Tribunal Criminal Tribunal for the Former Yugoslavia

Page 21669

1 Tuesday, 6 May 2003

2 [Prosecution Closing Statement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.04 a.m.

6 JUDGE ORIE: Madam Registrar, would you please call the case.

7 THE REGISTRAR: Case Number IT-98-29-T, the Prosecutor versus

8 Stanislav Galic.

9 JUDGE ORIE: Thank you, Madam Registrar. I welcome you this

10 Tuesday morning after a long break to everyone in the courtroom and those

11 just outside the courtroom who are assisting us.

12 Today has been scheduled as the first day for the closing

13 argument. At least, I take it that the parties want to use the right to

14 present closing argument, as the rule says, the Prosecution may present

15 the closing argument. I take it, Mr. Ierace, that the Prosecution wants

16 to present a closing argument.

17 MR. IERACE: Good morning, Mr. President. Yes, the Prosecution

18 does exercise that right.

19 JUDGE ORIE: I take it the Defence will also use its right to

20 present its closing argument. I'd like to add one thing to that, that is,

21 that the Rules of Procedure and Evidence do not provide specifically for

22 what is known in the civil-law world as the last word, that means a

23 statement by an accused speaking last at trial. Nevertheless, the Chamber

24 is aware that in some cases, Chambers have been -- have granted the

25 accused an opportunity to speak. If an application would be made to this

Page 21670

1 extent, then the Chamber of course would first hear the Prosecution on

2 whether they would oppose against the accused speaking last. But the

3 Chamber indicates that it does not take an unfavourable attitude if such

4 an application would be made.

5 Then the scheduling of the closing arguments is such that the

6 Chamber expects the Prosecution to close its arguments by today because we

7 have approximately four hours effective time in Court. I might make a

8 mistake, five hours, so that would bring us just a bit into tomorrow.

9 Mr. Ierace, if you're ready to proceed, you may do so.

10 MR. IERACE: I am. Thank you, Mr. President.

11 Mr. President, this accused stands charged with extraordinary

12 crimes, which ultimately come down to this: That for 23 months, from

13 September 1992, he ordered the deliberate targeting of the civilian

14 inhabitants of a European city with the intention of terrorising its

15 entire civilian population. In order to force its legitimate,

16 internationally recognised government to capitulate.

17 In so doing, not that it matters for the proof of the charges

18 against him, the accused was in turn acting upon the orders of his

19 immediate superior, General Ratko Mladic, and the Bosnian Serb political

20 leadership. The indictment alleged a pattern of such conduct over that

21 period, the indictment period, that can be characterised as a campaign.

22 During the indictment period, within the Bosnian government lines, there

23 lived 340.000 civilians. Many had escaped the city, but there had been a

24 flow into it as well of refugees escaping the horrors in other parts of

25 the former Yugoslavia. We heard statistical evidence that during the

Page 21671

1 indictment period, those 23 months, some 1.185 civilians within the

2 Bosnian government lines in Sarajevo were killed. And 4.701 civilians

3 were wounded. The total of 5.886. The Prosecution submits that having

4 regard to the totality of the evidence, a bare minimum of a thousand of

5 those total civilian casualties can be accepted by the Trial Chamber as

6 directly attributable to the accused's criminal behaviour as encapsulated

7 in the charges against him.

8 But all of those 340.000 civilians were victims of the first count

9 in the indictment; namely, the infliction of terror for 23 months. The

10 indictment makes clear that the scale of the complain was so great that

11 the schedules of woundings and killings by sniping and shelling which are

12 annexed to it are only a small representative number of the killings and

13 woundings involved.

14 The evidence of the pattern and the scale of the campaign emerged

15 through the testimony of surviving victims and other eyewitnesses. It was

16 confirmed by the testimony of experienced and qualified UN military

17 observers who, at the time, detected behind the daily individual incidents

18 the pattern and gave evidence of their conclusion and the observations

19 which led to that inevitable conclusion.

20 The Prosecution has, we submit, established a circumstantial case

21 against the accused beyond reasonable doubt in relation to each of the

22 charges against him. Our written submissions in some detail examine that

23 circumstantial evidence that civilians were deliberately targeted and that

24 the accused exercised command and control over his infantry and artillery

25 assets that perpetrated the campaign on his behalf, indeed, on his

Page 21672

1 orders. The inevitable conclusion is that the targeting could not have

2 happened for so long and in a fashion which was observed to be responsive

3 to his actions unless he had ordered it in the first place. That command

4 and control was demonstrated in various ways, as articulated in our

5 written submissions. The targeting would quickly stop whenever the

6 accused or his senior subordinates agreed to cease-fire, or it would

7 intensify to bring pressure to bear on the Bosnian government for a

8 variety of reasons.

9 We heard evidence of how on many occasions, the city would receive

10 indiscriminate onslaughts in order to force the Bosnian government to stop

11 an advance on the battlefield elsewhere in Bosnia. The UN senior military

12 observer for the first three months of the accused's command,

13 Lieutenant-Colonel Richard Mole said, "There was an accepted norm, that

14 is, the Serb side failed to achieve their objectives and I use that in the

15 widest context, so that could be anything, from a local complaint to

16 something else that happened within Bosnia, the general perception was

17 that Sarajevo would suffer as a result. This was always interpreted to

18 mean that artillery fire would be brought to bear on the city in response.

19 There were instances when this was quite specifically made as a threat."

20 It reached the point that Lieutenant-Colonel Mole's morning

21 briefing about events elsewhere in Bosnia alerted him to the possibility

22 of repercussions within the Sarajevo sector. In such instances, he would

23 speak with the accused with the objective of trying to prevent

24 repercussions in Sarajevo in response to these outside events. Indeed,

25 the primary evidence against the accused, though, is surely that of

Page 21673

1 admissions made by him, direct evidence of his guilt. Evidence that he

2 admitted he was indiscriminate firing into the city. He admitted it. His

3 operational staff admitted it. His boss from whom he obtained his orders,

4 General Mladic, admitted it. Mladic's staff admitted it. The accused's

5 soldiers on the front line operating the very anti-aircraft guns,

6 artillery, machine-guns, admitted it. Independent UN military observers

7 witnessed SRK, Sarajevo-Romanija Corps, crews indiscriminately firing into

8 the city and admitting it, and they protested to the accused about it and

9 related to the Chamber how he sought to justify it.

10 If the Prosecution case consisted of just this evidence of

11 admissions, then together with evidence that civilians were indeed

12 targeted by his subordinates, it is an overwhelming, unanswerable case

13 against the accused. As well as evidence of admissions by the accused,

14 there was evidence of threats made by him and carried out. Threats to

15 target civilians either directly or indiscriminately. Lieutenant-Colonel

16 Mole said that he would be quite specifically told that Sarajevo would be

17 shelled if the demands made on behalf of the Serb side were not met. He

18 said that this type of threat was made by the accused five to ten times.

19 He said he also received this type of threat from the accused's liaison

20 officers. Accordingly, he said, "the city of Sarajevo which was to all

21 intents and purposes in a hostage situation would be used as a counter

22 pressure point for the events elsewhere in Sarajevo or Bosnia." As an

23 example, he related a conversation in which the accused threatened to him

24 that if the ABiH, the army of the Bosnian government, did not cease firing

25 from Mount Igman there would be reciprocal firing by his weapons on to the

Page 21674

1 city of Sarajevo.

2 This evidence of admissions and threats by the accused demands a

3 response. But where in the Defence's 270 pages of final written

4 submissions does it deal with this evidence? With the exception of a few

5 oblique sentences, it does not. Why? I suggest because that evidence is

6 so persuasive, so determinative, so corroborated that there is no answer

7 to it. It happened, the words were said, and the accused through his

8 Defence has been unable to credibly explain it away. The accused chose to

9 not enter the witness box and be cross-examined about this evidence.

10 Instead, it was left to his former liaison officer, Colonel Indic, to deny

11 some of those admissions, those which were made in his presence. But

12 Colonel Indic was hardly in the best position to deny admissions made by

13 the accused when he himself, according to the commander of the UN military

14 observers on the SRK side of the confrontation lines, had confided in him

15 hundreds of times that the targeting of civilians was part of the SRK

16 plan.

17 Mr. President, at this stage, one applies all the evidence, and in

18 so doing, the evidence in relation to one part can be eliminating, indeed,

19 corroborative, or complementary to another part of the Prosecution case.

20 For example, the evidence of deliberate targeting of civilians with the

21 use of professional sniper techniques and ordinary infantry weapons can be

22 applied to the determination of what specifically was being targeted by

23 the mortar and artillery assets of the SRK. Put simply, if the Trial

24 Chamber is satisfied that civilians were being deliberately shot and that

25 the shooters came under the same command as the mortar, anti-aircraft, and

Page 21675

1 other artillery assets, that targeting evidence can be applied to the use

2 of all assets.

3 The Prosecution led evidence that there was a high level of

4 coordination in the Sarajevo-Romanija Corps which was, in turn, evidence

5 of a high level of command and control by the SRK leadership, namely, the

6 accused. In its written submissions, the Defence has not challenged the

7 evidence to the effect that there was a high degree of coordination within

8 the SRK at the level of its artillery and infantry assets and between

9 those levels and the SRK command. Indeed, it is the Defence case as I

10 perceive it as well that there was a high level of command and control by

11 the accused. The difference is that whereas the Prosecution says that in

12 conjunction with the evidence that the 23 months civilians were targeted

13 by his forces, his strong command and control is evidence that he knew of

14 this behaviour, sanctioned it, and indeed ordered it. The Defence says

15 that his strong command and control is evidence that his orders that

16 civilians were not to be targeted were carried out.

17 We have heard in the trial evidence that the Sarajevo-Romanija

18 Corps controlled significant high points, high elevations, adjacent to the

19 city centre. The sprawling slopes of Mount Trebevic to the South East,

20 Sharpstone, Mrkovici, and Poljane to the northeast. But beyond those

21 features, the SRK controlled the territory. Even to the north where the

22 SRK did not control some of the immediate high ground over the city, such

23 the hill Hum, they held such a depth of territory beyond it that they

24 could bring their artillery to bear on the city from right around

25 Sarajevo. The investigator Mr. Kucanin gave detail of sources of

Page 21676

1 artillery and mortar as well as sniping fire around Sarajevo, right around

2 Sarajevo.

3 Mr. President, if all works well on our screens shortly, we should

4 see a map. This is a map tendered by the Defence through, as I recollect,

5 Dr. Radinovic, the military expert. The map demonstrates the degree to

6 which Sarajevo was surrounded. It also demonstrates the depth of

7 territory held by the SRK around the city. Given the range of the

8 hundreds, if not thousands, of artillery pieces possessed by the SRK, it

9 cannot be disputed that they were in a dominating position around the

10 city. Sarajevo is seen towards the centre of the map; SRK territory to

11 the right half of the map; ABiH territory to the left. From the

12 perspective of the ABiH, the only way in or out of the city as

13 demonstrated by the map was across the airport. It was hotly contested

14 territory for that very good reason.

15 Intermingled with the military who traversed the airport were

16 civilians, either departing the city or returning to it. As a

17 consequence, we have heard there were daily civilian casualties. UN

18 military observer Tucker said, "another aspect of the civilians trying to

19 run across the airport was that the Bosnian Serbs had set up snipers with

20 night sights and machine guns with night sights, and they had fired at the

21 civilians trying to run across the airport. And in January and February

22 every night between 5 and 20 or 30 civilians were killed or injured by

23 these snipers. And the Serb snipers were not particularly careful at what

24 they sniped at, and they also killed and injured a number of the French

25 soldiers who were trying to round up the escaping civilians to return

Page 21677

1 them."

2 The reference to January and February is 1993. The evidence was

3 that that pattern continued for much of the indictment period. General

4 Abdel Razek, senior UNPROFOR commander, protested to the accused about

5 civilians being shot by his forces as they crossed this airfield. He said

6 this issue was a source of friction and tension, and people, because of

7 their difficulties, they used to take a great deal of risk in order to go

8 and see their families, to be reunited with their family members. So a

9 great deal of casualties did occur. And every day, we received reports

10 telling us that a lady was killed with her child while she was trying to

11 cross. Many casualties took place. There were exchanges of fire, but he

12 said: "However, from the Serb side, it was more intensive. I do recall

13 quite clearly that I put this matter to General Galic in one of our

14 meetings." The accused, he said, was adamant on the fact that he will

15 continue to stop this movement, crossing the airfield, by all means, using

16 all means.

17 As mentioned earlier, the Defence called Colonel Indic who said:

18 "As far as I know, General Galic never met with the Egyptian battalion

19 commander. He was the only battalion commander that he didn't meet with

20 because he never requested such a meeting." That had not been put to

21 General Abdel Razek by the Defence when he gave his evidence.

22 Mr. President, the next image that will appear on the screen is

23 another map that was tendered through Dr. Radinovic. The Defence has not

24 clearly articulated the use that it thinks the Trial Chamber should make

25 of this map beyond stating that it demonstrates the potential for

Page 21678

1 collateral damage and the difficulty posed to the accused in protecting

2 the civilian population on the Bosnian government side of the

3 confrontation lines. That's in their written submissions at paragraph

4 793. I make these observations about the map: It transpires that there

5 are 225 targets marked on it. 70 of those, or 30 per cent approximately,

6 are in the Stup, Halilovici, Alipasin Most area, which appears as a large

7 clump on the left-hand side or the west of the city. Indeed, one might

8 think looking at it broadly speaking, there are two major clumps. The

9 bigger of those to is the one to the left, being to the west. But that of

10 course is what you would expect given that it is not the main residential

11 part of the city. None of the scheduled sniping or shelling incidents

12 occurred in that part of the city.

13 You may recall, Mr. President and Your Honours, seeing a

14 photograph taken from the site of sniping incident 16 and 17, looking

15 southwest across the western plains of the city, the railway yards, an

16 industrial area predominantly. So there is nothing irresponsible about

17 that aspect of the pattern. The second largest grouping is in the centre

18 of the city where we have, we heard, the Marsal Tito barracks, a military

19 barracks. But more importantly, it is also the area where the

20 Sarajevo-Romanija Corps under the command of the accused made its final

21 attempt to divide the city. We heard that occurred in October 1992,

22 Milada Halili who lived in the square told us in that month there was an

23 attack by the SRK sources. Mr. Tucker also told us that that was the last

24 attempt by the SRK to militarily resolve the armed conflict.

25 It therefore makes perfect sense that there would be of necessity

Page 21679

1 some defence assets in that critical area. It happens to be, as we have

2 heard, immediately to the left of it and to the right of it, two areas of

3 intense civilian residences. A further point I make is that on closer

4 examination of the documents which are set -- which are said by the

5 Defence to found this map, many of the references indicate that the

6 positions existed only in the pre-indictment period. They have no

7 reference to existing in the indictment period. Examination will also

8 reveal that many of the numbers are duplicates. In other words, there is

9 more than one number referring to the same object or position.

10 The next image on the screen will demonstrate most

11 of those entries which are either pre-indictment or duplicated. They are

12 now indicated in white. That has been added by the Prosecution. It is

13 not complete. They are not all of the duplications and pre-indictment

14 positions, but they are many of them.

15 A third point --

16 MR. PILETTA-ZANIN: [Interpretation] Mr. President.


18 MR. PILETTA-ZANIN: [Interpretation] I have the impression that

19 this map which was examined by the Prosecution wasn't submitted during the

20 investigations, and we don't think that this is an appropriate step to

21 take. Thank you.

22 JUDGE ORIE: The map has not been presented during the

23 investigations. I do not...

24 [Trial Chamber confers]

25 JUDGE ORIE: Would you please respond, Mr. Ierace. The next map

Page 21680

1 the Defence feels has not been shown before.

2 MR. IERACE: No, Mr. President. It is not obviously the intention

3 of the Prosecution to tender it. This is a visual way of economically

4 making a point through submissions. The parties and the Trial Chamber

5 itself can examine at its leisure the documents, those which can be

6 identified at least, as the basis for the map. And on so doing, I

7 anticipate the Trial Chamber will discover the point that I have made.

8 Mr. President, I infer from what my learned colleague has said

9 that he contends that there is something inappropriate about the use of

10 such a visual aid. And that I would respectfully dispute, that this is a

11 proper mechanism to make the point.

12 [Trial Chamber confers]

13 JUDGE ORIE: If the use of the map is limited to visually

14 assisting the Chamber in what you are presenting to the Chamber as your

15 argument, you're allowed to do so. Please proceed.

16 MR. IERACE: That is the case, Mr. President. Excuse me for a

17 moment.

18 Thank you, Mr. President.

19 Mr. President, again on this map, we see the airport, the runway

20 about which I have made some comments. Over the next short while, I will

21 make some observations in relation to the evidence moving in an

22 anti-clockwise direction around the city. Moving firstly to Dobrinja,

23 then to the areas adjacent -- immediately adjacent to Nedzarici, then to

24 Alipasino Polje. And in that same fashion, move eastwards along the

25 southern half of the city area, then around to the northeast, into Kobila

Page 21681

1 Glava, and then to of course to Rajlovac. In so doing, I do not intend to

2 repeat what is in the oral submissions, but instead to draw together

3 different aspects of the evidence. That will come increasingly evident

4 when we come to the area of Grbavci.

5 Mr. President, we will now go to the next image, which is a detail

6 of the map of Dr. Radinovic of the area of Dobrinja, and one sees on that

7 detail one of the white circles marked by the Prosecution being number

8 82. So this is a map offered by the Defence identifying military targets

9 within Dobrinja. Mr. President, perhaps I should at this stage make this

10 point as well. We have heard reference in questions put by the Defence to

11 various witnesses to the notion of legitimate military targets, witnesses

12 have been asked whether various buildings, various facilities were

13 legitimate military targets. I don't know that that term has any

14 generally understood currency in international humanitarian law, but if it

15 is to be used, it seems to the Prosecution that one must distinguish

16 between a military target and a legitimate military target. To give a

17 simple example, a sniper operating in a field is a military target. A

18 sniper operating on a hospital ward is a military target. The distinction

19 between them is that the sniper in the hospital ward in particular,

20 depending on the proposed method of neutralising that sniper, may well not

21 be a legitimate military target.

22 So on this map, we see what is offered as military targets. The

23 first observation I make is that you will note that there are three

24 circles with number 47. And again, to illustrate the incompleteness of

25 the use of white on the circles, none of these have been marked white.

Page 21682

1 The document which purports to found the reference to 47 refers -- is a

2 directive in relation to the 5th Motorised Brigade of the ABiH, a

3 directive in relation to general lines of defence. In other words, to be

4 more accurately positioned, number 47 should have been at the

5 confrontation lines, not in the centre of Dobrinja or away from the

6 confrontation lines. It will soon become apparent that the middle circle

7 with 47 is in the vicinity -- has been placed in the vicinity of sniper

8 incident number 18. But on the basis of the document, it shouldn't be

9 there. It should be either to the left or to the right on the front

10 lines.

11 Number 99, according to the documents tendered, refers to a

12 particular document which the Prosecution is unable to locate. It refers

13 to an order made on the 15th. The order is described as 15/93. We have

14 seen order 14/93, but not 15/93. But in any event, it appears that it is

15 not an SRK document -- I'm sorry. In any event, it is not an ABiH

16 document, it is an SRK document. And therefore, one might think is based

17 ultimately on SRK intelligence. We are therefore left with this dilemma:

18 What does do with the reference to 99 where there is no document; and even

19 if there was, it seems it's an SRK intelligence document? What is the

20 basis of the positioning?

21 Number 75 is a timetable for the regulation of traffic through the

22 tunnel under the airport. There's no clear indication as to why 75 is

23 placed in this location. 52, which is beneath it, is accurately placed as

24 being where the tunnel is. And I note from the evidence, if that is

25 placed there as being relevant to the second shelling incident, that we've

Page 21683

1 heard that the tunnel began to operate after that incident occurred, on

2 the 12th of July, 1993. So the point I make is that it's necessary to

3 look very carefully at the foundational -- the foundation of these

4 circles, of these entries, in order to determine whether any sensible use

5 can be made of them.

6 And finally, I come to circle 118, which happens to be placed

7 squarely on the position of the first scheduled shelling incident. The

8 document we could not locate. What we can determine from the other

9 documentation is that apparently it's based on an SRK intelligence

10 report. In any event, the document is apparently dated the 31st of

11 January, 1994, being well after the date of the first shelling incident.

12 I go now to the next image. And here we see the tendered

13 Prosecution map, tendered by the Prosecution, indicating the positions

14 where the victims of sniping incidents 6, 18, and 22 were located. We've

15 heard evidence that there was a church of the orthodox faith partly

16 constructed at the commencement of the war, remained in that state

17 throughout the war, and was located in the area where we see the red

18 circle to the right of the screen. One can note from this map, having

19 regard to the light-blue line that cuts moving from right to left

20 diagonally to the enter of the map and then levels out to a horizontal

21 centre line, that being the Dobrinja River. But from the position of the

22 church, one had a vantage point down a considerable length of the river,

23 in particular, incorporating positions 6 and 18. On this map also, we see

24 the confrontation lines as evidenced by General Karavelic, the commander

25 of the ABiH, the modification made by him with a dark-blue line made to

Page 21684

1 the left. SRK forward positions dark green, ABiH forward positions a

2 lighter green.

3 Sniping incident 6 occurred on the 11th of July, 1993. It

4 involved a group of civilians who relied upon the water of the river which

5 really at that point was a cement-lined canal as their source of water for

6 washing, it being not sufficiently clean for drinking. But that, they

7 went to a water point elsewhere in Dobrinja which happens to be the site

8 of the first shelling incident, scheduled shelling incident, where,

9 according to in relation to incident 6, the deceased victim's 16 year old

10 daughter, 16 years at the time, they would sometimes wait 10 to 12 hours

11 to fill their plastic containers with drinking water. That first

12 scheduled shelling incident occurred the day after this sniping incident.

13 The -- we heard from a friend and neighbour of the deceased

14 victim, the victim being a 48-year-old woman dressed on that day in a

15 skirt, that the two went to a small bridge across the river that joined

16 the different parts of Dobrinja. When they arrived, they noticed that

17 civilians before them were taking shelter against the side of the bridge

18 so that they were sheltered from the east. That is, the same direction in

19 which there was the church.

20 They could see bullets hitting the water surface alongside them.

21 After a while, the shooting stopped. And one civilian, and then another

22 in turn, proceeded to the water's edge and filled their containers and

23 retreated. The third civilian to attempt that manoeuvre was the victim.

24 And when she arrived at the water's edge, she was shot. She turned, and

25 she was shot again. And she fell back into the water. The witness, her

Page 21685

1 friend, who gave evidence, said that she moved to retrieve her friend, the

2 victim, but was stopped by other civilians because the shooting continued.

3 It continued for some time, bullets hitting the water. Eventually, a

4 group of soldiers emerged, took up positions on the bridge, and returned

5 fire to the church, to the direction of the church. And ultimately, by

6 the use of a rope or a belt or something of that order, the victim was

7 retrieved.

8 The Defence in its written submissions portrays a different

9 picture, and one for which there is absolutely no evidence. The Defence

10 portrayal is that the soldiers were firing from the bridge at the time

11 that the victim was shot. They suggest that -- the Defence suggests that

12 while fire was being exchanged from the bridge to the SRK positions, this

13 group of civilians, middle-aged women amongst them, were content to,

14 beneath that same bridge, collect water. All the evidence is one way.

15 The soldiers arrived after the victim was shot.

16 The Defence next suggests that there was no line of sight between

17 the church and where the victim was shot. Or to put it another way, it

18 was not possible from the church to see where the woman was shot. The

19 Defence called evidence to the effect that the church had been shelled.

20 The dome of the church had been hit, the inference was that it was so

21 damaged that you could not accommodate snipers in that church. That

22 witness was confronted by the Prosecution with photographs taken at the

23 end of the war, and he agreed that those photographs portrayed precisely

24 the condition of the church during the war, during the indictment period.

25 Those photographs will appear on the screen shortly.

Page 21686

1 That is one on the screen now. And I should say, Mr. President,

2 that we have placed the exhibit numbers of these photographs

3 electronically on the screen. We see the church in the centre of the

4 photograph, and alongside it, a building crane. The witness said the

5 building crane was there throughout the war as well. We note on the maps,

6 such as the sniping maps, such as the one we saw earlier, that alongside

7 the circle is the word "tower" or "towers," an apparent reference to the

8 building condition of the site as it was before the war.

9 The next image is a different view, a close-up view of the church,

10 and we see at the top of the tower a large opening and we see also

11 scaffolding around it. Witnesses gave evidence that there was scaffolding

12 around the church throughout the war. The Prosecution submits that we are

13 looking at an ideal position in which to place a sniper or snipers. It is

14 a structure which has a commanding view of the surrounding terrain. It is

15 a structure which is softened by the scaffolding and has a number of

16 openings within it which could be used for that purpose.

17 The next image, which we now see, shows the tower from a different

18 angle. And to be clear on this, the Defence witness agreed that that

19 opening on the tower is the way it was during the war. Having regard to

20 the edges of that opening, there is certainly no visual evidence of a

21 shelling, and there is nothing about the appearance of the church in the

22 three photographs that detracts from its use as a source of sniping. The

23 next image, we heard evidence, was taken from precisely where the victim

24 was shot. Tendered into evidence was the statement of Zoran Lesic, who

25 took a series of photographs and videos together with his assistants of

Page 21687

1 the various scheduled sniping incidents. We saw the witness, the friend

2 of the victim, on the video at the bridge indicating where the victim was

3 positioned at the time she was shot. We saw a yellow cross placed on that

4 position with yellow paint on the cement. The statement of Mr. Lesic is

5 to the effect that he would erect his tripod directly over those yellow

6 markings, place the camera at an approximate height as to that of which

7 the bullet entered the body, and then take electronically 360 degree

8 photographs. So we are able to see on this photograph what lines of sight

9 there were from where the victim was shot. This is evidence that can't be

10 contested that the church was able to be seen, and therefore, there was a

11 line of sight from the church. It appears white in this photograph

12 because it was taken we've heard in the last few years in which time the

13 building has been completed and it has been painted. The witness circled

14 the church.

15 We move on to the next image which is a map marked by investigator

16 Kucanin. We see Dobrinja to the left, and where we see a G, it looks a

17 little like a 6, is where he placed the church. And it was known he said

18 as the Veljine church in Dobrinja. To the right, in the vicinity of the O

19 marked in blue, he indicated Lukavica barracks. We see just left to the O

20 some dark silhouettes which correspond to the building complex. We heard

21 evidence that those were the accused's forward headquarters - his main

22 headquarters apparently being in Pale - his forward headquarters for this

23 conflict. One notes, having regard to the map, the distance between the

24 accused's headquarters and the church and in turn, Dobrinja, and the

25 airport. To the bottom left corner of the map, one can make out the lines

Page 21688

1 of the runway.

2 Next image is indeed some video. This video which we're about to

3 see, which we're now seeing, was tendered by the Defence through one of

4 its witnesses. The white building was the headquarters for the accused.

5 He was on the top floor, on this same corner area of the building. If we

6 could pause at this point. We see Mojmilo hill, we just Mojmilo hill on

7 the screen.

8 Excuse me, Mr. President. We're not able to pause it for the

9 moment. So in a few minutes, between the trees, one will see the church

10 as it could be seen from this area. And the witness identified it as

11 being the same church, Veljine. It will appear on the screen to the left

12 of Mojmilo hill in between the trucks. It appears there now just between

13 the leafs, that high structure.

14 Now, the Defence witness went on to say that there were barricades

15 erected suggesting perhaps that the church couldn't be seen from the

16 building, but that is not the point. The point is not whether the accused

17 would have heard the firing by the snipers. The point is that given the

18 evidence as to the command and control which the accused enjoyed over his

19 subordinates, it is unthinkable that a sniping -- snipers could operate

20 from that church so physically close to his headquarters without it being

21 sanctioned by him. That is the point. Not the line of sight, but the

22 physical proximity. The same can be said of the mortar units the

23 Prosecution says were responsible for the mortaring of the football game

24 and the humanitarian gathering in Dobrinja. The evidence is that those

25 units came from approximately that area, the area adjacent to the Lukavica

Page 21689

1 headquarters. Is it credible that individuals could have operated mortars

2 so close to the accused's headquarters without him sanctioning that

3 behaviour?

4 We move now to incident 18 in some more detail. The next image.

5 We see a sniping map relative to that incident. No different than the

6 earlier. We move on to the next image. And this incident, very briefly,

7 involved a 32-year-old woman who was riding her bicycle across the next

8 bridge along from where the previous incident occurred, that is, the next

9 bridge to the east, closer to the church, closer to the front lines. As

10 she rode her bicycle on the 6th of January, 1994, she noticed bullets

11 impacting on the road around her, and then realised she had been shot in

12 the buttocks. The witness marked a photograph and participated in a

13 video, a 360-degree photograph was taken. We now move on to the next

14 image.

15 We have a problem, Mr. President, of a technical nature, I think.

16 Rather than come back to this piece of footage, it's only a matter of

17 seconds, but it's a problem which is going to recur, I wonder if we could

18 have a very short adjournment to see if we can correct it.

19 [Trial Chamber confers].

20 JUDGE ORIE: Do you have any time how much time it would take,

21 Mr. Ierace? Because the Chamber has considered that after one hour, we

22 could have a longer break, and that would give you more time to make

23 repairs. Otherwise, we might risk that we have to make short breaks again

24 and again, which would take your time.

25 MR. IERACE: Excuse me, Mr. President.

Page 21690

1 Mr. President, it may be that we cannot obtain any assistance

2 until 10.30. That being the case, I won't show this videoclip. I'll move

3 on. Excuse me. So I'll move on, Mr. President, at least until the next

4 videoclip, and then perhaps suggest a change.

5 So we could move now to the next image, we see a photograph marked

6 by this witness looking east from the northern end of the bridge. She

7 marked with the dark crosshatching a barricade that existed at the time.

8 She circled the church, and she also indicated, and one can appreciate

9 this by comparing photograph to the map, that there were apartment

10 buildings which also were under the control of the SRK and from which

11 there was a line of sight to her. She gave evidence that following this

12 incident, the barricades were extended and changed to sandbags from a less

13 substantial nature.

14 We move on now to the next incident, incident 22, where the

15 victims were in Dobrinja, the firing, Prosecution says, emanating from the

16 other side of the confrontation line, that is, to the west, territory of

17 Nedzarici, held by the Sarajevo-Romanija Corps. And a brief reminder of

18 the evidence about this: On the 25th of May, 1994, during a cease-fire, a

19 bus pulled up at its last stop at the end of the run, position being 22,

20 that red dot. The bus driver gave evidence that he heard a single shot

21 coming from the direction of Nedzarici, that is, from the west. The

22 bullet hit the bus, impacted ultimately on two middle-aged women who were

23 passengers on the bus. Indeed, one of the women suffered a laceration to

24 an artery. He restarted the bus and drove straight to the nearby

25 hospital, the Dobrinja hospital.

Page 21691

1 If we move to the next image, this was marked by the witness.

2 This is the road that we earlier saw on the map looking to the west. That

3 is where he heard the shot come from. And on the next image, we see

4 another photograph marked by him showing with red crosshatching where

5 there was a barricade at the time, and also two dwellings which either

6 didn't exist at the time or were in a state of partial construction. The

7 Defence contends that the distance involved between the site of this

8 incident and the building known as the school of theology in Nedzarici was

9 so great that it could not have been the source of fire. The Defence also

10 suggested in evidence it called that the lay of the land, the nature of

11 the terrain between the school of theology and the confrontation lines did

12 not allow for the possibility that the shooter could have been located on

13 that territory. The bus driver gave evidence that he could see the school

14 of theology from where the bus was hit. And having regard to the state of

15 these buildings at the time that we see on the photograph, there was

16 terrain in between the school of theology and the confrontation lines from

17 where the round could have emanated. The Prosecution does not suggest

18 with any certainty a particular place on that territory as to where the

19 bullet came from, nor, in our respectful submission, is that a

20 prerequisite to proving these charges.

21 Mr. President, at this juncture, may I also make this observation,

22 earlier I noted that at this stage of the trial, it is of course open to

23 the Trial Chamber to apply in a proper fashion findings of fact from one

24 body of evidence to other issues in the trial. In its written

25 submissions, the Defence repeatedly suggested that these various sniping

Page 21692

1 incidents were not made out because there was no identification with

2 precision of who fired and precisely where from. And if these were

3 individual trials, each of these scheduled sniping incidents, in which the

4 evidence, the only Prosecution evidence, was that offered in relation to

5 each sniping incident, it would more often than not be the case that we

6 could not prove them. But that is an unrealistic view of the evidence in

7 this trial. This evidence is to be combined with other evidence, evidence

8 of admissions by the accused and his subordinates and so on, evidence of

9 admissions, together with evidence of observations made by a number of

10 witnesses as to what lay on the other side, evidence of observations of a

11 number of witnesses as to the behaviour of the SRK soldiers, snipers,

12 professional snipers, at least full-time snipers on the SRK side.

13 It is unaccountably unrealistic in our respectful submission for

14 the Defence to confine itself hermetically to the evidence of each

15 scheduled incident in a discrete fashion. And so, in this case, for

16 instance, there is evidence from a number of sources that the school of

17 theology was regarded by civilians at the time and investigators as a

18 source of sniping fire. This gives rise to a second issue. A number of

19 witnesses, civilians, war correspondents, medical people, as well military

20 observers have given evidence of observing the source of fire. Sometimes

21 that evidence has been in the form of observing tracer rounds or smoke or

22 light of some form emanating from a barrel. For example, in relation to

23 scheduled sniping incident 16 and 17, the building on the plain to the

24 southwest was where one of the witnesses we heard saw light at night, at

25 dusk, flashes of light, when persons in that building shot from it. There

Page 21693

1 is nothing in our respectful submission that detracts from full weight to

2 be given to such evidence. Evidence of that nature does not require any

3 special skill. Sometimes that evidence goes a step further and is to the

4 effect that fire came from the SRK side of the confrontation lines. And

5 of course, if we're talking of rounds that could be seen, tracer rounds

6 and so on, it follows that the source of those rounds, depending on what

7 view one has, can also be determined in a simple and reliable fashion.

8 We have heard evidence that the barricades that were set up around

9 Sarajevo increasingly set up from late 1992 onwards were effective. In

10 other words, when civilians used them, the risk that they were shot from

11 the SRK side of the confrontation lines was reduced. The number of

12 casualties as a result dropped. We heard evidence from one of the local

13 witnesses, the head of civil defence, that after the war when the

14 barricades were taken down, he carefully inspected them, and he found that

15 the impacts were on the SRK side, that is, the side facing the SRK front

16 lines. Sometimes bullets would penetrate those membranes, even steel

17 membranes, even containers. That is powerful relevant evidence as to

18 where the fire came from which targeted civilians. The fact that the

19 barricades worked.

20 Returning to this incident and the images, at this point, we can

21 move on, except I think we have another video. We'll leave that and

22 move -- excuse me, Mr. President.

23 We'll move on. We come now to the areas adjacent to Nedzarici.

24 Dobrinja is to the bottom right. We see the SRK-held territory in the

25 form of a salient into ABiH territory. And again, we see some white

Page 21694

1 circles, pre-indictment positions, or repeats. We see again number 47 --

2 withdraw that. We see 47 with a blue colouring. And again, that is a

3 directive on general lines of defence. We have seen number 47 three times

4 in the Dobrinja map. And if you, Mr. President and Your Honours, consult

5 the bigger version, you will see immediately above the 138 yet again 47.

6 The numbers to the right, 84 and 164, on the basis of the documents that

7 found them, refer to the Mojmilo neighbourhood. In other words, there is

8 no particular apparent reason as to why they have been placed in that

9 precise position.

10 If one looks at the scale of this may it please, one can deduce

11 that the diameter of these circles is some 200 metres. And yet, the

12 target may be something much smaller than that, a room, a small building.

13 When one looks at the map as a whole, that has been to be taken into

14 account, that while in some areas, the circles appear to all but cover the

15 ground, that is in part because the diameter chosen by the individual or

16 individuals who constructed this map. If, and this hasn't been made clear

17 by the Defence, if the suggestion is that 200 metres is deliberately

18 chosen so as to indicate an acceptable area of targeting for a building,

19 the Prosecution submits strongly against that. It is inappropriate, in

20 the Prosecution's submission, to utilise in a densely populated, urban

21 setting weaponry that is so indiscriminate by its nature, quite separate

22 from those who operate it. We heard evidence in the Defence case, and

23 indeed, from some Prosecution witnesses, that one does not expect in

24 normal circumstances to hit the target on the first shell. Mr. Stamp will

25 talk more about that at a later point. But that is a factor to be taken

Page 21695

1 into account by those who make the decisions. If that is their

2 expectation, that the target will not be hit by the first shell, then the

3 mortar is in many circumstances in an urban setting inappropriate as a

4 weapon to use.

5 Perhaps we'll move on to the next image now. We see now the

6 sniping map for incident 13. That was the independent where a 15-year-old

7 boy, the indictment said 16, it transpired he was 15, did not go to school

8 on the 4th of October, 1993, ironically because his mother was concerned

9 for his safety. A civilian had been shot that morning. So instead, he

10 accompanied his father, who was making a delivery on behalf of the civil

11 defence authorities of foodstuff or water to a civilian settlement. They

12 proceeded along the main road, which appears on this image, on the top

13 third of the image. Marsal Tito Boulevard, turned left, they proceeded

14 from left to right as one looks at the map, turned left in Ante Babica

15 Street, where we see the two white shed buildings to the left of the

16 intersection, they being student hostels. The truck had a heavy load.

17 The father and the son gave evidence, and that evidence was to the effect

18 that the truck proceeded slowly after the intersection. It is a slope.

19 The driver said he was travelling at about 20 or 30 kilometres per hour.

20 He said that the student hostels were hollow, the floors were hollow. Not

21 surprising, one would think, given the Defence evidence that the buildings

22 had been used by ABiH forces.

23 On the map, we see the position of the buildings known as the

24 school or home for the blind circled close to the confrontation lines.

25 The driver said that he had driven this road many times before, and he had

Page 21696

1 been shot at before from the vicinity of the school for the blind. As he

2 approached the intersection, he noticed a barricade had been erected 2

3 metres high, concrete blocks. The evidence from the father or the son was

4 that the barricade in fact had been erected that day. There was an

5 UNPROFOR APC parked just beyond the intersection. His truck was 3 metres

6 high; the barricades were 2 metres high. It was marked as a butcher's

7 truck, his vocation. His son was in the passenger seat closest to the SRK

8 side. On the video, by comparing the video with a photograph that he

9 marked, which I'll show shortly, it's apparent that when the truck was hit

10 by the bullet, it had passed the barricades. There was a line of sight

11 even putting to one side the height evidence.

12 The Prosecution makes these observations. The relevance of the

13 student hostels having hollow floors is not that persons were necessarily

14 shot through those floors, but rather, persons on the SRK territory had

15 the opportunity to see vehicles and individuals who they wished to target

16 approach the intersection. They had time to prepare, time to raise their

17 rifles, to take aim, to watch. On this particular occasion, not only

18 could the truck have been seen approaching the intersection through the

19 student hostel, but also above the 2-metre barricades so that they end at

20 a steadily slow speed, ideal conditions for a sniper to anticipate and

21 shoot, which is what happened, and the 15-year-old was shot.

22 The Defence suggests that a cloud hangs over the status of the

23 father as to whether he was a combatant. Assuming hypothetically that he

24 was a combatant, that does not relieve the accused or his subordinates.

25 The Prosecution submits that it is inappropriate in those circumstances to

Page 21697

1 shoot at a combatant when there is a child in the way. But more to the

2 point, what was there about them which suggested that he was a combatant?

3 They were wearing civilian clothes, a civilian-marked truck. There was

4 nothing. In any event, he was working for civil defence.

5 Mr. President, there is someone here now who can attend to the

6 technical problem. I wonder if we could take the break perhaps 10 minutes

7 early.

8 JUDGE ORIE: Yes, that's possible. I have difficulties looking at

9 the clock because it's reflecting, but it's close to 25 minutes past

10 10.00, as far as I can see. We'll resume at 5 minutes to 11.00.

11 --- Recess taken at 10.22 a.m.

12 --- On resuming at 10.58 a.m.

13 JUDGE ORIE: Mr. Ierace, I was informed that it was a network

14 problem rather than anything that would have been done wrong in the

15 preparation. So therefore, I hope that everything functions now well.

16 You may proceed.

17 MR. IERACE: Thank you, Mr. President.

18 Before the break, I was referring to incident -- scheduled sniping

19 incident number 1. The driver of the truck, the father of the victim,

20 gave evidence that from where his son was shot, it was possible to see the

21 home for the blind, and indeed, he had seen a hole on the first floor of

22 that building which afforded visibility to the intersection.

23 Mr. President, the Prosecution case featured much evidence about that

24 particular facility. The Defence called a number of what one might call

25 front-line troops who served for the SRK in Nedzarici, and many of them

Page 21698

1 came tantalisingly close to saying that they were stationed in the home

2 for the blind, but ultimately, none of them ever did.

3 The Defence case was that the home was not utilised as a source of

4 sniping fire. Reason: That it was too dangerous to leave the ground

5 floor and go into the upper floors. That was an explanation which the

6 Prosecution submits lacks credibility. The Defence witnesses said that

7 they were subject to fire from the high-rise buildings surrounding

8 Nedzarici. Implicit in that evidence was an appreciation of the strategic

9 importance of high elevation points, positions which afforded a view over

10 the enemy positions. They in Nedzarici had view buildings to utilise in

11 that fashion. The home for the blind, a matter of a few floors; the

12 school of theology, significantly more floors. And yet, they departed

13 from their strategic observations to deny that those buildings were so

14 used.

15 Indeed, the Defence case is a little difficult to understand in

16 relation to whether the SRK had snipers, sniper units, or sniper rifles.

17 In their written submissions at paragraph 11, the Defence stated its

18 position to be that the SRK had no sniper weapons. At paragraph 508, it

19 said the SRK did have sniper weapons, but no snipers. Dr. Radinovic said

20 they had snipers. Based on his conversations with various officers of the

21 SRK.

22 A number of witnesses gave evidence of seeing sniper weapons in

23 the SRK. A Defence witness gave evidence of seeing one in the

24 headquarters of the accused. The ultimate conclusion we would submit is

25 that the SRK had sniper weapons and snipers. Those sniper weapons were

Page 21699

1 M76 rifles, the Russian version being known as the Draganov, equipped with

2 a long barrel and an optical sight, capable of shooting single rounds,

3 according to the literature, with accuracy to 1.000 metres. According to

4 some witnesses, capable of accurate use beyond 1.000 metres. The distance

5 involved in relation to Nedzarici was much less than that. In the

6 vicinity of 450 metres. One didn't necessarily need a professional sniper

7 rifle to send off a burst of lethal rounds from Nedzarici to civilians who

8 were passing close to the front line.

9 Coming back to incident number 13, we should see on the screen

10 shortly a photograph that was marked by a witness to another incident at

11 that site. We see the student hostel to the right, high-rise buildings to

12 the left. And in the middle, a building which I think was three storeys,

13 but in a depression, so the ground level was beneath the road level. The

14 witness, Mr. Kapetanovic, crosshatched the roof. He recollected that that

15 building didn't have a roof. The father of the victim in this incident

16 recollected that that building wasn't even -- that building had two floors

17 at that stage. In any event, his evidence is that you could see the home

18 for the blind.

19 Mr. President, I make this further general observation: That

20 there is a tendency to become too technical and too detailed, to examine

21 too minutely the evidence in relation to many of these scheduled sniping

22 incidents. The Defence in its submissions, on more than one occasion, has

23 sought to rely on discrepancies between the evidence of victims and

24 witnesses in order to undermine the credibility of the witnesses. There

25 is nothing wrong with that in theory. That is an accepted technique of

Page 21700

1 testing the credibility of a witness. By the same token, differences do

2 not mean that the credibility is undermined. It's a matter of human

3 nature and common sense to conclude that of course people have varying

4 degrees of recall, especially after ten years. And that when incidents

5 happen quickly, even if they're spoken to straight afterwards, there will

6 be differences which don't reflect on their credibility as a whole.

7 These incidents which occurred adjacent to the home for the blind

8 are typical in that regard. There can be no doubt in my respectful

9 submission, that the victims of these incidents were clearly shot from the

10 SRK side and were targeted. And that is as far as the Prosecution seeks

11 to go with them. The Prosecution relies on other evidence to connect the

12 accused as the commander of those troops in a 7(1) capacity.

13 I invite -- I respectfully invite the Trial Chamber to imagine on

14 the basis of the evidence, and only the evidence, of course, what

15 happened. The truck moved up the street. There was one shot as it slowly

16 drove past the intersection, it impacted on the frame of the passenger

17 door, the bullet fragmented and hit the son in the neck. And that's it.

18 Simple occurrence of events leading, as an exercise of common sense, to a

19 simple conclusion. One shot in those circumstances is deliberate. The

20 people in that front seat were targeted.

21 I move on to the next image, and here we see a marking made by the

22 victim's father of the barricade which existed on that intersection on

23 that day. I draw your attention to the length of the barricade. It was a

24 very small barricade. The evidence is that it later was extended. He

25 gave some evidence about the length of trees, the height of trees I should

Page 21701

1 say, at the time, drew lines to indicate what the height was at the time.

2 Next image, please. You will recollect much controversy with

3 Defence witnesses as to where this photograph was taken from. The

4 Defence -- the Prosecution submitted it was taken from the top level of

5 one of the buildings of the home for the blind complex immediately

6 adjacent to the street that we see -- either section that we see in the

7 photograph. One Defence witness in spite of the appearance of the

8 drainpipe suggests that it couldn't have been taken from that building,

9 even though he later acknowledged that the drainpipe was part of that

10 building.

11 He resisted as long as he could that suggestion, but ultimately

12 relented. He had maintained that you couldn't see the intersection from

13 the home for the blind. This photograph demonstrates that you could. The

14 next photograph is a telephoto shot of the section we see above the red

15 roof to the left. One sees a line of sight. The Defence said, oh, yes,

16 but there were a series of barricades leading up to the intersection which

17 blocked the view. When confronted with this photograph, that particular

18 Defence witness agreed that you could see over at least the first two rows

19 of barricades to the intersection, but said, of course, they never went to

20 the upper storeys of the home for the blind.

21 This photograph also makes clear that the position where the

22 victim was shot, keeping in mind the position of the barricade, was

23 east -- rather south, I should say, of that position. In other words, the

24 barricade did not at all impede the line of sight. Rather than go back to

25 the relevant piece of video, you may remember, Mr. President and Your

Page 21702

1 Honours, that the position was to the right of the intersection, slightly

2 to the right.

3 Next image, please. And next one. This is a photograph taken by

4 a reserve policeman who witnessed the shooting of the victims of sniping

5 incident 21. A 63-year-old man, a pensioner, was walking with a

6 57-year-old friend and another man of senior years along Ante Babica

7 Street, which is the street running along the bottom of the photograph

8 from right to left. The reserve policeman was in the vicinity, heard two

9 shots, at first thought he was the target, and he was in the direction of

10 the blue arrow that we see at the bottom of the photograph, according to

11 his evidence, although that was not the reason that arrow was placed on

12 the photograph.

13 He gave evidence that gauging on the sound of the shots, they came

14 from the direction of the school for the blind. He investigated and

15 located the injured parties, assisted to the best that he could. One of

16 the victims died two and a half months later as a result of his injuries.

17 The third person who wasn't injured gave evidence. At the time he gave

18 evidence, he was aged 71 and in poor health to the extent that he had to

19 testify by videolink from Sarajevo. Clearly, he was confused with respect

20 to some of the photographs. The Defence, in its written submissions,

21 relies heavily on discrepancies between his evidence and that of the

22 reserve policeman. But again, I submit it's appropriate to step back and

23 take a common sense view. Firstly, is it seriously suggested that the two

24 men were not shot, that they were not shot in that general area? The

25 evidence of the reserve policeman was very credible and in turn, logical

Page 21703

1 and simple. He heard the shots. He was able to indicate where they came

2 from, and he found the victims, and he attended them. Again, keeping in

3 mind what the Prosecution sets out to prove, simply that persons were

4 targeted, they were civilians, and they were shot from the SRK side, that

5 is done beyond reasonable doubt.

6 The reserve policeman noted that it was a cease-fire on that day,

7 and he said of cease-fires: "The population behaved in a more relaxed

8 manner. They could move freely, and they could move more. When the

9 cease-fire was on, our task was often especially on areas exposed to the

10 sniper fire. We would be given a task to warn those people because the

11 cease-fire often meant nothing. When there were not cease-fires, people,

12 especially women and children, spent their time in cellars." Now, the

13 Defence has also said in its submissions that the sniping scheduled

14 incidents occurred close to the front line in a combat zone. And I use

15 this one -- or these incidents involving the home for the blind as an

16 example to respond to this Defence submission.

17 The Defence points out that persons were not sniped well away from

18 the front line. Well, that is hardly surprising given the range of

19 professional sniper weapons. They have to be, if that is the weapon used,

20 within that distance of where the shooter is located. The Prosecution

21 case is that the accused deployed not only professional sniper weapons,

22 but bursts of fire from infantry weapons, assault rifles, machine-guns,

23 anti-aircraft artillery, and that extended the range of such weapons well

24 into the city.

25 But this notion that the Defence proposes of a combat zone

Page 21704

1 warrants closer examination. What exactly is the Defence proposing? That

2 there were agreed combat zones from which civilians were excluded? There

3 is no evidentiary basis for that at all. The Defence has suggested time

4 and again it was incumbent upon the Bosnian government authorities to move

5 civilians out of Sarajevo, out of harm's way. I pose the rhetorical

6 question: "Where to"? A city of 340.000 people, the biggest city in

7 Bosnia, where were they to move to? Which state? Which international

8 agency was offering accommodation for that number of people and the

9 support mechanisms they needed?

10 The Prosecution [sic] suggests: "Well, they should have been

11 moved at least away from areas immediately adjacent to the front lines."

12 But as this photograph indicates, taken from the top of one of the

13 residential complexes on the Bosnian government side, and as the earlier

14 photographs indicate -- demonstrate even more dramatically, it happened

15 that the structures which offered bulk accommodation to the residents of

16 Sarajevo were close to the front line. If the high-rises of Alipasino

17 Polje, those many blocks of 20 storeys, were to be emptied, where in the

18 city, leaving to one side out of the city, were those residents, those

19 civilian residents, to be accommodated? In the old city? On open land in

20 the Sedrenik area? Perhaps in the industrial area. There is and was no

21 alternative.

22 Milada Halili explained that she and her husband and her mother

23 lived very close to the front line in Heroes' square in Hrasno. Her

24 mother became deeply concerned for her own safety following the 1992

25 assault by SRK forces. So she moved to the PTT building where the

Page 21705

1 evidence was she lived in that building. It didn't save her because

2 ultimately, she had to emerge from the building, and she had to make her

3 way around the city. And as we'll shortly see, and we've heard the

4 evidence, she was shot dead. It is a little insincere, inconsistent

5 certainly, for the Defence to make this proposition in any event given

6 that its own witnesses operating on the SRK admitted that there were

7 civilians living close to the front lines on their side. Nedzarici was a

8 very small area, in the order of a kilometre across. There were hundreds

9 of civilians living in Nedzarici. One defence soldier said his mother

10 lived there within 200 metres of the front line. He explained she didn't

11 want to move, and so she continued to live there. He was asked whether he

12 expected that on the other side of the line a similar situation would

13 apply. And he thought not.

14 Defence witness after Defence witness said the same thing. That

15 they were not informed there were civilians living so close.

16 This aspect of the evidence is a convenient point to deal with

17 another issue raised by the Defence. And that is, who precisely in the

18 Defence case was targeted? Witnesses who were SRK troops in Nedzarici

19 said that they regularly received orders not to target civilians once a

20 week, at least. One wonders why there was a need for such orders if they

21 weren't targeting civilians? There is an internal inconsistency in that

22 evidence. When asked what that meant, they said that it meant not to

23 target children, not to target women, not to target anyone who was not

24 wearing a uniform. Some went so far as to say they were not to target

25 uniformed adults, men, unless they were armed and threatening them. So

Page 21706

1 there is between this evidence and the Prosecution evidence an enormous

2 gulf. It seems the Defence case is that no SRK soldiers ever targeted

3 women or persons in civilian clothes. How could it be, then, that

4 thousands were injured as a result of shooting or shelling? No

5 explanation is offered for that.

6 There is indeed another inconsistency in the Defence case. While

7 that is the effect of its evidence, its submissions are different. In its

8 submissions, it enthusiastically submits that there was nothing wrong with

9 targeting a woman because she might be a soldier, especially if she was in

10 the combat zone. The written submissions observe that a 7-year-old could

11 be used for military purposes. There is no explanation offered as to the

12 gulf between the submissions and the Defence evidence. What is the

13 Defence position? More importantly, how can they make submissions not

14 based on the evidence? That nexus must always apply. Submissions should

15 never venture into the hypothetical. They should never be fantastical.

16 They should reflect the evidence.

17 I move on to the next image.

18 [Videotape played]

19 MR. IERACE: We see here Mr. Kapetanovic being asked certain

20 questions by an investigator. And this was one of the benefits of the

21 videoevidence, because whatever difficulties civilian witnesses had in

22 relating to maps and photographs, this was an opportunity for them to

23 orientate themselves at the actual site where the incidents occurred.

24 Mr. Kapetanovic, the third man, the one who wasn't shot, is indicating on

25 this video the direction in which he and his companions were walking as he

Page 21707

1 remembers it. And more importantly, the position where the shooting

2 happened. We see in the background on the right the student hostel,

3 evidence being that the floors were hollow. We see in the middle the

4 red-roofed building. Mr. Kapetanovic's evidence that the roof wasn't

5 there. The evidence of the investigator that the building wasn't there --

6 I'm sorry, the reserve policeman, I should say. And there is seen to be

7 no inconsistency between Mr. Kapetanovic's evidence and that of the

8 reserve policeman, that them being shot from the school for the blind was

9 possible. That there was a line of sight when one factors in the

10 situation with the red-roofed building.

11 Please continue.

12 [Videotape played]

13 MR. IERACE: All right. We move on now to the next image, and

14 this is incident number 23. That is the sniping map. Very briefly, a

15 couple walked up the street we see to the right at the dot. And as they

16 did say, the woman was shot in her hand. The shooting continued. They

17 took cover on the ground. The Prosecution case is that the round came

18 from the vicinity of the cone that we see on the map, to the west of the

19 front-line positions. The victim gave evidence -- indeed both gave

20 evidence that the sound associated with the shooting, the sound of the

21 shooting, came from that direction.

22 Can we please go to the next image. Here we see the couple at the

23 place where they were shot. The victim's brother-in-law alongside her

24 facing west. Nedzarici in the background. The next shot is a telephoto

25 from the same position. In the background, we see a white flat-roofed

Page 21708

1 building behind the lamppost on the right. The victim circled that

2 building, indicating it to be the school of theology. There was --

3 keeping in mind that the houses between the school of theology and the

4 street behind the couple involves post-war construction, the Prosecution

5 is not able to say with any certainty beyond the front line where that

6 shot came from. But given the shooting continued, there is evidence they

7 were targeted. They were civilians, and she was dressed in a skirt or

8 dress on the day. There was nothing about them, in other words, to

9 suggest otherwise than they were civilians.

10 Next photograph, next image. Incident 25. A girl aged 16 years

11 with her girlfriend, a year younger, were crossing a road. The

12 16-year-old was shot in the shoulder. They were making their way back to

13 the friend's apartment. The friend gave evidence. Some ABiH soldiers

14 called out to them to take care because there was some shooting. They ran

15 across the street as a result of that warning. They were told that sniper

16 fire had started up. The girls were wearing civilian clothes, jeans,

17 T-shirt, sneakers. We have some video of the witness explaining where the

18 incident occurred.

19 [Videotape played]

20 MR. IERACE: In the interests of saving time, we won't play the

21 rest of the video, but the witness has now indicated where they crossed

22 the road and shortly after this point, she indicated where the victim was

23 shot, which was immediately in front of her. If we continue a little bit,

24 I'll tell you when to pause. All right, that will do. We'll go to the

25 next one.

Page 21709












12 Blank pages inserted to ensure pagination corresponds between the French and

13 English transcripts. Pages 21709 to 21722.













Page 21723

1 We will shortly see a 360-degree photograph taken from the site

2 where the victim was shot. And we have a problem, so I will move on. The

3 360-degree photograph panning the area from that site indicated as we saw

4 on the video Nedzarici in the background, and the school for the blind

5 clearly visible. This photograph taken from the same position as the

6 earlier photograph from the school for the blind, but in a different

7 direction. That can be deduced by comparing this photograph with the one

8 taken in the direction of Ante Babica Street. It ad joins to the left of

9 this photograph.

10 The next image shows a gap which appears between the buildings.

11 Thank you. And we see a building which was not there at the time

12 crosshatched by the witness, and to the right, the place where the victim

13 was shot.

14 Next image. And we now move on to incident 26. In the same

15 vicinity as 25, and one can see from the map that there was a gap in the

16 buildings slightly to the west of where the victim was when he was shot.

17 Next image, please. We see that gap in the centre of the

18 photograph. The victim was on one of the upper floors of the building

19 immediately behind. Having regard to the map, it's clear this photograph

20 was taken from SRK-held territory.

21 Next photograph. We see here the building in which the victim was

22 at the time, where he lived, and we note the damage done to that sliver of

23 the wall of buildings, consistent with the gap that we saw in the earlier

24 photograph. In other words, these buildings received considerable fire

25 during the war, not necessarily, therefore, the indictment period, or

Page 21724

1 exclusively the indictment period, as a result of fire from the west. No

2 evidence as to when that damage was caused.

3 Next image. The victim is here seen seated where he was when

4 shot. We note the balcony behind him.

5 Next image. The close-up of that balcony reveals in the

6 background the area which by comparison with the map is where the front

7 line was. And although it doesn't appear clearly in this particular

8 photograph, we are able to see the institute of theology, the school of

9 theology, above the red roofs. That was identified in evidence. Thank

10 you.

11 Next one. And then we move on to the next image. Before we do,

12 the evidence in relation to incident 26 is that there was coverings over

13 the glass. The question then becomes: What is the Prosecution case? If

14 he could not be seen as an individual, what does the Prosecution submit

15 happened? He and his family were watching TV, television. There was a

16 light source. The Prosecution submits that the targeting was no more than

17 that, hitting a light source. That is indiscriminate fire. It doesn't

18 matter that the person who fired the rifle, the weapon, could not see the

19 victim. What is relevant is whether the shooter knowingly fired

20 indiscriminately, unaware as to who, if anyone, was behind the glass area

21 covered and their identity, and their status, most significantly.

22 The Prosecution case, as articulated in the pre-trial brief and

23 our written submissions, has consistently been that civilians were

24 targeted either deliberately or indiscriminately. And this is an example

25 of indiscriminate shooting. The evidence is that the SRK not only had

Page 21725

1 sniper weapons and optical sights fitted to sniper weapons, and indeed,

2 machine guns, but also devices allowing them to shoot at night, that is,

3 night sights. And whatever light emanated from that apartment area would

4 be far more apparent with night sight devices which the SRK had.

5 Move on to the image on the screen at the moment. This is a map

6 marked by John Ashton who initially went to Sarajevo as a journalist,

7 later worked for UNHCR, and after that set up an agency with others who

8 provided material assistance to doctors and hospitals operating on both

9 sides of the confrontation line. With his journalist background,

10 Mr. Ashton was very handy with a camera. And that made him a particularly

11 interesting witness in being able to offer some images of what he saw.

12 Here we see a position that he marked in Alipasino Polje where a

13 particular incident occurred. In a moment, we will see the relevant part

14 of Dr. Radinovic's target map for Sarajevo, which will indicate no targets

15 in the area of P8. Perhaps we could go to that.

16 And one can locate the relevant part of the map having regard to

17 the pattern of the streets immediately to the right of the words

18 "Alipasino Polje." Some other general observations in relation to this

19 map: We see number 62 to the right. That appeared twice. Once on

20 Mojmilo hill, as well as here in Alipasino Polje. The list that was

21 tendered with the chart indicated Mojmilo hill, so there is no explanation

22 as to why that should appear again in Alipasino Polje. 101, towards the

23 centre of the screen, according to the supporting document, is simply

24 command post of 102 Motorised Brigade in Alipasino Polje area. No

25 indication as to why it's placed in that part of Alipasino Polje.

Page 21726

1 Indeed, that same command post is shown on other maps as being

2 north of the Miljacka River, but not in this position. The colour of the

3 target according to the colour code of the map should be indicating a

4 mortar or Howitzer position. No explanation as to why it's shown as such,

5 when the document refers to it as a command post.

6 146 is -- having regard to the document is a position for a 12.7

7 millimetre machine-gun. No indication as to why it's placed particularly

8 there, and so on. I don't intend to refer to every number on that map.

9 That alone would take an hour. I simply want to give some indication of

10 the degree to which one can and cannot rely upon it without thoroughly

11 checking it.

12 At this point, I make another general observation: Even if it was

13 accurate, even if an incident occurred right alongside a military target,

14 the Defence intimates that it is, therefore, legitimate. It does not

15 offer any further argument as to why that is so. Underlying the

16 distinction between the military target and a legitimate military target

17 are the dual principles, distinction and proportionality. They are the

18 important principles. That is the law. If a civilian, someone, a woman

19 perhaps middle-aged, wearing civilian clothing, is to walk across the

20 entrance to a command headquarters, how does that at all excuse the woman

21 being shot? It doesn't.

22 If a mortar is lobbed from the SRK side to the entrance to the

23 headquarters of the corps, of the ABiH Corps, and as a result only

24 civilians are killed, no evidence of military persons being on the

25 footpath at the time, that is no excuse. That is unlawful. That offends

Page 21727

1 both principles. If there was a mixture of military persons and civilians

2 on the footpath outside the headquarters, the principle of proportionality

3 applies. Was it disproportionate?

4 The overwhelming scheduled and unscheduled incidents, of which

5 there are well over a hundred that we've heard evidence of, typically do

6 not involve any military persons being hit. A classic example is Kosevo

7 Hospital. The Defence has sought to justify return fire to Kosevo

8 Hospital on the basis of it being counterbattery fire. In other words,

9 the ABiH threw mobile mortars, launched mortars from the vicinity, they

10 were merely -- the SRK was merely deploying the well-known military

11 strategy of counterbattery fire, return the fire, neutralise the mortar

12 position. But what is the evidence? The evidence is that time and again,

13 the hospital was hit. Not only by indirect fire such as mortars, but by

14 artillery shells, by tank shells. How could that be explained? The

15 evidence is that the fire was returned long after the mobile mortars are

16 driven off.

17 But there is this most important point of all: Where is the

18 evidence that on any occasion, any ABiH combatants were hit, were

19 neutralised? After 23 months of such action against Kosevo Hospital,

20 there is no evidence of one ABiH combatant being wounded, let alone

21 killed. There is evidence of doctors, of nurses, of patients being killed

22 and wounded, of a critically important civilian facility being damaged at

23 a time when it was most needed, a time of war, in a city virtually under

24 siege.

25 In other words, the principle of proportionality was grossly

Page 21728

1 offended. It was no defence to the accused. Indeed, it was not

2 counterbattery fire; it was retaliatory fire. It was the SRK teaching a

3 lesson to the Bosnian government authorities; namely, you fire at us, we

4 will fire at the hospital. That is the conclusion that the Prosecution

5 respectfully submits one draws from all the evidence. One considers, if

6 it was counterbattery, then ultimately the conclusion we respectfully

7 submit is that it was not. Even if it was, it was disproportionate.

8 I return to the incident at hand that Mr. Ashton gave evidence

9 about. He said that on the 22nd of September, 1992, a shell hit that

10 position in Alipasino Polje where children had been playing. No

11 suggestion on Dr. Radinovic's map of a military target there. The victims

12 were brought to the state hospital. And John Ashton had a close

13 association with the state hospital. He stayed on its exposed and damaged

14 upper floors when he first went to Sarajevo. Ashton saw the victims and

15 photographed them. There was a 6-year-old girl whom he assisted in the

16 treatment of who had a serious arm injury. There was a boy of 9 or 10 who

17 suffered leg injuries resulting in an amputation. Metres away from him at

18 the time were his father and uncle, who were both killed. And he had the

19 misfortune to be conscious when the remains of his father were brought

20 into the hospital on a stretcher, sending him into a state of deep shock.

21 Moving on to the next image, this is not an exhibit. This points

22 out where the PTT building was located. It does it in this fashion

23 because this position is clearly uncontroversial. A number of witnesses

24 marked this location as being the PTT building. A lot of evidence dealt

25 with incidents surrounding and within the PTT building. John Ashton said

Page 21729

1 that in December 1992, about an hour before dark, he observed civilians,

2 particularly old men and women, and quite a few children cutting firewood

3 "right outside the PTT" being shelled. It was a cloudy day, misty and

4 cold, but clear enough to see the hills. And it follows, clear enough for

5 the SRK forces to see the PTT building. Indeed, he could see all the way

6 to the Holiday Inn on that occasion. Three people were killed. Two

7 others carrying wood that they had just cut were wounded. The incident

8 was witnessed by UNHCR and UNPROFOR staff. French UNPROFOR soldiers

9 assisted the victims. Ashton said he was certain that amongst this group

10 there were no soldiers or people wearing military clothing, nothing to

11 indicate the presence of soldiers. The UNPROFOR commander in Sarajevo who

12 witnessed the incident contacted the SRK liaison officer and directed him

13 to stop the shelling, but it continued through the evening.

14 Excuse me, Mr. President.

15 Major Henneberry, the commanding officer of the United Nations

16 military observers on the SRK side, on the 16th of December, 1992, was so

17 concerned at the indiscriminate shelling of the city that he decided he

18 would raise the issue with the accused. And I interpose that evidence at

19 this point because as an example, the incident that John Ashton gave

20 evidence about occurred in December 1992. When Henneberry raised that

21 issue, he protested to the accused that, he said: "The shelling

22 continues, and the rounds landing in the city are not always hitting

23 military targets." He said that the accused vehemently responded that his

24 goal was, to use Henneberry's words, "to either destroy the city or rid it

25 of Muslims." Henneberry said this: "As a soldier, I realised having been

Page 21730

1 there for several months that it was beyond the realm of the feasible for

2 the Serbian forces to be able to destroy the city, to damage it

3 significantly, of course. But to destroy the city, that was not feasible

4 for them." He was disturbed by the barbarism in that comment by the

5 accused. He found it difficult to reconcile that barbarism with the fact

6 that the accused was a well-respected and very intelligent military man.

7 Henneberry said: "There was no doubt of that. He had a commanding

8 presence. He was respected for his military abilities and knowledge by

9 his staff and by the military observers." Henneberry was understandably

10 disturbed by the focus on destroying the city or ridding it of Muslims, to

11 use the accused's words as related by Henneberry.

12 He said that, "They were not in accordance with recognisable rules

13 of conflict. It was somewhat scary. I would have to harken back to the

14 Nuremberg trials where very intelligent men made decisions that were

15 illegal and against the law and caused the death of civilians and

16 military. I recognised and realised that" - what the accused had said -

17 "meant the death of a lot of innocents, innocents which I categorise as

18 the young, the elderly, and the noncombatants. And he was determined to

19 do that."

20 Another point of relevance with the PTT building is that we heard

21 evidence that the ABiH would fire mortars from the vicinity of it, what

22 was called screen firing, quite inappropriate given the fact that it was

23 occupied by the United Nations. General Abdel Razek gave evidence that he

24 complained to the accused about the PTT building being shelled. He said

25 that at first the accused denied it, that he was doing it, and then when

Page 21731

1 confronted with the evidence, he admitted it but said he was doing it

2 because the government forces were firing from it. General -- and he said

3 that they had to stop before I stop, words to that effect. So General

4 Abdel Razek ensured that the ABiH forces did stop it, but noted that the

5 shelling from the SRK side continued.

6 Again, the principle of proportionality. Even if it was

7 counterbattery fire, it has to be proportionate. If it was retaliatory,

8 there is no excuse.

9 The next image is part of John Ashton -- one of John Ashton's

10 maps. We see a section of the Marsal Tito Boulevard marked. He gave

11 evidence that he observed some shelling along the boulevard between the

12 21st and 28th of September. There were five civilian casualties. They

13 had been walking on the boulevard. Three were not seriously wounded; two

14 were seriously wounded. There were more than 40 rounds fired during the

15 incident. He gave evidence that he later learned that this was a

16 technique of firing referred to as the iron cross. He was informed of

17 that by a liaison officer for the Bosnian Serb authorities who were

18 stationed in Germany. It was confirmed to him by Colonel Indic. It was

19 confirmed again by a gunner who he met in Pale.

20 The relevance of it to this trial is simply this: Firstly I make

21 the observation it was impossible to detect on the ground, Ashton didn't.

22 All that one would see would be multiple shells falling in an area. This

23 was something which was important to those that fired the weapons. The

24 pattern was in their heads, the cross. It didn't matter what the pattern

25 was. The relevance of it is that it is a form of indiscriminate fire that

Page 21732

1 shows a total depersonalisation of those who will suffer the consequences.

2 For the sake only of maintaining a pattern in their heads, this

3 part of the city was subjected to 40 rounds of shell fire.

4 Next image, please. This is a photograph that he took of that

5 incident. And I think, Mr. President, at this point, we need to move into

6 private session, but just for a matter of less than a minute, if we could

7 do that. So the images will stop, the voice will stop for about a minute

8 in terms of outside --

9 JUDGE ORIE: Yes. I would like to have a confirmation from the

10 technical booth that during the next minute, until the moment that

11 Mr. Ierace asks to go into open session again, that no picture will be

12 visible even not indirect. Or do we close...

13 Mr. Ierace, there is a risk that people in the public gallery

14 could see something on our screens. So therefore --

15 MR. IERACE: Mr. President, I have an alternative suggestion. I

16 won't show the image. It will just be voice. But first I have to see if

17 we can skip past the image without it being seen. Yes, we can. So

18 Mr. President, private session for a minute or so with no images.

19 JUDGE ORIE: Yes, we'll now turn into private session.

20 [Private session]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

Page 21733

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

13 [redacted]

14 [Open session]

15 JUDGE ORIE: You may proceed, Mr. Ierace. We're in open session.

16 MR. IERACE: Thank you, Mr. President. I'll go to the next

17 image. And the relevant part of Dr. Radinovic's map for Cengic Vila and

18 Nova Sarajevo now appears on the screen. I'm conscious of the time. I

19 won't go through a lot of these symbols. A number are marked white as

20 pre-indictment. Indeed, I think I'll leave it at that time. But if one

21 checks also 149 and 129, they are also pre-indictment. They are to the

22 right of the screen. 169, no detailed location was given for that, which

23 was described as a brigade alternate firing position. No explanation as

24 to why the number was placed there.

25 Moving on, this was an Ashton map. The yellow arrow has been

Page 21734

1 placed by the Prosecution on the map for the purposes of this address to

2 better indicate position P3. Ashton said that that marks the place of the

3 bakery which was constantly targeted. On one occasion, he saw a shell

4 land close by and set a group of small shops ablaze. He said the fire

5 then responded despite the fact the shells continued to come down. It

6 very close to the UNHCR headquarters. UNPROFOR determined that the

7 shelling came from Grbavica. Two photos were taken. We show one of

8 these. Next image. And we see in the background what appear to be

9 silos. Might I go into private session, Mr. President, for about 30

10 seconds.

11 JUDGE ORIE: Yes, we'll turn into private session for a short

12 period of time.

13 [Private session]

14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

Page 21735

1 [redacted]

2 [redacted]

3 [Open session]

4 JUDGE ORIE: You may proceed.

5 MR. IERACE: Thank you, Mr. President. We now see P4 on Ashton's

6 map. In December of 1992, he was riding in an UNPROFOR vehicle and then

7 saw someone wounded on the steps of a nearby building. At that point, a

8 shell exploded near their vehicle. And we can go to the next image. We

9 were coming from the angle you see on the photograph, he said. We stopped

10 at that point. I got out, made the photograph, saw that there was someone

11 wounded on the front step of the building. I ran over to assist after

12 taking another photograph and found a dead woman between the two vehicles

13 that were burning, but could not recover her. He said of the two people:

14 "They were civilians. The man was an old man, and the woman was a young

15 woman." Another issue raised by the Defence was whether women were

16 legitimate military targets. There was evidence that there were female

17 combatants, but that evidence was also that there were very few female

18 combatants, and that the number of female combatants in the ABiH reduced

19 dramatically after the first few months of the war. Therefore, to the

20 extent that the Defence suggests that adult women could be considered

21 prima facie to be combatants simply is not borne out by the evidence. And

22 to the extent that such a submission suggests that even men of military

23 age could be considered prima facie combatants when in civilian clothes is

24 not supported by the law. To give a simple example, even in battle, an

25 enemy advances together with medics and often with correspondents, with

Page 21736

1 journalists. There are many who even at the front line are not combatants

2 and are protected by international humanitarian law.

3 Moving on to the next image, here we see the same map, P1, same

4 area. Novo Sarajevo. The red arrow indicates a direction of fire. The

5 green arrow indicates what we can faintly see to be the confrontation

6 lines. The witness gave evidence that in April 1993, he got on a bus in

7 front of the state hospital. It rounded a corner into an intersection

8 where there had always been heavy sniping. Next image, please. It

9 happened that he took this photograph of his fellow passengers on the

10 bus. As they came into the intersection, a sniper fired into the bus. He

11 said it was fired from a high angle going on its entry point and where it

12 impacted inside the bus. He said there was a scream from one woman. But

13 some people just stood there, even when the bullet came through. They

14 didn't even bother to move.

15 Next image. Thank you. We now see the same bus after the shot

16 was fired. He said one gentleman who was on the bus standing next to me

17 said to me afterwards before I left the scene, It doesn't matter if you

18 duck, because the bullets go right through it anyway. The bus stop.

19 Everyone got off quickly, ran for cover. He obtained the assistance of

20 the UNHCR and UNPROFOR, they investigated and determined that the bullet

21 came from above the sports stadium, territory which was held by the

22 Bosnian Serb forces. The map shown earlier was marked by the witness to

23 indicate the direction of fire. When one looks at the stadium position

24 consistent with his evidence as to his source of fire, one must make an

25 allowance.

Page 21737

1 Next image, please. Here we have the sniping map for a number of

2 incidents occurring in the region of Hrasno. There was a dispute as to

3 the positions at the front line, the confrontation lines, to which I shall

4 return at a later point. But at this stage, the evidence from the

5 Prosecution was that the forward position of the SRK forces was along a

6 ridge just beneath the ridge, thus affording a view of the city to the SRK

7 who occupied the ridge. In other words, the confrontation lines were on

8 the northern flank of the ridge running parallel and in the area of

9 Osrenska Street. Although it was not put to any of the Prosecution

10 witnesses who gave that evidence, the Defence in its case called a witness

11 who said the contrary. That he was stationed there and the front line was

12 on the southern flank of the ridge so that from SRK positions, they

13 couldn't see the city.

14 We'll now deal with incident 27. I'll come back to the issue of

15 the front lines. Next image, please. Incident 27 was, as you will

16 recall, the case of a 13-year-old boy who during a cease-fire wandered

17 along this shop front area with his mother and sister. He and his sister

18 indeed had been evacuated from Sarajevo because his schoolteacher father

19 and his mother were concerned as to the safety of their children. But

20 this was not in 1994; this was post Markale. This was when there was a

21 new atmosphere in Sarajevo. And as General Rose said to us, "Things were

22 possible that weren't possible before. There was some prospect of

23 reaching agreement to reduce shelling and sniping. The blue routes were

24 opened. Civilians started to come back in," as did this 13-year-old boy

25 and his sister utilising the blue routes. And so, on this date, the 22nd

Page 21738

1 of July, 1994, he with his bicycle went window shopping at this point with

2 his mother and sister. And as his mother and sister looked into a shoe

3 shop, which is to the right of what we see here, he was shot in his

4 stomach. And his family and some people nearby, some adults nearby,

5 rushed him off to hospital, and he survived. Investigator discovered that

6 in fact, there were two bullets. That about the time he was shot, which

7 was to the right of a passageway that we see to the right of this

8 photograph, second shot penetrated the awning over what was a coffee

9 shop. Next image. There is the penetration of the awning. Next image.

10 It then penetrated the glass behind it. Next image. And finally hit a

11 wall at the back of the coffee shop.

12 Next image. The investigators determined the source of the fire

13 as being the ridge line indicated by the circle and the arrow, territory

14 held by the SRK, with the benefit of lining up the holes. Next image.

15 And here, we have a view clearly from the ridge, the area of the ridge,

16 looking back. And this is what the shooter saw. We see the building with

17 the shops at ground level. Next image.

18 All right. The Defence in its submissions concluded this or said

19 this: It cannot be concluded that this witness, that is, the victim, was

20 the subject of intentional sniping. This conclusion is corroborated by

21 the fact that there were there other kids nearby the witness, including

22 his mother and sister, but there were no more shots or attempts of shooter

23 to hit the other persons present at the site at the relevant time. The

24 Prosecution says that is a desperate argument. The Prosecution case is

25 that the objective of the shooter was achieved. Civilians had been shot.

Page 21739

1 And quite clearly, as this family did, that having occurred, they

2 dispersed quickly. They took cover.

3 The Defence also suggested in its written submissions that the

4 bullet was a ricochet from an exchange of fire, suggested in spite of the

5 fact there was no evidence of any other firing. And when one pictures a

6 scene, a cease-fire, families strolling around, children playing in the

7 footpath, it is with the greatest of respect to the Defence, nonsense to

8 suggest that that could happen at the same time as an exchange of fire

9 going on between the two sides. Again, I think it's best put as a matter

10 of common sense. When one pictures a situation, factors in a line of

11 fire, this was a deliberate blast at civilians, including children, in a

12 public street from the SRK side.

13 Next image on the screen now is incident number 10. And at this

14 point, perhaps I'll say a little bit more about the dispute with the

15 confrontation lines. If we could go to the next image. Here we see the

16 markings made by a Defence witness on the earlier map suggesting where the

17 confrontation line really was, much further to the south. On this image,

18 the area of Osrenska Street is marked by the Prosecution with the red

19 circle. And so, this Defence witness had the red circle as being beyond

20 SRK positions.

21 First observation I'd make about this proposition by the Defence

22 is that it is extraordinary that so many witnesses gave evidence that

23 Osrenska Street was a notorious source of sniping fire, that none of them

24 realised it was ABiH territory, that none of them realised that the SRK

25 was on the other side of the hill, that they had nothing to fear from that

Page 21740

1 flank of the ridge. That is what the Defence is suggesting.

2 Next image. Mr. President, I would say we could go back into

3 private session and we won't show any images. We will skip the next few

4 images

5 Excuse me, Mr. President.

6 Mr. President, are we in private session?

7 THE REGISTRAR: No, not yet.

8 JUDGE ORIE: We are not in private session, Mr. Ierace. You're

9 waiting -- you want to go into private session.

10 MR. IERACE: I'm sorry, Mr. President. That's my fault. Yes I

11 did. Perhaps I can raise this in public session. I understand from Madam

12 Registrar that the next three images are confidential exhibits, but that's

13 not my recollection. The relevant witness gave evidence with a pseudonym

14 but in open session. And I don't recollect his maps as being --

15 THE REGISTRAR: May I have the exhibit number, please.

16 MR. IERACE: Yes, that's P3728 -- I'm sorry, no, I correct

17 myself. P3637. I think that's -- there's five maps in that bundle. And

18 I had thought, given the status of his evidence, that they weren't

19 confidential exhibits.

20 JUDGE ORIE: Would his name appear on any of these exhibits while

21 marking them?

22 MR. IERACE: Mr. President, it was blanked out. There was a

23 yellow sticker placed over the name. My recollection is that that was

24 done at the time he gave his evidence so the maps could be viewed

25 publicly.

Page 21741

1 THE REGISTRAR: It is showing that they are under seal.

2 MR. IERACE: All right. Mr. President, that being the case, I do

3 ask for private session for around a minute or two.

4 JUDGE ORIE: Yes, we'll then turn into private session.

5 MR. IERACE: In fact, less than that.

6 [Private session]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

13 [redacted]

14 [redacted]

15 [redacted]

16 [Open session]

17 MR. IERACE: Thank you, Mr. President.

18 JUDGE ORIE: We are.

19 MR. IERACE: Witness D gave evidence that he was a soldier for the

20 SRK. He was called by the Prosecution. His primary position, he said,

21 was in Grbavica alongside the river protecting four high-rise buildings

22 from which snipers operated. He said, though, that up until May 1993,

23 from June 1992, he spent five or six days on six or seven occasions at

24 another position which was Osrenska Street. He marked the position on a

25 map, and he said he was last posted there in February 1993. He was

Page 21742

1 shown -- might I just clarify the colour photograph is also a confidential

2 exhibit.

3 THE REGISTRAR: May I have the exhibit number, please.

4 MR. IERACE: 3251.

5 THE REGISTRAR: Exhibit P3251 under seal.

6 MR. IERACE: Okay. He marked on a photograph taken from Osrenska

7 Street the area of his positions, and from that photograph, one can see

8 the city in the background. He said that again, his responsibility was to

9 secure, to operate from trenches in front of a house from which snipers

10 operated, a two-storey house. He could see the snipers' weaponry

11 protruding from the house behind him. Very often, he heard the sound of

12 firearms coming from the house. The snipers discussed the nature of their

13 targets, which was "civilians and soldiers alike." He said that what they

14 shot at was usually the intersections and the transversals as they were

15 called, which were built horizontally around the city, broad roads down

16 the width of the city, not longitudinally, and they formed intersections

17 with the vertical roads. He said that with binoculars, his words, I could

18 see some containers that had been set up to protect passersby who had to

19 cross to the other side of the street, and there was sort of protection

20 barrier from sniper fire or fire from this type of machine-gun or other

21 weapons. And he identified machine-guns that were used from Osrenska

22 Street.

23 He was asked whether in spite of the existence of the barriers,

24 the intersections were still targeted? And he said "yes, they were." He

25 said, "if you looked through a pair of binoculars, you could always see

Page 21743

1 somebody going up to the container or passing by behind the container on

2 his way to a building. Sometimes people weren't as safety-conscious and

3 would cross at points where there were no containers, and you could

4 observe this clearly using your binoculars." There is powerful evidence

5 that Osrenska Street, indeed, further north, that is, down the slope from

6 Osrenska Street, was in SRK territory. He said that the intersections and

7 containers were sniped and machine-gunned with the M84 type of weapon. He

8 said there were tanks and an APC also stationed on Osrenska Street by the

9 SRK. And he said that the firing was one way. The firing was from the

10 SRK, not from the ABiH.

11 And by that, I should clarify there was occasional sniping fire,

12 but no large-scale initiatives from the ABiH side.

13 Here, we see the relevant photograph for incident number 10 where

14 a woman was crossing the road behind containers with her 8-year-old

15 daughter. She has marked -- the mother has marked on the photograph the

16 position of the containers. X marks the spot where she emerged from the

17 cover of the containers; and as she did so, she was promptly shot. The

18 bullet passed through her body and into the right hand and abdomen of her

19 8-year-old daughter. They were taken to hospital. In the background, we

20 see the ridge on which Osrenska Street was located.

21 Next image. Now, even though a witness for the Defence said

22 Osrenska Street was on the other side, he nevertheless conceded that this

23 view was available from SRK positions, it being the relevant area where

24 the witness was shot, and her daughter. The Defence submissions in

25 relation to this incident are that it is not possible that the woman and

Page 21744

1 her child could have been targeted because they were hit almost as soon as

2 they walked out from the containers. The Defence says "how is it possible

3 for the sniper to have seen them, to have taken aim, for the bullet to

4 have travelled a distance, and yet for them to be hit within a second or

5 two of emerging from the container?" The explanation is, from the

6 Prosecution and its submission is this, that may well be a powerful

7 argument if it wasn't for the fact that we're talking about snipers who

8 had been in place for at least nine months, twelve months at that stage.

9 This incident happened on the 3rd of September, 1993. We have the

10 evidence of Witness D that snipers were operating from Osrenska Street

11 with professional weapons since June 1992. We have evidence, which I've

12 already referred to, as to how in spite of containers, snipers worked how

13 to get around that, how to wait, how to spot civilians when they emerged.

14 So Mr. President, that is not an argument which, in the

15 circumstances of Sarajevo in September 1993, holds much weight given the

16 practices which had been developed.

17 I'll move on to the next slide.

18 JUDGE ORIE: Mr. Ierace, if you could find a suitable moment for a

19 break within two or three minutes, that would be fine.

20 MR. IERACE: Yes, Mr. President.

21 We now move to incident number 15. The gentleman on the screen

22 drove a bulldozer. He was tasked by UNPROFOR to remove rubbish. With the

23 breakdown of basic services in Sarajevo, rubbish built up and had to be

24 removed. It was a health hazard. He operated his bulldozer to the right

25 of this photograph where he was protected. But standing where he is, in

Page 21745

1 the background, we see territory which he identified towards the top of

2 the ridge as being held by the SRK. As he manoeuvred his bulldozer, he

3 inadvertently backed into view, even though there was an UNPROFOR,

4 appropriately painted, APC with him as he backed into that area, he

5 received a blast of fire.

6 Next image. This photograph marked by the witness, being a

7 telephoto from the last position, clearly indicates the SRK position. We

8 see the stadium to the bottom left. And behind it, the police academy.

9 There was much evidence about the police academy, how the Bosnian Serb

10 forces captured it earlier in the conflict, and how it became a known

11 source of sniping fire.

12 Next image. This is his bulldozer. The very one he was driving

13 that day, although photographed in the last two years. No change made to

14 its condition other than replacement of glass.

15 Next image. He said that he was told by his workmen that over 60

16 rounds, they counted, going on the impact points, hit the cabin. The

17 relevance of this is that the Defence suggests that the evidence does not

18 make out that he was targeted. The Defence suggests that the evidence is

19 to the effect that the bulldozer was targeted, not him. When one examines

20 these photographs, one sees that the impact points are most closely placed

21 in the vicinity of the cabin.

22 Next photograph. Even closer, we see impact points around the

23 door and on the rim where the glass was. The Defence suggests that

24 there's no evidence that the glass was broken which supports their

25 contention that he was not the target. There is no evidence that the

Page 21746

1 glass was not broken. It was not put to him that the glass was not

2 broken. The evidence is of impact points around the door which would have

3 broken the glass.

4 Next photograph.

5 Is that a convenient time, Mr. President.

6 JUDGE ORIE: Yes, it is, Mr. Ierace. We'll have a break and

7 resume at 10 minutes to 1.00.

8 --- Recess taken at 12.30 p.m.

9 --- On resuming at 12.55 p.m.

10 JUDGE ORIE: Mr. Ierace, please proceed. There seems to be

11 something on your screen that causes you to smile.

12 MR. IERACE: It's the absence of an operator, Mr. President.

13 JUDGE ORIE: The absence of an operator.

14 MR. IERACE: She has gone missing. But I can proceed in her

15 absence, I think.

16 Firstly, two matters not of substance: I'm informed that at some

17 stage in the last session, regarded at page 41, line 21, I referred to the

18 Prosecution rather than the Defence. That was in the context of the

19 suggestion that civilians should be moved from the city or from the front

20 line area.

21 Mr. President, secondly, at some stage during this next session, I

22 will hand over to Mr. Chester Stamp who will address you in relation to

23 the scheduled shelling incidents and the statistical evidence to an extent

24 as well from the Prosecution and Defence. And then tomorrow morning, I

25 will again at some stage finish off the submissions.

Page 21747

1 Mr. President, before I return to our point on the confrontation

2 lines, I note that we started in the area of the airport. We went through

3 Dobrinja, Nedzarici, Alipasino Polje, Cengic Vila, and Hrasno, and shortly

4 we will move into Grbavica. If we could have the next image on the

5 screen, we see incident number 20. This incident involved a woman at home

6 in an apartment in a block facing south, facing the SRK confrontation

7 lines, waiting with her family for her husband who was an ABiH soldier to

8 come home. It was after nightfall. The husband was a witness, and he

9 said tellingly that he felt safer in the trenches on the front line than

10 he did in the city. He was not the only witness to say that. And it was

11 a powerful indicator of the risks that everyone faced away from the front

12 lines. The point being that moving from front-line positions as was the

13 case with Milida Halili's mother was no guarantee of safety at all.

14 Nowhere in the city was safe from indiscriminate and deliberate fire

15 against civilians.

16 He returned home and was concerned that his family had not put up

17 the blanket across the windows of the living area facing the front line.

18 They had up some coverings, some plastic on one half of the window, but it

19 was torn. He said something about the lack of the blanket. So they would

20 have a coffee first, as his wife sat with her back to the windows, there

21 was the sound -- a crashing sound, and then she said she was gone for, or

22 words to that effect, and she died within minutes.

23 It transpired that two bullets had entered the apartment, it

24 seems, simultaneously. And the bullet one lower than the other, the one

25 that impacted the window frame remained lodged in her body, it being the

Page 21748

1 fatal bullet; the other continued further into the apartment, penetrated a

2 wall between that room and a small hallway, went beyond that, through the

3 door into the public area of the apartment. Could we have the next image,

4 please.

5 Now, on this map, we see again the front line of the SRK positions

6 consistent with the front line being to the north of Osrenska Street

7 marked by the victim's husband. So there is consistency with the

8 Prosecution case. Next image. Here we see the view from the living area

9 looking north, the ridge with Osrenska Street in the background in the

10 distance. The victim was seated with her back to the windows. One can

11 see that the windows were two halves that opened inwards. Yes, next one.

12 The husband marked the portion of the ridge where he believed the fire

13 came from. Next one. A close-up from the same position, of the ridge.

14 Next one. Markings by the husband of the relevant part of the ridge that

15 was controlled by SRK forces. We will skip the next image.

16 Come back. Stop that. All right.

17 The Prosecution case is that having regard, especially to the fact

18 that there were two bullets, that is powerful evidence that again the

19 window was targeted, the window emitting light. The Defence points out

20 that the victim herself in all probability; the Prosecution agrees. This

21 was indiscriminate fire. The source of light was a candle in front of the

22 woman. One could only speculate as to whether there was a silhouette.

23 The Prosecution does not invite the Trial Chamber to speculate. But what

24 is clear, as the evidence by the concern of the husband, is that light was

25 being emanated and that was enough. The fact that the two bullets were

Page 21749

1 simultaneous suggests that there were two separate shooters firing at

2 exactly the same moment. Again, strong evidence that the intended target,

3 that is, the lit room, the room from which light was emanating, was the

4 target.

5 No evidence of any shooting before or after, an otherwise quiet

6 night. Therefore, to suggest that the victim was accidentally killed in

7 an exchange of fire has no evidentiary basis.

8 The next image, we won't come to it just yet, concerns the

9 evidence of Aernout Baron van Lynden, a war correspondent, a veteran of a

10 number of wars, in the Middle East and elsewhere, who in his early years

11 was a member of the military himself. A very impressive witness. This

12 particular aspect of his evidence concerns his observations of a high-rise

13 residential building coming under fire from SRK territory. We'll play the

14 video first because of the commentary that was tendered into evidence,

15 because he was a witness, speaks for itself.

16 [Videotape played]

17 MR. IERACE: That incident was not only witnessed by Baron van

18 Lynden, but obviously clearly also by the fire chief Jusufovic, who was a

19 witness. And he was shown some raw footage of the incident which included

20 some extra at the end which was not in Baron van Lynden's clip, but which

21 is sufficiently important to show again. Could we please have the next

22 clip.

23 [Videotape played]

24 THE REGISTRAR: Mr. Ierace, there's no image on the screen.

25 MR. IERACE: Thank you for that. We've discovered the reason for

Page 21750

1 that. Perhaps we can play it again.

2 [Videotape played]

3 MR. IERACE: Now, this is the -- we will shortly see the section

4 which was not in the earlier footage. It begins now. We see individuals

5 making their way down the face of a building. The fire chief explained

6 that this was the same incident, and this was the side of the building

7 facing away, that is, to the north, from SRK positions.

8 Now, Baron van Lynden was questioned as to the basis of some of

9 the things he said in the report. How did he know that the building was

10 inhabited by civilians? He said that he interviewed them. He spoke to

11 them to find out what use, not only what their status was, but what use

12 had been made of the building, in particular, whether it had been used by

13 the ABiH. And he made the comment: "Civilians in any war zone are always

14 very wary of their property being used by the military in any way

15 whatsoever because they are afraid that their opponents will then fire on

16 that property, and the civilian population in Sarajevo was no different to

17 anywhere else." How did he know that the fire came from the SRK side?

18 Because he could see it, and as we saw on the video, they were incendiary

19 rounds. There were no particular skill required to work out where the

20 rounds were coming from.

21 He said that he thought several hundred people lived in that block

22 alone. The fire chief said it was the biggest apartment block in

23 Sarajevo. There is no explanation, other than the obvious, as to why it

24 was hit. It was terrorising the civilian population. He said that the

25 firing continued into the building as the firemen attempted to put it out,

Page 21751

1 something the fire chief told us happened time and again during the

2 indictment period. He referred to the SRK protecting their fires.

3 Moving on to the next image, the next video is a report by Carel

4 Djederic from the BBC that came into evidence through Richard Gray. One

5 of the reasons I want to show it is again it demonstrates especially at

6 night one could see some rounds, at least some artillery rounds, and where

7 they came from. We have a problem in playing that, so we'll move on.

8 Mr. President, I'm experiencing problems with this presentation,

9 so I think at that stage, I might stop for the day and hand over to

10 Mr. Stamp, if it's convenient. And we'll sort out the problems with this

11 particular presentation overnight. Thank you.

12 JUDGE ORIE: Yes. I think that's the most efficient use of the

13 time available to the Prosecution. Mr. Stamp, then, please proceed.

14 MR. STAMP: Thank you very much, Mr. President, Your Honours, and

15 good afternoon.

16 I'd like to start by asking a question. Imagine if someone placed

17 a mortar in your community, in a community within a city, and began to

18 fire off rounds within 300 metres in that community. Would not every

19 person living in that community know about it? Except for those who are

20 comatose. It is submitted respectfully that in that type of circumstance,

21 it would be expected that all the persons in the community would know that

22 these mortars are firing therein. Mortars are heavy weapons, and it is

23 not possible to conceal their firing in a city. Commandant Hamill said,

24 and I'll quote him: "That the detection of mortars is actually quite easy

25 because it has a very loud signature, that is, it makes a very loud noise

Page 21752

1 when it is fired. Even at a low charge, charge 0, or charge 1, it is

2 still a very, very loud weapon."

3 The population of Sarajevo were subject to rigorous training over

4 a very long period so that they would have fine-tuned their senses. They

5 certainly, according to Hamill, would be able to hear the difference

6 between the sound of a gun and a mortar after a while. I asked a

7 question, and I refer to the passage from Commandant Hamill's testimony

8 because it appears that the main thrust of the Defence in respect to the

9 scheduled shelling incidents, particularly incidents 1, 2, and 3, is that

10 the rounds that caused these many casualties were fired by elements on the

11 Bosnian government side of the line. In their opening of the Defence,

12 they used the expression "staged" in reference to the shelling incidents,

13 and the Defence expert testified in respect of "these incidents," that the

14 rounds were fired on very short ranges, and therefore, from within the

15 confrontation lines.

16 It seems, in fact, that this is the only real issue left in

17 respect of these incidents. And the theory that they were fired by

18 Bosnian elements against their own civilians, which is a sort of theory of

19 self-inflicted mayhem is a theory of last resort. It is raised to counter

20 overwhelming and convincing evidence that these several scheduled shelling

21 incidents were clearly criminal acts. There is no evidence that at the

22 relevant times of these incidents was there any military necessity, and

23 military necessity, by that I mean in the context of international

24 humanitarian law. There was no military necessity for firing into these

25 areas.

Page 21753

1 The human tragedies that resulted were from deliberate targeting

2 of civilians or indiscriminate fire into these civilian areas. And these

3 incidents were so notorious that the accused must have known about them or

4 ought to have known about them. As a matter of fact, in respect to the

5 first incident, there is evidence from Commandant, I think it is, Bergeron

6 that he made a complaint at the accused headquarters at Lukavica to the

7 accused's superior officers. And this is the very first incident,

8 according to the witness, Butva, the SRK, that is, the Sarajevo-Romanija

9 Corps, were monitoring the media on the Bosnian side. And the Prosecution

10 in our closing brief has also summarised the evidence of specific protests

11 made to the accused or to senior officers of the Sarajevo-Romanija Corps

12 or the VRS command so that these events could not have escaped his notice.

13 Much ado and questions have been asked by the Defence in

14 particular of persons with some experience in artillery fire about

15 technical possibilities. The casualties from the first three incidents

16 resulted from 82-millimetre mortar rounds. Yes, they said, including

17 Higgs. It is possible to fire the 82-millimetre mortar at relatively

18 short ranges. However, mere technical possibility does not amount to

19 reasonable doubt.

20 If all the relevant evidence in respect to these incidents is

21 taken into account, then practically speaking, one can conclude beyond a

22 reasonable doubt that these incidents could not have been staged within

23 these communities. As submitted in the Prosecution's closing brief, a

24 very high degree of accuracy would have been required in order to stage

25 any of these incidents using only one or two rounds. Although the Defence

Page 21754

1 experts rather contradictorily suggested that the accuracy was very low in

2 respect to mortars, the overwhelming evidence has been, and this is also

3 the evidence of three Sarajevo-Romanija Corps mortar gunners that

4 testified, that they were capable of a very degree of accuracy, indeed,

5 they could hit within 50 metres of their target, within one or two shots.

6 That level of accuracy for the incidents to be staged is consistent with

7 the Prosecution's case. We submit that they were capable of accuracy.

8 However, there are necessary preconditions before that level of

9 accuracy can be achieved. A mortar that would have been engaged in such a

10 mission of firing one or two shells into these civilian gatherings cannot

11 simply be set up, shoot the one or two rounds, and then scoot. Firstly,

12 the mortars would have had to be located in a static position with the

13 barrel pointing in the proposed direction of fire over a projected period

14 of time. The Bosnian side, therefore, who would have had mortars, a very

15 scarce resource for them, pointing into their own territory.

16 Next, these mortars would have had to fire off a few rounds in the

17 direction that they intended to fire in order to suddenly, solidly embed

18 the base plates into the ground and to record the fire for the purposes of

19 later adjustment. And thereafter, they would have to remain in the same

20 spot for the opportune moment to fire on the civilians. This, it is

21 submitted, could not be accomplished unnoticed in any community. It could

22 not have escaped the attention of the citizens of these communities,

23 including many of them who testified at this trial.

24 Are we to assume that these victim witnesses, many of whom were

25 injured or lost loved ones, would sanction these self-inflicted atrocities

Page 21755

1 by silence?

2 On the map that was tendered through the witness Higgs, he

3 reproduced the evidence of the direction of fire, as well as the evidence

4 in respect to where the confrontation lines were. And an examination of

5 the characteristics of the area between the scenes of the incident and the

6 confrontation lines along the axis of fire can assist in clarifying this

7 issue. There, it would also be helpful to analyse some of the photographs

8 and videos that were tendered through many of the sniping witnesses who

9 lived in the area along the line of fire for these three first incidents.

10 Many of them were shown earlier by learned lead counsel.

11 However, the first image I'd like to show is an enlargement of

12 part of map 3644RH. Incident 1 is marked with a number 1 in blue. The

13 distance between the confrontation line and the scene of the incident

14 marked 1 is approximately 320 metres. Now, the distances between the

15 crime scene and the confrontation lines have been estimated with varying

16 degrees of accuracy by many civilian witnesses. However, the relevant

17 distances need not be a matter of argument. In fact, they could have been

18 agreed upon. The location of these incidents is not really a serious

19 issue. And in this area, there is evidence from the ABiH 1st Corps

20 Commander Karavelic of the location of the confrontation lines as well as

21 evidence of the witness Hadzic, who was the brigade commander for

22 Dobrinja. The red lines, the unbroken red lines, are the axis of the

23 direction of fire for the two mortar rounds. And the broken red lines

24 forming an outer cone shape allow for a 5 degree margin of error, which

25 was allowed by Higgs.

Page 21756

1 From the impact site, along the direction of fire, the line goes

2 over the building that was on the eastern side of the parking lot where

3 the incident occurred. Then it passes through a commuter square, then

4 over a building, and finally into an open area in the vicinity of the

5 confrontation lines where, within this cone in the direction of fire,

6 could the offending mortar have been hidden from the citizens of this

7 community or the soldiers who defended it at the lines.

8 Some of the casualties in this incident were off-duty soldiers.

9 Were they deliberately killed or injured by their comrades in arms? If

10 so, what would have been the reaction of the survivors? It should also be

11 recalled that these confrontation lines were normally defended by men who

12 were from the very communities where the lines were located. They, too,

13 had families and friends inside that attended the football tournament or

14 that had to go out to fetch water or food for sustenance. Again, one

15 could ask: What about the Sarajevo-Romanija Corps troops that were in the

16 vicinity of these lines? Some areas within the cone of fire could be

17 directly viewed from the SRK lines. Surely, they would have been able to

18 observe the preparations and fire by the ABiH into their own territory.

19 DP9 testified that his platoon was based in this area of the lines in

20 Dobrinja; and although he spoke of trenches going up to Mojmilo hill, he

21 did not mention anything about mortars in the area in this particular

22 area, nor did he mention anything about mortars in this area firing back

23 into the ABiH territory.

24 Anyone who set up a mortar within this area would have been

25 peppered by SRK counterfire long before they could even get a shot off.

Page 21757

1 As regards the trenches which led up to Mojmilo, these trenches

2 were actually trenches used by the civilians to cross from Mojmilo into

3 Dobrinja, and vice versa. The evidence is that the trenches were dug for

4 the civilians to protect themselves because of the constant sniper fire

5 that was directed by the SRK forces from Lukavica area down that Lukavica

6 main road. Witness R and Fata Spahic who were victims in the humanitarian

7 line incident spoke about the purposes of these trenches. They, and other

8 women, had used these trenches to travel to Dobrinja to try to get flour

9 where the humanitarian aid was being distributed. They used the trenches

10 to avoid sniping from the SRK forces in Lukavica. Along those trenches,

11 they met only two soldiers that day.

12 Hadzic, who ought to have known what were the circumstances in the

13 area, testified that soldiers did have occasion to use these trenches.

14 But when they did, they never fired from them.

15 In regard to incident 2, and we need not move on, it's here. The

16 configuration of the territory in the direction of fire leads to

17 practically the same conclusion. There was no possibility of placing

18 mortars within the cone of fire. And certainly, no possibility of not

19 only placing mortars there, but to take the necessary preparatory steps of

20 adjustment fire, and then firing on civilians within the lines. The

21 impact site is marked 2, and the line of direction of fire is a solid or

22 unbroken red line.

23 In this incident, Higgs allowed a margin of error of 8 degrees on

24 each side, possibly because in this incident the mortar rounded exploded

25 on contact with a person at the gate to the water collection point. The

Page 21758

1 distance between the impact and the confrontation line was approximately

2 250 metres. The map clearly shows that all the possible firing positions

3 in the area controlled by the ABiH were visible from the lines held by the

4 VRS forces or otherwise they were in the open, near to, and within view

5 and earshot of the residents on the Bosnian side of the lines. Again, in

6 such a case, it would have been impossible to position mortars and fire

7 them without anybody registering it.

8 It is submitted that the only reasonable conclusion is that the

9 82-millimetre mortar shell that fell among those gathered at the water

10 collection point was fired from the area of Nedzarici as indicated by at

11 least three witnesses who examined the area. And Nedzarici is well within

12 the area controlled by the SRK. We'll see on the map below the number 2 a

13 dot with a T below it. And that's in blue. The dot is the place or the

14 location of a house where the trench to the tunnel which was built under

15 the airport began. This is about 120 metres to the southeast of the scene

16 of the incident. The evidence is, including documentary evidence tendered

17 by the Defence, that this house came into use weeks after the incident of

18 the 12th of July, 1993, and therefore, the house is not relevant to

19 incident 2.

20 Higgs had expressed the view, however, that the house would not

21 have been the target as the error in the region of 120 metres would have

22 been too great having regard to the angle of its position in relation to

23 the direction of fire. And I'd like to comment briefly on that. One can

24 see on the map that the dot representing the house is off to the right of

25 the direction of fire. Higgs' reasoning is logical, because as has been

Page 21759

1 explained by many witnesses, including Defence witnesses, there are many

2 reference points, like buildings, intersections, and other landmarks that

3 are used when firing artillery into a town. So with good maps, the

4 gunners could very accurately point the barrel in the direction aimed at.

5 In other words, the mortar tube can be aligned using the various reference

6 points so that it points precisely in the direction of the target. The

7 situation, of course, would be substantially different in the classic

8 situation where the firing is done in open terrain. In the circumstances

9 of this incident, it is highly improbable that a mortar battery firing

10 from Nedzarici would make an error to such a degree to the right or left

11 of the target. The same observations, it is respectfully submitted, would

12 apply equally to the battalion headquarters which Hadzic had marked on his

13 map which was tendered into evidence. That was located some 100 to 150

14 metres to the northwest of the incident point, or to the left of the

15 direction of fire.

16 If perhaps we could move on to the next one and the next one, this

17 is the area of incident 3. The Chamber has already viewed photographs

18 from witnesses in respect to the sniping incident who were shot somewhere

19 in the vicinity of the school for the blind and along this line

20 representing the direction of fire. The unbroken red lines start beside

21 the number 3 where the incidents occurred, and go from the impact sites to

22 the school for the blind. This is because during the conflict, the school

23 for the blind had attained a remarkable degree of notoriety as the source

24 of sniping, and many witnesses had heard shells, mortar rounds being fired

25 from that area. It became a very well-known line to mark. According to

Page 21760

1 Mirza Sablija -- may I pause here. I would respectfully ask that that be

2 redacted, the name I just mentioned.

3 JUDGE ORIE: Madam Registrar will take the necessary steps.

4 Please proceed, Mr. Stamp.

5 MR. STAMP: I am grateful, Mr. President, and I do apologise.

6 I have been advised that --

7 THE REGISTRAR: That is not a protected witness, Mr. Stamp.

8 Facial distortion only.

9 MR. STAMP: I see.

10 JUDGE ORIE: Yes, that means that the necessary steps are no

11 steps. Please proceed.

12 MR. STAMP: According to Witness AI and Mirza Sablija, in the

13 immediate vicinity of the Institute for the Blind, there were barracks of

14 the former JNA. And these barracks were occupied by the SRK during the

15 conflict. This is the area that Witness AI identified as a source of the

16 sound of the firing of the round that injured him and the children. So

17 the school building or the building of the school for the blind and that

18 compound that the red line -- the red lines -- the unbroken red lines

19 touch upon in the west are reference points as explained by Higgs. They

20 are reference points for that area in Nedzarici. The 82-millimetre

21 mortars that were fired were located on grounds in the general vicinity of

22 the school and the military barracks, not necessarily in the schoolyard

23 itself. Again, the map in conjunction with the various photographs that

24 are in evidence clearly shows that positions of mortars and heavy weapons

25 would have been visible from the lines held by the SRK forces or they

Page 21761

1 would have had to be in small open areas, near to buildings that were

2 occupied. There are major intersections, courtyards, and parking lots

3 outside the apartment buildings in the Bosnian side of the line. The

4 possibility of fire, it is submitted, from the Bosnian side of the line is

5 excluded as a proposition which is mere technical possibility, but not a

6 practical possibility.

7 And in conjunction with the evidence of Witness AI, it is

8 submitted that the certain conclusion is that these rounds were fired from

9 Nedzarici.

10 The last thing I'll say on this notion, this theory, that the

11 Bosnian civilians were standing by and allowing certain elements to shoot

12 and kill their own people is that self-preservation and protection of

13 family and loved ones is a very basic human instinct. There is no reason

14 to deny the Bosnian people of that basic human instinct. To even conceive

15 and suggest that the residents of these communities and the soldiers that

16 defended these communities quietly acquiesced in the murder and maiming of

17 their own because they would have known about it is tantamount to denying

18 them even this basic human instinct. And it is not surprising, therefore,

19 that when many of these victim witnesses came to this Chamber and

20 testified about their experiences, it was never suggested to them, they

21 were never asked about mortars in their communities killing their friends

22 and their families. Mehonic, Rasim Mehonic, was a man about the

23 community. He was gravely injured. He lost his wife and two daughters in

24 one incident in one day, he testified. He would have known about mortars

25 firing on these people within a couple hundred metres of where he lived.

Page 21762

1 In any community, any intelligent person would have known. He was not

2 asked to comment on this possibility.

3 According to Witness AI, who was also gravely injured, he was

4 passing through phase B and heading towards phase C, Alipasino Polje, when

5 he heard the first two shells that caused him to run for cover. He was

6 injured in front of phase C. If one looks at the map, one can see that

7 phase B is the two oval-shaped lines of buildings to the west of phase C

8 where the incident occurred. That it is phase B is evident from the

9 testimony of Witness Q. And I am going to pause shortly, Mr. President.

10 JUDGE ORIE: You saw me looking at the clock, Mr. Stamp, I take

11 it. Yes, yes, it's just in front of me. Yes, if you could find a

12 suitable moment within one or two moments, yes.

13 MR. STAMP: Phase B is a westernmost block of two oval-shaped

14 apartments. This is where Witness AI was coming from. The Defence

15 ballistic expert says that the two rounds that caused so many casualties,

16 including AI, was fired from 200 metres away. 200 metres from these

17 impacts in the established direction of fire can be measured on this map.

18 And it puts the firing point within the courtyard of phase B, within the

19 courtyard to -- in the set of buildings on the right. This is precisely

20 where Witness AI was walking from. He would have been able to comment if

21 he had been asked about the possibility that the mortars which killed

22 these children and maimed him were located in the courtyard or the area

23 that he had just walked from.

24 May it please you, Mr. President, Your Honours, that is perhaps a

25 convenient point.

Page 21763

1 JUDGE ORIE: Yes, it is, Mr. Stamp.

2 As far as I'm aware of, there would be approximately one hour and

3 15 minutes left if we stick within the five hours - I make the same

4 mistake as I did this morning - the five hours granted to the

5 Prosecution. That would mean if we resume tomorrow morning at 9.00, the

6 Prosecution would be expected to finish at about 10.15.

7 The Chamber will be very strict as far as time is concerned. We

8 all know that part of the closing argument is also to some extent

9 repetition, and acceptable repetition, of what has been written down in

10 the final briefs. It's important to present this to the public who, of

11 course, will not read all the documents that are filed by the parties.

12 But at the same time, it indicates that it might be easier then while

13 examining a witness to strictly keep within the time limits set.

14 We will adjourn until tomorrow morning, 9.00, same courtroom.

15 --- Whereupon the proceedings adjourned at

16 1.50 p.m., to be reconvened on Wednesday, 7th

17 May, 2003, at 9.00 a.m.