¹¹⁸³⁷ Monday, 28 March 2011

(Open session)

[The accused entered court]

--- Upon commencing at 2.22 p.m.

JUDGE FLUEGGE: Good afternoon to everybody in the courtroom. As you can see, only two Judges of this Bench are present this afternoon. Judge Mindua has some medical problems and is not able to attend and the Chamber decided to sit pursuant to Rule 15 bis of our Rules of Procedure and Evidence.

The -- Mr. Thayer, I see you are going to take the floor.

MR. THAYER: Good afternoon, Mr. President. Good afternoon, Your Honour. Good afternoon to the Defence. Good afternoon, everyone. Just a quick proposal for the Trial Chamber. We are currently scheduled to sit in the afternoon this Thursday, and we were wondering on behalf of the Prosecution, whether we might be able to change the sitting to the morning, and I'd just if inquiry could be made if that's okay with the Trial Chamber and the parties and everybody else involved. That would greatly convenience our team.

JUDGE FLUEGGE: Mr. Gajic.

MR. GAJIC: [Interpretation] Hello to everybody. Mr. President, the Defence does not object to have the sitting in the morning on Thursday. Our current schedule is such that on Thursday we are probably going to be in the middle of the direct examination of the following witness which is probably going to take a little bit longer, or it is going to be the end of the cross-examination ¹¹⁸³⁸ of Witness Obradovic. So we think that it is perfectly okay to work in the morning on Thursday.

JUDGE FLUEGGE: The Judges who are present at the moment in the courtroom would agree to that. But we have to, of course, liaise with our colleague, if he will be available that morning. We will let the parties know as soon as possible. Thank you.

The witness should be brought in, please.

[The witness takes the stand]

JUDGE FLUEGGE: Good afternoon, sir.

THE WITNESS: Good afternoon.

JUDGE FLUEGGE: Welcome back to the courtroom. I'm happy that you could make it in time.

THE WITNESS: Thank you.

JUDGE FLUEGGE: I have to remind you that the affirmation to tell the truth still applies.

WITNESS: RUPERT ANTHONY SMITH [Resumed]

JUDGE FLUEGGE: And Mr. Tolimir is continuing his cross-examination.

Mr. Tolimir. Before you continue, Judge Nyambe has a question for the witness.

JUDGE NYAMBE: Thank you. Welcome back, General Smith.

THE WITNESS: Thank you.

JUDGE NYAMBE: I just need to ask a small question in relation to -- I think your last answer at the last session, which is -- which was ¹¹⁸³⁹ in the transcript at page 73, lines 3 to 4. I have -- if I'm -- I quote you incorrectly, please correct me. In answer to General Tolimir's question, you had your answer as follows:

"I think it would have been wholly impractical in the circumstances of -- of 11 July and thereafter ..." I think it was to protect -- his question was to protect the villagers within the enclave. My question, if I've quoted you correctly is as follows: Why would it have been wholly impractical for UNPROFOR to protect the villagers in their homes where the VRS forces would not enter the zone?

THE WITNESS: There were just not enough forces. If my memory serves me correct, when the initial study of the Srebrenica safe area was made in 1992 or 1993, 1993, a -- a force of some possibly as high as 30.000 troops, certainly 20.000, was going to be required to defend the safe area.

Now, my memory -- this may have been all the three safe areas, not just Srebrenica, so my figures can be out. But they certainly weren't the -- under a thousand that we actually had there. And that was all that was supplied by the troop-contributing nations over the period of the willing -- the safe areas by the Security Council and the forces being provided or some forces being provided to make them safe.

JUDGE NYAMBE: Thank you.

JUDGE FLUEGGE: Now, Mr. Tolimir, it's your turn. Please continue.

THE ACCUSED: [Interpretation] Thank you, Mr. President. Thank you, Judge Nyambe. May peace reign in this house. May peace be upon ¹¹⁸⁴⁰ everybody here. May this day of the proceedings and the whole trial finish in accordance with God's will and not in accordance with my will. I would also like to greet General Smith again.

Cross-examination by Mr. Tolimir: [Continued]

Q. [Interpretation] General Smith, we have just heard the question of Judge Nyambe who thereby connected our previous proceedings with today. My question is: Was the international community surprised by the speed with which the Muslims left Srebrenica and by the fact that they all gathered in Potocari? Thank you.

A. I can't speak for the international community. The UNPROFOR did not expect the enclave to collapse at the speed it did, or the defence of the enclave to collapse at the speed it did. But we -- I don't think we were surprised by the population grouping themselves around the Dutch Battalion's camp.

Q. Thank you. I would now like to take a look at your statement. It's 65 ter 7247. I would like to have the page on which you speak about this same topic. It's page 20.

You said that you were surprised that the Muslims hadn't left the enclave on the 13th. It's page 17, paragraph 3. And this is what you say. Line 7, page 17, paragraph 3, line 7. Thank you. And it's page 16 in English. And I'm reading from the sixth line from the bottom in the penultimate paragraph:

"Until the 13th of July, I believe that the defenders managed to escape, but it wasn't clear what were there numbers and what was their success." ¹¹⁸⁴¹ Did you expect the Muslims to flee from the enclave and did you know of their plans? Thank you.

JUDGE FLUEGGE: Mr. Tolimir, please help us to find the relevant part in the -- oh, it's the last paragraph, just in the middle, "By the end of the 13th of July ..." Thank you. We also need an indication not only for B/C/S, also for the English page.

Sir, do you see that part? The last paragraph --

THE WITNESS: It's in the last paragraph, not the penultimate.

JUDGE FLUEGGE: No, in B/C/S it's the penultimate but in English it's the last paragraph.

THE WITNESS: Oh, I see. Yes, "By the end of 13th ..." I didn't know that your question was the -- where are we? No, I didn't expect the people to flee from the enclave and I didn't know their plans.

MR. TOLIMIR: [Interpretation] Thank you.

Q. Now, let us take a look at the same page, the paragraph above this one where you say -- have you heard the words "after a short break," so in B/C/S, it's the second paragraph from the top, and in English it's the third paragraph:

"On the 11 July, after a short pause, the BSA resume their attack and close air support was used against the BSA. Despite this support, the Bosnian defence crumbled and the BSA entered the town without any real fighting. The majority of the population gathered around the DutchBat compound at Potocari.

"Due to the gravity of the situation, I was recalled from my ¹¹⁸⁴² leave," and so on and so forth.

So bearing in mind this, was it a surprise -- was it a surprise also for the people who were in the base in which the population gathered? Thank you.

A. I don't -- I don't think -- given that it had fallen, the enclave had fallen, the -- the population going to the UN battalion, I don't think surprised me. That we had not prepared for that, if that's what you mean by surprise, no, we had not prepared for such an eventuality.

Q. Thank you. Did UNPROFOR, in Srebrenica, know that the Muslims were preparing a breakout? Thank you.

A. Not to my knowledge.

Q. Thank you. I asked you because you said that you expected them to flee on the 13th, to move from the enclave to Tuzla. So you were recalled from your leave, and you were expecting that to happen on the 13th. Does that mean that you had some previous information in your possession pointing to their intentions? Thank you.

JUDGE FLUEGGE: Mr. Thayer.

MR. THAYER: Mr. President, I don't think that's what General Smith's testimony was, that he expected them to flee on the 13th. I think his answer was clear on the record. And it seems to be a point that General Tolimir is trying to pick up or insert. So I want to make sure there is no lack of clarity on the record about the answer.

JUDGE FLUEGGE: I'm convinced that this witness is able to provide us with his knowledge, probably. Are you able to answer the question, sir? ¹¹⁸⁴³

THE WITNESS: Yes. The statement to which we are referring, the last paragraph on page 16 in English, "by the end of the 13th," it refers to my belief, not the actions of the defender. I came to understand by the end of the 13th that the defenders had broken out.

THE ACCUSED: [Interpretation] Thank you, Mr. Smith, for the reference that I quoted. Also for the convenience of Mr. Thayer. Now, let us take a look at 1D655. Can we have 1D655. That's also your statement. And I would like to tender this statement. Thank you.

JUDGE FLUEGGE: Mr. Tolimir, last week I asked you if you were tendering the statement of the witness, and then you said you will not tender it. Now are you tendering it. There's no misunderstanding, I hope.

THE ACCUSED: [Interpretation] Thank you, Mr. President. I think that it was the Prosecutor who said that they were going to decide about it later. I wanted to use the statement when you asked me about it. So if I said something to that effect, then I made a mistake. I think this statement should be in evidence. Thank you.

JUDGE FLUEGGE: It will be received.

THE REGISTRAR: As Exhibit D193, Your Honours.

THE ACCUSED: [Interpretation] Thank you. I would like to take a look at paragraph 17 in both languages. This is a statement given on the 12th of January, 2000, by General Smith to the representatives of the NIOD, from the Netherlands. Okay. So now we can see paragraph 17 in Serbian. In the fifth line, we can see, "ABiH fled." I think that we are going to see the same thing in English where it says, "The IBiH ¹¹⁸⁴⁴ [as interpreted] fled."

So the IBiH fled and suddenly, Mladic with his troops found himself in the centre of Srebrenica. According to Mladic, all this happened totally unexpectedly. He was sorry that a Dutch soldier had been killed, and so on and so forth.

We already explained earlier how that happened.

MR. TOLIMIR: [Interpretation]

Q. My question is: Bearing in mind that the VRS entered Srebrenica without any resistance, do you maybe know why the Muslims did not want to put up any resistance? You spoke with General Mladic in Belgrade on 16th of July, that's what we can also find in the same paragraph. So do you maybe know why they didn't put up any resistance? Thank you.

A. I would like to make the point this is not a statement of mine. This is someone else's record of an interview with me, and I don't entirely -- while I accept its thrust, I don't necessarily accept exactly his construction of what I said.

And in answer to your specific question, I don't know what the intentions were or reasons for the Bosnian army's actions.

Q. Thank you. When you met Mladic in Belgrade on 16th of July, did he tell you that he too was surprised by the fact that he was able to enter the centre of Srebrenica very quickly? Thank you.

A. I don't remember him telling me that, no.

Q. Thank you. Did you meet General Mladic on the 16th of July?

A. Yes, I did. Yes.

Q. Do you know whether General Mladic was in Belgrade also on the ¹¹⁸⁴⁵ 15th of July? Thank you.

A. I believe he was, yes.

Q. Thank you. As we can see here in paragraph 17, fifth line in Serbian, it says that:

"Mladic gave permission for the ICRC to visit the prisoners. At the time he was not concerned about the report that the BSA had separated men and women in Srebrenica because the BiH army did the same when they would take over certain villages."

My question is: Bearing in mind that General Mladic approved the visits to the prisoners in Potocari, and that he was in Belgrade on the 15th and 16th, do you know how come those prisoners were not visited, although they were in Potocari? Apparently he promised that and certainly he would have kept his word. Thank you.

A. Where does it say in paragraph 17 that he promised it?

Q. It's the following page in English. The paragraph continues onto the following page in English. Thank you to Aleksander.

A. And your question was then?

Q. My question was: Bearing in mind that UNHCR received promises that they would be able to visit the prisoners in Potocari while General Mladic was in Belgrade, what was it that could have happened that they did not find any prisoners in Potocari? Or maybe, if you know, did UNHCR find some prisoners in Potocari? Is it possible that somebody changed the previous orders given by General Mladic and that the situation thereby changed as well? Thank you.

A. I have no idea. I left that meeting with the understanding that ¹¹⁸⁴⁶ Mladic would approve the ICRC visiting prisoners. And, to the best of my knowledge, that never happened.

Q. Thank you. Since we're still dealing with Srebrenica, and I don't have much time anymore, let me remind you of what you said concerning Srebrenica and Tolimir.

On page 66 of the transcript of two days ago, that is, last week, the first day we -- of your direct examination.

JUDGE FLUEGGE: Can you give us -- for the clarity of the record, can you give us the date or the day of the week of last week?

THE ACCUSED: [Interpretation] The 21st of March. Page 66 on that day. To Mr. Thayer's question, Mr. Smith replied about Tolimir: "He was this charge of security. That's an important position in the command process. I saw him at Zepa. I didn't know that he had been in Srebrenica. I met him in the west of BiH," and so on.

MR. TOLIMIR: [Interpretation]

Q. Here's my question.

THE ACCUSED: [Interpretation] Go ahead, Aleksander.

JUDGE FLUEGGE: Mr. Gajic.

MR. GAJIC: [Interpretation] Mr. President, we're talking about page 11588 of the transcript.

JUDGE FLUEGGE: Thank you. Thank you very much. Mr. Tolimir.

MR. TOLIMIR: [Interpretation]

Q. Here's my question: Did anybody tell you that he had seen General Tolimir in Srebrenica? Any co-worker of yours or anybody from ¹¹⁸⁴⁷ UNPROFOR, or a soldier? Thank you.

A. I don't recall being told that. Certainly not at the time in 1995.

Q. Thank you. Later, on the same page, Mr. Thayer asked you whether General Tolimir had to be in Srebrenica. Would your statement be different if you had knowledge of him not being there. And you said on page 67, I believe it's line 8, you said:

"No, it would not change my mind. If Mladic was in Srebrenica, he didn't need a second person around. But it wouldn't surprised me if Mladic had sent out one of his assistants," and so on. Tell me whether the OTP possibly put to you that Tolimir was in Srebrenica and, therefore, asked you such a question? Thank you.

A. I can't remember the record. Can't we see what you're asking in the record? I was answering a question, so if it was from the Prosecution, it's there in the record.

JUDGE FLUEGGE: Mr. Gajic, would it be possible to tell us the page number Mr. Tolimir is referring to?

Mr. Thayer.

MR. THAYER: Mr. President, that's transcript page 11587, line 1.

JUDGE FLUEGGE: Thank you very much.

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

JUDGE FLUEGGE: We will have it on the screen soon, I hope. Page 11587, line 1.

MR. TOLIMIR: [Interpretation]

Q. While we're waiting, let me ask you, Mr. Smith: Did your staff ¹¹⁸⁴⁸ in Sarajevo tell you that that they were in telephone contact with General Tolimir and that they agreed to hold a meeting with him in Srebrenica on the 11th and the 12th, but they didn't appear. Did they inform you of that given that they were in telephone contact with the Main Staff? Thank you.

JUDGE FLUEGGE: Sir, do you see it now on the second screen?

THE WITNESS: I don't see the specific bit, but I've got the page there.

JUDGE FLUEGGE: Page 11587, line 1.

THE WITNESS: Yes, right.

MR. TOLIMIR: [Interpretation]

Q. Thank you, Mr. Smith.

JUDGE FLUEGGE: Let the witness answer.

THE WITNESS: I'm just trying to remind myself of what the actual question was of -- of this page of the transcript.

MR. TOLIMIR: [Interpretation]

Q. Thank you. I asked you whether your co-workers, when returned to the UNPROFOR command in Sarajevo, tell you that they were in telephone contact with General Tolimir and that they had called meetings with him on the 11th and 12th in Srebrenica? It was General Nikolai who did so. Was that related to you? Thank you.

A. I don't remember it being related to me. But, remember, I've just come off leave, so I would have had a briefing in which all of these events were told to me in one go. I don't remember that specific bit of it, if it was included. ¹¹⁸⁴⁹

Q. Thank you, General. We asked General Nicolai when he was giving evidence why he didn't come on the 11th, and he replied because of the air-strikes and that there was no need for him to come. And they also didn't come on the 12th, although General Mladic had approved their coming because the UNPROFOR representatives claimed that UNPROFOR wasn't engaging the VRS from Srebrenica, and I claim the contrary. And General Mladic said, Let General Nicolai come and you come with him. And he waited for them on both days.

Did you know that UNPROFOR engaged the VRS from the Srebrenica protected zone? Thank you.

A. By engaged, you mean firing at them?

Q. Thank you. I may have been misinterpreted. I said that they engaged the VRS, by which I mean that they fired at the VRS during the combat operations. Thank you.

A. The specific details I don't recall, but I remember that -- it being reported that fire was exchanged.

JUDGE FLUEGGE: Mr. Tolimir, you were referring to the testimony of General Nicolai. Could you, for the sake of the record, give us a reference where we can find this relevant part of his testimony.

THE ACCUSED: Thank you. My legal assistant will check -- that he already has. General Nicolai said that on page 4184 in lines 11 through 17. I quote:

"Based on what you said" --

JUDGE FLUEGGE: That is not necessary. I just wanted to know where we can with find it on the record. Please continue your ¹¹⁸⁵⁰ cross-examination.

THE ACCUSED: [Interpretation] 1184, lines 11 through 17.

MR. TOLIMIR: [Interpretation]

Q. Since General Nicolai here confirms that he was supposed to come to Srebrenica on the 12th of July, my question is: Whether you know that UNPROFOR was firing to -- at the units of the VRS from the protected zone of Srebrenica on the 10th, 11th and 12th. That is, three days in all. Thank you.

A. As I've said, I recall -- or, rather, my memory is that there had been an exchange of fire or exchanges of fire. The details I don't recall at all.

Q. Thank you. General, sir, we'll see now what Mr. Franken says about that, who was deputy battalion commander at Srebrenica. And he stated that on the 1st of July, 2010, while giving evidence in this trial, on transcript page 3473, line 6, to the question of the Defence why he issued the green order, he replied, "It must have been in the evening of the 9th of July." And on page 3453 of the transcript, he explained what issuing green order meant. In lines 16 through 19. Could we please see page 3453, line 16 through 19.

I quote: "The rules of engagement" --

JUDGE FLUEGGE: Wait a moment. Wait a moment. We should have it on the screen. And that is now, please carry on.

But, please, slow down while recording. It is very difficult for the interpreters and the court recorder. Go ahead, please. ¹¹⁸⁵¹

MR. TOLIMIR: [Interpretation] Thank you.

Q. "The rules of engagement given to us before as a UN unit, one of our problems, we were only to use our weapons in self-defence, were ruled out and we went back to the rules of engagement of an army ... in combat."

In lines 23 through 25, he says, I quote: "As of the issuing of the green order, we were in combat with the VRS, and the VRS was a target for us, and, in fact, the opposite is realistic and true as well."

And on page 3484, in lines 1 through 6, he says: "My mandate had changed considerably. From the moment when we, the UN, issued the order to defend Srebrenica, and was the reason why I issued the green order. After that, the rules of engagement," et cetera, "all restrictions as to the use of weapons were no longer in force because that goes hand in hand with the order to defend something." Now my question is: Did the UNPROFOR, by taking sides or siding with one of the parties to the conflict, commit a breach of its mandate? Thank you.

A. I -- could you tell me who this man, Major Franken, is it? That -- you said he was Franken. I don't recall who he is.

Q. He was the deputy of Colonel Karremans. Thank you.

A. Right. Thank you. So he is the second in command of this unit?

JUDGE FLUEGGE: Of the DutchBat, yes.

THE WITNESS: Yes. And we've -- the page flicked as I was starting to read it, so I'm slightly unsighted. But I think I can ¹¹⁸⁵² understand.

What you are saying is that he then changes the rules of engagement by -- in his argument that he produces this other order. And these are not the UN rules of engagement. Is that what you're telling me?

MR. TOLIMIR: [Interpretation]

Q. Thank you. Did he not state clearly here that he -- that he starts to apply combat rules instead of UN rules. He says: "My mandate changed considerably from the moment the UN issued me the order to defend Srebrenica."

That's page 3484, lines 1 through 6: "And that is the reason why I issued the green order." Thank you.

A. I'm hesitating to answer because this whole of the account that you've produced in front of me, I don't remember anything about green orders or any other coloured order, nor do I recall that there was a -- in -- emanating from my headquarters and this must have been happening in my absence, that we gave them an order to change their rules of engagement. My memory is that the rules of engagement we had were adequate.

So I'm -- I don't know what this is about, and without reading the whole of the transcript, I'd be pressed to answer your question with any confidence at all.

Q. Thank you. After reading this part of the transcript without the testimony of Mr. Franken, who commanded the troops on the ground, can you ¹¹⁸⁵³ confirm that the UN fired at the VRS units on the 8th, 9th, 10th, and 11th? Thank you.

A. No, I can't. If it says it in this statement then that's what that man said. I can't -- the most I can remember is that the UN force in Srebrenica engaged the Bosnian Serb army on at least one occasion. The dates and circumstances, I cannot recall.

Q. Thank you, Mr. Smith. Tell us, please, was the command in -- or, rather, the headquarters in Tuzla the superior command of the units in Srebrenica? Thank you.

A. That is correct, yes. They answered to the -- the Srebrenica unit answered to the Tuzla headquarters. The sector headquarters in Tuzla.

Q. Thank you. Let us take look at 1D369. It may have a different number now. What does this report say about that? The command of the 2nd Corps sent it on the 9th of July to the president of Bosnia-Herzegovina, Alija Izetbegovic, and the commander of the BH army, Rasim Delic, and the chief of the operative command, General Hajrurahovic [phoen].

Now we can see it. In paragraph 1, it says that on 9 July 1995, a meeting was held at the corps command between the 2nd Corps chief of staff, Brigadier Budakovic, and the acting UN commander for the north-east.

Now let us see bullet point 3. It says: "The commander of the Dutch Battalion has issued an order to open fire on the aggressor's soldiers launching the attack." ¹¹⁸⁵⁴ Thank you. Did the north-east command of the UN inform you that the commander of the DutchBat had issued attack orders? Thank you.

A. No. And I'm on leave at this period. If he had given that order, which I don't find surprising that he has told him to defend Srebrenica, then it would have been reported to the headquarters in Sarajevo.

Q. Thank you. We see that under the last bullet point on this page: "Furthermore, Colonel Brantz inform us that the air-strike procedure is under way," and gave us an example of three NATO aircraft were capable of destroying about 70 targets. Thank you. Here is my question: Did you have information that in Srebrenica NATO aircraft were supposed to attack and target all targets around Srebrenica? Thank you.

A. We're talking of the 9th of July?

Q. The bombing was on the 11th. But he speaks that they were informed on the 9th by Colonel Brantz. Thank you.

A. I don't know what Colonel Brantz was telling them.

Q. Thank you. Up there, we can also read: "In addition to demanding that they leave the UN safe area, he also requested freedom of movement of convoys during the talks between Brigadier Nicolai and the aggressor's forces, General Tolimir." We see them confirming that Brigadier Nicolai spoke to me about this situation. Thank you.

A. Yes, I can see that. I might add also that three aircraft couldn't carry enough bombs to attack 70 targets. So at the bottom of ¹¹⁸⁵⁵ that page. It's -- it's not credible.

Q. Thank you. Do you know that Colonel Karremans held a meeting on the 10th in the evening with the Muslim side, and at that meeting he requested the Muslims to leave the so-called safe zone so as not to be affected by the bombing that was to start against the positions of the VRS? Thank you. On the 11th.

A. I don't know that he did that.

Q. Thank you. In this trial, on several occasions, the statements of the president of the War Presidency, Nikolic, and the interpreter for Karremans, have been used. But I don't intend to use them now. They said then, however, very clearly, that Karremans said that everything around Srebrenica would be targeted whether it was walking on two, four, or 100 feet. I'm now paraphrasing but I'm not going to go more deeply into that because you say you don't know anything about it. When we were speaking about Zepa, at one point you said that you noticed that the soldiers carried uniforms similar to those of the VJ. Do you remember that? Thank you.

A. Which -- this was when you were -- you were showing me a film about Zepa?

Q. Thank you. Did you see the insignia of the Army of Yugoslavia on those uniforms? Thank you.

JUDGE FLUEGGE: Mr. Tolimir, the witness asked you to clarify if you are referring to this video we have seen in the courtroom or to any other parts of his evidence.

Could you please clarify that. ¹¹⁸⁵⁶

THE ACCUSED: [Interpretation] Thank you, Mr. President. I asked the witness whether he remembered saying that the uniforms were much like those of the Army of Yugoslavia. If he doesn't remember, okay. If he does --

JUDGE FLUEGGE: Mr. Tolimir, please listen carefully. The witness asked you, to be able to answer your question, if you are referring to the video which was shown in the courtroom last week to the witness, or are you referring to his knowledge or whatever. Are you referring to that video?

THE ACCUSED: [Interpretation] Thank you. No, I'm not referring to the video. I'm referring to what the witness said, but I'll find it and remind him once I find the exact page. Thank you.

JUDGE FLUEGGE: You -- the witness asked you -- didn't ask you for a page number but if you were referring to that part of his evidence last week when you asked him to identify uniformed people to be seen on the video. That was the question.

Are you referring to that video?

THE ACCUSED: [Interpretation] Thank you, Mr. President. I said that I wasn't referring to the video but to the witness's statement. It's 65 ter 7247, page 20, the last line in Serbian, where the witness speaks about that in his statement.

Could we see the statement in e-court if it is that important, but I wasn't going to waste much time on that. So it's 65 ter 7247, page 20.

JUDGE FLUEGGE: Mr. Tolimir, this is now D193. You have to ¹¹⁸⁵⁷ decide if a question you are putting to the witness is important or not. But if you put a question, you should help the witness to understand the question. This is all what he was asking for.

I hope we have the right page now on the screen. Page 20 in Serbian. And what is it in English? Which page in English?

THE ACCUSED: [Interpretation] It's the following paragraph. Actually, on the following page. I kindly ask my legal assistant to help me with the page reference in English. It's the previous page, or the previous paragraph. We will see in a minute. Thank you. I'll read out the Serbian text.

JUDGE FLUEGGE: No, please wait until we have the relevant page on the screen.

Mr. Thayer is going to assist you.

MR. THAYER: We have the correct page on the screen, Mr. President. It's the first paragraph right at the top.

THE WITNESS: I've got it, yeah.

JUDGE FLUEGGE: Thank you very much. Now you may read it.

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

JUDGE FLUEGGE: Yes.

MR. TOLIMIR: [Interpretation]

Q. I quote -- Mr. Smith stated the following, I quote: "It was of note that the Bosnian Serb soldiers who had taken part in the decisive action in Zepa had the appearance of a special forces ¹¹⁸⁵⁸ organisation. From the preponderance of black fatigues with VJ flashes, they certainly appeared to be VJ and mercenary members. In contrast," and so on, "... the approaches to Zepa were controlled by regular units of the BSA."

Here is my question: Did you see any one member of the VJ in Zepa or Srebrenica, or maybe your assistants or co-workers did? Thank you.

A. I don't -- what I'm reporting there is -- is what I saw. Whether they were really VJ or not, I couldn't tell you. What I saw was what is recorded in that paragraph.

Q. Thank you, Mr. Smith. Did the sides to the conflict use NATO uniforms? For example, did BiH army wear uniforms usually worn by NATO country, and I mean fatigues worn by that army? Thank you.

A. The Bosnian army had a uniform that was very similar to -- in its camouflage pattern, to that of the United States.

Q. Thank you. Does that mean that the United States participated in the war on the side of the BH army, if you say that they wore the same uniforms? Thank you.

JUDGE FLUEGGE: Mr. Tolimir, he didn't say that they were the same uniforms. The witness said that they were very similar to -- in its camouflage pattern, to that of the United States. This is a difference. If you put a statement of the witness to the witness, please make sure that the quotation is correct.

Go ahead, please.

MR. TOLIMIR: [Interpretation] Thank you. ¹¹⁸⁵⁹

Q. You said that the Army of Republika Srpska had uniforms similar to the VJ. They are not the same -- they are the same army. And if the BiH army had uniforms similar to the United States' army uniform, that's not the same army. Is that what you are saying?

A. I'm not sure I've said that the Army of the Republika Srpska is the same as the VJ. Where have I said that?

Q. Thank you, Mr. Smith. I just quoted from your statement, and we see it on the screen now. The last paragraph in the Serbian language version.

However, that no longer matters because we don't have the time. What I'm saying is this, if the two militaries use the same uniforms or similar uniforms. Thank you. Well, we have it in the Serbian translation, and the translation that I was provided with by the OTP may be wrong. I don't want to waste any more time on that. In the English version, you will find it on the previous page, actually. Thank you.

A. I'm sorry, I just don't understand what you want me to look at. If you are referring to the first two sentences of the top paragraph of the page, the number of which I think is 20, but I can't be sure of that on my screen. Yes, 20, in English. There are two sentences there. The first sentence I say that:

"The Bosnian Serb soldiers who had taken part in this decisive action in Zepa had the appearance of a special forces organisation." New sentence:

"There certainly appeared to be VJ and mercenary members of this units from the preponderance of black fatigues with VJ flashes." ¹¹⁸⁶⁰

Q. Thank you. I thank you for having translated things properly for me. In the Serbian translation, it says it was clear that they were members of the VJ and mercenaries. And now, you have provided us with the exact translation, and you said that they were similar to them. Thank you.

THE ACCUSED: [Interpretation] And now let's look at a different document. Its number is 1D702. Can we see it in e-court. That is a letter sent by the Main Staff of the Army of Republika Srpska on the 4th of September. Commander Mladic sent it to the UNPROFOR commander in Zagreb, General Janvier, via the command of the UNPROFOR command in Sarajevo. And now we see that it says here:

"I received your letter dated the 3rd September in which you informed me that you received -- that you had refused to receive my letter and that that would be the reason for new shelling of Republika Srpska."

MR. TOLIMIR: [Interpretation]

Q. Do you remember that that letter was sent to Zagreb via your command? Thank you. There is no translation in English. I have read for you when the letter was sent, who sent it, and who it was sent to. It was sent to you and General Briquemont. Thank you.

A. I don't remember us acting as the forwarding agency for Mladic's headquarters, and I don't -- my -- I don't see that my headquarters is on this distribution list that's on the screen anyhow.

Q. Thank you. Could you please tell the Trial Chamber whether the Main Staff had a direct contact with General Briquemont in Zagreb, or ¹¹⁸⁶¹ when they wanted to get in touch with him, did they have to go through Sarajevo? Thank you.

A. They may well have gone through Sarajevo. I don't recall.

Q. Thank you. Please, let's look at the third paragraph where General Mladic says this:

"I have never heard of a case. I did not even read in literature that a correspondence between two generals may be used as a cause at the level of the international community for ultimatums, blackmails, and pressures on one of the sides to the conflict and ultimately for that people being bombed."

My question is this: Did you use correspondence to put pressure on any of the two sides? Thank you.

A. I can't comment on this letter unless I have a translation. I communicated with correspondence and by telephone calls or in face-to-face meetings. In that, we had a correspondence. And they occurred with both the Bosnians and the Bosnian Serbs. But it's the message carried in the correspondence, that is, if it is going to apply pressure, applies pressure.

Q. Thank you. In the third paragraph, General Mladic says in the last sentence:

"Why did you not tell the general public the truth about what happened at Markale II on the 28th of August, 1995?" In the following paragraph, he says:

"Why didn't you inform the general public about the contents of two telephone conversations that I and General Rupert Smith had with ¹¹⁸⁶² regard to that severe incident? Why a mixed commission of experts did not go to the spot to investigate? Why UNPROFOR and the Muslim side did not allow independent ballistic experts to go to the spot as we have agreed?"

Did you have agreement with General Mladic about all those things that he is conveying to General Briquemont?

A. Who is Briquemont? Or are you confusing him with General --

Q. I apologise. It was actually General Janvier. Bernard Janvier. I misspoke. I said Briquemont and I meant Janvier.

A. I didn't have an agreement with General Mladic on those matters, no.

JUDGE FLUEGGE: May I interrupt you for a moment. Judge Nyambe has a question for the witness.

JUDGE NYAMBE: Yes, General Smith, I just need some clarification.

With regard to the mandate of UNPROFOR in the context of the evidence of -- is it General Nicolai, Mr. Thayer, the one who was talking about the green order? Colonel Franken.

MR. THAYER: Madam Judge, yes, it was Colonel Franken. And to some degree you are correct, General Nicolai commented and was asked a fair number of questions on cross-examination about the green order as well, but it was Colonel Franken who described the green order itself.

JUDGE NYAMBE: Okay. Thank you. Now, following up on that, did the green order to defend Srebrenica which translated, as I understand it, into direct combat with ¹¹⁸⁶³ one of the parties to the conflict, change the UN mandate, in fact?

THE WITNESS: No, I don't think it did at all. The -- the mandate is -- let me use the correct word, the resolution of the -- that the Security Council produced on the subject of the safe area and the subsequent resolutions that covered it, were there to protect the safe area and the civil population within it.

If -- as I remember, the UN rules of engagement, you -- the UN force, you could work your way down through those rules of engagement, or, rather, the situation would work you down the rules of engagement to the point where you were having to act as the defence of the area. What's -- where you got into difficulties is that the troop-contributing nations did not necessarily have the same understanding of each other as the UN rules of engagement and did not necessarily interpret them in the same way as the UN, as a whole, had drafted these rules of engagement. And what I suspect but don't know and I don't ever remember reference to this idea of a green order, that isn't to say I didn't hear it, I just can't recall it, is that what was happening at this stage, is, if you like, the actions of this Dutch battalion had started to become rather more Dutch than UN, and they were falling back onto their own Dutch understanding of the rules of engagement. That is what I suspect is going on here. But there is no proof of that that I can produce you at this stage or from my memory.

JUDGE NYAMBE: But I'm just trying to understand military things. My understanding is that the initial UN mandate was in self-defence and in the defence of the population, civil population, and ¹¹⁸⁶⁴ so on and so forth. When the green order was issued by the UN to this DutchBat soldier, it moved from self-defence to direct combat with one of the parties to the conflict.

Is my understanding correct? Because that was his testimony.

THE WITNESS: Yes. First of all, I don't -- I would -- I would want to go back myself and ask more about the green order because I don't think that had anything to do with the UN, as the UN. I suspect this was within the Dutch arrangements as to how you went down their rules of engagement. I just cannot recall this idea of a green order. Now, I've slightly lost. Can we go back to your question. You were trying to see whether it changed -- they were in fighting. Now, when you come to the point that you're actually defending yourself, you are unavoidably engaging one or other party, and so, in fact, you are in that situation. It's been created for you. You haven't set out to do it, but, nevertheless, you are now in that situation. You are a combatant.

In my own mind, in my own practice in my service, I understood my way of thinking about this was to understand what the end result was supposed to be; in this case, the defence of the civil population. And so you were not engaging in this position in this combat for your gain, except, and insofar as for you to carry out your task, you had to defend yourself. And, therefore, you were a bit like a policeman who can use force to defend himself and also achieve the objects of taking the prisoner to court, or whatever it is that he is supposed to be doing, he isn't engaged in this combat except as the officer of the law. And so ¹¹⁸⁶⁵ that's how I personally have understood my -- you know, myself and my command in these sorts of circumstances. But it doesn't alter the fact once are you fighting, you are on one side and the other person is on the other one, and there is no getting away from that at all.

JUDGE NYAMBE: Thank you for your answer.

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

THE ACCUSED: [Interpretation] Thank you. We don't have much time. Therefore, I would like to move onto a different topic. Can the court please produce 65 ter 7246.

MR. TOLIMIR: [Interpretation]

Q. This is a book by General Rupert Smith. The title is "The Use of Force: War in a Modern World." Thank you.

JUDGE FLUEGGE: While it is coming up, Mr. Tolimir, you have used today three documents and you didn't tell us if you are tendering them. They are 1D165, 1D369 and 1D702. I would just like to remind you that you should decide what --

THE ACCUSED: [Interpretation] Thank you, Mr. President. Thank you very much. I would like to tender those documents for admission. Thank you.

JUDGE FLUEGGE: Mr. Gajic.

MR. GAJIC: [Interpretation] Mr. President, just a remark, 1D655 has already been admitted as D192.

JUDGE FLUEGGE: Thank you. We are now dealing with 1D369. If I'm not mistaken, I haven't heard anything from this witness about ¹¹⁸⁶⁶ this -- the content of this document. And the witness didn't tell us anything about the content of 1D702. That was the letter from General Mladic to General Janvier. And in addition, the last one doesn't have a translation yet.

Would it be appropriate to mark both documents for identification to be used with another witness, for instance?

THE ACCUSED: [Interpretation] Thank you, Mr. President. I don't see a problem. The witness said that he couldn't testify about the document, but because the document does not have a translation. Thank you.

JUDGE FLUEGGE: 1D369 will be marked for identification.

THE REGISTRAR: Exhibit D194, Your Honours, MFI.

JUDGE FLUEGGE: And 1D702 will be marked for identification but also pending translation.

THE REGISTRAR: As Exhibit 1D195, Your Honours, marked for identification.

JUDGE FLUEGGE: Mr. Tolimir, please carry on.

THE ACCUSED: [Interpretation] Thank you. Could we now look at page 172 in e-court in this book. We are interested in paragraph 2. There's no translation. I'm going to read from the book. We are looking at the right-hand side page where it says, "The Muslim pockets ..."

I'm reading that paragraph: "The Muslim pockets were used by the Bosniak Sarajevo government ... as pressure points on the international community for ¹¹⁸⁶⁷ firmer action. The longer that aid convoys were unable to reach them, the greater the pressure on the mandate. When convoys did succeed, calls for firmer action were unwarranted. Two weeks after the first successful delivery, Muslims launched an offensive towards Bratunac (a Serb-held town just outside the besieged Srebrenica). Thus the integrity of UNHCR and UNPROFOR was undermined, further convoys were impossible and the pressure for firmer action resumed."

MR. TOLIMIR: [Interpretation]

Q. What did you mean when you said that pressure was implied on the international community for firmer action?

A. First of all, I haven't said that. This is a quote of a UNHCR official that I have taken from the book referenced at the bottom of the page.

However, what is being referred to there is a concern as to the state of the civil population and people demanding that the population be fed and medicine, and so forth, be delivered to them.

Q. Thank you. Did you say this: "This explanation ... reflects the true situation and it shows how UNPROFOR and UNHCR became hostages or shields in that," and so on and so forth.

Did you say this? Thank you.

A. Not as you quoted it. What I have written is this explanation, the quote I have put in -- on the page, as, indeed, the situation it reflects, shows how the UNHCR and UNPROFOR became caught in the first of what I came to call the hostage or shield situations that marked the ¹¹⁸⁶⁸ story of UNPROFOR. They had no good choices.

Q. Thank you, Mr. Smith. Since we don't have any more time, we can look at the text on our own. Let me ask you this: After the agreement was signed on the demilitarisation of Srebrenica and Zepa, was demilitarisation indeed carried out; or, alternatively, did the zones remain militarised? Thank you.

A. The -- as I recall it, there wasn't agreement to demilitarise as a single agreement. There was agreement about the safe areas in which demilitarisation was part of it. And the -- and no, they were not demilitarised.

Q. Thank you. Can you tell us why is it then that we call it agreement on the demilitarised zones of Zepa and Srebrenica? Thank you.

A. I don't remember them being called that. They were called safe areas.

Q. Thank you. If we have time, I'm going to show you this agreement on the demilitarisation of Zepa and Srebrenica. The Trial Chamber has already seen it. And now, can we please look at page 174 in e-court. We are interested in the last paragraph on this page, and I quote: "If something must be done became the main approach to the Balkan crisis, it was further complicated by the something being the desire to use air power which emanated from the US. Washington was increasingly involved in the debate as to what to do about the Balkans, not least due to a powerful lobby by the Bosniaks and the Croats. The US stance was clear: it didn't want to be involved on the ground and equally saw no need to be neutral with regard to the sides." ¹¹⁸⁶⁹ My question is this: Did the US forces and representatives tell you clearly that they wanted to use air power in Bosnia and Herzegovina? Thank you.

A. No. I never discussed this with the US forces, and certainly not in the sense that you're asking the question. I'm talking about something that's going on in 1992, or 1993, in those paragraphs, and I didn't have conversations with the US forces.

Q. Thank you. Did you feel a bias towards Croats and Muslims when you talked to US representatives? Was their attitude towards Croats and Muslims different than their attitudes towards Serbs? Thank you.

A. When am I having these conversations?

Q. I asked you whether you felt that. Thank you.

JUDGE FLUEGGE: No, you were additionally saying, "... when you talked to US representatives." And the witness asked you to which talks you were referring, which time.

Could you help --

THE ACCUSED: [Interpretation] I may have been speaking very fast so my -- the first part of my question was missed.

MR. TOLIMIR: [Interpretation]

Q. And that was whether you felt that. Okay. Did you ever hear from US representatives that they wanted to use air power against the Serbs? That was one question. Thank you.

A. I have sat as a -- as part of a delegation in the North Atlantic Council and heard the United States representative arguing in the case for a no-fly zone, for example. Yes. ¹¹⁸⁷⁰

JUDGE FLUEGGE: Can you help us: When did that happen?

THE WITNESS: I think it's 1993.

JUDGE FLUEGGE: Thank you. Mr. Tolimir.

THE WITNESS: And I think if we turn the pages of the book that's what I'm -- that paragraph that we've had at the bottom of the page, whatever the number is, goes on to talk about the establishment of the no-fly zone.

JUDGE FLUEGGE: Let's go to the next page to the -- to the top.

THE WITNESS: Yes.

JUDGE FLUEGGE: When did this meeting of NATO happen you were mentioning just now?

THE WITNESS: I -- I'm afraid I can't remember the month. It's 1993.

JUDGE FLUEGGE: Thank you very much.

THE WITNESS: But I --

THE ACCUSED: [Interpretation] Thank you. Let's look at the --

JUDGE FLUEGGE: Just to be able to put it into context --

THE WITNESS: Yes.

JUDGE FLUEGGE: -- that's the reason why I ask. Please continue.

THE ACCUSED: [Interpretation] My apology, Mr. President. Let's look at page 184 in General Rupert Smith's book. There's a reference to the London Conference which took place in 1995. Thank you. And he says this. In the first paragraph he says this. We can see it now: ¹¹⁸⁷¹ "We could be sure Mladic would take measures to counter our threats. I explained I was quite happy to fight the Bosnian Serbs but not on only one pretext, defence of the British, and in the one place, where they had the initiative, and I was unable to reinforce and had no weapons other than air power in range."

MR. TOLIMIR: [Interpretation]

Q. Can you explain to the Trial Chamber, you said that at that meeting, the Americans requested for a no-fly zone to be established. Would that have been the same type of measure as those that were used against Republika Srpska when you targeted everybody? Is that the same situation as in Libya, where the Brits are in charge and when -- where Libyan citizens are being liberated under their patronage? Is that the same situation? Thank you.

JUDGE FLUEGGE: Mr. Tolimir, I have to stop you again. We are dealing with Bosnia and not with Libya. I told you two times last week, and it's not an appropriate way to conduct your cross-examination. You should consider this question during the break. We must have our first break now, and we will resume 20 minutes past 4.00.

--- Recess taken at 3.48 p.m.

--- On resuming at 4.24 p.m.

JUDGE FLUEGGE: Mr. Tolimir, please carry on.

THE ACCUSED: [Interpretation] Thank you, Mr. President. Can we have page 187 of the same book in e-court. Page 187 of the book written by Mr. Smith about the utility of force. Thank you.

Can we have page 187. It's in English. We are interested in the ¹¹⁸⁷² last paragraph where it says, and I quote:

"With the start of the second phase of the NATO-UN action, the Croatians and the Federation launched a joint offensive towards Banja Luka from the positions gained in south-west Bosnia and the Krajinas in August. They made rapid progress, aided, no doubt, by the effects of the bombing. By the 14th September, we were beginning to run out of targets to attack, but Richard Holbrooke had brought the negotiations to the point at which that same day, Milosevic pressured the Bosnian Serbs into a cease-fire," et cetera.

MR. TOLIMIR: [Interpretation]

Q. My question is: Did you write this in your book?

A. Yes.

Q. Thank you. Do you stand behind what you wrote? Thank you.

A. Yes.

Q. Thank you. Were Muslims and Croats supported by the NATO bombardment carried out at UN request in this offensive in which they went from Zagreb to Banja Luka? Thank you.

A. No, they were not supported in the sense you're stating it. The two events were coincidental.

Q. Thank you. Was there a lack of the targets within the Republic of Srpska Krajina in Republika Srpska because the targets were either destroyed or simply there were no more targets?

A. I wasn't conducting operations in the Krajina.

Q. Thank you. However, here you say that you were beginning to run out of targets to attack. And then Richard Holbrooke use this force in ¹¹⁸⁷³ order to exert pressure on Milosevic who was then to pressure the Bosnian Serbs; isn't that true?

A. I say that we were beginning to run out of targets, but you said in your question, was there a lack of targets in the Krajina, in the Republika Srpska Krajina, and I said I wasn't operating there.

Q. Thank you. Did NATO bombard all the targets in Republika Srpska Krajina, including the Udbina airport? Thank you.

A. On the assumption that I am understanding the Republika Srpska Krajina as that part of Croatia in which the Croatian Serbs had lived, I don't think NATO conducted any air attacks in that area.

Q. Thank you.

THE ACCUSED: [Interpretation] Can we now have page 7 in e-court. The penultimate paragraph goes as follows. You can also read it on the screen now. The penultimate paragraph. Thank you. I would like to tender this document that we just saw on our screens.

JUDGE FLUEGGE: Mr. Tolimir, how many pages does this book have? I mean not the pages in e-court. The pages in e-court or the pages of the book?

Mr. Gajic.

MR. GAJIC: [Interpretation] Mr. President, if I'm not mistaken, this book consists of more than 300 pages. I can't give you the precise number right now. It was also used during the cross-examination of General Smith in the Popovic case. We think that this would be useful material if we were to have it in evidence, both for the parties and the Trial Chamber. ¹¹⁸⁷⁴

JUDGE FLUEGGE: Mr. Gajic, do you know if that was tendered in the Popovic case and admitted into evidence? I mean the whole book.

MR. GAJIC: [Interpretation] Mr. President, I think that it wasn't. It's hard to follow the transcript in the Popovic case because their practice was different. The exhibits were not immediately put into evidence but only subsequently. However, it is quite clear that certain segments of the book were used, although they were not admitted into evidence.

Thank you.

JUDGE FLUEGGE: Mr. Tolimir, you have used, if I'm correct, the pages 172, 174, 184, and 187 in e-court.

To admit the whole book would be a heavy burden, especially for the Trial Chamber but also for the parties, when we come to the end of the trial. Is it perhaps possible that you just tender these pages which are important for understanding of today's hearing and also the -- the front page of the book so that we know that what it is about?

THE ACCUSED: [Interpretation] Thank you, Mr. President. I think it would be very useful for the Trial Chamber to admit the whole book because, if you read just the parts, you are not going to understand the context. This book is in English so it didn't even have to be translated. I personally don't need it because I am aware of the events. General Smith also doesn't need. You need it. You really need it. And I think that I'm going to use this book on some other occasions before the end. I don't have much time left, and if we don't admit it into evidence, then we are not going to have all those points that I will ¹¹⁸⁷⁵ be unable to touch upon until the end of my cross-examination. Thank you.

JUDGE FLUEGGE: Mr. Thayer.

MR. THAYER: Mr. President, presumably the issue of whether the selections that General Tolimir put to the witness should be in context should be clear from the questions themselves. The questions as they are put should be in a proper context, so there should not be a separate exercise by the Trial Chamber to go make sure that the questions were put in the proper context to begin with.

That said, the procedure which Your Honour has outlined is what took place in the Popovic trial. Only the selected pages of the book were placed in evidence. We're just as happy to have the entire tome in evidence. I don't think it affects General Smith's royalties one way or the other, and it's -- our philosophy is the more the merrier, as you know. But, again, the procedure that was followed in Popovic was just the selected pages went into evidence.

JUDGE FLUEGGE: I think not to waste time with this witness we should postpone the decision on the admission of this document and come back to that later.

Mr. Tolimir, please continue.

THE ACCUSED: [Interpretation] Thank you, Mr. President. In that case, can we have 1D121. This is a segment from a book about intelligence services and the war in Bosnia in 1991 and 1992, and this is part of the study on Srebrenica made by the Dutch Institute for War Documentation. 1D211, I apologise. I may have misspoke. 1D211. ¹¹⁸⁷⁶ Can we have page 3 this e-court, paragraph 5 on the right-hand page. I can't see a thing. I quote:

"Finally, the secret operations are of interest because various statements pointed to the conclusion that the clandestine supplies usually led to rapid transit to the eastern enclaves, such as Srebrenica and Zepa. The VRS complained that the supply of new weapons usually facilitated new sorties from the enclaves into Bosnian Serb villages and military positions, which in turn provoked a response from the VRS. This action-reaction cycle again put UNPROFOR troops in danger. In the enclaves, the ABiH actually all too often used the observation posts as a cover in military actions against the VRS. It is important to reconstruct the secret arms supplies from Iran via the Croatian pipeline, and the black flights to Tuzla, because this will make clear that different NATO member states had different political and military views on the possible consequences," and so on and so forth.

MR. TOLIMIR: [Interpretation]

Q. My question is: Did UNPROFOR take any measures in order to prevent the BiH army from using observation posts in enclave to carry out their sabotage actions in the territory of Republika Srpska? Thank you.

A. Are we referring to this generally or specifically in those two enclaves?

Q. Thank you. I was speaking generally. But you can also comment more specifically.

A. The -- and I'm speaking of 1995, which is when I'm there. To the best of my knowledge, we did not allow the Bosnian army to use our UN ¹¹⁸⁷⁷ positions to conduct operations. It certainly wasn't done under any orders of mine.

Q. Thank you. Are you aware of the fact that the BiH army soldiers were deployed along the same line to which the observation posts held by the DutchBat belonged? And from that same line, they acted together with UNPROFOR as Mr. Preker [as interpreted] said on the 9th, 10th, and the 11th.

A. The line in Srebrenica - which is what you're now talking about, am I correct --

Q. That's correct.

A. -- was coincidental in a number of places. Not in every case was the OP line the same as the Bosnian army line and if -- as you described in that previous account, which I've said I'm unable to comment on, it's not my account, then the UN force was firing on the Bosnian -- on the Serb -- Bosnian Serb forces.

JUDGE FLUEGGE: Mr. Thayer.

MR. THAYER: Mr. President, just so we have a clean record later, page 39, line 11, I see there's a reference to a Mr. Preker, and I think we just need some clarification as to who that witness is, and I'd also like to know whether there's any transcript cite or other support for whatever this statement is.

JUDGE FLUEGGE: The page numbers have changed. In e-court, we have now page 7. In LiveNote we are on page 40.

Can you please repeat -- I see it "Mr. Preker." "And from that same line, they acted together with UNPROFOR as Mr. Preker said on the ¹¹⁸⁷⁸ 9th, 10th and 11th." I think there must be a misinterpretation. Mr. Gajic is able to help us. Mr. Gajic.

MR. GAJIC: [Interpretation] Mr. President, Mr. Tolimir referenced the testimony of Mr. Franken.

THE ACCUSED: [Interpretation] Page 3454. Line 23 to 25.

JUDGE FLUEGGE: Thank you. We heard this name earlier, Colonel Franken, from DutchBat.

Sir, do you recall the question?

THE WITNESS: Yes. And I think I'd understood him to be talking about that -- that reference, that he -- that was in the previous session.

JUDGE FLUEGGE: Mr. Tolimir.

THE ACCUSED: [Interpretation] Thank you.

MR. TOLIMIR: [Interpretation]

Q. Mr. Smith, since I don't have much time left I would like to take a look with you, page 4 in e-court, I'm interested in the paragraph describing the various attitudes within the American administration.

Will quote just one sentence. You can see it here. It's in the second paragraph, line 4, and it is underlined in red. I quote: "Everyone did realise that the Balkans would provide the United States with better access to the Middle East."

My question: Can you tell the Trial Chamber how would it be possible for the United States to have a better access to the Middle East via the Balkans? Thank you. ¹¹⁸⁷⁹

A. I don't what -- I can read the underlined-in-red sentence. I don't know what it's -- who is saying it, when this conversation or idea is being discussed or the author is reaching this conclusion. Can you help me there?

JUDGE FLUEGGE: And please help the Chamber. I don't know if you introduced this document by mentioning the author and the title of this book.

THE ACCUSED: [Interpretation] Thank you. I said at the beginning that this was 1D211 and excerpt from the book by Cees Wiebs: "Intelligence and the War in Bosnia 1992-1995." That is part of the book entitled: "The Report on Srebrenica," and the author is the Dutch Institute of War Documentation. Mr. Smith also gave an interview to that institute.

JUDGE FLUEGGE: Thank you.

THE ACCUSED: [Interpretation] We can now see what it says on page 6 in e-court. It is also underlined:

"Meanwhile Holbrooke was becoming increasingly frustrated that the Croatian pipeline was not progressing well. Lake once described Holbrooke as high maintenance. Holbrooke, therefore, proposed to deliver arms and ammunition ... via third party countries. Lake ... always accepted such covert operations. However, he found the plan too risky in this particular case. The Secretary of State Christopher shared this view. Holbrooke's proposals lead to a debate within the administration. Clinton and State Department officials considered supplies via Saudi Arabia, Turkey and Pakistan. This was nothing new. In the 1980s, ¹¹⁸⁸⁰ Saudi Arabia had already supplied arms worth 500 million dollars, via the CIA, to the Mujahedin fighters in Afghanistan."

MR. TOLIMIR: [Interpretation]

Q. If you look at this paragraph in this book on intelligence affairs, we see that they were trying to find ways to clandestinely supply arms to the Croats and Muslims in Bosnia. Did UNPROFOR or your government take a position on the issue of secret arm supplies to the BiH army and Croatian army? Thank you.

A. First of all, the paragraph doesn't say what it -- you say it's saying. You actually got the Secretary of State. It's being said that he did not support lift, arm and strike.

So -- this is a description, as I read it, of discussions going on and the various parties to it and their positions in that discussion. As for my government, you must ask them. I don't know what their position was. And UNPROFOR had no part in supplying arms to either side.

Q. Thank you.

THE ACCUSED: [Interpretation] Can we have page 7 in e-court. I'm interested in the left-hand side, the penultimate paragraph. It has also been marked:

"On 16th of April, 1994, Galbraith spoke with religious leader of the small Muslim community in Zagreb, Imam Sefko Omerbasic. Who later informed the Iranian ambassador that American diplomates had urged him to purchase arms for the ABiH. The CIA managed to gain access to a report of this discussion and they suspected that Galbraith was engaged in a secret operation." ¹¹⁸⁸¹

MR. TOLIMIR: [Interpretation]

Q. Do you know who Galbraith is?

A. I think he was the United States ambassador to Croatia.

Q. Do you know that during the Operation Storm he appeared on a Croatian tank? This was shown even in this Tribunal. And during the Defence case of Ante Gotovina, and it was claimed that the Americans made the plans for this operation.

A. I don't know that he appeared on a tank. I don't know that he did. And I don't know who made the plans for the Croatian operation.

Q. Thank you. I don't know if you saw that video footage. Galbraith can be seen riding on a tank from Zagreb during the offensive which in your book was described as the offensive from Zagreb to Banja Luka. So the United States did not hide their involvement in that. My question is: Do you know that the Americans took part in planning of that operation? I mean Operation Storm 95. Thank you.

A. I told you, I don't know who made the plans.

Q. Thank you. Can you tell us whether you received any information from the VRS about the secret arming of Muslims via the Tuzla airport? Thank you.

A. Not in the sense that you've described. Mladic, on at least --

Q. Thank you.

JUDGE FLUEGGE: Please let the witness answer. You are putting questions to the witness, you should give him the chance to answer the question.

Please continue, Mr. Smith. ¹¹⁸⁸²

THE WITNESS: Mladic, on at least two occasions, told me that aircraft were landing at -- on one of the air strips in the Tuzla vicinity and that -- and very much wanted me to stop them. The implication was that weapons, and so forth, were coming in that way, but we never intercepted any of the airplanes to know if that was actually the case.

THE ACCUSED: [Interpretation] Thank you. Can we now have in e-court, 1D662.

MR. TOLIMIR: [Interpretation]

Q. That's a memo from the Main Staff of Republika Srpska, dated 24th of February, 1995. It was sent personally to General de Lapresle in Zagreb and also personally to you in Sarajevo. So you can see that the date is the 24th of February. And now take a look at the third paragraph where it says, "Generals," this is what Mladic says to you: "Generals, you took upon yourself the obligation to control the air-space above the former BiH, and you are extremely diligent both in practice and in words when it is about the Serbian side. That is why it is incomprehensible that in front of UNPROFOR's eyes at Carovici and Tuzla air strips, Muslims can receive weapons and military equipment right at the time when agreement had been reached about the four-month ceasefire agreement which was initiated and sponsored by the most high functionaries of UNPROFOR."

Can you tell me whether you received this letter from General Mladic? Thank you.

A. I don't remember it specifically, but I am quite prepared to ¹¹⁸⁸³ agree that received that letter.

Q. Thank you. In this letter, General Mladic, at the end, says, that he expects you to ensure that UNPROFOR prevents the arming of Muslims and the violations of this agreement.

THE ACCUSED: [Interpretation] I would like to tender this document before we can move on to the next one.

JUDGE FLUEGGE: You are tendering the document. Please wait a moment.

It will be marked for identification, pending translation.

THE REGISTRAR: As Exhibit D196, marked for identification, Your Honours.

JUDGE FLUEGGE: Thank you. Mr. Tolimir, at this point in time, I would like to ask you how much additional time for your cross-examination you need? Because you have now reached, more or less, the time of 11 hours.

THE ACCUSED: [Interpretation] Thank you. I was told that I still had ten minutes, so that's why I planned to finish within the next ten minutes. Thank you.

JUDGE FLUEGGE: Thank you very much. Just for planning purposes, Mr. Thayer, have you any idea how much time you need for re-examination?

MR. THAYER: Mr. President, I think I'll need a session. But I think I can finish today. If -- if we end in the next 15 or 20 minutes.

JUDGE FLUEGGE: Thank you very much. Mr. Tolimir, go ahead. Please.

THE ACCUSED: [Interpretation] Thank you, Mr. President. Thank ¹¹⁸⁸⁴ you, Mr. Thayer. Could we please see P4130. We can see it -- or, rather, no, not yet. It's a letter dated 6 March 1995 about a meeting between General Smith and General Mladic held on 5th of March, 1995. It was written by Mr. Woute [phoen], the commander's adjutant or, rather, General Smith's adjutant.

And in line 4 of the letter, in paragraph 1, we see -- actually, we actually can't see it yet. I apologise. Could we please see P1430 on the screens. P1430. Thank you.

JUDGE FLUEGGE: Mr. Gajic.

MR. GAJIC: [Interpretation] Mr. President, I can see various variations in the transcript. [In English] It is P1430.

JUDGE FLUEGGE: Please repeat.

MR. GAJIC: [Interpretation] P1430.

JUDGE FLUEGGE: Let's see if it works now. Mr. Tolimir, you have the document on the screen.

THE ACCUSED: [Interpretation] Thank you.

MR. TOLIMIR: [Interpretation]

Q. We can see in line 4 of this document where it says that Mladic initiated the meeting. Thank you.

And in line 7, in English, and it's line 8 in Serbian that: "Tolimir also attended throughout?"

Let us take look at paragraph 2, subparagraph (b). It says: "Tuzla: Mladic alleged the use of Tuzla air field for supply of arms to the BiH covered by NATO. General Smith stated that he was satisfied that NATO was not escorting or was in any way associated with ¹¹⁸⁸⁵ the alleged landings of aircraft at Tuzla."

Since you stated that NATO didn't cover this flight, could you tell us who did and who stood behind the organisation of these flights? Thank you.

A. I don't know the answers to those questions. The -- once we began to investigate these, and I would add that we were -- we were also aware that we were having airplanes in the vicinity. I should perhaps explain, the Tuzla air field was a large Yugoslavian Tito-period air field, consisting of a main runway and a number of reserve air strips. These aircraft were landing, or flying very low over the -- one of the reserve strips some distance from the main strip where the UN base was. They had reported the sounds of -- at night of low flying airplanes, and which coincided with these complaints of Mladic, so I was in no doubt that this was occurring.

I equally, having challenged NATO, established that they were -- had nothing to do with it, but who it was, I have -- I don't know, and the flights stopped once we started to investigate.

Q. Thank you.

THE ACCUSED: [Interpretation] Could we please see D67 now. This is a document of the intelligence administration of the BH army. It was sent out on 13 July as an interim report. And it's a report in which Alija Izetbegovic is informed after the fall of Srebrenica about the activities by the BH to supply weapons to the enclaves before the fall. And in paragraph 2, it reads:

"Specifically the following has been done for Srebrenica and ¹¹⁸⁸⁶ Zepa."

And then they go on to state how much materiel, ammunition, and so on, were supplied, and so on.

And bullet point 2: "Seventeen helicopter flights were carried out, in each of which a helicopter was hit."

And bullet point 3: "In this way, we transported a number of seriously wounded," and so on.

Bullet point 4: "As a preparation for the upcoming operation of linking up the enclaves, we brought and returned four brigade commanders," and so on. It's on the following page in English.

Could the witness now be shown the following pages as well for him to be available to inspect it visually. And, later on, I'll ask my question. Thank you.

Thank you. You can see here an overview of what was sent to Srebrenica and what was sent to Zepa. That was on the previous page. Now it's continued on this one and the following one. And once you see all this and Delic's signature, could you please return to page 2 where the beginning of the table is, where the summary of everything that was sent there.

MR. TOLIMIR: [Interpretation]

Q. And now my question is about the flights from Tuzla to Srebrenica and Zepa to supply weapons. Were the people in Srebrenica and Zepa aware ¹¹⁸⁸⁷ that there was an air-lift in place for the supply with weapons and ammunition?

A. I'm sorry, who -- which people?

Q. Thank you. Did UNPROFOR members in Zepa and Srebrenica know that there was this air-lift to supply arms to the Muslims in Srebrenica and Zepa?

A. In my time in 1995, I received no reports from either enclave of this resupply happening.

Q. Thank you. Please tell the Trial Chamber whether it's possible for a helicopter to land at night without it being observed by UNPROFOR, or unheard by UNPROFOR? And is it possible for a helicopter to fly at night without special equipment? Thank you.

A. I don't know what equipment the Bosnian army helicopters had, and it is possible to do this, and there was relatively few UNPROFOR in a large space. And I don't know where these aircraft were landing in either of the enclaves.

The -- both sides were flying helicopters, and they are extremely difficult to pick up when flown close to the ground, so we were getting no coverage of this by the NATO forces doing the no-fly zone.

Q. Thank you. Did UNPROFOR tolerate the resupply of Muslims with armaments in the enclaves of Zepa and Srebrenica? Thank you.

A. I don't know what you mean by "tolerate." We didn't know it was going on. And to the degree that we could stop it, we could suppose it was going on, but no more.

Q. Thank you. ¹¹⁸⁸⁸

THE ACCUSED: [Interpretation] Could we please see 1D606. Thank you. Could we please see 1D606, 605. Here we have 606. Thank you. Please take a look at it. It says in the letterhead: "Bosnia-Herzegovina embassy, to the Republic of Croatia, military-economic mission, Zagreb.

"We forward from a document from the Bihac district office to the 5th Corps."

And it says down there: "Please provide confirm of received materiel or problems concerning reception. Truck number UNHCR 10379."

And this is a overview of armaments and ammunition received in Bihac from Zagreb via UNHCR.

MR. TOLIMIR: [Interpretation]

Q. Did you known that the UNHCR was being used to arm the Muslim army? Thank you.

A. Where does it say that UNHCR carried that?

Q. The following page in English. Thank you.

A. That it has been numbered, that doesn't make it an UNHCR delivery.

Q. Thank you. About the transport from Zagreb to Bihac through Serb-held territory, was it -- were all these accompanied by UNPROFOR or were they able to pass through on their own? Thank you.

A. I don't recall every convoy. But in most cases, particularly in the Bihac area, I think the UNHCR ran their own convoys, and UNPROFOR did not escort them. ¹¹⁸⁸⁹

Q. Thank you. Are you saying that UNPROFOR did not escort UNHCR convoys from Zagreb to Bihac? Thank you.

A. No, I'm not saying they didn't. I'm saying that my memory is that, in most cases, they didn't.

Q. Thank you.

THE ACCUSED: [Interpretation] Could we please see 1D605 now. We're waiting for it.

MR. TOLIMIR: [Interpretation]

Q. It says: "Armed forces of the Republic of Bosnia-Herzegovina 5th Corps. They are sending those to the embassy of the Republic of BiH to the Republic of Croatia. It is a logistical report on receipt of a shipment of war materiel through UNHCR. Regarding your document," number so-and-so, "of 18 May 1993, we hereby inform you that we have received this shipment of 17 May with some small differences which are not important. There was no problem with the takeover of the equipment; however, we caution you again that it is necessary to exercise maximum secrecy regarding this channel, engaging the smallest possible number of persons to carry out this work."

And now they are asking for a shipment, the details of which are described below, and they end by saying:

"This is ammunition that we absolutely lack and material needed in special purposes weapons," and so on.

It is signed by the 5th Corps commander, Ramiz Drekovic? This document also speaks about arm supplies for the 5th Corps ¹¹⁸⁹⁰ through UNHCR. Thank you.

A. Yes, I can see that up at the top where it says "logistics report."

Q. Thank you. Did you receive reports about this practice, that this embassy of Bosnia and Herzegovina to Croatia supplies arms and ammunition to the Muslims through UNHCR?

A. No, and this is new news to me.

Q. Thank you.

THE ACCUSED: [Interpretation] Could we please see 1D607. Thank you.

MR. TOLIMIR: [Interpretation]

Q. It's the embassy that is now writing to the command of the 5th Corps, and saying that 70 tonnes of D-2 fuel have been sent from the army fuel contingent for the 5th Corps.

Was this supply channel through the UNHCR from Zagreb in function as early as 1993? Thank you.

A. Well, the later is dated 1993. But it also makes the point that the UNHCR doesn't know where the diesel comes from. So they appear to be innocent party being used in this.

Q. Thank you. I've showed three documents from 1995 and 1993 for you to be able to see the continuity of supplying the BH army through UNHCR for two years.

And now my question is: Is it possible for such a channel to be in existence for two years without the UNPROFOR knowing the first thing about it, although they are escorting these convoys through Serb-held ¹¹⁸⁹¹ territory? Thank you.

A. I just told you, I don't think we did escort the convoys into Bihac very often, if at all.

Secondly, I've just pointed out to you that it appears from the 1993 letter that the UNHCR don't know the provenance of what they're carrying in their trucks.

Q. Thank you.

THE ACCUSED: [Interpretation] I kindly ask the President to admit into evidence document 605, 606, 607, unless they are admitted already.

JUDGE FLUEGGE: I understand they aren't. They -- all three will be received as exhibits.

THE REGISTRAR: As Exhibit D196 through Exhibit D199, Your Honours. 98, I'm sorry.

JUDGE FLUEGGE: That means -- we already have D196.

THE REGISTRAR: My mistake, Your Honour. Exhibit D197 through D199.

JUDGE FLUEGGE: Thank you. Mr. Tolimir.

THE ACCUSED: [Interpretation] Thank you, Mr. President. Could we please see 1D211 in e-court. Page 14. Thank you. We can't see it yet. So it is 1D211. We see it now.

MR. TOLIMIR: [Interpretation]

Q. As can be seen on the right, this is about the Tuzla air base. To avoid reading it out because I lack time, my question is: Was the Tuzla air base one of the largest air fields in Eastern Bosnia used by ¹¹⁸⁹² both the NATO forces and UNPROFOR for their needs in Eastern Bosnia? Thank you.

A. What did you say about NATO? It -- as I said, I described the air field. Yes, it was one of the largest air fields. The UN were based on the camp by its main strip. NATO wasn't there in 1995, but NATO established a base there in -- you know, took over from the UN base in 1996.

Q. Thank you. A minute ago you said that the auxiliary air field was used by helicopters of the BH army, and we also saw a document about armaments.

My question is: Did the BH army, or NATO, or UNPROFOR, have control over the -- over Eagle air base in Tuzla? Thank you.

JUDGE FLUEGGE: Mr. Thayer.

MR. THAYER: Mr. President, again, I understand that General Smith can handle himself, but his testimony is clear, and I don't think he said anything like the ABiH was using that air field. I don't think he ever said that.

JUDGE FLUEGGE: Sir, are you able to answer the question?

THE WITNESS: I was about to say -- go further, and I didn't say helicopters either.

MR. TOLIMIR: [Interpretation]

Q. Thank you. I have no time to return to the transcript, but a short while ago you spoke about it while we were reading that letter, or, rather, the report from the meeting that you had with Mladic and me when Mladic protested because of the misuse of Tuzla air field. And you said ¹¹⁸⁹³ that there was an auxiliary strip that they used.

So if you want to reply, okay; if you don't want to, well, we can move on to the following question. Thank you.

A. I did say there were reserve strips, one of which appeared to be being used or flown very low over.

Q. Thank you. I don't want to go into the black flights now because I don't have time.

Just one more question and we'll finish. Please let us see 1D211, page 16. Thank you.

This is about the reporting of UNPROFOR. I'm now quoting: "On Friday, 13 February, the daily overview report of UNPROFOR headquarters in Sarajevo stated at that there was continued evidence of BH army resupply [sic] activity. Since early January 1995, the convoys from Croatia with arms and ammunition had increased considerably, and in other parts of Bosnia the same observations were made. In the spring, DutchBat would also establish that the ABiH received new arms from Tuzla and that training was being stepped up. This news spread rapidly, and in due course, this could only have negative consequences for the clandestine arms supplies to the BH army [sic]. The American pressure on Le Hardy was apparent increased, because he became involved in a acrimonious exchange with Americans on this subject. Under apparent American pressure ... he produced a second report on 18 February in which he state that his earlier report was incorrect and he made recommendations for achieving more accurate reporting ... according to him, no one had seen the aircraft - which wasn't true - but only heard ¹¹⁸⁹⁴ it. He also made a number of suggestions so that the Norwegians could report better. This second report is remarkable: On the one hand, Le Hardy states that all alleged observations of the Hercules were wrong, but, at the same time, he makes a wide variety of recommendations, including stationing a Danish tank on Tuzla air base, to control the highway strip and to occupy more favourable positions, to improve the chance of actual hard observations."

Here's my question: Since you were UNPROFOR commander in Bosnia in 1995, in Sarajevo, did you get this report and this information and similar information about the supplying of the BH army with new armament? Thank you.

A. Who is Le Hardy?

THE ACCUSED: [Interpretation] It hasn't been interpreted to me. I don't know what the General asked me.

THE WITNESS: Who is Le Hardy?

MR. TOLIMIR: [Interpretation]

Q. You will see it in this UNPROFOR report. This was issued by UNPROFOR about the man who was in charge of implementing those secret sorties.

A. I'm not looking at UNPROFOR report. I've got a page from a book, which, I think from it, my memory of the number, is the same one we saw written by a man who'd been on the Netherlands war document inquiry or ...

Q. Thank you. He obviously worked pursuant to some documents. It says here, on Friday, the 13th of February, the daily report of UNPROFOR ¹¹⁸⁹⁵ staff in UNPROFOR stated that there was continued evidence of ABiH arms resupply activity.

In other words, he stated that, based on some reports; right? Thank you.

Please, if you look at paragraph -- at the following paragraph, that is. The previous paragraph on the left-hand side, you can see it already. If you look at the third paragraph where -- paragraph where it says that on the 16th of February.

Do you see that, do you see the paragraph starting with: "The 16th of February, the second C-130 was seen, and on the following day two more were seen. The British daily press even established a connection with a visit by Holbrooke to Turkey on the 7th of February. But that was not the end of the matter because a further four flights were observed where one aircraft was seen by a British UNMO using night-vision binoculars. On 17th and 19th February, UN personnel made 16 reports of helicopters that landed on Tuzla air base."

Thank you. End of quote.

A. I can read that too. I wanted to know who Le Hardy was. I thought you were asking me about his report. He, I don't think, was anything to do with the daily situation report that you referred me to, and I've acknowledged that we were having these reports. I've already said that for you, that we had these reports of aircraft landing. Nothing like the number being reported here, as I remember it, but that -- that this was going on at Tuzla was -- I acknowledge it was ¹¹⁸⁹⁶ happening. I don't acknowledge it was necessarily as many flights as being put here.

Q. Thank you, General, sir. I have no more time. I don't want to abuses either the Chamber's time or the OTP's time. I would like to thank you for coming here to testify. I apologise for all of my questions. I had to put them because I defend myself. Thank you for everything. I wish you a safe journey home. God bless you and I wish you to fully enjoy your days of retirement.

THE ACCUSED: [Interpretation] Your Honours, this is as much as I had to ask the General. We have no further questions, and, in any case, we don't want to abuse anybody else's time. Thank you.

JUDGE FLUEGGE: Thank you very much. Mr. Gajic.

MR. GAJIC: [Interpretation] Mr. President, an omission on the part of the Defence. We would like to tender 1D211.

JUDGE FLUEGGE: How many pages does this document contain?

MR. GAJIC: [Interpretation] I apologise, the document before us -- I apologise - please bear with me for a moment - currently, 33 pages have been uploaded into e-court, but we would like to reduce that to some 15 pages that speak about the Croatian connection, and this is what Mr. Tolimir discussed with General Smith and the flights for Tuzla. And we're talking about the 15 pages that we would like to tender into evidence of all of the pages that have been uploaded into e-court.

JUDGE FLUEGGE: The Chamber is looking forward to a proper motion to admit these documents so that we know what you are talking, which ¹¹⁸⁹⁷ pages you really are tendering. Thank you. We postpone the decision on that.

Mr. Thayer, now your re-examination, and I hope it will be possible to finish and let Mr. Tolimir exceed his time a bit as the Prosecution did at the beginning in the examination-in-chief. Mr. Thayer.

MR. THAYER: Thank you, Mr. President. Re-examination by Mr. Thayer:

Q. General, good afternoon.

A. Good afternoon.

Q. I'd like to turn, first, to an issue that was raised this afternoon by the Honourable Judge Nyambe with respect to the green order that you heard a little bit about of.

MR. THAYER: May we have D193 in e-court, please. And we'll need page 16 in both the English and the B/C/S, please.

Q. General, I'd like to draw your attention to the paragraph, and it's the third paragraph on this page that begins with: "July was dominated by the fall of the enclaves."

A. Could my screen go up one size, please?

JUDGE FLUEGGE: It's quite difficult because it's a large document.

THE WITNESS: That's fine. I've got the paragraph.

MR. THAYER:

Q. And for the record, we're looking at a copy of your OTP witness statement from 1996. You state here that: ¹¹⁸⁹⁸ "The attack on Srebrenica started on the 6th July and was seen at the time as a local affair and as a punishment for attacks by the Bosnians from inside the enclaves."

You go on, and you describe: "The attack intensified during the 8th, 9th and 10th. On the 8 July, the built-up area of the town was engaged by artillery and UN observation posts were taken by the BSA using tanks. UN troops were taken from two OPs and moved to Bratunac north of the enclave. It was believed at this stage that the objective of the BSA was merely to limit the size of the enclave. During the evening and night of the 8 July, the shelling of the town intensified and many civilians entered Srebrenica from the villages in the southern part of the enclave. On the morning of the 9 July, BSA infantry attacks supported by tanks progressed up to the heights just south of Srebrenica town. Four UN OPs were surrounded and a Dutch Battalion APC was captured. The ABiH resisted with small-arms and mortar fire, but were reported to be easily outgunned." And then you refer to 30 Dutch personnel being captured and were surrounded by BSA troops.

You provided this context, sir, in your statement, and I wanted to focus now on the next paragraph:

"In the early hours of the morning of the 10 July, the BSA resumed the attack, and by the end of the day had secured the heights around the south of the town. The UN force established a blocking position on the road leading into Srebrenica and issued an ultimatum threatening the use of air attacks if the attack on Srebrenica was not ¹¹⁸⁹⁹ discontinued."

And then go on to describe the use -- the employment of the close air support.

Now, you were asked a series of questions by General Tolimir about this so-called green order which was issued down the DutchBat chain of command on the 9th of July. What I'd like to show you now is a copy of that green order.

MR. THAYER: And if we could have P00601. The original is in Dutch, but let's look at the English and the B/C/S.

Q. We can see that this is dated the 9th of July in the evening hours from Major Franken to Captain Groen. Now the Trial Chamber has heard testimony about a warning that was issued by UNPROFOR to the Bosnian Serb army about its establishment of these blocking positions that you described in your report.

Can you tell the Trial Chamber just generally what the purpose of those blocking positions was.

A. This is very much a memory. The purpose was to provide a clear, as it were, line in the sand, not only as a defence on that axis, but as a clear point at which the UN, as the UN were becoming engaged in the -- in -- in defending the enclave.

That's my memory of it at that time. But, remember, I'm -- this is me learning of this at -- by radio calls and then being called off leave and being told about it in more detail.

Q. And what had to happen, General, for the UN to become engaged?

A. Oh, the attack had to continue and seek to penetrate that ¹¹⁹⁰⁰ blocking position.

Q. And if we look at this document, we see that the assignment is listed as preparation an arrangement of defence of the southern edge of Srebrenica. And it lists some routes, and it refers to position B1, and the Trial Chamber has heard that that's a reference to a blocking position, Bravo 1.

And then we see in the order: "Prevent with all available means a breakthrough of the BSA ... into the town.

"Nota Bene: This is a seriously intended green assignment." Now, General, the Trial Chamber has heard that this term green assignment refers to, in a manner, the taking off of the blue helmet and the placing of the combat green helmet. At this point, General, with these blocking positions set up, as you've explained it, in order, again, for the DutchBat forces to be engaged with the VRS, what has to happen?

A. Well, the position has to be -- their blocking position has to be attacked and the -- and the -- the attack has to continue, if you like, in order to have this engagement.

Q. And do you recall that, in fact, tanks were observed moving northward, penetrating and firing upon some of these blocking positions?

A. I recall that there is armoured, Bosnian Serb armoured vehicles there, because they become part of the targets, if I recall correctly, of the close air support.

Q. And, fundamentally, what's the purpose of preventing a breakthrough of the BSA into the town? ¹¹⁹⁰¹

A. Would continue to keep the town a safe area for the civil population, albeit it's being shelled at the time.

Q. And the VRS attacks on the UN positions, did those constitute a violation of any of your mandates?

A. First of all, it was an attack on the UN. Secondly, yes. The civil population is being shelled in their houses in Srebrenica, and the enclave is being attacked.

Q. General, I want to spend a little bit of time discussing the basis, the authorisation for UNPROFOR's use of its air power available through NATO.

General Tolimir asked you a number of times whether the Security Council ever gave you authorisation to use air power against the VRS. He asked you which Security Council resolution did so, and so forth. So I want to address those specific questions.

MR. THAYER: And if we could have P2087 quickly, please.

JUDGE FLUEGGE: Mr. Thayer, may I ask you in the meantime, I was told there is another witness waiting. Is it probable that he will commence his examination today?

MR. THAYER: It is not, Mr. President. Thank you for reminding us. If we may cut him loose, that would be great.

JUDGE FLUEGGE: Should be released for today.

MR. THAYER: Thank you, Mr. President.

Q. General, we saw this protest letter earlier in your testimony. And you refer in it in the second paragraph specifically to: "Security Council Resolution 836." ¹¹⁹⁰² And you say that you shall feel free to recommend the use of NATO air forces to meet your obligations. We saw that --

A. Mm-hm.

Q. -- that before. Let's take a look at 65 ter 2438 before I put my next series of questions to you, General.

MR. THAYER: And that has now been marked as P01208.

JUDGE FLUEGGE: Mr. Thayer, you have switched on two microphones. One is enough, I think.

MR. THAYER: May we have page 9 in e-court, and that will be page 10 in the B/C/S, please.

For the record, we can see that we're at tab 3. If we can move four pages more in the English. And that will be page 15 in the B/C/S.

Q. I think we also saw this document earlier in your testimony. This is a proposed demilitarisation plan that was put to you by Mr. Joseph and Mr. Harland on the 19th of July. And I just want to focus on the references first. You can see that there is reference to Security Council Resolutions 824, 836. And, in particular, I'm going to want to focus on the North Atlantic Council decisions of 22 April, and we can see here that Mr. Joseph describes the continuing bombardment of the civilian population of Zepa and the attacks on the UNPROFOR troops.

JUDGE FLUEGGE: Mr. Thayer, you left out the date of the North Atlantic Council decision of the 22nd April.

MR. THAYER: 1994, Mr. President.

JUDGE FLUEGGE: Thank you. That is helpful for a better understanding. ¹¹⁹⁰³

MR. THAYER: Mr. President, I'm going to be putting up a series of these resolutions, but I see we're at the break. Perhaps now is a good time.

JUDGE FLUEGGE: Indeed. We must have our second break now for half an hour. And we will resume at quarter past 6.00.

--- Recess taken at 5.47 p.m.

--- On resuming at 6.17 p.m.

JUDGE FLUEGGE: Yes, Mr. Thayer, please carry on.

MR. THAYER: Thank you, Mr. President. May we have 65 ter 7266, please. And if it's possible to enlarge it just a little bit.

Q. Okay. General, can you see that we've got Resolution 836 up on the screen.

A. Yes, I can. Yeah.

Q. It's dated the 4th of June, 1993. And towards the beginning, we can see that it reaffirms Resolutions 819 and 824. And then it precedes through a number of findings and other language referring to the ethnic cleansing and plight of the civil population in the safe areas.

MR. THAYER: If we could go to the next page, please. And that's page 3 of the B/C/S, please.

Q. We can see that the Security Council is alarmed by the plight of the civil population in Sarajevo, Bihac, Srebrenica, Gorazde, Tuzla, and Zepa.

Condemning the obstruction by the Bosnian Serb party of humanitarian assistance. ¹¹⁹⁰⁴ In the middle of the page, we can see that the Security Council stresses that there must be complete cessation of hostilities, withdrawal from territories seized by the use of force and ethnic cleansing, reversal of the consequences of ethnic cleansing.

Now, what I'd like to do is go to the next page and focus on a particular paragraph. Two particular paragraphs.

If we can focus on paragraphs 9 and 10, please.

JUDGE FLUEGGE: It should be the next page in B/C/S.

MR. THAYER: Thank you, Mr. President. That's absolutely right.

Q. And I won't take the time to read it into the record. We can all see it.

General, can you tell the Trial Chamber the connection, if any, between paragraphs 9 and 10 of Resolution 836 and the operation of NATO air power through UNPROFOR?

A. I mean, the paragraph 9, if you like, creates the condition in which the Dutch Battalion is conducting that -- the action that we've seen already, or discussed already. They are occupying a blocking position where, if they are attacked, they will be acting in self-defence. And they take the necessary measures, including use of force, to deal with the -- that situation. And -- which is spelt out. You have got the bombardment of a safe area, which, if I recall this document, defined earlier on by reference to the places and so forth. Oh, it is said, silly me. It says it in paragraph 5 above. And then an armed incursion into them and also any action that is inhibiting their ability to move. ¹¹⁹⁰⁵

Q. Thank you, General.

MR. THAYER: Mr. President, the Prosecution will tender 65 ter 7266.

JUDGE FLUEGGE: It will be received.

THE REGISTRAR: As Exhibit P2133, Your Honours.

MR. THAYER: Mr. President, I have already reduced my re-examination significantly. I would like to be able to finish today and if I could, I would like to tender Resolutions 819 and 824, basically from the bar. They're both referred to in the indictment. We've heard a lot of references to it. I think they essentially speak for themselves. It is referred to again, explicitly in this document. I think it might save some time, and if there is no objection from the Defence, I think we can move through this in time to get General Smith home today.

JUDGE FLUEGGE: Mr. Tolimir, are there any objections?

THE ACCUSED: [Interpretation] Thank you, Mr. President. Since this is mentioned in the indictment, maybe it would be useful to use only those which are mentioned in the indictment. And maybe it would be useful if we could work with this witness and go through them witness, witness [as interpreted] and then introduce them into evidence. Thank you.

MR. THAYER: Mr. President, I'm not sure if that is an objection. Again, these are mentioned in the indictment. We've seen references to them. Frankly, I don't think we need to go through them with this witness. I'm not sure if there is going to be another witness to walk through the resolutions that, again, are a matter of historical record. ¹¹⁹⁰⁶ I think we're quite safe in just admitting them.

JUDGE FLUEGGE: Thank you. I'm not sure, Mr. Tolimir, if I understood your position correctly. I didn't hear any objection to admissions of the two Security Council resolutions that the Prosecution is tendering; is that correct?

THE ACCUSED: [Interpretation] Thank you. I have no objection to the Security Council resolutions. My objection pertains to all other documents which were not considered here.

JUDGE FLUEGGE: At the moment only dealing with these two Security Council resolutions.

They will be received as exhibits.

THE REGISTRAR: Exhibit P2134 and Exhibit P2135, Your Honours.

JUDGE FLUEGGE: Thank you. But for the record, Mr. Thayer, you should state the 65 ter --

MR. THAYER: Mr. President, I was about to do that. Resolution 819 is 65 ter 7267; and Resolution 824 is 65 ter 1980.

JUDGE FLUEGGE: Thank you. Please carry on.

MR. THAYER: Thank you, Mr. President. May we have 65 ter 7268 on the screen, please.

Q. General, when we looked at Ed Joseph's proposed demilitarisation agreement before the break, there were several resolutions and a reference to a 22 April 1994 NATO decision. I'd like you to just take a look at this. We can see from the top a reference to condemning the recent Bosnian Serb attacks against Gorazde. It reaffirms the readiness of the Alliance to protect the safe areas. And again here's the ¹¹⁹⁰⁷ reference to Resolutions 824 and 836.

MR. THAYER: And if we turn the page, in paragraph 9 we can see that NATO agrees to several things.

Q. Can you tell the Trial Chamber when you've had a chance to take a look think, General, how this fits in with the authority you testified you had to enforce your mandate through the use of NATO air power.

A. Yes. This is the -- if you like, the essential linking decision of NATO that is as much an authorisation to their subordinate commanders to act in support of UNPROFOR and allows UNPROFOR to call on the -- on NATO should they find themselves in certain situations as listed in this document.

MR. THAYER: Mr. President, the Prosecution tenders 65 ter 7268.

JUDGE FLUEGGE: Is there a translation available?

MR. THAYER: No, there is not, Mr. President. So we will ask that it be MFI'd.

JUDGE FLUEGGE: Thank you. It will be marked for identification, pending translation.

THE REGISTRAR: Exhibit P2136, marked for identification, Your Honours.

MR. THAYER:

Q. General, General Tolimir asked you last week why you had bombed the Zlovrh facility, and I -- I think we understand that when I say "you," I'm referring to you in your role as commander, why you bombed the Zlovrh facility in Zepa at the end of August. And you couldn't remember why it had been selected as a target. ¹¹⁹⁰⁸ Do you recall that series of questions?

A. Yes, I do.

Q. Okay. Let me show you a couple of documents. The first is 7264; 65 ter 7264.

General, do you recall being shown a combat report dated the 30th of August from the Rogatica Brigade, describing the attack on the Zlovrh feature? Do you remember General Tolimir showing that you?

A. Yes, I remember that.

Q. Okay. What we have here is a very urgent report. It's the same date, 30th of August, and the subject is NATO air-strikes in various corps area of responsibility. We have a partial translation, the full version, obviously, is in B/C/S. And I want to focus your attention on this portion that we have translated. And we will see in a second that this is authored by General Mladic. He writes:

"During these two massive attacks, the enemy fired at the general area of the Main Staff of the VRS without consequences." And you will see here at radar position of an air surveillance warning and guidance centre, a radio relay centre in Jahorina. The Stolic and Kmur repeater --

JUDGE FLUEGGE: Mr. Tolimir --

MR. THAYER:

Q. -- and the former radio rely centre in Zlovrh, among others. And if we could go to the next page in English, please. General Mladic writes:

"The goal of enemy activities was obviously to damage and destroy ¹¹⁹⁰⁹ the command posts, communication centres in order to paralyse the command and control in the VRS on strategic and operational level, which might be an introduction into more extensive activities and engagement of the rapid reaction forces."

General, does that help refresh your recollection about what the targets were of that attack, and, in particular of the Zlovrh repeater that we saw.

A. It certainly refreshes the -- the general thrust of the targeting was to do what the -- is to attack the command and control facilities, particularly those to do with the air defences.

Q. And this facility that is listed here that General Tolimir asked you about, the radio relay centre at Zlovrh, can you just describe what the importance is of a radio relay centre?

A. If it's the -- the nature of the communication systems, often you need to put repeater or relay stations into the system in order to link them all up, and I would think that that was one of those facilities.

MR. THAYER: Mr. President, the Prosecution tenders 65 ter 7264.

JUDGE FLUEGGE: You said only a part of the document was translated; is that correct?

MR. THAYER: That's correct, Mr. President.

JUDGE FLUEGGE: Could we see the second page of the B/C/S version?

Can you provide us with any reason why only a part of that was translated?

MR. THAYER: Time, Mr. President. We -- we were only able to, in ¹¹⁹¹⁰ the time we had, focus on the -- the pertinent part and we will get the rest of it translated.

JUDGE FLUEGGE: In that case, we should mark it for identification, pending a full translation.

THE REGISTRAR: As Exhibit P2137, marked for identification, Your Honours.

JUDGE FLUEGGE: Mr. Thayer.

MR. THAYER: Thank you, Mr. President. May we have 65 ter 7263.

Q. Now we don't have a translation into B/C/S of this document and I'll just read in some of the relevant portions.

It's dated, again, the 30th of August, and it is from General Janvier to Mr. Annan, and you are copied in for your information regarding the NATO air-strikes and Rapid Reaction Force action. Paragraph 1 states that:

"NATO air-strikes began at 010 [sic] hours and continued until 0445 hours this morning. The strikes were predominantly targeted against the Bosnian Serb integrated air defence system; that is, radar, missile and communications sites."

Again, sir, does this help refresh your recollection about what the nature of the target at that Zlovrh radio relay centre was that was struck on the 30th of August?

A. Yes, in the general pattern. Again, I can't remember the specific target list, but it would have fitted into that description of the integrated air defence system.

MR. THAYER: Mr. President, the Prosecution would ask that 7263 ¹¹⁹¹¹ be admitted pending translation, MFI'd pending translation.

JUDGE FLUEGGE: It will be marked for identification, pending translation.

THE REGISTRAR: As Exhibit P2138, marked for identification, Your Honours.

MR. THAYER:

Q. Now, I'm going to cut this portion a little short. But you were shown the agreement --

MR. THAYER: And if we could have D0051. D51, please. This agreement on the disarmament of the able-bodied population in the Zepa enclave of the 24th of July. You were shown that a number of times. In particular, paragraph 7. Let's just bring that up for a second. Paragraph 7 reads:

"In accordance with the Geneva Conventions of 12 August 1949 and the Additional Protocols of 1977, the civil population of Zepa shall be given the freedom to choose their place of residence while hostilities continue."

Q. Now, you testified that both sides in the conflict were in the habit, you said, of sprinkling their argumentation and documents with references to the Geneva Conventions. And I want to discuss with you in this context those conventions.

The Honourable Judge Mindua pointed out that the Article 17 would apply to the movement of some of the people and that it is encouraged. So let's take a look at that, if we could. That's 07269.

JUDGE FLUEGGE: I take it you're referring to 65 ter list? ¹¹⁹¹²

MR. THAYER: It's a 65 ter number, Mr. President. Unfortunately, it wasn't on our list. Again, this is something that has come up on the fly, as it were. It is on the list of re-direct documents that we sent to the Defence.

If we could blow that up, please. Great, thank you.

Q. Here we have Article 17, and it's of the 4th Geneva Conventions, 12 August, 1949. I think we're all agreed that this is what would apply, theatrically, to what was going on. And let's look at the actual language of the Article. We can see that it states:

"The parties to the conflict shall endeavour to conclude local agreements for the removal from besieged or encircled areas, of wounded, sick, infirm, and aged persons, children, and maternity cases, and for the passage of ministers of all religions, medical personnel and medical equipment on their way to such areas."

So, General, the Article that we're talking about that would -- would apply to the situation, can we see here that it's limited in any way to a particular class or -- or group of people, generally speaking?

A. Yes, it is. I mean, they're described as the old, the sick, children, and maternity cases.

Q. Okay. So any encouragement of such agreements, can we agree perhaps on the word "vulnerable," would that cover this general group of people, perhaps?

A. If you would like to call them that, yes, we could label them vulnerable.

Q. Paragraph 7, as we just saw, and if we could go back to D51, we ¹¹⁹¹³ can see that this reference in this agreement to the Geneva Conventions as parked, as it were, right in the middle of the agreement, without any reference to the particular class that we just spoke about?

A. Mm-hm.

Q. Is that correct?

A. That's correct, yes.

Q. How does this citation, having seen the actual relevant Article, fit with your prior understanding or experience that both sides were in the habit of sprinkling, as you said, their argumentation and documents with references to the Geneva Conventions?

A. Well, it -- it rather confirms that point of view. It also, you note, it doesn't cover those vulnerable people in any -- with any specificity.

MR. THAYER: Mr. President, the Prosecution would tender 65 ter 7269. Actually, we would offer it as marked for identification, pending translation.

JUDGE FLUEGGE: Although I'm not persuaded that it is necessary to tender international agreements as a basic of -- yeah, kind of law, it will be received but only marked for identification, pending translation.

THE REGISTRAR: Exhibit P2139, marked for identification, Your Honours.

MR. THAYER: Judicially noticed, Mr. President.

Q. Now, General, General Tolimir asked you a number of questions pertaining to your testimony about the negotiations that you were privy to between Mr. Bildt and President Milosevic towards the very end of ¹¹⁹¹⁴ July 1995.

Do you remember your testimony and then the cross-examination on that topic?

A. Yes.

Q. And General Tolimir put it to you in various forms and fashions that everybody made it safely across the Drina and it all ended up in a positive way and that these people were free to go to Serbia. Are you aware, General, as to whether or not the Bosnian Serb -- let's start with the military leadership, was aware of these negotiations?

A. To the best of my knowledge, they were not aware.

Q. And was that something that was done deliberately?

A. I don't know. Certainly I wasn't discussing it with them. This wasn't my negotiation. And as I think I told the Court, I was aware of it but not party to the negotiations at the time.

Q. And, General, are you aware what actions the VRS took regarding those men and boys as they were trying to cross the Drina during those couple of days and nights at the end of July?

A. No, I'm not aware.

Q. Did you ever hear reports that they were shelled by the VRS, as they tried to cross into Serbia? Does that ring any bells? Did you ever hear that, sir?

A. No, I don't think I did hear that. No.

Q. Moving onto another topic, General. Do you recall General Tolimir suggesting to you that the VRS kept in mind the safety of UN soldiers, and he showed you an order from ¹¹⁹¹⁵ General Mladic regarding the robbery and theft of property at check-points, at VRS check-points; do you remember that?

A. Yes, I do.

Q. And you testified that you complained to Mladic and that the robberies decreased, and that this, as you said, showed Mladic's grip and command of his forces; do you remember that?

A. Yes, I do, yes.

Q. Well, I want to just ask you a couple of questions about another occasion, and you talked about this a little bit already, when the VRS had an opportunity to demonstrate its commitment to the safety of UNPROFOR, and I'm talking about the taking of the UN hostages following the air-strikes in May of 1995. You've spoken about the grip of General Mladic and the discipline in his army. Did you form any conclusions about whether the hostage-taking in May, the 400 or so hostages that you testified about by the VRS, was spontaneous, committed by rogue elements or some other conclusion?

A. My conclusion was that this -- this was centrally conducted and was initiated at Pale from the centre.

Q. And when you say "at Pale from the centre," what are you referring to, General?

A. Well, the political headquarters was there. That's where, if I recall correctly, certainly that was where the first hostages were seized, and I was rung up and threatened with their murder, if the bombing didn't stop. And from memory, it was there that I -- I spoke on the telephone with Mladic. ¹¹⁹¹⁶

Q. And to what extent, based on your experience an observations at the time, did you make any conclusions concerning the involvement of the VRS in the taking of these hundreds of hostages?

A. Oh, in the reporting of them being taken, that they were being seized by VRS people, and also it was noteworthy that the Russian units were not being afflicted in the same way, which was another indication that this thing was -- this -- this hostage-taking was being controlled.

Q. Let's take a look at another document, General. It's 65 ter 7265.

What we have here, General, is a communication from the VRS Main Staff intelligence and security sector. The date is 27 May, 1995. Subject; NATO air-strikes. It is type-signed by Lieutenant-Colonel Jovica Karanovic indicating on the authorisation of the chief. And this is the same Jovica Karanovic who authored a document that General Tolimir showed you in which Mr. Karanovic, a member of the intelligence and security sector in the VRS, was advising General Tolimir of developments at the airport.

Do you remember that document?

A. Yes, I do.

Q. Okay.

A. Yeah.

Q. And we can see here that Lieutenant-Colonel Karanovic reports that they have information that the NATO session was finished, how the operation was allegedly going to be led, and then if we look at the final paragraph, General, we see it states: ¹¹⁹¹⁷ "Familiarise commanders with this information and recommend that captured members of UN forces be placed in an area of a possible NATO air-strike."

Can you please comment, General, on how this document corresponds or not with your prior conclusion that this was being centrally run.

A. Well, this fits that, you see, the intelligence and security sector of the Main Staff issuing from the -- from the -- the headquarters this information with the recommendation as to that's what they do, that they seize captured members of UN forces and put them into the area of possible NATO air-strikes.

Q. And what did you actually see happening, General, in the day or two after the initial round of air-strikes?

A. Much the same. I mean, the initial hostages were put on -- one on -- in the close vicinity to the target we had already attacked, and from memory, on at least one other target around Pale. And then the others were moved, although much of our knowledge about where they were moved came when they were debriefed on their return, but they were all placed in -- in possible target locations.

MR. THAYER: Mr. President, the Prosecution would tender 65 ter 7265.

JUDGE FLUEGGE: It will be received.

THE REGISTRAR: As Exhibit P2140, Your Honours.

MR. THAYER:

Q. Now, while on this same series of events during this period of time in May, you testified that following that first round of strikes on ¹¹⁹¹⁸ the 25th, all of the safe areas were shelled. And you mentioned in particular Tuzla being shelled, where scores of people were killed. And General Tolimir put a number of questions to you, suggested that that shelling was not done by the VRS.

Do you remember that question and answer?

A. Yes, I do, yes.

Q. Now, based on the reports you were receiving at the time of this shelling across all of the safe areas, again, did you come to any conclusions as to whether this shelling, following the first round of air-strikes, was spontaneous, done by rogue elements or some other conclusion?

A. No. I concluded that this was, again, centrally directed and it -- not least part of that was that the targets were all safe areas. And, secondly, the shelling all occurred in a relatively close tight period of time.

Q. And can you give the Trial Chamber some idea of when you say close period of time are you talking about?

A. My memory is that all the attacks occurred within about half an hour of each other.

Q. And at what level, General, would you -- based on your observations at the time and your experience with artillery, and if you need to explain a little bit, please feel free, what level in the VRS would this have to have been co-ordinated from or by?

A. As a general rule, and like all general rules and theories, this can be broken. But as a general rule, you command the artillery at a ¹¹⁹¹⁹ level that equates to its maximum range. So if you've got a piece that fires, for sake of example, 20 kilometres, then the -- all the size of the formation that is within a radius of 20 kilometres would be the headquarters that would command the artillery.

By and large, that equated to corps levels, in my observation, of the Bosnian Serb army. The -- but it -- it all depended upon how much the area is in -- covered by the force, rather than just the size of the force, corps, division or whatever size it is.

I want to draw a distinction though between the command of the artillery and the application of its fire. The -- you might command the artillery at corps level, but you might tell a much more subordinate commander that he can use that fire to support his attack, and then you -- when he has finished that attack, you can allocate that fire to another position, another target.

In this particular case, the -- the -- these weren't supporting any specific attack. This was what one would call in my service an artillery raid. You -- you were using your guns as though they were airplanes, for example, in a bombing raid. And in this case, I would expect it to have been initiated by the artillery commanders in -- I beg your pardon, the orders for firing to be coming from the artillery commanders at the corps or possibly divisional level. But to get the co-ordination of time that they're all arriving within that, plus/minus, half an hour, someone above them, the Main Staff, I think, would have been the -- would have told them to -- You are to attack these targets at this time or between these times, or some other centralised instruction ¹¹⁹²⁰ that initiated the attack itself.

Q. Just a couple of more questions, General. General Tolimir asked you a number of questions about Colonel Palic. And he showed you a document, and I won't show you the document now. But in the process of asking you these questions, he claimed that Colonel Palic was not finally killed, to use General Tolimir's words. And this is a transcript page 11762. Do you remember him saying that in one of his questions, that Colonel Palic was not finally killed and he was going to show you some documents?

A. I do remember him saying that, yes.

Q. And you testified about seizure of Colonel Palic, as witnessed by Ed Joseph. General, do you know what happened to -- and I'm going to start with the hodza, the cleric, Mr. Hajric, one of the signatories to that 27 July decision that General Tolimir spent so much time showing you. Do you know what happened to him, sir?

A. I don't, no.

Q. How about Mr. Imamovic, one of the other of those three signatories, the civil protection chief?

A. I don't remember. If I knew, I have forgotten, and I don't know now.

Q. General, would it surprise you to know that their remains, along with the remains of Colonel Palic, were all found in a single mass grave just a couple of kilometres from Rogatica?

A. It wouldn't surprise me. ¹¹⁹²¹

JUDGE FLUEGGE: Mr. Tolimir.

THE ACCUSED: [Interpretation] Mr. President, this was not subject of cross-examination. The witness is being asked to speculate. Thank you.

JUDGE FLUEGGE: Indeed, Mr. Thayer. We are not persuaded that putting this question to the witness is helping to clarify the fate of these individuals.

MR. THAYER: Well, Mr. President, if I may just ask, because General Smith was about to, I think, provide some more information. I would like to ask why it wouldn't surprise him to learn that those three men were found in the same grave. I think that would be helpful to the Trial Chamber.

JUDGE FLUEGGE: I put a question to the witness. Do you know anything about the fate of these individuals, sir?

THE WITNESS: No.

JUDGE FLUEGGE: Mr. Thayer, we are beyond the time of today. We wanted to finish by the end of today's hearing with this witness, to enable him to leave, as he indicated earlier. But Judge Nyambe has again a question for the witness -- at least one or two questions for the witness.

MR. THAYER: That was my last question, Mr. President.

JUDGE FLUEGGE: Thank you very much, Mr. Thayer. Judge Nyambe.

JUDGE NYAMBE: Just one short question. At page 44 of today's transcript, in answer to a question about ¹¹⁹²² Pale, you have stated that:

"I was rung up and threatened with the murder if the bombing didn't stop. And from memory, it was there that I spoke on the telephone with Mladic."

Who rang you up? Do you remember?

THE WITNESS: The initial telephone call was by -- it was a Canadian voice, in that, that was the accent and so forth. Either immediately after that, in other words, the telephone was handed to Mladic, or subsequently that day, I think I had a conversation with Mladic, and he was at Pale.

JUDGE NYAMBE: Thank you. The last question. Just a few lines down from that portion I have quoted, you are reported as saying: "Oh, in the reporting of them being taken, that they were being seized by VRS people and also it was noteworthy that the Russian units were not being afflicted in the same way."

THE WITNESS: It was noteworthy. Yes, there were two Russian battalions in my command, and there was something of a special relationship between those battalions and the Bosnian Serbs, and it was observable that in the general taking of hostages none of the Russians were being taken. And I considered that to be indicative also of someone being in central control.

JUDGE NYAMBE: Thank you. Thank you very much for your answers.

JUDGE FLUEGGE: Sir, you will be pleased that this finally concludes your examination and your testimony here in the courtroom. The Chamber would like to thank you for your attendance again in The Hague ¹¹⁹²³ that you could help us with your testimony, and now you are finally free to return to your normal activities.

I think it is still in time for you to get your flight wherever you are going.

THE WITNESS: Thank you.

JUDGE FLUEGGE: Thank you very much. We have to adjourn for the day, and we will resume tomorrow in the afternoon in this same courtroom, at 2.15.

[The witness withdrew]

--- Whereupon the hearing adjourned at 7.06 p.m., to be reconvened on Tuesday, the 29th day of March,

2011, at 2.15 p.m.