1 Wednesday, 7 March 2007

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

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

6 JUDGE ROBINSON: Let the witness make the declaration.

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

8 whole truth, and nothing but the truth.

9 WITNESS: RUPERT SMITH.

10 JUDGE ROBINSON: You may sit and you may begin, Mr. Whiting.

11 MR. WHITING: Thank you, Your Honour.

12 Examination by Mr. Whiting:

13 Q. Good morning, General.

14 A. Good morning.

15 Q. Could you please state your name for the record?

16 A. Yes. My name is Rupert Smith.

17 Q. With the --

18 THE INTERPRETER: May the speakers please observe a pause between

19 the questions an answers for the interpreters.

20 JUDGE ROBINSON: Did you both hear that? When you speak the same

21 language there is that tendency, so, please, in the interest the

22 interpretation observe the pause.

23 MR. WHITING: We will. Thank you, Your Honour.

24 With the assistance of the usher, I'd like to show the witness his

25 statement, and I'm also going to send a binder of exhibits along with it.

1 Your Honours should have before you a copy of the statement as

2 well as the binder of the exhibits. The Defence has it as well, and so

3 does the legal officer. To save time, we're going to do this the old

4 physician fashioned way, Your Honours, with the binder.

5 JUDGE ROBINSON: At times, it's more efficient.

6 MR. WHITING: It is, but it is a one time treat.

7 Q. General, could you look at your statement, is this your statement

8 and is it true and accurate?

9 A. Yes. I recognise this as the statement I made, and it is an

10 accurate description of what I said at the time.

11 Q. And if you were to testify today and the questions put -- were put

12 you that relate to the topics in your statement, would you give the same

13 answers as reflected in your statement?

14 A. Yes, I would.

15 MR. WHITING: Your Honour, could this statement be admitted into

16 evidence. It's 65 ter 3027.

17 JUDGE ROBINSON: We admit it.

18 THE REGISTRAR: As Exhibit P334, Your Honours.

19 MR. WHITING:

20 Q. General, in paragraph 3, you state that on the 23rd of January,

21 1995, you took command of UNPROFOR in Bosnia-Herzegovina. Where was your

22 headquarters located?

23 A. The headquarters was in Sarajevo in a building called the

24 Residency.

25 Q. Could you describe for the Trial Chamber what kind of reporting

1 you received in your position as the commander of UNPROFOR in Bosnia and

2 Herzegovina?

3 A. The formal reporting occurred with the support of my immediate

4 staff in the headquarters. I should point out that the headquarters

5 wasn't purely military. There was a political element within it;

6 Political Affairs of the United Nations Department. The -- I was briefed

7 every morning, I recall, at about 9.00 every morning. At this briefing,

8 the events of the previous 24 hours were gone through, and everybody who

9 was interested, as it were, was there around the table. It wasn't only my

10 immediate staff, but there were people from UNHCR, ICRC, and other

11 agencies present in Sarajevo at the time. Various decisions and so forth

12 might be taken as a result of that briefing.

13 There was a second formal event that occurred every day at about,

14 again, my memory was it was about 5.00 in the afternoon, when a rather

15 smaller gathering, essentially the headquarters rather than anybody from

16 outside. We went through the events of the day so far, and I took -- I

17 got briefings on matters that had arisen in the previous briefing in the

18 morning or other more long-term inquires. And various decisions I might

19 have had to make would be briefed to me at that particular time; and then

20 over and above that, there was -- if it was urgent or something else,

21 people would communicate with me straight away.

22 In addition, I visited my sector headquarters as frequently as I

23 could; and being in Sarajevo, the one that I visited the most would be

24 Sector Sarajevo. So I saw a great deal of them.

25 I was also in contact with the Federation and Bosnian governments

1 and their officials, sometimes at a presidential level that. That gave me

2 a source of information and reporting about what was going on, and, again,

3 I heard from the Serb side when visiting Pale or through their liaison

4 officer at Lukavica, so I get information from their point of view.

5 And, lastly, there was a large journalistic gathering in which

6 there was an interchange of information and so forth at that -- as that

7 source.

8 Q. You said that you received information from the Serb liaison from

9 Lukavica. Do you recall that person's name?

10 A. Yes. It -- Colonel Indic was the liaison officer. I think he was

11 a colonel. He may have been a major but I can't -- let's call him a

12 colonel.

13 Q. Were you able to assess Colonel or Major Indic's relationship to

14 General Mladic?

15 A. My understanding is that he was General Mladic's liaison officer,

16 a direct link to Mladic, and that's how he was dealt with. That is what

17 he was there for, and how we worked with him.

18 Q. Now, you've told us how you received information. I want to ask

19 you a couple of questions about what kinds of information you received and

20 focussing in particular on the warring parties in and around Sarajevo.

21 Was it important to you in your position to receive information

22 about and to assess the nature of -- the command and control of the two

23 parties; that is, the Federation party or the Bosnian Muslim side and the

24 Bosnian Serb side?

25 A. Yes. I had to understand how they were organised and operating,

1 partly so I knew who to talk to, and partly so I could interpret what was

2 happening in front of me.

3 Q. Was it important for to you receive information about and to

4 assess the strategy of the two factions in -- in and around Sarajevo?

5 A. Indeed. Again, the reason for that is simply to be able to

6 understand and, in this case, to be rather more predictive about what your

7 looking at or what you anticipate would occur.

8 Q. Now in paragraph 16 of your statement, you stake about

9 Mr. Karadzic and his political authority over the Bosnian Serbs. And in

10 paragraph 21, you talk about General Mladic and his command over the

11 Bosnian Serb army. I want to ask you a couple of questions about General

12 Mladic.

13 From your information and your observations, did General Mladic's

14 command reach down to the level of the Bosnian Serb army around Sarajevo?

15 A. Yes. He was the overall commander, and he was evidently in

16 command. He -- and his -- his influence could be felt at a very low

17 level.

18 Q. Are you able to give any specific examples briefly of that? How

19 were you able to draw that conclusion?

20 A. This one isn't specific, just the general atmosphere with

21 something. He said something was going to happen, it did. If you asked

22 that something should stop happening and he said it would stop, it

23 stopped. And a specific example isn't sanity around Sarajevo; but on one

24 occasion driving towards Srebrenica, my vehicles got lost and we finished

25 up in a very -- in a fairly -- a company position somewhere to the north

1 of, I think, Velasnica [phoen]. It took one telephone call by my liaison

2 officer to -- directly to Mladic to have us released. It was that -- he

3 was able to be reached on that basis that quickly.

4 JUDGE ROBINSON: Mr. Whiting, unless you're going to relate this

5 ultimately to the general who is on trial, I don't immediately see its

6 relevance.

7 MR. WHITING: Your Honour, the argument we're going to make is

8 that if the command - and I'm about to elicit information about this - but

9 the command is running from Mladic down to the ground in Sarajevo, the

10 general is in that chain of command and so we --

11 JUDGE ROBINSON: General Milosevic is that that chain of command.

12 MR. WHITING: Yes.

13 JUDGE ROBINSON: Very well.

14 MR. WHITING:

15 Q. General Smith, the story that you just recounted is that in

16 paragraph 31 of your statement? Is that --

17 A. Yes, that is correct.

18 Q. When you had discussions with General Mladic, did he have a

19 familiarity or not with events that were occurring in Sarajevo?

20 A. He always knew what he was talking about, yes. So if it was an

21 incident that was occurring about Srebrenica or he was raising it, he was

22 certainly aware of the incident.

23 Q. I'm sorry, you said Srebrenica.

24 A. I beg your pardon. In Sarajevo.

25 Q. Can you just briefly --

1 JUDGE ROBINSON: General, didn't you earlier say that you didn't

2 have an example of General Mladic's influence in relation to Sarajevo.

3 THE WITNESS: I couldn't think of one immediately. The one that

4 came to mind was this telephone when we were lost and arrested by this

5 company position.

6 I dare say if we go through all these paragraphs, I could find you

7 one.

8 Oh, I could give you one. There was an incident, if I recall, in

9 March, when a -- two young girls on the Serb side were killed by sniper

10 fire from the Bosnian side, and this -- I was -- it was a source of much

11 discussion between General Mladic and me. And he knew the details of the

12 case extremely well. Or the occasion when one of my soldiers was killed,

13 a French soldier, by a sniper from the Serb side. Again, he was aware of

14 the incident, knew the facts, and so forth.

15 JUDGE ROBINSON: Yes, Mr. Whiting.

16 MR. WHITING: Thank you, Your Honour.

17 Q. Can you briefly describe the manner in which General Mladic

18 exercised his command? What was his style?

19 A. In short, he gave orders rather than missions. Now, to explain

20 that a little, if you would like me to?

21 Q. Briefly.

22 A. The -- in broad terms, there's two ways of running an organisation

23 like an army. You can decentralize the decision, in which case you --

24 give missions, which I define as telling someone the result you want to

25 achieved. For example, get my brigade over that river by lunchtime

1 tomorrow. And you're not telling him whether he is to build a bridge or

2 raft it across or capture a bridge or find a fort or whatever. You are

3 leaving the manner of the doing entirely the individual on the ground on

4 the spot.

5 If, on the other hand, you centralise decisions, then you tend to

6 give orders, which are much more specific, much more restraining, and then

7 you would be-- you would give -- you would express -- take my example of

8 crossing a river. Build me a bridge at X, Y, Z by such and such a time,

9 and so on and so forth; and then you have to give someone else orders

10 about what route management down to it. And someone else orders about who

11 did traffic control and who did car parking and all the other things. All

12 of which would be expected to be part of the other man's mission and him

13 to work out how did he that.

14 For very good reasons, Mladic ran his army on a centralised

15 orders-based system. Is that enough of a --

16 Q. It is. Thank you.

17 Based on the information that you received and your observations

18 and your dealings with General Mladic and others, including Major Indic,

19 were you able to determine whether General Mladic respected the chain of

20 command in the Bosnian Serb army?

21 A. Oh, yes. He respected it in the sense that he used it in the way

22 that I described. People beneath him were responsible for achieving the

23 orders that he had given them and so forth, yes.

24 Q. Would he tolerate any breakdown in the chain of command?

25 A. Not that I observed, no.

1 Q. Could you look, please, at the first tab. It's 65 ter 2209. It's

2 an order dated the 23rd of January, 1995, from General Mladic.?

3 JUDGE ROBINSON: Could we go back to the answer that the General

4 gave to your question as to whether he would tolerate any breakdown in the

5 chain of command, and you said, General, "not that I observed." Does that

6 mean that you are not really able to answer that question, definitively.

7 THE WITNESS: I wasn't in his army, so -- nor was I in his

8 headquarters, so I wasn't able to see everything. What I observed is that

9 he ran a tight ship, if I could use that phrase, and he was not a man that

10 appeared to me to tolerate anyone not doing what he wanted them to do.

11 JUDGE ROBINSON: Do you have any -- any example of that of where

12 there might have been a breach in the command and he set it right?

13 THE WITNESS: [Interpretation] I would put it the other way around.

14 I saw no evidence that he wasn't expecting everyone to do what there

15 were told as he told it.

16 JUDGE ROBINSON: You can put it no higher than that.

17 THE WITNESS: No, no.

18 JUDGE MINDUA: [Interpretation] Well, General Smith, please, I

19 fully understood what you said about the command system of General Mladic,

20 based on very specific orders and not on assigning a mission, which means

21 that he could not tolerate any breach in the orders that had been given.

22 In such a system, in such a command system, how much autonomy do

23 inferiors have? People that are below the commander give -- get specific

24 orders that they have to carry out, and they don't get missions. But if

25 they don't obey the orders, according what you said, it seems like there

1 is sanctions.

2 So in General Mladic's system, the lower echelons, did they have

3 any room for manoeuvre or not?

4 THE WITNESS: [Interpretation] As I understood and observed what I

5 was looking at, and the -- I gave you the two extremes of the theoretical

6 model, the orders based and the mission based. Of course, no system, no

7 army fits precisely one or other extreme. It's -- things vary between

8 those, and they vary not -- not only completely within the army as a

9 whole, but at different levels in the army. And it often a reflection of

10 the trust and confidence that the superior has in the subordinate.

11 The way General Mladic was working, as I observed it, was that he

12 was -- he would give his orders. He was able to, and this is part of his

13 organization and system, create a forward headquarters from his main

14 headquarters, and put an assistant commander or one of his senior staff

15 officers forward to act in his name. And this allowed variations on the

16 given order as events occurred, because he had his own man with the

17 communications forward alongside the particular problem. And he did this

18 quite a lot, particularly when he was engaged on some matter to the east

19 of Republika Srpska, and there was a problem in the west, or vice versa.

20 The degree of autonomy given in the order to carry out the order

21 can be considerable. For -- let's go back to my building the bridge.

22 That -- that engineer told to build the bridge would have complete freedom

23 of action in the building of the bridge. But he would be expected to have

24 built a bridge even if, actually, he had gone three miles down the river

25 he could have found a ford, because his orders were to build a bridge.

1 Have I explained enough the amount of the flexibility he has

2 within that order?

3 JUDGE MINDUA: [Interpretation] Thank you.

4 MR. WHITING:

5 Q. General, during your attention to the first document, 2209, is

6 this order consistent or not consistent with the style of command that you

7 have been explaining to the Trial Chamber?

8 A. Yes, it is. It's -- it's really very detailed for something going

9 down from an army headquarters to a corps headquarters, specifying the

10 nature of the reports and so forth.

11 MR. WHITING: Could this document be admitted into evidence, Your

12 Honours.

13 JUDGE ROBINSON: Yes.

14 THE REGISTRAR: As Exhibit P335, Your Honours.

15 MR. WHITING:

16 Q. Could you look at the next exhibit, please, 65 ter 89, and turn

17 specifically to the second page of the English. This is an order dated

18 the 8th of March, 1995, from Mr. Karadzic. Is -- General, is this

19 consistent with the authority and command of Mr. Karadzic that you

20 describe in your statement?

21 A. Yes. Here is the political direction, if you like, emanating from

22 the Supreme command and, again, going into considerable detail and being

23 passed down, I see from the cover letter, directly to the corps from the

24 army headquarters. I think that's correct. Yes.

25 MR. WHITING: Could this be admitted into evidence, Your Honours.

1 JUDGE ROBINSON: I'm just checking. The first one was an order by

2 whom? Mladic.

3 MR. WHITING: Yes. And this is now an order by Mr. Karadzic, and

4 he speaks about Mr. Karadzic in his statement and his political authority

5 and his authority over --

6 JUDGE ROBINSON: Well, the command system that he described would

7 have related to --

8 MR. WHITING: Mr. Mladic. And that is in -- the next exhibit will

9 tie this into that, because Mr. Karadzic was of course the political

10 leader.

11 JUDGE ROBINSON: The political leader.

12 MR. WHITING: Above -- I mean, he is the political leader giving

13 commands down to Mr. Mladic, which then get translated down, and we will

14 see an example of that.

15 JUDGE ROBINSON: Yes, we admit it.

16 THE REGISTRAR: As Exhibit P336, Your Honours.

17 MR. WHITING:

18 Q. Could you look at the next document, which is P -- I'm sorry, 65

19 ter 2267. The previous order from Mr. Karadzic was 8th of March, 1995.

20 This is now an order from Mr. Mladic, General Mladic, on the 31st of

21 March, 1995, entitled, "Directive for further operations, operative number

22 7/1." General, is this consistent with what you describe in terms of the

23 relationship between Mr. Karadzic and Mr. Mladic and Mr. Mladic's command?

24 A. Yes. I am just checking. It's a direct follow on, I think, from

25 the previous one. He picks up the directive from the Supreme Command, and

1 it's now being regurgitated in greater detail yet by the Main Staff of the

2 army headquarters under Mladic's name. And the orders are going out to

3 the corps commanders.

4 JUDGE ROBINSON: But, Mr. Whiting, you speak of the consistency

5 between this command and the description given by the General of the

6 relationship between Karadzic and Mladic. Has he given such a

7 description?

8 MR. WHITING: Your Honour, it's in his statement. I made

9 reference to it in his statement. In paragraph 16, he talks about

10 Mr. Karadzic; and in paragraph 21, he talks about Mr. Mladic.

11 JUDGE ROBINSON: You're referring to paragraph 16 and 21.

12 MR. WHITING: Yes. I did refer to those earlier.

13 And in paragraph 16, in the middle of the paragraph, he says, "In

14 all my dealings with Karadzic and the Bosnian Serb leadership, it was

15 clear that Karadzic without doubt the leader of the Bosnian Serbs."

16 JUDGE ROBINSON: Let him explain it. The evidence coming from him

17 should be as self-contained as possible, as it is consistent with the

18 economy that we wish to achieve.

19 MR. WHITING: I'm always trying to strike the balance and not try

20 to repeat too much. It is in the statement, but I am happy to have him

21 the General explain briefly.

22 Q. General, how do you understood the relationship to be between

23 Mr. Karadzic and Mr. Mladic.

24 A. In, brief, Karadzic was the political, and evidently the

25 political, leader of the Bosnian Serbs, and Mladic was the army commander.

1 And they -- the distinction between the two was maintained in their -- in

2 what they did and how they approached me and issues we dealt with. As the

3 events of the year 1995, which is when I was there, went on and the

4 pressure came on, the -- Mladic continued to maintain that he was the

5 military commander.

6 In practice at the level you're operating at, your military acts

7 are directly political and to some extent vice versa if you're in the

8 Karadzic position. So there is not as much -- as you might claim, there a

9 is a clear line, in reality it's a fairly fuzzy line. But Mladic always

10 held himself on to that military side as much as he possibly could.

11 MR. WHITING: Your Honours, could this document be admitted into

12 evidence, please.

13 JUDGE ROBINSON: Yes, we admit it.

14 THE REGISTRAR: As Exhibit P337, Your Honours.

15 MR. WHITING: Thank you.

16 Q. General, I want to ask you about the strategy of the two sides.

17 By March of 1995, did you have a view about the attitude of the two

18 factions towards the Cessation of Hostilities Agreement, which I will

19 refer to as COHA.

20 A. Yes. And I don't know the paragraphs in this statement, but

21 perhaps you could help me, but I cover it there.

22 But in brief, I came -- I formed what I called a thesis as a basis

23 on which to understand and interpret events that was before me. The

24 essence of it was that neither side wanted peace at this point; this is

25 March 1995. Evidently the COHA was breaking down in front of me.

1 The Federation and the Bosnian government had been compressed into

2 a relatively small area and had a -- had man power, as it were surplus and

3 were in a position to attack. Their problem was a shortage of munitions

4 and weapons. They also had the belief that they had the moral position

5 and support, potential support, of the international community. So they

6 were interested in breaking the siege of Sarajevo and advancing their

7 position, as it were, by force of arms.

8 The Bosnian Serbs had taken so much territory and had so few

9 people in comparison that they were not in a position to expand their

10 territory and hold it, and they were, as it were, at a limit. And the --

11 they had -- one of their biggest problems were the eastern enclaves;

12 Srebrenica, Zepa, and Gorazde. From their point of view, these enclaves

13 lay in their rear. And the Bosnians could operate out of them and were,

14 and this required a proportion of manpower that they could ill afford to

15 guard these enclaves, to secure these enclaves.

16 So it was going to be it in their interest, I deduced, to do what

17 I call squeezing the enclaves, which included squeezing the UN forces, so

18 as to make them the very least problem and requiring the very least amount

19 of guarding. And, indeed, this was already happening to us.

20 They --

21 MR. WHITING: General, I'm just going to interrupt for a moment.

22 When you say "squeezing the enclaves," does that include Sarajevo or are

23 you only talking --

24 A. I'm coming to Sarajevo.

25 JUDGE ROBINSON: Just a minute, please, Mr. Whiting.

1 [Trial Chamber confers]

2 JUDGE ROBINSON: Mr. Whiting, the witness is giving evidence under

3 the abbreviated procedure, 92 ter. I should say that the Trial Chamber

4 did consider whether it was the best way to receive his evidence, because

5 it is important evidence to understand command responsibility. We,

6 nonetheless, decided to accede to your application, but I see now that it

7 may not be entirely appropriate to receive his evidence in this

8 abbreviated way.

9 And my instruction to you is, not withstanding 92 ter, you should

10 feel free to adduce from the witness as much evidence as is needed to make

11 it intelligible, understandable by the Chamber in the interest of the

12 fairness of the trial.

13 Do you understand? So you can take a little more time than I had

14 given you.

15 MR. WHITING: Thank you, Your Honour. I was hoping to finish the

16 General's testimony today, because the General was hoping to be completed

17 with this testimony today. I don't know what his ability is to be here

18 tomorrow, and so we're trying to get it completed today. His statement is

19 extremely detailed and so to kind of go over it again would take --

20 JUDGE ROBINSON: No. You don't have to go over it again, but I

21 just say extract from him as much evidence as is needed to make our

22 understanding of the command responsibility situation as complete as

23 possible.

24 MR. WHITING: Yes, okay. I'll take that in mind. If I'm -- if,

25 of course, it's not intelligible, I would invite, of course, not that I

1 need to, but questions from Your Honours to clarify matters. But, thank

2 you, Your Honour.

3 Q. Now, General, you were about to get to Sarajevo.

4 A. Sarajevo itself was an enclave, and I'm treating it separately

5 because of its significant. In my thesis, I understood it to be the

6 capital. It is the centre of attention of the international community,

7 and the -- and the -- my expectation of -- and understanding of the

8 Bosnian Serb strategy was to put the greatest possible pressure on

9 Sarajevo and to have maintain the siege as tightly as they could.

10 As a result, I expected them to try and close what was called the

11 Igman trail, which was the one route that the Bosnian Serb army still had

12 to get supplies and people into and out of Sarajevo through the tunnel

13 that was under the airport.

14 Equally I expected the Bosnian government to seek to hold Sarajevo

15 very tightly and to try and lift the siege as quickly as they could. I

16 haven't discussed the western -- north western enclave of Bihac, which was

17 a rather separate set of circumstances.

18 Q. We'll leave that for now.

19 As the -- was there any relationship between the COHA breaking

20 down on the one hand, and the siege of Sarajevo on the on the other hand?

21 A. As the COHA broke down and the breaking down was initiated by the

22 Bosnian side, the siege of -- of Sarajevo became tighter and tighter.

23 Q. Did the Bosnian Serb army use shelling and sniping of Sarajevo in

24 any way?

25 A. Yes, both.

1 Q. And was there shelling and sniping of civilian areas, civilian

2 targets?

3 A. Yes, both.

4 JUDGE ROBINSON: When you say "both," you mean?

5 THE WITNESS: Shelling and sniping in civilian areas and of

6 civilian targets.

7 MR. WHITING:

8 Q. Were you able to assess the strategy of the Bosnian Serb army

9 using shelling and sniping of civilian areas in Sarajevo?

10 A. With the exception of countering a specific attack or something

11 like that, the -- my understanding was that the use of these weapons were

12 essentially to terrorise, to wear down the resolve of the defender, to

13 hold the presence of the Serb pressure evidently in the minds of people on

14 a daily basis.

15 Q. Was it effective?

16 A. Yes, it was. The -- it most certainly was and particularly on the

17 ordinary run of life within the city.

18 Q. Did it have any effect on the international community that was

19 located in Sarajevo?

20 A. Yes. It considerably constrained, or rather, restrained our

21 activities, and, as I've said, there were occasions when there was a

22 direct effect; like we had a soldier killed or something like that.

23 Q. I want to ask you about some specific paragraphs in your

24 statement.

25 If we could look at paragraph 29 on page 7?

1 A. Yes.

2 Q. And you're describing a meeting that you had with General Mladic

3 on the 5th of March, and in paragraph 29 you said: "He threatened a

4 complete blockade of all enclaves including Sarajevo if sanctions were not

5 lifted." Did you take that threat seriously?

6 A. In that he could have done that, yes.

7 Q. Could you look --

8 A. I'm just trying to look at -- this is when I'm at Jahorina. Yes.

9 I did take it seriously. Again, at this point, I'm forming that thesis

10 that I discussed earlier.

11 Q. And just to make sure I understand your answer, in your view, he

12 had the ability to do that, to do what he threatened, with respect to

13 Sarajevo?

14 A. Yes, demonstrably.

15 Q. Could you look at the next document, please, which is 65 ter 8.

16 It's a --

17 A. Yes.

18 Q. -- memorandum dated the 6th of March, 1995. It's about the

19 meeting that you describe in your statement on the 5th of March, 1995.

20 Have you had an opportunity to review this document?

21 A. Yes. Yes.

22 Q. Is it an accurate account of your meeting with General Mladic on

23 that date?

24 A. Yes, it is.

25 MR. WHITING: Could this be admitted into evidence, Your Honours.

1 [Trial Chamber confers]

2 JUDGE ROBINSON: Is there anything of significance in the meeting

3 that we should hear.

4 MR. WHITING: Your Honour, we just covered a point that it was

5 raised in the meeting, that General Mladic threatened a complete blockade

6 of all of the enclaves. This meeting is described in detail in his

7 statement, and this is a contemporaneous document which describes it. And

8 on page 2 of the document, point 4, the end of the paragraph is where it

9 says -- it says that he threatened a complete blockade of the enclaves.

10 JUDGE ROBINSON: Right. Yes, I see that. Yes, we'll admit it.

11 THE REGISTRAR: As Exhibit P338, Your Honours.

12 MR. WHITING: Thank you.

13 Q. In paragraph 38 of your statement, you describe being on the 12th

14 of March arriving into Sarajevo by aeroplane and being hit by heavy

15 machine-gun fire, and subsequent investigations proved beyond a reasonable

16 doubt that the source of the fire was Bosnian Serb positions. Do you

17 recall how that conclusion was reached?

18 A. I don't think there was any great difficulty, and I think, my

19 memory is that -- it was acknowledged by the Bosnian Serbs that it was

20 them who fired it. The Muslim side did not have that calibre of weapon.

21 The firing came from a particular position on a small hill that overlooked

22 the -- over the -- the Bosnian Serb position, overlooked the runway. And

23 my -- what I recall that Mladic and co., when faces with this, acknowledge

24 this it had been their people who had fired at the run.

25 Q. Could you look at paragraph 44 of your statement, please. And

1 here you describe a meeting that you had with Dr. Karadzic on the 5th of

2 April, 1995 in Pale. Do you recall this meeting and could you briefly

3 tell us the significance of this meeting?

4 A. As I recall the meeting, we'd -- Mladic and I were not talking at

5 this stage. I'm trying to remember why, and I can't immediately. It's

6 probably in -- in one of these paragraphs here. But we certainly weren't

7 talking to each other, and so I contacted Dr. Karadzic and we arranged to

8 meet.

9 My reasoning for wanting to do this was this steadily

10 deteriorating situation as the COHA was breaking down, and in particular,

11 my inability, because I wasn't being permitted to travel, to get -- or my

12 convoys to travel, to get humanitarian supplies into those eastern

13 enclaves that I discussed earlier.

14 Q. Could you look at the next document, please. It's --

15 A. In the binder.

16 Q. In the binder. It's 65 ter number 9.

17 A. Oh, yeah.

18 Q. Add it's a document dated the 5th of April, 1995, and it purports

19 to set forth what happened at the meeting on that day. Have you reviewed

20 this document and is it an accurate account?

21 A. Yes. It is, yes.

22 MR. WHITING: Could this be admitted into evidence, Your Honours.

23 JUDGE ROBINSON: Yes.

24 THE REGISTRAR: As Exhibit P339, Your Honours.

25 MR. WHITING:

1 Q. General, please look at paragraph 49 of the statement. In this

2 paragraph, you're talking about the week following your meeting with

3 Dr. Karadzic on the 5th of May, so it's earlier -- I mean on the 5th of

4 April. So it is early in April 1995, and you said: "The following week,

5 the Bosnian Serb army closed Sarajevo airport to all but UNPROFOR military

6 flights."

7 I have a two-part question. What effect did that have on

8 Sarajevo, and did it serve a military purpose?

9 A. A military purpose for the Bosnian Serb, you mean?

10 Q. Yes.

11 A. It stopped the flow of humanitarian aid into the -- into Sarajevo,

12 and its military purpose can only be supposed that, therefore, it weakened

13 Sarajevo as a city under siege?

14 Q. To your knowledge, were there any weapons going through -- or

15 weapons or military supplies going through the airport at that time?

16 A. No. None whatsoever.

17 Q. So was the sole effect of closing the airport to stop humanitarian

18 aid?

19 A. I can't say it was the absolute sole effect, but it certainly was

20 a very, very large part of the effect. There would be over things that

21 came might have in, personnel and so forth, that could no longer --

22 JUDGE ROBINSON: Mr. Whiting, have you a tendency to tell the

23 witness what he is to say: Was the sole effect to stop humanitarian aid?

24 Well, I think --

25 MR. WHITING: It was a follow-on from his previous answer, Your

1 Honour, where he said that was the effect. I just wanted to know if there

2 was any other effect.

3 JUDGE ROBINSON: Yes. But please try to elicit the evidence from

4 the witness.

5 MR. WHITING: Thank you, Your Honour.

6 If we could look at paragraph 50, you describe an incident on the

7 21st of April when members of the contact group were effectively detained

8 by the Bosnian Serbs at the airport and denied access. Did this serve any

9 military purpose for the Bosnian Serb army.

10 A. No.

11 Q. In paragraph 54, you describe how in early May the situation there

12 Bosnia and around Sarajevo deteriorated, and you give specific examples of

13 things that occurred on the 7th of May and the 7th and 8th of May.

14 Then looking at paragraph 60, referring to a little bit later in

15 May, you describe shelling occurring on a regular basis. And my question

16 is this: At this time by April, May 1995, was there a change in the level

17 of shelling and snipping that was occurring?

18 A. During May, it increased in frequency. The number of attacks

19 increased in frequency and in -- and also in the volume of fire.

20 Q. And is that -- was that true both of shelling and sniping, or are

21 you only referring to shelling?

22 A. Certainly the shelling, and I'm less confident that the sniping

23 was increasing as much as the shelling.

24 Q. And did that -- that increase continue or stop after May?

25 A. Well, we -- you have an incident which -- when -- because these

1 weapons -- what's happening is not only has the COHA had broke down now,

2 but previous things that preceded -- or arrangements that the preceded the

3 Cessation of Hostilities Agreement, which was the weapon collection points

4 which were associated with the exclusion zones, had been something that

5 had happened in the previous year, 1994. Those were breaking down as

6 well, and what was happening is that the weapons in the collection points

7 were beginning to be used and were being operated from the collection

8 points in some cases.

9 And this -- now, directly, this wasn't just a question of the UN

10 forces standing between the Bosnian Serbs and the Bosnians, it was a

11 question of now something that the UN was directly associated with; the

12 exclusion zones and it's weapon collection points. This arrangement was

13 starting to break down as well. And that had -- had grown up all through

14 May. Towards the end of May - to look at the dates, I think I'm in

15 paragraph 61 now, yes - it reaches a point where I had given an

16 ultimatum.

17 On the 25th of May, NATO is then called in to attack some targets,

18 to try to re-establish the situation around these collection points and

19 exclusion zones.

20 Q. We will talk about that in a moment. If we could come back it my

21 question, which is: After May, in June, July, August, did the increased

22 levels of shelling and sniping continue or did it change?

23 A. No. I'm sorry, I misunderstood. After May, and those incidents

24 I've just started to describe, matters calmed down again in-- in June in

25 Sarajevo.

1 Q. And did they every flare up again?

2 A. Yes. On and off, there were various incidents and so forth. But

3 you get the -- if we go right into July and August, it -- you finish up

4 with it flaring up again towards the end of August.

5 Q. Were you able to assess whether control was being exercised, yes

6 or no, by the Bosnian Serb army over this shelling and sniping of civilian

7 areas; and if so, at what level was this control being exercised?

8 A. It was being -- yes, it was being controlled.

9 Q. And were you able to assess at what level it was being controlled,

10 in your judgement, based on your observations?

11 A. The control of the artillery fire is -- is conducted normally, and

12 that is how I understood it around Sarajevo, at the level of the commander

13 of the whole -- at the highest practical point. Therefore, I expected it

14 to be controlled at Sarajevo corps level of the artillery fire.

15 The sniping is not controlled in that way. That would be much

16 lower down the hierarchy of command.

17 JUDGE ROBINSON: And what is the reason for that distinction?

18 THE WITNESS: It's simply the range of the weapons is the driver.

19 You can fire an artillery weapon on an 360-degree arc all the way out to

20 its range. So -- let's suppose the range is 15 kilometres, then the --

21 this weapon -- I think my microphone is gone, perhaps not.

22 This weapon can reach out to a circle of radius 15 kilometres. It

23 tends to be commanded at that sort of level, because this weapon can be

24 brought to bear to influence events across the whole of that area. A

25 sniper is using a rifle range 4 to 600 metres in practical terms, and this

1 would be controlled at a much lower level.

2 JUDGE ROBINSON: Apply the same kind of analysis to the shelling.

3 THE WITNESS: The shell is, as I said, an artillery weapon. I

4 would have to go and check the weapons in that range. But in round terms,

5 a radius of 15 kilometres the sort of radius that they can affect.

6 JUDGE ROBINSON: And so that would be commanded at --

7 THE WITNESS: In this case, I would except to see it controlled at

8 the corps level, because that was the level of demand was associated with

9 the siege of Sarajevo.

10 Let me try and explain. When I say this, I'm -- if you have got

11 that weapon there, you -- you've allocated it to a target. You've given

12 the commander of that artillery a mission, a task, an order, which --

13 however you're doing that command. And if you go back to my mission

14 arrangement, you, as a corps commander holding all your artillery

15 together, because that covered the whole radius of your interest, you may

16 still -- you would give an order perhaps, "You are to destroy anything

17 crossing that river," or you might give him a mission, "You are to block

18 any enemy movement across that river." And let him get on with and work

19 out how he is going to do that, but you would still be directing that

20 fire. Because you could then take it away and give it to support some

21 other activity because that weapon could reach all the way across your

22 geographic span of command.

23 Does that help you?

24 JUDGE ROBINSON: No entirely.

25 MR. WHITING: If I could -- oh.

1 JUDGE MINDUA: [Interpretation] General, in terms of hierarchy in

2 the army, indeed, we have platoons, we have company, battalions, divisions

3 and such. You said that in terms of sniping, it's at the lowest rank or

4 level was for weaponry artillery that is at the higher level because the

5 range is greater.

6 In your experience in Sarajevo, at which level could decisions be

7 made when it came to sniping operations? Was it at the level of a platoon

8 or of a company? You know, I was talking about the autonomy earlier on.

9 At which level could the decisions be made as to shelling of civilian

10 locations? Was it also at the levels -- at a level of battalions or

11 platoons or divisions? What is your explanation for all of this?

12 THE WITNESS: I will answer the question, or try to, first of all,

13 theatrically and then try to apply it to the circumstances.

14 The same logic that says that your artillery weapons are held at

15 the highest level in terms of command, because that covers the range of

16 this man's responsibilities, so you can follow that down to the sniper.

17 Now, as a general rule, sniper operations are controlled at around

18 battalion level. It's a specialist skill, and you -- and the weapon is --

19 it broadly of that range -- fits that range, scale, to the hierarchy.

20 But I'm -- I was trying to explain about the -- how would you use

21 the weapon. In -- it doesn't mean to say that you can't control the use

22 of it at a higher level, even if the day-to-day or minute-by-minute

23 activity is held at a lower level. For example, you can stop, you can

24 give an order, "There is to be no use of snipers or only these types of

25 targets are to be engaged." It is then left to the subordinate to act

1 within those restraints on -- in executing any of his other missions that

2 he is -- or orders that he has been given within that -- those restraining

3 instructions of yours.

4 JUDGE ROBINSON: How many levels are there between the battalion

5 and the sniper?

6 A. Well, again, each army is slightly --

7 JUDGE ROBINSON: Yes. Well, tell us in terms of Sarajevo.

8 THE WITNESS: In Sarajevo, you had companies which is roughly 100

9 men; a battalion might be anywhere around 3 or 400 at best. In the

10 Bosnian Serb, brigades were very small and varied in size according to the

11 communities from which they were raised.

12 MR. WHITING:

13 Q. General, just to follow on your -- one of your previous answers,

14 you said, "It doesn't mean that you can't control the use of it at a

15 higher level," talking about sniping. Just so we're clear, could the

16 corps command, the Sarajevo-Romanija Corps, speaking specifically about

17 Sarajevo, could the corps level command have stopped the sniping or have

18 directed it at practical targets?

19 A. Yes, that could be done.

20 Q. You described earlier there was sniping of civilian objects. Was

21 that something that was well known?

22 A. That civilians were killed? Yes.

23 Q. Moving to paragraph 56 of your statement, you describe an occasion

24 when you were away and General Gobillard took over your duties while you

25 were away. First question: Did that happen on more than one occasion?

1 A. Yes, it did. This is the first occasion that he -- he acted add

2 my deputy. The other occasion was in July when I was on leave.

3 Q. When you returned and resumed your duties, did you take over all

4 of the -- did you take over the matters which he had been supervising?

5 A. Yes.

6 Q. Paragraph 61, you say that fighting flared up again in Sarajevo on

7 the 24th of May, there was an ultimatum. On the 25th of May NATO bombed

8 the Pale ammunition depot; and then, you say: "The BSA responded that

9 evening by shelling all safe areas. One of the shells killed 71 people in

10 Tuzla. My question is: When you say "shelling all safe area," does that

11 include Sarajevo?

12 A. Certainly, yeah.

13 Q. Could we look, please, at the next document, which is 65 ter 2376,

14 I believe. Yes. It's a document dated the --

15 MR. TAPUSKOVIC: [Interpretation] [No interpretation]

16 JUDGE ROBINSON: Mr. Tapuskovic.

17 MR. TAPUSKOVIC: [Interpretation] I refrained from intervening so

18 far, but it's been numerous times instead of the witness discussing what

19 is contained in paragraph 1, instead he is being asked a direct question

20 whether this shelling was at it was described there. Rather, the

21 Prosecutor should have asked him what happened in Tuzla on that particular

22 date. However, the question was leading, and it goes on and on and on.

23 I'm not going to raise this issue again, but this will-- I just

24 wanted to draw your attention to this.

25 MR. WHITING: Your Honour, I don't think it was a leading

1 question. I just asked --

2 JUDGE ROBINSON: What was the question? Let's find it.

3 MR. WHITING: The question was: When you referred to safe areas,

4 did that include Sarajevo? Because in the sentence, he says, "There is

5 was shelling of all safe areas," and there were a number of safe areas.

6 So the question was did that include Sarajevo. It's not a leading

7 question.

8 JUDGE ROBINSON: No that is not leading. But if you asked a

9 question in the way that Mr. Tapuskovic put it, that would be leading.

10 MR. WHITING: Well, I didn't ask --

11 JUDGE ROBINSON: So there might be a tendency to do that, to

12 simply have the witness affirm what was in the statement. If you were to

13 say to the witness, what you said in paragraph 61 is accurate or is that

14 your evidence?

15 MR. WHITING: Well, I have already done that and it's in evidence.

16 I'm not going to do that. I am just going to ask him if there are points

17 to be clarified in his statement that's all I am doing: What does this

18 mean? How do you know this?

19 JUDGE ROBINSON: As I indicated before, the evidence must come

20 from the witness and not from you.

21 MR. WHITING: Yes, thank you, Your Honour.

22 Could we look --

23 Q. Have you seen 65 ter 2376?

24 A. Yes.

25 Q. Is that an accurate account of the events, including air-strikes,

1 that were occurring at the time?

2 A. Yes.

3 MR. WHITING: Could that be admitted into evidence, please.

4 [Trial Chamber confers]

5 JUDGE ROBINSON: Yes, we admit it.

6 THE REGISTRAR: As Exhibit P340, Your Honours.

7 MR. WHITING: Thank you, Your Honour.

8 Q. In paragraph 61, from page 13 -- which goes from page 13 to page

9 14, you talk about the Serbs taking some 400 UNPROFOR personnel hostage

10 and using some as human shields cutting off utilities; then in the last

11 sentence of the next paragraph, paragraph 62, you say that you determined

12 that this action of taking hostages was determined and coordinated at the

13 highest level in the Bosnian Serb army.

14 My question is: What factors led you to this conclusion?

15 A. The fact that I had been rung up from -- by the Canadian-speaking

16 liaison officer at Pale, that the first hostages taken were up at -- in

17 the vicinity of Pale. The -- the spread of hostage taking across the

18 whole of the -- it covered more than just the Sarajevo area and Pale area.

19 It stretched out into the other parts of Serb-held Bosnia.

20 Q. Could you look at the next document. It's 65 ter 2382, and it's a

21 document from the accused, dated the 27th of May, 1995. Drawing your

22 attention to particular to point 1A and B, is this consistent with the

23 events that are occurring at the time that you talk about in your

24 statement?

25 A. Yes, indeed, it is.

1 Q. In paragraph --

2 A. Incidentally, I might say it also shows an artillery regiment,

3 albeit an anti-aircraft defence directly under the corps command.

4 JUDGE ROBINSON: Let us see what is at point 1A and B.

5 THE WITNESS: It's further to the discussion about command. I

6 just noticed that to all SRK units and by courier to anti-aircraft defence

7 light artillery regiment.

8 JUDGE ROBINSON: Yes. That's an example of what I mean,

9 Mr. Whiting, by the evidence being as self-contained as possible, even

10 though this it is 92 ter.

11 MR. WHITING: What I was referring to, of course, was the number

12 of members of the UNPROFOR, UNHCR, and other international organisations

13 taken prisoner --

14 JUDGE ROBINSON: Yes, that is what I see. Well, that is a good

15 point.

16 MR. WHITING: Yes, that that be recorded.

17 JUDGE ROBINSON: That is at 1A and B.

18 MR. WHITING: And I think the General said that is consistent with

19 what he is talking about in his statement. If I could draw --

20 JUDGE ROBINSON: In future, let us that evidence on the record.

21 MR. WHITING: Okay.

22 Q. If I could draw your attention to point 3, where it says that

23 Russian UNPROFOR members must not be taken prisoner and captured Russians

24 must be freed. Do you have any comment on that?

25 A. It was obvious, at the time, that this was happening, since

1 everyone else -- nationalities were being taken prisoner and not the

2 Russians. This wasn't a great surprise, if one remembered that the

3 Russians had got there at the time of the exclusion zones and had been

4 introduced, as it were, into Sarajevo, first, and then became part of the

5 UN force, and that they were -- their barracks were located or their camp

6 was located on Bosnian Serb side of the confrontation line.

7 And, more recently, there had been plenty evidence that preceding

8 my meeting that we have already discussed, I think it's the 5th of March

9 at Jahorina, there was plenty of evidence that, before me, the Russians

10 had been up at Jahorina as part of a previous meeting. We had seen the

11 vehicles and some them had come in from Belgrade.

12 Q. There's a reference to that in paragraph 28 of your statement, in

13 fact.

14 MR. WHITING: Could this document be admitted into evidence.

15 JUDGE ROBINSON: Yes.

16 THE REGISTRAR: As Exhibit P341, Your Honours.

17 JUDGE HARHOFF: Mr. Prosecutor, could you ask the witness to

18 explain what is the implication of what he just described. I understand

19 from the General's testimony that just prior to meeting Mladic, at this

20 location, they saw the Russian vehicles leaving the place, meaning that

21 the Russians had then just met separately with the Serbs. Is that a

22 correct understanding?

23 THE WITNESS: My understanding of that event was that a Russian

24 delegation at some level - I never found out how senior this was - had

25 come from Belgrade. They had been met and escorted by elements of the

1 Russian unit that were in UNPROFOR, and it this was the movement that had

2 been reported to me in the first incident.

3 JUDGE HARHOFF: But I imagine that you would have to have been

4 informed of this prior to the operations carried by the Russian UNPROFOR

5 soldiers, would you not?

6 THE WITNESS: Theoretically, in international command, you might

7 suppose that everybody tells everybody what they're doing; practically,

8 this does not occur at all.

9 JUDGE HARHOFF: I have the -- the suspicion now that many things

10 were going on under your nose without you knowing, to put it bluntly.

11 THE WITNESS: I don't think that needs to be a suspicion. I'm

12 sure it is so.

13 JUDGE HARHOFF: So what are the implications for the Serb line of

14 command?

15 THE WITNESS: They would have known what was going on in their

16 area. But remember, two of the parties at least, the Bosnians and the

17 Bosnian Serbs, to all intents and purposes, are at war with each other.

18 They are doing everything they can possibly do to conceal their intentions

19 and purpose from each other. You, in those circumstances, one or other

20 party believes that they know about themselves. You introduce an UN force

21 in there, neither party is going to declare its all to the third party,

22 nor -- nor does the third party necessarily know what their own -- your

23 own political parties are doing behind you in their own national form as

24 opposed to in their international form.

25 JUDGE HARHOFF: I understand. Just wait for the translation.

1 But did the Russian UNPROFOR units report back to you what they

2 had learned from their contacts, their independent contacts with the

3 Serbian leadership?

4 THE WITNESS: No.

5 JUDGE HARHOFF: Thank you.

6 THE WITNESS: When I say "no," on this occasion. There were

7 occasions when the battalion commander told me what he learnt; but on this

8 occasion, they were silent even when asked.

9 MR. WHITING: Thank you, Your Honour.

10 Q. General, you've indicated that there were certainly things

11 occurring that you did not have knowledge of. You've also given evidence

12 here about your understanding of certain things, like the nature of the

13 command of the Bosnian Serb army, the strategy of the Bosnian Serb army

14 with respect to Sarajevo. Does -- just so we're clear on this point,

15 does the fact that there were certain things that you were not aware of

16 cause you to doubt in any way your conclusions that you have given to us,

17 your -- about those matters, about the command -- the nature of the

18 command, about the strategy?

19 A. No. As one has learnt more after the event, I have been

20 reinforced in the views that I was holding at the time.

21 Q. Now, could we look at paragraph 63, please. After the hostages

22 are taken, the UN hostages, you have some telephone conversations with

23 General Mladic and you describe them here. And in the second sentence of

24 paragraph 63, which is on page 14, you say, in the first of these

25 conversations, "I complimented Mladic for the attacks on the safe areas

1 causing civilian casualties and for the attacks" --

2 JUDGE ROBINSON: Mr. Tapuskovic is on his feet.

3 MR. TAPUSKOVIC: [Interpretation] We are already hearing this

4 paragraph being read out, with respect to which the witness is expected to

5 comment; therefore, we are hearing things being read out which presumably

6 the witness should be talking about. He should just be reminded of

7 certain things, and then let him take up and talk, instead of having Mr.

8 Whiting reading out the whole content to him.

9 JUDGE ROBINSON: You must remember, Mr. Tapuskovic, that this is

10 92 ter, and 92 ter allows the statement of a witness to be put in evidence

11 in lieu of the witness giving evidence, so that in principle, we could

12 just have, under 92 ter, the witness's statement. The witness need not be

13 present here at all, but we have modified the procedure to a certain

14 extent.

15 And under 92 ter quite, quite frequently, the Prosecution adduces

16 evidence from the witness on particular points. So I don't see anything

17 improper about the Prosecutor reading the parts of the statement of the

18 witness. Indeed, the witness has already, at the initial stage of the

19 examination-in-chief, confirmed the accuracy of everything that is in his

20 statement.

21 MR. WHITING: Thank you.

22 JUDGE ROBINSON: Nonetheless, there are times when the Prosecutor

23 does tend to -- to lead, and I will be on the lookout for that, I can

24 assure you.

25 MR. WHITING: I'm also on the lookout for it, Your Honour.

1 Q. In the second sentence, you condemn Mladic, and then it says,

2 "Mladic said he was sorry for the actions," and then blamed you and

3 accused you of being crazy and unreasonable. My question is: When he

4 said he was sorry for the actions, how did you understand those words?

5 What did you mean those words to mean at the time?

6 A. Just so much rhetoric.

7 Q. Did you -- was he acknowledging that he had participated in those

8 actions?

9 A. Oh, without a doubt. There was never any question that as far as

10 he and I were concerned --

11 JUDGE ROBINSON: Now, that was leading that. That was leading.

12 That was improper. You should ask him what did you mean. And, indeed,

13 you did ask him and you didn't get the answer, so that is it.

14 MR. WHITING: I think in fairness, Your Honour, I think he

15 misunderstood my question.

16 JUDGE ROBINSON: Yes. Well, it would have to stop there. But it

17 is not proper for to you put the answer in the witness's mouth.

18 MR. WHITING: I'll move on.

19 Q. In paragraph 69, you talk about another conversation with General

20 Mladic on the 28th of May. Could you look at the next document, which is

21 65 ter 42, and in particular the second page. Have you reviewed this

22 document, and is it an accurate account of your phone conversation with

23 General Mladic.

24 A. Yes, it is.

25 MR. WHITING: Could this be admitted into evidence, Your Honours.

1 JUDGE ROBINSON: What the highlights of this conversation,

2 General? Just give us a summary.

3 THE WITNESS: Well, at this stage, you have a large number of

4 hostages taken of UN personnel, and there are - I think it's 2. I'd have

5 to double-check - Serb soldiers taken by the French in an incident over a

6 bridge in Sarajevo. And I am making the point, amongst others, that it is

7 against the Geneva Protocols; it is also against -- to be wearing uniforms

8 of the UN, to take hostages of UN forces and so forth; and that he is in

9 breach of all of these positions, legal positions. I am asking for the

10 release of all my soldiers, and equally telling that the two soldiers,

11 under French control at the time, that they're being properly treated.

12 JUDGE ROBINSON: And his response, briefly.

13 THE WITNESS: The response is that we were getting nowhere at that

14 stage. We're really stating our two negotiating positions, if you like.

15 As I recall it at the time, he wasn't going to hand over the hostages

16 without -- we weren't going to have a prisoner exchange, if you like, at

17 that stage.

18 JUDGE ROBINSON: Yes. We admit it.

19 THE REGISTRAR: As Exhibit P342, Your Honours.

20 MR. WHITING: Thank you, Your Honours. I see it's time for the

21 break.

22 JUDGE ROBINSON: Yes. It's time for the break. We'll adjourn.

23 --- Recess taken at 10.31 a.m.

24 --- On resuming at 10.52 a.m.

25 MR. TAPUSKOVIC: [Interpretation] Your Honour.

1 JUDGE ROBINSON: Mr. Tapuskovic.

2 MR. TAPUSKOVIC: [Interpretation] Up until this moment, I didn't

3 know that the accused, Dragomir Milosevic, has not received the binder and

4 that he cannot follow on the screen. He cannot see the documents being

5 admitted.

6 JUDGE ROBINSON: And why is that?

7 Mr. Whiting, did you transmit a copy of the binder to the accused?

8 MR. WHITING: Your Honour, we transmitted a copy of the binder to

9 the Defence. The Defence has a binder and these -- I sort of thought that

10 these would be called up on e-court as we were going along. But of course

11 we have been were going so quickly, I accept that that probably has not

12 occurred.

13 I'm happy to let the accused have Sean's binder. I apologise for

14 the oversight. Of course, I thought giving the Defence a copy -- I didn't

15 think of the accused.

16 MR. TAPUSKOVIC: [Interpretation] Another thing. Only two of the

17 documents are in B/C/S; the rest is in English, the documents in the

18 binder; therefore, this is not an adequate for the accused to be able to

19 inspect them.

20 MR. WHITING: I think that is not accurate. All the translations

21 are included in the binder, as Your Honours can no doubt see. I think they

22 are separated by green paper. With respect to each document, they appear

23 in both languages.

24 MR. TAPUSKOVIC: [Interpretation] Yes.

25 JUDGE ROBINSON: Very well. That's the position.

1 MR. WHITING: May I proceed, Your Honour?

2 JUDGE ROBINSON: Yes, you may proceed now.

3 MR. WHITING: Thank you, Your Honour.

4 Q. General, if you could look at paragraph 71, you talk about the

5 Bosnian army -- you say, "The Bosnian army mounted a long heralded attack

6 to break the siege of Sarajevo."

7 How long did that attack last, to your memory?

8 A. My memory is some two to three days in the actual attack. There

9 were some period afterwards as they withdrew and so forth.

10 Q. If you could now look at the next document, which is 65 ter 43.

11 It's a letter dated 26th of June, 1995. Is this your signature on the

12 letter?

13 A. Yes, it is.

14 Q. Why, if can you recall, was this letter written?

15 A. I think this was a case of me drawing together, if you like,

16 towards the end of what had been a difficult month in the aftermath of the

17 bombing an incidents in May the -- into one letter, my concerns as to the

18 use of force, and incidents involving the people in the safe areas and so

19 forth.

20 I also note that in a week's time, I'm intending to go on leave,

21 and I suspect for that reason I'm pulling everything together to make sure

22 that I've made thing as easy as possible for my deputy when I'm away.

23 MR. WHITING: Could this be admitted into evidence, Your Honours.

24 JUDGE ROBINSON: Yes.

25 THE REGISTRAR: As Exhibit P343, Your Honours.

1 MR. WHITING:

2 Q. Could you look at the next document, please, and in particular

3 skip the first two pages, I'm interested in page 3.

4 A. And the next document is the --

5 Q. I'm sorry, it's 65 ter 824?

6 A. I just want to be sure, yes.

7 Q. And if you can go to page 3, it's a document dated 22nd of August,

8 1995, purports to give an account of the meeting that you had with General

9 Mladic. And focussing in particular on point 6, which is page 2 of this

10 particular memorandum, could you tell us if this is an accurate account of

11 the meeting and what the -- what the important points were in that

12 meeting, briefly.

13 A. Yes. As is implied in the opening sentence of that -- of that

14 paragraph, one is still trying to establish just who is speaking for the

15 Bosnian Serbs. And the reason for this is that during the period of June,

16 July, and that bit of August, if you like, the senior level arrangements

17 in Pale had been coming under considerable pressure, particularly

18 politically. And it wasn't entirely clear just what the relationship was

19 between Karadzic and Mladic. If you remember earlier in evidence, I said

20 that -- that there's never an absolutely precise line between the military

21 and the political at the level we're talking, and here am I trying to

22 establish just where that line was in this new set of circumstances.

23 The other point that comes out from this is that by this stage,

24 both Karadzic and Mladic had been indicted as war criminals after the

25 incidents in -- of the collapse of the Srebrenica pocket, or enclave. And

1 here he is saying, "I'm a war criminal, but have you to talk to me, have

2 you to deal with me."

3 MR. WHITING: Could this document be admitted into evidence, Your

4 Honours.

5 JUDGE ROBINSON: Yes.

6 THE REGISTRAR: As Exhibit P344, Your Honours.

7 MR. WHITING:

8 Q. Finally, General, I would like to ask you some questions about

9 what is referred to as the Markale 2 incident in August. It's in

10 paragraph 108 of your statement and thereafter.

11 A. Yes.

12 Q. Can you tell the Trial Chamber what information came to you at

13 that time about what had occurred at Markale 2.

14 A. Well, Markale 2, just to situate the answer, refers to an attack

15 from mortars, some fire rounds were fired, one of which killed 30 or so

16 people in the marketplace at Markale.

17 It's called 2 because there had been a previous incident the

18 previous year of the same scale.

19 The -- there was a procedure by which a group of people called the

20 UNMOs, UN Military Observers, who were reporting organisation that was

21 superimposed across the whole of the UN command in the Balkans and

22 reported direct to Zagreb. They had the -- they would go and record all

23 these incidents as one type of incident, so one source of reporting within

24 the UN as a whole.

25 It was also the responsibility of the sector commander, in this

1 case Sector Sarajevo, to report, and he was part of my command. The UNMOs

2 had a liaison officer, so I knew what they were doing. It wasn't that

3 they were just free spirits, but they were separately commanded. So there

4 were two sets of investigations took place with a slightly different sets

5 of competency.

6 Q. Were there any other investigations?

7 A. Because of these two, we found ourselves with -- a certain amount

8 of disagreement as to the -- what had occurred; and as a result, I

9 directed a member of my staff to draw all of the reports together so that

10 I could come to a single conclusion --

11 Q. Did any --

12 A. -- or rather, come to a conclusion on a single set of evidence.

13 Q. Did any of the investigations into this matter come to the

14 conclusion that the shell that killed the 30 or more people had come from

15 ABiH positions?

16 A. No.

17 Q. You say in paragraph 108 that: "After an investigation, I decided

18 beyond a reasonable doubt that the rounds came from the Serb's side."

19 What factors led you to come to that conclusion?

20 A. Briefly, the direction -- there was a argument about the direction

21 or two different views as to the direction these rounds came from, but

22 that all took us outside the -- outside of Bosnian-held Sarajevo. The --

23 there with a was a radar called Cymbelline, which by deduction from the

24 fact that there was no evidence from the radar that these mortars had been

25 fired is that trajectory, therefore, was below the beam of the radar and

1 this led you to the deduction that it was a fairly long range engagement.

2 There was an acoustic system that didn't pick up any firing, which

3 tells that it was out of range of the acoustic system, and we also had a

4 number of observation posts; none of which reported hearing the firing as

5 opposed to the explosion, all of which led me to the view that these

6 rounds had been fired from outside the enclave, in the direction of one or

7 other of these directions that had-- that the different views as to where

8 they came from.

9 And, finally, it is my experience of being in a siege that rounds

10 that fall on the inside of the siege tend to come from outside the siege.

11 Q. General, why was it important or necessary for you to reach a

12 conclusion on this matter? Why were you trying to reach a conclusion?

13 A. Well, it was my business, as the UN commander, to do this, not

14 least because of the decisions made in the -- at the London Conference in,

15 I think, it's the 21st and 22nd of July; anyway, towards the end of July

16 of that year.

17 Q. General, in paragraph 110, you recount a conversation that you

18 have with General Mladic, and he proposes setting up a joint investigation

19 team. What was your reaction to that proposal?

20 A. This was not a new suggestion. It was new because this incident

21 was new. But these types of joint investigation commissions had been

22 proposed before on other incidents; and when they had been used, they had

23 just become a method by which you got, yes, he did it, no, he didn't type

24 of arguments and no decision was reached at all.

25 Q. In that paragraph, you also recount that Mladic stated that his

1 staff had confirmed that no fire orders had been issued to his units.

2 What was your reaction to that kind of information from General Mladic?

3 A. Well, I didn't believe it. I had no reason to suppose -- put it

4 another way: He would say that, wouldn't he?

5 Q. Finally, and I think you have already touched on this, but I will

6 put the question nonetheless, do you have any reaction to the claim, the

7 more general claim, that the ABiH was sniping and shelling its own people

8 within the siege area?

9 A. Yes. I have heard those claims. I heard them when I was there.

10 At no stage had I ever been shown any evidence to support such an

11 assertion.

12 MR. WHITING: Your Honours, I have no further questions.

13 Thank you, General.

14 JUDGE ROBINSON: Thank you.

15 Mr. Tapuskovic.

16 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honour.

17 Cross-examination by Mr. Tapuskovic:

18 Q. [Interpretation] Mr. Smith, I am counsel for the accused, Dragomir

19 Milosevic, Commander of the Sarajevo-Romanija Corps. I had an opportunity

20 to examine you on some matters before and now I have been given another

21 chance to ask questions concerning your stay in Sarajevo and your command

22 duties.

23 As I can see from your statement, and I have to start with that,

24 according to paragraph 3 therein, you took over command of the United

25 Nations Protection Force in Bosnia-Herzegovina on the 23rd of January,

1 1995. Is that correct?

2 A. Yes.

3 Q. Your predecessor was General Rupert Smith. Is that correct?

4 Rose, General Rose.

5 A. Yes.

6 Q. Was there a handing over the duties between the two of you once

7 you arrived there? Did you meet with Rose before his departure from

8 Sarajevo?

9 A. I had visited Sarajevo in November of the previous year and had

10 been briefed by General Rose, and we met in Zagreb rather than Sarajevo

11 the day before I arrived Sarajevo.

12 Q. Did you meet in Sarajevo the day of your arrival? I suppose

13 General Rose was still there at that moment.

14 A. No, he wasn't. No. We met in Zagreb as I came through Zagreb to

15 Sarajevo.

16 Q. Can we say that in November when you met him, and then

17 subsequently in Zagreb, did you discuss with General Rose the situation in

18 Sarajevo and were you trying to gain some information concerning the

19 problems UNPROFOR was encountering in Sarajevo?

20 A. Yes.

21 Q. Did you learn from him that after the event of the 5th of

22 February, 1994, that is, after the first incident and the killing of

23 people at Markale, the army of Bosnia-Herzegovina, during several months,

24 violated cease-fires?

25 A. I didn't -- I don't remember us going into that degree of detail,

1 no.

2 Q. Did he talk to you at all about who committed more violations of

3 the cease-fire, which side?

4 A. Which cease-fire are we talking about?

5 Q. Did General Rose tell you anything about the situation while he

6 was UNPROFOR commander and did he tell you that in that period, especially

7 after the Markale incident, for almost two months there was constant

8 violating of the cease-fire by the army of Bosnia-Herzegovina?

9 A. No, I don't think we discussed those matters in that detail, which

10 were almost a year old by the time we were having this conversation.

11 Q. Did he tell you something about his experience concerning the

12 sniping activity in Sarajevo? And I'm particularly interested in one

13 thing, and that is the thrust of my question: Did he complain to you

14 about the fact that the army of Bosnia and Herzegovina, that is, the

15 Muslim forces in Sarajevo, frequently opened fire on their own citizens

16 trying to portray that as the activities of the Serbian side?

17 A. No. I don't remember him saying anything of the sort.

18 Q. Did you know that General Rose, in his book called "Mission to

19 Bosnia," when it comes to Markale 1, he wrote the following:

20 "The initial investigation on the location made by the French

21 experts showed that the approximate distance of a high building nearby the

22 market made it impossible for any shell to land at the marketplace from a

23 particular angle, which made them conclude that it was a mortar shell or

24 that the actual detonation was carried out on the ground."

25 Did he tell you anything about that, and were you able to read

1 that in his book, since it was written in English?

2 A. Indeed, I have not read his book, and he didn't tell me that

3 either.

4 Q. Therefore, General Rose --

5 MR. WHITING: Does counsel have, perhaps, a page reference for

6 that citation? We'd be interested in it.

7 JUDGE ROBINSON: Yes, Mr. Tapuskovic, give us the references.

8 MR. TAPUSKOVIC: [Interpretation] The reference is in B/C/S, page

9 60. I wish I brought that book, because I also have it in English, but I

10 didn't want to bring it in order to save time. Should the Court need it,

11 I'm ready to forward it. I merely wanted to put to the witness what is

12 said at page 60 of the B/C/S translation.

13 JUDGE ROBINSON: Very well.

14 MR. TAPUSKOVIC: [Interpretation] I can read out another thing.

15 JUDGE ROBINSON: Let's move on.

16 MR. TAPUSKOVIC: [Interpretation]

17 Q. Did he tell you this: "When a CNN reporter asked me why it was

18 impossible to determine who fired that round, I told him that it is

19 impossible to conclude based on only one round fired."

20 Did you know that that figured as something that was discussed at

21 that time?

22 A. No, I didn't.

23 JUDGE ROBINSON: I must say, Mr. Tapuskovic, if you're going to

24 place such reliance on that book, you really should have brought the

25 English translation. But let's move on and see to what extent we need

1 it. Not the English translation, the original English.

2 MR. TAPUSKOVIC: [Interpretation] Your Honour, I received it from

3 the OTP. I could have brought it along, but I simply wanted to ask the

4 witness if things were, indeed, as they were described in the book. I

5 didn't think it would be needed here for me to show it to you and to prove

6 that I'm quoting correctly. Yet again, this may have been my mistake, but

7 I was trying to save time. If the witness has no knowledge of it, then --

8 JUDGE ROBINSON: Yes, quite often it's important to look at other

9 passages in the book to see whether you have put the questions in a proper

10 context. I don't say that you haven't, but that's one purpose that having

11 the English original could serve.

12 MR. TAPUSKOVIC: [Interpretation] After everything said, my

13 question really is this:

14 Q. General Smith, did you know that the army of Bosnia-Herzegovina

15 and their government occasionally used their own people as victims in

16 order to attain certain military and political goals. Were you aware of

17 that, and were you warned of that by anyone?

18 A. I don't know of it, no. I have heard the assertions, but nobody

19 has ever shown me any evidence to support them.

20 JUDGE ROBINSON: Well, the assertions that you have heard, would

21 you consider that the sources from which they came were credible?

22 THE WITNESS: They always came from the other side.

23 JUDGE ROBINSON: Yes, Mr. Tapuskovic.

24 MR. TAPUSKOVIC: [Interpretation]

25 Q. As far as I can see from this transcript, your deputy was General

1 Nicolai, and he testified before this Bench. At page 974 and 975, lines

2 17 through to 25 and lines 1 through to 10, at 975, he said, when asked

3 whether it is correct that the Bosnians opened fire at their own people,

4 Nicolai confirmed that from Van Baal, his predecessor, he heard that it is

5 possible that things like that took place. Then he continues to say that

6 there was a presumption of their intention to open fire at their own

7 troops in order to try and show that as an activity of the other side.

8 Did your deputy, Nicolai, convey to you what he had found out from

9 Van Baal?

10 A. First of all, he wasn't my deputy; he was my Chief of Staff. He

11 was of the headquarters. He wasn't my deputy commander.

12 Again, I mean, I'm not sure I can comment on what someone else has

13 said, except that in the way that you've described what had he said, it's

14 still assertions. There is no evidence there and nobody every produced

15 any evidence of this happening.

16 Q. At page 975 and 976, lines 20 to 25, and line 1 to 16 of this case

17 transcript, Nicolai said, and I'm reading from the transcript -- it is the

18 transcript of this case when Nicolai said the following --

19 A. If you're referring to Nicolai's transcript? Right, which I don't

20 have so ...

21 Q. Of this case, this trial, and I'm quoting the transcript.

22 A. Right.

23 Q. You have the references. Nicolai continues:

24 "General Van Baal discussed a specific case where the Bosnian

25 forces opened fire at their open people in order for the other side to be

1 blamed for that. General Van Baal was fairly sure that that indeed took

2 place."

3 Did Nicolai, your Chief of Staff, draw your attention to that so

4 as to bear that in mind when assessing what actions needed to be taken on

5 your part?

6 A. No, I don't recall him doing anything of the sort. And who is

7 General Van Baal? Where does he -- I don't recall a General Van Baal. He

8 may have been there. I can't remember if he was or what he was doing.

9 Q. Van Baal was Nicolai's predecessor and that is what Nicolai

10 learned from him.

11 A. General Brinquemont was Nicolai's predecessor.

12 Q. I don't have it in front of me, but when we come to Markale I'm

13 going to show it to you.

14 JUDGE ROBINSON: I'm trying to remember, what was the evidence

15 from Nicolai?

16 MR. WHITING: The evidence is -- I think it's worth reading. It

17 says: "General Van Baal, who was actually my predecessor's predecessor,

18 told me before my departure ..." and I think it's fair -- it should be

19 said that it was his strong impression "but they never had 100 per cent

20 evidence of this." I'm reading directly from the transcript at page 975.

21 JUDGE ROBINSON: Does that help to clarify it, General?

22 THE WITNESS: I don't know who this man was. But we're talking

23 about events before I'm there and of a -- if Nicolai says that that's what

24 that man told him, then that's what happened.

25 MR. TAPUSKOVIC: [Interpretation]

1 Q. Page 964, line 12, General Nicolai says as follows:

2 "Concerning provocations relating what was being done from

3 Sarajevo by the BH army, a provocation may be fire from small-calibre

4 weapons on Serbian positions. Another form of provocation could be fire

5 from heavy weaponry. It is well known, inter alia, that vehicles with

6 mortars mounted on them were used in order to shoot randomly at different

7 positions of the Bosnian Serbs outside the city."

8 Do you know anything about this, and did General Nicolai mention

9 that to you and warn you about this?

10 MR. WHITING: I'm sorry, objection. That misquotes what General

11 Nicolai said. He did not say "fire randomly"; he said "fire from

12 arbitrary -- well, not arbitrary, but at various sites outside the city at

13 Bosnian Serb territory." It doesn't say, at least in that passage, that

14 they were firing randomly, as has been quoted.

15 JUDGE ROBINSON: Yes, Mr. Tapuskovic. With that qualification--

16 MR. TAPUSKOVIC: [Interpretation] That was the essence. Absolutely

17 that's the essence. If we do need some interpretation or checking by the

18 interpreters, but that was the essence of the matter. And if you

19 remember, that is what we discussed.

20 JUDGE ROBINSON: Do you have the word "randomly" in B/C/S, in the

21 B/C/S version?

22 MR. TAPUSKOVIC: Yes.

23 JUDGE ROBINSON: Well, we're trying to find it on the screen.

24 MR. TAPUSKOVIC: [Interpretation] We devoted a long time, Your

25 Honours, to --

1 JUDGE ROBINSON: Give us the line of the transcript.

2 MR. TAPUSKOVIC: [Interpretation] Line 12, page 964.

3 [Trial Chamber confers]

4 MR. WHITING: Your Honour, he doesn't say it there but he does say

5 it elsewhere, at page 997.

6 JUDGE ROBINSON: Say what?

7 MR. WHITING: He talks about random shooting at Serb territory;

8 that is, General Nicolai does in this transcript. I have found it at 997,

9 998.

10 [Trial Chamber confers]

11 JUDGE HARHOFF: Which line?

12 MR. WHITING: It's at the bottom of 997. "Is it not true ..." and

13 then the answer, going on to 998.

14 JUDGE ROBINSON: I see it. This is a question from

15 Mr. Tapuskovic. "Is it not true that the BH army soldiers were firing

16 these shells randomly only in order to elicit a reaction from the army of

17 Republika Srpska. Is that true, sir?" Answer: "Yes. That's the gist

18 of the statement I made at the time."

19 Well, on that basis the question can be put.

20 THE INTERPRETER: Microphone for the counsel.

21 JUDGE ROBINSON: Microphone, Mr. Tapuskovic.

22 MR. TAPUSKOVIC: [Interpretation]

23 Q. General Nicolai came after you and was your Chief of Staff. You

24 claim that General Nicolai would not have conveyed such a thing to you,

25 which could be very important for subsequent actions, and you still claim

1 that you didn't hear any of this from Nicolai?

2 A. I do not remember him saying what has just been said that he said

3 in court to me like that, no.

4 Q. Very well. I understand. But if we go to page 986, May 1995, and

5 this is what Mr. Nicolai says about the NATO bombing, lines 17 to 22:

6 "In mid-May there was a series of conflicts. Some of them were

7 caused by the Bosnian Serbs and some of them were caused by the BH army.

8 In one specific case involving the Jewish cemetery, the initiative came

9 from the BH army. When we discussed this, that for this reason we are not

10 going to attack the Serbs but, rather, address this issue with the BH

11 army."

12 My question is: At that time you advocated an immediate bombing

13 of the Serbian positions, and after you had established that the

14 provocation actually came from the BH army, you did not take this course.

15 A. Is that what General Nicolai is saying or are you asserting that?

16 Q. No. I'm not asserting anything. I'm quoting the words of General

17 Nicolai uttered before this Chamber. This is what he observed and said,

18 and I'm asking you: You were in favour of bombing the VRS positions, but

19 you gave up on the idea because that had been caused by a provocation on

20 the part of BH army.

21 A. If we're referring to the incident in which a number of people are

22 killed at the entrance, at the Butmir entrance, to the tunnel under the

23 airport, is that the incident we're referring to?

24 Q. No, no. That's an entirely different part of the city, the Jewish

25 cemetery, whereas the tunnel was in the Dobrinja area.

1 A. Indeed. I do not remember the particular case that you are

2 referring to. But if my Chief of Staff, General Nicolai, recalls it like

3 that, then I dare say -- and that is his memory of the decision I took and

4 he said that, then it is probably correct.

5 JUDGE ROBINSON: But the question is: During your stay in

6 Sarajevo, did you at any time have occasion to advocate an immediate

7 bombing of Serbian positions after you had established that provocation

8 actually came from the BH army?

9 THE WITNESS: There was, I believe -- again, my memory, I'm trying

10 to find the place in my own statement. But there was a case in early

11 May -- yes, I have it here, paragraph 54. At that stage and at the

12 opening stages of that, you can -- there is -- there's the attack that

13 kills a number of people at the Butmir entrance and I decide against

14 calling for an air-strike there.

15 JUDGE ROBINSON: Where in paragraph 54?

16 THE WITNESS: Paragraph 54 in my own statement.

17 JUDGE ROBINSON: Do you have the statement in front of you?

18 THE WITNESS: Yes, I do.

19 JUDGE ROBINSON: Where in that is there a reference to --

20 THE WITNESS: "In early May," and then "The 7th of May, a Serb

21 shell or mortar round killed 11 people at the Butmir entrance," the

22 second ...

23 JUDGE ROBINSON: That's not the kind of incident that counsel is

24 referring to, nor, indeed, is it the kind of incident that I put in my

25 question, which was whether at any time you had occasion to advocate --

1 well, I see now it might very well be.

2 THE WITNESS: What I'm trying to say is that here was a case where

3 I decided not to call for an air-strike because I considered this was part

4 of the fighting between the two sides and there were people in uniform

5 involved. But during the evening, the situation changes and we now get

6 repeated shelling of civilian areas and so I then change my decision.

7 JUDGE ROBINSON: Well, can we put it more simply, although, you

8 have virtually said so when you say there was fighting between the two

9 sides. But I wanted to ask you specifically whether you are able to

10 isolate cases where provocation came initially from the BH army, and to

11 which the Serbs responded.

12 THE WITNESS: The very use of the word "provocation" is part of --

13 JUDGE ROBINSON: Let us -- sorry, let us delete the word

14 "provocation." Let us say -- let us ask the question in a different way,

15 whether you can isolate in your memory instances where fire came first

16 initially from the BH army drawing a response from the Serbs.

17 THE WITNESS: Yes, I can -- I'm confident that those incidents

18 existed. If I got all the logs, I could probably find them for you.

19 There was a war going on. We were standing around in the middle

20 of it. And it's only as -- it's why I raised the point about the word

21 "provocation." It was used by both parties to justify actions. It

22 wasn't a reason for the action in the first place necessarily; justified

23 subsequently.

24 JUDGE ROBINSON: Mr. Tapuskovic, yes.

25 MR. TAPUSKOVIC: [Interpretation]

1 Q. Mr. Smith, I'm going to ask you about the tunnel. However, the

2 Jewish cemetery is another part of the city and this situation prompted an

3 immediate consideration of striking the positions of the Bosnian Serbs and

4 not the positions of the BH army, although they were the ones who caused

5 the incident. And here you insisted that an action be taken immediately

6 against the Serbian side. However, you decided not to do that after you

7 had learned that the Bosnian side were the ones who caused it and who

8 probably deserved some punishment for that. Why didn't you do that?

9 A. I wasn't there to punish anybody, first of all; and, secondly, I

10 do not remember the incident in question.

11 Q. Speaking about the tunnel, paragraph 54, and I would like to

12 remind you again -- in the transcript 982, lines 2 to 5, again, it's

13 Mr. Nicolai's statement, and it's contained in the transcript of this

14 trial, lines 2 to 5, page 982. And this is what he says about the tunnel

15 as a military target.

16 "Nicolai confirms that irrespective of where the entrance point or

17 the exit point of the tunnel were, if troops were moving inside it, it

18 could become a military target."

19 Do you agree that if troops were entering or exiting the tunnel,

20 the tunnel in that situation can become a military target?

21 A. It is the troops that are the military target, not the tunnel.

22 The fact that they're there in the entrance makes that locality, where the

23 troops are, a target. It's because the troops are there. They're the

24 target, not the hole in the ground.

25 Q. That was my question. Maybe I didn't formulate it precisely.

1 JUDGE ROBINSON: What is the significance of the distinction that

2 you make?

3 THE WITNESS: Between the hole in the ground --

4 JUDGE ROBINSON: And the troops.

5 THE WITNESS: The military target is the -- the significance of

6 the military target is the military force, rather than specifically its

7 locality. The military force might be using the locality to advantage,

8 such as a hill with a church on it or whatever, and so that can then

9 become a military target. But it's because the military are there, not

10 because it exists as such.

11 JUDGE ROBINSON: Yes.

12 MR. TAPUSKOVIC: [Interpretation]

13 Q. Well, that is exactly why I read out to you Nicolai's statement,

14 that the troops moving and entering or exiting the tunnel were the target,

15 and you just confirmed that.

16 Can you please say without nodding your head.

17 A. Yes, I do confirm that.

18 Q. I would like to ask you about paragraph 54. It says: "The Serb

19 shell killed 11 people at the Butmir entrance to the tunnel, some of whom

20 were in uniform."

21 How do you know that all of them were not in uniform?

22 A. I don't recall how that was -- that was deduced. Perhaps we had

23 people there or perhaps the Bosnians only reported so many being in

24 uniform. I don't remember.

25 Q. UNPROFOR did not have observers on this location. The only report

1 you could have received about this was from representatives of the BH

2 army?

3 A. I don't know we couldn't -- we didn't have someone there at that

4 time, I'm sure, is correct. But there is no reason why we couldn't have

5 driven someone there after the event.

6 Q. What I'm interested in, Mr. Smith, is it that you were very firm

7 in your request for immediate air-strikes against the Sarajevo-Romanija

8 Corps forces, although, as you yourself said and as Mr. Nicolai said, it

9 was a legitimate target for the one who had perpetrated the attack.

10 Nevertheless, you requested an immediate bombing of the Serbian side.

11 However, after an assessment was made, it was -- this request was

12 withdrawn -- actually, your request was denied by the HQ in Zagreb. Is

13 that correct?

14 A. No, that isn't correct, and that isn't what I said in my

15 statement. I said -- I decided against an air-strike; and then during the

16 night, the shelling of Sarajevo continued, some of it falling on civilian

17 areas. And it's at that point that I request the air-strike, which is --

18 is denied, that is true.

19 Q. Mr. Smith, in the last sentence, it says that the UN PF

20 headquarters Zagreb denied your request. Look at your last sentence in

21 paragraph 54?

22 A. That is correct. That is --

23 JUDGE ROBINSON: Mr. Tapuskovic, read from the middle of the

24 paragraph 54. It says, "During that day, pressure for air-strikes grew;

25 but on balance, it was decided not to request a strike at that time.

1 However, during the night, 7th to 8th May, the shelling of Sarajevo

2 continued, some of it falling in civilian areas, and an air-strike was

3 requested. This was denied by headquarters, UN PF in Zagreb."

4 That is consistent with what the witness just explained.

5 MR. TAPUSKOVIC: [Interpretation] At any rate, at the time when the

6 shelling took place and when some of the shells landed in Sarajevo, maybe

7 we can ask the witness if can he confirm that it was fired from one side

8 only or was there an exchange of fire, but he persisted in requesting the

9 air-strikes, which were denied by the Zagreb UN PF headquarters after

10 certain checks were made. So Zagreb headquarters denied his request.

11 Q. Is that correct?

12 JUDGE ROBINSON: Let us ask the witness then.

13 Are you able to confirm whether the shelling was from one side

14 only or whether there was an exchange of fire?

15 THE WITNESS: I cannot recall whether there was an exchange of

16 fire. I can -- I'm quite sure that there was shelling of civilian areas

17 of Sarajevo, and the -- and it was because of that that I requested the

18 air-strike.

19 JUDGE ROBINSON: Shelling by whom?

20 THE WITNESS: By the Serbs.

21 JUDGE ROBINSON: By the Serbs. Do you have any idea why your

22 request for the air-strike was denied by the headquarters in Zagreb.

23 THE WITNESS: Primarily, my understanding at the time, and events

24 have not changed this, this was primarily political rather military and

25 was to do with the resolve of the Security Council and the

1 troop-contributing nations to run the risks, if you will, of pursuing this

2 course of action.

3 JUDGE ROBINSON: Mr. Tapuskovic.

4 MR. TAPUSKOVIC: [Interpretation] I have to refer to another

5 portion of Mr. Nicolai's testimony, pages 996 and 997, lines 21 to 25 and

6 lines 1 to 25, which read as follows: "UNPROFOR's presumption was that UN

7 points were deliberately targeted in the hope of the Serbs responding and

8 hitting the UN personnel."

9 Do you know anything about such events when fire was deliberately

10 opened in the vicinity of UN points, checkpoints, in order to provoke

11 Serbs into action and thereby have certain UN facilities being targeted

12 and shot, and then blame laid on the Serbs.

13 A. This was by the Bosnians would -- would fire close from an UN

14 position thus causing Bosnian Serbs to shoot back.

15 THE INTERPRETER: Could the counsel please to turn off the

16 microphone because we cannot hear the witness if you are talking at the

17 same time.

18 My apologies. I was not able to interpret what the witness was

19 saying.

20 JUDGE ROBINSON: You are being asked by the interpreter to switch

21 off the microphone when the witness is speaking; otherwise, the

22 interpreter has difficulty hearing.

23 Mr. Tapuskovic.

24 THE WITNESS: I just wanted to be clear that the question was that

25 the Bosnian Muslims would fire from positions very close to a UN position,

1 in the hopes of provoking a counterfire from the Bosnian Serbs that would

2 hit the UN position.

3 MR. TAPUSKOVIC: [Interpretation]

4 Q. And this is what Nicolai also said. This is not based on isolated

5 incidents. This was happening on a regular basis, that fire came from the

6 vicinity of UN points by the BH army. In November 1996, he said that he

7 saw Bosniaks firing from the vicinity of the UN building using mobile

8 mortars of small calibre.

9 Nicolai also confirmed what he said earlier, that very often these

10 positions were very often close to UN positions, such as the PTT building,

11 the UNHCR, the ice-rink, and the Marshal Tito barracks.

12 Did you have this information and is this what Mr. Nicolai is

13 saying is true?

14 A. I have the information and had it at the time that firing took

15 place from positions in close proximity to UN positions and this drew

16 return fire.

17 The -- on the other hand, at no stage did I ever get any hard

18 concrete evidence that this was a deliberate act to provoke an attack upon

19 the UN. The suspicion that I think Nicolai is referring to is rather more

20 that - and this occurred with both sides - we, the UN, were used as a

21 shield for their actions.

22 Q. Mr. Smith, please, what is discussed hear is that Mr. Nicolai saw

23 fire being opened from mobile objects, such as trucks, when shells were

24 fired; and then that particular object would immediately be moved and they

25 simply want to the provoke a reaction on the part of the Serbs. Did you

1 know that?

2 A. I know that some of these incidents took place. I do not know

3 that the purpose was to provoke an attack on the UN.

4 Q. Therefore, you disagree with the assertion of General Nicolai. Is

5 that so?

6 A. I'm not disagreeing that some of these incidents take place nor --

7 I think use the word the "supposition." We didn't suppose that this might

8 be the case. But on no occasion did I have evidence, concrete evidence

9 that this was the case.

10 Q. General Nicolai stated this categorically. It was no supposition.

11 It was his knowledge.

12 MR. WHITING: I'm going to object on two grounds. The first is

13 that in the testimony that Nicolai says -- speaks about the assumption,

14 but, secondly, I think this question has been asked now three or four

15 times now and the General has answered it.

16 JUDGE ROBINSON: Well, I uphold the latter objection.

17 Mr. Tapuskovic, you have ventilated this point sufficiently. The witness

18 has answered. In my view, there is nothing more to extract from him. We

19 have to make up our minds what we make of his evidence, as well as that of

20 General Nicolai.

21 Move on, please.

22 MR. TAPUSKOVIC: [Interpretation]

23 Q. There's another important thing with which I will conclude this

24 topic.

25 General Nicolai believed that one single round would not be enough

1 to deal with such a source of fire, but, rather, that a number of rounds

2 should be used to neutralise such an object, such a position, and such

3 positions existed throughout the city. Therefore, I wanted to see

4 Mr. Smith's reaction to that. How do you neutralise such a target?

5 JUDGE ROBINSON: Did you hear that or would you --

6 THE WITNESS: I heard it, but I don't understand.

7 JUDGE ROBINSON: Well, reformulate the question so it's more

8 intelligible.

9 MR. TAPUSKOVIC: [Interpretation]

10 Q. A mobile mortar fires a single shell and then moves away. Can it

11 be neutralised by using a single round, or would one have to use a number

12 of shells to do away with such a source of fire?

13 A. It is the normal practice to fire mortar rounds in particular and

14 artillery rounds in a number of rounds at a time. The -- in the case of

15 this particular fighting around Sarajevo, the Bosnian army had very few,

16 if any, of the heavier weapons and the -- of the types of heavy weapons.

17 They had some mortars, and they used them, as I observed it, as single

18 barrels instead of in batteries or sections of weapons where you have more

19 than one. This was because of a scarcity of the weapons and their

20 ammunition rather than any desire to use them in that way, in the first

21 instance.

22 To some extent, this applies to the Bosnian Serbs as well, but

23 they had more of these weapons and tended to use them in the more

24 convention way and so would you get a return fire where you would get a

25 Salvo fired rather than a single round.

1 Q. General Smith, in paragraph 6, you talk about your relationship

2 with Dr. Alija Izetbegovic, the late Bosnian President. In the last

3 sentence, you say: "I think our relationship developed to one of mutual

4 respect an understanding. He was always available to me."

5 Is that correct?

6 A. Yes.

7 Q. I'm now referring to your -- to the period of your command. Did

8 you know that the tunnel that was used for the movement of troops was also

9 used to, as described in his book during the time you were there, to

10 transport hundreds of thousands of tons of weaponry into Sarajevo? Did

11 you know of that?

12 A. I couldn't vouch for the quantity, but I was aware that weapons,

13 as well as troops, would move in that tunnel.

14 Q. Did you know that at the material time discussed here, this being

15 the final months of 1994 and the whole of 1995, that the army of

16 Bosnia-Herzegovina was better equipped and had better weapons than the

17 army of Republika Srpska, even according to the testimony of some of your

18 officers?

19 A. I didn't see it like that at that time.

20 Q. Did Alija Izetbegovic use to tell you about the fact that 20 to 30

21 planes during the offensive in June arrived loaded with weapons for the

22 army of Bosnia-Herzegovina and that those planes originated from some

23 Islamic countries?

24 A. No, he didn't.

25 Q. Did you know about the fact that on the 27th of August, 1995,

1 exactly one day before Markale 2, Alija Izetbegovic went to Paris?

2 A. I don't remember that at all, no.

3 Q. Therefore, you had no knowledge of the fact that the commander of

4 the army of Bosnia and Herzegovina left Sarajevo on the 28th. Your

5 service had no knowledge of that; rather, it was on the 27th of August.

6 You didn't know that he left Sarajevo. You were not notified of the

7 commander leaving the positions of his army?

8 A. No. There was no reason for him to do so. There was no

9 requirement for this information to be passed.

10 Q. We'll get to that somewhat later.

11 JUDGE ROBINSON: Mr. Tapuskovic, before you move to another topic,

12 I wanted the General to give us his assessment of the relative strength of

13 the two armies in terms of their weaponry.

14 THE WITNESS: As I understood it at the time?

15 JUDGE ROBINSON: Yes.

16 THE WITNESS: The Bosnia-Herzegovina army was numerically larger

17 than the Bosnian Serb army. It was re-arming; it was getting new weapons.

18 The Bosnian Serbs were largely equipped with the weapons of the

19 former army and were able to draw, to an extent at least, and I could

20 never work out precisely the extent, on the army in Serbia for assistance,

21 particularly in terms of logistic supply and materiel support.

22 The Bosnian Serb army was better organised had a more professional

23 corps of officers, and the Bosnia-Herzegovina army was in this regard

24 struggling to create, if I can call it this, the nervous system to be able

25 to use their new army effectively.

1 I think that was the broadly the balance that I struck between

2 them. Is that sufficient for you, Your Honour?

3 JUDGE ROBINSON: Yes. But more specifically, in terms of weapons,

4 do you have an assessment of which army was stronger and in what way?

5 THE WITNESS: By -- at that stage, and particularly remember

6 Sarajevo is under siege, the balance of heavy weapons, by which I take

7 everything from an 81-millimetre mortar upwards, lay with the Bosnian

8 Serbs. The balance of advantage lay to the Bosnian Serbs.

9 JUDGE ROBINSON: Yes, Mr. Tapuskovic.

10 MR. TAPUSKOVIC: [Interpretation]

11 Q. As regards the composition of the Command Cadre beginning with

12 Colonel Delic, Prevljak and a number of other officers, weren't there at

13 least as many people on the Bosnian side who originated from the former

14 JNA. I dare say even more than there were on the Serbian side, in the

15 Serbian forces.

16 A. That may have been so, but what it didn't give them and why I used

17 the word "nervous system," you require more than the individual to make

18 the machinery work. There has to be a staff system, there has to be

19 people trained to make the organisation work, and to have the headquarters

20 structures, the communication systems, and so forth, to transmit orders

21 and so forth. By and large, those all lay with the Bosnian Serbs and not

22 the Bosnia-Herzegovina forces.

23 Q. Particularly, when it comes to Sarajevo, did you know at all that

24 the fighters of the Sarajevo-Romanija Corps were exclusively people who

25 have been living for hundreds of years at the places close to their

1 positions. These were ordinary men who were -- who turned soldiers

2 because of the situation itself.

3 A. That doesn't surprise me. The whole basis of the army of the

4 former Yugoslavia was one for territorial defence, and it was built up

5 that way. So what you just said does not surprise me.

6 Q. Did you know that at that time, in addition to the sanctions

7 imposed by the international community on the army of Republika Srpska,

8 there were also sanctions in place imposed by the FRY as regards the

9 Bosnian Serbs. At the Drina, such sanctions were imposed in preventing,

10 first and foremost, any movement of any weapons?

11 A. I didn't know that, no.

12 MR. TAPUSKOVIC: [Interpretation] I wasn't able to progress much,

13 and I'm still with the transcript.

14 Q. You also had contact with Haris Silajdzic, who was a

15 representative of the Bosnian government, and this is in paragraph 8 of

16 your statement. You say you had meetings with him, which were the most

17 numerous on the eve of the initial NATO air-strikes in May. Did Haris

18 Silajdzic continuously demand from you that steps be taken in order to do

19 away from the embargo for the army of Bosnia-Herzegovina and to begin with

20 NATO bombardment of the Serb positions? Did he use any available

21 opportunity to stress that?

22 A. Not that I recall, no.

23 Q. Shortly after your meetings, indeed, we saw the first NATO

24 air-strikes against Serb positions, or is that a mere coincidence? Is it

25 related?

1 A. No. I wasn't meeting Silajdzic to discuss NATO bombing, no.

2 Later in that paragraph, I tell you why I meet with Silajdzic because he

3 is a part of an opposition, and it gives me a better understanding of

4 what's going on inside Bosnian politics.

5 Q. In paragraph 12, you mention General Mustafa Hajrulahovic, aka

6 Talijan. There you say he was a senior staff officer with the Bosnian

7 army; is that correct?

8 A. That's what I understood at the time, yes.

9 Q. In a document that I have in my hands, rather in the document, and

10 I received it from the archives of the Bosnia and Herzegovina army, there

11 is a piece of information concerning an event of the 5th of August,

12 1995 -- 1994. Do you remember what took place on that day, and did you

13 intervene concerning that incident? It concerns an air-strike of the 5th

14 of August, 1994, and this is what the gentleman, who drafted this report,

15 is telling us there.

16 It is 1994. I know you weren't there, but you prevented or put a

17 stop to an action, since you were the commander of NATO forces for

18 southern Europe. Is that so?

19 A. No. I don't know what you're talking about in August 1994.

20 Q. I will read it out for you.

21 He says in that report --

22 JUDGE ROBINSON: What are you reading and where from.

23 MR. WHITING: And if it could be shown to the witness and to us

24 also.

25 MR. TAPUSKOVIC: [Interpretation]

1 Q. There is no translation. It is General Mustafa Hajrulahovic

2 reporting on an event of the 5th of August. An air bombardment which was

3 prevented because -- it is a 65 ter document, number 01958 received from

4 the Prosecutor. And this was within the 65 ter batch, and the number is

5 01958?

6 JUDGE ROBINSON: Do you have copies for us, Mr. Tapuskovic.

7 MR. TAPUSKOVIC: [Interpretation] Unless, it is something else.

8 JUDGE ROBINSON: I'm just asking, do you have copies, as you

9 should, for the other side --

10 MR. TAPUSKOVIC: [Interpretation] I do, I do. But the reference

11 was wrong, Leighton Smith; where as, this is Mr. Rupert Smith. Therefore,

12 I will have to introduce this document when we have General Rose's

13 testimony. This is another individual, Leighton Smith. I apologise.

14 JUDGE ROBINSON: May I just stop you for a minute, though, to

15 discuss an administrative matter.

16 Mr. Whiting, the arrangement that was made yesterday was that

17 Mr. Hadzic would conclude his testimony at 1.00 p.m., from 1.00 to 1.45.

18 MR. WHITING: Your Honour, I may be wrong, it happens, but my

19 understanding was that the witness would be available from 1.00 on, in the

20 event that General Smith finished, but that he is available to finish his

21 testimony tomorrow. So if we could --

22 JUDGE ROBINSON: I didn't understand that. I thought that because

23 of his health you wanted to conclude with him today.

24 MR. WHITING: I can find out by e-mail. It will take about five

25 minutes. I will find out and I will report to the Chamber what the

1 arrangement is. I could be wrong. That was my understanding, but I could

2 be wrong. I wasn't involved in making the arrangements. I will find out.

3 JUDGE ROBINSON: Yes. We have time for one more question before

4 the break.

5 MR. WHITING: I have just gotten an e-mail. They're watching

6 outside the courtroom. Apparently, what I said is correct, the witness

7 could finish tomorrow. So if we could finish with General Smith today, we

8 would be really grateful.

9 JUDGE ROBINSON: Apparently, he would be.

10 Yes, let us continue.

11 THE INTERPRETER: Microphone for counsel, please.

12 MR. TAPUSKOVIC: [Interpretation]

13 Q. I have to open up a new topic since it has to do with paragraphs

14 16 and 21. Paragraph 16 speaks about Radovan Karadzic and his meetings

15 with General Rupert Smith.

16 JUDGE ROBINSON: If we're going to start a new topic, we will take

17 a break now and resume in 20 minutes. And when we resume, there are a

18 couple of administrative matters that I would like to raise before the

19 witness is brought in, just for five minutes.

20 We adjourn.

21 --- Recess taken at 12.21 p.m.

22 [The witness stands down]

23 --- On resuming at 12.43 p.m.

24 JUDGE ROBINSON: Mr. Whiting, you were to give me a report today

25 on the efforts being made to get Captain Hansen.

1 MR. WHITING: Yes, Your Honour. We have heard from him. He can

2 come on the date that we propose.

3 JUDGE ROBINSON: That's the 2nd of April.

4 MR. WHITING: Yes. And what I was planning on doing this

5 afternoon after court was putting this in a memo to Your Honours with the

6 details, but the answer is, yes, he can come.

7 JUDGE HARHOFF: And is there any news about the unknown UNMO.

8 MR. WHITING: No. I don't expect there to be news. That would

9 take a matter of weeks rather than days to get that person identified. We

10 have a name for that person; but to get any further information, I expect

11 is going to take more like weeks than days. We are going to -- as I

12 indicated, our information is that it's a Kenyan individual, and it is my

13 plan, in fact I may even try to do it today, to arrange a meeting with

14 Kenyan embassy to see if we can do anything to expedite the matters.

15 JUDGE ROBINSON: They should be able to identify him if was a

16 soldier.

17 MR. WHITING: Yes Your Honour. If I had a penny for every

18 "should," then I would be a rich man. It shouldn't be a problem, but our

19 experience in the past is that sometimes this can be very difficult. So I

20 will do everything I can, and as I indicated in my memo, if we are

21 unsuccessful in our efforts, we will certainly call on the Trial Chamber's

22 assistance.

23 JUDGE ROBINSON: Yes. Let the witness be brought in as quickly as

24 possible.

25 [The witness entered court]

1 JUDGE ROBINSON: Proceed, Mr. Tapuskovic.

2 THE INTERPRETER: Microphone for the counsel, please.

3 MR. TAPUSKOVIC: [Interpretation]

4 Q. In paragraph 21, paragraphs 16 and 21, you describe your meetings

5 and relationships with Radovan Karadzic and General Ratko Mladic.

6 First of all, let me deal with a documents tendered by the

7 Prosecution as their exhibits, P336. We'll start with that one. And if

8 we can -- if you could please at least look for a moment at page 1 of that

9 document.

10 MR. WHITING: I think have you to give him the 65 ter number,

11 because that's how the --

12 JUDGE ROBINSON: Give us the some more information.

13 MR. TAPUSKOVIC: [Interpretation] 65 ter 00089, entered as

14 Prosecution Exhibit P336.

15 JUDGE ROBINSON: But which one is that, Mr. Whiting?

16 MR. WHITING: It's the second document, Your Honour.

17 JUDGE ROBINSON: Thank you.

18 Yes, Mr. Tapuskovic.

19 Witness, it's the second document in the binder.

20 MR. TAPUSKOVIC: [Interpretation]

21 Q. Mr. Smith, you looked at this document. It's been signed by

22 Dr. Radovan Karadzic, commander-in-chief. Is that right?

23 A. Let me get to the back of it. Yes.

24 Q. Radovan Karadzic held the highest position in the army of

25 Republika Srpska. As President of the republic, he was the a commander in

1 chief of the VRS. Is that correct?

2 A. That was my understanding, yes.

3 Q. One of the subheadings in this document on page 1, item 1, it

4 reads as follows: "Main characteristics of the international military and

5 political situation."

6 Is that what is written here?

7 A. Yes.

8 Q. Did you find anywhere in this document any reference to any

9 announcement or any order to shell Sarajevo or to expose it to sniping?

10 A. No, I don't think I did, but let's just check.

11 Q. Well, then, if that case it will take you at least half an hour.

12 A. No. I can go to the bit that concerns this Sarajevo corps.

13 Q. Let me show it to you?

14 A. Page 11?

15 Q. Yes -- no.

16 JUDGE ROBINSON: Remember the pagination is different in the

17 B/C/S.

18 MR. TAPUSKOVIC: [Interpretation]

19 Q. Page 9 in the B/C/S version, and it refers precisely to the

20 Sarajevo-Romanija Corps.

21 In this passage, is there any reference to shelling and sniping on

22 Sarajevo?

23 A. No.

24 Q. If you read this carefully, does it constitute certain general

25 guidelines governing the operation of the VRS with a view to achieving

1 specific military goals?

2 A. Yes. It's a directive. It says it is in the covering letter by

3 General Milanovic.

4 Q. Can you please look at the beginning of the document, page 3 in

5 the B/C/S version, and perhaps page 4 in the English version. It refers

6 to the Muslim armed forces. Take a look at it, please.

7 A. Yes, it is page 4.

8 Q. Look at the last sentences of the first paragraph, which mainly

9 talks about launching counter-offensive actions, should NATO air force be

10 used.

11 A. Yes. It is discussing the use of NATO.

12 Q. Can you confirm that this document is dated the 8th of March,

13 1995, which is only one month after your arrival?

14 A. Yes. It's -- it comes in on the 8th of March, a bit more than a

15 month after my arrival, but, thereabouts.

16 Q. Can we now go back to the previous page, which refers to the

17 Muslim armed forces. You said, in paragraph 3, it says, "The BH army is

18 organised in six corps, 112 brigades, and 45 independent battalions,

19 artillery battalions, numbering approximately 270.000 men. They have

20 about 120 tanks, 80 APCs, 340 artillery pieces, 90 multi-barrel rocket

21 launchers, 230 light missile launchers, 1800 mortars, 450 anti-aircraft

22 guns, 700 anti-aircraft machine-guns, 200 anti-aircraft missiles stinger,

23 370 anti-armour rockets, 16 transport helicopters, and 17 sport and

24 agriculture aircraft."

25 During your stay and mission in Bosnia and Herzegovina, when

1 flying over this position, are you able to note at least approximately

2 the -- that there were as many men as stated here inside Sarajevo and

3 outside it, as well as all the weapons listed here.

4 A. I saw no evidence to support that amount of weapons even in little

5 bits. If that's correct, they were very well concealed.

6 JUDGE ROBINSON: Would that alter the answer that you gave to my

7 question as to the relative balance of power?

8 THE WITNESS: Yes. I -- I don't know, in my memory, have no

9 memory of that sort of concentration of weapons that I saw as I travelled

10 around in the possession of the Bosnia-Herzegovina army as a whole. I'm

11 not talking about inside Sarajevo. There was very little heavy weapons

12 inside Sarajevo.

13 THE INTERPRETER: Microphone for the counsel, please.

14 JUDGE ROBINSON: Mr. Tapuskovic, microphone.

15 MR. TAPUSKOVIC: [Interpretation]

16 Q. But you did say a while ago that it is possible that you did not

17 have an insight into the whole situation, provided these weapons were well

18 camouflaged, especially in the natural environment. Is that correct?

19 A. I would draw a distinction between inside Sarajevo and more

20 generally in Bosnian itself. In -- I am confident in saying that that

21 sort -- those sorts of weapons were not available in anything like those

22 numbers inside Sarajevo. If they existed outside Sarajevo, then I and my

23 command were not seeing them.

24 Q. I have to ask you something else. Wouldn't have been much more

25 easier for this heavy weaponry to be camouflaged, particularly inside

1 Sarajevo. Do you know anything about this, and do you allow for the

2 possibility that they were also we will camouflaged inside the city of

3 Sarajevo.

4 A. It is always possible that some might have been, but they were not

5 there in anything like those numbers. And I, from memory, I think there

6 were about two or three tanks, and they were in a weapon-controlled point

7 and were under my control. There was -- I don't think there was a single

8 artillery piece or artillery -- or rocket launcher inside Sarajevo. If

9 there was, it was one or two of artillery pieces, that's all.

10 Q. Do you know that during the offensive in mid-June, which you say

11 lasted only three days, most of the weapons listed here was being used on

12 the front lines dividing the Serbian forces and the Muslim forces. Do you

13 know anything about that?

14 A. My memory was they were not being used. Those weapons in those

15 quantities were not being used on -- in that attack.

16 Q. Since you spent time in Sarajevo and probably flew over Sarajevo

17 in a helicopter or in any other way, can you read anything from this map

18 here behind you about the demarcation lines, since you're a military

19 person.

20 A. Yes. I can recognise where I am.

21 Sorry. Is that already for the microphone?

22 THE INTERPRETER: Microphone for the counsel, please.

23 JUDGE ROBINSON: Mr. Tapuskovic, microphone.

24 MR. TAPUSKOVIC: [Interpretation]

25 Q. Can you explain to the Chamber the significance of the blue lines

1 and of the red lines, to your knowledge?

2 A. To my understanding, the blue line is the Bosnian forward

3 defensive line and the red the Bosnian Serb forward defensive line. The

4 yellow marking, in the narrow a bit, is the airfield, and Sarajevo is, I

5 think, it's marked IK on the inside of the small pocket that can you see

6 enclosed in red. The high ground of Igman is in the south-west of the --

7 of the map.

8 Q. Since you spoke about this, it was -- you said that it was common

9 knowledge that the tunnel was used for exiting Sarajevo. Did you know

10 that the BH army used this tunnel to take up positions outside of

11 Sarajevo, the positions marked with blue?

12 A. I knew the tunnel was used by their military. In which direction

13 people were being moved, I don't know necessarily, unless one learnt it by

14 some other means.

15 Q. You know that the June offensive engulfed all the demarcation

16 line. Do you know that on all these positions, blue positions as well as

17 inside Sarajevo itself and along all these markings, attacks were launched

18 with several BH corps with a considerable amount of weaponry?

19 A. I know that that attack occurred. The one that I could observe --

20 or those attacks occurred, and I apologize. The attack one that I

21 observed, because I was there, was mounted out of Sarajevo.

22 Q. Excuse me, I didn't understand you. You were observing the

23 conflict along these outer lines or in Sarajevo itself?

24 A. No. I was inside Sarajevo.

25 Q. Thank you. In any case, this document, P336, was something that

1 was primarily the duty of the VRS commander, and that is General Mladic.

2 He would be the first in line to comply with this, wouldn't he?

3 A. We're talking of this directive. Yes. This is his Chief of Staff

4 passing it on to his corps commanders.

5 Q. Yes. But this directive should have been implemented, first and

6 foremost, by General Mladic.

7 A. Indeed. He is -- it's the same headquarters that's initiating the

8 document as his headquarters.

9 Q. If that is the case, then the next document that I would like to

10 show you is 65 ter 02267, admitted as P33. Can you see it?

11 A. Yes, I have it.

12 Q. Is that a decision passed by General Mladic based on the directive

13 received from the commander-in-chief, Mr. Karadzic?

14 A. Yes.

15 Q. Can you please turn to next page. And, generally speaking

16 throughout this document, can you tell me is there any reference at all to

17 an order being issued to shell Sarajevo, to open sniping fire in the

18 period after the 31st of March. Is there any mention of that at all?

19 A. No. But I'm just trying to be sure, because I can't find -- he's

20 writing specific instructions. Where is the --

21 Q. Can you please look at tasks of the army of Republika Srpska. I'm

22 not going to read all of it. It just said to defend the territory of

23 Republika Srpska. Is that what it says? That's is at the very beginning?

24 A. At the beginning, yes. I was trying to find the specific

25 instructions to the corps, Sarajevo-Romanija Corps, and I couldn't.

1 MR. WHITING: It's on page 6, if it's of assistance, 5.5.

2 A. Ah, there it goes. And all he is doing is telling the corps

3 commander to carry out the task given in the directive number 7 that he

4 has already received.

5 MR. TAPUSKOVIC: [Interpretation]

6 Q. After that, would it be fair to say that General Mladic issued

7 ordered to all corps, including the Sarajevo-Romanija Corps; that is to

8 say, to General Dragomir Milosevic, in the spirit of the decision?

9 A. Yes. This is the -- this is the order -- this is him doing this,

10 in this order.

11 Q. Mr. Smith, let us now move to paragraph 21 where you talk about

12 your meetings with General Ratko Mladic. I'm not going to read the whole

13 passage but, if necessary and if Chamber so desires, I would gladly

14 oblige.

15 So close to the beginning, you say as follows: "Mladic was --

16 Mladic is a soldier first and a politician second."

17 What did you mean by that?

18 A. Well, it goes back to an earlier answer. When you are functioning

19 at this very senior level, inevitably, what you are doing is political,

20 and the point I was trying to make there was that he saw himself in the

21 first instances as the soldier.

22 THE INTERPRETER: Microphone for the counsel, please.

23 Q. "And that he never gave a thought to draw any political profit

24 from his actions."

25 A. Are you asking me that as a question?

1 Q. Yes.

2 A. No, I'm not saying that. He clearly did have political views.

3 But when deciding how to act and so forth, he saw his primary

4 responsibility to be that of military, not of the political.

5 Q. You might say different if you deemed so, but you say here that he

6 was --

7 THE INTERPRETER: Could the counsel please indicate which part of

8 the passage he is reading.

9 JUDGE ROBINSON: Mr. Tapuskovic, what part of the passage are you

10 reading? Please indicate for the benefit of the interpreter.

11 MR. TAPUSKOVIC: [Interpretation] Paragraph 21, towards the end

12 where it says -- where General Smith says, "He was brave and resolute and

13 remained rational and in control under pressure. I believe he was driven

14 by a single overreaching aim of the defence of the Bosnian Serbs and all

15 else was to be subordinated to the achievement of this aim."

16 This is what you said and this is what your assessment and view

17 was, based on your meetings with him.

18 A. Yes. I agree with that.

19 MR. TAPUSKOVIC: [Interpretation] Can we please look at document 65

20 ter 00042, Prosecution Exhibit P342.

21 Q. It's a telephone conversation between yourself and Mladic of 28th

22 May, 1995.

23 In paragraph 1, you said that he demanded that all flights of NATO

24 transport aircraft be suspended. That was the practice that prevailed in

25 the days before that. Is that what he demanded?

1 A. That he demanded the cessation of all NATO combat and transport

2 flights. Is that what you're referring to?

3 Q. Yes.

4 A. Yes, that is what he demanded.

5 Q. But let me draw your attention to the very end of this

6 conversation, i.e., paragraph 12 of your telephone conversation, and it

7 read as follows. "General Smith said that he was not in command of NATO

8 forces nor did he correct their actions. Mladic said he knew this to be a

9 lie as into the could not act without his request. General Smith said

10 that was absolutely correct. He was one of those responsible for

11 recommending an attack, but he did not command NATO forces."

12 Is it true that this is what you said in this telephone

13 conversation, i.e., that you were not the person commending NATO forces?

14 A. That is correct.

15 Q. Who was commanding then if you commanded UNPROFOR? When you made

16 your decisions, who was in command, especially when we talk about the

17 initial stages of air-strikes after Markale?

18 A. The command of the NATO force rested with NATO commanders. One

19 of whom was Admiral Leighton Smith. He was at Naples. This chain of

20 command all the way up to the North Atlantic Council in Brussels. I was

21 in the UN chain of command.

22 Q. On the 28th of August, 1995 --

23 JUDGE ROBINSON: Down it goes for the second time.

24 MR. TAPUSKOVIC: [Interpretation] There goes my Defence case.

25 JUDGE ROBINSON: I hope not.

1 But, Mr. Tapuskovic, how is the command structure of NATO

2 relevant?

3 MR. TAPUSKOVIC: [Interpretation] Your Honour, I was about to get

4 there.

5 Q. On the 28th of August, in the evening, you ordered that NATO

6 aircraft be put on ready for an attack on Serbian positions. That was the

7 same day of the Markale 2 incident. That is what is in your statement. I

8 can refer you to it, if you wish, and I was about to come to that. On the

9 28th, you decided --

10 [Trial Chamber confers]

11 JUDGE ROBINSON: I still don't see the relevance. What if there

12 was an order for NATO aircraft to be put on the ready for attack on

13 Serbian positions on the same day as the Markale incident, is it a part of

14 your case that NATO aircraft was responsible for the Markale incident?

15 MR. TAPUSKOVIC: [Interpretation] No. Rather, that even before it

16 was established what took place on Markale, because on the 28th there was

17 still no knowledge of it - and we may go back to that report - and no

18 final investigation was made as regards Markale 2, still there was an

19 order to carry out that and to employ NATO aviation.

20 JUDGE ROBINSON: So what you're say is that NATO pre-determined

21 the question of responsibility for Markale 2.

22 MR. TAPUSKOVIC: [Interpretation] Yes. And that even before the

23 conclusion of investigation, General Smith, who did not have any say in

24 it, goes on with the bombardment which followed the day later, and I have

25 proof of that, that I was about to put forth once I have reached the

1 Markale stage.

2 JUDGE ROBINSON: I'm still not seeing the connection to the

3 question of the liability of the accused, even if NATO did make that

4 pre-determination.

5 MR. TAPUSKOVIC: [Interpretation] General Dragomir Milosevic is not

6 responsible for the massacre at the flea market on the 28th, and I intend

7 to show that before this Bench. Still that incident was used for massive

8 bombardments which lasted for days on the Serbian military positions,

9 which resulted in many civilian victims. And it is our position that the

10 whole activity that followed was not based on the -- on anything that was

11 done by the Serb forces and that took place at Markale; rather, it was

12 done by the army of Bosnia-Herzegovina.

13 JUDGE ROBINSON: I see. The connection appears to be tenuous, but

14 continue.

15 [Trial Chamber confers]

16 MR. TAPUSKOVIC: [Interpretation] I'm being reminded by the members

17 of my team that the part when I said that NATO sided with the army of

18 Bosnia-Herzegovina that that part is missing from the transcript. That is

19 why I wanted to repeat that.

20 Q. In paragraph 24, you talk about the fact that Croats were

21 advancing in the southern part of the Bosnia-Herzegovina. In the last

22 sentence you say, in the last sentence of that paragraph you say: "The

23 Bosnians had also used the air strip at Tuzla for light aircraft at night,

24 which caused a degree of friction when NATO and the United Nations."

25 Therefore, you allowed sorties of the Bosnian army; is that

1 correct?

2 A. No. The paragraph, and in particular the last sentence of

3 paragraph 22 that you refer to, is that by our own observations and by

4 complaints from General Mladic we were aware that some light aeroplanes

5 were using this air strip. The control of the no-fly zone was the

6 business of NATO, and they were saying this was not happening. We were

7 not -- these flights were not occurring. And we were saying we could see

8 them and that was the friction that was being caused. We were certainly

9 not allowing them.

10 JUDGE ROBINSON: Just a minute.

11 [Trial Chamber confers]

12 JUDGE ROBINSON: Mr. Tapuskovic, you want the to clarify that you

13 had said that NATO was acting in collusion with the BH army.

14 MR. TAPUSKOVIC: [Interpretation] I said that although my teammates

15 are telling me that it wasn't reflected in the transcript. I intended to

16 show that during my cross-examination.

17 JUDGE ROBINSON: Never mind. I am saying that your case becomes

18 more understandable as to the relevance of the NATO attacks coming even

19 before the issue of responsibility had been determined. I'm saying that I

20 understand your case now. I mean, whether the evidence bears it out is

21 another matter. But I said let's see the relevance if your case is that

22 NATO was in collusion, was in collaboration with the BH army.

23 Go ahead.

24 MR. TAPUSKOVIC: [Interpretation] That, too, yes.

25 But to go back to paragraph 24, you literally state the Bosnians

1 had also used the air strip at Tuzla for light aircraft at night. You

2 knew expressly that the Bosnians use the Tuzla air strip for night

3 flights. Do you deny that now?

4 A. No, I'm not denying it.

5 Q. Thank you. You know that the army of Bosnia-Herzegovina had

6 another air strip at Visiko, and they flew from there as well for military

7 purposes?

8 A. I discovered that much later. In fact, I think in September.

9 Q. Uh-huh, you found it out, okay. I didn't hear that.

10 But in the sentence before you said: "The Bosnian army was making

11 open preparations to fight on in the spring."

12 Therefore, at that time you were already familiar with their

13 preparations?

14 A. In no detail, but I knew they were preparing, yes.

15 Q. In paragraph 27, when talking about a meeting with General Mladic,

16 you said that: "It became apparent that the Bosnian Serbs had decided

17 that war was inevitable."

18 Is that so?

19 A. Yes.

20 Q. I'm asking you this: They knew it was inevitable because the army

21 of Bosnia and Herzegovina incessantly prepared for an offensive. They

22 were getting ready to respond, should such a offensive take place. Can we

23 say that?

24 A. Yes, you can.

25 Q. In paragraph 29, when Mladic complained to you of the sanctions

1 imposed for the Bosnian Serbs, wasn't he actually asking that UNPROFOR be

2 even-handed in the treatment of both sides so that the Serb side could

3 also get some food and other supplies? Was that the thrust of his

4 request, that UNPROFOR change it's strategy somewhat, so as not to only

5 assist only the Bosnian side and to forward some of the humanitarian aid

6 to the Serb side as well, as you continue mentioning in paragraph 30.

7 A. No. In the first paragraph, he is -- wanting to see that the

8 sanctions are lifted, and the sanctions were not about humanitarian aid.

9 The sanctions were all about the supply of weapons and so forth. The

10 second paragraph deals with humanitarian aid, and humanitarian aid is not

11 part of a sanctions regime. And it is delivered to those in need, and

12 those in need were in the enclaves. It is two quite separate issues.

13 Q. Weren't the Serbs, particularly at the Sarajevo positions, in an

14 enclave of sorts and a quite rigorous one too, as we can see on the map

15 that just collapsed?

16 A. And there was a substantial aid programme supporting that -- or

17 those enclaves.

18 Q. In paragraph 38, you mention a plane that was hit by the Bosnian

19 Serbs. I saw no proof, no pieces of evidence that it was done by the

20 Serbs. It was done by Dobrinja, and Mojmilo was there overlooking the

21 airport in the hands of the Muslim. What proof can you put forth that the

22 Serbs did that, when that hill was in the hands of the Muslims.

23 A. At this stage, I can give you no proof at all.

24 JUDGE ROBINSON: But you do say that subsequent investigations

25 proved beyond a reasonable doubt that the aircraft was engaged by a

1 Bosnian Serb heavy machine-gun.

2 THE WITNESS: Indeed, and I believe that was the case. But my

3 ability to prove it now, I can't do that for you, nor I do think this was

4 a matter of contention at the time. This was agreed by Mladic when it was

5 complained about that this had been their people -- his people who had

6 fired.

7 JUDGE ROBINSON: Yes.

8 JUDGE MINDUA: Excuse me. And what was the reason for the firing

9 of this aircraft?

10 THE WITNESS: I'm not sure that we ever properly understood that.

11 I think it was one of the small aeroplanes that was used by Akashi, and I

12 have a suspicion this was as much to frighten him as anything. But I

13 can't -- that is purely another suspicion rather than anything I can

14 prove.

15 JUDGE ROBINSON: There's a United Nations convention which is

16 devoted to the protection of UN personnel, and this attack would have been

17 in breach of that convention.

18 MR. TAPUSKOVIC: [Interpretation]

19 Q. You said what Judge Robinson said. You confirmed beyond any

20 reasonable doubt where the fire originated from, but you said you have no

21 proof of it. For the first time, however, you say now that Mladic

22 admitted that. Who did he admit it to, when, and where?

23 JUDGE ROBINSON: No, it's not the first time he has said so.

24 THE WITNESS: I said that --

25 JUDGE ROBINSON: He said that during examination-in-chief.

1 MR. TAPUSKOVIC: [Interpretation] About the plane?

2 JUDGE ROBINSON: No, no. That subsequently Mladic conceded that

3 the attack was done by the Serbs.

4 MR. TAPUSKOVIC: [Interpretation] Who did he admit it to? You know

5 that an admission is no evidence in and of itself.

6 JUDGE ROBINSON: Let the General explain again how that concession

7 or agreement was made.

8 THE WITNESS: After this event, if it wasn't me, it was Akashi's

9 staff, but we were all together at the time, complained of this event,

10 protested about it. And my memory is that it was acknowledged by Mladic

11 and the Bosnian Serbs that this had been their action, that it had been

12 them that had fired on the aeroplane.

13 MR. TAPUSKOVIC: [Interpretation]

14 Q. As far as I know, Mladic wouldn't talk to just anyone. Judging by

15 the documents, I could see these were mostly reputable people and UNPROFOR

16 officials, high officials. It could have been a conversation with a

17 junior officer. Who did he admit that to? He could have talked to you or

18 to Nicolai. Who did he acknowledge it to? Perhaps you can tell us

19 something that can be taken into account by the Bench.

20 A. I think it was immediately after this event this complaint went in

21 and -- after all, it was Mr. Akashi and his officials who were in the

22 aeroplane, as was I, when it was hit.

23 Q. I wasn't asking you that. I'm not disputing that. I'm asking you

24 about a very important matter.

25 General Mladic took great care of what he was saying and who he

1 was talking to. Who did he concede it to, so as to enable us to take

2 judicial notice of that, something that may help the Bench make their

3 conclusions?

4 A. I don't recall.

5 MR. TAPUSKOVIC: [Interpretation] I'm trying to skip over a number

6 of things.

7 Q. Yes, paragraph 60.

8 MR. WHITING: Your Honour, if I may. I do take note of the time

9 and I am just wondering if it's possible to finish with the witness

10 today. I know I shortened my direct examination - I dropped half of the

11 documents I was planning on using - to try to expedite matters. I think

12 that, in my respectful opinion, that the cross-examination has spent a lot

13 of time on areas outside the indictment. It seems to me that --

14 JUDGE ROBINSON: That's not for to you say, Mr. Whiting. We're in

15 charge of the court, and if any question had been asked which is improper

16 then we would have disallowed it. You must come on another basis.

17 MR. WHITING: I'm not saying that they were improper. All I'm

18 saying is there's been enough time to for cross-examination.

19 JUDGE ROBINSON: That's for us to determine.

20 MR. WHITING: Of course. Of course. I can only make a

21 suggestion, and that's all I'm trying to do. I'm just trying to raise the

22 matter. Of course it's in Your Honours' determination --

23 JUDGE ROBINSON: We have that in mind. We may be able to continue

24 for maybe 10 or 15 minutes, but there is a case in this courtroom this

25 afternoon.

1 Mr. Tapuskovic, how much longer will be?

2 MR. TAPUSKOVIC: [Interpretation] Your Honours, I skipped at least

3 20 or 30 paragraphs now. I'm doing my best --

4 JUDGE ROBINSON: Well, you're not obliged to ask a question on

5 every paragraph.

6 MR. TAPUSKOVIC: [Interpretation] I know that. But virtually each

7 and every paragraph is important. I'm now choosing the most important

8 ones. I was told I was going to have three hours at my disposal for my

9 cross-examination. Believe me, it is the minimum amount of time for me to

10 go through all the issues that I must open.

11 JUDGE ROBINSON: The court deputy, I understand, has the ...

12 [Trial Chamber and registrar confer]

13 [Trial Chamber confers]

14 JUDGE ROBINSON: Well, the Chamber will consult on this matter.

15 [Trial Chamber confers]

16 JUDGE ROBINSON: We have a difficult situation in terms of

17 logistics. The counsel for the Defence has used just under two hours. He

18 was allocated three hours. Bear in mind that I think five hours had

19 initially been set aside for this witness.

20 We could sit longer but the courtroom is not available. We could

21 longer because Judge Mindua is not sitting this afternoon, and it seems

22 therefore that in the interests of the proper administration of this case,

23 Sir Rupert will either have to come tomorrow or come at another time if

24 tomorrow is not convenient.

25 May I inquire from you, General, whether you are available for

1 tomorrow or would some other time be --

2 THE WITNESS: I have to be in Brussels tonight to sign a document

3 if nothing else. I am -- it would take me a couple of telephone calls to

4 find out how easy it is to then get on a train and get back here.

5 JUDGE ROBINSON: I can tell you because I take the train all the

6 time. It leaves from Holland Spoor five minutes after the hour.

7 THE WITNESS: No, no. It was freeing myself up at some other end

8 and thus making some other arrangements. Does the Court sit on Fridays?

9 JUDGE ROBINSON: This Friday, no, we're not sitting. No, we're

10 not sitting this Friday.

11 JUDGE HARHOFF: Could be back tomorrow morning.

12 THE WITNESS: I will try. We need a couple of telephone calls to

13 establish. It's delivering this document and so on and so forth. It's a

14 purely personal matter but have I to go and sign it, and getting it in the

15 right hands to get back on the train and get back up here.

16 JUDGE ROBINSON: We'll leave that to you to sort out and you will

17 inform the Prosecutor.

18 THE WITNESS: Yes.

19 JUDGE ROBINSON: In any event, we will resume tomorrow at 9.00

20 a.m. We will resume either with you or with Mr. Hadzic, because we have

21 to give counsel for the Defence reasonable time in which to conclude his

22 examination.

23 MR. WHITING: Your Honour, I appreciate that.

24 I do note that just looking at the calendar that courtroom I is

25 free from -- after 3.30 this afternoon it appears.

1 JUDGE ROBINSON: We made an inquiry and were told no courtroom was

2 available.

3 [Trial Chamber and registrar confer]

4 MR. TAPUSKOVIC: [Interpretation] Your Honours.

5 JUDGE ROBINSON: Yes. I understand that courtroom I is available

6 at 3.30 because the case finishes at that time, but will it finish?

7 Mr. Tapuskovic.

8 MR. TAPUSKOVIC: [Interpretation] We need to have in mind the mere

9 physical ability to do all this. Now I have to wait for an hour and a

10 half, although I have spent the whole day on my feet. I will do that if

11 ordered, but I believe it would be much more convenient for General Smith

12 to return another day. But, of course if I'm ordered to do so, I will

13 wait for an hour and a half.

14 JUDGE ROBINSON: If we can meet at 3.30, we will meet at 3.30.

15 You are a young, strong man, Mr. Tapuskovic. You can't plead infirmity.

16 MR. TAPUSKOVIC: [Interpretation] I'm 70 years old, Your Honour.

17 JUDGE ROBINSON: 70 years young.

18 MR. WHITING: My guess is since the last case finishes at 3.30, my

19 guess is that we would could only start at 4.00, because ordinarily they

20 need a gap to load the tapes and so forth.

21 JUDGE ROBINSON: I'm worried knowing how the how the law courts

22 run here. Will they finish at 3.30?

23 MR. WHITING: Well, in that case, they have been sitting from 9.00

24 in the morning in that case. It's an all day and so I would except that

25 they will be done by 3.30.

1 JUDGE HARHOFF: In that case, if we were to sit from 4.00 to 6.00

2 this afternoon, would that enable you to get to Brussels in time?

3 THE WITNESS: That would suit me best of all.

4 JUDGE ROBINSON: Well, we will adjourn and resume in Courtroom I

5 at 4.00.

6 --- Break taken at 1.48 p.m.

7 --- On resuming at 4.01 p.m.

8 JUDGE ROBINSON: General, of course, you remain subject to the

9 declaration that you made.

10 Mr. Tapuskovic, please continue.

11 MR. TAPUSKOVIC: [Interpretation] Your Honours.

12 Q. General Smith, let me first ask you a few things about your

13 meeting with Karadzic on the 5th of April, 1995. That's 65 ter 009,

14 Prosecution Exhibit P339.

15 A. I don't have any of those documents. Thank you very much.

16 009. Yep, I have that one.

17 Q. That's your meeting with Karadzic on the 5th of April; and in item

18 2, there's mention of what -- of the items and issues that you dealt with,

19 and I would like to hear something about item 3, which says: "General

20 Smith pointed out his serious concerns with some recent actions attributed

21 to the BSA; specifically, these were an increasing number of attacks on

22 safe areas and breaches of the total exclusion zones."

23 Do you remember discussing this?

24 A. I remember the meeting, yes.

25 Q. And further on, you said that generally speaking these actions

1 contributed to raising -- rising tensions. Is that correct?

2 A. Yes.

3 Q. And then you added the following, that eventually you would be

4 compelled to respond by NATO air-strikes and that this would not be in the

5 interests of the Bosnian Serbs. Again, so you reiterated as early as on

6 the 5th of April that the Serbian side would be subjected to NATO bombing,

7 if they continued to behave as you described in your conversation with

8 Mr. Karadzic?

9 A. Yes, if they continued to attack safe areas and breach the

10 exclusion zones.

11 Q. Were you aware, based on Karadzic's statement, that these

12 exclusion zones were often abused, that the BH army left these zones and

13 attacked civilian places, especially in the area of Srebrenica, and that

14 was committed particularly by Oric. Are you aware of that?

15 A. The exclusion zones were the exclusion of the use of heavy

16 weapons. They weren't in themselves exclusions to combat as such. And I

17 was aware that the Bosnian forces were operating outside and from out from

18 the safe areas, such as Srebrenica.

19 Q. And if the Serbian forces would respond to that, was it really

20 necessary to threaten them immediately with NATO strikes, if they didn't

21 have any other option than at that protect the civilian population, and

22 that is what Karadzic said, if I understand it correctly, what you

23 discussed in this meeting?

24 A. I don't remember, and I don't think it's said that that paragraph

25 3, the civilian population as such. My point was that the exclusion zones

1 were being breached and the safe areas were being attacked, and that was

2 something that NATO air-strikes was supposed to be called upon if that

3 continued.

4 Q. Therefore, NATO air-strikes were not an option when exclusion

5 zones were abused and left in order to attack Serbian positions and most

6 of all Serbian civilians. NATO was not necessary in these situations, was

7 it?

8 A. No. The exclusion zone was that were no heavy weapons to be used

9 within that zone, and the heavy weapons were collected in the weapon

10 collection points. That was an exclusion zone. The attacks on civilians

11 occur -- the point of the exclusion zone was to limit a type of weapon,

12 rather than to specifically prescribe the attacks on civilians. That is

13 prescribed by the Geneva Conventions.

14 Q. In paragraph 4, which talks specifically about safe area, reads:

15 "General Smith explained that as an UN commander he had to ensure that

16 mandates on safe areas were applied, and that those instructions connect

17 him to the employment of NATO air power if safe areas are attacked."

18 What was basically what you are claiming?

19 A. Yes.

20 Q. And then you went on to say: "Karadzic clearly views the SAs as

21 BH strongholds. He made it quite clear he views the application on the SA

22 mandate as illegal in international law."

23 Is that what he said?

24 A. That is what we understood him to be something and my -- I don't

25 have the back page, but I this is Colonel Baxter's report of my -- of this

1 meeting.

2 Q. Did he also say on that occasion that in his view the safe area

3 and exclusion agreements were being breached by the BH army? Was that one

4 of his claims?

5 A. Yes. Yes, he said that.

6 Q. And for an area to be considered a safe area, wasn't it necessary

7 for this area to clear from all troops, weapons, and other things in order

8 for them to be proper safe areas? Wasn't that the essence of the Security

9 Council resolution and decision, was it not the essence of

10 demilitarisation which was then followed by the establishment of a safe

11 area?

12 A. No. I don't think that was the essence or the actual words of the

13 Security Council resolution.

14 Q. I do not wish to argue with you. I only believe that if something

15 is to be considered a safe area, all and any weapons should be removed

16 from it in order for it to be a real safe area, and it especially must not

17 be abused to launch any military actions?

18 A. That may be, but that isn't what, in practice, those safe areas

19 were. And, as I say, I don't think the Security Council resolution fits

20 that last sentence -- or penultimate sentence, I'm sorry, in paragraph 4.

21 Q. According to General Nicolai, every boy in Sarajevo had a pistol,

22 and there were between 50 and 60.000 men under arms in Sarajevo throughout

23 the whole period relevant for the indictment against General Milosevic.

24 Were you aware of that?

25 A. No. And I don't think -- and I wouldn't agree with the assertion

1 that every boy had a pistol or that there were that number of armed men

2 inside Sarajevo.

3 Q. Thank you. I'm talking solely about the period relevant for the

4 indictment and the liability of General Milosevic for the incidents in and

5 around Sarajevo. But you say that this was not the situation as I

6 described it?

7 A. You told me that General Nicolai had said something. I don't

8 agree with what you said General Nicolai said.

9 Q. Thank you. Item 9 of the record of your meeting with Karadzic:

10 "Bosnian Serb counter-offensive: Karadzic was at pains to point out the

11 decision had been taken to start a counter-offensive. General Smith

12 probed Karadzic on the form that offensive would take."

13 Was that how it happened?

14 A. Yes. I was very interested to know what he was going to do.

15 Q. Did Karadzic reply to you by saying that there will be a

16 counter-attack only if they were attacked; otherwise, they would not mount

17 any offensive unless they were attacked? Was that -- was that correct?

18 A. What it says there is they would counter-attack where they have

19 been attacked. It wasn't -- it was about the location, not if.

20 Q. You already mentioned here that the preparations for the BH army

21 offensive were under way and that it was mounted on the 5th of June, 1995,

22 as far as Sarajevo was concerned. Is it true that they mounted this

23 offensive?

24 A. Yes.

25 Q. And the Serbian side responded to this offensive; is that right?

1 A. That is correct, yes.

2 Q. In paragraph 59 of your statement, you say that you met General

3 Delic in Zenica on the 24th of May; then you said it was a useful meeting

4 to gain an insight into Delic's views on the military situation and to get

5 a feel for his military intentions. Is that true?

6 A. Yes.

7 Q. Did General Delic tell you at the time that they had been already

8 preparing this offensive, that there was -- nothing that will come out of

9 any peaceful agreement, and that they already had military intention?

10 A. The -- the detail of his -- I don't remember how much he told me

11 as to their preparations and to some extent I already, as you've heard,

12 had observed them; and not so -- not for the attack in specifically an

13 attack in Sarajevo, but the general opening up of the offensive and we'd

14 seen this as early as March.

15 I'm sorry. I forgot you asked two questions then and I've

16 forgotten the second one.

17 Oh, yes. It was whether he had come out of any peace -- yes. I

18 don't think -- again, my memory is that he didn't -- it wasn't so much

19 that nothing would come out of negotiation. It was that the -- his

20 business was only the military. It wasn't his business to do negotiation.

21 Q. Thank you. In paragraph 60, you talk about the following: "At

22 this stage, the Bosnian Serbs shelled Sarajevo on a regular basis with up

23 to three missions conducted per day. The principal targets areas were the

24 old town, the Jewish cemetery, the PTT building, and the Bosnian army

25 barracks opposite Tito barracks and the area between the Residency and the

1 UN barracks at Zetra stadium. Is that correct?

2 A. Yes.

3 Q. But then you added the following: "The provocation was not always

4 obvious, but it was clear that the Bosnian army were shelling Serb

5 positions from within the city on a regular basis."

6 Was this also true?

7 A. Yes.

8 Q. So if we're talking about provocations, that means that BH army

9 opened fire first and then the Serbs would respond with three missions a

10 day?

11 A. The -- I think we should understand that as two answers to

12 possibly two questions. It doesn't follow that every incident is a result

13 of the provocation. I -- I'm not suggesting there, I don't think, from

14 when I gave that statement that -- or answered that question that the only

15 cause of the shelling by Bosnian Serbs was a provocation by the Bosnians

16 on the inside, or vice versa, for that matter.

17 Q. I paid particular attention to the words you used in this part of

18 your statement whereby you said that: "They regularly shelled Serb

19 positions." Can you explain to me what this "regular shelling" actually

20 means in your words.

21 A. I think I meant - again when I said that - this was occurring

22 sufficiently that -- often that one could expect it to be happening during

23 that period. Whether this meant two a day, one a day, I don't know, and I

24 suspect that's why in the subsequent sentence I'm saying that they -- you

25 know, if you want the details we'll have to go to the reports of the

1 sector and the situation reports.

2 Q. In paragraph 61, well, there we come to a very important problem.

3 You say that: "On the 24th of May, fighting flared again in the Sarajevo

4 area." When you say "fighting," does that mean that there were actions on

5 both sides?

6 A. Yes.

7 Q. Mr. Smith, do you know anything at all about the victims of the

8 bombardment concerning Sarajevo on the Serb side among their soldiers and

9 civilians? Or perhaps you did not have any proper information on that.

10 A. No, we did have information. I don't remember it now, I don't

11 have it to my hand, but we did have an understanding of what was going on

12 both sides of the confrontation line.

13 Q. In the next sentence of paragraph 61 you say: "The BSA removed

14 weapons from the weapon collection points and failed to return them."

15 Is that correct?

16 A. Yes.

17 Q. And then you go on by saying: "I issued an ultimatum to

18 re-establish those."

19 Is that so?

20 A. Yeah, to re-establish the exclusion zones, yes.

21 Q. And then you say: "This was ignored and on the 25th of May NATO

22 bombed the Pale ammunition depot."

23 My question is this: Although we cannot see from this that the

24 Serb side did anything other than moving their weapons outside the

25 exclusion zone, they were immediately punished by the bombing of Pale by

1 NATO aircraft. Is that so?

2 A. Yes, because they had not put them back again, which is what they

3 had been told to do.

4 Q. Couldn't you have waited to see what will happen, because if there

5 was fighting again, it is naturally then one contemplates a military

6 action in order to protect themselves from what may be coming their way.

7 A. No, I didn't and couldn't have waited. I had given my ultimatum

8 and they didn't do what I said they were to do, and so the bombing

9 started.

10 JUDGE ROBINSON: What were weapon collection points?

11 THE WITNESS: In -- we have to go back about a year into --

12 sometime in the early part of 1994. The -- the into the no-fly zones had

13 been established, but this was -- there was still attacks into the safe

14 areas using heavy weapons and various exclusion zones were declared around

15 the safe areas and from which all heavy weapons were to be withdrawn into

16 weapon collection points, where they were to be monitored by UN forces.

17 If they left the weapon collection point, then the -- there was an

18 injunction that you called in NATO in response to that action.

19 JUDGE ROBINSON: Yes, Mr. Tapuskovic.

20 MR. TAPUSKOVIC: [Interpretation]

21 Q. Once the 24th passed, or rather, the 25th, the very next day you

22 again shelled the positions of the BSA, again at Pale, although something

23 occurred in the meantime in Tuzla, but right away you went on to bomb Pale

24 yet again. Can you explain that to me?

25 A. Yes. There's -- the ultimatum had still not been obeyed and,

1 again at my request, NATO bombed a second time.

2 Q. The very same day, when the thing in Tuzla happened; isn't that

3 correct?

4 A. No. It was the -- in the following day. If my memory is correct,

5 the shelling of all the safe areas, not only Tuzla, occurred on the

6 evening of the 24th.

7 Q. It was a shell --

8 A. I beg your pardon. I've got my days one whole day out. It's the

9 25th that the bombing was on. My memory is it was the evening of the 25th

10 that the Tuzla and the safe areas are shelled and the second lot of

11 bombing is on the 26th. My apologies. I was a day -- a day wrong in my

12 memory.

13 Q. What the actual situation included with a single shell; is that

14 correct?

15 A. In Tuzla, you mean? It was a single shell that did the killing,

16 as I remember it. It was -- there was more than one in the cell there.

17 Q. However, claims were made that that shell hit Tuzla but the

18 problem was the actual distance. What was claimed -- what was that -- the

19 distance was that of several hundred kilometres. What you can tell us

20 about the actual distance that the shell had been fired at Tuzla?

21 A. 700 kilometres from where?

22 Q. What was the distance that the shell came from killing those

23 innocent people?

24 A. I don't know, but it isn't 700 kilometres.

25 MR. TAPUSKOVIC: [Interpretation] It seems that the transcript is

1 erroneous. I said "several," not "700."

2 Q. But what was the figure, because according to the information I

3 have, there was quite a distance from the place where that shell was fired

4 to the place where it actually landed, killing people?

5 A. I don't know the distance it was fired.

6 Q. And immediately you ordered NATO air-strikes, which were

7 implemented and Pale was bombed, even in its residential quarter?

8 A. First of all, I didn't -- the second air-strike was not a

9 consequence of the attack on Tuzla; however much, that was an attack on a

10 safe area. The attack on the -- the second bombing at Pale was a

11 continuation of the previous engagement on the basis of the ultimatum over

12 the weapon collection points, first of all. And secondly, we did not

13 attack the residential quarters of Pale. We were attacking the ammunition

14 depot outside Pale.

15 Q. We'll return to that when we discuss some subsequent NATO

16 bombings, but let us move on to paragraph 71 of your statement which

17 speaks about the offensive that was initiated on the 16th of June.

18 You can see there that you said that that offensive began on that

19 particular day and that there were some initial successes on the part of

20 the Army of Bosnia-Herzegovina which were quickly thrown back with heavy

21 casualties first and foremost among their soldiers, both at the front

22 lines and in the rear, or rather, closer to the separation lines. Is that

23 correct?

24 A. I'm sorry, just let me ...

25 I'm not quite sure what -- "both at the front lines and in the

1 rear, or rather, closer to the separation..." I'm not sure what that

2 means. I haven't put -- it's not in my statement. You've added that on,

3 and I'm not quite sure what you mean.

4 Q. That was my question, in fact. You said that after some initial

5 successes they were quickly thrown back with heavy casualties. My

6 question is this: Were those heavy casualties present at all front lines

7 where the Bosnian Serb forces were, and those casualties were mainly

8 soldiers?

9 A. The casualties that I'm referring to there were in the attacking

10 force, yes.

11 Q. I have a document here, an UNPROFOR document. It is a report by

12 David Harland dated the 24th of June. It is a 65 ter number 2471. This

13 is P16. Perhaps we could have a look so that I can put two things from it

14 to you. I believe it is already up on the screen. It says in paragraph

15 3: "Last Friday and Saturday," and Harland was reporting this to some

16 other people. It is page 2, paragraph 3. It says: "Last Friday and

17 Saturday (15th, 16th June) Bosnian troops attacked Serb positions all

18 along the confrontation line. Attacking out of the city and into it from

19 the south, west, and north."

20 Was this really so and have you seen this report previously?

21 A. No, I haven't. If I remember correctly, this -- Harland is in

22 Sector Sarajevo at the time, so his reports as such would not cross my

23 desk as a matter of course. But that paragraph 3 that you're directing my

24 attention to, it is as I remember the events at the time.

25 Q. That is what I wanted to hear. Let's look at the next paragraph T

1 provided a -- I translated it to myself correctly.

2 "After a day or two, the Bosniaks subsequently broke off their

3 attacks apparently because of the heavy casualties sustained in the

4 initial assaults. UNPROFOR is unable to make an accurate estimate of

5 these casualties, however, as the Bosnians no longer allow UNPROFOR free

6 access to the sector's hospitals."

7 Would you agree with what is stated here, that UNPROFOR had no

8 access to the hospital so as to be able to establish who the victims of

9 the showdown were.

10 A. I'm not sure it's a showdown, but I don't recall the business with

11 the hospitals.

12 Q. Well, if -- that is in Harland's report, that being an official

13 report. Then I believe we can safely presume that Harland described the

14 situation as it was.

15 A. So can --

16 JUDGE ROBINSON: Mr. Whiting.

17 MR. WHITING: I'm going to object. The -- counsel put it to the

18 witness, he said what he could say about it, and now counsel is testifying

19 about what he thinks about the document. So I would object.

20 JUDGE ROBINSON: Yes, Mr. Tapuskovic. Let us move on.

21 MR. TAPUSKOVIC: [Interpretation] Well, this has been admitted in

22 any case.

23 Let us go to paragraph 99: "The rest of July and the first part

24 of August were dominated by the combined HV, Croatia army and HVO,

25 offensive in Livno, Glamoc, Grahovo, and the HV offensives into the

1 Krajinas." Was that so.

2 A. Yes.

3 Q. In paragraph 100, you say: "I had a meeting with General Mladic

4 on 31st July at Mrkonjic Grad." Is that so?

5 A. Yes.

6 Q. Let us go to 101 then: "The first part of the meeting was

7 dominated by Mladic's description of the military and humanitarian

8 situation in western Bosnia, as a result of the HV and HOV offensives."

9 Is that so.

10 A. Yes.

11 Q. "Mladic was obviously very concerned about the military situation

12 and appeared tired and harassed. He appealed to me to carry a message to

13 the Security Council to demand an immediate end to the attacks and the

14 withdrawal of the Croatians from Bosnian-held territory." Was that so?

15 A. Yes.

16 Q. Further down --

17 JUDGE ROBINSON: Mr. Tapuskovic, what is the relevance of all of

18 this?

19 MR. TAPUSKOVIC: [Interpretation] Your Honour, he continues by

20 saying, "I shared Mladic' concerns about the situation as it was quite

21 clear that fighting would spread; however, I pointed out that the HV

22 offensive could be justified by Article 51 of the UN charter."

23 Is that so?

24 A. Yes, I said that.

25 Q. Therefore, my question is this: The Croatian army coming from

1 another state into the territory of Bosnia-Herzegovina across the

2 century-long Serb territories and when fire is opened on all sides, you

3 still find it in the spirit of Article 51 of the Charter, and you find it

4 justified that one state enters another and that they say that they have

5 the right to do that since it was their right to defend themselves. Is

6 that so?

7 A. I said it could be, as opposed to it was. And I would have to go

8 back and review the actual situation as to what each contingent was doing

9 as to exactly why I said that, because I cannot remember at this stage.

10 Q. Very well. Can you at least confirm that the Serbian people in

11 the territories where they had been living for centuries had the right to

12 defend themselves under the UN Charter. If the Croats had the right to

13 cross somebody else's territory, did the Serbs also have the right to

14 defend their own homes and their own people, their brothers and sisters?

15 A. Is your question related to the Croatian Serbs in the Krajinas?

16 Q. No. My question relates to the Serbs living in an and Sarajevo,

17 in that area, where this armed conflict was in progress. Did they have

18 the right to defend themselves in the spirit of Article 51 of the UN

19 Charter, if Croatia was allowed to cross somebody else's territory and

20 defend itself in that manner?

21 A. My answer is I don't know, because I can't remember why I said

22 that point about Article 51 of the Charter. And I would need to know the

23 situation on the ground in Bosnia-Herzegovina, and in these attacks in

24 particular to understand the situation again, to make a proper answer for

25 you.

1 Q. Mr. Smith, let me ask you about two incidents that happened in

2 June and July. According to the documents that I have with me - actually,

3 these are UNPROFOR reports - did you know that on the 18th of June, the

4 former school was hit. The school was called Simone Bolivar - I find it

5 difficult to remember this name, although I know who Simone Bolivar was -

6 and that there were civilian casualties, people who died there. Do you

7 remember that incident?

8 A. Where was the school?

9 Q. In Dobrinja.

10 A. No, I don't remember the incident.

11 Q. Do you remember that it was impossible to establish who fired this

12 shell, whether it was the Serbs or the Muslims? Do you remember this

13 incident or maybe you were not in Sarajevo at all at the time?

14 A. I think I probably was in June, and I don't remember the incident,

15 no.

16 Q. Do you remember this incident? It was -- it received wide

17 coverage in the press worldwide, especially in Sarajevo, and I'm referring

18 now to the incident of the 28th of June when the TV building was hit. Do

19 you remember that incident?

20 A. Again, not specifically, no, I don't. That was the TV building in

21 Sarajevo?

22 Q. Yes.

23 A. No, I don't remember that.

24 JUDGE MINDUA: [Interpretation] General, you don't remember this

25 incident, because it's been a long time - It was ten years ago - or is it

1 because there were was so many incidents of the same nature that it's

2 difficult to remember just this one.

3 THE WITNESS: Probably a bit of both. Also, the -- remember, I'm

4 commanding more than just Sarajevo. I'm in Sarajevo, but I have other

5 responsibilities; and at that particular time, in my memory, I'm very

6 concerned about re-supplying the eastern enclaves, who have not been

7 supplied with humanitarian aid since sometime in March and April.

8 So I suspect my complete focus was somewhere other than Sarajevo

9 at that time, in addition to there were lots of incidents that covered the

10 whole of my command, and it's a long time ago.

11 JUDGE MINDUA: [Interpretation] Thank you.

12 MR. TAPUSKOVIC: [Interpretation]

13 Q. General Smith, sir, is it possible that your command never

14 received an UNPROFOR report - and this is something to be the subject of

15 deliberation by this Court when establishing the truth - that the

16 following day, the building of the Bosnia-Herzegovina television was hit

17 by the -- a shell fired by BH army? Is it possible that your command did

18 not receive this kind of information? How do you explain that?

19 A. If this incident occurred, there would have been a report. It --

20 not all reports come to me. Even if I'm in the headquarters, there is a

21 system for filtering them out and aggregating them out and so forth. That

22 incident, as reported, I'm sure occurred. Whether they were drawn to my

23 attention is another matter altogether.

24 JUDGE ROBINSON: Would that have surprised you if that did in fact

25 take place.

1 THE WITNESS: I think if that had occurred, it would have been

2 brought to my attention at that time.

3 JUDGE ROBINSON: No. Would it have surprised you?

4 THE WITNESS: What?

5 JUDGE ROBINSON: That the television building had been hit by a

6 shell fired by the BH army?

7 THE WITNESS: Yes. And as I say, I think it would have been

8 brought to my attention.

9 MR. TAPUSKOVIC: [Interpretation]

10 Q. Mr. Smith, Mr. Nicolai, that is the person in charge of your

11 General Staff, wrote a letter on the 1st of July, 1995 addressed to Ratko

12 Mladic. That's 65 ter 02498, P103. This is it.

13 And it roads as follows: "I write to you to protest most strongly

14 about the recent and indiscriminate and deliberate shelling of the

15 residence parts of the city of Sarajevo."

16 In paragraph 3, he says,"I hereby send you a copy of the letter of

17 protest from acting commander Sector Sarajevo Colonel Robert May to

18 Major-General Milosevic commander of the Sarajevo-Romanija Corps regarding

19 the incidents of the 28th and 29th June, 1995."

20 Do you remember these two letters; first, the one to Milosevic and

21 the second one to Ratko Mladic? Was this produced by your staff and

22 members of your staff? Is it possible that you don't remember this

23 either?

24 A. No, I don't remember this. And I should add on the 1st of July, I

25 went on leave, so I probably wasn't there when this was sent. But it

1 is -- I have no doubt that this -- these letters were written, and it

2 indicates the point I was making earlier.

3 I commanded more than Sector Sarajevo. Sector Sarajevo was the

4 primary headquarters dealing with the local forces; the corps, in this

5 case of General Milosevic. And my Chief of Staff would be permitted by me

6 to act in this way, particularly in my absence.

7 Q. My question is as follows: If these two letters were written on

8 the 1st of July and the second one on the same date; that is, on the 30th

9 of June which is two days after the incident, what could General Mladic,

10 and General Milosevic deduce about this incidents, if even the 29th of

11 June, UNPROFOR claimed that it was something that had been done by the BH

12 army? How were they supposed to establish who of their soldiers was

13 responsible?

14 JUDGE ROBINSON: Don't answer that. Because he is not in a

15 position to say what they would have deduced. So please ask another

16 question.

17 MR. TAPUSKOVIC: [Interpretation] I'm not going to ask him anything

18 further. I think that this has been recorded in the transcript, and I

19 don't believe that I need to offer any further explanations, as I also

20 believe the General Smith is not able to answer this. You are absolutely

21 right. I cannot rephrase my question now, given that General Smith was

22 absent on that day.

23 In any case, it will be up to you, Your Honours, to resolve this

24 issue because up to this date we still don't know who committed these

25 acts. And I'm sure that General Smith is not the person to answer this

1 question because it was an impossible request if somebody else did it.

2 JUDGE ROBINSON: Mr. Tapuskovic, just get on with the questioning

3 and stop making speeches.

4 MR. TAPUSKOVIC: [Interpretation] I do that very seldom, but...

5 Q. Let me refer you to one more report, General. It's dated the 2nd

6 of July, 1995, 65 ter 2503, Exhibit P19, page 3 of the English version.

7 Page 3 of the English version: "Location of Bosnian weapons a problem."

8 It roads as follows: "Since the Bosnian offensive began two weeks

9 ago..." So the first question would be: You said a few days; whereas,

10 Harland's report says that the offensive started two weeks ago, and it

11 doesn't specific when it ended. Therefore, did the offensive end after

12 three days, or was it ongoing for two weeks already as it says here?

13 A. Who wrote this report?

14 Q. This report was compiled by David Harland from civilian affairs,

15 and it is addressed to Philip Corwin.

16 A. No, that's all right. So it's coming out as Sector Sarajevo;

17 that's really my point. If Harland wrote the report and in a previous one

18 he has said that the attack petered out after a couple of days, in the

19 paragraph you've put here, a subsequent report, and he is clearly only

20 referencing the start of the attack, not -- not suggesting that it is

21 continued.

22 Q. What he says is that this attack has been going on for two weeks ,

23 but thank you for your answer. You did your best.

24 He went on to say --

25 A. I don't think he say that at all. He says: "Since the attack."

1 It doesn't say it's been going on all that time.

2 If I could have that page back on the screen, please.

3 JUDGE ROBINSON: Let us see the page.

4 MR. TAPUSKOVIC: [Interpretation]

5 Q. "Since the Bosnian offensive began two weeks ago." It doesn't say

6 that it ended any time.

7 A. No, but in a previous report by the same man, he says it only

8 lasted two days after it started. So we might deduce that he's only using

9 the words "since the Bosnian offensive started two weeks ago," in other

10 words two -- he could have said on the - whatever the date was - 16th, the

11 number of -- you know, he could have written since the 16th of June, the

12 number of Bosnian heavy weapons, blah, blah, blah, but that's all he's

13 saying there.

14 Q. Witness, you are the only one who was claimed in your testimony

15 that this offensive lasted for two or three days. No one else said that,

16 and there's a difference between that and what is written in this report.

17 JUDGE ROBINSON: Well, we'll have to make up our minds about

18 that. We have heard the witness's evidence and we have your submissions

19 as to what it means. We'll have to draw our conclusions, so please move

20 on.

21 MR. TAPUSKOVIC: [Interpretation]

22 Q. The report goes on to say that: "The number of Bosnian heavy

23 weapons operated from near UNPROFOR facilities has significantly

24 increased. Some people in UNPROFOR see this as an effort by the Bosnians

25 to draw counter-battery fire on to UNPROFOR, which would then be drawn

1 into conflicts with the Serbs."

2 Does this correspond to the factual situation, what is written in

3 the report?

4 A. You must read the whole paragraph that's also in front of me, and

5 you say that others note that there is a general increase, et cetera, et

6 cetera. And that is the same answer that I gave you earlier when you

7 talked about mobile weapons.

8 Q. Yes, that is precisely what I'm going to insist upon and that is

9 as follows. "Others note that there has been a general increase in the

10 number of active weapons and that the density of heavy weapons is not

11 great around UNPROFOR facilitates than it is elsewhere."

12 Is it true that these heavy weapons were not only deployed there

13 but in all other locations in the area of responsibility of the BH army?

14 That is my question.

15 A. The point is that there was an increase because they brought in

16 extra people from outside, through the tunnel, as we've discussed, and

17 there was an increase of Bosnian forces inside Sarajevo.

18 Q. There was an increase in the number of heavy pieces in Sarajevo.

19 Can we say that? That's what I conclude from this report.

20 A. Not -- not heavy weapons as -- in the exclusion zone, those that

21 were banned in the exclusion zone. We're talking about the lighter

22 mortars and so forth.

23 JUDGE ROBINSON: Mr. Tapuskovic, another five minutes.

24 MR. TAPUSKOVIC: [Interpretation] Your Honours, I haven't even

25 begun asking questions about Markale, and however I needed to go through

1 these documents, this one in particular.

2 JUDGE ROBINSON: Your judgement as to what is important to your

3 case must be questioned. You have three hours. You have five minutes

4 left for the three hours and you haven't done Markale? You have been

5 going through these -- all these statements to what purpose, I don't

6 know. I am told that we can't be here beyond 5.20, and it was not my

7 intention to give you more than three hours.

8 Move on to Markale immediately.

9 MR. TAPUSKOVIC: [Interpretation] I will, Your Honour. But I will

10 to ask all these questions in order to sketch a picture of General Smith's

11 position and feelings and how he was prone to order the bombardment of

12 Serb positions before I got to Markale. I thought it was impossible for

13 me to deal with Markale without providing that picture for you first; and

14 if you deem Markale to be unimportant, then I will stop, but I don't think

15 that will be fair.

16 JUDGE ROBINSON: I have told you to move on to it, so move on to

17 it and stop talking.

18 MR. TAPUSKOVIC: [Interpretation]

19 Q. General, sir, I have to put two documents to you in order to try

20 to clarify something, although I might not have the time needed. The

21 first one is drafted by Konings -- excuse me, by Lieutenant Higgs who was

22 one of Konings team members. It is 65 ter number 198.

23 MR. TAPUSKOVIC: [Interpretation] Could we please have that

24 document first.

25 Q. The parole leader was Konings, and the members were

1 Lieutenant Higgs and Captain Karbone [phoen], the general part.

2 It says here on the first page: "The investigation team carried

3 out the entire investigation as a group, excluding the visit to --

4 including the hospital so as to confirm the number of casualties, or

5 rather, of those killed and injured." And there was an investigation team

6 from the Ministry of the Interior, then there were their observations.

7 "The parole investigated five impact sites, all of which were

8 from 122-millimetre mortar projectiles. One projectile was fired from the

9 70-degrees azimuth and killed 33 people and wounded 58 in a busy market

10 area," and then a part of the second sentence is illegible.

11 In item 2: "The bearings in combination with the estimated angle

12 of impact could give no evidence of the origin of fire, since it is not

13 known with which charge the projectile has been fired."

14 And not to have to read the whole thing, I will move on to page 2.

15 "In cooperation with the investigation team of the Ministry of

16 the Interior, this team was able to confirm that 38 were killed and 64

17 wounded. We were unable to show" --

18 THE INTERPRETER: Could the counsel please slow down when reading

19 since the interpreters cannot see that page on the screen. Thank you.

20 JUDGE ROBINSON: The interpreters are complaining that you're

21 reading too fast. Just put your question now.

22 What is the question for the witness, Mr. Tapuskovic?

23 MR. TAPUSKOVIC: [Interpretation]

24 Q. "The UNPROFOR investigation team confirmed that it cannot be

25 established -- that the origin of fire cannot be established since they

1 were unable to discern what the type of projectile was."

2 Have you ever seen this report?

3 A. I haven't seen that specific one, no. But have I seen the

4 subsequent one, and it isn't an UNPROFOR report; it is an UNMO report.

5 Q. Did you see a report sent by General Janvier to the UN directly to

6 Mr. Annan, Secretary-General, on that same day?

7 A. Probably, but I don't recall it specifically.

8 Q. It tallies completely with that previous report, and in that

9 document at page DD000-10. UNPROFOR, Sector Sarajevo, in the English page

10 3.

11 So as not to have to read the whole thing, I just wanted to tell

12 you that the contents resemble very much the previous report, saying

13 that: "It is very difficult to determine the exact place of firing in the

14 case of mortar rounds because it is impossible to establish what the type

15 and amount of charge was." It has to do with the 28th of August. Due to

16 such characteristics of the shell, it was unable to establish the things

17 mentioned here.

18 Are you familiar with this report?

19 A. No. This is my superior headquarters routine situation report, as

20 I understand it, made up of aggregating together the subordinate reports

21 coming up to them so they would have -- if they had the UNMO report

22 available to them, they would have used and sending it on to UN

23 headquarters in New York. That's what I understood from the front page.

24 Q. Do you know what Colonel Demurenko, the Russian colonel, said when

25 he came to the spot among the first people to be there? I asked one of

1 the witnesses about that, but do you know what Demurenko said? I think

2 he said something along the lines that, It is impossible that those shells

3 came from the positions of the Bosnian Serb army.

4 A. I remember him saying that, but not immediately after the event.

5 It was some two days, 36 hours after the event or maybe a little longer.

6 Q. Is it correct that you stopped NATO air-strikes for a day?

7 A. No. I -- I didn't stop them for a day.

8 JUDGE ROBINSON: Did they stop?

9 THE WITNESS: No. We stopped them - and this was not a decision

10 of mine by that stage - after about five to seven days of action for a

11 period of about -- if my memory is -- about four days. If that's what

12 we're referring to, then I was party to that decision. But it wasn't

13 strictly mine.

14 JUDGE ROBINSON: Well, was that what you were referring to, or

15 were you referring to the -- when you asked whether the General had

16 stopped NATO air-strikes, did you mean immediately after Markale?

17 MR. TAPUSKOVIC: [Interpretation] No, a few days later, once it

18 became public what Demurenko said. I ask that we look at page 730, line

19 17. I asked the witness Mohatarem the following: "On the 1st of

20 September, the bombing stopped because of Colonel Demurenko's claims that

21 the shelling was not done by the BSA." And I asked the witness whether it

22 was correct. He answered: "It is." Therefore, on the 1st of September,

23 the next day after the bombing, once Demurenko's opinion became public,

24 the bombing was suspended.

25 Q. Is that correct?

1 A. It was not suspended because of anything that Colonel Demurenko

2 said.

3 JUDGE ROBINSON: Do you know why it was suspended, General?

4 THE WITNESS: It is covered in paragraph 113 of my statement. The

5 reason for it was so that the Force Commander, General Janvier, could meet

6 with General Mladic and to see whether the demanded that we had laid upon

7 the Bosnian Serbs as part of this bombing, which involved the withdrawal

8 of all heavy weapons outside the exclusion zone, would be met.

9 JUDGE ROBINSON: Yes.

10 Do you see that, Mr. Tapuskovic? It's in paragraph 113 of the

11 General' statement: "On the 1st September, a 24-hour pause was agreed to

12 while the force commander met Mladic in the morning."

13 Next question, please.

14 MR. TAPUSKOVIC: [Interpretation] 1023, page 16 to 25 of the

15 transcript, that's why General Nicolai says: "Yes, the Dutch radars," and

16 he also mentioned the British ones, "did not register the shell which

17 caused so many people to be killed and injured." Were you told this that

18 the radars did not register that event? Yes or no.

19 A. Yes. I was told that.

20 Q. 1027, page 19 to 22, Nicolai again: "The only thing I can say is

21 it wasn't registered by any radars. That's why we had to analyse the

22 craters in the ground."

23 Is that so?

24 A. That isn't so, in quite that way that you have expressed that

25 sentence. We analysed the craters in the ground in any event. We, as you

1 see from the UNMO report, that was one of the things they did immediately

2 you had such an incident. We then would gather all other information that

3 was available to us; and in this case, that included finding out what the

4 radars had seen.

5 Q. Is it true that this piece of information reached you. It's on

6 page 1028, lines 4 to 23. It refers to a report that a shell hit a

7 building and caused the shell to explode in the air. That is what

8 Mr. Nicolai said before this Chamber. Are you aware of that?

9 A. I didn't know he'd said that, no. Or are you referring to the--

10 to the shell exploding in the air?

11 Q. Mr. Nicolai claimed that he had received a report that a shell hit

12 the roof of building and then disintegrated hitting people on the street?

13 A. He may have received such a report, but it is evidently a wrong

14 report because there were five craters.

15 Q. Page 1039, lines 7 to 10. I asked General Nicolai the following:

16 "Does this fit with what you were told by Mr. Van Baal that when it comes

17 to the highest -- state interest, one would sacrifice ones own people?"

18 And Nicolai replied, "We did not rule out this option."

19 I'm asking you were you aware of this option? Was your staff

20 aware of this option or not?

21 A. In a theoretical fashion, and if I'm to understand you to say that

22 the option is that this was an act inflicted by the Bosnians on the

23 Bosnians, then theoretically that was possible.

24 Q. But, nonetheless, that evening you issued an order for air-strikes

25 on the Bosnian Serb army positions. In spite of all these ambiguities,

1 incomplete investigation, you issued, as you said if your statement, an

2 order that evening for the air-strikes to again.

3 A. It wasn't like that precisely. First of all, there were other

4 investigations going on by Sector Sarajevo and my own staff. Secondly,

5 the -- there were two people required to make this decision. In the

6 jargon of the day, there were two keys to turn. I held one key at the

7 time and the other was held by Admiral Leighton Smith.

8 Q. Two more things --

9 JUDGE ROBINSON: Mr. Tapuskovic, explain to me again what your

10 case is on this point; that is, the NATO having air-strikes on Bosnian

11 Serb army positions even before the investigation was completed.

12 Explain again how your case is built up on that. I believe it has

13 something to do with the argument you make that there was collaboration

14 between NATO and the BH army.

15 MR. TAPUSKOVIC: [Interpretation] Your Honours, I skipped so many

16 things. In paragraph 113 of the witness's statement, he says as follows:

17 "Attacks were carried out to achieve air supremacy to show the extent and

18 nature of the punishment to come and to destroy weapons, command and

19 control, and weapon dumps."

20 If you look carefully at this paragraph, you will see that they

21 sided with the BH army. There was an incident which was not properly

22 investigated. These are the words of General Smith.

23 Q. Is this what you said? "The punishment to come and to destroy

24 weapons, command and control, and weapons dumps."

25 A. Are you asking me that I said that?

1 Q. Yes.

2 A. Yes.

3 Q. Was that the objective?

4 A. Those were the objectives of that plan.

5 Q. And you mainly struck military targets, but also the entire

6 infrastructure of the positions and places where Serbs were living in the

7 environs of Sarajevo. Is that correct?

8 A. No, it's not. We only attacked military targets.

9 JUDGE ROBINSON: Mr. Tapuskovic, is your case that Markale was

10 caused by a BH attack? No, just answer me. Is that your case?

11 MR. TAPUSKOVIC: [Interpretation] Yes. Yes, it is.

12 JUDGE ROBINSON: And is it also your case that NATO was complicit

13 in that attack, or that NATO would have known about the BH army attacking

14 the Markale market?

15 MR. TAPUSKOVIC: [Interpretation] Yes. And let me conclude my

16 examination with what I began. The witness knows, and I will put it to

17 him directly - it's something that I found in Alija Izetbegovic's book -

18 that on the 29th, he had a meeting in the US Embassy in Paris with

19 Holbrooke, and that he also talked to Talbot, Christopher's deputy, and

20 that he had been told that the attacks against the Serbian forces would

21 start promptly.

22 Q. Is it where the order calm from?

23 A. No. The decision lay in equal shares between the two key holders;

24 that was Admiral Smith and me. And it stems from the London Conference of

25 July, late in July.

1 Q. And my last question will be as follows: Is it true what Alija

2 Izetbegovic claims in his book, that this was a concerted action all

3 together, in the sense that I have just put it to, that he went to Paris

4 precisely with this intention, and that this was all coordinated at this

5 level?

6 A. No. It is not true.

7 MR. TAPUSKOVIC: [Interpretation] Thank you.

8 JUDGE ROBINSON: Mr. Whiting.

9 MR. WHITING: I have no questions, thank you.

10 Questioned by the Court:

11 JUDGE HARHOFF: General, time is it running out, but I would wish

12 to put a just few final questions to relating to the accused's involvement

13 in these matters.

14 So my first question would be: Did you ever meet with General

15 Milosevic?

16 A. I met with him, if my memory is correct, only after the end of the

17 bombing in September. And I think we had two, possibly no more,

18 meetings. And it was all to go through and explain what was required of

19 him and his corps as a result of the consequence of the bombings taking

20 place and an agreement being reached with the Bosnian Serbs.

21 JUDGE HARHOFF: Thank you. Did General Milosevic comply with the

22 agreements that you made with him during this meeting?

23 A. More or less. I think the first time this occurred, there was

24 some back sliding or failure to comply. But the -- the trend was

25 positive, and it got more positive as the days went on.

1 JUDGE HARHOFF: Did you have other sorts of communication with

2 General Milosevic? Not physically present, one in face of the other, but

3 by communication, by letters, by mails, or by instructions?

4 A. This would be done at Sector Sarajevo level. So in the sense of

5 this was my subordinates communicating with him, yes, but directly, I

6 don't remember a direct communication either by letter or -- or face to

7 face, other than those that I have mentioned.

8 JUDGE HARHOFF: Were you, during your term in office, at any

9 point, made aware of General Milosevic being unable to comply with the

10 terms of the agreements that were entered into either by you or other UN

11 agencies on the one hand and the Serb leadership on the other?

12 A. Being unable to comply because he was ordered not to or because

13 there was some physical barrier to prevent him from complying.

14 JUDGE HARHOFF: Sorry. Just wait for the translation. My

15 question relates to his inability to control the forces under his command.

16 A. No. I have no evidence of that at all.

17 JUDGE HARHOFF: Thank you.

18 JUDGE ROBINSON: Well, General, that concludes your testimony. We

19 thank you for coming to the Tribunal to give it. I also wish to thank the

20 interpreters and the other officers of the court for their extraordinary

21 service, which is consistent with the best traditions of international

22 civil service.

23 We are adjourned.

24 --- Whereupon the hearing adjourned at 5.29 p.m.,

25 to be reconvened on Thursday, the 8th day of March,

1 2007, at 9.00 a.m.

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