³⁸⁸⁵ Tuesday, 13 July 2010

(Open session)

[The accused entered court]

--- Upon commencing at 2.19 p.m.

JUDGE FLUEGGE: Good afternoon to everybody. The witness should be brought in.

[The witness takes the stand]

JUDGE FLUEGGE: Good afternoon, sir. Welcome back.

THE WITNESS: Good afternoon, sir.

JUDGE FLUEGGE: I would like to remind you that the affirmation to tell the truth still applies. I hope you receive Dutch interpretation.

THE WITNESS: [Interpretation] Yes, I'm receiving it.

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

Mr. Thayer.

MR. THAYER: Good afternoon, Mr. President. Good afternoon to Your Honours. Good afternoon General Tolimir, my learned friends. Good afternoon, everyone.

WITNESS: CORNELIS NICOLAI [Resumed]

[Witness answered through interpreter] Examination by Mr. Thayer: [Continued]

Q. Good afternoon, General. We left off yesterday looking at an intercept taken by the Bosnian MUP of a conversation which you recalled you had with General Tolimir in the afternoon of 8 July. You recall ³⁸⁸⁶ that, sir?

A. Yes, I can remember that.

Q. What I'd like to do next and for the next series of questions and documents is review with you some reports of other telephone conversations that occurred subsequent to that. These reports were admitted during your testimony in the last trial so we won't dwell on those much at all, but what I want to do is show you, as you and I did together on Sunday, some intercepts as well as some transcripts of cassette tapes which were seized during a search, and ask you whether you can draw any conclusions about what you are reading with respect to the conversations you had. So that's what I want to do with you for a little bit of time now.

MR. THAYER: And if we may have P679 on e-court, please.

Q. Now, you spoke about this yesterday and I note that this conversation occurred at 1945 hours. The OP Foxtrot is the OP from which the Dutch peacekeepers were withdrawing and Private van Renssen was subsequently killed, just to set the background. Is that correct, sir?

A. That's correct.

Q. And we see here that you refer to General Tolimir's promise that UNPROFOR in UN positions would not be attacked and that there are two other UNPROFOR positions that have been surrounded. When you refer to two other UNPROFOR positions, what are you talking about?

A. Well, I don't remember the letters used to designate them, but there were two other observation posts that were attacked.

Q. Okay. So we are talking about static positions in any event; is ³⁸⁸⁷ that correct?

A. [In English] Yeah, that's correct. [Interpretation] Yes, that's correct.

Q. Okay. And again I'm going to try to slow down a little bit and leave a pause after your answer so we have the double interpretation eased up a little bit.

MR. THAYER: What I'd like to look at now is P309, please. And this should be under seal and not broadcast, please, Mr. President.

Q. Okay. We have here a Bosnian MUP intercept dated 8 July, and it starts off with report number 513 at 1725 hours.

MR. THAYER: What I'd like to do is go to page 3 of this document in e-court, which is page 2 of the B/C/S, and look at another report or another intercept which was contained in this report. Thank you.

Q. We see here report number 515, and this reports on a conversation intercepted at 1950 hours which is a five-minute difference from the report that your military assistant made. If you would take a moment and read what we have here in English, and when you are ready to go to the second page, just let us know, please.

A. Yes, I'm ready. Yes, I've read it.

Q. Okay. On the previous page you just read, there's a reference to the observation post and an attack, and then here we see X who is identified as a VRS officer, according to the intercept, writing down what is being said to him. And he says, "It's happening again," and then later, a couple of lines down, we see him writing down a fax number and noting it as fax number 5-Pirot and then 195. ³⁸⁸⁸ General, based on your recollection of these events, can you relate this intercept to any prior conversation -- or any conversations you had with General Tolimir; and if so, what is this intercept about?

A. Yes, the first part, in my view, clearly corresponds with the notes taken from the telephone conversation conducted around that time, which was about the follow-up to the attack on the Foxtrot observation post. The last part of the message, that doesn't relate to the notes from the telephone conversation. That apparently concerns a request to General Tolimir to -- to be willing to let us evacuate the remains of Private Renssen, but I don't see that in the notes of the telephone conversation conducted at that time.

Q. Okay. And for the purposes of your military assistant, what was the more important information to record; the message that you communicated to the VRS Main Staff about General Tolimir's promise that there would be no further attack and that there was a further attack, or the information about arranging for the repatriation of Private van Renssen's remains?

A. That's a difficult question. The first, regarding the cessation of hostilities, is unquestionably the most important, but in my view, we also attribute tremendous importance to evacuating the remains. So if that surfaced in the conversation, it would certainly have figured in the notes.

Q. Okay. Thank you, General.

MR. THAYER: May we have P697, please.

Q. What we have here, General, and the Trial Chamber will hear more ³⁸⁸⁹ direct testimony about these intercepts after the summer recess, is an intercept taken by Croatian units at the time, and we see here a report of an intercept dated 8 July at 1941 hours. Again, a few minutes difference from the report done by your military assistant. Would you just take a moment to read what is on the screen, and when you are ready to turn the page, let us know.

A. Yes, I've read this page. Yes, I'm done with that.

Q. Okay, General. And we see that the speakers are identified here as General Miciliai, and an interpreter named Svetlana. And do you recall during your time at the UNPROFOR command utilising the services of an interpreter named Svetlana?

A. Yes, very well. That was my personal interpreter who did my translating in 90 per cent of the cases.

Q. So we see here in this intercept report Svetlana translating for you; is that correct?

A. Yes, that's correct.

Q. That General Nicolai spoke to General Tolimir this afternoon about the attack on the observation post.

MR. THAYER: If we could go back to page 1 for this, please.

THE WITNESS: [Interpretation] May I make a brief correction to my previous answer. I said that there were two permanent observation posts that were attacked and that that was what the complaint was about, but now I remember that Observation Post Foxtrot had been attacked, and then two positions were taken nearby Observation Post Foxtrot and then they were attacked afterwards. So they weren't recognisable as observation ³⁸⁹⁰ posts, but they were positions adopted with white UN armoured vehicles.

MR. THAYER:

Q. Okay. So you have positions taken up by the APCs, and could you just describe what those -- physically what those APCs look like and how they are marked?

A. Yes, excuse me. They are armoured personnel carriers. I guess they are about 10 metres long and they are big enough to transport ten people. And on top, ordinarily in the Netherlands you would have a 25-millimetre cannon, in the Netherlands, but this was replaced with a lighter weapon and these were the heavy point 50 machine-guns that I mentioned yesterday, so one point 5 machine-gun was attached and the gunner usually protruded above the vehicle.

Q. And typically what is a gunner going to be wearing on his or her head, sir, when they are UN peacekeeper? Or what did the UN peacekeepers in Srebrenica wear on their heads when they were in an APC?

A. Blue helmets.

Q. So now we see a reference again to encircling two UNPROFOR positions, this reference to "it's happening again" that we saw earlier in the MUP intercept.

MR. THAYER: And if we go to page 2 again, please.

Q. We see the VRS officer saying, "I have something for you," and then taking down this fax number, P Pirot 195. Again, sir, how does this correspond with your recollection of this conversation?

A. Well, I don't remember a request -- I don't remember a new request for that evacuation but I can't exclude that there was one, I ³⁸⁹¹ just don't remember it.

Q. Okay. Let me ask you this --

JUDGE FLUEGGE: Mr. Tolimir.

THE ACCUSED: [Interpretation] Thank you, Mr. President. The Prosecutor is persistently endeavouring to portray this conversation between me and General Nicolai as some conditions, but in line 14 of the telegram it says, "Please inform your superiors straightaway." So this was information that Nicolai gave me and not any orders or my relationship because I just serve to convey information to where his forces and our forces were. Now the Prosecutor is trying to portray this as if I was making decisions here. Thank you.

JUDGE FLUEGGE: Mr. Thayer.

MR. THAYER: I think the document and General Nicolai's answers speak for themselves, and if I may continue, Mr. President, with my examination.

JUDGE FLUEGGE: But perhaps you can take into account what Mr. Tolimir said and try to put this to the witness. Clarify the situation.

MR. THAYER: Well, I'm not sure from General Tolimir's intervention exactly where he is talking about when he asserts that at line 14 it says, "Please inform your superiors straightaway." It may be an issue of interpretation --

THE ACCUSED: [Interpretation] I apologise, line 15, I meant to say. Line 15.

MR. THAYER: I see a reference to General Nicolai, through his ³⁸⁹² interpreter, stating that:

"It's happening again, and I strongly protest and ask you to withdraw your forces from there immediately."

If that's what General Tolimir is asking about, I can certainly ask General Nicolai what he is referring to there.

JUDGE FLUEGGE: Could you please indicate where we can read it on the document?

MR. THAYER: Sure, that's on page 1 of the English. We'll have to go back to the first page. And if we -- it's probably easier just to look it at the Ss, and it's the third S up from the bottom, where Svetlana is translating from General Nicolai:

"It's happening again, and I strongly protest and ask you to withdraw your forces from there immediately."

Q. If that's the question General Tolimir has I can certainly ask General Nicolai, what were you communicating there?

A. Well, I was speaking about the attack on the Foxtrot Observation Post and the subsequent attack on the new positions taken in the area of the observation post that was attacked when I protested against the attacks carried out. It made no difference, in my view, whether my request or question or demand or objection was directed at General Tolimir or a different spokesman at headquarters. Of course it's a request I'm directing to the Bosnian Serb military headquarters and I expected the person on the line to convey that to the person authorised to take decisions, and I assume that to have been General Mladic. So it didn't -- it wasn't that I expected General Tolimir to bring about a ³⁸⁹³ cessation of these circumstances personally, I expected him to convey the message to the General.

JUDGE FLUEGGE: General Mladic?

THE WITNESS: [Interpretation] Yes, I assume now in retrospect, I assume that that was General Mladic at all times.

JUDGE FLUEGGE: Your last sentence ended with the words "to the General," but we are dealing with many generals at the moment, therefore I just wanted to clarify you were referring to General Mladic in that case. Thank you very much for this answer and clarification. Mr. Thayer, please carry on.

MR. THAYER:

Q. Now, we see here a couple of lines below that where Svetlana says:

"The General said that this is the end of the message. Could you please inform immediately your proper authorities."

Do you see that, General, on the screen?

A. Yes, I see that.

Q. And after one of your prior answers it occurs to me, and I'll just throw this out to you, was it likely that after you delivered this message you were no longer a part of this conversation and that the second part having to do with the fax number was handled by somebody else, or is your recollection that no, in fact you stayed for this entire conversation and for some reason your MA just didn't include the second part about the fax in his report?

A. That could be an explanation because the requests for evacuations ³⁸⁹⁴ transmitted by fax were compiled by a different section of my staff and not by me personally, so it's perfectly possible that my MA, Colonel De Ruiter, went to the section concerned with the last part of the message and requested that a new fax be drafted corresponding with the instructions issued in this part of the conversation.

Q. Okay.

MR. THAYER: Your Honour, the Prosecution would tender 697 at this time.

JUDGE FLUEGGE: It will be received. Mr. Thayer, are you tendering 679 you used at the beginning?

MR. THAYER: I think 679 is already admitted as one of the associated exhibits, Mr. President.

JUDGE FLUEGGE: Yes. Correct, yes, we did it yesterday. Thank you.

MR. THAYER: May we have P696, please.

Q. Okay, sir, what we have here is a transcript made from a cassette that was seized during searches of locations related to the search for General Mladic. And we can see there's no date or time on this transcript, but if you would just take a look and re-familiarise yourself with the contents and when you are ready to move on, just let us know.

A. Yes, I've read it.

JUDGE FLUEGGE: Mr. Tolimir.

THE ACCUSED: [Interpretation] Thank you, Your Honour. The committee co-operation of Serbia with the ICTY sought that all information connected with these diaries and transcripts and notebooks be ³⁸⁹⁵ discussed in closed session. My Defence counsel and I are both citizens of Serbia and I would like you to observe. This was the case in the Perisic case, which has dealt with this already. Thank you.

JUDGE FLUEGGE: Mr. Thayer.

MR. THAYER: Mr. President, again my understanding and that shared by Mr. McCloskey is that there have been no such conditions placed on this material that was obtained during the searches, so we are ready to proceed. There are no individuals identified during the -- in terms of anybody that took the recordings or made the recordings. The only individuals identified are people mentioned during the recordings and that's General Nicolai, and here we have the other participant identified as an unidentified man. So I think unless there's some specific reference to a transmittal letter or some other conditions that were placed on these materials that we are not aware of, we are prepared to proceed because, again, I've not seen anything that has placed any restrictions, Rule 70 or otherwise, on the use of this material.

JUDGE FLUEGGE: Mr. Tolimir, can you provide the Chamber with some specific information and the sources of your allegation that there were some restrictions by the Serb government? It would be helpful.

THE ACCUSED: [Interpretation] The committee on the co-operation between Serbia and the ICTY are the source of my statement. And in the Perisic case there was a seven-day session on these documents. These were held in closed session, and my source is the case law of this Tribunal. If this is the case, I would like these documents not to be adduced through me or my Defence counsel. Thank you. ³⁸⁹⁶

JUDGE FLUEGGE: Mr. Tolimir, that's not the source. I would like to know which specific document you have in your possession which contends restriction by the Serb government by using these documents? Is there any specific document you have and can give to the other party and to the Chamber?

THE ACCUSED: [Interpretation] Your Honour, I do not receive such documents as the Defence. These documents are received only by the OTP. If I had some, I would have disclosed them. If the Defence counsel in the case of Perisic received a document which he received from the national co-operation committee, then I would make sure that my assistants get one too and then I will provide you with one. That's all I can say. Thank you.

JUDGE FLUEGGE: This Chamber doesn't know anything about the procedure and the background of closed session in the Perisic case. We have no information of that.

Mr. Thayer, do you have any information in this regard?

MR. THAYER: I do not. Mr. McCloskey may have some he can share.

JUDGE FLUEGGE: Mr. McCloskey.

MR. McCLOSKEY: Just briefly, Mr. President. I am sorry, Judge Nyambe, I'll try to stand right here. General Perisic, as you know, is a VJ general. My understanding is that there are many documents that were provided by Serbia in -- to the OTP pursuant to that case and they have some restrictions on some of those documents and those restrictions are in place in some of the Perisic presentations by both sides. These particular intercepts came with a very large group of ³⁸⁹⁷ information from these recent searches. Different teams in different cases have, as this is developed between -- the relationship between the ICTY and Serbia have treated some of these documents slightly differently as the situation was developing, but I'm not aware of any request on this particular information. And I will, of course, again look into it, but I'm not aware of any in place right now on this particular information.

JUDGE FLUEGGE: Perhaps that is possible while we are proceeding to inquire by e-mail with other members of the OTP to find out if there are any restrictions we have to follow, Mr. McCloskey.

MR. McCLOSKEY: Mr. President, I will check for perhaps another -- I'll go right now and just double-check because it's obviously a matter of concern. Thank you.

JUDGE FLUEGGE: Thank you very much. That would be extremely helpful. We should now proceed perhaps without broadcasting the documents at the moment and we will decide later on that matter. Please carry on, Mr. Thayer.

MR. THAYER:

Q. Okay. So we see from the first page here the person identified as the interpreter, who is identified as calling on behalf of yourself, and then passing a message that: "This afternoon I spoke to General Tolimir regarding the attack on OP Foxtrot."

MR. THAYER: Let's turn to the second page.

Q. And we see at the very top, again the interpreter repeats, "This afternoon I spoke with General Tolimir regarding the attack you carried out at the OP near Zeleni Jadar." And if we go down to the bottom of the ³⁸⁹⁸ page, and this will be page 2 in the B/C/S, there's a reference to you saying that your forces surrounded two UNPROFOR positions located, again, 500 metres to the west - and if we go up to the next page in the English - although General Tolimir promised that UNPROFOR will not be attacked.

Do you see all that, sir?

A. Yes, I see that.

Q. Okay. Then in the middle of the page we see this language again, "It's happening again" and a little further down the interpreter saying, "The General says that this is the end of your message," or "this is the end of the message," and then this language again, "I have something for you" and the fax number P Pirot 195.

Do you see all that, sir?

A. Yes, I see that.

Q. So again how does this correspond to your recollection of your conversation that day and what occurred?

A. What strikes me is that again this intercept basically corresponds perfectly with the other intercepted message and that it corresponds in part with the report that my MA compiled from the telephone conversation, but my memory is the way it is. And at the start of the conversation I said that the last part of the conversation about submitting a new request for evacuation doesn't ring a bell, but I definitely don't exclude that it took place.

MR. THAYER: Okay. And again just for the record, this last document is not an intercept, it is a transcription of a recorded ³⁸⁹⁹ conversation that was seized from the Mladic search. How it was created, I don't want to testify, but I can tell the Trial Chamber we still don't know whether this was an actual intercept or somebody just pressing record in the same room with a tape recorder. We just don't know. All we have is a cassette and we've made a transcript.

The Prosecution, Mr. President, would offer P696.

JUDGE FLUEGGE: It will be received.

MR. THAYER:

Q. Now, General, you've referred a few times to the, I guess for lack of a better word, the logistical arrangements that needed to be made to repatriate Private van Renssen's remains.

MR. THAYER: Let's look at P307, please. And this should be -- this is under seal and should not be broadcast, please.

Q. We have here a MUP intercept report, again dated the 8th of July. This is report number 513, so it's a couple of reports before the ones we looked at a moment ago. So this conversation is timed at 1725 hours and if you would just take a look at this.

MR. THAYER: If we could scroll down just a little bit so we get the whole -- there we go. Thank you very much.

[Prosecution counsel confer]

JUDGE FLUEGGE: Shall we come back to the matter Mr. Tolimir has raised about how to deal with these documents.

Mr. McCloskey.

MR. McCLOSKEY: Yes, Mr. President, as I'm sure you are aware, the Prosecution's relationship with Serbia is -- can change from ³⁹⁰⁰ day-to-day about certain issues so I thought it was a good idea, as did the Court, to double-check, but I was able to confirm through both the senior trial attorney of the Perisic team and through our deputy Prosecutor and our main liaison with Belgrade that this particular material there are no restrictions in place.

JUDGE FLUEGGE: Thank you very much for this check and the information.

Please carry on, Mr. Thayer.

MR. THAYER:

Q. Okay, General, you've had a chance to look at this first page. We see here there's a reference to, "I wrote it down, van Renssen, with two S." And a number is being written down. And if we see towards the bottom, "if you could call and at 1840." And there's a reference right before that, "it is now 1840" and "if you could call and at 1840." A little bit of a mystery but maybe that will be clarified a little bit later why somebody is saying it's now 1840 and if you could call at 1840. Again we note that the time here is 1725.

MR. THAYER: If we just take a quick look at page 2 of the English. We can stay with the first page of the original.

Q. We see that there is a reference here to, "Let's talk again at 1840 hours."

General, my first question to you is, do you know what this conversation is about?

A. Yes, based on the text I infer that this was about the details of the evacuation of Private Renssen, but to the extent -- I see now these ³⁹⁰¹ are conversations conducted not by me but by somebody who, together with a representative of the Bosnian Serb Army, was arranging the details of the evacuation.

Q. Okay. And that was my second question, was whether you were -- you personally were a participant in this conversation, and you've told us that you were not.

MR. THAYER: Okay. We are done with that document which has already been admitted, so I won't tender it. If we could look at P695 now, please.

Q. And again this is a transcript of one of Mladic search tapes where the participants are simply identified as an interpreter, and an unidentified man.

MR. THAYER: If we can scroll down a little bit, please.

Q. We can see there's a reference to, "I wrote it down van and again van Renssen."

MR. THAYER: If we go to the next page in English, we can stay on page 1 in the B/C/S. Thank you.

Q. We can see again there's an attempt to spell van Renssen as van Renssen with two S, and then the number is given. Now, again, sir, do you recall whether you were a participant in this conversation?

A. As far as I can judge now, this concerns the same conversation as the previous one and my response is likewise, I was not a participant in this conversation.

Q. Okay. And, sir, is there any doubt in your mind that this conversation occurred in the course of trying to arrange for ³⁹⁰² Private van Renssen's remains to be repatriated?

A. No, it's most probable that this occurred because one of those air repatriations requires extremely detailed agreements to prevent the helicopter from mistakenly being shot down while in flight, so the details about routes, times, and landing sites and the need to agree on those, that's obvious, but it was done by others in the staff, not by me.

MR. THAYER: Okay. We are done with this document. The Prosecution would tender P695, please.

JUDGE FLUEGGE: Yes, it will be received.

MR. THAYER: Okay. I had another similar one, but I think to save time we can skip that. I don't know if that's going to create problems for the whole internal Registry numbering system, but we can deal with that later.

Q. What I'd like to do now, General, is turn to another conversation you had on the 9th of July.

MR. THAYER: And if we could look at P682, please.

Q. Now, this is a document that came in an as exhibit associated with your prior testimony so I don't want to spend too much time on it. If you could just tell Trial Chamber what this document is about. And I note for the record it's 9 July, 1230 hours.

A. Would you please give me time to read the bottom part of the message.

Q. Absolutely.

A. Yes, I've read the entire message and I can answer your question. The message opens with my expression of appreciation for the fact that ³⁹⁰³ the Bosnian Serb army has -- I offered my soldiers that left the area safe withdrawal to Bratunac so that the -- to prevent the recurrence of an incident such as the day before the death of Raviv van Renssen, but I added that I did expect my soldiers to have an opportunity to return to the compound in Potocari.

Next General Tolimir expressed condolences regarding the death of Private Renssen. At the end of the message we spoke about the removal of the remains and I said that it was agreed that the body would be transferred by road to Zvornik and would be picked up by helicopter there, but that the transit -- that transport by local troops was obstructed, and I requested General Tolimir to take measures about that. And General Tolimir responded that he was not aware of the fact that the transport had been obstructed and indicated that we should set off again for Bratunac to Zvornik and that he would have his troops notified that the convoy was allowed to pass.

Q. Okay. Do you remember on Sunday looking at a Bosnian MUP intercept that was taken at about the same time as reflected on this document?

A. Yes, I remember that.

Q. And do you remember whether you were able to conclude based on reading that intercept whether that bore any relationship to this report that we see on the screen?

A. Yes. It was virtually an exact reflection of what is indicated in this report as well.

Q. And do you recall also reviewing a transcript of a cassette ³⁹⁰⁴ recording that was seized during the Mladic searches of a conversation, and were you able to conclude whether that transcript bore any relationship to the report we see on the screen right now?

A. Yes, the same holds true for that as for the previous intercept.

MR. THAYER: Okay. Mr. President, just to save a little bit of time, rather than going through those two documents, I'll just leave that for another witness down the line and submissions. I don't think we need to necessarily go through that exercise for those exhibits. Now may we take a look at P680, please.

JUDGE FLUEGGE: Mr. Thayer, are you tendering P682?

MR. THAYER: 682, I believe, is already an associated exhibit that is -- has been received already. If not, then I would tender it.

JUDGE FLUEGGE: You are perfectly right as always. Thank you.

MR. THAYER: I'll make sure my wife hears that, Mr. President.

JUDGE FLUEGGE: I was only referring to exhibit numbers. I don't want to interfere with family matters.

MR. THAYER: If we may have P -- I see it's there on the screen. Okay.

Q. General, again we have a report of a telephone conversation, 9 July at 1750 hours. If you would just take a moment.

MR. THAYER: And if we could scroll down just a little bit so the whole document can be read. Thank you very much.

JUDGE FLUEGGE: Mr. Tolimir.

THE ACCUSED: [Interpretation] Thank you, Mr. President. This document has two different dates. On the left-hand side it says the ³⁹⁰⁵ 9th of July, and in my native tongue, Serbian, it says the 20th of August, 1995. Thank you. 12th of August. Was this a fax document or what? Because it says the 9th of July, 1995, at the bottom, whereas at the top on the right-hand side it says the 12th of August.

JUDGE FLUEGGE: Can we please have the top --

MR. THAYER: Just need to scroll up a little bit.

THE WITNESS: [Interpretation] I could explain the difference.

JUDGE FLUEGGE: Please scroll up. Scroll up.

MR. THAYER: The other way, thank you. Perfect.

JUDGE FLUEGGE: Also in B/C/S, please.

THE WITNESS: [Interpretation] The date 9 July refers to the date of the telephone conversation. The date 12 August is the date that this message at the request of my Ministry of Defence was transmitted from Sarajevo to the Ministry of Defence in The Hague. They were busy gathering documents concerning the fall of Srebrenica at that point.

MR. THAYER:

Q. Okay. Now, we can see in the first paragraph here that you expressed your deep concern about the situation which was developing in the enclave of Srebrenica, and that you told General Tolimir that the VRS troops had penetrated through the demilitarised zone for more than 4 kilometres and that the front troops were only 1 kilometre away from the town of Srebrenica.

What was the purpose of your telephone call at this time, sir?

A. The purpose was to my -- and when I say "my," I mean to express the concern of my superiors regarding the constantly deteriorating ³⁹⁰⁶ circumstances in the Srebrenica enclave. The Bosnian Serb troops kept penetrating further into the enclave and were attacking more and more observation posts and had approached to 1 kilometre away from Srebrenica, which was about to fall. The BiH troops were certainly not in a position to stop this. Any heavy weaponry in the enclave of their army was still stored in the weapons collection point, so the situation that had arisen was particularly threatening also for the local population, and I've indicated that at this point DutchBat was forced to act to protect the population in the enclave.

I basically demanded that General Tolimir had the troops ordered to withdraw to the borders of the enclave, and General Tolimir promised that he would check that information. In my view, that basically means that he denied that that situation existed or at the very least that he was unaware of it when we are talking about an attack that already started on 8 July -- wait a minute, earlier, on 6 July the first acts of violence started, and from that Wednesday up until Sunday, 9 July, they had been in progress. With the information means available to that army and routines they have for submitting reports, it sounded most improbable to me that General Tolimir was unaware of the situation.

Q. And if we look at the last paragraph here on the first page, what did -- what else did General Tolimir tell you?

A. He would transmit the information to his people in the field although he didn't believe it was true. He asked me to ring back in half an hour, and in the meantime, he indicated that, as far as he knew, the withdrawal of -- it says here Casevac mission, which is basically ³⁹⁰⁷ withdrawing injured, but in this case it was withdrawal of human remains, he indicated that that had been completed because the body was in Zvornik or had been transported to Zvornik, had been transported to the stadium in Zvornik, and the helicopter was already en route from Tuzla to Zvornik.

General Tolimir would have his people instructed not to use their anti-aircraft systems while the helicopter was in flight.

JUDGE FLUEGGE: Mr. Tolimir.

THE ACCUSED: [No interpretation]

THE INTERPRETER: Microphone, please.

THE ACCUSED: [Interpretation] Once again the witness is being asked to confirm something that it doesn't say in the text. In paragraph 3, General Nicolai says very clearly -- it says General Nicolai requested once against that the situation be checked with his subordinate commanders on the ground, so he asked me to check this out. And in paragraph 4 it says General Tolimir promised he would check this information directly on the ground. So I kindly ask that the contents of the telegram be properly interpreted and not to lead the witness to make conclusions that are not based on fact.

JUDGE FLUEGGE: Mr. Tolimir, please look at page 22, line 12 and 13. Mr. Thayer just said:

"And if you look at the last paragraph here on the first page, what did -- what else did General Tolimir tell you?"

That was not at all a leading question. It was just a question to tell the Chamber what the witness is reading from the text. ³⁹⁰⁸ Everything else was the answer of the witness, and you may deal with this during cross-examination.

Please carry on, Mr. Thayer.

MR. THAYER:

Q. And, General, I'm going to try to save a little bit of time, do you recall looking at Bosnian MUP intercept from the same day which -- about which you made some conclusions?

A. Yes, I remember seeing a text that once again corresponded very closely to the transcript of this telephone conversation being projected on the screen.

MR. THAYER: And just for the record, and this will be linked up later on, that's P311 I'm referring to. The other two documents I tried to save time with, just for the record, and this will be linked up with other testimony, were P310 and P698.

Q. General, do you recall also looking at an intercept report taken on 9 July by Croatian units at 1755 hours, just five minutes difference from what is shown here on this document? And if so, did you make any conclusions after reading that report?

A. Yes, once again many of the same phrases appear that are in this report of the telephone conversation.

MR. THAYER: And that's P699 for the record.

Q. And finally, do you recall also reviewing a transcript of an audio cassette conversation received through the Mladic searches and were you able to draw any conclusions or any relationship between what you read and this conversation that's listed here, sir? ³⁹⁰⁹

A. Yes, that transcription corresponded entirely with this text.

MR. THAYER: And let's just spend a quick minute and look at P700, please.

Q. Again we have here a transcript of an audio cassette seized during the Mladic searches. The participants are identified as Svetlana, interpreting for you, and General Tolimir. If you would just take a moment to look at the text here.

MR. THAYER: And if we could scroll down just a little bit so we capture the whole -- thank you very much.

THE WITNESS: [Interpretation] Yes, I've read it.

MR. THAYER: Now, if we could just for a moment, could we replace the B/C/S of this with the English of P680, please. So we can just look at the two English side by side. This will just be for a quick comparison.

Q. My first question is: Is this transcript the one that you recall looking at on Sunday with me, sir?

A. Yes, that's correct.

Q. And when you read it, how did it correspond with your recollection of this conversation?

A. As I've said previously, the text corresponds virtually literally with what my MA set forth in the report of the telephone conversation.

Q. And we can see here on the left, the transcript of the conversation has you saying:

"I'm concerned about the development of the situation in the Srebrenica enclave." ³⁹¹⁰ And the first line of your MA's report says that General Nicolai expressed his deep concern about the situation which was developing in the enclave of Srebrenica. And I think we can all look at these side by side to see the similar language. There's your reference to the penetrating of demilitarised zone for more than 4 kilometres. Then if we look down to the last entry here under the attribution to General Tolimir, it reads:

"I don't have such information regarding the situation in that part, considering that I have just entered my office. I conveyed the" --

MR. THAYER: And if we can go to page 2 in the transcript.

Q. -- "the General's previous message to the field. There's no threat for UNPROFOR forces." And if we go all the way down on this --

JUDGE FLUEGGE: Please again, the English version of the -- on the right side of the screen -- of the other document in order to compare it.

MR. THAYER: Thank you, Mr. President.

JUDGE FLUEGGE: Is it the right page?

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

Q. We see General Tolimir saying: "I'm going to check your information. I don't believe it's true. I'll have to check it and we can get in touch after the check-up. We'll be in touch in 30 minutes until I check with my forces directly in the field. Is that what General Nicolai demanded."

And then if we look at your MA's report at the last paragraph, we can see him reporting that: ³⁹¹¹ "General Tolimir promised he would check this information directly on the ground, although he did not believe this was true. He asked General Nicolai to telephone him in 30 minutes." Now, why was it necessary for General Tolimir to call back in 30 minutes? What prompted this -- this subsequent phone call that was supposed to happen?

A. Well, there could be two. Possibly he needed 30 minutes to check the information he'd received from me about the situation on the ground. It could also have had something to do with warning the ground troops not to use any anti-aircraft devices, although it seems like that would have been awfully late to me because the helicopter was already en route and the agreements had been made earlier. So the first sounds more likely, that he wanted to check the ground situation.

Q. And at this point in the conversation, sir, had there been any discussion about the repatriation of Private van Renssen's remains and the required air corridor and logistics preparation, or had the conversation up to that point focused on something else?

A. No, basically the agreements about the repatriation had been made previously and we'd seen in a previously intercept, I told about efforts to transport the body along to road to Zvornik were being obstructed by Bosnian Serb ground troops despite the agreements in place, and at the time of this conversation that repatriation was virtually complete. Only the air transport still had yet to take place.

Q. So here when General Tolimir says: "I'm going to check your information, I don't believe it is true. ³⁹¹² I'll have to check it and we can get in touch after the check-up. We'll be in touch in 30 minutes ..." What information is he talking about?

A. I repeat what I said previously. I consider it most likely that he needed those 30 minutes to inquire as to whether my allegations about the infiltration of Bosnian Serb troops in the enclave to 1 kilometre away from Srebrenica was correct.

Q. And did you believe him --

JUDGE FLUEGGE: Mr. Tolimir.

THE ACCUSED: [Interpretation] Mr. President, there's nothing strange here. I said I just went into the General's office, according to this transcript, and asked him to call me up in 30 minutes' time. Now, I don't know what the Prosecutor wants to say with that. I would have to use the 30 minutes to check out what was happening in the field. It was night-time, it was after 12 midnight, so how could I know -- be expected to know what had happened? I had to check it out. So please bear that in mind.

JUDGE FLUEGGE: Mr. Tolimir, I see your difficult position. You are the accused and your are defending and representing yourself, but this objection was kind of giving evidence. This is not the situation to give evidence about the content of such a document. You may deal with this in cross-examination or give in -- you may give evidence at a later stage of this trial, but now Mr. -- the witness is giving evidence. Please carry on, Mr. Thayer.

MR. THAYER:

Q. Okay. General, when General Tolimir indicated that his ³⁹¹³ information about the situation was different as reflected in this report, and that he did not believe that it was true and that he would have to contact his field commanders, did you believe him?

A. The answer is no. I've said previously it's particularly unlikely. We are referring to actions that had started four days before and that had been the subject of explicit complaints the day before, so it was particularly unlikely that the headquarters was unaware of where their front troops were.

MR. THAYER: Mr. President, the Prosecution would tender P700. P680 [Realtime transcript read in error "P688"] has already been received.

JUDGE FLUEGGE: Thank you. P700 will be received.

MR. THAYER: And forgive me if I've already stated this for the record, but the other two documents that I did not show General Nicolai but to which I referred were P311 and P699.

Q. Now, General, during this period of time on the 9th of July, towards the end of the day and into the evening, were you aware of any efforts by the UNPF command, that is General Janvier's command in Zagreb, related to the events in Srebrenica?

A. Yes. General Janvier had returned from a conference that weekend. I believe the conference was in Geneva. He was particularly concerned about the situation that had materialised. He had serious concerns and he was worried that a situation would arise that would require the use of air support, but he didn't want to do this until violence had been used at a lower level of escalation. So basically, he ³⁹¹⁴ believed that the attempts should be made to stop the Bosnian Serbs first with lower-level weapons, and afterwards he would use air force. And the reason concerned one of the documents in view of the Court as well, the post air-strike guidance, which explicitly states that air force should be used only as the extreme weapon, and he feared that it would now be used without deployment of other means first. That was one of his concerns, and extensive consultation about this took place as to how we could bring about a situation where, first of all, it would become clear for the entire international community that a situation had arisen where that extreme measure should be used, and a situation where in any case UNPROFOR had the means to use less invasive resources than air force to demonstrate that they wanted to stop the Bosnian Serbs from penetrating further into the enclave.

JUDGE FLUEGGE: Mr. Thayer, perhaps there occurred a mistake or I've lost something. In page 29, line 20, you said: "P688 has already been received." Was that the correct number?

MR. THAYER: No, Mr. President, that's P680. P680.

JUDGE FLUEGGE: Thank you. That clarifies the situation. Please carry on.

MR. THAYER:

Q. General, you referred in your answer to post-air-strike guidance. I'm not sure the Trial Chamber has heard that much testimony about this post-air-strike guidance. Can you just briefly tell the Trial Chamber what that refers to?

A. Yes. In late May, to be specific 25 and 26 May, at UNPROFOR's ³⁹¹⁵ request, air-strikes were carried out on targets on Bosnian Serb territory because there had been no compliance with the ultimatum set by General Smith for heavy weapons taken from a weapon collection point, that they needed to be returned before a certain time. Because this violated several Security Council resolutions, 824 and 836, and because it was a violation of all agreements, it was decided that these air-strikes would be carried out.

Those air-strikes were retaliate -- the Bosnian Serbs troops retaliated by shelling virtually all enclaves. And during those shellings there were many victims, especially the bloodbath in Tuzla is a very compelling example, over 80 people were killed including innocent civilians. Next, the Bosnian Serbs took many hostages comprising UN personnel on Bosnian Serb territory, UNMOs as well as all kinds of other officials. Altogether over 300 hostages. Most of those hostages were tied to possible targets that might be the target of air-strikes, and it was threatened that if we were to attack those targets, then the hostages would suffer the same fate, or in any case, they would be killed at the same time there.

Afterwards, the UN was basically blackmailed. Our hands were tied. If we wanted to continue air-strikes, then those hostages would suffer a terrible fate, and that led to intensive consultation between General Smith and General Janvier, and that led to cessation of the air-strikes. First the authority to carry out close air support and the authority to carry out air-strikes was raised to a higher level and guidance was issued. That's the post air-strike guidance stating that ³⁹¹⁶ given this situation, air-strikes would be used only as an extreme measure, and that the safety of the troops on the ground took precedent over all else, and that negotiations that would be started. At that point Mr. Bildt was supposed to start as a negotiator to resolve this impasse, that these negotiations should not be disrupted in any way by excessive violence.

MR. THAYER: Okay. Thank you, General. I see we are at the break time.

JUDGE FLUEGGE: Indeed we are. We have our first break now and resume quarter past 4.00.

--- Recess taken at 3.49 p.m.

--- On resuming at 4.18 p.m.

JUDGE FLUEGGE: During the remainder of today's sitting, Judge Mindua is unable to attend due to another urgent commitment, so the remaining Judges decided to sit pursuant to Rule 15 bis. Mr. Thayer, please carry on your examination.

MR. THAYER: Thank you, Mr. President.

Q. Where we left off, General, you were telling the Trial Chamber about General Janvier's involvement during this period of time on the 9th of July. Did you have contact yourself with Zagreb during this period of time?

A. Yes. On Saturday, 8 July, I reported at length to General Janvier's deputy about how the situation in the enclave was developing. Afterwards consultation continued on 9 July, but those conversations took place primarily with General Gobillard who was acting ³⁹¹⁷ commander in UNPROFOR at that time, and General Janvier himself.

Q. And on the 9th of July, particularly in the evening, were you aware of any attempts by General Janvier or his office to contact General Mladic or the Main Staff?

A. Yes. I was aware of that because despite the fact that there were conversations between General Gobillard and General Janvier, I was consistently present or at least I was present at those telephone conversations. There was lengthy discussion of a serious warning that we wanted to send to the Bosnian Serb army, warning them that if they went still further we would be forced to use air force. And because that text was worded very specifically, there were extensive telephone calls about how that text should read and when it was finished, General Janvier wanted to contact General Mladic. Apparently he didn't succeed, and he then requested the UNPROFOR staff or the staff of General Gobillard for that warning to be transmitted to Pale via our headquarters. And Pale was where our contact was with the Bosnian Serb army. And we did that ultimately at the end of the evening of 9 July.

Q. Okay. And just, again, try to save a little bit of time, do you recall during our proofing session seeing a Croatian intercept as well as two Bosnian MUP intercepts concerning efforts by General Janvier or somebody on his behalf attempting to contact General Mladic?

A. Yes, I remember that.

Q. And how did those three reports correspond to your recollection of efforts that were underway at the time from Zagreb to contact the Main Staff? ³⁹¹⁸

A. Well, because I was in Sarajevo, I don't know how often General Janvier tried to contact General Mladic. All I know is that he did try. And the fact that he was unsuccessful led to his request to us in Sarajevo to get the message to the right place.

Q. Okay. Thank you, General.

MR. THAYER: Just for the record, the three documents we will save for another witness are P701, P314, and P312. The latter two of which are already received in evidence.

May we have P -- before we do -- look at another document.

Q. The last conversation that we looked at that you had with General Tolimir was at 1750 hours. Do you recall having another conversation later that evening with General Tolimir, sir?

A. Yes, as far as I remember, but that would need to be confirmed in a report from a telephone conversation. I had already warned General Tolimir in a telephone conversation that there was a danger that a situation would arise where UNPROFOR might be forced to deploy extreme measures and you should infer from that air force -- air support to end the situation that had materialised. That was in anticipation of the written warning that General Janvier had drafted.

MR. THAYER: Okay. May we look at P683, please. And if we could scroll down just a little bit so we can catch the full document in both versions, please, so General Tolimir can see all of page 1 as well.

Q. General, just please take a moment, this is a dense document, to re-familiarise yourself with it.

A. Yes, I've read it. ³⁹¹⁹

Q. And let's go to page 2 to give you a chance to re-familiarise yourself with that as well. It's another dense page.

A. Yes, I've read the entire piece.

MR. THAYER: Let's go back to page 1, please, of both versions.

Q. Focusing now on the first couple of paragraphs, can you tell the Trial Chamber what this call was about, why you called General Tolimir and what's your interest, what's going on here in these first couple of paragraphs in particular?

A. Well, first, please note that between this telephone conversation and the previous one, more time elapsed than the agreed 30 minutes. During the interim I tried to make contact, but those efforts were in vain. When I finally reached General Tolimir by phone again, my first question was obviously whether he could confirm that the accusations we had expressed or whether he, by that time, had the same information, and basically General Tolimir denied that and moreover added that he, or at least the Bosnian Serb army, did not have any special problems with UNPROFOR nor did they have with the civilian population, that the UNPROFOR soldiers were being treated properly.

That's how it reads here. So that was the opinion he shared which, of course, did not correspond with our impression at UNPROFOR.

Q. Okay. And again, what kind of -- just briefly, what were these reports that you were receiving at UNPROFOR tell you was happening in a nutshell?

A. First, the daily reports about reports of continuation of hostilities taking place in the enclave. In addition, all interim ³⁹²⁰ reports from observation posts being attacked and you don't wait until the end of the day to file that with the daily report, you report that when it happens. And then there was also the information I received from direct telephone conversations with Colonel Karremans, and they indicated that the attacks by the Bosnian Serb troops had continued almost to Srebrenica, and in the meantime, additional observation posts had been attacked. So the hostilities continued and UNPROFOR observation posts were attacked.

I think that the UNPROFOR soldiers that were being treated properly, that General Tolimir was referring to, were the soldiers that had been transported to Bratunac. I don't have any information about them. But the enclave was shelled, the civilian population was shelled, and various observation posts had been attacked by then.

Q. Now, moving into that third paragraph, you reiterate what we saw in the prior conversation, that VRS penetrated to at least 4 kilometres. And let's focus on what is reported here, that you:

"Further emphasise that this could cause a counter-reaction from UNPROFOR which was disproportional to the benefit they could have by their actions."

What does that mean, sir?

A. Well, in brief that means that a situation was in danger of materialising in which UNPROFOR would be forced to use air support, and I had -- I've anticipated on this based on the serious warning that was to be dispatched in writing by General Janvier and Mr. Akashi.

Q. And we see a reference here at this same paragraph to a strong ³⁹²¹ warning. Is that what you are referring to, sir?

A. Yes, that's the strong warning I'm referring to, is the written warning from General Janvier.

Q. And was a written warning in fact issued at some point on July 9th, sir, to the VRS?

A. Yes, that's correct. The moment the telephone conversation was taking place, the notice had not yet been sent. I think General Janvier was still trying to send that at the time, but in this conversation by phone I anticipated this. And later on that evening, when General Janvier's efforts proved futile, we sent that notice by fax to Pale.

MR. THAYER: May we go to page 2 of the English, please. And this will also be page 2 of the B/C/S.

Q. Now, on the previous page we saw that General Tolimir told you that there was no conflict between the VRS and UNPROFOR or the civilian population, and basically that the only problems the VRS had were with the Muslim Army in that area. We see at the top of this document that your response was that that "had no relation at all to the BiH attempt to link the two eastern enclaves." And that if we look down at the very last paragraph you stress that the "VRS was directly attacking the safe area, which was far beyond their self-defence."

What were you trying to communicate to General Tolimir here, sir?

A. First, that this was an isolated action, not a reaction to what was presumed to have been undertaken by the BiH, and that it had nothing whatsoever to do with self-defence, and that it exceeded all proportions ³⁹²² and that the only possible measure was to withdraw his troops.

Q. And we see here in the middle of the page that General Tolimir reacted that the BiH were using the heavy weapons which had never been handed over to UNPROFOR, and that the BiH were also using six APCs either given by or taken from UNPROFOR. Can you comment on that, sir?

A. Well, I can certainly comment on that. This was such an impertinent accusation that at that point I had difficulty remaining calm. I said immediately that the remark about not disarming the BiH in the enclave was incorrect as far as heavy weapons were concerned. Those weapons had indeed been taken away and had not been returned at that point. I do not mean to deny that the Muslim soldiers still had handguns at that point, but the remarks about the six -- the six vehicles issued to the BiH or stolen by the BiH, six APCs, that was so impertinent that it would have qualified as a lie. But I said that it was absolutely incorrect and I could simply confirm that because the only vehicles that we had lost up to that point were the vehicles of the soldiers who had abandoned the observation posts, and those were in the hands of the Bosnian Serb army. So this accusation was basically turning the world inside-out.

MR. THAYER: Let's go back to page 1 of both versions, please.

Q. When we see in the second paragraph when General Tolimir says that the VRS had no particular problems with UNPROFOR or the civilian population in Srebrenica, how would you characterise that statement, General?

A. Well, I could give a cynical response by saying that admittedly ³⁹²³ he didn't have any problems with UNPROFOR, the civilian population, but the reverse was certainly true. The civilian population was being shelled and UNPROFOR was also being shelled and attacked, so the opposite was absolutely the case.

Q. And when you just said that it would be cynical to say that General Tolimir didn't have any problems with UNPROFOR or the civilian population, what do you mean by that, sir?

A. What I mean to say is that it was indeed the case that he wasn't being bothered by the civilian population up to that point, not by UNPROFOR either. That's what I mean by cynical. But I don't understand that if you say you don't have any problems with the civilian population or with UNPROFOR, that you nonetheless accept that your troops carry out attacks on those target groups.

Q. And when you say that he wasn't being bothered by the civilian population, what do you mean to say by that, General? If we can just break it down, please.

A. Well, that the civilian population was not attacking the Bosnian Serb army. The only nuisance that the Bosnian Serb army may have experienced at that point might have been caused, but I don't have any direct evidence of this, that there were Muslim soldiers that ex-filtrated, so left the enclave and carried out attacks on Bosnian Serb territory. But I don't -- didn't receive -- I hadn't received any specific reports of that at that time, neither from UNPROFOR nor from the Bosnian Serb army.

Q. And at the bottom of this page when General Tolimir repeated that ³⁹²⁴ there was no conflict between UNPROFOR, the VRS, and the Bosnian civilian population in Srebrenica, how would you characterise that statement by General Tolimir?

A. Well, euphemistically I would call that misleading information, and in harsher terms it's an outright lie.

Q. General, do you recall on Sunday again being shown Bosnian MUP -- a Bosnian MUP intercept from 9 July at approximately the same times, at 1915 hours was the time on the Bosnian MUP intercept, as well as a transcript from the cassette of the Mladic searches as we've been referring to them? Do you remember seeing both of those documents and reviewing them, sir?

A. Yes, I remember that.

Q. And how did they correspond to your recollection as well as the actual report that is on the screen before us?

A. Yes, the content corresponds perfectly with the report from this telephone conversation.

MR. THAYER: Mr. President, the two documents, just for the record, I'm referring to are P313 and P702. The former is already received; the latter we'll save for another witness.

May we have P703, please.

Q. I want to focus on the middle report here. It's dated July 9th at 2125 hours, so this purports to have occurred a couple hours after the last conversation we just saw. Just take a moment and have a look at this, please, and then tell us whether you recall, in fact, having such a conversation at this reported time. ³⁹²⁵

A. No, I can't remember that.

Q. And, in fact, when I showed this to you on Sunday, did you have some questions about whether this, in fact, happened at this particular time as reported here?

A. I can't recall any other conversations that would have taken place besides the ones from which reports were presented previously here.

Q. Okay. Thank you, General.

MR. THAYER: Your Honour, the Prosecution would tender P703 even though General Nicolai has clearly stated he has got no recollection of this conversation, but I think it's important, nevertheless, to have it in the record as something he did, in fact, look at. Clearly he doesn't have a recollection of this and I don't think we are going to be relying on this document substantively for its contents, but I did want him to look at it and let you know that he looked at an example of a Croatian intercept and said he doesn't remember such a conversation. I think it's important for the Trial Chamber to hear that from the witness, and we would therefore tender it with that said about the document and our intentions.

JUDGE FLUEGGE: Judge Nyambe. Mr. Tolimir.

THE ACCUSED: [Interpretation] Mr. President, through this witness who says that he doesn't remember the document, therefore they cannot be tendered into evidence through this witness. Perhaps documents of this kind can be introduced through the people that wrote them, the transcripts, et cetera, but not in this way.

MR. THAYER: Mr. President, we have no problem waiting as well. ³⁹²⁶ As you've already heard, we will have the Croatian -- at least one Croatian intercept operator. So we can save time and if the Court prefers, we can MFI it in the meantime, but I did want to just let the Court know how we felt about the document while we had it here fresh.

JUDGE FLUEGGE: The Chamber doesn't want to discuss this extensively and therefore it will be marked for identification. It may be admitted at a later stage with another witness.

Mr. Thayer, please carry on.

MR. THAYER: Thank you, Mr. President. I'm going to skip over another document. Just for the record, if anybody is just keeping track of the exhibit list, it's P704. We'll take that up with another witness. May we have P684 on e-court, please.

Q. We have here a fax cover sheet, 9 July 1995 at 2200 hours, and we see that its drafter is Lieutenant-Colonel RJR Baxter, MA to commander. Who was Lieutenant-Colonel Baxter, sir?

A. Colonel Baxter was the military assistant to General Smith, just as Colonel De Ruiter was my military assistant. General Smith also had a personal staff officer who sent this message on his behalf. Although, at this time General Smith was not personally present at headquarters, but at that moment, Colonel Baxter was operating as MA for the acting commander, General Gobillard.

Q. And while we are on this topic, General, during this period of time, 8 July, 9 July, continuing on 10, 11 July, was General Smith incommunicado or was he in touch with the BH command?

A. Well, as far as I know, but you would have to ask Colonel Baxter, ³⁹²⁷ he was informed from time to time by Colonel Baxter, as far as I know, through British communication channels about how the situation was developing, but at that point he didn't interfere with the decision-making at the headquarters in any way whatsoever. And ultimately, General Smith returned only on Wednesday, 12 July, to the headquarters, in the evening of 12 July.

Q. Okay. Back to the document, we see that its subject is: "Warning to the Bosnian Serbs." And the message here is that attached is the final version of the warning and we have sent it as a CapSat. What is CapSat, sir?

A. Well, you could compare it to a fax message.

Q. Okay. They've sent it as a CapSat to General Mladic.

MR. THAYER: Let's go straight to the second page.

Q. Just take a moment to read it, sir, and --

JUDGE FLUEGGE: Can you enlarge it a little bit more. Too much. Yes.

THE WITNESS: [Interpretation] Yes, I'm ready.

MR. THAYER:

Q. I think we can all read what it says and I just want to ask two questions about it. First, how does this relate to the strong warning that we saw referenced in the prior conversations and documents you've testified about?

A. This is the serious warning that I referred to earlier.

Q. And briefly, is it an accurate reflection based on the reports that you were receiving of the events of the prior days and what it ³⁹²⁸ states?

A. Yes, as might be apparent from everything I mentioned in the previous telephone conversations about that situation.

MR. THAYER: Let's go to P293, please. This is under seal and should not be broadcast, please, Mr. President.

Q. What we have here is a Bosnian MUP intercept dated 9 July 1995. For the record it's report number 526, taken at 2310 hours. And the participants are identified as General Tolimir and General Janvier.

MR. THAYER: Now, if we could go to page 2 of the -- actually, I'm sorry, let's stay -- if we could go down to the very bottom of page 1, we can see the intercept report has General Tolimir stating, it's the last two words in fact on this page:

"Next, our." And if we go to page 2.

"Our army has very good relations with all the members of UNPROFOR as well as with the Muslim civilian population."

Q. How would you characterise that statement based on the reports that you were receiving at the time, General?

A. Well, shelling groups with which good relations are presumed is, to put it mildly, a very curious expression of maintaining good terms and maintaining good relations, so basically it really takes the cake.

Q. Okay. I think I understand what you are saying, but how would you characterise it? I hear you saying it takes the cake, but what does that mean? How would you characterise this statement?

A. If you have spent days shelling the UNPROFOR soldiers and the ³⁹²⁹ civilian population in the Muslim enclave, that can't be described as maintaining good relations with these groups. It's too ridiculous for words.

Q. We see here further on that General Tolimir says: "I gave the details to General Nicolai. I believe that he has passed them to General Janvier and told him about the conversations which we had yesterday and today."

Now, with respect to that statement there, is that accurate?

A. I just want to ensure that I understood your question properly. Do you mean or do you want me to confirm that we conveyed the information that General Tolimir passed on to us, that we transmitted that to the headquarters in Zagreb, or do you mean something different?

Q. No, that is my question. You understood me well, General.

A. Yes, of course General Gobillard reported our contacts or the contacts between me and General Tolimir and he reported the accusations raised in the process without dwelling on them because it was also automatically clear to General Janvier that they lacked all sense of reality.

Q. You've already told us what you thought about the statement from General Tolimir earlier about the six APCs. How about this statement that:

"The UN soldiers who came over to RS territory are not our prisoners, nor did we capture them."

How would you characterise that statement from General Tolimir, sir? ³⁹³⁰

A. Well, that gets us into words that DutchBat soldiers surrendered to the Bosnian Serbs because they expected to be treated better there than if they tried to flee back to their compound. Whether they were indeed prisoners of war, that's for the lawyers to debate. In any case, they did not return immediately to the compound across Serb territory. I can't judge whether the Bosnian Serb army blocked that or whether they were afraid to take that risk. I have to admit that during the time they were under the control of the Bosnian Serb army, they were treated properly.

Q. Now, based on the reports that you were receiving, General, were those DutchBat soldiers who were in the custody of the VRS, were they free to leave any time they wished?

A. Well, that was asserted in various telephone conversations, but nothing that materialised in practice. They were released only later on or in any case, returned to -- well, I think they even returned directly to Zagreb. I don't remember exactly how that came about. In any case, at those moments on those days, they were still in the hands of the Bosnian Serb army. They were also disarmed, which, as a professional member of the military, I can understand that when you gain control over others, you disarm them. So there's some similarities to the treatment of prisoners of war, but they were not treated badly. And whether they were free at that point to leave, I have certain doubts about it, but I can't prove that.

Q. How about the reference to or the claim that "nor did we capture them," you testified a moment ago about DutchBat soldiers who had a ³⁹³¹ choice of withdrawing, I suppose as Private van Renssen did, and risk what might happen at the hands of the BiH, so they chose to turn themselves over to the Serbs. Were there other circumstances that were being reported to you under which DutchBat soldiers came into the custody of the VRS?

A. Yes, after the air-strikes in late May, the hostages included UN soldiers that were taken hostage at that time. Those are previous examples more than a month earlier than that. And afterwards, some problems arose where soldiers were not captured but were in any case stripped of their possessions, and in this situation, if there had truly been good faith, then these soldiers could have been sent via a detour, via Bratunac back to the enclave. And the distance from Bratunac and Potocari to the compound is so minimal that that certainly could have happened. So that voluntary aspect or the opportunity given to them to return raises questions in my mind.

Q. Okay. General, what I am -- what I want to focus on is during the VRS attack on the 6th, the 7th, the 8th, and 9th, when the VRS was, as you've testified, was attacking the individual OPs, shelling and firing at the UN positions and the OPs, can you describe the circumstances of, in those cases, how the peacekeepers came into the custody of the VRS?

A. Well, basically the pattern was the same throughout that period. Observation posts were shelled and shot at not only with guns or mortars, but even by tanks, until the situation was such that nothing -- no other option was left than to abandon the observation posts and then you either ³⁹³² choose to flee back to the compound or you surrender to the attacking party. And in some cases the individuals opted for the latter, and basically when you surrender and you come into their custody, then you can describe that as being a prisoner of war, but throughout all those days, the same pattern applied.

Q. And you testified that the peacekeepers were disarmed. Was anything else taken from the peacekeepers by the VRS when the OPs were taken over or overrun by the VRS, other than their individual armaments?

A. Yes, we didn't get back an armoured personnel carrier either, not even when DutchBat left the enclave, despite the fact that it figured in the agreement between General Mladic and General Smith. So both the handguns and the armoured personnel carriers of the troops that surrendered were not returned to us at that point.

Q. Do you have any idea how many APCs fell into the custody of the VRS, sir?

A. I'd have to check the exact number, but I think around 6 to 8 APCs.

Q. Okay.

MR. THAYER: Let's go to page 3 quickly, please. And we can stay on page 2 for the B/C/S.

Q. Here General Tolimir tells General Janvier that: "You probably know that your soldiers left their weapons at some positions which were taken over by the Muslims and that they came to us with their side-arms only. I'm sure that you are aware that your soldiers came to our side from the observation posts only with their ³⁹³³ personal weapons and that the Muslims took their heavy weapons." How would you characterise this statement from General Tolimir, sir?

A. Entirely inaccurate. And if he stated this deliberately, then it's a lie.

Q. Well, General, in all your conversations with General Tolimir, did you ever have any suggestion that he was saying anything in any way other than deliberately?

A. Well, let me put it this way: Each time we confronted him with a certain situation or protested about something, his first response was to deny that situation or to indicate that he was not aware of the situation, that he had to verify it, and in some cases he went still further by levying all kind of absurd, untrue accusations in response. That was consistently the pattern, either saying I'm not aware of this or it's not true at all, and we are not doing anything against UNPROFOR or that we are not doing anything against the civilian population. And if that was not enough, then accusations would be forthcoming that the BiH was doing all kinds of things and was, moreover, being assisted by UNPROFOR in the process. That was the consistently recurring pattern, and if I say that this caused increasing irritation, then I'm putting it very mildly.

Q. Okay. Well, let's -- again let's break that down a little bit, General. Based on your observation of the operation of the VRS, based on the reports that you were receiving during the VRS attack on the Srebrenica enclave, did you come to any conclusions about whether these ³⁹³⁴ statements from General Tolimir were deliberate, whether they were in the innocent misstatements, whether he was uninformed or something else? What was your conclusion during the course of these conversations with General Tolimir about his state of knowledge, his actual state of knowledge and what he was -- versus what he was telling you?

A. What I'm going to say now is an assumption, but I'll tell you the basis for the assumption. The Bosnian Serb army has demonstrated that it operated very professionally and that the army had material and in any case all conceivably necessary communication channels that are necessary for proper command, especially since they were carrying out their operations on their own territories.

So I believe that they had a plethora of communication channels compared to, for example, UNPROFOR. A professional army continuously issues reports when fighting is taking place aside from the ordinary set of reports. It's completely inconceivable to me that with such an important operation such as an attack on a safe area, the headquarters of the Bosnian Serb army at the time was not aware of the situation that was occurring at that point, especially since the attack had been in progress for at least four days.

Based on that assumption, I'm saying it's impossible that General Tolimir was not deliberately providing me with misleading answers.

Q. And you told the Trial Chamber, General, that I think you said, to put it mildly, this caused you irritation. Can you describe the effect it had on you personally and also on UNPROFOR in terms of time and ³⁹³⁵ other factors of these deliberate statements from General Tolimir, these lies as you've called them, on your response and your ability to respond to the VRS attack on the Srebrenica enclave?

A. Well, I learned that you always need to try to keep your feelings from influencing rational actions and that's what we did here as well. You've also noticed that in the telephone conversations, I consistently tried to provide an appropriate response and to avoid being provacative and I didn't use harsh words. At most, I said that the information was pertinently inaccurate.

In the meantime we did try, and that is clear from the serious warning we issued, we tried to see what measures we could take to resolve this situation. So we made preparations for setting up a blocking position south of Srebrenica to bring about a situation where we could try to use ground troops to stop the attack. And at the same time we also started preparing to carry out air-strikes because we said if fighting materialises between UNPROFOR and the Bosnian Serb army, then use of close air support will undoubtedly ensue. Despite the fact that the Security Council's 824 and 836 allowed that measure far earlier, as a consequences of the post-air strike guidance I mentioned earlier, we had become very conscious about that. But if the blocking positions were attacked now, then use of air support would be inevitable. And the fact that we continued this planning and had basically prepared the entire request for an air-strike to ensure that if that situation materialised, all that would be necessary would be a signature to commence implementation, that meant that in our actions, in our ideas, we had gone ³⁹³⁶ considerably further than what we disclosed in our conversations with the Bosnian Serb army.

Q. Now, during these conversations that you had with General Tolimir on the 8th and 9th, and going into the 10th of July, when General Tolimir was telling you that he had to check what was happening on the ground and didn't have the same information you did and was asking you to call back or telling you that he would call you back, what was happening on the ground in Srebrenica?

A. Well, basically it kept going further. I'm not sure exactly what you are referring to now, but what happened on the 8th and the 9th, I've elaborated on that previously. On 10 July, the day started out fairly quiet but during the course of the day the Bosnian Serbs resumed attack, and there were shellings back and forth between UNPROFOR and the Bosnian Serb troops, which ultimately resulted in a request for air support which was granted immediately at UNPROFOR headquarters and transmitted to Zagreb because that was the level that was authorised to approve air-strikes.

And to everybody in Sarajevo's regret, the decision-making took longer that we had expected. As a consequences night fell, and General Janvier decided that it was too risky to carry out those air-strikes that evening because the troops were very dense and the terrain was fairly obscure, and as dusk fell it -- there was too much of a risk that our own troops would be hit. That's about the 10th. He did say that he would ensure that from Tuesday, the 11th, early in the morning, those airplanes would be available for deployment if necessary. ³⁹³⁷

Q. Now, during these conversations on the 8th and the 9th, when General Tolimir was denying that the UN was being attacked by the VRS or the civilians were being attacked by the VRS, did you communicate those statements from General Tolimir to General Janvier or Zagreb?

A. Yes, undoubtedly. There were so many conversations. We reported about the situation daily, and one thing I know for certain is that in the extensive conversation on Saturday afternoon, 8 July, with the acting force commander, these subjects figured in the conversation. He asked what did you do, I presented those accusations and protested about what was happening and also indicated the response from the Bosnian Serb army. And I'm convinced, although I wasn't present at all conversations, that General Gobillard also raised this subject in his conversations with General Janvier.

Q. And what, if anything, did General Janvier or his staff tell you or General Gobillard to do with respect to following up regarding General Tolimir's statements to you that -- and denials to you that the UN was not being attacked, nor the civilian population was being attacked, by the VRS? What, if anything, did General Janvier or his staff tell you or General Gobillard in terms of following up or trying to verify that information when you reported that to him?

A. No, that would have been very strange. That would have been an expression of no confidence in the reports issued by his troops at lower levels, so neither at the Sector South north-east level, nor at the UNPROFOR level, nor at the UNPF level was there ever any doubt about the accuracy of the reports by DutchBat from the enclave. So a question to ³⁹³⁸ verify this -- a request to verify this would have been completely out of order.

What he did do, what bothered him was that UNPROFOR had not previously responded to the Bosnian Serb attacks with gun-fire, and before he agreed to deploy air force, he wanted a response to the fighting at a lower level, and that's why he instructed that the blocking positions be set up so that a confrontation between UNPROFOR and the Bosnian Serb army would be inevitable. And he had indeed issued instructions that there be response fighting with the available weapons there and that's what happened.

JUDGE FLUEGGE: Mr. Thayer, would this be a convenient time for the second break?

MR. THAYER: Yes, thank you, Mr. President. I apologise for keeping my eye off the clock.

JUDGE FLUEGGE: We have our second break now and resume at 6.00.

--- Recess taken at 5.34 p.m.

--- On resuming at 6.03 p.m.

JUDGE FLUEGGE: Yes, Mr. Thayer.

MR. THAYER: Thank you, Mr. President. Thank you. If we could scroll down to the bottom of the document that we see here, please.

Q. General, we can see the last two statements from General Tolimir to Janvier are:

"We are doing our best to stabilise the situation, as soon as possible, and as much as it's possible, but you have to bear in mind how complicated the situation is, very complicated." ³⁹³⁹ Then again:

"I thank the General and also wish to give him a personal message that we will do everything we can to calm down the situation and to find a reasonable solution."

Now, this intercept was recorded at 2310 hours on 9 July. Based on the reports that you were receiving and your recollection of the subsequent events, what happened to the situation on the ground that General Tolimir promised to calm down in this conversation?

A. Nothing indicated that those efforts to stabilise the situation actually took place, as I've stated earlier. The date of Monday, 10 July, started quietly, but in the course of the day the hostilities resumed and ultimately resulted in the confrontation or the clashes between the UNPROFOR troops in the blocking position and the approaching troops of the Bosnian Serb army.

MR. THAYER: Okay. And to save some time we can skip over P704. And if we may have P700 back up on e-court, I think this has been received in evidence.

Q. General, what we are going to see is the transcript of one of the -- of the Mladic audio cassette from the search. You testified that this was the same conversation as that contained in P680, your 9 July 1995 conversation at 1750 hours.

Do you recall on Sunday, in my office, listening to the actual audiotape of this conversation and following along with the B/C/S transcript that we see here so that you could actually hear the words and follow the words in the original language of the interpreter? Do you ³⁹⁴⁰ recall doing that with this conversation, General?

A. Yes, I remember that well.

JUDGE FLUEGGE: Mr. Tolimir.

THE ACCUSED: [Interpretation] Thank you, Mr. President. There's no date anywhere here or the time at which the conversation was conducted, either in the English version or in the Serbian transcript, so I'm wondering how come Mr. Thayer is able to ask when this happened?

JUDGE FLUEGGE: Mr. Thayer.

MR. THAYER: Mr. President, I believe that's been established by the witness's testimony concerning this transcript earlier in his testimony where we went through the related report taken by his MA and I asked him about the transcript of the cassette and whether it had an opportunity to compare that and whether it corresponded with anything, and he confirmed that that was the case, that in fact it corresponded with the report contained in P680.

JUDGE FLUEGGE: Indeed we heard a lot of answers related to dates of intercepts. Please carry on.

MR. THAYER:

Q. General, were you able to recognise the voice of the interpreter from listening to that audio cassette?

A. Yes, I was able to. And to be perfectly clear, it was the voice of my personal interpreter, Svetlana.

Q. And would you say that she has in any respect a distinct or a memorable voice for you when you heard it?

A. Not a very distinctive voice, but when day after day for six ³⁹⁴¹ months you've worked closely with somebody, you would expect to recognise the voice of that person.

Q. Okay, General.

MR. THAYER: I think we can skip over P705. We'll take that up with a different witness.

Q. Just a couple of final questions, General. You testified in the Popovic case that - and this is at transcript page 18496, just for the record - that based on your contacts with General Gvero on the 11th and 12th of July, that you concluded that he was in charge of the VRS headquarters at that time. Do you remember that testimony?

A. Well, I might be very specific about the formulation. I don't know whether he was in charge of the headquarters concerned, but he was the officer in charge, the general in charge, that maintained contact with us.

Q. And I believe your testimony in the Popovic case was that that was an assumption that you made, and can you tell us upon what facts that assumption was based?

A. Yes, based on the fact that each time a contact was initiated, either from our side or from the side of the Bosnian Serb army, General Gvero would come on the line.

Q. And did you form any conclusion about General Tolimir's role on the 8th, 9th, and 10th of July?

A. Yes. I think that was comparable to the role of General Gvero. Apparently on the 9th and the 10th, no. On the 10th and 11th of July, General Gvero assumed the duties previously performed by General Tolimir. ³⁹⁴² The first days I would get General Tolimir on the line and afterwards General Gvero, so I regarded them as nothing but intermediaries between the UNPROFOR staff and General Mladic.

Q. And you said in your OTP statement that you believe that General Tolimir was the number three officer in the VRS hierarchy. Can you tell the Trial Chamber upon what you based that statement, that it was your assessment that General Tolimir was the number three, and can you just tell us who was number one and number two first, and tell us why you assess that General Tolimir was the number three.

A. Well, clearly there's no doubt that General Mladic was the commander and the commander of the Bosnian Serb army. General Milanovic was introduced to me as his Chief of Staff, and I understand that in that capacity he was the second man. What I heard both from my predecessor and what I experienced myself was that when those -- if those two were not the person for us to contact, we almost always had contact with General Tolimir. I didn't negotiate much with General Tolimir, but my predecessor certainly did that. In negotiating all kind of treaties, it was consistently General Tolimir who was present, and from that we inferred that he was important.

I met General Gvero only during these final days on the 10th and 11th of July. Before that I had never had any dealings with him, and in my view, he was apparently subordinate in the hierarchy, although I can't prove that.

Q. Okay. Just to follow up on one thing, the transcript indicates that you met General Gvero during these final days on the 10th and ³⁹⁴³ 11th of July. Did you ever meet General Gvero in person, General?

A. No, that's incorrect. If that's your conclusion, then I wasn't clear enough. I exclusively had telephone contact.

THE INTERPRETER: Interpreter's specification: Witness said "was introduced."

MR. THAYER: Okay. Thank you.

Q. And, General, can you describe for the Trial Chamber, based on your observation of the VRS and your interactions with these Main Staff officers, the decision-making authority that appeared to you to be invested in these subordinate assistant commanders and in the Chief of Staff, General Milovanovic?

A. Yes, generally, but looking back on my entire period as Chief of Staff in Bosnia, if any requests came from the UNPROFOR staff to the staff of the Bosnian Serb army and I got General Milovanovic on the line, I would immediately receive a response to my request. It would be granted or rejected, but he wouldn't say, "I'll convey the message and you'll be hearing from me," so that made it clear that he was certainly authorised to take decisions.

And in my dealings with General Tolimir, that did happen, but then I'm talking about the period prior to these final days. And you'll have noticed from the telephone conversations, and this held true both for General Tolimir and for General Gvero, each time assertions would be made and the message would be received, but it was always said that the information needed to be verified and there were no direct answers along the lines of "I'll take measures now." ³⁹⁴⁴ So everything indicates that during those final days, General Mladic was in full control.

MR. THAYER: Thank you, General. I have no further questions at this time.

JUDGE FLUEGGE: Thank you very much. I notice that the time you used during examination-in-chief was double or triple time than indicated earlier. No complaint, I just wanted to state that for the record. Mr. Tolimir, the last 40 minutes before -- during the last hearing before the summer recess, do you want to start now your cross-examination or would you like to use the summer recess for preparation of the cross-examination? You indicated that you need 10 to 11 hours?

THE ACCUSED: [Interpretation] Thank you, Mr. President, that's right, I'd like to greet General Nicolai and everybody else. And I would like peace to reign in this courtroom, and that God's will be done and not my own will. I don't think that I could start today and start a topic and then interrupt it and take it up 21 days later. All I can do now, perhaps, is to ask a few questions about some -- well, to ask the General some general questions without entering into any specific areas, perhaps that's what I could do now. Thank you.

JUDGE FLUEGGE: It is up to you how to deal with that. Please go ahead.

THE ACCUSED: [Interpretation] Thank you. Cross-examination by Mr. Tolimir:

Q. [Interpretation] The whole day today and yesterday we heard about ³⁹⁴⁵ the fact that Tolimir is the main person to blame for the events in Srebrenica. I want to ask you this, that's my question, is Tolimir the main culprit and to blame for everything that happened in Srebrenica or not?

A. Is that a question to me? Yes, I think I do have an opinion about that, although I think it's up to the Court to judge, not me. But as I said at the end of my statement previously, everything indicates that the overall control during these final days was under the aegis of General Mladic.

Q. Thank you. My next question is this: On several occasions you were asked whether I lied when I said something, whether I lied and fabricated things. But let's look at 1D207, and then I'd like to ask you some questions about it. Thank you.

Thank you. Now, General, would you just read through point 1 or the first paragraph of this interview given by Mr. Franken, whom you know well, and he testified here before you, and he confirmed this in his testimony and we are going to discuss that in due course. But read the first point or paragraph and tell us what you know about it. Thank you.

JUDGE FLUEGGE: Mr. Thayer.

MR. THAYER: If I could ask that General Nicolai take his -- well, he understands English perfectly, so I'm reluctant to lodge this objection in the presence of the witness, Mr. President.

JUDGE FLUEGGE: I see the Chamber in the same situation.

MR. THAYER: The -- let me see if I can get around it without having to take up more time and have General Nicolai taken out of the ³⁹⁴⁶ courtroom. I would object to the formulation of that question, the characterisation of Colonel Franken's adaptation or adoption of this interview. I think what Colonel Franken said about the interview is clear on the record, about the circumstances of this transcript that we are looking at, and in particular what he said about question 1. And I can cite the transcript record later, I don't have it before me, but I recall some specific testimony from Colonel Franken that belies the representation made by General Tolimir in his question.

JUDGE FLUEGGE: We can deal with that perhaps in the following way: Before you respond, I would like -- just like to note that the first line of this document is: "The tape recording failed. The text below is a reconstruction of that discussed." In fact that means this is not an interview, this is a note somebody took after having discussed certain topics with Colonel Franken.

If you want to put this document to the witness, Mr. Tolimir, then you should be very careful to quote parts of the testimony of Colonel Franken. The witness might read -- may read item 1 and then you put a question without quotation -- without citing parts of the testimony of Colonel Franken. That would be an appropriate way to deal with that, I think.

THE ACCUSED: [Interpretation] Thank you, Mr. President. I'll rephrase my question. I think that Mr. Thayer could have said this to Mr. Nicolai, since he examined Mr. Franken as well. But this is what I have to say: In this interview -- well, we looked at transcripts earlier on, people who recounted conversations because all the documents we ³⁹⁴⁷ looked at were interpreted, so I didn't make any objections.

Q. I am just -- I would just like to ask Mr. Nicolai the following. Mr. Franken allegedly said that:

"The BH Army smuggled two BTR armoured cars into the enclave via the north. This was notified by a Dutch observation post. They were never found. Later it became clear that the Ukrainians in Zepa were missing a total of five."

So on the basis of what I've just read out, I would like to ask the following question: Did you know, were you aware of that, that the Ukrainians in Zepa were missing five armoured cars and that the Dutch OP never mentioned seeing two armoured vehicles coming in via the north, into the enclave via the north?

A. I can answer that very briefly. I'm not aware of any report indicating that two BTR vehicles entered the enclave. And as for the fact that Ukrainian troops in Zepa were missing five APCs, I don't know anything about that either. Certainly not at that moment. I don't know what the situation was when the evacuation was taking place from Zepa, as that operation happened while I was on leave.

But I'd like to add something to that, if you allow me. Given the relations, and I know that UNPROFOR is expected to be impartial of the terms between the Ukrainian and the Bosnian Serb troops, it seems extremely unlikely that of all parties they would have handed over five APCs to the ABH unless they were stolen, but I can't imagine how that could have happened, and I never heard any report or read any announcement to that effect. ³⁹⁴⁸

Q. [No interpretation]

THE INTERPRETER: Microphone, please.

MR. TOLIMIR: [Interpretation]

Q. Thank you, General, sir. We will look into this when we have more time. We can confront you with what Mr. Franken said and which was recorded in the transcript.

THE ACCUSED: [Interpretation] Let's take a look at P17.

Q. But before that, let me wrap up this general topic. If I had information and General Gvero had information and your deputy battalion commander in Srebrenica, is it then a lie what I'm saying or a fact which is based on statements made by UNPROFOR command?

A. If there were any manner of reports that BTR vehicles painted in UN colours were perceived coming into the enclave from outside, then I would have been more cautious about using words such as using lies, but because no such report was ever made and such a serious fact would certainly have warranted a report, I have consistently assumed that the information was deliberately misleading.

Q. Thank you, General, sir, for your frank answer. You will say, when I resume my examination, that a deputy of Colonel Karremans were seen and that they drove so far that some -- nothing could be done at those check-points, and the Chamber is going to hear about that as well. But, General, I would like to say that it is not good practice that things are concluded on the basis of such assumptions. It is said to you today that Tolimir lied when -- on the 8th of July, when he said that he would be checking the status of Srebrenica and the situation ³⁹⁴⁹ there after having received a report on that from you. I would like to tell --

JUDGE FLUEGGE: Mr. Tolimir, I think that you should correct your words. Not Mr. Thayer used the word "lie," but the witness used the word "lie," if I recall that correctly. It was the word of the witness.

THE WITNESS: [Interpretation] With your permission, Mr. President, I'd like to respond to that. One example is being presented now where, according to General Tolimir, is a subject of doubt. On the other hand, I would like to make clear that General Tolimir repeatedly denied that he attacked the civilian population, that UNPROFOR was attacked by the Bosnian Serb troops, although the facts were certainly different. If one denies that so vehemently, it's understandable that I take an allegation about UN vehicles that did not belong to DutchBat -- not belonging to DutchBat being in the enclave, that I also consider such an allegation to be a lie.

JUDGE FLUEGGE: Please carry on, Mr. Tolimir.

MR. TOLIMIR: [Interpretation]

Q. Thank you, Mr. Nicolai. We will continue discussing this topic later on. I would like to ask you another question. There was talk of you telling me on the 8th what you answered to Mr. Thayer and that you said the BSA attacked your position and your check-point in the Srebrenica enclave.

THE ACCUSED: [Interpretation] There is a document, D69, please. Let's take a look at it.

MR. TOLIMIR: [Interpretation] ³⁹⁵⁰

Q. We can see this in Serbian and in English. I'm going to read out for the benefit of the transcript how I relayed your telephone protest. "The UNPROFOR command in Sarajevo has filed a protest note with the Main Staff of the VRS over operations against UNPROFOR observation point 652808 (UNPROFOR map, near Zeleni Jadar)," as you call that position then.

"They emphasised that their point was captured by artillery and tank action. The Main Staff of the VRS answered that the Drina Corps command had informed it that the Muslims were using six armoured personnel carriers, painted white and bearing UNPROFOR markings, and that the Muslims had started offensive operations from Srebrenica in order to join up the enclaves of Srebrenica and Zepa.

"The VRS Main Staff demanded that UNPROFOR warn the Muslim forces to withdraw to within the borders of the demilitarised zones and stay marked on the map, in accordance with the agreement, and to disarm them in accordance with the agreement. The Main Staff also demanded that UNPROFOR not set up observation points outside the marked demilitarised zones.

"The Main Staff has ordered you not to attack UNPROFOR, but to prevent any surprises and stop the Muslims in their intentions to join up Srebrenica and Zepa.

"Good luck in war and best regards from General Tolimir." This is a telegram that was sent on the 8th of July, 1995, after my conversation with you, and it's stated here who are the addressees of the units that were engaged around Srebrenica. ³⁹⁵¹ My question to you is: Did I lie in this, when I relayed your protest? I also noted that you sent a protest note without mentioning that it was orally. My question to you is: Did I relay everything that you told me to my units? Thank you.

A. I'm not saying that you were lying when you conveyed these data to your units, but I very much doubt the accuracy of this information. First, it's highly remarkable that there would not have been any report by UNPROFOR regarding six UN vehicles said to have been used during an attack on troops by the Bosnian Serb army. And second, the suggestion -- if I compare what you could do with six UN vehicles against the overpowering force of the troops concentrated by the Bosnian Serb army around the enclave, then it's utopian to think that those six UN vehicles could make a connection between the Zepa enclave and another enclave, so it's a highly implausible depiction of the course of events. And I'm saying that in euphemistic terms.

Q. Thank you, General, sir. Please, take a look at the fifth row in the first paragraph. I did not say that you reported. I, rather, said on behalf of the Drina Corps Command, we were informed that the Muslims were using six armoured personnel carriers. I did not relay what they reported to me. In this telegram I state to them what I said to you, because I received reports on six APCs. I did not say that UNPROFOR reported that. Maybe it was a mistranslation.

A. Yes, I was indeed referring to what you stated in the telegram and you undoubtedly conveyed it this way, but I very much question the accuracy of this information for the two reasons that I said. There was ³⁹⁵² never any report by UNPROFOR, and they would certainly have noticed something of that. Second, the only thing you could do with such a small force of six vehicles would be to provoke, hoping that UNPROFOR would become involved and deploy air support. But the suggestion that they were used to connect two enclaves, that's patently beyond any sense of realism.

Q. Thank you, General, sir. Such a suggestion does not exist here, I'm just relaying information to the Drina Corps what I had told you. I mentioned to you those six APCs because I had received reports from them about that. I'm not out in the field, I do not know what the situation was. I even asked you about the co-ordinates of the OP that was attacked. I was not in the Drina Corps, I was in the staff command. I relayed your protest and I acted in good faith, with good intentions. I wanted this to reach all the commanders. I simply did not lie. I relayed what you had told me, and the co-ordinates, of course, because I did not know the lay of the land or that area. Thank you.

JUDGE FLUEGGE: Mr. Tolimir, you are not in the position to give evidence. This is the problem of this trial, of course. Just put questions to the witness. He is here for answering questions.

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

Q. General, sir, since we have to be mindful of every word, did I insinuate anything in what we see to the fact that the Drina Corps had reported that the Muslims were using six APCs painted white with UNPROFOR markings? Did I, in our conversation, mention those six APCs that were used by the Muslims or not? Thank you. ³⁹⁵³

A. Yes, in the different conversations that we had you have indicated them, indeed.

Q. Thank you, General, sir. You will understand me as a general since I'm not a general who took part in combat in a unit. As you said, I was in charge of negotiations, just as my counter-part in your command. I cannot trust a soldier or anybody else if I do not give them true and genuine information.

Can you find out from your soldiers, for instance, from your deputy battalion commander or battalion commander, that there were any APCs in Srebrenica? Could you have found that out had you asked about that at the relevant time? Thank you.

A. Well, if this had occurred, then I assume that, one way or the other, this would have been observed by the DutchBat troops, either by them or by other UN troops present on the grounds, and also by the military observers, the UNMOs, present on the ground. And never there has been any report that indicated in this direction.

Q. Thank you, General, sir. My first question would be: Did anybody check the information that I gave you repeatedly, as you said, and Gvero did, about the six APCs? Did the Sarajevo command verify that with their troops on the ground in Srebrenica and Zepa? Thank you.

A. No, they have not because it never occurred to me that this would concern APCs that could originate from the Zepa enclave, and because I was certain that these were no DutchBat APCs. And therefore there was no reason for me to verify whether possibly APCs could be missing in Zepa, what at the same time still seemed very unlikely to me. ³⁹⁵⁴

Q. Thank you for your answer. So, nobody verified the information provided by two generals from the Main Staff concerning six APCs that were missing from the Ukrainian battalion in Zepa. Maybe you thought that we were trying to mislead you, but you will see in the transcript what the deputy battalion commander has to say about that when the time comes. Thank you.

JUDGE FLUEGGE: Mr. Tolimir, the witness said, "therefore there was no reason for me to verify." This is a difference to your statement, "nobody verified the information." Please be careful by putting such a statement to the witness. And now your next question, please.

THE ACCUSED: [Interpretation] Thank you.

MR. TOLIMIR: [Interpretation]

Q. Witness, sir, for me not to be misunderstood, let me repeat this question. Did anybody from the UNPROFOR command in Sarajevo verify the information that had been provided by Generals Tolimir and Gvero that there were six APCs missing in Zepa? Thank you. And that those six APCs were in Srebrenica during the combat? Thank you.

A. The answer can be very clear. If it would have been reported to me that APCs were missing in the Zepa enclave, then certainly I would have verified this. However, this has not been communicated to me with so many words. There only has been reference to six UN APCs and the assumption that these could be from Zepa never come to my mind, and therefore there was no reason to verify these allegations.

Q. Thank you. Did I tell you this and did General Gvero tell you this in conversations? Thank you. ³⁹⁵⁵

A. Well, earlier during this session we have looked at this transcript of a telephone conversation in which you state that six white APCs were being used by the ABiH forces. I can confirm that.

Q. Thank you, General, sir.

JUDGE FLUEGGE: Mr. Tolimir, Judge Nyambe has a question.

THE ACCUSED: [Interpretation] Thank you.

JUDGE NYAMBE: Thank you, Mr. President. I have a question for the General who is the witness, just to make sure that I don't confuse. At page 69 of our transcript, lines 5 to 10, you have stated that: "If it would have been reported to me that APCs were missing in the Zepa enclave, then certainly I would have verified this. However, this has not been communicated to me with," I think you mean in so many words. "There only has been references to six UN APCs, and the assumption that this could have come from Zepa never came to my mind." I want -- just can you clarify for me, did you receive any report of UN six or any number of UN APCs missing during the relevant period?

THE WITNESS: [Interpretation] I have never received reports on any missing UNPROFOR APCs. The only reports I have received were from General Tolimir and the conversation by telephone that we have seen earlier today. Given the fact that I knew DutchBat was not missing any armed personnel carrier, they were the unit on the ground in Srebrenica, I knew that this could not possibly be any APCs of DutchBat. And when General Tolimir now says that these could be possibly APCs from UN troops in Zepa is new to me. I have never received any reports about APCs from the UN missing from Zepa and this seems so unlikely to me, given the fact ³⁹⁵⁶ that the Srebrenica enclave was completely surrounded by Serb Bosnian troops. It's inconceivable to me how they could have reached the Srebrenica enclave, and even more, how these APCs could have ended up in the hands of the Muslim forces. And this is something I cannot even picture in my mind.

JUDGE NYAMBE: Thank you.

JUDGE FLUEGGE: Please carry on, Mr. Tolimir. Some minutes left.

THE ACCUSED: [Interpretation] Thank you. Please, since I have several minutes left, let's take a look at D41 on the e-court, please.

MR. TOLIMIR: [Interpretation]

Q. And before it's retrieved, I'd like to ask you a question. You told me on the 8th that UNPROFOR soldiers should not be attacked, didn't you? Did you tell me that the BSA should not attack UNPROFOR soldiers? Did you say that to me on the 8th? Thank you.

A. Yes, that is correct.

Q. Thank you. My meagre authority over the combat unit was confirmed by or reaffirmed by the commanders or the president's authority as can be seen in paragraph 4.

"In accordance with the order of the president of Republika Srpska, you must issue an order to all combat units participating in combat operations around Srebrenica to offer maximum protection and safety to all UNPROFOR members and the civilian Muslim population. You must order subordinate units to refrain from destroying civilian targets unless forced to do so because of strong enemy resistance. Ban the torching of residential buildings and treat the civilian population and ³⁹⁵⁷ war prisoners in accordance with the Geneva Conventions of the 12th of August, 1949. Assistant commander, Major-General Zdravko Tolimir."

I sent this on the 9th of July, after our conversation on the 8th, and that's confirmed here on the document. My question to you is: Did I do everything you requested from me to protect UNPROFOR members? As you see, very urgent conduct of combat operations around Srebrenica addressed to the Drina Corps Command, did I invent things or did I just relay what you had requested of me? Thank you.

A. Indeed I can read what is written in these orders. However, commanders are accountable, first and foremost, about their deeds and not about their words. And let me repeat that I am not speaking about you as a person. I consider you to be the intermediate between UNPROFOR and the command of the Bosnian Serb forces.

It is a fact that we have demanded from you that the attacks on UNPROFOR should cease. It is also a fact that reality has shown that this has not materialised. Whether orders have been given to stop this is one, but it's something else whether this actually happened and they did not stop.

Q. Thank you, General, sir. I've been told that we are nearing the end of the day so just one more question. The person who commands forces, who is in command of the forces, he issues his orders. Does he issue his orders to the forces expecting them to comply, since he asked nothing more than for them to act upon his orders; is that right or not?

A. No, that's something that I cannot affirm. A commanding officer ³⁹⁵⁸ is not freed from his responsibility from the moment when he issues an order. He is only freed from the responsibility when he ensures that these orders are executed, and he should see to this. And a commanding officer is not freed from certain responsibility by simply issuing an order.

Q. Thank you, General. I wasn't the commander, I just conveyed your orders to the Drina Corps command. That's all. I couldn't issue orders to the Drina Corps and I said quite clearly that I conveyed your message. So I'm asking you now, did I convey your message as you told it to me or not?

A. Yes, reading this document then that is the case. I assumed that the message that I had conveyed would be conveyed by you to General Mladic, and that General Mladic would see to it that these orders would be carried out. And I assume that at that point in time General Mladic was the commanding officer on the grounds, but whoever was on the grounds should have seen to this. However, simply issuing orders on paper does not free the commanding officer from the responsibility he bears, which does not mean that I am assuming that you were that commanding officer.

JUDGE FLUEGGE: Mr. Tolimir, we are approaching the end of today's hearing.

Mr. Thayer.

MR. THAYER: Mr. President, we can take up my intervention when we return. We don't need to stay longer for that.

THE ACCUSED: [Interpretation] Thank you, Mr. President. And I'd ³⁹⁵⁹ like to thank the witness for his sincere answers and proper conduct. I'd like to thank the interpreters and everybody else who helped us understand each other. Since I just asked general questions in the start of my cross-examination and I didn't put any documents to the witness which I shall be using in due course, I used the documents we've already been through. Thank you.

JUDGE FLUEGGE: Thank you very much. Sir, this doesn't conclude the questioning for you, but for today you are free to return to your normal activities, but I have to remind you it is not allowed to get in contact to either party on the content of your examination during the break.

Before we break and adjourn, I have to mention one detail. We have admitted three documents during the evidence of Mr. Blaszczyk. The documents P132, P143, and P140 have not a translation yet and therefore they will be marked for identification only.

At this point in time I would like to thank you, the staff, the whole staff who is supporting us, but also the parties for the proper conduct of this trial and I think we appreciate the progress we were able to make all together. This was the last day of hearing before the summer recess. I'm not in a position to wish everybody nice holidays because not everybody will have holidays, at least not the whole time of the summer recess, but all the best for everybody present in the courtroom. We will resume on the 13th of August, in the afternoon, 2.15 p.m., in this courtroom number III. Or perhaps I misspoke, it is the 17th of August. No, no, we won't have a hearing during the summer. ³⁹⁶⁰ So the 17th of August.

We adjourn.

[The witness stands down]

--- Whereupon the hearing adjourned at 7.06 p.m., to be reconvened on Tuesday, the 17th day of

August, 2010, at 2.15 p.m.