying to fix that now. We
3 are having the same problem at the present, we uploaded all of these
4 documents last week, so we are not sure what the problem is with getting
5 access by any party if there's problems with these documents. It -- I
6 just don't have an answer for you, Mr. President. I know Ms. Stewart is
7 working on working the bugs out. But there are three -- to answer your
8 question, there are three documents which currently lack translations.
9 One of them is the first one Your Honour pointed out, 7195. Second one
10 is 07196 and 07199.
11 JUDGE FLUEGGE: Thank you.
12 Mr. Gajic, is the Defence in agreement with the addition of these
13 three documents to the 65 ter exhibit list?
14 MR. GAJIC: [Interpretation] Mr. President, I've mentioned the
15 fact that we don't have access to e-court in respect of two of these
16 documents. We haven't had the time this morning to take them off the EDS
17 system, so it's very difficult for us to tell you that, what our position
18 is in relation to these two. I can only tell you that in relation to
19 7208, it is also on the Defence list of documents so we are happy with
20 that one. But I'd like to point out that we don't have access to
21 documents 7197, 7198, and 7199 which are again 65 ter documents. We
22 haven't got access to those either. Yesterday, we couldn't gain access
23 to 7200, 7201, and 7202 either.
24 JUDGE FLUEGGE: Mr. Thayer, this situation is very
25 unsatisfactory. We are now slightly confused. The Defence must have, of
1 course, access and the Chamber as well to all these documents, and if we
2 don't have access we can't decide.
3 MR. THAYER: I understand the predicament the Trial Chamber is
4 in. What I can do is I can at the very least give the Defence my hard
5 copies of those documents right now. I've got those documents. These
6 are documents we've tried to place them on as much notice of as possible.
7 I've got hard copies here. I can't explain the technical reasons why
8 people are having problems accessing these documents. If we need to, I
9 can arrange to make hard copies of all of these documents for the Trial
10 Chamber and for the Defence. If I have a list of exactly what the Trial
11 Chamber and the Defence do not have access to at the moment, we can get
12 those in a matter of minutes and it shouldn't take more than that simply
13 to make copies.
14 JUDGE FLUEGGE: Mr. Thayer, I think it would be more appropriate
15 if the Prosecution would solve this technical problem. Perhaps these
16 documents are uploaded into e-court but not released.
17 MR. THAYER: They've been released, Mr. President, for a week,
18 and I've had access, our team has had access, so I honestly cannot tell
19 you what the technical problem is with lack of access by the Defence
20 team. As I said --
21 JUDGE FLUEGGE: Not only by the Defence team, also by the
23 MR. THAYER: As I said, if hard copies can be used and we can try
24 the case the old fashioned way, we can make the hard copies and
25 distribute them and that will just take a matter of minutes, but as I
1 said, Ms. Stewart is doing what she can with her people to see if it's a
2 problem that we have any control of, but unfortunately, it doesn't look
3 like we do at the moment.
4 JUDGE FLUEGGE: I think for the moment, we will of course receive
5 the documents admitted through the witness in prior proceeding 65 ter
6 7195 and then through the whole list to the last one which is 65 ter
7 2080, but those you have indicated which have no translation yet will be
8 marked for identification pending translation.
9 MR. THAYER: And, Mr. President, just so that we can get to work,
10 I can tell you that with respect to those three documents that don't have
11 translations at the moment and with respect to, I think, all but one of
12 the documents which the Defence says it doesn't have access to, I will
13 not be referring to any of those documents during my examination-in-chief
14 and from what I've seen of the Defence list it's not on their list of
15 document, so I don't think these are documents that are going to be at
16 issue in any event, at least the ones that are on the associated exhibit
17 list. With respect to those that didn't have 65 ter numbers, to the
18 extent I was going to possibly use them they are at the end of my direct
19 examination, so I think we can get started, with the Court's permission,
20 with the witness's testimony and we can deal with those other matters
22 JUDGE FLUEGGE: Indeed. And if there are problems, they should
23 be raised and then we will deal with them case by case. The Registry
24 will provide you with P numbers by internal memorandum.
25 Please continue, Mr. Thayer.
1 MR. THAYER: Thank you, Mr. President. I do have a 92 ter
2 summary for the witness.
3 In July 1995, the witness was serving in a civilian capacity as a
4 civil affairs officer with UNPROFOR. On or about 12 or 13 July, he was
5 tasked to work with the civil affairs team at the Tuzla airbase where he
6 saw thousands of mostly women from Srebrenica arrive in buses. The women
7 were quite thin, quite distraught, and concerned about the fate of their
8 men. He recalls one woman trying to scale a barbed wire fence with her
9 bare hands because she had heard a rumour that some men from Srebrenica
10 were nearby.
11 The witness stayed in Tuzla for about a week until he and another
12 civil affairs officer, Viktor Bezruchenko were sent to Zepa on 20 July.
13 En route, they passed through a number of VRS check-points, then arrived
14 at OP 2, which was under VRS control. He saw a number of VRS military
15 vehicles and booming loud-speakers set up around the area in support of
16 psychological operations conveying the message that there was no chance
17 for the population. They then saw General Mladic with a representative
18 of UNHCR and of ICRC. They were told to sit down and while lunch was
19 served, a VRS officer filmed the discussions for propaganda purposes.
20 After awhile, firing commenced from VRS cannon positions towards Zepa and
21 they were told to leave.
22 Upon return to Sarajevo, he reported to David Harland at Sector
23 Sarajevo and John Ryan, the senior civil affairs officer. Meetings
24 concerning the fate of Zepa and the related issue of prisoner exchange
25 were held at the Sarajevo airport. From the Muslim side, an "all for
1 all" exchange had to include the missing men from Srebrenica. From the
2 Serb side, the status of the men from Zepa was the concern.
3 The witness and Bezruchenko travelled to Zepa a second time on
4 25 July. En route, they stopped by the UNHCR offices to discuss UNHCR's
5 decision not to participate in the evacuation of the Zepa population
6 because it did not want to be accused of assisting in ethnic cleansing.
7 They arrived again at OP2 and met with Mladic who told them to go down
8 into Zepa town.
9 They arrived at the Ukrainian compound in the school in Zepa and
10 met with the Muslim leadership, including Hamdija Torlak. UNPROFOR was
11 the only international presence, as ICRC limited its participation to
12 evacuating the wounded.
13 The next day, 26 July, the witness went to the centre of Zepa and
14 saw a concentration of women huddled with their children. Following
15 instruction from the UNHCR, the witness and Bezruchenko began asking the
16 women if they were leaving of their own free will, to which they answered
17 yes. This continued for another 15 to 19 women, until one woman told
18 them that she was not leaving of her own free will and that she wanted to
19 stay but did not know who would protect her. She then began to cry,
20 after which all the women began to cry. The witness's clear impression
21 was that Zepa was their home but that they were terrified as to their
22 fate if they stayed.
23 As soon as the vehicles arrived, the transportations began, which
24 was basically the VRS logistical part of the operation. Vehicles would
25 come down the one-lane dirt road from the steep gorge into Zepa, fill up,
1 turn around and go back up. There were not enough peacekeepers to escort
2 each bus.
3 Separately from this, an UNPROFOR doctor and a VRS doctor with an
4 ICRC representative screened the wounded to see who required evacuation,
5 those deemed seriously wounded were evacuated under French escort. At
6 one point, Muslim women who remained in the centre saw the UNPROFOR
7 convoy leaving, blocked the convoy because they thought it was the last
8 one and were panic-stricken that they would be left behind.
9 During the two full days of evacuations, the witness saw
10 Generals Mladic and Tolimir actively gauging what was going on and
11 supervising. They were the highest ranking VRS officers he saw engaged
12 in the operation.
13 During the transportations, there was a lightly wounded man with
14 his arm in a sling who was acting as a spokesperson for the other lightly
15 wounded and who repeatedly approached the witness and Bezruchenko
16 seeking to be evacuated with the women and children. The witness met
17 with the accused in town and asked him if the lightly wounded could be
18 evacuated with the last bus. The accused agreed, and the lightly wounded
19 boarded the bus. Given that these lightly would you wounded were
20 military-aged men, the witness told the French major to put a peacekeeper
21 on each bus and have an APC follow it.
22 On 27 July, the witness was also present for a meeting between
23 civilian leaders from Zepa and the VRS --
24 JUDGE FLUEGGE: Could you please slow down a bit.
25 MR. THAYER: Yes, Mr. President.
1 -- at which General Smith was also present. The civilian leaders
2 appeared ready to sign a capitulation agreement on behalf of the Zepa
3 Muslims, but the witness was concerned that they lacked the authority to
4 do so and that any surrender would therefore lack validity, and informed
5 Smith about his concerns.
6 On 27 July, after the last convoy had left, the witness saw two
7 heavily-armed VRS soldiers with aggressive demeanour enter the UNPROFOR
8 compound at the school in Zepa, grab Avdo Palic, and drive away with him.
9 The witness and Bezruchenko attempted to follow in their car, but were
10 unsuccessful. After General Smith left Zepa, the hodza and one or two
11 other Muslims were also taken.
12 Q. Sir, I want to ask you a couple of questions to follow up on some
13 topics you testified about in the Popovic case and to show you some
14 reports that you were not shown in that case that I think you can help
15 the Trial Chamber with. Now, the first thing I want to ask you about is,
16 you testified in the Popovic case - and this is at transcript page 14170
17 to -171, for the record - that during the VRS attack on Zepa, both the
18 Bosnian Muslim and Bosnian Serb forces threatened to kill the Ukrainian
19 peacekeepers. And I think testified that you received information to
20 that effect and we saw that in some memos that were discussed in the last
21 trial. Do you recall that, sir?
22 A. I do recall that and that is also in the line of where reports
23 were shown to me that refreshed my recollection of that -- of those
24 threats and my awareness of those threats at the time.
25 Q. Okay.
1 MR. THAYER: Let's look at two documents very quickly along those
2 lines. The first one is 65 ter 2154, please.
3 Q. And what we can see here, sir, is a sitrep, a situation report,
4 here it's called a sync rep by the Ukrainians, we can see it's from
5 UKRBAT and that's Ukrainian battalion; is that correct, sir?
6 A. Correct.
7 Q. And it's dated the 16th of July, 1995, and I want to turn your --
8 direct your attention to the portion which begins with the word
9 "Charlie." Do you see that there, sir?
10 A. I do. It might be easier for me just to read the English, but
11 if --
12 Q. Sure, just -- do you have the English on your screen, sir?
13 A. I do, but it would be bigger if I only had the English. I don't
14 know if it's possible to do that. But anyway, it's all right. I can --
15 MR. THAYER: And for the B/C/S we need to go to page 2.
16 JUDGE FLUEGGE: We need both versions on the screen to enable the
17 accused to look at the same document at the same time.
18 THE WITNESS: I understand. Very well. Maybe if we could blow
19 up, Charlie, if we could maybe enlarge that a bit. Thank you.
20 MR. THAYER:
21 Q. We can see it, and it states: "Re-establishment communication
22 between base and CP2."
23 JUDGE FLUEGGE: We don't have the English version on the screen.
24 I don't have. Sorry, yes, the other way around.
25 MR. THAYER: It's definitely a Monday, Mr. President.
1 JUDGE FLUEGGE: Thank you for this reminder.
2 MR. THAYER:
3 Q. Sir, do you know what the abbreviation "CP2" is?
4 A. CP or OP?
5 Q. Either one. If it's OP, tell us what OP2 is, and if it's CP,
6 tell us what CP2 is.
7 A. Well, OP would be observation post, CP could be check point, but
8 in this context it would be OP2 is what we generally understood the
9 location that was the designation that UNPROFOR had given that.
10 Q. Indeed. So observation posts were referred in your experience to
11 as OPs; is that correct?
12 A. That's my understanding, correct.
13 Q. Okay. As we read on, there's reference to the personnel mounted
14 Defence, the Serbs directed their weapons to the Ukrainian soldiers, and
15 reiterated that if NATO undertakes any actions against them, they will
16 kill the OP or as you read it OP personnel.
17 The question is simple, is this the type of information that you
18 were receiving during this period of time concerning the status of the
19 Ukrainian peacekeepers vis-a-vis the warring parties and how they were
20 being treated?
21 A. In a -- yes, this is the nature, this is the type of information.
22 Whether I was actually shown this report at the time, I cannot say. But
23 we were generally aware of the plight of the Ukrainian battalion
24 second-hand, that is through them. These were not threats that I had
25 received directly from either side there, but to answer your question,
1 yes, this is in the nature of the information that we would have had at
2 the time.
3 Q. Okay. Well, to put it even more simply, do you recall receiving
4 reports that both sides were threatening to kill the Ukrainians?
5 A. I think in general we were aware of the difficult situation that
6 they were in, correct, and that there were threats.
7 MR. THAYER: Mr. President, the Prosecution would tender
8 65 ter 2154.
9 JUDGE FLUEGGE: It will be received.
10 THE REGISTRAR: That, Your Honours, will be assigned P01950.
11 MR. THAYER: And if we may have 65 ter 7200 briefly, please.
12 Well, this is one of our problematic ones. I do have a hard copy that we
13 can throw up on the ELMO, and if the Defence needs -- actually, this is
14 one that we don't have a translation for, so if we just throw it up on
15 the ELMO, I think we can look at it the old-fashioned way with the Court
16 Officer's assistance, please. It's a very, very short report, so I can
17 just read it in and the accused will receive the translation that way.
18 Q. Okay. We can mostly see the document on the screen. The date is
19 20 July, 1995. It's another Ukrainian battalion sync rep and again next
20 to the entry for "Charlie," I'll just read it into the record, it says:
21 "The commander of Bosnian --" and now I don't have my hard copy
22 so I can't read it on the screen, Bosnian something?
23 A. BDE.
24 Q. Oh, brigade, BDE. Thank you, Witness.
25 "... BDE in Zepa Avdo Palic announced that if the helicopter with
1 representatives of BHC FWD," and, sir, can you tell us what that
2 abbreviation is, if you know? BHC FWD?
3 A. Bosnia-Herzegovina command forward. Bosnia-Herzegovina command
5 Q. Do you remember where that was located, that command?
6 A. That command would have been I believe was still -- was then in
8 Q. Okay.
9 A. And forward, these are UN designations.
10 Q. Right. And then we see the abbreviation UKRBAT-1, UNHCR, UN ICRC
11 and UNMOs doesn't arrive to Zepa by 21, and then we see some
12 hours: 0800 hours, Bravo 1995, Bosnians will kill Ukrainians. Again, the
13 question is the same, sir, is this the type of information that you were
14 receiving concerning the treatment of the peacekeepers by both of the
15 warring factions during this period of time?
16 A. Affirmative. This is in the nature of the information that we
17 were receiving.
18 Q. Okay.
19 MR. THAYER: The Prosecution would tender 65 ter 7200,
20 Mr. President.
21 JUDGE FLUEGGE: This document will be received, pending -- it
22 will be marked for identification pending translation.
23 THE REGISTRAR: And that document will be assigned P01951 MFI,
24 Your Honours.
25 MR. THAYER:
1 Q. Now, I'd like to spend most of the rest of our time together
2 doing, sir, is looking at some reports, numerous examples of which you
3 were shown in the Popovic trial but not these. May I show you one or two
4 from the Popovic trial to ask you some more detail but --
5 MR. THAYER: And by way of explanation for the Trial Chamber, we
6 have uploaded an exhibit from the Popovic case which is a collection of
7 reports from David Harland - and you'll hear a little bit more about
8 David Harland - up the chain of command within the UN concerning the
9 events in Zepa. The Trial Chamber in the last -- in the Popovic trial
10 had asked us to put those into a packet form, which we did in hard copy,
11 and that has been uploaded with tabs in e-court separating the various
12 reports, so it will start with tab 1 and end with tab 18 with a divider
13 sheet in between.
14 We have updated this packet to reflect the current 65 ter
15 numbers. What is currently uploaded into e-court has the Popovic 65 ter
16 numbers, but we'll have a new and improved version with the appropriate P
17 numbers and exhibit numbers as well, which we can distribute to the
18 parties and to the Trial Chamber in hard copy, which will be a little
19 easier, but in the mean time we'll work with e-court as we move through
20 this packet of documents. I just wanted to give you that background so
21 you had an idea of the what we are looking at the on the computer.
22 JUDGE FLUEGGE: And to have it on the record, this is 65 ter
23 2438; is that correct?
24 MR. THAYER: That's correct, Mr. President. And we've also
25 furnished the Defence with a translation of this packet. There are a few
1 translations that are still outstanding, but they have a mirror image in
2 B/C/S to work with as well.
3 Q. Now, sir, you spoke briefly in the last trial about
4 David Harland, I think you described his position, and you stated, and
5 this is at transcript page 14164 to -165, that he was quite methodical in
6 reporting and that his reports, and this is at 14217 of the prior
7 transcript, were accurate, contemporaneous recollections of communication
8 that we had, meaning that you and Mr. Harland had.
9 What I'd like to ask you is if you can describe for the Trial
10 Chamber in just a little bit more detail the general nature of your
11 communications with Mr. Harland, and I don't mean the substance at this
12 point, but just how you would communicate, how frequently you would
13 communicate during this period of time, when you went down to Zepa twice,
14 returned to Sarajevo, and were witnessing the events that you witnessed.
15 A. Yes --
16 MR. THAYER: And I see that Mr. Gajic is on his feet.
17 JUDGE FLUEGGE: Mr. Gajic.
18 MR. GAJIC: [Interpretation] Your Honour, I have only one
19 suggestion, the transcript is literally flying in front of our eyes, so
20 the witness begins his answer before the interpretation of the question
21 is finished. It happens quite often, so I would like to ask both
22 speakers to slow down.
23 JUDGE FLUEGGE: And especially not to overlap, that happens
24 always in the courtroom. Please wait with your answer, sir.
25 THE WITNESS: [No interpretation]
1 JUDGE FLUEGGE: This is not very helpful because we don't receive
2 your interpretation.
3 THE WITNESS: Mr. President, I thought the interpreters translate
4 everything. My apologies, if they do not.
5 JUDGE FLUEGGE: But if one speaker is moving from and switching
6 from one language to the other this is technically very complicated.
7 THE WITNESS: My apologies.
8 JUDGE FLUEGGE: Just continue with your answer, please.
9 THE WITNESS: Yes, sir. To answer your question, David Harland
10 and I were long time colleagues, UNPROFOR civil affairs colleagues, in
11 Bosnia, and we had close communication certainly over this period. The
12 nature of the communication changed, of course, depending on whether I
13 was co-located with him in Sarajevo or when Viktor Bezruchenko and I had
14 gone to Zepa, in which case we were dependent on the technical means that
15 existed, such as they did, for us to communicate there. But when we were
16 back in Sarajevo, David and I were in close personal communication and,
17 of course, Viktor and I tried to be dutiful about reporting from Zepa to
18 David as best we could.
19 MR. THAYER:
20 Q. And during the period of time when you were physically in Zepa or
21 en route to Zepa, can you tell the Trial Chamber what activities
22 Mr. Harland was engaged in in Sarajevo pertaining to Zepa and what was
23 happening in Zepa?
24 A. In addition to the reporting that you can see and all those who
25 have the documents can see, the reporting that David was conveying higher
1 up in the UN chain, you can also see that David was playing an important
2 role in communicating with the parties both Serbs and at that time, as
3 it's referred to in the documents, the Bosnian side, that's how it is
4 referred to in that document in those days, and David in particular was
5 present for these negotiations about a prisoner exchange. So he was, in
6 Sarajevo, was performing an important role both in reporting and also in
7 maintaining communication with the interlocutors from the sides.
8 Q. And is it fair to refer to those meetings in Sarajevo about the
9 prisoner exchange as the airport meetings, as a shorthand way of
10 referring to them, because that's where they were occurring? Is that
11 fair to do?
12 A. You could refer to them in that way. I would just say be advised
13 that prior to and subsequent to, there may have been other meetings at
14 the airport. The airport was the traditional location for such meetings
15 being accessible to both Serbs and the Bosnian side in Sarajevo.
16 Q. And how would you describe the flow of information between you
17 and Mr. Harland during this period of time, let's focus right now on when
18 you were physically on the ground in Zepa and he was in Sarajevo?
19 A. It's hard for me to be absolutely precise about the flow. We --
20 Viktor and I did the best we could to provide information and to stay in
21 some kind of communication, but we were under - and I would emphasise
22 this to all those concerned here - we were under tremendous stress and
23 there was an enormous operation that we had to be physically present for,
24 so -- and also I would call attention to the fact that in those days,
25 this is pre-Internet, pre-e-mail, pre all of that, so it was voice
1 communication at that time. We didn't even have ability to send a fax
2 from Zepa.
3 So we tried and did what we could to maintain, to communicate
4 essential matters, but the flow was somewhat intermittent because of the
5 operational conditions we were working under in Zepa.
6 Q. And what kind of communications means did you use when you were
7 in Zepa?
8 A. Once -- I'm pausing here with respect for interpretation.
9 With -- once the French units had arrived, I recall that they had
10 in their APC that they had means that we used, whether they were radio or
11 radio telephone at this point, I can't recall.
12 Q. You mentioned that you and Mr. Bezruchenko were under tremendous
13 stress. What was the source and nature of that stress that you are
14 speaking about?
15 A. This was a -- this was a very challenging, which is a word that
16 barely describes it. This was a very difficult and -- operation with --
17 in which we had responsibility and were aware of the potential for loss
18 of life and also the potential for crimes to occur such as rapes and
19 other potential risk. So Viktor and I were under -- and plus there was
20 an operational pace to keep up here of moving these persons that were
21 permitted to leave Zepa and to try to maintain both the pace and to
22 ensure that it was done under maximum conditions possible of maintaining
23 security and any sort of -- maintaining any humanitarian standard. So we
24 were under quite tremendous stress, and we were also aware of the context
25 in which this happened, that this isn't just a logistics operation of
1 moving some people from one place to another. This is an operation in
2 which a population is being expelled from their homes in war time and
3 this -- we were quite aware of the context in which we were operating.
4 MR. THAYER: Let's look at this packet of reports, and this is
5 65 ter 2438. And just to give Your Honours a quick look, this is just
6 the cover, the old cover, and this is what we plan to replace. As we can
7 see, the Defence has the new and improved version already and will have
8 the English available and obviously the tab numbers here refer to the
9 physical tabs that are on the packet of memoranda and reports.
10 So what I'd like to do is go to page 3 in e-court. And then the
11 next page. And this is also page 4 in the B/C/S.
12 Q. What we have here is a 20 July, you can see the date, report from
13 David Harland. And we see the abbreviation SCvAO. What does that stand
14 for, sir? And please, again, pause, and I'll try to do my best as well.
15 A. That stands for senior civil affairs officer.
16 Q. Okay. We can see that the author is David Harland. And this is
17 going to John Ryan. I think you described his position in your prior
18 testimony. Can you just tell us what this acronym DSRSG/CAC is?
19 A. DSRSG is deputy special representative of the Secretary-General.
20 CAC, civil affairs co-ordinator. Or, chief civil affairs, I believe
21 civil affairs co-ordinator. Even now I'm a little hazy, but in any event
22 it means the head of the civil affairs operation in Bosnia.
23 Q. Okay. And we can see the subject is: "Meeting on Prisoners
24 Exchange and Evacuation of Zepa."
25 MR. THAYER: If we could go to the next page in both versions,
2 Q. We can see it's basically the same information, the from and to
3 lines here. And it makes reference to a meeting at 2.00 in the afternoon
4 at the Sarajevo airport. It was attended by Amor Masovic. And can you
5 tell the Trial Chamber what his position was in July of 1995, sir?
6 A. At that time he was a representative from, again, what is
7 referred to then as the Bosnian side on prisoner exchange matters. As
8 far as I recall, that was his portfolio. I don't recall that he had
9 other portfolio than that.
10 Q. It says Lieutenant Colonel Indjic represented the Serbs, and can
11 you tell the Trial Chamber who Lieutenant Colonel Indjic was?
12 A. For UN purposes he was a liaison officer, but his portfolio might
13 have been somewhat different from Mr. Masovic in that he might have had
14 other duties, not just prisoner exchange duties.
15 Q. And if we look at the next paragraph it refers to four hours of
16 talks, and an agreement in principle that there should be an all-for-all
17 exchange. And before we go any further, in your experience, sir, what is
18 meant by an all-for-all exchange? Just generally speaking, what does
19 that mean?
20 A. Having -- clearly I was not in attendance at this meeting. I was
21 in Zepa, if I correctly understand the time and date, but I had been
22 present in other such meetings and my understanding was all-for-all meant
23 all those held by one side in exchange are for all those held by the
25 Q. Okay. And if we read further on it says Harland reports here
2 "No final agreement was made because the Bosnians were not
3 satisfied that the Serbs had accounted for all the prisoners taken in the
4 assault on the Srebrenica enclave. The Serbs agreed that they would try
5 to produce a fuller reckoning of the Srebrenica prisoners in the next
6 several hours."
7 Can you tell the Trial Chamber how this issue that's reported on
8 here by Mr. Harland, that the Bosnians were not satisfied that the Serbs
9 had accounted for the prisoners taken in the fall of -- after the fall of
10 Srebrenica, how that issue played out in your recollection during the
11 time that you were involved in these Zepa events? Not just on the 20th,
12 but going forward starting from this first meeting on the 20th at the
13 airport. Understanding your caveat before that you were reporting as you
14 could and so forth, but can you tell the Trial Chamber from your
15 understanding of your communications with Harland and other people how,
16 if at all, this issue played out during the course of these Zepa
17 negotiations, whether it was at the airport or down in Zepa, and we'll
18 get to more specific Zepa documents that you have more personal knowledge
19 of later.
20 A. With the understanding that when I was on the ground in Zepa,
21 David Harland was not reporting to me. I might have had the opportunity
22 to ask him some questions about the nature of the prisoner negotiations,
23 but it would have been far more important for me and both my attention
24 and his would have been more on the information from the ground in Zepa
25 that I was passing to David. So with that caveat, I can say that in a
1 general sense, the -- we were in general aware that the missing men from
2 Srebrenica were an impediment to achieving a deal in the talks in
4 Q. And we'll look at one document in particular later, but can you
5 tell the Trial Chamber for you personally, can you describe at what point
6 you had concerns for the fate of the men of Srebrenica?
7 A. That -- my concerns about the fate of the men in Srebrenica date
8 back to the time when I was in Tuzla receiving the buses of women from
9 Srebrenica, and in the reference by the document you showed earlier, the
10 case of the woman who tried to scale the barbed-wire fence because of a
11 rumour she heard that perhaps the men from Srebrenica were somehow nearby
12 in an adjacent location, and that example was just one that graphically
13 drove home to me the fact that this is a burning issue. And it was one
14 that I and my civil affairs colleague in Tuzla reported on and were
15 mindful of, that the question of military-aged men being held captive in
16 this context was even then for me, and this is without the knowledge of
17 what is widely understood to have happened since, but even at that time
18 was a major concern of mine and was present in my mind even at that time.
19 MR. THAYER: Okay. Mr. President --
20 THE WITNESS: If I could add -- if I could add that it was
21 present in my mind while we were on the ground in Zepa with respect to
22 the fate of what might happen to the men in Zepa.
23 MR. THAYER: Just a procedural reality that we need to deal with,
24 Mr. President, as I am sure it hasn't been lost on the Trial Chamber,
25 this is a packet of individual reports, so we did not split this packet
1 up into 18 separate exhibits. It is listed with one 65 ter number. Some
2 of these documents do have separate 65 ter numbers which we could tender.
3 We can find out for the record whether the Defence has objections to each
4 of these reports, and if there are none then we can tender the entire
5 packet at the appropriate time, or we can wait until later and then deal
6 with that, but I think it may be worth the time to simply take report by
7 report, just find out whether there are any objections on the record to
8 an individual report, and if there are none we can note that, and at the
9 end of the day when we've gone through all the reports in the packet then
10 we can tender it. Otherwise, we'll have to go back and discuss every
11 single report out of context months from now.
12 JUDGE FLUEGGE: I think it's a good proposal to do that. For a
13 better understanding of the whole package we saw at the beginning the
14 front page, that was related to the Popovic case. Did I understand you
15 correctly that you will replace that page by another page in relation to
16 this case?
17 MR. THAYER: Exactly, Mr. President, with this case's 65 ter
18 numbers and caption and relevant information on the page.
19 JUDGE FLUEGGE: Thank you very much. Go ahead, please.
20 MR. THAYER: In that case, Mr. President, the Prosecution would
21 tender the report in tab 1 of 2438 which, and I can just read the ERNs,
22 is R043-3803 to R043-3804.
23 JUDGE FLUEGGE: Please check the number again, this is the ERN
24 number, if that is the correct one which we have on the record because
25 your reading was quite fast.
1 MR. THAYER: I apologise, Mr. President. That's R043-3803 to
3 JUDGE FLUEGGE: Thank you very much.
4 Mr. Gajic.
5 MR. GAJIC: [Interpretation] Your Honour, if I understood it
6 correctly, we are talking about the number of reports bearing one in the
7 same 65 ter number. Maybe this is simply a matter of proper organisation
8 of work, but I think that we should make things easier for us, so if we
9 are going to tender this whole package, it should also bear one number.
10 If it is already a one single exhibit in e-court it should have one
12 MR. THAYER: Mr. President, I think as I tried to explain, I'm to
13 some degree engaging in a small fiction. I'm tendering this tab with the
14 understanding that there will be no ruling of ultimate admissibility, we
15 are simply seeking whether there's an a objection to this tab for the
16 time being, this particular report within this one exhibit, so I'm not
17 expecting -- or even though I said we tender tab 1, I guess I can ask are
18 there objections to tab 1 so we can note that for the record, because I
19 don't think the Prosecution's intention is not to tender this whole
20 packet today unless we authenticate it through the witness but -- and if
21 we do then I will tender the entire packet, but I think there may be one
22 or two reports which we'll use with somebody else.
23 JUDGE FLUEGGE: This is always open for a party to use it --
24 tender an admitted document with another witness. I understood,
25 Mr. Gajic, that it would be -- the Defence would be in favour to have the
1 whole package admitted as one document, and I think this is quite
3 MR. THAYER: And that's my -- that was, I thought, my
4 communicated intention was to ultimately tender this as one document, but
5 in the meantime I think it will be more useful in terms of our time to
6 deal with these reports one by one on a case by case rather than coming
7 back to this document after the witness has left the stand and then have
8 to deal with them out of context. We've just discussed the document, we
9 can get the Defence's views on the document, whether they object to it or
10 not, we can note it for the record whether there's an objection or not,
11 and then when we're done we can tender the whole collection.
12 JUDGE FLUEGGE: If you are able to do that in the two hours you
13 have indicated for examination-in-chief.
14 Mr. Gajic.
15 MR. GAJIC: [Interpretation] Your Honour, just one clarification
16 about our position. We are, of course, going to object the admittance of
17 any documents which were not authenticated by this witness. I was a
18 little while ago talking simply about the procedure of tendering, so now
19 if we have one 65 ter number and then we say tab 1 is exhibit such and,
20 tab 2 is exhibit such and such, I think that this may result in a
21 confusion. They should be better organised, the exhibits.
22 JUDGE FLUEGGE: How many documents are in this package?
23 MR. THAYER: There are 18 tabs, Mr. President, within this packet
24 which again has been organised for the convenience of all parties, so
25 they are in one place in a particular order with an index so that they
1 are more easily manageable. I don't see how it helps anybody to chop it
2 up into 18 separate 65 ter number and ultimately exhibit numbers when
3 we've got one clean packet that everybody can refer to and which frankly
4 we are going to be referring to by e-court page number, so it's not going
5 to help anybody to have it come in as a separate exhibit which will be a
6 one or two page document where we are going to be dealing with this on
7 the record in the e-court version which is paginated numerically as one
9 JUDGE FLUEGGE: I think you should proceed and try to get through
10 these documents. We can see if they will be authenticated by this
11 witness and after that we shall discuss the matter if the document in a
12 whole can be admitted into evidence.
13 MR. THAYER: Again, Mr. President, with respect to tab 1, the
14 question is whether the -- I think the Defence has any objection to this
15 particular tab. And the authentication. If they have an issue of
16 authentication for this document, let's deal with it now rather than
17 having to wait until some other time.
18 JUDGE FLUEGGE: Mr. Tolimir.
19 THE ACCUSED: [Interpretation] Thank you. May there be peace in
20 this house and may this witness spend his time comfortably here in this
21 courtroom and may God's will be done in these proceedings.
22 Now, if the witness does know something about these documents
23 that were listed under 65 ter, then I would have no objection because we
24 trust that the -- we trust this witness and we believe his words, so that
25 would be all that I have to say. Thank you.
1 JUDGE FLUEGGE: Thank you very much.
2 Mr. Thayer, please proceed.
3 MR. THAYER: And if we may go to page 21 in e-court, please, and
4 we'll see that this is tab 4. If we could go to the next page in both,
5 it's going to be page -- yes, next page in both the B/C/S and the
6 English. We can see here same format as the prior report, the date now
7 is 21 July 1995. And the subject is: "Zepa Negotiations, Report Number
9 Q. Do you see that, sir?
10 A. I do.
11 MR. THAYER: And just for the record, Your Honours, the previous
12 report, "Zepa Negotiations Number 2" has already been admitted and is
13 part of the packet, but we don't need to go over old ground so we are
14 just skipping ahead to number 3.
15 If we could go to --
16 JUDGE FLUEGGE: For the clarity of the record, if you say it was
17 already admitted, under which number? Do you have the P number?
18 MR. THAYER: Bear with me, Mr. President.
19 JUDGE FLUEGGE: If not at the moment, please continue.
20 MR. THAYER: We'll get back to you, I'll move on, thank you.
21 If we could go to the next page, please. We can see that this
22 refers to another meeting at the airport about the exchange of prisoners
23 and the evacuation of Zepa. And Mr. Harland reports that those
24 negotiations collapsed. The meeting collapsed because the Serbs refused
25 to give any names of prisoners taken when they overran Srebrenica.
1 Q. You've already told us about the concerns that you had and the
2 general concerns of which you were aware that the Bosniaks had about the
3 fate of the men from Srebrenica and role that that played in these
4 negotiations, so let's go to the next page if we could save a little bit
5 of time. The date of this document was the 21st of July, sir. And were
6 you back in Sarajevo by that time?
7 A. I believe, yes.
8 Q. Okay. And we see here an assessment that's provided by
9 Mr. Harland. And in creating these reports and these assessments, can
10 you describe what your role was without necessarily referring to a
11 particular report, but generally speaking, can you tell the Trial Chamber
12 what your role was, how did you and Mr. Harland work together with
13 respect to his assessments as they are reflected in this report and
14 others that we'll see?
15 A. David and I worked closely together over this period, and I'm
16 sure that we discussed and exchanged views about what we thought was
17 happening, and I'm sure I shared my views and my own assessment with
18 David. That being said, as the report purports, and you see his
19 signature there, it is his report in the end, but David and I would have
20 had close conversation about this and about the approach and our views
21 were largely consonant.
22 Q. And at the risk of asking you to sound immodest perhaps, can you
23 tell the Trial Chamber whether your understanding was that Mr. Harland
24 relied on your consultation and observations when you would discuss these
1 A. I -- it's here not a question for the Court being modest or not,
2 I want to be very accurate for the Court. David Harland was then and
3 remains a very capable, highly capable, highly intelligent, and at that
4 point he and I both were highly experienced in Bosnia, so it would be
5 inaccurate to suggest that I was the source for David. David was
6 perfectly capable of arriving at an assessment, an accurate one, a very
7 accurate one on his own. At the same time, did I contribute and share
8 views and did he and I discuss things in an open and very close way?
9 Yes, of course.
10 Q. Now, if we look at this assessment, and let's just jump down to
11 the second paragraph, he says:
12 "It is unlikely that there will be any evacuation of Zepa in the
13 next day or two. Most likely, the Serbs will now intensify their
14 military pressure on the pocket in an effort to force the local military
15 commander to accept Serb terms. This might take several days given that
16 they seem reluctant to commit their infantry until the Bosnians are
17 broken by bombardment."
18 Can you tell the Trial Chamber to what extent during this period
19 of time when this assessment was made you shared the assessment that's
20 expressed here?
21 A. I believe I shared this assessment following our return from
22 Zepa, from the first time we were at Zepa and there when we saw the
23 resumption of bombardment, or heard, I should say heard, the resumption
24 of bombardment to be very accurate.
25 Q. And was your assessment that this bombardment was targeting the
1 Muslim military only or the Muslim military as well as the civilian
3 A. With artillery and with a location as small as Zepa was, and with
4 the experience of having been in Sarajevo, I don't think we would have
5 anticipated that there would have been much of a distinction between
6 civilian and military targets.
7 Q. Can you just tell us a little bit more what you mean when you
8 say, "I don't think we would have anticipated that there would have been
9 much of a distinction between civilian and military targets." Are you --
10 A. When we heard -- pausing. When we heard -- for example, when
11 artillery was used in that context, that we were there present, Viktor
12 and I were present for, I don't think we were under any impression that
13 those shells were being directed purely towards, for example, a military
14 barracks if one even existed in Zepa. This was a small village and the
15 tactics of the war were such, for example, in Sarajevo that bombardment
16 was regularly aimed at targets that were clearly non-military in nature.
17 Military at times, targets, sure might be purely military, but it was a
18 regular feature of this war that artillery, those who had it would use it
19 in -- towards -- in addition to non-military objectives.
20 MR. THAYER: Mr. President, I see, I think we are at the new
21 break time.
22 JUDGE FLUEGGE: Indeed we are. We must have our break now and
23 resume in half an hour at 5.30.
24 --- Recess taken at 4.59 p.m.
25 --- On resuming at 5.32 p.m.
1 JUDGE FLUEGGE: Yes, Mr. Thayer, please continue.
2 MR. THAYER: Thank you, Mr. President. I just wanted to note for
3 the record, I believe that the exhibit issues that we were dealing with
4 earlier have been resolved and all parties have access to all the
6 JUDGE FLUEGGE: This is appreciated.
7 MR. THAYER: And also to follow-up on that tab 2 I referred to
8 which had been previously admitted, that has been admitted but it's
9 awaiting an assignment of its P number, so I can't give you that right
10 now either unfortunately, but ...
11 And to give you the -- some idea of the timing, I've cut a number
12 of exhibits from my examination given my estimate. I may need to exceed
13 it slightly, but I have reduced my examination-in-chief to the bare
14 essentials, I think, and I'm working towards that two hours as closely as
15 I can.
16 Q. Sir --
17 MR. THAYER: Before we go on to the next document, Mr. President,
18 with respect to tab 4 which is the document we just looked at, again if
19 we could find out from the Defence whether they have any objections to
20 this document being admitted as part of 2438 when the time comes?
21 JUDGE FLUEGGE: Mr. Tolimir, are you in a position to respond to
23 THE ACCUSED: [Interpretation] Thank you, Your Honour. The
24 Defence does not object to the admittance of any of the documents that
25 relate to the responsibility or that can speak to the responsibility of
1 the accused. Thank you.
2 JUDGE FLUEGGE: Go ahead, please, Mr. Thayer.
3 MR. THAYER: If we may go to page 25 in the document, and we'll
4 see that that's tab 5, and that's page 23 in the B/C/S version. Go to
5 the next page, please, in both versions. I apologise, there is no
6 translation for this one yet, so if we can just focus on the English.
7 We can see that this is another same format as the prior reports we saw.
8 This one is dated the 22nd of July from Mr. Harland and it's subject is
9 Zepa negotiations and this is report 4 of the series. If we could go to
10 the next page, please.
11 Q. We can see that it deals with a meeting between Mr. Harland and
12 General Gobillard in which Mr. Harland suggests that the UN offer the
13 parties a radical demilitarisation proposal, an idea proposed by
14 Ed Joseph three days ago. Do you recall testifying about that
15 demilitarisation proposal in the last trial, sir?
16 A. Yes, I do.
17 Q. Okay.
18 MR. THAYER: If we could go to the next page. Let's focus on the
20 Q. And again this is dated the 22nd of July. Are you back in
21 Sarajevo at this point or are you down in Zepa; do you recall, sir?
22 A. From my understanding of the sequence, I think I'm back in
23 Sarajevo at this point.
24 Q. Okay. And if we focus on the assessment, Mr. Harland writes:
25 "Our proposal for the total demilitarisation of Zepa remains a
1 long shot. It is true that the Serbs are reluctant to attack the Zepa
2 pocket until they have completely worn down its population. On the other
3 hand, it is hard to imagine that they would accept any arrangement that
4 would leave Zepa in Bosnian hands. I imagine that they will continue to
5 make life in Zepa as miserable as possible for the local population
6 until - demoralised by the assault and abandoned by the international
7 community - they accept the 'evacuation' option being prosed by the
9 Now, sir, my first question is, in July of 1995 did you share
10 this assessment that the Serbs were reluctant to attack until they had
11 completely worn down its population?
12 A. Without being 100 per cent pinning me down to whether on that day
13 did I have that assessment, without being microscopically precise about
14 that, I would say yes, that I was aware as were my colleagues that the
15 Serbs were reluctant to do an infantry assault in Zepa because of the
16 likelihood that they would take substantial casualties.
17 Q. And these references to the population and the local population,
18 are those references to military, Muslim military forces, Muslim
19 civilians only, both, or what is your understanding when Mr. Harland
20 refers to its population and the local population, who or what is he
21 talking about?
22 A. Again, it's David's document so he is the one who would be
23 categorical about what he meant, but my understanding is it would be
24 both, both the civilian and military population.
25 Q. And in your experience down there in Zepa during this time, how
1 was the civilian population being made miserable and worn down as
2 indicated here?
3 A. Isolation, deprivation, and then artillery bombardment.
4 Q. Finally, we see here that the word "evacuation," if you look at
5 the paragraph in the assessment, the last sentence, the word "evacuation"
6 is in quotations. Can you tell the Trial Chamber why the word
7 "evacuation" is in quotation marks?
8 A. Repeating my caveat that this is David's report, I would surmise
9 David and I would probably have shared this view that evacuation is
10 so-called in this context but really what we are talking about is
11 expulsion. In other words, the forced expulsion of the population, not a
12 evacuation because of as one would do in the case of a flood or a -- some
13 natural disaster.
14 MR. THAYER: Okay. I think we are done with this document,
15 Mr. President. The Prosecution would seek the Defence's position on the
16 admissibility of this document as part of Exhibit 2438.
17 JUDGE FLUEGGE: Mr. Tolimir, is your previous comment also valid
18 for this document?
19 THE ACCUSED: [Interpretation] It is, Your Honour. It is valid
20 for this document as well. Whatever is accepted by the witness will be
21 accepted by us because we know that he wouldn't agree or accept -- agree
22 to or accept something that he hadn't seen.
23 JUDGE FLUEGGE: Thank you. Go ahead, please, Mr. Thayer.
24 MR. THAYER: Thank you. And if we could go to page 35 in the
25 English, and that will be page 27 in the B/C/S. We can see we are at tab
1 7 for the record. If we could just advance one page in each and I'll
2 just note that we don't have a translation of the fax cover page that
3 we've seen on a couple of these. We do have a translation of the
4 substantive report that we'll be looking at, so just for the time being
5 I'm going to note that we can see here this is a similar format report
6 from David Harland. The date is the 25th of July, 1995, and this is
7 subject: "Zepa Negotiations 6."
8 And if we can go to the next page in the English only and stay
9 where we are in the B/C/S. We can see Harland reporting that he received
10 a message from the Ukrainians indicating that the local Bosnians had
11 accepted the terms of surrender and evacuation of Zepa and that he asked
12 Mr. Bezruchenko and yourself to travel immediately there.
13 Q. My first question is, is this the second trip that you testified
14 about in Popovic and that we've already heard a little bit about today,
15 that you took down to Zepa? Is that what's reflected here?
16 A. Yes, it is.
17 Q. Okay. I want to direct your attention to the third paragraph
18 where he says that:
19 "At 11.00 a.m. Bezruchenko called Harland and told Harland that
20 he had he seen the elements of an agreement signed by Rajko Kusic and
21 Hamdija Torlak."
22 The question is simply, do you recall that happening?
23 A. I have a hazy memory, but I have no reason to doubt the accuracy
24 of this record, of this report.
25 Q. And this reference to Lukavica, what is that, sir?
1 A. Lukavica barracks were the Serb military presence nearest
2 Sarajevo where we would have frequent meetings.
3 Q. Okay.
4 A. Serb Sarajevo I think even now they refer to that side as.
5 MR. THAYER: Mr. President, the Prosecution again would seek the
6 Defence's position on tab 7.
7 JUDGE FLUEGGE: I take it that the response will be the same,
8 otherwise the Defence will object.
9 MR. THAYER: Very well, Mr. President. I'll try to save time and
10 just keep going.
11 If we could see page 54, please, in e-court, and this will be
12 page 37 in the B/C/S. We don't have a translation of this one,
13 unfortunately. And if we could go to the next page, we see we are at tab
14 10 of the document, just for the record. This is another Harland report
15 dated the 26th of July, the subject is: "Zepa Negotiations Number 9."
16 If we could just turn the page.
17 Q. There's a reference to another meeting at the Sarajevo airport,
18 and if we look at the assessment, Mr. Harland reports that:
19 "The Bosnians, recognising the extreme weakness of their
20 negotiating position, seemed to have accepted that they will not get back
21 any significant number of prisoners taken in the Srebrenica operation
22 (these prisoners account for upwards of 90 per cent of all the prisoners
23 held by the Serbs). The Bosnians will not agree, however, that the men
24 of Zepa should ever fall into Serb hands."
25 My question to you, sir, is let's locus on that last sentence,
1 the Bosnian's position that the men of Zepa should never fall into Serb
2 hands. To what degree did that position figure into the discussions that
3 you were part of or aware of during your involvement in the Zepa events
4 in July of 1995? If you can't remember a specific meeting or
5 conversation, that's okay, but can you give the Trial Chamber a sense of
6 in general to what extent this position was evident to you or not.
7 A. I'll answer in two parts. First in terms of the sequence here,
8 we should bear in mind that I am now back in Zepa. So my awareness of
9 evolution or non-evolution of the parties' positions is limited, so I'm
10 not clear now exactly on what I knew relayed to me in Zepa at the time.
11 So there's that limitation on my awareness of the on-going developments
12 in those negotiations and discussions in Sarajevo.
13 That being said, my own awareness was that of course that this
14 was important not only for what is termed there, again I'm using the term
15 as it's used in David's report, "Bosnians," you've used Bosniak, but for
16 the report we at that time were using the term "Bosnians," but this was
17 something that was of concern to us even, I would say, independently of
18 the Bosnian position. In other words we, and I know myself in my own
19 mind, had a concern about what would happen to the men of Zepa and what
20 modalities there would be to ensure that they would -- if an all-for-all
21 exchange were agreed upon, what modalities there would be to effect their
22 safe transfer from that region to across the lines into the
23 Bosnian-controlled territory.
24 So I think I was generally aware of that position but even
25 independently from any position on the -- even if there were no expressed
1 concern, I know I had that concern myself.
2 Q. And what was that concern based upon, sir?
3 A. That concern was based upon three years of experience in the war
4 and the particular recent memory of the situation in Srebrenica where we
5 did not know the fate of the men of Srebrenica, and where that was a
6 giant question mark.
7 Q. Okay.
8 MR. THAYER: Let's move to page 60. And for the record, that was
9 again tab 10 that we just looked at. And we are now looking at tab 12.
10 This will be page 42 in the B/C/S, please, and there is a B/C/S
11 translation for this document.
12 JUDGE FLUEGGE: Before you move on, Judge Nyambe has a question.
13 JUDGE NYAMBE: Yes, I wonder if you can assist me to understand,
14 at page 52, line 19 to 21, you are talking of the forced expulsion of the
15 population and not an evacuation, and you say in explaining -- you say
16 because of -- it's not a flagged or a natural disaster, in this
17 particular I have a question. Then in the correspondence and the various
18 documents that we have there is frequent reference to evacuation of the
19 population, so in your assessment at what point then does evacuation
20 become forced expulsion?
21 THE WITNESS: Thank you, Judge. Very fair question. I would
22 have to see in the documents the reference to evacuation to know whether
23 that term was being used in the context of a proposal by the Serbs, in
24 other words, that was the term that they used and was reflecting that, or
25 whether it was reflecting an independent use of the term by
1 David Harland. So I would respectfully have to look and see what it was.
2 There was the reference to the assessment of David Harland where
3 evacuation was put in quotation marks and that I explained the purpose of
4 those was because it's so-called as they say in Serbian [B/C/S spoken]
5 so-so called evacuation. We were -- I should put you at ease, Judge,
6 that we were under no dilemma whatsoever that this was a forced
7 expulsion. I should just simply put the Chamber at ease about that.
8 There was no -- absolutely no dilemma, no debate whatsoever. We
9 understood what this was and I don't think that it was not even a subject
10 of debate, discussion, or dilemma whatsoever.
11 JUDGE NYAMBE: Okay. I've asked my question in the context of
12 what is at page 53 today's testimony, lines 16 to 20, and I think it's
13 Mr. Thayer paraphrasing a question where he says:
14 "We can see Harland reporting that he received a message from the
15 Ukrainians indicating that the local Bosnians had accepted the terms of
16 surrender and evacuation of Zepa and that he asked Mr. B and yourself to
17 travel there," in that context.
18 I have asked my question in the context of those words.
19 THE WITNESS: Thank you, Judge, that's very helpful for me. And
20 in my understanding would simply be reflecting the -- what it seems to be
21 to me is the Ukrainians are reflecting the use of that term in this
22 agreement that has been made and that that's what's being reflected in
23 the report. That would be my understanding. The larger point here,
24 though, I'm trying to convey to the Chamber that there was no debate or
25 impression or I might even use the term, if the Chamber will permit me,
1 illusion that this was anything other than a forced expulsion and that
2 not anyone that I would know in the UN side would have any impression
3 that this was somehow analogous to evacuating people for their safety as
4 one would do in the nature of a flood or an earthquake. If that answers
5 your question, Judge.
6 JUDGE NYAMBE: Thank you. Is there any time then in war when
7 there is an evacuation or is it just in floods, in natural disaster that
8 there can be an evacuation?
9 THE WITNESS: I suppose that -- I suppose that there could be
10 circumstances in the context of a war where one might -- we see today a
11 good example in Libya. We see civilian populations being evacuated,
12 British, Germans, others being evacuated from there because of the unrest
13 and the risk there and what is a conflict, if not a war, a conflict in
14 Libya. So, Judge, you are quite right, those circumstances do exist. My
15 impression is that that was simply not what we were confronting at that
16 time in Bosnia.
17 JUDGE NYAMBE: Thank you.
18 JUDGE FLUEGGE: Mr. Thayer, please continue.
19 MR. THAYER: Thank you, Mr. President.
20 Okay. If we could go to the next page in both versions, please.
21 Again, this is tab 12 for the record. And I note for the record with
22 respect to the prior transcript which has now been received at
23 page 14316, this document was used by the Beara team in its
24 cross-examination but was not admitted at that point, but it's the same
25 document, just for the clarity of the record. What we have here, as we
1 can see, is another report, the same format, the date is 28 July, 1995,
2 from Mr. Harland, and its subject is: "Zepa Negotiations Number 11." If
3 we can go to the next page in both versions, please.
4 Q. We can see in the very first paragraph Mr. Harland is reporting
5 that he spoke with you at about 0800 hours that morning on the 28th and
6 that you had spoken to General Mladic about Avdo Palic. The report here
7 indicates that you told Mr. Harland that Mladic had said that Palic is
8 dead when you asked him about what happened to Palic. And I believe you
9 clarified this in your prior testimony, and this is at transcript
10 page 4207, but just briefly, if you would, can you tell the Trial Chamber
11 whether your recollection is that Mladic actually told you that Palic was
12 dead or did he tell something else, do you think is possible?
13 A. Let me say that this would inform my entire testimony here and it
14 might be interesting for the Chamber that there are certain things that I
15 have vivid memories of and other things that I have, where 16 years
16 later, almost 16 years later, the memories are much more hazy. I have a
17 vivid memory of the efforts that Viktor and I made after Colonel Palic
18 was seized by Serb military personnel from the UNPROFOR compound and we
19 were eye-witness to this, including the immediate pursuit to try to
20 locate what happened to him.
21 What I recall is that we didn't see Mladic immediately, but I
22 believe the next day I had a radio conversation with Mladic, this is what
23 my memory is, from our location down in the village and to his location
24 where he was above, and it was at that time that I understood that he had
25 said Palic had been killed, and then subsequent to that what I recall is
1 that Viktor and I saw later Mladic's interpreter and asked her to confirm
2 that he had said that and my memory is that she, in some ways, had
3 confirmed that. What is a possibility to me is that there could have
4 been either a mistranslation or misunderstanding where it's possible that
5 Mladic might have said in Serbian "pobjegao" instead of something that
6 might have come across at "ubio" or "ubio ga" something like that. It
7 might have been "pobjegao," in other words, he might have said he had
8 escaped. So that is a possibility that remains. So that's my
9 recollection of that communication.
10 Q. Okay. Let's look at the next paragraph on this page, second
11 paragraph. Harland reports that:
12 "Ed also stated that he had met with General Tolimir
13 yesterday ..." so that would be the 27th of July, "... and Tolimir had
14 told him that the Serbs would accept an arrangement under which the
15 Bosnian fighters in the hills could be transported by UNPROFOR to central
16 Bosnia as a part of the all-for-all exchange deal being negotiated at
17 Sarajevo airport."
18 My question to you is, given what Mr. Harland is reporting here
19 that you told him, did it appear to you that General Tolimir was
20 knowledgeable about what was going on at the Sarajevo airport or not
21 given that he is referring to the negotiations there?
22 A. I would say yeah, based on the conversation that we had that it
23 was certainly apparent that General Tolimir was aware that these
24 negotiations were proceeding, I can't specify to what precision his
25 information was or how specifically he had awareness of where those
1 negotiations were, but in general terms he was -- the context would have
2 been one in which he would have been aware of the -- of those
3 negotiations and what the general positions were of the sides.
4 Q. Okay.
5 MR. THAYER: I'm moving through my two hours, Mr. President. I
6 think at this point I have just three more documents. I've cut the rest
7 from my list and if I could have a couple of more minutes to spend with
8 Mr. Joseph on these three documents I'd be helpful.
9 JUDGE FLUEGGE: Go ahead, please, Mr. Thayer.
10 MR. THAYER: Thank you, Mr. President.
11 If we could go to page 64, please, in the English and this would
12 be page 46 in the B/C/S. Again we don't have a translation of the cover
13 page, the fax cover page, but we do have a translation of the substantive
14 memo of the report. So for the record we can see we are at tab 13. If
15 we could go to the next page, please. We can see here in the English
16 only it's dated the 29th of July, 1995, another report in the same format
17 from Mr. Harland, the subject is: "Zepa Negotiations 12." And if we
18 could go to the next page in both versions, please. We can see the same
19 information about the date, 29 July.
20 Q. What I want to draw your attention to is on the next page, if we
21 could go to the next page in both versions - the middle paragraph where
22 it says "also during the afternoon" we can see Mr. Harland reports:
23 "Also during the afternoon, I received a message from Ed Joseph
24 in Zepa who indicated that the Serbs were apparently planning to seise a
25 number of Bosnian fighters, ('war criminals') regardless of what
1 agreement was reached. He noted that the Serbs seemed to be using
2 UNPROFOR to entice the Bosnians to give up their weapons, and were
3 perhaps using UNPROFOR to give the Bosnians a false sense of security."
4 If you would, can you just focus on that one paragraph, I know
5 it's got a couple of points to it, but if you could take a moment and
6 just explain to the Trial Chamber what you were communicating to
7 Mr. Harland in this conversation you had with him that he is
8 memorialising in this report?
9 A. I recall a conversation I had with General Mladic in which I
10 asked him was he going to permit -- if there were an agreement in
11 Sarajevo, was he going to permit the Bosnian men, Bosnian as we called
12 then, today we would probably say Bosniak, to continue on, and continue
13 on their way. And the reason I asked this was because I had concerns in
14 this regard, and as I recall he said oh, yes, we will let them go except
15 for the war criminals, and I took that to mean that General Mladic and
16 his forces would exercise quite a bit of discretion as to whom they would
17 actually -- of the men of Zepa whom they would actually permit to leave
18 and whom they would not. And that discretion might be very wide indeed.
19 That's what was the way I read and understood that. And that would have
20 been what I -- in all likelihood this is what David is referring to.
21 The second part with using UNPROFOR to entice Bosnians to give up
22 their weapons, false sense of security, I think here reflects my own
23 skepticism, and I'm sure David sharing that and aware of that, of the
24 actual limitations of UNPROFOR to truly secure populations and number of
25 examples of that inability or failure.
1 Q. And let's focus on the men of military age who are implicit, I
2 think, in this paragraph, correct me if I'm wrong, when you say that you
3 were expecting that the VRS would exercise wide discretion in who they
4 characterised as, to use the terms in the document, war criminals. What
5 concerns, if any, did you you have about what would happen to those men
6 who General Mladic told you would be characterised as war criminals? And
7 if you had concerns, what were those concerns based on?
8 A. I would have concerns as to -- as to their safety. I would --
9 those were the concerns that I had, as to whether they would -- had been
10 promised freedom, would actually see that. At that time we did not know
11 about the developments in Srebrenica, but as I said, the fact that so
12 many men were still missing was certainly something that was quite
13 present in my mind, and we also -- I understood that from the Serb
14 perspective these were -- these were fighters, these were their enemy,
15 and to permit a sizeable number of their enemy to continue across the
16 lines only to then be re-engaged against them, I did not -- I was not
17 convinced that the Serbs would simply permit that to happen.
18 Q. Okay. I'm going to press you just a little bit. When you say
19 you have -- you said you had concerns as to their safety. I mean, war is
20 a dangerous time, that area is a dangerous place just to drive a car.
21 When you are talking about safety, what are you referring to, sir, if you
22 could be more specific?
23 A. I have to be careful here because we are talking about -- I'm
24 trying to be as precise for this Chamber as I can be about my awareness
25 at the time. The problem, of course, is its a matter of record of what
1 transpired in Srebrenica, so I'm trying to be as precise as I possibly
2 can to disregard what we've all come to know transpired in Srebrenica
3 from what my state was at the time.
4 I had -- I had a great amount of fear that at least some of these
5 men might well be killed. So I had a fear that they -- some of them
6 might well be executed. Did I -- at that time was I convinced or worried
7 that all of them would be executed? I don't know. I don't know
8 necessarily that I was, but I had certainly a concern that some of them
9 would be in mortal danger if they fell into General Mladic's control.
10 Q. Okay.
11 MR. THAYER: Let's move to page 69 in e-court for the last two
12 documents. This is tab 14 for the record. We don't have a translation
13 unfortunately in B/C/S, so if we could just focus on the next page in
14 English, please. We can see it's also dated the 29th of July, another
15 report in the same format from Mr. Harland, the subject here is:
16 "Zepa Negotiations Report Number 12." And I think everybody will agree
17 shortly that this is a typo and it should be 13 as we'll see from the
18 next page. If we could go to the next page, please. We can see here the
19 subject is: "Negotiations on Zepa, Report 13." What I'd like to do is
20 go to the next page and focus on the portion that involves yourself.
21 Q. Mr. Harland is reporting on a conversation that he had with
22 Mr. Bezruchenko and then you. We see in the paragraph just before the
23 assessment, Mr. Harland reports:
24 "Ed then spoke and repeated that General Tolimir had told
25 General Gobillard that UNPROFOR could evacuate the men of Zepa directly
1 if the Bosnians would accept an all-for-all prisoner exchange."
2 My question is casting your memory back to this time, did you
3 draw any conclusions at all about General Tolimir's intentions from this
4 conversation that you had with him where he expressed what's being
5 reported here?
6 A. Could you clarify the word "intentions" please.
7 Q. Sure. Did you take what General Tolimir told you at face value,
8 let me ask it that way?
9 A. I'm not sure that I can say right now without reference to other
10 documents or -- I can say I know that from our standpoint and from my
11 standpoint we were looking, and always as UN personnel, were always
12 exploring and looking for any possibility of striking an agreement that
13 could save lives and alleviate a stand-off and so -- but precisely an
14 inference as to a specific intention, I don't know from that paragraph if
15 I can say. Sorry.
16 Q. Let me ask you this, and I'll pause just for a second: On the
17 29th of July, where were the men of Zepa?
18 A. From our knowledge that we had, they were above us hiding in
19 these dense forests, in these steep hills and dense forests.
20 Q. Okay. And did UNPROFOR or the VRS have any custody or control
21 over those men at that point?
22 A. No, we did not. Neither we nor did the Serbs.
23 Q. You just testified that General Mladic told you that they would
24 permit all of the men from Zepa to simply walk to free territory, and
25 you've told us about your concerns for their safety. So my question is,
1 when General Tolimir told you that these men could be evacuated directly,
2 if they accepted an all-for-all, was that part of the context in which
3 you had this conversation or not or if you can't remember that's fine
4 too, just trying to get your best recollection of what you -- let me put
5 it this way, to use the phrase "took away" from that conversation with
6 General Tolimir? Not asking you to try to read his mind. You don't have
7 that degree, but just asking you what you took away.
8 A. Absolutely. You have to please understand, and if the Chamber
9 would understand, that there is an obligation on our part doing in effect
10 mediation to reflect the formal position that a senior responsible party
11 like General Tolimir conveyed to us. So the fact that he conveyed that
12 position we had an obligation, regardless of whether we felt it
13 ultimately credible or not, but that this reflected in any event a
14 position that he as a senior and authoritative interlocutor would tell
16 That being said, if you ask separately, was I somehow assured
17 that, unlike with General Mladic, that General Tolimir having said this
18 that oh, that that would somehow assure that these men would arrive
19 safely, my answer to that is no. My answer to that is my same
20 preoccupation for the ultimate safety of those men remain the same with
21 what General Tolimir had told me or and what General Mladic had told me,
22 that in either case had such a deal -- my mind was concerned that in fact
23 they would come to an agreement and that how we would, as UNPROFOR,
24 create the modalities so that these men would not be snatched in the
25 midst of it, and that apprehension and preoccupation applied with
1 equality whether with respect to General Mladic or General Tolimir.
2 MR. THAYER: Okay. The last document I wanted to use is actually
3 on the Defence's list of exhibits, it's 65 ter 7208. I'll stop here,
4 Mr. President, and if the Defence picks up that document then fine, if
5 not, that's fine too, and that concludes my examination-in-chief.
6 JUDGE FLUEGGE: I take it that you are tendering the whole
7 package 65 ter 2438?
8 MR. THAYER: It's a little premature right now, Mr. President.
9 There are a couple that I cut out that we'll use with another witness, so
10 we'll just let it lie for now and we'll tender it at another time.
11 JUDGE FLUEGGE: Thank you.
12 Mr. Tolimir, you may commence your cross-examination now.
13 THE ACCUSED: [Interpretation] Thank you, Mr. President. Good
14 afternoon to everyone yet again. May there be peace in this house and
15 may God's will be done in these proceedings and not mine.
16 Cross-examination by Mr. Tolimir:
17 MR. TOLIMIR: [Interpretation]
18 Q. Good afternoon to the witness again. I'd like him to answer my
19 questions as he remembers them and based on his knowledge, not on
20 assumptions. After all, I think that the Prosecutor did seek some
21 speculative answers from the witness, what would have happened had the
22 case been such and such, and I will not venture there. I would like us
23 to stick to the facts.
24 Let's start from the last document, page 66, line 5. It says,
25 the Prosecutor told you, you said that General Mladic said that everyone
1 should cross over to free territory and were guarantees any different
2 when Tolimir told you this, and then you said on page 66 that it didn't
3 matter really whether it was General Mladic or I that told you this, you
4 felt preoccupied for these men and you wanted to see the agreement
5 carried out without the Muslims being taken away by the Serbian Army.
6 Please tell me this, do you recall, did most of the combatants, those
7 wounded who were really in combat, and were known to be in combat, were
8 wounded, were they allowed to leave without any conditions and based on
9 the agreements that I gave to you and Palic? Thank you.
10 JUDGE FLUEGGE: You should switch off your microphone,
11 Mr. Tolimir, during the discussion with your legal advisor.
12 THE WITNESS: Thank you, let me return the wishes here about the
13 proceedings, and let me state that; that is, the answer to the question
14 were the seriously wounded permitted to be evacuated, the answer to that
15 is yes, they were. This was a subject, this was part of the agreement,
16 and it was respected. There was -- there were specific conditions
17 applied. There was a doctor from the Serb army and an UNPROFOR doctor,
18 and the two of them examined the men and determined which ones were in a
19 serious condition such that they had to be medivaced out and I believe
20 ICRC was there, so the answer to the question is yes, those -- those men
21 were evacuated, those soldiers.
22 THE ACCUSED: [Interpretation] Thank you. Please let us look in
23 e-court, document D55 page 29 in Serbian, let's look at that. Thank you.
24 MR. TOLIMIR: [Interpretation]
25 Q. I'll read the relevant paragraph to see what the number of the
1 wounded was really since you couldn't remember it. And I'm quoting:
2 "On the 25th of July, UNPROFOR started the evacuation from Zepa.
3 The French battalion Sector Sarajevo sent a convoy to Zepa for the
4 evacuation of the wounded. On the following morning, the convoy returned
5 to Sarajevo with 151 people, 29 were seriously wounded and immediately
6 treated by the medical staff at the Sarajevo hospital. Around midnight,
7 around 1.000 people were evacuated by the VRS with their own buses and
8 they were take to the confrontation line near Kladanj," and so on and so
9 forth, end of quote.
10 This is my question: Based on this, is it not obvious that the
11 Army of the Republika Srpska fulfilled the terms of the agreement without
12 placing any subsequent conditions that had not been previously included
13 into the agreement? Thank you.
14 JUDGE FLUEGGE: Mr. Tolimir, for the record and for the sake of
15 the witness, it would be helpful if you could indicate from which
16 document you are reading and which document is it we have on the screen.
17 THE ACCUSED: [Interpretation] Thank you, Mr. President. This is
18 Viktor Bezruchenko's report and he was with Mr. Joseph in Zepa. Upon
19 their return, he drew up this report for the purposes of the Prosecution
20 as their witness, so in other words, it's Mr. Bezruchenko's own report;
21 therefore, a gentleman who was -- who went on this mission together with
22 Mr. Joseph. Thank you.
23 THE WITNESS: Shall I answer?
24 JUDGE FLUEGGE: Yes, please.
25 THE WITNESS: Okay. I would answer with three points. I say
1 three so I remember to address all three. The narrow answer to the
2 question put to me is yes. The seriously wounded, as is reported in what
3 General Tolimir has referred to as Mr. Bezruchenko's report, is correct,
4 that the seriously wounded were evacuated. The people, it says "people,"
5 but we are talking about women and children there, were evacuated, and
6 that is true. Because the question was posed to me in the context of my
7 view about what would have happened to the men who were hiding in the
8 hills, I can tell you that the fact that these seriously wounded were
9 evacuated and the fact that the women and the children were evacuated,
10 neither now nor then at all affected my apprehension for the safety of
11 those men and this would be borne out when we discussed the question of
12 the lightly wounded men who my understanding was were not permitted
13 safe -- who were given permission to me to pass but were in fact seized
14 by VRS shortly after they exited Zepa.
15 THE ACCUSED: [Interpretation] Thank you. We will come back to
16 that question later as to why they were kept and subsequently exchanged.
17 Let's leave that for later. Let's look at document D51, please. Thank
19 MR. TOLIMIR: [Interpretation]
20 Q. We have the document before us entitled "Agreement on the
21 disarmament of the Able-bodied Population in the Zepa Enclave." We can
22 see that it was agreed to on the 24th of July, 1995, between Rajko Kusic
23 who was the commander of the VRS Brigade and Hamdija Torlak on the other
24 who was the president of the executive committee of Zepa in the presence
25 of the UNPROFOR representative Semjon Dudnjik. Let's look at item 1
1 which says that a cease-fire should be forthwith established between the
2 warring parties. So my question for you is: Was a cease-fire
3 immediately established in view of your arrival on the 24th when, as you
4 say, you came across those women in the centre? Thank you.
5 A. Two answers to this question. The first is, yes, there appeared
6 to be no firing, and a cease-fire, yes, did appear to be in place in
7 there, yes. And part two to my answer is this agreement was not
8 something that we thought we were implementing. I think there was
9 reference to another document in which I had raised to General Smith the
10 question of the validity of a local civilian conveying a surrender of
11 military forces, and I had raised the question according to laws of war
12 as to whether that had effect.
13 And for example, this paragraph 5 that Commander Palic shall
14 start disarming his units immediately. This is something that this
15 document and such a paragraph, this had absolutely no bearing on what we
16 were doing there. We were there to, yes, an understanding that a
17 cease-fire was in place, but we were there to effect the -- this
18 transport as safely and securely and humanely as we could of initially
19 the civilian population and perhaps in time of the male population as
20 well, whether they be military or civilian. Thank you.
21 JUDGE FLUEGGE: Mr. Thayer.
22 MR. THAYER: Mr. President, just so there's no confusion on the
23 record, and I don't think there will be any dispute from the Defence on
24 this, I think the witness's testimony has been clear and consistent that
25 he arrived for the second time on the 25th of July, not the 24th as
1 General Tolimir may have misspoken in his question. So I just wanted to
2 clarify that for the record, again I don't think there's any dispute but
3 just so we have a clear record.
4 JUDGE FLUEGGE: The witness can help us with this.
5 THE WITNESS: Mr. President, for that I refer to the documents.
6 And I believe the documents do show that Viktor and I returned on the
7 25th. I believe that that's the case. Again, relying with reference to
9 JUDGE FLUEGGE: Thank you very much.
10 Mr. Tolimir, please continue.
11 THE ACCUSED: [Interpretation] Thank you, Mr. President.
12 MR. TOLIMIR: [Interpretation]
13 Q. Please, as soon as you feel that I misstate certain facts in
14 relation to either documents or your knowledge of them, please draw my
15 attention to that, I am not opposed to that at all.
16 Let's look at item of the agreement which reads that:
17 "The civilian and able-bodied population of Zepa shall assemble
18 around the UNPROFOR base in Zepa which will be a sign to the army that
19 the units under the command of Avdo Palic have accepted a truce and will
20 not try to take advantage of it."
21 When you got there, did you see around the UNPROFOR base women,
22 children, and civilians? Thank you.
23 A. Yes, I did.
24 Q. Thank you. Let's look at item 5 that you've just referred to,
25 that Avdo Palic shall commence disarming his units and that all the
1 weapons shall be handed over to the VRS representatives in the UNPROFOR
2 base this Zepa. Was it realistic, the request put forth by the Muslims,
3 that the army should be disarmed, the army under the command of
4 Avdo Palic, and that the weapons be surrendered to the UNPROFOR base?
5 Thank you.
6 A. Perhaps the -- I was not listening to you -- to the accused in
7 Serbian, but I think there might have been a mistake perhaps in the
8 translation. Is -- "was a Serb demand." You said was -- it was
9 translated as "a Muslim demand," but you were asking whether the Serb
10 demand was reasonable. Is that your question, General?
11 Q. Thank you. In order to avoid any confusion, this is an agreement
12 in which both sides agree on several things, among them that Avdo Palic
13 shall commence disarmament of his units, and that all weapons should be
14 handed over to the representatives of the VRS in the UNPROFOR base in
15 Zepa. So is this one of the stipulations of this agreement agreed to by
16 both parties? It certainly wasn't only the view of the Serbian side
17 because if the Muslims didn't agree with that, they could have said it
18 and there would be no agreement then. So you took part in the
19 negotiations and in the signing of this agreement, do you consider that
20 this was a one-sided view or that this was indeed an agreement signed by
21 both parties? Thank you.
22 A. Thank you for restating and clarifying the question. I need to
23 be very, very clear for the Chamber. I was not present for the signing
24 nor was I present and nor did I or Viktor have any role whatsoever in the
25 negotiations for this document. Again, if you can see, it's dated 24
1 July and we returned to Zepa on the 25th. These were presumably, not
2 something I know, but presumably these were discussions, General, that
3 your side had with these -- this civilian leader and I think there were
4 other civilian leaders including the hodza who then went missing.
5 Then -- so we were not witnesses or privy to this document. That's
6 number one.
7 I don't want to speak too fast for the translation.
8 JUDGE FLUEGGE: I think it's fine.
9 THE WITNESS: Okay. Then the other point I want to underscore is
10 that we -- I do not recall us in any respect thinking that we were
11 implementing or assisting in the implementation of this document. It
12 was -- we were there as I said, to as humanely and safely as possible to
13 be in a co-ordinating role for the transport of this population. And as
14 I restated, there was a question even then, General, that General Smith
15 understood and when I conveyed it to him about the validity of this, so
16 that -- that's all being said.
17 Now, if you want my opinion on the Serb position, if you want my
18 opinion on whether it was reasonable to ask for the Muslim side to
19 disarm, in the context, this was a common demand as we know. This had
20 been done in Srebrenica back with General Morillon in 1993 and there
21 was -- this was a frequent and common demand was demilitarisation. So
22 that's as far as I think I need to go on that.
23 THE ACCUSED: [Interpretation] Thank you. Can we now move the
24 page upwards in e-court in both languages so that you could see the
25 signatures in both languages. Thank you. Yes, English as well.
1 MR. TOLIMIR: [Interpretation]
2 Q. There are no signatures in the English version, but you can here
3 see, oh, yes, yes, on the second page you can see the signatures. And
4 you can see that it was signed in the middle by Semjon Dudnjik. Can you
5 tell the Trial Chamber who was Semjon Dudnjik and who was it who he
6 represented during the drafting of this agreement? Thank you.
7 A. General Tolimir, wishing to truly be as helpful and co-operative
8 as I can be, I can't tell you the answer to that question. As I said, I
9 was not present for that, and I honestly and genuinely don't recall him.
10 I do recall meet Mr. Torlak. I have a memory of him. It's possible I
11 met Mr. Dudnjik, but I -- at this time I simply can't answer your
12 question. I apologise.
13 JUDGE FLUEGGE: One moment. One moment, please. Judge Mindua
14 has a question for the witness.
15 JUDGE MINDUA: [Interpretation] Yes, Mr. Registrar, can we please
16 go back to the previous page in English.
17 JUDGE FLUEGGE: And it should be enlarged a bit. Thank you.
18 JUDGE MINDUA: [Interpretation] There we go. Very well.
19 Witness, today in the transcript on page 74, line 21, following a
20 question that was put to you by General Tolimir, you said that it is
21 quite usual that a party requests of another party to give back the --
22 render the weapons, surrender weapons, and this had already happened in
23 1993 while General Morillon was present. If we go back to the document
24 that's on the screen, in the fifth paragraph - and I will translate it in
25 French, but you can read it in English - it says:
1 "Avdo Palic shall start disarming his units immediately and all
2 the weapons should be handed over to the VRS representative in or of the
3 Army of Republika Srpska at the UNPROFOR base in Zepa," end of quote.
4 I would like to ask you the following: When we talk about those
5 weapons, they were supposed to be handed over really to the
6 representatives of the VRS or were they supposed to be handed over to the
7 UNPROFOR? Can you therefore explain to us what was going on exactly with
8 respect to the handing over of the weapons or, rather, by the
9 demilitarisation of the enclave and the handing over of all the weapons
10 of the UNPROFOR -- to the UNPROFOR. Thank you.
11 THE WITNESS: Judge, I understand your question and what I can
12 tell you is my understanding at the time was that there was no agreement
13 on demilitarisation. I will -- [French spoken].
14 [Interpretation] And if you will, I will answer in French if you
15 want me to.
16 JUDGE MINDUA: [Interpretation] That's very good. Thank you very
17 much, yes.
18 THE WITNESS: But the point to emphasise here is that this
19 provision on demilitarisation had no validity as far as the UN was
20 concerned as far as I know. This was an agreement that a civilian
21 representative who had -- civilian representatives who, my understanding
22 is, had no authority to make commitments with respect to weapons had
23 made, and I would presume - I'm going to underscore presume - that they
24 made this agreement under great duress. The person in Zepa who had
25 authority to agree to demilitarisation and surrender of weapons was
1 Colonel Palic, who was the military commander. And he is the one who had
2 the authority to make such a commitment.
3 So -- and these -- I should add, Judge, for the context, you
4 know, the UN was very familiar with agreements on demilitarisation and
5 was not necessarily legally a party but a witness to such agreements and
6 where the UN assumed obligations, it was with very careful awareness and
7 involvement of UNPROFOR military, and that was not the case. This was,
8 as I understand it, this was a document that was negotiated presumably
9 under great duress by these civilian leaders trying to avert the
10 continued bombardment of the town. And again, I can only emphasise to
11 you that this provision about demilitarisation had -- it was not
12 something that we were in the slightest implementing, monitoring, and I
13 recall no discussion among UNPROFOR military either. This had simply
14 no -- was not a -- valid in that sense. It conveyed an intention
15 basically to give up but it was not -- this is not the document under
16 which we were there in Zepa.
17 JUDGE MINDUA: [Interpretation] Thank you very much indeed.
18 JUDGE FLUEGGE: May I draw your attention to the first paragraph
19 of this agreement, the top of this page. You see there:
20 "On the 24th of July, 1995, the following agreement was reached
21 between Rajko Kusic on one side and Hamdija Torlak on the other, in the
22 presence of UNPROFOR representative Semjon Dudnjik."
23 Perhaps that rings a bell.
24 THE WITNESS: Thank you, Mr. President. It does not ring a bell
25 in terms of the -- thank you for pointing that out. It does not ring a
1 bell in terms of that oh, now I remember this individual, I do not, but
2 now what I presume is that this was the Ukrainian senior officer of the
3 Ukrainian battalion, and that he was indeed present there. I can tell
4 you though from my perspective as a UN civil affairs officer, we did not
5 believe that we were there, or simply we did not have copies of this and
6 were carrying out a provision, paragraphs of this. My memory of this is
7 that we did not operate from this document as valid, notwithstanding the
8 fact that there was this Ukrainian officer who was present. As I
9 mentioned, this came up in a subsequent meeting when General Smith who
10 was the overall commander was there as to whether or not this was valid,
11 and I pointed out to General Smith that there's a question as to whether
12 a civilian representative, Mr. Torlak, had authority to surrender weapons
13 on behalf of his military which he did not.
14 But you are quite right, Mr. President, absolutely, to point out
15 that there presumably was an UNPROFOR representative. That being said,
16 at no time do I recall us in any way carrying out, monitoring, accepting
17 weapons or even really that being a matter of discussion.
18 JUDGE FLUEGGE: Have you any information about the authority of
19 Mr. Dudnjik to sign such an agreement not as a part of the negotiations
20 but on behalf of UNPROFOR to state his presence during this assignment?
21 THE WITNESS: Completely valid question and I -- I simply do not
22 know whether he had sought and obtained authorisation to witness this and
23 to be a part of this. I don't know that and I'm sure if General Smith
24 comes and testifies, he can attest to that. But this was not the
25 document that we felt we were there to do, and again I don't recall any
1 discussion and there would have been, and there of would have been.
2 General Smith, I had spoke to him, he had personally originally directed
3 us to go there, and we would have been made aware, as would the French
4 military when they arrived that, oh, there would have been modalities set
5 up for collecting these weapons and centralising them and those
6 discussions. It was simply not an issue. We were focussed on this
7 population transport.
8 JUDGE FLUEGGE: Thank you very much. The next question by Judge
10 JUDGE NYAMBE: Is it your position then that you don't recognise
11 the validity of this agreement then or now?
12 THE WITNESS: Judge, speaking about events that took place 16
13 years ago, I do not recall that we, Viktor Bezruchenko and I, the civil
14 affairs officers who were there to co-ordinate the evacuation, I do not
15 recall that we operated from the basis of this document at all. And it
16 would be very unusual for us to go into such a situation where there were
17 a document that was presumably what was to be implemented and then sort
18 of disregard it and not pay attention to it. To the contrary, any
19 time -- we took very seriously any agreements and documents, and I do not
20 recall that we at all referred to such a document. We were there, we
21 understood that there had been an agreement for the women and children to
22 be evacuated. That's what we understood. And that there was a question
23 about what would happen to the men was -- was up in the air, and with
24 respect to their arms, I simply don't recall any reference to this
25 whatsoever, Judge. I hope I've answered your question, Judge.
1 JUDGE NYAMBE: Thank you.
2 JUDGE FLUEGGE: After this round of questions by the Judges, we
3 have reached the time-limit of today. It is 7.00, we have to adjourn,
4 and we ask you for your patience, you have to come back tomorrow in the
5 afternoon. We are sitting in Courtroom III again at 2.15. Thank you
6 very much. We adjourn.
7 --- Whereupon the hearing adjourned at 6.59 p.m.
8 to be reconvened on Tuesday, the 1st day of March,
9 2011, at 2.15 p.m.