Milosevic Transcript 2003-12-16

³⁰⁴⁷⁶

Tuesday, 16 December 2003

[Open session]

[The accused entered court]

[The witness entered court]

--- Upon commencing at 9.02 a.m.

JUDGE MAY: Yes, Mr. Nice.

MR. NICE: With Your Honours' leave, thirty seconds in private session.

[Private session]

(Redacted)

[Open session]

THE REGISTRAR: We're in open session.

MR. NICE: Your Honour, I'm asked to put on the record that so far as yesterday's hearing is concerned, there were no redactions sought or made at the application of any Rule 70 provider. Thank you. ³⁰⁴⁷⁷

JUDGE MAY: We'll just consider the position.

[Trial Chamber confers]

MR. NICE: Your Honour, I made one important error in the passage in private session, but I don't need to go back into private session. Where there was a reference to examination-in-chief, I should have said the whole day's evidence.

JUDGE MAY: As far as the Trial Chamber is concerned, there is no objection to the release of the record.

Yes, Mr. Milosevic.

THE ACCUSED: [Interpretation] Mr. May, how much time do I have?

JUDGE MAY: An hour and a half.

THE ACCUSED: [Interpretation] I'm not quite sure that that will be enough, Mr. May, but I'll do my best.

WITNESS: WESLEY CLARK [Resumed] Cross-examined by Mr. Milosevic: [Continued]

Q. [Interpretation] I received the latest statement yesterday, I looked at it, and in relation to the one I had, it is shorter and it has been abbreviated to a total of 45 paragraphs. The previous one had 131 paragraphs. So obviously the narrowing down of the scope of the questions has led not only to the exclusion of the war and the book from the testimony of the witness, but you have reduced them to only a few topics. But nevertheless, they merit full attention, so I'll go in order. Paragraph 2. [No interpretation]

JUDGE KWON: We don't get any English translation. Could you try again, please. ³⁰⁴⁷⁸

MR. MILOSEVIC: [Interpretation]

Q. I was saying, General Clark, that in paragraph 2, there is something that I do not understand, and I'd like to ask you to explain it for me. And let me point out, I'm not quite sure that the meeting was on the 17th of August. I think it was on an earlier date. But it is easy to establish that because after that meeting you went to Sarajevo, and it was after that meeting that members of the delegation were killed, but that is a factual matter and it can easily be verified. I cannot assert that it was so, but it seems to me that it was a little earlier. Now, will you please tell me, as I allegedly said "with me," which is not true because I later introduced you with Karadzic and Mladic, you said that he would deliver the Serbs. What kind of delivery are you referring to? What Serbs was I supposed to deliver to you?

A. Your Honour, the answer to the accused's question is that this is a form of English language writing which explains that the accused was advocating that we deal with him because he could produce an agreement of the Bosnian Serbs to the terms of the peace that were being negotiated.

Q. So my advocacy for peace and my endeavours to achieve that peace - which it was thanks to me, let me add, that bore fruit in Dayton - it is your opinion that this was some sort of a delivery or what?

A. Your Honour, it's my opinion that Slobodan -- that the accused was essentially the motivating force and the guiding force in most if not all of the issues and activities in former Yugoslavia during this period, both in war and in peace. And in this particular meeting, he chose to -- to accept or admit his leadership and his power over the Bosnian Serbs, and I ³⁰⁴⁷⁹ simply included this to indicate that he was not the leader of a neighbouring state alone but the leader of a neighbouring state who had influence, power, if not control over the Bosnian Serbs. And that is the -- that's the essence of what I'm stating here.

Q. Well, the essence is wrong, General, because what we're talking about here is exclusively my commitment, my persistent insistence on questions of peace and no others. Questions of peace, General. And that was in the interest of the whole people, and I enjoyed the support of the whole people with that respect. And we're talking of questions of peace here and nothing else.

And now, tell me, please: "Milosevic told us that it was a key that we give him the peace terms and he would hold an election or referendum."

General Clark, then you go on to say that I said that they would not turn a deaf ear to the will of the Serbian people. You know very well that they didn't turn a deaf ear to the will of the people, and they accepted peace. Isn't that so, General?

A. Your Honour, I'm -- I am simply recounting my recollection of the conversation on my first meeting with Slobodan Milosevic, and it's simply given to the Court to establish the fact that he put himself in a position of leadership as the man in charge in this endeavour. It was a leadership that wouldn't seem to be normal in view of international law in the sense that these were two separate countries, former Yugoslavia versus Bosnia-Herzegovina. Yet he was claiming leadership if not control over a faction, a war fighting faction inside Bosnia-Herzegovina. That's the way ³⁰⁴⁸⁰ it appeared to us when he said he would take -- he would deliver the Bosnian Serbs, in other words.

JUDGE MAY: I say we can clarify it. So the expression "deliver the Bosnian Serbs" to which the accused referred, that expression is your summary, as I understand it, General, of the position, putting -- using an English phrase.

THE WITNESS: Correct. I'm not talking about physical delivery, I'm talking the support of the Bosnian Serbs.

JUDGE MAY: It's not an expression he used but it was the summary of the position.

Yes, Mr. Milosevic.

MR. MILOSEVIC: [Interpretation]

Q. General Clark, my leading role in achieving peace is not in dispute, but now this role and the result achieved is being placed in quite a different context by you. Do you realise that?

JUDGE MAY: I don't know what that question means. What the General has been reporting is what you said and reporting your conduct. Now, do you have a concrete question?

THE ACCUSED: [Interpretation] Very well.

MR. MILOSEVIC: [Interpretation]

Q. Explain, please, General: You go on to say that one member of the delegation asked Milosevic why elections in Serbia would be binding for people in Bosnia and Herzegovina, which is a different country. And then I say to that they will not turn a deaf ear to the will of the Serbian people, and they didn't, but that is said in quite a different context. ³⁰⁴⁸¹ ^{BLANK PAGE} ³⁰⁴⁸² Look at the previous text I had in paragraph 101 in that version, page 22 of the previous statement. "Milosevic said that he wanted elections to be held in Bosnia, and Holbrooke interpreted this that what Milosevic really wanted was a referendum on the draft peace agreement." That is what you wrote in your previous statement. And in this statement, you say that a member of the delegation asked me how the elections in Serbia would be binding for Bosnia and Herzegovina. So General, isn't it quite clear that you're not telling the truth? Please compare paragraph 101 of your previous statement with what you're saying here. Am I right or not?

A. Your Honour, I think what we have here is a problem between languages and translations and intent. The substance of both -- I don't have paragraph 101 in front of me but the substance would seem to be the same as Milosevic let it out, and I recall the conversation being precisely this: This is, again, more than eight years ago, but it's my recollection that President Milosevic said, "Give me your terms and we will hold an election." And in a subsequent explanation of what this meant, it turned out to be that what he meant was the English term a referendum. We weren't to be -- he apparently did not mean to be electing a person but, rather, to approve a position.

The reason that this is significant is that his leadership role, I'm asserting, wasn't only about peace, it was leadership, and it was a combination of -- of strategies using force, using intimidation, bullying, and then going to the international community and pursuing peace. It was this combination that marked his conduct during the entire period in ³⁰⁴⁸³ question, and it was with knowledge of this combination of his skills and influence that we entered the discussions with the accused. We knew that his influence was not limited to seeking peace but that he had influence, period, over the Bosnian Serbs. No one knew and could say precisely how much influence. We knew that there were discussions. We knew that there were considerations, and we knew that he could see the gains that the Serbs had made being erased by the countervailing military action of the Croats and the Bosnian Muslims and that therefore it was logical that he would attempt to hold on to what he had by trying to follow through on a settlement of fighting that preserved as much of the territory for the Serbs as possible.

That's the motivation that we entered assuming him to have, and this discussion simply puts the frame of reference that we went to him and we asked him should we deal with him or should we deal with the Bosnian Serbs directly, and he said with him.

MR. NICE: Your Honour, may I make one point before the accused asks further questions. Paragraph 101 of what's ascribed to as the earlier statement is paragraph 101 of the annex to the application which was drawn from notes made with the witness but was not in any way a statement reviewed for him as to its language. And since I refer to that annex, it's perhaps appropriate that I should make clear our position on the scope of cross-examination, because the accused has, I think, misstated it this morning.

Your order granting the particular protections of Rule 70 sought for this witness limited cross-examination to that annex and not to the ³⁰⁴⁸⁴ narrower statement that was subsequently produced having been reviewed with the witness and served in two effectively identical forms last week and this week.

JUDGE MAY: Yes. Clearly the witness, if it's going to be referred to, should have a copy of this document so that if there are questions about it, he can deal with it.

MR. NICE: Certainly.

JUDGE MAY: Yes, Mr. Milosevic.

MR. MILOSEVIC: [Interpretation]

Q. Very well. General Clark, since I allegedly told you, "Just give me the terms and I will take care that they be accepted," tell me, how long did the negotiations in Dayton go on for? Did they last three weeks?

A. The -- I want to clarify the implication of the discussion with the accused on or about the 17th of August, Your Honour. It was never our impression that he could himself deliver an agreement between the conflicting parties on the terms but, rather, that he had accepted for himself or claimed for himself the ability to deliver the agreement of the Bosnian Serb faction.

Q. But, General, when there are intensive negotiations in Dayton among three parties and it was only at the end that an agreement was reached which all three sides agreed to. So we negotiated in Dayton. There were three delegations negotiating there. Isn't that right, General?

A. Your Honour, this is correct.

Q. Do you remember, General, the first meeting of the delegations? ³⁰⁴⁸⁵ This was on the first working day. We all arrived in the evening, and on the first working day we were sitting around a large round table, all the delegations, including you and representatives of the Contact Group, as far as I can remember. Do you remember that first day? That is how the talks started.

A. I do remember the opening session around a large table at Dayton.

Q. And that first working day, the Muslim delegation proposed that Republika Srpska consist of 30 something per cent, 34, 35 per cent of the territory. Do you recollect that?

A. Your Honour, I have no specific recollection of that particular matter. The reason is that I may or may not have been in for the entire duration of the meeting. At the time, I was involved in not only participating in much of what Ambassador Holbrooke was doing but also trying to finish the negotiation of military annex with other NATO member countries who would have to enforce it. So I just don't have any specific recollection of that fact. I would have to consult other sources, but it's not something that I remember. And it's not in my witness statement. I'm not testifying about it or whatever; I just don't remember it.

Q. What I am saying is that from this initial position presented by the Muslims at this first opening session, which was in plenary form, all delegations were present, up until what was finally achieved, that is 51/49. In the meantime, there was a very strenuous and lengthy debate which went on for three weeks so as to finally establish some sort of a balance which resulted in the Dayton Accords. Isn't that right, General?

A. Your Honour, I certainly agree that there was strenuous and ³⁰⁴⁸⁶ lengthy debate at Dayton. I think that's a matter of historical fact. I think it's a matter of fact that the negotiations went on for a certain period of days, approximately three weeks. I think that's all clear, and I think that the eventual territorial division between the Federation and the Republika Srpska was approximately 51/49.

Q. Yes. So it wasn't easy to provide agreement to the 51/49 division in relation to the initial position of the Muslim delegation which provided for some 34, 35 per cent for Republika Srpska. So am I right, General?

A. Well, I think a number of people worked very hard to bring about an agreement at Dayton.

Q. Very well, General. I don't wish to dwell on the matter any further, but in Dayton, in this process from the initial proposition of the Muslims to the final solution of 51/49, endless maps were drawn. I don't know what this map of Sarajevo means to you with a line drawn there. There were any number of maps. You could have brought hundreds of maps and more or less -- with more or less details. What does this particular map mean for you with these two parallel lines on it?

A. Your Honour, the significance of this map again goes to the leading role of the accused in matters affecting former Yugoslavia. He was able by himself to come in and complete the negotiations with the Federation party, and he drew the line by himself. He wasn't consulting, he simply had the authority himself to draw these lines. And the reason I submit this map is because it indicates in its own -- this is his own marking in part of that red line on that map, that he knew what he was ³⁰⁴⁸⁷ ^{BLANK PAGE} ³⁰⁴⁸⁸ doing, he drew the line himself, and it's an indication of his authority. It's that simple.

Q. And which of those two lines, General Clark, did I actually draw? Surely I didn't draw both of them. And they are parallel, one to the other.

A. I remember your picking up a pen and marking on it. I think you drew this round circle on the side, I can't remember. But I do remember that you did draw on the map. You did complete the negotiation yourself with Prime Minister Silajdzic, and you marked it. You and he stood in front of that map and you marked it.

Q. I see, General Clark. And how do you know I did not consult anyone? For instance, I remember well my talks with Krajisnik regarding that corridor around Gorazde, because I am not familiar with the area there. So I did have to have long and lengthy and difficult talks about these things. How can you say that he didn't ask anyone, consult anyone? How do you know that?

A. I say in the time in which I witnessed you draw that line, the accused did not consult anyone during the period he was drawing the line and during these negotiations with Silajdzic. I have no idea who he may have talked to previously or what degree of familiarity he had. I'm not capable of knowing those and -- those details. I can only testify to what I saw, which is that he was able to negotiate the lines.

Q. In the end, the result was 51/49, which I assume is not in dispute. But let us move on as my time is limited. Let us go on to paragraph 3. You say that several members of the ³⁰⁴⁸⁹ delegation left the room during the break, leaving only Kruzel, Clark, and Milosevic.

First of all, that is not true. Your delegation was a large one, and there were several of my associates. You numbered some ten or so members, and with me there were also a couple of men. And if Holbrooke left, that is another matter. He may have gone to the toilet. But never were there just me and Kruzel and you. Why would I stay with you and Kruzel during the break? That is not true simply.

JUDGE MAY: Wait. Now, let there be an answer to this allegation.

THE WITNESS: Your Honour, there was a break. Ambassador Holbrooke did get up to go to the toilet. I can't account for every single member of the accused's delegation in the room. The accused was seated in a -- in an armchair at the head of the table, and he stayed in the room at least momentarily. And as he got up from the armchair and moved to the side, I went over and approached him. And I was accompanied by Assistant Secretary Joseph Kruzel. And it was a break that was taken right after the period in which he had announced that he could hold a referendum that would ensure that the Pale Serbs agreed with whatever peace terms were being proposed. And I simply continued the discussion with him and asked him, "You say you've had so much influence on these people. If you had so much influence, how did you permit General Mladic to kill all those people at Srebrenica?" He looked at me and said, "Well, General Clark, I told him not to do it, but he didn't listen to me."

MR. MILOSEVIC: [Interpretation]

Q. General Clark, this is a blatant lie. First and foremost because ³⁰⁴⁹⁰ we did not talk about Srebrenica at all, and secondly because I, throughout this time, through all of those years, I never issued a single order to General Mladic or was I in a position to issue him an order.

JUDGE MAY: Now, wait a moment. The witness doesn't know what orders you addressed to Mladic, and his evidence is what you said at the meeting. Now, you can ask him about that, of course, but he can't answer questions about what you may or may not have ordered.

THE ACCUSED: [Interpretation] First and foremost, Mr. May, I did not have any kind of position in order to be able to give orders to Mladic.

JUDGE MAY: You can give evidence about that in due course, if you wish, but meanwhile just deal with the matters which the witness can actually deal with. He can't deal with your relations with Mladic.

MR. MILOSEVIC: [Interpretation]

Q. General Clark, I, for example, believe firmly until the present day that General Mladic did not order any execution of people in Srebrenica. I believe that this was done by a group of mercenaries. Do you have --

JUDGE MAY: Look, we're wasting time. You're simply trying to give evidence. It doesn't matter at this stage what you may or may not have believed. There's simply one issue, which was the conversation which the general's given evidence about. Now, just concentrate on that. Now, you've challenged it; it's not true. If you've got something else to say, of course you can, but repeating it is not going to, I suggest, assist us. ³⁰⁴⁹¹

MR. MILOSEVIC: [Interpretation]

Q. All right. I'm not going to repeat, but General Clark does remember, at least when we discussed Kosovo, that I said to him and to others who were coming a particular truth, that it is in the military tradition of the Serb people -- that the greatest shame in the military tradition of the Serb people is to kill a prisoner of war or an unarmed man and that no honourable member of the Serb army would ever do any such thing. I assume that you remember that much at least, General.

A. Your Honour, I recall the discussions about Kosovo on or about the -- I think it was the 20th of January, 19th of January of 1999. I've got to consult a record to find out the exact date, and we can do that now or I can continue the testimony. It's the one meeting that I had in 1999 with the accused.

I don't recall any discussion like this specifically. I do recall the accused saying that the special police at Racak could not have massacred the Albanians because they would not do such a thing. He also told me that he was having an investigation done but that he already knew the results of the investigation because he knew that they would not do such a thing. And it may be this incident or this conversation that the accused is referring to. This is the only recollection I have of such -- of anything related to such a conversation.

Q. All right. All right, General. Since you do not remember, never mind. But let's go back to Srebrenica now.

Paragraph 97 of the previous statement that I quoted, and I'm going to read it out in its entirety: "Clark, however, could not indicate ³⁰⁴⁹² any specific grounds --" "Clark, however, could not indicate any specific grounds for believing that Milosevic knew that this was a massacre, not a military operation."

Well, no one was talking about any kind of massacre then, General. Don't you know that much?

Secondly --

JUDGE MAY: No. Let's deal with one thing at a time.

THE WITNESS: Your Honour, I did not use the word "massacre" to Milosevic, but I do recall saying or asking him in this sideline conversation, "How did you allow General Mladic to kill all those people?" At the time in the media, the accusation of a massacre was well known. It was public discussion all around the world and at the United Nations and certainly in Europe. And when I looked at the accused's face, and the accused speaks very effective English, he knew precisely what I was asking, his answer indicated to me that he knew it was about innocent people, because, as he said, General Mladic -- "I warned General Mladic not to do this, but he didn't listen to me." He would not have warned him not to engage in a military operation necessarily. And then when he said, "He didn't listen to me," and I watched his face, and it was clear to me that he understood exactly the context in which I was asking this. This was not about a warning not to conduct a military operation, it was about a warning not to dispose of civilians in the course of such actions. That was the strong impression I took from that conversation.

MR. MILOSEVIC: [Interpretation]

Q. General Clark, it's exactly the other way around. The position of ³⁰⁴⁹³ ^{BLANK PAGE} ³⁰⁴⁹⁴ Serbia and my own position all this time was the following: I mean, we supported the Contact Group plan from 1994, and we insisted that it be accepted, so our position was that no military operations should be taken because that would aggravate the peace process. So our position was generally a negative one vis-a-vis any kind of military operation.

JUDGE MAY: I'm not going to allow you to go on. You're simply putting generalities. It may or may not have been your position, but here we have a conversation at a meeting in terms. Assist us with this, Mr. Milosevic: Did you speak to the general at all about Srebrenica? Is it your case that you spoke to him at all about it?

THE ACCUSED: [Interpretation] Not at all. There was no mention whatsoever of Srebrenica. And I'm talking about our general position that there should not be any military operations whatsoever. Heaven forbid discussing any kind of killing of civilians or something like that. Our categorical position was that there should be no military operations whatsoever because in that case, there could be no peace process going on.

JUDGE KWON: General Clark, were you able to locate the paragraph 97 that the accused referred to just now? According to it that you could not indicate any specific grounds for believing that Milosevic knew that this was a massacre, not a military operation. This passage is drafted by the Prosecution in preparation of -- for your evidence, but could you confirm this?

THE WITNESS: Well, all I can confirm, Your Honour, is the discussion that I had. I went to Milosevic and I asked him. I said, "If you have so much influence over these Serbs, how could you have allowed ³⁰⁴⁹⁵ General Mladic to have killed all those people at Srebrenica?" And he looked to me -- at me. His expression was very grave. He paused before he answered, and he said, "Well, General Clark, I warned him not to do this, but he didn't listen to me." And it was in the context of all of the publicity at the time about the Srebrenica massacre. Now, I did not use the word "massacre," and I did not specifically use the word "civilian," but the context of the conversation was extremely clear and timely at that point.

JUDGE KWON: So that passage is not done by you. It's not yours.

THE WITNESS: On 97?

JUDGE KWON: Yes.

THE WITNESS: I think that in that conversation maybe the Prosecutor asked me to further elaborate on it. I made my point with President Milosevic, and his admission to me was so stunning at that point that I then recall telling the delegation later about this, because I viewed that as an admission that he had foreknowledge of Srebrenica. And what I could not tell was whether or not he was telling the truth when he said he told him not to do it and he didn't listen. But I did take it as an acknowledgement of foreknowledge of what was going to happen at Srebrenica.

JUDGE KWON: Thank you. Please go on, Mr. Milosevic.

MR. MILOSEVIC: [Interpretation]

Q. General Clark, at the time when this conversation was allegedly taking place, everybody knew, and it was written all over the papers that the army of Republika Srpska had taken Srebrenica. So it was no secret. ³⁰⁴⁹⁶ Everybody knew that they had taken Srebrenica.

My answer in response to any question that had to do with that - and you did not put any such question to me - did not pertain to any military operations. No military operations whatsoever, because we were categorically opposed to any kind of military operations precisely because military operations prevent the peace process from evolving, and that is what we had advocated, the peace process. So the context is completely different, and that is why I was saying that you were twisting the truth. And you're doing it on purpose, that is quite obvious.

JUDGE MAY: Well, have you any reason, General, not to recollect that conversation?

THE WITNESS: I remember the conversation very clearly because it was the first time that I had ever spoken one-on-one to Milosevic. This was our first meeting. The initial portion of the meeting may have gone on for 30 minutes or an hour, it was a get-acquainted session. And then Ambassador Holbrooke took a break. It was my first time to see the accused, and I did take advantage of the break of the formal session to have this conversation with him. Because the massacre at Srebrenica was fresh on my mind, I was trying to form an impression of the character of the accused, of his degree of influence and control, and that's why I asked that question of him.

JUDGE ROBINSON: General, the reply from Mr. Milosevic as given by you, "Well, General Clark, I warned him not to do it but he did not listen to me," you say that it shows foreknowledge, but wouldn't it also show that Mr. Milosevic was dissociating himself from action of that kind? ³⁰⁴⁹⁷

THE WITNESS: Yes. It was the kind of reply that I came to expect from the accused. He indicated foreknowledge and then he attempted to dissociate himself from the responsibility for it. But what lies behind my recollection is simply this: The Republika Srpska military was formed from the Yugoslav military, it was resourced from the Yugoslav military, its officers were, to the best of my knowledge, paid by the Yugoslav military. General Mladic --

JUDGE MAY: No.

THE ACCUSED: [Interpretation] There is testimony about that. Well, look, we haven't got time for this.

JUDGE MAY: Don't interrupt. You'll get a little more time if you want it. Yes.

THE WITNESS: General Mladic had been an officer in the Yugoslav military. So the fact was that in this case, the accused was acknowledging his foreknowledge of the operation. He wasn't -- I couldn't tell if he was telling the truth that he warned him not to do it or not. I wasn't in a position to know that. But the -- all of the circumstances around it indicated that he was aware that this was a military operation combined with a massacre, and what he admitted to me was foreknowledge of it. I didn't know whether he was telling the truth that he told him not to do it or not, but he did admit the foreknowledge. And that's the reason I wrote it in the book -- excuse me. That's the reason it's relevant today. It's the clear piece of conversation that made the greatest impression on me at the time. That's its importance. It was a signal piece of evidence to me as I tried to understand the situation in ³⁰⁴⁹⁸ the Balkans and the accused's role in it.

JUDGE ROBINSON: Continue, Mr. Milosevic.

MR. MILOSEVIC: [Interpretation]

Q. Thank you, Mr. Robinson. General Clark, do you know that no one in Serbia, at least no one I know, knew before the Srebrenica operation of the possibility of that operation, particularly because this was a UN safe area?

JUDGE MAY: What the people in Serbia knew is irrelevant. All we're dealing with is the conversation, what you said to him. That's all.

THE ACCUSED: [Interpretation] I am saying, Mr. May, not only I but no one else from the leadership, for example, could not have assumed that there could be an operation launched against the UN safe area.

JUDGE MAY: Yes.

THE ACCUSED: [Interpretation] Our position --

JUDGE MAY: You can give your in evidence due course. You can call your evidence, and you can tell us what your case about it is, but all we're dealing with is this conversation and what it is that you said. Now, unless you have any fresh questions about that, you're to move on to something else, because as you rightly point out, your time is limited and there are very important matters.

THE ACCUSED: [Interpretation] I think there are some very important matters, although all of you have excluded the most important questions, Mr. May, from the scope of this examination.

MR. MILOSEVIC: [Interpretation]

Q. You mentioned, General Clark, the KLA in several sections, in ³⁰⁴⁹⁹ ^{BLANK PAGE} ³⁰⁵⁰⁰ several paragraphs, even in this latest statement of yours. You talk about their regrouping, you talk about operations against the KLA, you talk about the existence of the KLA, and so on.

You mentioned in your statement that I had said to you that these were murderers, rapists, plunderers, arsonists, that these people were terrorists. Do you remember that?

JUDGE MAY: Is this the reference now - let's make sure we have the reference right - to the conversation in October 1998? It's paragraphs --

JUDGE KWON: 28.

JUDGE MAY: 28. That's the conversation, is it?

THE ACCUSED: [Interpretation] That paragraph and other paragraphs.

MR. MILOSEVIC: [Interpretation]

Q. So I believe it is not in dispute that I said to you, General Clark, that these were terrorists, murderers, rapists, killers of their own kind. Is that right or is that not right? Was that clear or was that not clear?

A. You did say that to me in October of 1998, and that is the phrase you used. I remember you using it in English, "murderers, rapists, and killers of their own kind."

Q. And terrorists; right? Terrorists first and foremost.

THE ACCUSED: [Interpretation] Now, please put this picture on the ELMO. These are men in KLA uniforms, and I hope that you will recognise the patch on the sleeve, the KLA patch. It can be seen on the left arm. So there is no doubt that this is the KLA. We see this too. ³⁰⁵⁰¹

JUDGE MAY: That is unnecessary. Remove that picture, please. This is nothing to do with the evidence. Return the picture, please, to the accused.

THE ACCUSED: [Interpretation] Mr. May, these men in KLA uniforms, I mean, this man is holding two Serb heads that had been cut off. Is that confirmation? I mean, are these allies of General Clark's infantry in Kosovo?

JUDGE MAY: Now, let us deal with this in a way which is relevant. The picture is not relevant. You can give evidence in due course about it. You can call the witness, and you can produce these photographs if there is relevance of them, providing you establish that, but we have to deal with the general's evidence.

Now, there hasn't been any dispute that you made these comments to him.

MR. NICE: Your Honour, if the Chamber's concerned about the production of that photograph and the effect it may have unsupported by any relevance, it could give consideration to redacting that part of the transcript. It's a matter entirely for the Chamber. We don't press you one way or the other.

[Trial Chamber confers]

JUDGE MAY: We'll consider that. Yes, Mr. Milosevic. What is the point that you're trying to establish as far as the witness's evidence is concerned? You can ask other witnesses, you can call other evidence about the behaviour of the KLA, and indeed you've done so. I seem to remember a very great deal of ³⁰⁵⁰² cross-examination about it already. If you wish, you can call some evidence, relevant evidence during the case, but I don't think we're going to take it any further with this witness.

THE ACCUSED: [Interpretation] Well, the KLA was a terrorist group.

MR. MILOSEVIC: [Interpretation]

Q. Isn't that right, General Clark? Is that in dispute or is that not in dispute?

JUDGE MAY: It may be a matter for us, but it's not a matter that arises from the witness's evidence.

THE ACCUSED: [Interpretation] The witness is talking about measures of repression against the KLA, and you see what kind of killers they are. I have yet another photograph here, a group of 15 of them, with severed heads. This is also not relevant for you; is that right, Mr. May?

JUDGE MAY: That is quite right. Quite right. You can call all this evidence in due course. We are just dealing with a part of the evidence which is given by the general. The generalised evidence about the behaviour of the KLA, if it's relevant, you can give it in due course. Now, time is limited. If you want to ask him about the conversations, of course you can.

THE ACCUSED: [Interpretation] The general -- well, I mean the general is speaking in general terms about the KLA, and you did not allow me to show a picture yesterday of the three Musketeers where he is like D'Artagnan with the leaders of these terrorists.

MR. MILOSEVIC: [Interpretation]

Q. General, you actually commanded these formations, these units that ³⁰⁵⁰³ cut off Serb heads.

JUDGE MAY: Now, time is very limited. You're plainly not following instructions you've been given. Your cross-examination is limited to what the witness has given in evidence. The behaviour of the KLA is not relevant to that. What you said about the KLA most certainly is relevant. You've asked questions about it and what other things you've said about it, you've said to the general, that is relevant, and you can ask and indeed you should. If you challenge it, you should deal with it, as you did with the general, General Naumann.

THE WITNESS: Your Honour, may I just have -- ask the permission of the Court to clarify that I did not command the KLA. We never gave assistance to the KLA. We did not direct the KLA. We did not assist its formation. And I met with the leaders of the Kosovar Albanians at Rambouillet as part of a normal diplomatic effort in the same way in which I met with Serbs at the discussions at Dayton, that's all. Thank you for allowing me to insert that for the record.

MR. MILOSEVIC: [Interpretation]

Q. All right, General. Since this has to do with your statement, among other things -- I mean, you are really mocking the truth and logic here. You say in paragraph 28: "We know how to handle these Albanians, these murderers, these rapists, these killers of their own kind. We have taken care of them before." And you talk about 1946. General, obviously you do not know history, the history of the Second World War. Do you know that in this context I did not speak to you about this at all? I'm going to remind you. I was saying that many ³⁰⁵⁰⁴ members of Hitler's army who were Albanians and who had been crushed spent all of two years after the war in the mountains of Kosovo, notably in Drenica, and they were killing people, and that the Yugoslav army spent all of two years with them in Kosovo finishing off the Second World War. They were members of Hitler's units that remained in the hills up there, and the war went on for two more years over there in Kosovo. Truth to tell, it was a low-intensity conflict.

So it is completely false that we surrounded them in 1946 and killed all of them. This went on for two years.

JUDGE MAY: One thing at a time. What is it you're suggesting you said to the general, so that we can understand it?

THE ACCUSED: [Interpretation] I said to the general that particularly in Drenica, the former members of Hitler's units were focused there and that the war went on for another two years with these ballists. They were even part of the SS units, Hitler's SS units. And these bandits --

JUDGE MAY: Just a moment. Let's deal with this. General, perhaps you could deal with that, if you would. The accused is suggesting that what he said was that the war went on for another two years apparently with these units, members of Hitler's units, part of the SS, in Drenica, I understand. Perhaps you could help us. Did he say anything like that?

THE WITNESS: Well, let me put this in context and then go to the specifics, if I might, Your Honour.

What he said was -- this was in the moments after the agreement on ³⁰⁵⁰⁵ ^{BLANK PAGE} ³⁰⁵⁰⁶ the 25th of October had been completed but it had not been signed. It was a moment of relaxation of tension in the agreement. And he turned to me and he explained to me. He said, in essence, that -- he said, "The Serbs know how to handle people like this," equating the Kosovar Albanians with this problem after World War II. And he said, as I remember his words, "We have done it before." And I said, "When?" And he said, "In 1946 in Drenica." And I said, "What did you do?" He said, "We killed them. We killed them all." And General Naumann and I looked at him because it was -- there was such a striking display of emotion on his face. It was a fierce emotional outburst. And we simply continued to look at him, and then he qualified it and said, "Of course, we did not do this all at once, it took several years." But the message that I took from it was that he was equating the resistance inside Kosovo in 1998 to the situation after World War II and that he intended to finish the problem the same way it was done before, despite the statement that he had just prepared that I was going to carry back to NATO.

I took it as a real indicator, a warning of his state of mind. And I looked at the body language of the other officials who saw the outburst, and what they saw was a kind of fierce irrationality on the part of the accused which would brook no discussion and no argumentation. They sort of jumped back as he spoke this way, toward General Naumann and me, as though they had seen it before and that this was what they were dealing with in the person of their leader at the time.

That's why I've offered this in testimony, because I think it's a significant indication of the mind-set that was animating actions in ³⁰⁵⁰⁷ Yugoslavia toward the Kosovars in the fall of 1998. This was the period when between 300 and 400.000 had already been driven from their homes. It's the period when General Djordjevic had explained to me that they only had two more weeks to go to kill them all. And then after I heard Milosevic say this, then I felt like I had insight as to the motivating force behind Serb actions.

MR. MILOSEVIC: [Interpretation]

Q. General Clark, isn't it clear that the reference here is not to Albanians but to terrorists who that year had killed more Albanians than Serbs, as a matter of fact? These were terrorists and killers towards which every country, every nation is entitled to take measures when dealing with terrorists, killers, rapists, torturists, slaughterers. That was the reference, and not to Albanians. I never used the name of a people to link it to killers. Killers are killers. Terrorists are terrorists, regardless of what nation they may belong to. In this case, we were talking about terrorists and killers, and in 1946 --

JUDGE MAY: We must stop there and let the witness answer.

THE WITNESS: Your Honour, if I may. It was very clear to me in the context of the discussions -- and these were discussions all held in English with the accused, who is fluent in English and understands exactly what he is saying -- that after we had completed the statement, he, by implication, didn't put much weight in the promises he was about to send to NATO because, as he indicated to me, he said, "We have handled these problems before. We know how to do it." So there was equating the ³⁰⁵⁰⁸ problems in 1998 with the problems in 1946, and there was a strong suggestion that they would be dealt with the same way, by attempting to kill them all over a period of years, and that was in fact what was already going on and that's what NATO was attempting to have handled through diplomatic means to resolve this issue.

And I might say that it was clear that the context of this fighting had emerged not as in 1998, the context of the fighting had emerged not in the aftermath of a war but in the aftermath of a decade of significant repression of a culture and that this was a desperate means of resistance.

So the motives, the nature of the problem in 1998 was, to my view, entirely different than the problem in 1946, and what was striking to me was the suggestion on the part of the accused that he would handle the problem in exactly the same way, that he knew how to deal with it.

MR. MILOSEVIC: [Interpretation]

Q. That, General, is simply not true. And secondly, when you made that comparison with reference to what was done before, in 1946 I was five years old. I couldn't have spoken in the first person plural. And secondly, General, you certainly must know that it was the German intelligence service, in fact, that worked on the formation of terrorist groups and the equipping of the KLA. As NATO commander, you must have had such intelligence information.

JUDGE MAY: This is totally irrelevant. Whether you were five years old or not is not the point. The point is that this is exactly what is alleged that you said. Now, what we make of it will be a matter for ³⁰⁵⁰⁹ the Trial Chamber, and whether we accept the evidence is a matter for the Trial Chamber, but you must confine your examination to that conversation.

THE ACCUSED: [Interpretation] I was talking about the traditional commitment of certain groups over there in that area in favour of terrorism, looting --

JUDGE MAY: No, we're not going to go into this. You know that your examination is limited. Now, have you any other questions? You've got 20 minutes on the current count, or less. Have you got any more, anything else you want to ask the general about?

THE ACCUSED: [Interpretation] You told me you would give me some extra time, Mr. May. You said you would give me some additional time so please don't say I've only got another 20 minutes.

MR. MILOSEVIC: [Interpretation]

Q. General, as you referred to this October agreement which we, as I claim, did comply with because what you're saying about that conversation is distorting logic. We made an agreement and then I say to you we're not going to comply with that agreement. That is ridiculing elementary logic. That is a pure fabrication on your part. You just put into a context my explanation about the history of events in Kosovo and Metohija, especially in Drenica, within a completely different context. And you're saying that it is a different situation. Of course it is. You put it within the context of a completely different situation. Isn't that clear to you, General?

JUDGE MAY: If you follow the question, General, by all means respond. ³⁰⁵¹⁰

THE WITNESS: Your Honour, if I might first say that I do not believe that the German intelligence service worked on the formation of the KLA. I certainly had no knowledge of it, and I doubt deeply that that is possible in any way. And I want to make that very clear for the record. NATO had no relationship with the KLA, period. But I do want to answer this question again and try to clarify exactly this context. It was in the period after the tension of the negotiation, while the typing was going on, while the pear brandy was being served, on a Sunday midday as the accused was relaxing and having idle chatter. And suddenly he came forward with this statement, and what I found so striking about it was the fierce emotion that animated him. This was a passion. And as I hear his voice today, I remember how chilling it was to recognise that what lay underneath the signature of the agreement seemed to be a clear determination to eliminate the problem of the resistance by killing them all, regardless of what the statement said. He said, "We know how to handle these people. We've done it before." And that's the message I took, and I watched and worried greatly about the future course of events in Kosovo because of the attitude that I saw in the accused.

JUDGE ROBINSON: Did you say anything to him, General, in response to that?

THE WITNESS: I don't recall what I said, whether I said something or not at that point. I just don't remember. All I remember is being stunned by the outburst.

MR. MILOSEVIC: [Interpretation] ³⁰⁵¹¹ ^{BLANK PAGE} ³⁰⁵¹²

Q. Very well, General. We knew each other for some time by then. You say you were stunned by my outburst, and I am prone to outbursts anyway, apparently. I don't remember that I ever had an outburst. At least you cannot refer to it. And you had no response to that. And we had just drawn up this agreement.

General, are you making fun of logic or what? You're taking part in this Tribunal which is being used as an instrument of war.

JUDGE MAY: No. We'll stop this. This is all totally irrelevant, totally your comment, and it's likely to be taken off your time if you're going for comments of that sort.

JUDGE KWON: Let me clarify this matter once again. You said this earlier: The entire conversation was done in English.

THE WITNESS: It was.

JUDGE KWON: Yes. And given that the accused is not a native speaker of English, could you allow the possibility that he could -- might have spoken -- misspoken something, omitted something, or you misunderstood his words?

THE WITNESS: No, I can't, because his English is, or at least it was then, and I don't know how much he is speaking now, but it was so fluent. He was so artful in the use of English. Though he has an accent, his command of the grammar, the vocabulary was excellent in formal English, and it was conversational and it was clear exactly what he meant. And as best I recall this period, at about the time that he made these comments, they brought back in the sheet of paper for us to sign, and so the discussion stopped, the sheet of paper being this exhibit that was ³⁰⁵¹³ shown yesterday with his signature on it despite the fact his name block wasn't put in. And that was pretty much the day, and we left. But I was left with a chilling insight into his temperament and his intent inside Kosovo.

JUDGE KWON: Thank you, General.

MR. MILOSEVIC: [Interpretation]

Q. General Clark, a moment ago you said that the others present - and these were actually generals from the police and the army - sort of stood back when I said this, and now you're saying that I was speaking in English, and none of them speak English. How could they have been shocked if they hadn't understood a word of what I had said? And there was no interpreter around to interpret for them what I was saying to you. Why, General, are you making this whole story up when it's rather kitsch, I must tell you?

A. I remember Milutinovic being there, Your Honour, and he did speak English --

Q. Yes. Milutinovic does speak English. That is true.

A. And I think that the emotion in his voice must have startled people even if they didn't speak English. I can't remember who exactly was there. There were three or four of us standing together when he recounted this.

Q. Very well, General. Are you aware of the fact that after that, after that October agreement, there were 470 terrorist attacks and 22 violations of the border between October and December? This is contained in a letter addressed by our Foreign Minister Zivadin Jovanovic to Kofi ³⁰⁵¹⁴ Annan in December 1998, in which he says that 1.854 terrorist attacks took place, that 244 persons were killed, 566 wounded, and after the signing of the agreement, 470 terrorist attacks from the end of October up until December. Are you aware of that?

A. I don't have any specific knowledge of that. I can't confirm it or deny it. Whether in fact there was such a letter and/or whether in fact there were that many attacks and incidents in Kosovo. Certainly the information that I'd received from reliable sources did not indicate that. What my information indicated was that there was continuing action between Serb military and police and some members of the Kosovar Albanian community and that these Serb military and police units were still engaged, even in areas in which they had previously indicated they would pull back.

Q. General Clark, what you're referring to as certain members of the Kosovo Albanian community, these are the men who did this beheading. Are they members of the Albanian Kosovar community or are they terrorists?

JUDGE MAY: This is not going to assist. The witness is not dealing with these matters. I allowed the last question because it may have had some relevance in your -- whether you complied or not. There seems to be no relevance in that question.

MR. MILOSEVIC: [Interpretation]

Q. Very well. Now, tell me, please, General, in your opinion, these KLA members from the photographs and others, how many civilians did they need to kill and soldiers and policemen for the state to be legitimately struggling against it, to take measures against it? ³⁰⁵¹⁵

JUDGE ROBINSON: General, let us go back to that conversation. You testified that Mr. Milosevic said, "You know, General Clark, that we know how to handle these Albanians, these murderers, these rapists." Mr. Milosevic is saying that he's referring to a situation in the Second World War, and he was speaking about people who were clearly committing illegal acts.

Is it possible that in the conversation you might not have heard a reference to "these Albanians," which to my mind would mean civilians, but that the reference was solely confined to "murderers, rapists, and killers of their own kind"? So what I'm asking is whether it is possible that you might have heard a statement minus the reference to "these Albanians."

THE WITNESS: No. I think that the intent of the statement was very clear. It was that Milosevic was equating the resistance in 1998 to Serb repression to the activities in 1946, and the implication was that he would handle them the same way, at least that that was what was in his mind to handle them. That's why he was saying, "We know how to handle these people." And that's the clear message I took from it. I didn't have a tape recorder. I remember the phrase "murderers, rapists, and killers of their own kind." That's exactly what he said to General Naumann and me in English at that point. And it was clear to me that he wasn't just giving us an historical fact but that he was saying that that historical fact related to the current situation, and that's the message I took from it. That's why I had such a foreboding that the agreement, when I took it back to NATO, might not mean much.

JUDGE ROBINSON: So in your view it would not have made a ³⁰⁵¹⁶ significance difference --

THE WITNESS: No.

JUDGE ROBINSON: -- whether he referred to Albanians.

THE WITNESS: That's correct, Your Honour. That's exactly right.

JUDGE ROBINSON: Yes, Mr. Milosevic.

THE ACCUSED: [Interpretation] Thank you.

MR. MILOSEVIC: [Interpretation]

Q. You didn't answer my question. How many civilians, soldiers and policemen did the KLA have to kill for the state to be allowed to respond to such terrorism? Because obviously that was what was happening.

THE WITNESS: Your Honour, if I -- when I answer this question, I'm going to be going into some very high-level matters here, so I want to put the whole situation in context in an effort to answer this question.

JUDGE MAY: Before you do, General, perhaps you might like to think of the various parameters which we have set in relation to it. I've only allowed that question on the basis of the suggestion that these agreements were not being kept, and the response, as I understand it, that they were involved in terrorist fighting.

If you could deal with it within those parameters, perhaps you can.

THE WITNESS: We had -- we had observers, and we were receiving information from observers, men like Shaun Byrnes, that indicated that there had only been partial compliance by the Serb side with the agreement and that there was some scattered exchange of gunfire and other matters still going on in the areas, including areas around Malisevo and others ³⁰⁵¹⁷ ^{BLANK PAGE} ³⁰⁵¹⁸ that were specifically discussed between me and the Serb generals and were part of a phased pull-back plan.

There was nothing from the information I received to indicate that there was any fighting of the intensity that the statistics that the accused has presented did in fact take place. We had no verification of that kind of intensity in the fighting. What we did have indication of was that the Serb side had not fully complied and that there was still an exchange of fighting.

Now, in that agreement which was an annex to the agreement given at another point, there was also to be a cessation of fighting by the Kosovar Albanian side, and it was, as I recall, the judgement of the observers that both sides had incompletely complied. Nevertheless, there was -- the intensity that the accused is describing wasn't there in any of the reports that I received.

Instead, what was happening at the time was an effort to resume some diplomatic settlements, and US ambassador to Macedonia, Chris Hill, had been empowered to meet with the respective parties and try to broker some kind of a solution that would see a division of territorial responsibilities or division of power or some other means that would stop the conflict, and that was what was happening there in the November period. I don't recall the details of those negotiations right now, and I don't have access to the facts, but it was a period in which the violence had diminished and there was a window of opportunity for diplomacy to enter and solve the problem if in fact it was the intent of the Serb side to use diplomacy to solve the problem. ³⁰⁵¹⁹

MR. MILOSEVIC: [Interpretation]

Q. By "diplomacy," General, you are implying Rambouillet, aren't you General? That's what you're implying by "diplomacy"?

A. Your Honour, by "diplomacy" I'm implying right here is the meetings that US Ambassador Chris Hill had. And I can't recall exactly, there were some other meetings during that period October, November, December of 1998. This was pre-Rambouillet.

Q. Well, that's the point, General, that in that period of time, apart from the terrorist attacks, there was absolutely no repression except against the terrorists. Surely you have information about that. Isn't that right, General, or not?

A. Your Honour, the information that I have indicates that the Serb military and police did not fully comply with the agreement, that the Albanian resistance, therefore, continued and that the diplomacy was ineffective and that plans were being made to resolve the problem not through diplomacy -- plans by the Serbs to resolve the matter not through diplomacy but through the use of force. And this was the period in which the diplomacy failed, it led to the massacre at Racak, and subsequently to Rambouillet.

Q. General, the activities of the police were exclusively limited to the fight against terrorism. You mentioned General Djordjevic, and you have in paragraph 21 that, according to Djordjevic's information, they had intended to destroy the whole province, and you were trying to capture 410 people. And Djordjevic responded, "We needed only another two weeks to kill them all, and you prevented us. Why did you stop us?" Djordjevic ³⁰⁵²⁰ could never have said any such thing to you, General. You say, "Don't you understand that you can't stop anything such thing by using force, especially against civilians?" And Djordjevic did not respond. But Djordjevic, who is an honourable man and a police general, always reported that the police were strictly abiding by the order not to open fire, even against the KLA, if there is any danger of civilians getting hurt. He personally made sure that the police, by issuing appropriate orders --

JUDGE MAY: You know you're here to ask questions. You can ask one question arising from that before we adjourn. What is it you want to put?

MR. MILOSEVIC: [Interpretation]

Q. Please compare what you said in paragraph 21 that I quoted from with paragraph 28 in the lengthier statement where it says Perisic informed about army deployment. These are the technical talks that you engaged in because you were actually engaged in those technical military talks. The political talks were led by Holbrooke and not you. And then you say, "Djordjevic did the same with regard to MUP. Both referred to maps during the meetings. Clark remembers that on the map used by Djordjevic, the positions of the KLA had been marked." They were marked, the positions of the KLA. "And Clark, on the basis of the map, made notes and believes that they were true," which means that the police general was showing you a map with the positions of the KLA indicated on it, and it is your judgement that the map was correct. The KLA is a terrorist organisation, and this is something that ³⁰⁵²¹ was confirmed here by Ashdown, Gelbard, your envoy, that these were terrorists. Djordjevic shows you the positions of the KLA, you believe the map to be correct, but at the same time you believe that the police must not intervene against these who cut off heads. So you believe that the police must not intervene.

JUDGE MAY: I find it quite incomprehensible to follow this sort of question.

I think it's been suggested, General, that the conversation in 21, the suggestion that they were about, apparently, "two weeks of killing them all when you stopped us," I think that is being challenged. Perhaps you could deal with that specifically, how you recollect Djordjevic making that comment.

THE WITNESS: Your Honour, thank you. First of all, if I might, I don't accept the definition of the KLA as a terrorist organisation. I want to state that for the record.

Secondly, Djordjevic did make those comments precisely as I've described orally and in previous testimony, and the issue, in my view, is the proportionate use of force and the conduct and character of the Serb activities in Kosovo.

Over a period of a decade, the Serb control of Kosovo had been tightened. It was a repression of the majority population. It was enforced by the police. It was accompanied by selective eliminations.

THE ACCUSED: [No interpretation]

JUDGE MAY: Just a moment. Let the witness finish. No. You began this with a very lengthy explanation or question, so let the witness ³⁰⁵²² finish and then we'll adjourn.

THE WITNESS: It was accompanied by selective eliminations of leaders of the Kosovo Albanian community. I had many explain to me how they couldn't be schooled in their own language, they couldn't hold positions in various government organisations, et cetera.

THE ACCUSED: [Interpretation] That's a lie.

THE WITNESS: So there was a systematic cultural repression --

THE ACCUSED: [Interpretation] That's a lie.

THE WITNESS: -- which ended up sparking a resistance movement. The appropriate way to have dealt with this would have been not through the use of force, as I was trying to explain to General Djordjevic, but through the use of dialogue and restraint, because it's simply a matter of military history that when you use force in an effort to restrain movements like this that have broad popular support, it's not going to work. Not only is it illegal, but it's also ineffective. And Djordjevic had no answer. He was obviously operating under instructions. It was clear to me, Your Honour, at the time, that Djordjevic was in the good graces of the accused. The accused thought very highly of him. Djordjevic seemed to be an efficient officer. He had facts at his command. He pointed out to me the locations. But he was obviously operating under instructions, and it was a policy designed by the accused. The accused was there. He came in during these military technical talks on the night of the 20th of October. Watched us as we discussed around the map the locations of the KLA. So he wasn't an isolated, distant political leader. He was very closely engaged in the character of the ³⁰⁵²³ ^{BLANK PAGE} ³⁰⁵²⁴ activities there.

And I think the character of the activities could only be described as illegal and causing a humanitarian catastrophe. Some 350 to 400.000 people had been forced out of their homes in the late summer and early autumn of 1998, according to observers' figures. Now, NATO wasn't there, I didn't have direct access to my own chain of command intelligence, so this is taken from other sources. But there was clearly a major problem in the summer and fall of 1998 caused by the activities of the Serb military and police.

One of the Albanians came to me and he told me that from the mountains overlooking Kosovo, they could see the Serb military firing artillery against the villages in the Drenica area, and this was as early as April of 1998. And so those don't fall into the character of normal police activities.

And that's what the basis of this seemed to me to be all about. You had a disproportionate use of force, an illegal use of force, it was predicated toward replicating the 1946 --

THE ACCUSED: [Interpretation] That's not correct.

THE WITNESS: -- solution, at least as I watched it all unfold, and this is what led to the crisis in 1999.

JUDGE MAY: Thank you. We're going to adjourn now. We take it into account the fact that we've gone past the adjournment and you've had some extra time, but nonetheless, we said we would give you some extra. You've got another 20 minutes more questioning.

We will adjourn now. Twenty minutes. ³⁰⁵²⁵

--- Recess taken at 10.38 a.m.

--- On resuming at 11.03 a.m.

JUDGE MAY: Yes, Mr. Milosevic.

THE ACCUSED: [Interpretation] How much more time are you going to give me, Mr. May?

JUDGE MAY: Twenty minutes.

THE ACCUSED: [Interpretation] That's not sufficient for me, but I'll try to clarify certain matters.

MR. MILOSEVIC: [Interpretation]

Q. So yesterday, or at least in paragraph 28 of this longer statement, you said that Djordjevic told you the KLA positions, which were accurate to a large extent, and then you also said --

THE INTERPRETER: The interpreter could not hear the rest of the statement.

MR. MILOSEVIC: [Interpretation]

Q. General Clark, do you know that the police and the military are not engaged in dialogue? They're not supposed to be. It is for politicians to engage in dialogue. At meetings with Rugova and other Albanian politicians, there was Milutinovic who was then president of Serbia, and Sainovic, the Deputy Prime Minister of the federal government, and members of government of the Republic of Serbia. So they were the ones that were engaged in dialogue. I assume that you know that, General Clark.

A. Your Honour, I do know that. I know that there was discussion, but the cause, the motive force behind the conflict was, in fact, the ³⁰⁵²⁶ repressive actions of the military. The police first, and then increasingly the military engagement that was there, coupled with the policies of the civilian Serb leadership. This was a policy of incremental ethnic cleansing which came to be implemented in this province at the expense of the majority of the inhabitants.

Q. Ethnic cleansing in Kosovo was carried out against the Serbs, General Clark. I assume that you know that.

As for the police and its activities, I assume that you will agree that the police, when it learns of certain things, as Djordjevic explained to you where the KLA positions were, that in a house there is a group of terrorists, then it is the task of the police to surround them and arrest them. And if they shoot at the police, then the police shoots at them. Is that what the police does in your country?

JUDGE MAY: Only what happens in Kosovo is of any relevance to this trial. What is it that you want to put?

MR. MILOSEVIC: [Interpretation]

Q. So the question is: Is it clear that if the police acts in accordance with the law, and the police can only act in accordance with the law, when it is faced with a group of terrorists, killers, then they try to arrest them? Isn't that right? Isn't that right, General Clark?

A. I think there are two relevant facts in response to your question. First, Your Honour, I think it's clear that over a period of a decade there was systematic repression of the majority population in Kosovo, repression that was enforced by the police and by the system of laws that were imposed on the population. ³⁰⁵²⁷ And secondly, I think it's clear that there was excessive use of force by both the police and the army and that this increased the motivation of the population to resist.

I remember the specific incident as recounted to me by the president of the neighbouring country of Macedonia, and this was the massacre of the Jashari family, in which the police did in fact reinforce with heavy weapons surround the family compound. They reduced it. The reports were some 60 members of the family were inside and were killed. This made news. And President Gligorov, who understood the Albanian community well, warned me that this is the kind of incident that these people, these Albanians, will simply not tolerate. It was murder for these people in this family compound. Most of them were unarmed, they were not resisting, they were simply killed. And that's what incited the population.

Q. That was discussed here. This group of Jasharis was a group of killers, and the police called everyone to come out, and they called on him and his accomplices to surrender. He, on his part, shot at the police, and his accomplices shot at the police. The police could not have known, since a group of civilians had already walked out of the house, whether another group of civilians had remained in the house. There is a number of survivors, so it is quite clear that the police had no intention whatsoever of putting civilians in harm's way.

So I'm asking you once again whether you know whether General Djordjevic said to this to you and the others, that he was precisely the person who was trying to make sure that this order was being carried out ³⁰⁵²⁸ and that even KLA members should not be targeted when civilians could be harmed. Do you know that, General Clark?

A. Your Honour, I never heard this order. General Djordjevic never referred to this order. And based on the information that I had from reliable sources, this order was in fact not carried out. There was indiscriminate shooting in this province by the police and the military.

Q. You're talking about 1998. There were no attacks against the civilians conducted by the army and the police. Are you aware of that, General Clark? Especially that summer that you've been referring to. And also in Malisevo that you favour to such an extent, that is where KLA headquarters were; right?

A. Your Honour, I don't know where KLA headquarters were. I do know that, according to General Djordjevic, Malisevo was a centre of KLA. I don't have any independent corroboration of that. But I do know from the record that I recall that there were actions by the police and army against the civilian population in the summer of 1998. That's why some 300 to 400.000 people had fled their homes. And I do recall very clearly the Albanians telling me that they could look over from the mountains of Albania and see the artillery fire falling on villages in the western part of the province.

Q. All right. Let's leave that aside, what the Albanians told you. These stories of theirs are well known.

You said a short while ago that you wanted to have something struck from the record. You wanted to say, as a matter of fact, for the record that the KLA was not a terrorist organisation. Isn't that right, ³⁰⁵²⁹ ^{BLANK PAGE} ³⁰⁵³⁰ General Clark?

A. Your Honour, I do not consider the KLA a terrorist organisation.

Q. All right. Tell me, then, who was it then in 1998 that carried out these 1.854 terrorist attacks, having killed hundreds of people, having wounded hundreds of people, civilians, policemen, soldiers? Who did that then in 1998 if not terrorists? Who could have done it?

JUDGE MAY: I'm going to stop these rhetorical questions. What is the question?

MR. MILOSEVIC: [Interpretation]

Q. Well, who carried out these acts of terrorism, General Clark, if they are not terrorists?

A. Your Honour, I have no independent confirmation of the number or significance of the violence in Kosovo that's being cited, but based on the discussions that I have had, the information that I recall at the time, what we had was a pattern of violence and intimidation that began with the police and military in 1998, and it was a pattern of intimidation and violence that put the civilian population at risk. And the civilian population had no recourse. They had no representation on the police. They had no means of communicating with the police. They had no means of trust of the police because all of this was part of the instrumentality of repression.

So it's understandable that they wanted to defend themselves and protect themselves. Most did this by simply fleeing their homes. Some may have tried to resist by force of arms. That's the tragedy in this case. But it's a tragedy whose causes lie with the policy of ³⁰⁵³¹ repression and excessive use of force that the accused was responsible for.

Q. General Clark, since you claim that these individuals who carried out these acts of terrorism are not terrorists, although several resolutions of the Security Council refer to terrorism in Kosovo, you nevertheless claim that they are not terrorists. Please answer a question: Is your election campaign financed by Albanian circles including the KLA?

JUDGE MAY: That's a totally improper question, totally improper and irrelevant.

General, you do not have to answer this sort of thing.

THE WITNESS: I think it's important that I do answer it, and the answer is no.

MR. MILOSEVIC: [Interpretation]

Q. All right. All right. Tell me, please, General, this is The New Yorker, the issue of the 17th of November. It carried an interview with you as well, and it says here in the interview: [In English] "Shelton, the former chairman of the Joint Chiefs of Staff, was Clark's boss in 1999 when Clark was unceremoniously told that he was being removed from his position as Supreme Allied Commander, Europe."

[Interpretation] Then Shelton is quoted: [In English] "'I've known Wes for a long time,' Shelton said. 'I will tell you the reason he came out of Europe early had to do with integrity and character issues ... Wes won't get my vote.'"

[Interpretation] So your former superior talks about your ³⁰⁵³² character. Isn't that right, General Clark?

A. Well, Your Honour, I'm -- let me explain a couple of things. First of all, Shelton was not my superior. He was the chairman of the Joint Chiefs of Staff. I reported to the Secretary of Defence through General Shelton. I also reported to Secretary-General Solana through military committee and North Atlantic Council.

I would like to offer the following: First, here are the remarks made about me by Secretary Cohen, my superior, after the Kosovo campaign on the 1st of December, 1999. He made these remarks at the Marshall Centre for Studies in Germany. He said: I want to "pay tribute to a gentleman who is sitting in the audience ... and that is General Clark. ... One of the great strengths ... is the genius, the competence and the professionalism of General Wesley Clark." Secretary Cohen continued: "I don't know of anyone who had a greater challenge than to hold 19 democracies together while conducting some 34.000 sorties and holding and managing all of that together during a very stressful time. I would like to pay tribute to his professionalism and the outstanding job that he has done serving as our Supreme Allied Commander..." That was Secretary Cohen's commendation when I was serving. When I changed command and left command, here is what Secretary Cohen had to say: "To help preserve freedom at the end of the century, America turned to the leader that we honour today. In General Wes Clark --"

Q. Wait a minute, General Clark, please. I'm asking him about Shelton.

JUDGE MAY: Of course you are, but the witness is entitled to ³⁰⁵³³ reply, and he's doing so.

THE WITNESS: "In General Wes Clark, America found a scholar, a soldier, and a statesman: a scholar who understands the forces of history on our time; a soldier of unquestioned courage - a Bronze and Silver Star hero - who, despite grievous wounds, inspired his unit to survival in the jungles of Vietnam, and as soldier of insight who returned home to train those who prevailed in Desert Storm. He is a statesman, whose influence has been felt from the Americas, where he helped guide the fight against drug barons, to Dayton, where --"

THE INTERPRETER: Could the witness please be asked to read slower. The interpreters do not have the text. Thank you.

THE WITNESS: Okay. I understand. "... where his counsel helped end the bloodletting of Bosnia."

Secretary Cohen continues: "Now, it has been said that, 'without passion man is a mere latent force and possibility, like the flint which awaits the shock of the iron before it can give forth its spark.'" Secretary Cohen continued: "Future historians will recount how the passionate leadership of Wes Clark and the dedicated men and women of this command combined to spark new possibilities across this continent, forging new bonds in a great Partnership for Peace and serving alongside soldiers from some 38 nations to bring peace to Bosnia and Kosovo." Secretary Cohen continued, "And I would add," he said, "that the service of General Clark ... has actually come full circle. He was there on that muddy mountain road five summers ago when three of America's best gave their lives trying to end that war. And he has been there so many ³⁰⁵³⁴ times since, turning the plan he helped to craft at Dayton into what we hope will be a durable peace."

Secretary Cohen continues: "General Shelton has reminded us of the historic accomplishments further to the south," implying meaning Kosovo. "Indeed," Secretary Cohen continues, "while it may be tempting to view darkly the challenges of the moment in Kosovo, I would say to all who are here today that no one, no one should ever doubt either your service or your success. Faced with an adversary who manufactured a vicious humanitarian nightmare, you responded with compassion and speed to relieve human suffering. Faced with an adversary who tried to maximise civilian death and misery, you responded by minimising the suffering of the innocent."

"Just a year ago today," Secretary Cohen continues, "Serbian forces were on a rampage and nearly a million Kosovar Albanians had fled, threatening to overwhelm their neighbours. But you responded, and today, Milosevic's thugs are out of Kosovo --"

THE ACCUSED: [Interpretation] Are we going to listen to all of Cohen's speech now?

JUDGE MAY: Just a moment. Perhaps, General, you could come to a conclusion fairly rapidly.

THE WITNESS: I want to, Your Honour, thoroughly disabuse the accused of the idea that there was any reflection on my character and integrity, and I want to assure this Court that there is no merit whatsoever in the statement made by a military colleague during the course of a political campaign, and that's the reason I'm asking to submit this ³⁰⁵³⁵ ^{BLANK PAGE} ³⁰⁵³⁶ statement to the record. And I would beg the forbearance of the Court to continue, because I think it's important to lay to rest this charge. And Secretary Cohen --

JUDGE ROBINSON: How much longer is it, General?

THE WITNESS: About another 30 seconds, if I may read at a normal pace, Your Honour. I'm sorry to read slowly here. And Secretary Cohen continues: "So, General Clark, men and women of EUCOM, we thank you again for your outstanding leadership..."

So then I want to just add to the record the remarks that President Clinton made when I was awarded the Presidential Medal of Freedom. And I will read these just in summary, very quickly, to be finished. "Wes Clark understood the perils of the Balkans. He already play a vital role. He summoned every ounce of his experience and expertise as a strategist, soldier and statesman to wage our campaign in Kosovo. He prevailed, miraculously, without the loss of a single combat casualty. At the apex of a long and distinguished military career that goes back to his outstanding performance as a cadet, he was assigned a challenge many experts --"

JUDGE MAY: Could you slow it down.

THE WITNESS: "... instead, General Clark -- thanks to General Clark, we now can declare it mission accomplished." Your Honours, I would like to submit these for the record in refutation of the charge of the accused against my character.

JUDGE MAY: Very well, we will certainly consider that.

THE WITNESS: I will also, I believe, have additional material ³⁰⁵³⁷ that will be submitted for the record from others in the United States who may have been referred to here.

JUDGE MAY: You can have another five minutes, Mr. Milosevic.

THE ACCUSED: [Interpretation] Well, he took up all my time, General Clark did, by having read these speeches that are a matter of protocol.

JUDGE MAY: You are getting time in lieu.

MR. MILOSEVIC: [Interpretation]

Q. So, General Clark, since you say that what Shelton said here is not correct, that it's totally wrong, then why were you removed from your post in Europe prematurely?

A. Your Honour, I would like to answer this question, because in all candor, there was a policy difference between General Shelton and myself. I believed that the United States and NATO could not prevent, could not -- sorry, could not permit another round of ethnic cleansing in the Balkans led by the accused, and I worked hard to warn the United States government of what was going to happen, and I provided policy recommendations, and my recommendations were accepted. The United States acted, and it acted to halt in progress a round of ethnic cleansing.

Some people in Washington may not have agreed with that, but that's what we did. I'm very proud of what was accomplished, and we saved a million and a half Kosovar Albanians from ethnic cleansing.

MR. MILOSEVIC: [Interpretation]

Q. You caused a humanitarian catastrophe, General Clark. You didn't save anyone. And since you were the NATO commander, I assume that you ³⁰⁵³⁸ know that the Helsinki final act explicitly authorises states to fight against terrorism in their own territory and that no other state has the right to stop it or prevent it from doing that. You interfered in this conflict and you took the side of the terrorists, General Clark. Is that right or is that not right?

A. Your Honour, NATO acted to try to prevent a fourth war in the Balkans. We did this with the concept of diplomacy, but it was a diplomacy that Mr. Milosevic refused to consider until it was backed by the threat of force. As I recounted to the Court, I delivered that threat of force. It produced a pause during which diplomacy could have taken action, but it's my belief that the accused had already settled on a course of action that did not include diplomacy. Instead, he intended to pursue the solution that he had warned me in the meeting that he would pursue. It was the effort to kill them all, and it unfolded beginning in January of 1999 with the massacre at Racak. He fought off the efforts of the Western community to seek a diplomatic solution to the problem in Kosovo.

And finally when there was no recourse, NATO did take military action in an effort to prevent an unfolding campaign of ethnic cleansing, and we went through a 78-day air campaign in an effort to turn around the ethnic cleansing that the accused and his government perpetrated against the Kosovo Albanians. And in fact we did turn it around.

JUDGE MAY: Your last question.

MR. MILOSEVIC: [Interpretation]

Q. I have many questions for General Clark. But since you're talking ³⁰⁵³⁹ about Racak, General, do you know that there was a KLA unit in Racak consisting of tens of men? Its commander testified here, stating that they were the first to open fire against the police that entered the village, and that the police that was entering the village had reported this to the verifiers. We also saw two orange vehicles of the verifiers when the police was entering Racak. We saw that on video footage here. Do you know all of that? Do you know that this was a clash between the police and an organised group of terrorists of the KLA? Do you know that? These are things that were presented here quite clearly.

JUDGE MAY: That's not a total representation of the evidence which we've heard here, and the witness should not be misled about that, but we -- you can certainly ask the question as far as the general was concerned.

The question is, to the general, did you know it was a clash between the police and an organised group of terrorists at Racak? Did you know that or anything like that as far as your information was concerned?

THE WITNESS: Your Honour, my initial information came from Ambassador Walker who informed me he'd seen the site, he'd looked at the people, and that it was a massacre, and that these people were farmers, they were shot at close range in a ditch. They'd been herded there out of the village and murdered. That's the information that he provided. That's the information that could have been investigated by the International Criminal Tribunal, and that's in fact what NATO had recommended. That's the message that General Naumann and I carried down to the accused, and he refused to permit the investigation, instead ³⁰⁵⁴⁰ telling us that it couldn't have happened that way, he was certain of that, before there was any investigation whatsoever.

JUDGE MAY: Mr. Kay. Questioned by Mr. Kay:

Q. General --

THE ACCUSED: [Interpretation] Mr. May, in connection with data presented by General Clark regarding refugees, let me just try and confirm one point.

MR. MILOSEVIC: [Interpretation]

Q. In your book, you say --

JUDGE MAY: No. You know, we gave you a certain amount of time. You've had it. We'll consider later whether we'll consider any question from you. What page of the book do you want to ask about? Which page is it?

THE ACCUSED: [Interpretation] 268th page of the Serbian translation when General Clark claims, and it is -- the reference is to the tenth day of the war, the 3rd of April, and he says: "Our information indicated that there were about 100.000 refugees in Albania and 50.000 in Macedonia, which makes a total of 150.000 on the tenth day of the war." Isn't that the best confirmation --

JUDGE MAY: Very well. We're going to -- we're going to stop this -- I'm going to stop you. The Prosecution can find the passage and we can return to it after Mr. Kay's cross-examination and see whether it's one of the passages to which you referred earlier, and we'll consider whether to allow a question about it. ³⁰⁵⁴¹ ^{BLANK PAGE} ³⁰⁵⁴² Yes, Mr. Kay.

MR. KAY:

Q. General, just taking up the last series of issues the accused was asking you about before the question concerning Racak. It would be right to say, would it not, that the UN Security Council did not pass a Resolution affirming your bombing of Yugoslavia?

A. Your Honour, that's correct.

Q. The Resolutions that were passed which we've referred to were Resolution 1160, 1199, and 1239, and 1203. And in those Resolutions --

JUDGE MAY: How does this arise from the examination-in-chief?

MR. KAY: It doesn't arise precisely from the examination-in-chief but it's been an issue that has emerged and it would be an issue that perhaps is relevant to the issue of self-defence as pleaded by the accused.

JUDGE MAY: Yes, but you know, we have been through this a lot, and it may or may not become a legal argument.

MR. KAY: I was going to deal with the document of the 25th of October which has the statement with it. Perhaps if I go to that it might assist the Court to look at the matter.

Q. General, if we look at the document which is Exhibit 94, tab 3, that's the record of the meeting in Belgrade of the 25th of October, 1998.

A. Yes.

Q. As the front page of the record makes clear, your meeting with the government of Serbia was on the basis of the Resolutions that had been passed by the UN Security Council, and in particular 1199; is that right? ³⁰⁵⁴³

A. That's correct.

Q. Could you just confirm for the record --

A. Confirm for the record.

Q. Yes, please. And as we know, there has been evidence in this Court that the Resolutions passed - 1160, 1199 - expressed concern about events that were happening in 1998 in Kosovo. If you could confirm.

A. This is correct.

Q. Thank you. As part of the international effort to deal with those events, you had, with General Naumann, visited on behalf of NATO the Serbian government to discuss those affairs with which the Security Council was concerned.

A. That's correct.

Q. At this stage in 1998, you were aware of the history of the matter, that there was a -- a group described by the accused here as a terrorist group. You don't accept that definition, but if I can just use the phrase because it's one that has been used regularly here, that there was the KLA which had been operating within Kosovo over the previous 18 months?

A. That's correct. I'd heard of that organisation.

Q. You were aware of the concerns of the Serbian government as to the activities of the KLA within a part of their territory and in respect of which they wished to take steps to prevent casualties, harm, and destruction.

A. That's correct.

Q. You were aware as well that the United Nations was concerned about ³⁰⁵⁴⁴ the issue of proportionality, was concerned about the issues of the treatment of the indigenous population, the Albanian Kosovars, and were concerned to ensure that there was as peaceful a situation within that province of Kosovo as possible?

A. That's correct, but I want to return just for a moment to the previous question about the concerns of the Serbian government, because I wouldn't want it to be taken that I agreed that the concerns of the Serbian government were limited to taking steps to prevent casualties, harm, and destruction. I did not feel that that was the limitation of the concerns of the Serbian government. I was aware they might have described them that way, but I did not agree, based on their actions that I was observing, that their concerns were limited to those matters.

Q. Very well. You had reservations about their position, but it would be right to say that you have to acknowledge there was this political problem within Kosovo that that government had to deal with.

A. I would say that they had created a political problem that they were dealing with by the use of force rather than attempting to deal with it through political means. This was the very heart of the issue of the matter.

Q. If we look now to the statement that was also issued on that day - and I'm turning to the second page of tab 3 of Exhibit 94, Your Honours- paragraph 1 of that document, recognising the Security Council Resolution of 1199 and proceeding from the fact that organised terrorism has been defeated in Kosmet and that all actions against terrorists have ceased as of September the 29th, 1998, the authorities of the Federal Republic of ³⁰⁵⁴⁵ Yugoslavia have decided, amongst other measures, to undertake a series of actions. And essentially those series of actions can be summarised as attempting to put a normal, peaceful position within that province over which that government had control, authority. Do you agree?

A. I do.

Q. In the second paragraph of the document, it states: "In order to further encourage the return to peace and normality, the state authorities of the FRY will bring down the level of presence and the equipment of security forces throughout Kosmet to normal levels ... preceding the outbreak of terrorist activities." Is that right?

A. That's right. And in a previous question also I'm taking at face value the content of the document. I'm not including in the answer the intent of the accused as it was expressed to me, or the underlying intent of the accused as it was expressed to me, I'm simply affirming the face value of the document.

Q. Let's look at the goals then within the document, if I can put it in that way, as to what was stated was needed to be achieved. And we can see through the document that it essentially concerns the withdrawing of forces to peacetime levels, heavy weapons. I'm looking at the next page now: The police down to normal peacetime activities, additional units before February 1998 to be withdrawn. Because it was seen as from February 1998 that the intensification had occurred, that that is when the materials were brought into Kosovo; is that right?

A. As far -- yes. That the intensification occurred at the time of the -- on or about the time of the attack on the Jashari family. ³⁰⁵⁴⁶

Q. Yes.

A. But I don't have the specifics as to whether that was -- that precipitated the build-up or that was a result of the build-up. I just don't know.

Q. The idea being a de-escalation and what has been called on a number of occasions within this court an October cease-fire in 1998.

A. Correct.

Q. If we just get to the end of the document, there was also the provision in Roman numeral paragraph III: "The FRY intends to comply unconditionally with the UN Security Council Resolution 1199 and the actions described above. It calls on all other parties to also comply unconditionally with this Resolution."

And that, in effect, would have been the KLA or the terrorist groups that were otherwise operating; is that right?

A. That's correct.

Q. "The FRY remains committed to seek solutions to all outstanding issues and problems peacefully and in consultation with the OSCE. However, as a last resort and consistent with the right of self-defence, the state authorities retain the right to respond adequately and proportionately to any form of terrorist activity or violation of law which could jeopardise the lives and safety of citizens and representatives of state authorities."

At this time in October 1998, it was still appreciated that there was a right of the state of Serbia to be able to protect itself in self-defence as well as to proportionately respond to terrorist activity ³⁰⁵⁴⁷ ^{BLANK PAGE} ³⁰⁵⁴⁸ or violation of law. That's right, isn't it?

A. That's correct. And let me, if I could, explain, because this was a very carefully considered statement on the part of NATO which I had -- before this statement was carried forward, we had considered this. Unless we wanted to put a NATO peacekeeping force in, into the conflict, we could not deny the right of self-defence to the Serbian authorities. But the important language here is the language of "proportionately." In other words, the idea was to return, just as you suggested, the province to the normal rule of law and normal police activities and pull the heavy weapons out and stop the use of heavy weapons against the population. And so that's why the phrase, or the word "proportionately" was in there.

Q. At this stage, of course, this statement was being viewed as goals that were attempted to be achieved and that a cease-fire would take place. Yes?

A. Yes.

Q. However, during the cease-fire, it became apparent, did it not, that the KLA took that as an opportunity to revive itself and rearm?

A. I think that's a question of fact in which both parties, the KLA and the government, bear some responsibility, because in fact, neither the Serbs nor the KLA fully complied with the intent of this period.

Q. But that was the problem, wasn't it, that the -- as viewed from the Serbian side, that during this period when they were to be withdrawing, that the opponent they had on the other side, which at that stage was very much an opponent that was to a very great extent quite defeated. It was not an opponent that was a vigorous and strong opponent ³⁰⁵⁴⁹ at that stage in October of 1998.

A. Well, I think there may be a misperception here in that you are assuming, I think, a certain parallelism. There wasn't that parallelism. The effort was not to have a cease-fire in which the parties would maintain their respective military relationships. It was to set a pause in a cease-fire in which diplomacy could work to find a political solution to the problem. It really had nothing to do with the presence or absence of the KLA, because had there been a political solution to the problem, the KLA would have been irrelevant, and it would have lost support of the population.

The KLA was drawing support from the population precisely because of the actions of the Serb military and police. It was their only means of defence against the excessive use of force. And in fact, what happened was that the Serbs continued the excessive use of force. They did not follow this statement to use force proportionately.

Q. It may be a matter of evidence, and the Judges have heard a lot of evidence about this, as to what actually happened during this period and as to whether the KLA were in fact arming and then caused the Serbs to react. That may be a matter of evidence. But you don't disagree with the proposition that in fact the KLA did restore itself, rearm, and equip during this breathing space?

A. To the best of my knowledge, and again, Your Honour, I'm not familiar with all the evidence that was presented to the Court or how the Court may have this information, but the information I recall at the time was, yes, there were casualties in the KLA, and they did evacuate ³⁰⁵⁵⁰ casualties, they replenished, and they took some limited actions within their means.

Q. The Security Council Resolutions, of course, were concerned with the generality of the problem and on both sides they expressed condemnation of the Serbian state but they expressed condemnation of the other side as well, the KLA, the terrorists. You're aware of that?

A. I don't have the specific language in front of me but I do recall in general that.

Q. I've got copies of the Security Council Resolutions here with me.

MR. KAY: And it may be that we put them in at this stage, Your Honours.

Q. Dealing then also with the whole of the context of this issue after October of 1998, meanwhile you were building up forces around the state of Serbia.

JUDGE MAY: You know, we stopped this in relation to the accused, and the fact is that the witness has come here to deal with very specific issues and not with generalities. As you rightly say, we've heard much other evidence about it.

MR. KAY: Your Honour, why I was dealing with this issue is this: I'm not dealing with events after the 24th of March, 1999, but I'm trying to put the context for the state of Serbia -- well, the picture into a context for the state of Serbia. There are foreign forces building up around that state, obviously equipping and arming. There is also the build-up of the KLA that we've heard about in evidence. So there are clear issues of government that that state has to take. When it's ³⁰⁵⁵¹ criticised for not withdrawing or for reentering into the province, there are issues here relating to the government of the state that the state may be entitled to take certain decisions to protect its territorial integrity.

[Trial Chamber confers]

JUDGE MAY: Very well. Very well.

MR. KAY:

Q. Isn't that right, General, that that is the picture that we should be looking at within this snapshot of history from the October to -- 1998 to March of 1999, that there were build-up of foreign forces around the Republic of Serbia over which you had command?

A. No. I think that's a very incomplete picture. That's a one-colour snapshot of a multicoloured situation. Let's put it in context, Your Honours, if I might.

First of all, there had been an effort for several years to constrain the Serb repression of the Kosovars, going back to the first Bush administration, which in December of 1992 had issued the so-called Christmas warning, implying that there was a certain threat of force that could be levied against Serb forces were they to provoke a humanitarian catastrophe in Kosovo. I don't have the exact wording of that warning, but it could be provided for the record.

And accompanying that, for years there had been an effort to bring about a diplomatic resolution, to ameliorate the harsh policies of ethnic repression that the Serb government had promoted in Kosovo that were fuelling the resistance there, a resistance in -- that had arisen in ³⁰⁵⁵² self-defence inside that province and for no other motives, and that evening during this period of 1998, what was being attempted was a diplomatic resolution, an effort to bring the parties of the struggle together and somehow to peacefully manage a restoration of civic harmony in which two different populations could co-exist and live together without the intimidation of the majority by the instruments of repression controlled by the minority.

This is what was being sought. As far as the military instruments are concerned, the military instrument after October of 1998, the airpower, was actually being redeployed back to its normal bases. It didn't remain there. And the forces instead were involved in a cooperative verification mission in which aircraft overflew the province of the Kosovo. They reported information that was correlated with the Kosovo Diplomatic Observer Mission on the ground in order to provide confidence building that could prevent a re-escalation of violence, that the Serb side themselves had liaison officers located at the headquarters of the air operation, so it was cooperative and there was a mutual exchange of information. And then insofar as there was a build-up of ground forces, those ground forces were there for an in extremis permissive extraction of the KDOM, which was -- would have been politically neutral. It would have only happened if the Serb side had permitted the entry of the reaction force but had simultaneously been unable to provide assistance to a beleaguered force of observers. It was a notion that we had attempted on several occasions to coordinate with the Serb side themselves, and there ³⁰⁵⁵³ had been some discussions, as I recall, between either Ambassador Walker and Shaun Byrnes or others with Serb representatives inside Kosovo about how this action might have taken place.

In no way should that force have been perceived as a force that could fight its way into Kosovo or Serbia or in any other way threaten the sovereignty of Serbia. It was strictly a permissive action force and that was well explained and fully understood by any military officer who looked at it because the force had no capacity to force its way inside Serbia.

Q. We've all read your book, you see, and the Judges have read it --

JUDGE MAY: Now, look. We must keep control of this matter. Mr. Kay, I remind you of your role in this trial.

MR. KAY: I was hoping to be helpful, Your Honour, to the Judges in relation to points that are properly able to be made by the accused.

JUDGE MAY: He's had three and a half hours to four hours cross-examination.

MR. KAY: But hasn't made this point and I've taken loads of points off that he's made, and I'm attempting to fulfil my role to the Court as zealously as possible but with a degree of fairness to look at this issue in the context it should be raised.

[Trial Chamber confers]

JUDGE MAY: There's so far been no reference to this book apart from what the accused has said, and you've heard our ruling that we do not wish it to be part of the evidence because of its very wide-ranging nature.

MR. KAY: Your Honour, I wasn't going to introduce the book, but I ³⁰⁵⁵⁴ was going to tell the witness who had mentioned what was happening at that time that we've read the book and we're aware of what he has written about it, and I was then going to put a summary of that picture to him because it's an obvious feature from his own writings about the military activity that was taking place.

JUDGE MAY: Is this part of the evidence which was highlighted by the Prosecution?

MR. KAY: Yes. It's the --

JUDGE MAY: It's part of one of their passages; is that right?

MR. KAY: It's the NATO deployment. It's his role within the planning --

JUDGE MAY: Very well, you can refer to that.

MR. KAY: Your Honour, I'm not in a position to do that, just like that. Forgive me, because --

JUDGE MAY: You can put the question, of course.

MR. KAY: If I put the question and the Court doesn't like it, they can ignore it.

Q. What I was going to say, General, was this: That you have written about the deployment of those forces in that area over this period from the October to the March until the bombing campaign actually started. That's right, isn't it?

A. Absolutely, but as I'm trying to clarify, that it wasn't a period that was only about the deployment of force. And as I read what your -- the significance of your line of analysis, I'm trying to provide the Court with a full picture of the complete array of what was happening; that ³⁰⁵⁵⁵ there was a wholehearted effort on the part of NATO and its Member States to seek a peaceful and diplomatic resolution to this matter.

Q. I don't disagree with that and I don't think that anyone here should misread how I am questioning you about this. What I am putting to you is the context of what was happening in the Balkans at that time and the issues that the Republic of Serbia had to face, what it was seeing over its borders. Do you understand?

A. And what I've tried to explain is that the military force on the ground was not capable and that any professional military officer would have recognised that force as being incapable of threatening Serbia, that the airpower that flew over was unarmed and monitored and fully in cooperation with the Serbs themselves, and that what was going on around Serbia and what the Republic of Serbia had to face over its borders was the concern of its neighbours to seek a diplomatic solution.

Q. I don't want to dwell too much more on this issue because I'm limited in my time, so I'm going to turn now at this stage to 1995. Do you understand me? And your involvement then from the first meeting on the 17th of August, 1995. So we're now leaving Kosovo and going to Bosnia.

You described that as being your first meeting, on the 17th of August 1995. Would it be right to say that before that meeting you had had no significant role to play within the political process?

A. Your Honour, I'm not sure what the line of questioning is directed at. I was the officer on the joint staff in charge of Balkans policy. I did the coordination between the joint staff and the Department of Defence ³⁰⁵⁵⁶ staff and the White House and State Department on Balkans policy. I had made several trips to the Balkans before that. I had been in Sarajevo, I had met Izetbegovic, Silajdzic, General Delic and General Mladic. In August of 1994 I made another trip or two back into the region and worked with European allies on it. So I'm not sure what the line of questioning is supposed to play. I did not met Milosevic. As I said, that was my first meeting with Milosevic.

Q. I'll get straight to the point for you. It concerns the conversation that you've given evidence about concerning Srebrenica, and you say that indicated to you that Mr. Milosevic had foreknowledge of what was going to happen, as you have put it, committed by General Mladic. That's what I'm asking about, because I didn't know whether you were aware, in fact, that many politicians - and Lord Owen has expressed this in this court - were very concerned about the safe havens policy from 1993. Were you aware of that?

A. Yes, I was aware of that.

Q. Were you aware that those politicians were concerned about the enclave in Srebrenica and the potentials for chaos that those -- that particular safe haven posed to the region?

A. What I was aware of at the time was that to the best of my knowledge, Lord Owen no longer had any official role in Balkans policy, Your Honour, and that there was a long-standing concern on the part of the United Nations personnel to end the suffering in these enclaves and that it was a source of continuing dispute. People were concerned about it, that there had been a previous attack on an enclave - I think it was ³⁰⁵⁵⁷ called Zepa - that had occurred a few days before Srebrenica and that had also aroused concern, and that there was no question in the minds of the international community that the Serb side was unjustified, wrong, and unauthorised to conduct military attacks against these humanitarian positions.

Q. If we could just look at this issue then because it's important and the Courts are plainly interested in it: Were you aware that under Lord Owen's concerns, President Milosevic had warned Dr. Karadzic in 1993 about not to attack Srebrenica?

A. No, I was not aware of that specific point.

Q. Were you aware that Milosevic, as stated publicly, was in fact very exasperated and concerned about that particular safe haven, Srebrenica --

JUDGE MAY: Just a moment.

[Trial Chamber confers]

JUDGE MAY: It seems to me it's a matter of argument. No doubt the accused will raise this point about what he said to Karadzic as alleged. No doubt he can.

MR. KAY: We've heard evidence anyway, but the point here is that this is being presented now as a confession, if you like, that --

JUDGE MAY: Yes.

MR. KAY: -- the accused had foreknowledge of what was going to happen when the fact of the matter is that there is evidence that he had warned. You have allowed in the impression of what the accused was saying to this witness, and what I am questioning now is what this witness's own ³⁰⁵⁵⁸ state of knowledge was of the whole circumstance. Was he aware that there was concern for Srebrenica and the safe havens and indeed warnings to Karadzic - it doesn't mean any warnings to Mladic - concerning not to attack the safe havens?

JUDGE MAY: It will be a matter for us, first of all whether the statement was made and, secondly, what we make of it and what the significance of the statement was. That surely is the crucial factor.

MR. KAY: Forgive me if I'm wrong, but I thought the Court was very concerned about this evidence today and --

JUDGE MAY: Indeed. Indeed. But what somebody said to somebody else doesn't seem to me to have any relevance on it.

MR. KAY: Well, if there's been a warning given by someone of importance in the issue to someone else, that surely indicates that there is a background to this that is entirely different from the impression that the witness was able to put before this Court based on his impression when having mentioned it in 1995.

JUDGE MAY: It may be that both things were said. It's a matter for evidence which we will have to determine. Both things have been put before us and it will be a matter for us what significance we give to the evidence. That's the important fact.

MR. KAY: I appreciate that and I appreciate now I think the Court has understood my point in asking these particular questions, and I think, in my submission to the Court, they are consistent with the role of the amicus on this issue. It's a very --

JUDGE MAY: I think you've got five minutes left. ³⁰⁵⁵⁹

THE WITNESS: Your Honour, might I have a chance just to reply to this specific point?

It had been my experience in monitoring the situation in the Balkans and watching the warnings that were given by the respective Serb parties one to another that in case after case they covered themselves by warnings that in fact they knew would not be abided by and by giving instructions that they knew were not being upheld.

MR. KAY:

Q. Were you aware and did you hear that Mr. Milosevic viewed the matter as being a great mistake for the Bosnian Serbs to attack Srebrenica?

A. I heard the statement that you made. I have no independent verification of it, but having observed the accused for more than a hundred hours and studied his conduct over a period of years at very close range, that -- I've learned that the accused is capable of saying many, many things, that he was an adroit and skilful manoeuvrer on the boundaries between politics, diplomacy, and war; that he went from the role of peacemaker to warmaker effortlessly, and that he was able to provide a different face to different visitors at different times. And so I don't know -- it is up to the Court to decide how much weight to give to the information that I'm providing. That's not my role. I can only give you the information that I'm providing, Your Honour. I did so. It was, to my view, as it was given to me. It was a direct response, not to a previous warning three years ago but a direct response that he had warned Mladic about what was about to happen at Srebrenica and that Mladic didn't ³⁰⁵⁶⁰ listen. And the clear implication behind my question - and the accused speaks fluent English though not idiomatic English - the clear implication was not just a military attack but it was the killing of the civilians that were there. Milosevic didn't say to me that he was shocked. He said, "I told him not to do it, but he didn't listen." That's what he said.

MR. KAY: That can be interpreted by the Court. I have to end here, Your Honour, because of the timing. There is one matter I couldn't deal with in cross-examination because it's a document that's only in B/C/S, there isn't an English translation. Mr. Tapuskovic is able to deal with it and has been able to put the matter into a context that will only take about three minutes. It's a matter to do with the authority of Mr. Milosevic in 1995 to deal with the leadership of the Bosnian Serbs. If the Court would permit the other amicus to deal with it. I can't deal with it.

MR. TAPUSKOVIC: [Interpretation] Your Honours, I would need to explain to you first that this is in closed session, if possible, please. Yes.

MR. NICE: This is a document we provided on the basis that as a result of the terms of its provision we would ask that it be taken in private session.

JUDGE MAY: Yes.

[Private session]

(Redacted)

(Redacted) ³⁰⁵⁶¹ Page 30561 - redacted - private session.

³⁰⁵⁶² Page 30562 - redacted - private session.

³⁰⁵⁶³ Page 30563 - redacted - private session.

³⁰⁵⁶⁴

(Redacted)

[Open session]

JUDGE MAY: We are. Very well. Mr. Nice, first of all the one question which the accused was trying to raise. The book, page 234, and it was a reference to the figures which appeared there.

MR. NICE: Yes.

JUDGE MAY: What was it? What did you want to ask about the figures? We'll consider a question about that.

THE ACCUSED: [Interpretation] Well, Mr. May, yesterday you denied me the right to question the witness about his predominant role in the war, about the book that he wrote about modern warfare.

JUDGE MAY: Yes. That's absolutely right. So we'll leave the matter there. You can have one question about the figures, if you want to ask, since it's part of the book which was marked by the Prosecution. Further cross-examination by Mr. Milosevic:

THE ACCUSED: [Interpretation] Well, the figure that is mentioned on this page, this is ten days into the war, the tenth day of the war, 100.000 refugees in Albania and 50.000 in Macedonia, and now that refutes ³⁰⁵⁶⁵ what the witness said, that in 1998 there were I don't know how many refugees.

JUDGE MAY: We will let the witness deal with that if he wishes to respond to that particular point, but that is all. Yes, General Clark.

MR. MILOSEVIC: [Interpretation]

Q. My question is whether this makes it clear that these refugees were the result of their bombs, and at the same time of their coordination with the KLA that --

JUDGE MAY: No. You know those questions have been disallowed. But, General Clark, the accused having raised it, if you want to deal with either question in any way you wish, of course it's open to you do to do so.

THE WITNESS: Thank you, Your Honour. The figures that are cited in the book on that particular day are interim figures. The complete sentence shows 540.000 displaced or refugees, including the figures of 100.000, 50.000. The figures later rose to, if my memory is correct, something like 900.000 external or refugees and 500.000 plus internally displaced people living outside their homes and hiding in the forest and so forth. At least, this is the figures that we were using at the time. There was no coordination with the KLA to move these people out in any way. This was an exodus of people that was planned and orchestrated by the Serbs themselves, either through deliberately putting them on trains and shipping them south toward Macedonia or by surrounding villages and threatening them and putting them in fear of their lives so that they ³⁰⁵⁶⁶ fled.

JUDGE MAY: Mr. Nice. Re-examined by Mr. Nice:

Q. First dealing with the material that the witness read from in relation to the suggestion made by the accused about General Shelton. I do have copies of that material.

JUDGE MAY: Yes. We'll admit that.

MR. NICE: Perhaps that could be exhibited.

JUDGE MAY: The simplest thing is to exhibit them together and we'll give them the next exhibit number.

MR. NICE: On the same topic --

JUDGE MAY: Just one moment. Let's give them a number.

THE REGISTRAR: 618, Your Honours.

MR. NICE: Your Honour, on the same topic, the witness observed that there was additional material on the same general topic that he would like to be available to the Chamber. As the Chamber knows, we've had the advantages of being able to discuss documents with his lawyer, who has been here in The Hague assisting him, and I understand that arrangements are in train for another document to be forthcoming. I don't know if the general can tell us anything about that or if we will await developments.

THE WITNESS: I don't have any additional information at this time.

MR. NICE: Some of this may be known to the Chamber already. Perhaps I'll return to it right at the end of my re-examination, the substance of which I'll turn to now. ³⁰⁵⁶⁷

Q. General, first of all, so far as the so-called patriarch agreement is concerned, which we've seen not in its original form but as set out in the minutes a meeting of all the prominent Serbs in August of 1995, the position is that the unified Serb delegation was to be made up of three members of the RS and three from the FRY with the accused as the tie-breaking voter; correct?

A. That's correct.

Q. Your observations at Dayton and how that agreement worked, tell us this, please: Did you ever become aware of the accused acting without the knowledge or outside the knowledge of the RS representatives? Did they ever come and talk to you about that?

A. Yes. There were -- there was a general series of complaints from the RS delegation that they weren't being consulted, and there was the specific incident which was relayed to me of the accused saying that -- explaining that they would not sign the agreement at Dayton or initial the agreement and specifically that Mr. Krajisnik would not because, until that moment, he had not seen the agreement, the map that, quote, gave away his farm near Sarajevo, unquote.

Q. And the map that apparently and to his surprise gave Krajisnik's farm away, is that this map or --

A. It is.

Q. That's the map in court.

A. It's the lines that were drawn around this map.

Q. And you've probably seen this point manifest already, but confirm it: The crossed-out line is to the west of the added vertical red line ³⁰⁵⁶⁸ which has the semicircle drawn in it. That more easterly line, would that have the effect of having given Serb-held territory away from the previous position?

A. Yes, it would have.

Q. And your evidence is that it was the accused who drew at least that line?

A. That's my recollection.

Q. Without reference to anybody, Krajisnik, his farm or otherwise.

A. That's my understanding.

Q. You've been challenged on your account of some matters, in particular your account of things that you say the accused said. In general, can you explain, please, how if at all you noted matters and how they then came to be in your book and how they came to be given to this Court. Did you make notes at this time?

A. I did take notes. I, throughout most of the meetings with the accused, I sat in the number 2 position of the delegation. I was not at every meeting, but I did sit in the number 2 position on most of these meetings and I did take notes as the accused and the head of the delegation discussed.

Q. Was it to those notes that you referred when, amongst other things, you wrote your book "Waging Modern War"?

A. Yes, I did have access to those notes.

Q. Insofar as matters built on your notes are recorded in "Waging Modern War," has anybody ever - I think it's a repeat question but I want it again in any event - has anybody ever said that your account of things ³⁰⁵⁶⁹ as set out in "Waging Modern War" is incorrect in detail?

A. No, they have not.

Q. In dealing in particular with the exchange that you set out at paragraph 4 of the latest more abbreviated version of your potential evidence, do we find at page 325 of your book a forecast of what was to come in that you say this, speaking of the former Prosecutor, Louise Arbour, fourth line -- or sixth line: "I told her I would be happy to testify eventually, recounting how Milosevic had admitted advanced knowledge of some of General Mladic's plans for Srebrenica." And was it to the material set out in paragraph 4 that you were referring then?

A. That's correct.

Q. You've given the account for paragraph 4, first in the longer version of potential evidence described as the annex and then by meeting lawyers from the Office of the Prosecutor, Mr. Groome and Mr. Shin, reducing that to the version that we have. Was that done before -- reaching this slimmer version, was that done before you came to The Hague?

A. Yes, it was.

Q. At The Hague, were you shown and asked to review a document coming from Croatia and being the record of meetings between yourself, Holbrooke, and the late President Tudjman?

A. Yes. I was shown that document, and I did review it.

MR. NICE: Your Honours, the Court will remember right at the beginning of the evidence that I said there had been a document provided initially in part under 68 withdrawn and then reprovided, and the Court will remember that I recommended to the accused considering it, and it's ³⁰⁵⁷⁰ to that document that I'm now going to turn. It's a document provided to the Prosecution in answer to a request for assistance to the government of Croatia arriving with us at about the 17th of July of last year. I'd ask, please, for the witness to have a copy in front of him.

Q. Before we look at any part of it, General, on reviewing it, did it accord or not with your recollection of the meeting concerned?

A. Yes, it did in general.

Q. Did you find anything in it that you thought to be inaccurate or is it just a question that you, at this remove of time, wouldn't have a detailed recollection for all events?

A. I just wouldn't have remembered every detail of the meeting.

Q. Very well.

MR. NICE: Your Honours will see various passages, and perhaps in order to be -- to give something of the flavour of the --

JUDGE MAY: Before you do, this arises, I take it, from cross-examination.

MR. NICE: Absolutely. It arises in several ways, but the simplest way would be to remind yourselves that the accused's question included an assertion. There was no mention of Srebrenica, heaven forbid any reference to killing at Srebrenica.

Now, under the most restrictive of traditional common law rules, that would allow in a prior consistent statement of the witness, which is what we're going to find here, to the effect of the evidence he'd given. So it's admissible on that ground. The document has, I think, all sorts of other admissibilities given, as Your Honours will see, that the ³⁰⁵⁷¹ conversation occurred on the day after the day of the conversation spoken of by the witness.

Perhaps I can take you straight away to the immediately relevant passage, and if you'd be good enough, please, to go to page 9 in the bottom right-hand corner where we see a long passage. If you'd track back from page 7, you'll see that it's Ambassador Holbrooke speaking in the presence of this witness.

Q. Do you have page 9 open, General?

A. Yes, I do.

Q. And we can see five lines down: "The second issue that we focused on with Milosevic, outside of his problem related to recognition, and the most difficult issue for us is 'Who speaks on behalf of the Bosnian Serbs?' He talked a lot about Mladic and Karadzic and all those other people, and you know what he said for Karadzic? And I quote, 'The man is a damned crack-brained maniac.' You know I never even met Karadzic and whether he is --" and then there is break in the recording, it would appear.

"However, with regard to Srebrenica and Zepa, he told us, I don't know whether that's true or not, Mr. President, but we are only informing you now, he told us that he attempted to prevent that from happening. He thought it to be a disgrace. When we told him that war crimes were committed in Srebrenica, he actually agreed. He said, 'I know.' By the way, that is not at issue at all. We just spoke with the US embassy officials ..."

General Clark, does this part of the conversation accord with your ³⁰⁵⁷² recollection of what happened in Tudjman's palace?

A. Yes, it does.

Q. Had you --

A. In general.

Q. Had you drawn to the attention of other members of your delegation what you had been told by the accused in the presence of the one other person now, sadly, dead?

A. To the best of my knowledge, I did.

Q. And if we go over the page, we see at the bottom -- sorry, we see at the foot of page 9 when asked about the relationship with Karadzic and Mladic, you said you could say something about that, and the paragraph at the top of page 10, Ambassador Holbrooke picks it up again and he says: "We'll discuss Perisic in a minute. That's very unclear. I asked him to whom is Mladic subordinated, who commands him, and he answered I don't know whether that's true or not. Sometimes I influence him in limited affairs and sometimes I can't influence him. In Srebrenica, he claims that he didn't have anything to do with that, that he attempted to stop it. However, that happened and I'm not relieving him of responsibility." Now, do you remember -- we've looked at the conversations of the accused relating to Srebrenica and foreknowledge. Do you know what the position was with Perisic? Does this record revive your memory?

A. With respect, your specific issue, did Perisic know about Srebrenica?

Q. Yes.

A. I never discussed it with Perisic. ³⁰⁵⁷³

Q. So this is Holbrooke speaking on his own.

A. This is Holbrooke speaking on his own, but I think he's still speaking about -- yes, he says we'll discuss Perisic in a minute. I read this as still continuing about -- about Milosevic himself, not about Perisic.

Q. Thank you very much.

MR. NICE: For completeness for the Chamber, the document doesn't take very long to read but the Chamber has an enormous amount to read.

Q. If we go on to page 12, we can see that you're invited in the middle of the page to -- or you're not invited, you're offered to say something about Mladic. "You asked me to speak there with Perisic. And I did that." You never go further in explaining anything that Perisic said about Srebrenica so all we have in this record is an account of what the accused says about Srebrenica. Is that your understanding of the record, General Clark?

A. Yes, it is.

Q. Yes.

MR. NICE: Your Honour, there are a number of other things in this document. I may come back to it but I can see the time and I know that there are pressures on us.

May this document be exhibited? It is, in our respectful submission, a clear example of a valuable prior consistent statement.

JUDGE MAY: I take it that it's also the document to which Mr. Tapuskovic was referring.

MR. NICE: No, it's a different one. ³⁰⁵⁷⁴

JUDGE MAY: It's a different one.

MR. NICE: This one -- and we don't, unfortunately, have Mr. Tapuskovic's in English. No fault of his. This is the 18th of August. Mr. Tapuskovic's was much later, I think.

JUDGE MAY: Very well. Yes. We'll admit this and give it the next number. Yes, Prosecution.

THE REGISTRAR: 619, Your Honours.

MR. TAPUSKOVIC: [Interpretation] Your Honours, I beg your pardon.

JUDGE MAY: Yes, could you give the number.

THE REGISTRAR: 619, Your Honours.

JUDGE MAY: Thank you. Yes, Mr. Tapuskovic.

MR. TAPUSKOVIC: [Interpretation] The document that I quoted is dated the 31st of August, 1995.

JUDGE MAY: Very well. Thank you.

MR. NICE:

Q. General, there was a passing reference in the accused's complaints or assertions against you about one thing and another. There was a passing reference to the Mladic cap incident. Is there anything you want to say about that, to put on the record now, or shall we leave it where it is?

A. Well, I met with Mladic to have an understanding of their positions. I'd been advised to do so by one of my military colleagues who had been Ambassador Redman's advisor. He said be sure and see both sides so you can get their position. I got both sides' position from meeting Mladic. ³⁰⁵⁷⁵

Q. And behaving in --

A. I thought it was in an appropriate way. I wasn't trying to provoke an incident, and it would have been helpful if Mladic had agreed to support and sign the Contact Group peace plan, which did he not agree.

Q. You made an observation, General, about how the accused was likely to follow through on a settlement of the fighting that preserved as much as possible of the territory that the Serbs had already obtained. You made other observations on a couple of occasions about his ability to conduct negotiations for peace, and to conduct war, and to switch between one and another.

Viewing the accused over the hundred hours that you did and having all the other background information, was there a continuing inconsistency in his behaviour, war and peace, or could you perceive a continuing consistent thread in what he was attempting to achieve?

A. I believe that there was a consistent thread in the accused's behaviour which was consistent with the aims of this -- what was known colloquially as a Greater Serbia. Whether it was a political entity or not, there was still the idea that he was the protector of the Serb people and would speak for them, whether in war or in peace, and clearly at the point we entered the negotiations, that entity was collapsing, and so it would have been in his interest in 1995 to have sought to end the fighting before the terms of settlement became more adverse.

Q. Were negotiations, when conducted, and conducted sometimes publicly for peace, integrated, in your judgement, with whatever support he was giving for or whatever leadership he was giving for war? ³⁰⁵⁷⁶

A. Yes, they were.

Q. Behind this underlying single objective?

A. That is certainly the way it appeared to me, yes.

Q. You were promised at one stage an investigation into the incident at Racak. Did you ever see the fruits of any investigation?

A. I never saw the fruits, but I have to confess that after the accused told me he knew how the investigation would turn out, that they couldn't possibly have done this anyway, it didn't seem that there was any real point in seeing the results of that investigation. I do recall that there was an independent investigation made, I believe by a Finnish group, that -- whose findings seemed to be consistent with the initial observations made by Ambassador Walker.

Q. But nothing coming from the accused?

A. I don't recall seeing anything from the accused.

Q. You were asked whether it was well known throughout Europe and the world that there -- in the media that there had been a massacre. I think this was by the amicus. Do you accept that it was indeed well known that there was a massacre? I beg your pardon. This came from you, yeah.

A. At Racak.

Q. Yeah. In which case I'll withdraw that question and move on to something else because I've probably made an incorrect note. In answer to a question from the amicus, you spoke of the disproportionate use of force by Serbs against the KLA. What were your sources in general terms for that judgement?

A. These were reliable sources of US intelligence plus reporting on ³⁰⁵⁷⁷ the ground from the -- from the Observer Mission that was in there.

Q. Over what period of time were you receiving those reports?

A. Commencing in the spring of 1998 through the outbreak of more intense operations in March of 1999.

Q. Did you find your judgement consistent or did you find that you had to revisit your judgement from time to time because of the perhaps increased use of force by the KLA? Just if you can recall, explain how you were able to hold and ultimately to act upon that judgement.

A. I continued to seek detailed information on the KLA. I never got much of any specific information. My Russian colleague there at my headquarters told me that I should be very cautious of the KLA. He reported that they were connected to various international organisations. He tried to say that they were reinforced by Chechens and so forth. I asked him to provide that information, but the information he provided me didn't answer and didn't substantiate that charge, nor did it provide the information of a force that was so substantial that it warranted the kind of forces being deployed against it.

So I never had a clear idea of the strength of the KLA, but after the initiation of actions on the 19th and 20th of March, it was clear that the KLA had very little capabilities.

Q. Thank you very much. The amicus asked you a question about the foreknowledge of risk at the safe havens, and that was the question I'd intended to turn to earlier when I referred to an incorrect note. The risk of which there was foreknowledge was a risk of what happening to whom and by whom? ³⁰⁵⁷⁸

A. Well, this was a complicated series of discussions, and I wasn't in on the creation of these safe havens. They were, frankly -- they were an embarrassment across the board for the United Nations because the United Nations wasn't capable of protecting them, didn't have a mandate to do it or the authority really to deploy the weapons necessary to protect them. And in the give and take of dialogue had at one point ordered the personnel inside the safe havens to be disarmed but lacked both the will and the means to enforce the disarmament, given the fact that the UN itself couldn't protect the safe havens. So it was one of these artifices of peacekeeping that lots of people said lots of things about, and eventually they came to have a huge political symbolism in the sense that they represented a continuing presence of the Bosnian Muslim population on the territory in the eastern part of Srpska that the Serbs had begun ethnic cleansing of in 1992 and had not finished cleansing in the summer of 1995.

Q. Mr. Kay asked you something about what Lord Owen may have thought or said. If in 1993 Lord Owen explained that the accused was aware of the potential of great violence being done by the Serbs to the non-Serbs in those areas, would that be the sort of risk that was in mind by those of the international community?

A. Well, that would certainly have been the risk that was in mind.

Q. And on the basis of what Mr. Kay has raised with you and on the basis of your own experience of the accused, is that something that would have been available to him as general information, the risk that the Serbs would do great violence to the non-Serbs in those areas? ³⁰⁵⁷⁹

A. Yes, I think so. There was also the atmosphere at the time that I recall those suggesting that the Serbs would never dare to attack a UN safe area. And in the summer of 1995, I recall as these attacks were beginning on Zepa and later on Srebrenica, that there were still many in the international community who were in denial that this could ever happen.

MR. NICE: Very well. Your Honour, I think that's probably all I want to ask by way of specific questions of the witness, apart from returning to the question of the material about General Shelton, which we should deal with before the witness leaves. I'm just checking with my colleagues to see if there is anything they want to raise. I think that's all by way of re-examination otherwise. My understanding of the position, for the record, is that the document is being sought. I know nothing more about it than that. I know that the witness has to be away at 1.45, and I think the witness may have something to say about that.

THE WITNESS: Your Honour, if I may request just a brief five-minute recess for me to go check and see what the status of the document is with my lawyers, I would be grateful.

JUDGE MAY: Well, there are, in fact, one or two administrative matters which we need to deal with. We do need to adjourn and leave the court anyway by 1.45. Would it be convenient, General, if you'd like to leave now, while we deal with the administrative matters, and come back when you're ready?

MR. NICE: Your Honour, except there's one administrative matter ³⁰⁵⁸⁰ that I must raise and I must raise it in the witness's presence, and then there's another matter that I needn't trouble him with. It's to do with publicity, and may I raise it now?

JUDGE MAY: Yes.

MR. NICE: Witnesses like General Clark, Klaus Naumann, and Lord Ashdown are, of course, subject when they leave this place to enormous press interest and quite inevitably they have to speak about what they've been doing here. They can't, as public figures, be unrealistic about it. In this case, unlike in the case of those other two witnesses, for example, who both did indeed speak to the television, in this case the material evidence is not going out contemporaneously. It's only going to be broadcast subject to such redactions, if any, as may be required, later this week. However, it's known to the witness and to those representing him that there is no objection by anyone to the totality of yesterday's evidence being eventually broadcast by transcript and by television broadcast in full, and I know that they will be much assisted by knowing whether it's going to be appropriate for the witness to speak about yesterday's session in light of that position immediately or not. It's not something upon which those of us in the Office of the Prosecutor can do more than express tentative views because there are court orders here and these are court orders of importance.

JUDGE MAY: Your tentative view?

MR. NICE: Our tentative view is that the court order as it stands would restrict publication and discussion until after publication of the material in full, but that's our view or our tentative view. The pressure ³⁰⁵⁸¹ on the witness and on those with him is going to be very substantial that he should say something about the material, and of course if it's known now that what was said yesterday is going to be subject to no redaction, one can understand the way their sympathies might lie.

JUDGE MAY: We'll consider that, and meanwhile you may have some instructions.

[Trial Chamber confers]

JUDGE MAY: We take the view that it would be a more straightforward and probably the correct view of the law that the matter should not be discussed until such time as it is published. When that is to be, I'm afraid I don't know, but on that matter, General, you can certainly be advised by the Prosecutor, who should be aware of when this matter is going to be published.

MR. NICE: The registry may be able to tell us. I don't want to jump the gun but I might as well say what my understanding is. Thursday is my understanding.

JUDGE MAY: Yes.

THE WITNESS: Your Honour, may I speak?

JUDGE MAY: Yes.

THE WITNESS: I'm going to request the permission of the Court to be able to talk not about the specifics but about something more general, about the atmosphere of the court, about the procedures, about the demeanours and so forth and the general range of the issues, because there's just no way I can walk out of there and not say anything. I said it yesterday, I just can't get away with it today because I'm not the same ³⁰⁵⁸² public figure that General Naumann was or Mr. Ashdown, with all due respect to the Prosecutor's interpretation. I'm now a political candidate for the highest office in the United States and we're at an incredible historic juncture where Saddam Hussein has just been captured and there is intense effort to understand what an International Criminal Tribunal might consist of, how a head of state faces justice, and so forth. It's a moment of peculiar and particular relevancy for this Court in the eyes of world opinion and it's all come together at once here when I walk out of this courtroom.

So I would ask your understanding if I may talk about some of the general matters of the Court without going into the specifics of back and forth exchanges, and so forth. Most of this material is in my book in any event and is public knowledge.

[Trial Chamber confers]

JUDGE MAY: We are not able to give a definitive answer as to when this is to be published outside the original order which has been given, so, General, we shall grant, of course, permission for you to deal with the generalities in the way which you have described.

THE WITNESS: Thank you, Your Honours. Thank you very much.

THE INTERPRETER: Microphone for Mr. Nice, please.

MR. NICE: The witness may like his five-minute adjournment. I must assure him that there was no comparison of him with General Naumann or Mr. Ashdown was in any sense diminishing. I was actually seeking to ensure that he shouldn't be more limited than they were in the advantages they assumed were their rights. ³⁰⁵⁸³ Perhaps he can have his five minutes now.

JUDGE MAY: Yes, General.

THE WITNESS: Thank you to the Prosecutor and to the justices, thank you, sir.

[The witness stood down]

JUDGE MAY: One administrative matter which is that we've been asked to consider exhibiting, Mr. Kay mentioned it, the UN Resolutions 1199, 1160, 1239 and 1203, and I believe that Mr. Kay has them and we'll accept them.

MR. KAY: Yes, I've got them here.

JUDGE MAY: We'll give them the next C number, may be most convenient.

THE REGISTRAR: C25, Your Honours.

MR. NICE: Your Honour, I did at one stage -- I remember at one stage raising as a possibility that we should put in the resolutions as a library, and I remember the word "library" drew an inhalation of breath from the Bench and the rejection of the proposition, but I think there may be some more to come at some stage.

JUDGE MAY: It may again be convenient at some stage to put them together, not as a library but as a collection, but we'll come to that in due course.

Now, there is one other matter, which is the registrar's order which the accused raised. Is there anything that you want to raise?

MR. NICE: Independently of that, there is a very small matter I'd like to raise through the Court with the accused. The accused produced ³⁰⁵⁸⁴ one photograph of KLA atrocities, as alleged, and obviously has possession of others. He might like to consider making those documents available to the Prosecution. He should know that the Prosecution pursues, as part of -- and indeed the Prosecutor's here and the accused can see her. The Prosecutor pursues people on all sides of these conflicts under her mandate and is assisted by evidential material, not least of the kind that the accused was seeking to put in evidence in this court. Whether or not relevant here, if he will attend to this, it would be valuable to us to have that material in the duties that the Prosecutor has in respect of KLA alleged offenders.

JUDGE MAY: Well, the accused will have heard that.

MR. NICE: But nothing in relation to the registrar's order, Your Honour.

JUDGE MAY: We have -- I have a note from the registry that the UN Security Council Resolution binder is 547. It may be that somebody could have a look at that and see if we can deal with it slightly more tidily administratively but for the moment, we'll move on. Yes, well, the accused will have heard what you've said, Mr. Nice, and note what the Prosecutor suggests.

Yes. You wanted to raise a question about the registry order.

THE ACCUSED: [Interpretation] I should first like to refer to what Mr. Nice has said, that apparently they're investigating all crimes. If they are investigating all crimes, then you have first of all the photograph of Clark, Hashim Thaci, Ceku and all the others who were in command of those crimes. As for the other photographs that I showed, I ³⁰⁵⁸⁵ have the name of the person holding those heads and the names of the Serbs who were beheaded. And the photographs that I wanted to show him, because it was his allies that he is keeping company with who did this. Unfortunately, you are not investigating all crimes.

JUDGE MAY: Well, you've heard what the Prosecutor has said, that if you pass those documents over in due course, they will be investigated. It's a matter for you whether you pass them over or not. The time is very limited. Do you want to raise the question about the Registry, or we can deal with it tomorrow.

THE ACCUSED: [Interpretation] No. I raised that matter yesterday already. I have nothing more to add. You have seen that order. I am not allowed to have visits, I am not allowed to communicate by telephone. Therefore, I asked you to rescind that order because I believe it is absolutely in contradiction with elementary human rights I am entitled to.

JUDGE MAY: Yes. The Registry provide for a procedure in the case of such a complaint that you communicate in writing, and it's a matter which the President has to deal with. So there is a procedure to deal with it which you can follow, so I'm instructed.

THE ACCUSED: [Interpretation] I have no intention, Mr. May, to address anyone in written form. I have addressed the public in this manner to draw attention to a very flagrant violation of my human rights, and it is up to you to do what you will.

JUDGE MAY: You cannot abuse the procedure of the court by making speeches.

Mr. Nice, time is short, the witness is not here. ³⁰⁵⁸⁶

MR. NICE: I'll send a runner. I think Mr. Shin probably is going to qualify.

We do have a document that's come from the United States. I'm not sure if it's the document that the witness is going to want to put in to cover the passage of his evidence where he said there was more material he wanted to come. So I'll just wait until he comes back in.

[The witness entered court]

MR. NICE:

Q. General Clark, I've got a single faxed document before me which is possibly the document you want to go before the Judges. If it is, I'll make it available to you to read and then ask it to become exhibited.

A. That's fine. I've not seen this document.

Q. You'd better have a look at it first then.

THE WITNESS: Your Honour, request permission to read this into the record.

JUDGE MAY: Yes.

THE WITNESS: This is a statement from former President Bill Clinton: "Contrary to Mr. Milosevic, General Wesley Clark carried out the policy of the NATO alliance to stop massive ethnic cleansing in Kosovo with great skill, integrity, and determination." And I ask that this be submitted as an item for the record.

JUDGE ROBINSON: What is the date of that?

THE WITNESS: It's dated December 16th, 2003.

JUDGE ROBINSON: I see. Okay.

JUDGE MAY: We'll get the next number for the exhibit. ³⁰⁵⁸⁷

MR. NICE: Can it become part of the same clutch of documents that have already been --

THE REGISTRAR: 617, tab 7, Your Honour.

MR. NICE: May leave for determination one other technical matter; whether, in light of the cross-examination, the extracts or any of them from "Waging Modern War" become exhibited or not. It seems to me that everything has been covered in live testimony, but I'm in the Court's hands.

[Trial Chamber confers]

JUDGE MAY: Yes. Now, Mr. Milosevic, it's beyond your time. What is the point?

THE ACCUSED: [Interpretation] I would like to say since you have not allowed me to ask the witness about his crimes, you are now admitting a letter --

JUDGE MAY: We're certainly not going to listen to this. You know quite well that that's an abuse of the process.

We decided earlier that we would not admit the book if the evidence was given live, which it has been, so unless there is any change in our view, which we will communicate overnight, the position will remain the same.

Is there anything further that anybody wants to raise?

MR. NICE: No thank you.

JUDGE MAY: General, I'm sorry you've been kept waiting again, but that does conclude your evidence, and thank you for coming to the International Tribunal to give it. You are, of course, free to go. Thank ³⁰⁵⁸⁸ you.

THE WITNESS: Thank you, Your Honour. I am very pleased to have been given the opportunity to present my information and my views here in front of this august Tribunal.

JUDGE MAY: We will adjourn until 9.00 tomorrow morning.

--- Whereupon the hearing adjourned at 1.47 p.m., to be reconvened on Wednesday, the 17th day of

December, 2003, at 9.00 a.m.