1 Thursday, 9 October 2003

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.06 a.m.

5 JUDGE MAY: Yes, Mr. Nice. Yes.

6 MR. NICE: Your Honour, the next witness is General Sir Rupert

7 Smith. There is an application in respect of his witness statement that

8 is before you.

9 JUDGE MAY: Yes. Well, we've seen the statement, and we've had

10 the chance to consider it. What we would be minded to do is to admit the

11 statement but require you, of course, to call evidence about -- live

12 evidence about anything which is new, not in the statement, and also any

13 matters of evidence relating to the accused, his acts and conduct.

14 MR. NICE: Your Honour, there is one meeting - I'll of course deal

15 with that - one meeting directly with the accused. I'll get the witness

16 to deal with that.

17 There are two updated versions of the draft proofing document that

18 you had. One is called "track changes," which will be familiar for those

19 who work with the appropriate software, and therefore shows what is

20 additional from the draft. One is free of track changes because some

21 people find it inconvenient to work with track changes. I'm happy to work

22 with whatever version is most convenient to the Chamber.

23 JUDGE MAY: Yes. There is an issue of time, as far as this

24 witness is concerned, because he is only here today, and we do not have

25 this courtroom in the afternoon so we have to finish at the usual time.

1 MR. NICE: I shall be brief.

2 JUDGE MAY: Very well.

3 MR. NICE: May the witness come in?

4 JUDGE MAY: Mr. Tapuskovic, do you want to say something?

5 MR. TAPUSKOVIC: [Interpretation] Well, Your Honours, I would just

6 like to say something very briefly. I respect, of course, what you've

7 said just now, but it seems to me that the witness who is about to come

8 in, General Rupert Smith, who was in 1991 commander over the UN Protection

9 Forces in Bosnia-Herzegovina and who took over that duty on the 23rd of

10 January, 1995, and then also throughout that year he carried out this duty

11 all the way up to an action taken by NATO in the month of October, it

12 seems to me that this is a witness who should perhaps be questioned in

13 chief about all these relevant matters. It's not only relevant the fact

14 that he had contacts with Slobodan Milosevic. He was one of the persons

15 who followed all developments in 1995, which was an extremely important

16 year. And I believe that there are many developments involved about which

17 he should testify in chief, especially regarding everything that happened

18 after Markale, after the 28th of August, 1995.

19 I indeed believe that you should reconsider whether this is a

20 witness who should be questioned in chief as well.

21 JUDGE MAY: Yes. We'll reconsider it.

22 [Trial Chamber confers]

23 JUDGE MAY: Yes. We have considered this matter, and of course

24 we've considered, the two of us, the arguments which Mr. Tapuskovic puts

25 forward. We of course bear in mind the importance of the evidence which

1 is to be given, but on the other hand, we have had benefit of argument

2 yesterday, detailed arguments, which we've considered. Those arguments

3 apply to this case. I should say that the original decision was the

4 decision of the Trial Chamber as we considered it yesterday with Judge

5 Robinson. Judge Kwon and I, of course, have reconsidered it now. We can

6 see no reason to change our minds. Yes.

7 MR. NICE: May the witness come in. And in the absence of any

8 indication to the contrary from the Chamber, I will use the updated

9 summary that is not the "track changes" version, but I'm entirely in your

10 hands.

11 [The witness entered court]

12 JUDGE MAY: Yes. If the witness would take the declaration.

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

14 whole truth, and nothing but the truth.

15 JUDGE MAY: Thank you very much. If you'd like to take a seat.

16 THE WITNESS: Thank you.

17 WITNESS: RUPERT SMITH

18 Examined by Mr. Nice:

19 Q. Your full name, please.

20 A. Rupert Anthony Smith.

21 Q. Retired general of the British army, with a service history from

22 1964 covering experience in many theatres around the world, serving in the

23 Gulf War, and involving yourself in the Balkans as early as late 1992 and

24 early 1993 when you were in London at a desk position which gave you an

25 overall view of the Balkans. Did you take command of the United Nations

1 Protection Force in Bosnia-Herzegovina in January 1995, holding that

2 position until December of 1995?

3 A. Yes.

4 Q. Did you make a statement dated the 14th of August, 1996, to

5 investigators of this Tribunal? Did you sign that statement? Have you

6 reviewed it, and is it accurate?

7 A. Yes to all of those questions.

8 MR. NICE: May that statement, please, become an exhibit.

9 JUDGE MAY: Yes. Judge Kwon makes the point that we did not

10 involve the -- yesterday, in yesterday's evidence, in the exhibit

11 numbering, the binder of intercepts which the witness was about to

12 produce. I don't know if we can do it this way, but it might be

13 convenient if that is now given a number, albeit it will only be marked

14 for identification, I suspect, and that has the next number which Judge

15 Kwon has, I think.

16 JUDGE KWON: Yes. The intercept binder will be Exhibit 551, and

17 the witness statement will be 552.

18 MR. NICE: Thank you very much. Your Honours, there is a binder

19 of exhibits to which the witness will refer but only briefly. May that be

20 given the exhibit number 553.

21 Q. Concluding with your -- not concluding, but concluding the summary

22 of your experience, General, following the position in Bosnia-Herzegovina,

23 did you command the British army, between 1996 and 1998? Did you then

24 become Deputy Supreme Allied Commander Europe for NATO between 1998 and

25 2002?

1 A. Between 1996 and 1998 I commanded the British Armed Forces in

2 Northern Ireland rather than the British army.

3 Q. Sorry.

4 A. And yes, I was the Deputy Supreme Allied Commander Europe from

5 1998 to 2001, not 2. I retired in 2001.

6 Q. Thank you. I'm now on the revised summary at the first

7 substantive page, page 3, paragraph 5.

8 In the course of your duties in 1995, did you meet Karadzic,

9 Mladic, and did you form any view from your dealings with them about their

10 relationship with the accused in this case?

11 A. Yes, I did meet both Karadzic and Mladic. The -- my views about

12 Mladic's relationship with the accused was based on in some and in

13 particular a meeting in July, but before that, there were examples for me

14 where there were connections with Serbia and Milosevic. These were to do

15 with the running of the Bosnian Serb forces and the state of their

16 equipment, where they were getting ammunition from, and where they were

17 being paid from, particularly the senior officers.

18 Q. Did you form any view one way or the other as to whether Belgrade

19 in general or the accused in particular had any influence over the Bosnian

20 Serb leadership?

21 A. I certainly had the view there was influence, yes, because they

22 relied, that is the Bosnian Serbs, relied for support from the Serbian

23 army or Serbian armed forces, and there was from their own account on

24 occasions evidence that they were dealing with the General Staff and so

25 forth in Belgrade.

1 Q. Paragraph 8 of the summary. As between Karadzic and Mladic, what

2 did you infer to be the relationship in summary?

3 A. In sum, the -- Karadzic was the political leader and Mladic was

4 the military leader. They stood together. They did this publicly as well

5 as in more discrete forum when they were talking to me or Mr. Akashi, and

6 the -- and Mladic made the point on plenty of occasions that he didn't do

7 the politics. However, he drew a very wide definition of his military

8 responsibilities, and he protected his right to direct and decide what

9 happened in those from Karadzic and everybody else jealously.

10 Q. Paragraph 9. As to whether there were any discussions on matters

11 of strategy between Karadzic and Milosevic, your view and your view as to

12 when if at all the accused elected to be involved.

13 A. I think they undoubtedly, that is Karadzic and Mladic, discussed

14 strategy and there was the case of a meeting in Jahorina where I am aware

15 that that had actually happened in a more formal structure.

16 The relationship with the accused, I think, was rather more that

17 he interfered or became involved when the directions they were taking

18 became counter to his interests and those of Serbia.

19 Q. Paragraph 10. To what extent and in what way did the

20 international community rely on or use the accused in respect of what they

21 wanted from the Bosnian Serbs?

22 A. Because it was seen that Mr. Milosevic had influence over the

23 Bosnian Serbs, the international community went to him and there is at

24 least two occasions where we can see it happening, the recovery of

25 hostages in May/June, and then during the Dayton talks, to bring as a

1 route, as a source of influence and pressure over the Bosnian Serbs.

2 Q. Did any, and if so which, senior VRS officers say anything to you

3 about where they were paid and how?

4 A. I don't remember precisely who said it, but I think it was either

5 Mladic or General Tolimir, but I was certainly told by one of them or

6 another on at least one occasion that they were paid by Belgrade.

7 Q. On the question of support, if any, from the FRY by way of

8 ammunition, forces, mercenaries, et cetera, your experience.

9 A. To an extent, the Bosnian Serb forces, particularly for specialist

10 equipment or the repair and maintenance of bits of specialist equipment,

11 relied on support from Belgrade, and the same applied to certain items of

12 ammunition. The provision of supporting forces, I divide them up briefly

13 into three groups. There were specials forces of the Serbian forces.

14 There were, let's call it units of -- from Serbia such as Arkan's forces,

15 and I was never quite clear exactly their relationships with the Serbian

16 army, but they were formed bodies and recognisable. And then there were

17 mercenary units in which it was alleged - I have no proof of this - that

18 some of the people in them had come from Greece.

19 I certainly saw evidence in the -- amongst the Serb forces and

20 Bosnian Serb forces around Zepa of these reinforcing forces.

21 Q. On an allied topic, paragraph 12 or the second part of paragraph

22 12, can you explain what you mean by an air defence system and give

23 evidence of how you understood it to operate and what inferences you were

24 to draw from NATO's attempts to destroy it.

25 A. For an air defence system to work, you need what is referred to as

1 a recognised air picture. This is collected and -- from a large number of

2 sensors, radars, and so forth, and is disseminated widely, and the

3 information is all collected together and fused into one picture.

4 This defence system was set up in the time of Yugoslavia under

5 Tito and didn't -- was not constructed on the basis of the boundaries of

6 -- that existed in 1995.

7 The -- and therefore, one must -- I was working on the assumptions

8 that there was a feed of information that crossed all those boundaries

9 from Serbia into Bosnia. This was demonstrated to me during the bombing

10 of September when NATO was suppressing the air defence system as we

11 knocked out the microwave towers over which this information is

12 transmitted. They were in Bosnia. The Serbs continued -- the Bosnian

13 Serbs continued to collect a recognised air picture, it being available

14 through the linkages that were coming in from Serbia.

15 Q. So that if you're right in the inference you draw, the feed came

16 from an integrated system and knocking out the part in Bosnia didn't deny

17 them a feed if it was coming from elsewhere?

18 A. Correct. And therefore, it was being managed and continued to be

19 managed from within Serbia.

20 Q. Thank you. We move to the heading "Restriction on the enclaves,"

21 paragraph 14.

22 On arrival -- actually, I think you covered this in your

23 statement, so I needn't cover it. I'll move on to paragraph 15, which is

24 the "Evidence of shift in RS military strategy."

25 You had a series of meetings with Mladic in early March, but they

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1 are covered in your statement for the most part. However, at page --

2 paragraph 15 and onwards, you deal with something that was to become your

3 thesis. Can you explain why it's necessary for you to form a thesis, or

4 desirable; what your thesis was.

5 A. Forming a thesis is something I've learnt to do in these rather

6 complex circumstances. It is -- it comes from having a thesis, then

7 there's an antithesis, then there's a synthesis. My -- what I try to do

8 is to arrive at a judgement. It doesn't -- from the information available

9 to me, as to what is going to happen, what other people are going to do.

10 I can then focus my collection of information to prove that or to disprove

11 it, but also it allows me something to test the information that comes my

12 way, to test that information against it and assess the information.

13 By early to mid-March, I have been in command for approaching two

14 months, and I've begun to form this view, a thesis as to what was about to

15 happen, and that then became the testbed, if you like, against which I

16 collected and assessed information.

17 Q. What was the thesis?

18 A. In sum, that the cessation of hostilities agreement was going to

19 break down, that the parties to this conflict were intent on war, they

20 needed to have a resolution by force by the end of 1995.

21 From the Bosnian Serb point of view, that they had a shortage of

22 manpower to defend the space they had, that if -- one of the ways of

23 freeing up the available manpower, making more available, was to reduce

24 the need to guard the three eastern enclaves, Gorazde, Zepa, and

25 Srebrenica. They also needed to keep the UN, because the UN was something

1 of a protection against them being bombed by NATO. The -- and therefore,

2 they would -- and I then deduced from that that therefore they would

3 squeeze and bring pressure on the eastern enclaves in such a way that they

4 neutralised their potential to the Bosnians as a source of military

5 activity in the Bosnian Serb rear while keeping the UN in there so that

6 they -- there was a hostage, as it were, to protect them from NATO

7 bombing.

8 Q. Paragraph 18. Regardless of what was going to happen in the

9 enclaves, your view on the significance of Sarajevo.

10 A. I would make the point that Sarajevo was also an enclave. The --

11 and under siege. I considered Sarajevo was the decisive point, because

12 some of the suburbs of Sarajevo were held by the Bosnian Serbs. The

13 confrontation line ran through Sarajevo. Sarajevo was the capital, the

14 seat of the Bosnian government. It was where the UN headquarters was. It

15 was where the media were, and it was defended or guarded by a brigade

16 found from a permanent member of the Security Council, France.

17 For all of those reasons, it was a decisive point.

18 Q. Paragraph 19. You had a meeting with Mladic on the 6th of March.

19 It's dealt with in your statement. Tab 1 of Exhibit 553 is a record of

20 that. Have you reviewed that exhibit? Does it faithfully set out the

21 contents of the meeting?

22 A. Yes, I've reviewed it, and yes, it does set out the contents of

23 the meeting.

24 Q. Paragraph -- the follow-on paragraph is also covered in the

25 statement, your original statement, but it's perhaps worth just

1 underlining this point: At a meeting -- at the meeting that we've been

2 dealing with, was Koljevic present?

3 A. Yes, he was, yes.

4 Q. And did he say, as your statement reveals, talking of people going

5 to this Tribunal "If he goes, we all go and we don't mind how many go with

6 us"?

7 A. Yes, he did say that. Yes.

8 Q. Can we then look, please, and this is only one of the two exhibits

9 I'll ask the Chamber probably to look at, it's tab 2. If the witness can

10 have it, and it's in the English version at page 10, and the last few

11 lines of page 10. We may be able to display this on Sanction. I'm very

12 grateful to Ms. Wee and indeed Ms. Edgerton for preparing the exhibits.

13 Just, please, this document, General Smith, and then we'll look at

14 the one. Perhaps it's highlighted.

15 A. Mine understanding -- I saw this document for the first time

16 yesterday. My understanding of this document is it's a translation of a

17 directive signed by Karadzic on the future strategic direction of the

18 Bosnian Serb forces, and it appears to have been the results of this

19 meeting at Jahorina.

20 Q. And the passage we can see at the foot of page 10 reads in respect

21 of the Drina Corps: "By planned and well-thought-out combat operations

22 create an unbearable situation of total insecurity with no hope of further

23 survival or life for the inhabitants of Srebrenica and Zepa."

24 And although I may not have asked Ms. Wee to prepare this, but if

25 you go over in the original to page 11, you, I think, see some

1 significance in the three lines at the top of page 11: "In case the

2 UNPROFOR forces leave Zepa and Srebrenica, the DK command shall plan an

3 operation named Jadar with the task of breaking up and destroying the

4 Muslims forces in these enclaves and definitively liberating the Drina

5 valley region."

6 Your comment, please, on those two passages and how they affected

7 your thesis.

8 A. The first extract, the last sentence of the first paragraph that

9 we were shown, "By planned and well-thought-out combat operations ..." and

10 then ending "... for the inhabitants of Srebrenica and Zepa," this I

11 understand to be the -- the instructions to so squeeze and compress, both

12 physically and in terms of a way of life, the existence of those enclaves.

13 I do not see it because of this -- the second reference you made,

14 the second paragraph, as an instruction to actually destroy them. They --

15 in the -- in that second paragraph, it -- the whole -- the whole

16 instruction in that paragraph is dependent upon UNPROFOR leaving. It is

17 only when the -- there is no reason for -- to keep the UN there because

18 the UN have gone is that those enclaves are to be destroyed and done away

19 with.

20 Q. Thank you. I erred when I said it was only two exhibits. I'm

21 going to ask you to look at three. The next one, please, is tab 3 but

22 very briefly. Your comment on tab 3 which is a directive for further

23 operations, again a document I think you've own seen recently, signed by

24 Mladic and dated the 31st of March. Your comment on it in general terms,

25 because I think it's a general comment that you can make.

1 A. Yes. This, if you like, is a demonstration of Karadzic and Mladic

2 working together. The first -- you can see the general directive by

3 Karadzic, and it's then carried on with more specific instructions by

4 Mladic to his forces, and a few days or weeks later -- I've got to look.

5 Yes, it's about three weeks later, he issues a subsequent order clarifying

6 or developing what the -- Karadzic had produced as the strategic

7 direction.

8 Q. Summary page 8, paragraphs 20 and 21, substantially covered in

9 your statement. Your visit to Srebrenica on the 6th of March revealed -

10 last line of paragraph 20 - on which some amplification - that every

11 movement in and out of the enclave was checked and monitored by the

12 Bosnian Serb checkpoint, and then this sentence, and there was "... the

13 sense of being under the direct control of the VRS was palpable."

14 Any further qualification for that and how general or

15 long-standing that sense of VRS control was?

16 A. It was deeply felt by the inhabitants of Srebrenica and by the

17 unit DutchBat and the UNPROFOR forces that were in the pocket. I think it

18 had been going on -- this was a developing sense that the longer you were

19 there the longer and deeper this feeling pertained.

20 Q. It may be a tangential point, but in a sentence, in your judgement

21 was the degree of VRS control over Srebrenica and the pockets properly

22 broadcast around the world to different capitals or was it information

23 that was for some reason or other not fully disseminated?

24 A. I do not think the circumstances in those enclaves, or to some

25 extent in the whole of Bosnia, was properly understood in capitals.

1 Q. You can amplify that, if asked, by anybody else.

2 Paragraph 21. At the same time as you were rotating positions

3 following General Rose, DutchBat was replacing a Canadian Battalion at

4 Srebrenica. Had they been able to get all their weapons and ammunitions

5 into the enclave or not?

6 A. No, they had not. I can't remember the precise shortages, but

7 there were shortages.

8 Q. Paragraph 29 is dealt with in your statement, your meeting with

9 Mladic on the 7th of March of 1995. As to paragraph 26, that is

10 effectively dealt with in your statement save perhaps for the end.

11 At this meeting, did Mladic express his views on the understanding

12 of and size of enclaves?

13 A. Yes. The -- this particular discussion started over a discussion

14 as to the position of the UN observation posts on the south and south-east

15 side of the Srebrenica pocket. Because of the positioning of these

16 observation posts, it was Mladic's opinion that the Bosnians had been able

17 to position their own lines so that they could interdict a road that was

18 important to the Serbs that ran on an east-west access between Zepa and

19 Srebrenica.

20 He, Mladic, wanted me to reposition the OPs so as to allow Bosnian

21 forces to drive the Muslims back and clear and allow the road -- better

22 access to the road for the Bosnian Serbs. I refused to do this, and in

23 this discussion it then became -- it was explained to me by Mladic that

24 the boundaries we were occupying or that existed for these enclaves were

25 not those that he, in his opinion, had agreed at the time of setting them

1 up, and he drew on the map, sketched on the map where he thought those

2 boundaries ought to be, the ones that he had agreed, and these were small

3 lozenges around the actual built-up areas of Srebrenica, Zepa, and

4 Gorazde.

5 Q. The exhibit formerly -- earlier tendered as Exhibit 546, tab 21,

6 is one you've reviewed. Does that accurately set out the meeting of the

7 7th of March?

8 A. That's tab 21.

9 Q. No, it's the earlier exhibit at the beginning of the binder and

10 it's Exhibit 546.

11 A. I beg your pardon.

12 Q. Tab 21, so it doesn't fall in the sequence of tabs.

13 A. I'm sorry. Yes, I have seen that, and yes, it does.

14 Q. Thank you. Paragraph 26 --

15 JUDGE KWON: Sorry to interrupt you. I'm not sure whether we

16 received the witness's statement which is numbered.

17 MR. NICE: I'm sorry if you haven't had a numbered statement.

18 JUDGE KWON: No, we haven't received it.

19 MR. NICE: I'm sorry. I will have that corrected as soon as --

20 THE INTERPRETER: Microphone for Mr. Nice, please.

21 MR. NICE: My oversight. We'll send one up for copying now.

22 Q. Paragraph 26 on page 9 of the supplement is dealt with in the

23 statement. That's your meeting with Mr. Akashi when you went to Pale.

24 Paragraph 28 is covered in your statement. Paragraph 30 -- I beg

25 your pardon, paragraph 30 is covered in your statement. Paragraph 31,

1 likewise, covered in your statement.

2 Does tab 4 of the exhibit that's before you set out accurately the

3 meeting -- the record of the meeting of the 5th of April, 1995?

4 A. Yes, it does. Yes. I recognise it.

5 Q. We move then to paragraph 32 in the summary on page 10. Meetings

6 in Sarajevo and Pale on the 20th of April, covered in your witness

7 statement and no need to go into those.

8 Further meetings between the 30th of April and the 1st of May,

9 covered in your statement in full. Perhaps worth observing in respect of

10 the meeting on the 30th of April, paragraph 34 of the summary. This was

11 where Karadzic is recorded as saying at one stage that if the

12 international community treated Bosnian Serbs like beasts in a cage, that

13 is how they would behave. Is that correct?

14 A. Yes.

15 Q. And have you reviewed tab 5 of the exhibit bundle? Notes of the

16 meeting of the 30th of April.

17 A. Yes, I have.

18 Q. Does that set out accurately what happened?

19 A. Yes, it does.

20 Q. Indeed we could find a passage in there where there's a reference

21 to humanitarian and UNPROFOR convoys being said to be commercial convoys

22 for the benefit of Muslims.

23 A. Yes.

24 Q. Paragraph 36 deals with following events in early May and is

25 covered in your statement.

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1 Paragraph 37 brings us to the 9th of May and your meeting then

2 with Karadzic. Covered in your original statement, as indeed is your

3 evidence that on the 16th and the 17th of May, serious fighting to the

4 north-east and south-east of Sarajevo took place; correct?

5 A. Yes.

6 Q. What about those tanks that were involved in the fighting on the

7 16th and 17th of May? Where were they firing from? What were they doing

8 that they shouldn't have been?

9 A. Well, they shouldn't have been firing because they were in the

10 weapon collection point. I can't remember the precise details, but the --

11 these weapons were either taken or these tanks were either taken from the

12 weapon collection point or manned and fired from within the weapon

13 collection point. These weapons collection points it must be understood

14 as quite wide areas and the weapons dispersed within them. It wasn't --

15 they weren't necessarily all in a hangar or something like that.

16 Q. And we've heard evidence about those weapon collection points

17 already, so we move to paragraph 40, covered in your statement. But at

18 40 -- which is your meeting with Karadzic on the 21st of May.

19 Paragraph 41. At that time, were you working or was UNPROFOR

20 working on the thesis that the Bosnians were increasing their activity

21 from the enclaves?

22 A. Yes. I -- when I described the thesis, I -- for brevity, I only

23 described the thesis from the point of view of the Bosnian Serbs, but the

24 thesis also included that it was therefore in the interests of the Bosnian

25 Muslims to conduct operations out of these enclaves so as to tie down as

1 much Serb forces as possible, and that appeared to be happening.

2 Q. Have you reviewed tab 6, and is that an accurate record of the

3 meeting of the 21st of May?

4 A. Yes, I have; and yes, it is.

5 Q. At this stage was Sarajevo being shelled on a regular basis by the

6 Bosnian Serbs?

7 A. Yes. It -- and this had been increasing, and from my memory, it

8 had calmed down a little from the situation around the 16th, 17th but it

9 had continued.

10 Q. What were the principal targets? Paragraph 42, page 12.

11 A. The -- generally, the Jewish cemetery, the PTT building and the

12 vicinity around there. The -- if you like, the front lines as well. And

13 then we would also get them, rounds coming in around the old stadium at

14 Zetra.

15 Q. Paragraph 43, page 13. Retaliatory shelling of Tuzla by the VRS.

16 Can you tell us a little bit about that?

17 On the 24th of May, did fighting flare up again, and did you take

18 a decision and issue an ultimatum?

19 A. Yes. We -- the shelling had continued during that month, and then

20 it became more intense during the 24th, and weapons -- further weapons

21 were taken from the weapon collection points, and at this point I issued

22 an ultimatum during, if I remember correctly, the evening of the 24th,

23 that if the weapons were not returned then NATO would be invited to carry

24 out airstrikes. The weapons were not returned, and on the 25th, a target

25 which was one of two bunkers in an ammunition dump near Pale was attacked

1 by NATO.

2 The response that evening was for the VRS to shell all the safe

3 areas. The shelling of Tuzla killed 71 people in the marketplace that

4 evening.

5 Q. Tuzla, a safe area?

6 A. Yes, it was.

7 Q. Meanwhile in Sarajevo, what was the position there, better, worse,

8 or about the same?

9 A. Well, that night it was --

10 THE ACCUSED: [Interpretation] Mr. May.

11 JUDGE MAY: Yes.

12 THE ACCUSED: [Interpretation] General Smith says the army of

13 Republika Srpska shelled the area, and in translation that is being

14 broadcast, an error was made and it was said that it was the army of the

15 Republic of Serbia. So please could that error be corrected.

16 JUDGE MAY: Yes. Very well.

17 Yes, Mr. Nice.

18 MR. NICE:

19 Q. Sarajevo, General.

20 A. The -- Sarajevo was also shelled, and the situation progressively

21 deteriorated, but it didn't -- we bombed a second time, and the particular

22 deterioration then occurred after that second bombing rather than after

23 the first.

24 Q. Moving on to the taking of hostages, paragraph 46 and following.

25 Can you give us in thumbnail outline the history of the taking of

1 hostages?

2 A. Yes, briefly. Almost immediately after the second airstrike, the

3 UNMOs close that were -- lived in a house close to the Pale headquarters

4 were seized and at least one, a Canadian, was chained to a bridge which

5 was thought to be a potential target, and this was broadcast on

6 television. I was rung up and threatened that if I didn't stop, he would

7 be -- have his throat cut. And at the same time, we began to receive

8 reports of other people being taken hostage in the Bosnian Serb areas.

9 Q. To what extent was the taking of hostages and using of them as

10 human shields widespread, and if so, what conclusions did you make as to

11 coordination?

12 A. There were some -- eventually there were some 400 people taken

13 hostage. I can't remember at this range the -- precisely how many were

14 taken in the sort of first tranche, but the seizure of hostages spread

15 beyond the immediate vicinity of Pale and it was clearly directed from --

16 the directed action across the complete command.

17 Q. Your witness statement deals with the contacts by phone you had

18 with Mladic, your assertions, his counter-allegations. Did he maintain

19 his right to keep these hostages and to use them in the way that you've

20 described?

21 A. I -- without referring back to the statement, my memory is that he

22 was intent on keeping the hostages and demanding that we ceased our

23 actions altogether.

24 Q. Bosnian troops disguised as French soldiers, dealt with in your

25 statement, as is the passage on the 28th of May where you had your final

1 conversation with Mladic, informing him of the breach of Geneva

2 Conventions in what he was doing. And does tab 7 summarise the document

3 you've reviewed, summarise the telephone conversation that you had with

4 him?

5 A. Yes, it does, yes.

6 Q. You refused further to negotiate with him. The pressure was

7 brought to bear on the accused in this case. That's dealt with in your

8 statement. Did you understand - paragraph 52 - that the accused did have

9 a role in recovery of the hostages eventually?

10 A. Yes. I'm -- it was clear at the time that that was going on.

11 Q. Tab 11, is that a document you've reviewed, and does that

12 constitute a letter of complaint you sent on the 26th of June to Mladic

13 about the shelling of the safe areas?

14 A. Yes, I have reviewed it, and yes, it does that. It is a letter of

15 complaint, protest even.

16 Q. Other events in June of 1995. Was shelling and sniping taking

17 place? What sort of regularity, if so?

18 A. At this range I have difficulty remembering -- yes, they were

19 taking place, and I have difficulty in remembering its regularity. I

20 think it -- I would use the word it was "normal." This had become the

21 background to life in Sarajevo.

22 Q. The ABiH attempt to break out of Sarajevo in June 1995 is dealt

23 with in your statement, as is the appointment of Carl Bildt in place of

24 Lord Owen to the European Union ICFY position. Did you have a meeting

25 with him in June?

1 A. Yes.

2 Q. Maintain contact with him. Then we come to the fall of Srebrenica

3 in July of 1995. You were on leave at the time. This is covered in your

4 original statement. The attack intensified in -- on Srebrenica

5 intensified on the 8th, 9th, 10th, and 11th of July. That also is covered

6 in your statement.

7 There are then some exhibits that you can produce but we'll deal

8 with them very briefly. Tab 13, have you reviewed that? Is that a code

9 cable dealing with the position on the 11th of July?

10 A. Yes, it's a code cable from the headquarters in Zagreb, an Akashi

11 code cable reviewing the situation.

12 Q. With the accused saying that he understood that it may be

13 necessary for close-air support to be used, stating that General Mladic

14 might not understand the difference between close-air support and

15 airstrike.

16 A. Yes.

17 Q. And warning of the possibility of Mladic reacting strongly.

18 A. Yes.

19 Q. Exhibit tab 14, is that another code cable for the 11th of July

20 that you've reviewed?

21 A. Yes.

22 Q. Was the accused made contact, was briefed on the situation, and

23 said that the Netherlands' soldiers in Serb-held areas retained their

24 weapons and equipment were free to move about?

25 A. Yes.

1 Q. And finally tab 15, a code cable for the same day, which includes

2 the passage that "The BSA is likely to separate the military-age men from

3 the rest of the population, an eventuality about which UNPROFOR troops

4 will be able to do very little." Does it go on to say that "The fact that

5 the Bosnian Serb Army will have practical difficulties controlling 40.000

6 people may mitigate against their desire to prolong or exacerbate the

7 plight of the Srebrenica population"?

8 A. Yes, I remember reading that. I can't find it at the moment, but

9 it's in here somewhere, I know.

10 Q. It's tab 15, and it's now on the screen before you.

11 We move to paragraph 58.

12 A. Yes.

13 Q. Which is your concern for the refugee problem that was developing,

14 and you covered that in your original statement, but have you reviewed tab

15 16, dated the 13th of July, a code cable dealing with the situation, which

16 sets out that there were approximately 5.500 people displaced at the air

17 base, that number being expected to rise, and that there were an estimated

18 6.000 people in Kladanj who will be going to Tuzla, many others to follow,

19 about 25.000?

20 A. Yes.

21 Q. And also an understanding that there were about 4.000 men of draft

22 age in Bratunac awaiting screening by the Bosnian Serb army, their fate

23 being of concern to everyone.

24 A. Yes. That I can -- I recognise the code cable, yes.

25 Q. Tab 17 is another document you've reviewed, dated the 13th of

1 July, setting out a meeting between you and Prime Minister Silajdzic on

2 the 13th of July. And does that contain this passage, that "Silajdzic

3 informed General Smith that the government had held an Extraordinary

4 Session of Parliament today and were about to release a ... list of their

5 demands. This would include a request for the UN to reinforce the Zepa

6 enclave. He stated that, firstly, Zepa was the immediate priority as it

7 had become apparent that it would certainly be the next target and that

8 Belgrade was actively involved and no longer bothered to conceal this

9 fact."

10 Paragraph 6 of the same document said: "Both the Prime Minister

11 and Minister Muratovic raised their concerns about the as-yet-unconfirmed

12 reports of atrocities in the Srebrenica area, in particular the rape of

13 young women in Vlasenica area and the murder of a busload of refugees."

14 Do you recognise that document?

15 A. Yes, I recognise that.

16 Q. And does that accurately set out --

17 A. Yes, it does, yes.

18 Q. And finally for exhibits at this stage, tab 18, a document dated

19 the 13th of July you've considered. The aftermath of the fall of

20 Srebrenica and the comment that the Bosnian Serbs clean -- cleansing

21 Srebrenica. What do you say about that, if anything?

22 A. I wrote this document. This is me at the end of -- or at some

23 stage during that day, I only arriving back in the late hours of the 12th

24 of July, sending off my views as to the position we -- as to how we should

25 approach the future, and I'm -- in there, I am producing the -- in the

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1 situation, and I'm saying that the Bosnian Serbs are cleansing Srebrenica,

2 by which I mean - and I'm using the word as it was being used at the time

3 - the process of separating the men of military age from the rest of the

4 population, and this was the normal behaviour when people captured a

5 village or whatever during this war and in that part of the -- and in that

6 part of the Balkans.

7 Q. Summary page 17, paragraph 60 to 67 to be given live, and if you'd

8 perhaps try and deal with it from recollection, referring only to any

9 other documents if you need to and on request because it concerns the

10 accused directly.

11 Was there a meeting on the 14th of July between yourself, the

12 accused, and Carl Bildt in Belgrade?

13 A. Yes, there was, yes. I was hesitating over the date. Yes, there

14 was.

15 Q. Was there also a meeting with Mladic?

16 A. Yes. Mladic was there with Milosevic when we arrived.

17 JUDGE MAY: Is that date right, the 14th? I put a reference to

18 the 15th.

19 THE WITNESS: I was hesitating because I thought it was the 15th.

20 MR. NICE: My error. It is the 15th. The 15th.

21 Q. Tell us about the meeting. How did it start and --

22 THE ACCUSED: [Interpretation] If I may be of assistance, perhaps

23 Mr. Nice's service, which is rather large and effective, could perhaps

24 find the document. There is the Akashi report to Kofi Annan dated Zagreb,

25 the 17th of July, 1995, and it says: "For Annan, United Nations New York,

1 Information on Stoltenberg ICFY Geneva from Akashi, UNPROFOR main

2 headquarters Zagreb, number Z-1175." The date is the 17th of July, 1995,

3 and the reference is the meeting in Belgrade.

4 JUDGE MAY: Yes. Yes. And what is the date, if there's a point?

5 What is the date that you say from that document?

6 THE ACCUSED: [Interpretation] That document, the date is the 17th

7 of July.

8 JUDGE MAY: The date of the meeting. What is the date of the

9 meeting?

10 THE ACCUSED: [Interpretation] And the date of the meeting is

11 Sunday, the 15th of July.

12 JUDGE MAY: Yes. Now, let's go on.

13 MR. NICE:

14 Q. And was the meeting at --

15 THE ACCUSED: [Interpretation] And it is Akashi's report.

16 MR. NICE:

17 Q. Was the meeting outside a hunting lodge at Belgrade?

18 A. Yes.

19 Q. We can have the full people attending if necessary. Did the

20 meeting split into military and political groups?

21 A. Yes, it did.

22 Q. You were in the military group. What happened in that?

23 A. We started with everyone together, and very soon after we started,

24 Mr. Milosevic directed Mladic to go with me and sort out the recovery of

25 the Dutch Battalion and access to prisoners and so forth, and we went off

1 separately and held our meeting to discuss that.

2 Q. In what terms did the accused instruct Mladic and with what

3 apparent authority?

4 A. They were -- he was clearly the superior of Mladic. He referred

5 to Mladic by his Christian name and Mladic was deferring to him.

6 Q. The meeting you had with Mladic, in summary, how did that

7 progress?

8 A. Slowly and in a rather combative manner, but we eventually arrived

9 at a document which I believe you will -- you have in the pack, which

10 became the basis of our subsequent meetings.

11 Q. It's tab 20, I think, in the binder. Indeed it identifies the

12 date of the 15th of July as the meeting.

13 A. No, I was referring to the one where -- which Mladic and I signed

14 at Han-Cram, which I think is --

15 Q. 21.

16 A. 21.

17 Q. And you've reviewed both of those documents?

18 A. Yes, I have.

19 Q. You say it was combative. This is the 17th of July --

20 A. No, 15th.

21 Q. Sorry, the 15th of July but it was combative. Anything said

22 directly about what had been happening at Srebrenica or was there any

23 knowledge at that stage of the number of deaths at Srebrenica or anything

24 of that sort?

25 A. No. I was still working on the basis that we had a substantial

1 number of men to see, that at least 2.000 were in Bratunac, and we -- and

2 we couldn't account -- we didn't know where to look for the balance, and

3 that's why we were demanding access for the ICRC and the UNHCR to these

4 people.

5 Q. Just in general, looking both forward and back if you can, at any

6 stage was Mladic to make any acknowledgement about the number of deaths in

7 Srebrenica or to express shock or any other emotion about what in due

8 course it was known may have happened there?

9 A. No, he didn't, and I -- at this meeting, although for a more

10 general reason, and then subsequently I made this point I'm about to tell

11 you about, on other occasions when it was clear that these massacres had

12 taken place, I was trying to impress upon him that the actions he was

13 taking were damaging his position and that of his people, because they

14 were being viewed and putting him in a very bad light. And he had no

15 understanding, in my view, of the effect he was having on the world by the

16 actions he was taking.

17 Q. In the meeting with you, did he refer to the vulnerability of his

18 own mother, I think?

19 A. Yes. Apparently, according to him, a bomb, when we bombed Pale,

20 had fallen within a kilometre of her.

21 Q. We've dealt already with paragraph 65 of the summary where you've

22 explained your view of the accused's control over Mladic. You make

23 something that's not in your statement, an observation about the exercise

24 of power generally in the Balkans and the degree to which subordinate

25 authority holders have independence. Can you just explain that in a

1 couple of sentences.

2 A. I came to the view quite early on that power was exercised in the

3 Balkans as a society in the way that I called all power was absolute, and

4 whoever had it exercised it absolutely. If you were running a roadblock,

5 then you were all-powerful, and if you demanded goods, money, tax, or

6 whatever, that was yours to take. Your superior only became involved if

7 the consequence of this affected his affairs and doings, and he would only

8 intervene in your exercise of power on that account.

9 Q. How if at all does that view of yours feed into your judgements

10 about Milosevic and Mladic from what you were told and what you saw?

11 A. I think that was the relationship. Mladic had his own place to

12 exercise power and to do so, and only when this interfered with the

13 business of Mr. Milosevic and Serbia did he get interfered with or

14 controlled.

15 Q. Did Mladic offer you an explanation about the fall of Zepa?

16 A. He told me that it had fallen long before it did, but the reason

17 for him attacking it, we never discussed it, and it fitted with what I'd

18 been expecting him to do anyhow.

19 Q. I should have -- I jumped over a couple of passages. You've dealt

20 in your statement with the agreement on the evacuation of DutchBat.

21 You've reviewed Exhibit 21, which we've already considered. And I should

22 have got you to make clear that Mladic had reported to you that Srebrenica

23 was finished in a correct way as you set out in your original witness

24 statement?

25 A. Yes.

1 Q. We come to the fall of Zepa. Did he show you a map at the time he

2 was dealing with that?

3 A. Yes. And he was endeavouring to get a -- the local

4 representatives to deal with him at the time, if I recall correctly.

5 Q. You had a further meeting with Mladic on the 25th of July at

6 Han-Cram; is that right?

7 A. Yes.

8 Q. Covered in your statement. You spend four hours with him, and

9 that's also dealt with in your statement.

10 You've reviewed an exhibit, tab 22, which sets out a record of

11 that meeting.

12 A. Yes. Yes. And that's a record of it. Yes, it is.

13 Q. Included in that, I think, you met -- in that meeting you met

14 Bosnian officials, ICRC staff, and some UN civil affairs staff?

15 A. Well, what happened is I met them on the road, and I was trying to

16 get these people into Zepa in order to be sure that we weren't about to

17 have another Srebrenica.

18 Q. And I think -- did you form a view as to whether you were going to

19 be able to resist cleansing of the enclave?

20 A. We -- we were not going to be able to prevent the evacuation of

21 the people in the enclave. The important thing was to get them out

22 safely. There was a -- the -- whether or not the armed people in the

23 enclave at that stage were going to be able to extract or they would go

24 off into the hills wasn't clear. Eventually they went off into the hills.

25 Q. Did you make efforts to get them registered as well?

1 A. Yes. Registered the people who had been taken so that we could

2 account for them.

3 Q. You had a further visit to Zepa between the 26th and 29th of July

4 covered in your witness statement. And Mladic was keen to exchange

5 prisoners, also dealt with in your witness statement. It was an

6 all-for-all exchange, I think, wasn't it?

7 A. Yes. The -- I was -- became something of a negotiator at that

8 stage of carrying the message between the Bosnian government and Mladic.

9 Q. Deal with what else happened in Zepa, the Bosnian army's refusal

10 to surrender in your statement. By the 30th of July, Mladic's attention

11 had been diverted from Zepa by the start of the Croatian offensive in

12 Western Bosnia.

13 A. Yes.

14 Q. You noted at the time, so far as Zepa was concerned, the

15 appearance of some different organisation or force; correct?

16 A. Yes.

17 Q. Tell us about that, please.

18 A. The -- the troops actually conducting the assault into Zepa were

19 clearly of a different organisation to those more regular Bosnian Serb

20 soldiers on the outer cordon. These men wore black uniforms. I don't

21 recall the colour of their head gear. Many had Serbian army flashes on

22 their sleeves.

23 Q. I think you also noticed something about the vehicle that Mladic

24 was using at one stage.

25 A. Well, there was two captured vehicles. One was an Ukrainian APC,

1 still in its white colours. The other was a captured British APC, a Saxon

2 that had been painted camouflage, and it came from Gorazde when hostages

3 were taken there in May.

4 Q. Finally on the black uniformed groups, did you notice them once or

5 more than once? Did you notice their disappearance and infer where they'd

6 gone?

7 A. They were there all the time until the my last time of going there

8 when Mladic had also gone because of the break out of fighting in the --

9 on the other side in Western Republika Srpska, and I deduced that these

10 forces had gone with Mladic to reinforce the situation there.

11 Q. You deal, indeed, with further material on that topic. Your

12 meeting with Mladic at Mrkonjic Grad on the 31st of July in your

13 statement?

14 A. Uh-huh.

15 Q. And I think your view that Zepa was not high on Mladic's agenda

16 from this time or at this time is dealt with at paragraph 101 of your

17 original statement. And you've reviewed tab 23, which sets out the record

18 of your meeting of the 31st of July?

19 A. Yes, I have, yes. That is the record.

20 Q. August 1995 you cover in your original statement both as to the

21 general position, the Lake/Holbrooke initiative, your meeting with Mladic

22 on the 22nd of August at Borika near Zepa to discuss the withdrawal of

23 British and Ukrainian troops; correct?

24 A. Yes.

25 Q. And then paragraph 82 of the summary, your original statement

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1 deals with your tackling Mladic on Srebrenica, the allegations and the

2 atrocities, and this is where you, as you've told us already, found that

3 he didn't understand the world perception of what was going on.

4 A. Yes.

5 Q. You raised with him the Bosnian Serb refusal to allow UNPROFOR to

6 use the route to Sarajevo airport.

7 A. Yes.

8 Q. What happened in respect of that and why, do you think?

9 A. The -- my memory is that he then said he'd lift the restrictions.

10 The -- and this, as it were, was something of a quid pro quo for the UNHCR

11 help that we'd got across to deal with the refugees that were flooding

12 into Banja Luka and so forth.

13 Q. Two more very short topics, although each of them not necessarily

14 small in significance. First, the foreseeability of the massacre at

15 Srebrenica. You told us that you -- this is page 23, paragraph 84. You

16 told us that you were on leave when the attack on Srebrenica began.

17 You've told us about your original thesis and your expectation of a

18 squeezing on the safe areas.

19 So far as you were concerned, were you surprised or otherwise when

20 you learnt of the scale of the massacre?

21 A. I was -- was extremely surprised. I had not expected that to have

22 happened at all.

23 Q. Did it fit with, not fit with your thesis or does it constitute a

24 separate event?

25 A. Well, I think it is a separate event. The thesis was sufficiently

1 accurate to suppose that this squeezing would take place, and indeed that

2 was the basis of the interpretation of the events that led up to the

3 collapse of the pocket.

4 In the aftermath, you get these murders, and that was not -- I

5 just did not consider that that would happen.

6 Q. Page 24 of the summary, paragraph 89. Just yes or no, were you

7 able to form a view about whether Milosevic had any knowledge after the

8 event of the killings at Srebrenica? Just yes or no to that.

9 A. Yes, I did form --

10 Q. The question is how were you able to form a view before I invite

11 you to offer it to the Chamber.

12 A. Because of the meeting that took place on the 15th of July, there

13 must have been -- he must have understood - and he had Mladic there - they

14 must have known what had gone on.

15 Q. Thank you. The last topic, Markale II as it's described, that is

16 the mortars going into the old town on the 28th of August and the killing

17 of the 37 and wounding of 88 people outside the Markale marketplace.

18 Was there an investigation into that?

19 A. Yes.

20 Q. The nature of the investigation? Who caused it to happen?

21 A. The -- the -- any mortaring, any shelling, the UNMOs automatically

22 carried out an investigation and recorded the data they collected. This

23 was of such significance that particular attention was paid to this

24 particular attack, and because I wanted to be absolutely sure that all the

25 data had been collected, I had a second iteration of this investigation in

1 which a -- my senior intelligence officer was instructed to collect all

2 the information available. He didn't exactly carry out the investigation

3 himself; he assembled all the data, and it was on the basis of that that I

4 came to my decision.

5 Q. Your decision was?

6 A. That beyond reasonable doubt these rounds had come from the

7 Bosnian Serb positions.

8 Q. Can you identify the elements of the investigation or the report

9 following the investigation that led to your forming that conclusion.

10 A. The crater analysis gave a direction. The -- and the nature of

11 the weapon systems. The observation post reports, whether they'd heard

12 weapons fired or not, told us whether they'd been fired or not from within

13 the siege as opposed to without. There was an acoustic system which was

14 also interrogated to see whether they'd picked up anything in the city.

15 It had not. And then there was the radars, and they too, by negative

16 information, you were able to exclude certain possibilities.

17 While no one had actually seen the mortars fired, equally they

18 hadn't seen any of the other evidence of it being fired from inside of the

19 siege. On that basis, I came to that conclusion that this had been fired

20 from outside the siege.

21 Q. I think you've reviewed two exhibits, tabs 24 and 25 covering

22 this. One a code cable from the office of the commander to the HQ UNPF in

23 Zagreb, the mortar incident report?

24 A. Yes.

25 Q. And at tab 25, a document headed "Sarajevo Firing Incident." Any

1 comments you want to make on those?

2 A. Yes. The -- the -- if I remember how it was done, the bureaucracy

3 of it, the first document is the -- is collecting all together the various

4 reports, the UNMOs, reports and so forth which are annexes to that first

5 report, and the subsequent one is the memoranda from the intelligence

6 officer, Powers, where he pulls together all these reports under the

7 one -- under the one cover and presents them to me.

8 Q. As summarised, your tour of duty ended in December. But that's

9 all I wish to ask you. You will be asked some further questions. Thank

10 you very much.

11 JUDGE MAY: General, we're going to adjourn now for 20 minutes.

12 Could I remind you, as we remind all witnesses, not to speak to anybody

13 about your evidence until it's over. If you would be back in 20 minutes,

14 please.

15 THE WITNESS: Right, Your Honour.

16 JUDGE MAY: We will adjourn.

17 --- Recess taken at 10.27 a.m.

18 --- On resuming at 10.55 a.m.

19 JUDGE MAY: Yes, Mr. Milosevic.

20 THE ACCUSED: [Interpretation] Mr. Nice needed an hour and a half

21 just to skip through all these documents. I do not believe that I can

22 cross-examine this witness within the rest of the time today, and I don't

23 think that General Smith could not come perhaps again.

24 JUDGE MAY: More precisely, the Prosecution took an hour and a

25 quarter rather than an hour and a half. You've got the rest of the day,

1 so let's see what progress we can make. I advise you not to waste any

2 time with argument and the like.

3 THE ACCUSED: [Interpretation] I have no intention of wasting time,

4 Mr. May.

5 Cross-examined by Mr. Milosevic:

6 Q. [Interpretation] Let us begin with what the examination-in-chief

7 ended by Mr. Nice and which General Smith commented on. Namely, last

8 night I received a document in accordance with the practice for me to be

9 given documents at the last moment. It doesn't have an ERN number. It

10 just says the 8th of October, 2003, and in the accompanying letter in

11 connection with witness Rupert Smith, pursuant to Rule 68, information

12 report, information provided by Brigadier J. Baxter of the British army to

13 Mark Ierace, et cetera. It refers to Markale, the shelling incident, on

14 the 28th of August, 1995.

15 I don't know whether you have that document.

16 JUDGE MAY: No. I don't know what you're talking about.

17 Mr. Nice, can you help us, please?

18 MR. NICE: Yes. It was a document provided under our wide

19 comprehension of Rule 68 and is indeed an information report provided by

20 Brigadier Baxter of the British army to officers of the Office of the

21 Prosecutor. I'm not sure if it's document you want. I'm sure if it

22 becomes material, we can copy it and make it available to you.

23 JUDGE MAY: Yes, I think it should be done.

24 Yes, Mr. Milosevic. You can ask some questions.

25 Certainly, Mr. Nice, the witness should have a copy of it.

1 THE WITNESS: Thank you.

2 JUDGE MAY: Yes. The witness has a copy, Mr. Milosevic.

3 MR. MILOSEVIC: [Interpretation]

4 Q. General Smith, he says: "My tour of duty was January to November

5 [In English] 1995. I was MA to Smith throughout." MA, military

6 assistant, I suppose.

7 [Interpretation] And at the end of that first paragraph which is

8 headed "In relation to the Markale shelling incident of the 28th of

9 August," he says: "[In English] My original thought at that time was that

10 this was two different attacks from two different locations - from two

11 different directions, one from inside the lines."

12 [Interpretation] And then he says: "[In English] When we went

13 back to UN headquarters there was initial talk of the killing round being

14 fired by the Bosnians. The information from the French was that the round

15 could have been fired from within the lines. This was from the first

16 analysis of the UNMOs and the French. It did not appear from verbal

17 reports that there had been two attacks because the rounds were said to be

18 within seconds."

19 [Interpretation] Then in the next paragraph, it says, in the third

20 line: "Considering the reports of the UNMOs and of the Sector Sarajevo

21 French engineers, [In English] we were troubled at the lack of correlation

22 between the information reported."

23 [Interpretation] And at the end of the paragraph mention is made

24 of the fact that you designated Colonel Powers to investigate. And at the

25 end of the paragraph, it says: "Powers provided a subsidiary report [In

1 English] that afternoon that became the basis for the general's

2 decisions."

3 [Interpretation] And then on page 2, in the fourth paragraph, it

4 says: "[In English] The UNMOs reported one thing and the French engineers

5 something else."

6 [Interpretation] And then in the next paragraph: "[In English]

7 There were three opinions: The UNMOs, Sector Sarajevo (French engineers)

8 who had access to the Cymbelline" - [Interpretation] I don't know what

9 that means - "the OP reports, and UNPROFOR." Cymbelline.

10 JUDGE MAY: I'm going to interrupt you. The general should have a

11 chance to deal with all this, because if we go too far, it will be

12 impossible for a witness to be able to answer. We will return to the

13 meaning of OPs and the like.

14 General, can you comment on the statement, as I understand it to

15 be, which was made by the brigadier, or his comment in the statement,

16 about the initial reports and the reports from the French, and then we'll

17 come on to the reports of the UNMOs and the French engineers.

18 THE WITNESS: Yes, I can. I've only got on to the second page of

19 this document, so I'll get that far.

20 The -- as I said before we adjourned, the UNMOs would have done an

21 investigation as a matter of course. The responsible sector commander --

22 the UNMOs were a separate organisation, and the Court may know this, but

23 reporting direct to Zagreb. They were not under my command, although they

24 had a liaison officer and I knew what they were saying to Zagreb.

25 The Sector Sarajevo, who is the responsible commander for the

1 vicinity, would have also carried out investigation and would normally

2 have done this together with and in cooperation with the UNMOs.

3 Because there was confusion in the reporting and I needed an

4 answer, I needed to know who had perpetrated this, I directed that my own

5 staff officer, Colonel Powers, to carry out a further investigation and to

6 gather together all these reports so that we could reconcile them.

7 JUDGE MAY: The Court has now got a copy of what's described as an

8 information report.

9 The other matter you can help us on, General, is the OP,

10 observation posts.

11 THE WITNESS: Yes. Yes. And Mr. Milosevic is correct; an MA is a

12 military assistant. He is the senior personal staff officer to a

13 commander, and Colonel Baxter, as he was then, fulfilled that role at that

14 time for me.

15 JUDGE MAY: Yes.

16 MR. MILOSEVIC: [Interpretation]

17 Q. Then he says: "My recollection is that UNMOs report was adamant

18 that there were two firing points [In English] Theory, but the UNPROFOR

19 report thought that it was one."

20 [Interpretation] And then in the next paragraph but one, it says:

21 "The deputy commander of Sector Sarajevo (a Russian colonel) -" then

22 there's a question mark there and I don't understand why - "publicly

23 claimed the Bosnians had fired the killing round. [In English] UNHQ said

24 we needed further investigation as the deputy commander had gone public

25 and the matter had to go before the Security Council."

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1 [Interpretation] And then next it says: "At this time, there was

2 almost a mutiny. [In English] UNHQ forced the need for the report on us

3 because of the press interest encouraged by the Serbs. The deputy

4 commander went on TV. He insisted that it could not have been the Bosnian

5 Serbs. He resigned as a result of the position that he took."

6 JUDGE MAY: Pause there. General, is that correct? Can you help

7 as to that?

8 THE WITNESS: The thing that I'm missing from this report is a

9 sense of chronology, and my memory, and it's only that, is that I had come

10 to my decision and we were already acting on it when we're being asked to

11 render further reports as a result of the sector Sarajevo's deputy

12 commander, who was a Russian colonel, had said what he'd said on

13 television.

14 MR. MILOSEVIC: [Interpretation]

15 Q. And then in the last paragraph on that page, it says: "Almost

16 immediately after the attack [In English] Admiral Smith --"

17 [Interpretation] it's the same name but he was commander of the southern

18 sector of -- "turned the NATO key." He turned the NATO key for bombing.

19 There were two keys, one with the UN, the other one with NATO, and the

20 NATO key was turned by this witness, General Smith.

21 Isn't that right, General?

22 A. I did not turn the NATO key, no. I turned the UN key.

23 Q. Yes. Admiral Smith turned the NATO key, and you turned the UN

24 key; is that right?

25 A. That is correct. What is not correct, in my opinion, is that he

1 did it almost immediately after the attack. I'd have to go and find out

2 the actual, but I'm sure it's on the record somewhere. It happened --

3 there was discussion as to who do it before Admiral Smith turned his key,

4 in my memory.

5 Q. Actually, Admiral Smith, the expression being "turned the key," he

6 actually decided that the bombing start even before he had a precise

7 report as to who had done it. Isn't at that right, General Smith?

8 A. No, I don't think that is right.

9 Q. And the decision for you to turn the key was yours. And then it

10 says: "Mladic and Smith" - Smith this time being you - "had a phone

11 conversation. Mladic promised to investigate, and wanted a joint

12 investigation of the UN and the Serbs. [In English] This forced a quick

13 decision."

14 [Interpretation] And then it says: "As to legitimate military

15 targets within the confrontation lines, there were no static facilities,

16 however, the ABiH maintained a mobile mortar which would be driven into

17 position, fired, and moved on. ... [In English] The Serbs complained quite

18 a lot about these mobile mortars and about us telling them not to fire at

19 these mortars."

20 [Interpretation] And then he says: "[In English] Serb attacks

21 would sometimes be a 'cause and effect' phenomenon; in response to an

22 incident somewhere on confrontation lines, they would reply in force.

23 Bosnians killed two people at a funeral or wedding the day before.

24 Indeed, I cannot recall a Serb attack which did not have its genesis in

25 response to something linked to the ground. For example, I recall an

1 attack explained by the Serbs as the ABiH attacked in Bihac so the Serbs

2 responded to be -- by shelling Tuzla."

3 JUDGE MAY: Where are you reading from, Mr. Milosevic?

4 THE ACCUSED: [Interpretation] Page 3, first, second, third --

5 fourth paragraph.

6 JUDGE MAY: Yes.

7 THE ACCUSED: [Interpretation] I received it in the original in

8 English.

9 MR. MILOSEVIC: [Interpretation]

10 Q. Then it says in the next: "[In English] Markale attack seemed

11 unprovoked, did not seem linked to anything else."

12 JUDGE MAY: Very well. The general can deal with that comment, if

13 he wishes, of course.

14 Is there anything you'd like to add to that, General?

15 THE WITNESS: I don't remember if there was a linking effect. It

16 is true there was usually -- you could usually follow some cause and

17 effect somewhere. I don't remember if there was an obvious one or not on

18 this occasion at all.

19 MR. MILOSEVIC: [Interpretation]

20 Q. And then the last sentence in the next paragraph says: "In the

21 days following the UNMOs said it was difficult to tell who was

22 responsible."

23 And then let me skip over a paragraph to save time. The next one

24 says: "[In English] There was significant American pressure through NATO

25 to begin bombing as soon as possible. French had grave reservations about

1 the bombing taking place - delicate position. Smith consulted with Sector

2 Sarajevo but they would not have known he was going to turn the key."

3 JUDGE MAY: Yes. General, perhaps you can deal with that

4 paragraph, the reported views, as they seem to be, of Brigadier Baxter.

5 THE WITNESS: I don't -- I don't recall it in quite -- with quite

6 the sense of that paragraph. Yes, there was questions from NATO. I don't

7 recall any -- this being of particular American flavour, although clearly

8 the Americans are in NATO. There was nothing at the time, as I remember

9 it, from the American embassy, and normally when you knew you were -- NATO

10 was being used by the Americans in those cases, then you got it from the

11 American embassy as well as through NATO.

12 Nor do I remember any more than the argument that has been

13 disposed here. We had conflicting views. I was needing to, as I came to

14 a decision myself, reconcile these reports.

15 I don't remember the French being -- having the reservations as

16 laid out in that position. They had produced a report, and that was their

17 view at the time, rather than it was quite as strongly put in that

18 paragraph.

19 MR. MILOSEVIC: [Interpretation]

20 Q. Then in one of the following paragraphs it says: "G2 reports to

21 the Chief of Staff, who was brigadier - he was with Powers when he briefed

22 Smith - I produced the report because it had become a political issue.

23 [In English] The British SNCO was only the technical advisor. I recall

24 almost protesting having to sign off on the report - being put in a

25 position to do this."

1 The last sentence in this report says: [In English] "... in my

2 view. When I wrote the report there was still doubt in my mind."

3 JUDGE MAY: Just read on. If we are going to do this, you must

4 read the whole paragraph.

5 "What convinced me was the fuse furrow." Perhaps, General, you

6 can help us with that. This gentleman is saying he was equivocal. There

7 was doubt when he wrote the report, which of course is the report which we

8 have, which we've got in our documents.

9 THE WITNESS: I believe --

10 JUDGE MAY: I think that's right.

11 THE WITNESS: -- that's what we're talking about.

12 JUDGE MAY: "What convinced me," he says, "was the fuse furrow."

13 Since he's not here to speak about it himself, perhaps you can interpret

14 that.

15 THE WITNESS: When a -- let's just deal with a mortar round hits

16 the ground, it comes in at a fairly -- usually at a fairly steep angle.

17 It's -- the leading point is the fuse. And you get a crater shape that

18 looks a bit like a bat or an outline of a bat, and if you -- with the

19 shrapnel being driven down from the inside the narrow angle of the

20 vertical -- from the horizontal, where the round has come in is a dense

21 hole, then you get the bat wings from the side of the round where it's

22 exploded and the shrapnel going out more or less horizontal with the

23 ground and then you've got the bit, as it were, on the upside of the slope

24 as the round has come in and has gone up in the air and you don't get that

25 mark on the ground.

1 And on the leading edge of that there is a very thin edge which is

2 called a fuse furrow. And if you want to get a bearing, a direction from

3 which this round has come from, then you examine the fuse furrow and

4 follow the fuse furrow down into the ground and lay a stick on it and so

5 forth, and then you can start to work out where this round might have come

6 from, and it would have been that analysis that was convincing of him, and

7 I believe that had been carried out by either the UNMOs and/or the British

8 artillery NCO that worked for General Powers.

9 JUDGE MAY: Perhaps you can help us with this: When you were

10 faced with this problem, obviously, as it says here, you were under

11 pressure and had to make a decision, but nonetheless it also says that it

12 was all done in a calm yet on-the-hoof way, which I take to mean that it

13 was done rapidly.

14 Just a moment.

15 It was all done rapidly. Was there any reason why you came to the

16 conclusion you did, that it came from the Bosnian Serb side? Were you

17 anxious to make a finding in that way or were you fairly open, did you

18 want to get to the bottom of it?

19 THE WITNESS: No, I approached the problem, and I had these

20 conflicting reports, but -- open-mindedly, but I needed the evidence

21 before me. So we gathered it all up, and that was the process of Powers

22 getting it together, he assembled it, I was briefed, but essentially I

23 made my own judgement. And as I said right at the beginning, I came to

24 the view that beyond reasonable doubt this round had been coming, or these

25 rounds had come in from outside the defended locality.

1 JUDGE MAY: Yes, Mr. Tapuskovic.

2 MR. TAPUSKOVIC: [Interpretation] Your Honours, I don't know

3 whether it has been correctly interpreted. You asked the witness whether

4 he was under pressure, and I understood from this document that

5 Mr. Slobodan Milosevic read out and which he is discussing that Baxter was

6 under pressure to sign that document when he signed that document, rather

7 than the witness.

8 JUDGE MAY: Yes. Yes, Mr. Milosevic. Just to clarify that since

9 Mr. Tapuskovic has raised it, General, did you put or did anybody put

10 Mr. Baxter under any pressure to sign the document? It's what seems to be

11 alleged. I don't know --

12 THE WITNESS: I don't recall, and my relationship with my MA was

13 such that if he felt I was putting pressure on him, he would have told me

14 that he was under any pressure from me to sign the document at all.

15 JUDGE MAY: I don't think that the suggestion is supported by the

16 document in any way. "Because of the circumstances," it says, "and

17 political pressure, Smith had to exercise his judgement quickly." That's

18 the point that's made.

19 Yes, Mr. Milosevic.

20 MR. MILOSEVIC: [Interpretation]

21 Q. This will be the subject of the testimonies of some other

22 witnesses too, but for the time being, may I draw your attention to yet

23 another report.

24 It does have an ERN number, Mr. May. 030899994. It is an

25 information report, information provided by General Smith in August 2003.

1 Mike Harris prepared this, four star general, and Richard Philipps. I'm

2 not going to deal with these other matters. For the time being, I will

3 just deal with what has to do with Markale.

4 On page 3 of this report - 996 are the last numbers of the ERN

5 number, by the way - the UN observers who were involved in the first

6 investigation were not under my command. That is what you say in the

7 paragraph around the middle.

8 And then on the next page, in the last long paragraph, the third

9 one from the bottom: "I personally did not examine the craters. There

10 was not unlimited time for reaching a decision. I had to reach a

11 decision, deciding to act on the basis of something that I was convinced

12 of to an extent. Therefore, I did not accept the first report."

13 So you did not accept the first report, the one that said that the

14 shell had been fired by the Muslims. Is that right, Mr. Smith? You

15 accepted a report which was made on your instructions by Colonel Powers

16 from your side?

17 A. I can't find the reference you're directing me to in the document

18 I've been given, but as I've explained, I was receiving conflicting

19 reports, so I asked Colonel -- that my staff bring them all together so I

20 could arrive at a judgement.

21 Q. You had conflicting reports, and you drew the conclusion that the

22 Serbs should be bombed; is that right, General?

23 A. I did not draw the conclusion on the basis that I had conflicting

24 reports. I wished to reconcile the reports and then I made the judgement.

25 Q. All right. Just one more document that I'd like to draw your

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1 attention to. I have it here. I received it from the other side as well.

2 The page has an ERN number, 03082206. And I'm just going to read out one

3 sentence. It says "Comment" --

4 JUDGE MAY: Before you do, you're going to tell us what it is that

5 you're reading from.

6 THE ACCUSED: [Interpretation] To tell you the truth, it cannot be

7 identified very precisely because I got an excerpt, but I did get it from

8 the other side. The day, hour registered here, type of fire, source of

9 fire, and then there are many things that are unknown, unknown, unknown,

10 et cetera, et cetera, and then -- this is page 19, rather, of this longer

11 report that I was given this excerpt from.

12 MR. TAPUSKOVIC: [Interpretation] Your Honours, if I may be of

13 assistance, I think that this is in tab 24, which has been attached to

14 what we are dealing with now.

15 MR. MILOSEVIC: [Interpretation]

16 Q. I would just like you to make a comment with regard to this one

17 sentence. "Comment: Military observers of the UN cannot confirm which

18 one of the warring parties fired the round."

19 JUDGE MAY: Let's see if we can track this down.

20 Mr. Nice, can you help us?

21 MR. NICE: Not immediately. We're pursuing it.

22 THE ACCUSED: [Interpretation] 03082206 that's the ERN number and

23 towards the end it says "Comment," and that's the only thing that it says

24 there. "Military observers of the UN cannot confirm which one of the

25 warring parties fired the round."

1 MR. TAPUSKOVIC: [Interpretation] Your Honours, it is in tab 24 for

2 sure.

3 MR. NICE: Page 14 of tab 24, in handwriting, and it's about a

4 third of the way down the page.

5 JUDGE MAY: Page 14, tab 24? Well, I don't see any handwriting.

6 THE ACCUSED: [Interpretation] You mean handwritten. I can't --

7 MR. NICE: Handwritten page numbers.

8 JUDGE MAY: Well, handwritten page numbers. Yes. We can find

9 that here, can we? Perhaps you can tell us where it is on the page.

10 MR. NICE: Quarter of the way down the page, "Comment."

11 JUDGE MAY: Yes.

12 MR. MILOSEVIC: [Interpretation]

13 Q. So, General Smith, this is what it says here: "UNMOs are unable

14 to confirm which warring faction fired the rounds." And that was used as

15 a pretext for bombing the Serbs. What do you say to that?

16 A. It wasn't the pretext for bombing the Serbs. This report is the

17 UNMO report and only their report at -- at five minutes past midnight on

18 the 29th of August. The investigation is continuing, as I've described.

19 Q. All right. On page 23, you say in paragraph 4 of your statement,

20 since you say that the Serbs did it, and then you say that 1300 hours on

21 the 28th of August you spoke to General Mladic on the telephone for ten

22 minutes. And you informed him that for the time being, all the facts that

23 you have available point to it that this was an attack launched by his

24 army.

25 So what were the facts available at the time?

1 A. The -- I don't recall the precise facts at that time. We've

2 already had the initial reports from the UNMOs, and we're gathering the

3 other information, but I couldn't tell you at this range precisely what

4 was to hand and available to me when I had that telephone call.

5 Q. All right. And at 1823 hours on the same day, did General Mladic

6 report to you that the results of his investigations had concluded that no

7 forces of the army of Republika Srpska had been involved in the attack on

8 the Markale market?

9 A. If that was the time of that telephone call, then we certainly had

10 a telephone call in which he told me that, yes.

11 JUDGE KWON: It is paragraph 111, General.

12 THE WITNESS: Of which bit of paper?

13 JUDGE KWON: Your statement. Page 22.

14 THE WITNESS: Hang on. I'll find my statement. Here we go. No.

15 I've put it down somewhere. I've got it. That's okay.

16 MR. MILOSEVIC: [Interpretation]

17 Q. All right. General, is it correct that then the Serb side asked

18 you to have a joint commission established consisting of the UN, the

19 Serbs, and the Muslims in order to investigate the case?

20 A. Yes, he did.

21 Q. But you didn't want to do that; right?

22 A. I was intent on establishing to my -- with my own people what had

23 happened. I did not need at this stage to have a joint investigation and

24 further delay.

25 Q. Do you remember, I assume you do, what our reaction was, the

1 reaction of the government of Yugoslavia that most decidedly condemned

2 this massacre of the civilian population and asked for a detailed

3 investigation in order to find the perpetrators of this crime? I assume

4 that you do remember that.

5 A. I don't, actually.

6 Q. All right. Despite these requests coming from their side and our

7 side and probably from some other sides as well, you came to the

8 conclusion that it was the Serbs who did it, beyond any reasonable doubt.

9 And according to the information that I have here, practically 39 hours

10 after the shell exploded, NATO started bombing the Serb positions. Is

11 that right?

12 A. Again, I haven't done a calculation of the hours, but yes, it

13 would be about that amount of time.

14 Q. How long did the investigation last, and what did it involve,

15 after which the press officer of the UN, Alexander Ivankov, stated that

16 General Rupert Smith, and then he mentions your name here, after having

17 familiarised himself with the results of the investigation, he established

18 beyond any reasonable doubt that the attack was launched from the Bosnian

19 Serb side.

20 How much time had passed from what actually happened until this

21 statement was released?

22 A. I don't recall.

23 Q. And was it then that Andrej Demurenko, the Russian commander,

24 stated and I'm quoting him now too: "The technical aspects of the

25 incident that took place yesterday in Sarajevo leaves scope for serious

1 doubts regarding the reliability of the claim that the mortars at the

2 Sarajevo market were fired by the Serbs."

3 I assume that you remember that; right?

4 A. I remember him doing this. I do not remember precisely what time

5 it was or even what day it was.

6 Q. Well, since he says the incident that took place yesterday, then

7 the date is certainly the one that follows the previous one. And that's

8 when Demurenko, according to the information that I have here, said, and

9 I'm quoting him: "The probability of hitting that particular spot with a

10 shell is 1 to 1 million."

11 Do you remember that?

12 A. I don't remember the specific quote. I remember him going public

13 with this disagreement.

14 Q. And Mrs. Albright then said: "It is hard to believe that a

15 government would do something like that to their own people. So although

16 we do not know," I emphasise, "we do not know all the facts exactly, it

17 seems nevertheless the Bosnian Serbs bear the brunt of the

18 responsibility." Is that right?

19 JUDGE MAY: You know -- General, just one moment. The general

20 really can't be held responsible or really can't answer usefully what

21 somebody else, such as the Secretary of State, said about the incident.

22 What he can do is give his own evidence and tell you why he came to the

23 conclusions which he did, and that he's done. If you want to present

24 other evidence about it, you'll have a chance to do so, but I think we've

25 probably exhausted this topic almost.

1 MR. MILOSEVIC: [Interpretation]

2 Q. All right. Did you at least hear about Russian intelligence

3 officers presenting in public in September an assertion that it was

4 Western intelligence services that had staged the attack at the Markale

5 market in Sarajevo? Have you heard of that at all?

6 A. No, I have never heard of that.

7 JUDGE MAY: In case it's going to be suggested that that is what

8 happened, General, is there any reason to think that anything like that

9 happened?

10 THE WITNESS: I -- I would find it incredible.

11 MR. MILOSEVIC: [Interpretation]

12 Q. And do you know that there was a plan that was called Cyclone 2,

13 and that Rasim Delic's men, according to what came out in public, fired

14 this shell from a neighbouring building? Have you heard of this kind of

15 information that was going round at the time?

16 A. I have no knowledge of a Cyclone 2 and nor that this shell,

17 120-millimetre round, had been fired from a neighbouring building. I

18 would point out that firing a 120-millimetre round is a noisy business,

19 and nobody heard a round being fired.

20 Q. Well, that's the point. Since the shell was not heard as it

21 whizzed by, wasn't that proof that something had detonated on the ground?

22 A. I'm not talking about the trajectory. I'm talking of the firing.

23 Q. All right. General, David Binder, editor of the New York Times

24 and an expert in the Balkans wrote: "In the nation, on the 2nd of

25 October, 1995," and I'm quoting him --

1 THE INTERPRETER: Could the speaker please be asked to slow down.

2 The interpreters do not have any of these documents.

3 JUDGE MAY: Slow down. I don't think -- we've heard quite a lot

4 of Mr. Binder's views. I don't think they're going to take us any much

5 further, and I'm not sure he was the editor of the New York Times, was he?

6 Perhaps he was. But we've heard quite a lot about him.

7 Yes. Have you got something else to put, Mr. Milosevic?

8 THE ACCUSED: [Interpretation] All right.

9 MR. MILOSEVIC: [Interpretation]

10 Q. Is it correct that in his statement to the German agency, Yasushi

11 Akashi, on the 6th of June, 1996, who at the time was head of the UN

12 mission, pointed out that the existence of a secret report was actually

13 never a secret, that there was a secret report that the UN had in June

14 1996?

15 JUDGE MAY: The witness can't know about a secret report of the

16 UN.

17 General, did you come across any secret reports at this time, of

18 the UN?

19 THE WITNESS: No. I don't know -- I've never heard that statement

20 by the German agency. I don't know what that's talking about.

21 MR. MILOSEVIC: [Interpretation]

22 Q. All right. General, do you know about the position of General

23 Charles Boyd? I assume you know him. He was deputy commander, Deputy

24 Supreme Commander of the American forces in Europe. In Foreign Affairs,

25 the September/October issue, 1995, he wrote: "Some of the city's

1 suffering -- [In English] imposed on it by actions of the Sarajevo

2 government. Government soldiers, for example, have shelled the Sarajevo

3 airport, the city's primary lifeline for relief supplies. The press and

4 some governments, including that of the United States usually attribute

5 all such fire to the Serbs, but no citizens of service in Sarajevo doubts

6 for a moment that Muslim forces have found it in their interest to shell

7 friendly targets."

8 JUDGE MAY: All right. The witness can deal with those

9 suggestions since he was there at the time.

10 What is being put is that -- firstly, that some of the suffering

11 in Sarajevo, I guess, is being referred to, was inflicted by the

12 government, the BiH government. General, would you agree with that

13 assertion or not?

14 THE WITNESS: I could just also add that I don't actually

15 recognise this report of this General Charles Boyd. He had nothing to do

16 with me or my command, and he wasn't anywhere near Sarajevo.

17 There were many rumours. I know that there were self-inflicted

18 difficulties, shelling, et cetera. I was never able to establish any

19 truth in any of those rumours on any occasion.

20 MR. MILOSEVIC: [Interpretation]

21 Q. All right. General, do you know that, for example, Bernard

22 Walker, a journalist of the first channel of French television, two years

23 after the massacre in the Sarajevo market, carried the following piece of

24 news: "Muslim army fired at their own people in order to provoke an

25 intervention of the West." Then he was taken to court, and he actually

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1 won the case.

2 JUDGE MAY: What Mr. Walker or anybody else says in a paper two

3 years after the event is not a matter for the witness. He can only deal

4 with what he said and saw at the time, and concluded.

5 Now, you have put, as I understand it, that this was the result of

6 bombing and shelling by the Muslim government on their own people. The

7 witness has given his answer as to why he was there at the time, concluded

8 otherwise.

9 Now, the views of other people are neither here nor there. The

10 within can't go on repeating what he's already said. He's given his

11 evidence about it. If you want to call Mr. Walker, if he's got anything

12 useful to say about what actually happened at the time, if he was there

13 and he's got some evidence, of course we'll hear it. You can call him.

14 But this is what I talk about wasting your time, just going on, repeating

15 the same point over and over. It doesn't assist the Court and takes up

16 the time which you're supposed to have.

17 Now, we've been going on the same point for the best part of an

18 hour. I don't know if you've got any other points you want to make to the

19 witness. If so, you better move on.

20 THE ACCUSED: [Interpretation] Well, this is a very important

21 subject. Markale became the symbol of a deception, Mr. May, and I'm sure

22 that we are going to prove that.

23 MR. MILOSEVIC: [Interpretation]

24 Q. I just wish to ask General Rose [sic], General, do you know what

25 the president of France, Francois Mitterrand, said - and this is what the

1 mentioned journalist published - that Mitterrand --

2 JUDGE MAY: No. Does this have anything to do with the witness at

3 all, the views of President Mitterrand? What does it have to do with the

4 witness?

5 THE ACCUSED: [Interpretation] It is not the views of President

6 Mitterrand. I quote President Mitterrand. He says: "A few days ago

7 Mr. Boutros-Ghali said to me that he was sure that the round that fell on

8 the Sarajevo Markale market was a Muslim provocation." That is what

9 Mitterrand said.

10 JUDGE MAY: Yes, yes, yes. We've heard it. We've heard it. You

11 can call Mr. Boutros-Ghali in due course. Now, let's move on to something

12 else.

13 THE ACCUSED: [Interpretation] Very well, Mr. May. I'm not going

14 to deal with this subject any longer.

15 MR. MILOSEVIC: [Interpretation]

16 Q. General Rose --

17 JUDGE KWON: Smith.

18 MR. MILOSEVIC: [Interpretation]

19 Q. General Smith. Both are English, and I misspoke truly. It was a

20 slip of the tongue. It was not intentional.

21 General Smith --

22 A. I realise we all look the same.

23 Q. 1995, the year that you talk about, was a year, and I hope that

24 you will agree with that, of the most intensive efforts made to achieve

25 peace. Is that right?

1 A. There were intensive efforts to achieve peace during 1995, yes.

2 Q. Of course, as far as Yugoslavia is concerned, as far as Serbia is

3 concerned, as far as I personally am concerned, these efforts had been

4 going on from the very beginning of the conflict. I believe that you're

5 aware of that.

6 A. Yes.

7 Q. In your statement, you bashfully refer to Dayton as well, and in

8 Dayton, the war was finally brought to an end. Isn't that right?

9 A. Yes.

10 Q. And since you mentioned Dayton now during the

11 examination-in-chief, Mr. Nice asked you what my influence was, and you

12 linked it to two events. You said something in relation to the hostages,

13 there were about 400 hostages taken then, and Dayton. Is that right,

14 General Smith?

15 A. Those were two examples I gave, yes.

16 Q. Yes. And I assume that you will not deny that, with respect to

17 those examples as well as many others, the endeavours of Serbia and me

18 personally was -- were directed towards achieving a desired, a badly

19 needed and useful goal, both with respect to the release of the hostages

20 and the signing of the peace agreement in Dayton.

21 A. Yes. You contributed to those results.

22 Q. But my understanding is that Mr. Nice is taking these endeavours

23 and those results, the achievement of peace and the release of hostages,

24 as evidence of me controlling the army of another state. Does that appear

25 to you to be logical?

1 A. That's for Mr. Nice to answer, not me.

2 JUDGE MAY: You could ask, if you could, Mr. Nice, yes. I suppose

3 the question could be rephrased in this way, General: Did you see any

4 evidence of the accused controlling the Bosnian Serb army in any way, or

5 perhaps having any influence over it?

6 THE WITNESS: Such as we saw in the directives issued by Karadzic,

7 no, I don't see -- did not see such direct direction of Bosnian Serb

8 forces, but I do see this influencing and controlling hand, and I give

9 those examples and also the example in the aftermath of Srebrenica.

10 MR. MILOSEVIC: [Interpretation]

11 Q. Well, since you mention it, I shall briefly comment on one of

12 these meetings. You attended one meeting with me. Isn't that right,

13 General?

14 A. That is correct.

15 Q. I even remember sitting outside, and you advised that a tree be

16 cut because you knew that something was wrong with it. I remember this

17 conversation we had.

18 A. So do I.

19 Q. And you made a well-intentioned suggestion, I'm sure. And here is

20 what it says. I mentioned the reference numbers for Yasushi Akashi's

21 report so that the other side, which has all kinds of documents available,

22 for me to be given the original, Z1175 of the 17th of July, 1995. The

23 subject, the meeting in Belgrade, addressed to Annan, and for information

24 purposes to Stoltenberg, sent by Akashi, in which Akashi says: "Mr. Carl

25 Bildt, Mr. Thorwald Stoltenberg, and I" - that is Akashi - "met in

1 Belgrade with President Milosevic on Sunday, the 15th of July." Carl

2 Bildt, Stoltenberg and Akashi met with me on Sunday, the 15th of July. "I

3 was accompanied by General Rupert Smith. Milosevic, upon the request of

4 Bildt, allowed the presence of General Mladic at the meeting. Mladic and

5 Smith had a bilateral discussion. Despite their disagreement on several

6 points, the meeting re-established a dialogue between the two generals.

7 Informal agreement was reached in the course of the meeting on a number of

8 points between the two generals which will, however, have to be confirmed

9 at their meeting scheduled for the 19th of July."

10 So, General, from what Akashi told me - and Akashi endeavoured

11 together with me to achieve as much as possible towards peace - relations

12 between you and General Mladic were disrupted. Isn't that right, General

13 Smith? And then the idea was for you to meet again somehow and to

14 re-establish some sort of a dialogue and a relationship that would allow

15 the necessary cooperation between the commander of the army of Republika

16 Srpska and the commander of the UN forces in Bosnia-Herzegovina, that is,

17 you, General; isn't that right?

18 A. That was certainly one of the consequences. It was rather more to

19 deal with the aftermath of Srebrenica than to advance towards a peace

20 agreement.

21 Q. But, General, let's go to -- directly to the point. This report

22 and this meeting, aren't they the best evidence that on the 15th of July,

23 none of us present, including General Mladic, knew anything about any

24 massacre in the environs of Srebrenica? Surely then that would have been

25 the subject of our talk. Surely somebody would have mentioned a word of

1 anything so drastic. None of us had the least idea that any kind of

2 crime, massacre, killing of a large number of people had occurred over

3 there.

4 A. No, I don't find that, any evidence of that whatsoever.

5 Q. Of course none of us on that 15th of July had any idea as to what

6 could have happened at Srebrenica.

7 JUDGE MAY: The witness has answered.

8 MR. MILOSEVIC: [Interpretation]

9 Q. Look at your discussions on the 17th of July. I was looking at

10 this now when Mr. Nice referred to tab 21, I think it is. I see it is

11 compiled in English. It follows on to the meeting in Dobronovci at which,

12 as Akashi says, at the request of Carl Bildt I assisted in you and Mladic

13 meeting again and talking together. Agreement between General Smith and

14 General Mladic. "Two sides have agreed the following: [In English] To

15 provide access to the ICRC representatives to the reception points by the

16 end of 20 July; to provide that Dutch Battalion soldiers leave Bratunac

17 with their personal belongings and small arms on 15 July 1995; to provide

18 UNHCR representatives visit Srebrenica, as well as clearance for

19 humanitarian aid convoys to enter to Srebrenica from Belgrade through

20 Ljubovija and Bratunac."

21 As you see, the humanitarian convoys were going from Belgrade to

22 Bosnia. That was also - how shall I put it? - our role, that is to assist

23 in that way. That is where they were formed, and that is where they went

24 to provide aid.

25 In point 4 you say, "A positive answer will be given to the

1 request for the logistic convoys assigned to UNPROFOR in Potocari and to

2 Zepa, Gorazde, and Sarajevo. [In English] The convoy routes for the

3 present will be to Zepa from Belgrade, from Belgrade through Visegrad and

4 Rogatica; to Gorazde from Belgrade through Visegrad; to Sarajevo from

5 Kiseljak through Kobiljaca." [Interpretation] And then it says: "For the

6 time being all convoys must respect the earlier agreements and usual

7 procedures. [In English] The intention of both sides is to normalise

8 resupply of UNPROFOR."

9 [Interpretation] Point 5, "A positive answer will be given to the

10 UNPROFOR request for the rotation of forces in Gorazde and Sarajevo.

11 And then the next one, 6, "[In English] A positive answer will be

12 given to the UNHCR request for humanitarian aid convoys according to

13 assessed needs to Gorazde and Sarajevo as well as to Srebrenica and Zepa.

14 The Sarajevo convoys are to be escorted by two UNPROFOR wheeled vehicles."

15 [Interpretation] Then it says, "To provide the UNPROFOR

16 displacement (including military, civilian, and up to 30 locally employed

17 personnel) [In English] from Potocari with all UNPROFOR weapons, vehicles,

18 stores and equipment through Ljubovija ..."

19 [Interpretation] Ljubovija is in Serbia, which means you are

20 asking that they be able to leave through Serbia by the end of the week,

21 according to following displacement order.

22 And then "a. evacuation of wounded Muslims from Potocari, as well

23 as from the hospital in Bratunac; b. evacuation of women, children and

24 elderly Muslims, those who want to leave; [In English] c. displacement of

25 UNPROFOR to start on 21st July ..."

1 [Interpretation] And then there's a reference to the water supply

2 system in Sarajevo, and it says: "The above-mentioned positive steps will

3 be realised in order to provide a concrete and positive contribution to

4 the peace process and to provide fair and impartial treatment of all

5 parties. [In English] In particular, the treatment of all UNPROFOR locally

6 employed personnel by both sides." [Interpretation] And signed by General

7 Rupert Smith and General Ratko Mladic on the 19th of July.

8 So that meeting, the only one you mention and at which aid was

9 extended for you to meet again, and as far as Stoltenberg and Akashi are

10 concerned, this was one of countless meetings that I had with them

11 designed towards this same goal, that is the achievement of peace. You

12 attended one of them. And there was this meeting at which no one had the

13 least idea what had happened or what was going on in Srebrenica.

14 JUDGE MAY: What is the question, Mr. Milosevic?

15 MR. MILOSEVIC: [Interpretation]

16 Q. The question is: Isn't that at least clear from this, General

17 Smith?

18 A. No. I repeat, I did not know that there was -- had been the

19 massacres in Srebrenica. I am still asking for the ICRC to be given

20 access. Just because I don't know that, it doesn't follow that you or

21 Mr. Mladic didn't know -- beg your pardon, did know. And just because I

22 didn't ask the question, you didn't have to open up the subject, nor did

23 General Mladic. I don't find it any evidence at all. Furthermore, this

24 shows me once again that I saw a direct link between you and

25 General Mladic that these convoys could take place and that I could deal

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1 with Mladic about it in the confidence that the convoys would move through

2 Serb territory.

3 Q. But that is the aid provided by Serbia and me personally, that is

4 to enable humanitarian aid to move forward and to make sure that

5 everything is open to UNPROFOR, the international Red Cross, and the UNHCR

6 which was something that we constantly endeavoured to achieve throughout.

7 Surely you're aware of that.

8 A. ICRC was not given access.

9 Q. I see here that it is mentioned at the beginning, ICRC.

10 A. And just because that agreement had been entered into, it was not

11 honoured. ICRC was not given access to those holding areas for the simple

12 reason we now know, that all the people in them had been murdered.

13 Q. That, unfortunately, was discovered subsequently. But you believe

14 that Mladic, at the time when he was negotiating with you, knew that

15 somebody had killed those people?

16 A. Yes.

17 Q. On what grounds, General? Do you believe -- you met Mladic. I

18 assume you knew -- came to know him quite well. You had a large number of

19 meetings with him, didn't you?

20 A. I met him. I don't believe I know him well.

21 Q. How frequently did you meet Mladic, how many times?

22 A. I wouldn't have said I met him more than ten times in the year.

23 We could add it all up.

24 Q. Very well, ten times. And you had conversations which I assume

25 lasted each time several hours.

1 A. No, they didn't all last that long.

2 Q. Very well. Tell me, on the basis of your impressions of

3 General Mladic, can you assume that military honour would allow

4 General Mladic to tolerate something like the killing of prisoners of war

5 or civilians or anything as dishonourable as that?

6 A. Yes.

7 Q. Do you have any, any knowledge to the effect that General Mladic

8 could have ordered such a dishonourable act?

9 A. I have no evidence that he ordered the act, but he was,

10 nevertheless, the commander, and I believe he knew what was happening in

11 his command.

12 Q. General Smith, you were deputy NATO commander when Yugoslavia was

13 bombed; isn't that right?

14 A. Yes.

15 Q. Do you know that NATO planes bombed refugee columns, that they

16 bombed the Chinese Embassy, that they bombed buses and trains?

17 JUDGE MAY: Just wait a minute. We'll deal with one thing at a

18 time. The witness can only give evidence about the time when he was in

19 Sarajevo.

20 During that time, General, were, to your knowledge, any refugee

21 columns bombed?

22 THE WITNESS: When I was in Sarajevo, no.

23 JUDGE MAY: The other -- no. Look, what happened later, what

24 happened later, which we've heard very much about in this trial, is not

25 for this witness. We have other witnesses who will give evidence about

1 what happened then. We're talking about events in 1999.

2 THE ACCUSED: [Interpretation] Mr. May, the witness said that

3 Mladic must have known because he was in command. Now, I'm asking the

4 witness since he was in command in 1999, whether he knew or should have

5 known, must have known that columns of civilians were being bombed, buses,

6 hospitals, the Chinese Embassy, Radio-Television Serbia, et cetera.

7 JUDGE MAY: It's all totally irrelevant. He has dealt with the

8 matter concerning General Mladic. I in fact let him do so, although it's

9 doubtful if it was a question which was properly directed at him. It's a

10 matter that we're going to have to determine as to how much Mladic knew

11 about what was going on, whether he ordered it or did not. Now, those are

12 all matters for us.

13 Now, peripheral issues of that sort are not relevant.

14 JUDGE KWON: General, I noticed -- just a moment.

15 I notice that you have not answered to the question when the

16 accused asked you what is your base in believing Mr. Mladic should have

1