Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9415

1 Tuesday, 9 October 2007

2 [Closing Argument - Prosecution]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.18 p.m.

6 JUDGE ROBINSON: Today we are to have the closing arguments in

7 this case, and we begin with the Prosecution. Mr. Waespi.

8 MR. WAESPI: Good afternoon, Your Honours. Good afternoon,

9 Mr. Tapuskovic, Ms. Isailovic.

10 Today the Prosecution presents its oral closing submission to you.

11 I will start off with a few introductory comments. My colleagues

12 John Docherty and Manoj Sachdeva will then address the sniping and

13 shelling parts of the evidence. Ms. Edgerton will then go into the terror

14 campaign, and we will conclude -- and I will conclude with aspects of the

15 criminal responsibility of the accused and sentencing submissions.

16 I hope that we will stay within the two hours allocated to the

17 Prosecution. Of course we have filed a week ago our comprehensive written

18 brief, and to the extent possible we will try not to repeat ourselves

19 today.

20 My three colleagues and I will also respond to any relevant issue

21 raised in the Defence brief.

22 Your Honours, when Martin Bell the renowned BBC journalist

23 testified before you, he commented his BBC footage of the aftermath of the

24 Markale II massacre that occurred on 28 August 1995 with these words:

25 "I think it's one of the most shocking of the war. On many

Page 9416

1 occasions, and that was one of them, I was thinking to myself that if you

2 ever tried to make a movie of this war, you couldn't. The scenes going on

3 around me could not be replicated for a movie. They were so terrible, and

4 they were real world and really shocking. And I also felt this cannot go

5 on. We were more than three years into it, and I said to myself, You

6 know, this cannot go on. It has to be stopped in the name of our common

7 humanity. That's what I thought."

8 Martin Bell at page 5.266.

9 Your Honours, Markale II was one of the last and one of the most

10 serious of the uncountable incidents that terrorised the civilians living

11 inside the city of Sarajevo since the siege began in April 1992. You have

12 heard the testimony of many witnesses, internationals, military observers,

13 journalists, locals, who told you what life was like inside the

14 confrontation lines. You will also recall the contemporaneous videos of

15 news reports, the pictures, the daily, weekly UN situation reports.

16 My colleagues will remind you in their presentations of some of

17 these testimonies and other pieces of evidence, all proof of the daily

18 suffering of the civilian population inside the confrontation lines during

19 the siege.

20 Even the most prominent, I guess, Defence witness

21 Colonel Demurenko described how the civilians were worn out, appeared to

22 be lethargic after the long siege. And he was talking about 1995. He

23 added in response to a question by Judge Harhoff that: "If one looks at

24 the human suffering, then it was a case of a full siege just like in

25 Leningrad during the Second World War."

Page 9417

1 Your Honours, the campaign that terrorised Sarajevo did not just

2 start from August 1994 when the accused took command over from

3 General Galic as the commander of the Sarajevo-Romanija Corps, the SRK,

4 the corps responsible for maintaining the siege of the city of Sarajevo.

5 The history of what occurred before August 1994 was addressed extensively

6 in the trial and Appeals Chamber judgements in the Prosecution of

7 General Galic, and also by numerous witnesses during this trial against

8 this accused, Dragomir Milosevic. Of relevance to this case is that there

9 can be no question that before August 1994 the SRK subjected Sarajevo to a

10 prolonged and murderous campaign of terror through shelling and sniping of

11 civilians. During much of this earlier part of the campaign, the accused

12 Dragomir Milosevic held prominent positions in the SRK.

13 The campaign, as I mentioned, started in April and May 1992. I

14 will only refer to two pieces of evidence that relate to that early part

15 of the siege. First, the statement by the minister of health of the

16 then-Serbian Republic of Bosnia and Herzegovina as quoted in Prosecution

17 Exhibits 462, pages 25 and 26. The minister of health who advocated

18 destroying one of Sarajevo's major medical facilities, the Kosevo Hospital

19 so that the enemy has nowhere to go for medical help. And second, P815,

20 in which then-President Slobodan Milosevic is telling French UNPROFOR

21 General Morillon that the bombardment of Sarajevo by Ratko Mladic was

22 bloody, criminal, and that there was no justification for the continued

23 bombardment of the civilian population of Sarajevo.

24 This bloody and criminal campaign continued for 44 months.

25 Your Honours, you heard live testimony about this campaign as it

Page 9418

1 developed. According to witnesses before you who were able to compare the

2 first part of the siege with the situation under the regime of this

3 accused, it was for 44 months the same relentless campaign. The same

4 characteristics, the same dynamics, the same weapons, front lines,

5 soldiers, defenders, the same suffering of the civilians inside the

6 confrontation lines, the same senseless punishing of the civilian

7 population of Sarajevo for what happened elsewhere in Bosnia. In fact,

8 there is evidence, like the introduction of the modified air bombs, that

9 it got even worse.

10 My colleagues will talk in more detail about all aspects of the

11 campaign led by the accused. Let me address a few issues the Defence has

12 raised in the course of the trial and also in their closing brief.

13 Any Defence argument that the reason civilians were killed and

14 injured was due to the deliberate intermingling by the ABiH of military

15 targets with civilians and civilian objects is an attempt to draw

16 attention away from the charges at hand. If the Defence is saying that

17 the accused had information that civilians were mixed among military

18 targets, the accused was under an obligation to gather sufficient

19 information to ensure that any attacks against such a target, the

20 anticipated military advantage outweighed the anticipated loss to civilian

21 life.

22 While civilian objects like schools and apartments, if indeed used

23 for military purposes, can indeed become legitimate military objects for

24 the time they are so used, there must be some evidence actually supporting

25 this claim and not mere speculation.

Page 9419

1 Second and most importantly, even if certain civilian objects

2 become legitimate objects of attack, any such attack must still be

3 conducted with respect for the principles of distinction and

4 proportionality. It does not carte blanche authorise indiscriminate

5 attacks or attacks causing excessive collateral damage.

6 The trial record shows that not only did the accused make no

7 effort to diminish the impact of the attacks on the civilian population,

8 the SRK did not primarily shell and snipe at military targets. On the

9 contrary, the evidence shows that the SRK, under command of the accused,

10 fired directly at any locations where they knew civilian casualties would

11 result intentionally and systematically. In fact they used air bombs to

12 maximise the damage to civilian lives.

13 This case is not about violations of international humanitarian

14 law committed by the ABiH, the Bosnian Muslim army. It is about the

15 individual criminal responsibility of this accused. Nor is it the case

16 about the suffering which normally accompanies life during an armed

17 conflict. This is a case about the direct intentional, unlawful targeting

18 of civilians as a systematic strategy of the SRK under the command of the

19 accused. The evidence in this case is also not about civilians being

20 killed by accident in crossfire between the warring factions. Civilian

21 witnesses who gave evidence of the direct targeting of themselves, their

22 families, and their communities, did not testify to armed combat

23 operations in the vicinity, to fighting breaking out near them, or to

24 living in fear of a battle occurring in their neighbourhoods. Instead,

25 they testified to being targeted at purely civilian locations, engaging in

Page 9420

1 purely civilian activities, and to living in sheer terror that they would

2 be intentionally targeted whilst engaging in a daily effort to survive.

3 On 8 July 1995, to look at this issue from the UN perspective, the

4 UNPROFOR weekly situation report prepared by David Harland stated:

5 "Sniping and mortaring are still at a reasonably high level. This

6 seems to have no particular military value but contributes to a general

7 atmosphere of terror in the city."

8 Prosecution Exhibit 20, page 2.

9 The evidence shows that the accused and the SRK whom he commanded

10 appear to have a policy of not aiming at military targets but targeting

11 civilians instead.

12 Witness Fraser testified that neither corps headquarters was

13 attacked. Page 1796. Fraser added:

14 "Indirect fire from the Muslims was replied by indirect fire from

15 the Serbians, but it was a lot more and not directed to the headquarters.

16 It was just directed to the city."

17 Page 1801.

18 Actions of the Bosnian Muslim army, as I said, in this regard are

19 not relevant to the issue at hand. The amended indictment charges the

20 accused with violations of the Laws and Customs of War, crimes against

21 humanity. Indirect fire from the ABiH does not justify the intentional

22 and unlawful targeting of civilians even where the motive is or might be

23 response or retaliation. Regardless of the motive, if the primary purpose

24 of the attacks was to spread terror, the means and methods are contrary to

25 the international law and the accused bears individual criminal

Page 9421

1 responsibility.

2 As David Harland testified, page 324 and 25, "Most," and I quote:

3 "Most of the military activity that I was reporting on was not

4 military activity as you would conventionally understand it. Most of it

5 was undirected or semi-directed artillery fire against civilian inhabited

6 areas."

7 And David Harland was the longest serving UN official in Sarajevo

8 with vast amount of experience. You saw him as the first Prosecution

9 witness.

10 Your Honours, the civilians in Sarajevo suffered directly from the

11 criminal means and methods used by the SRK under the accused. The SRK was

12 not fighting a conventional war between two military forces. They were

13 carrying out a terror campaign against Sarajevo's civilian population.

14 Let me come to a second issue. On many occasions, and again in

15 their closing brief, the Defence tries to advance the theory that nothing

16 happened during the indictment before the start of the ABiH attempt to

17 break out of the city in June 1995 when the situation of the encircled

18 population became truly desperate. Evidence in this trial shows a

19 completely different picture. I would like to refer you to only a few

20 examples mainly based on UN reports, Prosecution Exhibit 10, 12, 15, also

21 the evidence provided by General Smith gives a very good account of what

22 happened.

23 Let me start in late 1994. P10, of 10 December 1994, states that

24 the Serbs made UNPROFOR's task almost impossible:

25 "Having pushed UNPROFOR to brink of withdrawal, e.g., for instance

Page 9422

1 by not allowing any humanitarian convoys into the city, allowing almost no

2 gas into the city and with Serbs firing small guided missiles and

3 anti-tank rockets into the downtown area causing a number of civilian

4 casualties."

5 Page 6 of Prosecution Exhibit 10.

6 Next Prosecution Exhibit 12, a UN report in mid-April 1995 shows

7 that the military situation in the city remained tense and mortar shells

8 fell in the populated areas of the city causing deaths and casualties, and

9 the fuel situation was so bad that UNPROFOR operations were seriously

10 affected. The airport of Sarajevo was closed and eight international

11 non-military hostages such as NGO workers were held by the Serbs.

12 Prosecution Exhibit P12, page 1.

13 Also in April, Your Honours, we of course have the first

14 launchings of air bombs in the -- into Sarajevo. Prosecution Exhibit 703.

15 In fact, in April 1995, the situation was so bad for the civilians

16 that the Bosnian Ministry of Interior made the decision to forbid the

17 gathering of people in public places in order to avoid large-scale

18 incidents. Page 2 of Prosecution Exhibit 12.

19 In early June 1995, Your Honours, the food situation in the city

20 was rapidly deteriorating. Prosecution Exhibit 15, page 3. And this was

21 due to the fact that the UNHCR land convoys could no longer operate. And

22 in the same exhibit, Radovan Karadzic declared all UN Resolutions that

23 applied to Sarajevo null and void. Prosecution Exhibit 15, page 3.

24 THE INTERPRETER: Could you slow down a little, please.

25 JUDGE ROBINSON: You heard that.

Page 9423

1 MR. WAESPI: I'm sorry. Yes.

2 The trial record is replete, Your Honours, with evidence of the

3 suffering of the civilian population inside Sarajevo during a time the

4 Defence considers to be a lull.

5 Led me address lastly before I turn over to my colleague

6 Mr. Docherty the role of the several schedule incidents and our evidence

7 in general.

8 Another Defence argument was that the indictment or the

9 allegations of a campaign are supported only by the selected incidents

10 listed in the indictment. That, of course, is not the case. As is

11 explicitly stated in the indictment and has always been our position, the

12 scheduled incidents are illustrative and of course upon the orders,

13 Mr. President, Your Honours, we had to reduce them by roughly one-third.

14 There is, however, other additional significant and necessary evidence to

15 prove the campaign. In other words, the evidence of the campaign of

16 shelling and sniping and of terror is supported by the scheduled

17 incidents, by evidence of unscheduled incidents and by other general

18 evidence of witnesses and documents showing that throughout the indictment

19 period there existed a campaign of shelling and sniping of civilian

20 objects.

21 It is critical that the proof of the campaign depends on different

22 types of evidence of the sort I just mentioned, not simply the scheduled

23 incidents. My colleagues will address this in more detail with relation

24 to shelling and sniping.

25 Let me now hand over to Mr. Docherty.

Page 9424

1 MR. DOCHERTY: Good afternoon, Mr. President. Good afternoon,

2 Your Honours. Good afternoon, Counsel.

3 The Prosecution has proven the existence of a campaign against

4 civilians that was conducted by the SRK under the accused's command and

5 during the indictment period. One component of this campaign was the

6 deliberate sniping of civilians. The evidence proving this is set out in

7 detail in the Prosecution's closing brief, and I shall not repeat here

8 material that is set out in that brief but shall only briefly summarise

9 it.

10 The accused ordered, planned, and/or aided and abetted this

11 sniping campaign. He is therefore criminally liable for counts 2, 3, and

12 4 of the amended indictment under Article 7(1) of this Tribunal's Statute.

13 More than that, the accused failed to take any measures to either prevent

14 this illegal sniping campaign or to punish its perpetrators even though

15 those perpetrators were troops over whom he had effective control and the

16 accused knew that they were carrying out a campaign of terror. He is

17 therefore criminally liable also, or in the alternative under Article 7(3)

18 of the Tribunal's Statute for the sniping campaign.

19 The relevant sections of the Prosecution's closing brief to which

20 I respectfully refer the Chamber for a full discussion of the evidence

21 demonstrating the existence of a sniping campaign include the campaign

22 section itself at pages 5 through 9, the introduction to sniping at pages

23 15 to 18, and of course the scheduled and the unscheduled sniping

24 incidents that are found throughout the discussion of incidents. Those

25 incidents are organised by area, not by type of incident, and that is

Page 9425

1 found at pages 18 to 98.

2 I intend to give a very brief overview of the sniping campaign

3 evidence but again repeat that the best and most thorough evidence is

4 found in the Prosecution's closing brief. I shall then respond to some of

5 the Defence criticisms of that evidence and during my time hope to discuss

6 three other matters: Defence criticisms of the report of our expert

7 demographer Ewa Tabeau; the issue of the control of the high ground; and

8 the claimed, but as we shall see baseless, defence of alibi.

9 Vekaz Turkovic, a crime scene technician with the Sarajevo police

10 stated during the war calls for help on sniping and shelling came in from

11 all other the city at all hours of the day and night at all times of the

12 year, and that he and his colleagues in law enforcement spent 80 per cent

13 of their time responding to these calls and working on these cases. When

14 the war ended, these calls dropped to zero. A spreadsheet of police

15 activity P602 was introduced. Now, of course this spreadsheet cannot be

16 used as evidence of origin of fire, but there is a mass of other evidence

17 in the discussions of the individual incidents indicating uniformly that

18 the origin of fire was SRK territory, and contrary to the Defence

19 assertions made at paragraphs 143 to 146 of their closing brief, this

20 spreadsheet is perfectly good evidence of the intensity of the nature, of

21 the number of incidents. And when coupled with the origin of fire

22 evidence that was independently introduced, it is powerful evidence of the

23 existence of a campaign.

24 JUDGE ROBINSON: Mr. Docherty, you place obviously a lot of

25 emphasis on this campaign, the proof of a campaign. Suppose you don't

Page 9426

1 prove the existence of a campaign. Does your case fail?

2 MR. DOCHERTY: No, Mr. President, it certainly does not. The

3 allegations in the amended indictment charge the accused with crimes

4 against humanity and with murder and with inhumane acts. The existence of

5 a campaign has relevance to the terror count and because crimes against

6 humanity require a -- that the individual attack be part of a pattern it

7 has some relevance to the crimes against humanity, but I would put it that

8 a campaign, that in fact all of the charges in the indictment can be

9 proven in the absence of or if there is reasonable doubt about the

10 existence of a campaign.

11 However, I should hope that there would not be at the end of the

12 day reasonable doubt about the existence of a campaign. The evidence

13 concerning that being in my view so very strong and consisting of the

14 scheduled incidents, the unscheduled incidents, and then what I call the

15 overview evidence from witnesses such as Martin Bell, Mr. Turkovic, the

16 various internationals who came here and gave evidence before you, all of

17 whom spoke of the intensity, of the duration, of the thoroughgoing nature

18 of the SRK's attacks on the civilian population.

19 JUDGE ROBINSON: I raise the question because it is almost as

20 though you have made the campaign an element of the crime, of crimes

21 against humanity and the crime of terror when it is not. What you have to

22 prove are the ingredients required for a crime against humanity, and those

23 are well known, and the ingredients for the crime of terror, perhaps not

24 as well known as the first. And so it has always struck me, I've always

25 wondered why the Prosecution has set itself this task as though it has

Page 9427

1 transformed the campaign into a legal requirement for the -- for proof of

2 the crimes.

3 MR. DOCHERTY: I am sorry if we have given that impression,

4 Mr. President, and two things. First of all, my colleague Ms. Edgerton

5 will speak specifically to the terror count. But second of all, the

6 evidence in this case does show the existence of a campaign, and since the

7 evidence shows the existence of a campaign and shows that a campaign was

8 what the SRK was about for the 15 months of this indictment period, by

9 showing this campaign we necessarily show the broad pattern of attacks

10 necessary for a crime against humanity, and we also, of course, show the

11 individual inhumane acts, but, you know, the SRK, its officers and its

12 men, didn't have the elements of crimes against humanity in mind as they

13 went about their daily business around Sarajevo. They had a campaign to

14 conduct, and therefore by illustrating that campaign we show that that

15 campaign necessarily proves crimes against humanity and inhumane acts

16 and -- or indeed all of the crimes alleged in the indictment.

17 So it is meant to be the best, the most thorough, the most

18 accurate description of the reality of what the SRK was about.

19 JUDGE ROBINSON: Yes. I think you have put it very well there. I

20 see it as merely descriptive, illustrative of the Prosecution's case.


22 JUDGE ROBINSON: It's not a legal requirement. It's not an

23 ingredient.

24 MR. DOCHERTY: It is not an ingredient. It is not an element. It

25 is a description of what was really happening, and of course by describing

Page 9428

1 what was really happening we are legally describing crimes against

2 humanity and inhumane acts and so on.

3 JUDGE ROBINSON: It's as though -- I'm trying to think of a

4 parallel. If a man is charged with -- with raping, say, in domestic

5 jurisdiction, and it is said that he's a serial rapist but he's charged

6 with raping one particular individual, the Prosecution's case is that this

7 man is a serial rapist. He has raped perhaps 12 or 20 women, and that is

8 described in the Prosecution's case. But if the Prosecution fails to

9 prove the seriality of the offence, it hasn't failed if it nonetheless

10 proves he has raped the particular person charged in the indictment.


12 JUDGE ROBINSON: Saying that he's a serial rapist is nearly a way

13 of describing and illustrating the Prosecution's case. And when I read

14 your brief as well as the case that has preceded this one, I wonder if

15 the -- the two have not been confused.


17 JUDGE ROBINSON: Because so much -- so much time is spent on

18 trying to prove this campaign. Of course it may well be that if you prove

19 it you prove your case.

20 MR. DOCHERTY: That is my belief, Mr. President, that if we prove

21 it, we have proven our case. And if I may respond to your analogy with

22 one of my own. It's usually in domestic prosecutions the motive for a

23 crime is not an element of a crime. Nevertheless, describing the motive

24 is a great assistance in capturing the crime and in showing the pattern

25 into which the crime fits. And here the campaign is what the SRK was

Page 9429

1 doing, crimes against humanity, inhumane acts are the legal categories

2 into which that behaviour fits.

3 JUDGE ROBINSON: And that is what you are required to prove.

4 Thank you.

5 MR. DOCHERTY: Further evidence generally of the intensity of the

6 sniping against civilian targets and of the exclusively civilian nature of

7 those targets is found in one of the Prosecution's first witnesses,

8 Thorbjorn Overgard, a UNMO from Norway, who was stationed in Hrasnica, who

9 investigated sniping incidents in Hrasnica almost every day and who

10 testified at pages 636 that the origin of fire was always SRK territory

11 and the victim was always a civilian. He never investigated a single case

12 in which a soldier had been shot. There is evidence in this case that the

13 SRK had the means to snipe on civilians. Silencers, telescopic sites,

14 requisitions for sniping ammunition --

15 THE INTERPRETER: Please slow down for the interpreters, thank

16 you.

17 MR. DOCHERTY: And I refer to Exhibit P664, P765, 766, and 767.

18 Dr. Tabeau testified that even on militarily quiet days civilians

19 continued to be killed in violent, war-related ways mostly as a result of

20 sniping. Speaking of Ms. Tabeau, I divert for a moment or two because at

21 paragraph 139 and following of the Defence brief there are some criticisms

22 of her work which in my view and the Prosecution's view are unfounded.

23 Paragraph 139, the Defence asserts that Ms. Tabeau only gives casualty

24 figures for within the confrontation lines.

25 The accused on trial here is, of course -- was, of course, the

Page 9430

1 commander of the SRK, and therefore of course the analysis will focus on

2 his alleged victims and they will be found inside the confrontation lines.

3 At paragraph 140 the Defence claims that Ms. Tabeau mixed up the

4 indictment period with the total time of the conflict. In fact, when she

5 testified at page 5549, she made clear that she used the total conflict

6 time only by means of -- for means of context.

7 I also would refer the Tribunal in terms of unscheduled sniping

8 incidents particularly to Prosecution Exhibits 92 and 95. Both of those

9 are the 92 ter evidence of victims of scheduled incidents who also

10 testified that they themselves had not only been victims or had known a

11 victim of a scheduled incident but also of an unscheduled incident, which

12 is evidence of the thoroughgoing nature of this activity that it could

13 strike multiple citizens of Sarajevo multiple times.

14 Police officer Nedzib Djozo testified that every day there was

15 sniping from Spicasta Stijena and that many civilians were killed or

16 wounded as a result.

17 Speaking of Sharpstone, the evidence is clear, the Defence

18 contention to the contrary, notwithstanding that the SRK controlled

19 Sharpstone throughout the indictment period. The Defence in paragraph 184

20 of their brief says that Sedrenik was a military zone throughout the

21 conflict but when one looks for a citation or a footnote of authority one

22 finds none. There is a claim that the local inhabitants never referred to

23 it by that name and a claim that in fact it did not overlook Sedrenik but

24 Grdonj the citation is to page 7059 but when one looks at that one finds

25 only the unremarkable and uncontroversial assertion that Sharpstone and

Page 9431

1 Grdonj and Hum are all part of the same geological feature.

2 But it is when we come to the question of where the confrontation

3 lines are that the Defence submissions become truly confused, and on this

4 I would invite the Chamber to compare Exhibits D256 and D257. These are

5 the same photograph. Two different Defence witnesses were asked to draw

6 the confrontation lines on those photographs. They vary considerably.

7 Against this, the Prosecution has presented clear evidence from

8 local inhabitants, United Nations military officers, law enforcement

9 officers, and even from Defence witnesses that Sharpstone was under the

10 control of the SRK and that therefore sniping from Sharpstone is sniping

11 that came from the SRK. Any claim that sniping from Sharpstone came from

12 the ABiH is unfounded. As police officer Nedzib Djozo testified, Sedrenik

13 where the victims where was not even visible from the ABiH positions which

14 were at the bottom and two the side of the Sharpstone feature. T3689.

15 And finally there is one set of facts that I don't believe the

16 Defence has even tried to refute, which is that even if an ABiH soldier

17 could see Sharpstone, and the evidence is that this soldier could -- see

18 Sedrenik, and the evidence is this soldier could not, any ABiH soldier who

19 actually took such a shot would be taking his life in his hands as he

20 would have to stand up and turn his back on the enemy to fire into

21 Sedrenik. And even over and above that, this hypothetical soldier would

22 have been firing at his own friends and family since the ABiH soldiers in

23 that area were locally recruited. T3690.

24 A number of the Prosecution's scheduled incidents concern firing

25 upon trams. In each and every case, every witness to these incidents

Page 9432

1 testified unequivocally that there were no ABiH military personnel or

2 equipment in the area and that there was no combat going on. Despite this

3 unanimity of evidence, the Defence asserts in paragraph 88 that it was

4 irresponsible of the Bosnian government to allow trams to run near the

5 front lines. The claim seems to be that that made them vulnerable to

6 being caught in a crossfire, to which the most readily available, most

7 obvious response is: What crossfire, when witnesses have said that there

8 was no combat going on?

9 The closest the Defence ever came to making out a claim of

10 crossfire, and it really was not close at all, was a claim respect to

11 sniping incident 13 on 27 February, 1995, that a firefight was going on at

12 the Vrbanja bridge at the same time that a tram was sniped. And if we

13 could please see Prosecution Exhibit 182 on the screen.

14 While that's coming up, General Fraser was cross-examined about

15 this. The UN report was given to him. He testified at page 1887 that he

16 read this report to be about two separate incidents with the tram sniping

17 completely separate from the firefight at the bridge. But this Defence

18 claim of crossfire was definitively shot down by witness Alma Cehajic

19 Mulaosmanovic who testified that the bridge and tram were outside of each

20 other and marked a photograph on the screen in front you to make this

21 plain. On this photograph, Your Honours, the blue marks on the right are

22 the bridge. The two parallel lines immediately south of the Tito barracks

23 are the area where the sniping occurred, and the red circle is the

24 witness's evidence as to the origin of fire.

25 One can see here that sniping incident 13 was in no way the result

Page 9433

1 of a tram being caught in a crossfire.

2 The Defence also claimed that paragraph 4 of Prosecution Exhibit

3 175 is evidence that soldiers and civilians were mixed up on these trams.

4 When one goes and checks the reference, one sees that a single soldier was

5 on a tram. Whether he was in or out of uniform is not known, and in light

6 of what happened next, not important, because that tram, the witness goes

7 on to say, was shot with 30 machine-gun bullets in and just under the

8 windows of the tram.

9 And finally the Defence claimed that the Bosnian government, by

10 running the trams, was putting civilians in harm's way is simply

11 unfounded. The Defence does not mention in its brief that the trams only

12 ran during cease-fires and that therefore each and every one of the four

13 tram sniping incidents about which the Prosecution led evidence is a

14 cease-fire violation.

15 The Defence also makes the claim that the S curve about what we

16 heard so much evidence in front of the Holiday Inn was not visible from

17 the Metalka building overlooking the fact that it is visible from

18 elsewhere in Grbavica and also overlooking, of course, that trams slow

19 down before they enter the curve and speed up slowly as they are leaving

20 the curve so that their total vulnerable time is much greater than simply

21 the time that they spend in the S curve.

22 Mr. President and Your Honours, I want to spend just a couple of

23 minutes now talking about the defence of alibi and the issue of who

24 controlled the high ground.

25 The Prosecution has put forth a good deal of evidence in its

Page 9434

1 closing brief concerning the accused's effective control over the

2 Sarajevo-Romanija Corps. The only real challenge, I submit, to this

3 evidence has been a claim that the accused is not liable for the Markale

4 massacre of 28 August 1995, because on that day he was in the hospital in

5 Belgrade having an eye injury attended to.

6 As we say in our brief, the fact that the terror campaign

7 continued in the accused's absence is actually incriminating. It shows

8 that the machinery which the accused had set in motion could continue even

9 in his absence. It is also worth drawing the Chamber's attention, and I

10 respectfully do draw your attention, to the testimony of Defence witness

11 Veljovic who testified at pages 5844 and 45 that the accused, of course,

12 would have been briefed about events upon his return from Belgrade and yet

13 despite this there is no evidence whatsoever that the accused ever

14 prosecuted anyone or disciplined anyone for the dreadful crime that was

15 committed on August 28th.

16 On the issue of who controlled the high ground around Sarajevo.

17 Let me start this discussion again with something I've been talking about

18 for a couple of minutes, which is Grbavica.

19 In paragraph 41 of their brief, the Defence concedes that Grbavica

20 was controlled by the SRK. It was hemmed in on three sides by the ABiH

21 and on the fourth side was the front line, the Miljacka river. The

22 Defence then goes on to claim, however, that this does not matter in that

23 Grbavica is dominated by Debelo Brdo. They give a transcript cite for

24 this proposition, and unfortunately when one checks the source one finds

25 that it flatly contradicts the Defence assertion. It is a citation to the

Page 9435

1 testimony of General Fraser, and in it he first agrees with counsel that

2 there is a pretty good view of Sniper Alley from Debelo Brdo, adds, but

3 it's a long way away though. And in any event, the SRK, as General Fraser

4 testified, looked down on Debelo Brdo. Transcript 1768.

5 It is also worth -- or I point out that line of sight is important

6 for direct-fire weapons such as rifles. It is not important for

7 indirect-fire weapons such as mortars, and that the only scheduled

8 incidents that we refer to that we claim came from a hilltop are those

9 that came from Sharpstone. But over and above Debelo Brdo, there is

10 significant evidence that it was the SRK that controlled the higher points

11 all the way around Sarajevo. In the south-east, Trebevic, in the

12 north-east Sharpstone, Mrkovici, and Poljane and it is from these that the

13 city was bombarded.

14 [Trial Chamber confers]

15 JUDGE ROBINSON: Mr. Docherty, I want to go back to the issue of

16 what you call the Defence argument about an alibi, although it doesn't

17 appear to me to be -- to be a question of alibi at all.

18 When the accused went to the hospital to have his eye treated, at

19 that time the evidence is, if my recollection is correct, that the

20 authority and control had been transferred to his deputy, so that he was

21 not in de jure control of the operations. So I don't see this really as

22 raising a question of alibi. It is simply that he lacked the de jure

23 authority. De facto may be another matter, but he lacked the authority at

24 that time. And how does it answer that argument for you to say that the

25 machinery that he had set up was so well-oiled that it continued to

Page 9436

1 function efficiently in his absence?

2 MR. DOCHERTY: My recollection, Mr. President, was that the

3 Defence put into evidence a number of medical records without our

4 objection because indeed we do not contest that he was absent from the

5 theatre at this time, but it is also worth pointing out that he returned

6 from -- from Belgrade, that he would have been, according to Mr. Veljovic,

7 fully briefed, that he took no action.

8 So there are two things going on. Number one, the accused has set

9 up, has administered over a period of months this, without opening that

10 whole can of worms, campaign. That campaign continues to run --

11 JUDGE ROBINSON: What about 7(3).

12 MR. DOCHERTY: 7(3), Your Honour, to paraphrase, says that if you

13 have effective control over troops and you know they are committing crimes

14 and you fail to take the reasonable and necessary steps that you can

15 take - the impossible is not required - reasonable and necessary steps

16 then you are guilty of the crimes committed by those troops.

17 JUDGE ROBINSON: And you were submission is that notwithstanding

18 that he was in the hospital having his eye tended to and even more

19 significantly, in his absence the authority over the troops had been

20 transferred to somebody else that he nonetheless had effective control?

21 MR. DOCHERTY: No. Well, it's that argument but that's an

22 alternative argument. The primary argument of course is that he ordered

23 and he planned the campaign, and this is where the campaign does come in.

24 He ordered and planned a campaign of terror against the civilian

25 population. The fact that I plan to rob a bank next week and that my

Page 9437

1 confederates go ahead and rob the bank next week but that I leave town

2 does not absolve me of criminal liability for ordering and planning that

3 bank robbery any more than it should absolve the accused of criminal

4 liability for ordering, and planning, and aiding and abetting the campaign

5 of terror against the civilians of Sarajevo during the indictment period.

6 JUDGE ROBINSON: Very well. We'll hear the Defence on that point.

7 MR. DOCHERTY: Just briefly to finish up the issue of control of

8 the high ground. To take two examples, Zuc and Hum. The Defence argues

9 and they are correct that the ABiH had control of these features, but they

10 overlook the fact these features are themselves surrounded, overlooked,

11 controlled by far higher summits, and Trebevic, if we look at the map D59,

12 which was the map that hung in the courtroom for, I believe, days on end,

13 Trebevic is above a thousand metres. In the south Grad and Faletici are

14 in the 850 to 1.000 metre heights range. Poljine in the north and Paljevo

15 in the west are both 900 to a thousand metres. All of these surrounding

16 hills are littered with the sort of heavy weaponry that could be used and

17 was used to pound Sarajevo day after day during the indictment period.

18 JUDGE ROBINSON: What's the -- the legal significance of holding

19 the high ground?

20 MR. DOCHERTY: There is factual significance in holding the high

21 ground in that -- well, there are two -- two issues here.

22 First of all, with respect to indirect fire weapons like mortars,

23 it is -- it does not matter who holds the high ground. What matters is

24 that the mortars are fired from outside the city into the city. For

25 direct fire weapons it does matter. Direct fire weapons one does need to

Page 9438

1 see the target, but again, I do think that the question of control of the

2 high ground, a fair amount of time was spent on it, perhaps not entirely

3 necessarily since, as I say, the control of the high ground for direct

4 fire weapons that we allege is important is the control of the Sharpstone

5 feature which I think when one examines all of the evidence is clearly --

6 was controlled by the SRK. So there is also, of course, in the

7 introductory matters in the in the indictment, in the amended indictment,

8 a reference to the SRK controlling high ground around Sarajevo.

9 So I would put it, however, that although the ABiH did hold a hill

10 here and a hill there, all of these are the Debelo Brdo situation, which

11 is the ABiH does hold an elevation, but they do not hold the best real

12 estate in that particular area because the SRK holds even higher ground

13 that looks down upon the ABiH feature, and that the overall picture

14 painted at the beginning of the -- of the amended indictment, which is

15 that Sarajevo lies in a valley and that it is dominated by the hills that

16 surround that valley and that those hills were dominated by the SRK is

17 correct, notwithstanding that the ABiH did, of course, hold an elevation

18 here and an elevation there. The overall pattern is that the SRK held the

19 high ground looking down into the valley of the Miljacka river, looking

20 down into the city of Sarajevo.

21 Mr. President, Your Honours, in a couple of places the Defence has

22 made assertions in its brief that really are not supported by the evidence

23 at all. In particular, I want to draw the Chamber's attention to

24 paragraphs 150 and 151 of the Defence's closing brief. In those

25 paragraphs, the Defence asserts first that UNPROFOR and the UNMOs had

Page 9439

1 difficulty counting the number of wounded because they were not always

2 allowed access to Sarajevo hospitals, and then go on in paragraph 151 to

3 say that in any event, the numbers of wounded were inflated because

4 wounded were brought in from outside Sarajevo through the tunnel and put

5 in hospitals around town. That's paragraph 151.

6 There is a cite. It is to the testimony of General Karavelic. He

7 does say that the wounded were transported in the tunnel. To take that

8 citation to General Karavelic and to turn it on its head, I mean obviously

9 General Karavelic is talking about evacuating wounded from the city. And

10 to make the completely unfounded claim that the Bosnian authorities were

11 inflating the numbers of wounded by bringing civilians in wounded from

12 elsewhere in Bosnia and planting them in hospitals that then couldn't even

13 be counted because the Defence also claims that the United Nations

14 couldn't get into the hospital, is an argument that really should not

15 delay the Chamber for very long.

16 The same might be said of some of the allegations that the Defence

17 has made concerning the quality of the police work done by Bosnian law

18 enforcement. For example, at paragraph 153, the very serious allegation

19 of tampering with a crime scene is made, but it turns out that if anything

20 happened what happened is that the scene was washed. This has not the

21 slightest effect, as witnesses testified, on the shape, the depth, or the

22 position of a crater. It also has no effect on statements of witnesses.

23 The Defence seeks to make much of the absence of investigating judges, and

24 yet, investigating judges, it appears, did not always go along with the

25 police.

Page 9440

1 JUDGE ROBINSON: Is there evidence that washing the scene had no

2 effect on the -- what is it you say?

3 MR. DOCHERTY: The shape of a crater. The size of a crater, the

4 depth of a crater.

5 JUDGE ROBINSON: You have adduced evidence to that effect.

6 MR. DOCHERTY: Yes, Mr. President. We have adduced evidence to

7 that effect. From more than one witness. If you wash off the crater and

8 get the grisly remains of one of these incidents away,, the crater is

9 still there and the crater canter analysis is what matters here.

10 Similarly no prejudice can be shown from the absence of an

11 investigating judge. Nothing can be pointed out that the police did or

12 did not do that would have been different had the investigating judge been

13 there.

14 The claim is made that photographs were not taken of victims in

15 situ, but of course once a victim falls down, the victim's orientation as

16 to the origin of fire also changes and therefore photographs of victims at

17 the scene tell us nothing of forensic significance. The same is true of

18 the Defence claim that biological samples were not taken. The absence of

19 biological samples, the presence of biological samples for that matter,

20 would help tell us absolutely nothing concerning the origin of fire.

21 In conclusion, there was sniping systematically directed at the

22 civilians of Sarajevo. The accused controlled that sniping.

23 General Fraser said that if approached about sniping, if the accused was

24 approached about sniping, things would get better for a while and then

25 they would go downhill again. The anti-sniping agreement falls squarely

Page 9441

1 into that pattern. Things got better for a while and then went downhill.

2 But by signing that agreement the accused made it crystal clear that he

3 controlled the activities of SRK snipers in Sarajevo, as do exhibits 765,

4 766, 767 in which the accused requisitions sniping ammunition for his

5 troops.

6 Patrick van der Weijden of the Dutch army, a sniping expert and

7 experienced sniper himself with military experience in Bosnia, a trainer

8 for the Dutch army of other snipers says that he visited the scene of

9 every single scheduled sniping incident and in every single case fire

10 should have been withheld because the shooter could not have identified

11 the victim positively as a combatant.

12 The Prosecution has proved its sniping case. Thank you,

13 Mr. President, and thank you, Your Honours.

14 JUDGE ROBINSON: Thank you.

15 Mr. Sachdeva.

16 MR. SACHDEVA: Good afternoon, Mr. President, Your Honours, and

17 good afternoon to the Defence.

18 Mr. President, Your Honours, the Prosecution submits that it has

19 proven beyond a reasonable doubt that the three mortar incidents, the one

20 cannon and 11 modified air bomb incidents listed in schedule 2 of the

21 amended indictment were committed by the accused and his SRK forces,

22 thereby proving counts 1, 5, 6 and 7 of the amended indictment.

23 I want to indicate at the outset that in the limited time that I

24 have I don't intend to repeat the Prosecution's closing submissions

25 regarding the shelling component of the amended indictment which can be

Page 9442

1 found within pages 9 to 95 of the said brief. Rather, I will focus on two

2 scheduled shelling incidents contained in schedule 2, where necessary

3 respond to some of the Defence assertions made on them, and make

4 submissions generally on the subject of modified air bombs.

5 Mr. President and Your Honours, in the beginning I wish to remind

6 the Trial Chamber of the following significant pieces of evidence that

7 must in the Prosecution's submission be borne in mind when determining the

8 ultimate issue, that is, the origin of fire, and this is quite apart from

9 the scientific evidence that I will deal with in a moment.

10 The first is from Defence Witness Glavas. He was a soldier with

11 the Sarajevo-Romanija Corps stationed on the front lines, and at T8748 he

12 was asked this question:

13 "So in fact what you're saying is since you were surrounded, it's

14 logical to assume that when a shell lands in your area it comes from the

15 people who are surrounding you; is that correct?"

16 The answer was an emphatic "Yes."

17 The second piece of significant evidence comes from General Rupert

18 Smith. He was the UNPROFOR commander throughout most of 1995 and was

19 stationed in Sarajevo. When asked about the origin of fire for the

20 Markale incident, he said and I quote: "And finally, it is my experience

21 of being in a siege that round that fall on the inside of a siege tend to

22 come from outside the siege."

23 And, Mr. President and Your Honours, this is the incident that I

24 now turn to, the Markale massacre, scheduled shelling incident 23. The

25 Markale market Massacre on the 28th of August, 1995, in which over 40

Page 9443

1 civilians died and over 70 were injured represented the climax of the

2 accused's campaign of terror through shelling of civilians in Sarajevo.

3 It was the second most notorious incident in this location, just as the

4 first Markale marketplace massacre on the 5th of February 1994 also

5 caused, by a single 120-millimetre mortar round, marked the tenure of

6 General Galic --

7 JUDGE ROBINSON: On behalf of the interpreters may I ask you to

8 slow down.

9 MR. SACHDEVA: I apologise to the interpreters.

10 Just as the first marketplace massacre on the 5th of February,

11 1994, also caused by a single 120-millimetre mortar round, marked the

12 tenure of General Galic, General Milosevic's predecessor, so the shelling

13 on the 28th of August, 1995, marked the tenure of the accused. The

14 Markale shelling attack symbolises the unnecessary suffering of the

15 civilian population in Sarajevo during the accused's tenure as SRK

16 commander. And, Mr. President, Your Honours, the Prosecution does call

17 this a shelling because when one looks at the hard scientific facts on the

18 trial record, this is exactly what it was, a single round of a

19 120-millimetre mortar grenade fired from SRK-controlled Mount Trebevic by

20 an SRK mortar crew on a late summer morning, exploding at the marketplace

21 in downtown Sarajevo, killing and maiming civilians.

22 Mr. President, Your Honours, there are versions of events that are

23 quite -- that are supported by evidence and there are versions that are

24 not. Quite simply, only the Prosecution's version of events is supported

25 and corroborated by the evidence you have heard in this trial. The

Page 9444

1 Prosecution's account of the Markale massacre is a detailed reconstruction

2 based upon a painstaking evaluation of the scientific evidence developed

3 during four separate official contemporaneous investigations.

4 Because the Prosecution's account is based on evidence, we are

5 able to tell the Court that it has been established beyond a reasonable

6 doubt that a 120-millimetre shell fired from SRK positions on

7 Mount Trebevic, situated south of the explosion site, flew along an

8 approximate 170-degree direction, entered the busy market at an angle of

9 no shallower than 67 degrees, hit a point in the main road roughly 4.8

10 metres from the wall of the south-facing building and exploded, causing

11 the human destruction that is graphically depicted in video P623 and

12 P355. The evidence of civilian casualties is also recorded in medical

13 records and autopsy reports and they are P71 through to P82. And

14 significantly the evidence of casualties is witnessed firsthand by victims

15 of the shelling themselves such as witness Mesuda Klaric in P648.

16 The detailed analysis of the technical evidence is contained in

17 paras 302 to 338 of the Prosecution's final brief. Suffice it to say that

18 the first UN investigation conducted by UNMO witness Konings who arrived

19 at the scene 30 to 40 minutes after the explosion concluded that a

20 120-millimetre mortar round had exploded and this is contained in his

21 report, P85. This was confirmed by a separate independent Bosnian

22 investigation in Prosecution Exhibit 252, under seal, and a further UN

23 report conducted by the French Engineering Cell at Prosecution Exhibit

24 357, page 6.

25 The direction of fire of the shell, that is 170 degrees, plus

Page 9445

1 minus the 10 degree margin of error is also not in doubt. Konings, the

2 Bosnian MUP investigation, and the French investigation all concluded the

3 approximate direction of fire to be near the 170 degree mark. Expert

4 witness Higgs, who as the Trial Chamber recalls testified as an expert in

5 the Galic case and whose whole career had been devoted to mortars and who

6 was the most senior officer in the British Army regarding mortars,

7 confirmed that the 120-millimetre explosion had occurred after examining

8 photographs of the crater. Even Defence expert witness Garovic said that

9 the correction was 175 degrees and I refer Your Honours to paragraph 313

10 to 318 of the brief.

11 It is clear that the 120-millimetre shell flew in from south of

12 the city in the direction of Mount Trebevic which was indisputably under

13 SRK control. That the shell was fired across the confrontation lines, in

14 other words, in SRK territory, and not from within the confrontation

15 lines, that is within ABiH territory, has been shown beyond a reasonable

16 doubt in large part by the evidence of Witness Thom Knustad. Knustad was

17 a Norwegian UNMO with extensive experience in artillery. On the morning

18 the 28th of August, 1995, he along with his colleagues Paul Conway were

19 posted in a UN observation point called OP1, which was situated close to

20 the confrontation lines to the south of the city towards Mount Trebevic

21 and was roughly one kilometre away from the flight path of the shell.

22 Now why is this important? It is important because Knustad and

23 Conway were deployed at a location that if a 120-millimetre shell had been

24 fired from within ABiH territory along this flight path then Knustad and

25 Conway would have heard it. But the overwhelming evidence is that they

Page 9446

1 did not hear the fire. And this means in the Prosecution's submission

2 that the shell was not fired from ABiH lines. Knustad said it was

3 possible to hear the sound of a 120-millimetre mortar being fired from

4 some 4 to 5 kilometres away. Higgs confirmed that it could be heard from

5 some 3 to 4 kilometres away and Defence expert Garovic corroborated this

6 by saying it could be heard from some 5 to 6 kilometres away.

7 THE INTERPRETER: Kindly slow down for the interpreters, please.

8 MR. SACHDEVA: I apologise again.

9 He also agreed that if an observer were one kilometre away from

10 the firing position, he would have heard it.

11 Knustad testified that he did not hear a mortar being fired from

12 within the confrontation lines up until he saw the smoke-stack rising from

13 the marketplace in town. He testified that if it had been fired from

14 within the lines and in the direction of fire of 170 degrees, he would

15 have heard it.

16 The significance of this evidence is amplified by the UNMO team

17 leader Konings. He was Knustad's team leader and he held Knustad in high

18 professional regard, saying that he was an experienced military man with

19 experience in artillery and mortars. Konings testified that OP1 reported

20 to him that they did not hear any outgoing round. In answering a question

21 as to the significance of the UNMOs at OP1 not hearing the round being

22 fired, he said at T 3585 and I quote:

23 "Well, it is a missing clue in trying to designate the origin of

24 fire of that specific round. In case it would -- the round would have

25 been fired from Bosnian territory, it would have been done -- in

Page 9447

1 combination with this minimum angle of impact it would have been done with

2 charge zero, the lowest charge you can fire. If you trace that back from

3 the origin of impact you would have come in the area around OP1. The

4 place of origin of fire would have been in the area around OP1. And since

5 on that quiet day you cannot miss, to my professional opinion, an outgoing

6 120-millimetre round, it's a loud bang. You cannot miss it, you will see

7 it, you will see the flash, you will see the smoke. Well, that brings you

8 to the conclusion that the round came from further away. And since there

9 was no noise heard, it must have come from behind the mountain ridge,

10 which is on the south side of the city of Sarajevo, which muffles the

11 sound."

12 This evidence clearly establishes that the round was not fired by

13 the ABiH but by the SRK as it must have been fired from a further distance

14 away, beyond the confrontation lines and behind the mountain ridge.

15 Knustad said it was very possible that the mortar was fired from behind

16 the VRS line and that he would not have heard it because of the

17 configuration of the terrain and the way the sound would move behind the

18 hill, behind his position. Expert witness Higgs confirmed the

19 neutralising effect on the sound by the hills. The Defence experts while

20 agreeing that the sound would have been muffled maintain that the firing

21 of the shell would have been heard by the UNMOs if it had been fired from

22 VRS lines.

23 Mr. President, the problem with this evidence is that not only is

24 it contradicted by Higgs and by Konings and by Knustad, it is based upon

25 the firing position being at 2.400 metres from the explosion site and does

Page 9448

1 not take into account that the shell could have been fired from a further

2 distance. It is correct that Higgs puts the likely firing position at

3 2.400 metres. But as the Prosecution has submitted during the trial and

4 has indicated in our final trial brief at paragraph 312, the Prosecution's

5 burden of proof is to establish that the round was fired within SRK

6 territory and this is what has been established.

7 But actually, Mr. President, Your Honours, the Defence haven't

8 suggested this account at all. No. The Defence has maintained a

9 radically different version of events and this is why at the beginning of

10 my argument I stress the fact of a shelling incident, because quite to the

11 contrary, the Defence assert that the destruction caused at the

12 marketplace was the result of a static explosion, a terrorist attack

13 caused in situ.

14 Mr. President, Your Honours, in paragraphs 326 to 338 in its

15 closing brief the Prosecution rebuts in detail the Defence theory of the

16 explosion being the result of a static explosion and in the Prosecution's

17 submission it is clear when one examines the evidence such a theory cannot

18 be supported.

19 The Defence argument on this issue is contained on page 66 of the

20 English version of their brief. Firstly the Defence ask the Trial Chamber

21 to rely on the expert report of Dr. Vukasinovic and that report is D175.

22 This report concludes that the Markale shelling was the result of a static

23 explosion. The Prosecution submits, however, that this report should not

24 be afforded any weight by the Trial Chamber. Its author was not called by

25 the Defence and his analysis and conclusions were not tested in

Page 9449

1 cross-examination or by questions from the Bench and as such is

2 unreliable.

3 Initially, Dr. Vukasinovic relies on several assumptions. One

4 example of this is his finding related to the angle of descent of the

5 shell, noted on page 3 of the English version of his report. To determine

6 the height of the south-facing building, a crucial measurement for the

7 calculation of the angle of descent, Vukasinovic's determination of the

8 height was based on an assumption of the average height of a person

9 depicted in figure 4 and that assumption was that the man would have been

10 1.75 metres high.

11 Now, Mr. President, this could be but it could also not be. If

12 such an assumption is wrong then it throws the entire subsequent

13 conclusions awry.

14 The Defence in their brief state that Prosecution expert Zecevic

15 agreed with the mathematics used by Vukasinovic and recognised his

16 expertise in this field. Well, yes, this is correct in part. Zecevic

17 accepted that the theory used by Dr. Vukasinovic was sound but he had

18 serious concerns with the data the doctor used. This, the Defence did not

19 reveal in their brief. Zecevic did not endorse a finding of a static

20 explosion and I refer you, Mr. President and Your Honours, to transcripts

21 page 4936 and 4937. Zecevic said the following:

22 "In the study you mention there are several arguments that are

23 misconceived. If we calculate the height of the building and the distance

24 from the place of the incident we can determine that the angle of descent

25 was at least 70 degrees whereas in Mr. Vukasinovic's study it says 50 to

Page 9450

1 60. It changes the whole thing and I underscore yet again, I want to

2 stress that Mr. Vukasinovic is excellent in theory. However, in his study

3 he used data that did not reflect the accurate situation."

4 JUDGE ROBINSON: Mr. Sachdeva, earlier you referred us to page 66

5 of the Defence brief, and I'm wondering whether that is the correct page.

6 MR. SACHDEVA: It's the English version, Mr. President.

7 JUDGE ROBINSON: Well, it's the last page, headed "Discussion."

8 MR. SACHDEVA: Mr. President, I apologise. I think it's page 57.


10 MR. SACHDEVA: May I continue.

11 JUDGE ROBINSON: Yes, please. Mr. Tapuskovic.

12 MR. TAPUSKOVIC: [Interpretation] Your Honours. Good afternoon,

13 Your Honours. I'm sorry to interrupt my learned friend, but I was

14 expecting that we would receive the English translation if it's available.

15 In the current situation, we are not able to follow properly. We did

16 notice certain discrepancies, and I thought that if available we should

17 have the English translation.

18 JUDGE ROBINSON: Yes. I would think so.

19 MR. SACHDEVA: Mr. President, perhaps I can assist my friend.


21 MR. SACHDEVA: It's also contained in pages -- paras 193 to 194 of

22 the French original version of their brief.

23 JUDGE ROBINSON: I'll ask the registrar to ensure that you receive

24 a copy, Mr. Tapuskovic, of the English version. Are you sure you don't

25 have it? We have had this experience before.

Page 9451

1 MR. TAPUSKOVIC: [Interpretation] You certainly didn't have that

2 experience with me, because I'm sure we didn't receive it, and we wanted

3 to have it today before the closing arguments began. Right now we are not

4 in a position to check the references my learned friend is making.

5 JUDGE ROBINSON: The paragraph numbers would be the same as in the

6 French, but you are entitled, of course, to have the English version, and

7 we'll see to that, Mr. Tapuskovic.

8 Please continue, Mr. Sachdeva.

9 MR. SACHDEVA: Thank you, Mr. President.

10 I had just - before this deviation - I had just finished quoting

11 Dr. Zecevic, and I want to say that of course Dr. Vukasinovic made

12 assumptions because he was not there, but the Bosnian and the UN

13 investigators were there on the scene just after the explosion, and they

14 arrived at specific calculations of the angle of descent, independent

15 calculations and measurements which, Mr. President and Your Honours, in

16 the Prosecution's submission are far more reliable.

17 JUDGE ROBINSON: Mr. Sachdeva, I'm going to stop now to take the

18 break.

19 I understand, Mr. Tapuskovic, that you wish to make a submission,

20 and I should say if a party wishes to make a submission it may do so. You

21 don't need to have my permission. You just rise and make the submission.

22 MR. TAPUSKOVIC: [Interpretation] Well, the only thing,

23 Your Honours, that I wish to say, and I had indicated so before the

24 beginning of this hearing, is that I could certainly start my own closing

25 argument right away. Nevertheless, I wanted to say, and I am prompted by

Page 9452

1 the problem with this translation additionally, and I am going to respect

2 whatever the Chamber decides, but still I would like, after the closing

3 argument of the Prosecution is finished, to have this document in order to

4 prepare for tomorrow, in order to be as concise and as clear as possible

5 in my response to the Prosecution, because I'm hardly in a position to

6 respond to every argument made today. I see no reason for haste, and I

7 still have time during the night and tomorrow morning to prepare properly.

8 To that end, I wanted to say that I would appreciate it if you could

9 enable me to do so.

10 JUDGE ROBINSON: We'll consider the submission. Of course the

11 time available to you would still remain the same, two hours.

12 Mr. Sachdeva.

13 MR. SACHDEVA: Mr. President, I just would like to inform counsel

14 that when I had referred to page 66, in fact it was of the French original

15 version of the brief.

16 JUDGE ROBINSON: Not the English.

17 MR. SACHDEVA: Not the English version.

18 JUDGE ROBINSON: Thanks. Now, the Chamber will have to carry out

19 some consultations in the break, and we will therefore break for a half an

20 hour.

21 --- Recess taken at 3.45 p.m.

22 --- On resuming at 4.25 p.m.

23 JUDGE ROBINSON: Yes, Mr. Sachdeva.

24 MR. SACHDEVA: Thank you, Mr. President.

25 Before the break I had -- I was talking about Dr. Vukasinovic's

Page 9453

1 report and as an aside, Mr. President, Your Honours, it is noted that the

2 methodology used by Dr. Vukasinovic is the same as that used by the

3 Bosnian investigators in arriving at specific calculations such as the

4 angle of descent, and I make this point because the Defence, as my

5 colleague Mr. Docherty has already told you, have in their brief

6 questioned the competence and the qualifications of some of the Bosnian

7 police.

8 Now, the Defence have also said that their expert Garovic who was

9 an experienced artillery officer also conclude that had it was a static

10 explosion at the marketplace. Well, let's examine what this experienced

11 artillery officer concluded. When confronted, he agreed that for there to

12 have been a static explosion there would have been secondary marks on the

13 ground from either the contraption that would have been used to hold the

14 projectile in place or from the explosive device. He said he did not see

15 evidence of secondary marks on the ground. Not unsurprisingly, expert

16 witness Higgs corroborates this and he says at T5032:

17 "Yes. If they had used a 120-millimetre bomb statistically, then

18 it needed to be detonated in some way, either by placing a secondary

19 charge on the side which would have affected the pattern tremendously."

20 Now, as a response, Garovic appeared to suggest that there may

21 have ban cover-up when the scene was cleaned but again when confronted he

22 agreed that crater marks on the road would not have been altered by the

23 cleaning of the crime site and, Mr. President, Your Honours, this fact is

24 also corroborated by Witness 137, the Bosnian police investigator who was

25 also at the scene after the explosion.

Page 9454

1 The two experts Higgs and Garovic also agreed on another factor,

2 that any static explosion would have had to have been detonated so as to

3 coincide with the specific crater patterns found at the scene on the road.

4 Higgs at 5031 said that with regard to the shrapnel patterns on the

5 ground, if a round was put there statically, it would have to have been

6 held in position by a frame to hold it at roughly 70 degrees to coincide

7 with the crater marks. Defence expert Garovic agreed that the crater

8 marks were not accidental but, rather, a result of a particular trajectory

9 and angle of descent and therefore to produce a static explosion one would

10 have to emulate these factors.

11 UNMO witness Konings who testified that he had passed the

12 marketplace some one or two hours before the explosion and said that he

13 did not notice a crater, that to create a crater between the time he

14 passed there and the time of the explosion would be, in his words,

15 "impossible".

16 The Defence also cite to Witness Demurenko's conclusion that it

17 was a static explosion, specifically a terrorist attack. Mr. President

18 and Your Honours, I don't want to repeat the Prosecution's detailed

19 rebuttal of Demurenko's testimony, and I refer Your Honours to paragraphs

20 327 and 329 of the brief, but suffice it to say for this -- this argument,

21 there are serious problems with his testimony and conclusions.

22 Firstly, the data he used when coming to his conclusion that it

23 was a static explosion was, in the Prosecution's submission, incorrect,

24 and I refer Your Honours to his -- his figures of 120 people being killed.

25 Secondly, he says that it was not possible to fire a single round

Page 9455

1 at the same spot in two years, but this, Mr. President, disregards the

2 evidence of Higgs and W-137 that it is possible to hit a target on the

3 first shot when sites have been pre-recorded.

4 And lastly, Demurenko himself admitted that he was not an

5 anti-terrorist specialist, rather a peacekeeping specialist.

6 Mr. President, Your Honours, when it boils down to it, you are

7 being asked to believe that the Bosnian authorities conceived of a plan to

8 create a contraption and explosive device that would be in range --

9 arranged in such a way so as to produce crater marks to reflect a

10 120-millimetre explosion and an angle of descent at roughly 70 degrees,

11 that such a device would be wheeled in and set up amongst the throng of

12 very people that the Bosnian authorities were defending while they were

13 busy shopping and trading goods on a downtown street, without anyone

14 noticing, and then detonating it. You are being asked to believe that the

15 Bosnian authorities would sacrifice hundreds of their own people and that

16 it could be done with such exposure without it coming to light in the past

17 12 years.

18 This conspiratorial version, Mr. President and Your Honours, is

19 completely unbelievable over the most obvious, logical and scientific one,

20 and that is a 120-millimetre mortar was fired by the Sarajevo-Romanija

21 Corps from Mount Trebevic exploding at the busy marketplace.

22 The Prosecution submits that the evidence is beyond clear. This

23 account is what happened on that fateful morning of the 28th of August,

24 1995, and the static explosion theory is basically what Defence expert

25 Garovic said at 9216 a guess, and a guess, Mr. President, cannot lead to

Page 9456

1 reasonable doubt.

2 Finally on this incident, the Prosecution submits that the purpose

3 of firing a single round into the marketplace could only be to terrorise

4 the civilian population. As expert witness Higgs said at 5030, and I

5 quote:

6 "Firing a single round into, as in the case here, a centre of a

7 built-up area or a close to an area where civilians are known to be

8 present would probably -- probably be more along the lines of to terrorise

9 the population and to actually kill civilian casualties rather than any

10 military objective."

11 I now turn to the subject of modified air bombs, and again, I

12 refer Your Honours to paragraphs 21 to 44 of the Prosecution closing

13 brief.

14 The Prosecution submits that it has proven beyond a reasonable

15 doubt that the accused personally ordered the deployment of modified air

16 bombs on Sarajevo throughout the amended indictment period in order to

17 terrorise the civilian population. There is an abundance of credible

18 evidence that the SRK developed, possessed, and used these notoriously

19 inaccurate weapons, that in General Fraser's words had no legitimate

20 military value during the conflict. And this evidence ranges from orders

21 from the accused, them being P225 and P226, to witness testimony from UN

22 witnesses and Bosnian police investigators.

23 There is, on the other hand, no credible evidence that the ABiH

24 possessed, let alone used, modified air bombs in the city against its own

25 people. And for this reason the Prosecution submits that for all of its

Page 9457

1 scheduled incidents involving modified air bombs the origin of fire was

2 without doubt within SRK-controlled territory.

3 Now of course during the trial there was evidence in respect of

4 the TV tower incident and that is scheduled shelling incident 15 which

5 occurred on the 28th of June, 1995. And the evidence, some of the

6 evidence you have heard was that the ABiH fired this modified air bomb,

7 but, Mr. President and Your Honours, the Prosecution submits that this

8 evidence is not credible over and above the contemporaneous documentary

9 and witness evidence proving that the SRK fired the modified air bomb at

10 the TV tower --

11 THE INTERPRETER: Please slow down a little.

12 MR. SACHDEVA: -- including a document in which --

13 JUDGE ROBINSON: Please slow down.

14 MR. SACHDEVA: Yes, Mr. President.

15 Including a document which the accused himself congratulates his

16 troops on hitting the TV tower. And I now turn to this incident in some

17 more detail.

18 Mr. President, the Defence theory is that the modified air bomb

19 was fired by the ABiH some 400 metres to the north of the TV tower in a

20 built-up area near Mali Hum with no one noticing it except two UNMOs,

21 Hansen and Knowles. You may recall during the testimony of expert Zecevic

22 a video clip was shown demonstrating what a launch of an air bomb sounded

23 like. Of course it is recalled that this launch was not of an air bomb in

24 Sarajevo. However, it is instructive as to the sound such a launch would

25 make. And the reason why I mention this is because it demonstrates, in

Page 9458

1 the Prosecution's submission, the sheer improbability of such a weapon

2 being fired from within the confrontation lines which the ABiH without it

3 being noticed by anyone. Is it really possible that this is what

4 happened, and if Hansen and Knowles are to be believed, only two UNMOs

5 heard and noticed it and no one else did?

6 The Prosecution submits that this is not at all possible. And not

7 because of conjecture but because the positive direct evidence speaks to

8 the absolute contrary. In cases before the Tribunal, if there exists

9 contemporaneous recorded admission from an accused that a particular crime

10 was committed then clearly this is the best evidence and this is what we

11 have in this case. Your Honours, Prosecution Exhibit P42 is the infamous

12 letter to all SRK troops from the accused on the state of affairs at the

13 front, and in it the accused says the following:

14 "Our artillery forces are responding with precision to the Muslim

15 artillery attacks. In one such response on the 28th of June they hit had

16 the BC/RTC/BH radio and television centre, the centre of media lies

17 against the just struggle of the Serbian people."

18 What better proof can there be regarding the origin of fire for

19 this incident?

20 Now, the Trial Chamber witness Knowles at T9395 did agree that it

21 is theoretically possible that a commander may boast about things they

22 never did to boost morale, but this was not the case here. In Prosecution

23 Exhibit 629, a UN report of a meeting on the 9th of July, 1995, between an

24 UNPROFOR officer and a Captain Novak Prodanovic from the Ilidza Brigade,

25 the SRK captain is reported as having said that the SRK was firing Krema

Page 9459

1 rockets at Sarajevo, including two at the TV building and I quote, "one of

2 them hit it."

3 Can an admission to UNPROFOR be a tactic to boost SRK morale? The

4 Prosecution submits not, certainly not in addition to the accused's own

5 admission as described above. However, if the Trial Chamber is minded to

6 examine the testimony of Hansen and Knowles, then the Prosecution submits

7 that their accounts are inconsistent and cannot raise reasonable doubt

8 over the accused's responsibility. And again, Mr. President, this is in

9 effect a summary of the Prosecution's written arguments found in paras 131

10 to 140 of its brief.

11 Hansen does not explain why he waited day before he reported that

12 the ABiH hit the TV tower when he had that alleged information on the day

13 of the incident itself. Both Hansen and Knowles did not see the launch of

14 the projectile and in fact Knowles had never seen the launch of a modified

15 air bomb before. UNMO witness Brennskag however did see the launch and

16 said it same from Ilidza under SRK control.

17 Hansen testified that he was informed that the ABiH fired the

18 projectile by another unnamed UNMO who he never identified. Yet Knowles

19 testified that he saw the flight of the projectile with Hansen in the PTT

20 parking lot. Who is correct here? Maybe this is why when Knowles was

21 confronted with evidence that the UN had concluded that the SRK had fired

22 at the TV tower through its protest letter to the accused and that --

23 THE INTERPRETER: Kindly slow down for the interpreters. Thank

24 you.

25 MR. SACHDEVA: And that is P18 and the SRK admission on P42,

Page 9460

1 Knowles conceded that it was possible that what he had seen was a

2 secondary event by which he meant a second projectile. As Knowles said,

3 "No one, including myself would wish to dispute the facts presented."

4 Knowles agreed that it was a sudden, unexpected and very quick

5 event and on all the facts the most reasonable explanation is that Knowles

6 saw the same air bomb that Brennskag and W-156 did, the modified air bomb

7 fired by the SRK that hit the TV tower. And further, Mr. President, the

8 marks on the roof that W-138 testified about are consistent with the

9 projectile flying from the west and not from the north in the area of Mali

10 Hum.

11 Lastly, the UNPROFOR commander General Smith testified that if the

12 ABiH had been shown to have fired the round that hit the TV tower, it

13 would have been brought to his attention. It was not brought to his

14 attention.

15 Mr. President, Your Honours, the Prosecution asks the

16 Trial Chamber to arrive at the only available result based upon the

17 evidence, and that is the Sarajevo-Romanija Corps launched this modified

18 air bomb on the TV tower on the 28th of June, 1995, at around 9.20 in the

19 morning, killing one person and wounding a further 28 civilians.

20 I conclude. By proving beyond a reasonable doubt that the

21 scheduled and unscheduled shelling incidents the Prosecution has

22 established that General Dragomir Milosevic's responsibility -- has

23 established his responsibility for the crime of terror, a violation of the

24 laws and customs of war as charged in count 1 of the amended indictment,;

25 the crime of murder, a crime against humanity as charged in count 5; the

Page 9461

1 crime of inhumane acts, a crime against humanity as charged in count 6;

2 and finally, the crime of unlawful attacks on civilians as charged in

3 count 7 of the amended indictment.

4 JUDGE ROBINSON: That leaves out what?

5 MR. SACHDEVA: It leaves out the counts related to sniping and

6 those are my submissions, Mr. President and Your Honours. Thank you.

7 JUDGE ROBINSON: Thank you.

8 Ms. Edgerton.

9 MS. EDGERTON: Thank you, Your Honours.

10 It seems fitting that I be the penultimate member of the

11 Prosecution team to address you, Your Honours, because now after hearing

12 the evidence of my colleagues I would suggest the terror count in this

13 case is a charge that really captures the criminality of the accused, the

14 criminality at issue, and it contextualises all the other evidence that

15 you've heard my colleagues speak of, you've heard testimony about, and

16 really brings home to all of us the sheer scale of the victimisation in

17 this crime.

18 The population of the city of Sarajevo, 250.000 people, were

19 affected, terrorised. This wasn't an ethnic terror. These Serbs, Croats,

20 and Muslims alike who lived in Bosnian government-held Sarajevo were

21 terrorised, as Mr. Waespi said, not from the fear of being caught in a

22 crossfire but because there was a battle nearby, what they suffered

23 through was something very different than the fear that comes with war.

24 They were the targets, Your Honours, of a politically motivated campaign

25 of shelling and sniping that was initiated and ensured by the

Page 9462

1 Sarajevo-Romanija Corps, maintained explicitly to terrorise its victims.

2 These were attacks in which the accused took part at all levels,

3 and they were effective. The civilians of Sarajevo did live in terror.

4 Your Honours, it's the Prosecution's submission that there's no

5 doubt that Dragomir Milosevic specifically intended and did send a clear

6 message to the civilian population of BiH-held Sarajevo. They could never

7 even hope for safety. The strength of the message was palpable because no

8 one knew whether they might be the SRK's next victim. And I'm going to,

9 in my submissions, highlight some of the evidence in that regard.

10 You've heard abundant evidence from this trial as to the largely

11 static nature of the front lines around Sarajevo throughout the siege and

12 Sarajevo residents from within those lines, from all corners of the city

13 from Bascarsija to Hrasnica from all walks of life, ages, ethnicities gave

14 evidence to this Chamber as to the enduring violent nature of the campaign

15 of shelling and sniping against them from SRK-held territory. They've

16 given consistent, convincing evidence which shows that from August 1994 to

17 November 1995 no civilian activity and no areas of BiH-held Sarajevo were

18 safe from shelling or sniper fire. And that's because, as my colleagues

19 have made plain, these attacks weren't aimed at neutralising any military

20 targets. Quite the opposite. This wasn't conventional military activity

21 at all as we've said. The intention was to ensure civilian casualties.

22 Also, the trial record in this case is filled with evidence that

23 throughout the period of this indictment shelling and sniping into

24 BiH-held urban areas of Sarajevo wasn't justified by any military

25 necessity. And there's not been any evidence that even one of the

Page 9463

1 scheduled or unscheduled incidents you have put before you has realised a

2 military advantage in favour of the SRK. Mothers walking with their

3 children were shot by SRK snipers. Schoolchildren were shot. People

4 riding trams in times of cease-fire were shot, and the evidence Your

5 Honours have is that in all of those cases every single one of those

6 victims were discernible as civilians.

7 People were shelled and killed queuing to get their allotment of

8 drinking water. They were killed shopping. They were skilled inside

9 their own homes like in scheduled shelling incident number 6. Densely

10 populated residential areas of Bosnian-held Sarajevo were shelled.

11 Dobrinja, Novo Sarajevo.

12 People who tried to rescue those who fell, even to investigate the

13 origin of fire, were themselves shot at from SRK territory, and the people

14 who lived within the lines, the people who remained in Sarajevo were

15 forced to somehow adapt to their hostile environment. They lived in

16 darkness like Witness W-35. They lived at night, like witness Sisic whose

17 husband went out at night to find water so snipers wouldn't see them.

18 They hid in basements and shelters. Going out to buy fresh fruit from a

19 kiosk was a dream, but deciding whether or not you would let your child

20 out to play was a reality. You never knew whether they would come back

21 alive. All this is supported by, in our submission, neutral and

22 experienced international observers, NATO generals, for example, who gave

23 corroborative evidence to this effect.

24 Further, all this evidence is corroborated by Mr. van der Weijden

25 who said as my colleague Mr. Docherty made clear in no scheduled sniping

Page 9464

1 incident to this indictment could the victim be identified as a combatant.

2 And that's at P514, page 66. And by mortar expert Richard Higgs whose

3 analysis for example, of SS 14 let him to the firm conclusion that this

4 round that killed 7 and injured 12 was fired deliberately and aimed at the

5 location -- at that location and fired at the particular time to cause

6 maximum casualties. And that's at P589, pages 17 and 18.

7 Your Honours have heard evidence of both the breadth and duration

8 of the campaign. Mr. Waespi has already noted that by the time

9 General Milosevic took office, it had been in place for more than two

10 years. While the pattern and frequency of attacks fluctuated and we

11 concede that, as Mr. Martin Bell told Your Honours that would largely be

12 according to the seasons. They were relentless to the point where

13 specific areas of Sarajevo became notorious as sources of sniper fire from

14 SRK territory and where artillery and sniper positions could be identified

15 as permanent, and in that regard I would point Your Honours to the

16 evidence of General Karavelic.

17 Your Honours, what I've just said only underscores evidence that

18 in our submission leaves no doubt that a widespread, systematic campaign

19 of shelling and sniping civilians in BiH-held parts of Sarajevo resulting

20 in their death and injury was in place throughout the indictment period,

21 and the nature, the manner, the timing, and the duration of these attacks

22 of shelling and sniping are among the factors from which you can infer the

23 general's specific intent to spread terror. And I'll move to discuss

24 specific intent further later on in this presentation.

25 But what I want to talk about now is whether the primary purpose

Page 9465

1 of the campaign of sniping and shelling of civilians in BiH-held territory

2 was to cause terror. To deal broadly with some defence positions that

3 might go to the issue of primary purpose first, I'd just like to note that

4 Defence has claimed we've all heard through this trial and in their brief

5 that variously Bosnian Serb forces were not the aggressor, SRK forces

6 wanted peace, that they were merely trying to defend their homes and what

7 they perceived to be theirs or Bosnian Serb land. With respect to this

8 point I would like to note that the territory in question around Sarajevo

9 had been occupied and ethnically cleansed in 1992 to remain in 1994 under

10 control of the SRK, and in that regard I would refer Your Honours to the

11 testimony or to the report, rather, of Dr. Donia and the evidence of

12 Mr. Harland.

13 As to the desire for peace, Prosecution witness David Harland

14 already explained that this desire for a cease-fire on the part of the

15 Bosnian forces -- Bosnian Serb forces, was legitimate and importantly a

16 reflection of the fact that by the indictment period having been

17 militarily active in 1992 and 1993, they had already taken a little more

18 than 70 per cent of the total territory of the Republic of Bosnia and

19 Herzegovina, even more land than they ultimately sought to keep under a

20 republic-wide peace agreement. Of course a cease-fire would have been of

21 interest to the Bosnian Serbs to preserve the status quo and consolidate

22 their dominant position throughout the country. But let's go back to

23 Sarajevo. Even so, the evidence is that sniping and shelling into

24 BiH-held Sarajevo continued through the indictment period and increased in

25 its intensity as time went on.

Page 9466

1 Defence has also repeatedly, and particularly for the year 1995,

2 offered that SRK operations around Sarajevo were defensive and nothing

3 more. A number of Defence witnesses almost exclusively SRK front-line

4 trench soldiers gave evidence that their orders were not to fire at

5 civilians. On this last point, Your Honours, whether the accused may have

6 given such orders, the evidence is overwhelming, I would submit, even from

7 Defence witnesses, for example, T39 who mentioned it and T22, that sniping

8 and shelling of Bosnian-held Sarajevo from forces under the accused's

9 control happened throughout the indictment period. It never stopped. And

10 these assertions from Defence witnesses, as I've said, come from trench --

11 trench soldiers who confirm they have no personal knowledge of the

12 situation within the Bosnian-held urban area of Sarajevo. In fact, one,

13 Mr. Djukic, commented that he gave no credence to a siege of Sarajevo

14 having been in place.

15 Your Honours, on the other hand, we have coherent credible

16 evidence from objective, third party observers of the situation within

17 those BiH-held areas inside the city as well as the victims themselves

18 who, time and again, say that sniping and shelling they observed and

19 suffered had no discernible military objective. Its primary purpose,

20 Your Honours, was specifically expressly to cause terror to the civilians,

21 and the targets I've mentioned earlier speak for themselves, don't they?

22 Mothers with their children walking, schoolchildren.

23 JUDGE ROBINSON: Are you going to tell us what terror is?

24 MS. EDGERTON: Would you like to hear comment about the elements,

25 Your Honour?

Page 9467

1 JUDGE ROBINSON: Or do you think the term is self-explanatory? .

2 MS. EDGERTON: I think the term is self-explanatory but I prefer

3 to refer Your Honour, as I did when I spoke to you before during the

4 98 bis submissions, to the evidence of the people themselves. And in

5 fact, it might be telling and appropriate at this moment to turn to one

6 exhibit and the only exhibit I'm going to offer you, a clip from P612,

7 which will come up in Sanction on your screen. This is a video,

8 Your Honour, that Prosecution witness Martin Bell called one of the iconic

9 images of the war, saying, "I think it conveys probably more than any

10 single sniping incident the daily perils of the people in the city."

11 If you could play that video, please, again. It's very brief.

12 [Videotape played]

13 MS. EDGERTON: It speaks volumes, Your Honours. Those cowering

14 people would be sprinting across the intersection to avoid sniper fire if

15 it wasn't for that UNPROFOR APC. The people are like machines. There is

16 no innocence in that image. There's no conversation. The innocence has

17 been replaced by the unrelenting fear of being shot or shelled which was

18 realised through the SRK's campaign of terror. And that, Your Honour, was

19 defined by the Appeals Chamber in the Galic case as being acts or threats

20 of violence, the primary purpose of which is to spread terror among the

21 civilian population.

22 JUDGE ROBINSON: That is a circle, isn't it? I said that's a

23 circle.

24 JUDGE HARHOFF: It's a circular definition. Terror is spreading

25 terror.

Page 9468

1 MS. EDGERTON: The terror -- the terror, in our submission, in my

2 submission, is exactly what I've articulated to you immediately prior,

3 Your Honours. No one knew whether they might be the next victim. It

4 affected every waking moment of their lives. People for 15 months over

5 the period of this indictment knew absolutely no sense of safety anywhere

6 in the city. Terror is -- in this case, terror has been the intentional

7 deprivation of a sense of security. It's been the primal fear that people

8 feel when they see someone in front of them gunned down and that moment of

9 panic when they try and run to help the victim, waiting for the next shots

10 to come, and you've had ample evidence about that.

11 Our brief contains a lengthy discussion of what terror means and

12 the evidence of the witnesses in that regard -- excuse me, in that regard,

13 and I would refer back to paragraphs 401 to 446 for an extensive, more

14 extensive, discussion.

15 JUDGE ROBINSON: I must say that I like your definition,

16 Ms. Edgerton. Intentional deprivation of a sense of security and the

17 primal fear that people feel when they see someone in front of them gunned

18 down. That comes very close to it.

19 MS. EDGERTON: And I take that from the witness -- the witnesses

20 and the evidence that's come before this Trial Chamber. I recall

21 Martin Bell, who reported from Sarajevo at times throughout the conflict,

22 characterising the only truly safe places in the whole city as the cave

23 down by the Miljacka and the tunnels. How shocking that people in a

24 European city would be reduced to seeking shelter underground for some

25 measure of safety and security. And I quoted to Your Honours some months

Page 9469

1 ago something that struck me from Mr. van der Weijden's evidence, and that

2 was to deal with the feeling that you get under the eye of a sniper. He

3 said, "The thought of never being safe affects everybody." And apart from

4 being shot, the anxiety and it's obviously a pervasive anxiety, mainly

5 comes from not knowing where or exactly when the sniper's going to strike.

6 I think, Your Honours, Martin Bell's comments in respect of that

7 clip that you saw were very telling. The constant attacks and the fear of

8 those attacks demoralised civilians living in BiH-controlled territory.

9 It exhausted them. It deprived them of hope.

10 The victims actually tried to put words to it, and much weight

11 comes to us from how they tried to articulate the sense of fear.

12 Alma Cehajic Mulaosmanovic said that the suspense of whether you were

13 going to be shot or not prevailed throughout the war and you will remember

14 Ms. Cehajic Mulaosmanovic wasn't an elderly woman. She was a young woman

15 whose testimony reflected that she had been affected by this pervasive

16 fear and it hadn't left her by the time she came before Your Honours.

17 W-35 said, "We were being shot at while going to get bread and

18 water." She, too, was clearly bearing the marks of that pervasive fear.

19 She talked of her perceptions of timing or pattern of attack. She said,

20 and I quote from page 824 and 825:

21 "Whenever there was a cease-fire or truce in Sarajevo, people

22 would venture out to see sunshine, the earth. Children would go into

23 parks and we who had families in other parts of town, we wanted to see our

24 relatives, and that's when we suffered the most."

25 For her a time of cease-fire or truce was a time where she might

Page 9470

1 have felt some measure of safety to venture outside of her house, but

2 look, that's exactly when they were victimised in her view the most.

3 International witnesses apart from Mr. Bell echoed and elaborated

4 on this from their perceptions. Mr. Brennskag said that he viewed the

5 attacks on the civilians in Sarajevo as pure terror without military

6 justification. General Sir Rupert Smith also elaborated on this saying he

7 had no doubt the attacks on the civilians in Sarajevo, the campaign was

8 essentially to terrorise, wear down the resolve of the defender, hold the

9 presence of Serb pressure evidently in the minds of people on a daily

10 basis and that was T3311.

11 And Smith said the strategy worked particularly on the ordinary

12 run of life within the city. So the fear pervaded in his view every

13 aspect of the ordinary running of life.

14 Mr. Bell, at 5264 of the transcript, said --

15 JUDGE ROBINSON: I have just a minute, please. Judge Mindua has a

16 question.

17 JUDGE MINDUA: [No interpretation].

18 [In English] No translation?

19 THE INTERPRETER: Yes, there is.

20 JUDGE MINDUA: [No interpretation]

21 THE INTERPRETER: We have interpretation now. It's all right.

22 JUDGE MINDUA: [Interpretation] I was saying -- will you please

23 excuse me, because it's just that I want to understand your definition of

24 terror, and that's why I interrupted you. Could you please tell me, is

25 terror a subjective feeling or an objective feeling? Is it the case that

Page 9471

1 terror is an element of every war that takes place within an urban

2 environment? What is your opinion? And I mean terror over civilians. Is

3 it an inseparable element of every war within a city, a town? Is it the

4 case that civilians are always in such circumstances terrorised?

5 MS. EDGERTON: Your indulgence for a moment.

6 I hope I -- I think I answer your question, Your Honour, and I

7 hope I can answer you satisfactorily.

8 Two things. In respect of the crime of terror, the actual

9 affliction of terror isn't a requisite element of the offence. I should

10 point that out. However, the Prosecution's position in this case is that

11 it did very much occur among the civilians of Sarajevo at the hands of the

12 SRK, and that has been established on the evidence beyond a reasonable

13 doubt. That's the first thing.

14 Second, as Mr. Waespi alluded to and I said at the beginning of my

15 presentation, this terror, what the people of Sarajevo suffered through,

16 is something very different from the fear that would normally accompany a

17 war which could, Your Honour, be, for example, a fear that one might be

18 struck by a stray bullet in a battle that was raging close by.

19 Your Honour, when the drafters -- when the drafters of these

20 provisions, I would submit, were crafting the wording for this offence,

21 they meant to capture something very different and something that you very

22 much find in Sarajevo, and that's why, Your Honours, they put the

23 requirement of specific intent in that offence. They meant to capture the

24 deliberate infliction of fear far and away apart from, completely not

25 linked from any military objective or any military advantage to either of

Page 9472

1 the opposing forces. And it's not just, as I said, the fear that comes

2 from being nearby the combat. This is a fear calculated to demoralise, to

3 disrupt, to take away any sense of security from a body of people who have

4 nothing, Your Honours, to do with the combat.

5 Has that answered to some measure your inquiry?

6 JUDGE MINDUA: [Interpretation] Yes. Thank you very much.

7 MS. EDGERTON: Just one further item of evidence with respect to

8 the purpose, the object of this campaign, its primary purpose being one of

9 the infliction of terror among the civilians of Sarajevo. Something which

10 struck me was the evidence, again, of Mr. Harland who recounted the words

11 of Bosnian Serb leader Radovan Karadzic talking about the Dobrinja-Butmir

12 tunnel, in fact, which we've heard a great deal of evidence about, but

13 Karadzic, Mr. Harland said, told him in respect to the tunnel, "You know,

14 we could destroy it, but we're going to let the Muslims breathe."

15 This for Mr. Harland was clearly strong evidence that confirmed to

16 he and UN civil affairs the intention of Serb forces to terrorise the

17 population of Sarajevo. Karadzic said, "We could destroy it." Harland

18 confirmed that in his assessment they could have cut off all the food and

19 water and actually forced the surrender of Sarajevo, but they chose not

20 to. And that's at page at 375 of the transcript.

21 And our submission, Your Honours, would be, in light of all you've

22 heard absent any significant SRK offensive against the urban BiH-held area

23 of Sarajevo during the indictment period, this is further evidence to

24 support the conclusion that the intention of the campaign against Sarajevo

25 was to terrorise its civilians. The shelling and sniping were meant to

Page 9473

1 cause terror and they did so.

2 My friends would have you believe, Your Honours, that the

3 conditions and the character and the intensity of the campaign under

4 Dragomir Milosevic's command eased somewhat from that of his predecessor

5 General Galic, and in fact they make that assertion in their brief. But

6 as Mr. Waespi pointed out under the tenure of the accused's command it

7 became worse. And you've received evidence that the situation in Sarajevo

8 came to resemble the earliest days of the war. Under the SRK and under

9 Dragomir Milosevic things grew desperate. By 1995, the whole population

10 of the city was exhausted and psychologically devastated. That comes from

11 Mr. Overgard at T617.

12 And if I may, Your Honours, I just need to ask that we go into

13 closed session on two further occasions during my presentation to refer to

14 the testimony of a protected witness.

15 JUDGE ROBINSON: Closed session.

16 THE REGISTRAR: Private session.

17 JUDGE ROBINSON: Private session, rather. Private session.

18 [Private session]

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 9474

1 (redacted)

2 (redacted)

3 [Open session]

4 THE REGISTRAR: Your Honours, we're back in open session.

5 MS. EDGERTON: Your Honours, it was in this context when people,

6 civilians of Sarajevo were at their weakest in terms of the fear, the

7 anxiety, the tensions that BiH-held Sarajevo was almost brought to, as we

8 say in our brief, its knees. As my colleagues have said it was under the

9 command of this accused that the SRK began to use weapons against the

10 civilians of Sarajevo that hadn't been used before. Why are guided

11 missiles, for example, which Mr. Harland understood should they be used in

12 a real war to be used against tanks, were fired on apartment blocks?

13 That's at transcript 452 to 453.

14 P620 is a film of one of those missiles hitting the Presidency.

15 It was in this context under the control and direction of Dragomir

16 Milosevic that the rocket-propelled air bombs were added to the arsenal of

17 instruments of terror and used against the city of Sarajevo. These were

18 the weapons what Martin Bell colloquially described by their very nature

19 as a weapon of mass destruction. "We might even call it a weapon of shock

20 and awe," he said. "It's so destructive that it is more than most

21 incapable of distinguishing between targets." And that's at 5262 of the

22 transcript. And other witnesses also commented on the psychological

23 impact for the people of Sarajevo to hear that these weapons existed.

24 Fraser, Brigadier General Fraser said, "They sent shudders through

25 everyone, including the UN." They -- and that, Your Honours is at pages

Page 9475

1 1825 to 1827 of the transcript.

2 I was struck actually by the testimony of Dr. Zecevic, who also

3 talked about the psychological, the intimidation impact of these weapons.

4 At 4904 he said:

5 "Can you imagine a person sitting in their apartment when a

6 projectile hits and just blows off the top three floors of a building or a

7 skyscraper? It's intimidating. Can you imagine that situation when the

8 skyscraper was hit? From the psychological points of view it was indeed a

9 formidable effect."

10 In all of this, under the control at the time of the -- sorry, at

11 the time, the SRK was under the control and direction of

12 Dragomir Milosevic land routes into the city, into Sarajevo, were closed

13 by Bosnian Serb forces. That was in March, as you've heard. In April the

14 airport was also closed by Bosnian Serb forces, and with this the

15 humanitarian airlift into the city which had been operational since 1992

16 ended for the rest of the war. Gas, water, and electricity were cut off.

17 The bakery ran out of flour.

18 In our submissions, Your Honours, this evidence that goes to show

19 the level to which conditions in BiH-held Sarajevo deteriorated under the

20 accused's command is some evidence that's very relevant to your

21 considerations of whether he held the specific intent to spread terror

22 among the civilian population. The Prosecution's submission is we've

23 established that.

24 Additional to everything I've said, the Prosecution has brought

25 articulate evidence that during the period of this indictment in

Page 9476

1 particular the terror campaign against the civilians of BiH-held Sarajevo

2 was politically motivated. The pattern of terror through the attacks and

3 humanitarian difficulty imposed on the civilians of Sarajevo was carefully

4 modulated to serve as a form of pressure by Bosnian Serb forces to, among

5 other things, extract concessions from the Bosnians at the negotiating

6 table, and in that regard I would point to the evidence of Mr. Harland and

7 Mr. Mohatarem by way of example; to stop attacks elsewhere in the

8 battlefield in Bosnia and Herzegovina, even to deter a NATO military

9 attack. In fact, Harland told the Tribunal that Serb leaders were

10 explicit when they told him they would use their military apparatus to

11 terrorise the population to get the political outcome they wanted. The

12 Prosecution exhibit 1, page 27004, Harland said, "This was a common theme

13 and they didn't even try to hide it from me." Pardon me, I cite to the

14 wrong page. That's P1, 26953.

15 The people of Sarajevo as we say in our brief, Your Honours, were

16 bargaining chips, subject to the pressure of this campaign of terror to

17 secure crudely some kind of concessions that would put the Bosnian Serb

18 forces to advantage, and the Prosecution submits this also supports

19 evidence or goes to the conclusion of the primary purpose of the campaign

20 being to apply terror.

21 If I could go -- ask -- if I could ask very briefly, Your Honours,

22 for the last time to go into private session.

23 JUDGE ROBINSON: Private session.

24 [Private session]

25 (redacted)

Page 9477

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 [Open session]

11 THE REGISTRAR: Your Honours, we're back in open session.

12 MS. EDGERTON: The accused indeed implemented those orders,

13 Your Honours, in the way he saw fit. And by the way, I should note that

14 W-46 is corroborated by Brigadier General Fraser at 1818 when he said,

15 "Within that little box called Sarajevo, General Milosevic was the guy in

16 command."

17 One of the ways as mentioned by my colleagues Dragomir Milosevic

18 implemented those orders, exercised his command, was that he personally

19 saw -- oversaw the deployment of air bombs against BiH-held Sarajevo, and

20 the evidence in support of this that you've heard I think three of my

21 colleagues refer to has actually come into these proceedings uncontested.

22 So in our submission, Your Honour, this is incontrovertible evidence of

23 his specific intent to cause terror among the civilian population of the

24 BiH-held Sarajevo.

25 The accused in our submission can't reasonably claim to be unaware

Page 9478

1 of the potential for human casualties as a result of the use of the air

2 bombs. Colonel Veljovic, their first Defence witness stated six SRK

3 soldiers were killed testing the weapon, and that's at page 5801. Yet, on

4 April 6, 1995, the accused issued the order my colleagues referred to as

5 P226 directing an air bomb be launched at specific targets in Sarajevo

6 where the greatest casualties and material damage would be inflicted, and

7 the order was carried out. Scheduled shelling 6.

8 Referring to a further incident mentioned by Mr. Sachdeva, the

9 shelling of the radio and TV building, I would direct Your Honours to P42,

10 which Mr. Sachdeva has dealt with in detail.

11 There's no evidence before this Trial Chamber, Your Honours, to

12 suggest that this letter, P42, represents anything other than a specific

13 acknowledgement of SRK responsibility on the parts of Dragomir Milosevic

14 for scheduled shelling 15, the air bomb attack on the TV building.

15 Authenticity of that document has never been put at issue. Further, and

16 again related to this incident, the SRK Ilidza Brigade liaison officer in

17 P629, whose words are recorded in P629, described to a FreBat liaison

18 officer the air bomb attack on the TV building, calling it psychological

19 warfare aimed at upsetting the Bosnian soldiers engaged on the Treskavica

20 front who would be worried about the safety of their families. And the

21 Serb captain said because one of the rockets hit the TV building the

22 journalists might have reported the incident and the BiH soldiers were

23 informed about the existence of these weapons, and I quote, called terror.

24 JUDGE ROBINSON: It has been suggested that the letter might have

25 reflected nothing more than the kind of boast that one gets in military

Page 9479

1 matters.

2 MS. EDGERTON: In that regard, Your Honours, I would direct you to

3 the testimony of - and I should choose my words carefully - W-156, who

4 gave specific comments about this document and the authenticity of the

5 document and the intention as he understood it from his own military

6 experience of the speaker when he articulated those words.

7 Further than that, Your Honours, would take the view that

8 Mr. Sachdeva has adequately dealt with that question. I would actually

9 suggest, Your Honour that, these documents emanating from the accused and

10 recording statements of his staff are conclusive expression of the

11 accused's specific intent to spread terror among the civilians of BiH-held

12 Sarajevo, and any doubt Your Honours might have with regard to P629 is

13 actually when looking in our trial brief, in our final brief, at the

14 section on air bombs and the number, the quantity of orders issued by the

15 accused and the quantity of air bombs dealt with in those orders that in

16 fact that doubt that you might have about P629 is unnecessary, and you

17 would find the document to be completely reliable.

18 Your Honours, our submission would be that the accused knew about

19 this campaign of terror against the civilians. He commanded it. He went,

20 in P42, as far as to condone it. He was fully aware that the actions of

21 his troops caused terror. And in that regard I would refer Your Honours

22 to the notice and knowledge section of our closing brief. And in

23 Dragomir Milosevic's command, he ensured the campaign continued.

24 We talked about the definition of terror, Your Honours, and I

25 opened with -- by pointing out that what happened to the civilians of

Page 9480

1 Sarajevo was more than and distinct from the terror that comes with war.

2 I would say, Your Honour, that that terror that they felt was the terror

3 that came from knowing and believing, based on years-long, relentless,

4 deliberate nature of the siege that they and their families and their

5 children might be the next victims.

6 And to close, Your Honours, just to remind you that no matter what

7 argument of chaos or expressions of hopes and wishes for peace you might

8 hear from my friends, to remind you of the testimony of Martin Bell who --

9 who also said that no matter what, it was the civilians inside the siege

10 lines who bore the burden of the campaign of terror. And as for the SRK

11 under the accused's command, I'd actually turn to Mr. Harland who

12 said, "The application of instruments of terror against the civilian

13 population, that was what the SRK basically did." And that's at page 325.

14 Your Honour, it's our submission that terror was

15 Dragomir Milosevic's primary purpose in laying the campaign of shelling

16 and sniping against the civilians of Sarajevo. You have overwhelming

17 evidence that this was actually his design. And I would close on that.

18 JUDGE ROBINSON: Thank you.

19 Mr. Waespi.

20 MR. WAESPI: Thank you, Mr. President. Actually I do have to ask

21 leave, because I think we probably have exhausted already two hours

22 allocated to us, but I still have a not-too-long section on the individual

23 criminal responsibility of the accused and sentencing, and I hope to be

24 done within 20 minutes.

25 JUDGE ROBINSON: Yes. Please go ahead.

Page 9481

1 MR. WAESPI: Thank you, Mr. President.

2 JUDGE ROBINSON: Mr. Tapuskovic, you may rest. You may begin

3 tomorrow.

4 MR. TAPUSKOVIC: [Interpretation] Yes, but then I will ask for as

5 much time, more, as the Prosecutor has taken.

6 JUDGE ROBINSON: Yes. We always ensure equality.

7 Yes, Mr. Waespi.

8 MR. WAESPI: Thank you, Mr. President.

9 Of course the accused, General Milosevic, a professional JNA

10 officer, was no stranger to the events that you heard about from my

11 colleagues that unfolded in Sarajevo before he became the SRK commander in

12 August 1994.

13 The accused was involved in the siege from the outset, was in

14 Sarajevo throughout the war in various important positions, most notably

15 as General Galic's deputy and Chief of Staff. For the key role of a chief

16 of staff, Your Honours, I would like to refer you to the testimony of

17 Colonel Demurenko, page 7724, and Veljovic, pages 5831. I would also like

18 to refer you to Prosecution Exhibit 738 in which the accused describes his

19 role in Grbavica in 1992.

20 The accused knew Sarajevo. He knew the front lines. He knew his

21 troops. He knew the enemy. He knew the fate of the civilians inside the

22 city. With this knowledge, Dragomir Milosevic became co-commander,

23 inherited the campaign from his predecessor, did nothing to stop it or

24 punish its perpetrators. In fact, he continued it for some 14 months.

25 General Milosevic could and should have distanced himself from the

Page 9482

1 previous commander. He could have said enough is enough. He could have

2 made a difference. He did the opposite, Your Honours. He continued

3 exactly along the same lines, introduced even a new dimension of terror.

4 As you heard from my colleagues, the modified air bombs.

5 The continuation of the campaign against the civilians of Sarajevo

6 was undoubtedly expected from the accused by his superiors in Pale when

7 they replaced General Galic. However, that does not remove anything from

8 this accused's criminal responsibility.

9 In this regard, Your Honours, let me add a comment about the

10 relationship between the accused and his superior General Mladic. Of

11 course the fact that the accused may have acted upon the orders of his

12 superiors in Pale is, under Article 7(4) of our Statute, not a defence,

13 although in theory it might give rise to mitigation. I will address

14 sentencing in a moment but let me say this: A general in any army is a

15 huge thing. It's the top of the tree. Generals have huge authority and

16 commensurate responsibility. I cannot stress that more. There were only

17 a handful of corps within the Bosnian Serb army and they were commanded by

18 selected generals. The accused was one of them.

19 Second, Your Honours, nobody is forced to become a general. There

20 are enough candidates who want the general's rank. Also, Your Honours,

21 look at the commanding, to use that word, personalities of the generals

22 you have -- who have testified before you as witnesses.

23 Third, we heard from a very senior UN official, and for that,

24 Mr. President, we need briefly to go into private session.

25 JUDGE ROBINSON: Private session.

Page 9483

1 [Private session]

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 [Open session]

12 THE REGISTRAR: Your Honours, we're back in open session.

13 MR. WAESPI: The fourth point about the relationship between

14 General Milosevic and General Mladic is this: There is an incident in

15 mid-1996 when the accused opposed General Mladic. Prosecution Exhibit 738

16 is a letter from the accused to General Mladic, and it carries the title

17 "Inability to carry out orders, explanation." The accused confirms this

18 letter that he has received on 16 May 1996 certain tasks from

19 General Mladic and continues: "Having analysed them, I have concluded

20 that I'm unable to carry them out." This shows that the accused could and

21 did oppose his superior if he wanted.

22 Fifth point, the accused certainly could and should not have

23 ordered the use of air bombs. He could have done that based on Defence

24 witness Veljovic, the first Defence witness's argument that the air bombs

25 were a dangerous weapon and endangered the SRK troops, not the civilians,

Page 9484

1 the SRK troops, an argument, I suggest that Mladic [Realtime transcript

2 read in error "Mazowiecki"] should have been open to.

3 Number six, the accused also could and should have investigated

4 and punished just one SRK soldier for an attack on civilians.

5 Seventh point --

6 JUDGE HARHOFF: Mr. Waespi, there is some uncertainty about what

7 is reflected in the transcript. You refer to Mr. Mazowiecki.

8 MR. WAESPI: Yes, that's an suggestion that General Mladic should

9 have been open to, meaning the argument that air bombs should not be used

10 because they would put SRK soldiers into a danger. General Mladic.

11 JUDGE HARHOFF: We thought so. Thanks.

12 MR. WAESPI: Thank you for your observation.

13 Seventh point. The accused could have resigned. I'm sure Mladic

14 would have found a new commander in no time.

15 Eighth point. There is absolutely nothing on the record,

16 Mr. President, Your Honours, nor argued by the Defence, nor put to

17 relevant Prosecution witnesses during cross-examination that there was any

18 disagreement between Mladic and Milosevic as to how the campaign in

19 Sarajevo should be fought or that the accused disagreed with the orders he

20 received from the Main Staff.

21 And the eighth point, an order to target civilians is patently

22 illegal, see also P18 to which I will turn in a moment, and the accused

23 have no duty whatsoever to obey such an order. In fact, he had, based on

24 his own training in the military schools, and of course, based on the

25 Geneva Conventions, no duty to implement that order. If the accused

Page 9485

1 obeyed such an order, it is because he wanted it, as is demonstrated by

2 his own orders targeting civilian areas, for instance, P226.

3 Your Honours, it's the Prosecution's submission that

4 General Milosevic had in theory and in practice all possibilities to make

5 a difference to stop the senseless killing of civilians in Sarajevo.

6 Your Honours, let me remind you of one of the key documents of the

7 Prosecution's case, P18. I'm sure you remember it. Several witnesses

8 testified about that. It's a personal letter. If it perhaps could be

9 brought to the screen by e-court. P18. It's a personal letter of the

10 acting UNPROFOR Sector Sarajevo Commander Robert Meille to the accused on

11 the 30th June 1995. The letter addresses all the main issues related to

12 individual criminal responsibility in this case.

13 That's not the letter I was referring to. It's P, Prosecution

14 Exhibit 18.

15 The first issue, Your Honours and I'm sure you will remember this

16 document. It's one page in English and B/C/S in original. It's notice to

17 the accused of attacks on civilians.

18 The second issue is the letter demonstrates the fact that repeated

19 attacks on civilians in Sarajevo occurred. The third, it mentions the use

20 and destructive potential of modified air bombs. Fourth, it reminds the

21 accused of his obligations under Geneva Conventions. Fifth, it addresses

22 the fact that the gunners were under the command and control of the

23 accused. Sixth, it states that it was the accused who ordered the

24 shelling. Seventh, it demands that the accused stop the bombardment. And

25 finally eight, it even raises the possibility of an international court.

Page 9486

1 There is not the slightest doubt, Mr. President, Your Honours,

2 that the accused as the commander of the troops that lay siege on Sarajevo

3 have effective command and control over these troops.

4 Just one piece of evidence, Defence Exhibit D186, which is one of

5 the first orders of the new SRK commander for full combat readiness to

6 literally everybody around Sarajevo in August 1995.

7 The fact that the accused had effective command and control is

8 supported by every witness, international, local, the documents including

9 also Defence witnesses and we have cited references in our closing brief.

10 Ms. Edgerton already mentioned General Fraser's comment: "In the

11 little box called Sarajevo, General Milosevic was the guy in command."

12 It's also noteworthy, Ms. Edgerton mentioned it as well that,

13 Defence did not dispute this fact. Of note, there is no mentioning in the

14 entire trial record of any rogue elements, any snipers, uncontrolled

15 gunners who might have fired into the city.

16 Your Honours, an excellent way to see how the accused exercised

17 command and control over his corps in Sarajevo, and indeed, how the SRK

18 was organised and how it worked is to look at their own records. You will

19 recall that OTP investigator Barry Hogan introduced to you almost a

20 hundred SRK and VRS documents. It's P639, a spreadsheet outlining the

21 relevancy of each of these documents. These SRK documents, I suggest,

22 show a disciplined professional army in action. Let me just mention a few

23 examples, aspects.

24 Control over ammunition: P702 mentions that the commander, the

25 accused Dragomir Milosevic, wants information on daily consumption of all

Page 9487

1 types of ammunition and stating that unit commanders are personally

2 responsible to General Milosevic for the implementation of the order.

3 P666 is a very important document as it relates to sniping. Here

4 Colonel Lugonja in August 1995, the SRK's assistant commander for security

5 and intelligence states that sniping can only be stopped by orders from

6 inside the corps.

7 P663 talks about that key assets, inclusive air bombs and

8 machine-guns are to be used throughout the SRK zone of responsibility as

9 required and decided by the SRK commander. That's 15th June 1995, two

10 weeks before the accused received the letter P18.

11 We have mentioned other elements of command and control, the

12 functioning of the SRK in our brief. I remind you of the excellent

13 intelligence the SRK and ABiH had. You remember Witness Veljovic who

14 testified about that, that they knew virtually anything that was happening

15 inside the confrontation lines. See his evidence at 5850 to 51. Also,

16 Mrkovic, another Defence witness at 8145, 46, and 8115. Look also at

17 P698, 700, and 709. These are intelligence reports signed by

18 Marko Lugonja, chief of intelligence and security of the SRK, showing how

19 well-informed, again, the SRK was about the military targets, proper

20 military targets inside the city of Sarajevo. These targets they could

21 have, should have engaged and not the civilians.

22 Finally, there was excellent work within the SRK staff. We heard

23 had testimony from John Jordan, Colonel Dragicevic, Rupert Smith, again

24 Mr. Veljovic at pages 5829 and 5841.

25 And the last point under this section there were professional

Page 9488

1 former JNA officers in the SRK. Mrkovic again at 8203 and 8209.

2 Your Honours, let me go back to the specific role of the commander

3 we heard from Defence witnesses the huge respect he had among them. This

4 is a very important element for you to consider. There was strict

5 discipline within the SRK, certainly as tight as under his predecessor

6 General Galic.

7 As an example, I refer you to the testimony of Veljovic again who

8 said that on page 5837 the accused was "a real soldier, always in the

9 front line, highly respected by the officers and soldiers alike."

10 His orders were respected. He could order anything and he would

11 have been obeyed.

12 Your Honours, based on all you have heard today and what I just

13 said all the elements of command and control, it's the Prosecution's case

14 as we point out also in our brief on page 124, paragraph 454, that the

15 overwhelming circumstances in this case lead to the conclusion that

16 illegal acts on the civilians were ordered. Over 15 months in the context

17 of an almost total siege of the city of Sarajevo a campaign of terror was

18 conducted by a single but professionally organised and disciplined

19 military corps under the command of General Milosevic, the accused.

20 This campaign consistently and continuously targeted civilians

21 directly and indiscriminately. The crimes were committed in a strikingly

22 similar manner with hundreds of civilians killed and wounded. The

23 attacks, you heard from Ms. Edgerton, increased or decreased in a

24 calculated manner, often consistent with the political objectives of the

25 Republika Srpska and the VRS at the time. These attacks were carried out

Page 9489

1 by the SRK operating within a single operating chain of command

2 functioning with military discipline. The SRK was under effective control

3 of General Milosevic, who not only ordered indiscriminate weapons such as

4 air bombs but failed to bring to halt to this campaign during the whole

5 period he was the commander. This is despite the fact that he received

6 protests and complaints. The only logical inference, Prosecution

7 suggests, is that General Milosevic ordered the campaign of shelling and

8 sniping of civilians with the primary purpose of terrorising.

9 Let me very briefly address failure to punish. I will not go into

10 this, as we call it, 7(3) evidence. We have discussed it in our brief and

11 the record is very clear.

12 The accused knew of the crimes and had all the necessary means at

13 his disposal to sanction the behaviour of his subordinates.

14 Colonel Dragicevic, and again, Veljovic at pages 5825, 5839 and 40, and

15 also D - Defence Exhibit - 185 addressed all the means available to the

16 accused, including the military police. P699 is a very concrete example

17 of the exercise of authority of the accused to sanction a soldier to a

18 prison sentence.

19 In conclusion, there is ample evidence that as it relates to the

20 crimes committed by SRK members against the civilian population of

21 Sarajevo there were no investigations, let alone prosecutions, even though

22 many other crimes such as threats, dereliction of documents or other kind

23 of domestic violent crimes were investigated during this time period were

24 effectively prosecuted.

25 Let me finish, Mr. President, Your Honours, with sentencing.

Page 9490

1 Article 24 of the Statute and Rule 101 and the developed ICTY

2 jurisprudence, in particular Galic appeal judgement at paragraphs 391 to

3 456, provide the necessary guidance as to the factors involved.

4 Of course, when assessing the gravity of the offence a

5 Trial Chamber must take into account the inherent gravity of the crime,

6 criminal conduct of the accused, the determination of which requires a

7 consideration of the particular circumstances of the case and the crimes

8 for which the accused was convicted, as well as form and degree of

9 participation of the accused in those crimes.

10 Let me very briefly address these factors.

11 Inherent gravity of the crimes. The magnitude of the accused's

12 crimes is enormous. If found guilty of count 1 of the indictment the

13 accused will be held accountable for one of the most severe crimes that is

14 or will ever be before this Tribunal, the crime of terror. In this case,

15 the terrorisation of the population of Sarajevo.

16 In addition, by participating in this terrorisation of the

17 civilian population of Sarajevo, Milosevic is further guilty of crimes

18 against humanity and violation of the laws or customs of war on a very

19 large scale.

20 The gravity of the offences committed by General Milosevic is

21 established by their scale, pattern, and virtually continuous commission

22 over many months. Hundreds of thousands inhabitants of Sarajevo, men,

23 women, children and elderly persons, as you heard so graphically from my

24 colleague Ms. Edgerton, were terrorised. Hundreds of civilians were

25 killed, thousands wounded.

Page 9491

1 You have already heard of the pattern of victimisation both in

2 terms of scale and choice of victims. The particular cruelty of the

3 crimes is shown by the fact that these acts were perpetrated against

4 civilians in the perceived safety of their homes, at hospitals, schools,

5 marketplaces and while commuting to the city or fetching water.

6 General Milosevic is charged with a campaign of attacks against

7 the civilian population of Sarajevo, which you heard it he inherited from

8 General Galic. For the portion of the very same campaign carried out

9 between September 1992, and August 1994, Your Honours, during which period

10 General Milosevic was, of course, for over a year Chief of Staff to

11 General Galic, General Galic was sentenced to a sentence of life

12 imprisonment.

13 Both the crimes charged in the indictment against this accused,

14 General Milosevic, and his seniority and position within the SRK as

15 commander make the case substantially similar to that against

16 General Galic and so should be the applicable sentence. The accused's

17 tenure as co-commander is shorter than of General Galic. However, what

18 makes General Milosevic's responsibility even higher than that of

19 General Galic is that unlike the former, General Milosevic personally

20 oversaw and ordered for the first time during the siege in Sarajevo the

21 deployment of modified air bombs, inherently inaccurate weapons with no

22 legitimate military value even, and you heard it twice, the SRK refused to

23 use these air bombs because they thought they were dangerous. Not for

24 civilians, for their own soldiers.

25 Form and degree of participation of the accused in those crimes,

Page 9492

1 another factor. General Milosevic ordered the campaign of terror against

2 the civilian population of Sarajevo as held by the Appeals Chamber in

3 Semanza, I quote, "A higher sentence is likely to be imposed on a

4 principal perpetrator vis-a-vis an accomplice, in that case of genocide,

5 and on one who orders rather than merely aids and abets extermination."

6 See also the Celebici Appeals Chamber who found that proof of active

7 participation by a superior adds to the gravity of the superior's failure

8 to prevent and punish and may therefore aggravate the sentence.

9 Also, you heard it couple of times today, these were not crimes

10 committed in the heat of a battle, Your Honours, or with little time to

11 reflect on their consequences. Rather, these were continuing crimes in

12 which the accused's mental and physical participation to their commission

13 was renewed on a daily basis.

14 Aggravating factors. An aggravating factor can be taken into

15 account is the physical and psychological suffering inflicted on the

16 victims. The actual infliction of terror, as you heard, is not a

17 constitutive element of the crime of terror against a civilian population

18 under Article 3 of the Statute as held by the Galic Trial Chamber. In

19 this case; however, terror was actually inflicted on the civilians of

20 Sarajevo, and such factor can be considered in aggravation of sentence. A

21 second aggravating factor, Your Honours, is the accused's position of

22 authority. General Milosevic was an experienced military officer who was

23 50 years of age at the time of his appointment as commander of the SRK.

24 He had held various positions of authority throughout the conflict and was

25 very familiar with the conflict in Sarajevo.

Page 9493

1 General Milosevic was well aware of the extent of his obligations

2 laid out in the military codes of the former JNA and then of the VRS.

3 General Milosevic had a duty to uphold the laws or customs of war. The

4 crimes that were committed by his troops would not have been committed

5 without his assent. Despite being a professional soldier and career

6 officer, General Milosevic not only made little effort to distinguish

7 civilian from military objectives but willingly oversaw the targeting of

8 civilians in Sarajevo. In his position of SRK corps commander,

9 General Milosevic repeatedly breached his public duty from this very

10 senior position, thereby abusing his position of authority. The accused's

11 abuse of authority is a factor that aggravates his crime. In particular,

12 rather than using his senior position as a professional officer to ensure

13 that any military action was carried out lawfully, he gave orders to do

14 the opposite. There are no circumstances that mitigate the culpability of

15 the accused.

16 In light of the above, Your Honours, only the imposition of a

17 sentence of life imprisonment will adequately reflect the criminal

18 liability of the accused.

19 Thank you, Mr. President, Your Honours.

20 JUDGE ROBINSON: Thank you. I'll just give three decisions. The

21 first relates to a motion filed on the 29th of September in which the

22 Defence requested the removal from the record of Exhibit P546. The

23 Prosecution notified the Trial Chamber that it has no objection to this.

24 The Trial Chamber agrees with the parties that this document should not

25 have been given an exhibit number and the request is therefore granted.

Page 9494

1 The second motion is filed on the 8th of October. In that motion

2 the Defence requests the admission of a document disclosed to it under

3 Rule 68 on the 27th of September. The Prosecutor notified the Trial

4 Chamber that it has no objection to the admission of the document. It

5 also notes that the document pertains to meetings of UN personnel on the

6 conduct of the Bosnian Serb and the Bosnian Muslims. The document is

7 relevant and probative and it is admitted.

8 The last is a motion filed on the 8th of October in which the

9 Defence requests the admission of three statements pursuant to Rule 92

10 bis. The Trial Chamber has already decided on the admission of those

11 statements. It did so on the 25th of July, 2007, holding that the

12 statements were admitted upon fulfilment of the certification procedure

13 set out in Rule 92 bis(B). This certification has now been fulfilled.

14 The statements have thus already been admitted and the motion is therefore

15 moot.

16 We will adjourn until tomorrow at 2.15 p.m.

17 --- Whereupon the hearing adjourned at 6.04 p.m.,

18 to be reconvened on Wednesday, the 10th day

19 of October, 2007, at 2.15 p.m.