³⁸⁰⁰ Monday, 12 July 2010

(Open session)

[The accused entered court]

--- Upon commencing at 2.18 p.m.

JUDGE FLUEGGE: Good afternoon to everybody in the courtroom and outside listening and watching to these proceedings. At the outset of today's hearing, the Chamber would like to issue two oral decisions.

On the 6th of July, the Prosecution filed the Prosecution's supplemental motion for leave to amend its 65 ter exhibit list with one additional exhibit. In this motion, the Prosecution seeks the addition of the 65 ter list of a report of 4th of June, 1995, from the DutchBat commander about the situation in Srebrenica.

On the 8th of July, the Defence filed its response, in which it does not object to the motion but states its disagreement with the position of the Prosecution on the relevance and probative value of the document.

The Trial Chamber understands that the Prosecution may well use this document with the testimony of General Nicolai. It is therefore hereby rendering an oral decision on the motion.

The Trial Chamber finds that the proposed addition of the document to the 65 ter list is in the interests of justice. Accordingly, the motion is granted.

The second matter is the following: Last Friday, the Prosecution moved for an extension of time for ³⁸⁰¹ compiling lists of exhibits in relation to the Chamber's Rule 92 bis decision by another 30 days. Mr. Tolimir didn't object to that motion. In view of the magnitude of the tasks required and the upcoming holiday period, the request is well-founded. It is herewith granted. Mr. Vanderpuye, I think the next witness is ready to testify.

MR. VANDERPUYE: Yes, Mr. President. Good afternoon.

JUDGE FLUEGGE: Thank you. He should be brought in.

[The witness entered court]

JUDGE FLUEGGE: Good afternoon, sir. First of all, thank you for your patience. Would you please read aloud the affirmation on the card which is shown to you now.

THE WITNESS: [Interpretation] I solemnly declare that I will speak the truth, the whole truth, and nothing but the truth.

WITNESS: PW-040

[Witness answered through interpreter]

JUDGE FLUEGGE: Thank you very much. Please sit down. There are still protective measures in place for you. There is a pseudonym given to you, and your name will not be broadcast or mentioned out of the courtroom, and there is face distortion orders. I think Mr. Vanderpuye has some questions for you.

Mr. Vanderpuye.

MR. VANDERPUYE: Thank you, Mr. President. Good afternoon to you, Your Honours. Good afternoon to General Tolimir, Mr. Gajic, everybody.

Examination by Mr. Vanderpuye: ³⁸⁰²

Q. Good afternoon to you, Witness.

A. Good afternoon.

Q. I'm just going to ask you to try to speak a little slowly and allow a pause between question and answer so that the interpreters have a chance to interpret what we say on to everyone in the courtroom. If I could have the witness shown, please, P658.

Without telling us what's written on this document, can you confirm that you're the person that's named in it, Witness?

A. Yes.

MR. VANDERPUYE: Thank you. Mr. President, I would tender this exhibit. Oh, I think it's pre-marked, so I would tender it into evidence at this time.

JUDGE FLUEGGE: It will be received at P658, under seal.

MR. VANDERPUYE:

Q. Witness, do you recall having testified in the case of Prosecutor versus Popovic et al on the 11th and 12th of January, 2007?

A. Yes, of course.

Q. And was your testimony -- was your testimony truthful?

A. Of course.

Q. Have you had an opportunity to review your testimony before testifying here today?

A. Yes.

Q. And having reviewed your testimony, are you satisfied that it was correct and accurate?

A. Yes, of course. ³⁸⁰³

Q. And does your testimony fairly and accurately reflect what you would say were you to be examined here today and asked the same questions?

A. Yes.

MR. VANDERPUYE: Mr. President, I would move for the admission of the witness's prior testimony, which is P656, under seal, and P657.

JUDGE FLUEGGE: They will be received, the first under seal.

MR. VANDERPUYE: Thank you, Mr. President.

Q. Witness, I also want to ask you: Do you recall having -- do you recall having given a statement to the Office of the Prosecutor, dated September -- 17th November 1999?

A. Yes.

Q. And did you also review that statement before testifying here today, and can you confirm that it's accurate and truthful?

A. Yes.

MR. VANDERPUYE: Thank you. Mr. President, I have a brief summary of the witness's prior evidence that I would like to read into the record.

JUDGE FLUEGGE: Please carry on.

MR. VANDERPUYE: Thank you. The witness adopted his OTP witness statement of 17 November 1999, which provided, in substance, as follows:

If we could go into private session for just a moment.

JUDGE FLUEGGE: Private.

(Private session) ³⁸⁰⁴

(10 lines redacted)

(Open session)

THE REGISTRAR: We are now in open session.

MR. VANDERPUYE: Upon his arrival to the Anti-Electronic Warfare Unit, the PEB, the witness received the initial training on the relevant equipment, which included receivers, scanners, UHER

reel-to-reel tape-recorders, and other radio-relay devices. During shift changes or upon reporting for duty, the witness recalled that the operators were provided certain information from their commanders. Specifically, they were provided with the relevant frequencies and channels to be monitored, as well as information concerning those that had been monitored during the outgoing shift. Operators were also provided with specific locations that were to be surveilled.

In his work, the witness observed certain established procedures concerning the monitoring of assigned frequencies, the process of ³⁸⁰⁵ recording intercepted conversations, the practice of noting down the time, frequency, channel and the participants, and, of course, the transcription of recorded conversations into note-books. The witness noted that in transcribing intercepted conversations, he generally used the terms X/Y to denote unidentified participants. Ellipses were used to indicate inaudible words where portions of the conversation, and parentheses were used where the witness was able to recognise a participant, but where the participant had not identified himself in the conversation.

Recorded conversations were generally transcribed into note-books immediately at the end of an operator's shift. These entries were then submitted to the designated typist, who then sent the material on to the ABiH 2nd Corps Headquarters. Once a note-book was filled, it was returned to the operators' commanders and then taken to the headquarters, as were filled tapes.

Per his testimony, the witness confirmed recording and transcribing 10 intercepts in July and August 1995, which were admitted in evidence at trial.

And that concludes my summary, Mr. President. I have a few questions to clarify some of the witness's previous testimony, if I may put that to him.

JUDGE FLUEGGE: Yes, please proceed.

MR. VANDERPUYE: Thank you, Mr. President. If I could have the packet of 12 intercepts, please, handed to the witness. Thank you. ³⁸⁰⁶

Q. Witness, I just want to confirm that you had an opportunity to look at the 12 intercepts that are in that booklet that I've just handed to you from July through August of 1995, before your testimony here today. Can you confirm that?

A. Yes, certainly.

Q. And did you also have an opportunity to examine the original note-books containing all but one of these intercepts?

A. Yes.

Q. And are the note-book transcriptions that are in the booklet in your handwriting?

A. Could you repeat that, please?

Q. Sure. Are the handwritten photocopies that are in the booklet in front of you now, are those in your handwriting?

A. Of course.

Q. And did you write down these intercepts during the course and scope of your duties and responsibilities as an intercept operator in 1995?

A. Yes.

Q. And were they written down close in time to the intercepts, the conversations that are actually recorded?

A. Yes.

Q. About how long after you would write down -- you would transcribe a tape into the note-book were these handwritten transcriptions typed up by the typist?

A. It depended on the work that was being done. So five to ten ³⁸⁰⁷ minutes, at the most.

Q. And can you confirm that the handwritten transcripts that you took down in 1995 are reflected in the print-outs that are also included in the booklet that you have before you now?

A. Yes.

Q. And what I'd like to do just for a moment is to refer you to tab number 11. I believe that's 65 ter 3194, and I think I can give you the pre-marked number. It's P666.

This should not be broadcast, just so that everybody's aware of that. And, Mr. President, I may ask -- well, I am asking to go into private session just for a moment.

JUDGE FLUEGGE: Private.

(Private session)

(12 lines redacted) ³⁸⁰⁸

(15 lines redacted)

(Open session)

THE REGISTRAR: We're now in open session.

MR. VANDERPUYE: Thank you. Mr. President, I would like to tender all the intercepts in the packet at this time. That would be P659A and B, 660A and B, well, let's see, 661 through 670 -- I better do it one by one.

JUDGE FLUEGGE: It's fine.

MR. VANDERPUYE: 662, 3 -- there's one that contains a C, and that's the reason, and that's 667A through C. In addition, I would like to tender 673A and B. ³⁸⁰⁹

JUDGE FLUEGGE: And what about P671?

MR. VANDERPUYE: These are the whole of the note-books. I will tender them. I'll tender them as well.

JUDGE FLUEGGE: They all will be received with the given numbers.

MR. VANDERPUYE: Ms. Stewart's asked me to indicate to you that there are not full translations in the entirety for both of these note-books, but -- that's for 71 and 72 -- 671 and 672, but I am offering them to the Court to consider and to put in context also the accuracy and reliability of the intercept process as a whole.

JUDGE FLUEGGE: The documents P661B, 664B, 665B and 667B don't have a translation. They will be marked for identification, pending translation. The others will be received.

MR. VANDERPUYE: Thank you very much, Mr. President. If I could have P661 in e-court. It's -- P661A in e-court. Just to orient everyone, this is under tab 4 of the booklet, and it is an intercept dated 13 July, 9.05.

Q. Witness, I just want to ask you a few questions about this intercept. And, in particular, it relates to some of the notations that you have in here.

If we could go to the second page in the B/C/S, and stick with the English for the moment.

In this intercept, you can see there are talks about -- it's a conversation between X and Y, and it talks about what to do with certain prisoners, and indicates that they should be sent to Zvornik. And in this particular intercept, you have certain passages that are indicated ³⁸¹⁰ in parentheticals. The first one I'd like to address with you is the one that appears in the translation, which reads:

"Let's resolve the problem." And you can see that, I think, in the B/C/S on the screen in front of you. And I'm wondering if you could explain to the Trial Chamber why those particular parts of the intercept you've written in brackets.

A. In brackets with a question mark, that means that I wasn't quite sure.

Q. And is it based upon something that you actually heard in the tape or is this something -- a device that you've used to put the conversation into context, in other words, to assist with its meaning?

A. No, I never placed anything in context. I just wrote down things I heard, that's all.

Q. All right. The next one I'd like to ask you about is, in the line where it says:

"Who are they? They -- these captured Turks, man, are bringing 10 or 20."

And then it reads: "No way, there are 50 up there."

And they're asking what to do with the wounded. Now, when you say "10 or 20," that appears to be also in parentheses. Is your explanation for that the same as it was for the previous question that I asked about parentheses?

A. Of course. ³⁸¹¹

Q. And further on in this intercept, you can read where it says: "Well, they probably killed some of them."

Into parentheses it says: "(What were they?)"

And then it reads: "They were killing themselves. They're putting hand-grenades under them. There's a pile of them dead ..."

Do you see that? Is it all on the one page, or I think it may be a little bit over the next page in the B/C/S. But is your explanation for the use of parentheses again based upon what you were able to hear in the recorded conversation?

JUDGE FLUEGGE: I'm not sure if the witness really saw that part of the handwritten version you've just quoted.

MR. VANDERPUYE: Yes. I think they've just turned the page now, so he may be able to follow it.

Q. Do you see the part of the conversation or have you seen the part of the conversation referring to the people that were probably killed, and then it reads:

"... some of them. They are killing themselves. They're putting hand-grenades under them"?

JUDGE FLUEGGE: I'm just waiting for your answer.

MR. VANDERPUYE:

Q. Are you able to see that in your handwriting?

A. Yes.

JUDGE FLUEGGE: Mr. Tolimir. ³⁸¹²

THE ACCUSED: [Interpretation] Peace in this house, and may God bless everybody. May these proceedings, and as God wills, and not as I will.

Mr. President, this was a leading question, because in the text it clearly says "they are killing themselves," and then the witness is being asked to say who is killing them. Thank you.

JUDGE FLUEGGE: The last question was if the witness sees that part of the conversation, and the witness stated that. That was not a leading question.

Please carry on, Mr. Vanderpuye.

MR. VANDERPUYE:

Q. Witness, I asked if your explanation for the use of parentheses in that particular passage that I've read is the same as it was with respect to the use of parentheses in the preceding questions that I put to you.

A. I used the parentheses with a question mark when I wasn't sure what I heard.

Q. So what is written in the parentheses reflects the word that you believe that you heard, and that's -- and is that the reason why it's in parentheses with a question mark?

A. Yes.

MR. VANDERPUYE: All right. Thank you for that. I'd like to show the witness a different intercept, please. It's at tab 6, so that you're aware. It's P663A.

Q. All right. I think you can see what I'm referring to in this ³⁸¹³ conversation. What I'd like to do -- ah, okay, we have it. We've got the right English translation up there.

Now, you may recall that you were asked a number of questions about this particular intercept during your previous testimony, but the first thing I'd like you to do is, if you can, and if you can recall, to explain to the Trial Chamber, this portion of the intercept -- or the note-book entry, I should say, that is crossed out, if you could explain to the Trial Chamber how that came about.

A. Probably X and Y in this case, the people who were talking had similar voices so it was difficult to tell who was saying what. So, really, when the tape was listened to again, then what was originally written down was crossed out and what we then heard was written down.

Q. Okay. Just so I have the record clear here, we're talking about -- this intercept is a 13 July intercept, and the time that's indicated here is 10.09. The participants are Zoka, as you've indicated, Beara, and Lucic. And it says "X inaudible."

If we could go to the next page in the B/C/S. Now, this portion that's in the B/C/S is still reflected in the English translation. Now, with respect to having crossed out this part of the intercept, can you explain to the Trial Chamber why that came about? Did you listen to the tape again? Was it pointed out to you that you should listen to the tape again? Did something grab your attention? Maybe you can tell the Trial Chamber a little bit about how that happened.

A. When you start transcribing a conversation, you only get a true ³⁸¹⁴ picture later, who is talking to whom, when, and where. And in order to not interrupt the conversation, you would just cross out something and then continue writing with the new text.

Q. All right. Now, on this particular page, we see here the whole page is crossed out, and is that because it was re-done or was that because it was incorrect altogether?

A. I simply crossed it out so that they wouldn't have to type the same text over at the Cryptographic Section.

MR. VANDERPUYE: Okay. Thank you for that explanation. If we could go now to -- it should be page ending -- ERN ending 810 in the English, page 3 in the English -- page 3 in the B/C/S, I'm sorry, and there should also be a corresponding translation also for the English which we just had up on the screen a moment ago. I understand there's another English translation attached. That's it. Thank you very much.

Q. I just have a couple of questions about this part of the intercept.

Here, you can see in the handwritten that the text is no longer crossed out. There's a line after the crossed-out portion of it, and the intercept begins. In this intercept, we can see that Beara is talking to Lucic, and he talks about 400 Muslims. He calls them "balijas" that have shown up in Konjevic Polje. You can see that about three lines down. And he's checking to make sure that they are being guarded, and he tells Lucic to "shove them all on the playground," and "who gives a fuck about them." You can see that near the middle of the screen. ³⁸¹⁵ Now, in your prior testimony -- well, the conversation continues. He tells them to line up the prisoners four and five in a row, and then the conversation turns to Zoka. And you can see that on this page in the English, right after -- right after we see the entry: "Well, line them up in rows four and five."

If we can go to the next page in the English, and we'll have to go to ERN ending 812, page 5, in the B/C/S, please. Okay. At the top of the page in the English, you can see where it says -- Beara says: "Huh?"

Lucic says: "Uh-huh, let me talk to him." And then Z gets on the line and says: "Yes?"

Beara says: "Hi, Zoka." You can see that in the handwritten intercept. It's about three -- about six lines up from the bottom is where it starts, and it reads:

"Uh-huh, daj mi ga." "Da."

And then it says: "Zrabo [phoen], Zoka." You were asked a lot of questions about this, and the reason is because the print-out of this intercept indicates that the words "daj mi ga," "give me him, let me talk to him," is attributed to Beara in the print-out, and in your handwritten transcript it is attributed to L, meaning Lucic.

Do you recall being questioned about that in your prior testimony?

A. Yes. ³⁸¹⁶

Q. And between the print-out version, which attributes that statement to Beara, and your handwritten version, which attributes that statement to Lucic, which one of these two is correct?

A. I'm sure about my version.

Q. And can you say anything about which side of the conversation that -- that phrase came from? Did it come from Beara's side of the conversation or from Zoka's side of the conversation, if you're able to tell?

A. Could you please repeat your question?

Q. Yes. You were asked about who would have uttered these words: "Let me talk to him," whether it would have been Beara or it would have been Lucic, in your previous testimony. You remember being questioned about that?

A. Which text do you mean that Beara said?

Q. Oh, okay. What I'll do is I'll show what the -- the typist wrote down, okay? First let me focus on what you wrote down. You can see that where it says.

"B: Huh." Then:

"L: Ah-hah, daj mi ga."

"Z: Da." And then: "B: Zravo, Zoka."

Do you see that in your handwritten text.

A. Yes.

Q. Okay. I'm going to show you what the typist wrote down. Okay, ³⁸¹⁷ it's 663B, please.

Okay, I understand it's under seal. It shouldn't be broadcast as well. We'll have to go to the second page in the English, but the B/C/S is correct.

And for your purposes, Witness, the B/C/S should be about eight lines, it looks like, from the bottom, where you can see that the phrase "daj mi ga" is attributed to B, as in "Beara," and not L, as you indicated in your -- in the handwritten transcript. Do you see that?

A. Yes, yes.

Q. So my question to you first was: Which one of these was right, what was written in the transcript or what was written in your handwritten text?

A. The handwritten text is correct, so probably that part that was spoken, Zoka was on the line, and so it was inaudible. So the correct version is the handwritten one.

Q. And the handwritten version, when you say that part of it was on the line, tell us what you mean by that. What do you mean when you say it was on the line?

A. You have two collocutors. On the line, one is heard, and the other one is not. And then sometimes one is heard well, and sometimes not so well.

Q. Well, in this particular case, can you tell us which end of the line this particular phrase was uttered on? Was it on the end of the line that was difficult to hear or on the other end of the line that was more easily heard, if you can remember? ³⁸¹⁸

A. I'm not seeing the text now, the handwritten text.

MR. VANDERPUYE: Okay, we can put that up for you. That's 663B -- 663A, and we need the second translation in English. It should be page 5 in the B/C/S, please.

THE WITNESS: [Interpretation] Looking at the text, L said: "Yes, let me speak to him."

MR. VANDERPUYE:

Q. And so would it be fair to say that the phrase "ah-hah, daj mi ga" came from L's side of the conversation and not from B's side of the conversation?

A. Yes.

JUDGE FLUEGGE: Mr. Tolimir.

THE ACCUSED: [Interpretation] Objection, Mr. President. The witness is being pressured for some time now for him to deny what he wrote down and to accept what the stenographer wrote, and to accept that Beara said something that actually Lucic said. Thank you.

JUDGE FLUEGGE: Mr. Vanderpuye.

MR. VANDERPUYE: Mr. President, I think that the record speaks for itself. The witness is looking at his own handwriting right now, and he's adopting what he wrote, not what somebody else wrote, and he said that several times, that what's correct is what he wrote and not what somebody else wrote. And all he's doing right now is confirm that, so I don't really see what the basis of the objection is in the record, itself.

JUDGE FLUEGGE: Thank you for that explanation. ³⁸¹⁹ Please carry on.

MR. VANDERPUYE: Thank you, Mr. President.

Q. I want to show you another intercept, if I may. Yes, it's P162A. Witness, I wanted to ask you, before this -- or while this is coming up: During your previous testimony, you were asked about a certain intercept which concerned an individual named Himzo Mujic and also concerned a Lieutenant-Colonel Popovic. Do you remember being asked about that particular intercept?

A. [No interpretation]

JUDGE FLUEGGE: Mr. Vanderpuye, which tab in the binder?

MR. VANDERPUYE: Sorry, it was tab 7 --

JUDGE FLUEGGE: In the document.

MR. VANDERPUYE: -- is the one I'm going to show -- I see it's on the screen. It's tab 7, Mr. President.

JUDGE FLUEGGE: Thank you.

MR. VANDERPUYE:

Q. You were asked about a different intercept, a related intercept, at tab 8 in the binder, just so that it's clear for the Court, concerning Himzo Mujic. He talked about Lieutenant-Colonel Popovic, an individual named Kane, and that Kane should contact Popovic at the Drina Corps extension 91 because he's the only one who knows where he went, meaning Himzo Mujic. But this is a different intercept. It also involves an individual named Kane, and it has "X" and "Y" indicated in it. You can see, if we go to the next page in the English -- I believe it's the next page, and I can tell you it's page 5 of the B/C/S. ³⁸²⁰ You'll see a direct reference there to Popovic, the security guy, and it reads:

"Okay, I'll call the warden now." "Check that down there, you know? Maybe Popovic, the security guy will ..."

And that's where that sentence ends. But before that part of the intercept -- do we have page 5 of the B/C/S up? Before that part of the intercept, if we go to the previous page and page 4 of the B/C/S, not 5, you can see that you've written down here:

"This part of the conversation is irrelevant." That's at the very bottom of the page. Do you see that, Witness?

A. Yes.

Q. And, again, at the enter of the intercept it's written: "The rest of this conversation is irrelevant."

I wanted to ask you about that, in particular. Now, when you make a notation that "this is part of the conversation is irrelevant," can you tell the Trial Chamber what you mean by that? What kinds of materials are considered irrelevant in the context of a conversation that you've otherwise taped and transcribed?

A. In the context, that would be perhaps a topic that had nothing to do with the military part of the conversation. That is something that would be considered irrelevant.

Q. And for the purposes of that part of the conversation, is that recorded or not recorded?

A. That part is recorded. ³⁸²¹

Q. And is the reason why -- it's just not transcribed; is that fair to say from what you're saying?

A. Yes.

MR. VANDERPUYE: All right. And if we could just go to page -- the first page of the English translation and also the first page in the B/C/S handwritten.

Q. I wanted to ask you about a name that you have here in parentheses. It's in the part of the conversation which says -- it's, I think, line 4 from the top, or 5. It says:

"That's him, he was Neso," and then it says in brackets "Rubez, "went -- he went to save him. It wasn't anything official, you know. He didn't take any notes."

Do you see that part in the conversation -- of the conversation in your hand-written transcript?

A. Yes.

Q. Why do you have "Rubez" in parentheses?

A. Because I wasn't sure if that is what I was hearing, specifically.

Q. It's not the case that you had any information particularly about this individual, is it?

A. No.

Q. And it reference here to Jovicic, it says: "I want to talk to Jovicic because I used to work for him." Did you have any information about who that Jovicic was at that time? ³⁸²²

A. No, I don't know.

MR. VANDERPUYE: Okay. That's all I have for you, Witness. I thank you very much.

Mr. President, that concludes my direct examination.

JUDGE FLUEGGE: Thank you very much. Mr. Tolimir, do you have cross-examination for the witness?

THE ACCUSED: [Interpretation] Thank you, Mr. President. I have a few questions for this witness. Thank you.

Cross-examination by Mr. Tolimir:

Q. [Interpretation] I would like to ask the witness, since we speak the same language, to pause after I say something so that this could be written in this transcript that you see in front of you on the screen, the transcript in English. I also need to wait, myself. I will have to wait until you are finished. So don't think it's strange that I am pausing before putting the question to you. After each of my questions, I'm going to say, Thank you, and that will be the sign for you, that after a little bit you can begin with your answer.

A. Very well.

THE ACCUSED: [Interpretation] Thank you. Thank you, I apologise. Could we admit [as interpreted] P669 - that is the statement of the witness - so that the witness could follow more easily the questions that I will be putting to him.

THE INTERPRETER: Microphone, please.

JUDGE FLUEGGE: Mr. Tolimir, your microphone is not switched on.

MR. TOLIMIR: [Interpretation] Thank you. ³⁸²³

Q. My first question for you would be: Why didn't you sign this statement in your mother tongue, and do you agree with everything that is in the statement, and did you read it later? Thank you.

A. Of course, I read the statement. Where and why I signed it, I really don't know.

Q. Do you know English so well that you are able to read what is said in English? Thank you.

A. I don't know English that well, but I read it in Bosnian.

Q. Thank you. And those who took your statement, did they ask you to sign the English version or the version in your mother tongue? Thank you.

A. I really don't remember this anymore.

THE ACCUSED: [Interpretation] Can we now show the witness page 2 of this statement, where the actual text begins. Thank you.

MR. TOLIMIR: [Interpretation] Thank you.

Q. In the second paragraph, line 2, you said that the location was used to monitor international organisations; is that correct?

A. Yes.

Q. And were you assigned to intercepting the international organisations immediately when you started to work or a little bit later, and can you tell us what frequencies you used to tap in to those international organisations' conversations?

A. I really don't remember.

Q. You say you intercepted international organisations that were in your area of responsibility. Do you mean the area of listening in to ³⁸²⁴ your radio waves or the 2nd Corps' area of responsibility?

A. I meant the 2nd Corps' area of responsibility.

Q. Thank you. Now, when you were listening in, could you determine whether the speaker was inside the area of the responsibility of your corps or outside it?

A. No, we couldn't determine that because we used different frequencies for interception and they don't have the range necessary for that.

Q. Thank you. Now, were they close to the relay stations through which these international organisations used for their conversations and near your antennae systems?

A. I don't know that.

Q. Thank you. Now, do you know that on your facility, UNPROFOR and UNHCR had their radio-relay repeater stations to maintain contact with the convoys, their convoys, which moved around the territory taking supplies?

A. I'm not aware of that, and it didn't exist on our facility.

Q. Thank you. Now, did you hear that on your facility, somebody interfered with the antennae system where the devices of the international organisations were located, and UNPROFOR too?

A. No.

Q. Thank you. Now, since you followed the connections between international organisations, how did you transcribe those conversations?

A. There was no transcript because we quickly moved to monitoring other communications, because we had no important information to hear for ³⁸²⁵ the army.

Q. Thank you. But while you were working, did you record those conversations and then send them on to be translated or did you have an interpreter and translator at your location?

A. Yes, we did have a translator, but we monitored them for a very short period of time. Less than a month, in actual fact.

Q. Thank you. Could you tell me which international organisations you listened to a month ago [as interpreted]?

A. A month ago? That was UNPROFOR -- I don't know which they were, exactly, because they all spoke in codes, so we didn't know who they were.

Q. Thank you. And was NATO in your corps' area of responsibility?

A. I really don't know that.

Q. Do you know who was at the airport in Tuzla and whether Tuzla Airport was in your corps' area of responsibility, since you said that you just listened in to communications within your area?

A. Of course --

THE INTERPRETER: Could the witness repeat his answer, please. Thank you.

MR. TOLIMIR: [Interpretation]

Q. Did you -- were you obliged to listen to their communications, because you said that you listened in to all the communications within the area of responsibility of the corps?

A. Probably we listened to them, too, but we weren't able to know who was speaking. We weren't able to determine that. ³⁸²⁶

JUDGE FLUEGGE: Mr. Vanderpuye.

MR. VANDERPUYE: Mr. President, I apologise for interrupting, but at page 25, lines 20 through 22, there's a reference to a question where Mr. Tolimir asks about intercepting a month ago, and it doesn't comport what the witness said, and it's clear in the transcript that it's an error. I don't know if it's an error in the translation, but I thought I should raise that and it should be clarified for the record. That's all.

JUDGE FLUEGGE: Thank you very much for that. Mr. Tolimir, I think not only the interpreters, but also the Chamber is not certain what you really asked the witness. You asked the witness:

"Could you tell me which international organisation you listened to a month ago?"

Did you really say "a month ago," or what was it that you asked the witness?

THE ACCUSED: [Interpretation] Thank you, Mr. President. I did -- I asked the witness, Which international organisations did you listen in to during that month? Because he said that he intercepted international organisations for just one month, so "during that month." Thank you.

JUDGE FLUEGGE: And perhaps you can, sir, answer the question again with this content.

THE WITNESS: [Interpretation] During that month, we monitored all foreign organisations, if I can put it that way, those which were on the air. ³⁸²⁷

JUDGE FLUEGGE: Thank you. Please carry on, Mr. Tolimir.

THE ACCUSED: [Interpretation] Thank you, Mr. President.

MR. TOLIMIR: [Interpretation]

Q. Now, I'd like to ask the witness to tell me this: Can you explain to us and the Trial Chamber who gave you the orders to stop intercepting international organisations, and when did you receive that order?

A. I can't tell you when, exactly. I can't give you an exact date, but it was from our company commander, the order.

Q. Thank you. So if you spent a month listening to them, when did you start working after the course?

A. What do you mean? When did I start working where?

Q. At the northern site. You said that your first task when you started working was to intercept international organisations; was that right?

A. Well, I started working straight away; 10, 20 days after they took me in.

Q. So that could have been around the 1st of May, because you arrived on the 7th of April, you attended a course, and then you arrived on the 1st of May, spent one month listening until June?

A. Well, yes, that would be roughly it, then.

Q. Thank you. Now, could you explain to the Trial Chamber whether your commander -- or who it was who told you that you should stop listening in to international organisations, and what explanation he gave ³⁸²⁸ you for that?

(8 lines redacted)

A. Yes, that was taken as being my entire military service.

Q. How long did military service last anyway while you were serving? What was the general length of time that military service lasted?

A. I really don't know.

Q. Thank you. Do you know how long military service lasts today in the Army of the Federation of Bosnia-Herzegovina?

A. No.

Q. Thank you. Now, did you know that the parties in the conflict in the former Bosnia-Herzegovina were duty-bound, after the signing of the Dayton Accords, to let go a certain number of recruits that were surplus? D plus 20, D plus 20, D plus 60, et cetera, those were the dynamics.

A. Yes.

Q. Now, did you come under the category of persons or, rather, recruits, conscripts, who were supposed to be allowed to go home after the Dayton Agreements were signed, to be released?

A. I was supposed to stay on, but I asked to be released. ³⁸²⁹

Q. Can you tell us whether, in the BH Army, you remained after your military service right up until the moment that you asked to be released?

A. Yes, that's right.

Q. Thank you. Now, in paragraph 3 --

JUDGE FLUEGGE: Mr. Vanderpuye.

MR. VANDERPUYE: Thanks, Mr. President. I have just a request with respect to a couple of redactions in the transcript. Maybe we can go into private session and I can be more specific, or I can just give you the transcript references now, if you prefer.

JUDGE FLUEGGE: Private.

MR. VANDERPUYE: Thank you.

(Private session)

(12 lines redacted) ³⁸³⁰

(8 lines redacted)

(Open session)

THE REGISTRAR: We're now in public session.

JUDGE FLUEGGE: Thank you. Mr. Tolimir, please carry on.

THE ACCUSED: [Interpretation] Thank you, Mr. President.

MR. TOLIMIR: [Interpretation]

Q. Witness, would you please take a look at paragraph 3 of your statement, line four, where you say as follows:

"I did training with the equipment that I was going to use in future, and received instructions."

Can you see that, line 4? Now, my question is: How long did your training last, what were you trained for, and what instructions were you given? Thank you.

A. The training lasted one month, and I was given all the necessary instructions for using the equipment and instructions about what I was supposed to do.

Q. Thank you. Were you just trained to listen in to international ³⁸³¹ organisations at the time in the area?

A. Not exclusively that, no. That was to be my job, but I was also trained in intercepting other communications.

Q. Thank you. Now, could you tell us who conducted the training? Was it somebody from your unit that dealt with interceptions or was it somebody from another area of the 2nd Corps?

A. From our company.

Q. Thank you. Can you tell us if they told you what you were to do if you heard conversations from people from your corps?

A. We didn't usually -- we weren't usually given those frequencies, the frequencies used by our corps, so we didn't intercept those.

Q. Thank you. And did you ever come across units of the BH Army on the air, since they were on the same territory where the Army of Republika Srpska was located in Srebrenica? Thank you.

A. No.

Q. Thank you. Now, you say, in paragraph 6, second line: "Each frequency had 24 channels, and the equipment was programmed automatically to scan all the channels."

Is that correct?

A. Yes.

Q. Now, can you tell us whether all the equipment was like that or just the equipment that you used?

A. No, all the equipment was like that, with the certain frequencies, each frequency divided into 24 channels.

Q. Thank you. Now, did you record all the conversations you heard ³⁸³² on the grid, on the network of those 24 channels, or did you record 48 channels?

A. We only recorded the one channel where we would hear the conversation.

Q. Now, since you just had one tape-recorder --

A. No.

Q. No, what?

A. Well, we had three.

Q. I see, three. Now, did you have enough tape-recorders to tap in to 24 channels? Thank you.

A. For conversations, yes, because the conversations never took place on all 24 channels.

Q. Well, two devices, 24 channels, does that make it 48?

A. No, it's 24 channels of the same frequency.

Q. Thank you.

THE INTERPRETER: Microphone, please.

JUDGE FLUEGGE: And this witness has indicated there were three and not two devices. It's page 32, line 21.

THE ACCUSED: [Interpretation] Thank you. I understood the witness to say he had three tape-recorders for recording the conversations. We can ask him again.

MR. TOLIMIR: [Interpretation]

Q. Did you have three devices for tapping or three tape-recorders?

A. Three tape-recorders.

Q. Thank you. Now, in your note-book, did you record the time, ³⁸³³ place, and date of the conversations?

A. Not the location, just the date and time.

Q. Thank you. Now, did you state the date and time for every conversation?

A. Yes.

Q. Now, in the portion that the Prosecutor supplied you with, with your handwriting, did you have the frequency, time, and date, and participants written down for each of those conversations?

A. What do you mean? Which document? What did the Prosecution supply me with?

Q. The photocopies of your handwriting taken from the note-book.

A. I see.

Q. Does it state the time and date next to every conversation?

A. Not the date, but the time.

Q. Why didn't you write the date in, and is it possible, then, that there might be a mistake in the transcribing?

A. Well, you don't need a date because it would be written into the note-book. The first person coming onto his shift would write the date.

Q. Now, the Prosecutor showed you a note-book a moment ago in which you crossed out a part of the transcribed conversation; is that right?

A. Yes.

Q. Next, the Prosecutor said that the typist -- that what you said was written by Beara, that it was Lucic; is that right?

A. Yes.

Q. Now, I want to know: Is what the clerk wrote correct or what you ³⁸³⁴ wrote?

A. What I wrote is correct.

Q. Thank you. Now, can you tell the Trial Chamber whether there were cases whereby the typist decides what he's going to record of the collocutors in the conversation?

A. I don't believe so, but I don't really know.

Q. And did the typist, in recording a conversation, did he have a tape or did he just have your transcript in handwriting?

A. Just my transcript.

Q. Does that mean that he couldn't change the contents guided by anything other than his own desire?

A. He was supposed to copy everything that I had written, so that should have been that.

Q. Please, can you explain to us why something is being ascribed to one collocutor who is not -- who is being tried here, but it was actually said by a collocutor who was not brought before this Tribunal?

A. No, I cannot really explain things that I don't know anything about.

Q. Thank you. Can you please explain -- thank you. Thank you to the interpreters. Can you please explain why -- or if it would happen that some other conversations that had been crossed out by you were transcribed by the typists and put into a transcript that was sent to the corps by Paket radio? Thank you.

A. No.

Q. Thank you. Can you please tell me why you did not copy the page ³⁸³⁵ that you had crossed out, because it's not a lot of text? Why didn't you just copy it, make a clean copy? Because I saw in your handwriting somewhere that there was a text that you had crossed out, and that you had copied it again the way it should state. Thank you.

A. I don't understand the question now. Each transcript that is crossed out was copied clean.

Q. Thank you. For example, you wrote in one part -- the Prosecutor asked you -- well, let's go to things that you do remember: "The rest of the conversation is irrelevant."

Do you remember that?

A. Yes.

Q. And then after that, underneath that, you wrote: "The conversation is irrelevant."

"This conversation is irrelevant." Thank you. And then he asked you, Why did you decide that it was irrelevant, so that one sentence that was crossed out, you copied again, in your handwriting, in order to indicate that you had crossed out the same text earlier by mistake? Thank you.

A. Yes.

Q. Can you please tell us why you did not cross out the rest of that conversation if you believed that it was accurate and that there were no errors in it? Thank you.

A. I'm sorry. What rest of the conversation?

Q. The Prosecutor showed you two pages that had been crossed out.

A. Very well. ³⁸³⁶

Q. And that conversation was transcribed, and the stenographer typed it out, regardless of the fact that you had crossed it out. Can you please tell us whether you knew -- whether you were able to know that that would be transcribed? Thank you.

A. No, I couldn't know that, because once it was crossed out, it was crossed out.

THE ACCUSED: [Interpretation] Thank you.

JUDGE FLUEGGE: Mr. Vanderpuye.

MR. VANDERPUYE: Thanks, Mr. President. I think it might be a bit easier and more clear for the record, in general, if Mr. Tolimir would show the witness which intercepts he's talking about, because we're talking about two different intercepts in the context of evaluating one, and I think it would be more helpful and clearer for everybody involved if Mr. Tolimir referred to the one intercept which he's just talking about now, which is the 13 July, 10.09 a.m. intercept, and he's asked that also in the context of a 24 July 1995 intercept at 11.32, which is where the witness indicated this portion of the conversation is not relevant. So we're talking about two different intercepts. It's one concept and I think the questions are perfectly appropriate, but I think it's resulted in a lot of confusion to the witness and in the record. If he wants, I can give the number so that he can put that up on the screen and refer specifically to what he's talking about.

JUDGE FLUEGGE: Mr. Tolimir, could you give the Chamber the number of the document you were discussing? ³⁸³⁷

THE ACCUSED: [Interpretation] Mr. President, I did not cite the document. I thought that it was in tab 7, but it doesn't matter. The Prosecutor showed it to the witness here, and the witness told him that something was said by Lucic and not by Beara, and that's the intercept that I was talking about. So I asked the witness whether the typist was allowed to re-type it and ascribe to Beara actually what Lucic said, and he says he doesn't know how that happened, that he wasn't there when the typist did that, so he doesn't know how that happened. And I think the witness understood what I'm asking him and that he said -- I mean, his answer was accurate.

JUDGE FLUEGGE: It would be easier if you could just give the number. We could have it again on the screen. You said it's in tab 7. I don't think this is correct, because there is no portion which is crossed out: It is just easier to show the specific document to the witness.

THE ACCUSED: [Interpretation] Mr. President.

JUDGE FLUEGGE: Mr. Vanderpuye.

MR. VANDERPUYE: Mr. President, the intercept that Mr. Tolimir is talking about is at tab 6. That's the one with the cross-out. The one with the reference to this part of the conversation is not relevant is at tab 7 and that's the reason why we have some confusion in the record. We can proceed however the Trial Chamber sees fit. It just seems to me it might be clearer to show the witness the intercepts.

JUDGE FLUEGGE: And, Mr. Vanderpuye, this is very helpful. It would assist the Chamber and everybody else if you could add the P number ³⁸³⁸ of the documents.

MR. VANDERPUYE: For tab 6, I think it was 663. 663 -- P663. And then for tab 7, it was P162.

JUDGE FLUEGGE: Thank you. Mr. Tolimir, please carry on.

THE ACCUSED: [Interpretation] Thank you, Mr. President. I didn't want to waste time, so I was not dealing with details. Thank you.

MR. TOLIMIR: [Interpretation]

Q. Can you please tell us, can the typist re-type what the intercept operator crossed out? Thank you.

A. No.

Q. Thank you. Can you please tell us whether you, yourself, decided whether a conversation was important or not important, or was this something that was determined by somebody else?

A. No, we decided whether a conversation was important or not.

Q. Thank you. And could the typist decide what he was going to type after you gave him the transcribed intercepts? Thank you.

A. No, he had to type everything.

Q. Can you please tell us if the note-books with the transcribed conversations were handed over to the typist or did you hand them over to your commander? Thank you. This is paragraph 1, line 3, page 3. We are following three of your statements. Thank you.

A. After the shift ended, they were handed over to the commander.

Q. Thank you. Is there a possibility, then, that the commander ³⁸³⁹ would order the typist to type out a text that you had crossed out?

A. No, that was not possible.

Q. Thank you. And did the typist have the same status of intercept operator as you did or was he only assigned tasks of typing and encryption?

A. They had a more favourable status than we did, actually.

Q. Thank you. The note-books that you used, were you issued them by the commander at the facility, the unit commander, and did you have to hand them back in the same state once they were filled in, meaning the same number of pages once they were filled in?

A. As soon as we finished, we would have to return them.

Q. If you made a mistake or crossed something out, were you allowed to rip any pages out and leave just those pages that were aesthetically clean?

A. Yes, I could have done that, but in that case I would also have torn out the text that would be on the other side of that page.

Q. Thank you. Did you keep a tape at any time, and do you remember any conversations on that tape that you kept for yourself?

A. No.

Q. These conversations that are at issue now about what Beara said and what Lucic said, are we able to check those conversations by going and referring back to the audio-recording?

A. No, believe me, I really don't know that. You would need to ask my commander.

Q. Thank you. In paragraph 5, you said, in line 1, that the DB unit ³⁸⁴⁰ worked right next to you at that facility. Do you remember saying that?

A. Yes.

Q. And on line 3 of that same paragraph on page 3, you say, in line 3 of this paragraph 5, that they came in mid-1995. Does that mean that they came in June, July, or May? What do you mean by that?

A. I really don't know what month it was. It was in mid-1995, as far as I can remember.

THE ACCUSED: [Interpretation] Thank you.

JUDGE FLUEGGE: Is that perhaps a convenient time for our first break?

THE ACCUSED: [Interpretation] Thank you, Mr. President. I only have about three questions more for this witness, but it's up to you. It's your decision. Thank you.

JUDGE FLUEGGE: Then please carry on, and before the break you should finish your cross-examination.

MR. TOLIMIR: [Interpretation] Thank you.

Q. Before the 17th of May, 1995, did you speak with representatives of the International Tribunal? Thank you.

A. No.

Q. Thank you. And before speaking with this woman who spoke with you, did anybody from the B and H Army organs tell you that you will be interviewed by representatives of The Hague Tribunal? Thank you.

A. I don't remember that, no.

Q. Thank you. Other than the training that you mentioned, did you attend any other training later, while you were working in the unit ³⁸⁴¹ during your military term of office? And if you did attend any kind of training, where was that?

A. No, I didn't attend any additional training.

THE ACCUSED: [Interpretation] Thank you. Thank you for your answers. Thank you for giving those answers. Thank you for your proper conduct and behaviour. I have no further questions for you. I would like to wish you a happy stay and a happy trip back home. Mr. President, I have no further questions for this witness. Thank you.

JUDGE FLUEGGE: Thank you very much. Mr. Vanderpuye, do you have re-examination?

MR. VANDERPUYE: No, Mr. President, I don't.

JUDGE FLUEGGE: Sir, you will be pleased to hear that this concludes your examination, the questioning for you. You are now free to return to your normal activities. The Chamber would like to thank you for your attendance here in The Hague again, and you may now go home again. Thank you very much, again.

We have our first break --

THE WITNESS: [Interpretation] Thank you.

JUDGE FLUEGGE: -- and we'll resume at 20 minutes past 4.00. And, sir, please wait a moment until we have left the courtroom, for your safety. Thank you.

[The witness withdrew]

--- Recess taken at 3.50 p.m.

--- On resuming at 4.22 p.m. ³⁸⁴²

JUDGE FLUEGGE: Could the next witness be brought in, please. Mr. Thayer, good afternoon.

MR. THAYER: Good afternoon to you, too, Mr. President. Just a quick preliminary, if I could, while the witness is being brought out.

JUDGE FLUEGGE: Brought in?

MR. THAYER: I'm sorry, brought in.

JUDGE FLUEGGE: Too early to bring him out.

MR. THAYER: That's right. I spent a little bit of time on Friday giving the Trial Chamber a heads-up about some of these cassettes that were seized during the Mladic search and what we were going to try to do with them. The bottom line is the actual audiotapes have been re-digitised, and it's difficult to get a uniform time for cuing up the audio, certainly not in time to be able to be used with this witness, so we'll save that for another day, actually playing those audiotapes. What I think we can do today with this witness is he was shown transcripts of those audio-recordings and followed along with me in proofing and compared them to certain things, so we can at least work with written transcripts that were made of those audios. I just won't play them for him today, he did listen to them, and you'll hear some testimony about that. But to the extent that I had talked about playing audiotapes, we're not going to do that. The times that are listed for these conversations on our exhibit list are derived from how they match up, in our submission, with the MUP intercept reports. I don't want anybody to be misled. When we got the casettes from the ³⁸⁴³ Mladic searches, they didn't have times or dates or anything like that on them.

JUDGE FLUEGGE: One moment, please. One moment, please. You should continue.

MR. THAYER: I can leave it there, Mr. President.

JUDGE FLUEGGE: Yes, but I would like to put a question to you. Perhaps wait a moment, just a short moment. Yes, please. Did you give notice about these transcripts to the Defence?

MR. THAYER: Yes, Mr. President. The Defence has had the transcripts in English and B/C/S for a couple of days now. As soon as we got them, we disclosed them over immediately. They've also had the audiotapes. But, again, we're not going to play any tapes today. Also, I just note for the record that we do have Dutch interpreters who will be working with us today. General Nicolai prefers to testify in his native tongue, so we have arranged for them today.

JUDGE FLUEGGE: Thank you. Mr. Tolimir, do you want to comment on that? Mr. Tolimir.

THE ACCUSED: [Interpretation] Yes, Mr. President. I should like to ask that the material that Republika Srpska [as interpreted] has provided to the OTP, that that be used with the restrictions placed on it by the Republic of Serbia, because I don't want to violate any conditions set by my republic, the Republic of Serbia. Thank you.

THE INTERPRETER: Interpreter's correction: Republic of Serbia, not Republika Srpska. ³⁸⁴⁴

JUDGE FLUEGGE: Mr. Thayer, I'm not aware of any conditions.

MR. THAYER: I'll make sure we do not run afoul of any conditions, and there are none, as far as I'm aware, that apply to this material being used in court.

JUDGE FLUEGGE: Any other comments on that? So, again, the witness should be brought in.

[The witness entered court]

JUDGE FLUEGGE: Good afternoon, sir. Do you receive --

THE WITNESS: Good afternoon.

JUDGE FLUEGGE: Do you receive translation in your mother language?

THE WITNESS: Yes, sir. [Interpretation] Yes, I do.

JUDGE FLUEGGE: [Microphone not activated]

THE WITNESS: [Interpretation] Yes, I will. [In English] I solemnly declare that I will speak the truth, the whole truth, and nothing but the truth.

WITNESS: CORNELIS NICOLAI

[Witness answered through interpreter]

JUDGE FLUEGGE: Thank you very much. Please sit down.

THE WITNESS: [Interpretation] Thank you.

JUDGE FLUEGGE: The additional interpretation may create some confusion today because everything is translated into different languages.

THE WITNESS: [Interpretation] Okay. ³⁸⁴⁵

JUDGE FLUEGGE: I think Mr. Thayer has some questions for you. Mr. Thayer.

MR. THAYER: Thank you, Mr. President. Good afternoon to you, again, and good afternoon to you, Your Honours. Good afternoon, General Tolimir, my learned friends. Good afternoon, everyone.

Examination by Mr. Thayer:

Q. Sir, good afternoon.

A. Good afternoon.

Q. I'll make a special effort to speak slowly, since we're having double translation today.

Do you recall testifying over the course of two days in this building in November 2007?

A. Yes, I remember that well.

Q. And did you read all of your testimony from the Popovic case recently, sir?

A. Yes, I read that last week.

Q. And can you attest that the testimony which you read accurately reflects what you said during the last trial?

A. Yes, I can confirm that.

Q. And can you further attest, sir, that were you asked the same questions today that you were asked back in November of 2007, that your answers would be the same?

A. Yes, I would certainly do that.

MR. THAYER: Your Honour, the Prosecution tenders P674, the ³⁸⁴⁶ witness's Popovic testimony into evidence.

JUDGE FLUEGGE: Yes, it will be received.

MR. THAYER: And I note, Mr. President, in the desire to get going, I neglected to ask the witness to identify himself for the record. So why don't I just do that now, before I get underway with the 92 ter summary.

Q. Sir, could you just state your name for the record, please?

A. I'm Cornelis Hendrick Nicolai. I'm a retired major-general. In 1995, I was chief of staff at BH Command, later called the UNPROFOR Command.

MR. THAYER: Thank you, sir. What I'd like to do now is --

JUDGE FLUEGGE: Mr. Thayer, we have a public -- no, sorry, sorry. No, all documents are public. Thank you.

Please carry on.

MR. THAYER: Thank you, Mr. President. I had the same reaction myself, we're so used to everything having a closed-session version.

The witness entered the Royal Netherlands Army in 1965 and, as he just told us, he retired as a major-general in 2004. He arrived in Bosnia in February 1995 as a brigadier-general and served until September 1995 as chief of staff of UNPROFOR's BH Command, based in the Residency in Sarajevo. His immediate supervisor -- his immediate superior, I should say, was the commander of the BH Command,

Lieutenant-General Rupert Smith. ³⁸⁴⁷ General Milovanovic was General Nicolai's designated VRS contact, but he also spoke with Generals Tolimir and Gvero. He saw little point in speaking with VRS officers below the rank of general, since only generals appeared to be authorised to take decisions in the VRS. He had a direct telephone connection with the VRS, and if they needed to send something in writing, they would fax it to an UNMO -- UN Military Observer post in Pale, from which the UNMOs would transmit it to the VRS. Because UNPROFOR was entirely dependent on the VRS for convoy permission, and because the VRS increasingly refused more and more resupply and humanitarian aid convoys, and supplies were consequently dwindling, General Smith assigned his staff to come up with an air resupply plan to be backed up by the use of force via air support. This plan was ready by the end of April, but was not approved by higher levels.

General Nicolai was the highest-ranking Dutch officer in the UNPROFOR Command and was, therefore, empowered to contact Colonel Karremans directly, and did so regularly. Colonel Karremans reported problems DutchBat had owing to the VRS convoy restrictions, orally and in writing, including a report in early June in which Colonel Karremans reported that operationally he was no longer able to do his job properly.

In June 1994, UNPROFOR had the impression that the number of VRS troops surrounding the Srebrenica enclave had increased. In addition, the UN was increasingly shot at, and civilians were also randomly fired upon by VRS artillery and mortars. Protest letters were issued in ³⁸⁴⁸ connection with these actions.

During the VRS attack on the Srebrenica enclave in July 1995, General Nicolai was kept informed by situation reports directly from Colonel Karremans and Sector North-East's commander, in addition to reports directly from British special forces inside the enclave. General Nicolai's information during the VRS attack and up to the point the enclave fell was not confused at all. He continuously received accurate reports from DutchBat and was particularly well-informed about what was happening.

During the course of his testimony, General Nicolai reviewed several reports of telephone conversations between him and Generals Tolimir and Gvero, as well as other VRS officers, from 8 July through 16 July 1995. Each time he told Tolimir during these telephone conversations that the UN was being attacked by the VRS, Tolimir denied it. General Nicolai was fully convinced that General Tolimir knew exactly what was going on, but was unwilling to confirm that. General Nicolai also testified about a written final warning issued by the UNPROFOR to the VRS, at approximately 2220 hours on the night of 9 July, that if the VRS attacked the DutchBat blocking positions, close air support would be employed. Blocking positions were, in fact, taken up to block the approaching VRS troops and to create a situation where they had no choice but to attack the UN as well. In that case, because the civilian population was being threatened and the UN was being attacked, the entire international community would then understand that a situation had materialised that justified the use of air support. ³⁸⁴⁹ On the night of 9 July, Colonel Karremans sent a written report to UNPROFOR Command, which, among other things, requested air support to take out all VRS positions around the enclave; otherwise, NATO air support would result in massive VRS retaliation on DutchBat and the civilian population. The VRS had responded to NATO air-strikes in May by shelling the enclaves, including the center of Tuzla, causing a bloodbath, so it was extremely likely that that would be a possible reaction from the VRS.

On 10 July, the VRS attacked the UN blocking positions, and the UN fired back. Close air support was requested and approved. However, this was not the first time the conditions had been met justifying close air support. On several occasions previously during the VRS attack, employment of air support had been justified in self-defence of UN peacekeepers and where the civilian population had been attacked. In the evening of 10 July, General Nicolai left a message at the VRS Main Staff that close air support had been requested.

After close air support was delivered in the afternoon of 11 July, General Gvero threatened General Nicolai in a conversation at 1615 hours that if close air support continued, General Nicolai would be responsible for the destiny of his men and the civilian population in the area. A VRS threat to shell the Potocari compound and its surroundings with the civilian population gathered there, had been received that afternoon by Colonel Karremans, so although General Gvero did not himself, in so many words, literally threaten that the compound would be shelled, in combination with the threat to shell the compound received by ³⁸⁵⁰ Colonel Karremans and the threat issued by General Gvero that General Nicolai would be responsible for the consequences to the civilian population of not discontinuing air support, General Nicolai and General Gobillard both took Gvero's reference to the destiny of the peacekeepers and civilian population as a threat to shell them if close air support continued, and led UNPROFOR to decide to discontinue air support. UNPROFOR took this threat seriously because of the sweeping retaliation actions which the VRS had taken when air support was used previously.

By 11 and 12 July, General Nicolai assumed that General Gvero was in charge of VRS headquarters. Based on what General Gvero said during the course of the conversations, one would conclude that he was poorly informed, but General Nicolai testified that he was not foolish enough to take that at face value. In his conversation with General Gvero at 1615 hours, half of what Gvero said was nonsense and lies, and Gvero lied outright when he claimed the VRS was not attacking the UN at all. He assumes that General Gvero was well-informed about what was going on, but just did not say so, because in all respects the VRS made the impression of being a well-trained, disciplined army, and in every well-trained and disciplined army, reports are submitted daily or multiple times a day about communications. The VRS had the communications means required for this, so it had been highly improbable for the headquarters of the VRS not to be aware of what was happening in the Srebrenica enclave. Following the take-over of the enclave by the VRS, UNPROFOR tried to bring in higher-ranking officers than Colonel Karremans to meet with ³⁸⁵¹ Mladic, but were not successful.

General Nicolai also testified about efforts to evacuate the remaining wounded from Potocari and Bratunac, and the withdrawal of DutchBat from the enclave a few days later on 21 July. He testified about videotaped footage of the DutchBat convoy of vehicles leaving the enclave and crossing a bridge into Serbia. His orders were to ensure at all costs that DutchBat left the enclave as there was to be a conference in London the next day at which forceful decisions would be taken, so they did not want to leave any peacekeepers there. Despite concluding an agreement with General Smith in Belgrade in which he agreed to permit DutchBat to leave with all of its equipment, General Mladic did not return the equipment taken by the VRS from the peacekeepers who the VRS had captured.

Finally, part of the agreement between General Smith and General Mladic was also to permit international access to Srebrenica and Bratunac. When he went to Srebrenica, General Nicolai saw houses which had been destroyed or crumbled by recent shelling, as well as Serbs entering the town to establish themselves in houses which had been liberated. Contrary to Mladic's signed agreement, however, General Nicolai was not permitted to inspect Bratunac, which he wanted to do owing to rumours that large numbers of Muslim men who had fled the enclave had been captured and possibly held prisoner in Bratunac. At this time, Mr. President, the Prosecution would tender the associated exhibits admitted through General Nicolai in his prior testimony, and I believe that is P675 through P694, without any gaps in ³⁸⁵² those numbers.

JUDGE FLUEGGE: These documents will be received with the given numbers.

MR. THAYER: Mr. President, I've asked for an hour and a half to examine General Nicolai. I will likely exceed that, given I'm clearly proceeding at a more ponderous pace than even normal, so I ask the Court's indulgence in advance. I will try to move as quickly as I can at the same time, however.

JUDGE FLUEGGE: Please go ahead.

MR. THAYER: Thank you, Mr. President.

Q. General, you served as the chief of staff to General Smith during your tour of duty in Bosnia. Can you give the Trial Chamber, please, an idea of what the work of a staff entails in an organised, modern army? Just, if you could, give the Trial Chamber some sense of what staff work day to day involves.

A. Yes, I can do that. The commanding general is supported in his duties by a staff, and the purpose of that staff is to ensure the commander is provided with all information necessary for decision-making. The staff will also advise him in taking such decisions. Next, the staff will ensure that the assignments issued by the commander are converted into orders to be issued to the troops responsible for carrying them out. In addition, the staff ensures that all standard reports are compiled and sent daily to the institutions requiring them. The staff is supervised by the chief of staff, as the word indicates, and in that capacity he's the chief adviser ³⁸⁵³ to the commander.

Q. Now, I want to turn your attention, General, to the events during the VRS attack on the Srebrenica enclave, and I want to focus specifically on the 8th to, let's say, the 11th of July for the time being.

Was General Smith present at BH Command Headquarters in Sarajevo during this period?

A. No, unfortunately, he wasn't. He was absent because he was on leave.

Q. And just briefly, sir, how did his absence affect your duties and work, if at all, during the VRS attack?

A. During General Smith's absence, the command was assumed by the highest-ranking general present at that time, and that was General Gobillard, commander of the South-West Sector, which was also located in Sarajevo. The agreement was that General Gobillard, as needed, would come to the UNPROFOR headquarters. He ordinarily did this for the morning and evening briefings and at any other moment that his presence there was necessary. For example, during the events on 10 and 11 July, General Gobillard was present at the headquarters almost continuously. And the staff performed the same operations as they ordinarily would for General Smith, but in this case they did this for General Gobillard.

Q. Thank you, General. Just a minor point, but I just want to make sure we are as accurate as possible. Was General Gobillard the commander of Sector South-West or was he commander of another sector? ³⁸⁵⁴

A. He was the commander of the Sarajevo Sector. Only when he was acting as commander of UNPROFOR, obviously, his function was assumed by one of his chiefs of staff.

Q. Okay. What I'd like to do now is go back a little bit and show you some documents from before July 1995, and just ask you to look at them and tell the Court a little bit about each one of them. May we have P710, please.

Do you see a document in English on the right of your computer screen, sir?

A. Yes, I see that.

Q. Can you tell the Trial Chamber what this document is, please, and what it refers to?

A. It's a message from General Janvier, the UNPF force commander, to Mr. Annan in New York, and it concerns air supply to the eastern enclaves and the Sarajevo enclave. It's about the preparations for a plan to supply those enclaves in case of emergency via air if the situation becomes such that the supply situation is endangered either to the civilians or to the military in that enclave.

Q. Okay. Let's focus on paragraph 2 for a quick moment, and this will be page 2 of the B/C/S.

And, first, is this air resupply plan the one that you testified about in Popovic that I mentioned in the summary of your evidence a moment ago?

A. Yes, that's correct.

Q. So by the middle of April, how would you characterise the ³⁸⁵⁵ humanitarian situation and the DutchBat resupply situation, such that this plan had been underway and passed up to higher levels like General Janvier and Mr. Annan?

A. Operationally, at least, the situation was exceptionally disconcerting because hardly any fuel remained. Just barely enough fuel remained to keep the communication devices going, but no means were available for motorised patrols and the like. So in emergencies, an ambulance could drive out, but additional use of vehicles was curtailed because of the fuel situation. In addition, as for water, the standard day supplies were a problem. Fresh food was no longer present in Srebrenica, and all they had, I think, were combat rations. So there were combat rations that would last 23 days.

Q. Okay. And if we look at paragraph 2, where it refers to VRS intransigents in refusing requests for fuel and other convoys into Sarajevo and the enclaves, how accurate a description is that of the situation, as you saw it, at this time?

A. Well, that description is 100 per cent accurate.

Q. Now, if we look in paragraph 3 or point 3, there are a number of columns, and we see an asterisk which shows that these figures are shown in days of supply. And we see that for Srebrenica, there is zero days of fresh food, 12 days of water, zero days of diesel, and zero days of petrol. Based on what you recall from that period, sir, is that an accurate description of the situation as it stood then?

A. Yes, this description is virtually 100 per cent accurate. Please note that the DutchBat vehicles still contained some quantity of fuel, ³⁸⁵⁶ but that quantity was being saved to try to attempt to break out in case of emergency and was not to be used for additional patrols in the area of operations.

As far as food, the situation was not good. Twenty-three days of combat rations will suffice for nearly a month, but fresh food is -- as far as health, and especially of soldiers that have serious duties to perform, it's required for an extended period.

MR. THAYER: Now, let's turn to page 2 of the English, if we could, please.

Q. We see a description of the situation in both Srebrenica and Zepa. Do you see those descriptions at subparagraphs A and C, General?

A. Yes, I've read them.

Q. And do those descriptions accurately reflect the conditions as they were being reported to you during this time, sir?

A. Yes, although, of course, I no longer remember the exact figures off the top of my head. I believe that the circumstances were as reported to us at that time.

Q. Now, if we look at paragraph 5, it refers to an outline chart for UNHCR supplies being attached.

So if we could go to the next page in English, and this is page 4 in the B/C/S, and I think we'll need to rotate the image when it comes up. And if we could blow up the two right-hand columns on each exhibit, please, that list the food requirements and the delivered column, that would be helpful, please. So that would be the middle column and the right-most column. ³⁸⁵⁷ Now, sir, the row second up from the bottom is for deliveries and requirements for the Srebrenica enclave. Do you see the entries in the March and April column for food requirements of, it looks like, 678 tons for both months required?

A. Yes, I see that.

Q. And do you see -- under the columns for March and April, under the "Delivered" heading, do you see the figures for 547 tons and 363 tons respectively? Do you see those decreased amounts, sir?

A. Yes, I see those.

Q. So focusing on April, for example, where the required amount was 676 or 678 tons, and then having 363 tons delivered, were you aware of what, generally speaking, the margins were in terms of the food availability in Srebrenica and the effect that such a decrease would have on the population there, based on what was being reported to you?

A. Yes. Clearly, if less supplied than necessary to enable people to exist normally, then they'll go hungry or they have to ensure that they supplement their food supply through different means. But especially during the winter months, that's far from simple.

MR. THAYER: Okay. I think we're done with this document, Your Honour.

Mr. President, I would tender P710 at this time, please.

JUDGE FLUEGGE: It will be received.

MR. THAYER: May we have P711, please.

Q. Okay, sir. We have what's identified on its face as an UNPROFOR Civil Affairs Office weekly situation report, dated 15 May 1995, and we ³⁸⁵⁸ see it's from Deyan Mihov, acting DSRSG/CAC. Can you decrypt that for us, please? And if you don't remember after these years, that's fine.

A. In any case, it's from the head of Civil Affairs from Sector Sarajevo or the UNPROFOR headquarters in Sarajevo to the head of Civil Affairs in Zagreb, so the UNPF staff. It's a weekly situation report regarding the status quo within Bosnia-Herzegovina.

Q. And we see here that Mr. Mihov is located in BHC HQ Sarajevo, and that was your command; is that correct?

A. He was part of General Smith's staff, yes.

MR. THAYER: Let's go to page 4, please, of this document, and that will be page 6 of the B/C/S. And if we could just focus on paragraph 10, please.

Q. We see where it says, in the first two sentences, that the Serbs are allowing some UNHCR convoys into the eastern enclaves, but continue to deny UNPROFOR resupplies, creating critical conditions for the troops. Again, how does that correspond to what was being reported to you at the time? This is in May.

A. Yes, that's entirely correct.

MR. THAYER: Okay. Let's go to the next page in English and look at paragraph 16, and this will be page 7 continuing on to page 8 in the B/C/S.

Q. Sir, we often hear the term "eastern enclaves" used. In your experience, did that term include not only Srebrenica and Zepa, but also Gorazde?

A. Yes, that's correct. ³⁸⁵⁹

Q. And if you could just read this paragraph to yourself. And I note that it refers to convoys being refused, decrease in consumption of fuel, foot patrols, cooking with wood. Were those conditions you recall being reported to you about, first, the peacekeepers in Gorazde?

A. Yes. Yes, that's correct.

JUDGE FLUEGGE: Sir, I would like to ask you not to breathe into the microphone. It creates quite a lot of noise, and this is a problem for the interpreters. Thank you.

THE WITNESS: [Interpretation] I'll pay attention to that.

MR. THAYER: Okay. We're done with this document, and the Prosecution would tender P711, Mr. President.

JUDGE FLUEGGE: It will be admitted into evidence.

MR. THAYER: May we see P707, please.

Q. Sir, can you tell the Trial Chamber what this letter from General Janvier to General Mladic is about, and what you know about the conditions reflected in it?

A. Yes, I can tell you. It's a letter from General Janvier, the force commander, to General Mladic, about the fact that a considerable number of DutchBat soldiers - he mentions about 170 here - are waiting in Zagreb for permission to be allowed to return to the enclave. I'd like to make clear to the Court that during their deployment, the soldiers were granted a brief leave once or twice, and in this case, upon returning from their leave, they were not given permission to return to the enclave, which considerably compromised the strength of the troops inside the enclave. ³⁸⁶⁰

Q. And did the VRS deny the DutchBat soldiers the ability to rotate back in on just one occasion or did it happen on more than one occasion?

A. That happened multiple times. Ultimately, the original strength of about 650 servicemen in the Srebrenica enclave decreased to about 350 servicemen. That means that carrying out -- this considerably curtailed carrying out the duties by DutchBat. And we were always very surprised that permission was not granted. It was the Serb military that was complaining that we were not performing our duties sufficiently within the enclave.

Q. Okay. So just to be clear, this wasn't a case where 170 soldiers all went on leave at the same time and then weren't let back in; is that correct?

A. That's correct.

MR. THAYER: Okay. We're done with this document, Mr. President. The Prosecution tenders P707.

JUDGE FLUEGGE: It will be received.

MR. THAYER: May we have P712, please.

Q. General, we have here a Sector Sarajevo sitrep dated 1 June 1995. We can see it's from HQ Sector Sarajevo to HQ UNPROFOR Command Forward. And, again, that was your headquarters; correct?

A. Yes, that's correct.

Q. And if we look at the bottom of page 1, this page we're looking at here in English, and we'll have to go to page 2 in the B/C/S to catch the line I want to focus on, we see a report that:

"The most critical situation with the food is in Gorazde and ³⁸⁶¹ Zepa ..."

And we see the acronym or abbreviation "UKRCOYs" or "UKRCOYs." Can you tell us what that stands for, sir?

A. Yes, that denotes a Ukrainian company that was with the British Battalion in Gorazde. At that British Battalion, a Ukrainian company was under the command of the British.

Q. And were the Ukrainians also in Zepa as well, General?

A. Yes. In Zepa, exclusively Ukrainian troops were present.

Q. This report goes on to indicate that this critical situation was due to the blockade of these pockets by the VRS and there's no opportunity to resupply them. How would you describe the accuracy of this term "blockade" here? Is that exaggerating or is that how UNPROFOR was, in fact, experiencing the VRS restrictions at this point?

A. No, this is exactly what was the case there. In all cases, we needed to request permission for convoys to enter those enclaves in advance. Sometimes they were rejected in advance, and sometimes, even after permission had been granted to transfer a convoy, it would still be blocked en route. And in both those cases, the consequence was that the supplies necessary did not reach the enclave.

Q. But to be clear and fair, General, was it the case that no convoys ever were approved by the VRS and reached the enclaves, or did some, in fact, reach the enclaves prior to July 1995?

A. No, some convoys were let through, but basically fewer and fewer than would be necessary to supply the units with the required supply levels. But convoys were allowed through in dribs and drabs, so that ³⁸⁶² they had just enough to survive but didn't have enough to perform their duties properly.

MR. THAYER: Okay. We're done with this document, and the Prosecution would tender P712, please.

JUDGE FLUEGGE: It will be admitted into evidence.

MR. THAYER: May we have P713, please.

Q. Okay, we have a Sector Sarajevo weekly situation report, dated the 3rd of June, 1995. We see that it's from David Harland, and we can all read that he's listed as the senior civil affairs officer, Sarajevo. Did you --

A. Of the Sector Sarajevo, and reports to the BH Command Headquarters, also in Sarajevo.

Q. And during this time, sir, did you know who David Harland was, and did you rely on his work product at all?

A. Yes, I knew who he was, and this is an official report from the Sector Sarajevo. And I have no reason whatsoever to assume that those reports are inaccurate.

Q. Well, during the course of your duties, did you regularly receive and review reports such as this and rely on them?

A. Yes, we received them ordinarily, and I fully relied on them.

Q. Now, if we see the distribution list here, it starts with "Zagreb." And then under "Sarajevo," it says "BH commander." Who was that, sir?

A. That's General Smith.

Q. And then we see "COS." What does that stand for, and who is ³⁸⁶³ that -- who was that on 3 June 1995?

A. "COS" denotes "Chief of Staff," and that was me at that time.

Q. Okay. Let us go to page 3 in e-court, please, and this will also be page 3 in the B/C/S.

And in the -- in both versions, I just want to focus on the paragraph headed "Zepa supply crisis." I just ask you to read that to yourself, and ask you, first, whether that accurately reflects what was being reported to you at the time.

A. I'll read it. Yes, this information corresponds with what I remember from that time.

Q. And do you recall whether or not the DutchBat peacekeepers in Srebrenica were facing similar consequences of the lack of fuel?

A. Yes, I can confirm that, also based on my own observation, because I visited Srebrenica once, too.

Q. And there's a reference here at the end to needing to urgently address, at the highest level, this problem. Do you know whether that was done, sir? And if so, who was addressing whom about that problem, if you recall?

A. Yes, of course, that was consistently reported to the headquarters in Zagreb, and I assume that Zagreb reported that back to the UN headquarters in New York. What was done about that, aside from the measures that the troops took, themselves, in the enclaves, in the specific case of Srebrenica the advantage was that there were also UNHCR fuel supplies that were not really intended for the servicemen, but for ³⁸⁶⁴ the local population, but we managed to convince the UNHCR staff that in this case it was necessary to have part of the supply used by the soldiers in the enclave.

Q. Okay. And I think we saw a reference to DutchBat having to take over some of the UNHCR fuel in one of the earlier documents. Okay, I think we're done with that document. Thank you. That's P713, and the Prosecution would tender that exhibit now, Mr. President.

JUDGE FLUEGGE: It will be received.

MR. THAYER:

Q. During your testimony in the Popovic case, General, you recalled numerous reports and complaints from Colonel Karremans about his decreasing ability to carry out his mission, and you specifically remembered one in May at some time and then early June. Do you recall that testimony?

A. Yes, I remember that.

Q. I want to show you a written report - this is P620 - and ask you whether or not this is one of the reports which you were speaking about.

A. Yes, that's one of those reports.

Q. Now, we see it's dated 4 June 1995, and it's being sent to your command, HQ UNPROFOR Sarajevo, through the Command of Sector North-East. Who is the commander, if you recall his or her name, of Sector North-East?

A. That was the Norwegian Brigadier-General Hougland.

Q. And did he have a deputy?

A. Yes. That was the Dutch colonel -- well, the name doesn't come ³⁸⁶⁵ to mind just now, but I'll think of it in a moment.

Q. I can give you a little hint. Initials C.B., how about that?

A. Yes, Charles Brunt [phoen].

Q. Okay. Now, let's look at paragraph 1. And Colonel Karremans here reports that:

"Due to limitations in operational and logistical sense, as well as in humanitarian-wise, the mission of the battalion is not longer feasible. DutchBat is not able to execute any action, nor can it respond on forthcoming deteriorating situations. Being hostage of the BSA," or VRS as we refer to it here, "for over more than three months, something has to be done."

Now, was this the first time that Colonel Karremans had expressed to you his concerns about the effect on his ability to carry out his mission as a result of the convoy restrictions?

A. No, he had told me some signs of this earlier, including some oral conversations that we had now and then, but he believed that the situation had become such that he could no longer truly carry out his operational duties properly, aside from reporting what was happening. He could do that, but acting against wrong-doings that arose was no longer possible by him. And because that's a very serious implication, he set this forth in an official report so that it was clear to all superior levels.

Q. And when you refer to wrong-doing, General, what are you talking about there?

A. Well, possibly shooting incidents by any party whatsoever, both ³⁸⁶⁶ the Bosnian Serbs and the Muslim soldiers, in the enclave, or acting against Muslim soldiers in the enclave that were armed and thus should basically have been disarmed were troops that either wanted to infiltrate the enclave or Muslim soldiers that wanted to leave the enclave, who should, in fact, be prevented, but he no longer had the means to do so.

Q. Now, the Trial Chamber's heard a lot of testimony and we just went through a small stack of documents, most of which pertain to the effects of the VRS restrictions on DutchBat convoys. There were some references to the UNHCR's problems with similar restrictions. Here, Colonel Karremans refers to the limitations, as he puts it, humanitarian-wise. What kinds of limitations was he experiencing, as he reported to you, General, in terms of the humanitarian mission of DutchBat?

A. First, of course, DutchBat supported UNHCR in supplying the local population. Well, you've noticed that this was no longer possible to do properly, given the supplies that were entering. But what may have been even worse was that although it was not strictly part of DutchBat's duties, DutchBat also provided medical aid to the extent they were able to with the supplies available to them, but because they were encroaching increasingly upon the supplies, the level of the supplies plummeted so far that the increase in the faced dilemma as to whether it was still responsible to provide the local civilian population with aid, because this would probably be at the expense of resources that DutchBat might need if it ran into problems of its own.

Q. Okay. Let's look at page 2 of this document, please, and this is ³⁸⁶⁷ also page 2 in the B/C/S.

Focusing on page 3 for a moment, this refers to, as Colonel Karremans does, the deliberate attack on OP Echo by the VRS. He reports here that after the attack, the VRS denied the attack and stated that it did not use any arms. What do you know about this statement by the VRS that was reported from Karremans and how that comported with what actually happened, General?

A. Well, if I say that this is inaccurate information, then that would be an understatement, a lie. The UNPROFOR soldiers would never have left the OP except when violence was being used, and certainly not at that stage. And I also know that although they were forced to leave the OP, they still adopted positions in the surroundings of the observation post. But that they were being shot at is beyond question.

Q. Now, let's look down at paragraph 5, General. And that will be on, in the B/C/S, page 3, and we can stay where we are in the English. In the first sentence Colonel Karremans says that -- and I'm paraphrasing a little bit from what he said in the paragraph above, but he's expressing here his concern, is he not, that if the VRS continues their offensive operations, the SSP will be lost and about 3.000 refugees either killed or expelled towards Srebrenica town? First, what is SSP, if you can remember?

A. "SSP" denotes Swedish Shelter Project, and in that project approximately 3.000 refugees were provided with accommodations in the southern section of Srebrenica. If the southern part of the enclave were lost, then the refugees would either have to receive accommodations ³⁸⁶⁸ elsewhere if nothing else was done to them.

Q. Now, Colonel Karremans says here that they'll either be expelled towards Srebrenica, as you just alluded to, or be killed. Now, I want to make sure, again, we're being fair and accurate here. Were you given to understand, from the reporting from Colonel Karremans, that he was concerned about some kind of mass executions that hindsight tells us may have occurred or is he talking about something else when he's talking about 3.000 refugees being killed here? Based on your conversations with him and his reports to you, what is he talking about here happening to these refugees?

A. I think that at that point, Colonel Karremans did not yet realise that these refugees would be deliberately executed, as presumably happened later on, but nonetheless the enclave was regularly shelled by artillery and by mortars. And this held true for the place Srebrenica as well as for the Swedish Shelter Project, and conceivably when, conceivably, there was shelling at the accommodations of the refugees or if refugees were fleeing, there might be casualties, victims. I believe that that's what he meant.

Q. Okay. Thank you, General. Now, if we go down to paragraph 6, and if we could scroll down just a bit, thank you very much, so we can see paragraph 6. Colonel Karremans talks about the food situation getting dramatic, the warehouses will be empty within some days, and then he refers to self-made electricity installations being washed away by a flood. What is he referring to there, sir; do you know? ³⁸⁶⁹

A. Yes. The local population installed some kind of mills in rivers so that they used water power to generate electricity. So they were basically water mills.

Q. He goes on and refers to lack of medical aid, the hospital not being able to cope, the field dressing hospital not being able to assist, and then he reports that:

"Many inhabitants left their houses and moved towards the city." And this is on the 4th of June. What were you given to understand was going on, sir?

A. That the population in the enclave felt seriously threatened, and leaving many of their possessions, they fled to what they presumed would be a safer place, which in this case was the town of Srebrenica, where a DutchBat company was stationed. And some distance from Srebrenica, there was also the compound in Potocari, and apparently they presumed that that area was safer than the rest of the enclave.

Q. And just before talking about the inhabitants leaving their homes and moving towards the city, Colonel Karremans refers to shelling of Srebrenica occurring "lately." What do you know about shelling of the enclave during this period of time?

A. What I remember, and this is true not even exclusively for Srebrenica, but for all enclaves, is that after the cessation of hostility agreement expired, which was an agreement reached between the warring parties and the UN, and it expired at the end of April, then increasingly violations occurred of prior agreements, which meant that the number of violent incidents increased consistently starting in May, ³⁸⁷⁰ and this definitely continued until the UN had conducted air-strikes at the end of May. Until then, it certainly got worse and worse.

JUDGE FLUEGGE: Mr. Thayer, do you think that this could be a convenient time for the second break?

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

JUDGE FLUEGGE: Thank you. Sir, we must have a break now on technical reasons. The tapes must be rewound. And we will resume at quarter past 6.00.

--- Recess taken at 5.46 p.m.

--- On resuming at 6.17 p.m.

JUDGE FLUEGGE: Yes, Mr. Thayer.

MR. THAYER: Thank you, Mr. President. The Prosecution would tender P620, the 4 June report from Colonel Karremans we've been discussing.

JUDGE FLUEGGE: It will be received.

MR. THAYER:

Q. General, you spoke a little while ago about the situation resulting from the convoy restrictions being reported to higher levels, from Karremans all the way up to Zagreb and then above. Let's look at P714, please.

We have here a 14 June 1995 code cable from Mr. Akashi, at the UN Protection Force Headquarters in Zagreb, to Mr. Annan, who we know was the high-level official at the UN in New York at the time. Do you know what Mr. Akashi's position or role was, General?

A. Mr. Akashi was the highest UN representative in that operational ³⁸⁷¹ area of the former Yugoslavia, and the representative of Mr. Annan on behalf of the UN in New York.

Q. And if we look at paragraph 2 here, and we'll have to go to page 2 in the B/C/S to see it there, Mr. Akashi is passing up this information that:

"None of the UNHCR convoys to the enclaves received clearances. The Srebrenica convoy had been cancelled," and so forth. Do you see that, sir, at paragraph 2?

A. Yes, I've read it.

Q. My first question is: How does this information correspond with the reports you were receiving at the time?

A. Completely. Basically, this report that was sent to New York is based on the reports that we issued to the headquarters in Zagreb.

MR. THAYER: Okay. That was my second question. So we're done with this document, and the Prosecution would tender P714, please.

JUDGE FLUEGGE: It will be received.

MR. THAYER: Now let's take a look, please, at P715.

Q. We have here, about six days later, on 20 June, another code cable from Mr. Akashi to Mr. Annan.

Let's look at page 2 of this document, please. That's paragraph 5. And that starts on page 2 of the B/C/S, but goes over to page 3. So for now, page 2 in both languages, please. Paragraph 5, Mr. Akashi is reporting that:

"Problems with convoys, both logistics resupply and UNHCR, ³⁸⁷² continue in many parts of the UNPROFOR area of responsibility." And then he goes and details the restrictions.

Can you tell the Trial Chamber what you know about the types of restrictions and the severity of these restrictions that are enumerated here?

A. Do you mean the restrictions regarding the specific convoy or in general?

Q. In general, sir. I note that it refers to both UNPROFOR and UNHCR convoys, and also to troop rotation, so if you could just address, again, those three issues and how this comports with what was going on.

A. Generally, the procedure was as follows: When we requested permission to supply an enclave through a convoy, either a UNHR [as interpreted] convoy or a convoy intended for UNPROFOR, then we had to indicate in advance how many vehicles were involved, the quantity of the supplies, and the nature of the supplies that we wanted to bring in. Agreements were reached in advance about this. Sometimes an entire convoy was approved, and sometimes restrictions were imposed in advance; for example, only this number of vehicles or this quantity of supplies may be brought in, or certain types of material were prohibited from entry; for example, spare parts or munitions. So this was agreed in advance.

In this specific case, because the situation was so desperate, extensive negotiations about this specific convoy, as well as the route, took place, but en route -- and the route was rather unconventional. It went along a Serb territory via Belgrade and so on to the eastern ³⁸⁷³ enclaves. But en route, new restrictions kept being imposed, so we had to keep leaving behind more vehicles or more supplies so that, in the end, a stripped-down convoy reached the enclaves.

Q. And we see at the very end of this paragraph a reference to UNMOs not being able to rotate. To what degree were you informed about any restrictions on UNMO rotation, as opposed to DutchBat or Ukrainian Company rotation restrictions?

A. We received full reports. First, all units in the Bosnia-Herzegovina area of responsibility were required to report to a headquarters, and the UNMOs also reported to the highest UNMO representative present at the Sarajevo headquarters, who attended our meetings every day and issued daily reports to Zagreb. Clearly, these reports were also intended for their own staff and the UNPROFOR commander in Sarajevo. And the same held true for UNHCR. They also had a representative attending our daily meetings. So all these institutions provided us with daily information about what was going on.

MR. THAYER: Okay, General, thank you. We're done with this document, and the Prosecution would tender P715, please.

JUDGE FLUEGGE: It will be received.

MR. THAYER: May we see P716, please.

Q. We have here a Sector Sarajevo weekly situation report, dated 24 June, 1995. We see, again, it's from David Harland. Among other people or recipients, we see "BHC." I take it that's BH Command, Sarajevo, your command, sir. ³⁸⁷⁴

A. That's correct.

Q. And we also see, down under "Information Copies," it being distributed to UNPROFOR Headquarters, Sarajevo, chief of staff. Is that also correct, sir?

A. That's correct.

Q. Let's go to page 5 of both the English and the B/C/S versions, please, and I just want to focus on that last paragraph beginning with: "After 16 weeks ..." Do you see that, sir?

A. Yes, I've seen that.

Q. Do you recall receiving this particular information, sir, at the time, or do you only have a general recollection of this type of incident occurring?

A. Well, you'll understand that given daily and weekly reports, my memory is only general and does not specifically include this message.

Q. Okay. How aware were you of the fuel situation -- fuel delivery situation in Zepa?

A. I was exactly aware of that. The situation was no different from Gorazde and Srebrenica, because the regime applied by the Bosnian Serb forces applied to all enclaves.

MR. THAYER: Mr. President, the Prosecution would tender P716, please.

JUDGE FLUEGGE: It will be received.

MR. THAYER:

Q. Now, sir, you testified in the Popovic case about protest letters that were issued by UNPROFOR on various occasions, and I want to show you ³⁸⁷⁵ two examples very quickly.

The first is P708, please. Can you tell us what this is and what it's about, please, General?

A. This is a letter from me to General Delic, commander of Bosnian troops, the BiH troops. It's a response to a letter that he sent to UNPROFOR headquarters complaining about all kinds of things. Let me see what it's about. It's probably about insufficient exercise of our duties, but I just need to look at the text a moment, please.

Q. Take your time, General. And there is a second page, so when you're ready to turn, we can just go to page 2.

A. I've read this page. General Delic had complained about certain hostilities carried out by the Bosnian Serb Army, and had complained about the insufficient action against these by UNPROFOR. And I responded to him that as a consequence of the circumstances in which DutchBat was, we were not able to perform -- they were not able to perform their duties to 100 per cent, but they were still manning the observation posts and trying to keep things under control. I also notified him that we objected to the hostilities perpetrated by the Bosnian Serb Army. At the same time, I told him, in the final paragraphs of this letter, that the DutchBat commander had also complained about activities by the Muslim soldiers in the enclave, and I subsequently warned him that if he continued, he would provoke and also jeopardise the safety of the civilian population in the safe area, and that this made it extremely difficult for UNPROFOR to ³⁸⁷⁶ properly protect the safe area.

Q. Okay. Well, what led you to warn General Delic that their attacks from inside the enclave by his troops would endanger the safety of the civilian population?

A. Based on experience, actions instigate reactions. Each time hostilities were undertaken, a response would ensue, and unfortunately these responses did not always target the soldiers that had perpetrated the hostilities, but the retaliation was applied to the civilian population, for example, by shelling parts of such a safe area.

MR. THAYER: Okay. The Prosecution would tender P708, Mr. President, please.

JUDGE FLUEGGE: Yes, it will be received.

MR. THAYER: And may we take a look at P709 now.

JUDGE FLUEGGE: May I ask, at that point in time, one question. You said in your question, Mr. Thayer:

"What led you to warn General Delic that their attacks from inside the enclave by his troops would endanger ..." And so on. But I see in this text:

"During the last few weeks, for several times, had to warn your troops in the enclave to restrain from attacks outside the safe area." I just wanted to clarify. What do you mean by "inside" and "outside"?

MR. THAYER: Thank you, Mr. President.

Q. General, I see where the confusion lies. But if you could take a crack at answering His Honour's question, please. What is meant here ³⁸⁷⁷ when we talk about troops in the enclave and attacks outside the safe area?

A. Muslim soldiers stationed inside the enclave regularly carried out attacks outside the borders of the enclave, so would target some Bosnian Serb territory outside the enclave.

MR. THAYER: Okay.

JUDGE FLUEGGE: Thank you.

MR. THAYER: May we have P709, please.

Q. General, please take a moment and familiarise -- re-familiarise yourself with this, and let us know, again, what it is and what it's about.

A. Yes. This is a response from me to a letter from General Mladic in which General Mladic complained about military actions carried out by Muslim servicemen from the Srebrenica enclave, attacking targets on Bosnian Serb territory. He accused the UN of taking insufficient action against this and basically just letting all this happen. And I responded to him that we had examined the incident -- after examining the incidents that he reported, we could confirm that some of them had probably taken place, but that we had no exact information because we -- our ability to carry out motorised patrols were restricted. And we couldn't -- we certainly couldn't examine the sites outside the enclave, where the attacks were said to have occurred, because permission to -- because they were withholding permission from entering Bosnian Serb territory.

MR. THAYER: Okay. May we -- the Prosecution would tender P709, Mr. President, please. ³⁸⁷⁸

JUDGE FLUEGGE: It will be received.

MR. THAYER:

Q. Now, General, I want to return to this period of time between 8 July and approximately 11 July for a little bit, and show you some documents pertaining to a series of telephone conversations you had during that period which you testified about in Popovic. May we have P706, please.

Now, unfortunately, the way this document came to us, we're missing a certain portion of the lower part, but I want to focus, in any event, on the top half of this document.

Could we scroll up just a little bit, please, on the English so we catch the top.

General, can you tell the Trial Chamber what this is and what it's about, please?

A. Yes. This is a report of a telephone conversation I had with the liaison officer of the BiH concerning an incident that occurred on 8 July. And the time indicated in the heading is not entirely accurate. The telephone conversation was later that day.

During that Saturday, 8 July, one of the DutchBat observation posts was attacked by troops from the Bosnian Serb Army, and the situation was so serious that the servicemen manning the observation post were forced to leave the observation post, and they did that and wanted to flee back to their compound in Potocari. On their way back to the compound, they were shot at by BiH Muslim soldiers because they were obviously unhappy that the Dutch soldiers were leaving their post. And ³⁸⁷⁹ during that shooting, the shooter of the vehicle -- the gunner of the vehicle was hit and deceased shortly after arriving in the compound. And, of course, we protested seriously and asked -- especially because we expected these situations to occur more often than the past, we asked that they refrain from shooting at DutchBat soldiers.

MR. THAYER: May we go to page 2, please, in both versions.

Q. Just focusing on the signature line here, we see that it says "MA/COS," and then a name. Can you explain that to us, please? What does that all mean?

A. Yes. "MA" denotes "Military Assistant," and "COS," I've explained before, that's "Chief of Staff." I had a staff officer that assisted me throughout the day in carrying out my duties, attended all my meetings, basically a personal staff officer, and one of his duties was to compile reports of telephone conversations such as these. And his name was Andrew De Ruiter, and he was a lieutenant-colonel.

MR. THAYER: Okay, thank you. The Prosecution tenders P706, Mr. President, please.

JUDGE FLUEGGE: Yes, it will be received.

MR. THAYER:

Q. Now, you just told you that you -- or how you protested to the Muslim Army about the killing of the DutchBat soldier. And, General, if I could ask you to move back a little bit from your microphone, please. Thank you.

That private's name was van Renssen; is that correct?

A. Yes, Raviv van Renssen. ³⁸⁸⁰

Q. Did you also contact the VRS that afternoon to protest about the VRS attack on OP Foxtrot that you just talked about?

A. Yes, of course we did that. And based on the letters that you showed, General Delic and General Mladic earlier, you see that all parties were involved in some way -- all parties that were involved in some way, in this case it's both parties were contacted, in this case through a protest letter, or through a telephone conversation in which we would protest what had transpired.

Q. And in the afternoon of 8 July, following the VRS attack on OP Foxtrot, did you have a telephone conversation with any VRS officer in particular?

A. Yes, that's correct. I know that in any case, on that date, at least once, and I believe multiple times, I was in touch with a VRS general. In this case, this was General Tolimir.

MR. THAYER: Let's take a look very quickly at P679, please.

Q. We can all see that this is a report from your military assistant of a telephone conversation at 1945 hours on 8 July, and he writes that you contacted the VRS, and since no BSA generals were available, a message was left. And I just want to focus on the first part here. You indicate:

"I talked to General Tolimir this afternoon about the BSA attack on the OP Foxtrot."

Do you see that, sir?

A. Yes, I've read that.

Q. Okay. So this indicates that you had a prior conversation, prior ³⁸⁸¹ to 1945 hours, with General Tolimir; is that correct?

A. That's correct.

MR. THAYER: Okay. We're going to come back to this document in a little while. Right now, I'd like to look at P306, please. And this should be under seal and not broadcast, Mr. President, please.

Q. General, when we met yesterday during your proofing session, I showed you, I think for the first time, a number of intercepted radio telephone conversations that were done by both the Bosnian Army as well as Croatian units. Do you recall spending some time doing that, General?

A. Yes, I remember that well.

Q. Now, this is an intercept report by the Bosnian MUP. Just for the record, it's number 512. And it indicates that there is a conversation at 1530 hours between yourself and one of General Mladic's deputies. Can you take a moment and just tell us, when you're done re-familiarising yourself with the first page, and we'll go to the second page, if this document corresponds to any of the conversations you had with anyone at the Main Staff on 8 July.

A. I've read the first section. Yes, I've read it.

Q. And we see that the transcript isn't complete, because we see somebody indicates here that they're going to bring the rest of the transcript. But given the text that you see, the reference to coordinates and the rest of what X here, who was a VRS -- identified as a VRS officer, says, can you identify what this conversation is?

A. Yes. This was the conversation I had with General Tolimir in ³⁸⁸² which I complained that his troops had attacked a UN observation post. General Tolimir denied this, but he indicated that he would verify this with his sub-commanders. Later on in the conversation, he made a different accusation, in part against the UN and in part against Muslims, but in any case he accused UNPRO [as interpreted] and the UN that six UNPROFOR armoured vehicles were being used by Muslims in the Srebrenica area, and later on he indicated more specifically that this was happening in the area between Zepa and Srebrenica. He thus accused the UN of ceding vehicles to the Muslims. And from my view, this was a completely absurd assertion. And he also accused us of failing to take all heavy artillery away from the Muslims. And, in any case, in the Srebrenica enclave, that certainly was the case. Muslim troops there had only light arms, and certainly not any tanks or artillery.

Q. Okay. I just want to make sure that we've got it clear and correct here. I'm reading the transcript, and it says: "And he also accused us of failing to take all heavy artillery away from the Muslims. And, in any case, in the Srebrenica enclave, that certainly was the case."

What are you saying certainly was the case?

A. Well, because in the enclave I saw the weapon collection point with my own eyes and I saw that heavy weapons were stored there, and that was controlled by the UN, they were at the DutchBat Bravo Company location in Srebrenica, and throughout my period as chief of staff there was never any report of the use of heavy weapons by the Muslims in the enclave. There were reports that now and then Muslim soldiers were ³⁸⁸³ wandering around with handguns, light weapons.

Q. And just so we can define your terms, General, when you refer to heavy weapons, what are you talking about? What level of weapon would qualify as a heavy weapon?

A. Well, I couldn't give you the specific definitions that applied at the time. Generally, this relates to the calibre of weapons. Tanks would certainly be included, regardless of the calibre of the cannon on the tank. Pieces of artillery are also included, regardless of the calibre. With mortars, there were heavy mortars that -- so the 120-millimetre calibre would definitely be included among heavy weapons. But there were also tiny, little mortars. They're not handguns, but they would be in the grey zone between heavy weapons and light weapons. And I can't really guarantee that all of those small mortars were entirely removed from all safe areas because those weapons were so small that they were easy to conceal in a garage, or a chicken coop, or you name it. They're very easy to conceal, so you're never really know whether you found all of them.

MR. THAYER: Okay, thank you.

JUDGE FLUEGGE: Judge Nyambe has a follow-up question to this.

JUDGE NYAMBE: Yes, I have a question for the witness. Is an APC a heavy weapon, is it considered a weapon?

THE WITNESS: [Interpretation] No, that's not a weapon. An APC is an armoured personnel vehicle, primarily intended to transport soldiers under armour. Usually, they do carry weapons, but with DutchBat the arms consisted of a point 50, so that's a half-inch heavy machine-gun, and ³⁸⁸⁴ that doesn't count as heavy weaponry.

JUDGE NYAMBE: Thank you.

MR. THAYER: And I see our time is up, Mr. President.

JUDGE FLUEGGE: Indeed. We have to continue tomorrow. We have to adjourn, and you will understand that you have to come back tomorrow in the afternoon, 2.15, in Courtroom III. We adjourn now, and see you tomorrow.

[The witness stands down]

--- Whereupon the hearing adjourned at 7.02 p.m., to be reconvened on Tuesday, the 13th day of July,

2010, at 2.15 p.m.